Attached files
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| 8-K - POWER 3 MEDICAL PRODUCTS INC | v207514_8k.htm |
FIRST
AMENDMENT AND WAIVER TO AGREEMENT AND PLAN OF MERGER
THIS
FIRST AMENDMENT AND WAIVER TO AGREEMENT AND PLAN OF MERGER (this “Amendment and
Waiver”) is made and entered into this 31st day of December, 2010, by and
between Power3 Medical Products, Inc., a New York corporation (“Power3”), and
Rozetta-Cell Life Sciences, Inc., a Nevada corporation (the “Company”), for the
purpose of amending the Agreement and Plan of Merger (the “Merger Agreement”)
dated September 7, 2010, by and between Power3 and the
Company. Capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Merger Agreement.
Recitals
WHEREAS,
the parties hereto desire to amend certain provisions of the Merger
Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. The
“Outside Date,” as such term appears in Section 2.1, is hereby amended to be
June 30, 2011.
2. Section
6.1(d) is hereby deleted in its entirety and replaced with the following
provision:
(d) Power3
shall have delivered to the Company any certificates evidencing the Power3
Shares in accordance with Section 2.2(b)(i);
3. Section
6.1(e) is hereby deleted in its entirety and replaced with the following
provision:
(e) The
Power3 Shareholder Approval shall have been obtained; and
4. The
following provision is hereby added as Section 6.1(f):
(f) Subsequent
to obtaining the Power3 Shareholder Approval, but prior to the consummation of
the Merger, all issued and outstanding shares of Power3 Series B Preferred Stock
shall be converted into Power3 Common Stock by the holders thereof.
5. Power3
and the Company do hereby waive any breach of any representations and warranties
or breach of any covenants or agreements by either party to the Merger Agreement
that may exist or arise under the Merger Agreement or this Amendment and Waiver
as a result of the conversion of the Series B Preferred Stock into Power3 Common
Stock.
6. The
waiver set forth in Section 5 hereof is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Merger Agreement, nor shall it constitute an obligation to execute similar
waivers or amendments under the same or similar circumstances in the
future.
7. Except
as expressly provided herein, the Merger Agreement shall remain in full force
and effect.
8. This
Amendment and Waiver may be executed in two or more counterparts and delivered
via facsimile, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
9.
This Amended and Waiver shall be governed by and construed in accordance with
the laws of the State of Texas, without regard to the laws that might otherwise
govern under applicable principles of conflicts of laws thereof, except to the
extent that the NYGCL shall apply to the internal corporate governance of Power3
and to the extent that the NGCL shall apply to the internal corporate governance
of the Company.
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IN
WITNESS WHEREOF, Power3 and the Company have caused this Amendment and Waiver to
be signed by their respective officers hereunto duly authorized, all as of the
date first written above.
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POWER3
MEDICAL PRODUCTS, INC.
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By: /s/ Ira L.
Goldknopf
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Ira
L. Goldknopf
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President
and Chief Scientific Officer
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ROZETTA-CELL
LIFE SCIENCES, INC.
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By: /s/ Sara
Parks
Sara
Parks
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President
and Chief Executive
Officer
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