EXHIBIT 9.01
FOURTH AMENDMENT
TO
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
INTRAOP MEDICAL, INC.
AND
INTRAOP MEDICAL CORPORATION
This Fourth Amendment (the "Amendment") to the Agreement and Plan of
Reorganization is made and entered into as of December 20, 2004, by and among
Intraop Medical, Inc., a Delaware corporation (the "Target") and Intraop Medical
Corporation, a Nevada corporation (the "Acquiror"). Any capitalized terms not
defined herein shall have the same meanings given to them in the Agreement (as
defined below).
RECITALS
Whereas the Target and the Acquiror have entered into that certain
Agreement and Plan of Reorganization as of February 24, 2004, (the "Original
Agreement") with respect to a plan of reorganization, as result of which the
Target will be merged with and into the Acquiror.
Whereas, on June 29, 2004, the Target and the Acquiror have entered into
that certain Amendment to Agreement and Plan of Reorganization (the "First
Amendment"), extending to July 31, 2004, the date after which, should the merger
not be complete, either party may terminate the merger agreement.
Whereas, subsequently, on July 31, 2004, the Target and the Acquiror have
entered into that certain Second Amendment to Agreement and Plan of
Reorganization (the "Second Amendment"), extending to September 30, 2004, the
date after which, should the merger not be complete, either party may terminate
the merger agreement.
Whereas, subsequently, on November 15, 2004, the Target and the Acquiror
have entered into that certain Third Amendment to Agreement and Plan of
Reorganization (the "Third Amendment"), extending to December 31, 2004, the date
after which, should the merger not be complete, either party may terminate the
merger agreement.
Whereas, the Original Agreement as amended by the First Amendment, the
Second Amendment and the Third Amendment is referred to herein as the
"Agreement."
Whereas, pursuant to Section 7.1(b) of the Agreement, the Agreement may be
terminated at any time prior to the Effective Time, by written notice by the
terminating party to the other party, by either the Acquiror or the Target if
the Merger shall not have been consummated by December 31, 2004.
Whereas, as of the date hereof, it has become apparent to the parties that
the merger will not be consummated by December 31, 2004.
Whereas, the Target and the Acquiror desire to amend the Agreement as
provided herein.
Now, therefore, in consideration of the mutual promises, covenants, and
representations contained herein, the parties hereto agree as follows:
AMENDMENT
1) Section 7.1(b) of the Agreement shall be deleted and entirely replaced with
the following:
(b) by either Acquiror or Target if the Merger shall not have been
consummated by March 31, 2005, provided, however, that the right to
terminate this Agreement under this Section 7.1(b) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
has been the cause of or resulted in the failure of the Merger to occur on
or before such date.
3) This Amendment may be executed in counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
4) Except as otherwise modified hereby, the terms of the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the Target and the Acquiror have caused this Amendment
to be executed and delivered by each of them or their respective officers
thereunto duly authorized, all as of the date first written above.
INTRAOP MEDICAL CORPORATION INTRAOP MEDICAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. Goer
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. Goer
Title: President Title: President