Amendment No. 2 to Agreement and Plan of Merger and Reorganization

EX-10.2 3 brhc10030726_ex10-2.htm EXHIBIT 10.2

Exhibit 10.2

AMENDMENT NO. 2
TO

AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

This Amendment No. 2 to Agreement and Plan of Merger and Reorganization (this “Amendment”) is made and entered into as of October 11, 2021, by and among I-ON DIGITAL CORP., a Delaware corporation (the “Company”), CDI ACQUISITION CORP., a Delaware corporation (“Acquisition”) and CARDIO DIAGNOSTICS, INC., a Delaware corporation (“CDI”).

RECITALS:

A. Company, Acquisition, CDI and the shareholders of CDI (the “CDI Shareholders”) entered into that certain Agreement and Merger and Reorganization dated as of April 27, 2021 (the “Merger Agreement”) as amended on August 29, 2021.

B. The parties hereto now desire to amend the Merger Agreement in accordance with Section 8.11 of the Merger Agreement as hereinafter provided.

NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Amendment.

Section 7.1(a) of the Merger Agreement is hereby deleted in its entirety and amended and restated in its entirety to read as follows:

(a) This Agreement may be terminated by either the CDI Directors or the Company Board at any time prior to the Closing Date if: (i) there shall be any actual or threatened action or proceeding before any court or any governmental body which shall seek to restrain, prohibit, or invalidate the transactions contemplated by this Agreement and which, in the judgment of such board of directors, made in good faith and based on the advice of its legal counsel, makes it inadvisable to proceed with the Merger contemplated by this Agreement; (ii) any of the transactions contemplated hereby are disapproved by any regulatory authority whose approval is required to consummate such transactions or in the judgment of such board of directors, made in good faith and based on the advice of counsel, there is substantial likelihood that any such approval will not be obtained or will be obtained only on a condition or conditions which would be unduly burdensome, making it inadvisable to proceed with the Merger; (iii) there shall have been any change after the date of the latest balance sheets of CDI or the Company, respectively, in the assets, properties, business, or financial condition of CDI or the Company, which could have a materially adverse affect on the value of the business of CDI or the Company, respectively, as the case may be, dated as of the date of execution of this Agreement; or (iv) the Closing Date shall not have occurred by December 31, 2021, or such other date as Company and CDI may agree upon in writing. In the event of termination pursuant to this Section 7.1(a), no obligation, right, or liability shall arise hereunder, and each party shall bear all of the expenses incurred by it in connection with the negotiation, drafting and execution of this Agreement and the transactions contemplated thereby.

2. Reimbursement of Expenses. Upon the execution of this Amendment, CDI hereby agrees to pay the expenses incurred by the Company as a result of extending the Closing Date as set forth in Section 1 above as follows: (a) the Company’s OTCQB renewal fee in the amount of $14,000 which was previously paid by the Company; and (b) the costs incurred by the Company for the preparation and filing of the Form 10-Q for the quarter ending June 30, 2021 including accounting, auditing, legal and filing fees in the amount of $14,600. In the event that the Closing does not occur by the amended Closing Date of September 30, 2021, as a condition to Closing, CDI hereby agrees to reimburse the Company for any and all expenses of filing the Form 10-Q for the quarter ending September 30, 2021.

3. No Implied Amendments; Effective Date. Except as amended herein, all terms and provisions contained in the Merger Agreement shall remain in full force and effect. Each of the parties hereto agrees that the amendment to the Merger Agreement contained herein shall be effective upon the execution of this Amendment by each party hereto. On and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Merger Agreement shall mean the Merger Agreement as amended by this Amendment.

4. Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. Signed counterparts of this Amendment may be delivered by facsimile and by scanned portable document format image. Facsimiles or other electronic copies of signatures will be deemed to be originals.

5. Defined Terms. Capitalized terms used herein that are not otherwise defined shall have the meanings set forth in the Merger Agreement.

6. Choice of Law. This Amendment is to be construed and governed by the laws of the State of Delaware, without regard to the conflict of laws rules thereof.

[Signature Page Follows]

IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the undersigned effective as of the date first above written.

I-ON DIGITAL CORP.


By:	/s/ Jae Cheol Oh
	Name: Jae Cheol Oh
	Title: Chief Executive Officer


CDI ACQUISITION CORP.


By:	/s/ Jae Cheol Oh
	Name: Jae Cheol Oh
	Title: President


CARDIO DIAGNOSTICS, INC.


By:	/s/ Meeshanthini V. Dogan
	Name: Meeshanthini V. Dogan
	Title: Chief Executive Officer