Exhibit
10.1


 


AMENDMENT
TO AGREEMENT AND PLAN OF MERGER


 


Dated
December 5, 2022


 


This
Agreement (the “Amendment”) amends the Agreement and Plan of Merger dated August 31, 2022 (the “Merger
Agreement”), by and among (i) Aesther Healthcare Acquisition Corp, a Delaware corporation (together with its successors,
the “Purchaser”), (ii) AHAC Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of
the Purchaser (“Merger Sub”), (iii) Aesther Healthcare Sponsor, LLC, a Delaware limited liability company,
(the “Purchaser Representative”), (iv) Dr. Chirinjeev Kathuria, (the “Seller Representative”),
and (v) Ocean Biomedical, Inc., a Delaware corporation (the “Company”). The Purchaser, Merger Sub, the
Purchaser Representative, the Seller Representative and the Company are sometimes referred to herein individually as a “Party”
and, collectively, as the “Parties”. The terms not defined herein shall have the meaning assigned to them in
the Merger Agreement.


 


WHEREAS,
the Parties hereto wish to amend the Merger Agreement as provided herein.


 


NOW,
THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties hereto agree
as follows:


 


		1.	Section
                                            1.9(d) of the Merger Agreement is hereby replaced in its entirety by the following:



 


(d) Additionally,
for the first Extension obtained by Sponsor, Sponsor will be entitled to receive from the Purchaser at Closing 0.25 additional shares
of Purchaser Common Stock for each dollar Sponsor deposited into the Trust Account necessary to obtain the first Extension and for the
second Extension obtained by Sponsor, Sponsor will be entitled to receive from the Purchaser at Closing 1.05 additional shares of Purchaser
Common Stock for each dollar Sponsor deposited into the Trust Account necessary to obtain the second Extension. Any such deposits would
be made by Sponsor in the form of a loan to the Company, and any such loans will be non-interest bearing and payable by the Company upon
the Closing in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus.


 




    	 



    	 



    

 


		2.	Section
                                            5.17(a) of the Merger Agreement is hereby replaced in its entirety by the following:



 


Post-Closing
Board of Directors and Executive Officers.


 


(a) The
Parties shall take all necessary action, including causing the directors of the Purchaser to resign, so that effective as of the Closing,
the Purchaser’s board of directors (the “Post-Closing Purchaser Board”) will consist of eleven (11) individuals.
Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing Purchaser Board
(i) the two (2) persons that are designated by the Purchaser prior to the Closing (the “Purchaser Directors”);
(ii) the eight (8) persons that are designated by the Company prior to the Closing (the “Company Directors”), at least four
(4) of whom shall be required to qualify as an independent director under Nasdaq rules; and (iii) the one (1) person that is mutually
designated by the Purchaser and the Company, whom shall be required to qualify as an independent director under Nasdaq rules. The Post-Closing
Purchaser Board directors shall be classified, with respect to the term for which they severally hold office, into three classes. The
initial Class I Directors shall serve for a term expiring at the first annual meeting of stockholders to be held following the Closing;
the initial Class II Directors shall serve for a term expiring at the second annual meeting of stockholders following the Closing; and
the initial Class III Directors shall serve for a term expiring at the third annual meeting of stockholders to be held following the
Closing. At each succeeding annual meeting of stockholders, beginning with the first annual meeting of stockholders following the Closing,
Directors elected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. Four (4) of the Company Directors shall be Class I, two (2) of the Company Directors
shall be Class II and two (2) of the Company Directors shall be Class III. One (1) of the Purchaser Directors shall be Class II and one
(1) of the Purchaser Directors shall be Class III. The mutually designated Director shall be Class II. The board of directors of the
Surviving Corporation immediately after the Closing shall be the same as the Post-Closing Purchaser Board. At or prior to the Closing,
the Purchaser will provide each Purchaser Director with a customary director indemnification agreement, in form and substance reasonably
acceptable to such Purchaser Director.


 


		3.	Except
                                            as explicitly modified hereby, all other terms and provisions of the Merger Agreement shall
                                            remain in effect.



 


		4.	This
                                            Agreement incorporates herein, and shall be deemed to have the same force and effect as if
                                            set forth in full herein, all governing law and dispute resolution terms and provisions,
                                            including but not limited to Section 9.4, Section 9.5, and Section 9.6, of the Merger Agreement.



 


		5.	This
                                            Agreement may be executed and delivered (including by facsimile or other electronic transmission)
                                            in one or more counterparts, and by the different Parties in separate counterparts, each
                                            of which when executed shall be deemed to be an original but all of which taken together
                                            shall constitute one and the same agreement.



 


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IN
WITNESS WHEREOF, the undersigned have executed this Amendment to Agreement and Plan of Merger to be signed and delivered as of the date
first written above.


 


	 	The Purchaser:
	 	 	 
	 	AESTHER HEALTHCARE ACQUISITION CORP
	 	 	 
	 	By:	/s/ Suren Ajjarapu
	 	Name:	Suren
    Ajjarapu
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	The Purchaser Representative:
	 	 	 
	 	AESTHER HEALTHCARE SPONSOR, LLC, in the capacity as the Purchaser Representative hereunder 
	 	 
	 	By:
    	/s/
    Suren Ajjarapu
	 	Name:	Suren
    Ajjarapu
	 	Title:	Managing
    Member
	 	 	 
	 	Merger Sub:
	 	 	 
	 	AHAC MERGER SUB INC.
	 	 	 
	 	By:
    	/s/
    Suren Ajjarapu
	 	Name:	Suren
    Ajjarapu
	 	Title:	Chief
    Executive Officer


 


	 	The Company:
	 	 	 
	 	OCEAN BIOMEDICAL, INC.
	 	 	 
	 	By:
    	/s/
    Chirinjeev Kathuria
	 	Name:	Dr.
    Chirinjeev Kathuria
	 	Title:
    	Executive
    Chairman


 


	 	The Seller Representative:
	 	 	 
	 	DR.
CHIRINJEEV KATHURIA, in the capacity as the Seller Representative hereunder



	 	 
	 	By:	/s/
    Chirinjeev Kathuria
	 	Name:	Dr.
    Chirinjeev Kathuria
	 	Title:
    	Seller
    Representative


 


[Signature Page to Amendment to Agreement and Plan of Merger]