AMENDMENT NO. 1 TO AMENDED AND
RESTATED AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF
MERGER, dated as of October 19, 1999 (this "Amendment"), by and between AVATEX
CORPORATION, a Delaware corporation ("Avatex"), and XETAVA CORPORATION, a
Delaware corporation ("Xetava").
W I T N E S E T H:
WHEREAS, Avatex and Xetava have entered into an Amended and
Restated Agreement and Plan of Merger, dated as of June 18, 1999 (the "Merger
Agreement"; capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Merger Agreement); and
WHEREAS, in accordance with Section 7.1 of the Merger
Agreement, Avatex and Xetava have agreed to amend the Merger Agreement as set
forth below.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Avatex and Xetava hereby agree as follows:
SECTION. 1. Amendment to the Merger Agreement. The Merger
Agreement is hereby amended as follows:
(a) Section 2.3(a) of the Merger Agreement is hereby amended
as follows:
(i) By deleting the word "Promptly" appearing as the
first word of the second sentence of such section and
substituting in place thereof the following phrase: "Except as
otherwise contemplated by Section 2.3(j) below with respect to
shares of Old Avatex Common Stock, promptly";
(ii) By deleting the word "No" appearing as the first
word of the fourth sentence of such section, and substituting
in place thereof the following phrase: "Subject to the
provisions of Section 2.3(j) below, no"; and
(iii) By deleting the phrase "Avatex Shares"
appearing immediately prior to the parenthetical "(in any such
case, a "Certificate")" in the fourth sentence of such
section, and substituting in place thereof the following
phrase: "shares of Convertible Preferred Stock or Series A
Preferred Stock".
(b) Section 2.3(b) of the Merger Agreement is hereby amended
by deleting the phrase "Avatex Shares" appearing in the second line of such
section and
substituting in place thereof the following phrase: "shares of Convertible
Preferred Stock or Series A Preferred Stock".
(c) Section 2.3 of the Merger Agreement is hereby amended by
adding the following to the end thereof:
"(j) Notwithstanding anything in this Agreement to the
contrary, as of the Effective Time, each stock certificate
theretofore representing issued and outstanding shares of Old
Avatex Common Stock (the "Existing Common Stock Certificates")
shall be deemed for all purposes to evidence ownership of, and
to represent, the same number of shares of New Avatex Common
Stock into which the shares of Old Avatex Common Stock
formerly evidenced by the Existing Common Stock Certificates
have been converted as provided in Section 2.1(a)(i) above.
The registered owner on the books and records of Avatex or its
transfer agent of any such Existing Common Stock Certificates
shall have and be entitled to exercise any and all voting and
other rights with respect to, and receive any and all
dividends and other distributing upon, the shares of New
Avatex Common Stock evidenced by any such Existing Common
Stock Certificates."
(d) Section 2.4 of the Merger Agreement is hereby amended by
adding the phrase "or Existing Common Stock Certificates" immediately following
the word "Certificates" appearing in the second sentence of such section.
(e) Section 7.6(b) of the Merger Agreement is hereby amended
by adding phrases "Existing Common Stock Certificates" and "2.3(j)" where they
would appear in such section in correct alphabetical order under the column
headings "Term" and "Section", respectively.
SECTION. 2. Effect on Merger Agreement. Except as specifically
provided herein, the Merger Agreement shall remain in full force and effect and
is hereby ratified and confirmed. On and after the date hereof, each reference
in the Merger Agreement to "this Agreement", "herein", "hereof" or words of like
import shall mean and be a reference to the Merger Agreement as amended hereby.
No reference to this Amendment need be made on any instrument, agreement,
certificate or document at any time referring to the Merger Agreement; it being
understood and agreed that a reference to the Merger Agreement in any of such
instruments, agreements, certificates or documents to be deemed to be a
reference to the Merger Agreement as amended hereby.
SECTION. 3. Execution in Counterparts. This Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
SECTION. 4. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Delaware (regardless
of the laws that might otherwise govern under applicable Delaware principles of
conflicts of
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law) as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies.
SECTION. 5. Headings. The section headings of this Amendment
are for reference purposes only and are to be given no effect in the
construction or interpretation of this Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Amendment as of the date and year first written above.
AVATEX CORPORATION
By: /s/ Abbey X. Xxxxxx
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Abbey X. Xxxxxx
Co-Chief Executive Officer
XETAVA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Co-Chief Executive Officer
