FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment dated as of August 1, 2002 (this "AMENDMENT") to the
Agreement and Plan of Merger dated December 19, 2001 (the "MERGER AGREEMENT"),
is entered into by and among Xxxxxxx Communications Corporation, an Iowa
corporation ("XXXXXXX"), MCC Merger Sub Corporation, a Delaware corporation and
wholly-owned subsidiary of Xxxxxxx ("MERGER SUB"), and Polar Molecular
Corporation, a Delaware corporation ("POLAR" and sometimes the "SURVIVING
CORPORATION"). Capitalized terms used herein but otherwise not defined shall
have the meanings set forth in the Merger Agreement.
INTRODUCTORY STATEMENTS
1. The parties have entered into the Merger Agreement.
2. The parties find it desirable to amend the Merger Agreement in the
manner specified in this Amendment to allow for the extension of certain
timelines and provide for revised obligations of the parties.
3. The provisions of this Amendment in no way diminish the right and
obligations of any party under the provisions of the Merger Agreement that are
not otherwise amended by this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Amendment, the parties hereto, intending to be legally bound, agree as follows:
AMENDMENTS
1.1 Section 2.01 of the Merger Agreement is hereby amended in its
entirety to read as follows:
"SECTION 2.01 The Merger. The Closing of the transactions contemplated
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hereby (the "CLOSING") shall, subject to the provisions of Article VI hereof,
take place at the offices of Holme Xxxxxxx & Xxxx LLP in Denver Colorado, on the
later to occur of November 15, 2002 and the date that is two business days after
each of the conditions set forth in Article VI has been met or waived in
writing, or at such other date, time and place as Polar and Xxxxxxx mutually
agree. The date on which the Closing actually occurs is referred to herein as
the "CLOSING DATE"."
1.2 Article V of the Merger Agreement is hereby amended by adding the
following provisions to the end thereof as a new Section 5.16:
"SECTION 5.16. Conversion of Loans from Polar. Immediately prior to the
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Effective Time, the aggregate sum of all loans from Polar to Xxxxxxx outstanding
as of such time, shall be converted into the number of shares of Xxxxxxx Common
Stock obtained by dividing the outstanding loan balance as of the Effective Time
by $3.03. Stock certificates representing the resulting number of shares of
Xxxxxxx Common Stock shall be issued in favor of Polar and delivered at the
Closing in accordance with the provisions of Section 2.03 hereof. The shares of
Xxxxxxx Common Stock issued pursuant to this Section 5.16 will be held by Polar
for future distribution as incentives for employees, consultants and directors
of Polar, as determined from time to time in the discretion of the Board of
Directors of Polar."
1.3 Subsection (b) of Section 7.02 of the Merger Agreement is hereby
amended in its entirety to read as follows:
"(b) the Merger shall not have been consummated on or before November
30, 2002 (the "EXPIRATION DATE") (provided, that the Expiration Date may be
extended by mutual agreement of Polar and Xxxxxxx to December 31, 2002 if the
Merger shall not have been consummated on or prior to November 30, 2002 due
solely to the failure of the SEC to clear and declare effective the Filing for
mailing to Xxxxxxx'x stockholders on or prior to October 31, 2002) or if events
have occurred which have made it impossible to satisfy on or before the
Expiration Date a condition precedent to the terminating party's obligations to
consummate the Transactions; provided that the right to terminate this Agreement
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under this Section 7.02(b) shall not be available to any party whose failure to
perform any covenant or obligation under this Agreement has been the cause of or
resulted in the failure of the Merger to occur on or before the Expiration
Date."
MISCELLANEOUS
2.1 The parties hereto hereby agree that this Amendment amends the Merger
Agreement in accordance and in compliance with the terms of Section 8.08 of the
Merger Agreement, and each party hereto hereby represents and warrants that it
has taken, and covenants that it will undertake, any and all actions necessary
so that the amendments made by this Amendment are validly made in compliance
with Section 8.08 of the Merger Agreement.
2.2 Except as expressly set forth herein, this Amendment does not alter or
modify any right or obligation of any party under the Merger Agreement.
2.3 This Amendment may be executed in multiple counterparts, and by the
different parties hereto 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 amendment.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the
parties hereto on the date first above written.
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name:
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Title:
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XXXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Chief Executive Officer
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MCC MERGER SUB CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Chief Executive Officer
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