Exhibit 2.1
FIRST AMENDMENT TO AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
ThisFirst Amendment (the “First Amendment”) to that certain Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), dated as of October 27, 2008, by and amongClinical Data, Inc., a Delaware corporation (“Parent”),API Acquisition Sub II, LLC, a Delaware limited liability company and an indirect wholly-owned subsidiary of Parent (“Merger Sub”); andAvalon Pharmaceuticals, Inc., a Delaware corporation (the “Company”), hereby amends the Merger Agreement effective as of this 12th day of January, 2009, as follows:
Whereas, pursuant to Section 5.4 of the Merger Agreement, the parties agreed that at the Effective Time each unexpired Company Warrant which is outstanding and unexercised immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall automatically and without any action on the part of the holder thereof be converted into a warrant to purchase a number of shares of Parent Common Stock and Contingent Value Rights upon exercise of such Company Warrant;
Whereas, the parties desire to clarify Section 5.4(c) of the Merger Agreement with respect to the issuance of Contingent Value Rights upon the exercise of any such Company Warrant;
Whereas, pursuant to Section 8.1(b) of the Merger Agreement, the Merger Agreement may be terminated prior to the Effective Time by either Parent or the Company if the Merger shall not have been consummated by March 31, 2009 (the “Termination Date”), subject to limited exceptions described therein;
Whereas, the parties desire to amend Section 8.1(b) of the Merger Agreement to extend the Termination Date by thirty (30) days from March 31, 2009 to April 30, 2009;
Whereas, in the introductory paragraph to the form of CVR Agreement attached asExhibit Dto the Merger Agreement, the parties incorrectly stated the maximum amount of Parent Common Stock potentially payable upon receipt of each CVR; and
Whereas, the parties desire to amendExhibit Dto the Merger Agreement to correct the introductory paragraph to the form of the CVR Agreement.
Now, Therefore, in consideration of the covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto covenant and agree as follows:
| | 1. | | All capitalized terms not otherwise defined herein shall have their respective meanings as defined in the Merger Agreement. |
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| | 2. | | Section 5.4(c) of the Merger Agreement is hereby deleted in its entirety and is replaced by the following: |
