SECOND AMENDMENT TO AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
This
Second
Amendment (the “ Second Amendment
”) hereby amends, effective as of this 30th day of
March 2009, that certain Agreement and Plan of Merger and
Reorganization, dated as of October 27, 2008, by and among
Clinical 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 ”),
and Avalon
Pharmaceuticals, Inc. , a Delaware corporation (the
“ Company ”), as amended by that certain
First Amendment to Agreement and Plan of Merger and Reorganization,
dated January 12, 2009 (as so amended, the “
Merger Agreement ”), as follows:
Whereas , the parties desire
to amend Section 5.15 of the Merger Agreement to reflect any
additional loans that may be made by Parent to the Company prior to
the Closing Date (as defined in the Merger Agreement);
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
April 30, 2009 (the “ Termination Date
”), subject to limited exceptions described therein;
and
Whereas , the parties desire
to amend Section 8.1(b) of the Merger Agreement to extend the
Termination Date from April 30, 2009 to May 31,
2009.
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:
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1.
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All
capitalized terms not otherwise defined herein shall have their
respective meanings as defined in the Merger Agreement.
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2.
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Section 5.15 of the Merger
Agreement is hereby deleted in its entirety and replaced with the
following:
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“ CVR Payments . If, at
any time following the date of this Agreement, but prior to the
C
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