AMENDMENT NO. 2
TO AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION
THIS AMENDMENT NO. 2 to Agreement and Plan of Merger and Reorganization
("Amendment") is made and entered into as of February 8, 1999, by and among
Megabios Corp., a Delaware corporation ("Megabios"), Montana Acquisition Sub,
Inc., a Delaware corporation ("Merger Sub"), and GeneMedicine, Inc., a Delaware
corporation ("GeneMedicine").
R E C I T A L S
WHEREAS, the parties hereto entered into that certain Agreement and Plan of
Merger, dated as of October 24, 1998 (the "Merger Agreement"), as amended on
November 24, 1998 (the "Prior Amendment"), pursuant to which Merger Sub will be
merged with and into GeneMedicine, with GeneMedicine surviving the Merger and
remaining as a wholly-owned subsidiary of Megabios (the "Merger"); and
WHEREAS, the parties hereto desire to amend the Merger Agreement to provide
that the Merger Agreement may be terminated prior to the Effective Time (as such
term is defined in the Merger Agreement), whether before or after approval of
the Merger by the stockholders of GeneMedicine, by either Megabios or
GeneMedicine if the Merger shall not have been consummated by March 31, 1999;
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 9.1(b) of the Merger Agreement is hereby amended in its
entirety to read as follows:
"(b) by either Parent or the Company if the Merger shall not have been
consummated by March 31, 1999 (unless the failure to consummate the Merger is
attributable to a failure on the part of the party seeking to terminate this
Agreement to perform any material obligation required to be performed by such
party at or prior to the Effective Time);"
2. All references in the Merger Agreement to the term "Agreement" shall be
deemed to refer to the Merger Agreement, as amended by the Prior
Amendment and this Amendment.
3. Except as specifically modified by this Amendment, the terms of the
Merger Agreement, as amended by the Prior Amendment, shall remain in
full force and effect.
4. This Amendment is made under, and shall be construed and enforced in
accordance with, the laws of the State of California applicable to
agreements made and to be performed solely therein, without giving
effect to principles of conflicts of law.
5. This Amendment may be executed in several counterparts, each of which
shall be deemed an original and all of which shall constitute one and
the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
the undersigned, thereunto duly authorized, as of the date first set forth
above.
MEGABIOS CORP.
By: /s/ Xxxxxxxx X. XxXxxx, III
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Printed Name: Xxxxxxxx X. XxXxxx, III
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Title: Chairman, President & CEO
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MONTANA ACQUISITION SUB, INC.
By: /s/ Xxxxxxxx X. XxXxxx, III
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Printed Name: Xxxxxxxx X. XxXxxx, III
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Title: Chairman, President & CEO
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GENEMEDICINE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President and Chief Financial Officer
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