Unassociated Document


    Exhibit
10.39

     

    FORM OF
AMENDMENT NO. 2 TO CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT
AND

    CONVERTIBLE
PROMISSORY NOTE

     

    This
Amendment No. 2 to Convertible Note and Warrant Purchase Agreement and
Convertible Promissory Note (this “Amendment”) is entered into effective as of
December [  
  ], 2008, by and
between AVAX Technologies, Inc., a Delaware corporation (the “Company”), and each of the purchasers (the
“Purchasers”) of the Company’s 6% Convertible
Notes Due December 31, 2008 (the “Notes”) issued pursuant to that certain
Convertible Note and Warrant Purchase Agreement, dated as of October 24, 2008,
by and between the Company and the Purchasers, as amended by that certain
Amendment to Convertible Note and Warrant Purchase Agreement, dated as of
October 24, 2008 (the “Purchase
Agreement”). Capitalized terms
used and not otherwise defined herein shall have the meanings ascribed to them
in the Purchase Agreement.

     

    WHEREAS,
the Purchase Agreement may be amended only by mutual written agreement of the
Company and the Purchasers holding a majority of the principal amount of Notes
issued under the Purchase Agreement and the Notes may be amended upon written
consent of the Company and the holder of each of the Notes;

     

    WHEREAS,
the Company and the Purchasers desire to amend the Purchase Agreement and the
Notes to extend the maturity date of the Notes to March 31, 2009.

     

    NOW,
THEREFORE, in consideration of the foregoing and the promises and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:

     

    
      
        	
              	
                1.

              	
                Amendment to Preamble of the Purchase
      Agreement. The preamble of the Purchase Agreement is hereby amended
      and restated in its entirety as
follows:

              


      

    

     

    AVAX
Technologies, Inc., a Delaware corporation (the “Company”), proposes, subject to
the terms and conditions contained herein, to sell to the Purchasers listed on
the signature pages hereto (individually, a “Purchaser” and collectively the
“Purchasers”), up to $1,500,000 aggregate principal amount of the Company’s 6%
Convertible Notes Due March 31, 2009 (individually, a “Note” and collectively,
the “Notes”) and warrants to purchase up to 15,000,000 fully paid and
non-assessable shares of common stock, par value $.004 per share, of the Company
(the “Common Stock”) for $0.10 per share (individually a “Warrant” and
collectively, the “Warrants”) pursuant to this Convertible Note and Warrant
Purchase Agreement (the “Agreement”). The Notes will be convertible into shares
of Common Stock or other securities of the Company, as more fully described
therein.


     

    The sale
of the Notes and Warrants to the Purchasers will be made without registration of
the Notes or Warrants under the Securities Act of 1933, as amended (the
“Securities Act”) in reliance upon an exemption from the registration
requirements of the Securities Act.


     

    
      
        	
              	
                2.

              	
                Amendment to
      Preamble of the
      Convertible Promissory Note. The preamble of each of the Notes is
      hereby amended and restated in its entirety as
  follows:

              


      

    

     

    AVAX
TECHNOLOGIES, INC., a Delaware corporation (the “Company”), for value received,
promises to pay to [_________] or
registered assigns (the “Holder”), the principal sum of [______] Dollars $[____]
on March 31, 2009, and interest (computed on the basis of a 365-day year) from
the date hereof on the unpaid principal amount from time to time outstanding at
the rate of six percent (6%) per annum, due and payable in arrears on the
maturity date hereof, unless payment is required at an earlier date pursuant to
the terms hereof. This Note is one of a series of similar Notes issued by the
Company in the aggregate principal amount not to exceed
$1,500,000.


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
              	
                3.

              	
                Effect of
      Amendment. Except as expressly modified by this Amendment, the
      Purchase Agreement and the Convertible Promissory Notes shall remain
      unmodified and in full force and
effect.

              


      

    

     

    
      	
               
      

            	
              4.

            	
              Governing Law.
      This Amendment shall be construed and enforced in accordance with, and the
      rights of the parties shall be governed by, the laws of the State of
      Delaware, without giving effect to the principles of conflicts of law
      thereof.

            


    

     

    
      	
               
      

            	
              5.

            	
              Counterparts.
      This Amendment may be executed in any number of counterparts and
      signatures delivered by facsimile, each of which shall be deemed an
      original, but all of which together shall constitute one
      instrument.

            


    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    IN
WITNESS HEREOF, the parties hereto have executed this Amendment as of the date
first written above.

     

    COMPANY:

     

    AVAX
TECHNOLOGIES, INC.

    


    
      
        	
                By:

              	 
      	 
      
	Name:	
                 
      

              	 
      
	 
      	
                 
      

              	 
      


      

    

     

    PURCHASERS:

    
 

    
      
        	
                Firebird
      Global Master Fund, Ltd.

              
	 
      	 
      
	
                By:

              	
                    

              
	
                Name:

              	
                  

              
	 
      	 
      
	
                Rock
      Castle Ventures, L.P.

              
	 
      	 
      
	
                By:

              	
                   

              
	
                Name:

              	
                   

              
	 
      	 
      
	
                JFE
      Hottinger & Co.

              
	 
      	 
      
	
                By:

              	
                   

              
	
                Name:

              	
                   

              
	 
      	 
      
	
                Citibank

              
	 
      	 
      
	
                By:

              	
                   

              
	
                Name:

              	
                   

              
	 
      	 
      
	
                R
      & H Trust Co.

              
	 
      	 
      
	
                By:

              	
                   

              
	
                Name:

              	
                   

              


      

    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        
          
            
              	
                      Park
      Place Capital

                    
	 
      	 
      
	
                      By:

                    	
                         

                    
	
                      Name:

                    	
                         

                    
	 
      	 
      
	
                      Privatech
      Holding

                    
	 
      	 
      
	
                      By:

                    	
                         

                    
	
                      Name:

                    	
                         

                    
	 
      	 
      
	
                      R&H
      Trust

                    
	 
      	 
      
	
                      By:

                    	
                         

                    
	
                      Name:

                    	
                         

                    
	 
      	 
      
	
                         

                    
	
                      Yuichi
      Iwaki

                    
	 
      
	
                         

                    
	
                      Nicholas
      Oltamare Sudratasse

                    
	 
      
	
                         

                    
	
                      Francois
      R. Martelet

                    
	 
      
	
                         

                    
	
                      John
      K.A. Prendergast

                    
	 
      
	
                         

                    
	
                      Andrew
      W. Dahl

                    
	 
      
	
                         

                    
	
                      Carl
      Spana

                    
	 
      
	
                         

                    
	
                      Edson
      D. deCastro