AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT (this "Amendment") to the Agreement and Plan of
Merger, dated as of March 12, 2002 (the "Merger Agreement"), is made as of the
20th day of March, 2002, by and among Javelin Technologies, Inc., a Delaware
corporation ("Javelin"), NYFIX, Inc., a New York corporation ("NYFIX"), and
NYOlympus, Inc., a Delaware corporation and wholly owned subsidiary of NYFIX
("Merger Sub"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Merger Agreement.
WHEREAS, it is intended that the Merger qualify as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code"); and
WHEREAS, the parties desire to amend the Merger Agreement to ensure
that the composition of the Escrowed Amount does not violate the Merger's
qualification as a reorganization under Section 368(a) of the Code;
NOW, THEREFORE, in consideration of the promises made herein, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be bound hereby, the parties hereby agree
as follows:
1. Section 1.03(c) of the Merger Agreement shall be amended by
replacing the number "$5,000,000" with "$4,000,000" and inserting
immediately thereafter "and a portion of the Cash Consideration
equal to $1,000,000".
2. Section 1.03(d) of the Merger Agreement shall be amended by
inserting at the end of the last sentence "such that the proportion
of Cash Consideration to Stock Consideration set aside pursuant to
Section 1.03(c) is maintained."
3. The Form of Escrow Agreement attached as Exhibit B to the Merger
Agreement is deleted and replaced in its entirety by the Form of
Escrow attached hereto as Exhibit A.
4. Except as otherwise provided herein, the Merger Agreement shall
remain in full force and effect.
5. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the
conflict of laws principles thereof.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will
constitute one and the same instrument. A facsimile, telecopy or
other reproduction of this Amendment may be executed by one or more
parties hereto, and an executed copy of this Amendment may be
delivered by one or more parties hereto by facsimile or similar
instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and
effective for all purposes as
of the date first written above. At the request of any party hereto,
all parties hereto agree to execute an original of this Amendment as
well as any facsimile, telecopy or other reproduction hereof.
[Signature Pages to Follow]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
JAVELIN TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer & Chairman
NYFIX, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President & Chief Executive Officer
NYOLYMPUS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
