EXECUTION COPY
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger (this "AMENDMENT")
is made and entered into as of the 14th day of November, 2003, by and among
Change Technology Partners, Inc., a Delaware corporation ("CTP"), CTP/N Merger
Corp., a Delaware corporation and a wholly-owned subsidiary of CTP ("SUBCORP"),
and Neurologix, Inc., a Delaware corporation ("NEUROLOGIX").
PRELIMINARY STATEMENTS
A. Each of CTP, Subcorp and Neurologix is a party to an Agreement and
Plan of Merger, dated as of August 13, 2003 (the "MERGER AGREEMENT").
B. CTP, Subcorp and Neurologix wish to amend certain provisions of the
Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein but not otherwise
defined herein shall have the meanings given to them in the Merger Agreement, as
such meanings may have been amended by this Amendment.
2. AMENDMENT OF THE MERGER AGREEMENT. The Merger Agreement hereby is
amended as follows:
(a) All references throughout the Merger Agreement to the "Agreement"
shall refer to the Merger Agreement as amended by this Amendment.
(b) Preliminary Statement F hereby is amended and restated in its
entirety as follows:
"F. On August 13, 2003, CTP loaned to Neurologix the
principal amount of $750,000 secured by a first priority
perfected security interest in all of the assets of Neurologix
(the "ORIGINAL LOAN") in accordance with the then-existing
provisions of this Agreement and terms of the Senior Secured
Promissory Note, dated as of August 13, 2003, issued by
Neurologix (the "Note"), the Security Agreement, dated as of
August 13, 2003, between Neurologix and CTP (the "SECURITY
AGREEMENT"), and the Subordination and Intercreditor Agreement,
dated as of August 13, 2003, among Neurologix, CTP, Palisade
Private Partnership, L.P., Xx. Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx (together with the Note and the Security Agreement, the
"ORIGINAL LOAN DOCUMENTS")."
(c) Immediately after Preliminary Statement F the following new
Preliminary Statement G shall be added:
"G. CTP and Neurologix desire to amend the terms of
the Original Loan such that, upon the request of Neurologix at
anytime after December 1, 2003, CTP shall loan to Neurologix an
additional principal amount of $350,000 secured by a first
priority perfected security interest in all of the assets of
Neurologix (as the Original Loan is so amended, the "LOAN"). All
references throughout this Agreement to the "Loan" shall refer to
the Loan as so amended.
(d) The definition of "CTP's Net Cash Assets" in Section 1.1 hereby
is amended by replacing the reference therein to "$500,000" with "$600,000."
(e) To the extent that the consent of any of the parties to the
Merger Agreement is necessary to prevent either Neurologix's or CTP's execution
of, or consummation of the transactions contemplated by, this Amendment from
constituting a breach of Section 5.3 of the Merger Agreement, this Amendment
shall be deemed to constitute such consent.
(f) Section 5.16 hereby is amended and restated to read in its
entirety as follows:
"Upon the request of Neurologix at anytime after December 1,
2003, CTP shall loan to Neurologix, within two business days
after it receives such request, the principal amount of $350,000
secured by all of the assets of Neurologix, which principal
amount is in addition to the $750,000 that CTP loaned to
Neurologix on August 13, 2003, pursuant to the then existing
provisions of this Agreement and the terms of the Original Loan
Documents. Interest on the outstanding unpaid principal amount of
the Loan shall accrue at the rate of 4% per year. The outstanding
unpaid principal amount of the Loan and the accrued and unpaid
interest thereon shall be due and payable on demand at any time
after June 30, 2004. In the event that the Merger is consummated
pursuant to this Agreement, the outstanding unpaid principal
amount and accrued and unpaid interest on such Loan shall be
included in the calculation of CTP's Net Cash Assets."
(g) Section 6.3.7 hereby is amended to add the following immediately
before the end thereof:
", other than its 2000 Stock Option Plan"
(h) Section 7.1.3 hereby is amended by replacing the reference
therein to "December 19, 2003" with "February 15, 2004."
(i) Section 7.2.2.2 hereby is amended by replacing the reference
therein to "$750,000" with "$1,100,000."
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3. AUTHORITY OF NEUROLOGIX RELATIVE TO THIS AGREEMENT; CONSENTS.
Neurologix represents and warrants to CTP and Subcorp as follows:
(a) The execution, delivery and performance of the Merger Agreement
and this Amendment are within the corporate power and authority of Neurologix
and have been duly authorized by all corporate action on the part of Neurologix.
In addition, neither the execution and delivery of this Amendment by Neurologix
nor Neurologix's consummation of the transactions contemplated hereby will (i)
require any consent or approval which has not already been obtained, and (ii)
conflict with, or result in a breach of any provision of Neurologix's
certificate of incorporation, bylaws or other organizational documents.
4. AUTHORITY OF CTP AND SUBCORP RELATIVE TO THIS AGREEMENT;
CONSENTS. CTP and Subcorp represent and warrant to Neurologix as follows:
(a) The execution, delivery and performance of the Merger Agreement
and this Amendment are within the corporate power and authority of CTP and
Subcorp and have been duly authorized by all corporate action on the part of CTP
and Subcorp. In addition, neither the execution and delivery of this Amendment
by CTP and Subcorp nor their consummation of the transactions contemplated
hereby will (i) require any consent or approval which has not already been
obtained (other than the approval of the stockholders of CTP), and (ii) conflict
with, or result in a breach of any provision of CTP or Subcorp's certificate of
incorporation, bylaws or other organizational documents.
5. EFFECT OF AMENDMENT. This Amendment shall not constitute a
waiver, amendment or modification of any other provision of the Merger Agreement
not expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the parties hereto.
Except as amended or modified hereby, the Merger Agreement shall remain in full
force and effect in accordance with its original terms.
6. GOVERNING LAW. Except to the extent that the laws of the
jurisdiction of organization of any party hereto, or any other jurisdiction, are
mandatorily applicable to the Merger or to matters arising under or in
connection with the Merger Agreement, this Amendment shall be governed by the
laws of the State of Delaware without regard to conflicts of laws principles.
All actions and proceedings arising out of or relating to this Amendment shall
be heard and determined in any state or federal court sitting in the State of
Delaware.
7. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in counterparts, which together shall constitute one and the same
agreement. The parties hereto may execute more than one copy of this Amendment,
each of which shall constitute an original. A signed signature page telecopied
by one party to another party shall be deemed to constitute an original.
(Signature Page Follows)
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IN WITNESS WHEREOF, CTP, Subcorp and Neurologix have signed this
Amendment No. 1 to Agreement and Plan of Merger as of the date first written
above.
CHANGE TECHNOLOGY PARTNERS, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
CTP/N MERGER CORP.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
NEUROLOGIX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
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