AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER, dated as of September 13, 2006 (the “Amendment
No. 1”), among Phase Forward
Incorporated, a Delaware corporation (“Phase Forward”), Lincoln
Technologies, Inc., a Massachusetts corporation and wholly owned subsidiary of
Phase Forward (“Lincoln”) and Lincoln SR, Inc. as the Securityholder
Representative (the “SR”).
is made to the Agreement and Plan of Merger dated as of August 16, 2005 among
Phase Forward, Abe Acquisition Corp., a
Massachusetts corporation and wholly owned subsidiary of Phase Forward, Lincoln
Technologies, Inc., a Massachusetts corporation and the SR (the “Agreement”);
to Section 15.7 of the Agreement, the Agreement may be amended by the parties
against which enforcement of such amendment is sought; and
Forward, Lincoln and the SR desire to amend the Agreement.
NOW, THEREFORE, in
consideration of the promises and the mutual agreements and covenants
hereinafter set forth, and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Definitions. Capitalized terms used in this Amendment No.
1 and not otherwise defined shall have the meanings ascribed to them in the
No. 1 of Section 4.8(a). Section
4.8(a) of the Agreement is hereby amended by deleting Section 4.8(a) in its
entirety and replacing it with the following:
part of the Merger Consideration issued by Phase Forward in the Merger, in
addition to the Base Consideration and in addition to the $2.0 million payment
made in May 2006 (the “2006 Payment”), Phase Forward shall make the
following payment(s) (collectively with the 2006 Payment, the “Earnout”)
to the Securityholder Representative for further distribution to the Lincoln
Securityholders in accordance with Sections 4.2 and 4.3:
fixed payment of $3.5 million due and payable on December 26, 2007 (the “2007
Additional Consideration. Notwithstanding any other provisions of the
Agreement, Lincoln and the SR acknowledge and agree that the 2007 Payment shall
be the only additional consideration payable to the Lincoln Securityholders
under the Agreement other than the release of the Escrow Amount in accordance
with the provisions of the Agreement.
of Agreement. This Amendment No. 1
shall be construed in connection with and as part of the Agreement, and except
as modified and expressly waived or amended hereby, all terms, conditions and
covenants contained in the Agreement are hereby ratified and shall remain in
to the Agreement. Any and all
notices, requests, certificates and other instruments executed and delivered
after the execution and delivery of this Amendment No. 1 may refer to the
Agreement without making specific reference to this Amendment No. 1, but
nevertheless, all such references shall include this Amendment No. 1 unless the
context otherwise requires.
6. Counterparts. This Amendment No. 1 may be executed in two
or more counterparts, all of which shall be considered one and the same
instrument and shall become effective when counterparts have been signed by
each party and delivered to the other parties hereto.
Signature. This Amendment No. 1 may
be executed by facsimile signature and a facsimile signature shall constitute
an original for all purposes.
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WITNESS WHEREOF, each
party hereto has caused this Amendment No. 1 to be executed as of the date
first written above.