FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 dated as of May 2, 1997, to Agreement and Plan of
Merger, dated as of April 9, 1996 (the "Merger Agreement"), by and among
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, as Holder
Representative, NYMA, Inc., and NYMA Acquisition, Inc.
WITNESSETH
WHEREAS, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, as
Holder Representative, NYMA, Inc. and NYMA Acquisition, Inc. have agreed the
Merger Agreement be amended as set forth below.
AGREEMENT
In consideration of the premises and of the mutual covenants of the
parties hereto, it is hereby agreed as follows:
Section 1. AMENDMENT AND RESTATEMENT OF SUBPARAGRAPH 2.2(a) OF THE MERGER
AGREEMENT. SUBPARAGRAPH 2.2(a) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
(a) The aggregate consideration for the Shares hereunder (the
"MERGER CONSIDERATION") shall, subject to adjustment as provided in
SECTIONS 2.5, 2.6, and 13.1 hereof, consist of (i) Twenty-Five Million
Dollars ($25,000,000) in cash (the "CASH CONSIDERATION"); (ii) promissory
notes of FDC in the aggregate principal amount of Six Million Dollars
($6,000,000) either: (A) in the form attached hereto as ANNEX B-1, or (B) if
such Holder elects in writing prior to the Effective Time of the Merger, in
the form attached hereto as ANNEX B-2 (collectively, with the Notes in the
form attached hereto as ANNEX B-1, the "NOTES"), (provided that, for the
purpose of calculating the $6,000,000 aggregate principal amount of the Notes
under this clause (ii), such aggregate principal amount shall equal the sum
of the principal amounts of the Notes issued pursuant to this SECTION 2.2,
plus the aggregate Additional Payment Amounts (as defined in the Notes issued
in the form Attached hereto as ANNEX B-2)), subject to the rights of set-off
as provided in Article XIII hereof, provided that, in the event no election
is received prior to the Effective Time of the Merger, such Holder shall be
deemed to have elected to receive Notes in the form attached hereto as ANNEX
B-1; and (iii) up to Six Million Dollars ($6,000,000) in Contingent Payments
(as defined below), subject to the rights of set-off as provided in ARTICLE
XIII hereof and subject to satisfaction of the terms and conditions set forth
below in SECTION 2.4.
Section 2. ADDITION OF SUBPARAGRAPH 2.5.2(e) OF THE MERGER AGREEMENT. The
Merger Agreement is hereby amended by adding a new SUBPARAGRAPH 2.5.2(e)
which shall read as follows:
2.5.2(e) The Final Net Assets shall be reduced dollar-for-dollar to
the extent of any payments made by the Surviving Corporation following the
Closing Date and not reflected on the Final Balance Sheet in settlement of the
audits or proceedings with respect to the Tax Returns disclosed on SCHEDULE 4.21
(the "PENDING AUDITS") in excess of $2,300,000.
Section 3. ADDITION OF SUBPARAGRAPH 2.5.2(f) OF THE MERGER AGREEMENT.
The Merger Agreement is hereby amended by adding a new SUBPARAGRAPH 2.5.2(f)
which shall read as follows:
2.5.2(f) Notwithstanding the foregoing, to the extent that the
Pending Audits have not been settled and fully reflected on the Final Balance
Sheet, or pursuant to SUBPARAGRAPH 2.5.2(e) of the Merger Agreement, as amended,
all proceeds of the Escrow Deposit that would otherwise be distributable to
Principal Holders pursuant to this SUBSECTION 2.5.2 shall continue to be held in
the Escrow Deposit until the earlier of (i) the settlement of the Pending Audits
and any payments by the Surviving Corporation in settlement of such audits have
been made or (ii) the first anniversary of the Closing Date, at which time the
remaining Escrow Deposit shall be released as otherwise required by SUBPARAGRAPH
2.5.2(c); provided that, an amount equal to the amount of any payments made by
the Surviving Corporation pursuant to this SUBPARAGRAPH 2.5.2(f) in excess of
$2,300,000 shall be paid to the Surviving Corporation out of the Escrow Deposit
to the extent funds are available in such escrow.
Section 4. AMENDMENT AND RESTATEMENT OF SUBPARAGRAPH 2.2(a) OF THE MERGER
AGREEMENT. SUBPARAGRAPH 2.2(a) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
(a) The aggregate consideration for the Shares hereunder (the
"MERGER CONSIDERATION") shall, subject to adjustment as provided in
SECTIONS 2.5, 2.6, and 13.1 hereof, consist of (i) Twenty-Five Million
Dollars ($25,000,000) in cash (the "CASH CONSIDERATION"); (ii) promissory
notes of FDC (A) in the form attached hereto as ANNEX B-1, or (B) if such
Holder elects in writing prior to the Effective Time of the Merger, Notes in
the form attached hereto as ANNEX B-2 (collectively, with the Notes in the
form attached hereto as ANNEX B-1, the "NOTES"), in the aggregate principal
amount of Six Million Dollars ($6,000,000), subject to the rights of set-off
as provided in Article XIII hereof, provided that, in the event no election
is received prior to the Effective Time of the Merger, such Holder shall be
deemed to have elected to receive Notes in the form attached hereto as
ANNEX B-1; and (iii) up to Six Million Dollars ($6,000,000) in Contingent
Payments (as defined below), subject to the rights of set-off as provided in
ARTICLE XIII hereof and subject to satisfaction of the terms and conditions
set forth below in SECTION 2.4.
Section 5. LIMITATION ON AMENDMENT. Except as expressly provided
herein, the Merger Agreement shall continue to be, and shall remain, in full
force and effect. Except as expressly provided herein, this First Amendment
shall not be deemed to be a waiver or, or consent to, or a modification or
amendment of, any other term or condition of the Agreement.
Section 6. SEVERABILITY. If any provision of this Amendment shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Amendment shall be affected and
shall remain in full force and effect.
Section 7. CAPTIONS; COUNTERPARTS. The captions in this Amendment are
for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Agreement. This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
Section 8. CONSTRUCTION. This Amendment shall be construed and enforced
in accordance with the laws of the State of Maryland.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
NYMA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇
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Chairman and CEO
HOLDER REPRESENTATIVE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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NYMA ACQUISITION, INC.
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Name:
Title:
