EXHIBIT 2.2
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 ("Amendment No. 1") is entered into as of May 28, 1998
and amends that certain Agreement and Plan of Merger (the "Merger Agreement")
dated as of April 26, 1998 by and between ARIS Corporation, a Washington
corporation, and InTime Systems International, Inc., a Delaware corporation.
All capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Merger Agreement.
RECITAL
The Parties desire to amend the Merger Agreement to provide a different
Conversion Ratio formula, and to provide Buyer with an additional right to
terminate the Merger Agreement under the circumstances specified herein.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Section 1 of the Merger Agreement is amended as follows:
A. The definition of "Pre-Announcement Buyer Share Price" is deleted;
B. A new definition, "Buyer Closing Share Price" is added as follows:
"Buyer Closing Share Price" shall mean the average of the closing
prices for one Buyer Share as reported by the Nasdaq National
Market for the ten trading days immediately preceding the Closing
Date.
C. The definition of "Target Share Price" is deleted; and
D. A new definition, "Minimum Target Share Price" is added as
follows:
"Minimum Target Share Price" means $9.20 per Target Share.
2. Section 2(d)(v) of the Merger Agreement is hereby deleted in its
entirety and replaced with a new Section 2(d)(v) as follows:
"Conversion of Target Shares." At and as of the Effective Time:
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(A) each Target Share (other than any Dissenting Share or Buyer-owned
Share) shall be converted into the right to receive that number
of Buyer Shares equal to the Conversion Ratio (as defined below);
(B) each outstanding warrant to purchase a Target Share shall be
converted into the right to receive a warrant of like tenor and
quality to purchase that number of Buyer Shares equal to the
Conversion Ratio at a price equal to (1) the exercise price of
such outstanding warrant divided by the Minimum Target Share
Price (2) multiplied by the Buyer Closing Share Price;
(C) each outstanding option to purchase a Target Share shall be
converted into the right to receive an option of like tenor and
quality to purchase that number of Buyer Shares equal to the
Conversion Ratio at a price equal to (1) the exercise price of
such outstanding option divided by the Minimum Target Share Price
(2) multiplied by the Buyer Closing Share Price;
(D) Each Dissenting Share shall be converted into the right to
receive payment from the Surviving Corporation with respect
thereto in accordance with the provisions of the Delaware General
Corporation Law;
(E) Each Buyer-owned Share shall be cancelled; and
(F) Each Target Share held in Target's treasury shall be cancelled.
The ratio of Buyer Shares to one Target Share is referred to herein as the
"Conversion Ratio." The Conversion Ratio shall be determined by dividing (1)
Thirty-Three Million Dollars ($33,000,000) less the value of all Target Warrants
($5,367,375) and Target Options ($3,462,737) outstanding as of April 26, 1998,
the date the Merger Agreement was signed, by (2) the Buyer Closing Share Price,
which quotient shall be divided by the number of Target Shares outstanding as of
the Closing Date; provided, that in the event the Buyer Closing Share Price is
(i) less than $34.56, the Conversion Ratio shall be the Minimum Target Share
Price divided by the Buyer Closing Share Price; (ii) greater than or equal to
$34.56 but less than or equal to $35.00, the Conversion Ratio shall be
0.2662388;(iii) greater than $35.00, the Conversion Ratio shall be the (x)
Minimum Target Share Price divided by (y) the Buyer Closing Share Price minus
$0.44. No Target Share shall be deemed to be outstanding or to have any rights
other than those set forth above in this Section 2(d)(v) after the Effective
Time. Schedule 1 attached hereto sets forth examples of calculation of the
Conversion Ratio.
3. A new Section 7(a)(viii), is added, as follows:
"the Buyer may terminate this Agreement after the Target has obtained
the Requisite Target Stockholder Approval in the event the average of
the closing
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prices for one Buyer Share as reported by the Nasdaq National Market
for any ten consecutive trading day period (which period must end on a
day following the Special Target Meeting) is less than $25.00 by giving
written notice to Target prior to Closing."
4. The following sentence is added to the end of Section 7(b):
"Further, if Buyer terminates this Agreement in accordance with Section
7(a)(viii), the Buyer shall pay to the Target a termination fee in the
amount of Five Hundred Thousand Dollars ($500,000).
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 1 as of
the date first above written.
ARIS Corporation
By: /s/ Xxxx X. Song
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Xxxx X. Song, President
INTIME SYSTEMS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
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