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EXHIBIT 2.2
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 September 1, 1999, by and between Melita
International Corporation, a Georgia corporation ("Melita"), MICA Corporation I,
a Delaware corporation and wholly-owned subsidiary of Melita ("MICA"), and
eShare Technologies, Inc., a Delaware corporation ("eShare).
W I T N E S S E T H:
WHEREAS, Melita, MICA and eShare have entered into that certain
Agreement and Plan of Merger dated as of June 14, 1999 (the "Merger Agreement")
providing for the merger of MICA with and into eShare (the "Merger") upon the
terms and subject to the conditions set forth therein; and
WHEREAS, Melita, MICA and eShare have reinstated and reaffirmed that
the Merger Agreement is in full force and effect;
WHEREAS, Melita, MICA and eShare desire to adjust certain of the terms
of the Merger Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to, and on the terms and conditions
herein set forth, the parties hereto agree as follows:
1. Conversion Ratio. Section 3.1(a) of the Merger Agreement is
amended by deleting it in its entirety and substituting therefor the following:
"(a) eShare Common Stock. Each Share other than shares of
eShare Common Stock held in treasury or by Melita, MICA or any other
Subsidiary of Melita other than in a fiduciary capacity shall be
converted into a right to receive 0.461654905 shares of Melita Common
Stock."
2. Treatment of Shares Underlying Forfeited Options. Section 3.4
of the Merger Agreement is amended by adding the following sentence at the end
thereof:
"Should the holders of unvested options terminate their employment for
any reason and thereby forfeit such options, the shares of Melita
Common Stock which would have been purchasable upon the exercise of
such options shall be allocated to the former stockholders of eShare
pro rata and issued to them."
3. Registration Rights Agreement. Exhibit C to the Merger
Agreement is amended by deleting it in its entirety and substituting therefor
the document attached hereto as Attachment 1.
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4. Waiver. eShare hereby waives, effective as of the Closing, the
right to assert any claim for breach of the terms of the Merger Agreement based
upon any purported Melita Material Adverse Effect related to Melita's condition
(financial or otherwise), assets, liabilities, working capital, reserves,
earnings, business or prospects as a result of Melita's failure to meet analysts
expectations with respect to its financial performance during the quarter ended
June 30, 1999.
5. Fairness Opinion. This Amendment shall be conditioned upon the
receipt by Melita of a written opinion of Broadview International LLC, or
another investment banking firm, dated as of the date hereof, to the effect that
the financial terms of the Merger, as amended hereby, are fair from a financial
point of view to Melita and its shareholders.
6. Closing. The parties will make every effort to close the
Merger as soon as is practicable following execution of this Amendment and in
any event by September 10, 1999.
7. Indemnification. Subject to the terms and conditions of the
Merger Agreement, each of the directors and shareholders of eShare shall be
deemed to be an eShare Indemnified Party for purposes of Article 9 of the Merger
Agreement with respect to any claim relating to the subject matter of Chancery
No. 161645, Circuit Court of Fairfax County, Virginia brought by the Complainant
therein against such person.
8. Miscellaneous. Capitalized terms not defined herein shall have
the meanings given to such terms in the Merger Agreement. Except as expressly
modified hereby, the Merger Agreement and the other agreements entered into
thereunder or contemplated thereby shall continue in full force and effect. This
Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the laws of the
State of Georgia (without regard to principles of conflicts of law) applicable
to agreements made and to be entirely performed within such state.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
MELITA INTERNATIONAL CORPORATION
Attest:
By: /s/ Anna M. Phillips By: /s/ Aleksander Szlam
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Anna M. Phillips Aleksander Szlam
Chairman of the Board and
Chief Executive Officer
MICA CORPORATION I
Attest:
By: /s/ Anna M. Phillips By: /s/ Aleksander Szlam
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Anna M. Phillips Aleksander Szlam
Chairman of the Board and
Chief Executive Officer
ESHARE TECHNOLOGIES, INC.
Attest:
By: /s/ Gregory Riedel By: /s/ James P. Tito
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Gregory Riedel James P. Tito
Chief Financial Officer Chairman of the Board and
Chief Executive Officer
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