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
dated as of May 9, 2000 by and among ALLSCRIPTS, INC., a Delaware corporation,
MC ACQUISITION CORP., an Illinois corporation and a wholly owned subsidiary of
Parent, MASTERCHART, INC., an Illinois corporation and the shareholders of the
Company who are signatories to this Amendment. Capitalized terms used herein
but not defined herein shall have the respective meanings set forth in the
Existing Agreement (as defined below).
W I T N E S S E T H
WHEREAS, Parent, Merger Sub, the Company and Shareholders are parties to
that certain Agreement and Plan of Merger dated as of March 13, 2000 (the
"EXISTING AGREEMENT"), providing, among other things, for the merger of Merger
Sub within and into the Company; and
WHEREAS, the parties hereto desire to amend certain terms of the Existing
Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto agree as follows:
A G R E E M E N T
1. AMENDMENT TO SECTION 2(F)(II) OF THE EXISTING AGREEMENT.
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Section 2(f)(ii) of the Existing Agreement is hereby amended and restated
in its entirety as follows:
With respect to those participants in the Company's Amended and
Restated Performance Share Plan Effective January 1, 1997, the Company's
1999 Incentive Performance Share Plan (No. 1) Effective January 1, 1999 or
the Company's 1999 Incentive Performance Share Plan (No. 2) Effective
January 1, 1999, in each case as amended and in effect prior to the
Effective Time (collectively, the "PERFORMANCE PLANS") whose rights in
respect to such Performance Plans correspond to one or more whole shares of
Common Stock in the Company (a "COMMON SHARE EQUIVALENT"), each such
participant shall have the right to receive such consideration in respect
of each Common Share Equivalent in accordance with the terms of, and at the
times provided in, the Performance Plans. Such consideration (which shall
be delivered at the times and in the manner provided in the Performance
Plans) shall consist of (A) 187.25569 shares of Parent Common Stock in
respect of each Common Share Equivalent; provided, that if as a result of
the issuance of Parent Common Stock in satisfaction of the rights under the
Performance Plans, a fractional interest in a share of Parent Common Stock
would be
deliverable under this Section 2(f)(ii)(A), in lieu of such fractional
share being delivered therefor, such fractional interest shall
automatically be converted into the right to receive an amount of cash
(without interest) equal to the Average Share Price multiplied by the
amount of such fractional interest plus (B) $700.28 in cash without
interest (such amount of cash to be reduced to $578.70 in the event Xxxxxx
Warrant is exercised in full, with a proportionate adjustment in the event
of a partial exercise of the Xxxxxx Warrant). The number of Common Share
Equivalents for each participant in the Performance Plans are set forth in
the "PP", "IP1" and "IP2" columns on Section 5(g) of the Disclosure
Schedule. On July 28, 2000, Parent shall file a registration statement with
respect to 25% of the shares of Parent Common Stock held by each
participant pursuant to the Performance Plans (unless the Performance Plans
provide for registration of all shares of Parent Common Stock, in which
case no further registration rights shall be required of Parent with
respect to Parent Common Stock to be delivered pursuant to the Performance
Plans). The (i) issuance of shares of Parent Common Stock set forth in
Section 2(f)(ii)(A) together with (ii) the payment of cash pursuant to
Section 2(f)(ii)(B) shall be in full and complete satisfaction of all
rights of all participants under the Performance Plans, and the Company and
the Shareholders represent and warrant that neither the Company, Merger Sub
nor Parent shall have any other liability under the Performance Plans.
2. MATTERS RELATING TO DOCPLANET LITIGATION.
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Since the date of the Existing Agreement, DocPlanet, Inc. ("DOCPLANET")
filed an action against the Company (XxxXxxxxx.xxx, Inc. v. MasterChart, Inc.,
U.S. District Court for the Central District of California, Case No. SACV 00-
303GLT (EEx)) and the Company filed an action against DocPlanet (MasterChart,
Inc. v. xxxxxxxx.xxx. Inc., in the Circuit Court of the Nineteenth Judicial
Circuit, Lake County, Illinois, Case No. 00 L274) (collectively with any other
actions involving DocPlanet and Parent or the Company to the extent the actions
are based upon substantially the same facts alleged in the two pending lawsuits,
the "DOCPLANET ACTIONS"). The parties have agreed to share the costs and
expenses associated with the DocPlanet Actions as follows:
A. The first $300,000 of costs and expenses relating to the litigation of
the DocPlanet Actions shall be shared by the parties, with the Company
responsible for 75% of the costs and expenses, and the Shareholders responsible
for 25% of the costs and expenses. The Company shall be responsible for all
costs incurred in excess of $300,000. The Shareholders shall pay such expenses
upon the earlier of (i) the settlement or other termination or resolution of the
DocPlanet Actions, or (ii) upon the incurrence of costs and expenses of $300,000
in aggregate.
B. In the event that the terms of any settlement or judgment entered in
connection with the DocPlanet Actions is attributable to the Company's failure
to comply with the performance obligations under that certain agreement between
the Company and DocPlanet (f/k/a xxxxxxxx.xxx) dated June 1, 1999, the Company
shall be solely responsible for such settlement or judgment.
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C. In the event that a judgment is entered ordering (or a settlement
entered into requiring) payment or performance by the Parent or Company other
than under the circumstances described in Section 2B above, then the liability
for such judgment or settlement to the extent attributable to the Company for
any actions or inactions prior to the Effective Time or the conduct of the
litigation of the DocPlanet Actions shall be shared as follows:
(i) If the amount of liability is $500,000 or less, the Company shall be
responsible for the entire judgment;
(ii) If the amount of liability is greater than $500,000, then the
Company, on one hand, and the Shareholders, on the other hand, shall
each be responsible for 50% of such liability; or
(iii) If the amount of the liability is greater than $1,000,000, then the
Company shall pay $500,000 and the Shareholders shall pay all amounts
in excess of $500,000.
Amounts required to be paid pursuant to any judgment or settlement
attributable to actions or inactions of Parent or the Company with respect to
DocPlanet which occur after the Effective Time (other than the conduct of the
litigation of DocPlanet Actions), shall be the responsibility of the Company.
The parties agree that the Company shall control the prosecution and defense of
the DocPlanet Actions; provided, however, that the Company will not enter into
any settlement or consent to the entry of any judgment without the consent of a
majority of the Shareholders, which consent shall not be unreasonably withheld.
The Company shall provide the Shareholders periodic updates regarding the status
of the DocPlanet Actions and shall keep the Shareholders informed as to
significant developments with respect thereto. In the event a final judgment is
entered and the Company elects not to appeal such judgment, the Shareholders
shall have the right to appeal the judgment, at their sole cost and expense.
Any liability of Parent or the Company under subsections 2C(i), (ii) or
(iii) above shall be applied to the Minimum Loss under Section 10(c) of the
Existing Agreement. The Shareholders' obligations under this Section 2 may be
satisfied by tendering cash or shares of Parent Common Stock, valued at the
average closing price of Parent Common Stock for the ten day trading period
immediately preceding the date such shares are tendered as payment. The maximum
liability of the Shareholders under this Section 2 shall be limited to an amount
equal to the sum of (i) the cash consideration paid to the Shareholders at the
Effective Time, (ii) the value of the shares of Parent Common Stock issued to
the Shareholders at the Effective Time (less shares of Parent Common Stock sold
by the Shareholders subsequent to the Effective Time) valued at the average
closing price of Parent Common Stock for the ten day trading period immediately
preceding the date payment is tendered, and (iii) the proceeds received by the
Shareholders in respect of any shares of Parent Common Stock issued to the
Shareholders at the Effective time but subsequently sold.
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3. MISCELLANEOUS.
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A. Choice of Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Illinois, regardless of the laws
might otherwise govern applicable principals of conflicts of laws.
B. Counterparts. This Amendment may be executed in one or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
C. Headings. The headings of the Articles or Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Amendment.
D. No Waiver. Except as amended hereby, the Existing Agreement shall
remain in full force and effect. This Amendment shall not constitute a waiver
of any rights or remedies of any party thereto.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amendment on the date first above written.
[Signatures on Following Page]
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ALLSCRIPTS, INC.
By: /s/ Xxxx X. Xxxx
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Authorized Officer
MC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxx
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Authorized Officer
MASTERCHART, INC.
By: /s/ Xxxxxxx Xxxx Xxxxxx
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Authorized Officer
/s/ W. Xxxx Xxxxxx
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W. XXXX XXXXXX
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
/s/ Xxxxx Xxxx
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XXXXX XXXX