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Exhibit 2.2
FUTURELINK CORP.
AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF
REORGANIZATION AND MERGER
This Amendment No. 1 (the "Amendment") to the Agreement and Plan of
Reorganization and Merger (the "Merger Agreement") is dated as of November 5,
1999 and entered into on the one side by FutureLink Corp., a Delaware
corporation, FutureLink Distribution Corp., a Colorado corporation ("Old
Parent") and FutureLink Pleasanton Acquisition Corp., a Delaware corporation
("Merger Sub"), and on the other side by CN Networks, Inc., a California
corporation ("Company"), the Xxxxxxx and Xxxxx Xxxxx Living Trust, dated March
26, 1998 ("Company Shareholder"), and Xxxxxxx X. Xxxxx ("Xxxxxxx Xxxxx") and
Xxxxx X. Xxxxx ("Xxxxx Xxxxx").
WHEREAS, Old Parent was merged into FutureLink California Acquisition
Corp., a Delaware corporation ("FutureLink California"), as surviving
corporation, on or about October 15, 1999; and
WHEREAS, FutureLink California has changed its name to "FutureLink
Corp.," a Delaware corporation (referred to herein as "New Parent"), on October
15, 1999.
NOW, THEREFORE, and in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and intending to
be legally bound hereby, the parties agree as follows:
I. Assignment of the Merger Agreement
A. The Company, the Company Shareholder, Xxxxxxx Xxxxx and Xxxxx Xxxxx
hereby acknowledge that by virtue of the merger between Old Parent and
FutureLink California, New Parent is the successor in interest to all the
rights, interests and obligations of the Old Parent under the Merger Agreement.
B. The parties hereto hereby agree that this Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
II. Amendment to the Merger Agreement
This Amendment amends the Merger Agreement between the Parties. The
Merger Agreement is hereby amended as follows:
A. The introduction to the Merger Agreement shall read as follows:
"THIS AGREEMENT AND PLAN OF REORGANIZATION AND MERGER (this
"Agreement"), is made and entered into as of September 7, 1999, by
and among FUTURELINK CORP., a Delaware corporation ("Parent"),
FUTURELINK
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PLEASANTON ACQUISITION CORP., a Delaware corporation ("Merger
Sub"), CN NETWORKS, INC., a California corporation (the "Company")
doing business as Computer Networks Inc., XXXXXXX AND XXXXX XXXXX
LIVING TRUST, dated March 26, 1998 (the "Company Shareholder"), and
XXXXXXX X. XXXXX ("Xxxx Xxxxx") and XXXXX X. XXXXX ("Xxxxx Xxxxx").
Merger Sub and the Company are sometimes collectively referred to
herein as the "Constituent Corporations."
B. The first sentence of Section 1.2 of the Merger Agreement, as
presently existing, is hereby deleted and the following substituted therefor:
"The closing of the transactions contemplated hereby (the
"Closing") shall take place as soon as practicable after a written
satisfaction or waiver of each of the conditions set forth in
Article VII hereof shall have been received by the Company or
Parent, as the case may be, which date shall not be later than
November 9, 1999 (the "Closing Date")."
C. The first sentence of Section 1.3 of the Merger Agreement, as
presently existing, is hereby deleted and the following substituted therefor:
"The Merger shall become effective upon the filling of a
Certificate of Merger with the Secretary of State of the State of
Delaware in such form as is required by, and executed in accordance
with the relevant provisions of, the DGCL on the Closing Date (the
"Certificate of Merger")."
D. All references to "Agreement of Merger," as presently existing in the
Merger Agreement, are hereby deleted and replaced by "Certificate of Merger."
E. After the third sentence in Section 3.3 of the Merger Agreement, as
presently existing, the following is added therefor:
"The Company, the Company Shareholder, Xxxx Xxxxx and Xxxxx Xxxxx
hereby represent that all the shareholders entitled to vote on the
Merger have unanimously voted in favor of the Merger."
F. The first sentence of Section 4.1 of the Merger Agreement, as
presently existing, is hereby deleted and the following substituted therefor:
"Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and Merger
Sub is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware."
G. The fist sentence of Section 4.3(a) of the Merger Agreement, as
presently existing, is hereby deleted and the following substituted therefor:
"As of the date of this Agreement, the authorized capital stock of
Parent consists solely of (i) 300,000,000 shares of Parent Stock
and 20,000,000 shares of preferred stock (none issued)."
H. Section 7.3(d) of the Merger Agreement, as presently existing, is
hereby deleted and the following substituted therefor:
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"Parent shall have reserved 500,000 shares of Parent Stock for Parent's
stock option plan, which will be issued to the Company Shareholder and
to the employees and independent contractors of Company who have
continued their employment or contract with Parent after the Closing
Date, to be distributed in a manner determined by the Compensation
Committee of the Board of Directors of Parent, the administrator of
Parent's stock option plan, based upon the recommendation and direction
of the Company Shareholder. Such options shall be exercisable at
$14.69 per share when issued, priced based on the average of the
closing bid and ask prices of Parent's common stock as of the close of
trading on October 29, 1999, the last trading day prior to October 31,
1999. This reservation of stock options gives effect to the agreement
among the parties that although the Closing Date has been extended to
November 5, 1999, the stock option shares will be priced as of the
originally contemplated Closing Date of on or before October 31, 1999.
Parent shall grant these stock options no later than 120 days from the
Closing Date of the Merger or 30 days after the necessary permit has
been issued by the California Department of Corporations, whichever is
later. Company Shareholder acknowledges that the right to grant such
options shall vest with Parent. The foregoing notwithstanding, the
Company Shareholder acknowledges that Parent will not grant any stock
options to any California resident until the Parent stock option plan
has been qualified by permit from the California Department of
Corporations, based on an application which Parent is obligated to file
as a result of its recent acquisition of Executive LAN Management,
Inc., d.b.a. Micro Visions."
I. In all other respects the Merger Agreement remains unchanged and in
full force and effect as of the date hereof.
III. The Company, the Company Shareholder, Xxxxxxx Xxxxx and Xxxxx Xxxxx
hereby agree that this Amendment does not violate any of the covenants,
representations and warranties contained in the Merger Agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereby on the date first written above.
FUTURELINK CORP.,
a Delaware corporation
By: [signed: K.B. Xxxxx]
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Name: Xxxx Xxxxx
Title: Secretary
FUTURELINK PLEASANTON
ACQUISITION CORP.,
a Delaware corporation
By: [signed: K.B. Xxxxx]
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Name: Xxxx Xxxxx
Title: Assistant Secretary
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CN NETWORKS, INC.,
a California corporation
By: [signed: Xxxxxxx X. Xxxxx]
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Name: Xxxxxxx Xxxxx
Title: President
XXXXXXX AND XXXXX XXXXX LIVING
TRUST dated March 26, 1998
By: [signed: Xxxxxxx X. Xxxxx]
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Name: Xxxxxxx Xxxxx
Title: Trustee
XXXXXXX X. XXXXX
[signed: Xxxxxxx X. Xxxxx]
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XXXXX X. XXXXX
[signed: Xxxxx X. Xxxxx]
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