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EXHIBIT 2.3
FUTURELINK CORP.
ASSIGNMENT AND AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION
AND MERGER
This Assignment and Amendment No. 1 ("Agreement") to the Agreement and
Plan of Reorganization and Merger ("Merger Agreement") is dated October 15,
1999 and is entered into on the one side by FutureLink California Acquisition
Corp., a Delaware corporation ("Old Merger Sub") and FutureLink Distribution
Corp., a Colorado corporation ("Old Parent"), FutureLink Corp., a Delaware
corporation ("New Parent"), and FutureLink Micro Visions Acquisition Corp., a
Delaware corporation, and on the other side by Executive Lan Management, Inc.,
a California corporation ("Company"), the Xxxxxx Trust dated July 22, 1997,
Xxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxx (collectively referred to as the
"Company Shareholder").
WHEREAS, Old Parent was merged into Old Merger Sub, as surviving
corporation, on or about October 15, 1999; and
WHEREAS, Old Merger Sub has changed its name to "FutureLink Corp.," a
Delaware corporation (referred to herein as "New Parent"), on October 15, 1999.
NOW, THEREFORE, 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 and the Company Shareholder hereby acknowledge that by
virtue of the merger between Old Parent and Old Merger Sub, New Parent is the
successor in interest to all the rights, interests and obligations of the Old
Parent and Old Merger Sub under the Merger Agreement.
B. New Parent hereby assigns all the rights, interests and obligations of
Old Merger Sub to the Merger Agreement to FutureLink Micro Visions Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of the New Parent
("New Merger Sub"), and New Merger Sub hereby accepts such assignment and
assumes such obligations.
C. The Company and the Company Shareholder hereby consent to such
assignment of all the rights, interests and obligations of Old Merger Sub to the
Merger Agreement to New Merger Sub.
D. The parties hereto hereby agree that this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
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II. Amendment to the Merger Agreement
This Agreement 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 June 2, 1999 and amended
as of October 15, 1999, by and among FUTURELINK CORP., a Delaware
corporation ("Parent"), FUTURELINK MICRO VISIONS ACQUISITION CORP., a
Delaware corporation and wholly-owned subsidiary of Parent ("Merger
Sub"), EXECUTIVE LAN MANAGEMENT, INC., a California corporation (the
"Company"), and the XXXXXX TRUST dated July 22, 1997, XXXX X. XXXXXX,
and XXXXXXXXX X. XXXXXX (together, the "Company Shareholder"). Merger
Sub and the Company are sometimes collectively referred to herein as
the "Constituent Corporations."
B. 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 filing of an Agreement 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 Delaware General Corporation Law on the Closing Date
(the "Agreement of Merger"). The term "Effective Time" shall be the
date and time of the filing of the Agreement of Merger with the
Secretary of State of the State of Delaware or such later time as is
specified in the Agreement of Merger."
C. All references to "California General Corporation Law" as presently
existing in the Merger Agreement are hereby deleted and replaced by "Delaware
General Corporation Law."
D. The first sentence of Section 2.2(a) of the Merger Agreement, as
presently existing, is hereby deleted and the following substituted therefor:
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"(a) each share of Company Stock outstanding immediately prior to the
Effective Time, shall automatically be converted into and become
a right to receive a pro rata portion of (i) a Promissory Note
(the "Note") issued by the Parent for the benefit of the Company
in the amount of $12,000,000.00 less the Deposit ("Note
Consideration") and less any retention bonuses paid by Parent to
key employee of the Company, pursuant to agreement between the
parties, (ii) 6,000,000 shares of Parent Stock ("Stock
Consideration"), (iii) the Additional Consideration as set forth
in Section 2.3, and (iv) the Contingent Payments as set forth in
Section 2.4 below (the Note Consideration, Stock Consideration,
Additional Consideration and Contingent Payments are collectively
referred to as the "Merger Consideration"). The Note, a copy of
which is attached hereto as Exhibit A, will be fully payable upon
the closing of the financing for the transactions contemplated
hereby on terms satisfactory to Parent and Company Shareholder.
This Note will be secured by the shares of Common Stock of Merger
Sub issued for the benefit of the Parent."
E. All references to "Cash Consideration" as presently existing in the
Merger Agreement are hereby deleted and replaced by "Note Consideration."
F. The first sentence of Section 3.2(a) of the Merger Agreement, as
presently existing, is hereby deleted and the following substituted therefor:
"The authorized capital stock of the Company consists of 1,000,000
shares of Common Stock, of which 200 are issued and outstanding as of
the date hereof."
G. 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 exiting and in good standing under
the laws of the State of Delaware."
H. The first 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 October 15, 1999, the authorized capital stock of
Parent consists solely of (i) 300,000,000 shares of Parent Stock, of
which (A) 10,244,343 shares are issued and outstanding, (B) no shares
are issued and held in treasury (which does not include the shares
reserved for issuance set forth in the clause (C) below) and no shares
are held by Subsidiaries of Parent, and (C) all convertible debt
shares, warrants, options and convertible equity shares are set out on
Schedule 4.21 of the Parent Disclosure Schedules and (ii) 20,000,000
shares of preferred stock, no par value per share, none of which are
issued and outstanding."
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I. Section 7.1(d) (Registration Rights Agreement) of the Merger
Agreement, as presently existing, is hereby deleted.
J. Section 7.1(e) (Financing) of the Merger Agreement, as presently
existing, is hereby deleted.
K. All reference to Exhibit C, as presently existing, is hereby deleted.
L. In all other respects the Agreement remains unchanged and in full force
and effect as of the date hereof.
III. The Company and the Company Shareholder hereby agree that this Agreement
does not violate any of the covenants, representations and warranties contained
in the Merger Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereby on the date first written above.
FUTURELINK CORP.,
a Delaware corporation
By: [signed: X. Xxxxxxx]
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Name: Xxxxxxxxx Xxxxxxx
Title: Chief Financial Officer
EXECUTIVE LAN MANAGEMENT, INC.,
a California corporation
By: [signed: Xxxx X. Xxxxxx]
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Name: Xxxx X. Xxxxxx
Title: President
XXXXXX TRUST, dated July 22, 1997
By: [signed: Xxxx X. Xxxxxx]
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Name: Xxxx X. Xxxxxx
Title: Trustee
XXXX X. XXXXXX
[signed: Xxxx X. Xxxxxx]
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XXXXXXXXX X. XXXXXX
[signed: Xxxxxxxxx X. Xxxxxx]
---------------------------------------------
FUTURELINK MICRO VISIONS ACQUISITION
CORP., a Delaware corporation
By: [signed: X. Xxxxxxx]
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Name: Xxxxxxxxx Xxxxxxx
Title: Chief Financial Officer
