EXHIBIT 2.2
AMENDMENT NO. 4
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is dated as of March 14, 2002, among Mcglen Internet Group, Inc., a Delaware
corporation ("Parent"), Mcglen Acquisition Company, a California corporation and
wholly-owned subsidiary of Parent ("Acquisition Sub"), Lan Plus Corporation, a
California corporation (the "Company") and Xxxx Xxxx (the "Principal
Shareholder").
WHEREAS, the parties previously entered into that certain Agreement and
Plan of Merger, dated October 11, 1999 (the "Original Merger Agreement")
pursuant to which Acquisition Sub would merge into the Company and each issued
and outstanding share of capital stock of the Company would be converted into
shares of capital stock of Parent; and
WHEREAS, the parties previously entered into Amendment Xx. 0, Xxxxxxxxx
Xx. 0 and Amendment No. 3 to Agreement and Plan of Merger, which, among other
matters, extended the termination date of the Original Merger Agreement; and
WHEREAS, the parties have a disagreement regarding whether the
conditions to the closing of the merger as set forth in the Original Merger
Agreement, as previously amended (the "Merger Agreement") have been satisfied;
and
WHEREAS, the parties desire to further amend certain provisions of the
Merger Agreement, as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which the parties hereby acknowledge, the parties agree as follows:
1. Section 9.1(b) of the Merger Agreement is hereby amended to change
the date to "March 18, 2002."
2. Section 3.1(e) of the Merger Agreement is hereby amended to provide
that all loans and trade credit advanced by the Company to Parent (collectively,
the "Mcglen Payables") shall be converted into Parent Shares (the "Mcglen
Payables Shares") concurrently with the consummation of the merger and the
related ten-for-one reverse split of the outstanding Parent Shares at a
conversion price of $0.04 per share. The parties agree that the Mcglen Payables
Shares shall be deemed to be outstanding for purposes of calculating the
Exchange Ratio under Section 3.1(a) of the Merger Agreement. The parties agree
that the outstanding amount of the Mcglen Payables as of the date hereof is
$2,315,000.
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3. Section 3.1(d) of the Merger Agreement is hereby amended to add a
new clause (iv) at the end of the first sentence which shall read as follows:
"and (iv) 18,750,000 Parent Common Shares shall be included in calculating the
Exchange Ratio." In addition, Section 3.1(d)(ii) is hereby amended to delete the
reference to 500,000 Parent Shares and the Net Asset Adjustment shall be made
without regard to any limit on the number of Parent Shares that will be issued
thereunder, and the Net Asset Adjustment shall be made using a per Parent Share
price of $0.04 per share.
4. Lan Plus previously invested $500,000 to obtain Parent Shares
pursuant to Section 7 of the "Agreement in Principle re Business Combination of
Lan Plus Corporation and Mcglen Internet Group, Inc.," dated August 15, 2000. In
connection with that transaction, Mcglen issued shares of Common Stock to Lan
Plus, and Mcglen hereby agrees to issue to Lan Plus an additional 11,772,727
Parent Shares. The parties agree that the Parent Shares issued pursuant to this
paragraph shall be deemed to be outstanding for purposes of calculating the
Exchange Ratio under Section 3.1(a) of the Merger Agreement.
5. This Amendment is being executed immediately prior to the
consummation of the merger. The Merger Agreement is hereby further amended to
delete all references to conditions to the closing of the merger set forth in
the Merger Agreement, it being the agreement of the parties that all such
conditions to closing have been satisfied or waived concurrently with the
execution of this Amendment.
6. All terms used in this Amendment without definition shall have the
meanings given those terms in the Merger Agreement.
7. Except as expressly modified herein, the Merger Agreement shall
remain in full force and effect in accordance with its original terms.
8. 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.
9. This Amendment shall be governed by the laws of the State of
California.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed on the date first written above.
MCGLEN INTERNET GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
MCGLEN ACQUISITION COMPANY,
a California corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
LAN PLUS CORPORATION,
a California corporation
By. /s/ Xxxx Xxxx
-----------------------------------
Name: Xxxx Xxxx
Title: Chief Executive Officer
/s/ Xxxx Xxxx
-----------------------------------
Xxxx Xxxx
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