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EXHIBIT 2.4
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 26, 1999 and entered into on the one side by FutureLink Corp., a
Delaware corporation, FutureLink Distribution Corp., a Colorado corporation
("Old Parent") and FutureLink Michigan Acquisition Corp., a Delaware corporation
("Merger Sub"), and on the other side by ASYNC Technologies, Inc., a Michigan
corporation ("Company"), ASYNC Technical Institute, Inc., a Michigan
corporation, Xxxxxxx X. Xxxxxxxxxx ("Company Shareholder"), Xxxxxxx X.
Xxxxxxxxxx and Xxxx X. Xxxxxxxxxx (collectively, the "Non-Voting Shareholder").
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 and the Non-Voting
Shareholder 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:
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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 MICHIGAN ACQUISITION CORP., a Delaware
corporation ("Merger Sub"), ASYNC TECHNOLOGIES, INC., a
Michigan corporation (the "Company"), ASYNC TECHNICAL
INSTITUTE, INC., a Michigan corporation ("ATII"), XXXXXXX X.
XXXXXXXXXX (the "Company Shareholder"), XXXXXXX X. XXXXXXXXXX,
and XXXX X. XXXXXXXXXX (collectively, the "Non-Voting
Shareholder"). 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 26, 1999 (the "Closing Date")."
C. The list shown in Section 1.8(a) of the Merger Agreement,
as presently existing, is hereby deleted and the following substituted therefor:
Name Number of Shares
Xxxxxxx Xxxxxxxxxx 1,500
Xxxx Xxxxxx 100
Xxxxxx Xxxxxx 100
Xxxx Xxxxxxxx 100
Xxxx Xxxxxxxxx 100
D. The list shown in Section 1.8(a) of the Merger Agreement,
as presently existing, is hereby deleted and the following substituted therefor:
Name Number of Shares
Xxxxxxx Xxxxxxxxxx 13,500
Xxxx Xxxxxxxxx 600
Xxxxxxx Xxxxx 900
Xxxxxx Xxxx 75
Xxxxx Xxxxxxx 75
Xxxxxxx Xxxxxx 225
Xxxxx Xxxxxx 150
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R. Xxxxxxx Xxxxxx 150
Xxxxxxxx Xxxxxxx 75
Xxxx Xxxxx 75
Xxxxx Xxxxxxxxx 75
Xxxxx Xxxxx 75
Xxxxxxxx Xxxxx 75
Xxxxx Xxxxxxx 150
E. After the third sentence in Section 3.3(a) of the
Merger Agreement, as presently existing, the following is added therefor:
"The Company and the Company Shareholder hereby represent that
none of the security holders entitled to vote on the approval
of this Agreement are entitled to dissenters' rights."
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(e) of the Merger Agreement, as presently
existing, is hereby deleted and the following substituted therefor:
"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 priced at
market value when issued. 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
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Shareholder acknowledges that Parent will not grant any stock
options to any Michigan resident until the Parent stock option
plan has been qualified by permit from the California
Department of Corporations."
I. In all other respects the Merger Agreement remains
unchanged and in full force and effect as of the date hereof.
III. The parties hereunder hereby agree that this Amendment 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 Amendment has been duly executed by
the parties hereby on the date first written above.
FUTURELINK CORP.,
a Delaware corporation
By: [signed: Xxxx Xxxxx]
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Name: Xxxx
Xxxxx Title: Secretary
FUTURELINK MICHIGAN
ACQUISITION CORP.,
a Delaware corporation
By: [signed: Xxxx Xxxxx]
------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Secretary
ASYNC TECHNOLOGIES, INC.,
a Michigan corporation
By: [signed: Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
XXXXXXX X. XXXXXXXXXX
[signed: Xxxxxxx X. Xxxxxxxxxx]
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XXXXXXX X. XXXXXXXXXX
[signed: Xxxxxxx X. Xxxxxxxxxx]
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XXXX X. XXXXXXXXXX
[signed: Xxxx X. Xxxxxxxxxx]
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