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EXHIBIT 2.1
FUTURELINK CORP.
AGREEMENT AND PLAN OF MERGER
OF
FUTURELINK CALIFORNIA ACQUISITION CORP.
(A DELAWARE CORPORATION)
AND
FUTURELINK DISTRIBUTION CORP.
(A COLORADO CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of August 1, 1999 (the "Agreement")
is between FutureLink California Acquisition Corp., a Delaware corporation
("FutureLink Delaware") and FutureLink Distribution Corp., a Colorado
corporation ("FutureLink Colorado"). FutureLink Delaware and FutureLink Colorado
are sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. FutureLink Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 1,500 shares, all
of which are designated "common stock," no par value. As of the date hereof, 500
shares of common stock and no shares of preferred stock are issued and
outstanding.
B. FutureLink Colorado is a corporation duly organized and existing under the
laws of the State of Colorado and has an authorized capital of 105,000,000
shares, 100,000,000 of which are designated "common stock," par value $0.0001
per share, and 5,000,000 of which are designated "Preferred Stock," no par
value, undesignated as to series, rights, preferences, privileges or
restrictions. As of August 1, 1999, 6,441,913 shares of common stock and no
shares of preferred stock were issued and outstanding.
C. The Board of Directors of FutureLink Colorado has determined that, for the
purpose of effecting the reincorporation of FutureLink Colorado in the State of
Delaware, it is advisable and in the best interests of FutureLink Colorado and
its shareholders that FutureLink Colorado merge with and into FutureLink
Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of FutureLink Delaware and FutureLink
Colorado have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective sole stockholder and shareholders and
executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, FutureLink Delaware and FutureLink Colorado hereby agree, subject
to the terms and conditions hereinafter set forth, as follows:
I. MERGER
I.1 MERGER. In accordance with the provisions of this Agreement, the Delaware
General Corporation Law and the Colorado Business Corporation Act, FutureLink
Colorado shall be merged with and into FutureLink Delaware in a transaction
qualifying as a reorganization within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code (the "Merger"), the separate existence of FutureLink
Colorado shall cease and FutureLink Delaware shall survive the Merger and shall
continue to be governed by the laws of the State of Delaware. FutureLink
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation." The name of the Surviving Corporation shall be FutureLink Corp. or
some other such name as the Board of Directors of the Surviving Corporation
shall choose.
I.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions have been completed:
(a) This Agreement and Merger have been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the Colorado
Business Corporation Act;
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(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed counterpart of this
Agreement meeting the requirements of the Delaware General Corporation
Law has been filed with the Secretary of State of the State of
Delaware; and
(d) Executed Articles of Merger or an executed counterpart of this
Agreement meeting the requirements of the Colorado Business
Corporation Act has been filed with the Secretary of State of the
State of Colorado.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
I.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the separate
existence of FutureLink Colorado shall cease and FutureLink Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
FutureLink Colorado's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of FutureLink
Colorado in the manner more fully set forth in Section 259 of the Delaware
General Corporation Law, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of FutureLink Delaware as constituted immediately
prior to the Effective Date of the Merger, and (v) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of FutureLink
Colorado in the same manner as if FutureLink Delaware had itself incurred them,
all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the Colorado Business Corporation Act.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
II.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation as set forth
in Exhibit "1" hereto shall, at the Effective Date of the Merger, become the
Certificate of Incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
II.2 BYLAWS. The Bylaws attached as Exhibit "2" hereto shall be the Bylaws of
the Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
II.3 DIRECTORS AND OFFICERS. The directors and officers of FutureLink Colorado
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, or the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
III.1 FUTURELINK COLORADO COMMON STOCK. Upon the Effective Date of the Merger,
each share of FutureLink Colorado common stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be converted into and exchanged for one (1) fully paid and non-assessable share
of common stock, par value $0.0001 per share, of the Surviving Corporation.
III.2 FUTURELINK COLORADO OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue the stock option plans and all other employee
benefit plans of FutureLink Colorado. Each outstanding and unexercised
option or other right to purchase or security convertible into
FutureLink Colorado common stock shall become an option or right to
purchase or a security convertible into the Surviving Corporation's
common stock on the basis of one share of the Surviving Corporation's
common stock for each share of FutureLink Colorado common stock
issuable pursuant to any such option, stock purchase right or
convertible security, on the same terms and conditions and at an
exercise price per share equal to the exercise price applicable to any
such FutureLink Colorado
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option, stock purchase right or convertible security at the Effective
Date of the Merger. There are no options, purchase rights for or
securities convertible into Preferred Stock of FutureLink Colorado.
(b) A number of shares of the Surviving Corporation's common stock shall
be reserved for issuance upon the exercise of options, stock purchase
rights and convertible securities equal to the number of shares of
FutureLink Colorado common stock so reserved immediately prior to the
Effective Date of the Merger.
III.3 FUTURELINK DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of common stock, no par value, of FutureLink Delaware issued and
outstanding immediately prior thereto, if any, shall by virtue of the Merger and
without any action by FutureLink Delaware, the holder of such shares or any
other person, be canceled and returned to the status of authorized but unissued
shares.
III.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of FutureLink Colorado
common stock may, at such stockholder's option, surrender the same for
cancellation to, as exchange agent (the "Exchange Agent"), and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's common stock
into which the surrendered shares were converted as herein provided. Unless and
until so surrendered, each outstanding certificate theretofore representing
shares of FutureLink Colorado common stock shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's common stock into
which such shares of FutureLink Colorado common stock were converted in the
Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of common stock of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each certificate representing common stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of FutureLink Colorado so
converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws, or other such additional legends as agreed upon by the holder and the
Surviving Corporation or required by applicable law.
If any certificate for shares of FutureLink Delaware stock is to be issued
in a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance thereof that the
certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
FutureLink Delaware or the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of FutureLink Delaware that such tax has been paid or is not
payable.
IV. GENERAL
IV.1 COVENANTS OF FUTURELINK DELAWARE. FutureLink Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
(a) file any and all documents necessary for the assumption by FutureLink
Delaware of all of the franchise tax liabilities of FutureLink
Colorado; and
(b) take such other actions to effect the Merger as may be required by the
Colorado Business Corporation Act.
IV.2 FURTHER ASSURANCES. From time to time, as and when required by FutureLink
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of FutureLink Colorado such deeds
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and other instruments, and there shall be taken or caused to be taken by
FutureLink Delaware and FutureLink Colorado such further and other actions as
shall be appropriate or necessary in order to vest or perfect in or conform of
record or otherwise by FutureLink Delaware the title to and possession of all
the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of FutureLink Colorado and otherwise to carry out the
purposes of this Agreement, and the officers and directors of FutureLink
Delaware are fully authorized in the name and on behalf of FutureLink Colorado
or otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
IV.3 ABANDONMENT. At any time before the Effective Date of the Merger, this
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either FutureLink Colorado or of
FutureLink Delaware, or of both, notwithstanding the approval of this Agreement
by the shareholders of FutureLink Colorado or by the sole stockholder of
FutureLink Delaware, or by both.
IV.4 AMENDMENT. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
Delaware and Colorado, provided that an amendment made subsequent to the
adoption of this Agreement by the stockholders of either Constituent Corporation
shall not: (a) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any of the shares of any class or series thereof of such Constituent
Corporation; (b) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger; or (c) alter or change
any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of any class or series of capital stock of
any Constituent Corporation.
IV.5 REGISTERED OFFICE. The registered office of the Surviving Corporation in
the State of Delaware is 00 X. Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, County of
Kent and Incorporating Services, Ltd. is the registered agent of the Surviving
Corporation at such address.
IV.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 000, 000 -- 0xx
Xxxxxx X.X., Xxxxxxx, Xxxxxxx, XXXXXX X0X 0X0 and copies thereof will be
furnished to any stockholder of either Constituent Corporation, upon request and
without cost.
IV.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the provisions of the Colorado
Business Corporation Act.
IV.8 COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of FutureLink Distribution Corp., a
Delaware corporation, and FutureLink Distribution Corp., a Colorado corporation,
is hereby executed on behalf of each of such two corporations and attested by
their respective officers thereunto duly authorized.
FUTURELINK CALIFORNIA
ACQUISITION CORP., a Delaware corporation
By: [signed: X. Xxxxx]
XXXXXXX X. XXXXX
Chief Executive Officer
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ATTEST:
[signed: K.B. Xxxxx]
XXXX X.X. XXXXX
Secretary
FUTURELINK DISTRIBUTION CORP.,
a Colorado corporation
By: [signed: X. Xxxxx]
XXXXXXX X. XXXXX
Chief Executive Officer
ATTEST:
[signed: K.B. Xxxxx]
XXXX X.X. XXXXX
Secretary
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