EXHIBIT 2.2
FIRST AMENDMENT TO MERGER AGREEMENT AND PLAN
OF REORGANIZATION DATED AS OF MARCH 8, 1999
FIRST AMENDMENT TO MERGER AGREEMENT
AND PLAN OF REORGANIZATION
This First Amendment to the Merger Agreement and Plan of Reorganization
(the "Amendment") is made this 8th day of March, 1999 by and among ImaginOn,
Inc., a Delaware corporation ("ImaginOn-Delaware"), XxxxxxXx.xxx, a California
corporation ("ImaginOn-CA") and Network Specialists, Inc., a Nevada corporation
("Target").
R E C I T A L S
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A. ImaginOn-CA and Target are parties to that certain Merger Agreement
and Plan of Reorganization dated as of February 9, 1999 (the "Merger
Agreement"). Pursuant to the Merger Agreement, Target is to be merged into iNOW,
a California corporation ("iNOW") subsidiary of ImaginOn-CA.
B. The shareholders of the Target were to receive shares of
ImaginOn-CA's common stock for each share of the Target's common stock.
ImaginOn-CA transferred to its parent company, ImaginOn-Delaware, all of its
shares of iNOW, thereby making iNOW a subsidiary of ImaginOn-Delaware.
C. The parties intend to modify the Merger Agreement in order to
substitute ImaginOn-Delaware for ImaginOn-CA as a party and to permit the
shareholders of the Target to receive shares of common stock of
ImaginOn-Delaware, which is a publicly-traded company, in the ratio originally
contemplated in Section 3.1 of the Merger Agreement.
D. The parties intend by this modification, and consistent with their
original intent in forming the Merger Agreement, to meet all the requirements of
Internal Revenue Code Section 368 such that the transfer to the Target
shareholders of shares of common stock of ImaginOn-Delaware is intended to be a
non-taxable event pursuant to Section 368.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENT. Pursuant to Section 13.4 of the Merger Agreement, the
Merger Agreement is hereby modified as follows:
(a) ADDITIONAL PARTY. ImaginOn-Delaware is hereby added to the
Merger Agreement in place of ImaginOn-CA.
(b) DEFINITION OF PARENT. The definition of "Parent" is hereby
deleted and replaced with the following new definition:
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"Parent" means ImaginOn, Inc., a Delaware
corporation.
(c) DUE ORGANIZATION. Section 5.1 is hereby amended by
replacing the phrase "State of California" in the first sentence
with the phrase "State of Delaware".
2. CONSENT AND WAIVER. The parties hereby consent to ImaginOn-CA's
transfer to ImaginOn-Delaware of the shares of stock of iNOW, and waive any and
all claims or objections that any party may have to such transaction.
3. NO OTHER AMENDMENT. Except as set forth in this Amendment, the
Merger Agreement shall remain in full force and effect with no other amendments
or modifications. Except as provided in this Amendment, capitalized terms shall
have the meanings ascribed to them in the Merger Agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed on its behalf by its duly authorized officers, all as of the day and
year first above-written.
ImaginOn, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
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President
XxxxxxXx.xxx
By: /s/ Xxxxx X. Xxxxxxxx
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President
Network Specialists, Inc.
By: /s/ Xxxxxxx Xxxxxx
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President
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