1
EXHIBIT 2.2
SUPPLEMENTAL AGREEMENT FOR SALE AND PURCHASE OF SHARES
DATE: 20 December 1999
PARTIES:
(1) THE PERSONS whose names are set out in Column (1) of Schedule 1,
Part A to the Principal Agreement (as hereinafter defined)
("VENDORS"); and
(2) FUTURELINK CORP., a corporation incorporated under the laws of the
State of Delaware, whose principal place of business is at 0 Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 ("PURCHASER").
SUPPLEMENTAL to an agreement for the sale and purchase of shares dated
15 November 1999 made between Vendors (1) and Purchaser 2) (the "Principal
Agreement").
WHEREAS Vendors and Purchaser have agreed to amend certain terms of the
Principal Agreement as set out below.
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
Expressions defined in the Principal Agreement shall have the same
respective meanings in this Agreement
2. AMENDMENTS TO PRINCIPAL AGREEMENT
The Principal Agreement shall be amended as follows:
2.1 Section 3.1 shall be deleted and replaced by the following
new Section:
"3.1 The aggregate consideration payable by the Purchaser to
the Vendors in respect of the sale of the Shares shall be
(pound)27,000,000 consisting of:
3.1.1 (pound)3,095,293.84 in cash;
3.1.2 (pound)1,654,706.16 in Loan Notes issued pursuant
to a deed poll in the form of the Deed Poll
Constituting Unsecured Loan Notes due 6 April 2000
set out in Schedule 11, to be issued to the
1
2
Vendors on Completion in the amounts set out
against their names in column 4 of Schedule 1,
Part A;
3.1.3 (pound)2,500,000 in Loan Notes issued pursuant to a
deed poll in the form of the Deed Poll Constituting
Unsecured Loan Notes due 30 June 2000 set out in
Schedule 12, to be issued to the Vendors on
Completion in the amounts set out against their
names in column 4 of Schedule 1, Part A; and
3.1.4 (pound)19,750,000 in Purchaser Shares (placed in
escrow on Completion and released in tranches
thereafter in accordance with the Escrow Agreement)
as described in Section 3.3."
New Schedule 11 and Schedule 12 referred to above are attached
to this Agreement.
2.2 Section 6.1.4 shall be deleted and replaced by the following
new Section:
"6.1.4 no liability shall attach to the Vendors unless the
aggregate amount of all claims for which they
would, in the absence of this provision, be liable
shall exceed (pound) 50,000 (the "de minimis
amount") and in such event the Vendors shall be
liable only for the excess over the de minimus
amount; provided that if stamp duty or stamp duty
reserve tax is paid by the Company in respect of
the exchange of shares in the capital of KNS
Limited by the Executives for Shares in the capital
of KNS Holdings Limited (the "Exchange") (which
payment shall give rise to liability of the Vendors
absent the foregoing provisions of this Section),
the de minimus amount shall be reduced (but not
below zero) by the amount of such duty or tax
payment in respect of all subsequent claims."
2.3 Section 6.6 shall be deleted and replaced by the following
new Section:
"6.6 for the purposes of Sections 6.4 and 6.5, the value
of each Consideration Share shall be deemed to be
US$14.95."
2.4 Section 6 shall be amended by the addition of the following
new Section 6.7:
"6.7 The Purchaser acknowledges and agrees that the
Vendors shall be entitled to direct the Company and
to the extent practicable undertake on the
Company's behalf all dealings with Inland Revenue
in connection with the payment and adjudication of
stamp duty or stamp duty reserve tax in respect of
the Exchange and the payment of Tax in respect of
the PSL and Centrix
2
3
Transactions (as hereinafter defined), provided
in all cases that the Vendors comply with the
provisions of Clause 4 of the Tax Deed."
2.5 Section 9.2 shall be deleted and replaced by the following
new Section:
"9.2 Notwithstanding anything contained in Section 9.1,
the Vendors covenant that prior to Completion they
shall procure that:
9.2.1 the loans made by KNS to Centrix and PSL
(together "the Centrix/PSL Loans") shall
be novated, so that KCC shall be substituted
for KNS as creditor in respect of the
Centrix/PSL Loans; and
9.2.2 the outstanding balance of the KCC Loan
payable at Completion shall be reduced by an
amount equal to the principal amount of the
Centrix/PSL Loans.
2.6 Section 10.1.3 shall be deleted and replaced by the following
new Section:
"10.1.3 The Executives at the Completion Date shall have
entered into the Employment Agreements in a
mutually satisfactory form."
2.7 Section 10.1.4 shall be deleted and replaced by the following
new Section:
"10.1.4 The Company shall have repaid the KCC Loan in full
and be fully released from any continuing
obligations thereunder."
2.8 Schedule 1, Part A shall be amended by deleting columns 3 and
4 thereof and Schedule 1, Part B shall be deleted and replaced
by a new Schedule 1, Part B attached to this Agreement.
2.9 Schedule 2 (Particulars Concerning the Company) shall be
amended by deleting paragraph 7 and substituting the
following new paragraph:
"7. Share Capital:(pound)205,714.29 divided into
20,571,429 ordinary shares of 1p each."
2.10 Schedule 5 shall be amended by deleting clause 1.1.2.
2.11 Schedule 5 shall be amended by deleting clause 1.1.12 and
substituting the following:
"1.1.12 the Employment Agreements duly executed by each of
the Executives;"
3
4
2.12 Schedule 5 shall be amended by deleting clause 2.1.5 and
substituting the following:
"2.1.5 Repay the KCC Loan in full and enter into an
agreement with KCC releasing the Company from all
obligations under the KCC Loan and effecting the
PSL and Centrix Transactions to the reasonable
satisfaction of the Purchaser;"
2.13 Schedule 6 (Tax Deed) shall be amended by deleting the
definition of "Shares" therein and substituting the
following:
"Shares" means the 20,571,429 ordinary shares of one xxxxx
each in the capital of the Company;"
3. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
English law and the parties hereby submit themselves to the
non-exclusive jurisdiction of the English courts.
Signed for and on behalf of )
the Vendors by )
DENIS XXXXXXXXXXX XXXXX ) [signed: Denis Xxxxxxxxxxx Xxxxx]
as Attorney )
SIGNED BY: [signed: Xxx Xxxxxx]
XXX XXXXXX
for and on behalf of FUTURELINK CORP.
4
