AGREEMENT OF MERGER
AGREEMENT OF MERGER (this "Merger Agreement") made and entered into this
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15th day of September, 1999 by and between LATITUDE 90, INC., a California
corporation ("Latitude California"), and L90, INC., a Delaware corporation ("L90
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Delaware");
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WITNESSETH:
WHEREAS, L90 Delaware is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, Latitude California is a corporation duly organized and existing
under the laws of the State of California;
WHEREAS, on the date of this Xxxxxx Xxxxxxxxx, X00 Xxxxxxxx has authority
to issue (i) 80,000,000 shares of common stock, par value $.001 per share (which
class of shares is herein called the "Delaware Common Stock"), of which 10,000
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shares are issued and outstanding and owned by Latitude California, and (ii)
10,000,000 shares of preferred stock, par value $.001 per share, of which (A)
2,000 shares have been designated Series A Convertible Preferred Stock (the
"Delaware Series A Preferred"), of which none are issued and outstanding, (B)
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5,000,000 shares have been designated Series B Convertible Preferred Stock (the
"Delaware Series B Preferred"), of which none are issued and outstanding, and
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(C) 4,998,000 shares remain undesignated and are not issued or outstanding;
WHEREAS, on the date of this Merger Agreement, Latitude California has
authority to issue (i) 40,000,000 shares of common stock, par value $.01 per
share (the "California Common Stock"), of which 10,000,000 are issued and
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outstanding, and (ii) 10,000,000 shares of preferred stock, of which (A) 2,000
shares have been designated Series A Convertible Preferred Stock (the
"California Series A Preferred"), of which 2,000 are issued and outstanding, (B)
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5,000,000 shares have been designated Series B Convertible Preferred Stock (the
"California Series B Preferred"), of which 4,107,044 shares are issued and
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outstanding, and (C) 4,998,000 shares remain undesignated and are not issued or
outstanding;
WHEREAS, the respective boards of directors of L90 Delaware and Latitude
California have determined that, for the purpose of effecting the
reincorporation of Latitude California in the State of Delaware, it is advisable
and to the advantage of said two corporations and their shareholders and sole
stockholder, respectively, that Latitude California merge with and into L90
Delaware upon the terms and conditions herein provided; and
WHEREAS, the respective boards of directors of L90 Delaware and Latitude
California have approved this Merger Agreement and the board of directors of
Latitude California and L90 Delaware have directed that this Merger Agreement be
submitted to a vote of their shareholders and sole stockholder, respectively;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Latitude California and L90 Delaware hereby agree to merge as
follows:
(1) Merger. Latitude California shall be merged with and into L90
Delaware, and L90 Delaware shall survive the merger ("Merger"), effective
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upon
the date when this Merger Agreement is made effective in accordance with
the Delaware General Corporation Law (the "Effective Date").
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(2) Directors and Officers and Governing Documents. The directors and
officers of L90 Delaware shall be the same upon the Effective Date as they
are immediately prior thereto. The certificate of incorporation of L90
Delaware, as amended and in effect on the Effective Date, shall continue to
be the certificate of incorporation of L90 Delaware as the surviving
corporation without change or amendment until further amended in accordance
with the provisions thereof and applicable laws. The bylaws of L90
Delaware, as amended and in effect on the Effective Date, shall continue to
be the bylaws of L90 Delaware as the surviving corporation without change
or amendment until further amended in accordance with the provisions
thereof and applicable laws.
(3) Succession. On the Effective Date, L90 Delaware shall succeed to
Latitude California in the manner of and as more fully set forth in Section
259 of the General Corporation Law of the State of Delaware and Section
1107 of the General Corporation Law of the State of California.
(4) Further Assurances. From time to time, as and when required by
L90 Delaware or by its successors and assigns, there shall be executed and
delivered on behalf of Latitude California such deeds and other
instruments, and there shall be taken or caused to be taken by it such
further and other action, as shall be appropriate or necessary in order to
vest, perfect or confirm, of record or otherwise, in L90 Delaware the title
to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Latitude
California, and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of L90 Delaware are fully
authorized in the name and on behalf of Latitude California or otherwise to
take any and all such action and to execute and deliver any and all such
deeds and other instruments.
(5) Conversion of Stock of Latitude California.
(a) Common Stock of Latitude California. Upon the Effective
Date, by virtue of the Merger and without any action on the part of
the holder thereof, each share of the California Common Stock
outstanding immediately prior thereto shall be changed and converted
into one fully paid and nonassessable share of Delaware Common Stock.
(b) Series A Preferred of Latitude California. Upon the
Effective Date, by virtue of the Merger and without any action on the
part of the holder thereof, each share of the California Series A
Preferred outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Delaware
Series A Preferred.
(c) Series B Preferred of Latitude California. Upon the
Effective Date, by virtue of the Merger and without any action on the
part of the holder thereof, each share of the California Series B
Preferred outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Delaware
Series B Preferred.
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(6) Stock Certificates.
(a) On and after the Effective Date, all of the outstanding
certificates which prior to that time represented shares of California
Common Stock shall for all purposes evidence ownership of and
represent the shares of Delaware Common Stock into which the shares of
California Common Stock represented by such certificates have been
converted as herein provided. The registered owner on the books and
records of L90 Delaware or its transfer agent of any such outstanding
stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to L90 Delaware or
its transfer agent, have and be entitled to exercise any voting and
other rights with respect to and to receive any dividend and other
distributions upon the shares of Delaware Common Stock evidenced by
such outstanding certificate as above provided.
(b) On and after the Effective Date, all of the outstanding
certificates which prior to that time represented shares of California
Series A shall for all purposes evidence ownership of and represent
the shares of Delaware Series A into which the shares of California
Series A represented by such certificates have been converted as
herein provided. The registered owner on the books and records of L90
Delaware or its transfer agent of any such outstanding stock
certificate shall, until such certificate shall have been surrendered
for transfer or otherwise accounted for to L90 Delaware or its
transfer agent, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividend and other
distributions upon the shares of Delaware Series A evidenced by such
outstanding certificate as above provided.
(c) On and after the Effective Date, all of the outstanding
certificates which prior to that time represented shares of California
Series B shall for all purposes evidence ownership of and represent
the shares of Delaware Series B into which the shares of California
Series B represented by such certificates have been converted as
herein provided. The registered owner on the books and records of L90
Delaware or its transfer agent of any such outstanding stock
certificate shall, until such certificate shall have been surrendered
for transfer or otherwise accounted for to L90 Delaware or its
transfer agent, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividend and other
distributions upon the shares of Delaware Series B evidenced by such
outstanding certificate as above provided.
(7) Stock Options and Warrants.
(a) Forthwith upon the Effective Date, each (i) outstanding
option to purchase shares of California Common Stock granted under the
Latitude California 1999 Stock Incentive Plan (the "Plan") and (ii)
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outstanding option to purchase California Common Stock not granted
under the Plans, shall be converted into and become an option to
purchase the same number of shares of Delaware Common Stock at the
same option price per share as in effect on the Effective Date and, in
the case of options
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granted under the Plan (collectively, the "Plan Options"), upon the
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same terms and subject to the same conditions as set forth in the
Plan, and, in the case of all options not granted under the Plan
(collectively, the "Non-Plan Options"), upon the same
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terms and subject to the same conditions as set forth in the
agreements or instruments that govern the Non-Plan Options. A number
of shares of Delaware Common Stock shall be reserved for purposes of
the Plan equal to the number of shares of California Common Stock so
reserved as of the Effective Date. As of the Effective Date, L90
Delaware hereby assumes all obligations of Latitude California under
the Plan, the outstanding Plan Options or portions thereof granted
pursuant to the Plan and all Non-Plan Options.
(b) Forthwith upon the Effective Date, each outstanding warrant
to purchase shares of California Common Stock (each, a "Warrant")
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shall be converted into and become a warrant to purchase the same
number of shares of Delaware Common Stock at the same exercise price
per share as in effect on the Effective Date and upon the same terms
and subject to the same conditions as set forth in the agreements or
instruments that govern such Warrant. A number of shares of Delaware
Common Stock shall be reserved for the exercise of warrants equal to
the number of shares of California Common Stock so reserved as of the
Effective Date. As of the Effective Date, L90 Delaware hereby assumes
all obligations of Latitude California under each outstanding Warrant.
(8) Other Employee Benefit Plans. As of the Effective Date, L90
Delaware hereby assumes all obligations of Latitude California under any
and all employee benefit plans in effect as of said date or with respect to
which employee rights or accrued benefits are outstanding as of said date.
(9) Common Stock of L90 Delaware. Forthwith upon the Effective Date,
the 10,000 shares of Delaware Common Stock presently issued and outstanding
in the name of Latitude California shall be canceled and retired and resume
the status of authorized and unissued shares of Delaware Common Stock, and
no shares of Delaware Common Stock or other securities of L90 Delaware
shall be issued in respect thereof.
(10) Covenants of L90 Delaware. L90 Delaware covenants and agrees that
it will, on or before the Effective Date:
(a) Qualify to do business as a foreign corporation in the State
of California, and in connection therewith irrevocably appoint an
agent for service of process as required under the provisions of
Section 2105 of the California Corporations Code.
(b) File any and all documents with the California Franchise Tax
Board necessary to the assumption by L90 Delaware of all of the
franchise tax liabilities of Latitude California.
(11) Book Entries. As of the Effective Date, entries shall be made
upon the books of L90 Delaware in accordance with the following:
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(a) The assets and liabilities of Latitude California shall be
recorded at the amounts at which they were carried on the books of
Latitude California immediately prior to the Effective Date, with
appropriate adjustments to reflect the retirement of the 10,000 shares
of Delaware Common Stock presently issued and outstanding.
(b) There shall be credited to the common stock account of L90
Delaware the aggregate amount of the par value of all shares of
Delaware Common Stock resulting from the conversion of the outstanding
California Common Stock pursuant to the Merger.
(c) There shall be credited to the capital surplus account of L90
Delaware the aggregate of the amounts shown in the common stock and
capital surplus accounts of Latitude California immediately prior to
the Effective Date, less the amount credited to the common stock
account of L90 Delaware pursuant to Paragraph (b) above.
(d) There shall be credited to the retained earnings account of
L90 Delaware an amount equal to that carried in the retained earnings
account of Latitude California immediately prior to the Effective
Date.
(12) Amendment. At any time before or after approval and adoption by
the shareholders of Latitude California, this Merger Agreement may be
amended in any manner (except that Paragraph (5) may not be amended without
the approval of the shareholders of Latitude California), as may be
determined in the judgment of the respective boards of directors of L90
Delaware and Latitude California to be necessary, desirable or expedient in
order to clarify the intention of the parties hereto or to effect or
facilitate the purposes and intent of this Merger Agreement.
(13) Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the board of
directors of either Latitude California or L90 Delaware with the approval
of the board of directors of the other corporation, notwithstanding
approval of this Merger Agreement by the stockholders of L90 Delaware or
the shareholders of Latitude California or both.
(14) Counterparts. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by resolution of the boards of directors of Latitude California and L90
Delaware, is hereby executed on behalf of each said two corporations by their
respective officers thereunto duly authorized.
L90, INC.,
a Delaware corporation
By: /s/Xxxx X. Xxxxx
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Its: Chief Executive Officer
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LATITUDE 90, INC.
a California corporation
By: /s/Xxxx X. Xxxxx
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Its: Chief Executive Officer
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CERTIFICATE OF THE ASSISTANT SECRETARY OF L90, INC.
I, Xxxxxx X. Xxxxxxxxx, Assistant Secretary of L90, INC., a Delaware
corporation, ("L90 Delaware"), do hereby certify, as such Assistant Secretary,
in accordance with the General Corporation Law of the State of Delaware, that
the Agreement of Merger to which this Certificate is attached, after having been
first duly adopted and executed by L90 Delaware and Latitude 90, Inc., a
California corporation, was duly submitted to the sole stockholder of L90
Delaware at a special meeting of stockholders called for the purpose of acting
on said Agreement of Merger, notice of the time, place and purpose of said
meeting having been waived by the sole stockholder of L90 Delaware, and that at
said meeting the Agreement of Merger was considered and a vote taken for its
adoption or rejection and that at said meeting all of the outstanding stock of
L90 Delaware entitled to vote thereon was voted for the adoption of said
Agreement of Merger and that thereby said Agreement of Merger was at said
meeting duly adopted as the act of the stockholders of L90 Delaware and as the
agreement and act of L90 Delaware.
IN WITNESS WHEREOF, the undersigned has executed this certificate this 15th
day of September, 1999.
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Assistant Secretary
CERTIFICATE OF THE ASSISTANT SECRETARY OF LATITUDE 90, INC.
I, Xxxxxx X. Xxxxxxxxx, Assistant Secretary of Latitude 90, Inc., a
California corporation ("Latitude California"), do hereby certify, as such
Assistant Secretary, in accordance with the General Corporation Law of the State
of California, that the Agreement of Merger (the "Merger Agreement") to which
this Certificate is attached, after having been first duly adopted and executed
by Latitude California and L90, Inc., a Delaware corporation, was duly submitted
to the shareholders for approval by written consent in the manner provided under
the provisions of Section 603 of the California Corporations Code. The Merger
Agreement was duly approved by the required vote of shareholders in accordance
with Section 603 of the California Corporations Code. The Corporation has two
classes of capital stock, designated as "Common Stock" and "Preferred Stock,"
respectively, with each outstanding share entitled to one vote (except when all
shares vote together as a single class, in which case, each outstanding share of
preferred stock is entitled to the number of votes equal to the number of shares
of Common Stock into which it can be converted). The Corporation has Ten
Million Forty Thousand (10,040,000) shares of Common Stock issued and
outstanding and Four Million One Hundred Nine Thousand Forty-Four (4,109,044)
shares of Preferred Stock issued and outstanding, (i) Two Thousand (2,000)
shares of which are designated Series A Convertible Preferred Stock and (ii)
Four Million One Hundred Seven Thousand Forty-Four (4,107,044) shares of which
are designated Series B Convertible Preferred Stock. The number of shares of
Common Stock voting in favor of the Merger Agreement exceeded the majority vote
required for approval by the outstanding shares of Common Stock, voting as a
single class; the number of shares of Series A Convertible Preferred Stock
voting in favor of the Merger Agreement exceeded the majority vote required for
approval by the outstanding shares of Series A Convertible Preferred Stock,
voting as a single class; the number of shares of Series B Convertible Preferred
Stock voting in favor of the Merger Agreement exceeded the majority vote
required for approval by the outstanding shares of Series B Convertible
Preferred Stock, voting as a single class; and the number of the outstanding
shares of Common Stock, Series A Convertible Preferred Stock and Series B
Convertible Preferred Stock voting in favor of the Merger Agreement (with each
share of Series A and Series B Convertible Preferred Stock voting on an "as
converted" basis) exceeded the majority vote required for approval by the
outstanding shares of Common Stock, Series A Convertible Preferred Stock and
Series B Convertible Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, the undersigned has executed this certificate this 15th
day of September, 1999.
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Assistant Secretary
