EXHIBIT 2.01
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Merger Agreement") is entered into
as of March 1, 2000, by and between XxxXxxxxxxxx.xxx, a California corporation
("AllAdvantage California"), and XxxXxxxxxxxx.xxx Inc., a Delaware corporation
("AllAdvantage Delaware"). AllAdvantage California and AllAdvantage Delaware
are hereinafter sometimes collectively referred to as the "Constituent
Corporations".
RECITALS
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A. AllAdvantage California was incorporated on March 24, 1999. Its
current authorized capital stock consists of: (i) 150,000,000 shares of Common
Stock, no par value ("AllAdvantage California Common Stock"), of which
29,326,983 shares are issued and outstanding; and (ii) 36,335,044 shares of
Preferred Stock, no par value ("AllAdvantage California Preferred Stock"), of
which 36,021,269 shares are issued and outstanding (consisting of 4,000,000
shares of Series A Preferred Stock, 2,500,000 shares of Series B Preferred
Stock, 13,067,343 shares of Series C Preferred Stock and 16,453,926 shares of
Series D Preferred Stock).
B. AllAdvantage Delaware was incorporated on January 4, 2000. Its
authorized capital stock consists of 1,000 shares of Common Stock, with a par
value of $0.001 per share ("AllAdvantage Delaware Common Stock"), of which 1,000
shares are issued and outstanding.
C. The respective Boards of Directors of AllAdvantage California and
AllAdvantage Delaware deem it advisable and to the advantage of each of the
Constituent Corporations that AllAdvantage California merge with and into
AllAdvantage Delaware upon the terms and subject to the conditions set forth in
this Merger Agreement for the purpose of effecting a change of the state of
incorporation of AllAdvantage California from California to Delaware.
D. The Boards of Directors of each of the Constituent Corporations have
approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization set
forth in this Merger Agreement and do hereby agree that AllAdvantage California
shall merge with and into AllAdvantage Delaware on the following terms,
conditions and other provisions:
1. Merger and Effective Time. At the Effective Time (as defined below),
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AllAdvantage California shall be merged with and into AllAdvantage Delaware (the
"Merger"), and AllAdvantage Delaware shall be the surviving corporation of the
Merger (the "Surviving Corporation"). The Merger shall become effective upon
the close of business on the date when a duly executed copy of this Merger
Agreement, along with all required officers' certificates, is filed with the
Secretary of State of the State of Delaware (the "Effective Time").
2. Effect of Merger. At the Effective Time, the separate corporate
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existence of AllAdvantage California shall cease; the corporate identity,
existence, powers, rights and immunities of AllAdvantage Delaware as the
Surviving Corporation shall continue unimpaired by the Merger; and AllAdvantage
Delaware shall succeed to and shall possess all the assets, properties, rights,
privileges, powers, franchises, immunities and purposes, and be subject to all
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the debts, liabilities, obligations, restrictions and duties of AllAdvantage
California, all without further act or deed.
3. Governing Documents. At the Effective Time, (i) the Certificate of
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Incorporation of AllAdvantage Delaware in effect immediately prior to the
Effective Time shall be amended and restated by virtue of the Merger to read as
set forth in full in Exhibit "A" hereto (the "First Restated Certificate") and
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(ii) the Bylaws of AllAdvantage Delaware in effect immediately prior to the
Effective Time shall be amended and restated by virtue of the Merger as approved
by the Board of Directors of AllAdvantage Delaware.
4. Directors and Officers. At the Effective Time, the directors of
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AllAdvantage Delaware shall be and become the directors of the Surviving
Corporation, and the officers of AllAdvantage Delaware shall be and become the
officers (holding the same offices) of the Surviving Corporation, and after the
Effective Time shall serve in accordance with the First Restated Certificate and
restated Bylaws of the Surviving Corporation.
5. Conversion of Shares of AllAdvantage California. At the Effective
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Time, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, (i) each share of AllAdvantage
California Common Stock issued and outstanding immediately prior thereto shall
be converted into one fully paid and nonassessable share of AllAdvantage
Delaware Common Stock, (ii) each share of AllAdvantage California Series A
Preferred Stock outstanding immediately prior thereto shall be automatically
changed and converted into one fully paid and nonassessable, issued and
outstanding share of AllAdvantage Delaware Series A Preferred Stock, (iii) each
share of AllAdvantage California Series B Preferred Stock outstanding
immediately prior thereto shall be automatically changed and converted into one
fully paid and nonassessable, issued and outstanding share of AllAdvantage
Delaware Series B Preferred Stock, (iv) each share of AllAdvantage California
Series C Preferred Stock outstanding immediately prior thereto shall be
automatically changed and converted into one fully paid and nonassessable,
issued and outstanding share of AllAdvantage Delaware Series C Preferred Stock
and (v) each share of AllAdvantage California Series D Preferred Stock
outstanding immediately prior thereto shall be automatically changed and
converted into one fully paid and nonassessable, issued and outstanding share of
AllAdvantage Delaware Series D Preferred Stock. Shares of AllAdvantage Delaware
Common Stock and Preferred Stock issued in the Merger upon conversion of shares
of AllAdvantage California Common Stock and Preferred Stock, respectively,
shall, by virtue of the Merger, continue to be subject to the same contractual
restrictions on transfer, rights of repurchase, vesting and other provisions, if
any, to the same extent as were applicable immediately prior to the Effective
Time to the shares of AllAdvantage California Common Stock and Preferred Stock
so converted. Continuous employment with AllAdvantage California will be
credited to holders of AllAdvantage Delaware Common Stock for purposes of
determining the vesting of shares of AllAdvantage Delaware Stock subject to
vesting provisions at the Effective Time.
6. Cancellation of Shares of AllAdvantage Delaware. At the Effective
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Time, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, all of the previously issued and
outstanding shares of AllAdvantage Delaware Common Stock that were issued and
outstanding immediately prior to the Effective Time shall be automatically
canceled and returned to the status of authorized but unissued shares.
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7. Stock Certificates. At and after the Effective Time, all of the
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outstanding certificates that, prior to that date, represented shares of
AllAdvantage California Common Stock shall be deemed for all purposes to
evidence ownership of and to represent the number of shares of AllAdvantage
Delaware Common Stock into which such shares of AllAdvantage California Common
Stock are converted as provided herein. At and after the Effective Time, all of
the outstanding certificates that, prior to that date, represented shares of a
series of AllAdvantage California Preferred Stock shall be deemed for all
purposes to evidence ownership of and to represent the number of shares of the
series of AllAdvantage Delaware Preferred Stock into which such shares of
AllAdvantage California Preferred Stock are converted as provided herein. The
registered owner on the books and records of AllAdvantage California of any such
outstanding stock certificate for AllAdvantage California Common Stock or
AllAdvantage California Preferred Stock shall, until such certificate is
surrendered for transfer or otherwise accounted for to AllAdvantage Delaware or
its transfer agent, be entitled to exercise any voting and other rights with
respect to, and to receive any dividend and other distributions upon, the shares
of AllAdvantage Delaware Common Stock or AllAdvantage Delaware Preferred Stock
evidenced by such outstanding certificate as provided above.
8. Assumption of Options and Warrants. At the Effective Time, all
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outstanding and unexercised portions of all options to purchase AllAdvantage
California Common Stock under the AllAdvantage California 1999 Equity Incentive
Plan and 2000 Equity Incentive Plan (the "Existing Plans"), and all other
outstanding options to purchase AllAdvantage California Common Stock, shall be
assumed by AllAdvantage Delaware and become options to purchase the same number
of shares of AllAdvantage Delaware Common Stock at the same exercise price per
share but otherwise shall, to the extent permitted by law and otherwise
reasonably practicable, have the same term, exercisability, vesting schedule,
status as an "incentive stock option" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), if applicable, and all other material
terms and conditions (including but not limited to the terms and conditions
applicable to such options by virtue of the Existing Plans). Continuous
employment with AllAdvantage California will be credited to an optionee for
purposes of determining the vesting of the number of shares of AllAdvantage
Delaware Common Stock subject to exercise under an assumed AllAdvantage
California option at the Effective Time. At the Effective Time, AllAdvantage
Delaware shall adopt and assume the Existing Plans. Additionally, at the
Effective Time, all outstanding and unexercised portions of all warrants to
purchase or acquire AllAdvantage California Common Stock or any series of
AllAdvantage California Preferred Stock shall be assumed by AllAdvantage
Delaware and become warrants to purchase or acquire the same number of shares of
AllAdvantage Delaware Common Stock or the corresponding series of AllAdvantage
Delaware Preferred Stock, as the case may be, at the same exercise price per
share but otherwise with the same term, exercisability, and all other material
terms and conditions.
9. Fractional Shares. No fractional shares of AllAdvantage Delaware
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Common Stock or AllAdvantage Delaware Preferred Stock will be issued in
connection with the Merger.
10. Employee Benefit Plans. At the Effective Time, the obligations of
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AllAdvantage California under or with respect to every plan, trust, program and
benefit then in effect or administered by AllAdvantage California for the
benefit of the directors, officers and employees of AllAdvantage California or
any of its subsidiaries shall become the lawful obligations of AllAdvantage
Delaware and shall be implemented and administered in the same manner and
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without interruption until the same are amended or otherwise lawfully altered or
terminated. Effective at the Effective Time, AllAdvantage Delaware hereby
expressly adopts and assumes all obligations of AllAdvantage California under
such employee benefit plans.
11. Further Assurances. From time to time, as and when required by the
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Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of AllAdvantage California such deeds, assignments and
other instruments, and there shall be taken or caused to be taken by it all such
further action, as shall be appropriate, advisable or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to and possession of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of AllAdvantage
California, and otherwise to carry out the purposes of this Merger Agreement.
The officers and directors of the Surviving Corporation are fully authorized in
the name of and on behalf of AllAdvantage California, or otherwise, to take any
and all such actions and to execute and deliver any and all such deeds and other
instruments as may be necessary or appropriate to accomplish the foregoing.
12. Condition. The consummation of the Merger is subject to the approval
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of this Merger Agreement and the Merger contemplated hereby by the shareholders
of AllAdvantage California and by the sole stockholder of AllAdvantage Delaware,
prior to or at the Effective Time.
13. Abandonment. At any time before the Effective Time, this Merger
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Agreement may be terminated and the Merger abandoned by the Board of Directors
of AllAdvantage California or AllAdvantage Delaware, notwithstanding approval of
this Merger Agreement by the shareholders of AllAdvantage California and the
sole stockholder of AllAdvantage Delaware.
14. Amendment. At any time before the Effective Time, this Merger
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Agreement may be amended, modified or supplemented by the Boards of Directors of
the Constituent Corporations, notwithstanding approval of this Merger Agreement
by the shareholders of AllAdvantage California and the sole stockholder of
AllAdvantage Delaware; provided, however, that any amendment made subsequent to
the adoption of this Merger Agreement by the shareholders of AllAdvantage
California or the sole stockholder of AllAdvantage Delaware shall not: (i) alter
or change the amount or kind of shares, securities, cash, property and/or rights
to be received in exchange for or upon conversion of any shares of any class or
series of AllAdvantage California; (ii) alter or change of any of the terms of
the Certificate of Incorporation of the Surviving Corporation to be effected by
the Merger; or (iii) alter or change any of the terms or conditions of this
Merger Agreement if such alteration or change would adversely affect the holders
of any shares of any class or series of AllAdvantage California or AllAdvantage
Delaware.
15. Tax-Free Reorganization. The Merger is intended to be a tax-free plan
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of reorganization within the meaning of Section 368(a)(1)(F) of the Code.
16. Governing Law. This Merger Agreement shall be governed by and
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construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to the principles of conflicts of law or
choice of laws, except to the extent that the laws of the State of Delaware
would apply in matters relating to the internal affairs of AllAdvantage Delaware
and the Merger.
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17. Counterparts. In order to facilitate the filing and recording of this
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Merger Agreement, it may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this the parties hereto have caused this Merger
Agreement to be duly executed on the date and year first above written.
XxxXxxxxxxxx.xxx XxxXxxxxxxxx.xxx Inc.
(a California corporation) (a Delaware corporation)
By:________________________________ By:_______________________________
Xxxxx Xxxxxxxxx, President Xxxxx Xxxxxxxxx, President
By:_______________________________ By:_______________________________
Xxxx Xxxxxxxx, Secretary Xxxxx Xxxxxxx, Secretary
[Signature Page to Agreement and Plan of Merger]
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EXHIBIT "A"
FIRST AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
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