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EXHIBIT 2.2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER, dated as of July 31, 2000 ("Merger
Agreement"), is made and entered into by MineShare, Inc., a California
corporation (being herein referred to as "MineShare" or "Surviving
Corporation"), and Candlestick Acquisition Corporation, a Delaware corporation
("Merger Sub") (MineShare and Merger Sub being herein collectively referred to
as the "Constituent Corporations").
RECITALS
A. Digital Impact, Inc., a Delaware corporation ("Digital Impact"),
MineShare, Merger Sub, and certain shareholders of MineShare have entered into
an Agreement and Plan of Reorganization dated July 19, 2000 (the "Reorganization
Agreement"), providing, among other things, for the execution and filing of this
Merger Agreement and the merger of Merger Sub with and into MineShare upon the
terms set forth in the Reorganization Agreement and this Merger Agreement (the
"Merger") pursuant to which MineShare will become a wholly-owned subsidiary of
Digital Impact.
B. The respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations and their respective shareholders that Merger Sub be merged with
and into MineShare.
C. The respective Boards of Directors of each of the Constituent
Corporations have approved, adopted, certified, executed and acknowledged the
Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained in this Merger Agreement, the Constituent Corporations hereby agree
that the Merger Sub shall be merged with and into MineShare in accordance with
the Reorganization Agreement and the provisions of the laws of the State of
California and Delaware, upon the terms and subject to the conditions set forth
as follows:
ARTICLE I
The Constituent Corporations
1.1 Merger Sub.
(a) Merger Sub was incorporated under the laws of the State of
Delaware on July 17, 2000.
(b) At the date hereof, Merger Sub is authorized to issue an
aggregate of 1,000 shares of Common Stock, par value $0.001.
(c) At the date hereof, an aggregate of 1,000 shares of Merger
Sub Common Stock were issued and outstanding.
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1.2 MineShare.
(a) MineShare was incorporated under the laws of the State of
California on December 20, 1995.
(b) MineShare is authorized to issue an aggregate of
36,500,000 shares of Common Stock ("Company Common Stock"), without par value,
and 17,919,724 shares of Preferred Stock, without par value, 2,819,724 of which
are designated Series A Preferred ("Company Series A Preferred"), 6,350,000 of
which are designated Series B Preferred ("Company Series B Preferred"), and
8,750,000 of which are designated Series C Preferred ("Company Series C
Preferred") (the Company Common Stock, Company Series A Preferred, Company
Series B Preferred, Company Series C Preferred are collectively referred to
herein as the "Company Capital Stock").
(c) As of the date hereof, 5,236,686 shares of Company Common
Stock, 2,619,724 shares of Company Series A Preferred, 6,344,280 shares of
Company Series B Preferred, 8,210,294 shares of Company Series C Preferred, and
options to purchase 1,982,917 shares of Company Common Stock (each, a "Company
Option") pursuant to Mineshare's 1997 Stock Plan (the "Company Stock Plan") were
issued and outstanding.
ARTICLE II
The Merger
2.1 Approval; Effective Time of the Merger.
(a) The Merger shall become effective at such time (the
"Effective Time") as (i) this Merger Agreement and each of the certificates
meeting the requirements of Section 1103 of the California Corporations Code are
filed with the Secretary of State of California in accordance with Section 1103
of the California Corporations Code.
(b) At the Effective Time, Merger Sub shall be merged into
MineShare and the separate corporate existence of Merger Sub shall thereupon
cease. MineShare shall be the Surviving Corporation in the Merger and the
separate corporate existence of MineShare, with all its purposes, objects,
rights, privileges, powers, immunities and franchises, shall continue unaffected
and unimpaired by the Merger.
2.2 Surviving Corporation.
(a) The Surviving Corporation shall succeed to all of the
rights, privileges, powers, immunities and franchises of Merger Sub, all of the
properties and assets of Merger Sub and all of the debts, liabilities and other
interests due or belonging to Merger Sub and shall be subject to, and
responsible for, all of the debts, liabilities and obligations of Merger Sub
with the effect as set forth in the California Corporations Code.
(b) If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation all of its right, title and interest in, to or under the rights,
properties or assets of Merger Sub acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger or to otherwise
carry out this Merger Agreement, the officers and directors of the Surviving
Corporation shall and will be authorized to execute and
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deliver, in the name and on behalf of the Constituent Corporations or otherwise,
all such deeds, bills of sale, assignments and assurances and to take and do, in
the name and on behalf of the Constituent Corporations or otherwise, all such
other actions and things as may be necessary or desirable to vest, perfect or
confirm any and all right, title and interest in, to and under such rights,
properties or assets in the Surviving Corporation or to otherwise carry out this
Merger Agreement.
ARTICLE III
Articles of Incorporation, Bylaws, Directors and Officers
of The Surviving Corporation
3.1 Articles. The articles of incorporation of MineShare as amended
and restated as set forth on Exhibit A hereto shall be the articles of
incorporation of Surviving Corporation.
3.2 Bylaws. The bylaws of MineShare in effect immediately prior to
the Effective Time shall be the bylaws of the Surviving Corporation unless and
until amended as provided by law and such bylaws.
3.3 Directors and Officers. Unless otherwise determined by Digital
Impact prior to the Effective Time, the directors of Merger Sub immediately
prior to the Effective Time shall become the directors of the Surviving
Corporation, each to hold the office of a director of the Surviving Corporation
in accordance with the provisions of the California Code and the articles of
incorporation and bylaws of the Surviving Corporation until their successors are
duly elected and qualified. The officers of Merger Sub immediately prior to the
Effective Time shall become the officers of the Surviving Corporation, each to
hold office in accordance with the provisions of the bylaws of the Surviving
Corporation.
ARTICLE IV
Effect of the Merger on the Capital Stock
of the Constituent Corporations;
Exchange of Certificates
4.1 Effect on Capital Stock For purposes of this Section 4.1, the
following definitions shall apply:
"Aggregate Share Number" means that number of shares of Parent
Common Stock equal to a quotient, (A) the numerator of which shall be
$21,113,745 and (B) the denominator of which shall be $8.973; provided, however,
that if the Average Stock Price is greater than $13.00 then the Aggregate Share
Number shall mean the number of shares of Parent Common Stock equal to the
quotient, (A) the numerator of which shall be $21,113,745, and (B) the
denominator of which shall be $8.973 multiplied by the Average Stock Price
divided by 13; provided, further, that if the Average Stock Price is less than
$5.00, then the Aggregate Share Number shall mean the number of shares of Parent
Common Stock equal to the quotient, (A) the numerator of which shall be
$21,113,745, and (B) the denominator of which shall be $8.973 multiplied by the
Average Stock Price divided by 5.
"Aggregate Common Share Number" means that number obtained by
multiplying the (A) the Aggregate Share Number, by (B) the percentage of the
Company's fully diluted shares that are shares of Company Common Stock,
excluding any shares of Company Common Stock issuable upon conversion of
Preferred Stock.
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"Aggregate Liquidation Preference" means the aggregate
liquidation preference, in dollars, for all Company Series A Preferred Stock,
Company Series B Preferred Stock and Company Series C Preferred Stock pursuant
to Sections 3.a and 3.b of the Company's Amended and Restated Articles of
Incorporation filed with the State of California on April 9, 1999.
"Aggregate Preferred Share Number" means that number obtained by
multiplying (A) the Aggregate Share Number, by (B) the percentage of the
Company's fully diluted shares that are convertible into the Company's Preferred
Stock.
"Aggregate Series A Share Number" means that number of shares of
Parent Common Stock equal to a quotient, (A) the numerator of which shall be the
sum of (1) the Series A Return on Capital Amount and (2) the Series A Balance,
and (B) the denominator shall be the Average Stock Price.
"Aggregate Series B Share Number" means that number of shares of
Parent Common Stock equal to a quotient, (A) the numerator of which shall be the
sum of (1) the Series B Return on Capital Amount and (2) the Series B Balance,
and (B) the denominator shall be the Average Stock Price.
"Aggregate Series C Share Number" means that number of shares of
Parent Common Stock equal to a quotient, (A) the numerator of which shall be the
sum of (1) the Series C Return on Capital Amount and (2) the Series C Balance,
and (B) the denominator shall be the Average Stock Price.
"Average Stock Price" means the average of the per share closing
price of Parent Common Stock as reported on the Nasdaq Stock Market's National
Market for each trading day during the period of twenty (20) consecutive trading
days ending three (3) consecutive trading days before the Closing.
"Company Warrants" means (i) the warrant to purchase an aggregate
of 28,800 shares of Company Series A Preferred at an exercise price of $0.98135
per share held by Venture Lending & Leasing II, Inc. and (ii) the warrant to
purchase 19,200 shares of Company Series A Preferred at an exercise price of
$0.98135 per share held by Venture Lending & Leasing, Inc., and (iii) the
warrant to purchase 20,188 shares of the Company's Series C Preferred at an
exercise price of $1.486 held by Silicon Valley Bank.
"Parent Common Stock" means common stock of Digital Impact, par
value $0.001 per share.
"Preferred Stock Balance" means the difference between (A) the
product of (1) the Aggregate Preferred Share Number and (2) the Average Stock
Price and (B) the Aggregate Liquidation Preference.
"Series A Balance" shall be calculated as follows:
- if the Preferred Stock Balance is greater than zero (0), then
the "Series A Balance" shall be equal to the product obtained
by multiplying (A) the Preferred Stock Balance by (B) the
percentage of the Company's Preferred Stock (assuming full
exercise of all warrants or options that are exercisable for
Preferred Stock) that are Company Series A Preferred Stock
(assuming full exercise of all warrants or options that are
exercisable for Company Series A Preferred Stock); and
- if the Preferred Stock Balance is equal to or less than zero
(0), then the "Series A Balance" shall be equal to zero (0).
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"Series A Exchange Ratio" means that number equal to a quotient,
(A) the numerator of which shall be the Aggregate Series A Share Number, and (B)
the denominator of which shall be the total number of shares of Company Series A
Preferred Stock assuming full exercise of all warrants and stock options that
are exercisable for Company Series A Preferred Stock.
"Series A Return on Capital Amount" shall be calculated as
follows:
- if the product of (1) the Aggregate Preferred Share Number
and (2) the Average Stock Price is equal to or greater than
the Aggregate Liquidation Preference, then the "Series A
Return on Capital Amount" shall be equal to the aggregate
liquidation preference, in dollars, for the Company Series A
Preferred Stock pursuant to Section 3.b of the Company's
Amended and Restated Articles of Incorporation filed with the
State of California on April 14, 1999; and
- if the product of (1) the Aggregate Preferred Share Number
and (2) the Average Stock Price is less than the Aggregate
Liquidation Preference, then the "Series A Return on Capital
Amount" shall be equal to the product obtained by multiplying
the following three numbers: (A) the Aggregate Preferred
Share Number, (B) the Average Stock Price, and (C) the
percentage of the Aggregate Liquidation Preference that
relates to Company Series A Preferred Stock.
"Series B Balance" shall be calculated as follows:
- if the Preferred Stock Balance is greater than zero (0), then
the "Series B Balance" shall be equal to the product obtained
by multiplying (A) the Preferred Stock Balance by (B) the
percentage of the Company's Preferred Stock (assuming full
exercise of all warrants or options that are exercisable for
Preferred Stock) that are Company Series B Preferred Stock
(assuming full exercise of all warrants or options that are
exercisable for Company Series B Preferred Stock); and
- if the Preferred Stock Balance is equal to or less than zero
(0), then the "Series B Balance" shall be equal to zero (0).
"Series B Exchange Ratio" means that number equal to a quotient,
(A) the numerator of which shall be the Aggregate Series B Share Number, and (B)
the denominator of which shall be the total number of shares of Company Series B
Preferred Stock assuming full exercise of all warrants and stock options that
are exercisable for Company Series B Preferred Stock.
"Series B Return on Capital Amount" shall be calculated as
follows:
- if the product of (1) the Aggregate Preferred Share Number
and (2) the Average Stock Price is equal to or greater than
the Aggregate Liquidation Preference, then the "Series B
Return on Capital Amount" shall be equal to the aggregate
liquidation preference, in dollars, for the Company Series B
Preferred Stock pursuant to Section 3.b of the Company's
Amended and Restated Articles of Incorporation filed with the
State of California on April 14, 1999; and
- if the product of (1) the Aggregate Preferred Share Number
and (2) the Average Stock Price is less than the Aggregate
Liquidation Preference, then the "Series B Return on Capital
Amount" shall be equal to the product obtained by multiplying
the following
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three numbers: (A) the Aggregate Preferred Share Number, (B)
the Average Stock Price and (C) the percentage of the
Aggregate Liquidation Preference that relates to Company
Series B Preferred Stock.
"Series C Balance" shall be calculated as follows:
- if the Preferred Stock Balance is greater than zero (0), then
the "Series C Balance" shall be equal to the product obtained
by multiplying (A) the Preferred Stock Balance by (B) the
percentage of the Company's Preferred Stock (assuming full
exercise of all warrants or options that are exercisable for
Preferred Stock) that are Company Series C Preferred Stock
(assuming full exercise of all warrants or options that are
exercisable for Company Series C Preferred Stock); and
- if the Preferred Stock Balance is equal to or less than zero
(0), then the "Series B Balance" shall be equal to zero (0).
"Series C Exchange Ratio" means that number equal to a quotient,
(A) the numerator of which shall be the Aggregate Series C Share Number, and (B)
the denominator of which shall be the total number of shares of Company Series C
Preferred Stock of the Company assuming full exercise of all warrants and stock
options that are exercisable for Company Series C Preferred Stock.
"Series C Return on Capital Amount" shall be calculated as
follows:
- if the product of (1) the Aggregate Preferred Share Number
and (2) the Average Stock Price is equal to or greater than
the Aggregate Liquidation Preference, then the "Series C
Return on Capital Amount" shall be equal to the aggregate
liquidation preference, in dollars, for the Company Series C
Preferred Stock pursuant to Section 3.a of the Company's
Amended and Restated Articles of Incorporation filed with the
State of California on April 14, 1999; and
- if the product of (1) the Aggregate Preferred Share Number
and (2) the Average Stock Price is less than the Aggregate
Liquidation Preference, then the "Series C Return on Capital
Amount" shall be equal to the product obtained by multiplying
the following three numbers: (A) the Aggregate Preferred
Share Number,(B) the Average Stock Price, and (C) the
percentage of the Aggregate Liquidation Preference that
relates to Company Series C Preferred Stock.
At the Effective Time of the Merger, subject to Section 4.2 hereof, by
virtue of the Merger, and without any action on the part of Merger Sub,
MineShare, or the holders of any of the following securities (each, a "Company
Shareholder"):
(a) Conversion of Company Common Stock. Each outstanding share
of Company Common Stock, other than any shares to be cancelled pursuant to
Section 4.1(h) hereof, shall be cancelled and extinguished, and automatically
converted into the right to receive upon surrender of the certificate
represented by such share of Company Common Stock, a number of shares of Parent
Common Stock equal to the Common Stock Exchange Ratio. For purposes of the
foregoing, Common Stock Exchange Ratio means that number equal to a quotient,
(A) the numerator of which shall be the Aggregate Common Share Number and (B)
the denominator of which shall be the total number shares of Company Common
Stock assuming full exercise of all warrants and Company Options.
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(b) Conversion of Company Series A Preferred Stock. Each
outstanding share of Company Series A Preferred Stock, other than any shares to
be cancelled pursuant to Section 4.1(h) hereof, shall be cancelled and
extinguished, and automatically converted into the right to receive upon
surrender of the certificate represented by such share of Company Series A
Preferred Stock, a number of shares of Parent Common Stock equal to the Series A
Exchange Ratio.
(c) Conversion of Company Series B Preferred Stock. Each
outstanding share of Company Series B Preferred Stock, other than any shares to
be cancelled pursuant to Section 4.1(h) hereof, shall be cancelled and
extinguished, and automatically converted into the right to receive upon
surrender of the certificate represented by such share of Company Series B
Preferred Stock, a number of shares of Parent Common Stock equal to the Series B
Exchange Ratio.
(d) Conversion of Company Series C Preferred Stock. Each
outstanding share of Company Series C Preferred Stock, other than any shares to
be cancelled pursuant to Section 4.1(h) hereof, shall be cancelled and
extinguished, and automatically converted into the right to receive upon
surrender of the certificate represented by such share of Company Series C
Preferred Stock, a number of shares of Parent Common Stock equal to the Series C
Exchange Ratio. The aggregate number of shares of Parent Common Stock referred
to in Section 1.6(a) through (d) above is referred to herein collectively as the
"Merger Consideration."
(e) Assumption of Company Options. At the Effective Time, the
Company's obligations with respect to each outstanding Company Option shall be
assumed by Parent. The Company Options assumed by Parent shall continue to have,
and be subject to, the same terms and conditions set forth in the Company Stock
Plan and stock option agreements pursuant to which such Company Options were
issued as in effect immediately prior to the Effective Time, except that (a) the
number of shares for which such Company Option shall be exercisable shall equal
the product of the Common Stock Exchange Ratio and the number of shares of
Company Common Stock subject to the Company Option immediately prior to the
Effective Time (rounded down to the nearest whole number), and (b) the per share
exercise price for the shares of Parent Common Stock issuable upon the exercise
of such assumed Company Option shall be equal to the quotient determined by
dividing the exercise price per share of Company Common Stock at which such
Company Option was exercisable immediately prior to the Effective Time by the
Common Stock Exchange Ratio (rounded up to the nearest whole cent). The date of
grant shall be the date on which the Company Option was originally granted.
(f) Company Warrants. At the Effective Time, the Company's
obligations with respect to the Company Warrants shall be assumed by Parent. Any
Company Warrant assumed by Parent shall continue to have, and be subject to, the
same terms and conditions set forth in such Company Warrant as in effect
immediately prior to the Effective Time, except that (a) the number of shares
for which such Company Warrant shall be exercisable shall equal the product of
the applicable Exchange Ratio and the number of shares subject to such Company
Warrant immediately prior to the Effective Time (rounded down to the nearest
whole number), and (b) the per share exercise price for the shares of Parent
Common Stock issuable upon the exercise of such assumed Company Warrant shall be
equal to the quotient determined by dividing the exercise price per share of
Company Capital Stock at which such Company Warrant was exercisable immediately
prior to the Effective Time by the applicable Exchange Ratio (rounded up to the
nearest whole cent).
(g) Fractional Shares. No fraction of a share of Parent Common
Stock shall be issued in the Merger but in lieu thereof each shareholder of the
Company who would otherwise be entitled to a fraction of a share of Parent
Common Stock (after aggregating all fractional shares of Parent Common Stock to
be received by such holder, it being the intention of the parties that no holder
will receive cash in an amount
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equal to or greater than the value of one full share of Parent Common Stock)
shall receive from Parent an amount of cash (rounded to the nearest cent),
without interest, equal to the product of (i) such fraction, multiplied by (ii)
the Average Stock Price.
(h) Cancellation of Parent-Owned and Company-Owned Stock. At
the Effective Time, by virtue of the Merger and without any action on the part
of any of the parties hereto, each share of capital stock of the Company owned
by Parent, Merger Sub, the Company or any direct or indirect wholly owned
subsidiary thereof immediately prior to the Effective Time, shall be cancelled
and extinguished without any conversion thereof.
(i) Capital Stock of Merger Sub. At the Effective Time, by
virtue of the Merger and without any action on the part of any of the parties
hereto, each share of capital stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and nonassessable share of common stock of
the Surviving Corporation. Each stock certificate of Merger Sub evidencing
ownership of any such shares shall thereafter evidence ownership of such shares
of capital stock of the Surviving Corporation.
4.2 Dissenting Shares for Holders of Company Capital Stock. (a) Any
dissenting shares shall not be converted into or represent a right to receive
Parent Common Stock pursuant to Section 4.1, but the holder thereof shall only
be entitled to such rights as are granted by the California Corporations Code.
(b) Notwithstanding the provisions of subsection (a), if any
holder of shares of capital stock of MineShare who demands appraisal of such
shares under the California Code shall effectively withdraw or lose (through
failure to perfect or otherwise) the right to appraisal, then, as of the later
of the Effective Time and the occurrence of such event, such holder's shares
shall automatically be converted into and represent only the right to receive
Parent Common Stock as provided in Section 4.1 (and subject to the provisions of
the Escrow Agreement of even date herewith by and between Greater Bay Trust
Company, Digital Impact and Xxxxx Xxxxxxx as agent of the former shareholders of
MineShare (the "Escrow Agreement")), without interest thereon, upon surrender of
the certificate representing such shares.
(c) MineShare shall give Digital Impact (i) prompt notice of
any written demands for appraisal of any shares of capital stock of MineShare,
withdrawals of such demands, and any other instruments served pursuant to the
California Corporations Code and received by MineShare and (ii) the opportunity
to participate in all negotiations and proceedings with respect to demands for
appraisal under the California Corporations Code. MineShare shall not, except
with the prior written consent of Digital Impact, voluntarily make any payment
with respect to any demands for appraisal of capital stock of MineShare or offer
to settle or settle any such demands. Digital Impact shall have full recourse to
the escrow fund as set forth in the Escrow Agreement for the amount, if any,
paid by MineShare or Digital Impact in respect of dissenting shares to any
Company Shareholder in excess of the amount such shareholder would have received
from Digital Impact had such shareholder not made a demand for appraisal.
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ARTICLE V
Termination and Amendment
5.1 Notwithstanding the approval of this Merger Agreement by the
shareholders of MineShare and Merger Sub, this Merger Agreement may be
terminated at any time prior to the Effective Time by mutual agreement of the
Boards of Directors of Merger Sub and MineShare.
5.2 This Merger Agreement may be amended by the parties hereto any
time before or after approval hereof by the stockholders of Merger Sub, but,
after such approval, no amendment shall be made which by law requires the
further approval of stockholders without obtaining such approval. This Merger
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
5.3 This Merger Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
ARTICLE VI
General
6.1 The Surviving Corporation may be served with process in the State
of Delaware in any proceeding for enforcement of any obligation of Merger Sub,
as well as for enforcement of any obligation of the Surviving Corporation
arising from the merger, including any suit or other proceeding to enforce the
right of any stockholder as determined in appraisal proceedings pursuant to the
provisions of Section 262 of the General Corporation Law of the State of
Delaware, and it does hereby irrevocably appoint the Secretary of State of the
State of Delaware as its agent to accept service of process in any such suit or
other proceeding. The address to which a copy of such process shall be mailed by
the Secretary of State of Delaware is MineShare, Inc., 0000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, until the Surviving
Corporation shall have hereafter designated in writing to the said Secretary of
State a different address for such purpose. A copy of this Merger Agreement is
on file at the foregoing address and will be furnished on request and without
cost to any shareholder of any Constituent Corporation.
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IN WITNESS WHEREOF, the parties have duly executed this Merger Agreement
as of the date first written above.
MINESHARE, INC.
By: /s/ XXXXX XXXXXXXXXX
---------------------------------------
Xxxxx Xxxxxxxxxx
Vice President, Development
By: /s/ XXXXXX XXXXXXXXXXXX
---------------------------------------
Xxxxxx Xxxxxxxxxxxx
Secretary
CANDLESTICK ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Park
---------------------------------------
Xxxxxxx X. Park
Chief Executive Officer and President
By: /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxxxxx
Chief Financial Officer and Secretary
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CANDLESTICK ACQUISITION CORPORATION
OFFICERS' CERTIFICATE OF APPROVAL OF MERGER
The undersigned, Xxxxxxx X. Park and Xxxxx X. Xxxxxxxxxxx, on behalf of
Candlestick Acquisition Corporation, do hereby certify that:
1. We are the President and Secretary of Candlestick Acquisition Corporation, a
Delaware corporation (the "Corporation").
2. This Certificate is attached to the Agreement of Merger (the "Merger
Agreement") dated as of July 31, 2000 in the form duly approved by the Board
of Directors of the Corporation providing for the merger (the "Merger") of
the Corporation with and into MineShare, Inc., a California corporation.
3. This Corporation has one authorized class of shares, designated as Common
Stock. The number of shares of Common Stock issued and outstanding and
entitled to vote upon the Merger as of July 31, 2000, the record date, was
One Thousand (1000).
4. The terms of the Merger Agreement in the form attached to this Certificate
were duly approved by the vote of a number of shares of Common Stock of this
corporation that equaled or exceeded the vote required.
5. The percentage vote required for such approval was more than 50% of the
outstanding shares of the Common Stock.
6. No vote of the stockholders of Digital Impact, Inc., parent of the
Corporation, was required.
Each of the undersigned declares under penalty of perjury that he has
read the foregoing certificate and knows the contents thereof and that the same
is true of his own knowledge. In witness whereof, each of the undersigned has
signed and verified this certificate at San Mateo, California this 31st day of
July, 2000.
/s/ Xxxxxxx X. Park
------------------------------------
Xxxxxxx X. Park, President
/s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxxxx, Secretary
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MINESHARE, INC.
OFFICERS' CERTIFICATE OF APPROVAL OF MERGER
The undersigned, Xxxxx Xxxxxxxxxx and Xxxxxx Xxxxxxxxxxxx, on behalf of
MineShare, Inc., do hereby certify that:
1. We are the Vice President, Development and Secretary of MineShare, Inc., a
California corporation (the "Corporation").
2. This Certificate is attached to the Agreement of Merger (the "Merger
Agreement") dated as of July 31, 2000 in the form duly approved by the Board
of Directors of the Corporation providing for the merger (the "Merger") of
the Corporation with Candlestick Acquisition Corporation, a Delaware
corporation.
3. As of July 17, 2000, the record date, the authorized capital stock of the
Corporation issued and outstanding and entitled to vote upon the Merger,
consists of 36,500,000 shares of Common Stock, of which 5,236,686 shares are
issued and outstanding, and 17,919,724 shares of authorized Preferred Stock,
2,819,724 of which are designated Series A Preferred Stock, of which
2,619,724 shares are issued and outstanding, 6,350,000 of which are
designated Series B Preferred Stock, of which 6,344,280 shares are issued
and outstanding, and 8,750,000 of which are designated Series C Preferred
Stock, of which 8,210,294 shares are issued and outstanding.
4. The terms of the Merger Agreement in the form attached to this Certificate
were duly approved by the vote of a number of shares of Common Stock, Series
A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock of
this Corporation that equaled or exceeded the vote required.
5. The vote required for approval of the Merger Agreement was the affirmative
vote of (i) holders of a majority of the shares of the Corporation's Common
Stock, voting together as a single class, (ii) holders of a majority of the
shares of the Corporation's Common Stock and Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock outstanding as of the
record date, voting together as a single class, (iii) holders of a majority
of the shares of the Company's Series A Preferred Stock outstanding as of
the record date, voting together as a single class, (iv) holders of a
majority of the shares of the Company's Series B Preferred Stock outstanding
as of the record date, voting together as a single class, (v) holders of a
majority of the shares of the Company's Series C Preferred Stock outstanding
as of the record date, voting together as a single class, and (vi) holders
of a majority of the shares of the Corporation's Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock outstanding as of the
record date, voting together as a single class.
Each of the undersigned declares under penalty of perjury that he has read
the foregoing certificate and knows the contents thereof and that the same is
true of his own knowledge. In witness whereof, each of the undersigned has
signed and verified this certificate at Santa Monica, California this 31st day
of July, 2000.
/s/ XXXXX XXXXXXXXXX
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Xxxxx Xxxxxxxxxx, Vice President, Development
/s/ XXXXXX XXXXXXXXXXXX
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Xxxxxx Xxxxxxxxxxxx, Secretary
13
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MINESHARE, INC.
Article I
The name of this Corporation is MineShare, Inc.
Article II
The purpose of this Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
Article III
This Corporation is authorized to issue one class of shares of stock,
designated as Common Stock. The total number of shares of Common Stock this
Corporation shall have the authority to issue is One Thousand (1,000).
Article IV
The liability of the directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law. The
Corporation is authorized to indemnify the directors and officers of the
Corporation to the fullest extent permissible under California law.
