EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of June 29, 1999, by and between ASK JEEVES, Inc., a
California corporation ("the Company"), and AJ MERGER CORPORATION, a Delaware
corporation ("Merger Sub"). The Company and Merger Sub are sometimes referred to
as the "Constituent Corporations."
The authorized capital stock of the Company consists of 80,000,000 shares
of Common Stock, and 20,000,000 shares of Preferred Stock. The authorized
capital stock of Merger Sub, upon effectuation of the transactions set forth in
this Merger Agreement, will consist of 80,000,000 shares of Common Stock, $.001
par value, and 20,000,000 shares of Preferred Stock, $.001 par value.
The directors of the Constituent Corporations deem it advisable and to the
advantage of the Constituent Corporations that the Company merge into Merger Sub
upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that the Company shall
merge into Merger Sub on the following terms, conditions and other provisions:
1.TERMS AND CONDITIONS.
1.1 MERGER. The Company shall be merged with and into Merger Sub (the
"Merger"), and Merger Sub shall be the surviving corporation (the
"Surviving Corporation") effective upon the date that this Merger
Agreement is filed with the Secretary of State of Delaware (the "Effective
Date").
1.2 NAME CHANGE. On the Effective Date, the name of Merger Sub shall be Ask
Jeeves, Inc.
1.3 SUCCESSION. On the Effective Date, Merger Sub shall continue its corporate
existence under the laws of the State of Delaware, and the separate
existence and corporate organization of the Company, except insofar as it
may be continued by operation of law, shall be terminated and cease.
1.4 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the rights,
privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in
and possessed by the Surviving Corporation, subject to all of the
disabilities, duties and restrictions of or upon each of the Constituent
Corporations; and all and singular rights, privileges, powers and
franchises of each of the Constituent Corporations, and all property,
real, personal and mixed, of each of the Constituent Corporations, and all
debts due to each of the Constituent Corporations on whatever account, and
all things in action or belonging to each of the Constituent Corporations
shall be transferred to and vested in the Surviving
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Corporation; and all property, rights, privileges, powers and franchises,
and all and every other interest, shall be thereafter the property of the
Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by
reason of the Merger; provided, however, that the liabilities of the
Constituent Corporations and of their shareholders, directors and officers
shall not be affected and all rights of creditors and all liens upon any
property of either of the Constituent Corporations shall be preserved
unimpaired, and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations may be prosecuted to
judgment as if the Merger had not taken place except as they may be
modified with the consent of such creditors and all debts, liabilities and
duties of or upon each of the Constituent Corporations shall attach to the
Surviving Corporation, and may be enforced against it to the same extent
as if such debts, liabilities and duties had been incurred or contracted
by it.
1.5 COMMON STOCK OF THE COMPANY AND MERGER SUB. On the Effective Date, by
virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each share of Common Stock
of the Company issued and outstanding immediately prior thereto shall be
converted into one-half (1/2) of a fully paid and nonassessable share of
the Common Stock of Merger Sub and each share of Common Stock of Merger
Sub issued and outstanding immediately prior thereto shall be cancelled
and returned to the status of authorized but unissued shares.
1.6 PREFERRED STOCK OF THE COMPANY AND MERGER SUB. On the Effective Date, by
virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each share of Series A
Preferred Stock of the Company issued and outstanding immediately prior
thereto shall be converted into one (1) fully paid and nonassessable share
of Series A Preferred Stock of Merger Sub and each share of Series B
Preferred Stock of the Company issued and outstanding immediately prior
thereto shall be converted into one (1) fully paid and nonassessable share
of Series B Preferred Stock of Merger Sub.
1.7 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of
the Common Stock or of the Preferred Stock of the Company shall be deemed
for all purposes to evidence ownership of and to represent the shares of
Merger Sub into which the shares of the Company represented by such
certificates have been converted as herein provided and shall be so
registered on the books and records of the Surviving Corporation or its
transfer agents. The registered owner of any such outstanding stock
certificate shall, until such certificate shall have been surrendered for
transfer or conversion of otherwise accounted for to the Surviving
Corporation 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 Merger Sub evidenced by such
outstanding certificate as above provided.
1.8 OPTIONS. On the Effective Date, the Surviving Corporation will assume and
continue the Company's Amended and Restated 1996 Equity Incentive Plan,
1999 Equity Incentive Plan, 1999 Non-Employee Directors' Stock Option Plan
and 1999 Employee Stock Purchase Plan and the outstanding and unexercised
portions of all options to purchase Common Stock of the Company, including
without limitation all options outstanding under such stock
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plans and any other outstanding options, shall be converted into options
of Merger Sub, such that an option for one (1) share of the Company shall
be converted into an option for one-half (1/2) of a share of Merger Sub,
and the exercise price per share of the Merger Sub option shall be
increased by two times. No other changes in the terms and conditions of
such options will occur. Effective on the Effective Date, Merger Sub
hereby assumes the outstanding and unexercised portions of such options
and the obligations of the Company with respect thereto.
1.9 WARRANTS. On the Effective Date, the Surviving Corporation will assume and
continue warrants of the Company, and the outstanding and unexercised
portions of all warrants shall be converted into warrants of Merger Sub,
such that a warrant for one (1) share of the Company shall be converted
into a warrant for one-half (1/2) of a share of Merger Sub and the
exercise price per share of the Merge Sub warrant shall be increased by
two times. No other changes in the terms and conditions of such warrants
will occur. Effective on the Effective Date, Merger Sub hereby assumes the
outstanding and unexercised portions of such warrants and the obligations
of the Company with respect thereto.
1.10 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving Corporation
shall assume all obligations of the Company under any and all employee
benefit plans in effect as of such date. On the Effective Date, the
Surviving Corporation shall adopt and continue in effect all such employee
benefit plans upon the same terms and conditions as were in effect
immediately prior to the Merger and shall reserve that number of shares of
Merger Sub Common Stock with respect to each such employee benefit plan as
is proportional to the number of shares of the Company Common Stock (if
any) so reserved on the Effective Date.
2.CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of Incorporation
and Bylaws of Merger Sub in effect on the Effective Date shall continue to
be the Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that Article I of the Certificate of Incorporation and
Bylaws of the Surviving Corporation shall, effective upon the filing of
this Merger Agreement with the Secretary of State of the State of
Delaware, be amended to read in its entirety as follows: "The name of this
corporation is Ask Jeeves, Inc."
2.2 DIRECTORS. The directors of the Company immediately preceding the
Effective Date shall become the directors of the Surviving Corporation on
and after the Effective Date to serve until the expiration of their terms
and until their successors are elected and qualified.
2.3 OFFICERS. The officers of the Company immediately preceding the Effective
Date shall become the officers of the Surviving Corporation on and after
the Effective Date to serve at the pleasure of its Board of Directors.
3.MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by the Surviving
Corporation or by its successors and assigns, there shall be executed and
delivered on behalf of the Company 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 or perfect
in or to conform of record or otherwise, in the Surviving Corporation the
title to and possession of
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all the property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of the Company and otherwise to carry out
the purposes of this Merger Agreement, and the officers and directors of
the Surviving Corporation are fully authorized in the name and on behalf
of the Company or otherwise to take any and all such action and to execute
and deliver any and all such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the shareholders of the
Company, this Merger Agreement may be amended in any manner (except that,
after the approval of the Merger Agreement by the shareholders of the
Company, the principal terms may not be amended without the further
approval of the shareholders of the Company) as may be determined in the
judgment of the respective Board of Directors of Merger Sub and the
Company to be necessary, desirable, or expedient in order to clarify the
intention of the parties hereto or to effect or facilitate the purpose and
intent of this Merger Agreement.
3.3 CONDITIONS TO MERGER. The obligations of the Constituent Corporations to
effect the transactions contemplated hereby is subject to satisfaction of
the following conditions (any or all of which may be waived by either of
the Constituent Corporations in its sole discretion to the extent
permitted by law):
(A) the Merger shall have been approved by the shareholders of the
Company in accordance with applicable provisions of the General
Corporation Law of the State of California; and
(B) the Company, as sole stockholder of Merger Sub, shall have approved
the Merger in accordance with the General Corporation Law of the
State of Delaware; and
(C) any and all consents, permits, authorizations, approvals, and orders
deemed in the sole discretion of the Company to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. 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 the Company or Merger Sub or both,
notwithstanding the approval of this Merger Agreement by the shareholders
of the Company or Merger Sub, or the consummation of the Merger may be
deferred for a reasonable period of time if, in the opinion of the Boards
of Directors of the Company and Merger Sub, such action would be in the
best interest of such corporations. In the event of termination of this
Merger Agreement, this Merger Agreement shall become void and of no effect
and there shall be no liability on the part of either Constituent
Corporation or its Board of Directors or shareholders with respect
thereto, except that the Company shall pay all expenses incurred in
connection with the Merger or in respect of this Merger Agreement or
relating thereto.
3.5 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.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of the Company and Merger Sub, is hereby executed on
behalf of each said corporation and attested by their respective officers
thereunto duly authorized.
ASK JEEVES, INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST:
By: /s/ Xxx Xxxxxx
----------------------
Xxx Xxxxxx
Secretary
MERGER SUB:
a Delaware corporation,
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
ATTEST:
By: /s/ Xxx Xxxxxx
----------------------
Xxx Xxxxxx
Secretary
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AJ MERGER CORPORATION
OFFICERS' CERTIFICATE
Xxxxx X. Xxxxxxx and Xxx Xxxxxx hereby certify that:
1. They are the Chairman of the Board of Directors and Secretary,
respectively, of AJ Merger Corporation, a Delaware corporation (the
"Corporation").
2. The Agreement and Plan of Merger to which this Certificate is attached
(the "Merger Agreement") has been duly approved by the Board of Directors
of the Corporation.
3. The Corporation has one class of stock outstanding, designated "Common
Stock," of which one hundred (100 shares were outstanding and entitled to
vote on the merger.
4. The principal terms of the Merger Agreement were approved by a unanimous
vote of the outstanding share of Common Stock. The vote required was
greater than 50% of the outstanding shares of Common Stock.
5. The required vote of the stockholders of Ask Jeeves, Inc., a California
corporation, the parent of the Corporation, was obtained.
Each of the undersigned declares under penalty of perjury that the matters
set out in the foregoing Certificate are true of his or her own knowledge.
Executed at Berkeley, California, on June 29, 1999.
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman of the Board
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
Secretary
