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Exhibit 2.7
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Plan of Merger") is made and
entered into as of November 15, 1999 by and between Xxxxxxxx.xxx Incorporated, a
New York corporation ("Cytation"), having its principal place of business at 00
Xxxxxxxxxx Xxx, Xxxxxxx, Xxxxx Xxxxxx 00000, and XxxxxxxXxxx.xxx Incorporated, a
Delaware corporation ("CollegeLink"), having its principal place of business at
00 Xxxxxxxxxx Xxx, Xxxxxxx, Xxxxx Xxxxxx 00000.
WITNESSETH:
WHEREAS, CollegeLink was incorporated on November 1, 1999, and is a
corporation duly organized and existing under the laws of the State of Delaware;
WHEREAS, Cytation is a corporation duly organized and existing under
the laws of the State of New York;
WHEREAS, on the date of this Plan of Merger, Cytation has authority to
issue 100,000,000 shares of common stock, par value $0.001 per share (the
"Cytation Common Stock"), of which 9,846,340 shares of Cytation Common Stock are
issued and outstanding, and 10,000,000 shares of preferred stock, $.01 par
value, of which (a) 2,500,000 shares have been designated Series A Preferred
Stock (the "Series A Shares") of which 1,140,000 Series A Shares are issued and
outstanding, (b) 300,000 shares have been designated Series B Preferred Stock
(the "Series B Shares") of which 279,771 Series B Shares are issued and
outstanding and (c) 1,000,000 shares have been designated Series C Preferred
Stock (the "Series C Shares") of which 1,000,000 Series C Shares are issued and
outstanding, and (d) 6,200,000 shares are undesignated and available for
issuance.
WHEREAS, on the date of this Plan of Merger, CollegeLink is a
wholly-owned subsidiary of Cytation and has authority to issue 100,000,000
shares of common stock, par value $.001 per share (the "CollegeLink Common
Stock"), of which 100 shares are issued and outstanding and owned by Cytation,
and 10,000,000 shares of preferred stock, $.01 par value, of which (a) 2,500,000
shares have been designated Series A Preferred Stock, (b) 300,000 shares have
been designated Series B Preferred Stock, (c) 1,000,000 shares have been
designated Series C Preferred Stock, and (d) 6,200,000 shares are undesignated
and available for issuance, and of which no shares are issued or outstanding;
and
WHEREAS, the respective Boards of Directors of CollegeLink and Cytation
have approved this Plan of Merger and the Board of Directors of Cytation has
directed that this Plan of Merger be submitted to a vote of its stockholders;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Cytation and CollegeLink hereby agree to merge as follows:
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1. MERGER. Cytation shall be merged with and into CollegeLink,
and CollegeLink shall survive the merger (the "Merger"). The address of the
registered office of CollegeLink in Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx.
The Merger shall be effective upon filing of a Certificate of Ownership
and Merger with the Secretary of State of Delaware and a Certificate of Merger
with the New York Department of State (the "Effective Date").
2. SUCCESSION. On the Effective Date, CollegeLink shall succeed
to Cytation in the manner of and as more fully set forth in Section 259 of the
Delaware General Corporation Law. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of Cytation, its
shareholders, Board of Directors and committees thereof, officers and agents
which were valid and effective immediately prior to the Effective Date, shall be
taken for all purposes as the acts, plans, policies, agreements, arrangements,
approvals and authorizations of CollegeLink and shall be as effective and
binding thereon as the same were with respect to Cytation.
3. DIRECTORS AND OFFICERS AND GOVERNING DOCUMENTS. The directors
and officers of CollegeLink shall be the same upon the Effective Date as they
are immediately prior thereto. The Certificate of Incorporation of CollegeLink,
as in effect on the Effective Date, shall continue to be the Certificate of
Incorporation of CollegeLink as the surviving corporation without change or
amendment until further amended in accordance with the provisions thereof and
applicable laws. The By-Laws of CollegeLink, as in effect on the Effective Date,
shall continue to be the By-Laws of CollegeLink as the surviving corporation
without change or amendment until further amended in accordance with the
provisions thereof and applicable laws.
4. FURTHER ASSURANCES. From time to time, as and when required by
CollegeLink or by its successors and assigns, there shall be executed and
delivered on behalf of Cytation 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 CollegeLink the title to and possession of all the
property, interest, assets, rights, privileges, immunities, powers, franchises
and authority of Cytation, and otherwise to carry out the purposes of this Plan
of Merger, and the officers and directors of CollegeLink are fully authorized to
take any and all such action and to execute and delivery any and all such deeds
and other instruments.
5. CAPITAL STOCK OF CYTATION. Upon the Effective Date, by virtue
of the Merger and without any action on the part of the holder hereof, each
share of Cytation Common Stock outstanding immediately prior thereto shall be
changed and converted into one (1) fully-paid and non-assessable share of
CollegeLink Common Stock; each share of Cytation Series A Preferred Stock
outstanding shall be changed and converted into one (1) fully-paid and
non-assessable share of CollegeLink Series A Preferred Stock; each share of
Cytation Series B Preferred Stock outstanding shall be changed and converted
into one (1) fully-paid and non-assessable share of CollegeLink Series B
Preferred Stock; and each share of Cytation Series C Preferred Stock outstanding
shall be changed and converted into one (1) fully-paid and non-assessable share
of CollegeLink Series C Preferred Stock.
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6. STOCK CERTIFICATES. On and after the Effective Date, all of
the outstanding certificates which prior to that time represented shares of
Cytation Common Stock shall be deemed for all purposes to evidence ownership of
and to represent the shares of CollegeLink Common Stock into which the shares of
Cytation Common Stock represented by such certificates have been converted as
herein provided; all of the outstanding certificates which prior to that time
represented shares of Cytation Series A Preferred Stock shall be deemed for all
purposes to evidence ownership and to represent the shares of CollegeLink Series
A Preferred Stock into which the shares of Cytation Series A Preferred Stock
represented by such certificates have been converted as herein provided; all of
the outstanding certificates which prior to that time represented shares of
Cytation Series B Preferred Stock shall be deemed for all purposes to evidence
ownership and to represent the shares of CollegeLink Series B Preferred Stock
into which the shares of Cytation Series B Preferred Stock represented by such
certificates have been converted as herein provided; and all of the outstanding
certificates which prior to that time represented shares of Cytation Series C
Preferred Stock shall be deemed for all purposes to evidence ownership and to
represent the shares of CollegeLink Series C Preferred Stock into which the
shares of Cytation Series C Preferred Stock represented by such certificates
have been converted as herein provided. The registered owner on the books and
records of CollegeLink 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 CollegeLink 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 CollegeLink
Common Stock, CollegeLink Series A Preferred Stock, CollegeLink Series B
Preferred Stock, or CollegeLink Series C Preferred Stock as the case may be,
evidenced by such outstanding certificate as above provided.
7. CONTINUATION AND RATIFICATION OF OPTIONS TO PURCHASE COMMON
STOCK. The Xxxxxxxx.xxx Incorporated 1999 Stock Option Plan (the "Cytation 1999
Plan") shall continue in effect as the 1999 Stock Option Plan of CollegeLink
(the "CollegeLink 1999 Plan"). Each option to purchase Cytation Common Stock
granted under the Cytation 1999 Plan immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, become an option to purchase, at the same exercise price and on the
same terms, one share of CollegeLink Common Stock under the CollegeLink 1999
Plan. The Web Services International, Inc. 1996 Stock Plan (the "Cytation 1996
Plan") shall continue in effect as the 1996 Stock Option Plan of CollegeLink
(the "CollegeLink 1996 Plan"). Each option to purchase Cytation Common Stock
granted under the Cytation 1996 Plan immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of the holder
thereof, become an option to purchase, at the same exercise price and on the
same terms, one share of CollegeLink Common Stock under the CollegeLink 1996
Plan.
8. COLLEGELINK COMMON STOCK. Forthwith upon the Effective Date,
the 100 shares of CollegeLink Common Stock presently issued and outstanding in
the name of Cytation shall be cancelled and retired and resume the status of
authorized and unissued shares of CollegeLink Common Stock, and no shares of
CollegeLink Common Stock or other securities of CollegeLink shall be issued in
respect thereof.
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9. EMPLOYEE BENEFIT PLANS. As of the Effective Date, CollegeLink
hereby assumes all obligations of Cytation 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 including, without limitation,
all issued and outstanding options.
10. COVENANT OF COLLEGELINK. CollegeLink covenants and agrees that
on or before the Effective Date it will qualify to do business as a foreign
corporation in the State of New York.
11. AMENDMENT. Subject to applicable law, at any time before or
after approval and adoption by the stockholders of Cytation, this Plan of Merger
may be amended, supplemented or modified in any manner.
12. ABANDONMENT. At any time before the Effective Date, this Plan
of Merger may be terminated and the Merger may be abandoned by the Board of
Directors of either Cytation or CollegeLink, or both, notwithstanding approval
of this Plan of Merger by the stockholders of Cytation.
13. COUNTERPARTS. In order to facilitate the filing and recording
of this Plan of Merger, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original and the same agreement.
The remainder of this page is left blank intentionally.
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IN WITNESS WHEREOF, the Plan of Merger, having first been duly approved
by resolutions of the Boards of Directors of CollegeLink and Cytation, is hereby
executed as of the date first above written on behalf of each of said two
corporations by their respective officers thereunto duly authorized.
ATTEST: XXXXXXXXXXX.XXX INCORPORATED
a Delaware corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. High
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Secretary President
ATTEST: XXXXXXXX.XXX INCORPORATED
a New York corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. High
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Secretary President
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