1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter called the "MERGER
AGREEMENT") is made as of __, 1999 by and between THE LIGHTSPAN PARTNERSHIP,
INC., a California corporation ("LIGHTSPAN CALIFORNIA"), and THE LIGHTSPAN
PARTNERSHIP, INC., a Delaware corporation ("LIGHTSPAN DELAWARE"). Lightspan
California and Lightspan Delaware are sometimes referred to as the "CONSTITUENT
CORPORATIONS."
The authorized capital stock of Lightspan California consists of
149,000,000 shares of Common Stock, par value $0.001 per share, and 61,795,074
shares of Preferred Stock, par value $0.001 per share. The authorized capital
stock of Lightspan Delaware consists of 149,000,000 shares of Common Stock, par
value $0.001 per share, and 61,795,074 shares of Preferred Stock, par value
$0.001 per share.
The directors of the Constituent Corporations deem it advisable and to
the advantage of said corporations that Lightspan California merge into
Lightspan Delaware 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 Lightspan
California shall merge into Lightspan Delaware on the following terms,
conditions and other provisions:
I. TERMS AND CONDITIONS
A. MERGER. Lightspan California shall be merged with and into Lightspan
Delaware (the "MERGER"), and Lightspan Delaware shall be the surviving
corporation (the "SURVIVING CORPORATION") effective at 9:00 a.m. (Eastern
Standard Time) on __, 1999 (the "EFFECTIVE Time").
B. SUCCESSION. At the Effective Time, Lightspan Delaware shall continue
its corporate existence under the laws of the State of Delaware, and the
separate existence and corporate organization of Lightspan California, except
insofar as it may be continued by operation of law, shall be terminated and
cease.
C. TRANSFER OF ASSETS AND LIABILITIES. At the Effective Time, 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 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,
2
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.
D. COMMON STOCK OF LIGHTSPAN CALIFORNIA AND LIGHTSPAN DELAWARE. At the
Effective 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
Common Stock of Lightspan California issued and outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of Common Stock of Lightspan Delaware; and (ii) each share of Common Stock
of Lightspan Delaware issued and outstanding immediately prior thereto shall be
canceled and returned to the status of authorized but unissued shares.
E. PREFERRED STOCK OF LIGHTSPAN CALIFORNIA. At the Effective 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 Series A
Preferred Stock of Lightspan California issued and outstanding immediately prior
thereto shall be changed and converted into one fully paid and nonassessable
share of Series A Preferred Stock of Lightspan Delaware, (ii) each share of
Series B Preferred Stock of Lightspan California issued and outstanding
immediately prior thereto shall be changed and converted into one fully paid and
nonassessable share of Series B Preferred Stock of Lightspan Delaware, (iii)
each share of Series C Preferred Stock of Lightspan California issued and
outstanding immediately prior thereto shall be changed and converted into one
fully paid and nonassessable share of Series C Preferred Stock of Lightspan
Delaware, (iv) each share of Series D Preferred Stock of Lightspan California
issued and outstanding immediately prior thereto shall be changed and converted
into one fully paid and nonassessable share of Series D Preferred Stock of
Lightspan Delaware, and (iv) each share of Series E Preferred Stock of Lightspan
California issued and outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Series E Preferred
Stock of Lightspan Delaware.
F. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock and Preferred Stock of Lightspan California shall be deemed for all
purposes to evidence ownership of and to represent the shares of Lightspan
Delaware into which the shares of Lightspan California 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 or 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 Lightspan Delaware
evidenced by such outstanding certificate as above provided.
G. WARRANTS OF LIGHTSPAN CALIFORNIA. At and after the Effective Time,
the outstanding Warrants which prior to that time represented Warrants of
Lightspan California shall
3
be deemed for all purposes to evidence ownership of and to represent Warrants of
Lightspan Delaware (each Warrant of Lightspan Delaware being exercisable to
purchase one share of stock of Lightspan Delaware at the per share exercise
price of the Warrant of Lightspan California) and shall be so registered on the
books and records of the Surviving Corporation or its transfer agents.
H. OPTIONS OF LIGHTSPAN CALIFORNIA. At the Effective Time, the Surviving
Corporation will assume and continue all of Lightspan California's stock option
plans and agreements in existence at the Effective Time, including but not
limited to the 1992 Stock Option Plan and the 1993 Stock Option Plan and the
outstanding and unexercised portions of all options to purchase Common Stock of
Lightspan California, including without limitation all options outstanding under
such stock option plans and any other outstanding options, shall become options
to purchase one share of Common Stock of Lightspan Delaware at the per share
exercise price of the Lightspan California option, with no other changes in the
terms and conditions of such options. Effective at the Effective Time, Lightspan
Delaware hereby assumes the outstanding and unexercised portions of such options
and the obligations of Lightspan California with respect thereto (subject to the
adjustments provided in this Section H and the provisions of the Certificate of
Incorporation and Bylaws of Lightspan Delaware).
I. EMPLOYEE BENEFIT PLANS. At the Effective Time, the Surviving
Corporation shall assume all obligations of Lightspan California under its
employee benefit plans, including, but not limited to, its Employee Stock
Purchase Plan (including obligations to reserve shares for issuance thereunder)
which shall become effective on the same day as the initial, firmly
underwritten, public offering of Common Stock of Lightspan Delaware referenced
in Sections D and E, above).
J. FRACTIONAL SHARES. No fractional shares of Lightspan Delaware Common
Stock or Preferred Stock shall be issued in connection with the Merger. In lieu
of such fractional shares, any holder who would otherwise be entitled to receive
a fraction of a share of Lightspan Delaware Common Stock or Preferred Stock, as
applicable (after separately aggregating all fractional shares of each type of
stock issuable to such holder), shall be paid in cash the dollar value (rounded
to the nearest whole cent), without interest, of such fractional share(s).
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
A. CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Lightspan Delaware in effect at the Effective Time
shall continue to be the Certificate of Incorporation and Bylaws of the
Surviving Corporation.
B. DIRECTORS. The directors of Lightspan California immediately
preceding the Effective Time shall become the directors of the Surviving
Corporation at and after the Effective Time to serve until the expiration of
their terms and until their successors are elected and qualified.
C. OFFICERS. The officers of Lightspan California immediately preceding
the Effective Time shall become the officers of the Surviving Corporation at and
after the Effective Time to serve at the pleasure of its Board of Directors.
4
III. MISCELLANEOUS
A. 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 Lightspan 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 or
perfect in or to conform of record or otherwise, in the Surviving Corporation
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Lightspan California
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 Lightspan California or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
B. AMENDMENT. At any time before or after approval by the shareholders
of Lightspan California, this Merger Agreement may be amended in any manner
(except that, after the approval of the Merger Agreement by the shareholders of
Lightspan California, the principal terms may not be amended without the further
approval of the shareholders of Lightspan California) as may be determined in
the judgment of the respective Board of Directors of Lightspan Delaware and
Lightspan California 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.
C. CONDITIONS TO MERGER. The obligation 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
Lightspan California in accordance with applicable provisions of the General
Corporation Law of the State of California; and
b. Lightspan California, as sole stockholder of Lightspan
Delaware, 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 Lightspan California to be material to
consummation of the Merger shall have been obtained.
D. ABANDONMENT OR DEFERRAL. At any time before the Effective Time, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either Lightspan California or Lightspan Delaware or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
Lightspan California or Lightspan Delaware or the prior filing of this Merger
Agreement with the Secretary of State of the State of Delaware, 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 Lightspan California and Lightspan
Delaware, such action would be in the best interest of such corporations. In the
event of termination of this Merger Agreement,
5
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 Lightspan California
shall pay all expenses incurred in connection with the Merger or in respect of
this Merger Agreement or relating thereto.
E. 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.
6
IN WITNESS WHEREOF, this Merger Agreement, having first been fully
approved by the Board of Directors of Lightspan California and Lightspan
Delaware, is hereby executed on behalf of each said corporation and attested by
their respective officers thereunto duly authorized.
THE LIGHTSPAN PARTNERSHIP, INC.,
a California corporation
By:________________________________
Xxxx Xxxxxx
Chief Executive Officer
ATTEST:
_________________________________________
Xxxxx X. XxXxxxx, Vice President Finance,
and Chief Financial Officer
THE LIGHTSPAN PARTNERSHIP, INC.,
a Delaware corporation
By:________________________________
Xxxx Xxxxxx
Chief Executive Officer
ATTEST:
_________________________________________
Xxxxx X. XxXxxxx, Vice President Finance,
and Chief Financial Officer
