Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into as of July 30, 2001 by and between xxxxxxxxxxx.xxx inc., a Michigan
corporation ("xxxxxxxxxxx.xxx"), and CoolSavings, Inc., a Delaware corporation
wholly-owned by xxxxxxxxxxx.xxx (the "Corporation"), pursuant to and in
accordance with the provisions of the General Corporation Law of the State of
Delaware (the "Delaware Act") and the Michigan Business Corporation Act (the
"Michigan Act", and collectively with the Delaware Act, the "Acts").
RECITALS:
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WHEREAS, the respective Board of Directors of xxxxxxxxxxx.xxx and the
Corporation have deemed it advisable and to the advantage of the corporations
and their respective stockholder(s) that xxxxxxxxxxx.xxx merge with and into the
Corporation upon the terms and conditions herein provided;
WHEREAS, xxxxxxxxxxx.xxx and the Corporation intend that the merger
contemplated hereby qualify as a tax-free reorganization within the meaning of
Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as amended;
WHEREAS, the respective Boards of Directors of xxxxxxxxxxx.xxx and the
Corporation have approved this Agreement;
WHEREAS, the respective Board of Directors of xxxxxxxxxxx.xxx and the
Corporation have directed that this Agreement be submitted to a vote of their
respective shareholder(s) entitled to vote thereon; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, xxxxxxxxxxx.xxx and the Corporation hereby agree to the merger of
xxxxxxxxxxx.xxx with and into the Corporation upon the terms and conditions set
forth in this Agreement:
1. CONSTITUENT CORPORATIONS
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a. The name and state of incorporation of each of the constituent
corporations involved in the Merger are as follows:
Name State of Incorporation
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xxxxxxxxxxx.xxx, inc. Michigan
CoolSavings, Inc. Delaware
b. The surviving corporation (the "Surviving Corporation") shall be
CoolSavings, Inc., a Delaware corporation.
2. CAPITAL STOCK
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a. xxxxxxxxxxx.xxx's authorized capital stock consists of (i) 100,000,000
shares of common stock, of which 39,063,660 shares are issued and outstanding,
all of which are entitled to vote (the "coolsavings Common Stock"), and (ii)
10,000,000 shares of preferred stock, of which no shares are issued and
outstanding. A portion of the shares of preferred stock have been divided into
series which currently consist of Series A Convertible Preferred Stock, Series B
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Convertible Preferred Stock and Series C Convertible Preferred Stock. Five
thousand (5,000) shares of preferred stock are designated Series A Preferred
Stock, of which no shares are currently outstanding, eight million six hundred
ninety-five thousand (8,695,000) shares of preferred stock are designated as
Series B Convertible Preferred Stock, of which no shares are issued and
outstanding, and one million three hundred thousand (1,300,000) shares are
designated as Series C Convertible Preferred Stock, of which no shares are
issued and outstanding. The shares of coolsavings Common Stock have all of the
rights, preferences and limitations of shares of common stock stated in the
Michigan Act. The rights, preferences, privileges and restrictions granted to
and imposed on the preferred shares are as set forth in xxxxxxxxxxx.xxx's
Articles of Incorporation, as amended.
b. The Corporation's authorized capital stock consists of (i) 379,000,000
shares of common stock, $0.001 par value, of which one share is issued and
outstanding, which share is entitled to vote (the "Corporation Common Stock"),
and (ii) 271,000,000 shares of preferred stock, $0.001 par value, of which no
shares are issued and outstanding. A portion of the shares of preferred stock
have been divided into series which currently consist of Series B Convertible
Preferred Stock and Series C Convertible Preferred Stock. Two hundred fifty
eight million (258,000,000) shares of preferred stock are designated as Series B
Convertible Preferred Stock, of which no shares are issued and outstanding, and
thirteen million (13,000,000) shares are designated as Series C Convertible
Preferred Stock, of which no shares are issued and outstanding. The shares of
the Corporation Common Stock have all of the rights, preferences and limitations
of shares of common stock stated in the Delaware Act. The rights, preferences,
privileges and restrictions granted to and imposed on the preferred shares are
as set forth in the Certificate of Incorporation of the Corporation attached
hereto as Exhibit A.
c. The number of authorized and outstanding shares of capital stock of
each of xxxxxxxxxxx.xxx and the Corporation, as set forth in paragraphs (a) and
(b) above, will not change prior to the Effective Date (defined below).
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3. TERMS AND EFFECT OF MERGER
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a. At the Effective Date, xxxxxxxxxxx.xxx shall be merged with and into
the Corporation, and the Corporation shall survive the Merger, all in accordance
with the terms of this Agreement and the provisions of the Delaware Act and the
Michigan Act (the "Merger"). As soon as practicable after the shareholders of
xxxxxxxxxxx.xxx and the Corporation shall have approved the Merger in accordance
with the terms of this Agreement, an appropriate Certificate of Merger shall be
executed by each party hereto and delivered for filing with each of the Delaware
Secretary of State and the Department of Consumer and Industry Services of the
State of Michigan.
b. The Merger shall become effective at such time as the Certificates of
Merger are duly filed with the Department of Consumer and Industry Services of
the State of Michigan and the Secretary of State of Delaware, as applicable, or
at such other time as is permissible in accordance with the Delaware Act and the
Michigan Act and the parties shall agree and as set forth in the Certificates of
Merger (the "Effective Date").
c. The Merger shall have the effects set forth in each of the Delaware Act
and the Michigan Act. Without limiting the generality of the foregoing, at and
after the Effective Date, the Surviving Corporation that shall possess all of
the rights, privileges, immunities and franchises of a public and private nature
of xxxxxxxxxxx.xxx; all assets and liabilities of xxxxxxxxxxx.xxx (including,
without limitation, the liabilities of xxxxxxxxxxx.xxx to each of Landmark
Communications, Inc., American National Bank and Trust Company of Chicago and
Midwest Guaranty Bank under the respective agreements between xxxxxxxxxxx.xxx
and such creditors) shall become assets and liabilities of the Surviving
Corporation; and any and all property, real, personal and mixed, and any and all
debts owing to xxxxxxxxxxx.xxx on whatever account, and all other choses in
action, and all and every other interest (including, without limitation, all
contract rights) of xxxxxxxxxxx.xxx shall transferred to and vested in the
Surviving Corporation without further act or deed; and the title to any real
property, or any interest therein, vested in any of such corporations shall not
prevent or be in any way impaired by reason of the Merger.
d. In connection with the assignment to and assumption by the Surviving
Corporation of any agreements of xxxxxxxxxxx.xxx relating to the capital stock
of xxxxxxxxxxx.xxx, the parties agree that any provisions therein relating to
any shareholder's ownership or voting of, or to the shareholder's status as a
holder of, coolsavings Common Stock shall be deemed to be amended to refer, as
applicable, to the shareholder's ownership or voting of, or to the shareholder's
status as a holder of, Corporation Common Stock.
e. If at any time after the Effective Date any further action is necessary
or desirable to carry out the purposes of this Agreement or to vest in the
Surviving Corporation the full right, title and possession to all assets,
property, rights, privileges, immunities, powers and franchises of
xxxxxxxxxxx.xxx, the officers and directors of the Surviving Corporation are
fully authorized in the name of either or both of xxxxxxxxxxx.xxx and the
Corporation to take any and all such action.
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4. MANNER OF CONVERTING SECURITIES OF THE CONSTITUENT CORPORATIONS.
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a. At the Effective Date, each share of coolsavings Common Stock issued
and outstanding immediately prior to the Effective Date shall, by virtue of the
Merger and without any action on the part of the holders thereof, cease to be an
issued and outstanding share of coolsavings Common Stock and shall automatically
be converted into one (1) fully-paid and non-assessable share of Corporation
Common Stock.
b. At the Effective Date, all obligations of xxxxxxxxxxx.xxx to holders of
stock options awarded pursuant to the xxxxxxxxxxx.xxx Second Amended and
Restated 1997 Option Plan and the 1999 Non-Employee Director Stock Option Plan
and any warrants (including, without limitation, the Warrant issued to Landmark
Communications, Inc. dated July 30, 2001) and notes outstanding shall be binding
on the Surviving Corporation. Except as provided in Section 4(c) below, (i)
stock options and warrants to purchase shares of coolsavings Common Stock shall
automatically be converted into options and warrants to purchase the same number
of shares of Corporation Common Stock, and (ii) notes convertible into shares of
coolsavings Common Stock will be converted into notes convertible into shares of
Corporation Common Stock.
c. At the Effective Date, the promissory notes and warrants to purchase
shares of coolsavings Common Stock issued in connection with xxxxxxxxxxx.xxx's
2001 Subordinated Note Transaction shall be converted into shares of Series C
Convertible Preferred Stock of the Surviving Corporation pursuant to the terms
of that certain Securities Purchase Agreement among xxxxxxxxxxx.xxx, Landmark
Communications, Inc. and Landmark Ventures VII, L.L.C. (collectively,
"Landmark").
d. At the Effective Date, the share of Corporation Common Stock issued and
outstanding immediately prior to the Effective Date shall, by virtue of the
Merger and without any action on the part of the holder thereof, cease to be an
issued and outstanding share of Corporation Common Stock and shall be
surrendered to the Corporation for cancellation and canceled, and no additional
shares of Corporation Common Stock or any other consideration shall be issued or
paid therefor.
5. CERTIFICATE, BYLAWS, OFFICERS AND DIRECTORS
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a. From and after the Effective Date and until thereafter amended, the
Certificate of Incorporation and Bylaws of the Corporation in effect on the
Effective Date shall be the Certificate of Incorporation and Bylaws of the
Surviving Corporation.
b. From and after the Effective Date, the officers, directors and
committees of directors of xxxxxxxxxxx.xxx on the Effective Date shall be the
officers, directors and committees of directors of the Surviving Corporation and
shall continue to hold office from and after the Effective Date until their
successors have been duly elected or appointed and qualified, subject to
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the provisions of the Certificate of Incorporation and Bylaws of the Surviving
Corporation (including, without limitation, the right of the holders of the
Corporation's Series B Convertible Preferred Stock to designate and elect
directors provided for therein).
6. EXCHANGE OF CERTIFICATES
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a. At the Effective Date,
(i) each certificate representing shares of coolsavings Common Stock
shall be exchanged for certificates representing the appropriate number of
shares of Corporation Common Stock, and
(ii) except as described in Section 4(c) above, each warrant agreement
representing warrants to purchase and each promissory note convertible into
coolsavings Common Stock shall be exchanged for, respectively, warrant
agreements to purchase and promissory notes convertible into Corporation Common
Stock.
Promptly upon such exchange, xxxxxxxxxxx.xxx shall cause to be canceled and
retire each such certificate representing shares of coolsavings Common Stock and
each such warrant agreement and promissory note of xxxxxxxxxxx.xxx described
above. Until so exchanged, canceled and retired, each such certificate, warrant
agreement and promissory note, upon and after the Effective Date, shall be
deemed for all purposes, other than the payment of dividends or other
distributions, if any, to stockholders, to represent the number of shares
subject to the securities of xxxxxxxxxxx.xxx represented thereby.
b. In the event any certificates, warrant agreements or promissory notes
shall have been lost, stolen or destroyed, the Surviving Corporation shall issue
in exchange for such lost, stolen or destroyed certificates, warrant agreements
or promissory notes, upon the making of an affidavit of that fact and an
indemnity by the holder thereof, such securities of the Surviving Corporation as
may be required pursuant to Section 4 above.
7. MISCELLANEOUS
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a. Appointment of Agent. The Corporation hereby consents to service of
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process in the State of Michigan in any action or special proceeding of the
enforcement of any liability or obligation of xxxxxxxxxxx.xxx, and hereby
irrevocably appoints the Secretary of State of Michigan as its agent to accept
service of process in any action or special proceeding for the enforcement of
any such liability or obligation. The address to which a copy of such process
shall be mailed by the Secretary of State of Michigan to the Corporation is: 000
X. Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
b. Amendment. This Agreement may be amended or modified at any time by
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mutual written agreement of the parties (i) in any respect prior to the approval
hereof by the shareholders of xxxxxxxxxxx.xxx and the Corporation entitled to
vote hereon, and (ii) in any respect
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subsequent to such approval, provided that any such amendment or modification
subsequent to such approval shall not (A) change the method of exchanging the
issued and outstanding shares of coolsavings Common Stock into shares of the
Corporation Common, or (B) change any provision of the Certificate of
Incorporation of the Surviving Corporation that would require the approval of
its shareholders.
8. COPIES OF THIS AGREEMENT
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An original, executed copy of this Agreement shall remain on file at the
Surviving Corporation's principal place of business, the address of which is 000
X. Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, XX 00000 and upon request and without
cost, the Surviving Corporation shall furnish a copy thereof to any stockholder
of xxxxxxxxxxx.xxx or the Corporation.
9. MERGER PERMITTED UNDER DELAWARE AND MICHIGAN LAW
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This Merger is permitted under, and shall be effectuated in accordance
with, the laws of the States of Delaware and Michigan.
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IN WITNESS WHEREOF, each of the undersigned, pursuant to authority
granted by their respective Boards of Directors, has caused this Agreement and
Plan of Merger to be executed as of July 30, 2001.
XXXXXXXXXXX.XXX INC., a Michigan
corporation
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: President
COOLSAVINGS, INC., a Delaware
corporation
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: President & CEO
Signed at 6:00 pm EST
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