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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
dated as of
January 19, 2000
between
XXXXXX.XXX, INC.
and
INTERNET PICTURES CORPORATION
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PAGE
TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions......................................................................1
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger.......................................................................1
SECTION 2.02. Cancellation of Shares...........................................................2
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation.....................................................2
SECTION 3.02. By-Laws..........................................................................2
SECTION 3.03. Directors and Officers...........................................................2
SECTION 3.04. Name of the Surviving Corporation................................................2
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Amendments; No Waivers...........................................................2
SECTION 4.02. Expenses.........................................................................3
SECTION 4.03. Successors and Assigns...........................................................3
SECTION 4.04. Governing Law....................................................................3
SECTION 4.05. Counterparts; Effectiveness......................................................3
SECTION 4.06. Entire Agreement.................................................................3
SECTION 4.07. Severability.....................................................................3
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January 19, 2000 between
xxxxxx.xxx, Inc., a Delaware corporation ("PARENT"), and Internet Pictures
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("SUBSIDIARY").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"DELAWARE LAW" means the General Corporation Law of the State of
Delaware.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"SUBSIDIARY STOCK" means the common stock, par value $0.001 per share,
of Subsidiary; Parent is owner of record of 100% of the outstanding Subsidiary
Stock, the Subsidiary Stock being the only stock of Subsidiary outstanding.
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger. (a) On the Effective Date (as defined below),
Subsidiary shall be merged (the "MERGER") with and into Parent in accordance
with Delaware Law, whereupon the separate existence of Subsidiary shall cease,
and Parent shall be the surviving corporation (the "SURVIVING CORPORATION").
(b) As soon as practicable after the execution of this Agreement,
Parent and Subsidiary will file a certificate of merger with the Secretary of
State of the State of Delaware and make all other filings or recordings required
by Delaware Law in connection with the Merger. The Merger shall become effective
at such time (the "EFFECTIVE DATE") as the certificate of merger is duly filed
with the
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Secretary of State of the State of Delaware (or at such later time as may be
specified in the certificate of merger).
(c) From and after the Effective Date, the Surviving Corporation shall
possess all the rights, powers, privileges and franchises and be subject to all
of the obligations, liabilities, restrictions and disabilities of Parent and
Subsidiary, all as provided under Delaware Law.
SECTION 2.02. Cancellation of Shares. As of the Effective Date, each
share of Subsidiary Stock shall be surrendered and cancelled. No shares of stock
of Parent or other consideration shall be issued in exchange therefore.
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation. The certificate of
incorporation of Parent shall be the certificate of incorporation of the
Surviving Corporation.
SECTION 3.02. By-Laws. The By-Laws of Parent in effect on the Effective
Date shall be the By-Laws of the Surviving Corporation until amended in
accordance with applicable law.
SECTION 3.03. Directors and Officers. From and after the Effective
Date, until successors are duly elected or appointed and qualified in accordance
with applicable law, (i) the directors of Parent as of the Effective Date shall
be the directors of the Surviving Corporation and (ii) the officers of Parent as
of the Effective Date shall be the officers of the Surviving Corporation.
SECTION 3.04. Name of the Surviving Corporation. From and after the
Effective Date, pursuant to Section 253 of the Delaware Law, the name of the
Surviving Corporation shall be "Internet Pictures Corporation."
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Effective Date if, but only if,
such amendment or waiver is in writing and is signed, in the case of an
amendment, by each party to this Agreement or, in the case of a waiver, by each
party against whom the waiver is to be effective.
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(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 4.02. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by Parent.
SECTION 4.03. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the prior written consent of the other parties hereto.
SECTION 4.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
SECTION 4.05. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
SECTION 4.06. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter of this Agreement
and supersedes all prior agreements and understandings, both oral and written,
among the parties with respect to the subject matter of this Agreement.
SECTION 4.07. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Upon such a determination, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby
shall be consummated as originally contemplated to the fullest extent possible.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX.XXX, INC.
By:
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Name:
Title:
INTERNET PICTURES CORPORATION
By:
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Name:
Title:
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