EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF FLYCAST COMMUNICATIONS CORPORATION,
A DELAWARE CORPORATION,
AND
FLYCAST COMMUNICATIONS CORPORATION,
A CALIFORNIA CORPORATION
This Agreement and Plan of Merger dated as of March __, 1999 (the
"Agreement") is between Flycast Communications Corporation, a California
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corporation ("Flycast-California"), and Flycast Communications Corporation, a
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Delaware corporation ("Flycast-Delaware"). Flycast-Delaware and Flycast-
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California are sometimes referred to in this Agreement as the "Constituent
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Corporations."
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RECITALS
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A. Flycast-Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital of
29,904,000 shares, 20,000,000 of which are designated "Common Stock," $0.0001
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par value, and 9,904,000 of which are designated "Preferred Stock," $0.0001 par
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value. The authorized Preferred Stock is divided into series, 920,000 shares of
which are designated Series A Preferred Stock, 5,500,000 shares of which are
designated Series B Preferred Stock, and 3,484,000 shares of which are
designated Series C Preferred Stock. As of the date hereof, 100 shares of
Flycast-Delaware Common Stock were issued and outstanding, all of which are held
by Flycast-California, and no shares of Preferred Stock were issued and
outstanding.
B. Flycast-California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
29,904,000 shares, 20,000,000 of which are designated "Common Stock," $0.0001
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par value, and 9,904,000 of which are designated "Preferred Stock," $0.0001 par
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value. The authorized Preferred Stock is divided into series, 920,000 shares of
which are designated Series A Preferred Stock, 5,500,000 shares of which are
designated Series B Preferred Stock, and 3,484,000 shares of which are
designated Series C Preferred Stock. As of the date hereof, 2,663,837 shares
of Common Stock were issued and outstanding, 911,295 shares of Series A
Preferred Stock were issued and outstanding, 5,329,043 shares of Series B
Preferred Stock were issued and outstanding and 1,996,344 shares of Series C
Preferred Stock were issued and outstanding.
C. The Board of Directors of Flycast-California has determined that,
for the purpose of effecting the reincorporation of Flycast-California in the
State of Delaware, it is advisable and in the best interests of Flycast-
California that Flycast-California merge with and into Flycast-Delaware upon the
terms and conditions provided in this Agreement.
D. The respective Boards of Directors of Flycast-Delaware and
Flycast-California have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective stockholders and executed
by the undersigned officers.
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AGREEMENT
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In consideration of the mutual agreements and covenants set forth
herein, Flycast-Delaware and Flycast-California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
1. MERGER.
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1.1 MERGER. In accordance with the provisions of this Agreement,
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the Delaware General Corporation Law and the California General Corporation Law,
Flycast-California shall be merged with and into Flycast-Delaware (the
"Merger"), the separate existence of Flycast-California shall cease and Flycast-
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Delaware shall be, and is sometimes referred to below as, the "Surviving
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Corporation," and the name of the Surviving Corporation shall be Flycast
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Communications Corporation.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective upon
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completion of the following actions:
(a) Adoption and approval of this Agreement and the Merger by the
stockholders of each Constituent Corporation in accordance with the applicable
requirements of the Delaware General Corporation Law and the California General
Corporation Law;
(b) The satisfaction or waiver of all of the conditions precedent
to the consummation of the Merger as specified in this Agreement; and
(c) The filing with the Secretary of State of Delaware of an
executed Certificate of Merger or an executed counterpart of this Agreement
meeting the requirements of the Delaware General Corporation Law.
The date and time when the Merger becomes effective is referred to in
this Agreement as the "Effective Date of the Merger."
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1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
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separate existence of Flycast-California shall cease and Flycast-Delaware, as
the Surviving Corporation, (a) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date of the Merger, (b) shall be subject to all actions previously taken by its
and Flycast-California's Board of Directors, (c) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Flycast-
California in the manner more fully set forth in Section 259 of the Delaware
General Corporation Law, (d) shall continue to be subject to all of the debts,
liabilities and obligations of Flycast-Delaware as constituted immediately prior
to the Effective Date of the Merger, and (e) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of Flycast-California
in the same manner as if Flycast-Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the Delaware General
Corporation Law and the California General Corporation Law.
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2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
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2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
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of Flycast-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of Flycast-Delaware as in effect immediately
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prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of Flycast-
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Delaware immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their successors shall
have been duly elected and qualified or as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
3. MANNER OF CONVERSION OF STOCK
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3.1 FLYCAST-CALIFORNIA COMMON STOCK. Upon the Effective Date of the
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Merger, each one share of Flycast-California Common Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such share or any other person,
be converted into and exchanged for one fully paid and nonassessable share of
Common Stock, $0.0001 par value, of the Surviving Corporation. No fractional
share interests of the Surviving Corporation shall be issued. Any fractional
share interests to which a holder would otherwise be entitled shall be
aggregated so that no Flycast-California shareholder shall receive cash in an
amount greater than the value of one (1) full share of Flycast-Delaware Common
Stock.
3.2 FLYCAST-CALIFORNIA PREFERRED STOCK. Upon the Effective Date of
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the Merger, each share of Flycast-California Series A Preferred Stock, Series B
Preferred Stock and Series C Preferred Stock issued and outstanding immediately
prior thereto, which shares are convertible into such number of shares of
Flycast-California Common Stock as set forth in the Flycast-California Articles
of Incorporation, as amended, shall, by virtue of the Merger and without any
action by the Constituent Corporations, the holder of such shares or any other
person, be converted into and exchanged for one fully paid and non-assessable
share of Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock of the Surviving Corporation, $0.0001 par value, respectively,
having such rights, preferences and privileges as set forth in the Certification
of Incorporation of the Surviving Corporation, which shares of Preferred Stock
shall be convertible into the same number of shares of the Surviving
Corporation's Common Stock, $0.0001 par value as such share of Flycast-
California Preferred Stock was convertible into shares of Flycast-California
common stock immediately prior to the Effective Date of the Merger, subject to
adjustment pursuant to the terms of the Certificate of Incorporation of the
Surviving Corporation.
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3.3 FLYCAST-CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
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SECURITIES.
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(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Flycast-California under Flycast-
California's Amended and Restated Investors' Rights Agreement, dated December
30, 1998, 1997 Stock Option Plan, 1999 Stock Option Plan, 1999 Employee Stock
Purchase Plan and 1999 Directors' Stock Option Plan and all other employee
benefit plans of Flycast-California. Each outstanding and unexercised option,
other right to purchase, or security convertible into, Flycast-California Common
Stock or Preferred Stock (a "Right") shall become, subject to the provisions in
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paragraph (c) hereof, an option, right to purchase, or a security convertible
into the Surviving Corporation's Common Stock or Preferred Stock, respectively,
on the basis of one share of the Surviving Corporation's Common Stock or
Preferred Stock, as the case may be, for each one share of Flycast-California
Common Stock or Preferred Stock, issuable pursuant to any such Right, on the
same terms and conditions and at an exercise price equal to the exercise price
applicable to any such Flycast-California Right at the Effective Date of the
Merger. This paragraph 3.3(a) shall not apply to Flycast-California Common Stock
or Preferred Stock. Such Common Stock and Preferred Stock are subject to
paragraph 3.1 and 3.2 hereof, respectively.
(b) A number of shares of the Surviving Corporation's Common
Stock and Preferred Stock shall be reserved for issuance upon the exercise or
conversion of Rights equal to the number of shares of Flycast-California Common
Stock and Preferred Stock so reserved immediately prior to the Effective Date of
the Merger.
(c) The assumed Rights shall not entitle any holder thereof to a
fractional share upon exercise or conversion unless the holder was entitled to a
fractional interest immediately prior to the Merger. In lieu thereof, any
fractional share interests to which a holder of an assumed Right (other than an
option issued pursuant to Flycast-Delaware's 1997 Stock Option Plan, 1999 Stock
Option Plan or 1999 Directors' Stock Option Plan) would otherwise be entitled
upon exercise or conversion shall be aggregated (but only with other similar
Rights which have the same per share terms). To the extent that after such
aggregation, the holder would still be entitled to a fractional share with
respect thereto upon exercise or conversion, the holder shall be entitled upon
the exercise or conversion of all such assumed Rights pursuant to their terms
(as modified herein), to one full share of Common Stock or Preferred Stock in
lieu of such fractional share. With respect to each class of such similar
Rights, no holder will be entitled to more than one full share in lieu of a
fractional share upon exercise or conversion.
Notwithstanding the foregoing, with respect to options issued under
the Flycast-California 1997 Stock Option Plan or 1999 Stock Option Plan that are
assumed in the Merger, the number of shares of Common Stock to which the holder
would be otherwise entitled upon exercise of each such assumed option following
the Merger shall be rounded down to the nearest whole number and the exercise
price shall be rounded up to the nearest whole cent. In addition, no
"additional benefits" (within the meaning of Section 424(a)(2) of the Internal
Revenue Code of 1986, as amended) shall be accorded to the optionees pursuant to
the assumption of their options.
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3.4 FLYCAST-DELAWARE COMMON STOCK. Upon the Effective Date of the
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Merger, each share of Common Stock, $0.0001 par value, of Flycast-Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by Flycast-Delaware, the holder of such shares or any
other person, be canceled and returned to the status of authorized but unissued
shares.
3.5 EXCHANGE OF CERTIFICATES. After the Effective Date of the
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Merger, each holder of an outstanding certificate representing shares of
Flycast-California Common Stock or Preferred Stock may be asked to surrender the
same for cancellation to an exchange agent, whose name will be delivered to
holders prior to any requested exchange (the "Exchange Agent"), and each such
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holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the appropriate class and
series of the Surviving Corporation's capital stock into which the surrendered
shares were converted as herein provided. Until so surrendered, each
outstanding certificate theretofore representing shares of Flycast-California
capital stock shall be deemed for all purposes to represent the number of whole
shares of the appropriate class and series of the Surviving Corporation's
capital stock into which such shares of Flycast-California capital stock were
converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of capital stock of
the Surviving Corporation represented by such outstanding certificate as
provided above.
Each certificate representing capital stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transferability as the certificates of Flycast-
California so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws.
If any certificate for shares of Surviving Corporation's stock is to
be issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and comply with
applicable securities laws and that the person requesting such transfer pay to
the Exchange Agent any transfer or other taxes payable by reason of the issuance
of such new certificate in a name other than that of the registered holder of
the certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
4. GENERAL
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4.1 COVENANTS OF FLYCAST-DELAWARE. Flycast-Delaware covenants and
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agrees that it will, on or before the Effective Date of the Merger:
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(a) Qualify to do business as a foreign corporation in the State of
California and irrevocably appoint an agent for service of process as required
under the provisions of Section 2105 of the California General Corporation Law.
(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by Flycast-Delaware of all of the franchise
tax liabilities of Flycast-California; and
(c) Take such other actions as may be required by the California
General Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
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Flycast-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Flycast-California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other actions,
as shall be appropriate or necessary in order to vest or perfect in or conform
of record or otherwise by Flycast-Delaware the title to and possession of all
the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of Flycast-California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of Flycast-Delaware
are fully authorized in the name and on behalf Flycast-California or otherwise
to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the
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Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Flycast-California or
Flycast-Delaware, or both, notwithstanding the approval of this Agreement by the
shareholders of Flycast-California or by the sole stockholder of Flycast-
Delaware, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
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may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholders of either Constituent Corporation shall not: (a)
alter or change the amount or kind of shares, securities, cash, property and/or
rights to be received in exchange for or on conversion of all or any of the
shares of any class or series thereof of such Constituent Corporation, (b) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (c) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class of shares or series of capital stock
of such Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
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Corporation in the State of Delaware is located at The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, and The Corporation
Trust Company is the registered agent of the Surviving Corporation at such
address.
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4.6 FIRPTA NOTIFICATION.
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(a) On the Effective Date of the Merger, Flycast-California shall
deliver to Flycast-Delaware, as agent for the shareholders of Flycast-
California, a properly executed statement (the "Statement") in substantially the
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form attached hereto as Exhibit A. Flycast-Delaware shall retain the Statement
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for a period of not less than seven years and shall, upon request, provide a
copy thereof to any person that was a shareholder of Flycast-California
immediately prior to the Merger. In consequence of the approval of the Merger
by the shareholders of Flycast-California, (i) such shareholders shall be
considered to have requested that the Statement be delivered to Flycast-Delaware
as their agent and (ii) Flycast-Delaware shall be considered to have received a
copy of the Statement at the request of Flycast-California shareholders for
purposes of satisfying Flycast-Delaware's obligations under Treasury Regulation
Section 1.1445-2(c)(3).
(b) Flycast-California shall deliver to the Internal Revenue
Service a notice regarding the Statement in accordance with the requirements of
Treasury Regulation Section 1.897-2(h)(2).
4.7 AGREEMENT. Executed copies of this Agreement will be on file at
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the principal place of business of the Surviving Corporation at Flycast
Communications Corporation, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 and copies thereof will be furnished to any stockholder of
either Constituent Corporation, upon request and without cost.
4.8 GOVERNING LAW; JURISDICTION. This Agreement and all acts and
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transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts of
law. Each of the parties to this Agreement consents to the exclusive
jurisdiction and venue of the courts of the state and federal courts of San
Francisco County, California.
4.9 COUNTERPARTS. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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The undersigned authorized representatives of the Constituent
Corporation have executed and acknowledged this Agreement as of the date first
set forth above.
Flycast Communications Corporation, a
Delaware corporation
___________________________________
Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer
Flycast Communications Corporation, a
California corporation
___________________________________
Xxxxxx X. Xxxxxxx,
President and Chief Executive Officer
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EXHIBIT A -- FORM OF FIRPTA CERTIFICATE
March __, 1999
Assistant Commissioner (International)
Director, Office of Compliance
OP:I:C:E:666
000 X'Xxxxxx Xxxxx Xxxxx, X.X.
COMSAT Building
Washington, D.C. 20024
NOTICE TO THE INTERNAL REVENUE SERVICE OF FLYCAST COMMUNICATIONS
CORPORATION, UNITED STATES REAL PROPERTY HOLDING CORPORATION STATUS UNDER
TREASURY REGULATION 1..897-2(H)(2)
Dear Sir:
1. This Notice is being filed by Flycast Communications Corporation, a
California Corporation, ("Target") pursuant to section 1.897-2(h)(2) of the
Treasury Regulations promulgated under the Internal Revenue Code of 1986, as
amended (the "Code").
2. The undersigned, on behalf of Target hereby declares that stock of
Target is not a United States real property interest within the meaning of
section 897 of the Code because Target is not and has not been a United States
real property holding corporation as that term is defined in section 897(c) (2)
of the Code during the applicable period specified in section 897(c) (1) (A)
(ii) of the Code.
3. Target's United States taxpayer identifying number is: 00-0000000
4. Target's address is:
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
5. In connection with the acquisition of Target by Flycast Communications
Corporation, a Delaware Corporation ("Acquiror"), the undersigned provided the
attached statement to Acquiror declaring that an interest in Target is not a
United States real property interest. The statement was voluntarily provided in
response to a request from the transferee, Acquiror under Regulation 1.1445-2(c)
(3) (i).
Acquiror's United States taxpayer identifying number is: 00-0000000
Acquiror's address is:
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
6. No supplemental statements pursuant to Treasury Regulations section
1.897-2(h) (5) are required to be filed herewith.
7. Under penalties of perjury the undersigned declares that he has
examined this certification, and the attachment hereto, and to the best of his
knowledge and belief they are true, correct and complete. The undersigned
further declares that he is a responsible officer and that he has authority to
sign this document on behalf of Target.
A copy of the statement provided pursuant to Treasury Regulation
(S)(S)1.897-2(h)(2) and 1.1445-2(c)(3)(i) is attached.
Flycast Communications Corporation,
a California Corporation
___________________________
Xxxxxx X. Xxxxxxx, President and Chief
Executive Officer
NOTICE OF NON U.S. REAL PROPERTY HOLDING CORPORATIONS STATUS
PURSUANT TO TREASURY REGULATION SECTION 1.897-2(H) AND
CERTIFICATION OF NON-FOREIGN STATUS
Pursuant to a certain Agreement and Plan of Merger (the "Agreement"), dated
as of March __ 1999, among Flycast Communications Corporation, a California
corporation ("Flycast California") and Flycast Communications Corporation, a
Delaware corporation ("Flycast Delaware"), Flycast California will be merged
with and into Flycast Delaware, with Flycast Delaware being the surviving
corporation. In completing such merger, Flycast Delaware will receive all of the
outstanding shares of Flycast California capital stock ("Flycast California
Capital Stock") in exchange for the consideration provided for in such
Agreement.
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"),
provides that a transferee of a U.S. Real Property Interest must withhold tax if
the transferor is a foreign person. In order to confirm that Flycast Delaware,
as a transferee, is not required to withhold tax upon the receipt of Flycast
California Capital Stock in exchange for the consideration for such shares of
Flycast California Capital Stock, the undersigned, in his capacity as Secretary
of Flycast California, hereby certifies as follows:
1. The Flycast California Capital Stock to be received by Flycast
Delaware pursuant to the Agreement does not constitute a U.S. Real Property
Interest as that term is defined in Section 897(c)(1)(A)(ii) of the Code;
2. The determination in Paragraph 1 above is based on a determination by
Flycast California that Flycast California is not and has not been a U.S. Real
Property Holding Corporation as that term is defined in Section 897(c)(2) of the
code during the five (5) year period preceding the date of this Notice, as
indicated below;
3. Flycast California is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations);
4. Flycast California's U.S. taxpayer identification number is 77-
0431028; and
5. Flycast California's office address is 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxxxxxx, XX 00000.
This Notice is made in accordance with the requirements of Treasury
Regulation Section 1.897-2(h). Flycast California understands that any false
statement contained herein could be punished by fine, imprisonment or both.
Under penalties of perjury, I declare that I have examined this Notice and
to the best of my knowledge and belief it is true, correct and complete, and I
further declare that I have authority to sign this document on behalf of Flycast
California.
Flycast Communications Corporation, a
California corporation
_____________________________________
Dated: March ___, 1999 Xxxxxxx X. Xxxx
Secretary
Flycast Communications Corporation
A California Corporation
OFFICERS' CERTIFICATE OF APPROVAL OF THE MERGER
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx certify that:
1. They are the President and Chief Executive Officer and the Secretary,
respectively, of Flycast Communications Corporation, a corporation organized
under the laws of the State of California.
2. The corporation has authorized two classes of stock, designated
"Common Stock" and "Preferred Stock," respectively.
3. There were 2,663,837 shares of Common Stock and 8,236,682 shares of
Preferred Stock outstanding as of the record date (the "Record Date") and
entitled to vote by written consent of the shareholders whereby the Agreement
and Plan of Merger attached hereto (the "Merger Agreement") was approved.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class and series of
stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the outstanding
shares of Common Stock and more than 50% of the outstanding shares of Preferred
Stock, voting as separate classes.
Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx further declare under penalty of
perjury under the laws of the States of California and Delaware that each has
read the foregoing certificate and knows the contents thereof and that the same
is true and correct of his own knowledge.
Executed in Menlo Park, California on March __, 1999.
_______________________________________
Xxxxxx X. Xxxxxxx, President and
Chief Executive Officer
_______________________________________
Xxxxxxx X. Xxxx, Secretary
