EXHIBIT 2.01
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Merger Agreement") is made as
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of [JANUARY] ___, 1997 by and between ONSALE, a California corporation ("ONSALE
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California"), and ONSALE, Inc., a Delaware corporation ("ONSALE Delaware").
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ONSALE California and ONSALE Delaware are hereinafter sometimes collectively
referred to as the "Constituent Corporations."
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R E C I T A L S
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A. ONSALE California was incorporated on July 21, 1994. Its current
authorized capital stock consists of: (1) 8,000,000 shares of Common Stock, no
par value ("ONSALE California Common Stock"), of which 12,143,757 shares are
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issued and outstanding, and (2) 850,000 shares of Preferred Stock no par value
("ONSALE California Preferred Stock"), including (a) 600,000 shares of Series A
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Preferred Stock ("ONSALE California Series A Stock"), of which 365,191 shares
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are issued and outstanding, (b) 204,521 shares of Series B Preferred Stock
("ONSALE California Series B Stock"), of which no shares are issued and
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outstanding and (c) 45,479 shares of Preferred Stock which are undesignated.
B. ONSALE Delaware was incorporated on December 12, 1996. Its
authorized capital stock consists of: (1) 30,000,000 shares of Common Stock,
with a par value of $0.001 per share ("ONSALE Delaware Common Stock"), of which
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1,000 shares are issued and outstanding; and (2) 2,000,000 shares of Preferred
Stock, $0.001 par value ("ONSALE Delaware Preferred Stock") of which (a) 365,191
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shares have been designated Series A Preferred Stock ("ONSALE Delaware Series A
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Stock"), none of which shares are issued and outstanding, (b) 202,910 shares
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have been designated Series B Preferred Stock ("ONSALE Delaware Series B
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Stock"), none of which shares are issued and outstanding.
C. The Boards of Directors of ONSALE California and ONSALE Delaware
deem it advisable and to the advantage of each of the Constituent Corporations
that ONSALE California merge with and into ONSALE Delaware upon the terms and
subject to the conditions set forth in this Merger Agreement for the purpose of
effecting a change of the state of incorporation of ONSALE California from
California to Delaware.
D. The Boards of Directors of each of the Constituent Corporations
have approved this Merger Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
set forth in this Merger Agreement and do hereby agree that ONSALE California
shall merge with and into ONSALE Delaware on the following terms, conditions and
other provisions:
1. MERGER AND EFFECTIVE DATE. On the Effective Date (as defined
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below), ONSALE California shall be merged with and into ONSALE Delaware (the
"Merger"), and ONSALE Delaware shall be the surviving corporation of the Merger
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(the "Surviving Corporation"). The Merger shall become effective upon the close
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of business on the date when a duly executed copy of this Merger Agreement,
along with all required officers' certificates, is filed with the Secretary of
State of the State of Delaware (the "Effective Date").
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2. EFFECT OF MERGER. On the Effective Date, the separate corporate
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existence of ONSALE California shall cease; the corporate identity, existence,
powers, rights and immunities of ONSALE Delaware as the Surviving Corporation
shall continue unimpaired by the Merger; and ONSALE Delaware shall succeed to
and shall possess all the assets, properties, rights, privileges, powers,
franchises, immunities and purposes, and be subject to all the debts,
liabilities, obligations, restrictions and duties of ONSALE California, all
without further act or deed.
3. GOVERNING DOCUMENTS. On the Effective Date, the Certificate of
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Incorporation of ONSALE Delaware in effect immediately prior to the Effective
Date shall become the Certificate of Incorporation of the Surviving Corporation
and the Bylaws of ONSALE Delaware in effect immediately prior to the Effective
Date shall become the Bylaws of the Surviving Corporation.
4. DIRECTORS AND OFFICERS. On the Effective Date, the directors and
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officers of ONSALE Delaware shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation, and after
the Effective Date shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. SHARES OF ONSALE CALIFORNIA. On the Effective Date, each share of
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ONSALE California Common Stock outstanding immediately prior thereto shall be
automatically changed and converted into one (1) fully paid and nonassessable,
issued and outstanding share of ONSALE Delaware Common Stock. On the Effective
Date, each share of ONSALE California Series A Stock outstanding immediately
prior thereto shall be automatically changed and converted into one (1) fully
paid and nonassessable, issued and outstanding share of ONSALE Delaware Series A
Stock, and each share of ONSALE California Series B Stock outstanding
immediately prior thereto shall be automatically changed and converted into one
(1) fully paid and nonassessable, issued and outstanding share of ONSALE
Delaware Series B Stock.
6. SHARES OF ONSALE DELAWARE. On the Effective Date, all of the
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previously issued and outstanding shares of ONSALE Delaware Common Stock shall
be automatically retired and canceled.
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7. STOCK CERTIFICATES. On and after the Effective Date, all of the
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outstanding certificates that, prior to that date, represented shares of ONSALE
California Common Stock shall be deemed for all purposes to evidence ownership
of and to represent the number of shares of ONSALE Delaware Common Stock into
which such shares of ONSALE California Common Stock are converted as provided
herein. On and after the Effective Date, all of the outstanding certificates,
if any, that, prior to that date, represented shares of ONSALE California Series
A Stock or Series B Stock shall be deemed for all purposes to evidence ownership
of and to represent the number of shares of ONSALE Delaware Series A Stock or
Series B Stock, respectively, into which such shares of ONSALE California Series
A Stock or Series B Stock are converted as provided herein. The registered
owner on the books and records of ONSALE California of any such outstanding
stock certificate for ONSALE California Common Stock or ONSALE California Series
A Stock or Series B Stock shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to ONSALE Delaware or its
transfer agent, be entitled to exercise any voting and other rights with respect
to, and to receive any dividend and other distributions upon, the shares of
ONSALE Delaware Common Stock or ONSALE Delaware Series A Stock or Series B
Stock, respectively, evidenced by such outstanding certificate as above
provided.
8. OPTIONS; WARRANTS. Upon the Effective Date, under the terms
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thereof, all outstanding and unexercised portions of all options to purchase
ONSALE California Common Stock under the ONSALE California 1995 Equity Incentive
Plan, as amended on December __, 1996, and all other outstanding options or
warrants to purchase ONSALE California Common Stock or ONSALE California Series
A Stock or Series B Stock, shall become options or warrants to purchase the same
number of shares of ONSALE Delaware Common Stock or ONSALE Delaware Series A
Stock or Series B Stock, respectively, with the same exercise, price, term,
vesting schedule and other material terms and conditions. Additionally, upon
the Effective Date, ONSALE Delaware shall adopt and assume the ONSALE California
1995 Equity Incentive Plan, as amended on December 5, 1996, and all outstanding
options thereunder.
9. FRACTIONAL SHARES. No fractional shares of ONSALE Delaware Common
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Stock or Preferred Stock will be issued in connection with the Merger. In lieu
thereof, ONSALE Delaware shall pay each shareholder of ONSALE California who
would otherwise be entitled to receive a fractional share of ONSALE Delaware
Common Stock or Preferred Stock (assuming the aggregation of all shares held by
the same holder of more than one stock certificate representing shares of ONSALE
California Common Stock or Preferred Stock, as the case may be) a cash amount
equal to the applicable fraction multiplied by the fair market value of a share
of ONSALE Delaware Common Stock or Preferred Stock, as the case may be, as
determined by the Board of Directors of ONSALE Delaware in good faith (the "Fair
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Market Value Per Share"). Upon exercise of each assumed option of ONSALE
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California to purchase ONSALE Delaware Common Stock, cash will be paid by ONSALE
Delaware in lieu of any fractional share of ONSALE Delaware Common Stock,
respectively, issuable upon exercise of such option, and the amount of cash
received for such fractional share shall be the Fair Market Value Per Share upon
exercise thereof multiplied by the applicable fraction, less the unpaid exercise
price per share for such fraction.
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10. EMPLOYEE BENEFIT PLANS. On the Effective Date, the obligations of
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ONSALE California under or with respect to every plan, trust, program and
benefit then in effect or administered by ONSALE California for the benefit of
the directors, officers and employees of ONSALE California or any of its
subsidiaries, including without limitation the 401(k) Plan of the Company, shall
become the lawful obligations of ONSALE Delaware and shall be implemented and
administered in the same manner and without interruption until the same are
amended or otherwise lawfully altered or terminated. Effective upon the
Effective Date, ONSALE Delaware hereby expressly adopts and assumes all
obligations of ONSALE California under such employee benefit plans.
11. FURTHER ASSURANCES. From time to time, as and when required by
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the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of ONSALE California such deeds, assignments
and other instruments, and there shall be taken or caused to be taken by it all
such further action, as shall be appropriate, advisable or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to and possession of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of ONSALE California,
and otherwise to carry out the purposes of this Merger Agreement. The officers
and directors of the Surviving Corporation are fully authorized in the name of
and on behalf of ONSALE California, or otherwise, to take any and all such
actions and to execute and deliver any and all such deeds and other instruments
as may be necessary or appropriate to accomplish the foregoing.
12. CONDITION. The consummation of the Merger is subject to the
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approval of this Merger Agreement and the Merger contemplated hereby by the
shareholders of ONSALE California and by the sole stockholder of ONSALE
Delaware, prior to or on the Effective Date.
13. ABANDONMENT. At any time before the Effective Date, this Merger
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Agreement may be terminated and the Merger abandoned by the Board of Directors
of ONSALE California or ONSALE Delaware, notwithstanding approval of this Merger
Agreement by the Boards of Directors and shareholders of Constituent
Corporations ONSALE California and ONSALE Delaware.
14. AMENDMENT. At any time before the Effective Date, this Merger
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Agreement may be amended, modified or supplemented by the Boards of Directors of
the Constituent Corporations, notwithstanding approval of this Merger Agreement
by the shareholders of ONSALE California and by the sole stockholder of ONSALE
Delaware; provided, however, that any amendment made subsequent to the adoption
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of this Agreement by the shareholders of ONSALE California or the sole
stockholder of ONSALE Delaware 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 upon conversion of any shares of any class or series of ONSALE California
stock, (b) alter or change of any of the
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terms of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger, or (c) alter or change any of the terms or conditions of
this Agreement if such alteration or change would adversely affect the holders
of any shares of any class or series of ONSALE California or ONSALE Delaware
stock.
15. TAX-FREE REORGANIZATION. The Merger is intended to be a tax-free
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plan of reorganization within the meaning of Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended.
16. GOVERNING LAW. This Agreement shall be governed by and construed
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under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to the principles of conflicts of law or choice of
laws, except to the extent that the laws of the State of Delaware would apply in
matters relating to the internal affairs of ONSALE Delaware and the Merger.
17. COUNTERPARTS. In order to facilitate the filing and recording of
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this Merger Agreement, it may be executed in any number of counterparts, each of
which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of each of the Constituent Corporations and attested by their respective
officers thereunto duly authorized.
ONSALE, a California corporation ONSALE, INC., a Delaware corporation
By: By:
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S. XXXXXXX XXXXXX, President and S. XXXXXXX XXXXXX, President and
Chief Executive Officer Chief Executive Officer
ATTEST: ATTEST:
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S. XXXXXXX XXXXXX XXXX XXXXXXXXX
Secretary Secretary
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
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