EXHIBIT 2.2
AGREEMENT OF MERGER
OF
MERGER SUB
AND
THE COMPANY
This Agreement of Merger, dated as of , 2000 ("MERGER AGREEMENT"), by
and between MERGER SUB, a California corporation ("MERGER SUB"), and a wholly
owned subsidiary of NEWCO, a Delaware corporation ("NEWCO"), and
Xxxxxxxxxx.xxx, Inc., a California corporation (the "COMPANY" or the "SURVIVING
CORPORATION").
R E C I T A L S
A. The Company was incorporated in the State of California on February [ ],
1988, and as of the date hereof has shares of its Common Stock, no
par value, outstanding (the "COMPANY COMMON STOCK").
B. Merger Sub was incorporated in the State of California on [ ],
and as of the date hereof has [ ] shares of its Common Stock, par value
$0.01 per share, outstanding, all of which are owned by Newco.
C. The Company and USANi L.L.C., a Delaware limited liability company
("PARENT"), have entered into the Agreement and Plan of Merger, dated as of
January 24, 2000 (the "AGREEMENT"), providing for certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated thereby. This Merger Agreement and the Agreement are intended to be
construed together to effectuate their purpose.
D. The shareholders of the Company and Merger Sub and the Board of Directors
of Newco deem it advisable and in their mutual best interests and in the best
interests of the shareholders of the Company and Merger Sub, respectively, that
Merger Sub be merged with and into the Company (the "MERGER").
E. The Boards of Directors of the Company, Newco and Merger Sub and the
shareholders of Merger Sub and the Company have approved the Merger. The
shareholders of Newco have approved the issuance of shares of Class A Common
Stock, par value $0.01 per share, of Newco (the "NEWCO CLASS A COMMON STOCK") by
virtue of the Merger.
AGREEMENTS
The parties hereto hereby agree as follows:
1. Merger Sub shall be merged with and into the Company, and the Company
shall be the surviving corporation.
2. The Merger shall become effective on such date (the "EFFECTIVE TIME") as
this Merger Agreement and the Officers' Certificates (as defined in the
Agreement) of each of Newco and Merger Sub (and a certificate of satisfaction of
the California Franchise Tax Board (if required) for Merger Sub) are filed with
the Secretary of State of the State of California.
3. As of the Effective Time of the Merger, each issued and outstanding share
of Common Stock, par value $0.01 per share, of Merger Sub ("MERGER SUB COMMON
STOCK") shall be converted into and become one fully paid and nonassessable
share of Common Stock, par value $0.01 per share, of the Surviving Corporation
and, as converted, shall constitute the only outstanding shares of capital stock
of the Surviving Corporation.
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4. Upon the Effective Time of the Merger, each share of Company Common Stock
issued and outstanding immediately prior to the Effective Time (other than
shares of Company Common Stock that are owned by the Company or any Subsidiary
of the Company) shall be converted into the right to receive one share of Newco
Class A Common Stock (the "MERGER SECURITIES").
5. Upon the Effective Time of the Merger, all such shares of Company Common
Stock shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate that
immediately prior to the Effective Time represented outstanding shares of
Company Common Stock (collectively, the "CERTIFICATES") shall cease to have any
rights with respect thereto, except the right to receive the Merger Securities
to be issued in consideration therefor upon surrender of such certificate in
accordance with Section 2.2 of the Agreement, without interest.
6. Any shares ("DISSENTING SHARES")of Company Common Stock outstanding
immediately prior to the Effective Time and held by any holder who is entitled
to demand, and who properly demands, appraisal for such shares in accordance
with Section 1300 et. seq. of the California General Corporation Law
("CALIFORNIA LAW") and is otherwise entitled to the protections afforded a
"dissenting shareholder" as such term is used in such sections of California Law
(collectively, the "DISSENTING SHAREHOLDERS"), shall not be converted as
provided in Section 2.1 of the Agreement, unless such holder fails to perfect or
otherwise loses any rights to appraisal of such Dissenting Shares under, and
shall otherwise cease to be a "dissenting shareholder" as provided in such
sections of California Law. If, after the Effective Time, such holder fails to
perfect or loses any such right to appraisal, such Dissenting Shares shall be
treated as if they had been converted as of the Effective Time into the right to
receive Merger Securities.
7. The conversion of the Company Common Stock as provided by this Merger
Agreement shall occur automatically at the Effective Time of the Merger without
action by the holders thereof. Each holder of the Company Common Stock shall
thereupon be entitled to receive the Merger Securities in accordance with
Section 4 hereof. Promptly after the Effective Time, such shareholder shall be
entitled to receive certificates that represent the number of shares of Newco
Class A Common Stock issuable to such shareholder under this Merger Agreement
upon surrender as set forth in the Agreement of such shareholder's certificates
which immediately prior to the Effective Time represented outstanding shares of
the Company Common Stock.
No dividends or other distributions on Newco Class A Common Stock declared
or made after the Effective Time shall be paid to the holder of any
unsurrendered certificate until the holder of record of such certificate shall
surrender such certificate. Subject to the effect, if any, of applicable laws,
following surrender of any certificate, there shall be delivered to the person
entitled thereto, without interest, the amount of dividends theretofore paid
with respect to the Newco Class A Common Stock so withheld as of any date
subsequent to the Effective Time of the Merger and prior to such date of
delivery.
All Merger Securities delivered upon the surrender for exchange of shares of
the Company Common Stock in accordance with the terms hereof shall be deemed to
have been delivered in full satisfaction of all rights pertaining to such the
Company Common Stock. If, after the Effective Time of the Merger, certificates
are presented to the Surviving Corporation for any reason, they shall be
canceled and exchanged as provided in this Section 7.
8. At the Effective Time of the Merger, the separate existence of Merger Sub
shall cease, and the Company shall succeed, without other transfer, to all of
the rights and properties of Merger Sub and shall be subject to all the debts
and liabilities thereof in the same manner as if the Company had itself incurred
them.
9. Upon the Merger becoming effective, the Articles of Incorporation of
Merger Sub in effect at the Effective Time shall be Articles of Incorporation of
the Surviving Corporation until amended in
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accordance with its terms and applicable law; PROVIDED, HOWEVER, that at the
Effective Time, Article I of such articles shall be amended by virtue of this
Merger Agreement and the Agreement to read as follows: "The name of the
corporation is [ ]."
10. Upon the Merger becoming effective, the By-laws of Merger Sub in effect
at the Effective Time shall be the By-laws of the Surviving Corporation until
amended in accordance with its terms and applicable law.
11. Upon the Merger becoming effective, the directors and officers of Merger
Sub immediately prior to the Effective Time shall be the directors and officers,
respectively, of the Surviving Corporation as of the Effective Time and until
their successors are duly elected or appointed and qualified in accordance with
applicable law and the Stockholders Agreement, dated as of [ ], 2000,
between Newco, Parent and the stockholders named therein.
12. (a) Notwithstanding the approval of this Merger Agreement by the
shareholders of the Company and Merger Sub, this Merger Agreement may be
terminated at any time prior to the Effective Time of the Merger by mutual
agreement of the Boards of Directors of Newco and the Company.
(b) Notwithstanding the approval of this Merger Agreement by the
shareholders of the Company and Merger Sub, this Merger Agreement shall
terminate forthwith in the event that the Agreement shall be terminated as
therein provided.
(c) In the event of the termination of this Merger Agreement as provided
above, this Merger Agreement shall forthwith become void and there shall be
no liability on the part of the Company, Newco or Merger Sub or their
respective officers or directors, except as otherwise provided in the
Agreement.
(d) This Merger Agreement may be signed in one or more counterparts,
each of which shall be deemed an original and all of which shall constitute
one agreement.
(e) This Merger Agreement may be amended by the parties hereto any time
before or after approval hereof by the shareholders of the Company and
Merger Sub, but, after such approval, no amendments shall be made which by
law require the further approval of such shareholders without first
obtaining such approval. This Merger Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Merger Agreement as of
the date first written above.
[MERGER SUB]
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[ ]
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Secretary
[THE COMPANY]
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[ ]
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Secretary
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