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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered
into as of __________________ 1999 by and between Calico Commerce, Inc., a
California corporation ("Calico California"), and Delaware Calico Commerce,
Inc., a Delaware corporation ("Calico Delaware").
WITNESSETH:
WHEREAS, Calico Delaware is a corporation duly organized and existing
under the laws of the State of Delaware;
WHEREAS, Calico California is a corporation duly organized and existing
under the laws of the State of California;
WHEREAS, on the date of this Merger Agreement, Calico Delaware has
authority to issue 150,000,000 shares of Common Stock, par value $0.001 per
share (the "Calico Delaware Common Stock"), of which 100 shares are issued and
outstanding and owned by Calico California and 30,811,249 shares of Preferred
Stock, par value $0.001 per share (the "Calico Delaware Preferred Stock"), of
which no shares are issued and outstanding;
WHEREAS, on the date of this Merger Agreement, Calico California is
authorized to issue 35,000,000 shares of Common Stock (the "Calico California
Common Stock"), of which ____________________________ shares are issued and
outstanding, and 10,565,833 shares of Preferred Stock (the "Calico California
Preferred Stock"), of which 10,417,976 shares are issued and outstanding.
WHEREAS, the respective Boards of Directors for Calico Delaware and
Calico California have determined that, for the purpose of effecting the
reincorporation of Calico California in the State of Delaware, it is advisable
and to the advantage of said two corporations and their shareholders that Calico
California merge with and into Calico Delaware upon the terms and conditions
herein provided; and
WHEREAS, the respective Boards of Directors of Calico Delaware and
Calico California, the shareholders of Calico California, and the sole
stockholder of Calico Delaware have adopted and approved this Merger Agreement;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Calico California and Calico Delaware hereby agree to merge as
follows:
1. Merger. Calico California shall be merged with and into Calico
Delaware, and Calico Delaware shall survive the merger ("Merger"), effective
upon the date when this Merger Agreement is made effective in accordance with
applicable law (the "Effective Date").
2. Governing Documents. The Certificate of Incorporation of Calico
Delaware shall continue to be the Certificate of Incorporation of Calico
Delaware as the surviving corporation.
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Article FIRST of the Restated Certificate of Incorporation of Calico Delaware
shall be amended to read as follows:
"FIRST: The name of the Corporation is Calico Commerce, Inc."
The Bylaws of Calico Delaware, in effect on the Effective Date, shall
continue to be the Bylaws of Calico Delaware as the surviving corporation
without change or amendment until further amended in accordance with the
provisions thereof and applicable laws.
3. Directors and Officers. The directors and officers of Calico
California shall become the directors and officers of Calico Delaware upon the
Effective Date and any committee of the Board of Directors of Calico California
shall become the members of such committees for Calico Delaware.
4. Succession. On the Effective Date, Calico Delaware shall succeed to
Calico California in the manner of and as more fully set forth in Section 259 of
the General Corporation Law of the State of Delaware.
5. Further Assurances. From time to time, as and when required by Calico
Delaware or by its successors and assigns, there shall be executed and delivered
on behalf of Calico California such deeds and other instruments, and there shall
be taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in Calico Delaware the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Calico California, and otherwise to carry out the purposes of this
Merger Agreement and the officers and directors of Calico Delaware are fully
authorized in the name and on behalf of Calico California or otherwise to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.
6. Stock of Calico California.
a. Common Stock. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each two (2)
shares of Calico California Common Stock outstanding immediately prior thereto
shall be changed and converted into three (3) fully paid and nonassessable
shares of Calico Delaware Common Stock.
b. Preferred Stock. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holder thereof, each two (2)
shares of each series of Calico California Preferred Stock outstanding
immediately prior thereto shall be changed and converted into three (3) fully
paid and nonassessable shares of Calico Delaware Preferred Stock of an
equivalent series.
c. Fractional Shares. No fractional shares which a Calico
Delaware stockholder would otherwise be entitled to receive by reason of the
exchange of Calico California stock for Calico Delaware stock shall be issued.
In lieu of any fractional shares to which a holder would otherwise be entitled,
Calico Delaware shall pay cash equal to such fraction multiplied by the fair
market value of the Common Stock on the Effective Date as determined by the
Board of Directors of Calico Delaware and for the Preferred Stock, such
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fraction multiplied by the Conversion Prices as defined in Article FOURTH of the
Certificate of Designations, Preferences and Rights of the Terms of the Series
A, Series B, Series C, Series D and Series E Preferred Stock.
7. Stock Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Calico
California stock shall be deemed for all purposes to evidence ownership of and
to represent the shares of Calico Delaware stock into which the shares of Calico
California stock represented by such certificates have been converted as herein
provided. The registered owner on the books and records of Calico Delaware or
its transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to Calico Delaware or its transfer agent, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividend and other
distributions upon the shares of Calico Delaware stock evidenced by such
outstanding certificate as above provided.
8. Options, Warrants and All Other Rights to Purchase Stock. Upon the
Effective Date, each outstanding option, warrant or other right to purchase
shares of Calico California stock, including those options granted under the
Amended 1997 Stock Option Plan and the 1995 Stock Option Plan (the "Option
Plans") of Calico California, shall be converted into and become an option,
warrant or right to purchase the number of shares of Calico Delaware stock
determined by multiplying the number of shares of Calico California subject to
the option, warrant or right to purchase by 3/2, rounded down to the nearest
whole number, at a price per share equal to the exercise price of the option,
warrant or right to purchase Calico California stock divided by 2/3, rounded up
to the nearest whole cent, and upon the same terms and subject to the same
conditions as set forth in the Option Plan and other agreements entered into by
Calico California pertaining to such options, warrants or rights. A number of
shares of Calico Delaware stock shall be reserved for purposes of such options,
warrants and rights equal to the number of shares of Calico California stock so
reserved as of the Effective Date multiplied by 3/2. As of the Effective Date,
Calico Delaware shall assume all obligations of Calico California under
agreements pertaining to such options, warrants and rights, including the Option
Plans, and the outstanding options, warrants or other rights, or portions
thereof, granted pursuant thereto.
9. Other Employee Benefit Plans. As of the Effective Date, Calico
Delaware hereby assumes all obligations of Calico California under any and all
employee benefit plans in effect as of said date or with respect to which
employee rights or accrued benefits are outstanding as of said date.
10. Outstanding Common Stock of Calico Delaware. Forthwith upon the
Effective Date, the One Hundred (100) shares of Calico Delaware Common Stock
currently issued and outstanding in the name of Calico California shall be
canceled and retired and resume the status of authorized and unissued shares of
Calico Delaware Common Stock, and no shares of Calico Delaware Common Stock or
other securities of Calico Delaware shall be issued in respect thereof.
11. Covenants of Calico Delaware. Calico Delaware covenants and agrees
that it will, on or before the Effective Date:
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a. Qualify to do business as a foreign corporation in the State
of California, and in all other states in which Calico California is so
qualified and in which the failure to so qualify would have a material adverse
impact on the business or financial condition of Calico Delaware. In connection
therewith, Calico Delaware shall irrevocably appoint an agent for service of
process as required under the provisions of Section 2105 of the California
Corporations Code and under applicable provisions of state law in other states
in which qualification is required hereunder.
b. File any and all documents with the California Franchise Tax
Board necessary to the assumption by Calico Delaware of all of the franchise tax
liabilities of Calico California.
12. Amendment. At any time before or after approval and adoption by the
shareholders of Calico California, this Merger Agreement may be amended in any
manner as may be determined in the judgment of the respective Boards of
Directors of Calico Delaware and Calico California to be necessary, desirable or
expedient in order to clarify the intention of the parties hereto or to effect
or facilitate the purposes and intent of this Merger Agreement.
13. Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either Calico California or Calico Delaware or both,
notwithstanding approval of this Merger Agreement by the sole stockholder of
Calico Delaware and the shareholders of Calico California.
14. Counterparts. In order to facilitate the filing and recording of
this Merger Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by resolution of the Board of Directors of Calico California and Calico
Delaware, is hereby executed on behalf of each of said two corporations by their
respective officers thereunto duly authorized.
DELAWARE CALICO COMMERCE, INC.,
a Delaware corporation
By:
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Xxxx X. Xxxxxxx,
President and Chief Executive Officer
CALICO COMMERCE, INC.,
a California corporation
By:
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Xxxx X. Xxxxxxx,
President and Chief Executive Officer
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CERTIFICATE OF SECRETARY
OF
DELAWARE CALICO COMMERCE, INC.
(a Delaware corporation)
I, Xxxxxx X. Xxxxx, Xx., the Secretary of Delaware Calico Commerce,
Inc., a Delaware corporation (the "Corporation"), hereby certify that the
Agreement and Plan of Merger to which this Certificate is attached was duly
signed on behalf of the Corporation by its President and was duly approved and
adopted by a vote of the outstanding stock entitled to vote thereon by written
consent of the sole stockholder of the Corporation dated ____________________,
1999.
Executed effective on the _____ day of _______________, 1999.
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Xxxxxx X. Xxxxx, Xx., Secretary
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CERTIFICATE OF APPROVAL OF
AGREEMENT AND PLAN OF MERGER OF
CALICO COMMERCE, INC.
(a California corporation)
Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, Xx. certify that:
1. They are the duly elected and acting President and Secretary,
respectively, of Calico Commerce, Inc., a California corporation (the
"Corporation").
2. This Certificate is attached to the Agreement and Plan of Merger
dated as of _______________ 1999, providing for the merger of the Corporation
with and into Delaware Calico Commerce, Inc., a Delaware corporation.
3. The Agreement and Plan of Merger in the form attached hereto (the
"Merger Agreement") was approved by the Board of Directors of the Corporation at
a meeting duly noticed and held on ______________________, 1999.
4. The total number of outstanding shares of the Corporation entitled to
vote on the merger was ________________ shares of Common Stock, 4,000,000 shares
of Series A Preferred Stock, 2,400,000 shares of Series B Preferred Stock,
1,388,889 shares of Series C Preferred Stock, 837,362 shares of Series D
Preferred Stock , and 1,791,725 shares of Series E Preferred Stock.
5. The principal terms of the Merger Agreement were approved by an
affirmative vote which exceeded the vote required, such vote being a majority of
the total number of outstanding shares of Common Stock, and a majority of the
outstanding shares of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock
voting together as a single class.
Dated: __________________________, 1999.
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Xxxx X. Xxxxxxx, President
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Xxxxxx X. Xxxxx, Xx., Secretary
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The undersigned, Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, Xx., President and
Secretary, respectively, of Calico Commerce, Inc., a California corporation,
declare under penalty of perjury under the laws of the State of California that
the matters set forth in this Certificate are true and correct of their own
knowledge.
Executed at San Jose, California, on ___________________, 1999.
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Xxxx X. Xxxxxxx, President
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Xxxxxx X. Xxxxx, Xx., Secretary
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