AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of ___________, by and between ASK JEEVES, INC., a
California corporation ("the Company"), and AJ MERGER CORPORATION, a Delaware
corporation ("Merger Sub"). The Company and Merger Sub are sometimes referred
to as the "Constituent Corporations."
The authorized capital stock of the Company consists of ___________ shares
of Common Stock, and ____________ shares of Preferred Stock. The authorized
capital stock of Merger Sub, upon effectuation of the transactions set forth in
this Merger Agreement, will consist of _____________ shares of Common Stock,
$.001 par value, and _______________ shares of Preferred Stock, $.001 par value.
The directors of the Constituent Corporations deem it advisable and to the
advantage of the Constituent Corporations that the Company merge into Merger Sub
upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that the Company shall
merge into Merger Sub on the following terms, conditions and other provisions:
1. TERMS AND CONDITIONS.
1.1 MERGER. The Company shall be merged with and into Merger Sub (the
"Merger"), and Merger Sub shall be the surviving corporation (the "Surviving
Corporation") effective upon the date that this Merger Agreement is filed with
the Secretary of State of Delaware (the "Effective Date").
1.2 NAME CHANGE. On the Effective Date, the name of Merger Sub shall
be Ask Jeeves, Inc.
1.3 SUCCESSION. On the Effective Date, Merger Sub shall continue its
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of the Company, except insofar as it may be
continued by operation of law, shall be terminated and cease.
1.4 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations; and all
and singular rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, of each of
the Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger;
1.
provided, however, that the liabilities of the Constituent Corporations and of
their shareholders, directors and officers shall not be affected and all rights
of creditors and all liens upon any property of either of the Constituent
Corporations shall be preserved unimpaired, and any claim existing or action or
proceeding pending by or against either of the Constituent Corporations may be
prosecuted to judgment as if the Merger had not taken place except as they may
be modified with the consent of such creditors and all debts, liabilities and
duties of or upon each of the Constituent Corporations shall attach to the
Surviving Corporation, and may be enforced against it to the same extent as if
such debts, liabilities and duties had been incurred or contracted by it.
1.5 COMMON STOCK OF THE COMPANY AND MERGER SUB. On the Effective Date,
by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each share of Common Stock of
the Company issued and outstanding immediately prior thereto shall be converted
into one (1) fully paid and nonassessable share of the Common Stock of Merger
Sub and each share of Common Stock of Merger Sub issued and outstanding
immediately prior thereto shall be cancelled and returned to the status of
authorized but unissued shares.
1.6 PREFERRED STOCK OF THE COMPANY AND MERGER SUB. On the Effective
Date, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, each share of Series A Preferred
Stock of the Company issued and outstanding immediately prior thereto shall be
converted into one (1) fully paid and nonassessable share of Series A Preferred
Stock of Merger Sub and each share of Series B Preferred Stock of the Company
issued and outstanding immediately prior thereto shall be converted into one (1)
fully paid and nonassessable share of Series B Preferred Stock of Merger Sub.
1.7 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock or of the Preferred Stock of the Company shall be deemed for all
purposes to evidence ownership of and to represent the shares of Merger Sub into
which the shares of the Company represented by such certificates have been
converted as herein provided and shall be so registered on the books and records
of the Surviving Corporation or its transfer agents. The registered owner of
any such out-standing stock certificate shall, until such certificate shall have
been surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation 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 Merger Sub evidenced by such outstanding
certificate as above provided.
1.8 OPTIONS. On the Effective Date, the Surviving Corporation will
assume and continue the Company's Amended and Restated 1996 Equity Incentive
Plan, 1999 Equity Incentive Plan, and 1999 Employee Stock Purchase Plan and
the outstanding and unexercised portions of all options to purchase Common
Stock of the Company, including without limitation all options outstanding
under such stock plans and any other outstanding options, shall be converted
into options of Merger Sub, such that an option for one (1) share of the
Company shall be converted into an option for one (1) share of Merger Sub,
with no change in the exercise price of the Merger Sub option. No other
changes in the terms and conditions of such options will occur. Effective on
the Effective Date, Merger Sub hereby assumes the outstanding and unexercised
portions of such options and the obligations of the Company with respect
thereto.
2.
1.9 WARRANTS. On the Effective Date, the Surviving Corporation will
assume and continue warrants of the Company, and the outstanding and unexercised
portions of all warrants shall be converted into warrants of Merger Sub, such
that a warrant for one (1) share of the Company shall be converted into a
warrant for one (1) share of Merger Sub, with no change in the exercise price of
the Merger Sub warrant. No other changes in the terms and conditions of such
warrants will occur. Effective on the Effective Date, Merger Sub hereby assumes
the outstanding and unexercised portions of such warrants and the obligations of
the Company with respect thereto.
1.10 EMPLOYEE BENEFIT PLANS. On the Effective Date, the Surviving
Corporation shall assume all obligations of the Company under any and all
employee benefit plans in effect as of such date. On the Effective Date, the
Surviving Corporation shall adopt and continue in effect all such employee
benefit plans upon the same terms and conditions as were in effect immediately
prior to the Merger and shall reserve that number of shares of Merger Sub Common
Stock with respect to each such employee benefit plan as is proportional to the
number of shares of the Company Common Stock (if any) so reserved on the
Effective Date.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Merger Sub in effect on the Effective Date shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation, except that Article I of the Certificate of Incorporation and
Bylaws of the Surviving Corporation shall, effective upon the filing of this
Merger Agreement with the Secretary of State of the State of Delaware, be
amended to read in its entirety as follows: "The name of this corporation is
Ask Jeeves, Inc."
2.2 DIRECTORS. The directors of the Company immediately preceding the
Effective Date shall become the directors of the Surviving Corporation on and
after the Effective Date to serve until the expiration of their terms and until
their successors are elected and qualified.
2.3 OFFICERS. The officers of the Company immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
3. MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of the Company 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 or perfect in or to
conform of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of the Company and otherwise to
carry out the purposes of this Merger Agreement, and the officers and directors
of the Surviving Corporation are fully authorized in the name and on behalf of
the Company or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the
shareholders of the Company, this Merger Agreement may be amended in any manner
(except that, after the
3.
approval of the Merger Agreement by the shareholders of the Company, the
principal terms may not be amended without the further approval of the
shareholders of the Company) as may be determined in the judgment of the
respective Board of Directors of Merger Sub and the Company to be necessary,
desirable, or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purpose and intent of this Merger Agreement.
3.3 CONDITIONS TO MERGER. The obligations of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law):
(a) the Merger shall have been approved by the shareholders of the
Company in accordance with applicable provisions of the General Corporation Law
of the State of California; and
(b) the Company, as sole stockholder of Merger Sub, shall have
approved the Merger in accordance with the General Corporation Law of the State
of Delaware; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of the Company to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. 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 the Company or Merger Sub or both, notwithstanding
the approval of this Merger Agreement by the shareholders of the Company or
Merger Sub, or the consummation of the Merger may be deferred for a reasonable
period of time if, in the opinion of the Boards of Directors of the Company and
Merger Sub, such action would be in the best interest of such corporations. In
the event of termination of this Merger Agreement, this Merger Agreement shall
become void and of no effect and there shall be no liability on the part of
either Constituent Corporation or its Board of Directors or shareholders with
respect thereto, except that the Company shall pay all expenses incurred in
connection with the Merger or in respect of this Merger Agreement or relating
thereto.
3.5 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.
4.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of the Company and Merger Sub, is hereby executed on
behalf of each said corporation and attested by their respective officers
thereunto duly authorized.
ASK JEEVES, INC.,
a California corporation
By:
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President and Chief Executive Officer
ATTEST:
By:
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Secretary
MERGER SUB,
a Delaware corporation
By:
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President and Chief Executive Officer
ATTEST:
By:
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Secretary
5.