Agreement and Plan of Merger - eBay Inc.
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement") is made as
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of April 28, 1998 by and between eBay, Inc., a California corporation ("eBay
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California"), and eBay Inc., a Delaware corporation ("eBay Delaware"). eBay
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California and eBay 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. eBay California was incorporated on May 13, 1996. Its current
authorized capital stock consists of: (1) 20,000,000 shares of Common Stock, no
par value ("eBay California Common Stock"), of which 7,299,000 shares are issued
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and outstanding; and (2) 6,000,000 shares of Preferred Stock, no par value
("eBay California Preferred Stock"), of which 2,676,475 shares are issued and
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outstanding (consisting of 1,676,475 shares of Series A Preferred Stock and
1,000,000 shares of Series B Preferred Stock).
B. eBay Delaware was incorporated on March 13, 1998. Its authorized
capital stock consists of: (1) 20,000,000 shares of Common Stock, with a par
value of $0.001 per share ("eBay Delaware Common Stock"), of which 1,000 shares
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are issued and outstanding; and (2) 6,000,000 shares of Preferred Stock, $0.001
par value ("eBay Delaware Preferred Stock"), none of which shares are issued and
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outstanding.
C. The respective Boards of Directors of eBay California and eBay
Delaware deem it advisable and to the advantage of each of the Constituent
Corporations that eBay California merge with and into eBay 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 eBay 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 eBay California
shall merge with and into eBay Delaware on the following terms, conditions and
other provisions:
1. MERGER AND EFFECTIVE TIME. At the Effective Time (as defined
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below), eBay California shall be merged with and into eBay Delaware (the
"Merger"), and eBay 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 Time").
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Agreement and Plan of Merger
2. EFFECT OF MERGER. At the Effective Time, the separate corporate
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existence of eBay California shall cease; the corporate identity, existence,
powers, rights and immunities of eBay Delaware as the Surviving Corporation
shall continue unimpaired by the Merger; and eBay 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 eBay California, all
without further act or deed. The Certificate of Incorporation of the Surviving
Corporation shall be the Certificate of Incorporation.
3. GOVERNING DOCUMENTS. At the Effective Time, the Certificate of
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Incorporation of eBay Delaware in effect immediately prior to the Effective Time
shall become the Certificate of Incorporation of the Surviving Corporation and
the Bylaws of eBay Delaware in effect immediately prior to the Effective Time
shall become the Bylaws of the Surviving Corporation.
4. DIRECTORS AND OFFICERS. At the Effective Time, the directors and
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officers of eBay Delaware shall be and become the directors and officers
(holding the same titles and positions) of the Surviving Corporation and after
the Effective Time shall serve in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
5. CONVERSION OF SHARES OF EBAY CALIFORNIA. Subject to the terms and
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conditions of this Agreement, at the Effective Time, each share of eBay
California Common Stock outstanding immediately prior thereto shall be
automatically changed and converted into one fully paid and nonassessable,
issued and outstanding share of eBay Delaware Common Stock. At the Effective
Time: (a) each share of eBay California Series A Preferred Stock outstanding
immediately prior thereto shall be automatically changed and converted into one
fully paid and nonassessable, issued and outstanding share of eBay Delaware
Series A Preferred Stock; and (b) each share of eBay California Series B
Preferred Stock outstanding immediately prior thereto shall be automatically
changed and converted into one fully paid and nonassessable, issued and
outstanding share of eBay Delaware Series B Preferred Stock.
6. CANCELLATION OF SHARES OF EBAY DELAWARE. At the Effective Time,
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all of the previously issued and outstanding shares of eBay Delaware Common
Stock that were issued and outstanding immediately prior to the Effective Time
shall be automatically retired and canceled.
7. STOCK CERTIFICATES. At and after the Effective Time, all of the
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outstanding certificates that, prior to that date, represented shares of eBay
California Common Stock shall be deemed for all purposes to evidence ownership
of and to represent the number of shares of eBay Delaware Common Stock into
which such shares of eBay California Common Stock are converted as provided
herein. At and after the Effective Time, all of the outstanding certificates
that, prior to that date, represented shares of a series of eBay California
Preferred Stock shall be deemed for all purposes to evidence ownership of and to
represent the number of shares of the series of eBay Delaware Preferred Stock
into which such shares of eBay California Preferred Stock are converted as
provided herein. The registered owner on the books and records of eBay
California of any such outstanding stock certificate for eBay California Common
Stock or eBay California Preferred Stock shall, until such certificate shall
have been surrendered for transfer or otherwise accounted for to eBay 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
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Agreement and Plan of Merger
shares of eBay Delaware Common Stock or eBay Delaware Preferred Stock evidenced
by such outstanding certificate as above provided.
8. CONVERSION OF OPTIONS AND WARRANTS. At the Effective Time, all
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outstanding and unexercised portions of all options to purchase a share of eBay
California Common Stock under the eBay California 1996 Stock Option Plan and the
eBay California 1997 Stock Option Plan shall become options to purchase a share
of eBay Delaware Common Stock (subject to the elimination of fractional shares
as provided in Section 9 below) at the original exercise price per share and
shall, to the extent permitted by law and otherwise reasonably practicable, have
the same term, exercisability, vesting schedule, status as an "incentive stock
option" under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), if applicable, and all other material terms and conditions (including
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but not limited to the terms and conditions applicable to such options by virtue
of the eBay California 1996 Stock Option Plan and the eBay California 1997 Stock
Option Plan). Continuous employment with eBay California will be credited to an
optionee for purposes of determining the vesting of the number of shares of eBay
Delaware Common Stock under a converted eBay California option at the Effective
Time. Additionally, at the Effective Time, eBay Delaware shall adopt and assume
the eBay California 1996 Stock Option Plan and the eBay California 1997 Stock
Option Plan. At the Effective Time, all outstanding and unexercised portions of
all warrants to purchase or acquire eBay California Preferred Stock shall become
warrants to purchase or acquire, on the same terms and conditions, the same
number of shares of the same series of eBay Delaware Preferred Stock.
9. FRACTIONAL SHARES. No fractional shares of eBay Delaware Common
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Stock or Preferred Stock will be issued in connection with the Merger. In lieu
thereof, eBay Delaware shall pay each shareholder of eBay California who would
otherwise be entitled to receive a fractional share of eBay 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 eBay
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 eBay Delaware Common Stock or Preferred Stock, as the case may be, as
determined by the Board of Directors of eBay Delaware in good faith (the "Fair
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Market Value Per Share"). Upon exercise of each assumed option of eBay
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California to purchase eBay Delaware Common Stock, cash will be paid by eBay
Delaware in lieu of any fractional share of eBay 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.
10. EMPLOYEE BENEFIT PLANS. At the Effective Time, the obligations
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of eBay California under or with respect to every plan, trust, program and
benefit then in effect or administered by eBay California for the benefit of the
directors, officers and employees of eBay California or any of its subsidiaries
shall become the lawful obligations of eBay 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 at the Effective
Time, eBay Delaware hereby expressly adopts and assumes all obligations of eBay
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 eBay California such deeds, assignments and
other instruments, and there shall be taken
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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 eBay 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 eBay 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 eBay California and by the sole stockholder of eBay Delaware,
prior to or at the Effective Time.
13. ABANDONMENT. At any time before the Effective Time, this Merger
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Agreement may be terminated and the Merger abandoned by the Board of Directors
of eBay California or eBay Delaware, notwithstanding approval of this Merger
Agreement by the Boards of Directors and shareholders of eBay California and
eBay Delaware.
14. AMENDMENT. At any time before the Effective Time, 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 eBay California and eBay Delaware; provided, however,
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that any amendment made subsequent to the adoption of this Agreement by the
shareholders of eBay California or the sole stockholder of eBay Delaware shall
not: (i) 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 eBay California; (ii) alter or change any of
the terms of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger; or (iii) alter or change any of the terms or conditions
of this Merger Agreement if such alteration or change would adversely affect the
holders of any shares of any class or series of eBay California or eBay
Delaware.
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 Code.
16. GOVERNING LAW. This Agreement shall be governed by and construed
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under the internal laws of the State of Delaware 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 eBay 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.
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eBay, Inc.
Agreement and Plan of Merger
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of each of the Constituent Corporations and attested by their respective
officers hereunto duly authorized.
eBAY, INC. eBAY INC.
a California corporation a Delaware corporation
By: /s/ Gary Bengier By: /s/ Gary Bengier,
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Gary Bengier Gary Bengier,
Vice President and Vice President and
Chief Financial Officer Chief Financial Officer
ATTEST: ATTEST:
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By: /s/ Matthew P. Quilter By: /s/ Matthew P. Quilter
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Matthew P. Quilter, Secretary Matthew P. Quilter, Secretary
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
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