Looking for an agreement? Search from over 1 million agreements now.

Agmt & Plan Of Merger & Reorganization

This is an actual contract by eBay.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
EXHIBIT 2.02


================================================================================


AGREEMENT AND PLAN OF MERGER AND REORGANIZATION


among:


eBay Inc.,
a Delaware corporation;


Jump Acquisition Sub, Inc.
an Ohio corporation;


Jump Incorporated,
an Ohio corporation;


and


Certain Shareholders of Jump Incorporated


___________________________


Dated as of June 30, 1998


___________________________


================================================================================


1.


TABLE OF CONTENTS


PAGE SECTION 1. DESCRIPTION OF TRANSACTION................................................................... 1
1.1 Merger of Merger Sub into the Company.................................................... 1
1.2 Effect of the Merger..................................................................... 1
1.3 Closing; Effective Time.................................................................. 2
1.4 [Articles of Incorporation] and Bylaws; Directors and Officers........................... 3
1.5 Conversion of Shares..................................................................... 3
1.6 Closing of the Company's Transfer Books.................................................. 3
1.7 Exchange of Certificates................................................................. 4
1.8 Tax Consequences......................................................................... 4
1.9 Prepayment of Loans to Company Shareholders.............................................. 4
1.10 Further Action........................................................................... 5
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE COMPANY SHAREHOLDERS................... 5
2.1 Due Organization; No Subsidiaries; Etc................................................... 5
2.2 Articles of Incorporation and Bylaws; Records............................................ 6
2.3 Capitalization, Etc...................................................................... 6
2.4 Financial Statements..................................................................... 7
2.5 Absence of Changes....................................................................... 7
2.6 Title to Assets.......................................................................... 8
2.7 Bank Accounts............................................................................ 8
2.8 Equipment; Leasehold..................................................................... 8
2.9 Proprietary Assets....................................................................... 9
2.10 Contracts................................................................................ 10
2.11 Liabilities.............................................................................. 11
2.12 Compliance with Legal Requirements....................................................... 11
2.13 Governmental Authorizations.............................................................. 11
2.14 Tax Matters.............................................................................. 12
2.15 Employee and Labor Matters; Benefit Plans................................................ 13
2.16 Environmental Matters.................................................................... 13


Table Of Contents
(continued)

Page
2.17 Related Party Transactions............................................................... 13
2.18 Legal Proceedings; Orders................................................................ 14
2.19 Authority; Binding Nature of Agreement................................................... 14
2.20 Non-Contravention; Consents.............................................................. 14
2.21 Full Disclosure.......................................................................... 15
2.22 Investment Representations............................................................... 15
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB...................................... 16
3.1 Authority; Binding Nature of Agreement................................................... 16
3.2 Valid Issuance........................................................................... 17
SECTION 4. INDEMNIFICATION, ETC......................................................................... 17
4.1 Survival of Representations, Etc......................................................... 17
4.2 Indemnification by Company Shareholders.................................................. 17
4.3 Threshold; Recourse...................................................................... 18
4.4 Escrow of Shares; Satisfaction of Indemnification Claim.................................. 18
4.5 No Contribution.......................................................................... 22
4.6 Defense of Third Party Claims............................................................ 22
4.7 Exercise of Remedies by Indemnitees Other Than Parent.................................... 23
SECTION 5. MISCELLANEOUS PROVISIONS..................................................................... 24
5.1 Designated Shareholders' Agent........................................................... 24
5.2 Further Assurances....................................................................... 24
5.3 Fees and Expenses........................................................................ 24
5.4 Attorneys' Fees.......................................................................... 24
5.5 Notices.................................................................................. 25
5.6 Confidentiality.......................................................................... 25
5.7 Headings................................................................................. 25
5.8 Counterparts............................................................................. 26
5.9 Governing Law............................................................................ 26
5.10 Successors and Assigns................................................................... 26
5.11 Specific Performance..................................................................... 26

ii.


Table Of Contents
(continued)

Page

5.12 Waiver.................................................................................... 26
5.13 Amendments................................................................................ 26
5.14 Severability.............................................................................. 27
5.15 Parties in Interest....................................................................... 27
5.16 Entire Agreement.......................................................................... 27
5.17 Construction.............................................................................. 27


iii.


AGREEMENT AND PLAN
OF MERGER AND REORGANIZATION


This Agreement And Plan Of Merger And Reorganization ("Agreement") is made and entered into as of June 30, 1998, by and among: eBay Inc., a Delaware corporation ("Parent"); Jump Acquisition Sub, Inc., an Ohio corporation and a wholly owned subsidiary of Parent ("Merger Sub"); Jump Incorporated, an Ohio corporation (the "Company"); and Walter N. Carroll, Christopher M. Downie, Thomas P. Duvall and Robert J. Ratterman (the "Company Shareholders").


Recitals


A. Parent, Merger Sub and the Company intend to effect a merger of Merger Sub into the Company in accordance with this Agreement and the Ohio General Corporation Law (the "Merger"). Upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a wholly owned subsidiary of Parent.


B. It is intended that the Merger qualify as a tax-free reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code").


C. This Agreement has been approved by the respective boards of directors of Parent, Merger Sub and the Company and has been approved by the shareholders of Merger Sub and the shareholders of the Company.


D. The Company Shareholders own a total of 300 shares of the Common Stock, no par value per share, of the Company constituting all of the outstanding capital stock of the Company (the "Company Shares").


Agreement


The parties to this Agreement agree as follows:


SECTION 1. Description of Transaction.


1.1 Merger of Merger Sub into the Company. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub shall be merged with and into the Company, and the separate existence of Merger Sub shall cease. The Company will continue as the Surviving corporation in the Merger (the "Surviving Corporation").


1.2 Effect of the Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the Ohio General Corporation Law.


1.


1.3 Closing; Effective Time.


(a) The consummation of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Cooley Godward llp, Five Palo Alto Square, Palo Alto, California 94306 at 10:00 a.m. Ohio time on June 30, 1998 (the "Closing Date"). Contemporaneously with or as promptly as practicable after the Closing, a properly executed certificate of merger conforming to the requirements of (S)1701.81(A) of the Ohio General Corporation Law shall be filed with the Secretary of State of the State of Ohio. The Merger shall become effective at the time such certificate of merger is filed with and accepted by the Secretary of State of the State of Ohio (the "Effective Time").


(b) in addition to the foregoing, at the Closing:


(i) the Company and each Company Shareholder shall enter into an employment agreement in substantially the form attached hereto as Exhibit 1.3(b)(i) (each, an "Employment Agreement");


(ii) the Company and each Company Shareholder shall enter into an non-competition agreement in substantially the form attached hereto as Exhibit 1.3(b)(ii) (each, a "Non-Competition Agreement"); and


(iii) each Company Shareholder shall tender his resignation as a director and officer of the Company.


(iv) the Company, (or the Company Shareholders, as applicable) shall deliver, or provide with respect to 1.3(b)(iv)(2)-(3) an affidavit of intended filing within 60 days of the Closing Date, the following documents:


(1) Copies of the Company's charter documents and copies of the resolutions approving this transaction all certified by an appropriate officer of the Company;


(2) A recently-updated "good standing" certificate of the Company;


(3) A recently-dated certificate from the applicable taxing agency in Ohio showing payment of all recent franchise taxes, if applicable;


(4) Stock Certificates representing all of the outstanding common stock of the Company for cancellation at the Closing;


(5) The Company's minute books;


(6) A legal opinion of Taft, Stettinius & Hollister, L.L.P. in form and substance reasonably acceptable to parent and its counsel carry the matters set forth in Exhibit 1.3(b)(iv)(6);


2.


(7) Such other documents as may reasonably be requested by Parent and its counsel; and


(v) Parent shall deliver the following day:


(1) Stock certificates, in the name of each Company Shareholder, representing the number of shares of the common stock of Parent, par value $.001 per share, ("Parent Common Stock") to each Company Shareholder equal to the Exchange Ratio (as defined in Section 1.5 below) times the number of shares of Company Common Stock owned) by each Company Shareholder, less such Common Shareholder's share of the Escrow Fund;


(2) Such other documents as the Company or it's counsel shall reasonably request;


(3) Check in the amount required to be paid at closing pursuant to the terms of the Employment Agreements and Non-Competition Agreements; and


1.4 Articles of Incorporation and Code of Regulations; Directors and Officers. (a) The Articles of Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the Articles of Incorporation of Merger Sub as in effect immediately prior to the Effective Time; (b) the Code of Regulations of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the Code of Regulations of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals identified on Exhibit 1.4.


1.5 Conversion of Shares. At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any shareholder of the Company: (a) each share of Company Common Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive 158.73 (the "Exchange Ratio") shares of Parent Common Stock (and cash in lieu of any fractional share of Parent Common Stock; and (b) each share of the common stock, no par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one share of common stock of the Surviving Corporation.


No fractional shares of Parent Common Stock shall be issued, but in lieu thereof each holder of shares of Company Common Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock shall receive from Parent a cash amount equal to $42.00 multiplied by the fraction of a share of Parent Common Stock to which such holder would otherwise be entitled.


1.6 Closing of the Company's Transfer Books. At the Effective Time, holders of certificates representing shares of the Company's capital stock that were outstanding immediately prior to the Effective Time shall cease to have any rights as shareholders of


3.


the Company, and the stock transfer books of the Company shall be closed with respect to all shares of such capital stock outstanding immediately prior to the Effective Time. No further transfer of any such shares of the Company's capital stock shall be made on such stock transfer books after the Effective Time. If, after the Effective Time, a valid certificate previously representing any of such shares of the Company's capital stock (a "Company Stock Certificate") is presented to the Surviving Corporation or Parent, such Company Stock Certificate shall be canceled and shall be exchanged as provided in Section 1.7.


1.7 Exchange of Certificates.


(a) Immediately after the Effective Time, each Company Shareholder shall surrender each Company Stock Certificate held by such Company Shareholder, together with such other documents as may be reasonably required by Parent, to Parent, in exchange for a certificate representing the number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to the provisions of this Section 1 (less the number of shares that such holder has the right to receive but which are being placed in the Escrow Fund in accordance with Section 4.4), and the Company Stock Certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 1.7, each Company Stock Certificate shall be deemed, from and after the Effective Time, to represent only the right to receive upon such surrender a certificate representing shares of Parent Common Stock as contemplated by this Section 1.


(b) Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Agreement such amounts as Parent or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person or entity to whom such amounts would otherwise have been paid.


(c) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of capital stock of the Company for any shares of Parent Common Stock (or dividends or distributions with respect thereto), or for any cash amounts, delivered to any public official pursuant to any applicable abandoned property, escheat or similar law.


1.8 Tax Consequences. For federal income tax purposes, the Merger is intended to constitute a reorganization within the meaning of Section 368 of the Code. The parties to this Agreement hereby adopt this Agreement as a "plan of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.


1.9 Prepayment of Loans to Company Shareholders. Immediately after the Effective Time, Parent shall cause the Company to repay, at any time within one year of the Closing Date, the Shareholder Indebtedness (as such term is defined in Section 2.4) to the Company's Shareholders.


4.


1.10 Further Action. If, at any time after the Effective Time, any further action is determined by Parent to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation or Parent with full right, title and possession of and to all rights and property of Merger Sub and the Company, the officers and directors of the Surviving Corporation and Parent shall be fully authorized (in the name of Merger Sub, in the name of the Company and otherwise) to take such action.


SECTION 2. Representations and Warranties of the Company and the Company
Shareholders.


Except as set forth on a disclosure schedule delivered to Parent on the date of this Agreement and certified by the Company Shareholders (the "Disclosure Schedule"). The Company and the Company Shareholders jointly and severally represent and warrant, to and for the benefit of the Indemnitees, as follows:


2.1 Due Organization; No Subsidiaries; Etc.


(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio and has all necessary power and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Company Contracts (as defined in Section 2.10).


(b) The Company has not conducted any business under or otherwise used, for any purpose or in any jurisdiction, any fictitious name, assumed name, trade name or other name, other than the name "Jump Incorporated" and "Up4Sale".


(c) To the best of the knowledge of the Company and the Company Shareholders, the Company is qualified, authorized, registered or licensed to do business as a foreign corporation in, and is in good standing as a foreign corporation in, each jurisdiction where such qualification, authorization, registration licensing or good standing is required.


(d) The entire board of directors of the Company is comprised of Company Shareholders.


(e) The Company does not own any interest in any corporation, partnership, limited liability company, joint venture or similar entity ("Entity") and has never owned, beneficially or otherwise, any shares or other securities of, or any direct or indirect equity interest in, any Entity. The Company has not agreed and is not obligated to make any future investment in or capital contribution to any Entity. Part 2.1(e) of the Disclosure Schedule accurately describes the Company's "Spark! Leadership" program. The Company has no Liabilities associated with the Spark! Leadership program and the Company may discontinue its Spark! Leadership program at any time without any penalty or any other Liability to the Company.


5.


2.2 Articles of Incorporation and Code of Regulations; Records. The Company has delivered to Parent accurate and complete copies of: (1) the Company's articles of incorporation and Code of Regulations; (2) the stock records of the Company; and (3), the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the shareholders of the Company, the board of directors of the Company and all committees of the board of directors of the Company. There have been no formal meetings or other proceedings of the shareholders of the Company, the board of directors of the Company or any committee of the board of directors of the Company that are not fully reflected in such minutes or other records. There has not been any violation of any of the provisions of the Company's articles of incorporation or Code of Regulations, and the Company has not taken any action that is inconsistent in any material respect with any resolution adopted by the Company's shareholders, the Company's board of directors or any committee of the Company's board of directors. The books of account, stock records, minute books and other records of the Company are accurate, up-to-date and complete in all material respects, and have been maintained in accordance with prudent business practices. The Company has never amended its articles of incorporation or Code of Regulations. The Company has not effected or been a party to any merger, consolidation, business combination, reorganization, or sale of all or a portion of the assets or capital stock of the Company, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction.


2.3 Capitalization, Etc.


(a) The authorized capital stock of the Company consists of: 500 shares of Common Stock, no par value, of which 300 shares have been issued and are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and non-assessable. The Company Shareholders collectively own, of record and beneficially, all of the issued and outstanding shares of Company Common Stock.


(b) There is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) written, oral or other agreement, contract, understanding, note or other legally binding commitment or instrument ("Contract") under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the best of the knowledge of the Company and the Company Shareholders, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any person or entity to the effect that such person or entity is entitled to acquire or receive any shares of capital stock or other securities of the Company.


6.


(c) All outstanding shares of Company Common Stock have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.


(d) The Company has never declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of capital stock, and has not repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities of the Company;


(e) Other than in connection with the issuance of the Company Common Stock to the Company Shareholders in connection with the Company's formation, the Company has never sold, issued or authorized the issuance of (i) any capital stock or other security, (ii) any option or right to acquire any capital stock or any other security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security;


2.4 Financial Statements.


(a) The Company has delivered to Parent unaudited balance sheets of the Company as of June 26, 1998 (the "Interim Balance Sheet") and the related unaudited income statement, statement of stockholders' equity and statement of cash flows of the Company for the periods then ended (collectively, the "Financial Statements"). The Financial Statements: (i) were prepared in accordance with
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |