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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 24, 1999 (this
"AGREEMENT"), by and between FTM Media, Inc., a Delaware corporation ("OLD
FTM"), and FTM Media, Inc., a Delaware corporation ("NEW FTM").
WITNESSETH:
WHEREAS, the Board of Directors of Old FTM has determined that it is in
the best interests of Old FTM to reincorporate in Delaware;
WHEREAS, the Board of Directors of Old FTM formed a wholly-owned
subsidiary, New FTM for the purpose of such reincorporation in Delaware;
WHEREAS, the Boards of Directors of New FTM and Old FTM wish to consummate
the merger transaction provided for herein in which Old FTM will, subject to the
terms and conditions set forth herein, merge (the "MERGER") with and into New
FTM, so that New FTM is the surviving corporation in the Merger; and
WHEREAS, the parties desire to make certain representations, warranties
and agreements in connection with the Merger and also to prescribe certain
conditions to the Merger;
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below:
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"NEW FTM" shall have the meaning set forth in the recitals to this
Agreement.
"NEW FTM BOARD" shall mean the Board of Directors of NEW FTM.
"NEW FTM STOCK" shall mean FTM Common Stock and NEW FTM Preferred Stock.
"OLD FTM ARTICLES" shall mean the Restated Articles of Incorporation of
Old FTM.
"OLD FTM BOARD" shall mean the Board of Directors of Old FTM.
"OLD FTM STOCK" shall mean Old FTM Common Stock and Old FTM Preferred
Stock.
"PERSON" or "PERSON" shall mean any individual, bank, corporation,
partnership, association, joint-stock company, business trust or unincorporated
organization.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"TREASURY SHARES" shall mean shares of held by Old FTM or any of its
Subsidiaries, or by New FTM or any of its Subsidiaries, in each case other than
in a fiduciary capacity or as a result of debts previously contracted in good
faith.
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ARTICLE II
THE MERGER; EFFECTS OF THE MERGER
2.01 THE MERGER.
(a) THE SURVIVING CORPORATION. At the Effective Time, Old FTM shall
merge with and into New FTM (the "MERGER"), the separate corporate existence of
Old FTM shall cease and New FTM shall survive and continue to exist as a
Delaware corporation (New FTM, as the surviving corporation in the Merger,
sometimes being referred to herein as the "SURVIVING CORPORATION").
(b) EFFECTIVENESS AND EFFECTS OF THE MERGER. Subject to the
satisfaction or waiver of the conditions set forth in ARTICLE VI in accordance
with this Agreement, the Merger shall become effective upon the occurrence of
both (i) the filing in the office of the Secretary of State of Colorado of
articles of merger in accordance with Section 7-114-103 of the Colorado Business
Corporation Act (the "CBCA") and (ii) the filing in the office of the Secretary
of State of the State of Delaware of a certificate of merger in accordance with
Section 252 of the Delaware General Corporate Law (the "DGCL"), or such later
date and time as may be set forth in such articles and certificate. The Merger
shall have the effects prescribed in the CBCA and in the DGCL.
(c) CERTIFICATE OF INCORPORATION AND BY-LAWS. The certificate of
incorporation and by-laws of the Surviving Corporation shall be those of New
FTM, as in effect immediately prior to the Effective Time.
2.02 EFFECTIVE DATE AND EFFECTIVE TIME.
Subject to the satisfaction or waiver of the conditions as set forth in
ARTICLE VI in accordance with this Agreement, the parties shall cause the
effective date of the Merger (the "EFFECTIVE DATE") to occur on (i) the third
business day to occur after the last of the conditions set forth in ARTICLE VI
shall have been satisfied or waived in accordance with the terms of this
Agreement or (ii) such other date to which the parties may agree. The time on
the Effective Date when the Merger shall become effective is referred to as the
"EFFECTIVE TIME."
2.03 TAX CONSEQUENCES. It is intended that the Merger shall qualify as a
reorganization under Section 368(a) of the Code.
ARTICLE III
MERGER CONSIDERATION; EXCHANGE PROCEDURES
3.01 MERGER CONSIDERATION. Subject to the provisions of this Agreement,
at the Effective Time, automatically by virtue of the Merger and without any
action on the part of any party or stockholder:
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(a) OUTSTANDING OLD FTM COMMON STOCK. Each share, excluding
Treasury Shares, of the common stock, par value $.0001 per share, of Old FTM
(the "OLD FTM COMMON STOCK"), issued and outstanding immediately prior to the
Effective Time shall become and be converted into the right to receive 1.00
shares (the "EXCHANGE RATIO") of the common stock, par value $.001 per share, of
New FTM ("NEW FTM COMMON STOCK").
(b) OUTSTANDING OLD FTM PREFERRED STOCK. Each share of Old FTM
Series B Convertible Preferred Stock, par value $.004, (the "OLD FTM PREFERRED
STOCK"), excluding any Treasury Shares, issued and outstanding immediately prior
to the Effective Time, shall become and be converted into one share of a new
series of preferred stock of New FTM ("NEW FTM SERIES B PREFERRED STOCK") having
terms substantially identical to those of the Old FTM Preferred Stock.
(c) OUTSTANDING NEW FTM COMMON STOCK. Each share of New FTM Common
Stock issued and outstanding immediately prior to the Effective Time shall be
canceled and retired at the Effective Time and no consideration shall be issued
in exchange therefor.
3.02 RIGHTS AS STOCKHOLDERS; STOCK TRANSFERS.
At the Effective Time, holders of Old FTM Stock shall cease to be, and
shall have no rights as, stockholders of Old FTM, other than to receive any
dividend or other distribution with respect to such Old FTM Stock with a record
date occurring prior to the Effective Time and the consideration provided under
this Article III. After the Effective Time, there shall be no transfers on the
stock transfer books of Old FTM or the Surviving Corporation of shares of Old
FTM Stock.
3.03 EXCHANGE PROCEDURES.
(a) At or prior to the Effective Time, New FTM shall deposit, or
shall cause to be deposited, with a bank or trust company (the "EXCHANGE
AGENT"), for the benefit of the holders of certificates formerly representing
shares of Old FTM Common Stock ("OLD CERTIFICATES"), for exchange in accordance
with this Article III, certificates representing the shares of New FTM Common
Stock ("NEW CERTIFICATES") in exchange for outstanding shares of Old FTM Common
Stock. Certificates evidencing shares of Old FTM Preferred Stock will remain
outstanding and will represent the shares of New FTM Series A Preferred Stock
into which such shares of Old FTM Preferred Stock are converted on the Effective
Date.
(b) As promptly as practicable after the Effective Date, New FTM
shall send or cause to be sent to each former holder of record of shares (other
than Treasury Shares) of Old FTM Common Stock immediately prior to the Effective
Time transmittal materials for use in exchanging such stockholder's Old
Certificates for the consideration set forth in this Article III. New FTM shall
cause the New Certificates into which shares of a stockholder's Old FTM Common
Stock are converted on the Effective Date representing such shares of Old FTM
Common Stock (or indemnity reasonably satisfactory to New FTM
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and the Exchange Agent, if any of such certificates are lost, stolen or
destroyed) owned by such stockholder.
(c) Notwithstanding the foregoing, neither the Exchange Agent nor
any party hereto shall be liable to any former holder of Old FTM Stock for any
amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(d) No dividends or other distributions with respect to New FTM
Common Stock with a record date occurring after the Effective Time shall be paid
to the holder of any unsurrendered Old Certificate representing shares of Old
FTM Common Stock converted in the Merger into the right to receive shares of
such New FTM Common Stock until the holder thereof shall be entitled to receive
New Certificates in exchange therefor in accordance with this Article III, and
no such shares of New FTM Common Stock shall be eligible to vote until the
holder of Old Certificates is entitled to receive New Certificates in accordance
with this Article III. After becoming so entitled in accordance with this
Article III, the record holder thereof also shall be entitled to receive any
such dividends or other distributions, without any interest thereon, which
theretofore had become payable with respect to shares of New FTM Common Stock
such holder had the right to receive upon surrender of the Old Certificate.
(e) At the Effective Time, all stock options or other rights to
purchase shares of Old FTM Common Stock which are then outstanding and
unexercised shall cease to represent a right to acquire shares of Old FTM Common
Stock and shall be converted automatically into options or rights to purchase
shares of New FTM Common Stock, and New FTM shall assume each such Old FTM stock
option or rights subject to the terms thereof. In addition, at the Effective
Time, the Old FTM 1999 Stock Option Plan shall become a stock option plan of New
FTM.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 REPRESENTATIONS AND WARRANTIES. Old FTM hereby represents and
warrants to New FTM, and New FTM hereby represents and warrants to Old FTM as
follows:
(a) ORGANIZATION, STANDING AND AUTHORITY. Such party is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization. Such party is duly qualified to do
business and is in good standing in the states of the United States and foreign
jurisdictions where its ownership or leasing of property or assets or the
conduct of its business requires it to be so qualified. It has in effect all
federal, state, local, and foreign governmental authorizations necessary for it
to own or lease its properties and assets and to carry on its business as it is
now conducted.
(b) CORPORATE POWER. Such party and each of its Subsidiaries has the
corporate power and authority to carry on its business as it is now being
conducted and to own all its properties and assets; and it has the corporate
power and authority to execute,
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deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby and thereby.
(c) CORPORATE AUTHORITY. (i) In the case of the representations and
warranties of Old FTM, (A) subject in the case of this Agreement to receipt of
the requisite approval and adoption of this Agreement and the Merger by the
holders of a majority of the outstanding shares of Old FTM Common Stock entitled
to vote thereon, this Agreement and the transactions contemplated hereby and
thereby have been authorized by all necessary corporate action of Old FTM and
the Old FTM Board prior to the date hereof and (B) this Agreement are legal,
valid and binding agreements of Old FTM, enforceable in accordance with their
respective terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors' rights
or by general equity principles). (ii) In the case of the representations and
warranties of New FTM, (A) subject in the case of this to receipt of the
requisite approval and adoption of this Agreement and the Merger by the holders
of a majority of the outstanding shares of New FTM Common Stock entitled to vote
thereon and is a legal, valid and binding agreement of New FTM, enforceable in
accordance with its respective terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to or
affecting creditors' rights or by general equity principles).
ARTICLE V
COVENANTS
Old FTM hereby covenants to and agrees with New FTM, and New FTM hereby
covenants to and agrees with Old FTM, that:
5.01 REASONABLE BEST EFFORTS.
Subject to the terms and conditions of this Agreement, it shall use its
reasonable best efforts in good faith to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
desirable, or advisable under applicable laws, so as to permit consummation of
the Merger as promptly as practicable and otherwise to enable consummation of
the transactions contemplated hereby and shall cooperate fully with the other
party hereto to that end.
5.02 STOCKHOLDER APPROVALS.
Each of them shall take, in accordance with applicable law, applicable
stock exchange rules and its respective articles or certificate of incorporation
and by-laws, all action necessary to convene, respectively, (i) an appropriate
meeting of stockholders of New FTM to consider and vote upon (A) the approval
and adoption of this Agreement and the Merger and (B) any other matters required
to be approved by New FTM stockholders for consummation of the Merger (including
any adjournment or postponement, the "NEW FTM MEETING"), and (ii) an appropriate
meeting of stockholders of Old FTM to consider and vote upon the approval and
adoption of this Agreement and the Merger and any other
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matters required to be approved by Old FTM's stockholders for consummation of
the Merger (including any adjournment or postponement, the "OLD FTM MEETING";
and each of the New FTM Meeting and the Old FTM Meeting, a "MEETING"),
respectively, as promptly as practicable after the Registration Statement is
declared effective. The New FTM Board and the Old FTM Board shall recommend such
approval, and each of New FTM and Old FTM shall take all reasonable lawful
action to solicit such approval by its respective stockholders. Notwithstanding
the foregoing, the approval by the stockholders of New FTM may take the form of
action by written consent.
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER
The obligations of each of the parties to consummate the Merger is
conditioned upon the satisfaction at or prior to the Effective Time of each of
the following:
6.01 STOCKHOLDER VOTE. Approval and adoption of this Agreement and the
Merger by the requisite vote of the stockholders of Old FTM and approval and
adoption of this Agreement and the Merger by the requisite vote of the
stockholders of New FTM.
6.02 REGULATORY APPROVALS. All regulatory approvals required to
consummate the transactions contemplated hereby, shall have been obtained and
shall remain in full force and effect and all statutory waiting periods in
respect thereof shall have expired and no such approvals shall contain any
conditions or restrictions which either the New FTM Board or the Old FTM Board
reasonably determines in good faith would, following the Effective Time, have a
material adverse effect on the Surviving Corporation.
6.03 THIRD PARTY CONSENTS. All consents or approvals of all persons
(other than Regulatory Authorities) required for the consummation of the Merger
shall have been obtained and shall be in full force and effect, unless the
failure to obtain any such consent or approval is not reasonably likely to have,
individually or in the aggregate, a material adverse effect on Old FTM or New
FTM.
6.04 NO INJUNCTION, ETC. No order, decree or injunction of any court or
agency of competent jurisdiction shall be in effect, and no law, statute or
regulation shall have been enacted or adopted, that enjoins, prohibits or makes
illegal the consummation of any of the transactions contemplated hereby.
6.05 CONDITIONS TO INRG MERGER SATISFIED OR WAIVED. All conditions
precedent to the consummation of the merger of Interactive Radio Group, Inc.
with and into New FTM (other than the consummation of this Merger) shall have
been satisfied or waived.
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ARTICLE VII
TERMINATION
7.01 TERMINATION. This Agreement may be terminated, and the Merger may be
abandoned at any time prior to the Effective Time (either before or after the
approval of the shareholders or either or both of New FTM or Old FTM) by the
mutual consent of New FTM and Old FTM.
7.02 EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination
of this Agreement and the abandonment of the Merger pursuant to this ARTICLE
VII, no party to this Agreement shall have any liability or further obligation
to any other party hereunder.
ARTICLE VIII
MISCELLANEOUS
8.01 SURVIVAL. All representations, warranties, agreements and covenants
contained in this Agreement shall not survive the Effective Time or termination
of this Agreement if this Agreement is terminated prior to the Effective Time.
8.02 WAIVER; AMENDMENT. Prior to the Effective Time, any provision of
this Agreement may be (i) waived by the party benefited by the provision, or
(ii) amended or modified at any time, by an agreement in writing between the
parties hereto, except that, after the Old FTM Meeting the consideration to be
received by the stockholders of Old FTM for each share of Old FTM Stock shall
not thereby be decreased.
8.03 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
8.04 GOVERNING LAW. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of California, without regard to the
conflict of law principles thereof (except to the extent that mandatory
provisions of Federal law or of the corporation laws of the State of Colorado
with respect to Old FTM and Delaware with respect to New FTM are applicable).
8.05 NOTICES. All notices, requests and other communications hereunder to
a party shall be in writing and shall be deemed given if personally delivered,
telecopied (with confirmation) or mailed by registered or certified mail (return
receipt requested) to such party at its address set forth below or such other
address as such party may specify by notice to the parties hereto.
If to Old FTM, to: FTM Media, Inc. (Colorado)
6991 East Camelback Road
Suite D-103
Scottsdale, Arizona 85251
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If to FTM, to: FTM Media, Inc. (Delaware)
6991 East Camelback Road
Suite D-103
Scottsdale, Arizona 85251
With copies to: Irell & Manella LLP
1800 Avenue of the Stars
Suite 900
Los Angeles, CA 90067
Attn: Richard C. Wirthlin, Esq.
8.06 ENTIRE UNDERSTANDING; NO THIRD PARTY BENEFICIARIES. This Agreement
represents the entire understanding of the parties hereto with reference to the
transactions contemplated hereby and thereby and this Agreement supersedes any
and all other oral or written agreements heretofore made. Nothing in this
Agreement expressed or implied, is intended to confer upon any person, other
than the parties hereto or their respective successors, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
FTM MEDIA, INC. (DELAWARE)
By: /s/ Ron Conquest
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Name: Ron Conquest
Title: Chief Executive Officer and President
FTM MEDIA, INC. (COLORADO)
By: /s/ Ron Conquest
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Name: Ron Conquest
Title: Chief Executive Officer and President
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