<PAGE> 1
EXHIBIT 2.2
ARTICLES OF MERGER
OF
ROBIN MERGER CORPORATION,
a Washington corporation
(disappearing corporation)
with and into
HOMEGROCER.COM, INC.,
a Washington corporation
(surviving corporation)
To the Secretary of State
State of Washington
Pursuant to the provisions of the Washington Business Corporation Act,
HomeGrocer.com, Inc. and Robin Merger Corporation, both Washington corporations,
hereby submit the following Articles of Merger:
1. PLAN OF MERGER. The Plan of Merger attached hereto and made a part
hereof to these Articles of Merger as EXHIBIT A, is the Plan of Merger for
merging Robin Merger Corporation with and into HomeGrocer.com, Inc.
2. BOARD OF DIRECTOR APPROVAL. The Plan of Merger was adopted by
resolution adopted by unanimous written consent of the Board of Directors of
HomeGrocer.com, Inc. on June 23, 2000, and by resolution adopted by unanimous
written consent of the Board of Directors of Robin Merger Corporation on June
25, 2000.
3. SHAREHOLDER APPROVAL. The Plan of Merger was duly approved by the sole
shareholder of Robin Merger Corporation and the shareholders of HomeGrocer.com,
Inc. pursuant to RCW 23B.11.030.
4. EFFECTIVE TIME AND DATE. The merger shall become effective as of 1:00
p.m. pacific daylight time, on September 5, 2000.
DATED as of this 1st day of September, 2000.
Surviving Corporation: HOMEGROCER.COM, INC.
a Washington corporation
/s/ MARY ALICE TAYLOR
----------------------------------------
Mary Alice Taylor
Chairman of the Board and
Chief Executive Officer
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<PAGE> 2
EXHIBIT A
PLAN OF MERGER
(WASHINGTON)
of
ROBIN MERGER CORPORATION,
a Washington corporation
(disappearing corporation),
with and into
HOMEGROCER.COM, INC.,
a Washington corporation
(surviving corporation)
THIS PLAN OF MERGER ("PLAN OF MERGER") is entered into as of June 25, 2000,
between Robin Merger Corporation, a Washington corporation ("ROBIN"), and
HomeGrocer.com, Inc., a Washington corporation ("HOMEGROCER").
RECITALS
A. HomeGrocer is a corporation organized and existing under the laws of
the State of Washington. The authorized capital stock of HomeGrocer consists of
1,000,000,000 shares of Common Stock, no par value, of which 128,282,596 shares
were issued and outstanding as of June 12, 2000, and 10,000,000 shares of
Preferred Stock, no par value, of which no shares are issued or outstanding.
B. Robin is a corporation organized and existing under the laws of the
State of Washington. The authorized capital stock of Robin consists of 1,000
shares of Common Stock, $0.001 par value per share, of which 1,000 shares are
issued and outstanding as of the date hereof. All of the issued and outstanding
shares of Robin are held by Webvan Group, Inc., a Delaware corporation
("WEBVAN").
C. Webvan, HomeGrocer and Robin have entered into an Agreement and Plan
of Reorganization, dated June 25, 2000 (the "AGREEMENT"). Robin and HomeGrocer
have deemed it advisable and in the best interests of Robin and HomeGrocer,
respectively, and their respective shareholders, that Robin be merged with and
into HomeGrocer as authorized by the laws of the State of Washington and
pursuant to the terms and conditions of the Agreement, with HomeGrocer surviving
as a wholly owned subsidiary of Webvan.
D. The Agreement is intended to be a plan of reorganization under the
provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "CODE").
The following Plan of Merger is made pursuant to the Washington Business
Corporation Act:
2. The Parties. This Plan of Merger is filed in connection with the
Agreement. The parties to the Merger are HomeGrocer and Robin.
<PAGE> 3
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
3. The Merger. At the Effective Time (as defined in Section 3 of this
Plan of Merger) and subject to and upon the terms and conditions of this Plan of
Merger and the Agreement and the applicable provisions of The Washington
Business Corporations Act, as amended ("WASHINGTON LAW"), Robin shall be merged
with and into HomeGrocer (the "MERGER"), the separate corporate existence of
Robin shall cease and HomeGrocer shall continue as the surviving corporation and
as a wholly-owned subsidiary of Webvan. HomeGrocer as the surviving corporation
after the Merger is hereinafter sometimes referred to as the "SURVIVING
CORPORATION."
4. Effective Time; Closing. Subject to the provisions of this Plan of
Merger and the Agreement, the parties hereto shall cause the Merger to be
consummated by filing this Plan of Merger and articles or other appropriate
filing documents with the Secretary of State of the State of Washington in
accordance with the relevant provisions of Washington Law (collectively, the
"ARTICLES OF MERGER"). The time specified as the effective time in the Articles
of Merger is referred to herein as the "EFFECTIVE TIME." The closing of the
Merger (the "CLOSING") shall take place at the offices of Wilson Sonsini
Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto,
California at a time and date to be specified by the parties (the "CLOSING
DATE").
5. Effect of the Merger. At the Effective Time, the effect of the Merger
shall be as provided in the Agreement and this Plan of Merger and the applicable
provisions of Washington Law. Without limiting the generality of the foregoing
and subject thereto, at the Effective Time all the property, rights, privileges,
powers and franchises of HomeGrocer and Robin shall vest in the Surviving
Corporation and all debts, liabilities and duties of HomeGrocer and Robin shall
become the debts, liabilities and duties of the Surviving Corporation.
6. Articles of Incorporation; Bylaws.
(a) At the Effective Time, the Articles of Incorporation of Robin, as
in effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation until thereafter amended as provided
by law and such Articles of Incorporation of the Surviving Corporation;
provided, however, that at the Effective Time the Articles of Incorporation of
the Surviving Corporation shall be amended so that the name of the Surviving
Corporation shall be "HomeGrocer.com, Inc."
(b) The Bylaws of Robin, as in effect immediately prior to the
Effective Time, shall be, at the Effective Time, the Bylaws of the Surviving
Corporation until thereafter amended.
7. Directors and Officers. The initial directors of the Surviving
Corporation shall be the directors of Robin immediately prior to the Effective
Time, each to hold office in accordance with the Articles of Incorporation and
Bylaws of the Surviving Corporation until their respective successors are duly
elected or appointed and qualified. The initial officers of the Surviving
Corporation shall be the officers of Robin immediately prior to the Effective
Time, each to hold office in accordance with the Articles of Incorporation and
Bylaws of the Surviving Corporation until their respective successors are duly
appointed.
8. Conversion of Shares.
(a) Conversion of HomeGrocer Common Stock. Each share of Common
Stock, no par value per share, of HomeGrocer (the "HOMEGROCER COMMON STOCK")
issued and outstanding
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<PAGE> 4
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
immediately prior to the Effective Time, other than any shares of HomeGrocer
Common Stock ("SHARES") to be cancelled in accordance with Section 7(b) of this
Plan of Merger and Dissenting Shares (as defined in Section 8 of this Plan of
Merger), will be cancelled and extinguished and automatically converted (subject
to Sections 7(c) and (d) of this Plan of Merger) into the right to receive that
number of shares of Common Stock, $0.0001 par value per share, of Webvan (the
"WEBVAN COMMON STOCK") equal to 1.07605 (the "EXCHANGE RATIO"), upon surrender
of the certificate representing such share of HomeGrocer Common Stock in the
manner provided in Section 9 of this Plan of Merger (and in the case of a lost,
stolen or destroyed certificate, upon delivery of an affidavit (and bond, if
required) in accordance with Section 9(i) of this Plan of Merger). If any shares
of HomeGrocer Common Stock outstanding immediately prior to the Effective Time
are unvested or are subject to a repurchase option, risk of forfeiture or other
condition under any applicable restricted stock purchase agreement or other
agreement with the HomeGrocer, then, subject to the terms of the plan or
agreement pursuant to which such shares were issued, the shares of Webvan Common
Stock issued in exchange for such shares of HomeGrocer Common Stock will also be
unvested and subject to the same repurchase option, risk of forfeiture or other
condition and the certificates representing such shares of Webvan Common Stock
may accordingly be marked with appropriate legends. HomeGrocer shall take all
action that may be necessary to ensure that, from and after the Effective Time,
Webvan is entitled to exercise any such repurchase option or other right set
forth in any such restricted stock purchase agreement or other agreement.
(b) Cancellation of HomeGrocer-Owned Shares. Each share of HomeGrocer
Common Stock which is, immediately prior to the Effective Time of the Merger,
held in the treasury of HomeGrocer or held by Webvan, Robin or any other direct
or indirect wholly-owned subsidiary of Webvan or HomeGrocer shall be canceled
and extinguished without any conversion thereof.
(c) Adjustments to Exchange Ratio. The Exchange Ratio shall be
adjusted to reflect appropriately the effect of any stock split, reverse stock
split, stock dividend (including any dividend or distribution of securities
convertible into or exercisable for Webvan Common Stock or HomeGrocer Common
Stock), reorganization, recapitalization, reclassification or other like change
with respect to Webvan Common Stock or HomeGrocer Common Stock occurring on or
after the date hereof and prior to the Effective Time.
(d) Fractional Shares. No fraction of a share of Webvan Common Stock
will be issued by virtue of the Merger, but in lieu thereof, each holder of
shares of HomeGrocer Common Stock who would otherwise be entitled to a fraction
of a share of Webvan Common Stock (after aggregating all fractional shares of
Webvan Common Stock that otherwise would be received by such holder) shall, upon
surrender of such holder's Certificates(s) (as defined in Section 9(c) of this
Plan of Merger), receive from Webvan an amount of cash (rounded to the nearest
whole cent), without interest, equal to the product of (i) such fraction and
(ii) the average closing price of Webvan Common Stock for the five trading days
immediately preceding the last full trading day prior to the Effective Time, as
reported on the Nasdaq National Market System ("NASDAQ").
(e) HomeGrocer Options and Warrants. At the Effective Time of the
Merger, options to purchase shares of HomeGrocer Common Stock and stock
appreciation rights then outstanding under HomeGrocer's 1997 Incentive
Compensation Plan (the "1997 PLAN"), 1999 Stock Incentive Plan (the "1999 PLAN")
and 1999 Directors' Stock Option Plan (the "DIRECTORS PLAN" and, together with
the 1997 Plan and the 1999 Plan, the "HOMEGROCER PLANS") (collectively, the
"OPTIONS") and
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<PAGE> 5
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
each outstanding warrant to purchase shares of HomeGrocer Common Stock
(collectively, the "WARRANTS") will by virtue of the Merger be assumed by
Webvan. Each Option and each Warrant so assumed by Webvan will continue to have,
and be subject to, the same terms and conditions of such Options or Warrants
immediately prior to the Effective Time (including, without limitation, any
repurchase rights or vesting provisions, including, to the extent not otherwise
waived, accelerated vesting on the terms provided in HomeGrocer's 1997 Stock
Option Plan for options granted prior to January 10, 2000), except that (i) each
Option and each Warrant will be exercisable (or will become exercisable in
accordance with its terms) for that number of whole shares of Webvan Common
Stock equal to the product of the number of shares of HomeGrocer Common Stock
that were issuable upon exercise of such Option or Warrant, as applicable,
immediately prior to the Effective Time multiplied by the Exchange Ratio,
rounded down to the nearest whole number of shares of Webvan Common Stock and
(ii) the per share exercise price for the shares of Webvan Common Stock issuable
upon exercise of such assumed Option or Warrant will be equal to the quotient
determined by dividing the exercise price per share of HomeGrocer Common Stock
at which such Option or Warrant, as applicable, was exercisable immediately
prior to the Effective Time by the Exchange Ratio, rounded up to the nearest
whole cent.
(f) Stock Purchase Plan. Prior to the Effective Time of the Merger,
outstanding purchase rights under HomeGrocer's 1999 Employee Stock Purchase Plan
(the "HOMEGROCER ESPP") shall be exercised in accordance with Section 20(b) of
the HomeGrocer ESPP and each share of HomeGrocer Common Stock purchased pursuant
to such exercise shall by virtue of the Merger, and without any action on the
part of the holder thereof, be converted into the right to receive a number of
shares of Webvan Common Stock equal to the product of the number of shares of
HomeGrocer Common Stock that were issuable upon exercise of such purchase rights
under the HomeGrocer ESPP immediately prior to the Effective Time of the Merger
multiplied by the Exchange Ratio without issuance of certificates representing
issued and outstanding shares of HomeGrocer Common Stock to HomeGrocer ESPP
participants. HomeGrocer agrees that it shall terminate the HomeGrocer ESPP
immediately following the aforesaid purchase of shares of HomeGrocer Common
Stock thereunder.
(g) Conversion of Robin Common Stock. Each share of common stock,
$0.001 par value, of Robin ("ROBIN COMMON STOCK") issued and outstanding
immediately prior to the Effective Time of the Merger shall be converted into
and exchanged for one validly issued, fully paid and nonassessable share of
common stock, $0.001 par value, of the Surviving Corporation ("SURVIVING
CORPORATION COMMON STOCK"). Each stock certificate of Robin evidencing ownership
of any such shares shall after the Effective Time of the Merger evidence
ownership of the shares of Surviving Corporation Common Stock into which such
shares of Robin Common Stock were converted.
9. Dissenting Shares. Notwithstanding any provision of this Plan of
Merger or the Agreement to the contrary, each outstanding share of HomeGrocer
Common Stock, the holder of which has demanded and perfected such holder's right
to dissent from the Merger and to be paid the fair value of such shares by
HomeGrocer in accordance with Sections 23B.13.010 et seq. of Washington Law
("DISSENTING SHARES") and, as of the Effective Time, has not effectively
withdrawn or lost such dissenters' rights, shall not be converted into or
represent a right to receive the merger consideration described in Section 7 of
this Plan of Merger, but the holder thereof shall be entitled only to such
rights as are granted by Washington Law. HomeGrocer shall give Webvan (i) prompt
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<PAGE> 6
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
written notice of any notice of intent to demand fair value for any shares of
HomeGrocer Common Stock, withdrawals of such notices and any other instruments
served pursuant to Washington Law and received by HomeGrocer, and (ii) the
opportunity to direct all negotiations and proceedings with respect to demands
for fair value for shares of HomeGrocer Common Stock under Washington Law.
HomeGrocer shall not, except with the prior written consent of Webvan,
voluntarily make any payment with respect to any demands for fair value for
shares of HomeGrocer Common Stock or offer to settle or settle any such demands.
10. Surrender of Certificates; Payment of Stock Consideration.
(a) Exchange Agent. ChaseMellon Shareholder Services LLC shall act as
exchange agent (the "EXCHANGE AGENT") in the Merger.
(b) Webvan to Provide Common Stock. Promptly after the Effective
Time, Webvan shall make available to the Exchange Agent, for exchange in
accordance with this Plan of Merger and the Agreement, (i) the shares of Webvan
Common Stock issuable in accordance with Section 7 of this Plan of Merger in
exchange for outstanding shares of HomeGrocer Common Stock and (ii) cash in an
amount sufficient for payment in lieu of fractional shares in accordance with
Section 7 of this Plan of Merger and any dividends or distributions to which
holders of shares of HomeGrocer Common Stock may be entitled in accordance with
Section 9 of this Plan of Merger.
(c) Exchange Procedures. As soon as practicable after the Effective
Time (and in any event within five business days after Webvan's receipt of all
necessary shareholder lists and other supporting information), Webvan shall
cause the Exchange Agent to mail to each holder of record (as of the Effective
Time) of a certificate or certificates (the "CERTIFICATES"), which immediately
prior to the Effective Time represented outstanding Shares whose Shares were
converted into the right to receive shares of Webvan Common Stock in accordance
with Section 7 of this Plan of Merger, cash in lieu of any fractional shares in
accordance with Section 7 of this Plan of Merger and any dividends or other
distributions in accordance with Section 9 of this Plan of Merger, (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall contain such other provisions as
Webvan may reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing shares
of Webvan Common Stock, cash in lieu of any fractional shares in accordance with
Section 7 of this Plan of Merger and any dividends or other distributions in
accordance with Section 9 of this Plan of Merger. Upon surrender of Certificates
for cancellation to the Exchange Agent or to such other agent or agents as may
be appointed by Webvan, together with such letter of transmittal, duly completed
and validly executed in accordance with the instructions thereto, the holders of
such Certificates shall be entitled to receive in exchange therefor certificates
representing the number of whole shares of Webvan Common Stock into which their
shares of HomeGrocer Common Stock were converted at the Effective Time, payment
in lieu of fractional shares which such holders have the right to receive in
accordance with Section 7 of this Plan of Merger and any dividends or
distributions payable in accordance with Section 9 of this Plan of Merger, and
the Certificates so surrendered shall forthwith be cancelled. Until so
surrendered, outstanding Certificates will be deemed from and after the
Effective Time, for all corporate purposes, in accordance with Section 9 of this
Plan of Merger as to the payment of dividends and other distributions, to
evidence only the ownership of the number of full shares of Webvan Common Stock
into which such shares of HomeGrocer Common Stock shall
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<PAGE> 7
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
have been so converted and the right to receive an amount in cash in lieu of the
issuance of any fractional shares in accordance with Section 7 of this Plan of
Merger.
(d) Distributions With Respect to Unexchanged Shares. No dividends or
other distributions declared or made after the date of the Agreement and this
Plan of Merger with respect to Webvan Common Stock with a record date after the
Effective Time will be paid to the holders of any unsurrendered Certificate(s)
with respect to the shares of Webvan Common Stock represented thereby until the
holders of record of such Certificate(s) shall surrender such Certificate(s).
Subject to applicable law, following surrender of any such Certificate(s), the
Exchange Agent shall deliver to the record holders thereof, without interest, a
certificate(s) representing whole shares of Webvan Common Stock issued in
exchange therefor along with payment in lieu of fractional shares in accordance
with Section 7 of this Plan of Merger and the amount of any such dividends or
other distributions with a record date after the Effective Time payable with
respect to such whole shares of Webvan Common Stock.
(e) Transfers of Ownership. If any certificate representing shares of
Webvan Common Stock is to be issued in a name other than that in which the
Certificate surrendered in exchange therefor is registered, it will be a
condition of the issuance thereof that the Certificate so surrendered will be
properly endorsed and otherwise in proper form for transfer and that the persons
requesting such exchange will have paid to Webvan or any agent designated by it
any transfer or other taxes required by reason of the issuance of certificates
representing shares of Webvan Common Stock in any name other than that of the
registered holder of the Certificates surrendered, or established to the
satisfaction of Webvan or any agent designated by it that such tax has been paid
or is not payable.
(f) Required Withholding. Each of the Exchange Agent, Webvan and the
Surviving Corporation shall be entitled to deduct and withhold from any
consideration payable or otherwise deliverable pursuant to this Plan of Merger
and the Agreement to any holder or former holder of HomeGrocer Common Stock such
amounts as may be required to be deducted or withheld therefrom under the Code
or under any provision of state, local or foreign tax law or under any other
applicable legal requirement. To the extent such amounts are so deducted or
withheld, such amounts shall be treated for all purposes under the Agreement and
this Plan of Merger as having been paid to the person to whom such amounts would
otherwise have been paid.
(g) No Liability. Notwithstanding anything to the contrary in this
Section 9, none of the Exchange Agent, Webvan, the Surviving Corporation, or any
party hereto shall be liable to a holder of shares of Webvan Common Stock or
HomeGrocer Common Stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(h) No Further Ownership Rights in HomeGrocer Common Stock. All
shares of Webvan Common Stock issued upon the surrender for exchange of shares
of HomeGrocer Common Stock in accordance with the terms hereof (together with
any cash paid in respect thereof in accordance with Sections 7 and 9 of this
Plan of Merger) shall be deemed to have been issued in full satisfaction of all
rights pertaining to such shares of HomeGrocer Common Stock, and there shall be
no further registration of transfers on the records of the Surviving Corporation
of shares of HomeGrocer Common Stock which were outstanding immediately prior to
the Effective Time. If,
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<PAGE> 8
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be cancelled and exchanged in accordance
with Sections 7 and 9 of this Plan of Merger.
(i) Lost, Stolen or Destroyed Certificates. In the event that any
Certificate shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificate, upon the
making of an affidavit of that fact by the holder thereof, certificates
representing the shares of Webvan Common Stock into which the shares of
HomeGrocer Common Stock represented by such Certificates were converted in
accordance with Section 7 of this Plan of Merger, cash for fractional shares, if
any, as may be required in accordance with Section 7 of this Plan of Merger and
any dividends or distributions payable in accordance with Section 9 of this Plan
of Merger; provided, however, that Webvan may, in its discretion and as a
condition precedent to the issuance of such certificates representing shares of
Webvan Common Stock, cash and other distributions, require the owner of such
lost, stolen or destroyed Certificate to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against
Webvan, the Surviving Corporation, or the Exchange Agent with respect to the
Certificates alleged to have been lost, stolen or destroyed.
(j) Tax and Accounting Consequences.
(1) It is intended by the parties hereto that the Merger shall
constitute a reorganization within the meaning of Section 368(a) of the Code.
The parties hereto adopt the Agreement and this Plan of Merger as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Income Tax Regulations.
(2) It is also intended by the parties hereto that the Merger
shall qualify for accounting treatment as a purchase.
11. Taking of Necessary Action; Further Action. If, at any time after the
Effective Time of the Merger, any further action is necessary or desirable to
carry out the purposes of this Plan of Merger and to vest the Surviving
Corporation with full right, title and possession to all assets, property,
rights, privileges, powers and franchises of HomeGrocer and Robin, the officers
and directors of HomeGrocer and the Robin will take all such lawful and
necessary action.
12. Shareholder and Stockholder Meetings. HomeGrocer shall call and hold a
shareholders' meeting and Webvan shall call and hold a stockholders' meeting as
promptly as practicable after the date hereof for the purpose of voting upon the
adoption and approval of the Agreement and the approval of the Merger (in the
case of the shareholders' meeting) and the issuance of Webvan common stock in
the merger (in the case of the Webvan stockholders' meeting), and HomeGrocer and
Webvan shall use all reasonable efforts to hold the Webvan stockholders' meeting
and the HomeGrocer shareholders' meeting on the same day and as soon as
practicable after the date on which the S-4 becomes effective. Nothing herein
shall prevent HomeGrocer or Webvan from adjourning or postponing the HomeGrocer
shareholders' meeting or the Webvan stockholders' meeting, as the case may be,
if there are insufficient shares of HomeGrocer common stock or Webvan common
stock, as the case may be, necessary to conduct business at their respective
meetings of the shareholders or stockholders. The Board of Directors of
HomeGrocer shall submit the Agreement and the Merger for shareholder approval
pursuant to Section 23B.11.030(b)(3) of the Washington Law subject only to the
condition of shareholder approval as described in section 2.4 of the Agreement.
Unless HomeGrocer's Board of Directors has withdrawn its recommendation of the
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<PAGE> 9
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
Agreement and the Merger in compliance with section 5.4(a) of the Agreement,
HomeGrocer shall use commercially reasonable efforts to solicit from its
shareholders proxies in favor of the adoption and approval of the Agreement and
the approval of the Merger and shall take all other commercially reasonable
action necessary or advisable to secure the vote or consent of shareholders
required by Washington Law or applicable Nasdaq requirements to obtain such
approval. Webvan shall use commercially reasonable efforts to solicit from its
stockholders proxies in favor of the share issuance and shall take all other
commercially reasonable action necessary or advisable to secure the vote or
consent of stockholders required by the Delaware Law or applicable Nasdaq
requirements to obtain such approval. HomeGrocer shall call and hold the
HomeGrocer shareholders' meeting for the purpose of voting upon the adoption and
approval of the Agreement and the approval of the Merger whether or not
HomeGrocer's Board of Directors at any time subsequent to the date hereof
withdraws its recommendation of the Agreement and the Merger.
13. Implementation. The Board of Directors and the proper officers of
Robin and of HomeGrocer, respectively, are hereby authorized, empowered, and
directed to do any and all acts and things, and to make, execute, deliver, file,
and/or record any and all instruments, papers, and documents which shall be or
become necessary, proper, or convenient to carry out or put into effect any of
the provisions of this Plan of Merger or of the Merger herein provided for.
14. Adoption of Plan of Merger. This Plan of Merger was adopted by
resolution of the Board of Directors of HomeGrocer and Robin.
15. Amendment. This Plan of Merger may, to the extent permitted by law, be
amended, supplemented or interpreted at any time by action taken by the Board of
Directors of both Robin and HomeGrocer; provided, however, that the Plan of
Merger may not be amended or supplemented after having been approved by the sole
shareholder of Robin or the shareholders of HomeGrocer except by a vote or
consent of shareholders in accordance with applicable law.
16. Counterparts. This Plan of Merger may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
[The remainder of this page has been intentionally left blank]
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<PAGE> 10
Exhibit A to Articles of Merger
Plan of Merger of Robin Merger Corporation and HomeGrocer.com, Inc.
-------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Plan of Merger as of June 25, 2000.
ROBIN:
ROBIN MERGER CORPORATION,
a Washington corporation
By: /s/ MARK X. ZALESKI
-------------------------------------
Mark X. Zaleski
President
HOMEGROCER:
HOMEGROCER.COM, INC.,
a Washington corporation
By:/s/ MARY ALICE TAYLOR
-------------------------------------
Mary Alice Taylor
Chairman of the Board and
Chief Executive Officer
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