EXHIBIT 2.2
CERTIFICATE OF OWNERSHIP AND MERGER
OF
AVIARY ACQUISITION CORP.
WITH AND INTO
VIXEL CORPORATION
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Pursuant to Section 253 of the General
Corporation Law of the State of Delaware
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Aviary Acquisition Corp., a Delaware corporation (the "Corporation"),
pursuant to Section 253 of the General Corporation Law of the State of Delaware
(the "DGCL"), hereby certifies as follows:
FIRST: That the name and state of incorporation of each of the
constituent corporations to the merger are as follows:
Name State of Incorporation
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Aviary Acquisition Corp. Delaware
Vixel Corporation Delaware
(Vixel Corporation is referred to herein as "Vixel").
SECOND:That the Corporation owns at least ninety percent (90%) of the
issued and outstanding shares of common stock, $0.0015 par value per share, of
Vixel, (the "Common Stock"), and all of the issued and outstanding shares of
Series B convertible preferred stock, par value $0.001 per share (the "Series B
Preferred Stock"), of Vixel, which are the only outstanding classes of capital
stock of Vixel.
THIRD: That the written consent of the Board of Directors of the
Corporation, by unanimous written consent dated November 17, 2003 pursuant to
Section 141(f) of the DGCL, duly adopted resolutions authorizing the merger of
the Corporation with and into Vixel, which shall be the surviving corporation
(the "Surviving Corporation"), pursuant to Section 253 of the DGCL (the
"Merger"). A true and complete copy of such resolutions is annexed hereto as
Exhibit A. Such resolutions have not been modified or rescinded and are in full
force and effect on the date hereof.
FOURTH:That the unanimous written consent of the sole stockholder of the
Corporation, in accordance with Section 228 of the DGCL, has approved the Merger
pursuant to Section 253 of the DGCL. Such consent has not been modified or
rescinded and is in full force and effect on the date hereof.
FIFTH: That the name of the surviving corporation shall be Vixel
Corporation.
SIXTH: That the Restated Certificate of Incorporation (as amended) of
the Surviving Corporation shall be amended in its entirety to read as set forth
on Annex A attached hereto.
SEVENTH: That this Certificate of Ownership and Merger shall be
effective at 4:00 p.m., Eastern time, for accounting purposes only, November 17,
2003.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Ownership and Merger to be executed in its corporate name as of this 17th day of
November 2003.
AVIARY ACQUISITION CORP.
By: /s/ Paul F. Folino
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Name: Paul F. Folino
Title: President and Chief Executive Officer
EXHIBIT A
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE
BOARD OF DIRECTORS
OF
AVIARY ACQUISITION CORP.
NOVEMBER 17, 2003
The undersigned, being all of the members of the Board of Directors of Aviary
Acquisition Corp., a Delaware corporation (the "Corporation"), acting pursuant
to Section 141(f) of the Delaware General Corporation Law (the "DGCL") and the
bylaws of the Corporation, hereby adopt by this written consent the following
resolutions with the same force and effect as if they had been adopted at a duly
convened meeting of the Board of the Directors of the Corporation, and direct
that this written consent be filed with the minutes of the proceedings of the
Board of Directors of the Corporation.
WHEREAS, the Corporation owns at least ninety percent (90%) of
the issued and outstanding shares of common stock, $0.0015 par value per share
(the "Common Stock"), of Vixel Corporation, a Delaware corporation ("Vixel"),
and all of the outstanding shares of Series B convertible preferred stock, par
value $0.001 per share (the "Series B Preferred Stock" and, together with the
Common Stock, the "Shares" and each a "Share") of Vixel; and
WHEREAS, the Corporation desires to be merged with and into Vixel
pursuant to the provisions of Section 253 of the DGCL; and
NOW THEREFORE BE IT RESOLVED, that effective upon the filing of
an appropriate Certificate of Ownership and Merger with the Secretary of State
of the State of Delaware, the Corporation merge itself (the "Merger") with and
into Vixel, which shall be the surviving corporation (the "Surviving
Corporation"), pursuant to Section 253 of the DGCL, and which will assume all of
the liabilities and obligations of the Corporation; and
FURTHER RESOLVED, that by virtue of the Merger, each then issued
and outstanding Share that is owned by Vixel as treasury stock and each Share
owned by Emulex Corporation, a Delaware corporation and the sole stockholder of
the Corporation ("Emulex"), the Corporation, or any other wholly-owned
subsidiary of Emulex ("Cancelled Shares") shall be cancelled and retired and
shall cease to exist, and no consideration shall be delivered in exchange
therefore; and
FURTHER RESOLVED, that by virtue of the Merger, each issued and
outstanding Share (other than Cancelled Shares and Shares which are held by
stockholders exercising appraisal rights pursuant to and in accordance with
Section 262 of the DGCL and who have complied with such Section and who shall
not have any further rights as a stockholder of Vixel other than those provided
under Section 262 of the DGCL) shall cease to be outstanding and shall
thereafter represent the right to receive from Vixel, as the surviving
corporation in the Merger, the sum of $10.00 per Share, net to the holder in
cash, without interest, upon surrender of the share certificates to
Computershare Trust Company of New York (the "Paying Agent"), which hereby is
appointed paying agent for such purpose; and
FURTHER RESOLVED, that by virtue of the Merger, each issued and
outstanding share of the common stock of the Corporation, par value $0.001 per
share, shall be converted into and become one fully paid and nonassessable share
of common stock of the Surviving Corporation; and
FURTHER RESOLVED, that the Merger be submitted to Emulex, as the
sole stockholder of the Corporation, and that, upon receiving the written
consent of such stockholder, the Merger shall be approved; and
FURTHER RESOLVED, that Vixel, as the surviving corporation in the
Merger, shall notify each stockholder of record of Vixel within ten days after
the effective date of the Merger that the Merger has become effective and that
the stockholders may be entitled to appraisal rights under Section 262 of the
DGCL; and
FURTHER RESOLVED, that the Certificate of Incorporation of the
Surviving Corporation shall be amended in its entirety to read as set forth on
Annex A attached hereto; and
FURTHER RESOLVED, that the President or any Vice President of the
Corporation, acting individually, and the Secretary of the Corporation be, and
each of them hereby is, authorized and directed to execute and acknowledge in
the name of and on behalf of the Corporation a Certificate of Ownership and
Merger setting forth, among other things, a copy of these resolutions and the
date of their adoption; and that such officers are hereby authorized and
directed to cause such executed Certificate of Ownership and Merger to be filed
in the Office of the Secretary of State of the State of Delaware and to cause a
certified copy of such Certificate of Ownership and Merger to be recorded in the
Officer of the Recorder of Deeds of New Castle County, all in accordance with
Sections 103 and 253 of the DGCL; and
FURTHER RESOLVED, that the Merger shall become effective and the
corporate existence of the Corporation shall cease upon the filing of such
Certificate of Ownership and Merger with the Secretary of State of the State of
Delaware in accordance with Sections 103 and 253 of the DGCL; and
FURTHER RESOLVED, that the appropriate officers of the
Corporation be, and each of them hereby is, authorized and directed to take or
cause to be taken all such further actions and to execute and deliver or cause
to be delivered all such further instruments and documents in the name and on
behalf of the Corporation, and to incur
and pay all such fees and expenses as in their judgment shall be necessary or
advisable in order to carry out fully the intent and purposes of the foregoing
resolutions; and
FURTHER RESOLVED, that all actions previously taken by the
officers and directors of the Corporation in connection with the transactions
contemplated by these resolutions are hereby adopted, ratified, confirmed and
approved in all respects.
ANNEX A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
Vixel Corporation
FIRST: The name of the Corporation is Vixel Corporation (the
"Corporation").
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 10,000 shares, all of which shall be Common
Stock, each share having a par value of $0.001.
FIFTH: The following provisions are inserted for the management
of the business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation
and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
(3) The number of directors of the Corporation shall be as from time to
time fixed by, or in the manner provided in, the By-Laws of the
Corporation. Election of directors need not be by written ballot unless
the By-Laws so provide.
(4) The liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law. Any repeal or
modification of this Article FIFTH shall be prospective and shall not
affect the rights
under this Article FIFTH in effect at the time of the alleged occurrence
of any act or omission to act giving rise to liability or
indemnification.
(5) In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any
By-Laws adopted by the stockholders; provided, however, that no By-Laws
hereafter adopted by the stockholders shall invalidate any prior act of
the directors which would have been valid if such By-Laws had not been
adopted.
SIXTH: Meetings of stockholders of the Corporation may be held
within or without the State of Delaware, as the By-Laws may provide. The books
of the Corporation may be kept (subject to any provision contained in the GCL)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-Laws of the Corporation.
SEVENTH: The Corporation may indemnify to the fullest extent
permitted by law any person (including the representative of such person's
estate and such person's successors and assigns) made or threatened to be made a
party to an action or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he is or was a director, officer or
employee of the Corporation or served at any other enterprise as a director,
officer or employee at the request of the Corporation, and in relation thereto
advance expenses to any such person.
Neither any amendment nor repeal of this Article SEVENTH nor the adoption of any
provision of the Corporation's Certificate of Incorporation inconsistent with
this Article SEVENTH shall eliminate or reduce the effect of this Article
SEVENTH in respect of any matter occurring, or any action or proceeding accruing
or arising or that, but for this Article SEVENTH, would accrue or arise, prior
to such amendment, repeal or adoption of an inconsistent provision.
EIGHTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.