Exhibit 2.2
-----------
Certificate of Merger
CERTIFICATE OF MERGER OF
AARDVARK ACQUISITION CORP.
INTO
ACCLAIM COMMUNICATIONS, INC.
Pursuant to Section 251 of the Delaware General Corporation Law (the
"DGCL"), Acclaim Communications, Inc., a Delaware corporation, hereby certifies
----
as set forth below:
1. The name and state of incorporation of each of the constituent corporations
of the merger is as follows:
Name State of Incorporation
---- ----------------------
Acclaim Communications, Inc. Delaware
Aardvark Acquisition Corp. Delaware
2. An agreement and plan of reorganization (the "Merger Agreement") has been
----------------
approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 228 and
251 of the DGCL.
3. Acclaim Communications, Inc. is the surviving corporation of the merger (the
"Surviving Corporation").
---------------------
4. Upon the effectiveness of the merger, the Certificate of Incorporation of
the Surviving Corporation shall be amended and restated as set forth in Exhibit
-------
A hereto, and the Bylaws, Officers and Directors of Aardvark Acquisition Corp.
- -
immediately prior to the merger shall be the Bylaws, Officers and Directors of
the Surviving Corporation.
5. The executed Merger Agreement is on file at the principal place of business
of the Surviving Corporation at 211 River Oaks Parkway, San Jose, California
95827.
6. A copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of any constituent
corporation.
7. The merger shall become effective immediately upon the filing of this
certificate with the Secretary of State of Delaware in accordance with Sections
251, 103 and 228 of the DGCL.
This Certificate of Merger has been executed, acknowledged and attested on
July 6, 1998.
ACCLAIM COMMUNICATIONS, INC.
By: /s/ Visveswar Akella
------------------------
Visveswar Akella
President and Chief Executive Officer
ATTEST:
By: /s/ Diosdado Banatao
-----------------------
Diosdado Banatao
Secretary
2
EXHIBIT A
---------
RESTATED
CERTIFICATE OF INCORPORATION
OF
ACCLAIM COMMUNICATIONS, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Acclaim Communications, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "General Corporation
Law")
DOES HEREBY CERTIFY:
FIRST: That this corporation was originally incorporated on August 16,
1995 under the name Hydra Communications, Inc., pursuant to the General
Corporation Law. The corporation changed its name to "Acclaim Communications,
Inc." on May 15, 1996.
SECOND: The Restated Certificate of Incorporation of Acclaim
Communications, Inc., in the form set forth below, has been duly adopted in
accordance with the provisions of Sections 228, 242 and 245 of the General
Corporation Law by the directors and the stockholders of the corporation.
THIRD: The Restated Certificate of Incorporation, as so adopted, reads in
full as set forth below:
ARTICLE FIRST
-------------
The name of this Corporation is Acclaim Communications, Inc.
ARTICLE SECOND
--------------
The address of the Corporation's registered office in the State of Delaware
is 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. The
name of its registered agent at such office is The Corporation Trust Company.
ARTICLE THIRD
-------------
The nature of the business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE FOURTH
--------------
The Corporation is authorized to issue one class of shares to be designated
Common Stock. The total number of shares of Common Stock this Corporation shall
have authority to issue is 100 with a par value of $0.001 per share.
ARTICLE FIFTH
-------------
The Corporation is to have perpetual existence.
ARTICLE SIXTH
-------------
Elections of directors need not be by written ballot unless a stockholder
demands election by written ballot at the meeting and before voting begins or
unless the Bylaws of the Corporation shall so provide.
ARTICLE SEVENTH
---------------
The number of directors which constitute the whole Board of Directors of
the Corporation shall be designated in the Bylaws of the Corporation.
ARTICLE EIGHTH
--------------
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to make,
alter, amend or repeal the Bylaws of the Corporation.
ARTICLE NINTH
-------------
(a) To the fullest extent permitted by the General Corporation Law as the
same exists or as may hereafter be amended, a director of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for a breach of fiduciary duty as a director.
2
(b) The Corporation may indemnify to the fullest extent permitted by law
any person 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, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
(c) Neither any amendment nor repeal of this Article Tenth, nor the
adoption of any provision of this Corporation's Certificate of Incorporation
inconsistent with this Article Tenth, shall eliminate or reduce the effect of
this Article Tenth, in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article Tenth, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
ARTICLE TENTH
-------------
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside of 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 Bylaws of the Corporation.
3
The Restated Certificate of Incorporation has been executed, acknowledged
and attested on July ___, 1998.
ACCLAIM COMMUNICATIONS, INC.
By: _____________________________
Visveswar Akella
President and Chief Executive Office
ATTEST:
By: ____________________________
Diosdado Banatao
Secretary
4