EXHIBIT 2.02
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AGREEMENT OF MERGER, WHICH MERGES:
"ISI PURCHASING CORPORATION", A DELAWARE CORPORATION, WITH AND INTO
"DR. DESIGN, INC." UNDER THE NAME OF "DR. DESIGN, INC.", A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA, AS RECEIVED AND FILED IN
THIS OFFICE THE TWENTY-SIXTH DAY OF JANUARY, A.D. 1996, AT 4:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
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Edward J. Freel, Secretary of State
AUTHENTICATION: 7806684
DATE: 1-26-96
AGREEMENT OF MERGER OF
ISI PURCHASING CORPORATION,
A DELAWARE CORPORATION,
WITH AND INTO
DR. DESIGN, INC.,
A CALIFORNIA CORPORATION
This Agreement of Merger (this "Agreement") is entered into as of
January 26, 1996 by and between ISI Purchasing Corporation, a Delaware
corporation ("Newco") and a wholly-owned subsidiary of Integrated Systems, Inc.,
a California corporation ("Buyer"), and Dr. Design, Inc., a California
corporation (the "Company").
RECITALS
A. Buyer, Newco and Company have entered into an Agreement and Plan of
Reorganization, dated as of December 14, 1995 (the "Plan"), providing for
certain representations, warranties and agreements in connection with the
transactions contemplated hereby, in accordance with the General Corporation Law
of California (the "California Law"). All capitalized terms not herein defined
shall have the meaning ascribed to them in the Plan.
B. The Boards of Directors of Buyer, Newco and Company have determined
it to be advisable and in the respective best interests of Buyer, Newco and
Company and their respective shareholders that Newco be merged with and into
Company (the "Merger") so that Company will be the surviving corporation of the
Merger.
NOW, THEREFORE, Newco and Company hereby agree as follows:
1. THE MERGER
At the time of the filing of this Agreement (together with the
Officers' Certificates attached hereto) with the Secretary of State of the
States of California and Delaware (the "Effective Time"), Newco will be merged
with and into Company, and Company shall continue as the surviving corporation
(following the Merger, the Company is hereinafter sometimes referred to as the
"Surviving Corporation"), pursuant to the terms and conditions of this Agreement
and in accordance with applicable provisions of the laws of the States of
Delaware and California as follows:
1.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of Company
immediately prior to the Effective Time, without amendment thereto, shall be the
Articles of Incorporation of the Surviving Corporation.
1.2 BYLAWS. The Bylaws of Company immediately prior to the Effective
Time, without amendment thereto, shall be the Bylaws of the Surviving
Corporation. The Bylaws of the Surviving Corporation thereafter may be amended
in accordance with their terms, the Articles of Incorporation of the Surviving
Corporation and as provided by the California Law.
1.3 CONVERSION OF SHARES. As of the Effective Time, by virtue of the
Merger and without any action on the part of any shareholder of Company, each of
the issued and outstanding shares of Company's Common Stock (the "Company
Shares") (other than any shares held by persons exercising dissenters' rights in
accordance with Chapter 13 of the California Law ("Dissenting Shares")) shall be
converted into the right to receive, subject to the provisions of Section 1.1.1
of the Plan, 0.148612 (the "Applicable Fraction") shares of fully paid and
nonassessable Buyer's Common Stock (the "Conversion Shares").
1.4 ASSUMPTION OF OPTIONS. At the Effective Time, each option to
purchase shares of Company Common Stock (the "Company Options") that is
outstanding immediately prior to the Effective Time will, by virtue of the
Merger and without further action on the part of any holder thereof, be assumed
by Buyer and become exercisable for the number of shares of Buyer's Common Stock
that equals the number of shares of Company Common Stock subject to such Company
Option multiplied by the Applicable Fraction. The exercise price per share of
Buyer Common Stock purchasable under each such option will be equal to the
exercise price of the Company Option divided by the Applicable Fraction. All
other terms of the Company Option will remain unchanged.
1.5 FRACTIONAL SHARES. No fraction of a Conversion Share will be issued
by virtue of the Merger, but in lieu thereof each holder of Company Shares who
would otherwise be entitled to a fraction of a Conversion Share (after
aggregating all fractional Conversion Shares to be received by such holder)
shall receive from Buyer an amount of cash (rounded to the nearest whole cent)
equal to the product of (i) the price of a share of Buyer's Common Stock
determined pursuant to Section 1.1.1 of the Plan, multiplied by (ii) the
fraction of a Conversion Share to which each such holder would otherwise be
entitled.
1.6 NO FURTHER TRANSFER. At the Effective Time, the stock transfer
books of the Company shall be closed and no transfer of Company Shares shall
thereafter be made.
1.7 ESCROW. Of the aggregate number of Conversion Shares issuable by
virtue of the Merger to a shareholder, Buyer shall deposit in escrow a number of
Conversion Shares equal to ten percent (10%) of the total number of Conversion
Shares issuable by virtue of the Merger to such shareholder (the "Escrowed
Shares"), pursuant to the terms of a separate Escrow Agreement. In addition, ten
percent (10%) of the shares of Buyer's Common Stock issued upon exercise of
assumed Company Options will be deposited into escrow.
1.8 DISSENTERS' RIGHTS. Holders of Dissenting Shares who have complied
with all requirements for perfecting the rights of dissenting shareholders as
set forth in Section 1300 et. seq. of the California Law shall be entitled to
their rights under the California Law.
1.9 SURVIVING CORPORATION. Dr. Design, Inc., a California corporation,
will be the surviving corporation of the Merger.
2. SURRENDER OF CERTIFICATES
2.1 SURRENDER AND EXCHANGE OF OUTSTANDING CERTIFICATES. As soon as
practicable after the Effective Time, each holder of a certificate or
certificates representing Company Shares issued and outstanding immediately
prior to the Effective Time (other than Dissenting Shares) shall surrender such
certificate(s) to Buyer's transfer agent. Thereupon, each such holder shall be
entitled to receive in exchange therefor the number of shares of Buyer's Common
Stock represented by such certificate(s), less the Escrowed Shares. Buyer's
transfer agent shall issue to the Company's shareholders certificates for the
shares of Buyer's Common Stock issuable to the Company's shareholders in the
Merger as soon as practicable following such surrender. Each certificate which
immediately before the Effective Time evidenced Company Shares shall, from and
after the Effective Time until such certificate is surrendered to Buyer, or its
transfer agent, be deemed, for all corporate purposes, to evidence the right to
receive the consideration described above; provided, however, that until such
certificate is so surrendered by the holder thereof, no dividend or other
distribution payable to such holder after the Effective Time shall be paid in
respect of such certificates.
3. TERMINATION AND AMENDMENT
3.1 TERMINATION. Notwithstanding the approval of this Agreement by the
shareholders of Newco and Company, this Agreement may be terminated at any time
prior to the Effective Time by the mutual written agreement of Newco and
Company, and will terminate in the event the Plan is terminated in accordance
with its terms. In the event of the termination of this Agreement as provided
above, this Agreement will forthwith become void and there will be no liability
on the part of either Buyer, Newco and Company or their respective officers and
directors, except as otherwise provided in the Plan.
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3.2 AMENDMENT. This Agreement may be amended by the parties hereto at
any time by execution of an instrument in writing signed on behalf of each of
the parties hereto.
4. MISCELLANEOUS
4.1 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement.
4.2 PLAN. The Plan and this Agreement are intended to be construed
together in order to effectuate their purposes.
4.3 ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. Neither party
hereto may assign any of its rights or obligations under this Agreement without
the prior written consent of the other party hereto. This Agreement will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
4.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California (irrespective of
its choice of law principles).
4.5 FURTHER ASSIGNMENTS. After the Effective Time, Company and its
officers and directors may execute and deliver such deeds, assignments and
assurances and do all other things necessary or desirable to vest, perfect or
confirm title to Newco's property or rights in Company and otherwise to carry
out the purposes of the Plan, in the name of Newco or otherwise.
5. SERVICE OF PROCESS
After the Effective Time, the Company agrees that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of Newco, as well as for enforcement of any obligation of Company
arising from the Merger, including any suit or other proceeding to enforce the
right of any stockholders as determined in appraisal proceedings pursuant to the
provisions of ss. 262 of the Delaware General Corporation Law, and shall
irrevocably appoint the Secretary of State of the State of Delaware as its agent
to accept service of process in any such suit or other proceedings. The address
to which copies of any such service of process upon the Secretary of State shall
be mailed to is:
Dr. Design, Inc.
5415 Oberlin Drive
San Diego, CA 92121
Attn: President
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
DR. DESIGN, INC.
By: /s/ Sharon Pinto By: /s/ Laura Thompson
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Sharon Pinto, Vice President Laura Thompson, Secretary
ISI PURCHASING CORPORATION
By: /s/ David St. Charles By: /s/ Narendra Gupta
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David St. Charles, President Narendra Gupta, Secretary
SIGNATURE PAGE TO AGREEMENT OF MERGER
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OFFICER'S CERTIFICATE
Sharon Pinto hereby certifies that:
1. She is a Vice President of DR. DESIGN, INC., a California
corporation (the "Company").
2. The Agreement of Merger to which this certificate is
attached, after having been first duly approved by the Board of Directors and
shareholders of the Company, was duly signed on behalf of the Company by the
undersigned and Laura Thompson, Vice President and Secretary, respectively, of
the Company.
3. The Company has three (3) authorized classes of shares,
designated as Class A Common Stock, Class B Common Stock and Preferred Stock.
There are no issued and outstanding shares of Class B Common Stock or Preferred
Stock of the Company entitled to vote on the Agreement of Merger. The total
number of issued and outstanding shares of the Class A Common Stock of the
Corporation entitled to vote on the Agreement of Merger was 2,555,720.
4. The percentage vote required for Common Stock was more than
50% of the outstanding shares of the Common Stock.
5. The Agreement of Merger was approved by the vote of a
number of shares of Common Stock of the Company which equaled or exceeded the
vote required.
The undersigned declares under penalty of perjury under the
laws of the State of Delaware that the matters set forth in this Certificate are
true and correct of her own knowledge.
Executed at San Diego, California, this 25th day of January,
1996.
/s/ Sharon Pinto
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Sharon Pinto, Vice President
OFFICER'S CERTIFICATE
David St. Charles hereby certifies that:
1. He is the President of ISI Purchasing Corporation, a
Delaware corporation ("Newco").
2. The Agreement of Merger to which this certificate is
attached, after having been first duly approved by the Board of Directors and
the sole shareholder of the Company, was duly signed on behalf of the Company by
the undersigned and by Narendra Gupta, Secretary of the Company.
3. Newco has one class of shares authorized, designated as
Common Stock. The total number of issued and outstanding shares of the Common
Stock of the Corporation entitled to vote on the Agreement of Merger was 1,000.
4. The percentage vote required for Common Stock was more than
50% of the outstanding shares of the Common Stock.
5. The Agreement of Merger was approved by the vote of a
number of shares of Common Stock of Newco which equaled or exceeded the vote
required.
The undersigned declares under penalty of perjury under the
laws of the State of Delaware that the matters set forth in this Certificate are
true and correct of his own knowledge.
Executed at Santa Clara, California, this 25th day of January,
1996.
/s/ David St. Charles
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David St. Charles, President