Exhibit 10.36
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Merger Agreement") dated as of
April ___, 2000, is by and between DDi Corp., a California corporation (the
"Parent"), and DDi Merger Co., a Delaware corporation that is a wholly owned
subsidiary of the Parent (the "Subsidiary").
The Parent's Board of Directors has determined that it is advisable and in
the best interests of the Parent and its stockholders to reincorporate the
Parent as a Delaware corporation. The purpose of this Merger Agreement is to
effect such reincorporation through the merger of the Parent with and into the
Subsidiary.
The parties agree as follows:
1. THE MERGER. The Parent shall be merged with and into the Subsidiary
in accordance with this Merger Agreement, the Delaware General Corporation Law,
and the California Corporations Code (the "Merger"). From and after the
Effective Time (as defined in Section 2 below), the separate existence of the
Parent shall terminate and the Subsidiary shall continue in existence as the
surviving corporation (the "Surviving Corporation"). The Surviving Corporation
shall be governed by the laws of the State of Delaware.
2. EFFECTIVE TIME OF MERGER. Following (i) the requisite approval of the
Merger and this Merger Agreement by the shareholders of the Parent and (ii) the
execution and filing of a Certificate of Ownership and Merger pursuant to
Section 253 of the Delaware General Corporation Law and Section 1110 of the
California Corporations Code, the Merger shall become effective immediately
prior to the initial public offering of the Common Stock, $.01 par value, of the
Surviving Corporation (the "Effective Time").
3. CERTIFICATE OF INCORPORATION AND BY-LAWS OF SURVIVING CORPORATION.
From and after the Effective Time, the Certificate of Incorporation (including
without limitation the authorized capital stock set forth therein) and the by-
laws of the Subsidiary shall be the Certificate of Incorporation and by-laws,
respectively, of the Surviving Corporation. Article I of the Certificate of
Incorporation of the Surviving Corporation shall, by effect of the Merger, be
amended to read as follows:
"The name of this corporation is "DDi Corp." (hereinafter referred to as
the "Corporation")."
4. DIRECTORS AND OFFICERS. From and after the Effective Time, the
respective directors and officers of the Subsidiary shall continue in office as
the directors and officers of the Surviving Corporation, subject to the
provisions of the Certificate of Incorporation and by-laws of the Surviving
Corporation.
5. TREATMENT OF CAPITAL STOCK.
(a) Outstanding Capital Stock. The designation and number of outstanding
shares of each class and series of the capital stock of the Parent and the
Subsidiary, respectively, are as follows as of December 31, 1999:
No. of Shares
Designation Outstanding
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Parent: Class A-1 Common Stock, 283,216.6591
No Par Value
Class A-2 Common Stock, 619,347.3991
No Par Value
Class A-3 Common Stock, 923,268.2304
No Par Value
Class A-4 Common Stock, 449,079.4109
No Par Value
Class A-5 Common Stock, 1,111,870.9956
No Par Value
Class A-6 Common Stock, 135,310.9028
No Par Value
Class A-7 Common Stock, none
No Par Value
Class L Common Stock, 396,330.2076
No Par Value
Subsidiary: Common Stock 100
.01 par value$
(b) Conversion Ratio. For purposes of this Agreement, the Conversion Ratio
shall equal a fraction, (i) the numerator of which is the number of shares of
Class A-1 Common Stock of the Parent which would be outstanding immediately
prior to the Effective Time if the shares of the Parent's capital stock set
forth in clause (a) above (and only such shares) were reclassified in the manner
described in clause (c) below and (ii) the denominator of which is 24,750,000.
(c) Reclassification of Shares of the Parent's Capital Stock. Immediately
prior to the Effective Time, subject to the affirmative vote of (x) a majority
of the outstanding
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shares of Class L Common Stock of the Parent, voting as a single class and (y) a
majority of the outstanding shares of Class A-2 Common Stock, Class A-3 Common
Stock, Class A-4 Common Stock, Class A-5 Common Stock, Class A-6 Common Stock
and Class A-7 Common Stock of the Parent, voting as a single class,
(i) each share of the Class L Common Stock of the Parent that is then
issued and outstanding shall be converted into and become a number of
fully paid and non-assessable shares of Class A-1 Common Stock of the
Parent determined in accordance with Article 3.8 of the Parent's
Restated and Amended Articles of Incorporation, based on the
Applicable Price Per Share (as defined in the Parent's Restated and
Amended Articles of Incorporation) as determined by reference to the
public offering price of the Common Stock of the Surviving Corporation
established by the joint Pricing Committee of the Boards of Directors
of the Parent and the Subsidiary; and
(ii) each share of Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6 and Class A-7 Common Stock of the Parent that is then issued and
outstanding shall be converted into and become one share of fully paid
and non-assessable share of Class A-1 Common Stock, no par value, of
the Parent in accordance with Article 3.9 of the Parent's Restated and
Amended Articles of Incorporation.
(d) Treatment of Parent's Capital Stock in the Merger. As of the
Effective Time, automatically and without further actions,
(i) each share of Class A-1 Common Stock of the Parent that is issued
and outstanding immediately before the Effective Time (after giving
effect to clause (c) above) shall be converted into and become a
number of fully paid and non-assessable shares of the Common Stock of
the Surviving Corporation equal to the Conversion Ratio;
(iii) pursuant to Section 155 of the Delaware General Corporation
Law, each fractional share of the Surviving Corporation's capital
stock that is issued and outstanding shall be redeemable by the
Surviving Corporation for cash in an amount to be determined by
multiplying such fraction of a share by the initial public offering
price per share;
(ii) all treasury shares of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7 and Class L Common Stock of the
Parent shall be retired and canceled; and
(iv) all outstanding options and warrants to purchase shares of the
Parent's capital stock shall be converted into options and warrants to
acquire such full number of shares of Common Stock of the Surviving
Corporation (rounded down to the nearest full share) as the holders of
such options and warrants
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would have acquired in the Merger had the options and warrants been
exercised immediately prior to the reclassification described in
clause (b) above with appropriate adjustments to the exercise price to
reflect the effect of such reclassification and the Merger.
(e) Cancellation of Shares of the Subsidiary's Capital Stock. As of the
Effective Time, automatically and without further actions, each share of the
Subsidiary's capital stock that was issued and outstanding or held in treasury
immediately before the Effective Time shall be canceled and returned to the
status of an authorized but unissued share of capital stock.
(f) Exchange of Certificates. From and after the Effective Time, the
certificates formerly representing shares of the Parent's capital stock that
have been converted into shares of the Surviving Corporation's capital stock in
accordance with this Merger Agreement shall thereafter represent the shares of
the Surviving Corporation's capital stock into which the shares of the Parent's
capital stock formerly represented thereby have been so converted, regardless of
whether such certificates are surrendered to the Surviving Corporation,
provided, however, that the Surviving Corporation shall not be obligated to
issue new certificates evidencing such shares of its capital stock unless and
until the old certificates are either delivered to the Surviving Corporation, or
in any particular case the registered holder thereof notifies the Surviving
Corporation that such certificates have been lost, stolen, or destroyed and
executes an agreement satisfactory to the Surviving Corporation to indemnify the
Surviving Corporation and its officers, directors, employees, agents, and
representatives, including without limitation its transfer agent(s), from and
against any loss or damage incurred in connection therewith.
6. AVAILABILITY OF MERGER AGREEMENT. An original or attested copy of
this Merger Agreement shall be kept on file at the principal executive office of
the Surviving Corporation and shall be available for inspection and copying by
any stockholder of the Surviving Corporation upon request and without charge.
7. AMENDMENT. Except to the extent prohibited by applicable law, any of
the terms and conditions of this Merger Agreement may be waived at any time by
the party entitled to the benefits thereof, and this Merger Agreement may be
amended or otherwise modified at any time by action of the respective Boards of
Directors of the Parent and the Subsidiary, in each case notwithstanding the
approval hereof by the respective stockholders of the Parent or the Subsidiary
or both.
8. TERMINATION OR ABANDONMENT. This Merger Agreement and the Merger may
be terminated and/or abandoned at any time before the Effective Time, and/or the
consummation of the Merger may be deferred for a reasonable period (not to
exceed twelve months), by action of the respective Boards of Directors of the
Parent and the Subsidiary, notwithstanding the approval hereof or thereof by the
respective stockholders of the Parent or the Subsidiary or both. In the event
of any termination or abandonment of this Merger Agreement and the Merger, this
Merger Agreement shall become void and
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of no effect, without any liability on the part of either party or its
stockholders, directors, or officers or any other person or entity.
9. MISCELLANEOUS.
(a) Counterparts. This Merger Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement. In pleading or proving this Agreement, it
shall not be necessary to produce or account for more than one counterpart of
this Merger Agreement duly executed by the party to be charged.
(b) Captions. The captions of sections of this Merger Agreement are for
convenience of reference only, and shall not affect the interpretation or
construction of this Merger Agreement.
(c) Binding Effect and Benefits; No Third-Party Beneficiaries. This
Agreement shall bind and inure to the benefit of the Parent and the Subsidiary
and their respective successors-in-interest. Nothing in this Merger Agreement
shall confer any rights or remedies on any person or entity other than the
Parent and the Subsidiary and their respective successors-in-interest.
(d) Governing Law. This Merger Agreement shall be governed by and
interpreted and construed in accordance with the internal laws of the State of
Delaware (without reference to principles of conflicts or choice of law).
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Executed and delivered as an agreement under seal as of the date first above
written.
DDi CORP., DDi MERGER CO.,
a California corporation a Delaware corporation
By: By:
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President President
By: By:
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Secretary Secretary
