EXHIBIT 2.2
AGREEMENT OF MERGER
This Agreement of Merger (this "Agreement") is entered into as of June
1, 2004 by and between IPI Merger Sub II, Inc., a Delaware corporation ("Merger
Sub II") and a wholly-owned subsidiary of Island Pacific, Inc., a Delaware
corporation ("IPI"), and Retail Technologies International, Inc., a California
corporation ("RTI").
R E C I T A L S
A. RTI, IPI, IPI Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of IPI ("Merger Sub"), Merger Sub II, and Xxxxxxx
Xxxxxxx and Xxxxxxx Xxxxx (each, a "Shareholder" and collectively, the
"Shareholders"), have entered into an Amended and Restated Agreement of Merger
and Plan of Reorganization, dated as of June 1, 2004 (the "Merger Agreement"),
providing for certain representations, warranties and agreements in connection
with the transactions contemplated hereby and thereby, in accordance with the
California General Corporation Law ("California Law") and Delaware General
Corporation Law ("Delaware Law"). All capitalized terms not herein defined will
have the meaning ascribed to them in the Merger Agreement.
B. The Boards of Directors of IPI, Merger Sub, Merger Sub II, and RTI
have determined it to be advisable and in the respective best interests of IPI,
Merger Sub, Merger Sub II, and RTI and their respective stockholders that Merger
Sub be merged with and into RTI and, immediately following such merger, RTI be
merged with and into Merger Sub II (the "Second Step Merger") so that Merger Sub
II will be the surviving corporation of the Merger.
NOW, THEREFORE, Merger Sub II and RTI hereby agree as follows:
1. THE SECOND STEP MERGER. At the time of the filing of the Second Step
Certificates of Merger with the Secretary of State of the State of Delaware and
the Secretary of State of the State of California (for purposes of this
Agreement, the "Effective Time"), RTI will be merged with and into Merger Sub
II, and Merger Sub II will continue as the surviving corporation (following the
Merger, Merger Sub II 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 Delaware Law and California Law as
follows:
1.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Merger Sub II immediately prior to the Effective Time, as amended in the Second
Step Certificate of Merger to be filed with Delaware Secretary of State, will be
the Certificate of Incorporation of the Surviving Corporation.
1.2 BYLAWS. The Bylaws of Merger Sub II immediately prior to the
Effective Time, without amendment thereto, will be the Bylaws of the Surviving
Corporation. The Bylaws of the Surviving Corporation thereafter may be amended
in accordance with their terms, the Certificate of Incorporation of the
Surviving Corporation and as provided under Delaware Law.
1.3 CONVERSION OF SHARES. As of the Effective Time, by virtue of the
Second Step Merger and without any action on the part of any stockholder of RTI,
each share of RTI Common Stock (the "RTI Common Stock") that is issued and
outstanding, after giving effect to the Reverse Merger and immediately prior to
the Effective Time, will be converted into one validly issued, fully paid and
nonassessable share of common stock, $0.0001 par value per share, of the
Surviving Corporation ("Surviving Corporation Common Stock").
1.4 NO FURTHER TRANSFER. At the Effective Time, the stock transfer
books of RTI will be closed and no transfer of RTI Common Stock will thereafter
be made.
1.5 SURVIVING CORPORATION. Merger Sub II, a Delaware corporation, will
be the surviving corporation of the Second Step Merger.
2. EXCHANGE OF CERTIFICATES.
2.1 At and after the Effective Time, each certificate representing
outstanding shares of RTI Common Stock will represent the right to receive share
certificates covering the equal number of shares of Surviving Corporation Common
Stock, for which such shares of RTI Common Stock have been or will be exchanged,
and such Surviving Corporation Common Stock will be registered in the name of
the holder of such certificate.
2.2 All share certificates covering the number of shares of Surviving
Corporation Common Stock to be delivered upon the surrender of certificates for
such shares in accordance with the terms hereof will be delivered to the
registered holder of such certificate. After the Effective Time, there will be
no further registration of transfers of the shares of RTI Common Stock on the
stock transfer books of RTI.
3. CONDITION TO CLOSING. The obligations of the parties to consummate the Second
Step Merger contemplated by this Agreement will be subject to the consummation
of the Reverse Merger (as defined in the Merger Agreement).
4. TERMINATION AND AMENDMENT.
4.1 TERMINATION. Notwithstanding the approval of this Agreement by the
sole stockholder of Merger Sub II and the shareholders of RTI, this Agreement
may be terminated at any time prior to the Effective Time by the mutual written
agreement of Merger Sub II and RTI, and will terminate in the event the Merger
Agreement 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 IPI, Merger Sub
II and RTI or their respective officers and directors, except as otherwise
provided in the Merger Agreement.
4.2 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.
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5. MISCELLANEOUS.
5.1 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement.
5.2 MERGER AGREEMENT. The Merger Agreement and this Agreement are
intended to be construed together in order to effectuate their purposes.
5.3 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.
5.4 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Delaware (irrespective of its
conflict of law principles).
5.5 FURTHER ASSIGNMENTS. After the Effective Time, Merger Sub II 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 RTI's property or rights in Merger Sub II and otherwise to
carry out the purposes of the Merger Agreement, in the name of RTI or otherwise.
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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.
ISLAND PACIFIC, INC. RETAIL TECHNOLOGIES INTERNATIONAL, INC.
a Delaware corporation a California corporation
By: /s/ Ran Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: Ran Xxxxxx Name: Xxxxxxx Xxxxxxx
Its: Chief Financial Officer Its: President
IPI MERGER SUB II, INC.
a Delaware corporation
By: /s/ Ran Xxxxxx
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Name: Ran Xxxxxx
Its: Chief Financial Officer
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
