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EXHIBIT 2.02
AGREEMENT OF MERGER
OF
VIEWSTAR ACQUISITION CORP.
AND
VIEWSTAR CORPORATION
This Agreement of Merger (this "Agreement") is entered into as of
____________, 1995 by and between ViewStar Acquisition Corp., a California
corporation ("Sub"), and ViewStar Corporation, a California corporation
("ViewStar").
RECITALS
A. Sub is a wholly owned subsidiary of Caere Corporation, a
Delaware corporation ("Caere").
B. Caere, ViewStar, Sub and certain shareholders of ViewStar have
entered into an Agreement and Plan of Merger and Reorganization, dated as of
October 9, 1995, as amended October 23, 1995 (the "Plan"), providing for
certain representations, warranties and agreements in connection with the
transactions contemplated hereby, and for the merger of Sub with and into
ViewStar in accordance with the California Corporations Code (the "California
Law").
C. The Boards of Directors of Caere, Sub and ViewStar have
determined it to be advisable and in the respective interests of Caere, Sub and
ViewStar and their stockholders that Sub be merged with and into ViewStar (the
"Merger") so that ViewStar will be the surviving corporation of the Merger.
NOW, THEREFORE, Sub and ViewStar hereby agree as follows:
1. THE MERGER
1.1 FILING. This Agreement, together with the officers'
certificates of each of the Constituent Corporations required by the General
Corporation Law of the State of California (the "California Law"), shall be
filed with the Secretary of State of the State of California at the time
specified in the Reorganization Agreement.
1.2 EFFECTIVENESS. The Merger shall become effective
upon the filing of this Agreement with the Secretary of State of the State of
California (the "Effective Date").
1.3 MERGER. On the Effective Date, Sub shall be merged
into ViewStar and the separate corporate existence of Sub shall thereupon
cease. ViewStar shall be the Surviving Corporation in the Merger and the
separate corporate existence of ViewStar, with all of its purposes, objects,
rights, privileges, powers, immunities and franchises, shall continue
unaffected and unimpaired by the Merger.
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1.4 FURTHER ACTION. If at any time after the Effective
Date any further action is necessary or desirable to carry out the purposes of
this Agreement or to vest the Surviving Corporation with the full right, title
and possession to all assets, property, rights, privileges, immunities, powers
and franchises of either or both of the Constituent Corporations, the officers
and directors of the Surviving Corporation are fully authorized in the name of
either or both of the Constituent Corporations or otherwise to take all such
action.
1.5 AMENDMENT OF ARTICLES. From and after the Effective
Date and until thereafter amended as provided by law, the Articles of
Incorporation of the Surviving Corporation shall hereby be amended and restated
in full as set forth in Exhibit A attached hereto.
2. MANNER OF CONVERTING SHARES OF THE CONSTITUENT CORPORATIONS
2.1 CONVERSION OF SHARES.
(a) Subject to Sections 2.5(c) and 2.6, at the
Effective Time, by virtue of the Merger and without any further action on the
part of Caere, Sub, ViewStar or any shareholder of ViewStar:
(i) Each share of ViewStar Common Stock
that is issued and outstanding immediately prior to the Effective Time,
including without limitation any shares of ViewStar Common Stock issued upon
conversion of shares of ViewStar Preferred Stock effective on or before the
Closing, will by virtue of the Merger and at the Effective Time, and without
any further action on the part of any holder thereof, be converted into a
number of shares of validly issued, fully paid and nonassessable Caere Common
Stock, equal to the Applicable Fraction at the Effective Time.
(ii) Each share (if any) of Series A
Preferred Stock that has not been converted and thus is still issued and
outstanding immediately prior to the Effective Time will by virtue of the
Merger and at the Effective Time, and without any further action on the part of
any holder thereof, be converted into a number of shares of validly issued,
fully paid and nonassessable Caere Common Stock, equal to the Applicable Series
A Fraction, as defined below.
(iii) Each share (if any) of Series B
Preferred Stock that has not been converted and thus is still issued and
outstanding immediately prior to the Effective Time will by virtue of the
Merger and at the Effective Time, and without any further action on the part of
any holder thereof, be converted into a number of shares of validly issued,
fully paid and nonassessable Caere Common Stock, equal to the Applicable Series
B Fraction, as defined below.
(iv) Each share (if any) of Series C
Preferred Stock that has not been converted and thus is still issued and
outstanding immediately prior to the Effective Time will by virtue of the
Merger and at the Effective Time, and without any further action on the
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part of any holder thereof, be converted into a number of shares of validly
issued, fully paid and nonassessable Caere Common Stock, equal to the
Applicable Series C Fraction, as defined below.
(v) Each share (if any) of Series D
Preferred Stock that has not been converted and thus is still issued and
outstanding immediately prior to the Effective Time will by virtue of the
Merger and at the Effective Time, and without any further action on the part of
any holder thereof, be converted into a number of shares of validly issued,
fully paid and nonassessable Caere Common Stock, equal to the Applicable Series
D Fraction, as defined below.
(vi) Each share (if any) of Series E
Preferred Stock that has not been converted and thus is still issued and
outstanding immediately prior to the Effective Time will by virtue of the
Merger and at the Effective Time, and without any further action on the part of
any holder thereof, be converted into a number of shares of validly issued,
fully paid and nonassessable Caere Common Stock, equal to the Applicable Series
E Fraction, as defined below.
(vii) each share of the common stock (with
no par value) of Merger Sub outstanding immediately prior to the Effective Time
shall be converted into one share of common stock of the Surviving Corporation.
(b) For purposes of this Agreement:
(i) The "Aggregate Shares of Caere
Common Stock Issued For ViewStar Preferred Stock" shall be the number of shares
of Caere Common Stock issued pursuant to Sections 2.1(a)(ii), (iii), (iv), (v)
and (vi) above.
(ii) The "Aggregate Shares of Caere
Common Stock to be Issued" shall be 3,418,496 shares of Caere Common Stock;
provided, however, that if the "Designated Caere Stock Price" is less than
$8.50, the number of shares of Caere Common Stock in the "Aggregate Shares of
Caere Common Stock to be Issued" shall be calculated by adding to the 3,418,496
shares of Caere Common Stock the product of multiplying (x) a fraction, the
numerator of which is the difference between $8.50 and such Designated Caere
Stock Price and the denominator of which is such Designated Caere Stock Price
by (y) 1,709,248 (ii); and provided, further, that if the Designated Caere
Stock Price is greater than $13.73, the number of shares of Caere Common Stock
in the "Aggregate Shares of Caere Common Stock to be Issued" shall be
calculated by subtracting from the 3,418,496 shares of Caere Common Stock the
product of multiplying (x) a fraction, the numerator of which is the difference
between such Designated Caere Stock Price and $13.73 and the denominator of
which is such Designated Caere Stock Price by (y) 1,709,248.
(iii) The "Applicable Fraction" shall be
the fraction: (a) having a numerator equal to the amount by which the Aggregate
Shares of Caere Common Stock to be Issued exceeds the Aggregate Shares of Caere
Common Stock Issued for ViewStar Preferred
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Stock; and (b) having a denominator equal to the amount determined by the sum
of (i) the number of shares of ViewStar Common Stock issued and outstanding
immediately prior to the Effective Time, plus (ii) the Vested Option Shares.
(iv) The "Applicable Series A Fraction"
shall be the fraction determined by dividing (a) the "Series A Liquidation
Preference Per Share" for the share of Series A Preferred Stock in question by
(b) the Designated Caere Stock Price."
(v) The "Applicable Series B Fraction"
shall be the fraction determined by dividing (a) the "Series B Liquidation
Preference Per Share" for the share of Series B Preferred Stock in question by
(b) the Designated Caere Stock Price."
(vi) The "Applicable Series C Fraction"
shall be the fraction determined by dividing (a) the "Series C Liquidation
Preference Per Share" for the share of Series C Preferred Stock in question by
(b) the Designated Caere Stock Price."
(vii) The "Applicable Series D Fraction"
shall be the fraction determined by dividing (a) the "Series D Liquidation
Preference Per Share" for the share of Series D Preferred Stock in question by
(b) the Designated Caere Stock Price."
(viii) The "Applicable Series E Fraction"
shall be the fraction determined by dividing (a) the "Series E Liquidation
Preference Per Share" for the share of Series E Preferred Stock in question by
(b) the Designated Caere Stock Price."
(ix) The "Designated Caere Stock Price"
shall be the average of the closing sale prices of a share of Caere Common
Stock as reported on The Nasdaq National Market System for each of the ten
consecutive trading days ending on the third trading date preceding the Closing
Date.
(x) The "Series A Liquidation
Preference" shall be the aggregate dollar Series A Liquidation Preference of
all shares of Series A Preferred Stock in accordance with Article IV, paragraph
2 of ViewStar Articles ("Art. IV, paragraph 2") of any shares of Series A
Preferred Stock that are still outstanding at the Effective Time (after the
conversion of Series A Preferred Stock into ViewStar Common Stock has
occurred). The "Series A Liquidation Preference Per Share" shall be the
amount of such Series A Liquidation Preference applicable to a particular
share of such still outstanding Series A Preferred Stock.
(xi) The "Series B Liquidation
Preference" shall be the aggregate dollar Series B Liquidation Preference of
all shares of Series B Preferred Stock of ViewStar in accordance with Art. IV,
paragraph 2 of any shares of Series B Preferred Stock that are still
outstanding at the Effective Time (after the conversion of Series B Preferred
Stock into ViewStar Common Stock has occurred). The "Series B Liquidation
Preference Per Share" shall be the amount of such Series B Liquidation
Preference applicable to a particular share of still outstanding Series B
Preferred Stock.
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(xii) The "Series C Liquidation
Preference" shall be the aggregate dollar Series C Liquidation Preference of
all shares of Series C Preferred Stock of ViewStar in accordance with Art. IV,
pagragraph 2 of any shares of Series C Preferred Stock that are still
outstanding at the Effective Time (after the conversion of Series C Preferred
Stock into ViewStar Common Stock has occurred). The "Series C Liquidation
Preference Per Share" shall be the amount of such Series C Liquidation
Preference applicable to a particular share of still outstanding Series C
Preferred Stock.
(xiii) The "Series D Liquidation
Preference" shall be the aggregate dollar Series D Liquidation Preference of
all shares of Series D Preferred Stock of ViewStar in accordance with Art. IV,
paragrapah 2 of any shares of Series D Preferred Stock that are still
outstanding at the Effective Time (after the conversion of Series D Preferred
Stock into ViewStar Common Stock has occurred). The "Series D Liquidation
Preference Per Share" shall be the amount of such Series D Liquidation
Preference applicable to a particular share of still outstanding Series D
Preferred Stock.
(xiv) The "Series E Liquidation
Preference" shall be the aggregate dollar Series E Liquidation Preference of
all shares of Series E Preferred Stock of ViewStar in accordance with Art. IV,
paragraph 2 of any shares of Series E Preferred Stock that are still
outstanding at the Effective Time (after the conversion of Series E Preferred
Stock into ViewStar Common Stock has occurred). The Series E Liquidation
Preference Per Share" shall be the amount of such Series E Liquidation
Preference applicable to a particular share of still outstanding Series E
Preferred Stock.
(c) If, prior to the Effective Time, Caere
recapitalizes through a subdivision of its outstanding shares into a greater
number of shares, or a combination of its outstanding shares into a lesser
number of shares, or reorganizes, reclassifies or otherwise changes its
outstanding shares into the same or a different number of shares of other
classes, or declares a dividend on its outstanding shares payable in shares of
its capital stock or securities convertible into shares of its capital stock,
then the numerator of the Applicable Fraction will be adjusted appropriately.
(d) If any shares of ViewStar Common Stock
outstanding immediately prior to the Effective Time are unvested or are subject
to a repurchase option, risk of forfeiture or other condition under any
applicable restricted stock purchase agreement or other agreement with
ViewStar, then the shares of Caere Common Stock issued in exchange for such
shares of ViewStar Common Stock will also be unvested and subject to the same
repurchase option, risk of forfeiture or other condition, and the certificates
representing such shares of Caere Common Stock may accordingly be marked with
appropriate legends.
2.2 EMPLOYEE STOCK OPTIONS.
(a) At the Effective Time, each stock option that
is then outstanding under ViewStar's Amended 1986 Incentive Stock Plan and 1994
Senior Executive Stock Plan (collectively, the "Stock Plans"), whether vested
or unvested (a "ViewStar Option"), shall be
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assumed by Caere in accordance with the terms (as in effect as of the date of
ViewStar Option) of the Stock Plans and the stock option agreement by which
such ViewStar Option is evidenced. All rights with respect to ViewStar Common
Stock under outstanding ViewStar Options shall thereupon be converted into
rights with respect to Caere Common Stock. Accordingly, from and after the
Effective Time, (a) each ViewStar Option assumed by Caere may be exercised
solely for shares of Caere Common Stock, (b) the number of shares of Caere
Common Stock subject to each such assumed ViewStar Option shall be equal to the
number of shares of ViewStar Common Stock that were subject to such ViewStar
Option immediately prior to the Effective Time multiplied by the Applicable
Fraction, rounded down to the nearest whole number of shares of Caere Common
Stock, (c) the per share exercise price for the Caere Common Stock issuable
upon exercise of each such assumed ViewStar Option shall be determined by
dividing the exercise price per share of ViewStar Common Stock subject to such
ViewStar Option, as in effect immediately prior to the Effective Time, by the
Applicable Fraction, and rounding the resulting exercise price up to the
nearest whole cent, and (d) all restrictions on the exercise of each such
assumed ViewStar Option shall continue in full force and effect, and the term,
exercisability, vesting schedule, status as an incentive or nonqualified
option, and other provisions of such ViewStar Option shall otherwise remain
unchanged; provided, however, that each such assumed ViewStar Option shall, in
accordance with its terms, be subject to further adjustment as appropriate to
reflect any stock split, reverse stock split, stock dividend, recapitalization
or other similar transaction effected by Caere after the Effective Time.
ViewStar and Caere shall take all action that may be necessary (under the Stock
Plans and otherwise) to effectuate the provisions of this Section 2.2.
Following the Closing, Caere will send to each holder of an assumed ViewStar
Option a written notice setting forth (i) the number of shares of Caere Common
Stock subject to such assumed ViewStar Option, and (ii) the exercise price per
share of Caere Common Stock issuable upon exercise of such assumed ViewStar
Option.
2.3 WARRANTS. All ViewStar Warrants will terminate as of
the Effective Time in accordance with their terms.
2.4 CLOSING OF VIEWSTAR'S TRANSFER BOOKS. At the
Effective Time, holders of certificates representing shares of ViewStar's
capital stock that were outstanding immediately prior to the Effective Time
shall cease to have any rights as shareholders of ViewStar, and the stock
transfer books of ViewStar shall be closed with respect to all shares of such
capital stock outstanding immediately prior to the Effective Time. No further
transfer of any such shares of ViewStar's capital stock shall be made on such
stock transfer books after the Effective Time. If, after the Effective Time, a
valid certificate previously representing any of such shares of ViewStar's
capital stock (a "ViewStar Stock Certificate") is presented to the Surviving
Corporation or Caere, such ViewStar Stock Certificate shall be canceled and
shall be exchanged as provided in Section 2.5.
2.5 EXCHANGE OF CERTIFICATES.
(a) At or as soon as practicable after the
Effective Time, Caere will send to the holders of ViewStar Stock Certificates
(i) a letter of transmittal in customary form
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and containing such provisions as Caere may reasonably specify, and (ii)
instructions for use in effecting the surrender of ViewStar Stock Certificates
in exchange for certificates representing Caere Common Stock. Upon surrender
of a ViewStar Stock Certificate to Caere for exchange, together with a duly
executed letter of transmittal and such other documents as may reasonably be
required by Caere, the holder of such ViewStar Stock Certificate shall be
entitled to receive in exchange therefor a certificate representing the number
of whole shares of Caere Common Stock that such holder has the right to receive
pursuant to the provisions of this Section 2, and ViewStar Stock Certificate so
surrendered shall be canceled. Until surrendered as contemplated by this
Section 2.5, each ViewStar Stock Certificate shall be deemed, from and after
the Effective Time, to represent only the right to receive upon such surrender
a certificate representing shares of Caere Common Stock (and cash in lieu of
any fractional share of Caere Common Stock) as contemplated by this Section 2.
If any ViewStar Stock Certificate shall have been lost, stolen or destroyed,
Caere may, in its discretion and as a condition precedent to the issuance of
any certificate representing Caere Common Stock, require the owner of such
lost, stolen or destroyed ViewStar Stock Certificate to provide an appropriate
affidavit and to deliver a bond (in such sum as Caere may reasonably direct) as
indemnity against any claim that may be made against Caere or the Surviving
Corporation with respect to such ViewStar Stock Certificate.
(b) No dividends or other distributions declared
or made with respect to Caere Common Stock with a record date after the
Effective Time shall be paid to the holder of any unsurrendered ViewStar Stock
Certificate with respect to the shares of Caere Common Stock represented
thereby, and no cash payment in lieu of any fractional share shall be paid to
any such holder, until such holder surrenders such ViewStar Stock Certificate
in accordance with this Section 2.5 (at which time such holder shall be
entitled to receive all such dividends and distributions and such cash
payment).
(c) No fractional shares of Caere Common Stock
shall be issued in connection with the Merger, and no certificates for any such
fractional shares shall be issued. In lieu of such fractional shares, any
holder of capital stock of ViewStar who would otherwise be entitled to receive
a fraction of a share of Caere Common Stock (after aggregating all fractional
shares of Caere Common Stock issuable to such holder) shall, upon surrender of
such holder's ViewStar Stock Certificate(s), be paid in cash the dollar amount
(rounded to the nearest whole cent), without interest, determined by
multiplying such fraction by the Designated Caere Stock Price.
(d) Caere and the Surviving Corporation shall be
entitled to deduct and withhold from any consideration payable or otherwise
deliverable to any holder or former holder of capital stock of ViewStar
pursuant to this Agreement such amounts as Caere or the Surviving Corporation
may be required to deduct or withhold therefrom under the Code or under any
provision of state, local or foreign tax law. To the extent such amounts are
so deducted or withheld, such amounts shall be treated for all purposes under
this Agreement as having been paid to the Person to whom such amounts would
otherwise have been paid.
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(e) Neither Caere nor the Surviving Corporation
shall be liable to any holder or former holder of capital stock of ViewStar for
any shares of Caere Common Stock (or dividends or distributions with respect
thereto), or for any cash amounts, delivered to any public official pursuant to
any applicable abandoned property, escheat or similar law.
2.6 DISSENTING SHARES.
(a) Notwithstanding anything to the contrary
contained in this Agreement, any shares of capital stock of ViewStar that, as
of the Effective Time, are or may become "dissenting shares" within the meaning
of Section 1300(b) of the California Corporations Code shall not be converted
into or represent the right to receive Caere Common Stock in accordance with
Section 2.1 (or cash in lieu of fractional shares in accordance with Section
2.5(c)), and the holder or holders of such shares shall be entitled only to
such rights as may be granted to such holder or holders in Chapter 13 of the
California General Corporation Law; provided, however, that if the status of
any such shares as "dissenting shares" shall not be perfected, or if any such
shares shall lose their status as "dissenting shares," then, as of the later of
the Effective Time or the time of the failure to perfect such status or the
loss of such status, such shares shall automatically be converted into and
shall represent only the right to receive (upon the surrender of the
certificate or certificates representing such shares) Caere Common Stock in
accordance with Section 2.1 (and cash in lieu of fractional shares in
accordance with Section 2.5(c)).
(b) ViewStar shall give Caere (i) prompt notice
of any written demand received by ViewStar prior to the Effective Time to
require ViewStar to purchase shares of capital stock of ViewStar pursuant to
Chapter 13 of the California General Corporation Law and of any other demand,
notice or instrument delivered to ViewStar prior to the Effective Time pursuant
to the California General Corporation Law, and (ii) the opportunity to
participate in all negotiations and proceedings with respect to any such
demand, notice or instrument. ViewStar shall not make any payment or
settlement offer prior to the Effective Time with respect to any such demand
unless Caere shall have consented in writing to such payment or settlement
offer.
3. TERMINATION AND AMENDMENT
3.1 AGREEMENT SUBJECT TO TERMINATION BY MUTUAL CONSENT.
Notwithstanding the approval of this Agreement by the stockholders of Caere,
Sub and ViewStar, this Agreement may be terminated at any time prior to the
Effective Time by the mutual written agreement of Sub and ViewStar.
3.2 AGREEMENT SUBJECT TO TERMINATION ON TERMINATION OF
PLAN. Notwithstanding the approval of this Agreement by the stockholders of
Caere, Sub and ViewStar, this Agreement will terminate forthwith in the event
that the Plan is terminated in accordance with its terms.
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3.3 EFFECT OF TERMINATION. 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 Caere, Sub or
ViewStar or their respective officers and directors, except as otherwise
provided in the Plan.
3.4 AMENDMENT. This Agreement may be amended by the
parties hereto at any time before or after approval by the stockholders of
either Caere, Sub or ViewStar, but, after such approval, no amendment will be
made which by applicable law requires the further approval of stockholders
without obtaining such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of Sub and ViewStar.
4. MISCELLANEOUS
4.1 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.
4.2 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).
4.3 COUNTERPARTS This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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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.
VIEWSTAR ACQUISITION CORP.
By:________________________________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
By:________________________________________________
Xxxxxxx X. Xxxxxx
Vice President, Finance
Chief Financial Officer
and Secretary
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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.
VIEWSTAR CORPORATION
By:________________________________________________
Xxxxxx Xxxxxxxxxxxx
President and Chief Executive
Officer and Director
By:________________________________________________
Xxxxx X. Xxxxxx
Secretary
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EXHIBIT A
Amended and Restated Articles of Incorporation
of ViewStar Corporation
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FORM OF AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
VIEWSTAR CORPORATION
I.
The name of this corporation is ViewStar Corporation.
II.
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the California
Corporations Code.
III.
The corporation is authorized to issue only one class of stock, to be
designated Common Stock. The total number of shares of Common Stock presently
authorized is one thousand (1,000).
IV.
(a) The liability of the directors of this corporation for
monetary damages shall be eliminated to the fullest extent permissible under
California law.
(b) This corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the California Corporations Code) for
breach of duty to the corporation and its shareholders through bylaw provisions
or through agreements with the agents, or through shareholder resolutions, or
otherwise, in excess of the indemnification otherwise permitted by Section 317
of the Corporations Code, subject to the limits on such excess indemnification
set forth in Section 204 of the Corporations Code.
(c) Any repeal or modification of this Article shall only be
prospective and shall not affect the rights under this Article in effect at the
time of the alleged occurrence of any act or omission to act giving rise to
liability or indemnification.
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CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
OF
VIEWSTAR ACQUISITION CORP.
(DISAPPEARING CORPORATION)
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx hereby certify that:
1. They are the Chief Executive Officer and the Secretary,
respectively, of ViewStar Acquisition Corp., a California
corporation (the "CORPORATION").
2. The Agreement of Merger between the Corporation and ViewStar
Corporation, a California corporation ("ViewStar"), attached
hereto was duly approved by the Board of Directors of the
Corporation.
3. There is only one class of shares of stock of the Corporation
outstanding, designated "Common Stock," of which 100 shares
were outstanding and entitled to vote on the merger.
4. The principal terms of the Agreement of Merger were approved
by the Corporation by a vote of a number of shares which
equaled or exceeded the vote required. The approval of a
majority of the outstanding shares of Common Stock entitled to
vote on the merger was required.
5. The principal terms of the Agreement of Merger were approved
by a vote of the stockholders of Caere Corporation, a Delaware
corporation and parent of the Corporation ("Caere"), which
parent corporation is issuing equity securities to the
shareholders of ViewStar, by a vote of a number of shares
which equaled or exceeded the vote required. There is only
one class of shares of stock of Caere outstanding, designated
"Caere Common Stock," of which 13,249,715 shares were
outstanding and entitled to vote on the merger. The approval
of a majority of the outstanding shares of Caere Common Stock
entitled to vote on the merger was required.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this Certificate are true and
correct of our own knowledge.
Dated: _______, 1995
By:___________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
Dated: _______, 1995
By:___________________________
Xxxxxxx X. Xxxxxx
Secretary
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CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
OF
VIEWSTAR CORPORATION
(SURVIVING CORPORATION)
Xxxxxx Xxxxxxxxxxxx and Xxxxx Xxxxxx hereby certify that:
1. They are the President and the Secretary, respectively, of
ViewStar Corporation, a California corporation (the
"CORPORATION").
2. The Agreement of Merger between the Corporation and ViewStar
Acquisition Corp., a California corporation ("Sub"), attached
hereto was duly approved by the Board of Directors of the
Corporation.
3. The Corporation has two classes of shares of stock
outstanding, designated "Common Stock" and "Preferred Stock,"
respectively, of which 2,427,524 shares of Common Stock and
9,330,487 shares of Preferred Stock were outstanding and
entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by
the Corporation by a vote of a number of shares which equaled
or exceeded the vote required. The approval of (i) a majority
of the shares of ViewStar Common Stock outstanding and
entitled to vote, voting as a class; and (ii) a majority of
the shares of ViewStar Preferred Stock (on an as-converted
basis) outstanding and entitled to vote, voting as a class,
was required.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this Certificate are true and
correct of our own knowledge.
Dated: __________, 1995
By:___________________________
Xxxxxx Xxxxxxxxxxxx
President
Dated: __________, 1995
By:___________________________
Xxxxx X. Xxxxxx
Secretary
