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EXHIBIT 3.1
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
RAINDROP ACQUISITION CORPORATION
(A DELAWARE CORPORATION)
WITH AND INTO
CONTINUUS SOFTWARE CORPORATION
(A DELAWARE CORPORATION)
UNDER SECTION 253 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
Pursuant to Section 253 of the General Corporation Law of the State of
Delaware, Raindrop Acquisition Corporation, a Delaware corporation (the
"Company"), hereby certifies the following information relating to the merger of
the Company with and into Continuus Software Corporation ("Continuus") (the
"Merger"), with Continuus remaining as the surviving corporation:
1. The Company is the owner of at least 90% of the outstanding shares of
common stock of Continuus. Continuus has no outstanding capital stock other than
common stock.
2. The Board of Directors of the Company has determined to merge the
Company with and into Continuus, with Continuus remaining as the surviving
corporation pursuant to Section 253 of the Delaware General Corporation Law and
has adopted the following resolutions as of December 6, 2000:
WHEREAS, the Company and Telelogic AB, a company organized
under the laws of Sweden ("Telelogic") and the parent corporation of
the Company, has adopted and approved an Agreement and Plan of Merger
(the "Merger Agreement"), among Telelogic, the Company and Continuus
Software Corporation, a Delaware corporation ("Continuus"), pursuant to
which, among other things, the Company commenced an offer to purchase
all of the outstanding shares of Continuus common stock, par value
$0.001 per share ("Continuus Common Stock"), at a price of $3.46 per
share, subject to the terms of the Merger Agreement (the "Offer
Consideration");
WHEREAS, the Company's tender offer expired at 5:00 p.m.
on December 5, 2000 and more than 90% of the Continuus Common Stock was
tendered pursuant to the tender offer;
WHEREAS, in accordance with the terms of the Merger Agreement,
(i) the Company will merge (the "Merger") with and into Continuus, with
Continuus continuing as the surviving corporation and becoming a
wholly-owned subsidiary of Telelogic, (ii) each issued and outstanding
share of Continuus Common Stock, other than shares to be canceled and
retired and any dissenting shares, will be converted into the right to
receive the Offer Consideration, payable in cash to the holder thereof,
without any interest thereon the ("Merger Consideration"), and
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(iii) at the effective time of the Merger, each holder (other than
Steven L. Johnson, David McCann, William A. Philbin, Paul Van Den Berg
and John R. Wark) of a then-outstanding option to purchase Continuus
Common Stock under any plan, program or arrangement of Continuus (an
"Option"), will, in respect of the cancellation thereof, receive for
each share of Continuus Common Stock subject to such Option an amount
(subject to any applicable withholding tax) in cash equal to the
excess, if any, of (a) the Merger Consideration, over (b) the per share
exercise price of such Option;
WHEREAS, the Board has determined it is in the best interests
of the Company and its sole stockholder to authorize and approve the
Merger Agreement and to effect the Merger and other related
transactions;
WHEREAS, the Merger has been approved by Telelogic, the sole
stockholder of the Company, in accordance with Sections 228 and 253 of
the Delaware General Corporation Law;
WHEREAS, there has been submitted to and considered by the
Board of Directors of the Company a Certificate of Ownership and Merger
(the "Certificate of Ownership") for filing with the Delaware Secretary
of State merging the Company with and into Continuus in substantially
the form attached hereto as Exhibit A;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors
hereby authorizes and approves the Merger and the filing of the
Certificate of Ownership with the Delaware Secretary of State.
RESOLVED FURTHER, that, by virtue of the Merger and without
any action on the part of the holder thereof, at the time of filing the
Certificate of Ownership (the "Effective Time"), each share of common
stock, par value $0.01 per share, of the Company outstanding
immediately prior to the Effective Time shall be converted into and
exchanged for one validly issued, fully paid and nonassessable share of
Continuus Common Stock.
RESOLVED FURTHER, as contemplated by the Merger Agreement, the
Certificate of Incorporation of Continuus, the surviving corporation,
shall continue to be the Certificate of Incorporation of the surviving
corporation following the effective time of the Merger until the same
shall be thereafter altered or amended; provided, however, that at the
effective time, Article I of the Certificate of Incorporation shall be
amended to read, in its entirety, as follows:
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"I.
The name of this corporation is Telelogic Configuration
Management, Inc."
RESOLVED FURTHER, that the Board of Directors declares the
Merger advisable (within the meaning of Section 253 of the Delaware
General Corporation Law) for, and in the best interests of, the Company
and its sole stockholder.
RESOLVED FURTHER, that the officers of the Company be, and
each of them hereby is, authorized and directed, in the name and on
behalf of the Company, to execute and file the Certificate of
Ownership, in substantially the form presented to the Board, with such
non-material changes or amendments thereto as such officer or officers
deem necessary or appropriate, and to consummate the transactions
contemplated by the Merger Agreement.
RESOLVED FURTHER, that the officers of the Company are
authorized and directed on behalf of the Company and in its name to
execute and deliver any applications, certificates, agreements or other
instruments or documents, as such officers may in their discretion deem
necessary or appropriate to carry out the purpose of the foregoing
resolutions, the taking of such actions and the execution and delivery
of such instruments or documents to be conclusive evidence of the
necessity and appropriateness thereof.
RESOLVED FURTHER, that any and all actions previously taken by
any officer of the Company prior to the date hereof in furtherance of
the foregoing resolutions be and they hereby are, ratified, confirmed
and approved as the acts and deeds of the Company.
3. Continuus shall be the surviving corporation of the Merger.
4. The Certificate of Incorporation of Continuus as in effect
immediately prior to the effective time of the Merger shall continue to be the
Certificate of Incorporation of the surviving corporation, except that the name
of the surviving corporation shall be "Telelogic Configuration Management, Inc."
5. The Merger has been approved by the written consent of the sole
stockholder of the Company in accordance with Section 228 of the Delaware
General Corporation Law.
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IN WITNESS WHEREOF, RAINDROP ACQUISITION CORPORATION has caused this
Certificate of Ownership and Merger to be executed on this 29th day of November,
2000.
RAINDROP ACQUISITION CORPORATION,
A DELAWARE CORPORATION
By: /s/ Hakan Rippe
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Hakan Rippe
Chief Financial Officer and
Secretary
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