EXHIBIT 2.2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (the "Agreement") is entered into as
of this October 1, 1996, by and among Integrated Device Technology, Inc., a
Delaware corporation ("Acquirer"), Integrated Device Technology Salinas Corp., a
California corporation wholly owned by Acquirer ("Merger Sub") and Baccarat
Silicon, Inc., a California corporation ("Target").
The parties intend that Merger Sub will merge with and into
Target in a triangular statutory merger (the "Merger") with Target to be the
surviving corporation of the Merger, all pursuant to the terms and conditions of
this Agreement and the Agreement and Plan of Reorganization dated October 1,
1996 (the "Plan of Reorganization") and the applicable provisions of the laws of
California. At the Effective Time (as defined below) all the outstanding capital
stock of Target will be converted into capital stock of Acquirer. The Merger is
intended to be treated as a tax-free reorganization pursuant to the provisions
of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"), by virtue of the provisions of Section 368(a)(2)(E) of the Code. The
parties therefore agree as follows:
1. PLAN OF REORGANIZATION
1.1 The Merger. Subject to the terms and conditions of this
Agreement, Merger Sub will be merged with and into Target pursuant to this
Agreement and the Plan of Reorganization and in accordance with applicable
provisions of the laws of the California as follows:
1.1.1 Conversion of Shares. At the Effective Time,
the outstanding shares of Target common stock ("Target Common Stock") will be
converted into the right to receive seven hundred eighty-two thousand four
hundred forty-five (782,445) shares (the "Exchange Shares") of Acquirer's
unregistered common stock, $0.001 par value ("Acquirer Common Stock").
Therefore, each share of Target Common Stock issued and outstanding immediately
prior to the filing of this Agreement with the Secretary of State of California
(the "Effective Time"), other than any shares for which appraisal or dissenters
rights have been or will be perfected in compliance with applicable law, will by
virtue of the Merger at the Effective Time, and without further action on the
part of any holder thereof, be converted into the right to receive 39.12225
fully paid and nonassessable shares of Acquirer Common Stock. Each Exchange
Share to be issued in the Merger shall be deemed to include the corresponding
right (the "Acquirer Rights") to purchase shares of Series A Junior
Participating Preferred Stock, $.001 par value, of Acquirer pursuant to the
Amended and Restated Rights Agreement dated as of February 27, 1992 (the
"Acquirer Rights Agreement") between Acquirer and The First National Bank of
Boston, as Rights Agent. Prior to the Distribution Date (as defined in the
Acquirer Rights Agreement), all references in this Agreement to Exchange Shares
shall be deemed to include the Acquirer Rights corresponding thereto.
1.1.2 Adjustments for Capital Changes. If, prior to
the Merger, Acquirer or Target recapitalizes through a split-up of its
outstanding shares into a greater number, or a combination of its outstanding
shares into a lesser number, reorganizes, reclassifies or otherwise changes its
outstanding shares into the same or a different number of shares of other
classes (other than through a split-up or combination of shares provided for in
the previous clause), or declares a dividend on its outstanding shares payable
in shares or securities convertible into shares or issues additional shares or
equity securities, the number of shares of Acquirer Common Stock into which the
Target shares are to be converted will be adjusted appropriately so as to
maintain the proportionate interests of the holders of the Target shares and the
holders of Acquirer shares.
1.1.3 Dissenting Shares. Holders of shares of Target
Common Stock ("Target Shareholders") who have complied with all requirements for
perfecting shareholders' rights of appraisal, as set forth in Chapter 13 of the
California Corporations Code ("California Law"), shall be entitled to their
rights under California Law with respect to such shares ("Dissenting Shares").
1.2 Fractional Shares. No fractional shares of Acquirer Common
Stock will be issued in connection with the Merger; provided, however, that the
Target Shareholders shall agree, prior to the Closing of the Agreement and Plan
of Reorganization, and shall notify Acquirer which Target Shareholder will
receive all fractional shares issuable to Target shareholders, which in the
aggregate will not exceed one share of Acquirer's Common Stock.
1.3 Effects of the Merger. At the Effective Time: (a) the
separate existence of Merger Sub will cease and Merger Sub will be merged with
and into Target, and Target will be the surviving corporation, pursuant to the
terms of this Agreement; (b) the Articles of Incorporation and Bylaws of Target
will become the Articles of Incorporation and the Bylaws of the surviving
corporation; (c) each share of Merger Sub Common Stock outstanding immediately
prior to the Effective Time will, at the Effective Time, be converted into one
share of the Common Stock of the surviving corporation; (d) the Board of
Directors and officers of Merger Sub will become the Board of Directors and
officers of the surviving corporation; (e) each share of Target Stock
outstanding immediately prior to the Effective Time will be converted as
provided in Sections 1.1 and 1.2; and (f) the Merger will, from and after the
Effective Time, have all of the effects provided by applicable law.
1.4 Further Assurances. Merger Sub agrees that if, at any time
before or after the Effective Time, Acquirer considers or is advised that any
further deeds, assignments or assurances are reasonably necessary or desirable
to vest, perfect or confirm in Acquirer or Target title to any property or
rights of Merger Sub, Acquirer and Target and their proper officers and
directors may execute and deliver all such proper deeds, assignments and
assurances and do all other things reasonably necessary or desirable to vest,
perfect or confirm title to such property or rights in Acquirer or Target
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and otherwise to carry out the purpose of this Agreement, in the name of Merger
Sub or otherwise.
2. PROCEDURES FOR EXCHANGE OF SHARES.
2.1 At the Effective Time, all shares of Target Common Stock
that are outstanding immediately prior thereto will, by virtue of the Merger and
without further action, cease to exist and will be converted into the right to
receive from Acquirer the Exchange Shares, subject to Section 1.2.
2.2 As soon as practicable on or after the Effective Time,
each holder of shares of Target Common Stock that are not Dissenting Shares will
surrender the certificate(s) for such shares (the "Target Certificates") duly
endorsed as requested by Acquirer, to Acquirer for cancellation. On or promptly
after the Effective Time and receipt of such Target Certificates, Acquirer will
issue to each tendering holder a certificate for the number of shares of
Acquirer Common Stock to which such holder is entitled pursuant to Section 1.1.1
hereof.
2.3 No dividends or distributions payable to holders of record
of Acquirer Common Stock after the Effective Time, or cash payable in lieu of
fractional shares, will be paid to the holder of any unsurrendered Target
Certificate(s) until the holder of the Target Certificate(s) surrenders such
Target Certificate(s). Subject to the effect, if any, of applicable escheat ant
other laws, following surrender of any Target Certificate, there will be
delivered to the person entitled thereto, without interest, the amount of any
dividends and distributions therefor paid with respect to Acquirer Common Stock
so withheld as of any date subsequent to the Effective Time and prior to such
date of delivery.
2.4 All Acquirer Common Stock delivered upon the surrender of
Target Common Stock in accordance with the terms hereof will be deemed to have
been delivered in full satisfaction of all rights pertaining to such Target
Common Stock. There will be no further registration or transfers on the stock
transfer books of Target or its transfer agent of the Target Common Stock. If,
after the Effective Time, Target Certificates are presented for any reason, they
will be canceled and exchanged as provided in this Article 2.
2.5 Until certificates representing Target Common Stock
outstanding prior to the Merger are surrendered pursuant to Section 2.2 above,
such certificates will be deemed, for all purposes, to evidence ownership of the
number of shares of Acquirer Common Stock into which such Target Common Stock
will have been converted.
3. AMENDMENTS AND WAIVERS. Any term or provision of this Agreement may
be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a
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party of any breach hereof or default in the performance hereof will not be
deemed to constitute a waiver of any other default or any succeeding breach or
default. This Agreement may be amended by the parties hereto at any time before
or after approval of the Target Shareholders, but, after such approval, no
amendment will be made which by applicable law requires the further approval of
the Target Shareholders without obtaining such further approval.
4. TERMINATION OF AGREEMENT
4.1 Prior to Closing.
4.1.1 This Agreement may be terminated at any time
prior to the Closing (as defined in the Plan of Reorganization) by the mutual
written consent of each of the parties hereto.
4.1.2 Unless otherwise agreed by the parties hereto,
this Agreement will be terminated if all conditions to the Closing have not been
satisfied or waived on or before December 31, 1996.
4.2 At the Closing. At the Closing, this Agreement may be
terminated:
4.2.1 By Acquirer if any of the conditions precedent
to Acquirer's obligations set forth in Article 8 of the Plan of Reorganization
have not been fulfilled or waived at and as of the Closing; or
4.2.2 By Target if any of the conditions precedent to
Target's obligations set forth in Article 7 of the Plan of Reorganization have
not been fulfilled or waived at and as of the Closing.
Any termination of this Agreement under this Section 4.2 will
be effective by the delivery of notice of the terminating party to the other
party hereto.
4.3 No Liability. Any termination of this Agreement pursuant
to this Article 4 will be without further obligation or liability upon any party
in favor of the other party hereto other than the obligations provided in
Section 10.2 of the Plan of Reorganization and the Target Shareholders
Indemnification Letter required in Section 4.14 of the Plan of Reorganization,
which will survive termination of this Agreement; provided, however, that
nothing herein will limit the obligation of Target and Acquirer to use their
best efforts to cause the Merger to be consummated, as set forth in Sections
4.10 and 5.3 of the Plan of Reorganization, respectively.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
INTEGRATED DEVICE BACCARAT SILICON, INC.
TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx X. Xxxx
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Xxxx Xxxxxxx Xxxx X. Xxxx
Its: Vice President Its: President
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxx
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Xxxx Xxxxxxx Xxxxx X. Xxxx
Its: Secretary Its: Secretary
INTEGRATED DEVICE
TECHNOLOGY SALINAS CORP.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Its: Vice President
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
Its: Secretary
[SIGNATURE PAGE TO AGREEMENT OF MERGER]
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