Exhibit 2.2
SUMMIT DESIGN, INC.
REGISTRATION RIGHTS AGREEMENT
DATED
AS OF
JUNE 30, 1998
CONTENTS
1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
2. Demand Registration . . . . . . . . . . . . . . . . . . . . . . . 2
3. Obligations of the Company . . . . . . . . . . . . . . . . . . . 2
4. Furnish Information . . . . . . . . . . . . . . . . . . . . . . . 3
5. Expenses of Registration . . . . . . . . . . . . . . . . . . . . 3
6. Delay of Registration . . . . . . . . . . . . . . . . . . . . . . 4
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. Reports Under the Exchange Act . . . . . . . . . . . . . . . . . 6
9. Termination of Registration Rights . . . . . . . . . . . . . . . 6
10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . 7
12. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 7
13. Entire Agreement; Governing Law . . . . . . . . . . . . . . . . . 7
-i-
SUMMIT DESIGN, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT is entered into as of June 30, 1998, by and
among SUMMIT DESIGN, INC., a Delaware corporation (the "Company"), and the
parties listed on Schedule A hereto (the "Investors").
RECITALS
A. The Company is proposing to exchange shares of its Common Stock
(the "Common Stock") for all of the outstanding shares of the Common Stock of
ProSoft Oy ("ProSoft"), a Finnish corporation, (the "Exchange").
B. The execution of this Agreement by the parties hereto is a condition
to the Exchange.
C. The Company and the Investors desire to enter into this
Registration Rights Agreement to facilitate the sale of an aggregate of
102,448 shares of the Common Stock (the "Shares").
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) The term "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration
or ordering of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (i) the Shares and
(ii) any Common Stock issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in replacement of,
the Shares;
(c) The term "Holder" means any person owning or having the right
to acquire Registrable Securities who is a party to this Agreement; and
(d) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently
adopted by the SEC that similarly permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
2. DEMAND REGISTRATION
(a) If the Company shall receive, at any time after the date that
is 30 days after the Closing Date, a written request from the Holders of a
majority of the Registrable Securities then outstanding (the "Initiating
Holders") that the Company file a registration statement under the Securities
Act covering the registration of at least 70% of the Registrable Securities,
then the Company shall, within 10 days after the receipt of such request,
give written notice of such request to all Holders and shall, subject to the
limitations set forth below, use commercially reasonable efforts to file as
soon as practicable, a registration statement under the Securities Act of all
Registrable Securities that the Holders request to be registered in a written
request to be given within 30 days of the mailing of such notice by the
Company, and shall use its commercially reasonable efforts to cause such
registration statement to be declared effective as soon as practicable after
the Company publishes results of operations containing 30 days of combined
operations of the Company and ProSoft.
(b) The Company is obligated to effect only one registration
pursuant to this Section 2.
(c) Notwithstanding the foregoing, if the Company shall furnish to
the Holders requesting a registration pursuant to this Section 2 a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company and its shareholders for such registration
statement to be filed and it is therefore essential to defer the filing of
such registration statement, the Company shall have the right to defer such
filing for not more than 60 days after receipt of the request of the
Initiating Holders.
3. OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become effective within the
time prescribed in Section 2(a), and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective until July 1, 1999.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement.
-2-
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of all securities covered by such
registration statement.
(d) Use commercially reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such jurisdictions.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, during the time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
4. FURNISH INFORMATION
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement with respect to the Registrable
Securities of any selling Holder that such selling Holder shall furnish to
the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of such securities as shall
be reasonably required to effect the registration of such Holder's
Registrable Securities and to execute such documents in connection with such
registration as the Company may reasonably request.
5. EXPENSES OF REGISTRATION
In connection with any registration pursuant to this Agreement, the
Company shall be responsible for the payment of all expenses of the
registration, with the exception of (a) underwriting discounts and
commissions, which shall be paid by the Holders in proportion to the
aggregate value of the securities offered for sale by each of them, and (b)
the fees and expenses of counsel to the selling Holders. The expenses to be
paid by the Company shall include, without limitation, all registration,
filing and qualification fees, printing and accounting fees and the fees and
disbursements of counsel for the Company; provided, however, that the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to Section 2 if the registration request is subsequently
withdrawn (other than a withdrawal due to a material adverse change in the
Company's business or financial condition).
-3-
6. DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Agreement.
7. INDEMNIFICATION
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, its officers, directors, agents and employees, and
each person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) (collectively, "Losses") to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such Losses arise out of or are based upon any of the
following statements, omissions or violations (each, a "Violation"): (i) any
statement or alleged statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein, or any amendments or supplements thereto,
untrue or alleged to be untrue in light of the circumstances under which they
were made, (ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any
state securities law. The Company will reimburse each such Holder, officer,
director, agent, employee or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any Losses; provided, however, that the indemnity agreement
contained in this Section 7(a) shall not apply to amounts paid in settlement
of any such Losses if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the
Company be liable in any such case for any such Losses to the extent the
Losses arise out of or are based upon a Violation that occurs in reliance
upon and in conformity with written information furnished expressly for use
in connection with such registration by, or on behalf of, any such Holder or
controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, its officers, directors, agents and
employees, each person, if any, who controls the Company within the meaning
of the Securities Act, each underwriter and each other Holder selling
securities in such registration statement, and any person who controls such
Holder, against any Losses to which the Company, such officer, director,
agent, employee, controlling person, underwriter or other selling Holder or
person controlling such other selling Holder may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such Losses arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon
-4-
and in conformity with written information furnished by, or on behalf of,
such Holder expressly for use in connection with such registration; and each
such Holder will reimburse any legal or other expenses reasonably incurred by
the Company, its officers, directors, agents, employees, controlling persons,
underwriters or other selling Holders or person controlling such other
selling Holder in connection with investigating or defending any such Losses;
provided, however, that the indemnity agreement contained in this Section
7(b) shall not apply to amounts paid in settlement of any such Losses if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 7,
deliver to the indemnifying party a written notice of the commencement
thereof, and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if, in the opinion of
counsel for the indemnifying party, representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due
to actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable
period of time of the commencement of any such action shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 9 to the extent prejudicial to its ability to defend such action, but
the omission so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 7.
(d) If the indemnification provided for in this Section 7 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any Loss referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such Loss in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such Loss as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. No person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 22(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty
of such fraudulent misrepresentations.
-5-
(e) The obligations of the Company and Holders under this Section
7 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
8. REPORTS UNDER THE EXCHANGE ACT
With a view to making available to the Holders the benefits of SEC Rule
144 promulgated under the Securities Act and any other rule or regulation of
the SEC that may at any time permit a Holder to sell securities of the
Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to use commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144;
(b) Take such action as is necessary to enable the Holders to
utilize Form S-3 for the sale of their Registrable Securities;
(c) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(d) Furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of the Exchange
Act, or that it qualifies as a registrant whose securities may be resold
pursuant to Form S-3 (at any time when it so qualifies), (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as
may be reasonably requested in availing any Holder of any rule or regulation
of the SEC that permits the selling of any such securities without
registration or pursuant to such Form S-3.
9. TERMINATION OF REGISTRATION RIGHTS
The registration rights granted pursuant to this Agreement shall
terminate as to all Holders on the first anniversary of the Closing Date.
10. NOTICES
Unless otherwise provided, any notice desired or required to be given
hereunder shall be in writing given by personal delivery or certified or
registered mail, or confirmed facsimile transmission, in any such case
addressed or sent: (a) if to the Company, to Summit Design, Inc., 0000 X.X.
Xxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000, Attn: President, Facsimile: (503)
646-4954, with a copy to Xxxxxxx Coie, 0000 X.X. Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxxx, Facsimile: (000) 000-0000; (b)
if to an Investor, to the address or facsimile number listed on Exhibit A
hereto; or (c) to such other address or facsimile number as any party shall
have previously designated by such a notice. The effective date of any
notice or request shall be three days from the date it is sent by the
-6-
addresser with charges prepaid so long as it is in fact received within five
days, or when successful transmission is confirmed if sent by facsimile, or
when personally delivered.
11. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company
and the holders of a majority of the Registrable Securities outstanding.
12. SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement,
and the balance of this Agreement shall be interpreted as if such provision
were so excluded and shall be enforceable in accordance with its terms.
13. ENTIRE AGREEMENT; GOVERNING LAW
This Agreement constitutes the full and entire understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements with respect to the subject matter hereof.
This Agreement shall be governed by and construed under the laws of the State
of Oregon as applied to agreements among Oregon residents entered into and to
be performed entirely within the State of Oregon.
-7-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SUMMIT DESIGN, INC.
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and CEO
By: /s/ XXXXX XXXXXX
------------------------
XXXXX XXXXXX
By: /s/ XXXX XXXXX
------------------------
XXXX XXXXX
By: /s/ XXXXXXX X. XXXXXX
------------------------
XXXXXXX X. XXXXXX
-8-
SCHEDULE A
NAME, ADDRESS AND FACSIMILE NUMBER SHARES
---------------------------------- ------
Xxxxx Xxxxxx 40,979
Xxxxxxxxx 0 X 00
00000 Xxxx, Xxxxxxx
Fax: 000 0 000 0000
Xxxx Xxxxx 40,979
Xxxxxxxxxxx 0
00000 Xxxx, Xxxxxxx
Fax: 000 0 000 0000
Xxxxxxx X. Xxxxxx 20,490
0000 Xxxxxx Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
