EXHIBIT 4.2
IRREVOCABLE PROXY
AND
VOTING AGREEMENT
THIS IRREVOCABLE PROXY AND VOTING AGREEMENT (this "AGREEMENT"), dated as
of April 24, 2002, is entered into by and between Cadence Design Systems, Inc.,
a Delaware corporation ("PARENT"), and Zodiac Acquisition, Inc., a Delaware
corporation and wholly-owned subsidiary of Parent ("ACQUISITION"), on the one
hand, and ___________ ("STOCKHOLDER") on the other hand, and, with respect to
Section 6(k) only, Simplex Solutions, Inc., a Delaware corporation (the
"COMPANY").
RECITALS
WHEREAS, concurrently herewith, Parent, Acquisition, and the Company,
have entered into an Agreement and Plan of Merger, of even date herewith (as
such agreement may hereafter be amended from time to time in conformity with the
provisions thereof, the "MERGER AGREEMENT"), pursuant to which Acquisition will
merge with and into the Company and the Company shall be the surviving
corporation and become a wholly-owned subsidiary of Parent (the "MERGER");
WHEREAS, Stockholder is the beneficial owner (as defined below) of
_________________ (________) shares of common stock, $0.001 par value per share,
of the Company (such shares, together with all other shares of capital stock or
other voting securities of the Company with respect to which the Stockholder has
beneficial ownership as of the date of this Agreement, and any shares of capital
stock or other voting securities of the Company, beneficial ownership of which
is directly or indirectly acquired after the date hereof, including, without
limitation, shares received pursuant to any stock splits, stock dividends or
distributions, shares acquired by purchase or upon the exercise, conversion or
exchange of any option, warrant or convertible security or otherwise, and shares
or any voting securities of the Company received pursuant to any change in the
capital stock of the Company by reason of any recapitalization, merger,
reorganization, consolidation, combination, exchange of shares or the like, are
referred to herein as the "STOCKHOLDER SHARES"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Stockholder agree, and
Stockholder has agreed, to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. For the purposes of this Agreement, terms not defined
herein but used herein and defined in the Merger Agreement shall have the
meanings set forth in the Merger Agreement, unless the context clearly indicates
otherwise.
2. Voting Agreement. Stockholder hereby agrees with Parent and
Acquisition that, at any meeting of the Company's stockholders, however called,
Stockholder shall appear at each such meeting, in person or by proxy, or
otherwise cause all Stockholder Shares to be counted as present thereat for
purposes of establishing a quorum, and Stockholder shall vote, or cause to be
voted (or in connection with any written consent of the Company's stockholders,
act, or cause to be acted, by written consent) with respect to all Stockholder
Shares that Stockholder is entitled to vote or as to which Stockholder has the
right to direct the voting, as of the relevant record date, (i) in favor of
approval of the Merger Agreement and the transactions contemplated thereby, (ii)
against any proposal that would result in a breach by the Company of the Merger
Agreement, and (iii) against (A) any Third Party Acquisition (as defined in the
Merger Agreement), (B) the election of a group of individuals to replace a
majority or more of the individuals presently on the Board of Directors of the
Company; provided that if one or more individuals presently on the Board of
Directors withdraws his or her nomination for reelection at any meeting of
stockholders for the election of directors, Stockholder may vote for a
replacement director nominated by the Company's Board of Directors for such
individual(s), or (C) any other action which is intended, or is reasonably
likely to impede, interfere with, delay, postpone or materially adversely affect
the Merger or any other transaction described in the Merger Agreement.
3. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Acquisition, with
full power of substitution, its true and lawful proxy and attorney-in-fact (the
"Proxy Holder") to vote at any meeting (and any adjournment or postponement
thereof) of the Company's stockholders called for purposes of considering
whether to approve the Merger Agreement and transactions contemplated thereby,
any Third Party Acquisition or any other transaction described in Section 2
hereof, or to execute a written consent of stockholders in lieu of any such
meeting (if so permitted), all Stockholder Shares held by Stockholder of record
as of the relevant record date in favor of the approval of the Merger Agreement
and transactions contemplated thereby and against any Third Party Acquisition or
any other action described in Section 2(iii)(B) or (C) hereof.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder shall not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Stockholder.
(c) If Stockholder fails for any reason to vote his, her or its
Stockholder Shares as required by Section 2 hereof, then the Proxy Holder shall
have the right to vote the Stockholder Shares at any meeting of the Company's
stockholders and in any action by written consent of the Company's stockholders
in accordance with this Section 3. The vote of a Proxy Holder shall control in
any conflict between a vote of such Stockholder Shares by a Proxy Holder and a
vote of such Stockholder Shares by Stockholder.
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4. Other Covenants, Representations and Warranties. Stockholder hereby
represents and warrants to, and covenants with, Parent and Acquisition as
follows:
(a) Ownership of Stockholder Shares. Stockholder is the
beneficial owner (as defined in Rule 13(d)(3) promulgated under the Exchange
Act, "BENEFICIAL OWNER") of all the Stockholder Shares. Except as set forth in
Annex 1, attached hereto, Stockholder has sole voting power and the sole power
of disposition with respect to all of the Stockholder Shares, with no
limitations, qualifications or restrictions on such rights. Stockholder is the
sole record holder (as reflected in the records maintained by the Company's
transfer agent) of the Stockholder Shares.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of Stockholder's obligations
under this Agreement. The execution, delivery and performance of this Agreement
by Stockholder will not violate any agreement or court order to which
Stockholder is a party or is subject, including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms.
(c) Restriction on Transfer, Proxies and Non-Interference; Stop
Transfer. Except as expressly contemplated by this Agreement, during the term of
this Agreement, Stockholder shall not, directly or indirectly: (i) offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to, or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Stockholder
Shares or any interest therein (except that Stockholder may transfer Stockholder
Shares to a trust established for the benefit of Stockholder and/or for the
benefit of one or more members of Stockholder's immediate family or make a bona
fide gift of Stockholder Shares to one or members of Stockholder's immediate
family, provided that in the event of such transfer or gift, the transferee of
such Stockholder Shares agrees to be bound by the terms and conditions of this
Agreement); (ii) grant any proxies or powers of attorney with respect to any
Stockholder Shares or deposit any Stockholder Shares into a voting trust or
enter into a voting agreement with respect to any Stockholder Shares; or (iii)
take any action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing any of Stockholder's obligations under
this Agreement. Stockholder further agrees with and covenants to Parent that
Stockholder shall not request that the Company register the transfer of any
certificate or uncertificated interest representing any of the Stockholder
Shares, unless such transfer is made in compliance with this Agreement.
Stockholder agrees that, in order to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate "stop transfer"
instructions to its transfer agent.
(d) Other Potential Acquirors. Stockholder (i) shall immediately
cease all existing discussions or negotiations, if any, with any persons
conducted heretofore with respect to any acquisition of all or any material
portion of the assets of, or any equity interest in, the Company, or any
business combination with the Company; (ii) from and after the date hereof until
the termination of this Agreement, shall not, in his, her or its capacity as a
stockholder of the Company, directly or indirectly, initiate, solicit or
knowingly encourage (including, without limitation, by way of furnishing
non-public information or assistance), or take any other action to
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facilitate knowingly, any inquiries or the making of any Third Party
Acquisition; and (iii) shall promptly notify the Company of any proposals for,
or inquiries with respect to, a potential Third Party Acquisition received by
Stockholder or of which Stockholder otherwise has knowledge.
(e) No Consents. To his, her or its knowledge, the execution and
delivery of this Agreement by Stockholder does not, and the performance by
Stockholder of his, her or its obligations hereunder will not, require
Stockholder to obtain any consent, approval, authorization or permit of, or to
make any filing with or notification to, any Governmental Entity.
(f) Notification of Parent. Stockholder hereby agrees, while this
Agreement is in effect, to notify Parent and Acquisition promptly of the number
of any additional shares of capital stock and the number and type of any other
voting securities of the Company acquired by such Stockholder, if any, after the
date hereof.
(g) Reliance by Parent and Acquisition. Stockholder understands
and acknowledges that Parent and Acquisition are entering into the Merger
Agreement in reliance upon Stockholder's execution and delivery of this
Agreement.
5. Termination. The voting agreement and irrevocable proxy granted
pursuant to Sections 2 and 3 hereof shall terminate immediately upon the earlier
to occur of (a) the termination of the Merger Agreement in accordance with its
terms, and (b) the Effective Time.
6. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder Shares and shall be
binding upon any person to whom legal or beneficial ownership of any Stockholder
Shares shall pass, whether by operation of law or otherwise. Notwithstanding any
transfer of Stockholder Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other party, and
any attempted assignment in violation hereof shall be void; provided, however,
that Parent may, in its sole discretion, assign its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered in person,
by facsimile, by registered or certified mail (postage prepaid, return receipt
requested) or sent by nationally-recognized overnight courier to each other
party as set forth below or to such other address as the party to whom notice
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is to be given may have furnished to the other parties hereto in writing in
accordance herewith. Any such notice or communication shall be deemed to have
been delivered and received (i) in the case of personal delivery, on the date of
such delivery, (ii) in the case of facsimile, on the date sent if confirmation
of receipt is received and such notice is also promptly mailed by registered or
certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier in circumstances under which such
courier guarantees next business day delivery, on the next business day after
the date when sent and (iv) in the case of mailing, on the fifth business day
following that on which the piece of mail containing such communication is
posted:
if to Parent or Acquisition: Cadence Design Systems, Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
if to Stockholder, to: such address for Stockholder as set forth
on the signature page hereto
with a copy to: Wilson, Sonsini, Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
Professional Corporation
Lancaster Building WestPark
0000 Xxxxx Xxxxxx Xxxxx #000
XxXxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxxxx Xxxxxxx
(f) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
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(g) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(h) Governing Law; Venue; Specific Performance; Waiver of Jury
Trial. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF. THE
PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF CALIFORNIA AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN
THE STATE OF CALIFORNIA SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT
OF THE PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS
AGREEMENT, AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY
WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING
FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, THAT IT IS
NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT
OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY NOT BE
APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN
OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH
RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A
CALIFORNIA STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY
SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT
MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION
6(e) HEREOF OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY APPLICABLE LAW, SHALL
BE VALID AND SUFFICIENT SERVICE THEREOF.
THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR AND THAT
THE PARTIES WOULD NOT HAVE ANY ADEQUATE REMEDY AT LAW IN THE EVENT THAT ANY OF
THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR
SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE
PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF
THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS OF THIS
AGREEMENT IN ANY COURT OF THE STATE OF CALIFORNIA AND THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA LOCATED IN THE STATE OF CALIFORNIA, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS SECTION 6(h).
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(i) Counterparts. This Agreement may be executed by facsimile and in one
or more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
(j) Further Assurances. At the request of any party to another party or
parties to this Agreement, such other party or parties shall execute and deliver
such instruments or documents to evidence or further effectuate (but not to
enlarge) the respective rights and obligations of the parties and to evidence
and effectuate any termination of this Agreement.
(k) Company Stop Transfer Agreement. The Company hereby acknowledges the
restrictions on transfer of the Stockholder Shares contained in Section 4(c)
hereof. The Company agrees not to register the transfer (book-entry or
otherwise) of any certificate or uncertificated interest representing any
Stockholder Shares, unless such transfer is made pursuant to and in compliance
with this Agreement. The Company further agrees to instruct its transfer agent
(the "TRANSFER AGENT") not to transfer any certificate or uncertificated
interest representing any Stockholder Shares, until (i) the Transfer Agent has
received Parent's consent to such a transfer, or (ii) this Agreement has been
terminated pursuant to Section 5 hereof.
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IN WITNESS WHEREOF, Parent, Acquisition and Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
CADENCE DESIGN SYSTEMS, INC.
By:_____________________________________
Name:
Title:
ZODIAC ACQUISITION, INC.
By:_____________________________________
Name:
Title:
STOCKHOLDER:
________________________________________
Name:
Title:
Address:
ACKNOWLEDGED AND AGREED TO
(with respect to Section 6(k)):
SIMPLEX SOLUTIONS, INC., a Delaware corporation
By:__________________________________
Name:
Title:
