Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, is made and entered into as of February
28, 1997 ("Merger Agreement"), among TriQuest Design Automation, Inc., a
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California corporation ("TriQuest" or the "Surviving Corporation"), and XXX
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Acquisition, Inc., a California corporation ("Sub"; TriQuest and Sub are
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sometimes jointly referred to herein as the "Constituent Corporations").
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INTENDING TO BE LEGALLY BOUND, and in consideration of the premises and
material covenants and agreements contained herein, the Constituent Corporations
hereby agree as follows:
ARTICLE I
The Merger
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1.1 Merger of Sub With and Into TriQuest.
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(a) Agreement to Acquire TriQuest. Subject to the terms of this
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Merger Agreement and an Agreement and Plan of Reorganization dated as of
February 17, 1997 (the "Reorganization Agreement") by and among Summit Design,
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Inc. ("Summit"), Sub and TriQuest, TriQuest shall be acquired by Summit through
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a merger (the "Merger") of Sub into TriQuest. As used herein, the term "Summit
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ommon Stock" shall mean the Common Stock, par value $0.01 per share, of Summit,
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and the term "Closing" shall mean the closing of the Merger pursuant to the
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Reorganization Agreement.
(b) Effective Time of the Merger. The Merger shall become effective
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at such time (the "Effective Time") as this Merger Agreement and officers'
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certificates of each Constituent Corporation are filed with the Secretary of
State of the State of California pursuant to Section 1103 of the California
General Corporation Law.
(c) Surviving Corporation. At the Effective Time, Sub shall be merged
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into TriQuest and the separate corporate existence of Sub shall cease. TriQuest
shall be the surviving corporation in the Merger and all of the property,
rights, privileges, powers and franchises of TriQuest and Sub shall vest in the
Surviving Corporation and all debts, liabilities and duties of TriQuest and Sub
shall become the debts, liabilities and duties of the Surviving Corporation.
1.2 Effect of the Merger; Additional Actions.
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(a) Effects. The Merger shall have the effects set forth in Section
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1107 of the California General Corporation Law.
(b) Additional Actions. If, at any time after the Effective Time, the
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Surviving Corporation shall consider or be advised that any further action is
necessary or desirable to carry out the purposes of the Reorganization Agreement
and to vest the Surviving Corporation with full right,
title and possession to the assets, property, rights, privileges, powers and
franchises of TriQuest and Sub, the officers and directors of TriQuest and the
former officers and directors of Sub are fully authorized in the name of their
respective corporations or otherwise to take, and will take, all such lawful and
necessary action.
ARTICLE II
The Constituent Corporations
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2.1 Organization of TriQuest.
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(a) Incorporation. TriQuest was incorporated under the laws of the
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State of California on February 16, 1995.
(b) Authorized Stock. TriQuest is authorized to issue an aggregate of
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twenty million (20,000,000) shares of Common Stock ("TriQuest Common Stock"),
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seven million three hundred fifty-four thousand five hundred (7,354,500) shares
of Preferred Stock, one million three hundred fifty-four thousand five hundred
(1,354,500) of which have been designated Series A Preferred Stock ("TriQuest
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Series A Preferred Stock") and six million (6,000,000) of which have been
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designated Series B Preferred Stock ("TriQuest Series B Preferred Stock").
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(c) Outstanding Stock. As of February 20, 1997, 2,877,513 shares of
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TriQuest Common Stock were outstanding, 1,354,500 shares of TriQuest Series A
Preferred Stock were outstanding and 4,849,662 shares of TriQuest Series B
Preferred Stock were outstanding. All shares of TriQuest Series A Preferred
Stock and TriQuest Series B Preferred Stock were voluntarily converted into
Common Stock immediately prior to the filing of the Merger Agreement. As a
result, immediately prior to the filing of this Merger Agreement, there were
9,081,675 shares of TriQuest Common Stock outstanding and no shares of TriQuest
Series A Preferred Stock or TriQuest Series B Preferred Stock outstanding.
2.2 Organization of Sub.
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(a) Incorporation. Sub was incorporated under the laws of the State
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of California on February 19, 1997.
(b) Authorized Stock. Sub is authorized to issue an aggregate of
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1,000 shares of Common Stock, $0.01 par value ("Subsidiary Stock").
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(c) Outstanding Stock. On the date hereof, an aggregate of 1,000
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shares of Subsidiary Stock are outstanding.
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ARTICLE III
Articles of Incorporation of the Surviving Corporation
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3.1 Articles of Incorporation of Surviving Corporation. At the Effective
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Time, the Articles of Incorporation of the Surviving Corporation shall be
amended and restated in their entirety to read as set forth in Exhibit A hereto.
ARTICLE IV
Effect of the Merger on the Capital Stock of the
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Constituent Corporations; Exchange of Certificates
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4.1 Effect on Capital Stock. As of the Effective Time, by virtue of the
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Merger and without any action on the part of the holder of any shares of
TriQuest Common Stock or TriQuest Series A Preferred Stock or TriQuest Series B
Preferred Stock:
(a) Capital Stock of Sub. Each share of Common Stock of Sub issued
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and outstanding immediately prior to the Effective Time shall be converted into
and exchanged for one share of Common Stock of the Surviving Corporation.
(b) Cancellation of Summit-Owned and TriQuest-Owned Stock. Each share
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of TriQuest Common Stock that is owned directly or indirectly by Sub, Summit or
TriQuest or by any wholly-owned subsidiary of Summit or TriQuest shall be
canceled and extinguished without any conversion thereof.
(c) Conversion of TriQuest Unvested Common Stock. Each share of
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TriQuest Common Stock issued and outstanding immediately prior to the Effective
Time which is subject to vesting and is not fully vested immediately prior to
the Effective Time (the "Unvested Common Stock"), other than shares to be
canceled pursuant to Section 4.1(b) hereof and shares, if any, held by persons
exercising dissenters' rights in accordance with Chapter 13 of the California
General Corporation Law ("Dissenting Shares"), will be canceled and extinguished
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and be converted automatically into the right to receive .06001 shares of Summit
Common Stock upon the surrender of the certificate representing each such share
of TriQuest Common Stock. Each share of Summit Common Stock so issued (A) shall
be subject to vesting on the same terms and vesting schedule as the share of
Unvested Common Stock surrendered in respect thereof, (B) shall bear such
restricted legends as are deemed appropriate by counsel to Summit and (C) shall
be held in escrow by Summit pending vesting pursuant to the terms of the
agreements which provide for TriQuest's repurchase rights with respect to such
Unvested Common Stock.
(d) Conversion of TriQuest Vested and Non-Vesting Common Stock. Each
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share of TriQuest Common Stock (including all shares of TriQuest Common Stock
issued upon conversion of all TriQuest Series A Preferred Stock and TriQuest
Series B Preferred Stock immediately prior to
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the closing) issued and outstanding immediately prior to the Effective Time,
other than Unvested Common Stock, shares to be canceled pursuant to Section
4.1(b) hereof and Dissenting Shares, will be canceled and extinguished and be
converted automatically into the right to receive .06001 shares of Summit Common
Stock upon the surrender of the certificate representing each such share of
TriQuest Common Stock.
(e) Stock Options. At the Effective Time, all options to purchase
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TriQuest Common Stock (each a "TriQuest Option") then outstanding shall be
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assumed by Summit in accordance with the provisions described below:
(i) At the Effective Time, each outstanding TriQuest Option,
whether vested or unvested, shall be, in connection with the Merger, assumed by
Summit. Each TriQuest Option so assumed by Summit shall continue to have, and be
subject to, the same terms and conditions set forth in the option plan and/or
option agreement governing such TriQuest Option immediately prior to the
Effective Time, except that (A) such TriQuest Option shall be exercisable for
that number of whole shares of Summit Common Stock equal to the product of the
number of shares of TriQuest Common Stock that were issuable upon exercise of
such TriQuest Option immediately prior to the Effective Time multiplied by
.06001, rounded down to the nearest whole number of shares of Summit Common
Stock, and (B) the per share exercise price for the shares of Summit Common
Stock issuable upon exercise of such assumed TriQuest Option shall be equal to
the quotient determined by dividing the exercise price per share of TriQuest
Common Stock at which such TriQuest Option was exercisable immediately prior to
the Effective Time by .06001, rounded up to the nearest whole cent.
(ii) Promptly following the Effective Time, Summit will issue to
each holder of an outstanding TriQuest Option a document evidencing the
foregoing assumption of such TriQuest Option by Summit.
(f) Dissenters' Rights. If holders of TriQuest Common Stock are
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entitled to dissenters' rights in connection with the Merger under Chapter 13 of
the California General Corpo ration Law, any Dissenting Shares shall not be
converted into Summit Common Stock but shall be converted into the right to
receive such consideration as may be determined to be due with respect to such
Dissenting Shares pursuant to Chapter 13 of the California General Corporation
Law.
(g) Fractional Shares. No fraction of a share of Summit Common Stock
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shall be issued, but in lieu thereof, each holder of shares of TriQuest Common
Stock who would otherwise be entitled to a fraction of a share of Summit Common
Stock (after aggregating all fractional shares of Summit Common Stock to be
received by such holder) shall be paid by Summit an amount of cash (rounded to
the nearest whole cent) equal to the product of (i) such fraction, multiplied by
(ii) the average closing price of a share of Summit Common Stock for the five
(5) consecutive trading days ending on the trading day immediately prior to the
date of the Closing, as reported on the Nasdaq National Market.
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(h) Escrow. A portion of the shares of Summit Common Stock otherwise
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issuable by Summit in connection with the Merger shall be placed in escrow by
Summit (the "Escrow Amount"), the release of which shall be contingent upon
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certain events and conditions specified in the Reorganization Agreement.
4.2 Exchange of Certificates.
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(a) Exchange Agent. Prior to the Effective Time, Summit shall
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designate a bank or trust company reasonably acceptable to TriQuest to act as
exchange agent (the "Exchange Agent") in the Merger.
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(b) Summit to Provide Common Stock. As of the date of the Closing,
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Summit shall deposit with the Exchange Agent for exchange in accordance with
Section 4.1 herein (i) certificates representing the aggregate number of shares
of Summit Common Stock issuable in exchange for outstanding shares of TriQuest
Common Stock; provided that, Summit shall cause to be deposited into escrow a
number of shares of Summit Common Stock equal to the Escrow Amount out of the
aggregate number of shares of Summit Common Stock otherwise issuable, and (ii)
cash sufficient to make payments in lieu of fractional shares. The portion of
the Escrow Amount contributed on behalf of each holder of TriQuest Common Stock
shall be equal to one-tenth (1/10th) of the aggregate number of shares of Summit
Common Stock which such holder is otherwise entitled to receive and shall be
allocated among vested and unvested shares of Summit Common Stock in the same
proportion of vested and unvested shares of Summit Common Stock which such
holder is entitled to receive.
(c) Exchange Procedures. Promptly after the Effective Time, the
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Surviving Corporation shall cause to be mailed to each holder of record of a
certificate or certificates (the "Certificates") which immediately prior to the
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Effective Time represented outstanding shares of TriQuest Common Stock whose
shares were converted into the right to receive shares of Summit Common Stock,
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form and
have such other provisions as Summit may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates representing shares of Summit Common Stock. Upon surrender of
a Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by Summit, together with such letter of transmittal,
duly completed and validly executed in accordance with the instructions thereto,
the holder of such Certificate shall be entitled to receive in exchange therefor
a certificate representing the number of whole shares of Summit Common Stock
(less the number of shares of Summit Common Stock, if any, (i) to be deposited
in the escrow fund on such holder's behalf and (ii) to be held in escrow on such
holder's behalf pending vesting), plus cash in lieu of fractional shares to
which such holder is entitled, and the Certificate so surrendered shall
forthwith be canceled. Until so surrendered, each outstanding Certificate that,
prior to the Effective Time, represented shares of TriQuest Common Stock will be
deemed from and after the Effective Time, for all corporate purposes, other than
the payment of dividends, to evidence the ownership of the number of full shares
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of Summit Common Stock into which such shares of TriQuest Common Stock shall
have been so converted and the right to receive an amount in cash in lieu of the
issuance of any fractional shares.
(d) Distributions With Respect to Unexchanged Shares. No dividends or
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other distributions declared or made after the Effective Time with respect to
Summit Common Stock with a record date after the Effective Time will be paid to
the holder of any unsurrendered Certificate with respect to the shares of Summit
Common Stock represented thereby until the holder of record of such Certificate
shall surrender such Certificate. Subject to applicable law, following
surrender of any such Certificate, there shall be paid to the record holder of
the certificates representing whole shares of Summit Common Stock issued in
exchange therefor, without interest, at the time of such surrender, the amount
of dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to such whole shares of Summit Common Stock.
(e) Transfers of Ownership. If any certificate for shares of Summit
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Common Stock is to be issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it will be a condition of the
issuance thereof that the Certificate so surrendered will be properly endorsed
and otherwise in proper form for transfer and that the person requesting such
exchange will have paid to Summit or any agent designated by it any transfer or
other taxes required by reason of the issuance of a certificate for shares of
Summit Common Stock in any name other than that of the registered holder of the
Certificate surrendered, or established to the satisfaction of Summit or any
agent designated by it that such tax has been paid or is not payable.
(f) No Further Ownership Rights in TriQuest Common Stock. All shares
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of Summit Common Stock issued upon the surrender for exchange of shares of
TriQuest Common Stock in accordance with the terms of this Section 4.2
(including any cash paid in respect thereof) shall be deemed to have been issued
in full satisfaction of all rights pertaining to such shares of TriQuest Common
Stock, and there shall be no further registration of transfers on the records of
the Surviving Corporation of shares of TriQuest Common Stock which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation for any reason,
they shall be canceled and exchanged as provided herein.
(g) Lost, Stolen or Destroyed Certificates. In the event any
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Certificates evidencing shares of TriQuest Common Stock shall have been lost,
stolen or destroyed, the Exchange Agent shall issue in exchange for such lost,
stolen or destroyed certificates, upon the making of an affidavit of that fact
by the holder thereof, such shares of Summit Common Stock and cash for
fractional shares, if any; provided, however, that Summit may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against Summit
or the Exchange Agent with respect to the Certificates alleged to have been
lost, stolen or destroyed.
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ARTICLE V
Termination
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5.1 Termination by Mutual Agreement. Notwithstanding the approval of this
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Merger Agreement by the shareholders of TriQuest, this Merger Agreement may be
terminated at any time prior to the Effective Time by mutual agreement of the
Boards of Directors of the Constituent Corporations.
5.2 Termination of Reorganization Agreement. Notwithstanding the approval
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of this Merger Agreement by the shareholders of TriQuest, this Merger Agreement
shall terminate forthwith if the Reorganization Agreement is terminated as
provided therein.
5.3 Effects of Termination. In the event of the termination of this
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Merger Agreement, this Merger Agreement shall become void and there shall be no
liability on the part of either TriQuest or Sub or their respective officers or
directors, except as otherwise provided in the Reorganization Agreement.
ARTICLE VI
General Provisions
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6.1 Amendment. This Merger Agreement may be amended by the parties hereto
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any time before or after approval hereof by the shareholders of TriQuest, but
after such approval, no amend ment shall be made that by law requires the
further approval of shareholders without obtaining such approval. This Merger
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
6.2 Counterparts. This Merger Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one agreement.
6.3 Governing Law. This Merger Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties have duly executed this Merger Agreement as
of the date first written above.
TRIQUEST DESIGN AUTOMATION, INC.
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxx
President and Chief Executive
Officer
By: /s/ Xxxxxxx Xxx
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Xxxxxxx Xxx
Secretary
XXX ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
By: /s/ C. Xxxxxx Xxxx
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C. Xxxxxx Xxxx
Secretary
EXHIBIT A
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AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
TRIQUEST DESIGN AUTOMATION, INC.
ARTICLE I
The name of this Corporation is "TriQuest Design Automation, Inc."
ARTICLE II
The purpose of the 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.
ARTICLE III
The Corporation is authorized to issue one class of shares designated
"Common Stock." The total number of shares that the Corporation shall have
authority to issue is one thousand (1,000) shares of Common Stock with a par
value of $0.01 per share.
ARTICLE IV
The liability of the directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
Unless applicable law otherwise provides, any amendment, repeal or modification
of this Article IV shall not adversely affect any right or protection of a
director under this Article IV that existed at or prior to the time of such
amendment, repeal or modification.
ARTICLE V
The Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through Bylaw
provisions, by agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits on such excess indemnification set forth in Section 204 of the California
Corporations Code. Unless applicable law otherwise provides, any amendment,
repeal or modification of any provision of this Article V shall not adversely
affect any contract or other right to indemnification of an agent of the
Corporation that existed at or prior to the time of such amendment, repeal or
modification.
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