EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
OF NUMERICAL TECHNOLOGIES, INC.,
A DELAWARE CORPORATION,
AND
NUMERICAL TECHNOLOGIES, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of April 4, 2000 (the
"Agreement") is between Numerical Technologies, Inc., a Delaware corporation
("Numerical Technologies Delaware"), and Numerical Technologies, Inc., a
California corporation ("Numerical Technologies California"). Numerical
Technologies Delaware and Numerical Technologies California are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
A. Numerical Technologies Delaware is a corporation duly organized and
existing under the laws of the State of Delaware and has an authorized capital
of 28,168,820 shares, of which 20,000,000 shares are designated "Common Stock,"
and 8,168,820 shares are designated "Preferred Stock." Of the authorized shares
of Preferred Stock, 1,500,005 shares are designated Series A Preferred Stock,
700,000 shares are designated Series B Preferred Stock, 1,730,061 shares are
designated Series C Preferred Stock, 1,698,754 shares are designated Series D
Preferred Stock and 2,540,000 shares are designated Series E Preferred Stock.
As of the date hereof, 1,000 shares of Common Stock were issued and outstanding,
all of which are held by Numerical Technologies California, and no shares of
Preferred Stock were issued and outstanding.
B. Numerical Technologies California is a corporation duly organized and
existing under the laws of the State of California and has an authorized capital
of 28,168,820 shares, of which 20,000,000 are designated "Common Stock," and
8,168,820 shares are designated "Preferred Stock." Of the authorized shares of
Preferred Stock, 1,500,005 shares are designated Series A Preferred Stock,
700,000 shares are designated Series B Preferred Stock, 1,730,061 shares are
designated Series C Preferred Stock, 1,698,754 shares are designated Series D
Preferred Stock and 2,540,000 shares are designated Series E Preferred Stock.
As of the date hereof, 7,848,426 shares of Common Stock were issued and
outstanding, and 1,500,005 shares of Series A Preferred Stock, 700,000 shares of
Series B Preferred Stock, 1,630,061 shares of Series C Preferred Stock,
1,571,940 shares of Series D Preferred Stock and 2,540,000 shares of Series E
Preferred Stock were issued and outstanding.
C. The Board of Directors of Numerical Technologies California has
determined that, for the purpose of effecting the reincorporation of Numerical
Technologies California in the State of Delaware, it is advisable and in the
best interests of Numerical Technologies California and its shareholders that
Numerical Technologies California merge with and into Numerical Technologies
Delaware upon the terms and conditions herein provided.
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D. The respective Boards of Directors of Numerical Technologies Delaware
and Numerical Technologies California have approved this Agreement.
E. The terms of this Agreement were approved by the vote of a number of
shares of each class of stock of both Numerical Technologies Delaware and
Numerical Technologies California which equaled or exceeded the vote required.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Numerical Technologies Delaware and Numerical Technologies
California agree, subject to the terms and conditions set forth below, as
follows:
I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law,
Numerical Technologies California shall be merged with and into Numerical
Technologies Delaware (the "Merger"), the separate existence of Numerical
Technologies California shall cease and Numerical Technologies Delaware shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware, and Numerical Technologies Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be Numerical Technologies, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
Corporations Code;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed, acknowledged
and certified counterpart of this Agreement meeting the requirements of the
Delaware General Corporation Law shall have been filed with the Secretary of
State of the State of Delaware.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of Numerical Technologies California shall cease and
Numerical Technologies Delaware, as the Surviving Corporation, (i) shall
continue to possess all of its assets, rights, powers and property as
constituted immediately prior to the Effective Date of the Merger, (ii) shall be
subject to all actions previously taken by its and Numerical Technologies
California's Boards of Directors, (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of Numerical
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Technologies California in the manner as more fully set forth in Section 259 of
the Delaware General Corporation Law, (iv) shall continue to be subject to all
of its debts, liabilities and obligations as constituted immediately prior to
the Effective Date of the Merger, and (v) shall succeed, without other transfer,
to all of the debts, liabilities and obligations of Numerical Technologies
California in the same manner as if Numerical Technologies Delaware had itself
incurred them, all as more fully provided under the applicable provisions of the
Delaware General Corporation Law and the California General Corporation Law.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
Numerical Technologies Delaware as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of Numerical Technologies Delaware as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Bylaws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of Numerical
Technologies California immediately prior to the Effective Date of the Merger
shall be the directors and officers of the Surviving Corporation until their
respective successors shall have been duly elected and qualified or until as
otherwise provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1 Numerical Technologies California Common Stock. Upon the Effective
Date of the Merger, each share of Numerical Technologies California Common Stock
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by the Constituent Corporations, the holder of such
shares or any other person, be changed and converted into and exchanged for one
fully paid and nonassessable share of Common Stock, par value $0.0001 per share,
of the Surviving Corporation.
3.2 Numerical Technologies California Preferred Stock. Upon the Effective
Date of the Merger, each share of Numerical Technologies California Series A,
Series B, Series C, Series D and Series E Preferred Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be changed and converted into and exchanged for one fully paid and nonassessable
share of Series A, Series B, Series C, Series D and Series E Preferred Stock,
par value $0.0001 per share, of the Surviving Corporation, respectively.
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3.3 Numerical Technologies California Options, Warrants and Stock Purchase
Rights. Upon the Effective Date of the Merger, the Surviving Corporation shall
assume and continue the 1997 Stock Plan, the 2000 Stock Plan, the 2000 Employee
Stock Purchase Plan and all other employee benefit plans of Numerical
Technologies California. Each outstanding and unexercised option, warrant or
other right to purchase or security convertible into Numerical Technologies
California capital stock shall become a like option, warrant or right to
purchase or a security convertible into the Surviving Corporation's capital
stock on the basis of one share of the Surviving Corporation's capital stock for
each share of Numerical Technologies California capital stock issuable pursuant
to any such option, warrant, stock purchase right or convertible security, on
the same terms and conditions and at an exercise price per share equal to the
exercise price applicable to any such Numerical Technologies California option,
warrant, stock purchase right or convertible security at the Effective Date of
the Merger.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, warrants, stock purchase
rights or convertible securities equal to the number of shares of Numerical
Technologies California Common Stock so reserved immediately prior to the
Effective Date of the Merger.
3.4 Numerical Technologies Delaware Common Stock. Upon the Effective Date
of the Merger, each share of Numerical Technologies Delaware Common Stock, par
value $0.0001 per share, issued and outstanding immediately prior thereto shall,
by virtue of the Merger and without any action by Numerical Technologies
Delaware, the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
3.5 Exchange of Certificates. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of Numerical
Technologies California Common Stock or Numerical Technologies California
Preferred Stock may, at such stockholder's option, surrender the same for
cancellation to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's Common Stock or Preferred Stock into which such holders'
shares of Numerical Technologies California Common Stock or Numerical
Technologies California Preferred Stock were converted as herein provided.
Unless and until so surrendered, each outstanding certificate theretofore
representing shares of Numerical Technologies California Common Stock or
Numerical Technologies California Preferred Stock shall be deemed for all
purposes to represent the number of whole shares of the Surviving Corporation's
Common Stock or Preferred Stock into which such shares of Numerical Technologies
California Common Stock or Numerical Technologies California Preferred Stock
were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of Common Stock or Preferred Stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
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Each certificate representing Common Stock or Preferred Stock of the
Surviving Corporation so issued in the Merger shall bear the same legends, if
any, with respect to the restrictions on transferability as the certificates of
Numerical Technologies California so converted and given in exchange therefor,
unless otherwise determined by the Board of Directors of the Surviving
Corporation in compliance with applicable laws.
If any certificate for shares of Numerical Technologies Delaware stock is
to be issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and that the
person requesting such transfer pay to Numerical Technologies Delaware or the
Exchange Agent any transfer or other taxes payable by reason of the issuance of
such new certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of Numerical
Technologies Delaware that such tax has been paid or is not payable.
IV
GENERAL
4.1 Covenants of Numerical Technologies Delaware. Numerical Technologies
Delaware covenants and agrees that it will, on or before the Effective Date of
the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 2105 of the California
General Corporation Law;
(b) File any and all documents with the California Franchise Tax
Board necessary for the assumption by Numerical Technologies Delaware of all of
the franchise tax liabilities of Numerical Technologies California; and
(c) Take such other actions as may be required by the California
General Corporation Law.
4.2 Further Assurances. From time to time, as and when required by
Numerical Technologies Delaware or by its successors or assigns, there shall be
executed and delivered on behalf of Numerical Technologies California such deeds
and other instruments, and there shall be taken or caused to be taken by
Numerical Technologies Delaware and Numerical Technologies California such
further and other actions, as shall be appropriate or necessary in order to vest
or perfect in or conform of record or otherwise by Numerical Technologies
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of Numerical
Technologies California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Numerical Technologies Delaware are
fully authorized in the name and on behalf of Numerical Technologies California
or otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
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4.3 Abandonment. At any time before the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of the State of
Delaware, this Agreement may be terminated and the Merger may be abandoned for
any reason whatsoever by the Board of Directors of either Numerical Technologies
California or Numerical Technologies Delaware, or both, notwithstanding the
approval of this Agreement by the shareholders of Numerical Technologies
California or by the sole stockholder of Numerical Technologies Delaware, or by
both.
4.4 Amendment. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders of either Constituent Corporation
shall not: (1) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any of the shares of any class or series thereof of such Constituent
Corporation, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, (3) alter or change any
of the terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class of shares or series thereof of such
Constituent Corporation, or (4) alter or change any principal term of the
Merger.
4.5 Registered Office. The registered office of the Surviving Corporation
in the State of Delaware is located at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The
Corporation Trust Company is the registered agent of the Surviving Corporation
at such address.
4.6 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
4.7 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 Counterparts. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
(Signature page follows.)
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of Numerical Technologies Delaware and
Numerical Technologies California, is hereby executed on behalf of each of such
two corporations and attested by their respective officers thereunto duly
authorized.
NUMERICAL TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
President and Chief
Executive Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------
▇▇▇▇ ▇. ▇▇▇▇
Assistant Secretary
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NUMERICAL TECHNOLOGIES, INC.
a California corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
President and Chief
Executive Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------
▇▇▇▇ ▇. ▇▇▇▇
Assistant Secretary
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NUMERICAL TECHNOLOGIES, INC.
(California Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ certify that:
1. They are the President and the Assistant Secretary, respectively, of
Numerical Technologies, Inc., a corporation organized under the laws of the
State of California.
2. The corporation has authorized two classes of stock, designated "Common
Stock" and "Preferred Stock" has an authorized capital of 28,168,820 shares of
which 20,000,000 shares are designated "Common Stock," and 8,168,820 shares are
designated "Preferred Stock." Of the authorized shares of Preferred Stock,
1,500,005 shares are designated Series A Preferred Stock, 700,000 shares are
designated Series B Preferred Stock, 1,730,061 shares are designated Series C
Preferred Stock, 1,698,754 shares are designated Series D Preferred Stock and
2,540,000 shares are designated Series E Preferred Stock.
3. There were 7,848,426 shares of Common Stock, 1,500,005 shares of Series
A Preferred Stock, 700,000 shares of Series B Preferred Stock, 1,630,061 shares
of Series C Preferred Stock, 1,571,940 shares of Series D Preferred Stock and
2,540,000 shares of Series E Preferred Stock outstanding as of the date (the
"Record Date") of the Action by Written Consent of Shareholders pursuant to
which the Agreement and Plan of Merger attached hereto (the "Merger Agreement")
was approved. All shares of capital stock outstanding were entitled to vote on
the merger.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to
be cast by holders of Common Stock and holders of Preferred Stock outstanding as
of the Record Date, voting separately.
(Signature page follows.)
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ further declare under penalty of perjury
under the laws of the State of California that each has read the foregoing
certificate and knows the contents thereof and that the same is true of their
own knowledge.
Executed in San Jose, California on April 4, 2000.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
/s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇, Assistant Secretary
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NUMERICAL TECHNOLOGIES, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ certify that:
1. They are the President and the Assistant Secretary, respectively, of
Numerical Technologies, Inc., a corporation organized under the laws of the
State of Delaware.
2. The corporation has an authorized capital of 28,168,820 shares, of
which 20,000,000 shares are designated "Common Stock, par value $0.0001 per
share" and 8,168,820 shares are designated "Preferred Stock, par value $0.0001
per share." Of the authorized shares of Preferred Stock, 1,500,005 shares are
designated Series A Preferred Stock, 700,000 shares are designated Series B
Preferred Stock, 1,730,061 shares are designated Series C Preferred Stock,
1,698,754 shares are designated Series D Preferred Stock and 2,540,000 shares
are designated Series E Preferred Stock.
3. There were 1,000 shares of Common Stock and no shares of Preferred
Stock outstanding as of the date (the "Record Date") of the Action by Written
Consent of Stockholders pursuant to which the Agreement and Plan of Merger
attached hereto (the "Merger Agreement") was approved. All shares of capital
stock outstanding were entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was a majority of the outstanding shares.
(Signature page follows.)
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ further declare under penalty of perjury
under the laws of the State of California that each has read the foregoing
certificate and knows the contents thereof and that the same is true of their
own knowledge.
Executed in San Jose, California on April 4, 2000.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
/s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇, Assistant Secretary
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