TECHNOLOGY MODELING ASSOCIATES, INC. AFFILIATES AGREEMENT
THIS AFFILIATES AGREEMENT (the "Affiliates Agreement") is entered into
as of January __, 1998 between Avant! Corporation, a Delaware corporation
("Avant!"), and the undersigned shareholder (the "Shareholder") of Technology
Modeling Associates, Inc., a California corporation ("TMAI").
RECITALS
A. TMAI, Avant! and Cardinal Merger Corporation, a California
corporation and a wholly owned subsidiary of Avant! ("Merger Sub"), have entered
into an Agreement and Plan of Reorganization dated September 7, 1997 (the
"Reorganization Agreement"), pursuant to which Merger Sub will be merged into
TMAI (the "Merger"), and TMAI will become a wholly owned subsidiary of Avant!.
B. Upon the consummation of the Merger and in connection therewith,
the undersigned Shareholder will become the owner of shares of Common Stock of
Avant! (the "Avant! Shares").
C. The parties to the Reorganization Agreement intend to adopt a
plan of reorganization within the meaning of Section 368 of the Internal Revenue
Code of 1986, as amended (the "Code") and intend to cause the Merger to qualify
as a "reorganization" under the provisions of Section 368(a)(1)(A) and Section
368(a)(2)(E) of the Code.
D. The parties to the Reorganization Agreement intend to cause the
Merger to be accounted for as a pooling of interests.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants set forth in the Reorganization Agreement
and in this Affiliates Agreement, it is hereby agreed as follows:
1. The undersigned Shareholder hereby agrees that:
(a) The undersigned Shareholder may be deemed to be (but does
not hereby admit to be) an "affiliate" of TMAI within the meaning of Rule 145
under the Securities Act of 1933, as amended (the "Securities Act"), and
Accounting Series Release No. 130, as amended, of the Securities and Exchange
Commission (the "SEC') ("Release No. 130").
(b) The undersigned Shareholder will not sell, exchange,
transfer, pledge, dispose of or otherwise reduce the undersigned Shareholder's
risk relative to the Avant! Shares or any part thereof until such time after the
Effective Time of the Merger as financial results covering at least thirty (30)
days of the combined operations of Avant! and TMAI after the Effective Time of
the Merger have been, within the meaning of said Release No. 130, filed by
Avant! with the SEC or published by Avant! in an Annual Report on Form 10K, a
Quarterly Report on Form 10-Q, a Current Report on Form 8-K, a quarterly
earnings report, a press release
or other public issuance that includes combined sales and income of TMAI and
Avant!. Avant! agrees to make such filing or publication as soon as practicable
and to notify the undersigned Shareholder promptly upon making such filing or
publication. The undersigned will not, during the thirty (30) day period prior
to the Effective Time of the Merger as determined in Avant!'s reasonable
discretion, sell, exchange, transfer, pledge, dispose of or otherwise reduce the
undersigned Shareholder's risk relative to the Avant! Shares or any part thereof
(including any disposition, within such period, of Shareholder's shares of TMAI
Common Stock).
(c) The undersigned Shareholder has, and as of the Effective
Time of the Merger will have, no present plan or intent (a "Plan") to engage in
a sale, exchange, transfer, pledge, disposition or any other transaction
(including a distribution by a partnership to its partners or by a corporation
to its shareholders) that results in a reduction in the risk of ownership
(collectively, a "Sale") with respect to any of the shares of Avant! Common
Stock to be acquired by the undersigned Shareholder upon consummation of the
Merger. The undersigned Shareholder is not aware of, or participating in, any
plan or intent on the part of TMAI's shareholders (a "Plan") to engage in a Sale
or Sales of the shares of Avant! Common Stock to be issued in the Merger such
that the aggregate fair market value, as of the Effective Time of the Merger, of
the shares subject to such Sales would exceed fifty percent (50%) of the
aggregate fair market value of all shares of outstanding TMAI Common Stock
immediately prior to the Merger. A sale of Avant! Common Stock shall be
considered to have occurred pursuant to a Plan if, among other things, such Sale
occurs in a transaction that is in contemplation of, or related or pursuant to,
the Reorganization Agreement (a "Related Transaction"). In addition, shares of
TMAI Common Stock (i) exchanged for cash in lieu of fractional shares of Avant!
Common Stock, (ii) with respect to which dissenters' rights are exercised and
(iii) with respect to which a Sale occurred in a Related Transaction prior to
the Merger shall be considered to have been shares of outstanding TMAI Common
Stock that were exchanged for Avant! Common Stock in the Merger and then
disposed of pursuant to a Plan. If any of the undersigned Shareholder's
representations in this subsection (c) ceases to be true at any time prior to
the Effective Time of the Merger, the undersigned Shareholder shall deliver to
each of TMAI and Avant!, prior to the Effective Time of the Merger, a written
statement to that effect. Except as otherwise set forth in APPENDIX A, the
undersigned Shareholder has not engaged in a sale of any shares of TMAI Common
Stock since August __, 1997. The undersigned Shareholder understands and
acknowledges that TMAI, Avant! and their respective shareholders, as well as
legal counsel to TMAI and Avant!, are entitled to rely on (i) the truth and
accuracy of the undersigned Shareholder's representations contained herein and
(ii) the undersigned Shareholder's performance of the obligations set forth
herein.
(d) Except with respect to the exchange of TMAI Common Stock for
Avant! Common Stock pursuant to the Merger, the undersigned has no current plan
or intent to engage in any Sale of any TMAI capital stock (whether or not
acquired pursuant to the exercise of a stock option since August __, 1997) on,
or prior to, the Merger. The undersigned shall immediately notify Avant! and
TMAI in writing via facsimile of any Sale of TMAI capital stock by the
undersigned on, or prior to, the Merger.
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(e) Subject to paragraphs (b), (c) and (d) of this Section 1,
the undersigned Shareholder agrees not to offer, sell, exchange, transfer,
pledge or otherwise dispose of any of the Avant! Shares unless at that time
either:
(i) such transaction is permitted pursuant to the
provisions of Rule 145(d) under the Securities Act;
(ii) counsel representing the undersigned Shareholder,
satisfactory to Avant!, shall have advised Avant! in a written opinion letter
satisfactory to Avant! and Avant!'s counsel and upon which Avant! and its
counsel may rely, that no registration under the Securities Act is required in
connection with the proposed sale, transfer or other disposition;
(iii) a registration statement under the Securities Act
covering the Avant! Shares proposed to be sold, transferred or otherwise
disposed of, describing the manner and terms of the proposed sale, transfer or
other disposition, and containing a current prospectus, is filed with the SEC
and made effective under the Securities Act; or
(iv) an authorized representative of the SEC shall have
rendered written advice to the undersigned Shareholder (sought by the
undersigned Shareholder or counsel to the undersigned Shareholder, with a copy
thereof and of all other related communications delivered to Avant!) to the
effect that the SEC will take no action, or that the staff of the SEC will not
recommend that the SEC take action, with respect to the proposed offer, sale,
exchange, transfer, pledge or other disposition if consummated.
(f) All certificates representing the Avant! Shares deliverable
to the undersigned Shareholder pursuant to the Reorganization Agreement and in
connection with the Merger and any certificates subsequently issued with respect
thereto or in substitution therefor shall, unless one or more of the alternative
conditions set forth in the subparagraphs of paragraph (e) of this Section 1
shall have occurred, bear a legend substantially as follows:
"The shares represented by this certificate may not be
offered, sold, exchanged, transferred, pledged or otherwise
disposed of except in accordance with the requirements of
the Securities Act of 1933, as amended, and the other
conditions specified in that certain Affiliates Agreement
dated as of September 7, 1997 between Avant! Corporation and
[name of shareholder], a copy of which Affiliates Agreement
may be inspected by the holder of this certificate at the
offices of Avant!, or Avant! will furnish, without charge, a
copy thereof to the holder of this certificate upon written
request therefor."
Avant!, at its discretion, may cause stop transfer orders to be placed with its
transfer agent with respect to the certificates for the Avant! Shares but not as
to the certificates for any part of the Avant! Shares as to which said legend is
no longer appropriate when one or more of the alternative conditions set forth
in the subparagraphs of paragraph (e) of this Section 1 shall have occurred.
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(g) The undersigned Shareholder will observe and comply with the
Securities Act and the General Rules and Regulations thereunder, as now in
effect and as from time to time amended and including those hereafter enacted or
promulgated, in connection with any offer, sale, exchange, transfer, pledge or
other disposition of the Avant! Shares or any part thereof.
2. REPORTS. From and after the Effective Time of the Merger and for
so long as necessary in order to permit the undersigned Shareholder to sell the
Avant! Shares pursuant to Rule 145 and, to the extent applicable, Rule 144 under
the Securities Act, Avant! will file on a timely basis all reports required to
be filed by it pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, referred to in paragraph (c)(1) of Rule 144 under the Securities Act (or,
if applicable, Avant! will make publicly available the information regarding
itself referred to in paragraph (c)(2) of Rule 144), in order to permit the
undersigned Shareholder to sell, pursuant to the terms and conditions of Rule
145 and the applicable provisions of Rule 144, the Avant! Shares.
3. WAIVER. No waiver by any party hereto of any condition or of any
breach of any provision of this Affiliates Agreement shall be effective unless
in writing.
4. NOTICES. All notices, requests, demands or other communications
that are required or may be given pursuant to the terms of this Affiliates
Agreement shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed by registered or certified mail, postage prepaid, as
follows:
(a) If to the Shareholder, at the address set forth below the
Shareholder's signature at the end hereof.
(b) If to Avant!:
Avant! Corporation
00000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
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or to such other address as any party hereto may designate for itself by notice
given as herein provided.
5. COUNTERPARTS. For the convenience of the parties hereto, this
Affiliates Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
6. SUCCESSORS AND ASSIGNS. This Affiliates Agreement shall be
enforceable by, and shall inure to the benefit of and be binding upon, the
parties hereto and their respective successors and assigns. As used herein, the
term "successors and assigns" shall mean, where the context so permits, heirs,
executors, administrators, trustees and successor trustees, and personal and
other representatives.
7. GOVERNING LAW. This Affiliates Agreement shall be governed by
and construed, interpreted and enforced in accordance with the laws of the State
of Delaware, without regard to the conflicts of law provisions thereof
8. EFFECTIVENESS; SEVERABILITY. This Affiliates Agreement shall
become effective at the Effective Time of the Merger. If a court of competent
jurisdiction determines that any provision of this Affiliates Agreement is
unenforceable or enforceable only if limited in time and/or scope, this
Affiliates Agreement shall continue in full force and effect with such provision
stricken or so limited.
9. EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not effect the construction or interpretation of this
Affiliates Agreement.
10. DEFINITIONS. All capitalized terms used herein shall have the
meaning defined in the Reorganization Agreement, unless otherwise defined
herein.
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IN WITNESS WHEREOF, the parties have caused this Affiliates Agreement
to be executed as of the date first above written.
AVANT! CORPORATION SHAREHOLDER
By:
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Xxxxxx X. Xxx (Signature)
Chairman of the Board,
Chief Executive Officer and President
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(Print Name)
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(Address)
