EXHIBIT 2
Plan of Merger
This Plan of Merger (this "Plan of Merger") dated _______ __, 1999 is
entered into by AC Acquisition Corp., an Oregon corporation ("Buyer
Subsidiary"), and Analogy, Inc., an Oregon corporation (the "Company"). Buyer
Subsidiary is a wholly-owned subsidiary of Avant! Corporation, a Delaware
corporation (the "Buyer").
The Company desires to merge with Buyer Subsidiary, and the Buyer and Buyer
Subsidiary desire to have Buyer Subsidiary merged into the Company (the
"Merger"), on the terms and conditions set forth herein and in the Agreement of
Merger dated December 2, 1999 among the parties to this Plan of Merger and the
Buyer setting forth certain representations and warranties, covenants and
conditions in connection with the Merger (the "Merger Agreement").
Section 1. Merger
1.1 Merger. Upon the filing of articles of merger with respect to this
Plan of Merger with the Oregon Secretary of State in accordance with Oregon law
(the "Effective Time"), Buyer Subsidiary shall be merged with and into the
Company and the separate corporate existence of Buyer Subsidiary shall cease.
The Company shall be the surviving corporation in the Merger (the "Surviving
Corporation") and the separate corporate existence of the Company, with all its
purposes, objects, rights, privileges, powers, immunities and franchises, shall
continue unaffected and unimpaired by the Merger.
1.2 Articles of Incorporation. At the Effective Time, the articles of
incorporation of the Company shall be the articles of incorporation of the
Surviving Corporation, subject always to the right of the Surviving Corporation
to amend its articles of incorporation after the Effective Time in accordance
with the laws of the State of Oregon, and shall not be amended by virtue of the
Merger.
1.3 By-Laws. At the Effective Time, the by-laws of Buyer Subsidiary shall
be the by-laws of the Surviving Corporation and shall not be amended by the
Merger.
1.4 Directors and Officers. At the Effective Time, the directors of Buyer
Subsidiary immediately prior to the Effective Time shall be the directors of the
Surviving Corporation, and the officers of Buyer Subsidiary immediately prior to
the Effective Time shall be the officers of the Surviving Corporation, in each
case until their successors have been elected and qualified or until otherwise
provided by law.
Section 2. Effects on Capital Stock
2.1 Company Shares Owned by Company or the Buyer. At the Effective Time,
all of the shares of capital stock of the Company ("Shares") that are owned
directly or indirectly by the Company or any subsidiary of the Company and any
Shares owned by the Buyer, Buyer Subsidiary or any other subsidiary of the Buyer
shall be canceled and no consideration shall be delivered therefor.
2.2 Company Shares. At the Effective Time, each share of Common Stock, no
par value, of the Company ("Shares"), other than those referred to in Section
2.1, shall be converted into the right to receive, in accordance with this Plan
of Merger, in cash, without interest, [$2.48] per Share (the "Merger
Consideration"). For purposes of this Plan of Merger, the Merger Consideration
is calculated as the Purchase Price divided by the sum of all outstanding Shares
as of the Effective Time. The "Purchase Price" is equal to $24,000,000 minus
(i) the fees and expenses in excess of $850,000 in the aggregate incurred by or
on behalf of the Company and its subsidiaries with respect to investment
bankers, legal counsel and accountants utilized in connection with the
preparation, execution and performance of the Merger Agreement and this Plan of
Merger or the consummation of the Merger, (ii) the aggregate Spread Amount paid
under Section 3.1 below, (iii) the aggregate Warrant Spread Amount paid under
Section 3.3 below and (iv) the aggregate Former Employee Spread Amount paid
under Section 3.4 below.
2.3 Common Stock of Buyer Subsidiary. At the Effective Time, all of the
outstanding shares of Common Stock of Buyer Subsidiary shall be converted into
an equal number of shares of Common Stock of the Surviving Corporation.
Section 3. Company Stock Options, Warrants, Employee Stock Purchase Plan
3.1 Non-Employee Stock Options. At the Effective Time, each option
outstanding under the Company's 1993 Amended and Restated Stock Incentive Plan
and the 1995 Stock Option Plan for Nonemployee Directors (except for options
held by current employees of the Company) will be converted into the right to
receive the Spread Amount in cash. The "Spread Amount" is (i) the excess, if
any, of the Merger Consideration over the exercise price of such option times
(ii) the number of Shares then subject to such option, net of applicable
withholdings.
3.2 Employee Stock Options.
(a) Each option outstanding under the Company's 1986 Stock Option Plan and
1993 Amended and Restated Stock Incentive Plan that is held by a current
employee of the Company shall be replaced by an option issued under the Buyer's
1995 Stock Option / Stock Issuance Plan (such replaced option referred to as the
"New Option"). Each New Option will be exercisable for a number of shares of
common stock of the Buyer equal in value (based on the average closing prices
over the five (5) trading days ending on the third (3rd) trading day prior to
the Effective Time) to the Shares subject to the option and each Company
employee's vesting schedule will be preserved with no acceleration of the
vesting schedule due to the Merger.
(b) The per share exercise price for shares of the Buyer's common stock
issuable upon exercise of the New Option will be equal to the product of the
exercise price per share of the Company common stock at which such Company
option was exercisable immediately prior to the Effective Date multiplied by the
Conversion Ratio, and rounding the resulting exercise price up to the nearest
whole cent. The "Conversion Ratio" shall be equal to the quotient determined by
dividing the FMV of Buyer Common by the Merger Consideration. The "FMV of Buyer
Common" is the average closing price per share of the Buyer's common stock over
the five (5) trading days ending on the third (3rd) trading day prior to the
Effective Time.
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3.3 Warrants. At the Effective Time, each warrant for the purchase of
Shares will be converted into the right to receive the Warrant Spread Amount in
cash. The "Warrant Spread Amount" is (i) the excess, if any, of the Merger
Consideration over the exercise price of such warrant times (ii) the number of
Shares then subject to such warrant.
3.4 Former Employee Options. At the Effective Time, each outstanding
option issued under the Company's 1986 Stock Option Plan or 1993 Amended and
Restated Stock Incentive Plan that is held by any former employee of the Company
who has terminated his employment with the Company (or has had his employment
with the Company terminated by the Company) within the ninety (90) days prior to
the Effective Time and who is eligible to exercise such option in accordance
with the terms of the applicable Company option plan, if not exercised prior to
the Effective Time, will be converted into the right to receive the Former
Employee Spread Amount in cash. The "Former Employee Spread Amount" is (i) the
excess, if any, of the Merger Consideration over the exercise price of such
option times (ii) the number of Shares then subject to such option, net of
applicable withholdings.
Section 4. Surrender of Certificates
4.1 Paying Agent. Prior to the Effective Time, the Buyer shall designate
a bank or trust company to act as agent for the holders of the Shares in
connection with the Merger (the "Paying Agent") to receive the funds to which
the holders of the Shares shall become entitled pursuant to Section 2.2. The
Buyer shall, from time to time, make available to the Paying Agent funds in
amounts and at times necessary for the payment of the Merger Consideration in
the amounts and at the times provided herein. All interest earned on such funds
shall be paid to the Surviving Corporation.
4.2 Surrender Procedures. As soon as reasonably practicable after the
Effective Time, the Paying Agent shall mail each holder of record of a
certificate or certificates, which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates"), whose shares were converted
pursuant to Section 2.2 into the right to receive the Merger Consideration (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 Paying Agent and shall be in such form and have such other
provisions as the Buyer and the Company may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for payment of the Merger Consideration. Upon surrender of a Certificate for
cancellation to the Paying Agent or to such other agent or agents as may by
appointed by the Buyer, together with such letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in exchange therefor
the Merger Consideration for each Share formerly represented by such Certificate
and the Certificate so surrendered shall forthwith be canceled. If payment of
the Merger Consideration is to be made to a person other than the person in
whose name the surrendered Certificate is registered, it shall be a condition of
payment that the Certificate so surrendered shall be properly endorsed or shall
be otherwise in proper form for transfer and that the person requested in such
payment shall have paid any transfer and other taxes required by reason of the
payment of the Merger Consideration to a person other than the registered holder
of the Certificate surrendered or shall have established to the satisfaction of
the Surviving Corporation that such tax either has been paid or is not
applicable. Until surrendered as contemplated by this Section 4.2, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive the Merger Consideration as
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contemplated by this Section 4.2. The right of any holder of Shares to receive
the Merger Consideration shall be subject to and reduced by any applicable
withholding obligation.
4.3 Transfer Books; No Further Ownership Rights in the Shares. At the
Effective Time, the stock transfer books of the Company shall be closed and
thereafter there shall be no further registration of transfers of the Shares on
the records of the Company. From and after the Effective Time, the holders of
Certificates evidencing ownership of the Shares outstanding immediately prior to
the Effective Time shall cease to have any rights with respect to such Shares,
except as otherwise provided for herein or by applicable law.
4.4 Termination of Fund; No Liability. At any time following six months
after the Effective Time, the Surviving Corporation shall be entitled to require
the Paying Agent to deliver to it any funds (including any interest received
with respect thereto) which had been made available to the Paying Agent and
which have not been disbursed to holders of Certificates, and thereafter such
holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar laws) only as general creditors
thereof with respect to the Merger Consideration payable upon due surrender of
their Certificates, without any interest thereon. In no event shall the Buyer,
the Surviving Corporation or the Paying Agent be liable to any holder of a
Certificate for Merger Consideration delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law.
4.5 Lost, Stolen or Destroyed Certificates. In the event any Certificate
shall have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the registered holder thereof or such holder's duly authorized
attorney-in-fact, the Surviving Corporation may pay, or authorize the Paying
Agent to pay, the Merger Consideration with respect thereto, subject to Section
4.4 if applicable, provided that the Board of Directors of the Surviving
Corporation may, it its discretion and as a condition precedent to the payment
thereof, require the registered holder(s) and/or beneficial owner(s) of such
Certificate to give the Surviving Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Surviving
Corporation, the Company, the Buyer or the Buyer Subsidiary with respect to the
Certificate alleged to have been lost, stolen or destroyed.
Section 5. Miscellaneous
5.1 Other Agreements Superseded; Waiver and Modification, Etc. This Plan
of Merger, together with the Merger Agreement, supersedes all prior agreements
or understandings, written or oral, of the Company and the Buyer and Buyer
Subsidiary relating to the acquisition of the Company or its business and
incorporates the entire understanding of the parties with respect thereto. The
parties to this Plan of Merger make no representations or warranties with
respect to any matter, except as expressly set forth in the Merger Agreement.
The Plan of Merger may be amended or supplemented only by a written instrument
signed by the party against whom the amendment or supplement is sought to be
enforced. The party benefited by any condition or obligation may waive the
same, but such waiver shall not be enforceable by another party unless made by
written instrument signed by the waiving party and only to the extent expressly
stated therein.
5.2 Interpretation. The headings used in this Plan of Merger are provided
for convenience only and this Plan of Merger shall be interpreted as though they
did not appear herein. References in
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this Plan of Merger to sections refer, unless otherwise specified, to the
designated section of this Plan of Merger.
5.3 Law Governing. Except as to matters manditorily governed by the
Oregon Business Corporation Act, this Plan of Merger shall be construed in
accordance with and governed by the laws of the State of California applicable
to contracts made and to be performed in California.
5.4 Time of Essence. Time is of the essence of this Plan of Merger and
all of the terms, conditions and provisions hereof.
5.5 Termination. This Plan of Merger shall be deemed to be terminated at
such time, if at all, that the Merger Agreement is terminated.
5.6 Counterparts. This Plan of Merger may be executed in any number of
counterparts and each such executed counterpart shall be deemed to be an
original instrument, but all such executed counterparts together shall
constitute one and the same instrument. One party may execute one or more
counterparts other than that or those executed by another party, without thereby
affecting the effectiveness of any such signatures.
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IN WITNESS WHEREOF, the parties have executed this Plan of Merger.
Company: ANALOGY, INC.
By _________________________________________
Name:
Title:
Buyer Subsidiary: AC ACQUISITION CORP.
By ________________________________________
Name:
Title:
Articles of Merger
of
AC Acquisition Corp.
into
Analogy, Inc.
The undersigned, the ___________________ of Analogy, Inc., an Oregon
corporation, and the __________________ of AC Acquisition Corp., an Oregon
corporation, hereby certify as follows:
1. The plan of merger attached hereto provides for the merger of AC
Acquisition Corp. into Analogy, Inc.
2. The plan of merger has been approved by Analogy, Inc. and AC
Acquisition Corp. pursuant to the Oregon Business Corporation Act.
IN WITNESS WHEREOF, the undersigned have duly executed this document on
behalf of their respective corporations.
Date: _____________, 1999
ANALOGY, INC. AC ACQUISITION CORP.
By:______________________________ By: ______________________________
Name: Name:
