<PAGE>
As filed with the Securities and Exchange Commission on July 31, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
ANALOGY, INC.
(Exact name of registrant as specified in charter)
OREGON 93-0892014
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
------------------------
9205 SW GEMINI DRIVE, BEAVERTON, OREGON 97008
(503) 626-9700
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
------------------------
ANALOGY, INC. 1996 EMPLOYEE
STOCK PURCHASE PLAN
------------------------
GARY P. ARNOLD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ANALOGY, INC.
9205 SW GEMINI DRIVE, BEAVERTON, OREGON 97008
(503) 626-9700
(Name, address, including zip code and telephone number,
including area code, of agent for service)
------------------------
with copies to:
MICHAEL W. SHACKELFORD, ESQ.
ATER WYNNE HEWITT DODSON & SKERRITT, LLP
222 S.W. COLUMBIA, SUITE 1800, PORTLAND, OREGON 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Amount of
be Registered Registered Price per Share (1) Aggregate Offering Price (1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no
par value 300,000 shares $ 5.1875 $ 1,556,250 $ 536.64
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee based
on the average of the high and low prices reported on the Nasdaq National
Market on July 29, 1996.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this Registration
Statement:
(a) Annual Report on Form 10-K of the Company for the fiscal year ended
March 31, 1996 filed with the Securities and Exchange Commission (the "SEC") on
June 28, 1996 pursuant to Sections 13(a) and 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act").
(b) Registration Statement on Form 8-A of the Company filed with the SEC
on February 12, 1996.
(c) All documents filed by the Company with the SEC pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and before the date of filing of a post-effective
amendment to this Registration Statement stating that all securities offered
have been sold or which deregisters all securities then remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As an Oregon corporation the Company is subject to the Oregon Business
Corporation Act ("OBCA") and the exculpation from liability and indemnification
provisions contained therein. Pursuant to Section 60.047(2)(d) of the OBCA,
Article IV of the Company's Restated Articles of Incorporation (the "Articles")
eliminates the liability of the Company's directors to the Company or its
shareholders, except for any liability related to breach of the duty of loyalty,
actions not in good faith and certain other liabilities. The Articles require
the Company to indemnify its directors and officers to the fullest extent not
prohibited by law.
Section 60.387, ET SEQ., of the OBCA allows corporations to indemnify their
directors and officers against liability where the
- 2 -
<PAGE>
director or officer has acted in good faith and with a reasonable belief that
actions taken were in the best interests of the corporation or at least not
adverse to the corporation's best interests and, if in a criminal proceeding,
the individual had no reasonable cause to believe the conduct in question was
unlawful. Under the OBCA, corporations may not indemnify against liability in
connection with a claim by or in the right of the corporation in which the
director or officer was adjudged liable to the corporation, but may indemnify
against the reasonable expenses associated with such claims. Corporations may
not indemnify against breaches of the duty of loyalty. The OBCA mandates
indemnification against all reasonable expenses incurred in the successful
defense of any claim made or threatened whether or not such claim was by or in
the right of the corporation. Finally, a court may order indemnification if it
determines that the director or officer is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances whether or not the
director or officer met the good faith and reasonable belief standards of
conduct set out in the statute.
The OBCA also provides that the statutory indemnification provisions are not
deemed exclusive of any other rights to which directors or officers may be
entitled under a corporation's articles of incorporation or bylaws, any
agreement, general or specific action of the board of directors, vote of
shareholders or otherwise.
Effective as of March 15, 1996, the Company entered into indemnity agreements
with Gary P. Arnold, Dr. Martin Vlach, Paul Brandli, Robert L. Cattoi, John H.
Faehndrich, Neil E. Goldschmidt, Frank Roehr and Charles E. Sporck, each of whom
is a member of the Board of Directors (Messrs. Arnold and Vlach are also
officers of the Company). Effective as of March 15, 1996, the Company also
entered into indemnity agreements with Terence A. Rixford, R. Douglas Johnson,
David W. Smith, Dr. Ian E. Getreu, Douglas L. Goodman, Marcy Edwards and Douglas
H. Lundin, each of whom is an officer of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Number Description
------ -----------
5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to the legality
of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP (included in legal
opinion filed as Exhibit 5.0)
- 3 -
<PAGE>
23.2 Consent of KPMG Peat Marwick LLP
24.0 Powers of Attorney (included in signature page in Part II of the
Registration Statement)
99.0 Analogy, Inc. 1996 Employee Stock Purchase Plan
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that subparagraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those subparagraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) The undersigned registrant hereby undertakes that, for the purpose of
determining liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to remove from
registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(d) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
- 4 -
<PAGE>
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such a director, officer or controlling person in
connection with securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
- 5 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beaverton, State of Oregon, on the 29th day of July,
1996.
ANALOGY, INC.
By: /s/ Gary P. Arnold
--------------------------------
Gary P. Arnold
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Gary P. Arnold and Terrence A. Rixford, and each of
them singly, as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign the registration statement filed herewith and any
or all amendments to said registration statement (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
granting unto said attorneys-in-fact and agents and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the foregoing, as fully to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Witness our hands on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
[SIGNATURES ON FOLLOWING PAGE]
- 6 -
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Gary P. Arnold
- ------------------------- Chairman of the Board,
Gary P. Arnold President and Chief
Executive Officer
(Principal
Executive Officer) 07/29/96
/s/ Terrence A. Rixford
- ------------------------- Vice President, Finance
Terrence A. Rixford and Administration
(Principal Financial 07/29/96
and Accounting Officer)
- ------------------------- Director 07/ /96
Paul Brandli
/s/ Robert L. Cattoi
- ------------------------- Director 07/19/96
Robert L. Cattoi
- ------------------------- Director 07/ /96
John H. Faehndrich
/s/ Neil E. Goldschmidt
- ------------------------- Director 07/29/96
Neil E. Goldschmidt
/s/ Frank Roehr
- ------------------------- Director 07/29/96
Frank Roehr
/s/ Charles E. Sporck
- ------------------------- Director 07/14/96
Charles E. Sporck
/s/ Martin Vlach
- ------------------------- Director 07/13/96
Martin Vlach
- 7 -
<PAGE>
INDEX TO EXHIBITS
Exhibit Page
Number Exhibit No.
- ------- ------- -----
5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as to
the legality of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP
(included in legal opinion filed as Exhibit 5.0)
23.2 Consent of KPMG Peat Marwick LLP
24.0 Powers of Attorney (included in signature page in Part II of
the Registration Statement)
99.0 Analogy, Inc. 1996 Employee Stock Purchase Plan
- 8 -
<PAGE>
July 31, 1996
Board of Directors
Analogy, Inc.
9525 SW Gemini Drive
Beaverton, Oregon 97008
Gentlemen:
In connection with the registration of 300,000 shares of common stock, no
par value (the "Common Stock"), of Analogy, Inc., an Oregon corporation (the
"Company"), under the Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission on July 31, 1996, and the proposed offer and
sale of the Common Stock pursuant to the terms of the Company's 1996 Employee
Stock Purchase Plan (the "1996 Plan"), we have examined such corporate records,
certificates of public officials and officers of the Company and other documents
as we have considered necessary or proper for the purpose of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be offered
pursuant to the 1996 Plan, when such shares have been delivered against payment
therefor as contemplated by the 1996 Plan, will be validly issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
/s/ Ater Wynne Hewitt Dodson & Skerritt, LLP
Ater Wynne Hewitt Dodson & Skerritt, LLP
<PAGE>
[LETTERHEAD]
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Analogy, Inc.:
We consent to the use of our report included herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Portland, Oregon
July 26, 1996
<PAGE>
ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
The following provisions constitute the Analogy, Inc. 1996 Employee Stock
Purchase Plan.
1. PURPOSE. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. It is the
intention of the Company to have the Plan qualify as an "Employee Stock Purchase
Plan" under Section 423 of the Internal Revenue Code of 1986, as amended. The
provisions of the Plan, accordingly, shall be construed so as to extend and
limit participation in a manner consistent with the requirements of that section
of the Code.
2. DEFINITIONS.
2.1 "ACCOUNT" shall mean each separate account maintained for a
Participant under the Plan, collectively or singly as the context requires.
Each Account shall be credited with a Participant's contributions, and shall be
charged for the purchase of Common Stock. A Participant shall be fully vested
in the cash contributions to his or her account at all times. The Plan
Administrator may create special types of accounts for administrative reasons,
even though the Accounts are not expressly authorized by the Plan.
2.2 "BOARD" shall mean the Board of Directors of the Company.
2.3 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
2.4 "COMMITTEE" shall mean the Compensation Committee of the
Board.
2.5 "COMMON STOCK" shall mean the Common Stock of the Company.
2.6 "COMPANY" shall mean Analogy, Inc., an Oregon corporation.
2.7 "COMPENSATION" shall mean all base straight time gross
earnings plus payments for overtime, shift premiums and sales commissions, but
excluding incentive compensation, incentive payments, bonuses, awards, and other
compensation.
1 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
2.8 "DESIGNATED SUBSIDIARY" shall mean each Subsidiary which
has been designated by the Board from time to time in its sole discretion as
eligible to participate in the Plan.
2.9 "EMPLOYEE" shall mean an individual who renders services to
the Company or to a Designated Subsidiary pursuant to a regular-status
employment relationship with such employer. A person rendering services to the
Company or to a Designated Subsidiary purportedly as an independent consultant
or contractor shall not be an Employee for purposes of the Plan.
2.10 "ENROLLMENT DATE" shall mean the first day of each Offering
Period.
2.11 "FAIR MARKET VALUE"
2.11.1 If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") System, its Fair Market Value shall be the
closing sale price for the Common Stock (or the mean of the closing bid and
asked prices, if no sales were reported), as quoted on such exchange (or the
exchange with the greatest volume of trading in Common Stock) or system on the
last Trading Day prior to the day of such determination, as reported in THE WALL
STREET JOURNAL or such other source as the Board deems reliable, or;
2.11.2 If the Common Stock is quoted on the NASDAQ system
(but not on the National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean of the closing bid and asked prices for the
Common Stock on the last Trading Day prior to the day of such determination, as
reported in THE WALL STREET JOURNAL or such other source as the Board deems
reliable, or;
2.11.3 In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Board.
2.12 "NASDAQ" shall mean the National Association of Securities
Dealers Automated Quotation System or such other quotation system that
supersedes it.
2.13 "OFFERING PERIOD" shall mean the period of approximately
six (6) months, commencing on the first Trading Day on or after a date
designated in advance by the Board and terminating on the last Trading Day in
the period ending six months later, during which an option granted pursuant to
the Plan may be exercised. The duration of Offering Periods may be changed
pursuant to Section 4 of this Plan.
2 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
2.14 "PARTICIPANT" shall mean any Employee who is participating
in this Plan by meeting the eligibility requirements of Section 3 and has
completed a Payroll Deduction Authorization Form.
2.15 "PAYROLL PARTICIPATION FORM" shall mean the form attached
hereto as Exhibit A (or such other form as may be provided by the Company) on
which a Participant shall elect to participate in the Plan and designate the
percentage of his or her Compensation to be contributed to his or her Account
through payroll deductions.
2.16 "PLAN" shall mean this Employee Stock Purchase Plan.
2.17 "PURCHASE DATE" shall mean the last day of each Offering
Period.
2.18 "PURCHASE PRICE" shall mean an amount equal to 85% of the
Fair Market Value of a share of Common Stock (i) on the Enrollment Date or
(ii) on the Purchase Date, whichever is lower.
2.19 "RESERVES" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
2.20 "SUBSIDIARY" shall mean a corporation, domestic or foreign,
of which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company of a Subsidiary.
2.21 "TRADING DAY" shall mean a day on which national stock
exchanges and NASDAQ are open for trading.
3. ELIGIBILITY.
3.1 An Employee shall become eligible to participate in the
Plan on the first Enrollment Date on or after which he or she first meets all of
the following requirements; provided, however, that no one shall become eligible
to participate in the Plan prior to the Enrollment Date of the first Offering
Period provided for in Section 2.13:
3.1.1 The person's customary period of employment is for
more than twenty (20) hours per week;
3 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
3.1.2 The person's customary period of employment is for
more than five (5) months in any calendar year.
3.2 Any provisions of the Plan to the contrary notwithstanding,
no Employee shall be granted an option under the Plan (i) if, immediately after
the grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or of any Subsidiary, or (ii) which permits his or her rights to
purchase stock under all employee stock purchase plans (under Section 423 of
the Code) of the Company and Subsidiaries to accrue at a rate which exceeds
Twenty-Five Thousand Dollars ($25,000) worth of stock (determined at the fair
market value of the shares at the time such option is granted) for each calendar
year in which such option is outstanding at any time.
3.3 For purposes of the Plan, eligibility shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the Company. Where the period of leave exceeds 90 days and
the individual's right to reemployment is not guaranteed either by statute or by
contract, eligibility to participate in the Plan will be deemed to have
terminated on the 91st day of such leave.
4. OFFERING PERIODS. The Plan shall be implemented by consecutive
Offering Periods with the first Offering Period commencing on a date designated
in advance by the Board, and continuing for six month periods thereafter until
terminated in accordance with Section 19 hereof. The Board shall have the power
to change the duration of Offering Periods (including the commencement dates
thereof) with respect to future offerings without shareholder approval if such
change is announced at least fifteen (15) days prior to the scheduled beginning
of the first Offering Period to be affected thereafter.
5. PARTICIPATION.
5.1 An eligible Employee may become a Participant in the Plan
by completing a Payroll Participation Form and filing it with the Company's
Human Resources Department (as set forth in Section 20 below) at least fifteen
(15) days prior to the applicable Enrollment Date, unless a later time for
filing the Payroll Participation Form is set by the Board for all eligible
Employees with respect to a given Offering Period.
5.2 Payroll deductions for a Participant shall commence on the
first payroll period following the Enrollment Date and shall end on the last
payroll period in the Offering Period, unless sooner terminated by the
Participant as provided in Section 10
hereof.
4 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
6. PAYROLL DEDUCTIONS.
6.1 At the time a Participant files his or her Payroll
Participation Form, he or she shall elect to have payroll deductions made on
each payday during the Offering Period in an amount not exceeding ten percent
(10%) of the Compensation which he or she receives on each payday during the
Offering Period, and the aggregate of such payroll deductions during the
Offering Period shall not exceed ten percent (10%) of the Participant's
Compensation during said Offering Period.
6.2 A Participant shall specify that he or she desires to make
contributions to the Plan in whole percentages not less than one percent (1%)
and not more than ten percent (10%) of the Participant's Compensation during
each pay period in the Offering Period, or such other minimum or maximum
percentage as the Board shall establish from time to time.
6.3 All payroll deductions made for a Participant shall be
credited to his or her Account under the Plan and will be withheld in whole
percentages only. A Participant may not make any additional payments into such
Account.
6.4 A Participant may discontinue his or her participation in
the Plan as provided in Section 10 hereof, or may increase or decrease the rate
of his or her payroll deductions during the Offering Period by filing with the
Company (as set forth in Section 20 below) a new Payroll Participation Form
authorizing a change in payroll deduction rate. A Participant is limited to
making one change during an Offering Period. The change in rate shall be
effective as soon as practicable following the Company's receipt of a new
Payroll Participation Form. A Participant's Payroll Participation Form shall
remain in effect for successive Offering Periods unless terminated as provided
in Section 10.
6.5 Notwithstanding the foregoing, to the extent necessary to
comply with Section 423(b)(8) of the Code and Section 3.2 hereof, a
Participant's payroll deductions shall be decreased to 0% at such time during
any Offering Period which is scheduled to end during the current calendar year
(the "Current Offering Period") that the aggregate of all payroll deductions
which were previously used to purchase stock under the Plan in a prior Offering
Period which ended during that calendar year plus all payroll deductions
accumulated with respect to the Current Offering Period equal $21,250 (85% of
$25,000). Payroll deductions shall recommence at the rate provided in such
Participant's Payroll Participation Form at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless
terminated by the Participant as provided in Section 10.
5 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
6.6 At the time the option is exercised, or at the time some or
all of the Common Stock issued under the Plan is disposed of, the Participant
must make adequate provision for the Company's federal, state, or other tax
withholding obligations, if any, which arise upon the exercise of the option or
the disposition of the Common Stock. At any time, the Company may, but will not
be obligated to, withhold from the Participant's compensation the amount
necessary for the Company to meet applicable withholding obligations, including
any withholding required to make available to the Company any tax deductions or
benefit attributable to sale or early disposition of Common Stock by the
Employee.
7. OPTION TO PURCHASE COMMON STOCK. On the Enrollment Date of each
Offering Period, each eligible Employee participating in such Offering Period
shall be granted an option to purchase on the Purchase Date of such Offering
Period (at the applicable Purchase Price) up to a number of shares of the Common
Stock determined by dividing such Employee's payroll deductions accumulated
prior to such Purchase Date and retained in the Participant's account as of the
Purchase Date by the applicable Purchase Price; provided that in no event shall
an Employee be permitted to purchase during each Offering Period more than a
number of shares determined by dividing $12,500 by the Fair Market Value of a
share of the Common Stock on the Enrollment Date, and provided further that such
purchase shall be subject to the limitations set forth in Sections 3.2 and 12
hereof. Purchase of the Common Stock shall occur as provided in Section 8,
unless the Participant has withdrawn pursuant to Section 10, and the option
shall expire on the last day of the Offering Period.
8. PURCHASE OF COMMON STOCK. Unless a Participant withdraws from the
Plan as provided in Section 10.1 below, his or her option for the purchase of
Common Stock will be exercised automatically on the Purchase Date, and the
maximum number of full shares subject to option shall be purchased for such
Participant at the applicable Purchase Price with the accumulated payroll
deductions in his or her account. No fractional shares of Common Stock will be
purchased; any payroll deductions accumulated in a Participant's account which
are not sufficient to purchase a full share shall be retained in the
Participant's account for the subsequent Offering Period, subject to earlier
withdrawal by the Participant as provided in Section 10 hereof. During a
Participant's lifetime, a Participant's option to purchase shares of Common
Stock hereunder is exercisable only by him or her.
9. DELIVERY. As promptly as practicable after each Purchase Date,
the Company shall arrange the delivery to each Participant of a certificate for
the shares of Common Stock purchased with his or her payroll deductions.
6 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
10.1 A Participant may withdraw all but not less than all the
payroll deductions credited to his or her account and not yet used to purchase
shares of Common Stock under the Plan by giving written notice in the form of
Exhibit B to this Plan (or such other form as may be provided by the Company) to
the Company's Human Resources Department (as set forth in Section 20 below) no
less than 15 days immediately preceding a Purchase Date. All of the
Participant's payroll deductions credited to his or her Account will be paid to
such Participant as soon as practicable after receipt of notice of withdrawal
and such Participant's option for the Offering Period will be automatically
terminated, and no further payroll deductions for the purchase of shares will be
made during the Offering Period. If a Participant withdraws from an Offering
Period, payroll deductions will not resume at the beginning of the succeeding
Offering Period unless the Participant delivers to the Company a new Payroll
Participation Form.
10.2 Upon termination of a Participant's employment for any
reason, including death, disability or retirement, or a Participant failing to
remain an Employee of the Company for at least twenty (20) hours per week during
an Offering Period in which the Employee is a Participant, he or she will be
deemed to have elected to withdraw from the Plan and the payroll deductions
credited to such Participant's Account shall be returned to the Participant; or,
in the case of death, to the persons entitled thereto under Section 14, and such
Participant's option shall be automatically terminated.
11. INTEREST. No interest shall accrue on the payroll deductions of a
Participant in the Plan.
12. STOCK.
12.1 The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be 300,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in Section 18. If on a given Purchase Date the number of shares of Common Stock
eligible to be purchased exceeds the number of shares then available under the
Plan, the Company shall make a pro rata allocation of the shares remaining
available for purchase in as uniform a manner as shall be practicable and as it
shall determine to be equitable.
12.2 The Participant will have no interest or voting right in
shares covered by his or her option until such shares of Common Stock have been
purchased.
7 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
12.3 Common Stock to be delivered to a Participant under the
Plan will be registered in the name of the Participant or in the name of the
Participant and his or her spouse.
13. ADMINISTRATION.
13.1 ADMINISTRATIVE BODY. The Plan shall be administered by the
Committee. Subject to the terms of the Plan, the Committee shall have the power
to construe the provisions of the Plan, to determine all questions arising
thereunder, and to adopt and amend such rules and regulations for administering
the Plan as the Committee deems desirable.
13.2 RULE 16B-3 LIMITATIONS. Notwithstanding the provisions of
Subsection 13.1, in the event that Rule 16b-3 promulgated under the Securities
Exchange Act of 1934, as amended, or any successor provision ("Rule 16b-3")
provides specific requirements for the administrators of plans of this type, the
Plan shall be only administered by such a body and in such a manner as shall
comply with the applicable requirements of Rule 16b-3.
14. DESIGNATION OF BENEFICIARY.
14.1 A Participant may file a written designation of a
beneficiary who is to receive any shares and cash, if any, from the
Participant's account under the Plan in the event of such Participant's death
subsequent to a Purchase Date on which the option is exercised but prior to
delivery to such Participant of such shares and cash. In addition, a
Participant may file a written designation of a beneficiary who is to receive
any cash from the Participant's account under the Plan in the event of such
Participant's death prior to a Purchase Date.
14.2 Such designation of beneficiary may be changed by the
Participant at any time by written notice as provided in Section 20 below. In
the event of the death of a Participant and in the absence of a beneficiary
validly designated under the Plan who is living at the time of such
Participant's death, the Company shall deliver such shares and/or cash to the
executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such shares and/or cash to the
spouse or to any one or more dependents or relatives of the Participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
15. TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an option or
to receive shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by
8 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
will, the laws of descent and distribution or as provided in Section 14 hereof)
by the Participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw funds from an Offering Period in accordance with
Section 10.
16. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
17. REPORTS. Individual accounts will be maintained for each
Participant in the Plan. Statements of account will be given to participating
Employees at least annually, which statements will set forth the amounts of
payroll deductions, the Purchase Price, the number of shares purchased and the
remaining cash balance, if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR
ASSET SALE.
18.1 CHANGES IN CAPITALIZATION. Subject to any required action
by the stockholders of the Company, the Reserves, as well as the price per share
of Common Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be deemed
to have been "effected without receipt of consideration." Such adjustment shall
be made by the Board, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an option. The Board may, if it so determines in the exercise of its sole
discretion, make provision for adjusting the Reserves, as well as the price per
share of Common Stock covered by each outstanding option, in the event the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock.
18.2 DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, the Offering Period will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board.
9 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
18.3 MERGER OR ASSET SALE. In the event of a proposed sale of
all or substantially all of the assets of the Company, or the merger of the
Company with or into another corporation, each option under the Plan shall be
assumed or any equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless the
Board determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, to shorten the Offering Period then in progress by
setting a new Purchase Date (the "New Purchase Date") or to cancel each
outstanding right to purchase and refund all sums collected from Participants
during the Offering Period then in progress. If the Board shortens the Offering
Period then in progress in lieu of assumption or substitution in the event of a
merger or sale of assets, the Board shall notify each Participant in writing, at
least ten (10) business days prior to the New Purchase Date, that the Purchase
Date for his option has been changed to the New Purchase Date and that his
option will be exercised automatically on the New Purchase Date, unless prior to
such date he has withdrawn from the Offering Period as provided in Section 10
hereof. For purposes of this paragraph, an option granted under the Plan shall
be deemed to be assumed if, following the sale of assets or merger, the option
confers the right to purchase, for each share of option stock subject to the
option immediately prior to the sale of assets or merger, the consideration
(whether stock, cash or other securities or property) received in the sale of
assets or merger by holders of Common Stock for each share of Common Stock held
on the effective date of the transaction (and if such holders were offered a
choice of consideration, the type of consideration chosen by the holders of a
majority of the outstanding shares of Common Stock); provided, however, that if
such consideration received in the sale of assets or merger was not solely
common stock of the successor corporation or its parent (as defined in Section
424(e) of the Code), the Board may, with the consent of the successor
corporation and the Participant, provide for the consideration to be received
upon exercise of the option to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of Common Stock in the sale of assets or
merger.
19. AMENDMENT OR TERMINATION.
19.1 The Board may at any time and for any reason terminate or
amend the Plan. Except as provided in Section 18, no such termination can
affect options previously granted, provided that an Offering Period may be
terminated by the Board on any Purchase Date if the Board determines that the
termination of the Plan is in the best interests of the Company and its
stockholders. Except as provided in Section 18, no amendment may make any
change in any option theretofore granted which adversely affects the rights of
any Participant. To the extent necessary to comply with Section 423 of the Code
(or any successor rule or provision or any other applicable law or regulation),
the Company shall obtain stockholder approval in such a manner and to such a
degree as required.
10 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
19.2 Without stockholder consent and without regard to whether
any Participant rights may be considered to have been "adversely affected," the
Committee shall be entitled to change the Offering Periods, limit the frequency
and/or number of changes in the amount withheld during an Offering Period,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, permit payroll withholding in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation, and establish such other limitations or procedures as the Board
(or its committee) determines in its sole discretion advisable which are
consistent with the Plan.
19.3 If required to qualify the Plan under Rule 16b-3, no
amendment shall be made more than once every six months that would change the
amount, price or timing of the options, other than to comport with changes in
the Code, or the rules and regulations promulgated thereunder; and provided,
further, that if required to qualify the Plan under Rule 16b-3, no amendment
shall be made without the approval of the Company's stockholders that would:
19.3.1 materially increase the number of shares of Common
Stock that may be issued under the Plan;
19.3.2 materially modify the requirements as to eligibility
for participation in the Plan; or
19.3.3 otherwise materially increase the benefits accruing
to participants under the Plan.
20. NOTICES. All notices or other communications by a Participant to
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company by the Company's
Human Resources Manager at the Company's corporate headquarters.
21. CONDITIONS UPON ISSUANCE OF SHARES OF COMMON STOCK. Common Stock
shall not be issued with respect to an option unless the exercise of such option
and the issuance and delivery of such shares pursuant thereto shall comply with
all applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which
11 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the purchase of Common Stock, the Company may
require the person purchasing such Common Stock to represent and warrant at the
time of any such purchase that the shares are being purchased only for
investment and without any present intention to sell or distribute such shares
if, in the opinion of counsel for the Company, such a representation is required
by any of the aforementioned applicable provisions of law.
22. TERM OF PLAN.
22.1 The Plan shall become effective upon the earlier to occur
of its adoption by the Board of Directors or its approval by the stockholders of
the Company. It shall continue in effect for a term of ten (10) years unless
sooner terminated pursuant to Section 19.
22.2 Notwithstanding the above, the Plan is expressly made
subject (i) to the approval of the holders of a majority of the outstanding
shares of the Company within 12 months after the date the Plan is adopted and
(ii) at its election, to the receipt by the Company from the Internal Revenue
Service of a ruling in scope and content satisfactory to counsel to the Company,
affirming the qualification of the Plan within the meaning of Section 423 of the
Code. If the Plan is not so approved by the stockholders within 12 months after
the date the Plan is adopted, and if, at the election of the Company a ruling
from the Internal Revenue Service is sought but is not received on or before one
year after the Plan's adoption by the Board, this Plan shall not come into
effect. In that case, the Account of each Participant shall forthwith be paid
to him or her.
23. ADDITIONAL RESTRICTIONS OF RULE 16B-3. The terms and conditions
of options granted hereunder to, and the purchase of shares by, persons subject
to Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
12 - ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
EXHIBIT A
ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
PAYROLL PARTICIPATION FORM
____ Original Application Enrollment Date: ___________
____ Change in Payroll Deduction Rate
____ Change of Beneficiary(ies)
1. _____________________________________ hereby elects to participate in the
Analogy, Inc. 1996 Employee Stock Purchase Plan (the "Employee Stock
Purchase Plan") and subscribes to purchase shares of the Company's Common
Stock in accordance with this Payroll Participation Form and the Employee
Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount of
____% of my compensation on each payday (not to exceed 10%) during the
Offering Period in accordance with the Employee Stock Purchase Plan.
(Please note that no fractional percentages are permitted.)
3. I understand that said payroll deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase Price
determined in accordance with the Employee Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used to automatically exercise my
option.
4. I have received a copy of the complete "Analogy, Inc. 1996 Employee Stock
Purchase Plan." I understand that my participation in the Employee Stock
Purchase Plan is in all respects subject to the terms of the Plan.
5. Shares purchased for me under the Employee Stock Purchase Plan should be
issued in the name(s) of (employee and/or spouse only):_________________
_______________________________________________________________________.
1 - EXHIBIT A
<PAGE>
6. I understand that if I dispose of any shares received by me pursuant to
the Plan within two years after the Enrollment Date (the first day of the
Offering Period during which I purchased such shares) or within one year
after the Purchase Date (the date I purchased such shares), I will be
treated for federal income tax purposes as having received ordinary
income at the time of such disposition in an amount equal to the excess
of the fair market value of the shares at the time such shares were
delivered to me over the price which I paid for the shares. I HEREBY
AGREE TO NOTIFY THE COMPANY IN WRITING WITHIN 30 DAYS AFTER THE DATE OF
ANY DISPOSITION OF MY SHARES AND I WILL MAKE ADEQUATE PROVISION FOR
FEDERAL, STATE OR OTHER TAX WITHHOLDING OBLIGATIONS, IF ANY, WHICH ARISE
UPON THE DISPOSITION OF THE COMMON STOCK. The Company may, but will not
be obligated to, withhold from my compensation the amount necessary to
meet any applicable withholding obligation including any withholding
necessary to make available to the Company any tax deductions or benefits
attributable to sale or early disposition of Common Stock by me. If I
dispose of such shares at any time after the expiration of the one-year
and two-year holding periods described above, I understand that I will be
treated for federal income tax purposes as having received income only at
the time of such disposition, and that such income will be taxed as
ordinary income only to the extent of an amount equal to the lesser of
(1) the excess of the fair market value of the shares at the time of such
disposition over the purchase price which I paid for the shares, or (2)
15% of the fair market value of the shares on the first day of the
Offering Period. The remainder of the gain, if any, recognized on such
disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Employee Stock Purchase
Plan. The effectiveness of this Payroll Participation Form is dependent
upon my eligibility to participate in the Employee Stock Purchase Plan.
8. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Employee Stock Purchase Plan:
NAME: (Please print)
---------------------------------------------------------
(First) (Middle) (Last)
- ------------------------------ -------------------------------
Relationship
-------------------------------
(Address)
2 - EXHIBIT A
<PAGE>
NAME: (Please print)
---------------------------------------------------------
(First) (Middle) (Last)
- ------------------------------ -------------------------------
Relationship
-------------------------------
(Address)
Employee's Social
Security Number: -------------------------------
Employee's Address: -------------------------------
-------------------------------
-------------------------------
I UNDERSTAND THAT THIS PAYROLL PARTICIPATION FORM SHALL REMAIN IN EFFECT
THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated:
------------------------ -------------------------------
Signature of Employee
-------------------------------
Spouse's Signature (If
beneficiary other than spouse)
3 - EXHIBIT A
<PAGE>
EXHIBIT B
ANALOGY, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned Participant in the Offering Period of the Analogy, Inc.
1996 Employee Stock Purchase Plan which began on ____________, 19____ (the
"Enrollment Date") hereby notifies the Company that he or she hereby withdraws
from the Offering Period. He or she hereby directs the Company to pay to the
undersigned as promptly as practicable all the payroll deductions credited to
his or her account with respect to such Offering Period. The undersigned
understands and agrees that his or her option for such Offering Period will be
automatically terminated. The undersigned understands further that no further
payroll deductions will be made for the purchase of shares in the current
Offering Period and the undersigned shall be eligible to participate in
succeeding Offering Periods only by delivering to the Company a new Payroll
Participation Form.
Name and Address of Participant
-------------------------------
-------------------------------
-------------------------------
Signature:
-------------------------------
Date:
-------------------------
1 - EXHIBIT B
