EXHIBIT 2
Plan of Merger
This Plan of Merger (this "Plan of Merger") dated November __, 1999 is
entered into by DM Acquisition Corp., a Minnesota corporation ("Buyer
Subsidiary"), and Carleton Corporation, a Minnesota corporation (the "Company").
Buyer Subsidiary is a wholly-owned subsidiary of Oracle 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 the date hereof among the parties to this Plan of Merger and the
stockholders of the Company setting forth certain representations and
warranties, covenants and conditions in connection with the Merger (the "Merger
Agreement"). Capitalized terms used herein without definition have the meanings
stated in 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 Minnesota Secretary of State in accordance with
Minnesota 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 certificate of incorporation after the Effective Time in accordance
with the laws of the State of Minnesota, 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, all of the shares of Common
Stock, $.25 par value per share, of the Company ("Shares"), other than any
Shares as to which dissenters' rights under Section 302A.473 of the Minnesota
Business Corporation Act are perfected ("Dissenters' Shares") and 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, $2.45 per
Share (the "Merger Consideration").
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 Stock Options. At the Effective Time, each option outstanding under
the Company's 1990 Long Term Incentive Plan and Old Carleton's 1994 Stock Option
Plan will be converted into the right to receive the Spread Amount. 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
(determined, with respect to option holders who are employees of the Company at
the Effective Time, without regard to any vesting or deferred exercisability
provisions), net of applicable withholdings.
3.2 Warrants. At the Effective Time, each warrant for the purchase of
Shares will be converted into the right to receive (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.
3.3 Employee Stock Purchase Plan. At the Effective Time, each employee
who has elected to participate in the Company's Employee Stock Purchase Plan as
though it applied to shares in addition to those set forth therein shall be
entitled to receive, pursuant to a letter agreement between the Company and such
employee stating that such payment constitutes full satisfaction of all the
Company's obligations under such Plan, an amount equal to the Merger
Consideration times the number of Shares which the amount held in such Plan for
such employee would have purchased under such Plan had applied to such shares.
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
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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 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 shall 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
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may direct as indemnity against any claim that may be made against the Surviving
Corporation, the Company, the Buyer Subsidiary with respect to the Certificate
alleged to have been lost, stolen or destroyed.
Section 5. Dissenter's Rights
If any Dissenting Shares shall be entitled to be paid the "fair value" of
such Shares, as provided in Section 302A.473 of the Minnesota Business
Corporation Act, the Company shall give the Buyer and Buyer Subsidiary notice
thereof and the Buyer and Buyer Subsidiary shall have the right to participate
in all negotiations and proceedings with respect to any such demands. The
Surviving Corporation shall not, except with the prior written consent of the
Buyer or Buyer Subsidiary, voluntarily make any payment with respect to, or
settle or offer to settle, any such demand for payment. If any Dissenting
Shares shall fail to perfect or shall have effectively withdrawn or lost the
right to dissent, such Dissenting Shares shall thereupon be treated as though
such Dissenting Shares had been converted into the right to receive the Merger
Consideration pursuant to Section 2.2.
Section 6. Miscellaneous
6.1 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.
6.2 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 this Plan of Merger to sections
refer, unless otherwise specified, to the designated section of this Plan of
Merger.
6.3 Law Governing. Except as to matters manditorily governed by the
Minnesota 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.
6.4 Time of Essence. Time is of the essence of this Plan of Merger and
all of the terms, conditions and provisions hereof.
6.5 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: CARLETON CORPORATION
By _________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chairman, Chief Executive Officer
and President
Buyer Subsidiary: DM ACQUISITION CORP.
By ________________________________________
Name: Xxxxxx Xxxxxxxxx
Title: President, Chief Executive Officer
and President
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ARTICLES OF MERGER
OF
DM Acquisition Corp.
INTO
CARLETON CORPORATION
The undersigned, the ___________________ of Carleton Corporation, a
Minnesota corporation, and the __________________ of DM Acquisition Corp., a
Minnesota corporation, hereby certify as follows:
1. The plan of merger attached hereto provides for the merger of DM
Acquisition Corp. into Carleton Corporation.
2. The plan of merger has been approved by Carleton Corporation and
DM Acquisition Corp. pursuant to the Minnesota Business Corporation Act.
IN WITNESS WHEREOF, the undersigned have duly executed this document on
behalf of their respective corporations.
Date: _____________, 1999
CARLETON CORPORATION DM ACQUISITION CORP.
By: ______________________________ By: ______________________________
Name: Name:
