EXHIBIT 99.1
FORM OF SHAREHOLDER AGREEMENT AND
IRREVOCABLE PROXY
AND
STOCKHOLDER AGREEMENT AND IRREVOCABLE PROXY
DATED AS OF JANUARY 6, 1997
ENTERED INTO AMONG REGISTRANT, INFOSPINNER AND CERTAIN AFFILIATES
OF REGISTRANT AND INFOSPINNER
EXHIBIT 99.1
STOCKHOLDERS' AGREEMENT AND IRREVOCABLE PROXY
This Stockholders' Agreement and Irrevocable Proxy (this "Agreement") is
made and entered into as of January 6, 1997, by and among Centura Software
Corporation, a California corporation ("Acquiror"), InfoSpinner, Inc., a
Delaware corporation ("Target") and the undersigned stockholder (the
"Stockholder") of Target.
RECITALS
A. Concurrently with the execution of this Agreement, Acquiror, Target and
IS Acquisition Corporation ("Merger Sub") are entering into an Agreement and
Plan of Reorganization (the "Reorganization Agreement"), which provides for the
merger (the "Merger") of Merger Sub with and into Target, pursuant to which
Target will become a wholly-owned subsidiary of Acquiror. The Stockholder
understands that Acquiror has undertaken and will continue to undertake
substantial expenses in connection with the negotiation and execution of the
Reorganization Agreement and the subsequent actions necessary to consummate the
Merger and the other transactions contemplated by the Reorganization Agreement.
The Stockholder also understands that in connection with the Merger, the
Stockholder will receive shares of Common Stock, $.01 par value, of Acquiror
(the "Acquiror Shares") in exchange for the shares of Common Stock and Preferred
Stock of Target owned by the Stockholder, in accordance with the provisions of
the Reorganization Agreement.
B. The Stockholder owns the number of issued and outstanding shares of
Common Stock and Preferred Stock, each with a par value of $.001 per share, of
Target as indicated on the final page of this Agreement (as applicable, the
"Common Shares" and the "Preferred Shares" and collectively, the "Shares").
C. The execution of the Reorganization Agreement and the combination of the
businesses of Acquiror and Target will benefit the Stockholder.
AGREEMENT
As an inducement to, and as a condition to Acquiror entering into the
Reorganization Agreement, and in consideration of the expenses incurred and to
be incurred by Acquiror in connection therewith, and for other good and valuable
consideration, the Stockholder and Acquiror agree as follows:
1. AGREEMENT TO VOTE SHARES. During the term of this Agreement, at every
meeting of the stockholders of Target called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of Target with respect to any of the
following, the Stockholder agrees to vote the Shares and any shares of capital
stock of Target that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership after execution of this Agreement and
prior to the Expiration Date ("New Shares"): (i) in favor of approval of the
Reorganization Agreement and the Merger and any matter that could reasonably be
expected to facilitate the Merger, and (ii) against approval of any proposal
made in opposition to or in competition with consummation of the Merger and
against any merger, consolidation, sale of assets, reorganization or
recapitalization and against any liquidation or winding up of Target (each of
the foregoing is hereinafter referred to as an "Opposing Proposal"). This
Agreement is intended to bind Stockholder only with respect to the specific
matters set forth herein and shall not prohibit Stockholder from acting in
accordance with his or her fiduciary duties, if applicable, as an officer or
director of Target.
2. APPOINTMENT OF PROXY. The Stockholder hereby constitutes and appoints
Xxxxxxx Xxxxxxx ("Proxy Holder"), with full power of substitution, the
Stockholder's true and lawful proxy and attorney-in-fact, to vote the Shares as
indicated in Section 1 hereof at any meeting or in any written consent of the
1
stockholders of the Company. The Stockholder intends the proxy granted hereby to
be irrevocable and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy. The Stockholder hereby revokes any proxy previously granted by
the Stockholder with respect to the Shares. During the term of this Agreement,
the Stockholder shall not grant any proxy to any person which conflicts with the
proxy granted herein and any attempt to do so shall be void.
3. VOTING. The Stockholder shall have the right in the first instance to
vote the Shares at any meeting or in any written consent in accordance with the
provisions of Section 1 of this Agreement. In the event that the Stockholder
fails for any reason to vote the Shares in accordance with Section 1, then the
Proxy Holder shall have the right to vote the Shares in accordance with the
provisions of Section 1 pursuant to the provisions of Section 2. The vote of the
Proxy Holder shall control in any conflict between the Proxy Holder's vote of
the Shares and a vote by the Stockholder of the Shares.
4. RESTRICTIONS ON TRANSFERABILITY. The Stockholder will not sell, assign,
transfer or otherwise dispose of (including, without limitation, by the creation
of a Lien (as hereinafter defined)) or permit to be sold, assigned, transferred
or otherwise disposed of any Shares owned by the Stockholder or any Shares the
disposition of which is under the control of the Stockholder, whether such
Shares are owned of record or beneficially by the Stockholder on the date of
this letter agreement or are subsequently acquired, whether pursuant to the
exercise of stock options or otherwise, except (a) for transfers by will or by
operation of law (in which case this letter agreement shall bind the
transferee), (b) for transfers where the transferee agrees in writing to be
bound by the provision of this Agreement and a copy of such agreement by the
transferee is delivered to Acquiror prior to the effectiveness of such transfer
or (c) as Acquiror may otherwise agree in writing. The agreements contained
herein are intended to restrict the transferability of the Shares and to
continue only for such time as may be reasonably necessary to obtain stockholder
and regulatory approval of the Merger and thereafter to consummate the Merger.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE STOCKHOLDER. The
Stockholder hereby represents, warrants and covenants to Target as follows:
5.1. OWNERSHIP OF SHARES. The Stockholder (i) except as set forth on
the Schedule of Exceptions attached hereto, presently is the sole beneficial and
record owner and holder of the number of the shares of Common Stock and
Preferred Stock of the Target indicated opposite the Stockholder's name on the
last page of this Agreement, free and clear of any liens, claims, charges or
other encumbrances and restrictions of any kind whatsoever arising as a result
of any action or inaction by the Stockholder ("Liens"), and has sole and
unrestricted voting power with respect to such Shares; and (ii) does not own any
shares, or options or warrants or other securities convertible into shares of
capital stock of Target other than the Shares.
5.2. DUE EXECUTION; BINDING AGREEMENT. The Stockholder represents that
the Stockholder has the complete and unrestricted power and the unqualified
right to enter into and perform the terms of this Agreement. The Stockholder
further represents that this Agreement constitutes a valid and binding agreement
with respect to such party, enforceable against such party in accordance with
its terms.
6. ADDITIONAL COVENANTS OF TARGET. Target agrees to take all actions
reasonably deemed by Acquiror to be required to ensure that the rights given to
Acquiror hereunder are effective and that Acquiror enjoys the benefits thereof.
Such actions include, without limitation, the use of Target's best efforts to
cause the Shares to be voted at any meeting or in any written consent in
accordance with the provisions of Section 1 of this Agreement. Target will not,
by any voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be performed hereunder by Target, nor prevent or seek to
prevent the observance or performance of any of the terms to be performed
hereunder by the Stockholder, but will at all times in good faith assist in the
carrying out of all of the provisions of this Agreement and in the taking of all
actions as may be necessary or appropriate in order to protect the rights of
Acquiror hereunder against impairment.
2
7. ADDITIONAL DOCUMENTS. The Stockholder hereby covenants and agrees to
execute and deliver any additional documents reasonably deemed by Acquiror to be
necessary or desirable to carry out the intent of this Agreement. 8.Termination.
Notwithstanding anything herein to the contrary, the agreements contained herein
shall remain in full force and effect until the earlier of (i) the consummation
of the Merger or (ii) the termination of the Reorganization Agreement in
accordance with the terms thereof.
8. TERMINATION. Notwithstanding anything herein to the contrary, the
agreements contained herein shall remain in full force and effect until the
earlier of (i) the consummation of the Merger or (ii) the termination of the
Reorganization Agreement in accordance with the terms thereof.
9. MISCELLANEOUS.
9.1. AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
9.2. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Acquiror will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Target upon any such violation,
Acquiror shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Acquiror at law or in equity.
9.3. WAIVER. Acquiror may waive the performance of any of the
obligations of the Stockholder, waive any inaccuracies in the representations by
the Stockholder, or waive compliance by the Stockholder with any of the
covenants contained in this Agreement, but only by an instrument in writing
signed by an officer of Acquiror. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto or to such other
person or address as any party hereto may designate in writing, such writing to
be delivered in the manner provided in this Section 9.4.
9.4. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder will be given in writing and will be deemed to
have been duly given when delivered by hand or when mailed by registered or
certified mail, postage prepaid, or when given by facsimile transmission
(promptly confirmed in writing), as follows:
(a) If to the Stockholder, at the address set forth below the Stockholder's
signature at the end hereof.
(b) if to Acquiror or Merger Sub, to:
Centura Software Corporation
0000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Senior Vice President
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
with a copy to:
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
3
(c) if to Target, to:
InfoSpinner, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000)-000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP.
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
9.5 ASSIGNMENT. This Agreement and all the provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
9.6 GOVERNING LAW. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of California without giving effect to the choice of law principles
thereof.
9.7 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts and by the different parties hereto on separate
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
9.8 EFFECTIVENESS; SEVERABILITY. This Agreement will become effective
as of the date first written above. If a court of competent jurisdiction
determines that any provision of this Agreement is unenforceable or enforceable
only if limited in time and/or scope, this Agreement will continue in full force
and effect with such provision stricken or so limited.
9.9 HEADINGS AND REFERENCES. The headings of sections are inserted for
convenience of reference only and will not constitute a part hereof. All
references herein to sections are to sections in this Agreement, unless
otherwise indicated.
9.10 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
4
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date and year first written above.
CENTURA SOFTWARE CORPORATION INFOSPINNER, INC.
By: ---------------------------------------- By: ----------------------------------------
Title: Title:
--------------------------------------- ---------------------------------------
STOCKHOLDER
-------------------------------------------
(Signature)
-------------------------------------------
(Print Name)
-------------------------------------------
(Print Title)
-------------------------------------------
(Number of Target Shares Held)
-------------------------------------------
(Print Address)
-------------------------------------------
(Print Telephone Number)
5
SCHEDULE OF EXCEPTIONS
None
6
SHAREHOLDERS' AGREEMENT AND IRREVOCABLE PROXY
This Shareholders' Agreement and Irrevocable Proxy (this "Agreement") is
made and entered into as of January 6, 1997, by and among InfoSpinner, Inc., a
Delaware corporation ("Target") and the undersigned shareholder (the
"Shareholder") of Centura Software Corporation, a California corporation
("Acquiror") and Acquiror.
RECITALS
A. Concurrently with the execution of this Agreement, Acquiror, Target and
IS Acquisition Corporation, a wholly owned subsidiary of Acquiror ("Merger Sub")
are entering into an Agreement and Plan of Reorganization (the "Reorganization
Agreement"), which provides for the merger (the "Merger") of Merger Sub with and
into Target, pursuant to which Target will become a wholly-owned subsidiary of
Acquiror. The Shareholder understands that Target has undertaken and will
continue to undertake substantial expenses in connection with the negotiation
and execution of the Reorganization Agreement and the subsequent actions
necessary to consummate the Merger and the other transactions contemplated by
the Reorganization Agreement. The Shareholder also understands that in
connection with the Merger, the Stockholders of Target will receive shares of
Common Stock, $.01 par value, of Acquiror (the "Acquiror Shares") in exchange
for their shares of Common Stock and Preferred Stock of Target in accordance
with the provisions of the Reorganization Agreement.
B. The Shareholder owns the number of issued and outstanding shares of
Common Stock, par value $.01 per share, of Acquiror as indicated on the final
page of this Agreement (the "Shares").
C. The execution of the Reorganization Agreement and the combination of the
businesses of Acquiror and Target will benefit the Shareholder.
AGREEMENT
As an inducement to, and as a condition to Target entering into the
Reorganization Agreement, and in consideration of the expenses incurred and to
be incurred by Target in connection therewith, and for other good and valuable
consideration, the Shareholder and Target agree as follows:
1. AGREEMENT TO VOTE SHARES. During the term of this Agreement, at every
meeting of the shareholders of Acquiror called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written consent of the shareholders of Acquiror with respect to any of the
following, the Shareholder agrees to vote the Shares and any shares of capital
stock of Acquiror that Shareholder purchases or with respect to which
Shareholder otherwise acquires beneficial ownership after execution of this
Agreement and prior to the date of termination of this Agreement ("New Shares"):
(i) in favor of approval of the Reorganization Agreement and the Merger and any
matter that could reasonably be expected to facilitate the Merger, and (ii)
against approval of any proposal made in opposition to or in competition with
consummation of the Merger and against any merger, acquisition, consolidation,
purchase or sale of assets, reorganization or recapitalization with any party
other than Target to be transacted instead of the Merger and against any
liquidation or winding up of Acquiror (each of the foregoing is hereinafter
referred to as an "Opposing Proposal"). This Agreement is intended to bind
Shareholder only with respect to the specific matters set forth herein and shall
not prohibit Shareholder from acting in accordance with his or her fiduciary
duties as an officer or director of Acquiror.
2. APPOINTMENT OF PROXY. The Shareholder hereby constitutes and appoints
Xxxxxxx Xxxxxxx ("Proxy Holder"), with full power of substitution, the
Shareholder's true and lawful proxy and attorney-in-fact, to vote the Shares as
indicated in Section 1 hereof at any meeting or in any written consent of the
shareholders of the Company. The Shareholder intends the proxy granted hereby to
be irrevocable and coupled with an interest and will take such further action
and execute such other instruments as may be necessary to effectuate the intent
of this proxy. The Shareholder hereby revokes any proxy previously
7
granted by the Shareholder with respect to the Shares. During the term of this
Agreement, the Shareholder shall not grant any proxy to any person which
conflicts with the proxy granted herein and any attempt to do so shall be void.
3. VOTING. The Shareholder shall have the right in the first instance to
vote the Shares at any meeting or in any written consent in accordance with the
provisions of Section 1 of this Agreement. In the event that the Shareholder
fails for any reason to vote the Shares in accordance with Section 1, then the
Proxy Holder shall have the right to vote the Shares in accordance with the
provisions of Section 1 pursuant to the provisions of Section 2. The vote of the
Proxy Holder shall control in any conflict between the Proxy Holder's vote of
the Shares and a vote by the Shareholder of the Shares.
4. RESTRICTIONS ON TRANSFERABILITY. The Shareholder will not sell, assign,
transfer or otherwise dispose of (including, without limitation, by the creation
of a Lien (as hereinafter defined)) or permit to be sold, assigned, transferred
or otherwise disposed of any Shares owned by the Shareholder or any Shares the
disposition of which is under the control of the Shareholder, whether such
Shares are owned of record or beneficially by the Shareholder on the date of
this Agreement or are subsequently acquired, whether pursuant to the exercise of
stock options or otherwise, except (a) for transfers by will or by operation of
law (in which case this Agreement shall bind the transferee), (b) for transfers
where the transferee agrees in writing to be bound by the provision of this
Agreement and a copy of such agreement by the transferee is delivered to Target
prior to the effectiveness of such transfer or (c) as Target may otherwise agree
in writing.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SHAREHOLDER. The
Shareholder hereby represents, warrants and covenants to Target as follows:
5.1. OWNERSHIP OF SHARES. The Shareholder (i) except as set forth on
the Schedule of Exceptions attached hereto, presently is the sole beneficial and
record owner and holder of the number of the shares of Common Stock of the
Company indicated opposite the Shareholder's name on the last page of this
Agreement, free and clear of any liens, claims, charges or other encumbrances
and restrictions of any kind whatsoever arising as a result of any action or
inaction by the Shareholder ("Liens"), and has sole and unrestricted voting
power with respect to such Shares; and (ii) does not own any shares, or options
or warrants or other securities convertible into shares of capital stock of
Acquiror other than the Shares.
5.2. DUE EXECUTION; BINDING AGREEMENT. The Shareholder represents that
the Shareholder has the complete and unrestricted power and the unqualified
right to enter into and perform the terms of this Agreement. The Shareholder
further represents that this Agreement constitutes a valid and binding agreement
with respect to such party, enforceable against such party in accordance with
its terms.
6. ADDITIONAL DOCUMENTS. The Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
opinion of Target, to carry out the intent of this Agreement.
7. TERMINATION. Notwithstanding anything herein to the contrary, the
agreements contained herein shall remain in full force and effect until the
earlier of (i) the consummation of the Merger or (ii) the termination of the
Reorganization Agreement in accordance with the terms thereof.
8. MISCELLANEOUS.
8.1. AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
8.2. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Target will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Shareholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Acquiror upon any such violation,
Target shall have the right to enforce
8
such covenants and agreements by specific performance, injunctive relief or by
any other means available to Target at law or in equity.
8.3. WAIVER. Target may waive the performance of any of the
obligations of the Shareholder, waive any inaccuracies in the representations by
the Shareholder, or waive compliance by the Shareholder with any of the
covenants contained in this Agreement, but only by an instrument in writing
signed by an officer of Target. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto or to such other
person or address as any party hereto may designate in writing, such writing to
be delivered in the manner provided in this Section 9.4.
8.4. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder will be given in writing and will be deemed to
have been duly given when delivered by hand or when mailed by registered or
certified mail, postage prepaid, or when given by facsimile transmission
(promptly confirmed in writing), as follows:
(a) If to the Shareholder, at the address set forth below the
Shareholder's signature at the end hereof.
(b) If to Acquiror or Merger Sub, to:
Centura Software Corporation
0000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Senior Vice
President
With a copy (which will not constitute notice)
to:
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
(b) If to Target, to:
InfoSpinner, Inc.
0000 X. Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
With a copy (which will not constitute notice)
to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
9
8.5 ASSIGNMENT. This Agreement and all the provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
8.6 GOVERNING LAW. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of California without giving effect to the choice of law principles
thereof.
8.7 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts and by the different parties hereto on separate
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
8.8 EFFECTIVENESS; SEVERABILITY. This Agreement will become effective
as of the date first written above. If a court of competent jurisdiction
determines that any provision of this Agreement is unenforceable or enforceable
only if limited in time and/or scope, this Agreement will continue in full force
and effect with such provision stricken or so limited.
8.9 HEADINGS AND REFERENCES. The headings of sections are inserted for
convenience of reference only and will not constitute a part hereof. All
references herein to sections are to sections in this Agreement, unless
otherwise indicated.
8.10 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date and year first written above.
CENTURA SOFTWARE CORPORATION INFOSPINNER, INC.
By: ---------------------------------------- By: ----------------------------------------
Title: Title:
--------------------------------------- ---------------------------------------
STOCKHOLDER
-------------------------------------------
(Signature)
-------------------------------------------
(Print Name)
-------------------------------------------
(Print Title)
-------------------------------------------
(Number of Target Shares Held)
-------------------------------------------
(Print Address)
-------------------------------------------
(Print Telephone Number)
10
SCHEDULE OF EXCEPTIONS
None
11
