EXHIBIT 2.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "AGREEMENT") is made and entered into as
of November 30, 1999, among Informix Corporation, a Delaware corporation
("PARENT"), and Ardent Software, Inc., a Delaware corporation (the "COMPANY").
Capitalized terms used but not otherwise defined herein will have the meanings
ascribed to them in the Reorganization Agreement (as defined below).
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have entered into
an Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT") which
provides for the merger (the "MERGER") of a wholly-owned subsidiary of Parent
("MERGER SUB") with and into the Company. Pursuant to the Merger, all
outstanding capital stock of the Company will be converted into the right to
receive Common Stock of Parent.
B. As a condition to Parent's willingness to enter into the Reorganization
Agreement, Parent has requested that Company agree, and Company has so agreed,
to grant to Parent an option to acquire shares of Company's Common Stock, $0.01
par value per share (the "COMPANY SHARES"), upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Reorganization Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Parent an irrevocable
option (the "OPTION") to acquire up to a number of Company Shares equal to 19.9%
of the issued and outstanding shares as of the first date, if any, upon which an
Exercise Event (as defined in Section 2(a) below) occurs (the "OPTION SHARES"),
in the manner set forth below by paying cash at a price of $38.50 per share (the
"EXERCISE PRICE").
2. EXERCISE OF OPTION.
(a) The Option may be exercised by Parent, in whole or in part, at any
time or from time to time if the Reorganization Agreement is terminated
pursuant to Section 7.1(b), 7.1(d), 7.1(g), or 7.1(h) thereof and an event
causing the Termination Fee to become payable pursuant to Section 7.3(b) of
the Reorganization Agreement occurs (any of the events being referred to
herein as an "EXERCISE EVENT"). In the event Parent wishes to exercise the
Option, Parent will deliver to the Company a written notice (each an
"EXERCISE NOTICE") specifying the total number of Option Shares it wishes to
acquire. Each closing of a purchase of Option Shares (a "CLOSING") will
occur on a date and at a time prior to the termination of the Option
designated by Parent in an Exercise Notice delivered at least two business
days prior to the date of such Closing, which Closing will be held at the
principal offices of the Company.
(b) The Option will terminate upon the earliest of (i) the Effective
Time, (ii) twelve (12) months following the date on which the Reorganization
Agreement is terminated pursuant to Section 7.1(b) or 7.1(d) thereof, if no
event causing the Termination Fee to become payable pursuant to
Section 7.3(b)(ii) of the Reorganization Agreement has occurred,
(iii) twelve (12) months following the date on which the Reorganization
Agreement is terminated pursuant to Section 7.1(g) or 7.1(h) thereof,
(iv) in the event the Reorganization Agreement has been terminated pursuant
to Section 7.1(b) or 7.1(d) thereof and the Termination Fee became payable
pursuant to Section 7.3(b)(ii) thereof, 18 months after payment of the
Termination Fee; and (v) the date on which the Reorganization Agreement is
otherwise terminated if neither a Triggering Event nor the announcement of
an Acquisition Proposal by a third party occurred on or prior to the date of
such termination; PROVIDED, HOWEVER, that if the Option cannot be exercised
by reason of any applicable government order or because the waiting period
related to the issuance of the Option Shares under the HSR Act will not have
expired or been terminated, then the Option will not terminate until the
tenth business
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day after such impediment to exercise will have been removed or will have
become final and not subject to appeal.
3. CONDITIONS TO CLOSING. The obligation of Company to issue Option Shares
to Parent hereunder is subject to the conditions that (A) any waiting period
under the HSR Act applicable to the issuance of the Option Shares hereunder will
have expired or been terminated; (B) all material consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Option Shares hereunder will have been obtained or
made, as the case may be; and (C) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance will be in effect. It is understood and agreed that at
any time during which the Option is exercisable, the parties will use their
respective best efforts to satisfy all conditions to Closing, so that a Closing
may take place as promptly as practicable.
4. CLOSING. At any Closing, (A) the Company will deliver to Parent a
single certificate in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice, such certificate to be registered
in the name of Parent and to bear the legend set forth in Section 9 hereof,
against delivery of (B) payment by Parent to the Company of the aggregate
purchase price for the Company Shares so designated and being purchased by
delivery of a certified check or bank check.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Company represents and
warrants to Parent that (A) Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder; (B) the execution and delivery of this Agreement by
the Company and consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or any of the transactions contemplated
hereby; (C) this Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding obligation of the Company and,
assuming this Agreement constitutes a legal, valid and binding obligation of
Parent, is enforceable against the Company in accordance with its terms;
(D) except for any filings required under the HSR Act, the Company has taken all
necessary corporate and other actions to authorize and reserve for issuance and
to permit it to issue upon exercise of the Option, and at all times from the
date hereof until the termination of the Option will have reserved for issuance,
a sufficient number of unissued Company Shares for Parent to exercise the Option
in full and will take all necessary corporate or other action to authorize and
reserve for issuance all additional Company Shares or other securities which may
be issuable pursuant to Section 8(a) upon exercise of the Option, all of which,
upon their issuance and delivery in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable; (E) upon delivery of the
Company Shares and any other securities to Parent upon exercise of the Option,
Parent will acquire such Company Shares or other securities free and clear of
all material claims, liens, charges, encumbrances and security interests of any
kind or nature whatsoever, excluding those imposed by Parent; (F) the execution
and delivery of this Agreement by the Company do not, and the performance of
this Agreement by the Company will not, (i) conflict with or violate the
Certificate of Incorporation or Bylaws or equivalent organizational documents of
the Company or any of its subsidiaries, (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to the Company or any of
its subsidiaries or by which its or any of their respective properties is bound
or affected or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or impair the Company's or any of its subsidiaries' rights or alter the rights
or obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of the
Company or any of its subsidiaries pursuant to, any material note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or its or
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any of their respective properties are bound or affected; and (G) the execution
and delivery of this Agreement by the Company does not, and the performance of
this Agreement by the Company will not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any Governmental
Entity except pursuant to the HSR Act.
6. CERTAIN RIGHTS.
(a) PARENT PUT. At the request of and upon notice by Parent (the "PUT
NOTICE"), at any time during the period during which the Option is
exercisable pursuant to Section 2 (the "PURCHASE PERIOD"), the Company (or
any successor entity thereof) will purchase from Parent the Option, to the
extent not previously exercised, at the price set forth in subparagraph
(i) below (as limited by subparagraph (iii) below), and the Option Shares,
if any, acquired by Parent pursuant thereto, at the price set forth in
subparagraph (ii) below (as limited by subparagraph (iii) below):
(i) The difference between the "MARKET/TENDER OFFER PRICE" for the
Company Shares as of the date Parent gives notice of its intent to
exercise its rights under this Section 6(a) (defined as the higher of
(A) the highest price per share offered as of such date pursuant to any
Acquisition Proposal which was made prior to such date and (B) the
highest closing sale price of Company Shares then on the Nasdaq National
Market during the 20 trading days ending on the trading day immediately
preceding such date) and the Exercise Price, multiplied by the number of
Company Shares purchasable pursuant to the Option that remain, but only
if the Market/Tender Offer Price is greater than the Exercise Price. For
purposes of determining the highest price offered pursuant to any
Acquisition Proposal which involves consideration other than cash, the
value of such consideration will be equal to the higher of (x) if
securities of the same class of the proponent as such consideration are
traded on any national securities exchange or by any registered
securities association, a value based on the closing sale price or asked
price for such securities on their principal trading market on such date
and (y) the value ascribed to such consideration by the proponent of such
Acquisition Proposal, or if no such value is ascribed, a value determined
in good faith by the Board of Directors of the Company.
(ii) The Exercise Price paid by Parent for Company Shares acquired
pursuant to the Option plus the difference between the Market/Tender
Offer Price and such Exercise Price (but only if the Market/Tender Offer
Price is greater than the Exercise Price) multiplied by the number of
Company Shares so purchased.
(iii) Notwithstanding subparagraphs (i) and (ii) above, pursuant to
this Section 6 Company will not be required to pay Parent in excess of an
aggregate of (x) $25,500,000.00 PLUS (y) the Exercise Price paid by
Parent for Company Shares acquired pursuant to the Option MINUS (z) any
amounts paid to Parent by the Company pursuant to Section 7.3(b) of the
Reorganization Agreement.
(b) PAYMENT AND REDELIVERY OF OPTION OR SHARES. In the event Parent
exercises its rights under Section 6(a), the Company will, within five
business days after Parent delivers notice pursuant to Section 6(a), pay the
required amount to Parent in immediately available funds and Parent will
surrender to the Company the Option and the certificates evidencing the
Company Shares purchased by Parent pursuant thereto.
7. REGISTRATION RIGHTS.
(a) Following the termination of the Reorganization Agreement, Parent
(sometimes referred to herein as the "HOLDER") may by written notice (a
"REGISTRATION NOTICE") to the Company (the "REGISTRANT") request the
Registrant to register under the Securities Act all or any part of the
shares acquired by the Holder pursuant to this Agreement (such shares
requested to be registered, the "REGISTRABLE SECURITIES") in order to permit
the sale or other disposition of any or all shares of the Registrable
Securities that have been acquired by or are issuable to Holder upon
exercise of the
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Option in accordance with the intended method of sale or other disposition
stated by Holder, including a "shelf" registration statement under Rule 415
under the Securities Act or any successor provision. Holder agrees to cause,
and to cause any underwriters of any sale or other disposition to cause, any
sale or other disposition pursuant to such registration statement to be
effected on a widely distributed basis so that upon consummation thereof no
purchaser or transferee will own beneficially more than 5.0% of the
then-outstanding voting power of Registrant. Upon a request for
registration, the Registrant will have the option exercisable by written
notice delivered to the Holder within ten business days after the receipt of
the Registration Notice, irrevocably to agree to purchase all or any part of
the Registrable Securities for cash at a price (the "OPTION PRICE" equal to
the product of (i) the number of Registrable Securities so purchased and
(ii) the per share average of the closing sale prices of the Registrant's
Common Stock on the Nasdaq National Market for the ten trading days
immediately preceding the date of the Registration Notice. Any such purchase
of Registrable Securities by the Registrant hereunder will take place at a
closing to be held at the principal executive offices of the Registrant or
its counsel at any reasonable date and time designated by the Registrant in
such notice within ten business days after delivery of such notice. The
payment for the shares to be purchased will be made by delivery at the time
of such closing of the Option Price in immediately available funds.
(b) If the Registrant does not elect to exercise its option to purchase
pursuant to Section 7(a) with respect to all Registrable Securities, the
Registrant will use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the unpurchased
Registrable Securities requested to be registered in the Registration Notice
and to keep such registration statement effective for such period not in
excess of 120 calendar days from the day such registration statement first
becomes effective as may be reasonably necessary to effect such sale or
other disposition; PROVIDED, HOWEVER, that the Holder will not be entitled
to more than an aggregate of two effective registration statements
hereunder. The obligations of Registrant hereunder to file a registration
statement and to maintain its effectiveness may be suspended for up to 120
calendar days in the aggregate if the Board of Directors of Registrant shall
have determined that the filing of such registration statement or the
maintenance of its effectiveness would require premature disclosure of
material nonpublic information that would materially and adversely affect
Registrant or otherwise interfere with or adversely affect any pending or
proposed offering of securities of Registrant or any other material
transaction involving Registrant. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 120 days after the filing with the SEC of the initial registration
statement therefor, the provisions of this Section 7 will again be
applicable to any proposed registration. The Registrant will use all
reasonable efforts to cause any Registrable Securities registered pursuant
to this Section 7 to be qualified for sale under the securities or blue sky
laws of such jurisdictions as the Holder may reasonably request and will
continue such registration or qualification in effect in such jurisdictions;
PROVIDED, HOWEVER, that the Registrant will not be required to qualify to do
business in, or consent to general service of process in, any jurisdiction
by reason of this provision. If Registrant effects a registration under the
Securities Act of Company Common Stock for its own account or for any other
stockholders of Registrant (other than on Form S-4 or Form S-8, or any
successor form), it will allow Holder the right to participate in such
registration by selling its Registrable Securities, and such participation
will not affect the obligation of Registrant to effect demand registration
statements for Holder under this Section 7; PROVIDED that, if the managing
underwriters of such offering advise Registrant in writing that in their
opinion the number of shares of Company Common Stock requested to be
included in such registration exceeds the number which can be sold in such
offering, Registrant will include the shares requested to be included
therein by Holder pro rata with the shares intended to be included therein
by Registrant and such other stockholders.
(c) The registration rights set forth in this Section 7 are subject to
the condition that the Holder will provide the Registrant with such
information with respect to the Holder's Registrable Securities, the plan
for distribution thereof, and such other information with respect to the
Holder as, in the
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reasonable judgment of counsel for the Registrant, is necessary to enable
the Registrant to include in a registration statement all facts required to
be disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 7 will be effected at the
Registrant's expense, except for underwriting discounts and commissions and
the fees and expenses of counsel to the Holder, and the Registrant will
provide to the underwriters such documentation (including certificates,
opinions of counsel and "comfort" letters from auditors) as are customary in
connection with underwritten public offerings and as such underwriters may
reasonably require. In connection with any registration, the Holder and the
Registrant agree to enter into an underwriting agreement reasonably
acceptable to each such party, in form and substance customary for
transactions of this type with the underwriters participating in such
offering.
(e) INDEMNIFICATION.
(i) The Registrant will indemnify the Holder, each of its directors
and officers and each person who controls the Holder within the meaning
of Section 15 of the Securities Act, and each underwriter of the
Registrant's securities, with respect to any registration, qualification
or compliance which has been effected pursuant to this Agreement, against
all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement
of any litigation, commenced or threatened, arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any
such registration, qualification or compliance, or based on any omission
(or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading, or any
violation by the Registrant of any rule or regulation promulgated under
the Securities Act applicable to the Registrant in connection with any
such registration, qualification or compliance, and the Registrant will
reimburse the Holder, each of its directors and officers and each person
who controls the Holder within the meaning of Section 15 of the
Securities Act, and each underwriter for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action; PROVIDED,
that the Registrant will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement
or omission, made in reliance upon and in conformity with written
information furnished to the Registrant by such Holder or director or
officer or controlling person or underwriter seeking indemnification.
(ii) The Holder will indemnify the Registrant, each of its directors
and officers and each underwriter of the Registrant's securities covered
by such registration statement and each person who controls the
Registrant within the meaning of Section 15 of the Securities Act,
against all expenses, claims, losses, damages and liabilities (or actions
in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any violation by the
Holder of any rule or regulation promulgated under the Securities Act
applicable to the Holder in connection with any such registration,
qualification or compliance, and will reimburse the Registrant, such
directors, officers or control persons or underwriters for any legal or
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission)
is made in such registration statement, prospectus, offering circular or
other document in reliance upon and in conformity with
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written information furnished to the Registrant by the Holder for use
therein; PROVIDED, that in no event will any indemnity under this
Section 7(e) exceed the net proceeds of the offering received by the
Holder.
(iii) Each party entitled to indemnification under this Section 7(e)
(the "INDEMNIFIED PARTY") will give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and will permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom,
PROVIDED, that counsel for the Indemnifying Party, who will conduct the
defense of such claim or litigation, will be approved by the Indemnified
Party (whose approval will not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's
expense; PROVIDED, HOWEVER, that the Indemnifying Party will pay such
expense if representation of the Indemnified Party by counsel retained by
the Indemnifying Party would be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding, and PROVIDED FURTHER,
HOWEVER, that the failure of any Indemnified Party to give notice as
provided herein will not relieve the Indemnifying Party of its
obligations under this Section 7(e) unless the failure to give such
notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. No Indemnifying Party, in the defense of any such
claim or litigation will, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. No Indemnifying Party
will be required to indemnify any Indemnified Party with respect to any
settlement entered into without such Indemnifying Party's prior consent
(which will not be unreasonably withheld).
8. ADJUSTMENT UPON CHANGES IN CAPITALIZATION; RIGHTS PLANS.
(a) In the event of any change in the Company Shares by reason of stock
dividends, stock splits, reverse stock splits, mergers (other than the
Merger), recapitalizations, combinations, exchanges of shares and the like,
the type and number of shares or securities subject to the Option, the
Exercise Price will be adjusted appropriately, and proper provision will be
made in the agreements governing such transaction so that Parent will
receive, upon exercise of the Option, the number and class of shares or
other securities or property that Parent would have received in respect of
the Company Shares if the Option had been exercised immediately prior to
such event or the record date therefor, as applicable.
(b) At any time during which the Option is exercisable, and at any time
after the Option is exercised (in whole or in part, if at all), the Company
will not amend (nor permit the amendment of) the Company Rights Plan nor
adopt (nor permit the adoption of) a new stockholders rights plan, that
contains provisions for the distribution or exercise of rights thereunder as
a result of Parent or any affiliate or transferee being the beneficial owner
of shares of the Company by virtue of the Option being exercisable or having
been exercised (or as a result of beneficially owning shares issuable in
respect of any Option Shares).
9. RESTRICTIVE LEGENDS. Each certificate representing Option Shares issued
to Parent hereunder will include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD
ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
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REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT DATED AS
OF NOVEMBER 30, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER.
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act in the above legend will be removed by delivery of
substitute certificate(s) without such reference if such Option Shares have been
registered pursuant to the Securities Act, such Option Shares have been sold in
reliance on and in accordance with Rule 144 under the Securities Act or Holder
has delivered to Registrant a copy of a letter from the staff of the SEC, or an
opinion of counsel in form and substance reasonably satisfactory to Registrant
and its counsel, to the effect that such legend is not required for purposes of
the Securities Act and (ii) the reference to restrictions pursuant to this
Agreement in the above legend will be removed by delivery of substitute
certificate(s) without such reference if the Option Shares evidenced by
certificate(s) containing such reference have been sold or transferred in
compliance with the provisions of this Agreement under circumstances that do not
require the retention of such reference.
10. LISTING AND HSR FILING. The Company, upon the request of Parent, will
promptly file an application to list the Company Shares to be acquired upon
exercise of the Option for quotation on the Nasdaq National Market and will use
its best efforts to obtain approval of such listing as soon as practicable.
Promptly after the date hereof, each of the parties hereto will promptly file
with the Federal Trade Commission and the Antitrust Division of the United
States Department of Justice all required premerger notification and report
forms and other documents and exhibits required to be filed under the HSR Act to
permit the acquisition of the Company Shares subject to the Option at the
earliest possible date.
11. BINDING EFFECT. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Nothing contained in this Agreement, express or implied, is intended to
confer upon any person other than the parties hereto and their respective
successors and permitted assigns any rights or remedies of any nature whatsoever
by reason of this Agreement. Any shares sold by a party in compliance with the
provisions of Section 7 will, upon consummation of such sale, be free of the
restrictions imposed with respect to such shares by this Agreement and any
transferee of such shares will not be entitled to the rights of such party.
Certificates representing shares sold in a registered public offering pursuant
to Section 7 will not be required to bear the legend set forth in Section 9.
12. SPECIFIC PERFORMANCE. The parties hereto recognize and agree that if
for any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party hereto agrees that in addition to
other remedies the other party hereto will be entitled to an injunction
restraining any violation or threatened violation of the provisions of this
Agreement or the right to enforce any of the covenants or agreements set forth
herein by specific performance. In the event that any action will be brought in
equity to enforce the provisions of the Agreement, neither party hereto will
allege, and each party hereto hereby waives the defense, that there is an
adequate remedy at law.
13. ENTIRE AGREEMENT. This Agreement and the Reorganization Agreement
(including the appendices thereto) constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede all other
prior agreements and understandings, both written and oral, between the parties
hereto with respect to the subject matter hereof.
14. FURTHER ASSURANCES. Each party hereto will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
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15. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of the other provisions
of this Agreement, which will remain in full force and effect. In the event any
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto will negotiate
in good faith and will execute and deliver an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision.
16. NOTICES. All notices and other communications hereunder will be in
writing and will be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as will be specified by like notice):
(a) if to Parent, to:
Informix Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(b) if to the Company, to:
Ardent Software, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopy No.: (000) 000-0000
17. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
18. EXPENSES. Except as otherwise expressly provided herein or in the
Reorganization Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement will be paid by the party incurring
such expenses.
19. AMENDMENTS; WAIVER. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
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20. ASSIGNMENT. Neither of the parties hereto may sell, transfer, assign
or otherwise dispose of any of its rights or obligations under this Agreement or
the Option created hereunder to any other person, without the express written
consent of the other party, except that the rights and obligations hereunder
will inure to the benefit of and be binding upon any successor of a party
hereto.
21. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which will be deemed to be an original, but both of which, taken together, will
constitute one and the same instrument.
22. EFFECT OF HEADINGS. The section headings are for convenience only and
shall not affect the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
INFORMIX CORPORATION
By: /s/ XXXX-XXXX DEXMIER
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Name: Xxxx-Xxxx Dexmier
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Title: President and Chief Executive Officer
--------------------------------------
ARDENT SOFTWARE, INC.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Chairman, President and CEO
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[SIGNATURE PAGE TO STOCK OPTION AGREEMENT]
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