Exhibit 2.3
AFFILIATE AGREEMENT
March 16, 1998
CBT Group plc
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Reorganization (the "Merger
Agreement"), dated as of March 16, 1998, by and among CBT Group plc, a public
limited company organized under the laws of the Republic of Ireland ("CBT"),
Rockets Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of
CBT ("Merger Sub"), and The ForeFront Group, Inc., a Delaware corporation
("ForeFront"), which provides for the merger (the "Merger") of Merger Sub with
and into ForeFront. Pursuant to the Merger, shares of ForeFront Common Stock
will be converted into American Depositary Shares of CBT ("CBT ADSs") on the
basis described in the Merger Agreement.
The undersigned has been informed that the Merger constitutes a transaction
covered by Rule 145 ("Rule 145") promulgated under the Securities Act of 1933,
as amended (the "Securities Act"); that the undersigned may be deemed to be an
"affiliate" of ForeFront within the meaning of Rule 145; that the Merger is
intended to be a "pooling of interests" for financial accounting purposes; and
that, accordingly, the CBT ADSs that the undersigned will acquire in connection
with the Merger may be disposed of only in conformity with the provisions of
Rule 145 and the other limitations described herein.
The undersigned understands that the Merger will not be accounted for as a
pooling of interests unless, among other things, affiliates of ForeFront comply
with the requirements of Section 1(d) below following the Merger. The
undersigned further understands that the representations, warranties and
agreements set forth herein will be relied upon by the accountants and counsel
for CBT and by counsel for ForeFront in rendering opinions regarding accounting
and other legal consequences of the Merger.
The capitalized terms used and not defined herein shall have the meanings
set forth in the Merger Agreement.
1. In consideration of the benefits accruing to the undersigned as a
result of the Merger, the undersigned represents, warrants and agrees as
follows:
(a) The undersigned has full power to execute this Affiliate Agreement
and to make the representations, warranties and agreements herein and to perform
the undersigned's obligations hereunder.
(b) Appendix A attached hereto sets forth all the CBT ADSs owned or to
be received by the undersigned in connection with the transactions contemplated
by the Merger Agreement, if any, including all other equity securities of CBT,
or rights to acquire any of the foregoing, as to which the undersigned has sole
or shared voting or investment power.
(c) The undersigned will not sell, transfer or dispose of any CBT ADSs
or other equity securities of CBT that the undersigned may acquire in connection
with the Merger, or any securities that may be paid as a dividend or otherwise
distributed thereon or with respect thereto or issued or delivered in exchange
or substitution therefor (all such shares and other securities being herein
sometimes collectively referred to as "Restricted Securities"), or any option,
right or other interest with respect to any Restricted Securities, unless such
sale, transfer or disposition is effected as provided in Section 3 hereof
(provided that the undersigned may make bona fide gifts of Restricted Securities
without consideration so long as the recipients thereof agree not to sell,
transfer or otherwise dispose of any of the Restricted Securities except as
provided herein).
(d) In accordance with SEC Staff Accounting Bulletin No. 65 ("SAB
65"), during the period contemplated by SAB 65, until the earlier of (i) CBT's
public announcement of financial results covering at least 30 days of combined
operations of CBT and ForeFront or (ii) the Merger Agreement is terminated in
accordance with its terms, the undersigned will not sell, exchange, transfer,
pledge, distribute or otherwise dispose of (collectively a "Transfer") or grant
any option, establish any "short" or put-equivalent position with respect to or
enter into any similar transaction (through derivatives or otherwise) intended
or having the effect, directly or indirectly, to reduce its risk relative to:
(i) any shares of ForeFront Common Stock, except pursuant to and upon the
consummation of the Merger or (ii) any CBT ADSs received by the undersigned in
the Merger or any CBT ADSs received by the undersigned upon exercise of options
assumed by CBT in connection with the Merger. The undersigned acknowledges the
existence of the Voting Agreement, of even date herewith, between CBT and the
undersigned (the "Voting Agreement") and further acknowledges and agrees that
any Transfer of ForeFront Common Stock by the undersigned will be subject to the
terms of the Voting Agreement and that following such Transfer, such ForeFront
Common Stock will remain subject to the terms of the Voting Agreement to the
same extent as if such shares were owned by the undersigned.
2. CBT agrees to use its reasonable best efforts to (i) file all reports
and data with the Securities and Exchange Commission (the "SEC") necessary to
permit the undersigned to sell Restricted Securities pursuant to and otherwise
in conformity with Rule 145(d) under the Securities Act and (ii) publish as soon
as reasonably practicable and file on a timely basis, consistent with its normal
practices, the financial results referred to in Section 1(d) above with the SEC
under Section 13(a) of the Securities Exchange Act of 1934, as amended. The
undersigned understands that CBT is under no obligation to register the sale,
transfer, or other disposition of any Restricted Securities by or on behalf of
the undersigned or to take any other action necessary in order to make
compliance with an exception from registration available, other than as set
forth herein and in the Merger Agreement.
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3. The undersigned understands that the provisions of Rule 145 restrict
the undersigned's public resales of Restricted Securities until such time as the
undersigned has "beneficially owned" (within the meaning of Rule 144(d) under
the Securities Act) the Restricted Securities for a period of at least one year
(or in some cases two years) and thereafter if and for so long as the
undersigned is an affiliate of CBT. The undersigned may make unrestricted
resales of Restricted Securities pursuant to Rule 145(d)(2) if the undersigned
has beneficially owned the Restricted Securities for at least one year and is
not an affiliate of CBT and CBT meets the public information requirements of
Rule 144(c). The undersigned may make unrestricted resales of Restricted
Securities pursuant to Rule 145(d)(3) if the undersigned has beneficially owned
the Restricted Securities for at least two years and is not, and has not been
for at least three months, an affiliate of CBT. Unless and until the
restriction "cut-off" provisions of Rule 145(d)(2) or Rule 145(d)(3) become
available, public resales of Restricted Securities may only be made by the
undersigned in compliance with the requirements of Rule 145(d)(1).
Notwithstanding the foregoing, the undersigned acknowledges that the Restricted
Securities will be deposited in a restricted ADR facility pursuant to that
certain Restricted Deposit Agreement, amended and restated as of March 9, 1998,
among CBT, The Bank of New York and all owners and beneficial owners from time
to time of restricted ADRs issued thereunder (the "Deposit Agreement") and that,
pursuant to the Deposit Agreement, among other things, sales of Restricted
Securities may only be effected pursuant to Rule 145(d)(l). In addition to any
other requirements of this Section 3, the undersigned agrees to comply with the
requirements of Rule 144(h).
Rule 145(d)(1) permits public resales of Restricted Securities only (a)
while CBT meets the public information requirements of Rule 144(c), (b) in
"broker's transactions" in accordance with Rules 144(c), (f) and (g) where the
aggregate number of Restricted Securities sold at any time together with all
sales of restricted CBT ADSs sold for the undersigned's account during the
preceding three-month period does not exceed the greater of (i) one percent of
the CBT Ordinary Shares outstanding or (ii) the average weekly trading volume in
CBT ADSs on all national securities exchanges and/or reported through the
automated quotation system of a registered securities association, during the
four calendar week period preceding any such sale (the "Volume Limitations").
CBT acknowledges that the provisions of Section 1(c) of this Affiliate Agreement
will be satisfied, as to any sale by the under signed of Restricted Securities
pursuant to Rule 145(d) under the Securities Act, by a broker's letter with
respect to that sale stating that each of the above-described requirements of
Rule 145(d)(1) has been met or is inapplicable by virtue of Rule 145(d)(2) or
Rule 145(d)(3); provided, however, that if counsel for CBT reasonably believes
that the provisions of Rule 145(d) have not been complied with, or if requested
by CBT in connection with a proposed disposition other than pursuant to a
registered offering, the undersigned shall furnish to CBT a copy of a "no
action" letter or other communication from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to CBT and its counsel,
to the effect that all of the applicable requirements of Rule 145(d) under the
Securities Act have been complied with or that the disposition may be otherwise
effected in the manner requested in compliance with the Securities Act.
4. The undersigned also understands restrictive legends referencing the
restrictions described in Section 3 hereof shall be printed on the American
Depository Receipts with respect to the CBT ADSs received by the undersigned in
the Merger.
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5. This Affiliate Agreement and all action taken hereunder in accordance
with its terms shall be binding upon and inure to the benefit of CBT, its
subsidiaries and their respective successors and assigns and the undersigned and
his or her respective successors, assigns, heirs, executors, administrators and
legal representatives.
6. Notices. All notices and other communications required or permitted
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hereunder shall be in writing and shall be delivered by hand or delivered by
overnight courier, freight prepaid, or sent via facsimile (with acknowledgment
of complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to CBT to:
CBT Group plc
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(b) if to the undersigned, to:
__________________________
__________________________
__________________________
Attention: ______________
Fax: ____________________
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective when received, and shall in any event be
deemed to have been received (i) when delivered, if delivered personally or sent
by telecopy and confirmed in writing or (ii) four (4) business days after the
business day of deposit with overnight courier, addressed and shipped as
aforesaid.
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7. This Affiliate Agreement shall be binding upon and enforceable against
administrators, executors, representatives, heirs, legatees and devisees of the
undersigned and any pledgee holding Restricted Securities as collateral.
8. The undersigned has carefully read this Affiliate Agreement and
discussed its requirements and other applicable limitations upon the sale,
transfer or other disposition of the Restricted Securities and other CBT
securities owned by the undersigned, to the extent the undersigned felt
necessary, with the undersigned's counsel or with counsel for ForeFront or CBT.
Very truly yours,
By:__________________________________
Name:________________________________
Title:_______________________________
(if applicable)
Agreed to and accepted:
CBT GROUP PLC
By:_____________________________
Name:___________________________
Title:__________________________
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APPENDIX A
RESTRICTED SECURITIES
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Type of Securities Number of Shares
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