EXHIBIT 99.2
FORM OF STOCK OPTION AGREEMENT
EXHIBIT 99.2
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT dated as of October 7, 1998 (the "AGREEMENT") is
entered into by and between Red Brick Systems, Inc., a Delaware corporation
("RED BRICK") and Informix Corporation, a Delaware corporation ("INFORMIX").
Capitalized terms used in this Agreement but not defined herein shall have the
meanings ascribed thereto in the Merger Agreement (as defined below).
RECITALS
A. Concurrently with the execution and delivery of this Agreement, Red
Brick, Informix and IC Merger Corporation, a Delaware corporation and a wholly
owned subsidiary of Informix ("SUB"), are entering into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT"), which provides that, among other
things, upon the terms and subject to the conditions thereof, Red Brick and
Informix will enter into a business combination transaction (the "MERGER").
B. As a condition to Informix's willingness to enter into the Merger
Agreement, Informix has requested that Red Brick agree, and Red Brick has so
agreed, to grant to Informix an option to acquire shares of Red Brick's Common
Stock, $0.0001 par value, upon the terms and subject to the conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger 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
Red Brick hereby grants to Informix an irrevocable option (the "OPTION") to
acquire up to a number of shares of the Common Stock, $0.0001 par value, of Red
Brick ("RED BRICK SHARES"), including the associated rights (the "Rights") to
purchase shares of Red Brick Preferred Stock pursuant to the Rights Agreement,
dated as of July 21, 1997, between Red Brick and Xxxxxx Trust and Savings Bank,
as Rights Agent (the "Rights Agreement"), equal to 19.9% of the issued and
outstanding shares of capital stock of Red Brick as of the first date, if any,
upon which an Exercise Event (as defined in Section 2(a) below) shall occur (the
"OPTION SHARES"), in the manner set forth below by paying cash at a price of
$2.40 per share (the "EXERCISE PRICE"). All references in this Agreement to Red
Brick Shares issued to Informix hereunder shall be deemed to include the Rights
(subject to the terms of the Rights Agreement).
2. EXERCISE OF OPTION; MAXIMUM PROCEEDS
(a) For all purposes of this Agreement, an "EXERCISE EVENT" shall have
occurred (i) immediately prior to the earlier of (x) the consummation of, or (y)
the record date, if any, for a meeting of Red Brick's stockholders with regard
to, an Acquisition Proposal for an Acquisition Transaction with respect to Red
Brick with any party other than Informix (or an affiliate of Informix), (ii)
immediately prior to the effectiveness of a Change of Control (as defined below)
of the Red Brick Board of Directors as a result of an election contest within
the meaning of Rule 14a-11 of the Exchange Act; or (iii) upon termination of the
Merger Agreement pursuant to Section 7.1(b), (e) or (f). For purposes of this
Agreement, a "Change of Control" of the Red Brick Board of Directors shall mean
a change in the composition of such Board as a result of which fewer than a
majority of the incumbent directors are directors who either (A) had been
directors of Red Brick at least eighteen (18) months prior to such change or (B)
were elected or nominated for election to the Red Brick Board with the
affirmative votes of at least a majority of the directors who had been directors
of Red Brick at least eighteen (18) months prior to such change and who were
still serving as directors at the time of the election or nomination.
2
(b) Informix may deliver to Red Brick a written notice (an "EXERCISE
NOTICE") specifying that it wishes to exercise and close a purchase of Option
Shares upon the occurrence of an Exercise Event and specifying the total number
of Option Shares it wishes to acquire (i) upon public disclosure of an
Acquisition Proposal for an Acquisition Transaction with respect to Red Brick,
with any party other than Informix (or an affiliate of Informix) (ii) upon the
commencement of an election contest within the meaning of Rule 14a-11 of the
Exchange Act with the purpose of seeking to effect a Change of Control of the
Red Brick Board of Directors, or (iii) upon termination of the Merger Agreement
pursuant to Section 7.1(b), (e) or (f) (the events specified in clauses (i),
(ii) or (iii) of this sentence being referred to herein as "CONDITIONAL EXERCISE
EVENTS"). At any time after delivery of an Exercise Notice, unless such Exercise
Notice is withdrawn by Informix, the closing of a purchase of Option Shares (a
"CLOSING") specified in such Exercise Notice shall take place at the principal
offices of Red Brick upon the occurrence of an Exercise Event or at such later
date prior to the termination of the Option as may be designated by Informix in
writing. In the event that no Exercise Event shall occur prior to termination of
the Option, such Exercise Notice shall be void and of no further force and
effect.
(c) The Option shall terminate upon the earliest of (i) the Effective Time,
(ii) 12 months following the termination of the Merger Agreement; PROVIDED,
HOWEVER, that if the Option is exercisable but 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 shall not have expired or been
terminated, or because any other condition to closing has not been satisfied,
then the Option shall not terminate until the tenth business day after such
impediment to exercise shall have been removed or shall have become final and
not subject to appeal.
(d) If Informix receives proceeds in connection with any sales or other
dispositions of Option Shares, plus any dividends received by Informix declared
on Option Shares (including by exercising the Informix Put described in Section
6(a) hereof), of more than the sum of (x) $2,000,000 plus (y) the Exercise Price
multiplied by the number of Red Brick Shares purchased by Informix pursuant to
the Option, then all proceeds to Informix in excess of such sum shall be
remitted by Informix to Red Brick.
3. CONDITIONS TO CLOSING
The obligation of Red Brick to issue Option Shares to Informix hereunder is
subject to the conditions that (a) any waiting period under the HSR Act
applicable to the issuance of the Option Shares hereunder shall 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 shall 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
shall be in effect. It is understood and agreed that at any time during which
Informix shall be entitled to deliver to Red Brick an Exercise Notice, 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, and in any
event, upon the occurrence of an Exercise Event.
4. CLOSING
At any Closing, (a) Red Brick shall deliver to Informix a single certificate
in definitive form representing the number of Red Brick Shares designated by
Informix in its Exercise Notice consistent with this Agreement, such certificate
to be registered in the name of Informix and to bear the legend set forth in
Section 10 hereof, against delivery of (b) payment by Informix to Red Brick of
the aggregate purchase price for the Red Brick Shares so designated and being
purchased by delivery of a certified check or bank check in immediately
available funds.
5. REPRESENTATIONS AND WARRANTIES OF RED BRICK
Red Brick represents and warrants to Informix that (a) Red Brick is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power
3
and authority to enter into this Agreement and to carry out its obligations
hereunder; (b) the execution and delivery of this Agreement by Red Brick and
consummation by Red Brick of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Red Brick and no
other corporate proceedings on the part of Red Brick are necessary to authorize
this Agreement or any of the transactions contemplated hereby; (c) this
Agreement has been duly executed and delivered by Red Brick and constitutes a
legal, valid and binding obligation of Red Brick and, assuming this Agreement
constitutes a legal, valid and binding obligation of Informix, is enforceable
against Red Brick in accordance with its terms; (d) except for any filings
required under the HSR Act, Red Brick has taken all necessary corporate and
other action 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 Red Brick Shares for Informix to exercise the Option in full and
will take all necessary corporate or other action to authorize and reserve for
issuance all additional Red Brick 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
Red Brick Shares and any other securities to Informix upon exercise of the
Option, Informix will acquire such Red Brick 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 Informix;
(f) the execution and delivery of this Agreement by Red Brick do not, and the
performance of this Agreement by Red Brick will not, (i) violate the Certificate
of Incorporation or Bylaws of Red Brick, (ii) conflict with or violate any order
applicable to Red Brick or any of its subsidiaries or by which they or any of
their property is bound or affected or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give rise to any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any property or assets of Red Brick or any of its subsidiaries
pursuant to, any contract or agreement to which Red Brick or any of its
subsidiaries is a party or by which Red Brick or any of its subsidiaries or any
of their property is bound or affected, except, in the case of clauses (ii) and
(iii) above, for violations, conflicts, breaches, defaults, rights of
termination, amendment, acceleration or cancellation, liens or encumbrances
which would not, individually or in the aggregate, have a Material Adverse
Effect on Red Brick; and (g) the execution and delivery of this Agreement by Red
Brick does not, and the performance of this Agreement by Red Brick 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) INFORMIX PUT. Informix may deliver to Red Brick a written notice (a
"PUT NOTICE") at any time during which Informix may deliver an Exercise Notice
specifying that it wishes to sell 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 Informix
pursuant thereto, at the price set forth in subparagraph (ii) below (as limited
by subparagraph (iii) below) (the "PUT"). At any time after delivery of a Put
Notice, unless such Put Notice is withdrawn by Informix, the closing of the Put
(the "PUT CLOSING") shall take place at the principal offices of Red Brick upon
the occurrence of an Exercise Event or at such later date prior to the
termination of the Option as may be designated by Informix in writing. In the
event that no Exercise Event shall occur prior to termination of the Option,
such Put Notice shall be void and of no further force and effect.:
(i) The difference between the "MARKET/TENDER OFFER PRICE" for Red Brick
Shares as of the date Informix 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
Transaction which was made prior to such date and not terminated or
withdrawn as of such date and (B) the highest closing sale price of Red
Brick Shares on the Nasdaq National Market during the twenty (20) trading
days ending on the trading day immediately preceding such date) and the
Exercise Price, multiplied by the number of Red Brick Shares purchasable
pursuant to the Option, but only if the Market/Tender
4
Offer Price is greater than the Exercise Price. For purposes of determining
the highest price offered pursuant to any Acquisition Transaction which
involves consideration other than cash, the value of such consideration
shall 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 Transaction, or if no such value is
ascribed, a value determined in good faith by the Board of Directors of Red
Brick.
(ii) The Exercise Price paid by Informix for Red Brick 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 Red Brick
Shares so purchased. If Informix issued Informix Shares in connection with
any exercise of the Option, the Exercise Price in connection with such
exercise shall be calculated as set forth in the last sentence of Section 1
as if Informix had exercised its right to pay cash instead of issuing
Informix Shares.
(iii) Notwithstanding subparagraphs (i) and (ii) above, pursuant to this
Section 6 Red Brick shall not be required to pay Informix in excess of an
aggregate of (A) (x) $2,000,000 PLUS (y) the Exercise Price paid by Informix
for Red Brick Shares acquired pursuant to the Option and put to Red Brick
pursuant to Section 6 minus (B) the gain received by Informix on sale(s) of
Option Shares to third parties. The parties intend Informix profit received
pursuant to this Option not to exceed $2,000,000 and Section 3(d) and
Section 6(a)(iii) shall be read collectively to achieve such purpose.
(b) PAYMENT AND REDELIVERY OF OPTION OR SHARES. At the Put Closing, Red
Brick shall pay the required amount to Informix in immediately available funds
and Informix shall surrender to Red Brick the Option and the certificates
evidencing the Red Brick Shares purchased by Informix pursuant thereto.
7. REGISTRATION RIGHTS
(a) Following the termination of the Merger Agreement, Informix (sometimes
referred to herein as a "HOLDER") may by written notice (sometimes referred to
herein as the "REGISTRATION NOTICE") to Red Brick (the "REGISTRANT") request the
Registrant to register under the Securities Act all or any part of the shares
acquired by such Holder pursuant to this Agreement (the "REGISTRABLE
SECURITIES") in order to permit the sale or other disposition of such shares
pursuant to a BONA FIDE firm commitment underwritten public offering in which
the Holder and the underwriters shall effect as wide a distribution of such
Registrable Securities as is reasonably practicable and shall use reasonable
efforts to prevent any person or group from purchasing through such offering
shares representing more than 1% of the outstanding shares of Common Stock of
the Registrant on a fully diluted basis (a "PERMITTED OFFERING"); PROVIDED,
HOWEVER, that any such Registration Notice must relate to a number of shares
equal to at least 2% of the outstanding shares of Common Stock of the Registrant
on a fully diluted basis and that any rights to require registration hereunder
shall terminate with respect to any shares that may be sold pursuant to Rule
144(k) under the Securities Act. The Registration Notice shall include a
certificate executed by the Holder and its proposed managing underwriter, which
underwriter shall be an investment banking firm of internationally recognized
standing reasonably acceptable to the Company (the "MANAGER"), stating that (i)
the Holder and the Manager have a good faith intention to commence a Permitted
Offering and (ii) the Manager in good faith believes that, based on the then
prevailing market conditions, it will be able to sell the Registrable Securities
at a per share price equal to at least 80% of the per share average of the
closing sale prices of the Registrant's Common Stock on the Nasdaq National
Market for the twenty trading days immediately preceding the date of the
Registration Notice. The Registrant shall thereupon 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 twenty trading days immediately
preceding the date of the Registration Notice. Any such purchase
5
of Registrable Securities by the Registrant hereunder shall 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 10 business days after delivery of such notice. The payment for
the shares to be purchased shall 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 shall 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;
PROVIDED, HOWEVER, that (i) the Holder shall not be entitled to more than an
aggregate of two effective registration statements hereunder and (ii) the
Registrant will not be required to file any such registration statement during
any period of time (not to exceed 40 days after a Registration Notice in the
case of clause (A) below or 90 days after a Registration Notice in the case of
clauses (B) and (C) below) when (A) the Registrant is in possession of material
non-public information which it reasonably believes would be detrimental to be
disclosed at such time and, in the written opinion of counsel to such
Registrant, such information would have to be disclosed if a registration
statement were filed at that time; (B) such Registrant is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) such Registrant determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving the Registrant.
If consummation of the sale of any Registrable Securities pursuant to a
registration hereunder does not occur within 180 days after the filing with the
SEC of the initial registration statement therefor, the provisions of this
Section 7 shall again be applicable to any proposed registration, it being
understood that neither party shall be entitled to more than an aggregate of two
effective registration statements hereunder. The Registrant shall 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 shall continue such
registration or qualification in effect in such jurisdictions; PROVIDED,
HOWEVER, that the Registrant shall not be required to qualify to do business in,
or consent to general service of process in, any jurisdiction by reason of this
provision.
(c) The registration rights set forth in this Section 7 are subject to the
condition that the Holder shall provide the Registrant with such information
with respect to such Holder's Registrable Securities, the plan for distribution
thereof, and such other information with respect to such Holder as, in the
reasonable judgment of counsel for the Registrant, is necessary to enable the
Registrant to include in a registration statement all material facts required to
be disclosed with respect to a registration thereunder.
(d) A registration effected under this Section 7 shall 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 shall use all
reasonable efforts to 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
6
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 and, 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 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 written information furnished
to the Registrant by the Holder for use therein, provided that in no event shall
any indemnity under this Section 8(e) exceed the gross proceeds of the offering
received by the Holder.
(iii) Each party entitled to indemnification under this Section 7(e) (the
"INDEMNIFIED PARTY") shall 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 shall
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 shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense; PROVIDED, HOWEVER, that the Indemnifying Party shall 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 that the failure of any
Indemnified Party to give notice as provided herein shall 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 shall, 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 shall be required to indemnify any Indemnified
Party with respect to any settlement entered into without such Indemnifying
Party's prior consent (which shall not be unreasonably withheld).
7
(f) NO CONFLICT. Notwithstanding anything herein to the contrary, Informix
hereby agrees that the rights granted by this Section 7 shall not conflict with
the limitation on subsequent registration rights contained in Section 1.14 of
the Amended and Restated Investor Rights Agreement dated as of November 5, 1993.
8. ADJUSTMENT UPON CHANGES IN CAPITALIZATION; RIGHTS PLANS
(a) In the event of any change in the Red Brick 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 and the
Exercise Price shall be adjusted appropriately, and proper provision shall
be made in the agreements governing such transaction so that Informix shall
receive, upon exercise of the Option, the number and class of shares or
other securities or property that Informix would have received in respect of
the Red Brick 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), Red Brick
shall not amend its Rights Agreement nor adopt a new stockholders rights
plan that contains provisions for the distribution of rights thereunder as a
result of Informix being the beneficial owner of shares of Red Brick by
virtue of the Option being exercisable or having been exercised (or as a
result of such other party beneficially owning shares issuable in respect of
any Option Shares).
9. RESTRICTIVE LEGENDS
Each certificate representing Option Shares issued to Informix hereunder
shall 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 REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT DATED AS OF
OCTOBER 7, 1998, A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER.
10. LISTING AND HSR FILING
Red Brick, upon the request of Informix, shall promptly file an application
to list the Red Brick Shares to be acquired upon exercise of the Option for
quotation on the Nasdaq National Market and shall use its reasonable efforts to
obtain approval of such listing as soon as practicable. Promptly after the date
hereof, each of the parties hereto shall 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
Red Brick Shares subject to the Option at the earliest possible date.
11. BINDING EFFECT
This Agreement shall 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. Certificates representing shares sold in a registered public offering
pursuant to Section 7 shall not be required to bear the legend set forth in
Section 9.
8
12. SPECIFIC PERFORMANCE
The parties 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
agrees that in addition to other remedies the other party shall be entitled to
an injunction restraining any violation or threatened violation of the
provisions of this Agreement. In the event that any action shall be brought in
equity to enforce the provisions of the Agreement, neither party will allege,
and each party hereby waives the defense, that there is an adequate remedy at
law.
13. ENTIRE AGREEMENT
This Agreement and the Merger Agreement (including the appendices and
exhibits thereto) constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
14. FURTHER ASSURANCES
Each party 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.
15. VALIDITY
The invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of the other provisions of this
Agreement, which shall 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 shall negotiate
in good faith and shall 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 shall be in writing and shall
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
shall be specified by like notice):
(a) if to Red Brick, to:
Red Brick Systems, Inc.
000 Xxxxxxx Xxx
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: President and Executive Officer
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. X'Xxxxxx, Esq.
9
(b) if to Informix, to:
Informix Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: President and Executive Officer
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq/Xxxxxxx X. Xxxxxx, Esq.
17. GOVERNING LAW
This Agreement shall 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. COUNTERPARTS
This Agreement may be executed in two counterparts, each of which shall be
deemed to be an original, but both of which, taken together, shall constitute
one and the same instrument.
19. EXPENSES
Except as otherwise expressly provided herein or in the Merger Agreement,
all costs and expenses incurred in connection with the transactions contemplated
by this Agreement shall be paid by the party incurring such expenses.
20. 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.
21. ASSIGNMENT
Red Brick may not 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 Informix. The rights
and obligations hereunder shall inure to the benefit of and be binding upon any
successor of a party hereto.
10
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.
RED BRICK SYSTEMS, INC.
By:
---------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
INFORMIX CORPORATION
By:
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
11
