EXHIBIT 2.4
FORM OF AFFILIATE AGREEMENT
COMPANY AFFILIATE AGREEMENT
THIS COMPANY AFFILIATE AGREEMENT (this "Agreement") is made and entered into
as of November 30, 1999, among Informix Corporation, a Delaware corporation
("Parent"), and the undersigned stockholder who may be deemed an affiliate
("Affiliate") of Ardent Software, Inc., a Delaware corporation ("Company").
Capitalized terms used but not otherwise defined herein shall 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 (the "COMPANY CAPITAL STOCK") shall be
converted into the right to receive Common Stock of Parent;
B. Affiliate has been advised that Affiliate may be deemed to be an
"affiliate" of the Company, as the term "affiliate" is used for purposes of
Rule 144 of the Rules and Regulations (the "RULES AND REGULATIONS") of the
Securities and Exchange Commission (the "COMMISSION");
C. The execution and delivery of this Agreement by Affiliate is a material
inducement to Parent to enter into the Reorganization Agreement; and
D. Affiliate has been advised that Affiliate may be deemed to be an
"affiliate" of Parent after the Merger as the term "affiliate" is used in
Accounting Series Releases 130 and 135, as amended, although nothing contained
herein shall be construed as an admission by Affiliate that Affiliate is in fact
an "affiliate" of Parent.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. ACKNOWLEDGMENTS BY AFFILIATE. Affiliate acknowledges and understands
that the representations, warranties and covenants by Affiliate set forth herein
shall be relied upon by Parent, the Company and their respective affiliates,
counsel and accounting firms, and that substantial losses and damages may be
incurred by these persons if Affiliate's representations, warranties or
covenants are breached. Affiliate has carefully read this Agreement and the
Reorganization Agreement and has discussed the requirements of this Agreement
with Affiliate's professional advisors, who are qualified to advise Affiliate
with regard to such matters.
2. BENEFICIAL OWNERSHIP OF COMPANY CAPITAL STOCK. The Affiliate is the
sole beneficial owner (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) of the number of shares of Company Capital Stock set
forth next to its name on the signature page hereto (the "Shares"). The Shares
are not subject to any claim, lien, pledge, charge, security interest or other
encumbrance or to any rights of first refusal of any kind. There are no options,
warrants, calls, rights, commitments or agreements of any character, written or
oral, to which the Affiliate is party or by which it is bound obligating the
Affiliate to issue, deliver, sell, repurchase or redeem, or cause to be issued,
delivered, sold, repurchased or redeemed, any Shares or obligating the Affiliate
to grant or enter into any such option, warrant, call, right, commitment or
agreement. The Affiliate has the sole right to transfer such Shares. The Shares
constitute all shares of Company Capital Stock owned, beneficially or of record,
by the Affiliate. The Shares are not subject to preemptive rights created by any
agreement to which the Affiliate is party. The Affiliate has not engaged in any
sale or other transfer of the Shares in contemplation of the Merger. All shares
of Company Capital Stock and common stock of Parent ("Parent Common Stock")
acquired by Affiliate subsequent to the date hereof (including shares of Parent
Common Stock acquired in the Merger) shall be subject to the provisions of this
Agreement as if held by Affiliate as of the date hereof.
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3. COVENANTS RELATED TO POOLING OF INTERESTS. During the period beginning
the later of 35 days preceding the Effective Time of the Merger and the time
prior to a merger prescribed by Staff Accounting Bulletin No. 65 during which
trading is prohibited and ending two trading days after Parent publicly
announces financial results covering at least 30 days of combined operations of
Parent and the Company, Affiliate shall not sell, exchange, transfer, pledge,
distribute, make any gift or otherwise dispose of or grant any option, establish
any "short" or put-equivalent position with respect to or enter into any similar
transaction (through derivatives or otherwise) (collectively, a "Disposition")
intended or having the effect, directly or indirectly, to reduce Affiliate's
risk relative to any shares of Parent Common Stock or Company Capital Stock
(including the Shares). Parent may, at its discretion, place a stock transfer
notice consistent with the foregoing, with respect to Affiliate's shares. In
light of the complexity of the rules relating to pooling-of-interest accounting
treatment and the inability to predict now when the Effective Time will be, from
the date hereof until the expiration of, the 30 day period referred to above,
Affiliate will not enter into a Disposition transaction without first having
given counsel for Parent at least three business days notice thereof.
4. COMPLIANCE WITH RULE 145 AND THE SECURITIES ACT.
(a) Affiliate has been advised that (i) the issuance of shares of Parent
Common Stock in connection with the Merger is expected to be effected
pursuant to a registration statement on Form S-4 promulgated under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), and the resale of
such shares shall be subject to restrictions set forth in Rule 145 under the
Securities Act, and (ii) Affiliate may be deemed to be an affiliate of the
Company. Affiliate accordingly agrees not to sell, transfer or otherwise
dispose of any Parent Common Stock issued to Affiliate in the Merger unless
(i) such sale, transfer or other disposition is made in conformity with the
requirements of Rule 145(d) promulgated under the Securities Act, (ii) such
sale, transfer or other disposition is made pursuant to an effective
registration statement under the Securities Act or an appropriate exemption
from registration, (iii) Affiliate delivers to Parent a written opinion of
counsel, reasonably acceptable to Parent in form and substance, that such
sale, transfer or other disposition is otherwise exempt from registration
under the Securities Act or (iv) an authorized representative of the
Commission shall have rendered written advice to Affiliate to the effect
that the Commission would take no action, or that the staff of the
Commission would not recommend that the Commission take any action, with
respect to the proposed disposition if consummated.
(b) Parent shall give stop transfer instructions to its transfer agent
with respect to any Parent Common Stock received by Affiliate pursuant to
the Merger and there shall be placed on the certificates representing such
Common Stock, or any substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION
TO WHICH RULE 145 APPLIES AND MAY ONLY BE TRANSFERRED IN CONFORMITY WITH
RULE 145(d) OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR IN ACCORDANCE WITH A WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM AND
SUBSTANCE, THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend) and Parent shall so instruct its transfer
agent, if Affiliate delivers to Parent (i) satisfactory written evidence that
the shares have been sold in compliance with Rule 145 (in which case, the
substitute certificate shall be issued in the name of the transferee), or
(ii) an opinion of counsel, in form and substance reasonably satisfactory to
Parent, to the effect that public sale of the shares by the holder thereof is no
longer subject to Rule 145.
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5. TERMINATION. This Agreement shall be terminated and shall be of no
further force and effect in the event of the termination of the Reorganization
Agreement pursuant to Article VII of the Reorganization Agreement.
6. MISCELLANEOUS.
(a) WAIVER; SEVERABILITY. No waiver by any party hereto of any
condition or of any breach of any provision of this Agreement shall be
effective unless in writing and signed by each party hereto. In the event
that any provision of this Agreement, or the application of any such
provision to any person, entity or set of circumstances, shall be determined
to be invalid, unlawful, void or unenforceable to any extent, the remainder
of this Agreement, and the application of such provision to persons,
entities or circumstances other than those as to which it is determined to
be invalid, unlawful, void or unenforceable, shall not be impaired or
otherwise affected and shall continue to be valid and enforceable to the
fullest extent permitted by law.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor
any of the rights, interests or obligations of the parties hereto may be
assigned by either of the parties without prior written consent of the other
party hereto.
(c) 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.
(d) INJUNCTIVE RELIEF. Each of the parties acknowledge that (i) the
covenants and the restrictions contained in this Agreement are necessary,
fundamental, and required for the protection of Parent and the Company and
to preserve for Parent the benefits of the Merger; (ii) such covenants
relate to matters which are of a special, unique, and extraordinary
character that gives each of such covenants a special, unique, and
extraordinary value; and (iii) a breach of any such covenants or any other
provision of this Agreement shall result in irreparable harm and damages to
Parent and the Company which cannot be adequately compensated by a monetary
award. Accordingly, it is expressly agreed that in addition to all other
remedies available at law or in equity, Parent and the Company shall be
entitled to the immediate remedy of a temporary restraining order,
preliminary injunction, or such other form of injunctive or equitable relief
as may be used by any court of competent jurisdiction to restrain or enjoin
any of the parties hereto from breaching any such covenant or provision or
to specifically enforce the provisions hereof.
(e) GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the State
of Delaware without giving effect to any choice or conflict of law provision
or rule (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(f) ENTIRE AGREEMENT. This Agreement, the Reorganization Agreement and
the other agreements referred to in the Reorganization Agreement set forth
the entire understanding of Affiliate and Parent relating to the subject
matter hereof and thereof and supersede all prior agreements and
understandings between Affiliate and Parent relating to the subject matter
hereof and thereof.
(g) ATTORNEYS' FEES. In the event of any legal actions or proceeding
to enforce or interpret the provisions hereof, the prevailing party shall be
entitled to reasonable attorneys' fees, whether or not the proceeding
results in a final judgment.
(h) FURTHER ASSURANCES. Affiliate shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Agreement.
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(i) THIRD PARTY RELIANCE. Counsel to and independent auditors for
Parent and the Company shall be entitled to rely upon this Affiliate
Agreement.
(j) SURVIVAL. The representations, warranties, covenants and other
provisions contained in this Agreement shall survive the Merger.
(k) NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to
the parties at the following address (or at such other address for a party
as shall be specified by like notice):
If to Parent: Informix Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to
Affiliate: To the address for notice set forth on the signature page
hereof.
(l) COUNTERPARTS. This Agreement shall be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Affiliate Agreement to be
duly executed on the day and year first above written.
INFORMIX CORPORATION AFFILIATE
By: By:
Name: Affiliate's Address for Notice:
Title:
Shares beneficially owned:
shares of Company Common Stock
shares of Company Common Stock issuable upon exercise
of outstanding options and warrants
shares of Parent Common Stock
[SIGNATURE PAGE TO AFFILIATE AGREEMENT]
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