1
EXHIBIT 4.2
INVESTOR AGREEMENT
THIS INVESTOR AGREEMENT ("Agreement") is entered into as of the 7th day of
December, 1999 between Sybase, Inc., a Delaware corporation (the "Acquiror"),
and the undersigned shareholder (the "Shareholder") of Home Financial Network,
Inc., a Delaware corporation (the "Company").
RECITALS
A. The Company and Acquiror have entered into an Agreement and Plan of
Reorganization, dated as of November 29, 1999 (the "Reorganization Agreement"),
pursuant to which the Company will be merged with and into a wholly owned
subsidiary of Acquiror (the "Merger").
B. Upon the consummation of the Merger and in connection therewith, the
undersigned Shareholder will become the owner of shares of Common Stock of
Acquiror (the "Acquiror Common Stock").
C. The parties to the Reorganization Agreement intend to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code") and intend to cause the Merger to qualify as a
"reorganization" under the provisions of Section 368(a) of the Code.
D. Pursuant to the Reorganization Agreement, an Escrow Agreement (the
"Escrow Agreement") shall be entered into between the Acquiror and an a
representative of the former shareholders of the Company (the "Shareholders'
Representative").
E. Concurrent with the execution of the Reorganization Agreement and as an
inducement to Acquiror to enter into the Reorganization Agreement, certain of
the affiliates of the Company who are shareholders, officers or directors have
on November 29, 1999 entered into an agreement, to, among other things, vote the
shares of the Company's capital stock owned by such persons to approve the
Merger and against any competing proposals.
F. The undersigned Shareholder understands and acknowledges that the
Company, Acquiror and their respective shareholders, as well as legal counsel to
the Company and Acquiror, are entitled to rely on (x) the truth and accuracy of
the undersigned Shareholder's representations contained herein and (y) the
undersigned Shareholder's performance of the obligations set forth herein.
G. Any terms used in this Agreement and not otherwise defined, shall have
the meaning assigned to such terms in the Reorganization Agreement.
2
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants set forth in the Reorganization Agreement
and in this Agreement, it is hereby agreed as follows:
1. Share Ownership and Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(a) Shareholder is the beneficial owner of that number of
shares of the Company Capital Stock (collectively, the "Shares") set forth on
the signature page hereto and, except as otherwise set forth on the signature
page hereto, (A) has held such Shares at all times since the date set forth on
such signature page, and (B) did not acquire any Shares of the Company Capital
Stock in contemplation of the Merger. The Shares constitute the Shareholder's
entire interest in the Company Outstanding Stock. No other person or entity not
a signatory to this Agreement has a beneficial interest in or a right to acquire
such Shares or any portion of such Shares (except, with respect to shareholders
which are partnerships, partners of such shareholders). The Shares are and will
be at all times up until the Expiration Date (as defined below) free and clear
of any liens, claims, options, charges or other encumbrances.
(b) Shareholder agrees not to transfer (except as may be
specifically required by court order or by operation of law), sell, exchange,
pledge or otherwise dispose of or encumber the Shares or any New Shares (as
defined below), or to make any offer or agreement relating thereto, at any time
prior to the Expiration Date.
(c) As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the Effective Time of the Merger or (ii) the termination
of the Reorganization Agreement.
1.2 New Shares. Shareholder agrees that any shares of capital stock
of the Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date ("New Shares") shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares.
2. Representations, Warranties and Covenants of Shareholder. Shareholder
hereby represents, warrants and covenants to Acquiror as follows:
(a) Purchase Entirely for Own Account. The Acquiror Common
Stock being acquired by such Shareholder pursuant to the Merger will be acquired
for investment for such Shareholder's own account, not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof, and such
Shareholder has no present intention of selling, granting any participation in,
or otherwise distributing the same. By executing this Agreement, Shareholder
further represents that such Shareholder does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of
such Acquiror Common Stock.
2
3
(b) Investment Experience. Such Shareholder has substantial
experience evaluating and investing in securities of companies and acknowledges
that it has the capacity to protect its own interests in connection therewith,
can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Acquiror Common Stock. If other than
an individual, such Shareholder also represents it has not been organized for
the purpose of acquiring the Acquiror Common Stock.
(c) Accredited Investor/Suitability Questionnaire. Such
Shareholder (i) is and at the Closing will be an "accredited investor" within
the meaning of Rule 501 of Regulation D as promulgated by the Securities and
Exchange Commission (the "SEC") and as presently in effect or (ii) has delivered
an Investor Questionnaire to Acquiror describing Shareholder's ability to
evaluate an investment in Acquiror Common Stock or (iii) has appointed a
"purchaser representative" as defined in SEC Rule 501 of Regulation D to
evaluate Shareholder's investment in Acquiror Common Stock by delivering a
Purchaser Representative Agreement to Acquiror.
(d) Restricted Securities. Such Shareholder understands that
the shares of Acquiror Common Stock are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Acquiror in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), only in certain limited circumstances. In this connection, such
Shareholder represents that it is familiar with SEC Rule 145, as presently in
effect, and understands the resale limitations imposed thereby and by the
Securities Act.
(e) Further Limitations on Disposition. The Shareholder agrees
not to offer, sell, exchange, transfer, pledge or otherwise dispose of any of
the Acquiror Common Stock unless at that time either:
(i) such transaction is permitted pursuant to the
provisions of Rule 145 under the Securities Act;
(ii) counsel representing the undersigned Shareholder,
satisfactory to Acquiror, shall have advised Acquiror in a written opinion
letter satisfactory to Acquiror and Acquiror's counsel, and upon which Acquiror
and its counsel may rely, that no registration under the Securities Act is
required in connection with the proposed sale, transfer or other disposition;
(iii) a registration statement under the Securities Act
(a "Registration Statement") covering the Acquiror Common Stock proposed to be
sold, transferred or otherwise disposed of, describing the manner and terms of
the proposed sale, transfer or other disposition, and containing a current
prospectus, is filed with the SEC and made effective under the Securities Act;
or
(iv) an authorized representative of the SEC shall have
rendered written advice to the undersigned Shareholder (sought by the
undersigned Shareholder or counsel to the undersigned Shareholder, with a copy
thereof and of all other related communications delivered
3
4
to Acquiror) to the effect that the SEC will take no action, or that the staff
of the SEC will not recommend that the SEC take action, with respect to the
proposed offer, sale, exchange, transfer, pledge or other disposition if
consummated.
(f) All certificates representing shares of Acquiror Common
Stock deliverable to a Shareholder pursuant to the Reorganization Agreement and
in connection with the Merger and any certificates subsequently issued with
respect thereto or in substitution therefor shall bear a legend that such shares
of Acquiror Common Stock may only be sold or disposed of in accordance with (i)
the provisions of Rule 145 under the Securities Act, (ii) pursuant to an
effective Registration Statement or (iii) pursuant to an exemption provided by
the Securities Act, Acquiror, at its discretion, may cause stop transfer orders
to be placed with its transfer agent with respect to the certificates for such
Acquiror Common Stock but not as to the certificates for any part of the
Acquiror Common Stock as to which said legend is no longer appropriate.
(g) The undersigned Shareholder will observe and comply with
the Securities Act and the General Rules and Regulations thereunder, as now in
effect and as from time to time amended and including those hereafter enacted or
promulgated, in connection with any offer, sale, exchange, transfer, pledge or
other disposition of the Acquiror Common Stock or any part thereof.
(h) Shareholder understands that pursuant to the
Reorganization Agreement, Acquiror and Shareholder's Representative shall enter
into the Escrow Agreement and that Shareholder shall be bound by the provisions
of the Escrow Agreement and as such, Shareholder agrees to appoint Shareholder's
Representative prior to the Closing and further agrees to be bound by the terms
of the Escrow Agreement.
3. Consent and Waiver. Except for Shareholder's rights under the
Reorganization Agreement, Shareholder hereby gives any consents or waivers in
its individual capacity that are required for the consummation of the Merger
under the terms of any agreement to which Shareholder is a party or pursuant to
any rights Shareholder may have.
4. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
5. Confidentiality. Except as otherwise provided in the Reorganization
Agreement, Shareholder agrees (i) to hold any information regarding this
Agreement and the Merger in strict confidence, and (ii) not to divulge any such
information to any third person, until such time as the Merger has been publicly
disclosed by Acquiror.
6. Miscellaneous.
6.1 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
4
5
6.2 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 the prior written consent of the other. This Agreement is
intended to bind Shareholder as a shareholder of the Company only with respect
to the specific matters set forth herein.
6.3 Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
6.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Acquiror will have no adequate remedy at law for a violation of
any of the covenants or agreements of Shareholder set forth herein. Therefore,
it is agreed that, in addition to any other remedies that may be available to
Acquiror upon any such violation, Acquiror shall have the right to enforce such
covenants and agreements by specific performance, injunctive relief or by any
other means available to Acquiror at law or in equity and the Shareholder hereby
waives any and all defenses which could exist in its favor in connection with
such enforcement.
6.5 Notices. All notices, requests, demands or other communications
that are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given if delivered by hand
or mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Shareholder, at the address set forth in the
Company's records.
(b) If to Acquiror:
Sybase, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone No.: 000-000-0000
Facsimile No.: 510-022-4558
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
5
6
(c) If to the Company, to:
Home Financial Network, Inc.
00 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxxxx & Xxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxx, Esq.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
or to such other address as any party hereto or any party may designate for
him/her/itself by notice given as herein provided.
6.6 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of California.
6.7 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
6.8 Counterpart. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
6.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
7
PLEASE DATE AND SIGN EXACTLY AS NAME APPEARS ON SHARE CERTIFICATES.
INDIVIDUAL
Dated:
-------------------- -----------------------------------------
(Signature)
-----------------------------------------
(Type or print Name as it appears on your
Stock Certificate(s))
CORPORATION, PARTNERSHIP OR TRUST
Dated:
-------------------- -----------------------------------------
(Name of Entity)
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Please date, sign and return this Agreement promptly in the enclosed
Federal Express envelope provided.
[STICKER]
[Signature Page To Investor Agreement]
