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EXHIBIT 2.4
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT (this "AGREEMENT") is made and entered into as
of May __, 2001 among [Saturn], a Delaware corporation ("PARENT"), and the
undersigned shareholder who may be deemed an affiliate ("AFFILIATE") of
[Jupiter], a Georgia corporation (the "COMPANY"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the Merger
Agreement (as defined below).
RECITALS
A. The Company, Merger Sub (as defined below) and Parent have
entered into an Agreement and Plan of Merger and Reorganization (the "MERGER
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
("PARENT COMMON STOCK");
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 145 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 Merger Agreement; and
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 and counsel, 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 Merger 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").
Except as noted on the signature page hereto, 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
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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 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.
3. 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), (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 or (iii) following one (1) year from the date of the Merger,
a written request for such removal.
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4. Termination. This Agreement shall be terminated and shall be
of no further force and effect in the event of the termination of the Merger
Agreement pursuant to Article VII of the Merger Agreement.
5. 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 laws of the State
of Delaware without giving effect to the conflicts of law provisions thereof.
(f) Entire Agreement. This Agreement, the Merger
Agreement and the other agreements referred to in the Merger 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.
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(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.
(i) Third Party Reliance. Counsel to 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: [Saturn]
0000 Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, 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.
[Remainder Of This Page Has Been Left Blank Intentionally]
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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.
[SATURN] AFFILIATE
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Signature Signature
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Print Name Print Name
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Print Title Print Title (if applicable)
Affiliate's Address for Notice:
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Shares beneficially owned:
______ shares of Company Common Stock
______ shares of Company Common Stock
issuable upon exercise of
outstanding options and
warrants
Liens on shares of Company Common Stock:
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______ shares of Parent Common Stock
[SIGNATURE PAGE TO AFFILIATE AGREEMENT]
