EXHIBIT 2.2
ATL PRODUCTS, INC. AFFILIATE AGREEMENT
This AFFILIATE AGREEMENT ("AGREEMENT") is dated as of ____________, 1998,
between Quantum Corporation, a Delaware corporation ("PARENT"), ATL Products,
Inc., a Delaware corporation (the "COMPANY") and the undersigned (the
"AFFILIATE").
WHEREAS, Parent and the Company have entered into an Agreement and Plan of
Reorganization ("MERGER AGREEMENT") pursuant to which Parent and the Company
intend to enter into a business combination transaction to pursue their long
term business strategies (the "MERGER") (capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them in
the Merger Agreement);
WHEREAS, pursuant to the Merger, at the Effective Time, all of the issued
and outstanding shares of the Company's Class A Common Stock and Class B Common
Stock (collectively, the "COMPANY COMMON STOCK"), including any shares owned by
Affiliate as of the Effective Time, will be converted into shares of Parent
Common Stock as set forth in the Merger Agreement;
WHEREAS, 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
paragraphs (c) and (d) of Rule 145 of the Rules and Regulations of the
Securities and Exchange Commission (the "SEC").
WHEREAS, the execution and delivery of this Agreement by Affiliate is a
material inducement to Parent to enter into the Merger Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows:
1. Acknowledgments by Affiliate. Affiliate acknowledges and understands
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that the representations, warranties and covenants by Affiliate set forth herein
will 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
Merger Agreement and has had an opportunity to discuss the requirements of this
Agreement with Affiliate's
professional advisors, who are qualified to advise Affiliate with regard to such
matters.
2. Compliance with Rule 145 and the Act.
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(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 under the Securities Act of
1933, as amended (the "ACT"), and as such will not be deemed "restricted
securities" within the meaning of Rule 144 promulgated thereunder and resale of
such shares will not be subject to any restrictions other than as set forth in
Rule 145 of the Act unless otherwise transferred pursuant to an effective
registration statement under the Act or an appropriate exemption from
registration, (ii) Affiliate may be deemed to be an affiliate of the Company,
and (iii) no sale, transfer or other disposition by Affiliate of any Parent
Common Stock received by Affiliate in the Merger will be registered under the
Act. Affiliate accordingly agrees not to sell, transfer or otherwise dispose of
any Parent Common Stock issued to Affiliate in the Merger unless (x) such sale,
transfer or other disposition is made in conformity with the requirements of
Rule 145(d) promulgated under the Act, (y) an authorized representative of the
SEC takes the position in writing to the effect that the SEC would take no
action, or that the staff of the SEC would not recommend that the SEC take
action, with respect to such sale, transfer or other disposition, and a copy of
such written position ("NO ACTION CORRESPONDENCE") is delivered to Parent, or
(z) 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 Act.
(b) Parent will give stop transfer instructions to its transfer agent
with respect to any Parent Common Stock received by Affiliate pursuant to the
Merger and there will be placed on the certificates representing such Parent
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 PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES AND MAY ONLY BE TRANSFERRED (A) IN
CONFORMITY WITH RULE 145(d) UNDER SUCH ACT, (B) IN ACCORDANCE WITH A
WRITTEN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
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THE ISSUER IN FORM AND SUBSTANCE THAT SUCH TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR (C) AS IS
OTHERWISE PERMITTED UNDER THAT CERTAIN AFFILIATE AGREEMENT DATED AS OF
April 22, 1997, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
ISSUER."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend) and Parent shall instruct its transfer agent to
remove such legend, 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 will be issued in the name of the transferee),
(ii) a copy of the No Action Correspondence, (iii) 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
(iv) a written request for removal of such legend after the earlier of (x) the
inapplicability of Rule 145 by its terms, (y) the effective date of any action
by the SEC eliminating the restrictions upon sale, transfer or disposition under
Rule 145 or otherwise rendering compliance with such restrictions unnecessary.
3. Specific Performance. Affiliate agrees that irreparable damages would
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occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms, or were otherwise breached.
It is, accordingly, agreed that Parent shall be entitled to injunctive relief to
prevent breaches of the provisions of this Agreement, and to enforce
specifically the terms and provisions hereof, in addition to any other remedy to
which Parent may be entitled at law or in equity.
4. Miscellaneous.
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(a) For the convenience of the parties hereto, this Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
(b) This Agreement shall be enforceable by, and shall inure to the
benefit of and be binding upon, the parties hereto and their respective
successors and assigns. As used herein, the term "successors and assigns" shall
mean, where the context so permits, heirs, executors, administrators, trustees
and successor trustees, and personal and other representatives.
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(c) This Agreement shall be governed by and construed, interpreted and
enforced in accordance with the internal laws of the State of California
(without regard to the principles of conflict of laws thereof).
(d) If a court of competent jurisdiction determines that any provision
of this Agreement is not enforceable or enforceable only if limited in time
and/or scope, this Agreement shall continue in full force and effect with such
provision stricken or so limited.
(e) Counsel to and accountants for the parties to the Agreement shall
be entitled to rely upon this Agreement as needed.
(f) This Agreement shall not be modified or amended, or any right
hereunder waived or any obligation excused, except by a written agreement signed
by both parties.
(g) Notwithstanding any other provision contained herein, this
Agreement and all obligations of Affiliate hereunder shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
(h) Parent currently intends to file on a timely basis, from and after
the Effective Time and as long as is necessary in order to permit Affiliate to
sell Parent Common Stock held by Affiliate pursuant to Rule 145, all reports
required to be filed by it pursuant to the Exchange Act, and currently intends
to otherwise make available adequate information regarding Parent in such manner
as may be required to satisfy the requirements of Rule 144(c) under the Act as
now in effect.
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Executed as of the date shown on the first page of this Agreement.
QUANTUM CORPORATION
By:___________________________________________
Name:_________________________________________
Title:________________________________________
ATL PRODUCTS, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
AFFILIATE
By:___________________________________________
Name of Affiliate:____________________________
Name of Signatory (if different from Affiliate):
______________________________________________
Title of Signatory
(if applicable):______________________________
Number of shares of the Company Common Stock beneficially owned by Affiliate:
_________________________________________
Number of shares of the Company Common Stock subject to options beneficially
owned by Affiliate:
_________________________________________
[Signature Page to Affiliate Agreement]
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