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EXHIBIT 3
XXXXXXX.XXX CORPORATION
AFFILIATE AGREEMENT
July __, 2001
Xxxxxxx.xxx Corporation
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxx.xxx Corporation, a Washington corporation ("Sun"), and X.X.X.
Automation, Inc., a California corporation ("XXX"), among others, have entered
into an Amended and Restated Agreement and Plan of Merger, dated as of May 16,
2001, (the "Merger Agreement"), pursuant to which, among other things, upon the
terms and subject to the conditions thereof, XXX will be merged with and into
Sun (the "Merger"). Capitalized terms used herein but not defined shall have the
meanings set forth in the Merger Agreement.
The undersigned ("Affiliate") has been advised that as of the date hereof
the undersigned may be deemed to be (but does not hereby admit to be) an
"affiliate" of XXX, as the term "affiliate" is defined for purposes of
paragraphs (c) and (d) of Rule 145 of the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "SEC") promulgated
under the Securities Act of 1933, as amended (the "Securities Act").
The undersigned understands that the representations, warranties and
covenants set forth herein will be relied upon by Sun and XXX. Except to the
extent written notification to the contrary is received by Sun from the
undersigned prior to the consummation of the Merger, the representations and
warranties contained herein shall be accurate at all times from the date hereof
through the Effective Time (as defined in the Merger Agreement).
The undersigned hereby represents and warrants to and agrees with Sun that
in the event the undersigned receives any shares of Sun Common Stock ("Sun
Common Shares") as a result of the Merger:
1. The undersigned has power and authority to execute and deliver this letter
agreement and to make the representations and warranties set forth herein
and to perform his, her or its obligations hereunder.
2. The undersigned has carefully read this letter agreement (this "Affiliate
Agreement") and the Merger Agreement and, to the extent the undersigned
felt necessary, discussed the requirements of such documents and other
applicable limitations upon his, her or its ability to sell, transfer,
pledge or otherwise dispose of Sun Common Shares with his, her or its
counsel.
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3. The undersigned is the owner of (including the beneficial owner of options,
warrants or other rights to acquire capital stock) the number of shares of
XXX Common Stock (the "Shares") set forth below, and did not acquire any of
the Shares in contemplation of the Merger.
4. The undersigned will not make any sale, transfer, pledge or other
disposition of the Shares in violation of the Securities Act or the Rules
and Regulations.
5. The undersigned has been advised that the issuance of the Sun Common Shares
to the undersigned in connection with the Merger has been or will be, to
the extent required, issued in a transaction exempt from the registration
requirements of Securities Act by virtue of Section 4(2) thereof. However,
the undersigned has also been advised that, since, at the time the Merger
was or will be submitted for a vote of the shareholders of XXX, the
undersigned may be deemed to be or have been an affiliate of XXX and the
distribution by the undersigned of any Sun Common Shares has not been
registered under the Securities Act, the undersigned may not sell,
transfer, or otherwise dispose of Sun Common Shares issued to him, her or
it in the Merger unless (i) such sale, transfer, or other disposition has
been registered under the Securities Act, (ii) such sale, transfer, or
other disposition is made in conformity with the volume and other
limitations of Rule 145(d), (iii) a "no action" letter has been received
from the SEC with respect to such sale, transfer or disposition or (iv) in
the opinion of counsel reasonably acceptable to Sun, such sale, transfer,
or other disposition is otherwise exempt from registration under the
Securities Act.
6. The undersigned understands that, except as provided in the Merger
Agreement, Sun is under no obligation to register the sale, transfer, or
other disposition of Sun Common Shares by the undersigned or on his, her or
its behalf under the Securities Act or any other Laws or to take any other
action necessary in order to make compliance with an exemption from such
registration available.
7. The undersigned also understands that Sun may impose stop transfer
instructions or elect to not permit the transfer of Sun Common Shares or
the issuance of a new certificate representing such shares unless and until
such a transfer can be made in compliance with paragraph 5 above and that
there will be placed on the certificates for Sun Common Shares issued to
him, her or it, or any substitutions therefor, a legend stating in
substance:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE WERE ISSUED IN A
MERGER TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES. THE SECURITIES EVIDENCED BY THIS
CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE TERMS
OF AN AFFILIATE AGREEMENT DATED AS OF JULY __, 2001 BETWEEN THE
REGISTERED HOLDER HEREOF AND XXXXXXX.XXX CORPORATION, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF
XXXXXXX.XXX CORPORATION."
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8. The undersigned also understands that, unless the sale, transfer, or other
disposition by him, her or it of Sun Common Shares issued to him, her or it
has been registered under the Securities Act or is a sale made in
conformity with the provisions of Rule 145, Sun reserves the right to put
the following legend on the certificates issued to any transferee of the
undersigned:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE WERE ACQUIRED FROM
A PERSON WHO RECEIVED SUCH SHARES IN A MERGER TO WHICH RULE 145
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
APPLIES, AND WERE NOT ACQUIRED BY THE HOLDER WITH A VIEW TO
TRANSFER, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF WITHIN THE MEANING OF THE SECURITIES ACT OF 1933, AS
AMENDED. THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF, UNLESS SUCH SALE, TRANSFER, OR OTHER DISPOSAL IS
MADE IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE
SECURITIES LAWS OR IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT, THE RULES AND REGULATIONS IN EFFECT THEREUNDER AND
ANY APPLICABLE STATE SECURITIES LAWS."
9. Except as otherwise disclosed in ANN's Disclosure Schedule to the Merger
Agreement, there are no contracts, commitments or agreements relating to
voting, purchase or sale of ANN's capital stock (i) between XXX and the
undersigned and (ii) between or among the undersigned and any of ANN's
other shareholders .
10. This Affiliate Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of California without giving
effect to the principles of conflicts of laws thereof and may be executed
in counterparts.
[SIGNATURE PAGE FOLLOWS]
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Very truly yours,
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Number of Shares beneficially owned as of the
date hereof:
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Accepted as of July __, 2001
XXXXXXX.XXX CORPORATION
By: --------------------------------------------
Name:
Title:
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CONSENT OF SPOUSE
I, _______________________, spouse of Affiliate, have read and approve of
the terms and conditions set forth in the foregoing Affiliate Agreement. In
consideration of Sun and XXX entering into the Merger Agreement which provides
for the Merger, I hereby acknowledge, consent to and confirm the execution of
the foregoing Affiliate Agreement by Affiliate and agree that, to the extent
that I may be deemed to have an interest in the Sun Common Shares held by
Affiliate, the undersigned agrees to be bound by the terms thereof.
Dated: July __, 2001
By:
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Print Name:
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