EXHIBIT 99.13
ELASTIC AFFILIATE AGREEMENT
[Closing Date]
Paradyne Networks, Inc.
0000 000xx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
The undersigned, a holder of shares of common stock, par value $0.01
per share ("Elastic Common Stock"), of Elastic Networks Inc., a Delaware
corporation ("Elastic"), acknowledges that the undersigned is an "affiliate" of
Elastic within the meaning of Rule 145 ("Rule 145") promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), by the Securities and
Exchange Commission (the "SEC"). Pursuant to the terms of the Agreement and Plan
of Merger dated as of December ___, 2001 (the "Merger Agreement"), among
Paradyne Networks, Inc., a Delaware corporation ("Paradyne"), Phoenix Merger
Sub, Inc., a Delaware corporation and a direct, wholly owned subsidiary of
Paradyne ("Sub"), and Elastic, Sub will be merged with and into Elastic (the
"Merger"), and in connection with the Merger, the undersigned is entitled to
receive shares of common stock, par value $0.001 per share of Paradyne
("Paradyne Common Stock").
In consideration of the Merger and the mutual covenants contained
herein, the undersigned and Paradyne hereby agree as follows:
As an affiliate of Elastic, the undersigned's ability to sell, assign
or transfer the shares of Paradyne Common Stock received by the undersigned in
exchange for any shares of Elastic Common Stock in connection with the Merger
may be restricted unless such transaction is registered under the Securities Act
or an exemption from such registration is available. The undersigned understands
that such exemptions are limited and the undersigned has obtained or will obtain
advice of counsel as to the nature and conditions of such exemptions, including
information with respect to the applicability to the sale of such securities of
Rules 144 and 145(d) promulgated under the Securities Act. The undersigned also
understands that Paradyne is under no obligation to file a registration
statement with the SEC covering the disposition of the undersigned's shares of
Paradyne Common Stock or to take any other action necessary to make compliance
with an exemption from such registration available.
The undersigned hereby represents to and covenants with Paradyne that
(a) the Paradyne Common Stock received by the undersigned as a result of the
Merger will be taken for the undersigned's own account and not for others,
directly or indirectly, in whole or in part and (b) the undersigned will not
sell, assign or transfer any of the shares of Paradyne Common Stock received by
the undersigned in exchange for shares of Elastic Common Stock in connection
with the Merger except (i) pursuant to an effective registration statement under
the Securities Act, (ii) in conformity with the volume and other limitations of
Rule 145 or (iii) in a transaction which, in the opinion of counsel to the
undersigned, such counsel to be reasonably satisfactory to Paradyne and such
opinion to be in form and substance reasonably satisfactory to Paradyne, or as
described in a "no-action" or interpretive letter from the staff of the SEC
specifically issued with respect to a transaction to be engaged in by the
undersigned, is not required to be registered under the Securities Act.
The undersigned further agrees and consents to the placement of the
following legend on the certificates the shares of Paradyne Common Stock to be
received by the undersigned in the Merger:
"This Certificate has been issued to or transferred to the registered
holder as a result of a transaction to which Rule 145 under the
Securities Act of 1933 (the "Securities Act") applies and may not be
sold, transferred or assigned except (i) pursuant to an effective
registration statement under the Securities Act, (ii) in conformity
with the volume and other limitations of Rule 145, or (iii) in a
transaction which, in the opinion of counsel to the undersigned, such
counsel to be reasonably satisfactory to the issuer, and such opinion
to be in form and substance reasonably satisfactory to the issuer, or
as described in a "no-action" or interpretive letter from the staff of
the Securities and Exchange Commission specifically issued with respect
to a transaction to be engaged in by the undersigned, is not required
to be registered under the Securities Act."
In the event of a sale or other disposition by the undersigned of the
shares of Paradyne Common Stock pursuant to Rule 145(d)(1), the undersigned will
supply Paradyne and its transfer agent with evidence of compliance with such
Rule, in the form reasonably acceptable to Paradyne and its transfer agent, or
the opinion of counsel or no-action letter referred to above. The undersigned
understands that Paradyne may instruct its transfer agent to withhold the
transfer of any shares of Paradyne Common Stock disposed of by the undersigned,
but that (provided such transfer is not prohibited by any other provision of
this letter agreement) upon receipt of such evidence of compliance, opinion or
letter, Paradyne shall cause the transfer agent to effectuate the transfer of
the shares of Paradyne Common Stock sold as indicated in such evidence of
compliance, opinion or letter.
The undersigned acknowledges that (i) the undersigned has carefully
read this letter agreement and understands the requirements hereof and the
limitations imposed upon the distribution, sale, transfer or other disposition
of Paradyne Common Stock and (ii) the receipt by Paradyne of this letter
agreement is an inducement to Paradyne's obligations to consummate the Merger.
This letter agreement shall be governed by the laws of the State of
Delaware.
Very truly yours,
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Name:
Accepted and Agreed:
PARADYNE, INC.
By
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Name:
Title:
