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EXHIBIT 99.3
COMPANY AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("AFFILIATE AGREEMENT") is being executed and
delivered as of June __, 2000 by ________________ ("STOCKHOLDER") in favor of
and for the benefit of MOLECULAR DEVICES CORPORATION, a Delaware corporation
("PARENT"), and LJL BIOSYSTEMS, INC. a Delaware corporation (the "Company").
RECITALS
A. Stockholder is a stockholder of, and is an officer and/or director of
the Company.
B. Parent, the Company and Mercury Acquisition Sub, Inc., a wholly owned
subsidiary of Parent ("MERGER SUB"), have entered into an Agreement and Plan of
Merger and Reorganization dated as of June __, 2000 (the "REORGANIZATION
AGREEMENT"), providing for the merger of Merger Sub into the Company (the
"MERGER"). The Reorganization Agreement contemplates that, upon consummation of
the Merger, (i) holders of shares of the common stock of the Company will
receive shares of common stock of Parent ("PARENT COMMON STOCK") in exchange for
their shares of common stock of the Company and (ii) the Company will become a
wholly owned subsidiary of Parent. It is accordingly contemplated that
Stockholder will receive shares of Parent Common Stock in the Merger.
C. Stockholder understands that the Parent Common Stock being issued in
the Merger will be issued pursuant to a registration statement on Form S-4, and
that Stockholder may be deemed an "affiliate" of the Company: (i) as such term
is defined for purposes of paragraphs (c) and (d) of Rule 145 under the
Securities Act of 1933, as amended (the "Securities Act"); and (ii) for purposes
of determining Parent's eligibility to account for the Merger as a "pooling of
interests" under Accounting Series Releases 130 and 135, as amended, of the
Securities and Exchange Commission (the "SEC"), and under other applicable
"pooling of interests" accounting requirements.
AGREEMENT
Stockholder, intending to be legally bound, agrees as follows:
1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder represents
and warrants to Parent as follows:
(a) Stockholder is the holder and "beneficial owner" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the
number of outstanding shares of common stock of the Company set forth beneath
Stockholder's signature on the signature page hereof (the "COMPANY SHARES"), and
Stockholder has good and valid title to the Company Shares, free and clear of
any liens, pledges, security interests, adverse claims, equities, options,
proxies, charges, encumbrances or restrictions of any nature.
(b) Stockholder is the holder of options to purchase the number
of shares of common stock of the Company set forth beneath Stockholder's
signature on the signature page hereof (the "COMPANY OPTIONS"), and Stockholder
has good and valid title to the Company Options, free and clear of any liens,
pledges, security interests, adverse claims, equities, options, proxies,
charges, encumbrances or restrictions of any nature.
(c) Stockholder does not own, of record or beneficially, directly
or indirectly, any securities of the Company other than the Company Shares and
the Company Options.
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(d) Stockholder has carefully read this Affiliate Agreement and,
to the extent Stockholder felt necessary, has discussed with Stockholder's own
independent counsel the limitations imposed on Stockholder's ability to sell,
transfer or otherwise dispose of the Company Shares, the Company Options, the
shares of Parent Common Stock that Stockholder is to receive in the Merger (the
"PARENT SHARES"), and the options to purchase shares of Parent Common Stock that
Stockholder is to receive in respect of the Company Options in connection with
the Merger. Stockholder fully understands the limitations this Affiliate
Agreement places upon Stockholder's ability to sell, transfer or otherwise
dispose of securities of the Company and securities of Parent.
(e) Stockholder understands that the representations, warranties
and covenants set forth in this Affiliate Agreement will be relied upon by
Parent, the Company and their respective counsels and accountants for purposes
of determining Parent's eligibility to account for the Merger as a "pooling of
interests."
2. PROHIBITIONS AGAINST TRANSFER.
(a) Stockholder agrees that, during the period from the date 30
days prior to the date of consummation of the Merger through the date on which
financial results covering at least 30 days of post-Merger combined operations
of Parent and the Company have been published by Parent (within the meaning of
the applicable "pooling of interests" accounting requirements):
(i) Stockholder shall not sell, transfer or otherwise
dispose of, or reduce Stockholder's interest in or risk relating to, (A)
any capital stock of the Company (including, without limitation, the
Company Shares and any additional shares of capital stock of the Company
acquired by Stockholder, whether upon exercise of a stock option or
otherwise), except pursuant to and upon consummation of the Merger, or
(B) any option or other right to purchase any shares of capital stock of
the Company, except pursuant to and upon consummation of the Merger; and
(ii) Stockholder shall not sell, transfer or otherwise
dispose of, or reduce Stockholder's interest in or risk relating to, (A)
any shares of capital stock of Parent (including without limitation the
Parent Shares and any additional shares of capital stock of Parent
acquired by Stockholder, whether upon exercise of a stock option or
otherwise), or (B) any option or other right to purchase any shares of
capital stock of Parent.
(b) Stockholder agrees that Stockholder shall not effect any
sale, transfer or other disposition of any Parent Shares unless such sale,
transfer or other disposition is made in conformity with the requirements of
Rule 145 under the Securities Act.
3. STOP TRANSFER INSTRUCTIONS; LEGEND.
Stockholder acknowledges and agrees that (a) stop transfer
instructions will be given to Parent's transfer agent with respect to the Parent
Shares, and (b) each certificate representing any of such shares shall bear a
legend identical or similar in effect to the following legend (together with any
other legend or legends required by applicable state securities laws or
otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 OF THE SECURITIES ACT OF 1933
APPLIES AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH RULE AND IN ACCORDANCE WITH THE TERMS OF AN
AGREEMENT DATED AS OF
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_____________, 2000, BETWEEN THE REGISTERED HOLDER HEREOF AND
THE ISSUER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES
OF THE ISSUER."
4. PERMITTED TRANSFERS. Notwithstanding anything to the contrary
contained in this Affiliate Agreement, Stockholder (i) may transfer Affiliate's
pro rata portion (of the total number of shares available under the "de minimis"
exception referred to in this clause (i) to all affiliates of Parent and
Company) of the "de minimis" number of shares of common stock of the Company and
common stock of the Parent available for sale in accordance with SEC Staff
Accounting Bulletin No. 76 (the "De Minimis Pool") contingent upon confirmation
and approval by legal counsel for Parent and Company and independent auditors to
the Company and Parent that such transfer qualified within Stockholder's pro
rata portion of the De Minimis Pool and does not otherwise adversely affect the
Parent's ability to account for the Merger as a "pooling of interests."
5. INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of
Stockholder set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or arrangement between Stockholder, on the
one hand, and the Company or Parent, on the other. The existence of any claim or
cause of action by Stockholder against the Company or Parent shall not
constitute a defense to the enforcement of any of such covenants or obligations
against Stockholder.
6. SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or other
provision contained in this Affiliate Agreement, Parent or Company shall be
entitled (in addition to any other remedy that may be available to Parent or the
Company, including monetary damages) to: (a) a decree or order of specific
performance or mandamus to enforce the observance and performance of such
covenant, obligation or other provision; and (b) an injunction restraining such
breach or threatened breach. Stockholder further agrees that neither Parent,
Company nor any other person or entity shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 6, and Stockholder irrevocably
waives any right he may have to require the obtaining, furnishing or posting of
any such bond or similar instrument.
7. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall limit any
of the rights or remedies of Parent under the Reorganization Agreement, or any
of the rights or remedies of Parent or Company or any of the obligations of
Stockholder under any agreement between Stockholder and Parent or Company or any
certificate or instrument executed by Stockholder in favor of Parent or Company;
and nothing in the Reorganization Agreement or in any other agreement,
certificate or instrument shall limit any of the rights or remedies of Parent or
any of the obligations of Stockholder under this Affiliate Agreement.
8. NOTICES. Any notice or other communication required or permitted to
be delivered to Stockholder or Parent under this Affiliate Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
party):
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IF TO STOCKHOLDER:
at the address set forth below Stockholder's signature on
the signature page hereof
IF TO PARENT:
Molecular Devices Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention:
Facsimile: (000) 000-0000
IF TO COMPANY:
LJL Biosystems, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention:
Facsimile: (000) 000-0000
9. SEVERABILITY. If any provision of this Affiliate Agreement or any
part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Affiliate Agreement.
Each provision of this Affiliate Agreement is separable from every other
provision of this Affiliate Agreement, and each part of each provision of this
Affiliate Agreement is separable from every other part of such provision.
10. APPLICABLE LAW; JURISDICTION. THIS AFFILIATE AGREEMENT IS MADE
UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between
or among any of the parties, whether arising out of this Affiliate Agreement or
otherwise, (a) each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state and federal courts
located in the State of California; (b) if any such action is commended in a
state court, then, subject to applicable law, no party shall object to the
removal of such action to any federal court located in the Northern District of
California; (c) each of the parties irrevocably waives the right to trial by
jury; and (d) each of the parties irrevocably consents to service of process by
first class certified mail, return receipt requested, postage prepared, to the
address at which such party is to receive notice in accordance with Section 7.
11. WAIVER; TERMINATION. No failure on the part of Parent or Company to
exercise any power, right, privilege or remedy under this Affiliate Agreement,
and no delay on the part of Parent or Company in exercising any power, right,
privilege or remedy under this Affiliate Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial exercise of any
such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other
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power, right, privilege or remedy. Neither Parent nor Company shall be deemed to
have waived any claim arising out of this Affiliate Agreement, or any power,
right, privilege or remedy under this Affiliate Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of the party deemed to
be charged; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given. If the Reorganization
Agreement is terminated, this Affiliate Agreement shall thereupon terminate.
12. CAPTIONS. The captions contained in this Affiliate Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Affiliate Agreement and shall not be referred to in connection with the
construction or interpretation of this Affiliate Agreement.
13. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to Parent or the Company such instruments and other documents and
shall take such other actions as Parent or the Company may reasonably request to
effectuate the intent and purposes of this Affiliate Agreement.
14. ENTIRE AGREEMENT. This Affiliate Agreement, the Reorganization
Agreement and any Voting Agreement or Noncompetition Agreement between
Stockholder and Parent collectively set forth the entire understanding of Parent
and Stockholder relating to the subject matter hereof and thereof and supersede
all other prior agreements and understandings between Parent and Stockholder
relating to the subject matter hereof and thereof.
15. NON-EXCLUSIVITY. The rights and remedies of Parent and the Company
hereunder are not exclusive of or limited by any other rights or remedies which
Parent or the Company may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative).
16. AMENDMENTS. This Affiliate Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and Stockholder.
17. ASSIGNMENT. This Affiliate Agreement and all obligations of
Stockholder hereunder are personal to Stockholder and may not be transferred or
delegated by Stockholder at any time. Parent may freely assign any or all of its
rights under this Affiliate Agreement, in whole or in part, to any other person
or entity without obtaining the consent or approval of Stockholder.
18. BINDING NATURE. Subject to Section 16, this Affiliate Agreement will
inure to the benefit of Parent, Company and their respective successors and
assigns and will be binding upon Stockholder and Stockholder's representatives,
executors, administrators, estate, heirs, successors and assigns.
19. SURVIVAL. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the consummation
of the Merger.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Executed as of the date shown on the first page of this Affiliate
Agreement.
STOCKHOLDER
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(Signature)
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(Print Name)
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(Print Address)
NUMBER OF OUTSTANDING SHARES OF
COMMON STOCK OF THE COMPANY
HELD BY STOCKHOLDER:
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NUMBER SHARES OF COMMON STOCK OF THE COMPANY
SUBJECT TO OPTIONS HELD BY STOCKHOLDER:
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MOLECULAR DEVICES CORPORATION
By:
---------------------------------
Its:
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LJL BIOSYSTEMS, INC.
By:
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Its:
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