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EXHIBIT 10.46
FORM OF AFFILIATES LETTER
_________ __, 1998
Aurora Electronics, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
This letter agreement (this "Agreement") is being delivered in
accordance with Section 7.05(b) of the Agreement and Plan of Merger, dated as
of January 30, 1998 (the "Merger Agreement"), among Aurora Electronics, Inc., a
Delaware corporation ("Parent"), Xxxxx Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Sub"), and The Cerplex
Group, Inc., a Delaware corporation (the "Company"). The Merger Agreement
provides, among other things, for the merger of Sub with and into the Company
(the "Merger"), pursuant to which each share of the outstanding Common Stock,
par value $.001 per share ("Company Common Stock"), of the Company will be
converted into the right to receive a number of shares of Common Stock, par
value $.03 per share ("Parent Common Stock"), of Parent on the basis described
in the Merger Agreement.
The undersigned understands that as of the date of this letter
he, she or it may be deemed to be an "affiliate" of the Company (an
"Affiliate") as such term is used in paragraphs (c) and (d) of Rule 145 of the
General Rules and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as
amended (the "Securities Act").
1. The undersigned hereby represents, warrants, covenants and agrees as
follows:
(a) The undersigned has full power to execute
this Agreement and to make the representations, warranties, covenants and
agreements herein and to perform the undersigned's obligations hereunder.
(b) The undersigned is the beneficial or record
owner of all the shares of Company Common Stock and (ii) the options, warrants
or other rights exercisable for or convertible into shares of Company Stock
(collectively, the "Rights") indicated
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immediately below the undersigned's signature and address on the last page of
this Agreement (all such shares and Rights, including any hereafter acquired,
the "Company Shares"). Except for the Company Shares, the undersigned does not
beneficially or of record own any shares of Company Common Stock or any Rights
or other equity securities of the Company.
(c) The undersigned will not sell, transfer or
otherwise dispose of or offer or agree to sell, transfer or dispose of (any of
the foregoing, a "Disposition") any of the shares of Parent Common Stock issued
to the undersigned in the Merger in exchange for the Company Shares (the
"Parent Shares") in violation of the Securities Act or the Rules and
Regulations.
(d) The undersigned has carefully read this
Agreement and the Merger Agreement and discussed with the undersigned's counsel
or counsel for the Company the requirements of such documents and other
applicable limitations upon the undersigned's ability to make any Disposition
of the Parent Shares.
(e) The undersigned understands that the issuance
of Parent Common Stock pursuant to the Merger will be registered with the SEC
under the Securities Act on a Registration Statement on Form S-4 and that,
because at the time the Merger is submitted to a vote of the stockholders of
the Company, the undersigned may be deemed to be an Affiliate of the Company
and the distribution by the undersigned of any shares of Parent Common Stock
has not been registered under the Securities Act, the undersigned may not make
any Disposition of the Parent Shares unless (i) such Disposition has been
registered under the Securities Act, (ii) such Disposition is made in
conformity with the volume and other limitations of Rule 145 promulgated by the
SEC under the Securities Act, or (iii) Parent has received an opinion of
counsel, which opinion and counsel shall be reasonably acceptable to Parent, to
the effect that such Disposition is otherwise exempt from registration under
the Securities Act.
(f) Except as provided in the registration rights
agreement to be executed between the undersigned and Parent, the undersigned
understands that Parent is under no obligation to register any Disposition of
Parent Shares by the undersigned or on the undersigned's behalf under the
Securities Act or to take any other action necessary in order to make
compliance with an exemption from such registration available to the
undersigned.
(g) The undersigned understands that stop
transfer instructions will be given to all transfer agents for the Parent
Common Stock and that there will placed on the certificates evidencing the
Parent Shares, or any replacements or substitutions therefor, a legend stating
in substance:
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THE SHARES REPRESENTED BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION TO WHICH RULE 145 PROMULGATED
UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT
DATED [ ], 1998 BETWEEN THE REGISTERED HOLDER
HEREOF AND AURORA ELECTRONICS, INC., A COPY OF WHICH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF
AURORA ELECTRONICS, INC.
(h) The undersigned also understands that unless
a Disposition of the Parent Shares has been registered under the Securities Act
or is made in conformity with the provisions of Rule 145, Parent reserves the
right to put the following legend on the certificates evidencing any of the
Parent Shares issued to any transferee of the undersigned:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND
WERE ACQUIRED FROM A PERSON WHO RECEIVED SUCH SHARES
IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER
THE SECURITIES ACT OF 1933 APPLIES. THE SHARES MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933.
(i) It is understood and agreed that the legends
set forth in Sections 1(g) and 1(h) above shall be removed by delivery of
substitute certificates without such legend if the undersigned has delivered to
Parent an opinion of counsel, which opinion and counsel shall be reasonably
satisfactory to Parent, or a letter from the staff of the SEC, to the effect
that such legend is not required for purposes of the Rules and Regulations or
the Securities Act.
2. The undersigned further understands and agrees that
the representations, warranties, covenants and agreements of the undersigned
set forth herein are for the benefit of Parent, the Company and the surviving
corporation in the Merger and will be relied upon by such entities and their
respective counsel and accountants.
3. This Agreement will be binding upon and enforceable
against administrators, executors, representatives, heirs, legatees and
devisees of the undersigned and any pledgees holding the Company Shares as
collateral. If the Merger Agreement is terminated in accordance with its terms
prior to the Effective Time (as defined in the Merger Agreement), this
Agreement will thereupon automatically terminate.
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Very truly yours,
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Name:
Address:
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Shares owned beneficially or of record:
total Shares, consisting of:
------
shares of Company Common Stock; and
------
shares of Company Common Stock
------
subject to options, warrants or other
rights exercisable within 60 days.
Agreed to and accepted:
AURORA ELECTRONICS, INC.
By:
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Name:
Title:
THE CERPLEX GROUP, INC.
By:
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Name:
Title:
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