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EXHIBIT 99.3
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("Affiliate Agreement") is being executed and
delivered as of December 23, 1998 by XXXXXXX XXXXXXXX XX ("Stockholder") in
favor of and for the benefit of SPATIAL TECHNOLOGY INC., a Delaware corporation
("Spatial").
RECITALS
A. Stockholder is a stockholder and an affiliate of InterData
Access, Inc., an Illinois corporation (the "Company").
B. Spatial, the Company and Xxxxxxx Xxxxxxxx, ProStep
Produktdatentechnologie GMBH, Xxxxxxxx Xxxx and Xxxxxx Xxxxxxxx ("Selling
Stockholders"), have entered into a Stock Purchase Agreement dated as of
December 23, 1998 (the "Purchase Agreement"), providing for the purchase of all
the outstanding shares of the Company by Spatial (the "Purchase"). The Purchase
Agreement contemplates that, upon consummation of the Purchase, (i) holders of
shares of the common stock of the Company ("Company Common Stock") will receive
shares of common stock of Spatial ("Spatial Common Stock") in exchange for their
shares of Company Common Stock and (ii) the Company will become a wholly-owned
subsidiary of Spatial. It is accordingly contemplated that Stockholder will
receive shares of Spatial Common Stock in the Purchase.
C. Stockholder understands that Stockholder may be deemed an
"affiliate" of the Company for purposes of determining Spatial's eligibility to
account for the Purchase 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
1. REPRESENTATION AND WARRANTIES OF STOCKHOLDER. Stockholder
represents and warrants to Spatial as follows:
(a) Stockholder has carefully read this Affiliate Agreement and, to
the extent Stockholder felt necessary, has discussed with counsel the
limitations imposed on Stockholder's ability to sell, transfer or otherwise
dispose of the Company Shares and the shares of Spatial Common Stock that
Stockholder is to receive in the Purchase (the "Spatial Shares"). Stockholder
fully understands the limitations this Affiliate Agreement places upon
Stockholder's ability to sell, transfer or otherwise dispose of the Company
Shares and the Spatial Shares.
(b) Stockholder understands that the representations, warranties and
covenants set forth in this Affiliate Agreement will be relied upon by Spatial
and its counsel and accountants for purposes of determining Spatial's
eligibility to account for the Purchase as a
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"pooling of interests" and for purposes of determining whether Spatial should
proceed with the Purchase.
2. PROHIBITIONS AGAINST TRANSFER
(a) Stockholder agrees that, during the period from the date 30 days
prior to the date of consummation of the Purchase through the date on which
financial results covering at least 30 days of post-Purchase combined operations
of Spatial and the Company have been published by Spatial (within the meaning of
the applicable "pooling of interests" accounting requirements) (the "Restricted
Period"):
(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 Purchase, or (B) any option or other right to purchase
any shares of capital stock of the Company, except by exercise of an option or
pursuant to and upon consummation of the Purchase; 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 Spatial (including without limitation the Spatial Shares and
any additional shares of capital stock of Spatial 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 Spatial, except by
exercise of an option.
(b) Notwithstanding the restrictions contained in Section 3(a),
Stockholder may transfer or otherwise reduce his risk relative to shares of
Company Common Stock or Spatial Common Stock during the Restricted Period if (i)
Spatial, after consulting with its independent accountants, determines that such
transfer or reduction in risk will not adversely affect the ability of Spatial
to account for the Purchase as a "pooling of interests," and (ii) Spatial
consents in writing to such transfer or reduction in risk (it being understood
that Spatial will not unreasonably withhold or delay such consent).
(c) Spatial agrees to use its best efforts to publish financial
results covering at least thirty (30) days of post-Purchase combined operations
of Spatial and the Company no later than sixty (60) days following the date of
this Affiliate Agreement.
3. STOP TRANSFER INSTRUCTIONS; LEGEND.
Stockholder acknowledges and agrees that (a) stop transfer
instructions will be given to Spatial's transfer agent with respect to the
Spatial 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):
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"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE
ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED."
It is understood and agreed that the legend set forth above shall be removed by
delivery of substitute certificates without such legend if Stockholder shall
have obtained an opinion of counsel reasonably acceptable to Spatial to the
effect that such legend is not required for purposes of the Securities Act.
4. 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 Spatial, on the other. The existence of any claim
or cause of action by Stockholder against the Company or Spatial shall not
constitute a defense to the enforcement of any of such covenants or obligations
against Stockholder.
5. SPECIFIC PERFORMACE. 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, Spatial shall be entitled (in
addition to any other remedy that may be available to Spatial) 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.
6. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall limit
any of the rights or remedies of Spatial under the Purchase Agreement, or any of
the rights or remedies of Spatial or any of the obligations of Stockholder under
any agreement between Stockholder and Spatial or any certificate or instrument
executed by Stockholder in favor of Spatial; and nothing in the Purchase
Agreement or in any other agreement, certificate or instrument shall limit any
of the rights or remedies of Spatial or any of the obligations of Stockholder
under this Affiliate Agreement.
7. NOTICES. Any notice or other communication required or permitted to
be delivered to Stockholder or Spatial under this Affiliate Agreement shall be
in writing and shall be deemed properly delivered, given and received (a) upon
receipt when delivered by hand, or (b) two business days after sent by courier
or express delivery service or by facsimile, provided that in each case the
notice or other communication is sent 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 SPATIAL:
Spatial Technology Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
IF TO STOCKHOLDER:
Xxxxxxx Xxxxxxxx XX
0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
8. 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.
9. APPLICABLE LAW; JURIDICTION. THIS AFFILIATE AGREEMENT IS MADE
UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
COLORADO 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 Colorado; (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 District of Colorado; (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 8.
10. WAIVER; TERMINATION. No failure on the part of Spatial to exercise
any power, right, privilege or remedy under this Affiliate Agreement, and no
delay on the part of Spatial in exercising any power, right, privilege or remedy
under this Affiliate Agreement, shall operate as
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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 power, right, privilege or remedy.
Spatial shall not 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 Spatial; and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given. If the
Purchase Agreement is terminated, this Affiliate Agreement shall thereupon
terminate.
11. 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.
12. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to Spatial such instruments and other documents and shall take such
other actions as Spatial may reasonably request to effectuate the intent and
purposes of this Affiliate Agreement.
13. ENTIRE AGREEMENT. This Affiliate Agreement, the Purchase Agreement
and any other agreement referred to in this Affiliate Agreement between
Stockholder and Spatial collectively set forth the entire understanding of
Spatial and Stockholder relating to the subject matter hereof and thereof and
supersede all other prior agreements and understandings between Spatial and
Stockholder relating to the subject matter hereof and thereof.
14. NON-EXCLUSIVITY. The rights and remedies of Spatial hereunder are
not exclusive of or limited by any other rights or remedies which Spatial may
have, whether at law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative).
15. 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 Spatial and Stockholder.
16. 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. Spatial 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.
17. BINDING NATURE. Subject to Section 17, this Affiliate Agreement
will inure to the benefit of Spatial and its successors and assigns and will be
binding upon Stockholder and Stockholder's representatives, executors,
administrators, estate, heirs, successors and assigns.
18. SURVIVAL. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the consummation
of the Purchase.
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Stockholder has executed this Affiliate Agreement as of the date first
set forth above.
/s/ Xxxxxxx Xxxxxxxx XX
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(Signature)
XXXXXXX XXXXXXXX XX
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(Print Name)
NUMBER OF SHARES OF
COMMON STOCK OF THE COMPANY:
665,000
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