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Exhibit 99.3
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("Affiliate Agreement") is being executed and
delivered as of May __, 1999 by _________ ("Stockholder") in favor of and for
the benefit of ARTECON, INC., a Delaware corporation ("Artecon") and BOX HILL
SYSTEMS CORP., a New York corporation (the "Company").
RECITALS
A. Stockholder is a stockholder of, and/or is an officer and/or
director of, the Company.
B. Artecon, the Company and BH Acquisition Corp., a wholly owned
subsidiary of the Company ("Merger Sub"), have entered into an Agreement and
Plan of Merger dated as of April 29, 1999 (the "Merger Agreement"), providing
for the merger of Merger Sub into Artecon (the "Merger").
C. Stockholder understands that Stockholder may be deemed an
"affiliate" of the Company for purposes of determining the Company'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 Artecon and the Company 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 (other than that certain proxy granted to Artecon in connection
with the Merger), charges, encumbrances or restrictions of any nature.
Stockholder has the sole right to dispose of the Company Shares and shares the
right to vote the Company Shares with Artecon pursuant to the proxy granted to
Artecon in connection with the Merger.
(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 (other
than that certain proxy granted to Artecon in connection with the Merger),
charges, encumbrances or restrictions of any nature. The Company Shares and the
Company Options are referred to herein collectively as the "Company Securities."
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(c) Stockholder does not own, of record or beneficially,
directly or indirectly, any securities of the Company other than the Company
Securities and any other securities of the Company that Stockholder may acquire
after the date hereof.
(d) 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 or reduce the Stockholder's interest in or risk related to the
Company Securities. Stockholder fully understands the limitations this Affiliate
Agreement places upon Stockholder's ability to sell, transfer or otherwise
dispose of or reduce the Stockholder's interest in or risk related to the
securities of the Company.
(e) Stockholder understands that the representations,
warranties and covenants set forth in this Affiliate Agreement will be relied
upon by the Company and its counsel and accountants for purposes of determining
the Company's eligibility to account for the Merger as a "pooling of interests"
and for purposes of determining whether Artecon and the Company should proceed
with the Merger.
2. PROHIBITIONS AGAINST TRANSFER. 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 Artecon and the Company have been published
by the Company (within the meaning of the applicable "pooling of interests"
accounting requirements), Stockholder shall not sell, transfer, pledge,
hypothecate (including without limitation for margin accounts or hedge the value
of the shares) 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 after the date hereof, whether upon exercise of
a stock option or otherwise), except pursuant to and upon consummation of the
Merger, or (B) any Company Options or other right to purchase any shares of
capital stock of the Company, except pursuant to and upon consummation of the
Merger.
3. 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 Artecon, on the other. The existence of any claim
or cause of action by Stockholder against the Company or Artecon shall not
constitute a defense to the enforcement of any of such covenants or obligations
against Stockholder.
4. 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, Artecon and the Company shall
be entitled (in addition to any other remedy that may be available to Artecon or
the Company) 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 Artecon, the 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 4, and Stockholder irrevocably
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waives any right Stockholder may have to require the obtaining, furnishing or
posting of any such bond or similar instrument.
5. OTHER AGREEMENTS. Nothing in this Affiliate Agreement shall limit
any of the rights or remedies of Artecon or the Company under the Merger
Agreement, or any of the rights or remedies of Artecon or the Company or any of
the obligations of Stockholder under any agreement between Stockholder and
Artecon or the Company, or any certificate or instrument executed by Stockholder
in favor of Artecon or the Company; and nothing in the Merger Agreement or in
any other agreement, certificate or instrument shall limit any of the rights or
remedies of Artecon or the Company or any of the obligations of Stockholder
under this Affiliate Agreement.
6. NOTICES. Any notice or other communication required or permitted
to be delivered to Stockholder, Artecon or the Company 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):
IF TO THE COMPANY:
Box Hill Systems Corp.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Fax: (000) 000-0000
IF TO ARTECON:
Artecon, Inc.
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Fax: (000) 000-0000
IF TO STOCKHOLDER:
_______________
c/o Box Hill Systems Corp.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
7. 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
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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.
8. APPLICABLE LAW.. This Affiliate Agreement is made under, and shall
be construed and enforced in accordance with, the laws of New York applicable to
agreements made and to be performed solely therein, without giving effect to
principles of conflicts of law.
9. WAIVER; TERMINATION. No failure on the part of Artecon or the
Company to exercise any power, right, privilege or remedy under this Affiliate
Agreement, and no delay on the part of Artecon or the 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 power, right, privilege or remedy.
Neither the Company nor Artecon 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 Artecon or the Company, as the case may be; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given. If the Merger Agreement is terminated, this
Affiliate Agreement shall thereupon terminate.
10. FURTHER ASSURANCES. Stockholder shall execute and/or cause to be
delivered to Artecon and the Company such instruments and other documents and
shall take such other actions as Artecon and the Company may reasonably request
to effectuate the intent and purposes of this Affiliate Agreement.
11. ENTIRE AGREEMENT. This Affiliate Agreement, the Merger Agreement
and any Voting Agreement between Stockholder, Artecon and the Company
collectively set forth the entire understanding of Artecon, the Company and
Stockholder relating to the subject matter hereof and thereof and supersede all
other prior agreements and understandings between Artecon and the Company on the
one hand and Stockholder on the other hand, relating to the subject matter
hereof and thereof.
12. NON-EXCLUSIVITY. The rights and remedies of Artecon and the
Company hereunder are not exclusive of or limited by any other rights or
remedies which Artecon or the Company may have, whether at law, in equity, by
contract or otherwise, all of which shall be cumulative (and not alternative).
13. 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 Artecon, the Company and Stockholder.
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14. 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. Artecon and the Company may freely assign
any or all of their respective rights under this Affiliate Agreement, in whole
or in part, to any other person or entity without obtaining the consent or
approval of Stockholder.
15. BINDING NATURE. Subject to Section 14, this Affiliate Agreement
will inure to the benefit of Artecon and the Company and their respective
successors and assigns and will be binding upon Stockholder and Stockholder's
representatives, executors, administrators, estate, heirs, successors and
assigns.
16. SURVIVAL. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the consummation
of the Merger.
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Stockholder has executed this Affiliate Agreement on May __, 1999.
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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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