EXHIBIT 2.3
AFFILIATE AGREEMENT
This AFFILIATE AGREEMENT ("AGREEMENT") dated as of September 9, 1997, is
by and among Silicon Valley Group, Inc., a Delaware corporation ("PARENT"),
Xxxxxxx Laboratories, Inc., a California corporation (the "COMPANY"), and the
undersigned affiliate ("AFFILIATE") of the Company.
R E C I T A L S
A. Parent and the Company have entered into an Agreement and Plan of
Reorganization ("MERGER AGREEMENT") pursuant to which Parent and the Company
intend to enter into a business combination transaction to pursue their long
term business strategies (the "MERGER") (capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them
in the Merger Agreement).
B. Pursuant to the Merger, at the Effective Time the outstanding
shares of the Company's Common Stock, including any shares owned by
Affiliate, will be converted into the right to receive shares of Parent
Common Stock as set forth in the Merger Agreement.
C. Affiliate has been advised that Affiliate may be deemed to be an
"affiliate" of the Company, as the term "affiliate" is used (i) for purposes
of paragraphs (c) and (d) of Rule 145 of the Rules and Regulations of the
Securities and Exchange Commission (the "SEC") and (ii) in the SEC's
Accounting Series Releases 130 and 135, as amended, although nothing
contained herein shall be construed as an admission by Affiliate that
Affiliate is in fact an affiliate of the Company.
D. It is a condition to consummation of the Merger pursuant to the
Merger Agreement that (i) the attorneys for each of Parent and the Company
will have delivered written opinions that the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "CODE"), and (ii) the independent accounting
firms that audit the annual financial statements of Parent and the Company
will have delivered their written concurrences with the conclusions of
management of Parent and the Company to the effect that the Merger will be
accounted for as a pooling of interests under Accounting Principles Board
Opinion No. 16.
E. The execution and delivery of this Agreement by Affiliate is a
material inducement to Parent to enter into the Merger Agreement.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree
as follows:
1. ACKNOWLEDGMENTS BY AFFILIATE. Affiliate acknowledges and
understands that the representations, warranties and covenants by Affiliate
set forth herein will be relied upon by Parent, the Company, and their
respective affiliates, counsel and accounting firms, and that substantial
losses and damages may be incurred by these persons if Affiliate's
representations, warranties or covenants are breached. Affiliate has
carefully read this Agreement and the Merger Agreement and has discussed the
requirements of this Agreement with Affiliate's professional advisors, who
are qualified to advise Affiliate with regard to such matters.
2. COMPLIANCE WITH RULE 145 AND THE ACT.
(a) Affiliate has been advised that (i) the issuance of shares of
Parent Common Stock in connection with the Merger is expected to be effected
pursuant to a Registration Statement on Form S-4 under the Securities Act of
1933, as amended (the "ACT"), and as such will not be deemed "restricted
securities" within the meaning of Rule 144 promulgated thereunder and resale
of such shares will not be subject to any restrictions other than as set
forth in Rule 145 of the Act unless otherwise transferred pursuant to an
effective registration statement under the Act or an appropriate exemption
from registration, (ii) Affiliate may be deemed to be an affiliate of the
Company, and (iii) no sale, transfer or other disposition by Affiliate of any
Parent Common Stock received by Affiliate will be registered under the Act.
Affiliate accordingly agrees not to sell, transfer or otherwise dispose of
any Parent Common Stock issued to Affiliate in the Merger unless (x) such
sale, transfer or other disposition is made in conformity with the
requirements of Rule 145(d) promulgated under the Act, or (y) Affiliate
delivers to Parent a written opinion of counsel, reasonably acceptable to
Parent in form and substance, that such sale, transfer or other disposition
is otherwise exempt from registration under the Act.
(b) Parent will give stop transfer instructions to its transfer
agent with respect to any Parent Common Stock received by Affiliate pursuant
to the Merger and there will be placed on the certificates representing such
Parent Common Stock, or any substitutions therefor, a legend stating in
substance:
"THE SHARES REPRESENTED BY THIS
CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145
PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, APPLIES AND MAY
ONLY BE TRANSFERRED IN CONFORMITY
WITH RULE 145(d) UNDER SUCH ACT OR IN
ACCORDANCE WITH A WRITTEN OPINION OF
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COUNSEL, REASONABLY ACCEPTABLE TO
THE ISSUER IN THE FORM AND SUBSTANCE
THAT SUCH TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend) and Parent shall so instruct its transfer
agent, if Affiliate delivers to Parent (i) satisfactory written evidence that
the shares have been sold in compliance with Rule 145 (in which case, the
substitute certificate will be issued in the name of the transferee), or (ii)
an opinion of counsel, in form and substance reasonably satisfactory to the
effect that public sale of the shares by the holder thereof is no longer
subject to Rule 145.
3. COVENANTS RELATED TO POOLING OF INTERESTS. In accordance with SAB
65, until the second day after the day that Parent publicly announces
financial results covering at least 30 days of combined operations of Parent
and the Company, Affiliate will not sell, exchange, transfer, pledge,
distribute, or otherwise dispose of or grant any option, establish any
"short" or put-equivalent position with respect to or enter into any similar
transaction (through derivatives or otherwise) intended or having the effect,
directly or indirectly, to reduce its risk relative to any securities, or
shares of Parent Common Stock received by Affiliate in connection with the
Merger. Parent may, at its discretion, cause a restrictive legend to the
foregoing effect to be placed on Parent Common Stock certificates issued to
Affiliate in the Merger and place a stock transfer notice consistent with the
foregoing with its transfer agent with respect to the certificates, provided
that such restrictive legend shall be removed and/or such notice shall be
countermanded promptly upon expiration of the necessity therefor at the
request of Affiliate.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS RELATED TO TAX EFFECTS OF
THE MERGER.
(a) Affiliate has good and valid title to the number of shares of
the Company's Common Stock (and the number of options to purchase the
Company's Common Stock) set forth on the last page of this Agreement free and
clear of any liens, pledges, security interests, adverse claims, equities,
options, proxies, charges, encumbrances or restrictions of any nature and did
not acquire any of the Company's Common Stock in contemplation of the Merger;
(b) Affiliate has not engaged in a Sale (as defined below) of any
shares of the Company's Common Stock in contemplation of the Merger;
(c) Affiliate has no plan or intention (a "PLAN") to engage in a
sale, exchange, transfer, redemption or reduction in any way of Affiliate's
risk of
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ownership by short sale or otherwise, or other disposition, directly or
indirectly (such actions being collectively referred to herein as a "Sale")
of shares of Parent Common Stock to be received by Affiliate in the Merger;
(d) If Affiliate is a partnership, then the term "sale" as used in
paragraph (c) above shall be deemed to include any distribution to the
partners of the undersigned unless no recipient of any such distribution will
receive shares of the Company's Common Stock representing 1% or more of the
shares of the Company's Common Stock presently outstanding;
(e) Affiliate is not aware of, or participating in, any Plan on
the part of the Affiliates of the Company to engage in a Sale or Sales of the
Parent Common Stock to be received in the Merger; and
(f) Affiliate understands that Parent, the Company and their
respective affiliates, as well as legal counsel to Parent and the Company (in
connection with rendering their opinions that the Merger will be a
"reorganization" within the meaning of Section 368(a) of the Code) will be
relying on (a) the truth and accuracy of the representations contained herein
and (b) Affiliate's performance of the obligations set forth herein.
5. SPECIFIC PERFORMANCE. Affiliate agrees that irreparable damages
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms, or were otherwise
breached. It is, accordingly, agreed that Parent shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement,
and to enforce specifically the terms and provisions thereof, in addition to
any other remedy to which Parent may be entitled at law or in equity.
6. MISCELLANEOUS.
(a) For the convenience of the parties hereto, this Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
document.
(b) This Agreement shall be enforceable by, and shall inure to the
benefit of and be binding upon, the parties hereto and their respective
successors and assigns. As used herein, the term "successors and assigns"
shall mean, where the context so permits, heirs, executors, administrators,
trustees and successor trustees, and personal and other representatives.
(c) This Agreement shall be governed by and construed, interpreted
and enforced in accordance with the internal laws of the State of California
(without regard to the principles of conflict of laws thereof).
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(d) If a court of competent jurisdiction determines that any
provision of this Agreement is not enforceable or enforceable only if limited
in time and/or scope, this Agreement shall continue in full force and effect
with such provision stricken or so limited.
(e) This Agreement shall not be modified or amended, or any right
hereunder waived or any obligation excused, except by a written agreement
signed by each of the parties hereto.
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Executed as of the date shown on the first page of this Agreement.
SILICON VALLEY GROUP, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
XXXXXXX LABORATORIES, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
________________________________
AFFILIATE
By: ___________________________________
Name of Affiliate: ____________________
Name of Signatory (if different from
Affiliate):
_______________________________________
Title of Signatory
(if applicable): ______________________
Number of shares of the Company's Common Stock beneficially owned by Affiliate:
_______________________________________
Number of shares of the Company's Common Stock subject to options beneficially
owned by Affiliate:
_______________________________________
***AFFILIATE AGREEMENT***
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