EXHIBIT 99.4
AFFILIATE AGREEMENT
THIS AFFILIATE AGREEMENT ("Affiliate Agreement") is being executed and delivered
as of January 12, 2000 by ___________ ("Stockholder") in favor of and for the
benefit of APPLIED MATERIALS, INC., a Delaware corporation ("Parent").
RECITALS
A. Stockholder is a stockholder of, and is an officer and/or director of,
Etec Systems, Inc., a Nevada corporation (the "Company").
B. Parent, the Company and Boston Acquisition Sub, Inc., a wholly owned
subsidiary of Parent ("Merger Sub"), have entered into an Agreement and Plan of
Reorganization dated as of January 12, 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 Parent: (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. Stockholder has
the right to vote and to dispose of the Company Shares.
(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 other than (i) those set forth in the
option agreement and option plan pursuant to which such Company Options are
outstanding, and (ii) those arising under community property laws.
(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.
(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 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
and its counsel and accountants for purposes of determining Parent's eligibility
to account for the Merger as a "pooling of interests" and for purposes of
determining whether Parent should proceed with the Merger.
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
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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:
(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Securities Act;
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 under the Securities Act, as
evidenced by a broker's letter and a representation letter executed by
Stockholder (satisfactory in form and content to Parent) stating that such
requirements have been met;
(iii) counsel reasonably satisfactory to Parent shall have advised
Parent in a written opinion letter (satisfactory in form and content to
Parent), upon which Parent may rely, that such sale, transfer or other
disposition will be exempt from the registration requirements of the
Securities Act; or
(iv) an authorized representative of the SEC shall have rendered
written advice to Stockholder to the effect that the SEC would take no
action, or that the staff of the SEC would not recommend that the SEC take
action, with respect to such sale, transfer or other disposition, and a
copy of such written advice and all other related communications with the
SEC shall have been delivered to Parent.
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(d) 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 JANUARY 12, 2000, BETWEEN THE
REGISTERED HOLDER HEREOF AND THE ISSUER, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICES OF THE ISSUER."
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 Parent, on the other. The existence of any claim
or cause of action by Stockholder against the Company or Parent
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shall not constitute a defense to the enforcement of any of such covenants or
obligations against Stockholder.
5. 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 shall be entitled (in
addition to any other remedy that may be available to Parent) 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 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 5, and
Stockholder irrevocably waives any right he may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
6. 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 any of the obligations of Stockholder
under any agreement between Stockholder and Parent or any certificate or
instrument executed by Stockholder in favor of Parent; 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.
7. 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 (a) when
delivered by hand, or by courier or express delivery service or by facsimile, or
(b) two business days after sent by registered mail 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 parties hereto):
if to Parent:
Applied Materials, Inc.
0000 Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Mail Stop: 2061
Facsimile: (000) 000-0000
and
Attention: Xxxxxxxxx Xxxxx
Mail Stop: 1954
Facsimile: (000) 000-0000
if to Stockholder:
at the address set forth below Stockholder's signature on the
signature
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page hereof.
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; 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 County of Santa Xxxxx, 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.
10. Waiver; Termination. No failure on the part of Parent to exercise any
power, right, privilege or remedy under this Affiliate Agreement, and no delay
on the part of Parent 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. Parent 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 Parent; 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.
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.
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12. Further Assurances. Stockholder shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Affiliate Agreement.
13. Entire Agreement. This Affiliate Agreement, the Reorganization
Agreement and any Voting 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.
14. Non-Exclusivity. The rights and remedies of Parent hereunder are not
exclusive of or limited by any other rights or remedies that Parent 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 Parent 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. 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.
17. Binding Nature. Subject to Section 16, this Affiliate Agreement will
inure to the benefit of Parent 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 Merger.
(Remainder of page left blank intentionally)
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Stockholder has executed this Affiliate Agreement on January __, 2000.
__________________________________________
(Signature)
__________________________________________
(Print Name)
Address:__________________________________
__________________________________
Facsimile:_________________________________
NUMBER OF OUTSTANDING SHARES OF
COMMON STOCK OF THE COMPANY
HELD BY STOCKHOLDER:
_______________________________
NUMBER SHARES OF COMMON STOCK OF THE COMPANY
SUBJECT TO OPTIONS HELD BY STOCKHOLDER:
_______________________________
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