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EXHIBIT 10.3
STOCKHOLDER'S AGREEMENT
THIS STOCKHOLDER'S AGREEMENT (the "Agreement") is executed as of March 20,
1997, by and between Olicom A/S, a corporation organized under the laws of the
Kingdom of Denmark ("Olicom") and Xxxxxxx Xxxxxxxxx (the "Stockholder").
Concurrently with the execution and delivery of this Agreement, Olicom, PW
Acquisition Corporation, a Delaware corporation ("MergerSub"), and CrossComm
Corporation, a Delaware corporation ("CrossComm"), have executed and delivered
an Agreement and Plan of Reorganization dated as of March 20, 1997 (the "Merger
Agreement"), providing for the merger of MergerSub into CrossComm, whereby
CrossComm shall be a wholly-owned subsidiary of Olicom immediately following
the Effective Time (as defined in the Merger Agreement) (the "Merger").
The Stockholder is a holder of 1,574,125 outstanding shares of CrossComm
Common Stock.
In consideration of the execution and delivery of the Merger Agreement by
Olicom, the Stockholder agrees to (i) vote the Shares so as to facilitate
consummation of the Merger, and (ii) to Dispose of shares of Olicom Common
Stock only as provided herein.
NOW, THEREFORE, in consideration of the mutual promises and the mutual
covenants and agreements contained herein, the parties agree as set forth
below.
1. Defined Terms. Any capitalized terms not defined herein shall have
the same meaning as set forth in the Merger Agreement.
"Disposition" (and its correlative meaning, "Dispose") shall mean any
offer to sell, contract to sell or otherwise sell, dispose of, loan, pledge,
grant a security interest in or any other rights with respect to Shares or
Olicom Securities (as defined herein).
"Expiration Date" shall mean the earlier of (i) the Effective Time (as
defined in the Merger Agreement) or (ii) the date on which the Merger Agreement
shall be terminated pursuant to Article VII of the Merger Agreement.
"Shares" shall include shares of CrossComm Common Stock owned as of
the date hereof, together with any shares of CrossComm Common Stock which the
Stockholder purchases or otherwise acquires after the execution and delivery of
this Agreement and prior to the Expiration Date.
2. Agreement to Vote Shares. At every meeting of the stockholders of
CrossComm called with respect to any of the following, and at any adjournment
thereof, the Stockholder shall vote the Shares: (i) in favor of approval of
the Merger Agreement and the Merger and any
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matter which could reasonably be expected to facilitate the Merger and (ii)
against any Acquisition Proposal (as defined in the Merger Agreement). This
Agreement is intended to bind the Stockholder only with respect to the specific
matters set forth herein, and shall not prohibit the Stockholder from acting in
accordance with his fiduciary duties as an officer and director of CrossComm.
In the event that the material terms and provisions of the Merger Agreement are
amended, the obligations of the Stockholder pursuant to Section 2 shall
terminate unless the Stockholder consents to such amendment(s), such consent
not to be unreasonably withheld.
3. Disposition Matters.
3.1 Rule 145. The Stockholder has been advised that as of the
date of this Agreement he may be deemed to be an "affiliate" of CrossComm, as
the term "affiliate" is defined for purposes of paragraphs (c) and (d) of Rule
145 of the Rules and Regulations of the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"). The
Stockholder will not Dispose of any Shares unless at such time either: (i) such
transaction shall be permitted pursuant to the provisions of Rule 145 under the
Securities Act, (ii) he shall have furnished to Olicom an opinion of counsel,
reasonably satisfactory to Olicom, to the effect that no registration under the
Securities Act would be required in connection with the proposed Disposition;
or (iii) a registration statement under the Securities Act covering the
proposed Disposition shall be effective under the Securities Act.
3.2 Olicom Corporate Policy Statement. During such period as he
is a director of Olicom, the Stockholder agrees to comply with the terms and
provisions of Olicom's Corporate Policy Statement, as in effect from time to
time (the "CPS"). Without limiting the generality of the foregoing, the
Stockholder acknowledges that the CPS requires that he pre-clear all
transactions involving Olicom securities and securities (other than a
broad-based market basket or index) that relate to or derive any significant
part of their value from Olicom securities (including, without limitation,
puts, calls and similar instruments) (collectively, "Olicom Securities") as
provided in the CPS, and that the CPS prohibits transactions by directors
involving Olicom Securities during certain periods of each quarter.
3.3 Agreement to Resign. In the event that at any time the
Stockholder beneficially holds less than 80% of the Balance Shares (as defined
herein), the Stockholder agrees that he will immediately resign from the Board
of Directors of Olicom. As used herein, the term "Balance Shares" shall mean
the number of shares of Olicom Common Stock received by the Stockholder
pursuant to the Merger, net of 150,000 shares of Olicom Common Stock that the
Stockholder shall be permitted to sell in the manner set forth herein for the
purpose providing liquidity for the satisfaction of tax obligations (and the
sale of same by the Stockholder consistent with the provisions hereof shall not
affect the Stockholder's agreements pursuant to this Section 3.3).
3.4 Clearance of Transactions. Olicom agrees to cause its counsel
to use its best efforts to clear any transactions by the Stockholder involving
Olicom Securities within one
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business day after having received documentation (by telecopier or otherwise)
sufficient to support the Disposition of Olicom Securities under applicable
securities laws.
3.5 Restrictive Legends. In consideration of the covenants of the
Stockholder herein with respect to the Disposition of Olicom Securities, Olicom
agrees to issue to the Stockholder certificates evidencing Shares without the
placement of restrictive legends thereon.
3.6 Record Name. The Stockholder agrees that all Olicom
Securities beneficially held by him will be held only in record name, and that
he will not hold any such securities in "street" or nominee name. The
Stockholder hereby agrees and consents to the entry of stop transfer
instructions with Olicom's transfer agent against the transfer of any Olicom
Securities held by the Stockholder except in compliance with this Agreement.
3.7 Manner of Distribution. In any event, and without diminishing
the effect of the foregoing, the Stockholder hereby agrees that he shall effect
any Disposition of Olicom Securities to the public, directly or indirectly,
through Xxxxxxxxxx Securities, Xxxxxxx Xxxxx & Co. or Alex. Xxxxx & Sons
Incorporated.
3.8 Termination of Provisions. In the event that the Stockholder
resigns from the Board of Directors of Olicom, the provisions of Sections
3.2-3.5 shall terminate; provided, however, that Sections 3.1, 3.6 and 3.7
shall continue in effect for so long as the Stockholder is subject to the
provisions of Rule 145 under the Securities Act.
4. Representations, Warranties and Covenants of the Stockholder. The
Stockholder hereby makes the following representations, warranties and
covenants to Olicom:
4.1 Ownership of Shares. The Stockholder (i) is the holder and
beneficial owner of the Shares, which at the date hereof and at all times until
the Expiration Date will be free and clear of any liens, claims, options,
charges or other encumbrances; (ii) does not beneficially own any shares of
CrossComm Common Stock other than the Shares; and (iii) has full power and
authority to make and enter into and carry out the terms of this Agreement.
4.2 No Voting Trusts and Agreements. The Stockholder will not,
and will not permit any entity under the Stockholder's control, to deposit any
shares of CrossComm Common Stock held by the Stockholder or such entity in a
voting trust or subject any shares of CrossComm Common Stock held by the
Stockholder or such entity to any arrangement or agreement with respect to the
voting of such shares of CrossComm Common Stock, other than agreements entered
into with Olicom.
4.3 No Proxy Solicitations. The Stockholder will not, and will
not permit any entity under the Stockholder's control to, (i) solicit proxies
or become a participant in a solicitation in opposition to or competition with
the consummation of the Merger or otherwise encourage or assist any party in
taking or planning any action which would compete with, restrain or otherwise
serve to interfere with or inhibit the timely consummation of the Merger in
accordance
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with the terms of the Merger Agreement; (ii) initiate a Stockholder's vote or
action by consent of Stockholders in CrossComm in opposition to or in
competition with the consummation of the Merger; or (iii) become a member of a
group with respect to any voting securities of CrossComm for the purpose of
opposing or competing with the consummation of the Merger.
5. Representations, Warranties and Covenants of Olicom. Olicom
represents, warrants and covenants to the Stockholder as follows:
5.1 Due Authorization. This Agreement has been authorized by all
necessary corporate action on the part of Olicom and has been duly executed by
a duly authorized officer of Olicom.
5.2 Validity; No Conflict. This Agreement constitutes the legal,
valid and binding obligation of Olicom. Neither the execution of this
Agreement by Olicom nor the consummation of the transactions contemplated
hereby will result in a breach or violation of the terms of any agreement by
which Olicom is bound or of any decree judgment, order, law or regulation now
in effect of any court or other governmental body applicable to Olicom.
5.3 Current Public Information. During such period as the
Stockholder is subject to Rule 145, Olicom agrees to "make available adequate
public information" (as defined in Rule 144 of the Rules and Regulations under
the Securities Act).
6. Additional Documents. The Stockholder and Olicom hereby covenant and
agree to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Olicom or the Stockholder, as the case may be, to
carry out the intent of this Agreement.
7. Assignment; Binding Agreement. Neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any
of the parties without the prior written consent of the other. This Agreement
shall be binding on, and inure to the benefit of the parties hereto and their
respective representatives, successors and permitted assigns.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by an overnight courier service to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by the notice):
If to Olicom:
Olicom A/S
Nybrovej 114
XX-0000 Xxxxxx
Xxxxxxx
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Copy to:
Xxxxxxxx X. Xxxxxxxx
Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
If to the Stockholder:
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxx, Xxxxxxxxxxxxx 00000
All notices shall be effective on receipt.
9. Disputes. Any dispute, controversy or claim arising out of or
relating to this Agreement, including any annexes hereto, or the breach,
termination or validity hereof, shall be finally settled by arbitration by one
arbitrator in Boston, Massachusetts, pursuant to the Commercial Arbitration
Rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court of competent jurisdiction. The
arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. Section
1-16.
10. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the parties hereto. No waiver by a party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Together with the Merger
Agreement, this Agreement contains the entire understanding of the parties in
respect of the subject matter hereof, and supersedes all prior negotiations and
understandings between the parties with respect to such subject matter. This
Agreement shall be governed and construed in accordance with the laws of the
State of Delaware, without giving effect to the principles of conflicts of law.
11. Specific Performance: Injunctive Relief. The parties hereto
acknowledge that Olicom will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies which may be available to Olicom upon such violation, Olicom
shall have the right to enforce such covenants and agreements by specific
performance, by injunctive relief or by any other means available to it at law
or in equity. In any such proceeding, the Stockholder waives the defense that
Olicom has an adequate remedy at law.
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12. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but both of which together will
constitute one and the same instrument.
13. Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
14. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
OLICOM A/S
By: /s/Lars Xxxx Xxxxxxx
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Lars Xxxx Xxxxxxx,
Managing Director
/s/Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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