EXHIBIT 10.5
FORM OF
USR STOCKHOLDER AGREEMENT
THIS USR STOCKHOLDER AGREEMENT is made and entered into as of February 26,
1997 by and between 3Com Corporation, a California corporation ("3Com"), and the
undersigned stockholder ("Stockholder") of U.S. Robotics Corporation, a Delaware
corporation ("USR"). Capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
A. 3Com and USR have entered into that certain Agreement and Plan of Merger,
dated as of February 26, 1997 (the "Merger Agreement"), pursuant to which TR
Acquisitions Corporation, a Delaware corporation and a wholly-owned subsidiary
of 3Com ("Sub"), will merge with and into USR (the "Merger"), with USR surviving
the Merger and becoming a wholly-owned subsidiary of 3Com;
B. Pursuant to the Merger, at the Effective Time, outstanding shares of USR
Common Stock, including any USR Common Stock owned by Stockholder, will be
converted into the right to receive shares of 3Com Common Stock;
C. It will be a condition to the effectiveness of the Merger that (i) legal
counsel to USR and 3Com will have delivered their respective opinions to the
effect 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 USR and 3Com will have delivered their respective opinions to the
effect that the Merger will be accounted for as a pooling of interests;
D. The execution and delivery of this Stockholder Agreement by Stockholder
is a material inducement to 3Com to enter into the Merger Agreement; and
E. Stockholder has been advised that Stockholder may be deemed to be an
"affiliate" of USR, as such term is used (i) for purposes of paragraphs (c) and
(d) of Rule 145 of the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), and (ii) in the
Commission's Accounting Series Releases 130 and 135, as amended, although
nothing contained herein shall be construed as an admission by Stockholder that
Stockholder is in fact an affiliate of USR.
NOW, THEREFORE, intending to be legally bound, the parties hereby agree as
follows:
1. ACKNOWLEDGMENTS BY STOCKHOLDER. Stockholder acknowledges and
understands that the representations, warranties and covenants made by
Stockholder set forth herein will be relied upon by 3Com, USR, and their
respective affiliates, counsel and accounting firms, and that substantial losses
and damages may be incurred by such persons if Stockholder's representations,
warranties or covenants are breached. Stockholder has carefully read this
Stockholder Agreement and the Merger Agreement and has consulted with such legal
counsel and financial advisers as Stockholder has deemed appropriate in
connection with the execution of this Stockholder Agreement.
2. COMPLIANCE WITH RULE 145 AND THE ACT.
(a) Stockholder has been advised that (i) the issuance of shares of 3Com
Common Stock in connection with the Merger is expected to be effected
pursuant to a Registration Statement filed by 3Com on Form S-4, and the
resale of such shares will be subject to the restrictions set forth in Rule
145 under the Act unless such shares are otherwise transferred pursuant to
an effective
1
registration statement under the Act or an appropriate exemption from
registration, and (ii) Stockholder may be deemed to be an affiliate of USR.
Stockholder accordingly agrees not to sell, pledge, transfer or otherwise
dispose of any shares of 3Com Common Stock issued to Stockholder in the
Merger unless (i) such sale, pledge, transfer or other disposition is made
in conformity with the requirements of Rule 145 under the Act, (ii) such
sale, pledge, transfer or other disposition is made pursuant to an effective
registration statement under the Act, or (iii) Stockholder delivers to 3Com
a written opinion of counsel, in form and substance reasonably acceptable to
3Com, to the effect that such sale, pledge, transfer or other disposition is
otherwise exempt from registration under the Act.
(b) 3Com will give stop transfer instructions to its transfer agent with
respect to any 3Com Common Stock received by Stockholder pursuant to the
Merger, and there will be placed on the certificates representing such 3Com
Common Stock, or any substitutions therefor, legends stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED PURSUANT TO A
BUSINESS COMBINATION WHICH IS BEING ACCOUNTED FOR AS A POOLING OF
INTERESTS, IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES, AND MAY ONLY BE TRANSFERRED IN CONFORMITY
WITH RULE 145, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR IN
ACCORDANCE WITH A WRITTEN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
THE ISSUER, IN FORM AND SUBSTANCE TO THE EFFECT THAT SUCH TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. SUCH SHARES
MAY NOT BE TRANSFERRED UNTIL SUCH TIME AS 3COM SHALL HAVE PUBLISHED
FINANCIAL RESULTS COVERING AT LEAST 30 DAYS OF COMBINED OPERATIONS WITH
USR."
and
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH
THE REQUIREMENTS OF THE CONDITIONS SPECIFIED IN THE STOCKHOLDER AGREEMENT
DATED AS OF FEBRUARY 26, 1997 BETWEEN THE HOLDER OF THIS CERTIFICATE AND
3COM, A COPY OF WHICH AGREEMENT MAY BE INSPECTED BY THE HOLDER OF THIS
CERTIFICATE AT THE PRINCIPAL OFFICES OF 3COM OR FURNISHED BY 3COM TO THE
HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST AND WITHOUT CHARGE."
The legend set forth above shall be removed (by delivery of a substitute
certificate without such legend), and 3Com shall so instruct its transfer agent,
if a registration statement respecting the sale of the shares has been declared
effective under the Act or if Stockholder delivers to 3Com (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
acceptable to 3Com, to the effect that sale of the shares by the holder thereof
is no longer subject to Rule 145.
3. COVENANTS RELATED TO POOLING OF INTERESTS.
(a) During the period beginning on the date 30 days prior to the Closing
Date (as defined in the Merger Agreement) and ending on the day after 3Com
has published (within the meaning of Accounting Series Release No. 135)
financial results covering at least thirty (30) days of combined operations
of 3Com and USR (the "Restricted Period"), Stockholder 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 to have or having the effect, directly or indirectly, of reducing
its risk relative to (i) any
2
shares of USR Common Stock or 3Com Common Stock owned by Stockholder or (ii)
any shares of 3Com Common Stock received by Stockholder in connection with
the Merger.
(b) Notwithstanding anything to the contrary contained in Section 3(a),
Stockholder will be permitted, during the Restricted Period, (i) to 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 to have or having the effect, directly or indirectly, of reducing
its risk relative to any shares of USR Common Stock or 3Com Common Stock
received by Stockholder in connection with the Merger (a "Transfer") equal
to the lesser of (A) ten percent (10%) of the USR Common Stock, or
equivalent post-Merger 3Com Common Stock, owned by Stockholder and (B)
Stockholder's pro rata portion of one percent (1%) of the total number of
outstanding shares of USR Common Stock, or equivalent post-Merger 3Com
Common Stock, owned by Stockholder and all other stockholders of USR (in
each of clause (A) and clause (B) above as measured as of the date of such
Transfer and subject to confirmation of such calculation by 3Com), and (ii)
to make bona fide charitable contributions or gifts of such securities;
provided, however, that the transferee(s) of such charitable contributions
or gifts agree(s) in writing to hold such securities for the period
specified in Section 3.
4. MISCELLANEOUS.
(a) This Stockholder 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 Stockholder 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 Stockholder Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the State
of Delaware, applicable to agreements made and preformed wholly within such
state. Each party hereto irrevocably and unconditionally consents and
submits to the jurisdiction of the courts of the State of Delaware and of
the United States of America located in the State of Delaware for any
actions, suits or proceedings arising out of or relating to this Stockholder
Agreement and the transactions contemplated hereby, and further agrees that
service of any process, summons, notice or document by U.S. registered or
certified mail to Stockholder c/o USR at 0000 Xxxxx XxXxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx, or to 3Com at 0000
Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxx Xxxxxxx,
shall be effective service of process for any action, suit or proceeding
brought against such party in any such court. Each party hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue
of any action, suit or proceeding arising out of this Stockholder Agreement
or the transactions contemplated hereby, in the courts of the State of
Delaware located in Wilmington, Delaware or the United States of America
located in Wilmington, Delaware, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. If any provision of this Stockholder
Agreement is held to be unenforceable for any reason, it shall be modified
rather than voided, if possible, in order to achieve the intent of the
parties to the extent possible. In any event, all other provisions of this
Stockholder Agreement shall be deemed valid and enforceable to the extent
possible.
(d) If a court of competent jurisdiction determines that any provision
of this Stockholder Agreement is not enforceable or enforceable only if
limited in time and/or scope, this Stockholder Agreement shall continue in
full force and effect with such provision stricken or so limited.
3
(e) Counsel to and accountants for the parties to the Merger Agreement
shall be entitled to rely upon this Stockholder Agreement as needed.
(f) This Stockholder Agreement shall not be modified or amended, or any
right hereunder waived or any obligation excused, except by a written
agreement signed by both parties.
(g) Notwithstanding any other provision contained herein, this
Stockholder Agreement and all obligations hereunder shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
(h) From and after the Effective Time of the Merger and as long as is
necessary in order to permit Stockholder to sell 3Com Common Stock held by
Stockholder pursuant to Rule 145 and, to the extent applicable, Rule 144
under the Securities Act, 3Com will file on a timely basis all reports
required to be filed by it pursuant to the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, as the same shall be
in effect at the time, and shall otherwise make available adequate public
information regarding 3Com in such manner as may be required to satisfy the
requirements of paragraph (c) of Rule 144 under the Securities Act.
4
IN WITNESS WHEREOF, this USR Stockholder Agreement is executed as of the
date first shown above.
3COM CORPORATION,
a California corporation
By:_________________________________________
STOCKHOLDER
By:_________________________________________
Name of
Stockholder:_________________________
Name of Signatory
(if different from name of
Stockholder):
--------------------------------------
Title of Signatory
(if
applicable):_____________________________
Number of Shares Owned:____________
Number of Shares Issuable upon
Exercise of Stock Options:____________
5
