EXHIBIT 10.4
FORM OF
USR STOCKHOLDER VOTING AGREEMENT
THIS USR STOCKHOLDER VOTING AGREEMENT is made and entered into as of
February 26, 1997 by and between 3Com Corporation, a California corporation
("3Com"), and the undersigned officer, director or stockholder ("Stockholder")
of U.S. Robotics Corporation, a Delaware corporation ("USR").
RECITALS
A. Concurrently with the execution of this Voting Agreement, 3Com, TR
Acquisitions Corporation, a Delaware corporation and a wholly-owned subsidiary
of 3Com ("Sub"), and USR have entered into that certain Agreement and Plan of
Merger, dated as of February 26, 1997 (the "Merger Agreement"), which provides
for the merger of Sub with and into USR (the "Merger") pursuant to which USR
will become a wholly-owned subsidiary of 3Com;
B. Stockholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended, (the "Exchange
Act")) of the number of shares of the outstanding capital stock of USR indicated
on the signature page of this Voting Agreement (the "Shares");
C. In connection with the Merger, 3Com will acquire Stockholder's entire
equity interest in USR, and Stockholder will receive in exchange an equity
interest in 3Com; and
D. In consideration of and to induce the execution and delivery of the
Merger Agreement by 3Com, Stockholder is willing to agree not to transfer or
otherwise dispose of any of the Shares, or any other shares of capital stock of
USR acquired hereafter and prior to the Expiration Date (as defined in Section 1
below), except as specifically permitted hereby, and to vote the Shares and any
other such shares of capital stock of USR so as to facilitate consummation of
the Merger, as more fully described below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. NO TRANSFER OR ENCUMBRANCE OF SHARES. Stockholder agrees not to
transfer, sell, exchange, pledge or offer to transfer or sell or otherwise
dispose of or encumber any of the Shares or any New Shares (as defined below),
or to make any offer or agreement relating thereto at any time prior to the
Expiration Date (as defined below). The foregoing restrictions shall not
prohibit a transfer of shares or New Shares to a trust for the benefit of
Stockholder or a transfer of Shares or New Shares upon the death of Stockholder,
PROVIDED, HOWEVER, that any transferee with respect to such transfer shall agree
to be bound by the terms and conditions of this Voting Agreement. As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) the
date and time on which the Merger shall become effective in accordance with the
terms of the Merger Agreement or (ii) the date on which the Merger Agreement
shall be terminated pursuant to Section 8.1 of the Merger Agreement. Stockholder
agrees that any shares of capital stock of USR that Stockholder purchases or
with respect to which Stockholder otherwise acquires beneficial ownership after
the execution of this Voting Agreement and prior to the Expiration Date ("New
Shares") shall be subject to the terms and conditions of this Voting Agreement
to the same extent as if such shares constituted Shares.
2. AGREEMENT TO VOTE SHARES. At every meeting of the USR stockholders
called with respect to any of the following, and at any adjournment thereof, and
with respect to every action or approval by written consent of USR stockholders
solicited with respect to any of the following, Stockholder shall vote the
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Shares and any New Shares: (i) in favor of approval of the Merger Agreement and
the Merger and any proposal or action which would, or could reasonably be
expected to, facilitate the Merger, (ii) against approval of any proposal made
in opposition to or competition with consummation of the Merger and the Merger
Agreement, (iii) against any merger or consolidation of USR with, sale of assets
or stock of USR to, or reorganization or recapitalization involving USR with,
any party other than 3Com or Sub, (iv) against any liquidation, or winding up of
USR and (v) against any other proposal or action which would, or could
reasonably be expected to, prohibit or discourage the Merger (each of the
foregoing being hereinafter referred to as an "Opposing Proposal"). Stockholder,
as the holder of voting stock of USR shall be present, in person or by proxy, at
all meetings of stockholders of USR so that all Shares and New Shares are
counted for the purposes of determining the presence of a quorum at such
meetings. This Voting Agreement is intended to bind Stockholder only with
respect to the specific matters set forth herein, and shall not prohibit
Stockholder from acting in accordance with his fiduciary duties as an officer or
director of USR.
3. IRREVOCABLE PROXY. Concurrently with the execution of this Voting
Agreement, Stockholder agrees to deliver to 3Com a proxy in the form attached
hereto as ANNEX A (the "Proxy"), which shall be irrevocable to the extent
provided therein; PROVIDED, HOWEVER, that the Proxy shall be revoked upon
termination of this Voting Agreement in accordance with its terms.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER. Stockholder
hereby represents, warrants and covenants to 3Com as follows:
4.1. OWNERSHIP OF SHARES. Stockholder (i) is the holder of record and
beneficial owner of the Shares and will be the holder of record and
beneficial owner of all New Shares, if any, 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 that would interfere with the
voting of the Shares or the granting of any proxy with respect thereto, (ii)
does not beneficially own any shares of capital stock of USR other than the
Shares (except to the extent that Stockholder currently disclaims beneficial
ownership in accordance with applicable law) and (iii) has full power and
authority to make, enter into, deliver and carry out the terms of this
Voting Agreement and the Proxy.
4.2. NO VOTING TRUSTS AND AGREEMENTS. Between the date of this Agreement
and the Expiration Date, Stockholder will not, and will not permit any
entity under Stockholder's control to, deposit any shares of USR capital
stock held by Stockholder or such entity in a voting trust or subject any
shares of USR capital stock held by such Stockholder or such entity to any
arrangement or agreement with respect to the voting of such shares of
capital stock, other than agreements entered into with 3Com.
4.3. VALIDITY; NO CONFLICT. This Voting Agreement constitutes the legal,
valid and binding obligation of Stockholder. Neither the execution of this
Voting Agreement by Stockholder nor the consummation of the transactions
contemplated herein will violate or result in a breach of (i) any provision
of any trust, charter, partnership agreement or other charter document
applicable to Stockholder, (ii) any agreement to which Stockholder is a
party or by which Stockholder is bound, (iii) any decree, judgment or order
to which Stockholder is subject, or (iv) any law or regulation now in effect
applicable to Stockholder.
4.4. NO PROXY SOLICITATIONS. Subject to the last sentence of Section 2,
between the date of this Agreement and the Expiration Date, Stockholder will
not, and will not permit any entity under Stockholder's control, to (i)
solicit proxies or become a "participant" in a "solicitation" (as such terms
are defined in Rule 14A under the Exchange Act) with respect to an Opposing
Proposal 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 with the terms of the Merger Agreement, (ii) initiate a
stockholders' vote or action by written consent of USR stockholders without
a meeting with respect to an Opposing Proposal or (iii) become a member
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of a "group" (as such term is used in Section 13(d) of the Exchange Act)
with respect to any voting securities of USR with respect to an Opposing
Proposal.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF 3COM. 3Com represents,
warrants and covenants to Stockholder as follows:
5.1. DUE AUTHORIZATION. This Voting Agreement has been authorized by all
necessary corporate action on the part of 3Com and has been duly executed by
a duly authorized officer of 3Com.
5.2. VALIDITY; NO CONFLICT. This Voting Agreement constitutes the legal,
valid and binding obligation of 3Com. Neither the execution of this Voting
Agreement by 3Com nor the consummation of the transactions contemplated
herein will violate or result in a breach of (i) any agreement to which 3Com
is a party or by which 3Com is bound, (ii) any decree, judgment or order to
which 3Com is subject, or (iii) any law or regulation now in effect
applicable to 3Com.
6. ADDITIONAL DOCUMENTS. Stockholder and 3Com hereby covenant and agree to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of 3Com's legal counsel or Stockholder, as the case may be,
to carry out the intent of this Voting Agreement.
7. CONSENT AND WAIVER. Stockholder hereby gives any consent or waiver
reasonably required for the consummation of the Merger under the terms of any
agreement to which Stockholder is a party.
8. TERMINATION. Notwithstanding any other provision contained herein, this
Voting Agreement and the Proxy, and all obligations of Stockholder hereunder and
thereunder, shall terminate as of the Expiration Date.
9. MISCELLANEOUS.
9.1. SEVERABILITY. If any term, provision, covenant or restriction of this
Voting Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Voting Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
9.2. BINDING EFFECT AND ASSIGNMENT. This Voting Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Voting Agreement nor any of
the rights, interests or obligations of the parties hereto may be assigned by
either of the parties hereto without the prior written consent of the other, and
any attempted assignment thereof without such consent shall be null and void.
9.3. AMENDMENTS AND MODIFICATIONS. This Voting Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
9.4. SPECIFIC PERFORMANCE: INJUNCTIVE RELIEF. The parties hereto acknowledge
that 3Com will be irreparably harmed by a breach of any of the covenants or
agreements of Stockholder set forth herein and that there will be no adequate
remedy at law for such a breach. Therefore, it is agreed that, in addition to
any other remedies which may be available to 3Com upon such breach, 3Com shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to it at law or in equity.
9.5. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed
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telecopy, or sent by mail (registered or certified mail, postage prepaid, return
receipt requested) to the respective parties as follows:
If to 3Com: 3Com Corporation 0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
If to Stockholder: To the address for notice
set forth on the last page
hereof.
With a copy to: U.S. Robotics Corporation 0000 Xxxxx XxXxxxxxx
Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
6. GOVERNING LAW. This Voting Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of law. 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 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 U.S. Robotics Corporation at 0000 Xxxxx
XxXxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx, or to
3Com Corporation 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 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 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
Agreement shall be deemed valid and enforceable to the extent possible.
7. ENTIRE AGREEMENT. This Voting Agreement contains the entire
understanding of the parties with respect to the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
8. COUNTERPARTS. This Voting Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
9. EFFECT OF HEADINGS. The section headings contained herein are for
convenience only and shall not affect the construction or interpretation of this
Voting Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly
executed on the day and year first above written.
3COM CORPORATION, a California
corporation
By:
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Its:
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STOCKHOLDER:
By:
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Stockholder's Address for Notice:
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Shares beneficially owned:
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ANNEX A
IRREVOCABLE PROXY
The undersigned stockholder of U.S. Robotics Corporation, a Delaware
corporation ("USR"), hereby irrevocably appoints and constitutes the members of
the Board of Directors of 3Com Corporation, a California corporation ("3Com"),
and each of them (the "Proxyholders"), the agents and proxies of the
undersigned, with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to the shares of capital stock
of USR beneficially owned by the undersigned, which shares are listed below and
any and all other shares or securities issued or issuable in respect thereof, or
which the undersigned otherwise acquires, on or after the date hereof and prior
to the date this proxy terminates (collectively, the "Shares"), to vote the
Shares as follows:
The agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of USR stockholders, and in every written
consent in lieu of such a meeting, or otherwise,
1. In favor of approval of the Merger (as defined in that certain Voting
Agreement, dated February 26, 1997, between the undersigned and 3Com (the
"Voting Agreement")) and that certain Agreement and Plan of Merger dated as
of February 26, 1997 by and among 3Com, TR Acquisitions Corporation, a
Delaware corporation and a wholly-owned subsidiary of 3Com ("Sub"), and USR
(the "Merger Agreement") and any proposal or action that could reasonably be
expected to facilitate the Merger, and
2. Against approval of (i) any proposal made in opposition to or competition
with consummation of the Merger and the Merger Agreement, (ii) any merger or
consolidation of USR with, sale of assets or stock of USR to, or
reorganization or recapitalization involving USR with any party other than
3Com or Sub, (iii) any liquidation, or winding up of USR and (iv) any other
proposal or action which would, or could reasonably be expected to, prohibit
or discourage the Merger.
The Proxyholders may not exercise this proxy with respect to any other matter.
The undersigned may vote the Shares on all such other matters.
The proxy granted by the undersigned to the Proxyholders hereby is granted
as of the date of this Irrevocable Proxy in order to secure the obligations of
the undersigned set forth in Section 2 of the Voting Agreement, and is
irrevocable and coupled with an interest in such obligations and in the
interests in USR to be purchased and sold pursuant the Merger Agreement. This
proxy will terminate upon the termination of the Voting Agreement in accordance
with its terms.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares are hereby revoked, and no subsequent proxies will be
given with respect to the Shares until such time as this proxy shall be
terminated in accordance with its terms.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned authorizes the
Proxyholders to file this proxy and any substitution or revocation of
substitution with the Secretary of USR and with any Inspector of Elections at
any meeting of the stockholders of USR.
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This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned.
Dated: February 26, 1997
Signature of Stockholder:
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Print name of Stockholder:
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Shares beneficially owned:
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