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EXHIBIT 10.4
STOCKHOLDER'S AGREEMENT
THIS STOCKHOLDER'S AGREEMENT (the "Agreement") is executed as of March
20, 1997, by and between CrossComm Corporation, a Delaware corporation
("CrossComm") and Lars Xxxx Xxxxxxx (the "Stockholder").
Concurrently with the execution and delivery of this Agreement, Olicom
A/S, a corporation organized under the laws of the Kingdom of Denmark
("Olicom"), PW Acquisition Corporation, a Delaware corporation ("MergerSub"),
and 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 outstanding shares of Olicom Common
Stock.
In consideration of the execution and delivery of the Merger Agreement
by Olicom, the Stockholder agrees to vote the Shares so as to facilitate
consummation of the Merger.
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. "Shares" shall include any shares of Olicom
Common Stock which the Stockholder presently owns, together with such shares as
the Stockholder purchases or otherwise acquires after the execution and
delivery of this Agreement and prior to the Expiration Date, as defined herein.
The "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. Any
capitalized terms not defined herein shall have the same meaning as set forth
in the Merger Agreement.
2. Agreement to Vote Shares. At every meeting of the
stockholders of Olicom 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 matter which could
reasonably be expected to facilitate the Merger. 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.
3. Representations, Warranties and Covenants of the Stockholder.
The Stockholder hereby makes the following representations, warranties and
covenants to CrossComm:
3.1 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
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free and clear of any liens, claims, options, charges or other encumbrances;
(ii) does not directly own any shares of Olicom 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.
3.2 No Voting Trusts and Agreements. The Stockholder
will not, and will not permit any entity under the Stockholder's sole control,
to deposit any shares of Olicom Common Stock held by the Stockholder or such
entity in a voting trust or subject any shares of Olicom Common Stock held by
the Stockholder or such entity to any arrangement or agreement with respect to
the voting of such shares of Olicom Common Stock, other than agreements entered
into with Olicom.
3.3 No Proxy Solicitations. The Stockholder will not,
and will not permit any entity under the Stockholder's sole 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 with the terms of the Merger
Agreement; (ii) initiate a stockholder's vote or action by consent of
stockholders in Olicom 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 Olicom for the purpose of opposing or competing with the
consummation of the Merger.
4. Representations, Warranties and Covenants of CrossComm.
CrossComm represents, warrants and covenants to the Stockholder as follows:
4.1 Due Authorization. This Agreement has been
authorized by all necessary corporate action on the part of CrossComm and has
been duly executed by a duly authorized officer of CrossComm.
4.2 Validity; No Conflict. This Agreement constitutes
the legal, valid and binding obligation of CrossComm. Neither the execution of
this Agreement by CrossComm nor the consummation of the transactions
contemplated hereby will result in a breach or violation of the terms of any
agreement by which CrossComm is bound or of any decree judgment, order, law or
regulation now in effect of any court or other governmental body applicable to
CrossComm.
5. Additional Documents. The Stockholder and CrossComm hereby
covenant and agree to execute and deliver any additional documents necessary or
desirable, in the reasonable opinion of CrossComm or the Stockholder, as the
case may be, to carry out the intent of this Agreement.
6. 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.
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7. 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 CrossComm:
CrossComm Corporation
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxxx, Esq.
If to the Stockholder:
Lars Xxxx Xxxxxxx
Xxxxxxxx 000
XX-0000 Xxxxxx
Xxxxxxx
Copy to:
Xxxxxxxx X. Xxxxxxxx
Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
All notices shall be effective on receipt.
8. 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.
9. 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
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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.
10. Specific Performance: Injunctive Relief. The parties hereto
acknowledge that CrossComm 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 CrossComm upon such violation,
CrossComm 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 CrossComm has an adequate remedy at law.
11. 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.
12. 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.
13. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
CROSSCOMM CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx,
Chief Financial Officer
/s/ Lars Xxxx Xxxxxxx
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Lars Xxxx Xxxxxxx
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