EXHIBIT 10.35
CONFIDENTIAL TREATMENT REQUESTED; PORTIONS OMITTED FROM THE PUBLICLY-FILED
DOCUMENT AND FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY
ASTERISK
AMENDMENT NO. 2 TO THE SHAREHOLDERS' AGREEMENT
This Amendment No. 2 to the Shareholders' Agreement ("Amendment No. 2") is
made and entered into effective as of January 27, 2006 by and among Shenzhen
Huawei Investment & Holding Co. Ltd., a limited liability company organized and
existing under the laws of the People's Republic of China ("Huawei Holding"),
3Com Technologies, a corporation organized under the laws of the Cayman Islands
and a wholly owned subsidiary of 3Com Corporation ("3Com Technologies") and
Huawei-3Com Co., Ltd., a company incorporated under the laws of Hong Kong
("JVCO"; each of JVCO, Huawei Holding and 3Com Technologies, a "Party" and,
collectively, the "Parties").
RECITALS
WHEREAS, Huawei Holding, 3Com Technologies and JVCO are parties to that
certain Shareholders' Agreement dated November 15, 2003, as amended by Amendment
No. 1 to the Shareholders' Agreement, effective July 31, 2004 (as amended, the
"Agreement"); and
WHEREAS, the Parties desire to amend the Agreement to (i) provide a
framework for necessary cooperation between 3Com and JVCO regarding, among other
things, product development, (ii) allow JVCO to sell products in additional
territories and (iii) make such other changes as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows:
1. Article V-A. A new section, ARTICLE V-A is added to the Agreement in its
entirety as follows:
"ARTICLE V-A
PRODUCT DEVELOPMENT AND OPERATIONS COLLABORATION
SECTION 5A.01. Product Development. 3Com Technologies and Huawei Holding
agree that, once every quarter or as otherwise mutually agreed, 3Com's senior
executive responsible for data, voice and security products (e.g., 3Com's
General Manager for its Data Business Unit) and JVCO's senior executive for
product development shall meet to jointly review and agree on JVCO's:
(i) product, solution and technology strategy;
(ii) product roadmaps and product migration timing; and
(iii) new technology development.
The 3Com Parties agree to conduct the above meetings in good faith to ensure
open and honest discussions. The purpose of the above activities is to review
3Com and JVCO's product roadmaps to allow for planned product migration by 3Com
to JVCO-sourced products, based on agreed upon product roadmap and feature,
quality and price requirements.
SECTION 5A.02. *
(I) *
(II) *
(III) *
SECTION 5A.03. *
2. Territories. The 3Com Parties and Huawei Parties agree that, to further
increase the sales of the JVCO for the mutual benefit of both shareholders,
Schedule B-3 to the Agreement shall be deleted and replaced with a new Schedule
B-3 in the form attached hereto as Schedule B-3.
3. Section 6.02(d). Section 6.02(d) of the Agreement is hereby amended to
read in its entirety as follows:
(d) *
4. Section 3.11. Section 3.11 of the Agreement is hereby amended by adding
the following sentence to the end of such section:
"Notwithstanding the foregoing, the compensation for the Chief Executive
Officer will be approved by the Board. Any increase in compensation of 100% or
less payable by JVCO to its Chief Operating Officer or any of his directly
reporting officers may be implemented by the Chief Executive Officer without
additional Board approvals. Any adjustment in the compensation payable by JVCO
to its Chief Operating Officer or any of the Chief Operating Officer's directly
reporting officers that would result in an increase in the compensation of such
individual of more than 100%, must be proposed by the Chief Executive Officer of
JVCO to the Nomination and Compensation Committee for approval."
5. Section 3.15(a)(iii)(9). Section 3.15(a)(iii)(9), is deleted from the
Agreement in its entirety.
6. Section 3.17. Section 3.17 of the Agreement is hereby amended to read in
its entirety as follows:
"SECTION 3.17 Approval of Annual Business Plan and Budget and
Long-Term Strategic Plan. The CEO of the JVCO shall, not later than 45
days prior to the beginning of each fiscal year, submit to the
Steering Committee (i) a proposed business plan for the JVCO that
shall include an operating plan, a capital improvement plan and a
budget, including a capital expenditure budget and an operating
budget, for such fiscal year (the "Annual Business Plan and
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Budget") and (ii) a rolling long-term strategic direction plan for the
JVCO for the next three to five fiscal years (the "Long-Term Strategic
Plan"). Not later than 10 days prior to the beginning of each fiscal
year, the Board shall meet to discuss the Annual Business Plan and
Budget and the Long-Term Strategic Plan prepared and submitted by the
CEO and shall adopt an Annual Business Plan and Budget for such fiscal
year and a Long-Term Strategic Plan relating to the following three to
five fiscal years. If the Board does not approve the Annual Business
Plan and Budget or the Long-Term Strategic Plan, the CEO will resubmit
a revised Annual Business Plan and Budget or the Long-Term Strategic
Plan, as applicable, until such time that the Board approves the
Annual Business Plan and Budget or the Long-Term Strategic Plan."
7 Section 3.18(a). Section 3.18(a) of the Agreement is hereby amended by
adding the following sentence to the end of such section:
"The Board has the right to replace the Chief Executive Officer,
the Chief Operating Officer and the Chief Operating Officers' directly
reporting officers for Cause or performance. Cause shall mean the
commission of an indictable offense, or the commission of an act that
constitutes bad faith, gross negligence or willful misconduct.
Notwithstanding the foregoing, and in recognition of the strong
performance of the CEO, COO and directly reporting officers of the COO
during the past 2 years, the Board shall not terminate the employment
of such officers prior to November 15, 2006, other than a termination
for Cause as defined above."
8. Section 6.05. Section 6.05 of the Agreement is hereby amended to read in
its entirety as follows:
"SECTION 6.05 Designated Territory and Other Territory
Determinations. Any disputes over definitions of 3Com Designated
Territories, JVCO Designated Territories or Other Territories on
Schedule B-1, Schedule B-2 and Schedule B-3, respectively, shall be
referred to the OEM Committee for resolution. Neither Schedule B-1,
Schedule B-2 nor Schedule B-3 may be amended without approval of the
OEM Committee."
9. Section 3.13. Section 3.13 of the Agreement is hereby amended to read in
its entirety as follows:
"(a) The Board shall designate an OEM committee (the "OEM
Committee), which shall be composed of two members, one of whom shall
be a Huawei Holding Director and one of whom shall be a 3Com Director,
subject to the terms of Section 3.09. Regular meetings of the OEM
Committee shall be held at least quarterly during each fiscal year and
as necessary to hear and resolve disputes or concerns between the
Parties (including, for purposes of this Section 3.13, 3Com and Huawei
Technologies) relating to the application of the terms of Article VI
below (other than Section 6.03(f) and Section 6.03(g)), subject to
Section 10.13 hereof. The 3Com Parties and the Huawei Parties (and
their respective Affiliates) agree to abide by, and to cause their
respective Affiliates to abide by, the decisions of the
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OEM Committee. The OEM Committee shall review and approve decisions
made on behalf of the JVCO regarding the implementation of all OEM
agreements of the JVCO with new OEM partners that are expected to
result in an increase in JVCO annual revenue by more than twenty five
percent (25%), to be determined by reference to the most recently
completed fiscal quarter (with the determination to be made on an
annualized basis) and, accordingly, could result in a significant
funding requirement for capital assets, operating expenses and working
capital outside the normal course of business. The OEM Committee shall
also have the authority to amend Schedule C and Schedule D. All
decisions of the OEM Committee regarding these and other JVCO matters
to be decided by the OEM Committee must be unanimous. Unanimous
decisions of the OEM Committee with respect to matters under its
jurisdiction shall be binding upon the Board of Directors of the JVCO.
In the event that the OEM Committee fails to make a unanimous decision
with respect to any particular matter under its jurisdiction, such
matter shall constitute a Fundamental Decision (as defined in Section
3.15) that must be approved by the affirmative vote of at least
two-thirds of the Directors, which shall include at least one (1)
Huawei Holding Director and one (1) 3Com Director. The Parties intend
to further discuss and refine the scope and operation of the OEM
Committee following the execution of this Agreement.
(b) Subject to the other provisions of this Agreement, JVCO
management shall be responsible for OEM matters that are material to
the JVCO, including (a) new OEM partners, (b) initial product
specifications and material changes to such specifications, (c)
initial product pricing, margins and royalty rates and any material
changes thereto, (d) initiation or discontinuation of the sale of any
products by the JVCO and (e) ownership and licensing of new
intellectual property created pursuant to such OEM arrangements. In
addition, JVCO management shall inform the OEM Committee of all new
OEM arrangements on at least a quarterly basis."
10. Entire Agreement. Except as amended and set forth herein, the Agreement
shall remain in full force and effect. The Agreement and any attachments or
exhibits thereto, together with this Amendment No. 2, constitute the entire
agreement between the Parties with respect to the subject matter therein. To the
extent there are conflicts or inconsistencies between the terms of this
Amendment No. 2 and the Agreement, the terms of this Amendment No. 2 shall
govern.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have caused this Amendment No. 2 to
be executed by their respective officers thereunto duly authorized.
SHENZHEN HUAWEI INVESTMENT & HOLDING CO,
LTD.
By: /s/ XXX XXXXXXXX
------------------------------------
Name: Xxx Xxxxxxxx
Title: Chief Executive Officer
3COM TECHNOLOGIES
By: /s/ XXXX X. XXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
HUAWEI-3COM CO., LTD.
By: /s/ XXXXX XXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Operating OFficer
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SCHEDULE B-3
*
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