<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 4, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM F-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
OLICOM A/S
(Exact name of registrant as specified in its charter)
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<C> <C> <C>
KINGDOM OF DENMARK 3669 NONE
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
NYBROVEJ 114 J. MICHAEL CAMP
DK-2800 LYNGBY OLICOM, INC.
DENMARK 900 EAST PARK BLVD., SUITE 250
+45 45 27 00 00 PLANO, TEXAS 75074
(Address, including zip code, and telephone (972) 423-7560
number, including (Name, address, including zip code, and telephone
area code, of registrant's principal executive number, including area code, of agent for service)
offices)
</TABLE>
Copies to:
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<C> <C>
LAWRENCE D. GINSBURG PHILIP P. ROSSETTI
LIDDELL, SAPP, ZIVLEY, HILL & LABOON, L.L.P. HALE AND DORR LLP
2200 ROSS AVENUE, SUITE 900 60 STATE STREET
DALLAS, TEXAS 75201 BOSTON, MASSACHUSETTS 02109
TELECOPIER: (214) 220-4899 TELECOPIER: (617) 526-5000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective and the
occurrence of all other conditions to the merger (the "Merger") of PW
Acquisition Corporation, a wholly-owned subsidiary of the Registrant, with and
into CrossComm Corporation (as described in the Agreement and Plan of
Reorganization attached to the Joint Proxy Statement/Prospectus forming a part
of this Registration Statement) have been satisfied or waived.
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, nominal value................ 3,805,647(2) $3.00(3) $30,510,255(4)
DKK 0.25 per share
Common Share Purchase Warrants............ 1,093,285 $19.74(5) $21,581,446(6) $15,786
============================================================================================================================
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(1) This Registration Statement relates to securities of Olicom A/S issuable to
holders of common stock of CrossComm Corporation ("CrossComm") in connection
with the Merger described herein.
(2) Represents the maximum number of Common Shares of Olicom and common share
purchase warrants issuable in connection with the Merger described herein,
assuming an Exchange Ratio of 0.2667 Common Shares and 0.1075 warrants to
purchase Common Shares in the Registrant, based on the maximum number of
shares of common stock in CrossComm that could be outstanding immediately
prior to the Effective Time described herein. Of the 3,805,647 Common Shares
being registered, 1,093,285 shares are issuable pursuant to the Common Share
Purchase Warrants.
(3) The maximum offering price for the securities to be issued in connection
with the Merger is estimated pursuant to Rule 457(f)(1) and (3), based upon
the market value of the shares of CrossComm common stock to be acquired in
the Merger ($8.00 per share, which was the average of the high and low sales
price per share of CrossComm common stock on the Nasdaq National Market on
March 31, 1997) minus $5.00 per share to be paid in cash by the Registrant
in connection with the Merger.
(4) Estimated by multiplying $3.00, the maximum offering price for the
securities to be issued in connection with the Merger (calculated as set
forth in footnote 3), by 10,170,085, the estimated maximum number of shares
of CrossComm common stock which may be exchanged upon consummation of the
Merger.
(5) The maximum offering price for Common Shares issued upon conversion of the
warrants is calculated, pursuant to Rule 457(i), on the basis of the
exercise price of the warrants.
(6) Estimated by multiplying $19.74, the exercise price of the warrants, by
1,093,285, the number of such securities registered hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
OLICOM A/S
CROSS-REFERENCE SHEET
FURNISHED PURSUANT TO RULE 404(A) AND ITEM 501(B) OF REGULATION S-K
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<CAPTION>
LOCATION OR CAPTION IN
REGISTRATION STATEMENT ITEM NUMBER AND CAPTION JOINT PROXY STATEMENT/PROSPECTUS
---------------------------------------------- --------------------------------
<S> <C> <C> <C>
A. INFORMATION ABOUT THE TRANSACTION
1. Forepart of Registration Statement and Outside
Front Cover Page of Prospectus................ Facing Page and Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus.................................... Inside Front Cover and Outside Back Cover
Pages
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information................. Summary; Risk Factors; Enforceability of Civil
Liabilities
4. Terms of the Transaction...................... Summary; The Merger and Related Transactions;
Description of Olicom Common Stock; Tax
Considerations; Comparison of Stockholder
Rights under the Laws of Denmark and Delaware;
Appendix A; Appendix B; Appendix C
5. Pro Forma Financial Information............... Unaudited Pro Forma Condensed Combined
Financial Information; Notes to Unaudited Pro
Forma Condensed Financial Statements
6. Material Contacts With the Company Being
Acquired...................................... Summary; The Merger and Related Transactions
7. Additional Information Required for Reoffering
by Persons and Parties Deemed to be
Underwriters.................................. *
8. Interests of Named Experts and Counsel........ *
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities................................... *
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to F-3 Companies..... *
11. Incorporation of Certain Information by
Reference..................................... *
12. Information with Respect to F-2 or F-3
Registrants................................... *
13. Incorporation of Certain Information by
Reference..................................... *
14. Information with Respect to Foreign
Registrants Other Than F-2 or F-3
Registrants................................... Summary; Market Price and Dividend
Information; Risk Factors; Olicom A/S;
Unaudited Pro Forma Condensed Combined
Financial Information; Description of Olicom
Common Stock
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
LOCATION OR CAPTION IN
REGISTRATION STATEMENT ITEM NUMBER AND CAPTION JOINT PROXY STATEMENT/PROSPECTUS
---------------------------------------------- --------------------------------
<S> <C> <C> <C>
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to F-3 Companies..... *
16. Information with Respect to F-2 or F-3
Companies..................................... *
17. Information with Respect to Foreign Companies
Other than F-2 or F-3 Companies............... Summary; Market Price and Dividend
Information; Risk Factors; CrossComm
Corporation; Unaudited Pro Forma Condensed
Combined Financial Information
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations are to be Solicited............ Outside Front Cover Page of Joint Proxy
Statement/Prospectus; Summary; The Olicom
Meeting; The CrossComm Meeting; The Merger and
Related Transactions
19. Information if Proxies, Consents or
Authorizations are not to be Solicited in an
Exchange Offer................................ *
</TABLE>
- ---------------
* Item is omitted because not applicable.
<PAGE> 4
[olicom logo]
May __, 1997
Dear Stockholder:
I am pleased to forward the enclosed Joint Proxy Statement/Prospectus
for the Annual General Meeting of Stockholders of Olicom A/S ("Olicom") to be
held on May ___, 1997, at 4:00 p.m. local time, at Olicom's International
Headquarters located in Greater Copenhagen at Nybrovej 114, DK-2800 Lyngby, and
any adjournment thereof (the "Olicom Meeting"). A Notice of the Annual General
Meeting of Stockholders, a proxy card, and a Joint Proxy Statement/Prospectus
containing information about the matters to be acted upon are enclosed. All
holders of outstanding common shares in Olicom, nominal value DKK 0.25 per
share ("Olicom Common Stock"), as of the close of business on May __, 1997 (the
"Record Date"), are entitled to notice of and to vote at the Olicom Meeting.
At the Olicom Meeting, Olicom's stockholders will be asked, among
other things, to consider and vote on a proposal to approve an Agreement and
Plan of Reorganization (the "Merger Agreement") dated as of March 20, 1997,
among Olicom, PW Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of Olicom ("MergerSub"), and CrossComm Corporation, a
Delaware corporation ("CrossComm"), pursuant to which MergerSub will be merged
with and into CrossComm, which will continue in existence as a wholly-owned
subsidiary of Olicom.
Pursuant to the Merger Agreement, each share of common stock in
CrossComm ("Cross Comm Common Stock") will be exchanged for $5.00 in cash,
0.2667 shares of Olicom Common Stock, subject to change under certain
circumstances (the "Exchange Ratio"), and a three-year warrant ("Warrant") to
purchase 0.1075 shares of Olicom Common Stock (the "Warrant Exchange Ratio") at
an exercise price of $19.74 per whole share (collectively, the "Merger
Consideration") (the "Merger"). The Merger is subject to the terms and
conditions of the Merger Agreement. The shares of Olicom Common Stock held by
Olicom stockholders prior to the Merger will remain unchanged by the Merger.
Based on the capitalization of Olicom and CrossComm as of the date of the
Merger Agreement and assuming an Exchange Ratio of 0.2667, it is expected that,
as a result of the Merger, Olicom will issue approximately 2,700,000 shares of
Olicom Common Stock by virtue of the Merger (assuming the exercise of all
vested CrossComm options), which would represent approximately 18.3% of
Olicom's outstanding capital stock. In addition, based on the capitalization
of CrossComm as of the date of the Merger Agreement and assuming a Warrant
Exchange Ratio of 0.1075, Olicom will issue pursuant to the Merger warrants to
purchase an aggregate of approximately 1,110,000 additional shares upon
exercise thereof (after giving pro forma effect to the exercise of all vested
CrossComm options).
The accompanying Joint Proxy Statement/Prospectus provides a detailed
description of the Merger Agreement, certain business and financial information
of Olicom and CrossComm,
<PAGE> 5
and other important information, which you are urged to read carefully. Copies
of the Merger Agreement and the form of Certificate of Merger are attached to
the Joint Proxy Statement/Prospectus as Appendix A.
THE BOARD OF DIRECTORS OF OLICOM HAS CAREFULLY REVIEWED AND CONSIDERED
THE TERMS AND CONDITIONS OF THE MERGER AGREEMENT AND THE PROPOSED MERGER. THE
BOARD HAS UNANIMOUSLY APPROVED THE TERMS AND CONDITIONS OF THE MERGER AGREEMENT
AND THE MERGER, HAVING REACHED THIS DECISION AFTER CAREFUL CONSIDERATION OF A
NUMBER OF FACTORS, INCLUDING THE OPINION OF ALEX. BROWN & SONS INCORPORATED
("ALEX. BROWN"), OLICOM'S FINANCIAL ADVISOR, TO THE EFFECT THAT THE MERGER
CONSIDERATION IS FAIR TO OLICOM FROM A FINANCIAL POINT OF VIEW. THE FULL
OPINION OF ALEX. BROWN IS INCLUDED AS APPENDIX B TO THE ACCOMPANYING JOINT
PROXY STATEMENT/PROSPECTUS, AND STOCKHOLDERS ARE URGED TO READ THE OPINION IN
ITS ENTIRETY. THE BOARD RECOMMENDS THAT THE STOCKHOLDERS OF OLICOM VOTE "FOR"
APPROVAL OF THE MERGER AGREEMENT.
At the Olicom Meeting, Olicom stockholders will also be asked to
consider and vote on proposals (i) to (a) receive the report of the Board of
Directors regarding Olicom's activities during fiscal year 1996, (b) receive
Olicom's profit and loss account for the fiscal year ended December 31, 1996,
and its balance sheet at such date, and vote on the adoption of same, (c)
approve the discharge of management and the Board of Directors from their
duties for fiscal year 1996, and (d) authorize the carry forward of Olicom's
profits to the fiscal year ending December 31, 1997; (ii) to elect seven
directors to hold office for a term ending in 1998 and until their successors
are elected and qualified; (iii) to appoint Ernst & Young A/S and KPMG C.
Jespersen as Olicom's auditors, and Ernst & Young LLP as the auditors for
Olicom, Inc.; (iv) to authorize the purchase by Olicom from time to time for a
period of 18 months following the Olicom Meeting of up to 10% of the issued and
outstanding common stock of Olicom; (v) to approve the fees of Olicom's
directors for fiscal year 1997; (vi) to approve amendments to Olicom's Articles
of Association; (vii) to approve Olicom's 1997 Share Incentive Plan; and (viii)
if necessary, to approve the postponement or adjournment of the Olicom Meeting
for the solicitation of additional votes. THE BOARD RECOMMENDS THAT THE
STOCKHOLDERS OF OLICOM VOTE "FOR" APPROVAL OF THESE PROPOSALS.
We urge you to review carefully the enclosed material and to return
your proxy promptly. The Merger Agreement and the consummation of the Merger
must be approved by the affirmative vote of a majority of the votes cast at the
Olicom Meeting. Except for the proposal to approve amendments to Olicom's
Articles of Association, the affirmative vote of a majority of the shares of
Olicom Common Stock present and voting at the Olicom Meeting is required for
approval of all other proposals being submitted to the stockholders for their
consideration. The proposal to approve amendments to Olicom's Articles of
Association requires approval by two-thirds of the votes cast at the Olicom
Meeting and two-thirds in nominal value of the voting capital represented at
such meeting.
<PAGE> 6
Whether or not you plan to attend the Olicom Meeting, please mark,
sign, date and promptly return your proxy card in the enclosed postage-paid
envelope or vote via telecopier at +45 45 270129 or (972) 422-4351. If you
attend the meeting, you may vote in person if you wish, even though you have
previously returned your proxy. Should you have any questions or if you would
like information on any adjustments to the Exchange Ratio and the Warrant
Exchange Ratio, please contact ____________________ at (800) __________________.
Sincerely,
Lars Stig Nielsen, Managing Director
and Chief Executive Officer
Jan Bech, Chairman of the Board
<PAGE> 7
NOTICE OF ANNUAL GENERAL MEETING OF STOCKHOLDERS
To Be Held May __, 1997
To the Stockholders of Olicom A/S:
The Annual General Meeting of Stockholders of Olicom A/S ("Olicom")
will be held at Olicom's International Headquarters located at Nybrovej 114,
DK-2800 Lyngby, Denmark, on __________, May __, 1997, at 4:00 p.m., local time,
for the following purposes:
1. To approve that certain Agreement and Plan of
Reorganization (the "Merger Agreement") dated as of March 20, 1997,
among Olicom, PW Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of Olicom ("MergerSub"), and CrossComm
Corporation, a Delaware corporation ("CrossComm"), pursuant to which
each share of common stock in CrossComm, par value $0.01 per share
("CrossComm Common Stock") will be exchanged for $5.00 in cash, 0.2667
common shares in Olicom, nominal value DKK 0.25 per share ("Olicom
Common Stock"), and three-year warrants (each a "Warrant") to purchase
0.1075 shares of Olicom Common Stock at an exercise price of $19.74
per whole share (the "Merger"). The Merger and related matters are
more fully described in, and the Merger Agreement is attached to, the
accompanying Joint Proxy Statement/Prospectus. In addition, the Board
of Directors will be authorized to make such amendments to the
resolutions adopted by the Annual General Meeting as may be required
by the Commercial and Companies Agency of The Kingdom of Denmark as a
condition to the registration of the shares of Olicom Common Stock to
be issued pursuant to the Merger or upon exercise of Warrants issued
or options assumed pursuant to the Merger.
2. To (i) receive the report of the Board of Directors
of Olicom (the "Olicom Board") regarding Olicom's activities during
fiscal year 1996, (ii) receive Olicom's profit and loss account for
the fiscal year ended December 31, 1996, and its balance sheet at such
date, and vote on the adoption of same, (iii) approve the discharge of
Olicom's management and the Olicom Board from their duties for fiscal
year 1996, and (iv) authorize the carry forward of Olicom's profits to
the fiscal year ending December 31, 1997;
3. To elect seven directors to hold office for a term
ending in 1998 and until their successors are elected and qualified;
4. To appoint Ernst & Young A/S and KPMG C. Jespersen as
Olicom's auditors, and Ernst & Young LLP as the auditors for Olicom,
Inc.;
5. To authorize the purchase by Olicom from time to time
for a period of 18 months following the meeting of up to 10% of the
issued and outstanding shares of Olicom Common Stock;
<PAGE> 8
6. To approve the fees of Olicom's directors for fiscal
year 1997;
7. To approve amendments to Olicom's Articles of
Association;
8. To approve Olicom's 1997 Share Incentive Plan;
9. If necessary, to approve the postponement or
adjournment of the Olicom Meeting for the solicitation of additional
votes; and
10. To transact such other business as may properly come
before the meeting and any adjournment(s) thereof.
At the Annual General Meeting of Stockholders, the Olicom Board will
deliver its report on Olicom's activities for fiscal year 1996, and there will
be a presentation of Olicom's Annual Accounts, together with the Auditor's
Report, Olicom's Annual Report and its consolidated accounts.
The Olicom Board has fixed the close of business on May ___, 1997, as
the record date. Only holders of record of Olicom Common Stock at the close of
business on May ___, 1997, will receive notice of the meeting. Holders of
record of Olicom Common Stock on May ___, 1997, are entitled to vote at the
meeting and any adjournments or postponements thereof. The transfer books of
Olicom will not be closed.
Except for the proposal to approve amendments to Olicom's Articles of
Association, the affirmative vote of a majority of the shares of Olicom Common
Stock present and voting at the Olicom Meeting is required for approval of all
proposals being submitted to the stockholders for their consideration. The
proposal to approve amendments to Olicom's Articles of Association requires
approval by two-thirds of the votes cast at the meeting and two-thirds in
nominal value of the voting capital represented at such meeting. The Companies
Act of the Kingdom of Denmark and Olicom's Articles of Association generally do
not require the presence, in person or by proxy, of a minimum number of shares
of Olicom Common Stock constituting a quorum in order for the meeting to take
action with respect to the matters described above.
The accompanying Joint Proxy Statement/Prospectus solicits proxies
with respect to the matters identified above for approval at the Annual General
Meeting of Stockholders. A proxy may be revoked by a stockholder prior to its
use, as specified in the enclosed Joint Proxy Statement/Prospectus.
<PAGE> 9
Holders of Olicom Common Stock are encouraged to attend the Annual
General Meeting and vote on all matters. If you plan to attend the meeting and
are a stockholder of record, please check your proxy card in the space provided
for that purpose. An admission ticket will be mailed to you approximately
seven days prior to the meeting date. However, if your shares are not
registered in your own name, please advise the stockholder of record (your
bank, broker, etc.) that you wish to attend. That firm should request an
admission ticket from Olicom on your behalf, or alternatively, provide you with
a proxy, which will enable you to gain admission to the meeting.
By Order of the Board of Directors
Jan Bech,
Chairman of the Board
Lyngby, Denmark
May ___, 1997
***************************************************************************
* *
* WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL GENERAL MEETING OF *
* STOCKHOLDERS, PLEASE SIGN THE ACCOMPANYING PROXY CARD AND RETURN IT *
* AS SOON AS POSSIBLE IN THE ACCOMPANYING POSTPAID ENVELOPE. YOUR *
* DOING SO MAY SAVE OLICOM THE EXPENSE OF A SECOND MAILING. *
* *
***************************************************************************
<PAGE> 10
[CrossComm logo]
CrossComm Corporation
450 Donald Lynch Boulevard
Marlborough, Massachusetts 01752
May ___, 1997
Dear Stockholder:
You are cordially invited to attend the Annual Meeting of Stockholders
of CrossComm Corporation ("CrossComm") to be held on May __, 1997, at 10:00
a.m., local time, at the Radisson Marlborough Hotel, 75 Felton Street,
Marlborough, Massachusetts 01752, and any adjournment thereof (the "CrossComm
Meeting").
At the CrossComm Meeting, you will be asked to consider and vote upon,
among other things, a proposal to approve an Agreement and Plan of
Reorganization (the "Merger Agreement") dated as of March 20, 1997, by and
among CrossComm, Olicom A/S, a corporation organized under the laws of the
Kingdom of Denmark ("Olicom"), and PW Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Olicom ("MergerSub"), pursuant to
which CrossComm will be merged with MergerSub ("the Merger") and become a
wholly-owned subsidiary of Olicom. Pursuant to the Merger Agreement, each share
of common stock of CrossComm ("CrossComm Common Stock") will be exchanged for
$5.00 in cash, 0.2667 shares of Olicom Common Stock (the "Exchange Ratio"), and
three-year warrants to purchase 0.1075 shares of Olicom Common Stock at an
exercise price of $19.74 per whole share (the "Warrant Exchange Ratio").
The accompanying Joint Proxy Statement/Prospectus provides a detailed
description of the Merger Agreement, certain business and financial information
of CrossComm and Olicom, and other important information, which you are urged
to read carefully.
The Board of Directors of CrossComm has carefully reviewed and
considered the terms and conditions of the Merger. In addition, the Board of
Directors of CrossComm has received a written opinion from its financial
advisor, Montgomery Securities, to the effect that the Merger Consideration is
fair to CrossComm stockholders from a financial point of view. CROSSCOMM'S
BOARD OF DIRECTORS HAS UNANIMOUSLY APPROVED THE MERGER AND RECOMMENDS THAT YOU
VOTE FOR APPROVAL OF THE MERGER AGREEMENT AND THE MERGER.
At the CrossComm Meeting, CrossComm stockholders will also be asked to
consider and vote on proposals (i) if necessary to grant to the Board of
Directors of CrossComm discretionary authority to adjourn the CrossComm Meeting
in order to solicit additional votes for approval of
<PAGE> 11
the Merger, (ii) to elect four directors to hold office for a term ending in
1998 and until their successors are elected and qualified, however, if the
Merger is approved, at the effective time of the Merger which is expected to
occur shortly after the CrossComm Meeting, the CrossComm Board will be replaced
by the Board of Directors of MergerSub, and (iii) to ratify the selection by
CrossComm's Board of Directors of Ernst & Young LLP as CrossComm's independent
auditors for the current fiscal year. THE CROSSCOMM BOARD OF DIRECTORS
RECOMMENDS THAT YOU VOTE FOR ELECTION OF THE DIRECTOR NOMINEES LISTED HEREIN,
FOR THE DISCRETIONARY AUTHORITY TO ADJOURN THE CROSSCOMM MEETING AND FOR
RATIFICATION OF THE SELECTION OF ERNST & YOUNG LLP.
We urge you to review and consider carefully the accompanying Notice
of Annual Meeting of Stockholders and Joint Proxy Statement/Prospectus. The
Merger Agreement and the consummation of the Merger must be approved by the
affirmative vote of a majority of the outstanding shares of CrossComm Common
Stock. The affirmative vote of a plurality of the shares of CrossComm Common
Stock present or represented at the CrossComm Meeting is required for election
of directors. The affirmative vote of a majority of the shares of CrossComm
Common Stock present or represented at the CrossComm Meeting is required for
the ratification of the selection by the Board of Directors of Ernst & Young
LLP as the Company's independent auditors for the current fiscal year.
If the Merger Agreement is approved and the Merger is consummated, you
will be sent a letter of transmittal with instructions for surrendering your
certificates representing shares of CrossComm Common Stock. Please do not send
your share certificates until you receive these materials.
IN ORDER THAT YOUR SHARES MAY BE REPRESENTED AT THE CROSSCOMM MEETING,
YOU ARE URGED PROMPTLY TO COMPLETE, SIGN, DATE AND RETURN THE ACCOMPANYING
PROXY IN THE ENCLOSED ENVELOPE, WHETHER OR NOT YOU PLAN TO ATTEND THE CROSSCOMM
MEETING. If you attend the CrossComm Meeting and desire to revoke your Proxy
in writing and vote in person, you may do so; in any event, a Proxy may be
revoked in writing at any time before it is exercised. Your prompt cooperation
will be appreciated. Should you have any questions or if you would like
information on any adjustments to the Exchange Ratio and/or the Warrant
Exchange Ratio, please contact__________________________ at
1-800____________________.
Sincerely,
Tadeusz Witkowicz
Chairman of the Board, President
and Chief Executive Officer
<PAGE> 12
CROSSCOMM CORPORATION
450 DONALD LYNCH BOULEVARD
MARLBOROUGH, MASSACHUSETTS 01752
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held On May __, 1997
To the Stockholders of CrossComm Corporation:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of
CrossComm Corporation, a Delaware corporation ("CrossComm"), has been called by
the Board of Directors of CrossComm and will be held at the Radisson
Marlborough Hotel, 75 Felton Street, Marlborough, Massachusetts, on
___________, May ___, 1997, at 10:00 a.m., local time (the "CrossComm
Meeting"), to consider and vote upon the following matters described in the
accompanying Joint Proxy Statement/Prospectus:
1. To approve that certain Agreement and Plan of
Reorganization (the "Merger Agreement") dated as of March 20, 1997,
among Olicom A/S, a corporation organized under the laws of the
Kingdom of Denmark ("Olicom"), PW Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Olicom ("MergerSub"), and
CrossComm, pursuant to which each share of common stock of CrossComm,
par value $0.01 per share ("CrossComm Common Stock") will be exchanged
for $5.00 in cash, 0.2667 shares of Olicom Common Stock, nominal value
DKK 0.25 per share ("Olicom Common Stock"), and three-year warrants
(each, a "Warrant") to purchase 0.1075 shares of Olicom Common Stock
at an exercise price of $19.74 per whole share (the "Merger"). The
Merger and related matters are more fully described in, and the Merger
Agreement is attached to, the accompanying Joint Proxy
Statement/Prospectus;
2. To grant the Board of Directors of CrossComm
discretionary authority to adjourn the CrossComm Meeting in order to
solicit additional votes for approval of the Merger;
3. To elect four directors for the ensuing year;
4. To ratify the selection by the Board of Directors of
Ernst & Young LLP as CrossComm's independent auditors for the current
fiscal year; and
5. To transact such other business as may properly come
before the meeting and any adjournment(s) thereof.
<PAGE> 13
CrossComm has fixed the close of business on May ___, 1997, as the
record date for the determination of stockholders entitled to notice of, and to
vote at, the CrossComm Meeting, and only stockholders of record at such time
will be entitled to notice of, and to vote at, the CrossComm Meeting.
SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW, WHICH GOVERNS
RIGHTS OF DISSENTING STOCKHOLDERS IS SUMMARIZED IN THE JOINT PROXY
STATEMENT/PROSPECTUS UNDER "THE MERGER -- APPRAISAL RIGHTS" AND IS REPRODUCED
AT APPENDIX D TO THE ACCOMPANYING JOINT PROXY STATEMENT/PROSPECTUS.
Approval of the Merger Agreement and the transactions contemplated
thereby requires the affirmative vote of the holders of a majority of the
outstanding shares of CrossComm Common Stock. The affirmative vote of the
holders of a plurality of the shares of CrossComm Common Stock present or
represented at the CrossComm Meeting is required for the election of directors.
The affirmative vote of the holders of a majority of the shares of CrossComm
Common Stock present or represented at the CrossComm Meeting is required for
the ratification of the selection by the CrossComm Board of Directors of Ernst
& Young LLP as CrossComm's independent auditors for the current fiscal year.
A form of Proxy and a Joint Proxy Statement/Prospectus containing more
detailed information with respect to the matters to be considered at the
CrossComm Meeting (including the Merger Agreement attached as Appendix A
thereto) accompany and form a part of this notice.
If you attend the CrossComm Meeting and desire to revoke your Proxy in
writing and vote in person, you may do so; in any event, a Proxy may be revoked
in writing at any time before it is exercised.
THE BOARD OF DIRECTORS OF CROSSCOMM UNANIMOUSLY RECOMMENDS THAT
STOCKHOLDERS VOTE IN FAVOR OF THE APPROVAL OF THE TRANSACTIONS CONTEMPLATED
THEREBY.
By Order of the Board of Directors
Philip P. Rossetti
Secretary
Marlborough, Massachusetts
May __, 1997
***************************************************************************
* *
* WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING OF STOCKHOLDERS, *
* PLEASE COMPLETE, DATE AND SIGN THE ACCOMPANYING PROXY CARD AND RETURN *
* IT AS SOON AS POSSIBLE IN THE ENCLOSED ENVELOPE IN ORDER TO ASSURE *
* REPRESENTATION OF YOUR SHARES. NO POSTAGE NEED BE AFFIXED IF THE *
* PROXY IS MAILED IN THE UNITED STATES. *
* *
***************************************************************************
<PAGE> 14
OLICOM A/S
and
CROSSCOMM CORPORATION
JOINT PROXY STATEMENT
____________________
OLICOM A/S
PROSPECTUS
____________________
This Joint Proxy Statement/Prospectus relates to the proposed exchange
described more fully below (the "Merger") contemplated by an Agreement and Plan
of Reorganization (the "Merger Agreement") dated as of March 20, 1997, among
Olicom A/S ("Olicom"), a corporation organized under the laws of the Kingdom of
Denmark, PW Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of Olicom ("MergerSub"), and CrossComm Corporation, a Delaware
corporation ("CrossComm"). See "The Merger" and "The Agreement and Plan of
Reorganization." A copy of the Merger Agreement is attached hereto as Appendix
A and is incorporated herein by reference.
Olicom is soliciting proxies for its Annual General Meeting of
Stockholders (the "Olicom Meeting"), and CrossComm is soliciting proxies for
its Annual Meeting of Stockholders (the "CrossComm Meeting" and together with
the Olicom Meeting, the "Meetings"). Both Meetings are scheduled to be held on
May ___, 1997.
At the Olicom Meeting, the stockholders of Olicom will be asked to
consider and vote upon proposals: (i) to approve the Merger Agreement; (ii)
to (a) receive the report of the Board of Directors of Olicom (the "Olicom
Board") regarding Olicom's activities during fiscal year 1996, (b) receive
Olicom's profit and loss account for the fiscal year ended December 31, 1996,
and its balance sheet at such date, and vote on the adoption of same, (c)
approve the discharge of Olicom's management and the Olicom Board from their
duties for fiscal year 1996, and (d) authorize the carry forward of Olicom's
profits to the fiscal year ending December 31, 1997; (iii) to elect seven
directors to hold office for a term ending in 1998 and until their successors
are elected and qualified; (iv) to appoint Ernst & Young A/S and KPMG C.
Jespersen as Olicom's auditors, and Ernst & Young LLP as the auditors for
Olicom, Inc. ("Olicom Americas"); (v) to authorize the purchase by Olicom from
time to time for a period of 18 months following the Olicom Meeting of up to
10% of the issued and outstanding shares of common stock in Olicom, nominal
value DKK 0.25 per share ("Olicom Common Stock"); (vi) to approve the fees of
Olicom's directors for fiscal year 1997; (vii) to approve amendments to
Olicom's Articles of Association; (viii) to approve Olicom's 1997 Share
Incentive Plan (the "1997 Share Incentive Plan"); and (ix) if necessary, to
approve the postponement or adjournment of the Olicom Meeting for the
solicitation of additional votes. See "The Olicom Meeting."
<PAGE> 15
At the CrossComm Meeting, the stockholders of CrossComm will be asked
to consider and vote upon proposals: (i) to approve the Merger Agreement; (ii)
to grant the Board of Directors of CrossComm (the "CrossComm Board")
discretionary authority to adjourn the CrossComm Meeting in order to solicit
additional votes for approval of the Merger; (iii) to elect four directors to
serve for the ensuing year and until their successors are elected and qualified
or until the Effective Time (as defined in the Merger Agreement); and (iv) to
ratify the selection by the CrossComm Board of Ernst & Young LLP as CrossComm's
independent auditors for the current fiscal year. See "The CrossComm Meeting."
Upon the effectiveness of the Merger, each share of common stock in
CrossComm, par value $0.01 per share ("CrossComm Common Stock"), will be
exchanged for $5.00 in cash, 0.2667 shares of Olicom Common Stock (the
"Exchange Ratio"), and three-year warrants (each, a "Warrant") to purchase
0.1075 shares of Olicom Common Stock (the "Warrant Exchange Ratio") at an
exercise price of $19.74 per whole share (collectively, the "Merger
Consideration"); provided that (i) in the event that the average of the high
and low sales prices for Olicom Common Stock for the ten trading days
immediately preceding (but excluding) the fifth trading day before the
CrossComm Meeting, as reported on the Nasdaq National Market (the "Final
Closing Price"), is less than $12.50, Olicom will have the right to increase
the Exchange Ratio to the number which, when multiplied by the Final Closing
Price, equals $3.33 (and if Olicom does not so increase the Exchange Ratio,
CrossComm will have the right to terminate the Merger Agreement); and (ii) in
the event that the Final Closing Price is more than $20.83, Olicom will have
the right to decrease the Exchange Ratio to the number which, when multiplied
by the Final Closing Price, equals $5.56 (and if Olicom so decreases the
Exchange Ratio, CrossComm will have the right to terminate the Merger
Agreement). In addition, each outstanding option to purchase a share of
CrossComm Common Stock (each, a "CrossComm Option") will be assumed by Olicom
and converted into an option to purchase Olicom Common Stock, pursuant to the
mechanism described in this Joint Proxy Statement/Prospectus. See "The
Agreement and Plan of Reorganization -- Assumption of Options." As a result of
the Merger, CrossComm will become a wholly-owned subsidiary of Olicom. See
"The Merger -- Operations Following the Merger."
On May ___, 1997, the closing sales prices on the Nasdaq National
Market of Olicom Common Stock and of CrossComm Common Stock were $____ and
$_____, respectively.
This Joint Proxy Statement/Prospectus and the accompanying forms of
proxy are first being mailed to stockholders of Olicom and CrossComm on or
about May ___, 1997.
THE ABOVE MATTERS ARE DISCUSSED IN DETAIL IN THIS JOINT PROXY
STATEMENT/PROSPECTUS. THE PROPOSED MERGER IS A COMPLEX TRANSACTION. THE
STOCKHOLDERS OF OLICOM AND CROSSCOMM ARE STRONGLY URGED TO READ AND CONSIDER
CAREFULLY THIS JOINT PROXY STATEMENT/PROSPECTUS IN ITS ENTIRETY.
SEE "RISK FACTORS," BEGINNING ON PAGE __ FOR A DESCRIPTION OF CERTAIN
RISKS RELATED TO (i) OLICOM AND ITS OPERATIONS, (ii) CROSSCOMM AND ITS
OPERATIONS, AND (iii) THE PROPOSED COMBINED OPERATIONS OF OLICOM AND CROSSCOMM
FOLLOWING CONSUMMATION OF THE MERGER AND THE ISSUANCE OF OLICOM COMMON STOCK
PURSUANT TO THE MERGER.
<PAGE> 16
___________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROXY STATEMENT/PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
___________________________
The date of this Joint Proxy Statement/Prospectus is May ___, 1997.
<PAGE> 17
AVAILABLE INFORMATION
Olicom is subject to the informational requirements applicable to
"foreign private issuers," and CrossComm is subject to the informational
requirements, of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith file reports, proxy statements (as to
CrossComm) and other information with the Securities and Exchange Commission
(the "Commission"). These materials can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street N.W., Washington, D.C. 20549 and at the Commission's regional offices at
Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661 and 7 World Trade Center, New York, New York 10048. Copies of these
materials can also be obtained from the Commission at prescribed rates by
writing to the Public Reference Section of the Commission, 450 Fifth Street
N.W., Washington, D.C. 20549. Olicom Common Stock and CrossComm Common Stock
are traded on the Nasdaq National Market. Reports and other information
concerning Olicom and CrossComm can also be inspected at the offices of the
National Association of Securities Dealers, Inc., Market Listing Section, 1735
K Street, N.W., Washington, D.C. 20006. The Commission also maintains a Web
site that contains reports, proxy and information statements and other
information regarding Olicom, CrossComm and other registrants that have been
filed electronically with the Commission. The address of such site is
http://www.sec.gov. Upon the consummation of the Merger, the listing of
CrossComm Common Stock on the Nasdaq National Market will be terminated.
Under the rules and regulations of the Commission, the solicitation of
proxies from stockholders of CrossComm to approve the Merger Agreement and the
consummation of the Merger constitutes an offering of the Olicom Common Stock
and the Warrants to be issued in connection with the Merger, and may constitute
an offering of the shares of Olicom Common Stock to be issued upon exercise of
the Warrants. Accordingly, Olicom has filed with the Commission a Registration
Statement on Form F-4 (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Securities Act"), with respect to such offering.
This Joint Proxy Statement/Prospectus constitutes the prospectus of Olicom that
is filed as part of the Registration Statement, but does not contain all the
information set forth in the Registration Statement, certain portions of which
have been omitted pursuant to the rules and regulations of the Commission.
Such additional information may be obtained from the Commission's principal
office in Washington, D.C., as well as through the Commission's web site at
http://www.sec.gov. Statements contained in this Joint Proxy
Statement/Prospectus or in any document incorporated by reference in this Joint
Proxy Statement/Prospectus as to the contents of any contract or other document
referred to herein or therein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or other such document, each such
statement being qualified in all respects by such reference. After the
consummation of the Merger, registration of CrossComm Common Stock under the
Exchange Act will be terminated.
i
<PAGE> 18
REPORTS TO OLICOM STOCKHOLDERS
Olicom is currently exempt from the rules under the Exchange Act
prescribing the furnishing and content of proxy statements, and its securities
are exempt from the reporting and short-swing profit recovery provisions
contained in Section 16 of the Exchange Act. Olicom is not required under the
Exchange Act to publish financial statements as frequently or as promptly as
are United States companies subject thereto. However, Olicom furnishes and,
after the effective time of the Merger, will continue to furnish, its
stockholders with annual reports containing audited financial statements and
periodic interim reports containing unaudited results of operations as well as
other reports. The management of Olicom has in the past solicited proxies from
its stockholders, and Olicom management intends to continue this practice.
Olicom prepares its consolidated financial statements in United States
dollars in accordance with accounting principles generally accepted in both the
Kingdom of Denmark and the United States. All references to "dollars" or "$"
in this Joint Proxy Statement/Prospectus are to United States dollars, and all
references to "kroner" or "DKK" are to Danish kroner.
ENFORCEMENT OF CIVIL LIABILITIES
Olicom is a corporation organized under the laws of the Kingdom of
Denmark. All of its directors, substantially all members of corporate
management, and all of its experts named herein are nonresidents of the United
States, and all or a substantial portion of the assets of such persons are
located outside the United States. A substantial portion of Olicom's assets
are located in the Kingdom of Denmark. See "Risk Factors -- Risks Relating to
Olicom and CrossComm: Consequences of Danish Incorporation" and "-- Risks
Relating to Olicom and CrossComm: Service and Enforcement of Legal Process."
As a result, it may not be possible for investors to effect service of process
within the United States upon such persons or to enforce against such persons
or Olicom judgments of United States courts predicated upon the civil liability
provisions of the federal securities laws of the United States. The Company
has been advised by Advokatfirmaet O. Bondo Svane, its Danish legal counsel,
that liabilities predicated solely upon the federal securities laws of the
United States are not enforceable in original actions instituted in the Kingdom
of Denmark, or in actions instituted in the Kingdom of Denmark for enforcement
of judgments of United States courts.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All Annual Reports on Form 20-F, and any Form 6-K so designated,
subsequently filed by Olicom pursuant to Sections 13(a), 13(c) or 15(d) of the
Exchange Act subsequent to the date of this Joint Proxy Statement/Prospectus
and prior to the termination of the offering under this Joint Proxy
Statement/Prospectus shall be deemed to be incorporated by reference into this
Joint Proxy Statement/Prospectus from the date of filing of each such document.
All reports and definitive proxy or information statements filed by CrossComm
pursuant to Sections 13(a),
ii
<PAGE> 19
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Joint
Proxy Statement/Prospectus and prior to the date of the CrossComm Meeting shall
be deemed to be incorporated by reference into this Joint Proxy
Statement/Prospectus from the date of filing of each such document. Also
incorporated by reference herein is the Merger Agreement, which is attached to
this Joint Proxy Statement/Prospectus as Appendix A. Any statement contained
in a document incorporated or deemed to be incorporated herein shall be deemed
to be modified or superseded for purposes of this Joint Proxy
Statement/Prospectus to the extent that a statement contained herein or in any
other subsequently-filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Joint Proxy Statement/Prospectus.
THE DOCUMENTS REFERRED TO ABOVE AND THAT WILL BE INCORPORATED BY
REFERENCE INTO THIS JOINT PROXY STATEMENT/PROSPECTUS WILL BE PROVIDED WITHOUT
CHARGE TO EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A JOINT PROXY
STATEMENT/PROSPECTUS IS DELIVERED, UPON ORAL OR WRITTEN REQUEST OF ANY SUCH
PERSON, A COPY OF ANY OR ALL DOCUMENTS INCORPORATED BY REFERENCE HEREIN
(EXCLUDING EXHIBITS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE HEREIN). WITH RESPECT TO OLICOM'S DOCUMENTS, REQUESTS SHOULD BE
DIRECTED TO OLICOM A/S, AT ITS INVESTOR RELATIONS OFFICES AT NYBROVEJ 114,
DK-2800 LYNGBY, DENMARK (TELEPHONE +45 45 270000), OR 900 EAST PARK BOULEVARD,
SUITE 250, PLANO, TEXAS 75074 (TELEPHONE (972) 423-7560). WITH RESPECT TO
CROSSCOMM'S DOCUMENTS, REQUESTS SHOULD BE DIRECTED TO CROSSCOMM CORPORATION,
INVESTOR RELATIONS, 450 DONALD LYNCH BOULEVARD, MARLBOROUGH, MASSACHUSETTS
01752 (TELEPHONE (508) 481-4060). IN ORDER TO ASSURE TIMELY DELIVERY OF THE
DOCUMENTS IN ADVANCE OF THE MEETINGS TO WHICH THIS JOINT PROXY
STATEMENT/PROSPECTUS RELATES, ANY SUCH REQUEST SHOULD BE MADE BY MAY ___, 1997.
NO PERSON HAS BEEN AUTHORIZED BY OLICOM OR CROSSCOMM TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS JOINT PROXY
STATEMENT/PROSPECTUS IN CONNECTION WITH THE SOLICITATION OF PROXIES OR THE
OFFERING OF SECURITIES MADE HEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY OLICOM OR
CROSSCOMM. THIS JOINT PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED BY THIS
JOINT PROXY STATEMENT/PROSPECTUS OR A SOLICITATION OF A PROXY IN ANY
JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT WOULD BE UNLAWFUL TO MAKE SUCH
AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS JOINT PROXY
STATEMENT/PROSPECTUS NOR ANY DISTRIBUTION OF THE SECURITIES TO WHICH THIS JOINT
PROXY STATEMENT/PROSPECTUS RELATES SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION CONTAINED HEREIN
SINCE THE DATE HEREOF. ALL INFORMATION CONTAINED IN THIS JOINT PROXY
STATEMENT/PROSPECTUS RELATING TO OLICOM AND MERGERSUB HAS BEEN SUPPLIED BY
OLICOM, AND ALL INFORMATION RELATING TO CROSSCOMM HAS BEEN SUPPLIED BY
CROSSCOMM.
iii
<PAGE> 20
TRADEMARKS
The "Olicom" mark is a registered trademark of Ing. C. Olivetti & C.,
S.p.A., that has been licensed to Olicom. "GoCard" and the Olicom clasped
hands logo are registered trademarks of Olicom, and "RapidFire," "CrossFire"
and "CellDriver" are trademarks of Olicom. "CrossComm," "ClearPath" and
"ExpertWatch" are trademarks of CrossComm. This Joint Proxy
Statement/Prospectus also contains trademarks of companies other than Olicom,
CrossComm and their respective subsidiaries and affiliates.
iv
<PAGE> 21
TABLE OF CONTENTS
<TABLE>
<S> <C>
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
REPORTS TO OLICOM STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . ii
ENFORCEMENT OF CIVIL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . ii
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . . . . . . . . ii
TRADEMARKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Risks Relating to the Merger . . . . . . . . . . . . . . . . . . . . . . . 16
Risks Relating to Olicom and CrossComm . . . . . . . . . . . . . . . . . . 18
THE OLICOM MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Date, Time and Place of the Olicom Meeting . . . . . . . . . . . . . . . . 26
Matters to be Considered at the Olicom Meeting . . . . . . . . . . . . . . 26
Record Date and Shares Entitled to Vote . . . . . . . . . . . . . . . . . . 37
Voting of Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Vote Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Quorum; Abstentions and Broker Non-Votes . . . . . . . . . . . . . . . . . 38
Solicitation of Proxies and Expenses . . . . . . . . . . . . . . . . . . . 39
THE CROSSCOMM MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Date, Time and Place of the CrossComm Meeting . . . . . . . . . . . . . . . 39
Matters to be Considered at the CrossComm Meeting . . . . . . . . . . . . . 39
Record Date and Shares Entitled to Vote . . . . . . . . . . . . . . . . . . 41
Voting of Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Vote Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Quorum; Abstentions and Broker Non-Votes . . . . . . . . . . . . . . . . . 42
Solicitation of Proxies and Expenses . . . . . . . . . . . . . . . . . . . 43
THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Background of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . 43
Reasons for the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Opinion of Olicom's Financial Advisor . . . . . . . . . . . . . . . . . . . 52
Opinion of CrossComm's Financial Advisor . . . . . . . . . . . . . . . . . 57
Operations Following the Merger . . . . . . . . . . . . . . . . . . . . . . 63
Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Anticipated Accounting Treatment . . . . . . . . . . . . . . . . . . . . . 63
Resales of Olicom Common Stock; Affiliate Agreements . . . . . . . . . . . 64
Appraisal Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
THE AGREEMENT AND PLAN OF REORGANIZATION . . . . . . . . . . . . . . . . . . . . . 67
The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Exchange of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Assumption of Options . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
CrossComm Employee Stock Purchase Plan . . . . . . . . . . . . . . . . . . 69
Exchange of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 69
</TABLE>
v
<PAGE> 22
<TABLE>
<S> <C>
Notification Regarding Options . . . . . . . . . . . . . . . . . . . . . . 70
Representations, Warranties and Covenants . . . . . . . . . . . . . . . . . 70
No Solicitation of Transactions . . . . . . . . . . . . . . . . . . . . . . 71
Conditions to the Merger . . . . . . . . . . . . . . . . . . . . . . . . . 73
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Termination, Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 76
Fees and Expenses; Termination Fee . . . . . . . . . . . . . . . . . . . . 78
Indemnification and Insurance . . . . . . . . . . . . . . . . . . . . . . . 80
Interests of Certain Persons in the Merger . . . . . . . . . . . . . . . . 81
Related Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
OLICOM A/S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . . .102
Management's Discussion and Analysis of Financial Condition
and Results of Operation . . . . . . . . . . . . . . . . . . . . . . . .104
Management of Olicom . . . . . . . . . . . . . . . . . . . . . . . . . . .111
Certain Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . .114
Security Ownership of Certain Beneficial Owners
and Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
CROSSCOMM CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . . .124
Management's Discussion and Analysis of Financial Condition
and Results of Operation . . . . . . . . . . . . . . . . . . . . . . . .125
Management of CrossComm . . . . . . . . . . . . . . . . . . . . . . . . . .132
Security Ownership of Certain Beneficial Owners
and Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146
NOTES TO UNAUDITED PRO FORMA CONDENSED
COMBINED FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . .148
TAX CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149
Certain U.S. Federal Income Tax Consequences
of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149
United States Tax Consequences Of Ownership
of Olicom Common Stock . . . . . . . . . . . . . . . . . . . . . . . . .151
United States Tax Consequences of Ownership of Warrants . . . . . . . . . .152
Danish Tax Consequences of Ownership
of Olicom Common Stock . . . . . . . . . . . . . . . . . . . . . . . . .152
DESCRIPTION OF OLICOM COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . .153
COMPARISON OF STOCKHOLDER RIGHTS UNDER
THE LAWS OF DENMARK AND DELAWARE . . . . . . . . . . . . . . . . . . . . . . . .154
STOCKHOLDER PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164
</TABLE>
vi
<PAGE> 23
<TABLE>
<S> <C>
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
FINANCIAL STATEMENTS AVAILABLE . . . . . . . . . . . . . . . . . . . . . . . . . . 165
INDEX TO FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
Olicom A/S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-3
CrossComm Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . F-19
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A -- Agreement and Plan of Reorganization and
Certificate of Merger . . . . . . . . . . . . . . . . . . . . . .
B -- Opinion of Alex. Brown & Sons Incorporated . . . . . . . . . . . . . .
C -- Opinion of Montgomery Securities . . . . . . . . . . . . . . . . . . .
D -- Section 262 of the Delaware General Corporation Law . . . . . . . . .
E -- Olicom 1997 Share Incentive Plan . . . . . . . . . . . . . . . . . . .
</TABLE>
vii
<PAGE> 24
SUMMARY
The following is a summary of certain information contained elsewhere
in this Joint Proxy Statement/Prospectus, the Appendices hereto, the Exhibits
to the Registration Statement (the "Exhibits") and documents incorporated by
reference herein. The summary does not contain a complete statement of
material information relating to the Merger Agreement, the Merger or the other
matters discussed herein and is subject to, and qualified in its entirety by,
the more detailed information and financial statements contained or
incorporated by reference in this Joint Proxy Statement/Prospectus and the
Appendices hereto and the Exhibits. Unless otherwise defined herein,
capitalized terms used in this summary have the same meanings ascribed to them
elsewhere in this Joint Proxy Statement/Prospectus. Olicom stockholders and
CrossComm stockholders are urged to read this Joint Proxy Statement/Prospectus
and the Appendices and the Exhibits in their entirety.
This Joint Proxy Statement/Prospectus contains forward-looking
statements within the meaning of the Private Securities Litigation Reform Act
of 1995, concerning future results which are subject to risks and
uncertainties. Olicom's and CrossComm's actual results may differ
significantly from the results discussed in the forward-looking statements.
Factors that might cause such a difference include, but are not limited to,
those discussed in the section captioned "Risk Factors."
THE COMPANIES
OLICOM
Olicom develops and markets local area network ("LAN") software and
hardware products that enable computer users to communicate, exchange data and
share computing resources in workgroup and enterprise LANs or in wide area
networks ("WANs"). Olicom believes that its products offer superior
performance, are price competitive and are fully compatible with industry
standards and networking and internetworking products manufactured by
International Business Machines Corporation ("IBM") and other vendors.
Olicom's products are marketed worldwide primarily through distributors,
value-added resellers (including dealers, systems integrators and other
resellers) ("VARs") and original equipment manufacturer customers ("OEMs").
See "Olicom A/S -- Business."
MergerSub refers to PW Acquisition Corporation, a Delaware corporation
and wholly-owned subsidiary of Olicom formed solely for the purpose of the
Merger. MergerSub's principal offices are located at 900 East Park Blvd.,
Suite 250, Plano, Texas 75074. MergerSub's telephone number is (972) 423-7560.
Unless otherwise indicated, "Olicom" refers to Olicom A/S, a
corporation organized under the laws of the Kingdom of Denmark, and its
wholly-owned and majority-owned subsidiaries. Olicom was incorporated in the
Kingdom of Denmark in 1985. Olicom's principal
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executive offices are located at Nybrovej 114, DK-2800 Lyngby, Denmark. Its
telephone number is +45 45 270000.
CROSSCOMM
CrossComm develops, manufactures, markets and supports advanced
networking products. These products concurrently support bridging,
multi-protocol routing and high speed LAN switching functions and asynchronous
transfer mode ("ATM") switching. CrossComm has marketed these products to
customers transitioning mission-critical business applications from legacy
hierarchical computing environments, typically dominated by IBM mainframe
systems with Systems Network Architecture ("SNA"), to client/server
environments, where computing power is distributed throughout the organization
and interconnected by an enterprise-wide network. CrossComm's product line,
which consists of a family of multi-protocol routers and high speed LAN and ATM
switches, supports a variety of LAN and WAN connections and LAN communications
protocols and can be readily integrated with a customer's existing computer
equipment. These products are designed to provide non-stop scalable networks
that are easy to use, install and maintain and provide customers a migration
path to high bandwidth ATM networks. CrossComm markets its products in the
United States and Canada through a direct sales organization, complemented by
VARs and system integrators. CrossComm also sells its products internationally
through a network of international distributors and through a direct sales
organization in the United Kingdom. See "CrossComm Corporation--Business."
Unless otherwise indicated, "CrossComm" refers to CrossComm
Corporation, a Delaware corporation, and its wholly- owned subsidiaries.
CrossComm was incorporated in Delaware in April 1987. CrossComm's executive
offices are located at 450 Donald Lynch Boulevard, Marlborough, Massachusetts
01752. Its telephone number is (508) 481-4060.
THE MEETINGS
OLICOM
Time, Date and Place. The Olicom Meeting will be held on May __, at
4:00 p.m., local time, at Olicom's International Headquarters located at
Nybrovej 114, DK-2800 Lyngby, Denmark.
Purpose. At the Olicom Meeting, stockholders of record of Olicom
Common Stock will be asked to consider and vote on a proposal to approve the
Merger Agreement and the consummation of the Merger. Stockholders of Olicom
also will be asked to consider and vote on proposals (a) to (i) receive the
report of the Olicom Board regarding Olicom's activities during fiscal year
1996, (ii) receive Olicom's profit and loss account for the fiscal year ended
December 31, 1996, and its balance sheet at such date, and vote on the adoption
of same, (iii) approve the discharge of Olicom's management and the Olicom
Board from their duties for fiscal year 1996, and (iv) authorize the carry
forward of Olicom's profits to the fiscal year
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ending December 31, 1997; (b) to elect seven directors to hold office for a
term ending in 1998 and until their successors are elected and qualified; (c)
to appoint Ernst & Young A/S and KPMG C. Jespersen as Olicom's auditors, and
Ernst & Young LLP as the auditors for Olicom Americas; (d) to authorize the
purchase by Olicom from time to time for a period of 18 months following the
Olicom Meeting of up to 10% of the issued and outstanding shares of Olicom
Common Stock; (e) to approve the fees of Olicom's directors for fiscal year
1997; (f) to approve amendments to Olicom's Articles of Association (the
"Olicom Articles"); (g) to approve Olicom's 1997 Share Incentive Plan; and (h)
if necessary, to approve the postponement or adjournment of the Olicom Meeting
for the solicitation of additional votes. Stockholders of Olicom will
also consider and vote on any other matter that may properly come before the
Olicom Meeting and any adjournment or postponement thereof. Representatives of
Ernst & Young A/S are expected to be present at the Olicom Meeting, will have
the opportunity to make a statement if they desire to do so, and are expected
to be available to respond to appropriate questions. See "The Olicom Meeting
- -- Matters to be Considered at the Olicom Meeting."
Stockholders Entitled to Vote. Only holders of record of Olicom
Common Stock on May __, 1997 (the "Record Date"), are entitled to notice of and
to vote at the Olicom Meeting. At the close of business on the Record Date,
there were outstanding and entitled to vote __________ shares of Olicom Common
Stock, each of which will be entitled to one vote on each matter to be acted
upon. See "The Olicom Meeting -- Record Date and Shares Entitled to Vote."
Required Vote. Except for the proposal to approve amendments to the
Olicom Articles, the affirmative vote of a majority of the shares of Olicom
Common Stock present and voting at the Olicom Meeting is required for approval
of all proposals being submitted to Olicom's stockholders for their
consideration. The proposal to approve amendments to the Olicom Articles
requires approval by two-thirds of the votes cast at the Olicom Meeting and
two-thirds in nominal value of the voting capital represented at such meeting.
The Companies Act of the Kingdom of Denmark (the "Companies Act") and the
Olicom Articles generally do not require the presence, in person or by proxy,
of a minimum number of shares of Olicom Common Stock constituting a quorum at
the Olicom Meeting in order for the Olicom stockholders to take action with
respect to the foregoing matters. See "The Olicom Meeting -- Vote Required."
CROSSCOMM
Time, Date and Place. The CrossComm Meeting will be held on May __,
1997 at 10:00 a.m., local time, at the Radisson Marlborough Hotel, 75 Felton
Street, Marlborough, Massachusetts, United States.
Purpose. At the CrossComm Meeting, stockholders of record of CrossComm
will be asked to consider and vote on a proposal to approve the Merger
Agreement and the consummation of the Merger. Stockholders of CrossComm also
will be asked to consider and
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vote on proposals to (i) elect four directors to serve for the ensuing year;
(ii) to grant the CrossComm Board discretionary authority to adjourn the
CrossComm Meeting in order to solicit additional votes for approval of the
Merger; and (iii) to ratify the selection by the CrossComm Board of Ernst &
Young LLP as CrossComm's independent auditors for the current fiscal year.
Stockholders of CrossComm will also consider and vote on any other matter that
may properly come before the CrossComm Meeting and any adjournment or
postponement thereof. Representatives of Ernst & Young LLP are expected to be
present at the CrossComm Meeting. They will have the opportunity to make a
statement if they desire to do so and will be available to respond to
appropriate questions from stockholders.
Stockholders Entitled to Vote. Only holders of record of CrossComm
Stock on the Record Date, are entitled to notice of, and to vote at, the
CrossComm Meeting. At the close of business on the Record Date, there were
outstanding and entitled to vote ________ shares of CrossComm Common Stock, each
of which will be entitled to one vote on each matter to be acted upon. See "The
CrossComm Meeting -- Record Date and Shares Entitled to Vote."
Required Vote. Approval of the Merger Agreement and the transactions
contemplated thereby requires the affirmative vote of the holders of a majority
of the outstanding shares of CrossComm Common Stock. The affirmative vote of
the holders of a plurality of the shares of CrossComm Common Stock present or
represented at the CrossComm Meeting is required for the election of directors.
The affirmative vote of the holders of a majority of the shares of CrossComm
Common Stock present or represented at the CrossComm Meeting is required for
the grant to the CrossComm Board of discretionary authority to adjourn the
CrossComm Meeting and for the ratification of the selection by the CrossComm
Board of Ernst & Young LLP as CrossComm's independent auditors for the current
fiscal year. See "The CrossComm Meeting -- Vote Required."
THE MERGER
RECOMMENDATIONS OF THE BOARDS OF DIRECTORS
The Olicom Board has unanimously approved the Merger Agreement and
determined that the Merger is fair and in the best interests of Olicom. THE
OLICOM BOARD RECOMMENDS THAT OLICOM STOCKHOLDERS VOTE FOR THE MERGER AGREEMENT
AND THE MERGER, AS WELL AS VOTE FOR THE OTHER PROPOSALS TO BE CONSIDERED AT THE
OLICOM MEETING. For a discussion of factors considered by the Olicom Board in
reaching its decision to approve the Merger Agreement and the Merger, see "The
Merger -- Reasons for the Merger: Joint Reasons for the Merger" and "--
Reasons for the Merger: Olicom's Reasons for the Merger." Olicom has agreed
to use its best efforts to obtain the approval of the Merger Agreement and the
Merger by Olicom's stockholders.
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The CrossComm Board has unanimously approved the Merger Agreement and
determined that the Merger is fair and in the best interests of CrossComm and
its stockholders. THE CROSSCOMM BOARD RECOMMENDS THAT CROSSCOMM STOCKHOLDERS
VOTE FOR THE MERGER AGREEMENT AND THE MERGER, AS WELL AS VOTE FOR THE OTHER
PROPOSALS TO BE CONSIDERED AT THE CROSSCOMM MEETING. For a discussion of
factors considered by the CrossComm Board in reaching its decision to approve
the Merger Agreement and the Merger, see "The Merger -- Reasons for the Merger:
Joint Reasons for the Merger" and "-- Reasons for the Merger: CrossComm's
Reasons for the Merger." CrossComm has agreed to use its best efforts to
obtain the approval of the Merger Agreement and the Merger by CrossComm's
stockholders.
OPINIONS OF FINANCIAL ADVISORS
The Olicom Board has received from Alex. Brown & Sons Incorporated
("Alex. Brown") its written opinion, dated as of March 20, 1997 (the "Alex.
Brown Opinion"), that, as of such date, and based upon and subject to the
factors and assumptions set forth in such written opinion, the consideration to
be paid by Olicom pursuant to the Merger was fair to Olicom, from a financial
point of view. The full text of the Alex. Brown Opinion is attached as
Appendix B to this Joint Proxy Statement/Prospectus. Olicom stockholders
should read the Alex. Brown Opinion in its entirety. See "The Merger --
Opinion of Olicom's Financial Advisor."
The CrossComm Board has received from Montgomery Securities
("Montgomery") its written opinion, dated as of March 20, 1997 (the "Montgomery
Opinion"), that, as of such date, and based upon and subject to the factors and
assumptions set forth in such written opinion, the consideration to be received
by the stockholders of CrossComm pursuant to the Merger was fair to CrossComm's
stockholders, from a financial point of view. The full text of the Montgomery
Opinion is attached as Appendix C to this Joint Proxy Statement/Prospectus.
CrossComm stockholders should read the Montgomery Opinion in its entirety. See
"The Merger -- Opinion of CrossComm's Financial Advisor."
TERMS OF THE MERGER
Olicom, MergerSub and CrossComm have entered into the Merger Agreement,
whereby MergerSub will be merged with and into CrossComm, resulting in
CrossComm becoming a wholly-owned subsidiary of Olicom. See "The Agreement and
Plan of Reorganization."
Exchange Ratio; Warrant Exchange Ratio. Upon the effectiveness of the
Merger, each share of CrossComm Common Stock will be exchanged for $5.00 in
cash, 0.2667 shares of Olicom Common Stock and three-year Warrants to purchase
0.1075 shares of Olicom Common Stock at an exercise price of $19.74 per whole
share; provided that (i) in the event that the Final Closing Price is less than
$12.50, Olicom will have the right to increase the Exchange Ratio to the number
which, when multiplied by the Final Closing Price, equals $3.33 (and if Olicom
does not so increase the Exchange Ratio, CrossComm will have the right to
terminate the Merger Agreement); and (ii) in the event that the Final Closing
Price is more than $20.83, Olicom will
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have the right to decrease the Exchange Ratio to the number which, when
multiplied by the Final Closing Price, equals $5.56 (and if Olicom so decreases
the Exchange Ratio, CrossComm will have the right to terminate the Merger
Agreement). Based on the capitalization of CrossComm as of the Record Date and
assuming an Exchange Ratio of 0.2667, it is expected that, as a result of the
Merger, approximately 2,700,000 shares of Olicom Common Stock will be issued by
virtue of the Merger. In addition, based on the capitalization of CrossComm as
of the Record Date and assuming a Warrant Exchange Ratio of 0.1075, it is
expected that, as a result of the Merger, approximately 1,100,000 additional
shares of Olicom Common Stock may be issuable by Olicom pursuant to the
exercise of Warrants issued by virtue of the Merger. The foregoing number of
shares of Olicom Common Stock and Warrants that may be issued by virtue of the
Merger gives pro forma effect to the exercise of all options ("CrossComm
Options") that are vested under the stock option plans of CrossComm (the
"CrossComm Option Plans") and the purchase of CrossComm Common Stock under
CrossComm's 1995 Employee Stock Purchase Plan (the "CrossComm ESPP") in amounts
consistent with current levels of contributions thereto.
As of the Record Date, there were ____________ shares of CrossComm
Common Stock outstanding and ___________ shares of CrossComm Common Stock
reserved for issuance pursuant to outstanding CrossComm Options, of which
__________ options to purchase _______ shares of CrossComm Common Stock were
vested and exercisable. Based on the average of the high and low sales prices
of Olicom Common Stock for the ten trading days ending on May ___, 1997
($____________), and assuming the exercise of all vested CrossComm Options at
the Effective Time and the purchase of CrossComm Common Stock under the
CrossComm ESPP consistent with current levels of contributions thereto, the
aggregate value of the Merger consideration to be issued in the transaction
would be approximately $__________ million. See "The Agreement and Plan of
Reorganization -- Exchange of Shares."
The shares of Olicom Common Stock outstanding prior to the Merger will
remain unchanged by the Merger, except for dilution, calculated on a pro forma
basis as described above, of approximately 18.3% resulting from the Merger.
Fractional Shares; Warrants to Purchase Fractional Shares. No
fractional shares of Olicom Common Stock and no Warrants to purchase fractional
shares will be issued in the Merger. Instead, each CrossComm stockholder who
would otherwise be entitled to receive a fraction of a share of Olicom Common
Stock will receive an amount of cash equal to the Final Closing Price
multiplied by the fraction of a share of Olicom Common Stock to which the
stockholder would otherwise be entitled. Further, each CrossComm stockholder
who would otherwise be entitled to receive a Warrant to purchase a fractional
share of Olicom Common Stock will receive an amount of cash equal to the value
of a Warrant (determined in the manner described herein) multiplied by the
fraction of a share to which the stockholder would otherwise be entitled upon
exercise of a Warrant. See "The Agreement and Plan of Reorganization --
Exchange of Shares."
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Effective Time. As promptly as practicable after the satisfaction or
waiver of the conditions set forth in the Merger Agreement, MergerSub and
CrossComm will file certificates of merger with the Secretary of State of
Delaware and the Recorder of the County in which the registered office of each
of CrossComm and MergerSub is located. The Merger will become effective upon
such filings (the time of such filings is referred to herein as the "Effective
Time"). It is anticipated that, assuming all conditions are met, the Merger
will occur and a closing will be held on or before June 30, 1997 (the
"Closing"). See "The Agreement and Plan of Reorganization -- Closing."
Exchange of Certificates. Following the Effective Time, a letter of
transmittal with instructions will be mailed to each holder of record of
CrossComm Common Stock for use in exchanging CrossComm Common Stock
certificates for Olicom Common Stock certificates, Warrants and the cash
portion of the Merger Consideration. HOLDERS OF CROSSCOMM COMMON STOCK SHOULD
NOT SUBMIT THEIR STOCK CERTIFICATES FOR EXCHANGE UNTIL THEY HAVE RECEIVED THE
LETTER OF TRANSMITTAL AND INSTRUCTIONS.
Assumption of CrossComm Options. At the Effective Time, each
outstanding CrossComm Option will be assumed by Olicom and converted into an
option to purchase Olicom Common Stock, pursuant to the adjustment mechanism
described in this Joint Proxy Statement/Prospectus. See "The Agreement and
Plan of Reorganization -- Assumption of Options." Following the effectiveness
of the Merger, Olicom will issue to each holder of an unexercised CrossComm
Option a document evidencing the assumption of such option by Olicom. See "The
Agreement and Plan of Reorganization -- Exchange of Certificates" and "--
Notification Regarding Options."
Indemnification and Insurance. Olicom has agreed that, for a period of
six years after the Effective Time, it will indemnify and hold harmless the
present and former officers, directors, employees, fiduciaries and agents of
CrossComm in respect of acts or omissions occurring on or prior to the
Effective Time to the fullest extent permitted by applicable law and to the
fullest extent provided under CrossComm's Certificate of Incorporation (the
"CrossComm Certificate") and Bylaws or any indemnification agreement with
CrossComm officers and directors to which CrossComm is a party, in each case as
in effect on the date of the Merger Agreement. The Merger Agreement also
provides that until July 14, 1999, Olicom will provide officers' and directors'
liability insurance in respect of acts or omissions occurring on or prior to
the Effective Time covering each such person currently covered by CrossComm's
officers' and directors' liability insurance policy on terms substantially
similar to those of such policy in effect on the date hereof; provided,
however, that in satisfying such obligations, Olicom will not be obligated to
expend in any one year in excess of $200,000 for such coverage, and if Olicom
is unable to obtain such insurance, it will obtain as much comparable insurance
as possible for an annual premium equal to such maximum amount. See "The
Agreement and Plan of Reorganization -- Indemnification and Insurance" and "--
Interests of Certain Persons in the Merger."
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Certain Federal Income Tax Considerations. The Merger constitutes a
taxable reverse subsidiary merger which will be treated for United States
federal income tax purposes as a direct purchase by Olicom of the shares of
CrossComm Common Stock from the CrossComm stockholders in exchange for the
Merger Consideration received by such stockholders. Each CrossComm stockholder
will recognize gain or loss as measured by the difference between the amount
realized by such stockholder (i.e. the amount of cash plus the fair market
value of the Olicom Common Stock and Warrants received by the stockholder) and
the stockholder's basis in its CrossComm Common Stock. For CrossComm
stockholders who hold their CrossComm Common Stock as a capital asset, the gain
or loss recognized should be capital gain or loss. CROSSCOMM STOCKHOLDERS ARE
URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO
THEM OF THE MERGER, INCLUDING THE APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN
TAX CONSEQUENCES. For further discussion of the United States federal income
tax and Danish federal tax considerations of the Merger and ownership of Olicom
Common Stock and Olicom Warrants, see "Tax Considerations."
Accounting Treatment. Olicom intends to use purchase accounting with
respect to the Merger for both United States and Denmark financial accounting
purposes. The availability or use of a specific method of accounting is not a
condition to the consummation of the Merger. See "The Merger -- Anticipated
Accounting Treatment."
Government and Regulatory Approvals. Consummation of the Merger is
conditioned on the expiration or termination of the waiting period applicable
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"). Olicom and CrossComm have filed notification reports under the HSR
Act with the Federal Trade Commission (the "FTC") and the Antitrust Division of
the Department of Justice (the "Antitrust Division"). In addition, in order to
effect the Merger, the Registration Statement shall have been declared
effective by the Commission under the Securities Act. See "The Merger --
Regulatory Matters."
No Injunction Preventing the Merger. Consummation of the Merger is
subject to the condition that there not have been issued any temporary
restraining order or injunction or order by any court of competent jurisdiction
that prevents the consummation of the Merger. See "The Agreement and Plan of
Reorganization -- Conditions to the Merger."
Other Conditions to the Merger. In addition to the requirement that
the requisite approvals of Olicom stockholders and CrossComm stockholders be
received, the consummation of the Merger is subject to a number of certain
customary and other conditions that, if not satisfied or waived, may cause the
Merger not to be consummated and the Merger Agreement to be terminated,
including, without limitation, that the shares of Olicom Common Stock and
Warrants to be issued in the Merger have been authorized for listing on the
Nasdaq National Market, subject to notice of issuance. See "The Agreement and
Plan of Reorganization -- Conditions to the Merger."
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NO SOLICITATION OF TRANSACTIONS
Restriction. CrossComm has agreed not to, directly or indirectly,
solicit, initiate discussions, encourage or engage in negotiations with, or
disclose any nonpublic information relating to CrossComm or any of its
subsidiaries to, any person relating to a possible acquisition of CrossComm;
provided, however, that if the CrossComm Board receives an unsolicited bona
fide written offer or proposal, or written expression of interest, that the
CrossComm Board believes in good faith will result in a transaction more
favorable to CrossComm stockholders from a financial point of view than the
Merger (a "Superior Proposal"), and the CrossComm Board determines in good
faith that such actions are necessary for the CrossComm Board to comply with
its fiduciary duties under applicable law and that the party making such
Superior Proposal has the financial means, or the ability to obtain the
necessary financing, to consummate such transaction, then the CrossComm Board
will not be prevented from taking such actions as are consistent with the
fiduciary obligations of the CrossComm Board. See "The Agreement and Plan of
Reorganization -- No Solicitation of Transactions."
TERMINATION OR AMENDMENT OF THE MERGER AGREEMENT
Termination. At any time prior to the Effective Time, the Merger
Agreement may be terminated under certain circumstances, including, without
limitation, by mutual consent of Olicom and CrossComm, or by either Olicom or
CrossComm if the other party commits certain material breaches of any
representation, warranty or covenant made by such other party in the Merger
Agreement. In addition, the Merger Agreement may be terminated by either party
if the Merger is not consummated by August 1, 1997, or by Olicom or, under
certain circumstances, by CrossComm, if the CrossComm Board withdraws or
modifies its recommendation of the Merger Agreement or the Merger in a manner
adverse to Olicom. The Merger Agreement may also be terminated by CrossComm if
the CrossComm Board receives a Superior Proposal and determines in good faith
that the failure to accept such Superior Proposal would be inconsistent with
its fiduciary duties to CrossComm's stockholders under applicable law, provided
that CrossComm has provided Olicom with at least one business day's written
notice of such Superior Proposal, and contemporaneously with giving notice of
termination, CrossComm makes the payment of the Termination Fee. Further, the
Merger Agreement may be terminated by CrossComm (i) if the Final Closing Price
is less than $12.50 and Olicom fails to increase the Exchange Ratio as provided
in the Merger Agreement, or (ii) if the Final Closing Price is more than $20.83
and Olicom decreases the Exchange Ratio as provided in the Merger Agreement.
In addition, the Merger Agreement may be terminated (x) by Olicom if, for any
reason, the CrossComm Board fails to call and hold a meeting of CrossComm
stockholders to approve the Merger Agreement and the Merger by June 30, 1997,
or at such meeting (including any adjournment or postponement thereof), the
requisite vote of the stockholders of CrossComm in favor of the Merger
Agreement and the Merger is not obtained, and (y) by CrossComm, if for any
reason, the Olicom Board fails to call and hold a meeting of Olicom
stockholders to approve the Merger Agreement and the Merger by June 30, 1997,
or at such meeting (including any adjournment or postponement thereof), the
requisite vote of the stockholders of Olicom in favor of the Merger Agreement
and the Merger is not obtained. The Merger Agreement may be terminated by
either Olicom or CrossComm in the event of a nonappealable final order, decree
or ruling or other action that has the effect of permanently
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restraining, enjoining or otherwise prohibiting the Merger, except if the party
relying on such order, decree or ruling or other action has not complied with
its obligations under the Merger Agreement to comply with legal requirements
imposed on such party with respect to the consummation of the Merger. See "The
Agreement and Plan of Reorganization -- No Solicitation of Transactions" and
"-- Fees and Expenses; Termination Fee."
Amendments and Waivers. The Merger Agreement may be amended by Olicom
and CrossComm at any time before or after approval by the Olicom and CrossComm
stockholders, except that, after such approval, no amendment may be made which
(i) alters or changes the amount or kind of consideration to be received upon
conversion of the CrossComm Common Stock in the Merger, (ii) alters or changes
any term of the certificate of incorporation of the surviving corporation (the
"Surviving Corporation") to be effected by the Merger, or (iii) alters or
changes any of the terms and conditions of the Merger Agreement if such
alteration or change would adversely affect the holders of CrossComm Common
Stock or the holders of common stock in MergerSub.
At any time prior to the Effective Time, either of Olicom or CrossComm
may, to the extent legally allowed, by execution of an instrument duly
authorized in writing signed on behalf of such party (i) extend the time for
the performance of any of the obligations or acts of the other party set forth
in the Merger Agreement, (ii) waive any inaccuracies in the representations and
warranties made to such party in the Merger Agreement or in any document
delivered pursuant to the Merger Agreement, and (iii) waive compliance with any
of the agreements or conditions for the benefit of such party under the Merger
Agreement. See "The Agreement and Plan of Reorganization -- Termination,
Amendments and Waivers."
Fees and Expenses; Termination Fee. Whether or not the Merger is
consummated, all costs and expenses incurred in connection with the Merger
Agreement and the Merger will be paid by the party incurring the expense, and
the payment of fees and expenses in connection with the printing and filing of
the Joint Proxy Statement/Prospectus and the Registration Statement will be
shared equally. Notwithstanding the foregoing, in certain events, if, under
certain circumstances, Olicom or CrossComm terminates the Merger Agreement,
CrossComm will be obligated to pay to Olicom all of the reasonable, documented
expenses incurred by Olicom in connection with the Merger Agreement and the
Merger. In certain events, if Olicom terminates the Merger Agreement, Olicom
will be obligated to pay to CrossComm all reasonable, documented expenses
incurred by CrossComm in connection with the Merger Agreement and the Merger.
In addition, CrossComm also will be obligated to pay Olicom a termination fee
of $2,360,000 (the "Termination Fee") in the event of (i) the termination
of the Merger Agreement by Olicom as a result of CrossComm's failure to receive
the requisite vote for approval of the Merger Agreement and the Merger by
CrossComm's stockholders if, at the time of such failure, there has been
announced an Alternative Transaction (defined in the section titled "The
Agreement and Plan of Reorganization -- No Solicitation of Transactions")
which has not been absolutely and unconditionally withdrawn and abandoned and
with respect to which the CrossComm Board has not recommended that the
stockholders of CrossComm not vote to accept, (ii) the termination of the
Merger Agreement by Olicom as a result of (a) the withdrawal or modification
by the CrossComm Board of its recommendation of the Merger Agreement or
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the Merger in a manner adverse to Olicom, (b) the occurrence of an Alternative
Transaction or the recommendation by the CrossComm Board of an Alternative
Transaction, or (c) the commencement of a tender offer or exchange offer for 25%
or more of the outstanding CrossComm Common Stock and the recommendation of the
CrossComm Board that CrossComm stockholders tender their shares with respect
thereto; or (iii) the termination of the Merger Agreement by CrossComm in
connection with the CrossComm Board's receipt of a Superior Proposal, after
determining in good faith that the failure to accept such Superior Proposal
would be inconsistent with its fiduciary duties to CrossComm's stockholders
under applicable law and after providing Olicom with at least one business day's
written notice of such Superior Proposal. See "The Agreement and Plan of
Reorganization -- No Solicitation of Transactions" and "-- Fees and Expenses;
Termination Fee."
RESALES OF OLICOM COMMON STOCK; AFFILIATES AGREEMENTS
Olicom Common Stock received in the Merger, and Olicom Common Stock
purchased upon exercise of Warrants, will be freely transferable by the holders
thereof, except for those shares held by holders who may be deemed to be
"affiliates" (generally including directors, certain executive officers and 10%
or more stockholders) of CrossComm or Olicom under applicable federal
securities laws. To help assure compliance with the Securities Act, CrossComm
has agreed to use its best efforts to cause to be delivered to Olicom at least
30 days prior to the Effective Time, executed agreements that prohibit the
directors and officers of CrossComm (including Mr. Witkowicz, a director,
officer and 10% stockholder) from disposing of their Olicom Common Stock
received pursuant to the Merger except pursuant to Rule 145 under the
Securities Act (the "Affiliates Agreements"). See "The Merger -- Resales of
Olicom Common Stock Affiliates Agreements."
VOTING AGREEMENTS
In connection with the execution and delivery of the Merger Agreement,
Mr. Lars Stig Nielsen, the Managing Director and Chief Executive Officer of
Olicom, entered into a voting agreement with CrossComm, pursuant to which Mr.
Nielsen has agreed to vote all shares of Olicom Common Stock directly owned by
him in favor of the approval of the Merger Agreement and consummation of the
Merger and against any competing proposals. Mr. Nielsen is the holder of
approximately 1.8% (as of May __, 1997, exclusive of any shares issuable upon
the exercise of options held by him) of the shares of Olicom Common Stock
entitled to vote at the Olicom Meeting. See "The Agreement and Plan of
Reorganization -- Related Agreements: LSNielsen Voting Agreement."
In connection with the execution and delivery of the Merger Agreement,
Mr. Tadeusz Witkowicz, the President and Chairman of the Board of Directors of
CrossComm, entered into a voting agreement with Olicom, pursuant to which Mr.
Witkowicz has agreed to vote all shares of CrossComm Common Stock beneficially
owned by him in favor of the approval of the Merger Agreement and consummation
of the Merger and against any competing proposals (the
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<PAGE> 35
"Witkowicz Voting Agreement"). Mr. Witkowicz is the holder of approximately
16.9% (as of May __, 1997) of the shares of CrossComm Common Stock entitled to
vote at the CrossComm Meeting. See "The Agreement and Plan of Reorganization
- -- Related Agreements: Witkowicz Voting Agreement."
CONSULTING AGREEMENT; NONCOMPETITION AGREEMENT
In connection with the execution and delivery of the Merger Agreement,
Mr. Witkowicz entered into a Consulting Agreement for a term commencing at the
Effective Time and extending through December 31, 1997. During such term, Mr.
Witkowicz agreed to consult with and assist Olicom in successfully and
expeditiously implementing the integration of the business of CrossComm and its
subsidiaries with those of Olicom and its subsidiaries and in providing advice
and assistance with respect to existing customers of CrossComm and with respect
to key sales and marketing opportunities. In connection with the agreement of
Mr. Witkowicz to render consulting services, Olicom agreed to grant to him, at
the Effective Time, an option to purchase 100,000 shares of Olicom Common
Stock. The Consulting Agreement is contingent upon the occurrence of the
Merger and will become effective at the Effective Time. See "The Agreement and
Plan of Reorganization -- Interests of Certain Persons in the Merger" and
"-- Related Agreements: Witkowicz Consulting Agreement."
In connection with the execution and delivery of the Merger Agreement,
Mr. Witkowicz also entered into a noncompetition and nonsolicitation agreement
with CrossComm (the "Noncompetition Agreement"). Pursuant to the
Noncompetition Agreement, Mr. Witkowicz agreed, for a period of ten months
after the Closing, (i) not to compete in the development and marketing of the
following products in the computer networking industry: ethernet, token ring
and ATM switches and network interface cards; bridges; routers; and HUBs; and
(ii) except pursuant to the License Agreement dated March 20, 1997, between
CrossComm and Mr. Witkowicz (the "License Agreement") without the prior written
consent of CrossComm (which may not be unreasonably withheld or delayed), not
to induce any employee of or independent contractor to CrossComm to terminate
his or her relationship with the Company or any subsidiary or affiliate
thereof, in order to accept any position with Mr. Witkowicz or a company
affiliated with him. On March 20, 1996, CrossComm entered into a license
agreement with Mr. Witkowicz that granted to him a non-exclusive license to
use CrossComm's partially-developed Network Delta software, which was being
developed to, among other things, enable CrossComm to deliver monitoring
services to its customers. See "The Agreement and Plan of Reorganization --
Interests of Certain Persons in the Merger," "-- Related Agreements: Witkowicz
Noncompetition Agreement" and "-- Related Agreements: Witkowicz License
Agreement."
INTERESTS OF CERTAIN PERSONS IN THE MERGER
In considering the recommendation of the CrossComm Board with respect
to the Merger Agreement and the Merger, CrossComm stockholders should be aware
that certain directors and officers of CrossComm have interests in the Merger
that present them with potential conflicts
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<PAGE> 36
of interest. See "The Agreement and Plan of Reorganization -- Interests of
Certain Persons in the Merger" and "-- Related Agreements."
RISK FACTORS
IN CONSIDERING WHETHER TO APPROVE THE MERGER AGREEMENT AND THE
CONSUMMATION OF THE MERGER, OLICOM STOCKHOLDERS AND CROSSCOMM STOCKHOLDERS
SHOULD CAREFULLY REVIEW AND CONSIDER THE INFORMATION CONTAINED BELOW UNDER THE
CAPTION "RISK FACTORS."
APPRAISAL RIGHTS
Holders of CrossComm Common Stock who elect to dissent from the
approval and adoption of the Merger Agreement and who have not voted their
shares in favor of the Merger, have delivered to CrossComm a written demand for
appraisal of such shares and meet certain other statutory requirements, will be
entitled to have the value of their shares appraised in accordance with Section
262 of the Delaware General Corporation Law, as amended (the "DGCL"), the text
of which is attached as Appendix D. See "The Merger -- Appraisal Rights."
REGULATORY MATTERS.
Under the HSR Act, and the rules promulgated thereunder by the FTC, the
Merger may not be consummated until notifications have been given and certain
information has been furnished to the FTC and the Antitrust Division, and
specified waiting period requirements have been satisfied. Each of Olicom and
CrossComm have filed a Notification and Report Form required under the HSR Act
with the FTC and the Antitrust Division, together with a request for early
termination of the applicable 30-day waiting period. See "The Agreement and
Plan of Reorganization -- Regulatory Matters."
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS.
The Merger constitutes a taxable reverse subsidiary merger which will
be treated for United States federal income tax purposes as a direct purchase
by Olicom of the shares of CrossComm Common Stock from the CrossComm
stockholders in exchange for the Merger Consideration received by such
stockholders. Each CrossComm stockholder will recognize gain or loss as
measured by the difference between the amount realized by such stockholder
(i.e. the amount of cash plus the fair market value of the Olicom Common Stock
and Warrants received by the stockholder) and the stockholder's basis in its
CrossComm Common Stock. For CrossComm stockholders who hold their CrossComm
Common Stock as a capital asset, the gain or loss recognized should be capital
gain or loss. CROSSCOMM STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE MERGER, INCLUDING
THE APPLICABLE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES. For further
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<PAGE> 37
discussion of the United States federal income tax and Danish federal tax
considerations of the Merger and ownership of Olicom Common Stock and Olicom
Warrants, see "Tax Considerations."
COMPARISON OF STOCKHOLDER RIGHTS
The rights of stockholders of CrossComm currently are determined by
reference to the DGCL, the CrossComm Certificate and CrossComm's bylaws. At
the Effective Time, stockholders of CrossComm receiving shares of Olicom Common
Stock in the Merger will become stockholders of Olicom. Their rights as
stockholders will then be determined by reference to the Companies Act, the
Olicom Articles and Olicom's Rules of Procedure. There are certain significant
differences between the corporate laws of Delaware and the corporate laws of
Denmark that are applicable to Olicom. See "Comparison of Stockholder Rights
under the Laws of Denmark and Delaware."
COMPARATIVE MARKET PRICE AND DIVIDEND INFORMATION
The shares of Olicom Common Stock and CrossComm Common Stock are listed
on the Nasdaq National Market under the symbols "OLCMF" and "XCOM"
respectively. The following table sets forth the high ask and low bid prices
per share of Olicom Common Stock and CrossComm Common Stock for the calendar
quarters indicated, as reported by the Nasdaq National Market.
<TABLE>
<CAPTION>
Olicom CrossComm
Common Stock Common Stock
---------------------------------- --------------------------------
High Low High Low
---------------- ---------------- --------------- ---------------
<S> <C> <C> <C> <C>
Calendar 1997
First Quarter 19 5/8 14 1/2 9 5/8 5
Second Quarter
(through May __, 1997) -- -- -- --
Calendar 1996
First Quarter 15 1/2 11 1/8 11 7/8 8 3/4
Second Quarter 14 1/4 10 12 3/4 9 7/8
Third Quarter 15 1/8 10 7/16 10 7/8 7
Fourth Quarter 19 1/8 14 5/8 7 3/8 4 3/4
Calendar 1995
First Quarter 10 1/2 8 5/8 14 1/2 9 3/4
Second Quarter 14 1/8 8 7/8 12 7/8 9
Third Quarter 16 1/8 12 3/8 14 1/2 9
Fourth Quarter 15 1/2 11 3/4 14 1/4 9 1/2
</TABLE>
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<PAGE> 38
DIVIDEND INFORMATION
Neither Olicom nor CrossComm has ever paid any cash dividends on its
stock, and both anticipate that they will continue to retain any earnings for
the foreseeable future for use in the operation of their respective businesses.
RECENT CLOSING PRICES
The following table sets forth the closing prices per share of Olicom
Common Stock and CrossComm Common Stock on the Nasdaq National Market on March
20, 1997, the last trading day before announcement of the proposed Merger, and
on May __, 1997, the latest practicable trading day before the printing of this
Joint Proxy Statement/Prospectus:
<TABLE>
<CAPTION>
Olicom CrossComm
Common Stock Common Stock
------------ ------------
<S> <C> <C>
March 20, 1997 14 3/4 8 5/8
May __, 1997 __.___ __.__
</TABLE>
Because the market price of Olicom Common Stock is subject to
fluctuation, the market value of the shares of Olicom Common Stock that holders
of CrossComm Common Stock will receive in the Merger may increase or decrease
prior to and following the Merger. OLICOM STOCKHOLDERS AND CROSSCOMM
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR OLICOM COMMON
STOCK AND CROSSCOMM COMMON STOCK. No assurance can be given as to the future
prices or markets for Olicom Common Stock or CrossComm Common Stock. See "Risk
Factors -- Risks Relating to Olicom and CrossComm: Volatility of Stock Price."
Following the Merger, Olicom Common Stock will continue to be traded on the
Nasdaq National Market under the symbol "OLCMF."
NUMBER OF STOCKHOLDERS
As of May ___, 1997, there were approximately _________ stockholders
of record who held shares of Olicom Common Stock, as shown on the records of
Olicom's transfer agent for such shares. As of May ___, 1997, there were
approximately ___ United States record holders of shares of Olicom Common
Stock, who held approximately ____% of the outstanding shares of Olicom Common
Stock as of such date.
As of May ___, 1997, there were approximately _______ stockholders of
record who held shares of CrossComm Common Stock, as shown on the records of
CrossComm's transfer agent for such shares.
SUMMARY FINANCIAL INFORMATION
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<PAGE> 39
SELECTED UNAUDITED PRO FORMA FINANCIAL INFORMATION
The following selected audited pro forma financial information gives pro
forma effect to the acquisition by Olicom of CrossComm using the purchase
method of accounting.
The pro forma statements of income for the year ended December 31,
1996, assume that the Merger had been completed on December 31, 1996, and
combine the consolidated historical statement of income of Olicom and the
consolidated historical statement of operations of CrossComm as if the Merger
had become effective on January 1, 1996.
This pro forma information should be read in conjunction with the
unaudited pro forma financial information and notes thereto included elsewhere
in this Joint Proxy Statement/Prospectus. The unaudited pro forma statement of
income data are not necessarily indicative of the operating results that would
have occurred had the Merger occurred on January 1, 1996, nor are they
necessarily indicative of future operating results of the combined company.
<TABLE>
<CAPTION>
Year Ended
December 31,
Income Statement Data: 1996
- --------------------- ------------
(in thousands,
except per share amounts)
<S> <C>
Net sales $ 213,102
Income (loss) from operations (2,539)
Income interest and gain on investments 6,483
Net income per share (0.03)
Weighted average shares outstanding 17,394
December 31,
Balance Sheet Data: 1996
- ------------------ ------------
(in thousands)
Total assets $ 154,745
Long term debt --
Total stockholders' equity 106,833
</TABLE>
COMPARATIVE PER SHARE DATA OF OLICOM AND CROSSCOMM
Set forth below are the income (loss) from continuing operations, cash
dividends and book value per common share data of Olicom and CrossComm on an
historical basis, a pro forma basis for Olicom and an equivalent pro forma
basis for CrossComm.
The Olicom pro forma data were derived by combining historical
consolidated financial information of Olicom and CrossComm, giving effect to
the Merger under the purchase method of accounting for business combinations.
The information set forth below should be read in conjunction with the
respective audited and unaudited consolidated financial statements and related
notes of Olicom and CrossComm included elsewhere in this Joint Proxy
Statement/Prospectus and the unaudited pro forma financial information and
notes thereto included elsewhere in this Joint Proxy Statement/Prospectus.
OLICOM
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1996
------------
<S> <C>
Historical Per Share Data:
Income from continuing operations ............. $ 0.50
Dividends ..................................... --
Book Value .................................... 6.59
Pro Forma Per Share Data:
Income (loss) from continuing operations ...... $ (0.03)
Dividends ..................................... --
Book Value .................................... 6.14
CROSSCOMM
YEAR ENDED
DECEMBER 31,
1996
------------
Historical Per Share Data:
Income (loss) from continuing operations ...... $ (0.58)
Dividends ..................................... --
Book Value .................................... 5.92
Equivalent Pro Forma Per Share Data:
Income from continuing operations ............. $ (0.01)
Dividends ..................................... --
Book Value .................................... 1.79
</TABLE>
RISK FACTORS
The following risk factors should be considered by holders of Olicom
Common Stock and CrossComm Common Stock in evaluating whether to approve the
Merger Agreement. These factors should be considered in conjunction with the
other information included and incorporated by reference in this Joint Proxy
Statement/Prospectus.
Certain statements included in this Joint Proxy Statement/Prospectus
are forward-looking, such as statements regarding anticipated synergies in
connection with the Merger, expected transaction charges and expenses relating
to the integration of the two companies, new product introductions and
enhancements to existing products, rapidly changing technology, improvement of
manufacturing efficiencies and availability of licenses with respect to
intellectual property. Such forward-looking statements, in addition to
information included in this Joint Proxy Statement/Prospectus, are based on
current expectations and are subject to a number of risks and uncertainties
that could cause actual results in the future to differ significantly from
results expressed or implied in any forward-looking statements by, or on
behalf of, Olicom or CrossComm. These and other risks are detailed below.
RISKS RELATING TO THE MERGER
Integration of Certain Operations. The managements of Olicom and
CrossComm have entered into the Merger Agreement with the expectation that the
Merger will result in beneficial synergies for Olicom and CrossComm. See "The
Merger -- Joint Reasons for the Merger." Achieving the anticipated benefits of
the Merger will depend in part upon whether the integration of the two
companies' businesses is accomplished in an efficient manner, and there can be
no assurance that this will occur. The combination of the two companies will
require, among other things, integration of the companies' respective product
offerings, coordination of their sales and marketing, research and
development, administrative and financial reporting efforts. There can be no
assurance that such integration will be accomplished smoothly or successfully.
If significant difficulties are encountered in the integration of existing
product lines, resources could be diverted from new product development,
resulting in delays in new product introductions. The integration of the
product lines could also cause confusion or dissatisfaction among existing
customers of Olicom or CrossComm. The difficulties of such integration may
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<PAGE> 40
be increased by the necessity of coordinating geographically separated
organizations with distinct cultures. Further, as commonly occurs with high
technology companies during pre-merger and integration phases, aggressive
competitors may undertake formal initiatives to attract customers and recruit
key employees through various incentives. The integration of certain
operations following the Merger will require the dedication of management and
other personnel resources which may temporarily distract attention from the
day-to-day business of the combined company. The failure to successfully
accomplish the integration of the two companies' operations could have a
material adverse effect on the business, financial condition or results of
operations of the combined company.
Distributors, Resellers and Customers. There can be no assurance that
distributors, resellers and present and potential customers of Olicom and/or
CrossComm will continue their current buying patterns without regard to the
announced Merger, and any significant delay or reduction in orders could have a
material adverse effect on Olicom's and/or CrossComm's near-term business,
financial condition or results of operations. In particular, Olicom and
CrossComm believe that their respective customers could defer purchasing
decisions as they evaluate the future product strategy of the combined company,
and any such deferrals could have a material adverse effect on the business,
financial condition or results of operations of Olicom, CrossComm or the
combined company. In addition, Olicom anticipates that it will utilize its
distribution model in connection with the sale of CrossComm products after the
Merger, and therefore, will place greater emphasis on sales of CrossComm
products through indirect channels. There can be no assurance that utilizing
Olicom's distribution model for CrossComm's products will be successful. See
"Risks Relating to Olicom and CrossComm -- Fluctuations in Operating Results,"
"-- Reliance on Indirect Channels of Distribution," and "Olicom A/S --
Business: Sales and Marketing."
Fixed Exchange Ratio within Collar. Under the terms of the Merger
Agreement, each share of CrossComm Common Stock issued and outstanding at the
Effective Time will be exchanged for $5.00 in cash, 0.2667 share of Olicom
Common Stock and Warrants to purchase 0.1075 shares of Olicom Common Stock. In
the event that the Final Closing Price is less than $12.50, CrossComm may
terminate the Merger Agreement unless Olicom increases the Exchange Ratio, and
if the Final Closing Price is more than $20.83, Olicom can decrease the
Exchange Ratio, subject to CrossComm's right to terminate the Merger Agreement
in such event (the "Collar"). See "The Agreement and Plan of Reorganization --
Termination, Amendment and Waiver." The Merger Agreement does not contain any
provisions for adjustment of the Exchange Ratio or the Warrant Exchange Ratio
in the event that the Final Closing Price is between $12.50 and $20.83.
Accordingly, the value of the consideration to be received by the stockholders
of CrossComm upon the Merger will depend in part on the market price of Olicom
Common Stock at the Effective Time. On March 20, 1997, the date on which the
Merger Agreement was executed, the closing sale price of Olicom Common Stock
was $14.75, and there can be no assurance that the market price of Olicom
Common Stock on and after the Effective Time will not be lower than such price.
In addition, in the event that the Final Closing Price exceeds $20.83, the
operation of the Collar may reduce the ability of CrossComm stockholders to
realize such appreciation in the value of Olicom Common Stock. See "-- Risks
Relating to
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<PAGE> 41
Olicom and CrossComm: Volatility of Stock Price" and "The Agreement and Plan of
Reorganization; Exchange of Shares."
Transaction Charges. Olicom expects to incur charges to operations
currently estimated to be between $37 million and $47 million in the quarter
ending June 30, 1997, the quarter in which the Merger is expected to be
consummated, to reflect costs associated with combining the
operations of the two companies, and with respect to the write-off of expenses
associated with in-process research and development. This range is a
preliminary estimate only and therefore subject to change. Additional
unanticipated expenses may be incurred relating to the integration of the
businesses of Olicom and CrossComm, including the integration of product lines
and distribution and administrative functions. Although Olicom expects that
the elimination of duplicative expenses as well as other efficiencies related
to the integration of the businesses may offset additional expenses over time,
there can be no assurance that such net benefit will be achieved in the near
term, or at all. There can be no assurance that Olicom will be successful in
its efforts to integrate the operations of the two companies. See "--
Integration of Certain Operations" and "Summary -- Selected Unaudited
Historical Pro Forma Financial Information" and "-- Comparative Per Share Data
of Olicom and CrossComm."
Termination Fee if Merger Fails to Occur. No assurance can be given
that the Merger will be consummated. The Merger Agreement provides for the
payment by CrossComm of a termination fee of $2,360,000 if the Merger is
terminated under certain circumstances, and reimbursement of expenses by either
Olicom or CrossComm under certain circumstances. The obligation to make such
payment may adversely affect the ability of CrossComm to engage in another
transaction in the event that the Merger is not consummated. See "The
Agreement and Plan of Reorganization -- Fees and Expenses; Termination Fee."
RISKS RELATING TO OLICOM AND CROSSCOMM
Rapid Technological Change; New Products and Evolving Markets. The
market for the products of the combined company is characterized by frequent
new product introductions, rapidly changing technology, changes in customer
requirements, short product life cycles and continued emergence of new industry
standards, any one of which could render the existing products of Olicom,
CrossComm or the combined company obsolete. The success of the combined
company will depend to a substantial degree upon its ability to develop and
introduce, on a cost-effective and timely basis, new products and enhancements
to existing products that meet changing customer requirements and emerging
industry standards, and take advantage of technological advances. The
development of new, technologically advanced products is a complex and
uncertain process requiring high levels of innovation, as well as the accurate
anticipation of technological and market trends. Both Olicom and CrossComm
have on occasion experienced delays in the introduction of new products and
product enhancements. There can be no assurance that the combined company will
be able to identify, develop, manufacture or market new or enhanced products
successfully or on a timely basis, that new products will gain market
acceptance, or that the combined company will be able to respond effectively to
product
- 18 -
<PAGE> 42
announcements by competitors, technological changes, emerging industry
standards or changing customer requirements. From time to time, the combined
company may announce new products or product enhancements, capabilities or
technologies that have the potential to replace or shorten the life cycle of
existing product offerings and that may cause customers to defer purchases of
existing products or cause resellers to return products. Any failure to
introduce new products or product enhancements on a timely basis, customer
delays in purchasing products in anticipation of new product introductions, or
any inability of the combined company to respond effectively to product
announcements by competitors, technological changes, changing customer
requirements or emerging industry standards could have a material adverse effect
on the business, financial condition or results of operations of the combined
company.
The markets for Olicom's and CrossComm's products are characterized by
evolving methods of building and operating networks. The combined company's
operating results will depend to a significant extent on its ability to reduce
costs of existing products. The success of many new products is dependent on
several factors, including proper new product definition, product cost, timely
completion and introduction of new products, differentiation of new products
from those of competitors, market acceptance of these products, and the
activities of parties with whom Olicom has joint development projects. Any
failure of the combined company's new product development efforts could have a
material adverse effect on its business, financial condition or results of
operations.
Olicom and CrossComm believe that the ability to compete successfully
in the market for LAN products is dependent upon the continued compatibility
and interoperability of its products with products and architectures offered by
various vendors, including workstation and personal computer architectures and
computer and network operating systems. There can be no assurance that the
combined company will be able to effectively address the compatibility and
interoperability issues raised by technological changes or evolving industry
standards.
Industry standards for ATM technology are still evolving. One of the
bodies setting industry standards is the ATM Forum, a group of industry
participants including equipment manufacturers, telecommunications service
providers and end users. As these standards evolve, Olicom, CrossComm and the
combined company may be required to modify their respective products or develop
and support new versions of products. Any failure of such products to comply
promptly and cost-effectively, or delays in achieving such compliance, with the
various existing and evolving industry standards could delay introduction of
the combined company's products, which could have a material adverse effect on
the business, financial condition or operating results of the combined company.
See "Olicom A/S -- Business: Strategic Relationships," and "-- Business
Research and Development."
Competition. Both Olicom and CrossComm experience significant
competition and expect substantial additional competition from established and
emerging computer, communications and networking companies. The primary
competitors for Olicom's products include IBM, Madge Networks N.V. ("Madge")
and 3Com Corporation ("3Com"), while the primary competitors for
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<PAGE> 43
CrossComm's products include Cisco Systems, Inc. ("Cisco"), Bay Networks, Inc.
("Bay Networks"), FORE Systems, Inc. ("FORE"), Xylan Corporation, IBM and
3Com. There can be no assurance that the combined company will be able to
compete successfully in the future with existing or new competitors. The
networking industry has become increasingly competitive, and the results of
operations of Olicom, CrossComm and the combined company may be adversely
affected by the actions of existing or future competitors. Such actions may
include the development or acquisition of new technologies, the introduction of
new products, marketing and sales activities directed at Olicom and CrossComm
customers while their product lines and sales forces are being integrated, the
assertion by third parties of patent or similar intellectual property rights,
and the reduction of prices by competitors to gain or retain market share.
Industry consolidation or alliances may also affect the competitive
environment. In particular, competitive pressures from existing or new
competitors that offer lower prices or introduce new products could result in
delayed or deferred purchasing decisions by potential customers and price
reductions, both of which could adversely affect the combined company's sales
and operating margins. The industry in which Olicom and CrossComm compete is
characterized by declining average selling prices. This trend could adversely
impact the sales and operating margins of the combined company. Many of the
combined company's current and potential competitors have longer operating
histories and substantially greater financial, technical, sales, marketing and
other resources, as well as greater name recognition and a larger installed
customer base, than the combined company. As a result, these competitors may
be able to devote greater resources to the development, promotion, marketing
and support of their products than the combined company. In addition,
competitors with a larger installed customer base may have a competitive
advantage over the combined company when selling similar products or
alternative networking solutions to such customers. Increased competition
could result in significant price competition, reduced profit margins or loss
of market share, any of which could have a material adverse effect on the
business, financial condition or results of operations of the combined company.
See "Rapid Technological Change; New Products and Evolving Markets" and "Olicom
A/S -- Business: Competition."
Fluctuations in Operating Results. The revenue and operating results
of Olicom and CrossComm have fluctuated, and the revenue and operating results
of the combined company may, in the future, fluctuate from quarter to quarter
and from year to year due to a combination of factors, including (i) the
integration of personnel, operations and products from acquired businesses,
(ii) increased competition, (iii) capital spending of end-users, (iv) the
timing and amount of significant orders from distributors, VARs and OEMs,
including decisions by such customers as to the quantity of products to be
maintained in inventories, (v) the mix of distribution channels and products,
(vi) the combined company's success in developing, introducing and shipping
product enhancements and new products, (vii) the ability to attain and maintain
production volumes and quality levels for its products, (viii) manufacturing
lead times, and changes in material costs, (ix) the ability to obtain
manufacturing economies when planned, (x) new product introductions by
competitors, (xi) pricing actions by the combined company or its competitors,
(xii) overall demand for communications and networking products, and (xiii)
general economic conditions, together with economic and other considerations
specific to
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<PAGE> 44
the computer and networking industries. The results of operations for the
first quarter of fiscal 1997 are not necessarily indicative of results to be
expected in future periods.
A significant portion of the expenses of Olicom and CrossComm are
relatively fixed in advance, based in large part on forecasts of future sales.
If sales are below expectations in any given period, the adverse effect of a
shortfall in sales on the combined company's operating results may be magnified
by the inability to adjust spending to compensate for such shortfall. The
backlog of each company at the beginning of each quarter typically is not
sufficient to achieve expected revenue for that quarter. To achieve its
revenue objectives, the combined company will be dependent upon obtaining
orders in a quarter for shipment during that quarter. Furthermore, Olicom's
and CrossComm's agreements with its customers typically provide that they may
change delivery schedules, cancel orders within specified time frames without
significant penalty, and within certain limits return unsold products in
connection with rotation of inventory. Distributors, VARs and OEMs have no
long-term obligations to purchase products, which in turn creates the risk of
unanticipated declines in sales to customers for competitive reasons or because
of the internalization of the manufacture of products previously purchased on
an OEM basis. The combined company's industry is characterized by short
product life cycles and declining prices of existing products, which requires
continual improvement of manufacturing efficiencies and introduction of new
products and enhancements to existing products to maintain gross margins.
Moreover, in response to competitive pressures or to pursue new product or
market opportunities, the combined company may take certain pricing or
marketing actions that could have a material adverse effect on the business,
financial condition or results of operation of the combined company. As a
result of all of the foregoing, it is possible that in some future quarter the
combined company's operating results may be below the expectations of public
market analysts and investors. In such event, the price of Olicom's Common
Stock would likely be materially and adversely affected. See "Olicom A/S --
Business: Sales and Marketing," and "-- Business: Manufacturing and
Distribution."
Volatility of Stock Price. The trading price of Olicom Common Stock
has been, and after the Merger may continue to be, subject to wide fluctuations
in response to quarterly variations in the combined company's financial
performance, shortfalls in revenue or earnings from levels forecast by
securities analysts, changes in estimates by such analysts, market conditions
in the computer software or hardware industries, product introductions by
Olicom or its competitors, announcements of extraordinary events such as
acquisitions or litigation, or general economic conditions. In addition, in
recent years the stock market has experienced extreme price and volume
fluctuations. These fluctuations have had a substantial effect on the market
prices for many high technology companies, often unrelated to the operating
performance of the specific companies. Such market fluctuations could
adversely affect the market price for Olicom Common Stock before and after the
Merger. Because the market price of Olicom Common Stock is subject to
fluctuation, the market value of the shares of Olicom Common Stock that
CrossComm stockholders will receive in the Merger may increase or decrease
prior to the Merger. CROSSCOMM STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT
MARKET QUOTATION FOR OLICOM COMMON STOCK. See "Fluctuations in Operating
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Results," "-- Risks Relating to the Merger: Fixed Exchange Ratio Within
Collar" and "Summary -- Comparative Market Price and Dividend Information."
Reliance on Indirect Channels of Distribution. The revenues of Olicom,
and to a lesser extent, CrossComm have been, and the revenues of the combined
company is anticipated to be, highly dependent upon the sales efforts and
success of distributors, VARs and, in the case of Olicom, OEMs, which have not
been and will not be within the control of the combined company. These
resellers also represent other lines of products that are complementary to, or
compete with, those of Olicom and CrossComm. While Olicom and CrossComm
encourage their resellers to focus on Olicom and CrossComm products,
respectively, through marketing and support programs, there can be no assurance
that these resellers will not give higher priority to products of other
suppliers, thereby reducing the efforts devoted to selling products of the
combined company. See "Fluctuations in Operating Results" and "Olicom A/S --
Business: Sales and Marketing."
Risks Associated with Failure to Manage Growth. Olicom has undergone a
period of rapid growth and expansion. Olicom has also experienced significant
growth in its employee base. Olicom's ability to compete effectively and
execute its strategies will depend in part upon its ability to manage the
integration of CrossComm following the Merger, to continue to improve its
operational, management and financial systems and controls, and to integrate
new employees. See "--- Risks Relating to the Merger: Integration of Certain
Operations." The failure of Olicom's management team to effectively manage
further growth, including any growth related to the Merger, could have a
material adverse effect on the combined company's business, financial condition
or results of operations. See "Olicom A/S -- Business: Employees."
Dependence on Sole and Limited Source Suppliers and Availability of
Components. Several key components used in the manufacture of Olicom's and
CrossComm's products are currently purchased only from single or limited
sources. Neither Olicom nor CrossComm generally has long-term agreements with
any of these single or limited sources of supply. Any interruption in the
supply of any of sole or limited source components, or the inability of the
combined company to procure these components from alternate sources at
acceptable prices and within a reasonable time, could have a material adverse
effect upon the business, financial condition or results of operations of the
combined company. Qualifying additional suppliers is time consuming, and the
likelihood of errors is greater with new suppliers. Lead times for materials
and components ordered by Olicom and CrossComm vary significantly, and depend
on factors such as the specific supplier, contract terms and demand for a
component at a given time. If orders do not match forecasts, the combined
company may have excess or inadequate inventory of certain materials and
components. From time to time Olicom has experienced shortages and allocations
of certain materials and components, and has experienced delays in filling
orders while waiting to obtain the necessary components. Given current
worldwide demand for certain components used by both Olicom and CrossComm and
the complexity and yield problems in manufacturing such components, such
shortages and allocations are likely to occur in the future and could have a
material adverse effect on the business, financial condition
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<PAGE> 46
or results of operations of the combined company. See "Olicom A/S -- Business:
Manufacturing and Distribution."
Dependence on Contract Manufacturing. Both Olicom and CrossComm
currently subcontract product assembly and aspects of component procurement.
Further, two of Olicom's subcontractors conduct manufacturing of Olicom
products in Thailand, while another maintains operations in Ireland. The
importation of products from Thailand and Ireland exposes Olicom (and will
expose the combined company) to the possibility of product supply disruption
and increased costs in the event of political unrest, unstable economic
conditions or developments that are adverse to trade. The inability of
Olicom's or CrossComm's contract manufacturers to provide the combined company
with adequate supplies of high-quality products, or the loss of any of Olicom's
or CrossComm's contract manufacturers, could cause a delay in the combined
company's ability to fill orders while production is shifted to alternative
manufacturers or replacement manufacturers are identified, and could have a
material adverse effect upon the combined company's business, financial
condition or results of operations. See "Olicom A/S -- Business: Manufacturing
and Distribution" and "CrossComm Corporation --
Business."
Product Concentration. During 1996, sales of network interface cards
accounted for approximately 74.4% of Olicom's net revenues. Declines in the
demand for Olicom's network interface cards, whether as a result of
competition, technological change, or otherwise, could have a material adverse
effect on the combined company's business, financial condition or results of
operations. Moreover, the future performance of the combined company in the
network switching market will depend in part on Olicom's success in integrating
the CrossComm product line and on the successful development, introduction and
market acceptance of new and enhanced products. Any failure of the combined
company's products to achieve market acceptance could have a material adverse
effect on the business, financial condition or results of operation of the
combined company. See "Olicom A/S -- Business: Management's Discussion and
Analysis of Financial Condition and Results of Operations."
Patents, Intellectual Property and Licensing. The success of Olicom
and CrossComm have been, and the success of the combined company will be,
dependent on their proprietary technology. Olicom and CrossComm have generally
relied, and the combined company will rely, upon copyright, trademark and trade
secret laws to establish and maintain its proprietary rights in their
technology and products. There can be no assurance that the steps taken by
Olicom, CrossComm or the combined company to protect their proprietary rights
will be adequate to prevent misappropriation of their technology or that
competitors will not independently develop technologies that are substantially
equivalent or superior to their technology. In the event that protective
measures are not successful, the combined company's business, financial
condition or results of operations could be materially and adversely affected.
In addition, the laws of some foreign countries may not permit the protection
of proprietary rights to the same extent as do the laws of the United States.
Although Olicom and CrossComm believe the protection afforded by their
copyrights and trademarks have value, the rapidly changing technology in the
networking industry makes the combined company's future success
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<PAGE> 47
dependent primarily on the innovative skills, technological expertise and
management abilities of its employees rather than on patent, copyright and
trademark protection.
Many of Olicom's and CrossComm's products are designed to include
software or other intellectual property licensed from third parties, and the
loss of such software or other rights might require significant changes in, or
otherwise disrupt or delay the distribution of, such products. While it may be
necessary in the future to seek or renew licenses relating to various aspects
of their products, Olicom and CrossComm believe that, based upon past
experience and standard industry practice, such licenses generally could be
obtained on commercially reasonable terms. From time to time Olicom and
CrossComm receive communications from third parties asserting that their use of
trademarks, or that their products, infringe or may infringe the rights of
third parties. In this connection, CrossComm is a defendant in an action filed
by Datapoint Corporation ("Datapoint") alleging infringement by CrossComm of a
Datapoint patent. See "CrossComm Corporation--Business: Legal Proceedings."
There can be no assurance that any such claims will not result in protracted
and costly litigation; however, based upon general practice in the industry
Olicom and CrossComm believe that such matters can ordinarily be resolved
without any material adverse impact on their business, financial condition or
results of operations. Nevertheless, there can be no assurance that the
necessary licenses would be available on acceptable terms, if at all, or that
Olicom, CrossComm or the combined company would prevail in any such challenge.
The inability to obtain certain licenses or other rights or to obtain such
licenses or rights on favorable terms, or litigation arising out of such other
parties' assertion, could have a material adverse effect on the business,
financial condition or results of operations of the combined company.
License of Olicom Trademark. Olicom is the licensee of the trademark
"Olicom" pursuant to a license from Ing. C. Olivetti & C., S.p.A. ("Olivetti
S.p.A.") that prohibits Olivetti from using, or granting to a third party any
rights to use, the trademark on products of the type manufactured or marketed
by Olicom. Olicom has no ownership rights in the trademark. In the event that
the license of the trademark were terminated, Olicom would be required to
change its name and cease using the trademark on its products. A change in
Olicom's name and the creation of a new trademark could involve substantial
expense and the possibility of customer confusion, which, in turn, could have a
material adverse effect on the business, financial condition or results of
operations of the combined company. See "Olicom A/S -- Business: Trademark
Agreement."
Risks Associated with International Operations; Currency Exchange Rate
Fluctuations. Conducting business outside of the United States is subject to
certain risks, including, without limitation, longer payment cycles, unexpected
changes in regulatory requirements and tariffs, export licenses, political
instability, difficulties in staffing and managing foreign operations, greater
difficulty in accounts receivable collection, and potentially adverse tax
consequences. International sales are also affected by seasonal fluctuations
resulting from lower sales that typically occur during the summer months in
Europe and other parts of the world.
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<PAGE> 48
Olicom's business may also be affected by changes in demand resulting
from fluctuations in currency exchange rates. Olicom generates sales primarily
in U.S. dollars (Olicom's functional currency) and incurs expenses in a number
of currencies, principally in U.S. dollars and Danish kroner. Fluctuations in
the value of foreign currencies cause U.S. dollar-translated amounts to change
in comparison with previous periods. Due to the number of currencies involved,
the constantly changing currency exposures and the fact that all foreign
currencies do not react in the same manner against the U.S. dollar, Olicom
cannot quantify, in any meaningful way, the effect of exchange rate
fluctuations upon future income. Although Olicom seeks to manage its foreign
currency exposures by matching non-dollar revenues and expenses and by entering
into hedging transactions, there can be no assurance that exchange rate
fluctuations will not have a material adverse effect on the business, financial
condition or results of operations of the combined company. See "Olicom A/S --
Business: Management's Discussion and Analysis of Financial Condition and
Results of Operations."
Dependence on Foreign Subsidiary. A substantial portion of CrossComm's
research and development activities are conducted in Gdansk, Poland, at its
wholly-owned subsidiary, CrossComm-Poland, Ltd. In the event the current
political and economic environment in Poland becomes less favorable to the
combined company or restrictions are imposed on travel or technology transfers
between Poland and the United States, there could be an adverse effect on the
research and development activities, as well as the business, financial
condition or results of operations, of the combined company.
Effect of Certain Charter Provisions. The Olicom Articles prohibit any
person from holding more than 33% of the outstanding shares of Olicom Common
Stock without obtaining the approval of the Olicom Board, which may condition
its approval in such manner as it determines to be appropriate. A holder of
more than 33% of the outstanding shares of Olicom Common Stock who fails to
obtain the approval of the Olicom Board is prohibited by the Olicom Articles
from having any right to vote, or receive dividends or distributions on, any
shares in excess of the 33% threshold. In addition, a stockholder who acquires
shares of Olicom Common Stock by means of a transfer (including shares received
pursuant to the Merger) cannot vote such shares until three months after such
stockholder has been registered in Olicom's list of stockholders. These
provisions may have the effect of limiting the price that certain investors
might be willing to pay in the future for shares of Olicom Common Stock,
delaying, deferring or otherwise discouraging an acquisition or change in
control of Olicom deemed undesirable by the Olicom Board, or adversely
affecting the voting power of stockholders who own shares of Olicom Common
Stock in excess of the 33% threshold. See "Description of Stockholder Rights
under the Laws of Denmark and Delaware -- Limitations on Share Ownership."
Consequences of Danish Incorporation. Olicom is a Danish corporation
and its corporate affairs are governed by the Olicom Articles and the Companies
Act. Although certain provisions of the Companies Act resemble some of the
provisions of the corporation laws of a number of states in the United States,
principles of law relating to such matters as the validity of corporate
procedures, the fiduciary duties of management and the rights of Olicom's
stockholders may differ from those that would apply if Olicom were incorporated
in a jurisdiction within the
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<PAGE> 49
United States. See "Description of Olicom Common Stock", "Comparison of
Stockholder Rights under the Laws of Denmark and Delaware" and "Enforcement of
Civil Liabilities."
Service and Enforcement of Legal Process. All of Olicom's directors,
substantially all of Olicom's executive officers, and all of Olicom's experts
named herein are non-residents of the United States, and all or a substantial
portion of the assets of such persons are located outside the United States. A
substantial portion of Olicom's assets are located in Denmark. As a result, it
may not be possible for United States stockholders to effect service of process
within the United States upon such persons or to enforce against such persons
or Olicom judgments of United States courts predicated upon the civil liability
provisions of the federal securities laws of the United States. Olicom has
been advised by its Danish counsel, Advokatfirmaet O. Bondo Svane, that civil
liabilities under the Securities Act or the Exchange Act, are not enforceable
in original actions instituted in the Kingdom of Denmark, or in actions
instituted in the Kingdom of Denmark to enforce judgments of United States
courts. See "Enforcement of Civil Liabilities."
THE OLICOM MEETING
DATE, TIME AND PLACE OF THE OLICOM MEETING
The Olicom meeting will be held at Olicom's International Headquarters
located at Nybrovej 114, DK-2800, Lyngby, Denmark, on _______________, May ___,
1997 at 4:00 p.m., local time.
MATTERS TO BE CONSIDERED AT THE OLICOM MEETING
The Olicom Articles require that the matters identified in Proposals
1-8 in the Notice of Annual General Meeting of Shareholders be included in the
agenda of such meeting. Set forth below is a brief description of these
matters.
PROPOSAL 1
APPROVAL OF THE MERGER AGREEMENT AND THE MERGER
The proposal to approve the Merger Agreement and the Merger is being
submitted to Olicom stockholders for approval in accordance with the
requirements of The Nasdaq Stock Market applicable to the designation of Olicom
Common Stock as a Nasdaq National Market security. Such requirements generally
require the prior approval of Olicom's stockholders in respect of the issuance
of Olicom Common Stock in connection with the acquisition of the stock of
another company where the number of shares of common stock that may be issued
is or will be equal to or greater than 20% of the number of shares of common
stock outstanding before the issuance of such stock. Because the number of
shares of Olicom Common Stock that may
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<PAGE> 50
be issued pursuant to the Merger Agreement may exceed 20% of the number of
shares of Olicom Common Stock outstanding, the proposal is being submitted to
the Olicom stockholders for approval in accordance with the requirements of The
Nasdaq Stock Market. Based on the capitalization of CrossComm as of the Record
Date and assuming an Exchange Ratio of 0.2667, it is expected that, as a result
of the Merger, approximately 2,700,000 shares of Olicom Common Stock will be
issued by virtue of the Merger; in addition, based on the capitalization of
CrossComm as of the Record Date and assuming a Warrant Exchange Ratio of
0.1075, it is expected that, as a result of the Merger, approximately 1,100,000
additional shares of Olicom Common Stock may be issuable by Olicom pursuant to
the exercise of Warrants issued by virtue of the Merger (the foregoing number
of shares of Olicom Common Stock and Warrants to be issued by virtue of the
Merger gives pro forma effect to the exercise of a vested CrossComm Options the
purchase of CrossComm Common Stock under the CrossComm ESPP consistent with
current levels of contributions thereto). See "Summary -- Terms of the
Merger."
Approval of Proposal 1 will include authorization of the Olicom Board
to make such amendments to the resolutions adopted by the Olicom Meeting as may
be required by the Commercial and Companies Agency of the Kingdom of Denmark as
a condition to the registration of the shares of Olicom Common Stock to be
issued pursuant to the Merger or upon exercise of Warrants issued or CrossComm
Options assumed pursuant to the Merger. See "The Merger" and "Agreement and
Plan of Reorganization."
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 1.
PROPOSAL 2
APPROVAL OF ANNUAL ACCOUNTS, DISCHARGE OF MANAGEMENT
AND THE BOARD OF DIRECTORS, AND CARRY FORWARD OF OLICOM'S PROFITS
Section 69 of the Companies Act provides that the Annual Accounts of
Olicom shall be presented to, and either be adopted or rejected by, Olicom's
stockholders. Copies of Olicom's Annual Accounts prepared in accordance with
generally accepted accounting principles of the Kingdom of Denmark will be
available at the Olicom Meeting. In addition, any Olicom stockholder desiring
a copy of the Annual Accounts may request same from Olicom at the addresses set
forth in this Joint Proxy Statement/Prospectus. In connection with the
adoption of the Annual Accounts, there will be consideration of the discharge
of Olicom's management and the Olicom Board from their duties for fiscal year
1996. Under Danish law it is also appropriate to carry forward prior years'
profits in the event that dividends are not paid.
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 2.
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<PAGE> 51
PROPOSAL 3
ELECTION OF DIRECTORS
Eight directors of Olicom will be elected at the Olicom Meeting. The
nominees for director are Jan Bech, Bo F. Vilstrup, Lars Stig Nielsen, Kurt
Anker Nielsen, Frank G. Petersen, Michael J. Peytz and Anders Knutsen. It is
the intention of the persons named in the accompanying proxy to vote FOR the
election of the foregoing nominees. Except for Mr. Knutsen, all such persons
are currently serving as directors of Olicom. Should any nominee for director be
unable or fail to accept nomination or election (which is not contemplated), it
is the intention of the persons named in the proxy, unless otherwise
specifically instructed in the proxy, to vote FOR the election in his stead of
such other person as the Olicom Board may recommend. Information with respect to
the director nominees is set forth in the section of this Joint Proxy
Statement/Prospectus entitled "Olicom A/S -- Management of Olicom."
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" EACH OF THE NOMINEES FOR DIRECTOR SET FORTH ABOVE.
PROPOSAL 4
APPOINTMENT OF AUDITORS
The Olicom Board proposes that Olicom's stockholders appoint Ernst &
Young A/S and KPMG C. Jespersen as independent auditors to audit the financial
statements of Olicom for the year ending December 31, 1997. The Olicom Board
also proposes that Olicom's stockholders appoint Ernst & Young LLP as
independent auditors to audit the financial statements of Olicom Americas for
the year ending December 31, 1997. Ernst & Young A/S (and Revisor Centret, the
predecessor thereto) has acted as Olicom's auditors since 1985, and Ernst &
Young LLP has acted as the auditors for Olicom Americas since 1991.
Representatives of Ernst & Young A/S will be present at the Olicom Meeting,
will have an opportunity to make a statement if they desire to do so, and will
be available to respond to appropriate questions.
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 4.
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<PAGE> 52
PROPOSAL 5
AUTHORIZATION TO PURCHASE OLICOM COMMON STOCK
Proposal 5 would grant to the Olicom Board the right to authorize the
purchase, from time to time for a period of 18 months following the Olicom
Meeting, of up to 10% of Olicom's issued and outstanding common stock.
Section 48 of the Companies Act permits a company incorporated under
Danish law to acquire up to 10% of its issued and outstanding capital stock,
provided that such acquisitions are undertaken pursuant to stockholder
authorization granted to a company's board of directors (such authorization may
not be granted for a period exceeding 18 months). At the Annual General
Meeting held on May 8, 1996, the Olicom Board was authorized to purchase up to
10% of Olicom's share capital at the market price of Olicom Common Stock on the
date of purchase, with a deviation of up to 10% from the market price. Such
authorization will expire prior to the 1998 Annual General Meeting of
Stockholders unless extended.
The purpose of Proposal 5 is to continue to provide the Olicom Board
with a measure of flexibility in dealing with Olicom's outstanding common
stock. Olicom believes that a number of circumstances could arise whereby
Olicom would be benefited by its ability to purchase its own securities. For
example, to the extent that the Olicom Board feels that Olicom Common Stock may
be undervalued at the market levels at which it is trading, repurchases of
Olicom Common Stock may represent an attractive investment for Olicom. There
may be other situations when repurchases of Olicom Common Stock are appropriate
or necessary to facilitate a corporate transaction wherein part of the
consideration to be paid by Olicom consists of Olicom Common Stock. The
reduction in the number of outstanding shares of Olicom Common Stock resulting
from any such purchases will increase the proportionate interest of the
remaining stockholders in Olicom's net worth and whatever further profits
Olicom may earn (but could, under some circumstances, result in a decrease in
the book or market value per share of the remaining shares).
Olicom purchased 62,000 shares of Olicom Common Stock during fiscal
1993, 997,255 shares during fiscal 1994, 257,490 shares during fiscal 1995 and
2,500 shares during 1996 pursuant to authorizations of the Olicom Board to
purchase up to an aggregate of 1,500,000 shares of Olicom Common Stock from
time to time in open market transactions. Accordingly, up to 180,755
additional shares of Olicom Common Stock may be purchased by Olicom pursuant to
such authorizations. Other than the foregoing, Olicom has no present
intentions, understandings or agreements for the repurchase of any of its
outstanding shares of common stock, nor is it holding any discussions with any
stockholder with respect to any such purchase. It is the intention of the
Olicom Board that any purchases of Olicom Common Stock will be made in
accordance with United States federal securities laws, as well as any
applicable rules and regulations of the National Association of Securities
Dealers, Inc. Further, Olicom Common Stock will be purchased only if, in the
judgment of the Olicom Board, it would be in the best interest of Olicom to
purchase such shares at the time and at the prices at which any such purchases
are proposed to be made.
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 5.
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<PAGE> 53
PROPOSAL 6
DIRECTORS' FEES
For fiscal year 1997, it is proposed that (i) nonmanagement directors
receive a director's fee of DKK 120,000 (approximately $18,800), (ii) the
Chairman of the Board receive a director's fee of DKK 240,000 (approximately
$37,600), and (iii) the Deputy Chairman of the Board receive a director's fee
of DKK 180,000 (approximately $28,200).
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 6.
PROPOSAL 7
AMENDMENTS TO OLICOM'S ARTICLES OF ASSOCIATION
The Olicom Board has proposed amendments to the Olicom Articles that
may be generally categorized as (i) an amendment to increase the authorized
share capital of Olicom and the breadth of the Olicom Board's authority in
connection therewith, and (ii) an amendment to require the appointment of two
auditors with respect to Olicom's financial statements and annual accounts.
Increase in Authorized Share Capital. The proposed amendment to
Article 8, Section 1 of the Olicom Articles is being undertaken to increase the
authorized share capital of Olicom to reflect the shares of Olicom Common Stock
that may be issued pursuant to the Merger, and upon exercise of the Warrants to
be issued, and CrossComm Options to be assumed, pursuant to the Merger. While
Olicom's presently-authorized share capital is adequate to meet Merger-related
needs, the Olicom Board believes that, upon consummation of the Merger, the
authorized share capital will not be sufficient. Increasing the authorized
share capital will facilitate the acquisition of other companies and properties
and make shares available for other corporate purposes, including, without
limitation, any future issuances of Olicom Common Stock in public or private
financings, and upon conversion or exercise of any convertible securities,
options, warrants or rights that may be hereafter issued in one or more of such
acquisitions. The proposed increase in Olicom's share capital will also
provide Olicom with sufficient reserves and flexibility for employee
compensation and incentive programs. In this connection, it should be noted
that, as presently in effect, Article 8, Section 1 of the Olicom Articles
limits capital increases to issuances of shares in connection with private
placements or acquisitions of assets or companies. Such limitation has been
deleted in the proposed amendment, and accordingly, shares of Olicom Common
Stock could be issued for any corporate purpose consistent with the Olicom
Articles.
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<PAGE> 54
At the date of this Joint Proxy Statement/Prospectus, except as
otherwise described herein, there are no agreements, arrangements or
understandings with respect to the issuance of additional shares of Olicom
Common Stock involving acquisitions of companies or properties. Except as
discussed in this Joint Proxy Statement/Prospectus, there is no present
intention to issue shares in public or private offerings, or except for shares
of Olicom Common Stock that may be issued pursuant to Olicom's Share Incentive
Plans as in effect from time to time (including, without limitation, the
CrossComm Options that would be assumed in connection with the Merger), any
present plan or intention to issue other convertible securities, options,
warrants, rights or other issuances involving Olicom Common Stock. Having
additional authorized shares of Olicom Common Stock available for issuance in
the future will give Olicom greater flexibility and may result in future
acquisitions or issuances of Olicom Common Stock being effected without
stockholder approval by means of a general meeting of Olicom's stockholders.
Any issuance of such shares could dilute existing Olicom stockholders. Under
certain circumstances, the shares available for additional issuance could be
used to create voting impediments and make it more difficult for persons
seeking to effect a combination or otherwise gain control of Olicom. Such
action could have an adverse impact on the market price and liquidity of Olicom
Common Stock. Also, any of such additional shares of Olicom Common stock
could, provided that there is compliance with the Companies Act, be privately
placed with a purchaser or purchasers who might side with management of Olicom
in opposing a tender offer by a third party. Such amendment to the Olicom
Articles is not being sought in order to delay any attempt to acquire control
of Olicom, and Olicom is not aware of any such attempt.
Accordingly, the Olicom Board believes that it is advisable and in the
best interests of Olicom and its stockholders to increase the authorized share
capital of Olicom.
The English translation of Article 8, Section 1 of the Olicom Articles
is proposed to be amended to read in its entirety as follows:
"The Company's Board has been authorized by the General Meeting to
increase the Company's share capital - at such times and on such terms
as the Board thinks fit - by one or several stages by not more than DKK
2,687,500 (i.e., 10,750,000 shares of DKK 0.25 each). The said
authority shall be valid for a period of five (5) years until May ___,
2002 and may be extended by the General Meeting by one or more five
year periods at a time. Any increase in pursuance of the Board's
authorization may be effected by the payment of assets other than cash
and without any preferential right to subscribe on the part of the
Company's present shareholders, notwithstanding the provisions in Art.
7 above.
Appointment of Auditors. The Olicom Board has proposed the amendment
of Article 31 of the Olicom Articles to permit Olicom greater flexibility in
connection with the listing of its securities on various exchanges. As Olicom
has grown, its management has considered the benefits of listing its securities
on exchanges in addition to the Nasdaq National Market. Toward this end, the
requirement that Olicom's financial statements and annual accounts be audited
by two firms of auditors could facilitate any such additional listings of
Olicom securities.
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The English translation of Article 31 of the Olicom Articles is
proposed to be amended to read in its entirety as follows:
"The auditing shall be undertaken by two chartered accountants
appointed by the Company in General Meeting. The appointment shall be
for one (1) year at a time until the end of the next year's Annual
General Meeting, where the auditor(s) may be re-elected. A company or
firm of accountants may be appointed auditor.
Pursuant to the Companies Act, the Danish version of the proposed
amendments to the Olicom Articles will, upon approval thereof, be filed with
the Commercial and Companies Agency of the Kingdom of Denmark and will be the
operative instrument. Any Olicom stockholder who desires to receive a copy of
the Danish text of the proposed amendments to the Olicom Articles, or a copy of
the Olicom Articles as presently in effect and as filed with the Commercial and
Companies Agency, may obtain same by contacting Olicom's Investor Relations
Department at the address set forth in this Joint Proxy Statement/Prospectus.
In order to be adopted, Proposal 7 requires approval by two-thirds of
the votes cast at the Annual General Meeting and two-thirds in nominal value of
the voting capital represented at such meeting.
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 7.
PROPOSAL 8
APPROVAL OF 1997 SHARE INCENTIVE PLAN
The Olicom Board proposes that the 1997 Share Incentive Plan (the
"Plan") be approved by Olicom's stockholders.
Olicom first adopted a share incentive plan in 1992, which provided for
the issuance of warrants to purchase up to 565,000 shares of Olicom Common
Stock. As of the date hereof, warrants to purchase shares of Olicom Common
Stock have been issued under such plan. In May 1994, Olicom's stockholders
approved the 1994 Share Incentive Plan, which, as amended, provided for the
issuance of options to purchase up to 425,000 shares of Olicom Common Stock.
As of the date hereof, options to purchase 356,500 shares of Olicom Common
Stock have been granted under such plan. In May 1996, Olicom's stockholders
approved the 1996 Share Incentive Plan, which provided for the issuance of
options to purchase up to 1,000,000 shares of Olicom Common Stock. As of the
date hereof, options to purchase 479,700 shares of Olicom Common Stock have
been granted under such plan. The Olicom Board adopted the Plan because an
insufficient number of shares of Olicom Common Stock are available under
existing Olicom share incentive plans for the assumption of options under the
CrossComm Option Plans (as of March 31, 1997, only 520,300 shares of Olicom
Common Stock were available from the original
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pool of 1,000,000 shares of Olicom Common Stock under the 1996 Share Incentive
Plan). In addition, pursuant to the Merger, Olicom will assume CrossComm
Options to purchase approximately _________ additional shares of Olicom Common
Stock.
Olicom intends to register the offer and sale of the 2,000,000 shares
of Olicom Common Stock issuable under the Plan under the Securities Act.
Olicom Common Stock purchased pursuant to the Plan after the effective date of
such registration statement could immediately be sold in the open market
subject, in the case of affiliates (as defined in Rule 144 under the Securities
Act), to compliance with the provisions of Rule 144, other than the holding
period requirement.
The following is a brief summary of certain provisions contained in the
Plan, the full text of which appears in Appendix E to this Joint Proxy
Statement/Prospectus. The following description does not purport to be a
complete statement of the provisions of the Plan and is qualified in its
entirety by reference to such appendix.
DESCRIPTION OF THE PLAN
The Plan, which authorizes the grant of various options and warrants,
is an integral part of Olicom's director, officer, manager and key employee
compensation program, which is based upon a pay-for-performance philosophy.
The Plan provides long term incentives in the form of grants of stock options
and issuances of warrants. The objective of these incentives is to advance the
longer term interests of Olicom and its stockholders and to complement
incentives tied to annual performance. Options and warrants provide rewards to
directors, officers, managers and other key employees upon the creation of
incremental stockholder value and the attainment of long term earnings goals.
The Plan also encourages directors, officers, managers and other key employees
to acquire a larger personal financial interest in Olicom through stock
ownership. It is also anticipated that the Plan will further enable Olicom to
attract and retain highly qualified executives.
In developing the terms of the Plan, consideration was given to the tax
laws of the countries that have jurisdiction over eligible employees of Olicom
and its affiliates. In this connection, Olicom anticipates that incentive
stock options ("ISOs"), as defined in Section 422 of the United States Internal
Revenue Code of 1986, as amended (the "Code"), will be granted to key employees
of Olicom Americas (and of CrossComm, if the Merger is consummated),
nonqualified stock options ("NQOs") will be granted to employees, managers and
directors of Olicom and of Olicom Americas (and of CrossComm, if the Merger is
consummated), and warrants will be issued to employees, managers and directors
of Olicom.
The Plan became effective on April 2, 1997, conditioned on and subject
to approval of the Plan by an Annual General Meeting of Olicom's stockholders.
Unless terminated earlier, the Plan terminates on April 1, 2002, after which
no additional options or warrants may be granted or issued under the Plan.
Under the Plan, the number of shares that may be issuable on exercise of
options and warrants may not exceed 2,000,000 shares of Olicom Common Stock.
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Olicom Common Stock issued under the Plan may be either authorized and unissued
shares or issued shares acquired by Olicom in the market or otherwise.
The Plan is administered by the Olicom Board, which has the authority
to determine the provisions of options granted and warrants issued, subject to
any limitations contained in the Olicom Articles. The Olicom Board has the
authority under the Plan, subject to its provisions, to delegate to the
compensation committee of the Olicom Board the authority to select the
individuals who receive grants of options and to whom warrants may be issued.
Any shares subject to unexercised portions of options or warrants granted or
issued pursuant to the Plan which have terminated, been canceled or expired may
again be subject to options and warrants granted or issued pursuant to the
Plan. It is not possible at this time to determine who may be selected in the
future to receive options or warrants, or the number of shares of Olicom Common
Stock that may be issuable on exercise of options and warrants.
Options may be granted only during the five years following the
effective date of the Plan and will have a maximum term of ten years. Warrants
may be granted only during the five years following the effective date of the
Plan and will have a maximum term of five years. Options and warrants issued
to directors will be exercisable for no more than ten and five years,
respectively, except that in the event of the death or termination of service
of a member of the Olicom Board as a director of Olicom or a member of the
board of directors of a subsidiary as a director thereof, such options and
warrants may not be exercised after the expiration of one year following such
death or termination (or if shorter, the remaining term of the option or
warrant). However, unless otherwise provided in the grant or issuance thereof,
options and warrants must be exercised no later than one year after an
optionee's or warrant holder's death (but in no case, later than the expiration
date of the option or warrant, and then only to the extent vested). The Olicom
Board has the power under the Plan to determine on the date of grant or
issuance what effect, if any, termination of employment will have on the right
to exercise an option or warrant.
The option exercise price must be at least equal to the fair market
value (or in the discretion of the Olicom Board, the average of the high and
low sales prices) of Olicom Common Stock on the date of grant, and the sum of
the warrant purchase price and the exercise price thereof must be at least
equal to the fair market value of Olicom Common Stock on the date of issuance.
The consideration to be received by Olicom in consideration for the issuance of
a warrant is to be determined by the Olicom Board on the date the warrant is
issued. The Plan provides that the Olicom Board may establish the exercise
price for options assumed in connection with acquisitions of business
enterprises by reference to the exercise price of such assumed options
immediately prior to the closing of such acquisition, adjusted to reflect the
consideration received by the equity holders of such acquired business
enterprise. The amount of such adjustment is to be determined by the Olicom
Board. See "The Agreement and Plan of Reorganization -- Assumption of
Options." On April __, 1997, the fair market value of a share of Olicom Common
Stock, based on the closing sales price as quoted by the Nasdaq National
Market, was $______. The Olicom Board will have the authority to determine
such other terms and conditions of each option and warrant as are not
inconsistent with the provisions of the Plan.
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<PAGE> 58
The Plan provides that an option or warrant may allow the optionee or
warrant holder to elect to pay withholding taxes due with respect to the
exercise of an option or warrant by delivering Olicom Common Stock to Olicom or
authorizing Olicom to withhold shares otherwise issuable on exercise. Such
shares delivered or withheld will be valued at fair market value.
Upon the exercise of any option granted or warrant issued under the
Plan, Olicom may, in its sole discretion, make financing available, from time
to time on such terms and to such optionees and warrant holders as the Olicom
Board may determine in its sole discretion, for the purchase of the Olicom
Common Stock that may be purchased or subscribed for pursuant to the exercise
of such option or warrant.
The Olicom Board may amend the Plan from time to time in such respects
as it may deem advisable in its sole discretion or in order that the options
and warrants granted or issued thereunder will conform to any change in
applicable laws, regulations or rulings of administrative agencies. Further,
the Plan includes provisions that emphasize that (i) pursuant to provisions of
the Olicom Articles, the Olicom Board has been, and may in the future be,
granted the authority to issue warrants, grant options and issue other
instruments that entitle the holders thereof to subscribe for Olicom Common
Stock, and (ii) notwithstanding anything contained in the Plan, the action of
the Olicom Board and of Annual General Meetings in authorizing the Plan or any
amendment(s) thereto shall not derogate from or otherwise affect the power of
the Olicom Board to issue warrants, grant options or issue other instruments
pursuant to the authority granted to the Olicom Board in the Olicom Articles.
The Plan provides that Olicom may grant options under the Plan in
substitution for, or in connection with the assumption of, options held by
employees or directors of another business enterprise who become employees or
directors of Olicom or its subsidiaries, as the result of a merger or
consolidation of Olicom or one of its subsidiaries, or as a result of the
acquisition by Olicom of property or stock of such other business enterprise.
In this connection, Olicom may direct that substitute options be granted, or
that the options or option plans of such other business enterprise be assumed,
on such terms and conditions as the Olicom Board considers appropriate in the
circumstances.
TAX CONSEQUENCES
The following is a summary of the tax consequences of the Plan
applicable to the grant and exercise of options and the issuance and exercise
of warrants.
United States Internal Revenue Code. Olicom is of the opinion that an
optionee will not realize any compensation income under the Code on the grant
of an option. However, an optionee will realize compensation income at the
time of exercise (except for options that are ISOs) in the amount of the
difference between the option exercise price and the fair market value of
Olicom Common Stock on the date of exercise. Olicom is also of the opinion
that Olicom Americas will be entitled to a deduction under the Code at the
time, and equal to the amount, of compensation income that is realized by an
optionee who is an employee or director of
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<PAGE> 59
Olicom Americas. In the case of ISOs, although no compensation income is
realized on exercise, the excess of the fair market value on the date of
exercise over the option exercise price is included in alternative minimum
taxable income under the Code. The Plan is not qualified under Section 401(a)
of the Code. Olicom does not anticipate issuing warrants to employees or
directors of Olicom Americas subject to taxation under the Code, and
accordingly, discussion of the tax consequences under the Code relating to the
issuance and exercise of warrants by optionees who are employees or directors
of Olicom Americas has been omitted.
Danish Tax Laws. Olicom is of the opinion that an optionee will not
realize any compensation income under Danish tax laws on the grant of an
option. However, an optionee will realize compensation income at the time of
the vesting of an option, in the amount of the difference between the option
exercise price and the fair market value of Olicom Common Stock on the date of
vesting. If the exercise of an option is postponed during a permitted period,
and the fair market value of Olicom Common Stock increases during such period,
it is the opinion of Olicom that this increase in fair market value will be
taxable to the optionee. If, during the same period, a decrease occurs in the
fair market value of Olicom Common Stock, the optionee may, under certain
circumstances, be entitled to a deduction in the amount of such decrease.
Olicom will not be entitled to a deduction under applicable Danish tax law in
connection with the exercise of an option.
Olicom is of the opinion that a warrant holder will not realize any
compensation income under Danish tax laws on the issuance of a warrant.
However, a warrant holder will realize compensation income at the time of the
vesting of a warrant, in the amount of the difference between the issue price
for such warrant and an assessment of the value of the warrant, if any. Olicom
will not be entitled to a deduction under applicable Danish law in connection
with the exercise of a warrant.
The foregoing is only a summary of the effects of United States federal
income taxation and Danish income taxation, respectively, on Olicom and
optionees/warrant holders with respect to the grant and exercise of options and
the issuance and exercise of warrants under the Plan, does not purport to be
complete, and does not discuss (i) the tax consequences of the delivery of
Olicom Common Stock in payment of the exercise price for an option or warrant,
(ii) the tax consequences on an optionee's or warrant holder's death, or (iii)
income tax treatment under foreign, state or local law.
Because the tax treatment of options and warrants depends on many
factors too numerous to be included in this summary, no assurance can be given
that the foregoing tax consequences will be realized by Olicom, Olicom Americas
or any optionee.
THE OLICOM BOARD URGES OLICOM STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 8.
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<PAGE> 60
PROPOSAL 9
ADJOURNMENT TO PERMIT FURTHER SOLICITATION
The Companies Act permits the holders of a majority of the shares of
Olicom Common Stock represented at the Olicom Meeting to adjourn the Olicom
Meeting or any adjournment thereof. If necessary for purposes of securing
approval of Proposal 7 by two-thirds of the votes cast at the Olicom Meeting
and two-thirds in nominal value of the voting capital represented at such
meeting, unless authority to do so is withheld, the proxy holders also may vote
in favor of a proposal to adjourn the Olicom Meeting to permit further
solicitation of proxies in order to obtain sufficient votes to approve Proposal
7. Olicom stockholders who wish to withhold from the persons named as proxies
in the enclosed Olicom proxy authority to vote such stockholder's shares to
adjourn the Olicom Meeting should so indicate by appropriately marking Item 2
on the proxy.
THE OLICOM BOARD URGES STOCKHOLDERS TO VOTE
"FOR" THE APPROVAL OF PROPOSAL 9.
RECORD DATE AND SHARES ENTITLED TO VOTE
Only holders of record of shares of Olicom Common Stock at the close of
business on May __, 1997, will receive notice of the Olicom Meeting. At the
close of business on May __, 1997, there were issued and outstanding __________
shares of Olicom Common Stock. Holders of record of shares of Olicom Common
Stock on May __, 1997, are entitled to vote at the Olicom Meeting and are
entitled to one vote for each share of Olicom Common Stock held.
VOTING OF PROXIES
The Olicom proxy accompanying this Joint Proxy Statement/Prospectus is
solicited on behalf of the Olicom Board for use at the Olicom Meeting.
Stockholders in Olicom are requested to complete, date and sign the
accompanying proxy and promptly return it in the accompanying envelope or
otherwise mail or telecopy it to Olicom. Stockholders may vote via telecopy by
sending the executed proxy to +45 45 270129 or (972) 422-4351. Any holder of
shares of Olicom Common Stock giving an Olicom proxy in the form accompanying
this Joint Proxy Statement/Prospectus has the power to revoke the proxy prior
to its use. A proxy can be revoked (i) by an instrument of revocation
delivered prior to the Olicom Meeting to Olicom's Vice President, Legal, (ii)
by an instrument of revocation delivered at the Olicom Meeting to the chairman
of the meeting, (iii) by a duly-executed proxy bearing a later date or time
than the date or time of the proxy being revoked, or (iv) at the Olicom
Meeting, if the stockholder is present and elects to vote in person. Mere
attendance at the Olicom Meeting will not serve to revoke a proxy. A proxy
will not be revoked by the death or incapacity of the stockholder executing it
unless, before the shares are voted, notice of such death or supervening
incapacity is filed with Olicom's Vice President, Legal. All shares of Olicom
Common Stock represented by a properly executed proxy, unless such proxy
previous has been revoked, will be voted in accordance with the directions on
such proxy. IF NO DIRECTIONS ARE GIVEN TO THE CONTRARY ON
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<PAGE> 61
SUCH PROXY, THE SHARES OF OLICOM COMMON STOCK REPRESENTED BY SUCH PROXY WILL BE
VOTED FOR APPROVAL OF ALL PROPOSALS ADDRESSED AT THE OLICOM MEETING. It is not
anticipated that any matters will be presented at the Olicom Meeting other than
as set forth in the Notice of Annual General Meeting of Stockholders. If,
however, other matters are properly presented at the Olicom Meeting, the proxy
will be voted in accordance with the judgment and discretion of the proxy
holders.
Olicom stockholders who have questions or who would like information on
any adjustments to the Exchange Ratio or Warrant Exchange Ratio should contact
_______________________ at (800)________________.
VOTE REQUIRED
Except for the proposal to approve amendments to the Olicom Articles,
the affirmative vote of a majority of the shares of Olicom Common Stock present
and voting at the Olicom Meeting is required for approval of all proposals
being submitted to Olicom's stockholders for their consideration. The proposal
to approve amendments to the Olicom Articles requires approval by two-thirds of
the votes cast at the Olicom Meeting and two-thirds in nominal value of the
voting capital represented at such meeting. Mr. Lars Stig Nielsen, the founder
and Managing Director of Olicom, has entered into a voting agreement obligating
him to vote in favor of the Merger Agreement and the consummation of the
Merger. As of the Record Date, Mr. Nielsen owned directly 267,080 shares
(exclusive of any shares issuable upon the exercise of options) of Olicom Common
Stock (constituting approximately 1.8% of the shares of Olicom Common Stock then
outstanding). See "The Agreement and Plan of Reorganization -- Related
Agreements: LSNielsen Voting Agreement." As of the Record Date, Olicom's
directors and executive officers (including affiliates), as a group,
beneficially owned ____ shares (exclusive of any shares issuable on the exercise
of options unexercised as of such date), or approximately ____% of the shares of
Olicom Common Stock that were issued and outstanding at such date. As of the
Record Date and the date of this Joint Proxy Statement/Prospectus, CrossComm
owned no shares of Olicom Common Stock.
THE ACTIONS PROPOSED IN THIS JOINT PROXY STATEMENT/PROSPECTUS GENERALLY ARE NOT
MATTERS THAT CAN BE VOTED ON BY BROKERS HOLDING SHARES FOR BENEFICIAL OWNERS
WITHOUT THE OWNERS' SPECIFIC INSTRUCTIONS. ACCORDINGLY, ALL BENEFICIAL OWNERS
OF OLICOM COMMON STOCK ARE URGED TO RETURN THE ENCLOSED PROXY CARD MARKED TO
INDICATE THEIR VOTES.
QUORUM; ABSTENTIONS AND BROKER NON-VOTES
The Companies Act and the Olicom Articles generally do not require the
presence, in person or by proxy, of a minimum number of shares of Olicom Common
Stock constituting a quorum in order for the Olicom Meeting to take action with
respect to the matters set forth in the attached Notice of Annual General
Meeting of Stockholders. Broker non- votes will have no
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effect as to whether any proposal is adopted.
SOLICITATION OF PROXIES AND EXPENSES
Olicom will bear the cost of solicitation of proxies from its
stockholders. In addition to solicitation by mail, the directors, officers and
employees of Olicom may solicit proxies from stockholders by telephone,
facsimile or in person; such persons will not be specifically compensated for
such solicitation activities. Olicom will also request brokers, custodians,
nominees and other record holders to forward copies of the proxy and other
soliciting materials to persons for whom they hold shares of Olicom Common
Stock and to request authority for the exercise of proxies. In such cases,
Olicom, upon the request of the record holders, will reimburse such holders for
their reasonable expenses. Olicom has engaged MacKenzie Partners, Inc. to
represent it in connection with the solicitation of proxies at a cost of $6,000
plus expenses.
THE CROSSCOMM MEETING
DATE, TIME AND PLACE OF THE CROSSCOMM MEETING
The CrossComm Meeting will be held at the Radisson Marlborough Hotel,
75 Felton Street, Marlborough, Massachusetts, United States, on May __, 1997
at 10:00 a.m., local time.
MATTERS TO BE CONSIDERED AT THE CROSSCOMM MEETING
At the CrossComm Meeting, stockholders of record of CrossComm as of the
close of business on the Record Date will be asked to consider and vote upon
the following four proposals: (1) to approve and adopt the Merger and the
Merger Agreement; (2) to grant the CrossComm Board discretionary authority to
adjourn the CrossComm Meeting in order to solicit additional votes for approval
of the Merger; (3) to elect four directors; and (4) to ratify the selection of
Ernst & Young LLP as CrossComm's independent auditors for the current fiscal
year.
PROPOSAL 1
APPROVAL OF THE MERGER AGREEMENT AND THE MERGER
The CrossComm Board believes it is in the best interest of the
stockholders to approve the Merger Agreement pursuant to which each share of
CrossComm Common Stock will be exchanged for $5.00 in cash, 0.2667 shares of
Olicom Common Stock, and Warrants to purchase 0.1075 Common Stock at an
exercise price of $19.74 per whole share. See "The Merger" and "The Agreement
and Plan of Reorganization."
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<PAGE> 63
THE CROSSCOMM BOARD URGES CROSSCOMM STOCKHOLDERS
TO VOTE "FOR" THE APPROVAL OF PROPOSAL 1.
PROPOSAL 2
AUTHORITY TO ADJOURN THE CROSSCOMM MEETING
The CrossComm Board believes that it is in the best interests of the
CrossComm stockholders that it be granted the authority to adjourn the
CrossComm Meeting in the event that at the time set for the CrossComm Meeting
insufficient votes have been tendered, via proxy or otherwise, for approval of
the Merger, and therefore, the CrossComm Board is requesting that the CrossComm
stockholders authorize the CrossComm Board to adjourn the CrossComm Meeting in
order to solicit additional votes for approval of the Merger.
THE CROSSCOMM BOARD URGES CROSSCOMM STOCKHOLDERS
TO VOTE "FOR" THE APPROVAL OF PROPOSAL 2.
PROPOSAL 3
ELECTION OF DIRECTORS
Four directors of CrossComm will be elected at the CrossComm Meeting.
The nominees are Nancy Casey, Alexander M. Levine, Michael C. Ruettgers and
Tadeusz Witkowicz. It is the intention of the persons named in the
accompanying proxy to vote FOR the election of the foregoing nominees. All
such persons are currently serving as directors of CrossComm. Should any
nominee for director be unable or fail to accept nomination or election (which
is not contemplated), it is the intention of the persons in the proxy, unless
otherwise specifically instructed in the proxy, to vote FOR the election in his
or her stead of such other person as the CrossComm Board may recommend. If the
Merger is approved, at the Effective Time, the CrossComm Board will be replaced
by the Board of Directors of MergerSub. Information with respect to the
nominees is set forth in the section of this Joint Proxy Statement/Prospectus
entitled "CrossComm -- Management of CrossComm."
THE CROSSCOMM BOARD URGES CROSSCOMM STOCKHOLDERS
TO VOTE "FOR" THE APPROVAL OF PROPOSAL 3.
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<PAGE> 64
PROPOSAL 4
RATIFICATION OF AUDITORS
The CrossComm Board, at the recommendation of the CrossComm Audit
Committee, has selected the firm of Ernst & Young LLP as CrossComm's
independent auditors for the current fiscal year. Ernst & Young LLP has served
as CrossComm's independent auditors since 1988. Although stockholder
ratification of the CrossComm Board's selection of Ernst & Young LLP is not
required by law, the CrossComm Board believes that it is advisable to give
CrossComm stockholders the opportunity to ratify this selection. If this
proposal is not approved at the CrossComm Meeting, the CrossComm Board will
reconsider its selection of Ernst & Young LLP.
Representatives of Ernst & Young LLP are expected to be present at the
CrossComm Meeting. They will have the opportunity to make a statement if they
desire to do so and will also be available to respond to appropriate questions
from stockholders.
THE CROSSCOMM BOARD URGES CROSSCOMM STOCKHOLDERS
TO VOTE "FOR" THE APPROVAL OF PROPOSAL 4.
RECORD DATE AND SHARES ENTITLED TO VOTE
Only holders of record of shares of CrossComm Common Stock at the close
of business on May __, 1997, will receive notice of the CrossComm Meeting. At
the close of business on May __, 1997, there were issued and outstanding
___________ shares of CrossComm Common Stock. Holders of record of shares of
CrossComm Common Stock on May __, 1997, are entitled to vote at the CrossComm
Meeting and are entitled to one vote for each share of CrossComm Common Stock
held.
VOTING OF PROXIES
The CrossComm proxy accompanying this Joint Proxy Statement/Prospectus
is solicited on behalf of the CrossComm Board for use at the CrossComm Meeting.
Stockholders of CrossComm are requested to complete, date and sign the
accompanying proxy and promptly return it in the accompanying envelope or
otherwise mail it to CrossComm. Any holder of shares of CrossComm Common Stock
giving a CrossComm proxy in the form accompanying this Joint Proxy
Statement/Prospectus has the power to revoke the proxy prior to its use. A
proxy can be revoked (i) by an instrument of revocation delivered prior to the
CrossComm Meeting to CrossComm, (ii) by an instrument of revocation delivered
at the CrossComm Meeting to the chairman of the meeting, (iii) by a
duly-executed proxy bearing a later date or time than the date or time of the
proxy being revoked, or (iv) at the CrossComm Meeting, if the stockholder is
present and elects to vote in person. Mere attendance at the CrossComm Meeting
will not serve to revoke a proxy. All shares of CrossComm Common Stock
represented by a properly-executed proxy, unless such proxy previously has been
revoked, will be voted in accordance with the directions on such proxy. IF NO
DIRECTIONS ARE GIVEN TO THE CONTRARY ON SUCH PROXY, THE SHARES OF CROSSCOMM
COMMON STOCK REPRESENTED BY SUCH PROXY WILL BE VOTED FOR APPROVAL OF ALL
PROPOSALS ADDRESSED AT SUCH MEETING. It is not anticipated that any
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<PAGE> 65
matters will be presented at the CrossComm Meeting other than as set forth in
the Notice of Annual Meeting of Stockholders. If, however, other matters are
properly presented at the CrossComm Meeting, the proxy will be voted in
accordance with the judgment and discretion of the proxy holders.
VOTE REQUIRED
Approval of the Merger Agreement and the transactions contemplated
thereby requires the affirmative vote of the holders of a majority of the
outstanding shares of CrossComm Common Stock. The affirmative vote of the
holders of a plurality of the shares of CrossComm Common Stock present or
represented at the CrossComm Meeting is required for the election of directors.
The affirmative vote of the holders of a majority of the shares of CrossComm
Common Stock present or represented at the CrossComm Meeting is required for
the ratification of the selection by the CrossComm Board of Ernst & Young LLP
as CrossComm's independent auditors for the current fiscal year. Mr. Tadeusz
Witkowicz, the President the Chief Executive Officer of CrossComm, has entered
into a voting agreement obligating him to vote in favor of the Merger Agreement
and the consummation of the Merger. As of the Record Date, Mr. Witkowicz owns
approximately 16.9% of the shares of CrossComm Common Stock. See "The
Agreement and Plan of Reorganization -- Related Agreements: Witkowicz Voting
Agreement." As of the Record Date, CrossComm's directors and executive
officers (including affiliates), as a group, beneficially owned _________
shares (exclusive of any shares issuable on the exercise of options unexercised
as of such date), or approximately ____% of the shares of CrossComm Common
Stock that were issued and outstanding at such date. As of the CrossComm
Record Date and the date of this Joint Proxy Statement/Prospectus, Olicom owned
no shares of CrossComm Common Stock.
THE ACTIONS PROPOSED IN THIS JOINT PROXY STATEMENT/PROSPECTUS GENERALLY ARE NOT
MATTERS THAT CAN BE VOTED ON BY BROKERS HOLDING SHARES FOR BENEFICIAL OWNERS
WITHOUT THE OWNERS' SPECIFIC INSTRUCTIONS. ACCORDINGLY, ALL BENEFICIAL OWNERS
OF CROSSCOMM COMMON STOCK ARE URGED TO RETURN THE ENCLOSED PROXY CARD MARKED TO
INDICATE THEIR VOTES.
QUORUM; ABSTENTIONS AND BROKER NON-VOTES
Shares of CrossComm Common Stock represented in person or by proxy
(including shares which abstain or do not vote for any reason with respect to
one or more of the matters presented for stockholder approval) will be counted
for purposes of determining whether a quorum is present at the CrossComm
Meeting.
Abstentions will be treated as shares that are present and entitled to
vote for purposes of determining the number of shares present and entitled to
vote with respect to any particular matter, but will not be counted as a vote
in favor of such matter. Accordingly, an abstention from voting on a matter
has the same legal effect as a vote against the matter.
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If a broker or nominee holding stock in "street name" indicates on the
proxy that it does not have discretionary authority to vote as to a particular
matter ("broker non-votes"), those shares will not be considered as present and
entitled to vote with respect to the election of directors or the ratification
of Ernst & Young LLP as CrossComm's independent auditors for the current fiscal
year. Accordingly, a broker non-vote has no effect on the voting on such
matters. However, a broker non-vote does have the effect of a vote against the
approval of the Merger Agreement and the transactions contemplated thereby
since the required vote on such matter is based upon the number of outstanding
shares of CrossComm Common Stock.
SOLICITATION OF PROXIES AND EXPENSES
CrossComm will bear the cost of solicitation of proxies from its
stockholders. In addition to solicitation by mail, the directors, officers and
employees of CrossComm, none of whom will be specifically compensated for such
services, may solicit proxies from stockholders by telephone, facsimile or in
person. Following the original mailing of the proxies and other soliciting
materials, CrossComm will request brokers, custodians, nominees and other
record holders to forward copies of the proxy and other soliciting materials to
persons for whom they hold shares of CrossComm Stock and to request authority
for the exercise of proxies. In such cases, CrossComm, upon the request of the
record holders, will reimburse such holders for their reasonable expenses.
CrossComm has engaged MacKenzie Partners, Inc. to represent it in connection
with the solicitation of proxies at a cost of $4,000 plus expenses.
THE MERGER
BACKGROUND OF THE MERGER
During the past year, Olicom has from time to time had discussions with
various participants in the networking industry in an effort to explore the
future of the industry and the role of Olicom and its products.
Commencing in June 1996, the CrossComm Board began to discuss certain
corporate restructuring and strategic alliance alternatives. Among other
alternatives considered by the CrossComm Board was the feasibility of spinning
off one or more of its four principal business segments, its (i) router
business; (ii) service business; (iii) ATM business; and (iv) Ethernet
business. After reviewing and discarding a number of alternative plans, in
November 1996, the CrossComm Board engaged Montgomery to assist it in its
strategic alternatives evaluation. One of the alternatives to be considered by
Montgomery was the sale of CrossComm. After CrossComm engaged Montgomery, it
entered into confidentiality agreements with 13 parties, and Montgomery
provided certain information to such parties in connection with evaluations to
be conducted by such parties regarding the possibility of a strategic
transaction with CrossComm.
On November 21, 1996, CrossComm issued a press release announcing that
it had retained Montgomery to "assist in evaluating strategic alternatives."
Shortly thereafter, a representative of Montgomery's Technology Group
approached Boje
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Rinhart, Olicom's Chief Financial Officer, to inquire as to the interest of
Olicom in discussing a combination involving Olicom and CrossComm.
On or about November 27, 1996, Olicom and CrossComm executed and
delivered a Confidentiality Agreement pursuant to which the parties agreed to
maintain the confidentiality of materials provided by, as well as their
discussions with, each other. Thereafter, the senior management teams of each
company began to explore the feasibility of a business combination, and
representatives of Olicom commenced technical and financial due diligence with
respect to CrossComm and its products. Subsequent to November 27, 1996, a
variety of telephonic meetings occurred involving senior management of Olicom
and CrossComm in furtherance of such due diligence and to discuss potentially
advantageous synergies arising from a business combination.
On December 12 through December 13, 1996, Messrs. Michael Camp,
President of Olicom Americas, and Jorgen Hog, Olicom's Vice-President,
Strategic Planning, together with Niels Jorgensen, Olicom's Vice-President,
Engineering, and Tyge Trier, Olicom's Vice-President, Legal and Director of
Business Development, undertook further discussions with CrossComm at its
headquarters relative to technical and financial due diligence.
On December 17, 1996, at a regularly scheduled meeting, the Olicom
Board discussed the preliminary results of technical and financial due
diligence. In the course of such discussions, Olicom management received
questions and comments from members of the Olicom Board with respect to a
possible combination, and obtained the authorization of the Olicom Board to
explore the possibility of a combination and to engage Alex. Brown as Olicom's
financial advisor with respect thereto. Subsequent thereto, Mr. Jorgensen
undertook further discussions with CrossComm in Gdansk, Poland, relative to
technical due diligence and research and development at CrossComm-Poland, Ltd.
On December 23, 1996, Mr. Camp and other representatives of Olicom and
Alex. Brown met with Mr. Witkowicz and Mr. Machin at Montgomery's Boston office
to discuss further due diligence issues.
On December 20, 1996, Olicom retained Alex. Brown to act as Olicom's
financial advisor with respect to a possible combination involving CrossComm.
On January 7-8, 1997, representatives of Olicom met with
representatives of CrossComm for further financial, legal and operational due
diligence.
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On January 12, 1997, Messrs. Mr. Michael Ruettgers, a member of the
CrossComm Board, and Mr. Tadeusz Witkowicz, the Chairman, President and Chief
Executive Officer of CrossComm, met with representatives of Montgomery at
CrossComm's headquarters in Marlborough, Massachusetts to discuss recent
developments regarding Montgomery's efforts on behalf of CrossComm.
On January 14-15, 1997, Mr. Witkowicz, and Nigel Machin, the President
of CrossComm's Enterprise Products Division, and a representative of Montgomery
met with Messrs. Camp, Burkey and Hog at the headquarters of Olicom Americas
to further explore potential synergies arising from a business combination.
On January 19, 1997, at a meeting of the CrossComm Board, Mr. Witkowicz
described Montgomery's efforts to date and advised the Board that he and Mr.
Machin had visited the headquarters of Olicom Americas and that it was his
impression that Olicom had a genuine interest in discussing a possible
strategic transaction with CrossComm.
On January 24, 1997, Olicom management discussed with its outside legal
counsel the progress of technical and financial due diligence and requested
that such counsel commence legal due diligence with respect to CrossComm.
On January 27, 1997, at a regularly scheduled meeting, the Olicom Board
discussed the results of the further technical and financial due diligence
with respect to CrossComm. In the course of such discussions, Olicom
management received questions and comments from members of the Olicom Board
with respect to a possible combination, and obtained the authorization of the
Olicom Board to continue discussions with CrossComm.
On February 3, 1997, at a meeting of the CrossComm Board, a
representative from Montgomery updated the Board on discussions with Olicom and
Alex. Brown, after which the CrossComm Board directed Mr. Witkowicz to contact
the Managing Director of Olicom.
On February 12, 1997, at a regularly scheduled meeting of the CrossComm
Board, Mr. Camp made a presentation to the CrossComm Board regarding Olicom and
explained why Olicom believed a business combination would be in the best
interests of both companies as a result of the synergies that could be derived
because of, among other things, the complementary product offerings of the two
companies. A representative of Montgomery was also present and updated the
Board regarding ongoing discussions with Olicom. After a detailed discussion
regarding a possible transaction with Olicom, the CrossComm Board authorized
management to begin a detailed business and legal due diligence review of
Olicom.
On February 15, 1997, at a special meeting of the Olicom Board, the
Olicom Board received a presentation by Alex. Brown regarding a possible
business combination with CrossComm, and discussed with representatives of
Alex. Brown the range of parameters that might be indicated for such a
transaction. Management was directed to continue discussions with CrossComm,
and later that day Mr. Lars Stig Nielsen, Managing Director of Olicom, together
with Mr. Camp, made a presentation to the CrossComm Board.
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On February 18th and 19th, 1997, Mr. Witkowicz and a representative of
Montgomery visited Olicom's headquarters in Denmark to conduct financial and
operational due diligence and CrossComm's outside legal counsel initiated its
legal due diligence review of Olicom.
On February 20, 1997, Mr. Witkowicz met with the Olicom Board and
senior management of Olicom at Olicom's headquarters to discuss the advantages
of combining the two companies.
On February 23 through February 26, 1997, management of Olicom met with
CrossComm management to continue Olicom's technical and financial due diligence
review of CrossComm. Olicom's outside legal counsel continued its due
diligence review. During this period, Ernst & Young LLP, New York, commenced
its financial due diligence with respect to CrossComm.
On March 7, 1997, at a special meeting, the Olicom Board reviewed the
progress made by Olicom management with respect to financial, technical and
legal due diligence, and authorized Olicom management to continue discussions
with CrossComm.
On March 10, 1997, at a meeting of the CrossComm Board, the CrossComm
Board reviewed a draft proposal received from Alex. Brown concerning a possible
transaction with Olicom. A representative from Montgomery discussed various
issues, including proposed pricing and the related collar on Olicom's stock
price. He also advised the CrossComm Board that there was one other party that
had expressed some interest, but that Montgomery, after consultation with Mr.
Witkowicz and conducting financial due diligence, considered the ability of the
other candidate to effect a transaction as low to moderate and that the other
candidate was not as viable a candidate as Olicom.
On March 11, 1997, at a meeting of the CrossComm Board, the CrossComm
Board reviewed the status of discussions with Olicom. A representative from
Montgomery summarized recent discussions with Alex. Brown. CrossComm's outside
legal counsel indicated that they had some concerns as to the structure
proposed by Olicom. It was the consensus of the CrossComm Board that
Montgomery should continue to attempt to obtain better terms from Olicom.
On March 14, 1997, Olicom provided to CrossComm a preliminary draft
Agreement and Plan of Reorganization whereby a newly-formed subsidiary of
Olicom would merge with and into CrossComm, thereby causing CrossComm to become
a subsidiary of Olicom, and discussions ensued between outside legal counsel to
Olicom and outside legal counsel to CrossComm regarding the proposed structure
and other principal terms of the draft agreement. Subsequent thereto, a
variety of telephonic meetings took place involving various members of Olicom
management and CrossComm management, as well as financial and legal advisors of
both companies. In addition, various members of management and representatives
of both companies, as well as outside legal counsel, continued their due
diligence efforts.
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On March 15, 1997, Olicom's management met with Olicom's outside
counsel and its financial advisors via telephone conference to discuss the
negotiations with respect to the draft agreement.
On March 16, 1997, at a special meeting, the Olicom Board reviewed the
preliminary draft Agreement and Plan of Reorganization and draft fairness
opinion prepared by Alex. Brown. Representatives of Alex. Brown were present
by telephone and made a presentation with respect to a proposed combination
involving CrossComm, and rendered an oral opinion to the Olicom Board that the
proposed terms for the transaction would be fair from a financial point of view
to the stockholders of Olicom. Representatives of Alex. Brown responded to
questions from the Olicom Board regarding the fairness opinion and Alex.
Brown's analysis in connection therewith. Olicom's outside legal counsel was
also present by telephone and answered questions from the Olicom Board
regarding the proposed structure and status of, and issues arising from, legal
due diligence. Olicom's Danish legal counsel and independent auditors were
also present at the meeting and answered questions from the Olicom Board.
Following extensive review and discussion, the Olicom Board authorized
management to negotiate and enter into an Agreement and Plan of Reorganization
with CrossComm substantially within the terms set forth in the draft Agreement
and Plan of Reorganization and in the draft fairness opinion of Alex. Brown.
On March 17, 1997, Olicom senior management, together with outside
legal counsel and financial advisors to Olicom and CrossComm, met at the
offices of CrossComm's outside legal counsel to continue the negotiation of a
proposed agreement. Such negotiations continued through March 20, 1997.
On March 19, 1997, at a meeting of the CrossComm Board, held via
teleconference, the CrossComm Board discussed a draft of the Agreement and Plan
of Reorganization and draft fairness opinion prepared by Montgomery.
Representatives of Montgomery made a presentation with respect to the proposed
combination involving Olicom and rendered an oral opinion to the CrossComm
Board that the proposed terms for the transaction would be fair from a
financial point of view to the stockholders of CrossComm. The representatives
of Montgomery discussed, among other things, the sale process to date,
reviewing various alternatives, the number of companies contacted, the number
of companies with continuing interest and the number of companies declining
interest. Of all the companies contacted, only Olicom and one other company
had any continuing interest. The Montgomery representative told the CrossComm
Board that the probability of closing a sale with Olicom at an estimated near
term valuation of $10.00 per share was quite high, but that there was a low
probability of negotiating a transaction with the other party and that any such
transaction with the other party would likely be less than $10.00 per share in
the near term. The other party was a smaller company than Olicom, had less
financial resources and was technically not as good a fit as Olicom. The
CrossComm Board also discussed the alternative of discontinuing the
negotiations with Olicom and remaining independent. The Montgomery
represenative then reviewed in detail the various components of the Olicom
proposal and answered numerous questions from the CrossComm Board concerning
stock price and evaluation. After an extensive discussion, the CrossComm Board
authorized CrossComm, subject to the satisfactory resolution of certain issues
remaining to be negotiated, to
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enter into the Agreement and Plan of Reorganization between CrossComm and
Olicom substantially in the form reviewed and discussed at the meeting.
On March 20, 1997, at a meeting of the CrossComm Board, held via
teleconference, representatives of Montgomery and CrossComm's outside legal
counsel reviewed with the CrossComm Board the status of the remaining issues
which had been negotiated, and a Montgomery representative confirmed that firm's
view that the terms of the transaction would be fair from a financial point of
view to the stockholders of CrossComm. After a discussion of these matters, the
CrossComm Board authorized CrossComm to enter into the Agreement and Plan of
Reorganization, as revised. Shortly thereafter, management of Olicom and
CrossComm executed and delivered the Agreement and Plan of Reorganization,
publicly announced the proposed transaction and agreed to proceed with making a
formal recommendation to their respective stockholders that they vote in favor
of the Merger. Alex Brown confirmed in writing its opinion in writing that, as
of such date, the Merger Consideration payable by Olicom was fair to Olicom from
a financial point of view.
REASONS FOR THE MERGER
Joint Reasons for the Merger. The Boards of Directors of Olicom and
CrossComm, in voting to approve the proposed Merger, identified a number of
potential benefits that they believe will contribute to the success of the
combined company. There can be no assurance that any of these potential
benefits will be realized. The potential benefits include:
o Improved ability to provide leading-edge network solutions
particularly for organizations employing mainframe based
Systems Network Architecture ("SNA") and Token Ring
environments, and improved competitive position against various
competitors, many of which have greater financial, technical
and marketing resources than Olicom, CrossComm or the combined
company.
o Opportunity to leverage research and development capabilities
by sharing technology and eliminating redundant product
development efforts.
o Potential to achieve operating synergies by combining
operations in administrative, sales, marketing, product
development and support.
Olicom's Reasons for the Merger. The Olicom Board identified the
following additional benefits from the proposed Merger:
o Acceleration of Olicom's entry into the market for end-to-end
enterprise network solutions, particularly to the Olicom and
CrossComm customer base.
o Improved solutions for Token Ring/SNA customers seeking to
migrate to asynchronous transfer mode (ATM)- based networks.
o Complementary nature of CrossComm's technologies to those of
Olicom.
o Minimal overlap with CrossComm's customer base, and the ability
to cross-sell Olicom's networking products into CrossComm's
installed customer base.
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o Cost benefits potentially attainable from CrossComm's research
and development activities in Poland.
In reaching its decision to approve the Merger Agreement and the
consummation of the Merger and to recommend that the Olicom stockholders vote
to approve the same, the Olicom Board also considered, in addition to other
matters, the following factors: (i) historical information concerning Olicom's
and CrossComm's respective businesses, operations, properties, assets,
financial condition and operating results, including public reports concerning
results of operations during the most recent fiscal year and fiscal quarter of
each company; (ii) discussions with CrossComm management regarding the
compatibility of the respective business philosophies of Olicom and CrossComm
(and in particular, the similar commitment of both companies to quality of
product and customer service and leading technology in the networking industry,
and the similarity of organizational structures which do not involve numerous
layers of management); (iii) internal projections regarding possible results of
operations as to Olicom and publicly available forecasts of securities analysts
as to possible future results of operations for CrossComm; (iv) detailed
financial analyses and pro forma and other information with respect to Olicom
and CrossComm presented by Alex. Brown in its presentation to the Olicom Board
on March 16, 1997, as well as the oral opinion of Alex. Brown that, as of such
date, and based upon and subject to certain factors and assumptions, the
consideration to be payable by Olicom pursuant to the Merger Agreement was fair
to Olicom from a financial point of view (such analyses are described under
"Opinion of Olicom's Financial Advisor"); (v) an evaluation of the Merger in
light of the evolution of trends in the networking industry, the potential for
product line synergies, the possibility of operational synergies, and the
potential stockholder return of a combined entity; (vi) the perceived
compatibility of the business cultures of the two companies; (vii) a review of
the prices of Olicom Common Stock and CrossComm Common Stock prior to the
announcement of the proposed Merger, as well as historical trading prices of
Olicom and CrossComm, the implied premium reflected in the proposed exchange
ratio and premiums in similar transactions in the networking and technology
industries; and (viii) the terms and conditions of the Merger Agreement
including the termination fees, non-solicitation provisions, conditions to
closing and termination provisions. As part of the foregoing analysis, the
Olicom Board consulted with its financial advisor regarding the financial
aspects of the proposed Merger and the fairness to Olicom of the consideration
to be paid by it in the Merger, with its legal counsel regarding the legal
terms of the transaction and the Olicom Board's obligations in its
consideration of the proposed transaction, and with management of Olicom.
The Olicom Board also considered the following specific negative
factors concerning the Merger and the risks inherent in the transaction: (i)
the requirement of stockholder approval of the Merger and the process involved
in obtaining such approval (and the possibility of substantial delays in
completing the proposed Merger due to regulatory requirements and the concern
that such a delay could have a significant adverse effect on employee and
customer relationships if not managed properly); (ii) the possibility that
following announcement of the transaction, some customers may defer orders or
purchasing decisions pending the completion of the Merger or seek to terminate
their relationship with the combined company or reduce their long-term
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dependence on the combined company following the transaction; (iii) the
potential effect of the Merger on Olicom and CrossComm customers and suppliers
both in the near term and over an extended period of time, and in particular
the possible effect on sales and marketing efforts of CrossComm during the
period following announcement and prior to consummation of the Merger; (iv) the
risks of combining the distinct cultures of the two organizations; (v) the
risks in mergers of technology companies generally and, in particular, the fact
that many technology merger transactions frequently result in high employee
attrition rates, loss of management focus and temporary or long-term employee
morale problems; (vi) the risk that the combination with CrossComm could make
attractive partnerships with other companies in the communications industries
more complicated and difficult to complete; and (vii) the other risks described
under "Risk Factors -- Risks Relating to the Merger."
The foregoing discussion of the information and factors considered and
given weight by the Olicom Board is not intended to be exhaustive. In view of
the wide variety of factors, both positive and negative, considered by the
Olicom Board in connection with its evaluation of the Merger, the Olicom Board
did not find it practicable to, and did not quantify or otherwise assign
relative weight to, the specific factors considered. In addition, individual
members of the Olicom Board may have given different weights to different
factors.
The Olicom Board believed that the benefits and advantages of the
Merger far outweighed the negative factors and risks, and believes that the
terms of the Merger Agreement and the Merger are fair from a financial point of
view to Olicom, and are in the best interests of Olicom and its stockholders.
ACCORDINGLY, THE OLICOM BOARD HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND
RECOMMENDS APPROVAL OF THE MERGER AGREEMENT BY THE STOCKHOLDERS OF OLICOM.
In the event that the Merger is not consummated for any reason, Olicom
will return to executing its strategic objectives of further developing its
leadership position as a developer and vendor of network access and switching
products for Token Ring, ATM, Ethernet and mobility environments to large,
geographically dispersed enterprises which require superior service and
support.
CrossComm's Reasons for the Merger.
THE CROSSCOMM BOARD UNANIMOUSLY BELIEVES THAT THE MERGER IS FAIR TO,
AND IN THE BEST INTERESTS OF CROSSCOMM AND ITS STOCKHOLDERS. ACCORDINGLY, THE
CROSSCOMM BOARD HAS UNANIMOUSLY APPROVED THE TERMS OF THE MERGER AGREEMENT AND
THE MERGER, AND UNANIMOUSLY RECOMMENDS THAT CROSSCOMM'S STOCKHOLDERS VOTE TO
APPROVE THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY.
In reaching its decision to approve the Merger Agreement, the CrossComm
Board consulted with its legal advisors regarding the legal terms of the
transaction and the CrossComm
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Board's obligations in its consideration of the proposed transaction, and with
its financial advisers regarding the financial aspects of the proposed
transaction and the fairness of the consideration to the CrossComm's
stockholders, as well as with management of CrossComm. Without assigning any
relative or specific weights, the CrossComm Board considered a number of
factors, both from a short term and long term perspective, including the
following: (i) information concerning the financial performance, condition,
business operations and prospects of each of Olicom and CrossComm, including
the long term growth potential of Olicom and the business risks associated
therewith; (ii) the financial strength, global market presence and greater
resources of the combined company and its consequent enhanced ability to
realize the potential of the business contributed by CrossComm; (iii) the
current and prospective environment in which CrossComm operates, including
international and local economic conditions, the competitive environment for
networking companies generally and the trend toward consolidation in the
networking industry and the adverse effect that such consolidation could have
on the ability of CrossComm to compete on a stand alone basis; (iv)
difficulties that CrossComm has had as a small stand alone company selling
strategic networking solutions to large corporations; (v) the difficulties that
CrossComm has had retaining key employees as a stand alone company competing
for their services against much larger companies in the networking industry;
(vi) the ability of the combined company to deliver end-to-end network
solutions, in the Token Ring/SNA environment; (vii) that the core product lines
of the two companies are primarily complementary; (viii) the ability of the
combined company to better exploit the CrossComm's ATM switching technology;
(ix) the extensive efforts of Montgomery Securities ("Montgomery"), CrossComm's
financial advisers, to procure alternative strategic alliance opportunities;
(x) the written opinion of Montgomery, given its familiarity with CrossComm,
Olicom, the networking industry and the Merger Agreement, that the
consideration offered in the Merger to the CrossComm shareholders is fair to
such holders from a financial point of view; and (xi) the financial and other
significant terms of the proposed Merger, including the terms and conditions of
the Merger Agreement and the related agreements.
The CrossComm Board also considered negative factors relating to the
Merger, including (i) the risks that the benefits sought in the Merger would
not be fully achieved; (ii) the risk that the Merger would not be consummated;
(iii) the effect of the announcement of the Merger would have on CrossComm's
ability to attract and retain key management, marketing and technical
personnel; (iv) the possible loss of revenue from customers; and (v) the risks
associated with the business of Olicom and the combined company after the
Merger. See "Risk Factors."
After considering the opinion of Montgomery, to the effect that, from a
financial point of view, the consideration to be given as a result of the
Merger to the CrossComm stockholders, is fair to the CrossComm stockholders,
and the foregoing matters, the CrossComm Board unanimously approved the Merger
and the related transactions as being fair and in the best interests of
CrossComm and its stockholders.
The foregoing discussion of the information and factors considered by
the CrossComm Board is not intended to be exhaustive, but is believed to
include the material factors the CrossComm Board considered. In addition, in
reaching its determination to approve and
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recommend the Merger, given the wide variety of factors considered in
connection with its evaluation of the proposed Merger, the CrossComm Board did
not find it practical to, and did not, quantify or otherwise attempt to assign
any relative or specific weights to the foregoing factors and individual
directors may not concur on which factors should have been given greater
weight.
OPINION OF OLICOM'S FINANCIAL ADVISOR
Olicom retained Alex. Brown on December 20, 1996, to act as Olicom's
financial advisor in connection with the Merger, including rendering its
opinion to the Olicom Board as to the fairness, from a financial point of view,
of the Merger Consideration payable by Olicom.
At the March 16, 1997, meeting of the Olicom Board, representatives of
Alex. Brown made a presentation with respect to the Merger and rendered to the
Olicom Board an oral opinion, subsequently confirmed in writing as of March 20,
1997, that, as of such date, and subject to the assumptions made, matters
considered and limitations set forth in such opinion and summarized below, the
Merger Consideration payable by Olicom was fair to Olicom, from a financial
point of view. No limitations were imposed by the Olicom Board upon Alex.
Brown with respect to the investigations made or procedures followed by it in
rendering its opinion.
THE FULL TEXT OF ALEX. BROWN'S WRITTEN OPINION DATED MARCH 20, 1997
(THE "ALEX. BROWN OPINION"), WHICH SETS FORTH, AMONG OTHER THINGS, ASSUMPTIONS
MADE, MATTERS CONSIDERED AND LIMITATIONS ON THE REVIEW UNDERTAKEN, IS ATTACHED
HERETO AS APPENDIX B AND IS INCORPORATED HEREIN BY REFERENCE. OLICOM
STOCKHOLDERS ARE URGED TO READ THE ALEX. BROWN OPINION IN ITS ENTIRETY. THE
ALEX. BROWN OPINION IS DIRECTED TO THE OLICOM BOARD, ADDRESSES ONLY THE
FAIRNESS OF THE MERGER CONSIDERATION PAYABLE BY OLICOM FROM A FINANCIAL POINT
OF VIEW AND DOES NOT CONSTITUTE A RECOMMENDATION TO ANY OLICOM STOCKHOLDER AS
TO HOW SUCH STOCKHOLDER SHOULD VOTE AT THE OLICOM MEETING. THE ALEX. BROWN
OPINION WAS RENDERED TO THE OLICOM BOARD FOR ITS CONSIDERATION IN DETERMINING
WHETHER TO APPROVE THE MERGER AGREEMENT. THE DISCUSSION OF THE ALEX. BROWN
OPINION IN THIS JOINT PROXY STATEMENT/PROSPECTUS IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO THE FULL TEXT OF THE ALEX. BROWN OPINION.
In connection with the Alex. Brown Opinion, Alex. Brown reviewed
certain publicly available financial information and other information
concerning Olicom and CrossComm and certain internal analyses and other
information furnished to it by Olicom and CrossComm. Alex. Brown also held
discussions with the members of the senior managements of Olicom and CrossComm
regarding the businesses and prospects of their respective companies and the
joint prospects of a combined company. In addition, Alex. Brown (i) reviewed
the reported prices and trading activity for the common stock of both Olicom
and CrossComm, (ii) compared certain financial and stock market information for
Olicom and CrossComm with similar information for certain other companies whose
securities are publicly traded, (iii) reviewed the financial terms of certain
recent business combinations, (iv) reviewed the terms of the Merger Agreement,
and (v) performed such other studies and analyses and considered such other
factors as it deemed appropriate.
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In conducting its review and arriving at its opinion, Alex. Brown
assumed and relied upon, without independent verification, the accuracy,
completeness and fairness of the information furnished to or otherwise reviewed
by or discussed with it for purposes of rendering its opinion. With respect to
the financial projections of Olicom and CrossComm and other information
relating to the prospects of Olicom and CrossComm provided to Alex. Brown by
each company, Alex. Brown assumed that such projections and other information
were reasonably prepared and reflected the best currently available judgments
and estimates of the respective managements of Olicom and CrossComm as to the
likely future financial performances of their respective companies and of the
combined entity. The financial projections of Olicom and CrossComm that were
provided to Alex. Brown were utilized and relied upon by Alex. Brown in the
Discounted Cash Flow Analysis and the Pro Forma Earnings Analysis summarized
below. Alex. Brown did not make, and it was not provided with, an independent
evaluation or appraisal of the assets of Olicom and CrossComm, nor has Alex.
Brown been furnished with any such evaluations or appraisals. The Alex. Brown
Opinion is based on market, economic and other conditions as they existed and
could be evaluated as of the date of the opinion letter.
The following is a summary of the analyses performed and factors
considered by Alex. Brown in connection with the rendering of the Alex. Brown
Opinion.
Historical Financial Position. In rendering its opinion, Alex. Brown
reviewed and analyzed the historical and current financial condition of
CrossComm which included (i) an assessment of CrossComm's recent financial
statements, (ii) an analysis of CrossComm's revenue, growth and operating
performance trends and (iii) an assessment of CrossComm's margin trends.
Historical Stock Price Performance. Alex. Brown reviewed and analyzed
the daily closing per share market prices and trading volume for CrossComm
Common Stock from March 20, 1996, to March 20, 1997. Alex. Brown also reviewed
the daily closing per share market prices of CrossComm Common Stock and
compared the movement of such daily closing prices with the movement of the
Nasdaq composite average over the periods from March 20, 1996, through March
20, 1997. Alex. Brown noted that, on a relative basis, CrossComm
underperformed the Nasdaq composite average. Alex. Brown also reviewed the
daily closing per share market prices of CrossComm Common Stock and compared
the movement of such closing prices with the movement of two networking
composite averages (consisting of Asante Technologies, Inc., Interphase
Corporation, Lan Optics Ltd., Network Peripherals Inc., Optical Data Systems,
Inc., Plaintree Systems Inc., Proteon, Inc. and Retix (the "Small-cap
Networking Group") and 3Com, Bay Networks, Cisco and FORE (the "Large-cap
Networking Group")) over the period from March 20, 1996, through March 20,
1997. On a relative basis, the CrossComm Common Stock price outperformed both
of the networking composite averages. This information was presented to give
the Olicom Board background information regarding the respective stock prices
of CrossComm over the periods indicated.
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Analysis of Certain Other Publicly Traded Companies. This analysis
examines a company's valuation in the public market as compared to the
valuation in the public market of other selected publicly traded companies.
Alex. Brown compared certain financial information (based on the commonly used
valuation measurements described below) relating to CrossComm to certain
corresponding information from two groups of publicly traded networking
companies: the Small-cap Networking Group and the Large-cap Networking Group
(together, the "Selected Companies"). Such financial information included,
among other things, (i) common equity market valuation; (ii) capitalization
ratios; (iii) operating performance; (iv) ratios of common equity market value
as adjusted for debt and cash ("Adjusted Value") to revenues and operating
earnings, each for the latest reported twelve month ("LTM") period as derived
from publicly available information; and (v) ratios of common equity market
prices per share ("Equity Value") to earnings per share ("EPS"). The financial
information used in connection with the multiples provided below with respect
to CrossComm and the Selected Companies was based on the LTM period as derived
from publicly available information and on estimated EPS for calendar years
1997 and 1998 based on Alex. Brown research and as reported by the
Institutional Brokers Estimating System ("IBES"). Alex. Brown noted that, on
an LTM basis, the multiple of Adjusted Value to revenues was 0.9x for
CrossComm, compared to a range of 0.2x to 2.4x (with a mean of 1.3x) for the
Small-cap Networking Group and a range of 1.4x to 6.1x (with a mean of 3.5x)
for the Large-cap Networking Group. Alex. Brown further noted that the
multiple of Equity Value to calendar year 1998 EPS was 43.1x for CrossComm,
compared to a range of 10.8x to 26.9x (with a mean of 17.5x) for the Small-cap
Networking Group and a range of 11.4x to 17.7x (with a mean of 14.3x) for the
Large-cap Networking Group. Alex. Brown noted that multiples of Adjusted Value
to LTM operating earnings and of Equity Value to calendar year 1997 EPS were
not meaningful for CrossComm. As a result of the foregoing procedures, Alex.
Brown noted that the multiple of Adjusted Value to LTM revenues for CrossComm
was within the range of the multiples for the Small-cap Networking Group and
was lower than the range of the multiples for the Large-cap Networking Group.
Alex. Brown noted that the multiple of Equity Value to calendar year 1998 EPS
for CrossComm was not applicable for comparison purposes due to CrossComm's
historical lack of profitability and its projected transition to profitability
during 1998. The IBES EPS estimate, as of March 20, 1997, for CrossComm for
calendar year 1997 was ($0.03) and for calendar year 1998 was $0.20.
Analysis of Selected Mergers and Acquisitions. Alex. Brown reviewed
the financial terms, to the extent publicly available, of 24 proposed, pending
or completed mergers and acquisitions since May 10, 1995, in the communications
networking equipment industry sector (the "Selected Transactions"). Alex.
Brown calculated various financial multiples and the premiums over market value
based on certain publicly available information for each of the Selected
Transactions and compared them to corresponding financial multiples and the
premiums over market for the Merger, based on the Merger Consideration. Alex.
Brown noted that the multiple of adjusted purchase price (value of
consideration paid for common equity adjusted for debt, preferred stock and
cash) to trailing LTM revenues was 1.1x for the Merger versus a range of 1.1x
to 55.7x (with a mean of 10.1x) for the Selected Transactions. Alex. Brown
also noted that the Selected Transactions were effected at a range of the
premium to the target's per share market price four weeks prior to announcement
and to the target's per share market price one
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day prior to announcement of 0.4% to 77.8% with a mean of 42.5%, and -7.9% to
53.4% with a mean of 26.2%, respectively, versus transaction premiums of 7.1%
and 7.9%, respectively, for the Merger (based on the per share market price
four weeks prior to and one day prior to the March 21, 1997, announcement of
the proposed transaction). All multiples for the Selected Transactions were
based on public information available at the time of announcement of such
transaction, without taking into account differing market and other conditions
during the 21-month period during which the Selected Transactions occurred.
Discounted Cash Flow Analysis. Alex. Brown performed discounted cash
flow analyses for CrossComm on a standalone basis and after giving effect to
certain synergies which management of Olicom anticipated might result from the
Merger. The discounted cash flow approach values a business based on the
current value of the future cash flows that the business will generate. To
establish a current value under this approach, future cash flow must be
estimated and an appropriate discount rate determined. Alex. Brown used
estimates of projected financial performance for CrossComm for the years 1997
through 2001 prepared by the respective managements of Olicom and CrossComm.
Alex. Brown aggregated the present value of the cash flows through 2001 with
the present value of a range of terminal values. Alex. Brown discounted these
cash flows at discount rates ranging from 15% to 25%. The terminal value was
computed based on projected revenue in calendar year 2001 and a range of
terminal multiples of 1.0x to 2.0x. Alex. Brown arrived at such discount rates
based on its judgment of the weighted average cost of capital of publicly
traded networking companies, and arrived at such terminal values based on its
review of the trading characteristics of the common stock of the Selected
Companies. This analysis indicated a range of values of $8.24 to $14.87 per
share for the standalone case and $11.08 to $19.40 per share if potential
synergies were achieved.
Pro Forma Combined Earnings Analysis. Alex. Brown analyzed certain pro
forma effects of the Merger. Based on such analysis, Alex. Brown computed the
resulting accretion/dilution to the combined company's EPS estimate for the
fiscal years ending 1997 and 1998, pursuant to the Merger before and after
taking into account any potential cost savings and other synergies that Olicom
and CrossComm could achieve if the Merger were consummated and before
nonrecurring costs relating to the Merger. Alex. Brown noted that before
taking into account any potential cost savings and other synergies and before
certain nonrecurring costs relating to the Merger, the Merger would be
approximately 9.3% dilutive and 13.2% dilutive to the combined company's EPS
for the fiscal years ending 1997 and 1998, respectively. Alex. Brown also
noted that after taking into account potential cost savings and other synergies
for the fiscal years ending 1997 and 1998, respectively, and before
nonrecurring costs relating to the Merger, the Merger would be approximately
5.8% accretive to the combined company's estimated EPS for the fiscal year
ending 1997, and that the Merger would be approximately 11.4% accretive to the
combined company's estimated EPS for the fiscal year ending 1998. There can be
no assurance that the combined company will be able to realize savings and
synergies in the amounts identified, or at all, following the Merger.
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Relevant Market and Economic Factors. In rendering its opinion, Alex.
Brown considered, among other factors, the condition of the United States stock
markets, particularly in the networking sector, and the current level of
economic activity.
No company used in the analysis of other publicly traded companies nor
any transaction used in the analysis of selected mergers and acquisitions
summarized above is identical to Olicom, CrossComm or the Merger. Accordingly,
such analyses must take into account differences in the financial and operating
characteristics of the Selected Companies and the companies in the Selected
Transactions, together with other factors that would affect the public trading
value and acquisition value of the Selected Companies and the Selected
Transactions, respectively.
While the foregoing summary describes all analyses and factors that
Alex. Brown deemed material in its presentation to the Olicom Board, it is not
a comprehensive description of all analyses and factors considered by Alex.
Brown. The preparation of a fairness opinion is a complex process involving
various determinations as to the most appropriate and relevant methods of
financial analysis and the applications of these methods to the particular
circumstances and, therefore, such an opinion is not readily susceptible to
summary description. Alex. Brown believes that its analyses must be considered
as a whole and that selecting portions of its analyses or of the factors
considered by it, without considering all analyses and factors, would create an
incomplete view of the evaluation process underlying the Alex. Brown Opinion.
In performing its analyses, Alex. Brown considered general economic, market and
financial conditions and other matters, many of which are beyond the control of
Olicom and CrossComm. The analyses performed by Alex. Brown are not
necessarily indicative of actual values or future results, which may be
significantly more or less favorable than those suggested by such analyses.
Accordingly, such analyses and estimates are inherently subject to substantial
uncertainty. Additionally, analyses relating to the value of a business do not
purport to be appraisals or to reflect the prices at which the business
actually may be sold. Furthermore, no opinion is being expressed as to the
prices at which shares of Olicom Common Stock may trade at any future time.
Pursuant to a letter agreement dated December 20, 1996, between Olicom
and Alex. Brown, the fees to date payable to Alex. Brown for rendering the
Alex. Brown Opinion have been $350,000, which amount will be credited against
the final fee of $1,000,000, payable upon consummation of the Merger. In
addition, Olicom has agreed to reimburse Alex. Brown for its reasonable
out-of-pocket expenses incurred in connection with rendering financial advisory
services, including fees and disbursements of its legal counsel. Olicom has
agreed to indemnify Alex. Brown and its directors, officers, agents, employees
and controlling persons, for certain costs, expenses, losses, claims, damages
and liabilities related to or arising out of its rendering of services under
its engagement as financial advisor.
The Olicom Board retained Alex. Brown to act as its advisor based upon
Alex. Brown having served as the lead-managing underwriter in the October 22,
1992, initial public offering of Olicom Common Stock and based upon Alex.
Brown's qualifications, reputation, experience
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and expertise. Alex. Brown is an internationally recognized investment banking
firm and, as a customary part of its investment banking business, is engaged in
the valuation of businesses and their securities in connection with mergers and
acquisitions, negotiated underwritings, private placements and valuations for
corporate and other purposes. Alex. Brown may actively trade the equity
securities of Olicom and CrossComm for its own account and for the account of
its customers and, accordingly, may at any time hold a long or short position
in such securities. Alex. Brown maintains a market in Olicom Common Stock and
regularly publishes research reports regarding the technology industry and the
businesses and securities of Olicom and other publicly traded companies in the
technology industry. Olicom did not consider or interview other firms to act
as its financial advisor in connection with the Merger.
OPINION OF CROSSCOMM'S FINANCIAL ADVISOR
Pursuant to an engagement letter dated November 18, 1996 (the
"Engagement Letter"), CrossComm engaged Montgomery to act as its exclusive
financial advisor for the purpose of identifying opportunities for maximizing
stockholder value, including in connection with a sale of CrossComm.
Montgomery is a nationally recognized firm and, as part of its investment
banking activities, is regularly engaged in the valuation of businesses and
their securities in connection with merger transactions and other types of
acquisitions, negotiated underwritings, secondary distributions of listed and
unlisted securities, private placements and valuations for corporate and other
purposes. CrossComm selected Montgomery as its financial adviser on the basis
of its experience and expertise in transactions similar to the Merger and its
reputation in the technology and data communications industries and the
investment community.
At the March 19, 1997 meeting of CrossComm's Board of Directors,
Montgomery delivered its oral opinion, subsequently confirmed in writing as of
March 20, 1997, that the consideration to be received by CrossComm's
stockholders in the Merger, when taken as a whole, is fair to CrossComm's
stockholders from a financial point of view as of such date so long as the
Final Closing Price is not less than $12.50 nor greater than $20.83 (subject
to certain adjustments). The amount of such consideration was determined
pursuant to negotiations between CrossComm and Olicom and not pursuant to
recommendations of Montgomery. No limitations were imposed by CrossComm on
Montgomery with respect to the investigations made or procedures followed in
rendering its opinion. The full text of Montgomery's written opinion to the
CrossComm Board, which sets forth the assumptions made, matters considered and
limitations of review by Montgomery, is attached hereto as Appendix C and is
incorporated herein by reference and should be read carefully and in its
entirety in connection with this Proxy Statement/Prospectus.
THE FOLLOWING SUMMARY OF MONTGOMERY'S OPINION IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE FULL TEXT OF THE OPINION. MONTGOMERY'S OPINION IS
ADDRESSED TO THE CROSSCOMM BOARD ONLY AND DOES NOT CONSTITUTE A RECOMMENDATION
TO ANY CROSSCOMM STOCKHOLDER AS TO HOW SUCH STOCKHOLDER SHOULD VOTE AT THE
CROSSCOMM MEETING. IN FURNISHING ITS OPINION, MONTGOMERY DID NOT ADMIT THAT IT
IS AN EXPERT WITHIN THE MEANING OF THE TERM "EXPERT" AS USED IN THE SECURITIES
ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER, OR THAT ITS OPINION
IS A
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REPORT OR VALUATION WITHIN THE MEANING OF SECTION 11 OF THE SECURITIES ACT, AND
STATEMENTS TO SUCH EFFECT ARE INCLUDED IN MONTGOMERY'S OPINION. MONTGOMERY HAS
NOT ASSUMED RESPONSIBILITY FOR PERFORMING THE LEVEL OF DILIGENCE OR INDEPENDENT
VERIFICATION THAT WOULD BE REQUIRED FOR IT TO RENDER A REPORT OR VALUATION FOR
PURPOSES OF THE SECURITIES ACT. ACCORDINGLY, MONTGOMERY BELIEVES THAT ITS
OPINION SHOULD NOT BE ACCORDED THE DEGREE OF RELIANCE PLACED ON SUCH REPORTS
AND VALUATIONS.
Montgomery has informed CrossComm that in arriving at its opinion,
Montgomery, among other things: (i) reviewed certain publicly available
financial and other data with respect to CrossComm and Olicom, including the
consolidated financial statements for recent years ending December 31, 1996 and
1995, and certain other relevant financial and operating data relating to
CrossComm and Olicom made available to Montgomery from published sources and
from the internal records of CrossComm; (ii) reviewed the financial terms and
conditions of the draft Merger Agreement; (iii) reviewed certain publicly
available information concerning the trading of, and the trading market for,
CrossComm Common Stock and Olicom Common Stock; (iv) compared CrossComm and
Olicom from a financial point of view with certain other companies in the data
communications industry that Montgomery deemed to be relevant; (v) considered
the financial terms, to the extent publicly available, of selected recent
business combinations of companies in the data communications industry that
Montgomery deemed to be comparable, in whole or in part, to the Merger; (vi)
reviewed and discussed with representatives of the management of CrossComm and
Olicom certain information of a business and financial nature regarding
CrossComm and Olicom, including financial forecasts and related assumptions of
CrossComm provided to Montgomery by management of CrossComm and of Olicom
obtained by Montgomery from third-party research analysts; and (vii) performed
such other analyses and examinations as Montgomery deemed appropriate.
In preparing its opinion, Montgomery assumed and relied upon the
accuracy and completeness of all financial and other information reviewed by it
for purposes of its opinion and did not assume responsibility for independent
verification of any of such information. With respect to the financial
forecasts for CrossComm provided to Montgomery by CrossComm's management,
Montgomery assumed for purposes of its opinion that the forecasts were
reasonably prepared on bases reflecting the best available estimates and
judgment of CrossComm's management at the time of preparation as to the future
financial performance of CrossComm and that the forecasts provided a reasonable
basis upon which Montgomery could form its opinion. With respect to the
financial forecasts for Olicom obtained by Montgomery from third-party research
analysts, upon the advice of Olicom's management and with CrossComm's consent,
Montgomery assumed that they provide a reasonable basis upon which Montgomery
could form its opinion. Montgomery also assumed that there were no material
changes in CrossComm's or Olicom's assets, financial condition, results of
operations, business or prospects since the date of the last financial
statements made available to Montgomery. Montgomery relied on advice of
counsel and independent accountants to CrossComm as to all legal and financial
reporting matters with respect to CrossComm, the Merger, and the Merger
Agreement, including the legal status and financial reporting of litigation
involving CrossComm. Montgomery has assumed that the Merger will be
consummated in a manner that complies in
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all respects with the applicable provisions of the Securities Act, the Exchange
Act, and all other applicable federal and state statutes, rules and
regulations. In addition, Montgomery did not make an independent evaluation,
appraisal or physical inspection of the assets or liabilities (contingent or
otherwise) of CrossComm or Olicom, nor has Montgomery been furnished with any
such appraisals. Management of CrossComm informed Montgomery, and Montgomery
has assumed, that the Merger will be recorded as a purchase under generally
accepted accounting principles. Further, Montgomery's opinion was based on
economic, monetary and market conditions existing as of March 19, 1997 and on
the assumption that the Merger Agreement will be consummated in accordance with
the terms thereof, without any amendments thereto, and without waiver by
CrossComm of any of the conditions to its obligations thereunder. Accordingly,
although subsequent developments may affect Montgomery's opinion, Montgomery
has not assumed any obligation to update, revise or reaffirm its opinion.
Montgomery further assumed, with CrossComm's consent, that the Merger will be
consummated in accordance with the terms described in the form of Merger
Agreement provided to it, without any amendments thereto, and without waiver by
CrossComm or Olicom of any of the conditions to their respective obligations
thereunder.
Set forth below is a brief summary of selected analyses presented by
Montgomery to the CrossComm Board on March 19, 1997, in connection with its
opinion.
Summary of Proposal. Montgomery reviewed the terms of the proposed
transaction, including the Exchange Ratio, the cash consideration, the right to
purchase Warrants, and the aggregate transaction value. Montgomery reviewed
the implied value of the consideration offered based upon the average of the
high and low share prices of Olicom's common stock for the ten trading days
prior to March 19, 1997. This analysis showed that the implied value of the
Olicom merger proposal as of March 19, 1997 was approximately $10.00 per share
of CrossComm common stock, for a total of approximately $99.0 million.
Montgomery also reviewed with the Board indications of interest expressed by
companies other than Olicom regarding possible business combinations with
CrossComm.
Selected Comparable Merger Analysis. Montgomery reviewed with the
CrossComm Board certain publicly available financial information for selected
mergers and acquisitions of data communications companies.
Montgomery reviewed the acquisition prices paid in other acquisition
transactions involving data communications companies based upon a multiple of
equity value (determined by multiplying the number of shares outstanding by the
market value per share on the respective closing dates for each transaction) to
LTM revenue (reported aggregate revenue during prior four quarters) and a
multiple of equity value to LTM net income (reported aggregate net income
during prior four quarters) for the following transactions involving data
communications companies (to the extent information was available): Newbridge
Networks/UB Networks, Northern Telecom/MICOM Communications, Whittaker/Xyplex,
Raytheon/Xyplex, Storage Tek/Network Systems, Network Systems Corp./Bytex Corp.
and DCA Holdings Inc./Digital Communications Associates. This analysis yielded
a relevant range of multiples for equity value
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to LTM revenues of 1.0 to 1.2. The comparable multiples for the acquisition of
CrossComm by Olicom, based on CrossComm's' LTM revenues, imply aggregate values
ranging from approximately $89.0 million to $98.0 million. Montgomery
determined that comparable multiples for CrossComm's LTM net income were not
meaningful as CrossComm's LTM net income was negative for such time period.
Montgomery also examined the acquisition premiums paid in over fifty
acquisitions of publicly-traded technology companies. The transactions
reviewed for this analysis included fourteen acquisitions in the data
communications industry completed since September 1993. Montgomery compared,
among other things, the premiums represented by the consideration paid in these
fourteen transactions as a percentage of the market price for the target
company's stock at one, seven and thirty days prior to announcement of the
transaction. In the time period 30 days prior to the date of the CrossComm
Board meeting at which the Merger was approved, this analysis yielded premiums
of (1.3%) to 76.4%, with an average of 30.0%. The comparable premium for the
acquisition of CrossComm by Olicom is 23% based upon the average stock price
thirty days prior to announcement. Montgomery also calculated the average
stock price of CrossComm common stock for the period beginning November 26,
1996 through January 13, 1997 at $5.50. Using this median stabilized stock
price, Montgomery informed the Board that the calculation would yield an 82%
premium. In comparable transactions accounted for as pooling transactions,
the average premium was 29% over the thirty day time period and, in comparable
transactions accounted for as purchases, the average premium was 34% over the
thirty day time period.
No company or transaction used in the above analyses as a comparison is
identical to CrossComm, Olicom or the Merger. Accordingly, an analysis of the
results of the foregoing is not mathematical. Rather, it involves complex
considerations and judgments concerning differences in financial and operating
characteristics of the companies and transactions, and other factors that could
affect the public trading value of the companies and transactions with which
CrossComm, Olicom and the Merger are being compared.
Comparable Public Company Analysis. Using public and other available
information, Montgomery reviewed various historical and projected financial,
operating and stock market data of CrossComm in comparison to certain publicly-
traded technology companies that it considered relevant for purposes of this
analysis. Included among these comparable companies are the following data
communications companies: Gandalf Technologies Inc., Osicom Technologies, Inc.,
Madge Networks, N.V., Olicom A/S, Proteon, Inc., and Whittaker Corporation.
Montgomery compared, among other things, the valuation of the
consideration to be paid in the Merger for CrossComm to the median valuation of
the comparable companies using an adjusted market value analysis calculated as
follows: adjusted market value was determined by subtracting cash and cash
equivalents from the comparable company's equity value. Montgomery determined
that the public companies valued under this method had a relevant range of
multiples over LTM revenue ranging from 0.8 to 1.1. Based on the analysis of
publicly traded comparable companies, Montgomery determined that CrossComm's
implied
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market value ranged from approximately $84.0 million to approximately $98.0
million, or $8.00 to $10.00 per share of CrossComm common stock.
Discounted Cash Flow Analysis. In performing its analyses of
CrossComm, Montgomery also relied upon a discounted cash flow analysis. In
such an analysis, Montgomery estimated a range of equity valuations for
CrossComm based upon an analysis of financial forecasts through CrossComm's
fiscal year ending December 31, 2001 that Montgomery developed after
discussions with management of CrossComm.
To arrive at an equity valuation of CrossComm, Montgomery discounted
the after-tax cash flows that resulted from the aforementioned financial
forecasts. The after-tax cash flows were discounted using discount rates
ranging from 25% to 35%, based upon a variety of factors including, among other
things, the size of the business, history of profitability, market growth,
market dynamics, and the cost of equity for other comparable data
communications companies. The range of discount rates also reflects the risk
assumptions applied by Montgomery to the financial forecasts. Montgomery added
to the present value of the cash flows the terminal value of CrossComm as of
December 31, 2001, discounted back at the same discount rates. The terminal
value was computed by multiplying CrossComm's projected revenue in the year
2001 by a revenue multiple of 1.1 (the average of comparable transactions in
public comparable company analysis). Based on such assumptions, Montgomery's
discounted cash flow analyses indicated a range of aggregate values for
CrossComm from $71 million to $83 million.
Contribution Analysis. CrossComm stockholders will receive
approximately 20% of the total shares outstanding of the combined companies
after the Merger is completed. To compare this ownership percentage to the
relative contribution made to the combined companies, Montgomery analyzed the
contribution of each of CrossComm and Olicom to certain statement of operations
items for the combined companies on a pro forma basis. Montgomery analyzed the
statement of operations contribution of each of CrossComm and Olicom to the
combined companies on a pro forma basis for the year ending December 31, 1996,
using financial forecasts of CrossComm and Olicom provided by management of
CrossComm with respect to CrossComm and third party research analysts with
respect to Olicom. This analysis showed, among other things, that assuming no
revenue enhancement or cost savings arising from the combination of the two
companies, CrossComm would contribute 19% of the combined companies' 1997
forecasted total revenues and 8% of the combined companies' 1997 forecasted
operating income. Based on such analysis, Montgomery concluded that,
notwithstanding the premium to be received by CrossComm's stockholders, the
Merger would be non-dilutive to the combined companies' 1997 forecasted
operating income, which representatives of Olicom had indicated would be an
important factor in determining whether to proceed with the transaction.
The summary set forth above does not purport to be a complete
description of all analyses and examinations actually performed by Montgomery
or a complete description of the presentation made by Montgomery to the
CrossComm Board. The preparation of a fairness opinion necessarily is not
susceptible to partial analysis or summary description. Montgomery believes
that such analyses and the summary set forth above must be considered as a
whole and
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that selecting portions of its analyses and of the factors considered, without
considering all such analyses and factors, would create an incomplete view of
the analyses set forth in its presentation to the CrossComm Board. In
addition, Montgomery may have given various analyses more or less weight than
other analyses, and may have deemed various assumptions more or less probable
than other assumptions, so that valuations resulting from any particular
analysis should not be taken to be Montgomery's view of the actual value of
CrossComm or the combined companies.
In performing its analyses, Montgomery made numerous assumptions with
respect to industry performance, general business and economic conditions and
other matters, many of which are beyond the control of CrossComm or Olicom.
The analyses performed by Montgomery are not necessarily indicative of actual
values or actual future results, which may be significantly more or less
favorable than suggested by such analyses. Such analyses were prepared solely
as part of Montgomery' analysis of the fairness of the Merger to CrossComm and
were provided to the CrossComm Board in connection with the delivery of
Montgomery's opinion. The analyses do not purport to be appraisals or to
reflect the prices at which a company might actually be sold or the prices at
which any securities may trade at the present time or at any time in the
future. Montgomery used in its analyses various projections of future
performance prepared by the management of CrossComm and third-party research
analysts. The projections are based on numerous variables and assumptions
which are inherently unpredictable and must be considered not certain of
occurrence as projected. Accordingly, actual results could vary significantly
from those set forth in such projections.
As described above, Montgomery's opinion and presentation to the
CrossComm Board were among the many factors taken into consideration by the
CrossComm Board in making its determination to approve, and to recommend that
its stockholders approve, the Merger.
Pursuant to the Engagement Letter, CrossComm is obligated to pay
Montgomery (i) a retainer fee of $50,000, and (ii) an additional fee of
$100,000 following the delivery of its opinion, both of which will be credited
against any fee payable to Montgomery upon consummation of the Merger. Upon
consummation of the Merger, CrossComm will become obligated to pay Montgomery a
fee of $400,000 plus an amount equal to 3.5% of the excess of the total merger
consideration over the value of CrossComm's cash and cash equivalents at the
time of the Merger. CrossComm's cash and cash equivalents were $43,740,510 at
December 31, 1996. CrossComm has also agreed to reimburse Montgomery for its
reasonable out-of- pocket expenses. Pursuant to a separate letter agreement,
CrossComm has agreed to indemnify Montgomery, its affiliates, and their
respective partners, directors, officers, agents, consultants, employees and
controlling persons against certain liabilities, including liabilities under
the federal securities laws.
In the ordinary course of its business, Montgomery trades securities of
CrossComm and Olicom for the accounts of customers and, accordingly, may at any
time hold a long or short position in such securities. Certain partners of
Montgomery may also own shares of CrossComm Common Stock and Olicom Common
Stock.
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OPERATIONS FOLLOWING THE MERGER
Following the Merger, CrossComm will continue its operations as a
wholly-owned subsidiary of Olicom. Upon consummation of the Merger, the
members of CrossComm's Board of Directors will be Jan Bech, Lars Stig Nielsen,
Michael Camp and Boje Rinhart. The membership of the Olicom Board will remain
unchanged as a result of the Merger, except that Olicom has agreed to nominate
Tadeusz Witkowicz to its Board of Directors and use its best efforts to secure
his election thereto. The stockholders of CrossComm will become stockholders
of Olicom, and their rights as stockholders will be governed by the Olicom
Articles and the Companies Act. See "Comparison of Stockholder Rights Under
the Laws of Denmark and Delaware."
REGULATORY MATTERS
Under the HSR Act, and the rules promulgated thereunder by the FTC, the
Merger may not be consummated until notifications have been given and certain
information has been furnished to the FTC and the Antitrust Division and
specified waiting period requirements have been satisfied. Each of Olicom and
CrossComm have filed a Notification and Report Form required under the HSR Act
with the FTC and the Antitrust Division, together with a request for early
termination of the applicable 30-day waiting period. At any time before or
after consummation of the Merger, the FTC, the Antitrust Division, the state
attorneys general or others could take action under the antitrust laws with
respect to the Merger, including seeking to enjoin the consummation of the
Merger or seeking divestiture of substantial assets of Olicom or CrossComm.
Based on information available to them, Olicom and CrossComm believe
that the Merger can be effected in compliance with federal and state antitrust
laws. However, there can be no assurance that a challenge to the consummation
of the Merger on antitrust grounds will not be made or that, if such a
challenge were made, Olicom and CrossComm would prevail or would not be
required to accept certain conditions, possibly including certain divestitures
or hold-separate arrangements, in order to consummate the Merger.
ANTICIPATED ACCOUNTING TREATMENT
Olicom intends to use purchase accounting with respect to the Merger
for both Denmark and United States financial accounting purposes. Accordingly,
the aggregate fair value of the consideration paid by Olicom in connection with
the Merger will be allocated to CrossComm's assets based on their fair values
as of the Effective Time, and the results of operations of CrossComm will be
included in Olicom's consolidated results of operations only for periods
subsequent to the Effective Time. Consummation of the Merger Agreement is not
subject to the availability or use of a specific method of accounting.
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RESALES OF OLICOM COMMON STOCK; AFFILIATES AGREEMENTS
The Olicom Common Stock issued pursuant to the Merger or purchased on
exercise of Warrants will not be subject to any restrictions on transfer
arising under the Securities Act, except for shares issued to any CrossComm
stockholder who may be deemed to be an "affiliate" of CrossComm or Olicom for
purposes of Rule 145 under the Securities Act. It is expected that the
directors and officers of CrossComm (including Mr. Witkowicz, a director,
officer and 10% stockholder of CrossComm) will enter into an agreement with
Olicom providing that such affiliate will not transfer any Olicom Common Stock
received in the Merger except in compliance with the Securities Act. This
Joint Proxy Statement/Prospectus does not cover resales of Olicom Common Stock
received by any person who may be deemed to be such an affiliate of CrossComm.
APPRAISAL RIGHTS
Holders of CrossComm Common Stock are entitled to appraisal rights
under Section 262 of the DGCL ("Section 262"), the text of which is attached as
Appendix D hereto. The description of appraisal rights contained in this Joint
Proxy Statement/Prospectus is qualified in its entirety by reference to Section
262.
If the Merger is completed, holders of CrossComm Common Stock who
object to the Merger and who have fully complied with the provisions of Section
262 may have the right to require the Surviving Corporation to pay them the
appraised value of their CrossComm Common Stock. Shares of CrossComm Common
Stock which are outstanding immediately prior to the Effective Time and which
are held by CrossComm stockholders who (a) have not voted such CrossComm Common
Stock in favor of the Merger, and (b) have delivered to CrossComm a written
demand for appraisal of such CrossComm Common Stock prior to the CrossComm
Meeting for consideration of the Merger, in the manner provided in Section 262
(the "Dissenting Shares"), and (c) have continuously held such CrossComm Common
Stock from the date of the written demand for appraisal through the Effective
Time, will not be exchanged into or represent the right to receive the Merger
Consideration, but instead the holders thereof will be entitled to payment of
the appraised value of such Dissenting Shares in accordance with Section 262.
If, however, any holder of Dissenting Shares (i) subsequently delivers a
written withdrawal of such holder's demand for appraisal of such Dissenting
Shares within 60 days after the Effective Time (or thereafter, with the written
approval of the Surviving Corporation), or (ii) if any holder fails to
establish such holders' entitlement to appraisal rights as provided in such
Section 262, or (iii) if neither any holder of Dissenting Shares nor the
Surviving Corporation files a petition with the Delaware Court of Chancery
demanding a determination of the value of all Dissenting Shares within the time
provided in Section 262, such holder or holders will forfeit the right to
appraisal of such Dissenting Shares, and such Dissenting Shares may thereupon
be deemed to have been converted into the right to receive, and to have become
exchangeable for, as of the Effective Time, the Merger Consideration. If no
instructions are indicated on proxies received by CrossComm, such proxies will
be voted for the proposal to approve and adopt the Merger Agreement at the
CrossComm Meeting. Those CrossComm stockholders who return their proxies
without instructions, resulting in a vote for the approval and adoption of the
Merger Agreement, will therefore not be entitled to appraisal rights.
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FAILURE TO TAKE ANY NECESSARY STEPS WILL RESULT IN A TERMINATION OR
WAIVER OF THE RIGHTS OF THE HOLDER UNDER SECTION 262. A PERSON HAVING A
BENEFICIAL INTEREST IN CROSSCOMM COMMON STOCK THAT IS HELD OF RECORD IN THE
NAME OF ANOTHER PERSON, SUCH AS A TRUSTEE OR NOMINEE, MUST ACT PROMPTLY TO
CAUSE THE RECORD HOLDER TO FOLLOW THE REQUIREMENTS OF SECTION 262 IN A TIMELY
MANNER IF SUCH PERSON ELECTS TO DEMAND APPRAISAL OF SUCH SHARES.
Any holder of record of CrossComm Common Stock electing to demand the
appraisal of such shares of CrossComm Common Stock under Section 262 must (i)
deliver to CrossComm, prior to the CrossComm Meeting, a written demand for
appraisal of such shares and (ii) not vote in favor of adoption of the Merger
Agreement. A holder of record of CrossComm Common Stock electing to take such
action must do so by a separate written demand that reasonably informs
CrossComm of such holder's identity and of such holder's intention thereby to
demand the appraisal of such holder's shares of CrossComm Common Stock. A
proxy or vote against adoption of the Merger Agreement does not constitute such
a demand.
Only the holder of record of CrossComm Common Stock is entitled to
assert appraisal rights for the CrossComm Common Stock registered in that
holder's name. The demand should be executed by or for the holder of record,
fully and correctly, as the holder's name appears on the holder's stock
certificates. If the CrossComm Common Stock is owned of record in a fiduciary
capacity (such as by a trustee, guardian or custodian) execution of the demand
should be made in that capacity, and if the CrossComm Common Stock is owned of
record by more than one person (as in a joint tenancy or tenancy in common) the
demand should be executed by or for all owners. An authorized agent, including
one of two or more joint owners, may execute the demand for appraisal for a
holder of record; however, the agent must identify the record owner or owners
and expressly disclose the fact that, in executing the demand, the agent is
acting as agent for the record owner or owners. A record holder, such as a
broker, who holds CrossComm Common Stock as nominee for the beneficial owners
may exercise the holder's right of appraisal with respect to the CrossComm
Common Stock held for all or less than all of such beneficial owners. In such
case, the written demand should set forth the number of shares of CrossComm
Common Stock covered by the written demand. Where no number of shares of
CrossComm Common Stock is expressly mentioned, the demand will be presumed to
cover all shares of CrossComm Common Stock standing in the name of the record
owner.
Within ten days after the Effective Time, the Surviving Corporation is
required to send notice as to the effectiveness of the Merger to each person
who has satisfied the foregoing conditions.
Within 120 days after the Effective Time, the Surviving Corporation or
any holder of CrossComm Common Stock who has satisfied the foregoing conditions
and is otherwise entitled to appraisal rights under Section 262 may file a
petition in the Delaware Court of Chancery demanding a determination of the
value of the stock of all such holders. Holders of CrossComm Common Stock
seeking to exercise appraisal rights should not assume that Olicom or the
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Surviving Corporation will file a petition with respect to the appraisal of the
value of their Dissenting Shares or that Olicom or the Surviving Corporation
will initiate any negotiations with respect to the "fair value" of such
Dissenting Shares. Accordingly, holders of CrossComm Common Stock seeking to
assert appraisal rights should regard it as their obligation to initiate all
necessary action with respect to the perfection of their appraisal rights
within the time periods prescribed in Section 262.
Within 120 days after the Effective Time, any holder of CrossComm
Common Stock who has complied with the requirements for exercise of appraisal
rights, as discussed above, is entitled, upon written request, to receive from
the Surviving Corporation a statement setting forth the aggregate number of
shares of CrossComm Common Stock not voted in favor of the Merger and with
respect to which demands for appraisal have been received and the aggregate
number of holders of such CrossComm Common Stock. The Surviving Corporation is
required to mail such statement within ten days after it receives a written
request therefor or within ten days after expiration of the period for delivery
of demands for appraisal, whichever is later.
If a petition for an appraisal is timely filed, after a hearing on such
petition, the Delaware Court of Chancery will determine which holders of
CrossComm Common Stock are entitled to appraisal rights and will appraise the
Dissenting Shares owned by such holders, determining their "fair value"
exclusive of any element of value arising from the accomplishment or
expectation of the Merger, together with a fair rate of interest, if any, to be
paid upon the amount determined to be the "fair value." Any such judicial
determination of the "fair value" of the Dissenting Shares could be based upon
considerations other than or in addition to the price paid in the Merger and
the market value of the Dissenting Shares, including, without limitation, asset
values, the investment value of the shares of CrossComm Common Stock and any
other valuation considerations generally accepted in the investment community,
including, without limitation, if appropriate, factors such as dividends,
earnings prospects, the nature of the enterprise and any other facts which
would be ascertained as of the date of the Merger which throw any light on
future prospects of the surviving corporation. The value so determined for
Dissenting Shares could be more or less than the Merger Consideration to be
paid pursuant to the Merger. The costs of the appraisal proceeding may be
determined by the Delaware Court of Chancery and taxed upon the parties as the
Delaware Court of Chancery deems equitable in the circumstances. Upon
application of a holder of CrossComm Common Stock, the Delaware Court of
Chancery may order all or a portion of the expenses incurred by any such holder
in connection with the appraisal proceeding, including, without limitation,
reasonable attorney's fees and the fees and expenses of experts, to be charged
pro rata against the value of the shares entitled to an appraisal.
Any holder of CrossComm Common Stock who has duly demanded an appraisal
in compliance with Section 262 will not, after the Effective Time, be entitled
to vote the Dissenting Shares subject to such demand for any purpose or be
entitled to the payment of dividends or other distributions on those Dissenting
Shares (other than those payable or deemed to be payable to CrossComm
stockholders of record as of a date prior to the Effective Time).
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A holder of CrossComm Common Stock will fail to perfect, or effectively
lose, such holder's right to appraisal if no petition for appraisal is filed
with the Delaware Court of Chancery within 120 days after the Effective Time,
or if after the Effective Time such holder delivers to the Surviving
Corporation a written withdrawal of such holder's demand for an appraisal and
an acceptance of the Merger, except that any such attempt to withdraw made more
than 60 days after the Effective Time will require the written approval of the
Surviving Corporation.
In the event that an appraisal proceeding is instituted in a timely
manner, such proceeding may not be dismissed as to any holder of CrossComm
Common Stock who has perfected such stockholder's right of appraisal without
the approval of the Delaware Court of Chancery.
Any demands, notices, certificates or other documents to be delivered
to CrossComm prior to the Merger may be sent to: CrossComm Corporation,
attention Chief Financial Officer, 450 Donald Lynch Boulevard, Marlborough,
Massachusetts 01752-4720.
THE AGREEMENT AND PLAN OF REORGANIZATION
THE MERGER
Pursuant to the Merger Agreement, a newly-formed, wholly-owned
subsidiary of Olicom will be merged with and into CrossComm, with CrossComm to
be the surviving corporation of the Merger and thus to become a wholly-owned
subsidiary of Olicom. The discussion in this Joint Proxy Statement/Prospectus
of the Merger and the description of the principal terms and conditions of the
Merger Agreement are subject to and qualified in their entirety by reference to
the Merger Agreement, a copy of which is attached to this Joint Proxy
Statement/Prospectus as Appendix A and is incorporated herein by reference.
You are urged to read the Merger Agreement in its entirety.
EXCHANGE OF SHARES
At the Effective Time, each share of CrossComm Common Stock will be
exchanged for $5.00 in cash, 0.2667 shares of Olicom Common Stock, subject to
adjustment, and a Warrant to purchase 0.1075 shares of Olicom Common Stock at
an exercise price of $19.74 per whole share. No fractional shares of Olicom
Common Stock and no Warrants to purchase fractional shares will be issued in
the Merger. Instead, each CrossComm stockholder who would otherwise be
entitled to receive a fraction of a share of Olicom Common Stock will receive
an amount of cash equal to the Final Closing Price multiplied by the fraction
of a share of Olicom Common Stock to which the stockholder would otherwise be
entitled. Further, each CrossComm stockholder who would otherwise be entitled
to receive a Warrant to purchase a fractional share of Olicom Common Stock will
receive an amount of cash equal to the value of a Warrant (determined in the
manner described herein) multiplied by the fraction of a Warrant to which the
stockholder would otherwise be entitled. The value of a Warrant (the "Warrant
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Unit Consideration") will be calculated using the Black-Scholes Formula using a
volatility equal to the 52-week historical weekly volatility of Olicom Common
Stock and a risk-free rate of interest equal to the yield to maturity for a
United States Treasury Note with a three-year maturity, as reported by
Bloomberg on its historical yield curve page, and will be determined by and
agreed upon by each of the financial advisors to Olicom and CrossComm prior to
the Closing, which agreement may not be unreasonably withheld. On this basis,
a holder of 100 shares of CrossComm Common Stock would receive $500 in cash, 26
shares of Olicom Common Stock (together with cash in lieu of a 0.67 share of
Olicom Common Stock), and a Warrant to purchase 10 shares of Olicom Common
Stock (and cash in lieu of a Warrant to purchase 0.75 shares of Olicom Common
Stock).
ASSUMPTION OF OPTIONS
At the Effective Time, each outstanding CrossComm Option, whether
vested or unvested, will be assumed by Olicom. Each such CrossComm Option so
assumed by Olicom under the Merger Agreement will continue to have, and be
subject to, the same terms and conditions set forth in the CrossComm Option
Plans and the documents governing the outstanding options under those plans,
immediately prior to the Effective Time, except that (i) such option will be
exercisable for the number of whole shares of Olicom Common Stock equal to the
product of the number of shares of CrossComm Common Stock that were issuable
upon exercise of such option immediately prior to the Effective Time multiplied
by the Option Exchange Ratio (as defined below) and rounded down to the nearest
whole number of shares of Olicom Common Stock, and (ii) the per share exercise
price for the shares of Olicom Common Stock issuable upon exercise of such
assumed option will be equal to the quotient determined by dividing the
exercise price per share of CrossComm Common Stock at which such option was
exercisable immediately prior to the Effective Time by the Option Exchange
Ratio, rounded up to the nearest whole cent. As used in the Merger Agreement,
the "Option Exchange Ratio" equals (1) the sum of (x) $5.00, plus (y) the
Warrant Exchange Ratio multiplied by the Warrant Unit Consideration plus (z)
the Exchange Ratio, multiplied by the Final Closing Price, which result will be
divided by (2) the Final Closing Price. The other terms of the CrossComm
Options, including vesting schedules, will remain unchanged. Olicom will file
a registration statement on Form S-8 with the Commission with respect to the
shares of Olicom Common Stock issuable upon exercise of the assumed CrossComm
Options.
As of the Record Date, ___________ shares of CrossComm Common Stock
were subject to outstanding CrossComm Options. Upon the assumption of such
options by Olicom on consummation of the Merger, and based on an assumed
Option Exchange Ratio of $________ (which is the average high and low sales
prices for Olicom Common Stock for the ten trading days immediately preceding,
but excluding, the Record Date), approximately _____________ shares of Olicom
Common Stock will be subject to such options. See the discussion set forth in
the immediately preceding paragraph for a description of the manner in which
the Option Exchange Ratio will actually be determined.
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CROSSCOMM EMPLOYEE STOCK PURCHASE PLAN
If it is determined on or before June 20, 1997, that the Effective Time
will occur before July 1, 1997, the CrossComm Board will give notice to the
holders of all outstanding purchase rights under the CrossComm ESPP that all
outstanding options thereunder will be cancelled as of the Effective Date.
However, prior to the Effective Date, each holder of a purchase right under the
CrossComm ESPP will have the right to exercise such option in full based on
payroll deductions then credited to his or her account as of a date determined
by the CrossComm Board, which date may not be less than ten days preceding the
Effective Time whereupon, each such outstanding purchase right shall be deemed
to be exercised as described in such clause. The CrossComm ESPP, and all
outstanding purchase rights thereunder, will terminate with such exercise date,
and no purchase rights will be subsequently granted or exercised under the
CrossComm ESPP. If it is determined on or before June 20, 1997, that the
Effective Time will occur on or after July 1, 1997, CrossComm will take such
actions as are necessary to cause the Offering (as defined in the CrossComm
ESPP) scheduled to commence on July 1, 1997, to be postponed until the earlier
of such time as is determined by the Surviving Corporation or the termination
of the Merger Agreement.
EXCHANGE OF CERTIFICATES
Promptly after the Effective Time, a letter of transmittal with
instructions will be mailed to each CrossComm stockholder for use in exchanging
CrossComm Common Stock certificates for Olicom Common Stock certificates and
Warrant certificates, and the cash portion of the Merger Consideration
(together with cash in lieu of fractional shares of Olicom Common Stock and
Warrants to purchase fractional shares). Upon surrender of a CrossComm Common
Stock certificate for cancellation to American Stock Transfer & Trust Company,
or to such other agent or agents as may be appointed by Olicom, together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, the holder of such certificate shall be entitled
to receive in exchange therefor certificates evidencing the number of whole
shares of Olicom Common Stock, the number of whole Warrants, the cash portion
of the Merger Consideration, and payment in lieu of fractional shares of Olicom
Common Stock and Warrants to purchase fractional shares which such holder has
the right to receive in exchange for his or her shares of CrossComm Common
Stock.
Immediately after the Effective Time, each outstanding certificate for
shares of CrossComm Common Stock will be deemed for all corporate purposes,
other than the payment of dividends, to evidence the number of whole shares of
Olicom Common Stock, the number of whole Warrants, and the cash portion of the
Merger Consideration for which such shares of CrossComm Common Stock shall have
been so exchanged, together with the right to receive an amount in cash in lieu
of the issuance of any fractional shares of Olicom Common Stock or Warrants to
purchase fractional shares. No interest will be paid or accrued on any amount
payable or due on the surrender of CrossComm Common Stock certificates. No
dividends or other distributions with respect to Olicom Common Stock with a
record date after the Effective Time will be paid to the holder of any
unsurrendered CrossComm Common Stock certificate until the holder of record of
such certificate surrenders such certificate. Subject to applicable law,
following surrender of any such certificate, there shall be paid to the record
holder of the
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certificates representing whole shares of Olicom Common Stock issued in
exchange therefor, without interest, at the time of such surrender, the amount
of any such dividends or other distributions with a record date after the
Effective Time theretofore payable with respect to such shares of Olicom Common
Stock.
If any certificate for shares of Olicom Common Stock or any certificate
evidencing Warrants is to be issued in a name other than that in which the
CrossComm Common Stock certificate originally surrendered with respect thereto
is registered, it will be a condition of the issuance thereof that the
CrossComm Common Stock certificate so surrendered be properly endorsed and
otherwise be in proper form for transfer, and that the person requesting such
exchange shall have paid to Olicom or any agent designated by it any transfer
or other taxes required by reason of the issuance of a certificate for shares
of Olicom Common Stock or Warrants in any name other than that of the
registered holder of the CrossComm Common Stock certificate originally
surrendered, or shall have established to the satisfaction of Olicom or any
agent designated by it that such tax has been paid or is not payable.
HOLDERS OF CROSSCOMM COMMON STOCK CERTIFICATES SHOULD NOT SUBMIT THEIR
CERTIFICATES FOR EXCHANGE UNTIL THEY HAVE RECEIVED THE LETTER OF TRANSMITTAL
AND INSTRUCTIONS REFERRED TO ABOVE.
NOTIFICATION REGARDING OPTIONS
Following the Effective Time, Olicom will issue to each person who,
immediately prior thereto, was a holder of an outstanding CrossComm Option, a
document evidencing the assumption of such option by Olicom. Such assumption
will be automatic and no action will be required on the part of the option
holder to convert such holder's CrossComm option into an option to purchase
shares of Olicom Common Stock.
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Merger Agreement contains various representations and warranties of
the parties, including representations by Olicom, CrossComm and MergerSub as to
their organization and capitalization, their authority to enter into the Merger
Agreement and to consummate the transactions contemplated thereby, the
existence of certain liabilities and the absence of certain material
undisclosed liabilities and material changes in their businesses. Such
representations and warranties will not survive consummation of the Merger.
Under the terms of the Merger Agreement, during the period from the
date of the Merger Agreement and continuing until the earlier of the
termination of the Merger Agreement or the Effective Time, each of CrossComm
and Olicom has agreed (except to the extent expressly contemplated by the
Merger Agreement or as consented to in writing by the other), to carry on its
and its subsidiaries' business in the usual, regular and ordinary course in
substantially the same manner as theretofore conducted, to pay and to cause its
subsidiaries to pay debts and taxes when due (subject to good faith disputes
over such debts or taxes), to pay or perform other
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obligations when due, and to use all reasonable efforts (under the
circumstances) to preserve intact its and its subsidiaries' present business
organizations, use its reasonable efforts to keep available the services of its
and its subsidiaries' present officers and key employees and use its reasonable
efforts consistent with past practice to preserve its and its subsidiaries'
relationships with customers, suppliers, distributors, licensors, licensees and
others having business dealings with it or its subsidiaries, to the end that
its and its subsidiaries' goodwill and ongoing businesses will be unimpaired at
the Effective Time. Each of CrossComm and Olicom agreed to promptly notify the
other of any event or occurrence which would have a material adverse effect on
it and its subsidiaries. Each of CrossComm and Olicom agreed that it will not,
among other things, do, cause or permit any of the following, or allow, cause
or permit any of its subsidiaries to do, cause or permit any of the following,
without the prior written consent of the other and except as expressly
contemplated by the Merger Agreement: (i) cause or permit any amendments to
the CrossComm Certificate or CrossComm's Bylaws (in the case of CrossComm), the
Olicom Articles or Olicom's Rules of Procedure, except as may be required to
increase the share capital of Olicom (in the case of Olicom), or equivalent
charter or organizational documents of any subsidiary; (ii) declare or pay any
dividends on or make any other distributions (whether in cash, stock or
property) in respect of any capital stock, or split, combine or reclassify any
capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of capital stock, or
repurchase or otherwise acquire, directly or indirectly, any shares of capital
stock except from former employees, directors and consultants in accordance
with agreements providing for the repurchase of shares in connection with any
termination of service to it or its subsidiaries; or (iii) take, or agree in
writing or otherwise to take, any of the actions described in (i) and (ii)
above, or any action which would make any of its representations or warranties
contained in the Merger Agreement to be untrue or incorrect or prevent it from
performing or cause it not to perform its covenants thereunder.
NO SOLICITATION OF TRANSACTIONS
CrossComm has further agreed that it and its subsidiaries, together
with the officers, directors, employees or other agents of CrossComm and its
subsidiaries, (i) will not, directly or indirectly, take any action to solicit,
initiate or encourage any inquiries or proposals that constitute, or which
could reasonably be expected to lead to, an Acquisition Proposal (as defined
below), (ii) will not, directly or indirectly, subject to the terms of the
immediately following paragraph, engage in negotiations or discussions with, or
disclose any nonpublic information relating to CrossComm or any of it
subsidiaries to, or afford access to the properties, books or records of
CrossComm or any of its subsidiaries to, any person with regard to an
Acquisition Proposal, and (iii) will immediately terminate any existing
activities, discussions or negotiations with any person, firm or entity
conducted prior to the date of the Merger Agreement with respect to any of the
foregoing and inform any such person, firm or entity of the obligations
undertaken by CrossComm in the Merger Agreement with respect to the foregoing;
provided, however, that the foregoing will not prohibit the CrossComm Board
from taking and disclosing to CrossComm's stockholders a position with respect
to a tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the
Exchange Act.
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Notwithstanding the foregoing, if (i) an unsolicited bona fide written
Acquisition Proposal, or an unsolicited bona fide expression of interest that
CrossComm reasonably expects could lead to a Acquisition Proposal, is received
by the CrossComm Board, (ii) the CrossComm Board believes in good faith that
such Acquisition Proposal would, if consummated, result in a Superior Proposal,
(iii) the CrossComm Board determines in good faith that it is necessary for the
CrossComm Board to comply with its fiduciary duties to CrossComm's stockholders
under applicable law by considering the Superior Proposal and taking actions
consistent with the process described herein with respect thereto, and (iv)
that the party making such Superior Proposal has the financial means, or the
ability to obtain the necessary financing, to consummate such transaction (with
the understanding that the foregoing does not prohibit CrossComm from engaging
in discussions with such party for the limited purpose of determining that such
party has the financial means, or ability to obtain the necessary financing, to
consummate such transaction), then CrossComm and its subsidiaries, together
with their respective officers, directors, employees, investment bankers,
financial advisors, attorneys, accountants and other representatives, may
(consistent with the foregoing) furnish in connection therewith information,
enter into discussions and negotiations, recommend such Superior Proposal to
CrossComm's stockholders and take such other actions as are consistent with the
fiduciary obligations of the CrossComm Board, and such actions will not be
considered a breach of the Merger Agreement. In each such event, CrossComm is
required to notify Olicom of such determination by the CrossComm Board and
provide Olicom with a written summary in reasonable detail of the Superior
Proposal (including, without limitation, the identity of the offeror and the
terms thereof) received from such third party, together with a copy of all
documents containing or referring to non-public information of CrossComm that
are supplied to such third party and that were not previously supplied to
Olicom. In addition, in order for the foregoing actions not to be considered a
breach of the Merger Agreement (x) CrossComm cannot provide any material
non-public information to any such third party if it has not prior to the date
thereof provided such information to Olicom or Olicom's representatives, and
(y) CrossComm must provide such non-public information pursuant to a binding
non-disclosure agreement with terms no less favorable as to confidential
information as the confidentiality agreement between Olicom and CrossComm
entered into in contemplation of the Merger.
Further, CrossComm has agreed that it will not permit the CrossComm
Board to adopt any Acquisition Proposal unless CrossComm has terminated the
Merger Agreement and paid Olicom all amounts payable to Olicom pursuant to the
Merger Agreement. CrossComm has agreed to notify Olicom promptly (and, in any
event, no later than 24 hours) after receipt by CrossComm (or its advisors) of
any Acquisition Proposal or obtaining actual knowledge that any person is
submitting an Acquisition Proposal or any request for non-public information
relating to CrossComm or any of its subsidiaries or for access to the
properties, books or records of CrossComm or any of its subsidiaries by any
person that has advised CrossComm that it may be considering making, or that
has made, an Acquisition Proposal and will keep Olicom fully informed of the
status and details of any such Acquisition Proposal, notice, request or any
correspondence or communications related thereto and will provide Olicom with a
written summary in reasonable detail of such Acquisition Proposal, notice or
request or correspondence
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or communications related thereto (including the identity of the offeror and
the complete terms and conditions of such Acquisition Proposal).
For purposes of the Merger Agreement, "Acquisition Proposal" means any
written offer or proposal for, or any written indication of interest in, a
merger or other business combination involving CrossComm or the acquisition of
25% or more of the outstanding shares of capital stock of CrossComm, or the
sale or transfer of all or substantially all of the assets (excluding the sale
or disposition of assets in the ordinary course of business) of CrossComm,
other than the transactions contemplated by the Merger Agreement.
CONDITIONS TO THE MERGER
Each party's obligations to consummate and effect the Merger is subject
to, among other things, the approval by the requisite votes of the stockholders
of Olicom and CrossComm, the Commission having declared the Registration
Statement effective, and the satisfaction at or prior to the Effective Time of
these additional conditions: (a) the absence of any temporary restraining
order, preliminary or permanent injunction or other order issued by any court
of competent jurisdiction or other legal or regulatory restraint or prohibition
preventing the consummation of the Merger or rendering the consummation of the
Merger illegal, or any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing; (b) the receipt of all necessary state
securities and "blue sky" permits; (c) all material authorizations, consents,
orders or approvals of, or declarations or filings with, or expiration of
waiting periods imposed by, any governmental entity necessary for the
consummation of the transactions contemplated by the Merger Agreement and the
Certificates of Merger will have been filed, expired or been obtained, other
than those that, individually or in the aggregate, the failure to be filed,
expired or obtained would not (i) as to such authorizations and approvals
required of Olicom, in the reasonable opinion of CrossComm after consultation
with Olicom, have a material adverse effect on Olicom, and (ii) as to such
authorizations and approvals required of CrossComm, in the reasonable opinion
of Olicom after consultation with CrossComm, have a material adverse effect on
CrossComm; (d) the filing with the Nasdaq National Market of (i) a Notification
Form for Listing of Additional Shares with respect to the shares of Olicom
Common Stock issuable in connection with the Merger, upon the exercise of the
Warrants and upon exercise of the options under the CrossComm Option Plans
assumed by Olicom, and (ii) a National Market Application for Initial Inclusion
with respect to the Warrants; (e) the approval of the listing of the Warrants
on the Nasdaq National Market upon official notification thereof; and (f) the
registration by the Commercial and Companies Agency of the Kingdom of Denmark
of the Olicom Common Stock issuable in the Merger, to the extent required by
the Companies Act, and the amendment of the Olicom Articles that is required to
increase the share capital of Olicom.
The obligations of CrossComm to effect the Merger are subject to, among
other things, the satisfaction at or prior to the Effective Time of each of the
following conditions, unless waived in writing by CrossComm: (a) the
representations and warranties of Olicom and MergerSub in the Merger Agreement
shall be true and correct as of the date when made and as
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of the Effective Time, except to the extent that any such representation and
warranty speaks as of an earlier date, with the same force and effect as if
made on and as of the Effective Time, except for changes expressly contemplated
by the Merger Agreement and such inaccuracies as individually or in the
aggregate that would not have a material adverse effect on Olicom (and
CrossComm shall have received a certificate to such effect signed on behalf of
Olicom by its Managing Director and Chief Financial Officer); (b) Olicom and
MergerSub shall have performed or complied in all material respects with all
covenants, obligations, conditions and agreements required by the Merger
Agreement to be performed or complied with by them on or prior to the Effective
Time (and CrossComm shall have received a certificate to such effect signed on
behalf of Olicom by its Managing Director and Chief Financial Officer); (c)
there shall not have occurred any material adverse change in the condition
(financial or otherwise), properties, assets (including intangible assets),
liabilities, business, operations or results of operations of Olicom and its
subsidiaries, taken as a whole, as a consequence of (i) the occurrence of acts
of God, fire, war, strikes and other similar events beyond the reasonable
control of Olicom the result of which (or the reasonably likely result of
which) is (or will be) the substantial impairment of the value of the business
of Olicom and its subsidiaries, taken as a whole, or (ii) a material change in
the political or economic environment in the Kingdom of Denmark the result of
which (or the reasonably likely result of which) is (or will be) the
substantial impairment of the value of the business of Olicom and its
subsidiaries, taken as a whole; (d) CrossComm shall have been furnished with
evidence satisfactory to it of the consent or approval of those persons whose
consent or approval shall be required in connection with the Merger under any
material contract of Olicom or any of its subsidiaries or otherwise, except
where the failure to obtain such consent or approval would not have a material
adverse effect on Olicom; and (e) no temporary restraining order, preliminary
or permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint provision limiting or
restricting Olicom's business following the Merger shall be in effect, nor
shall any proceeding brought by an administrative agency or commission or other
governmental entity, domestic or foreign, seeking the foregoing be pending
except where the existence of any of the foregoing items would not have a
material adverse effect on Olicom.
The obligations of Olicom and MergerSub to effect the Merger are
subject to the satisfaction at or prior to the Effective Time of each of the
following conditions, any of which may be waived, in writing, by Olicom: (a)
the representations and warranties of CrossComm contained in the Merger
Agreement must be true and correct as of the date when made and as of the
Effective Time, except to the extent that any such representation and warranty
speaks as of an earlier date, with the same force and effect as if made on and
as of the Effective Time, except for such inaccuracies as individually or in
the aggregate that would not have a material adverse effect on CrossComm (and
Olicom and MergerSub shall have received a certificate to such effect signed on
behalf of CrossComm by its President and Chief Financial Officer); (b)
CrossComm shall have performed or complied in all material respects with all
agreements, covenants, obligations and conditions required by the Merger
Agreement to be performed or complied with by it on or prior to the Effective
Time (and Olicom and MergerSub shall have received a certificate to such effect
signed on behalf of CrossComm by its President and Chief Financial Officer);
(c) Olicom shall have been furnished with evidence satisfactory to it of the
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consent or approval of those persons whose consent or approval shall be
required in connection with the Merger under any material contract of CrossComm
or any of its subsidiaries or otherwise, except where the failure to obtain
such consent or approval would not have a material adverse effect on CrossComm;
(d) no temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other legal or
regulatory restraint provision limiting or restricting Olicom's conduct or
operation of the business of CrossComm and its subsidiaries, following the
Merger shall be in effect, nor shall any proceeding brought by an
administrative agency or commission or other governmental entity, domestic or
foreign, seeking the foregoing be pending, except where the existence of any of
the foregoing items would not have a material adverse effect on CrossComm; (e)
there shall not have occurred any material adverse change in the condition
(financial or otherwise), properties, assets (including intangible assets),
liabilities, business, operations or results of operations of CrossComm and its
subsidiaries, taken as a whole, as a consequence of (i) the occurrence of acts
of God, fire, war, strikes and other similar events beyond the reasonable
control of CrossComm the result of which (or the reasonably likely result of
which) is (or will be) the substantial impairment of the value of the business
of CrossComm and its subsidiaries, taken as a whole, to Olicom, or (ii) a
material change in the political or economic environment in Poland which (or
the reasonably likely result of which) is (or will be) the substantial
impairment of the value of the business of CrossComm and its subsidiaries,
taken as a whole, to Olicom; (f) Olicom shall have received from each of the
affiliates of CrossComm an executed Affiliates Agreement in substantially the
form attached to the Merger Agreement; (g) CrossComm shall have delivered
resignations of all officers and directors of CrossComm and its subsidiaries;
(h) as of the taking of the vote at the CrossComm Meeting with respect to the
Merger, holders of no more than 15% of the issued and outstanding shares of
CrossComm Common Stock shall have duly demanded and perfected, and not
withdrawn or forfeited, demands for appraisal rights under DGCL; and (i) in the
event that the Final Closing Price is less than $12.50, CrossComm shall have
received an updated written opinion of Montgomery (or another nationally
recognized investment banking firm selected by the CrossComm Board) that, in
such advisor's opinion, as of a date at least one day prior to the CrossComm
Meeting, the consideration to be received by the stockholders of CrossComm is
fair, from a financial point of view, to the stockholders of CrossComm.
CLOSING
As promptly as practicable after the satisfaction or waiver of the
conditions set forth in the Merger Agreement, MergerSub and CrossComm will file
certificates of merger with the Secretary of State of Delaware and the Recorder
of the County in which the registered office of each of CrossComm and MergerSub
is located. The Merger will become effective upon such filings. It is
anticipated that, assuming all conditions are met, the Merger will occur and a
closing will be held on or before June 30, 1997.
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TERMINATION, AMENDMENTS AND WAIVERS
The Merger Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of the matters presented in
connection with the Merger by the stockholders of CrossComm or Olicom:
(a) By the mutual written consent of Olicom and CrossComm;
(b) By either Olicom or CrossComm if the Merger has not
been consummated by August 1, 1997 (provided that the right to
terminate the Merger Agreement pursuant to such provision will not be
available to any party whose action or failure to act has been the
cause of or resulted in the failure of the Merger to occur on or before
such date);
(c) By either Olicom or CrossComm if a court of competent
jurisdiction or other governmental entity has issued a nonappealable
final order, decree or ruling or taken any other action, in each case
having the effect of permanently restraining, enjoining or otherwise
prohibiting the Merger, except if the party relying on such order,
decree or ruling or other action has not complied with its obligations
under the Merger Agreement to comply with legal requirements imposed on
such party with respect to the consummation of the Merger;
(d) By Olicom if (i) for any reason, the CrossComm Board
fails to call and hold a meeting of CrossComm stockholders to approve
the Merger Agreement and the Merger by June 30, 1997, or (ii) at such
meeting (including any adjournment or postponement thereof), the
requisite vote of the stockholders of CrossComm in favor of the Merger
Agreement and the Merger is not obtained;
(e) By CrossComm, if (i) for any reason, the Olicom Board
fails to call and hold a meeting of Olicom stockholders to approve the
Merger Agreement and the Merger by June 30, 1997, or (ii) at such
meeting (including any adjournment or postponement thereof), the
requisite vote of the stockholders of Olicom in favor of the Merger
Agreement and the Merger is not obtained;
(f) By Olicom, if (i) the CrossComm Board withdraws or
modifies its recommendation of the Merger Agreement or the Merger in a
manner adverse to Olicom or publicly announces or discloses to any
third party its intention to do any of the foregoing, (ii) an
Alternative Transaction (as defined below) has taken place or the
CrossComm Board recommends to the stockholders of CrossComm an
Alternative Transaction, or (iii) a tender offer or exchange offer for
25% or more of the outstanding shares of CrossComm Common Stock is
commenced (other than by Olicom or an affiliate of Olicom) and the
CrossComm Board recommends that the stockholders of CrossComm tender
their shares in such tender or exchange offer;
(g) By CrossComm prior to the Effective Time, if (i) the
CrossComm Board receives a Superior Proposal, (ii) the CrossComm Board
determines in good faith that the failure to accept such Superior
Proposal would be inconsistent with its fiduciary duties
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to CrossComm's stockholders under applicable law, (iii) CrossComm
provides Olicom with at least one business day's written notice of such
Superior Proposal, including a written summary thereof in reasonable
detail (including the identity of the offeror and the terms of the
Superior Proposal) and of the determination of the CrossComm Board, and
(iv) contemporaneously with giving notice of termination, CrossComm
makes the payment of the Termination Fee;
(h) By Olicom or CrossComm, if there has been a material
breach of any representation, warranty, covenant or agreement on the
part of the other party set forth in the Merger Agreement, which breach
(i) causes the conditions to the obligations of Olicom to close (in the
case of termination by CrossComm), or the conditions of the obligations
of CrossComm to close (in the case of termination by Olicom) not to be
satisfied, and (ii) is not cured within five business days following
receipt by the breaching party of written notice of such breach from
the other party; or
(i) By CrossComm, (i) if the Final Closing Price is less
than $12.50 and Olicom fails to increase the Exchange Ratio as provided
in the Merger Agreement, or (ii) if the Final Closing Price is more
than $20.83 and Olicom decreases the Exchange Ratio as provided in the
Merger Agreement.
In the event of termination of the Merger Agreement as provided
therein, the Merger Agreement will terminate, and there will be no liability or
obligation on the part of Olicom, MergerSub or CrossComm or their respective
officers, directors, stockholders or affiliates, except to the extent that such
termination results from the willful breach by a party thereto of any of its
representations, warranties or covenants set forth in the Merger Agreement;
provided, however, that, the provisions of the Merger Agreement relating to
confidentiality, expenses and termination fees, and effect of termination will
remain in full force and effect and survive any termination of the Merger
Agreement.
As used in the Merger Agreement, "Alternative Transaction" means either
(i) a transaction pursuant to which any person (or group of persons), other
than Olicom or its affiliates (a "Third Party"), acquires more than 25% of the
outstanding shares of CrossComm Common Stock, pursuant to a tender offer or
exchange offer or otherwise, (ii) a merger or other business combination
involving CrossComm pursuant to which any Third Party acquires more than 25% of
the outstanding equity securities of CrossComm or the entity surviving such
merger or business combination, (iii) any other transaction pursuant to which
any Third Party acquires control of assets (including, for this purpose, the
outstanding equity securities of subsidiaries of CrossComm, and the entity
surviving any merger or business combination including any of them) of
CrossComm having a fair market value equal to more than 20% of the fair market
value of all the assets of CrossComm immediately prior to such transaction, or
(iv) any public announcement of a proposal, plan or intention to do any of the
foregoing or any agreement to engage in any of the foregoing.
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The Merger Agreement may be amended at any time by the boards of
directors of the parties by the execution and delivery of an instrument in
writing signed on behalf of each of CrossComm, Olicom and MergerSub; provided,
however, that an amendment made subsequent to adoption of the Merger Agreement
by the stockholders of CrossComm or MergerSub will not (i) alter or change the
amount or kind of consideration to be received on conversion of the CrossComm
Common Stock, except as provided in the Merger Agreement, (ii) alter or change
any term of the certificate of incorporation of the Surviving Corporation to be
effected by the Merger, or (iii) alter or change any of the terms and conditions
of the Merger Agreement if such alteration or change would adversely affect the
holders of CrossComm Common Stock or MergerSub Common Stock.
At any time prior to the Effective Time, either Olicom or CrossComm
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other, (ii) waive any inaccuracies
in the representations and warranties made to such party contained in the
Merger Agreement or in any document delivered pursuant thereto, and (iii) waive
compliance with any of the agreements or conditions for the benefit of such
party under the Merger Agreement.
FEES AND EXPENSES; TERMINATION FEE
Subject to the provisions described below regarding reimbursement of
expenses and payment of termination fees, in general, all fees and expenses
incurred in connection with the Merger Agreement and the transactions
contemplated thereby shall be paid by the party incurring such expenses,
whether or not the Merger is consummated. Olicom and CrossComm have further
agreed to share equally all fees and expenses, other than investment banking,
attorneys' and accountants' fees and expenses, incurred in connection with the
printing and filing of the Joint Proxy Statement/Prospectus and the
Registration Statement and any amendments or supplements relating thereto.
Whether or not a termination fee is payable by CrossComm to Olicom as
described below, CrossComm has agreed to reimburse Olicom for all of its
reasonable, documented expenses actually incurred in connection with the Merger
prior to termination (including reasonable, documented fees and expenses of
Olicom's counsel, accountants and financial advisors, but excluding any
discretionary fees paid to such financial advisors) in the event that: (i)
Olicom terminates the Merger Agreement as a result of (a) the failure of the
CrossComm Board to call and hold by June 30, 1997, a stockholders' meeting to
approve the Merger Agreement and the Merger, or if at such meeting (including
any adjournment or postponement thereof), CrossComm fails to obtain the
requisite vote for approval of the Merger Agreement and the Merger by the
stockholders of CrossComm at the CrossComm Meeting, in each case, if, at the
time of such failure, there has been announced an Alternative Transaction which
has not been absolutely and unconditionally withdrawn and abandoned, (b) the
withdrawal or modification by the CrossComm Board of its recommendation of the
Merger Agreement or the Merger in a manner adverse to Olicom (or the public
announcement or disclosure of its intention to do so), the occurrence of an
Alternative Transaction or the recommendation by the
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CrossComm Board to the CrossComm stockholders of an Alternative Transaction,
or the commencement of a tender offer or exchange offer for 25% or more of the
outstanding CrossComm Common Stock as to which the CrossComm Board recommends
that the stockholders of CrossComm tender their shares with respect thereto, or
(c) an uncured material breach by CrossComm of the Merger Agreement; or (ii)
CrossComm terminates the Merger Agreement as a result of the CrossComm Board's
receipt of a Superior Proposal, after determining in good faith that the
failure to accept such Superior Proposal would be inconsistent with its
fiduciary duties to CrossComm's stockholders under applicable law and after
providing Olicom with at least one business day's written notice of such
Superior Proposal.
Olicom has agreed to reimburse CrossComm for all of its reasonable,
documented expenses actually incurred in connection with the Merger prior to
termination (including reasonable, documented fees and expenses of CrossComm's
counsel, accountants and financial advisors, but excluding any discretionary
fees paid to such financial advisors) in the event that CrossComm terminates
the Merger Agreement as a result of the failure of the Olicom Board to call and
hold the Olicom Meeting by June 30, 1997, or if at the Olicom Meeting
(including any adjournment or postponement thereof), the requisite vote of the
stockholders of Olicom in favor of the Merger Agreement and the Merger is not
obtained, or as a result of an uncured material breach by Olicom of the Merger
Agreement.
In addition to the reimbursement of expenses described above, CrossComm
has agreed to pay Olicom a termination fee of $2,360,000 upon the occurrence of
any of the following events:
(a) The termination of the Merger Agreement by Olicom as a
result of its failure to receive the requisite vote for approval of the
Merger Agreement and the Merger by the stockholders of CrossComm at the
CrossComm Meeting if, at the time of such failure, there has been
announced an Alternative Transaction which shall not have been
absolutely and unconditionally withdrawn and abandoned and with respect
to which the CrossComm Board shall not have recommended that the
stockholders of CrossComm not vote to accept;
(b) The termination of the Merger Agreement by Olicom as a
result of (i) the withdrawal or modification by the CrossComm Board of
its recommendation of the Merger Agreement or the Merger in a manner
adverse to Olicom (or the public announcement or disclosure of its
intention to do so), (ii) the occurrence of an Alternative Transaction
or the recommendation by the CrossComm Board to CrossComm stockholders
of an Alternative Transaction, or (iii) the commencement of a tender
offer or exchange offer for 25% or more of the outstanding CrossComm
Common Stock as to which the CrossComm Board recommends that CrossComm
stockholders tender their shares with respect thereto; or
(c) The termination of the Merger Agreement by CrossComm
in connection with the CrossComm Board's receipt of a Superior
Proposal, after determining in good
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faith that the failure to accept such Superior Proposal would be
inconsistent with its fiduciary duties to CrossComm's stockholders
under applicable law and after providing Olicom with at least one
business day's written notice of such Superior Proposal and making
payment of the Termination Fee.
Fees to be Paid to Financial Advisors. Pursuant to a letter agreement
dated December 20, 1996, Olicom engaged Alex. Brown to provide financial advice
and assistance in connection with a combination involving Olicom and
CrossComm, and to render a fairness opinion in connection with the proposed
combination of Olicom and CrossComm. Pursuant to the letter agreement, Olicom
agreed to pay Alex. Brown a transaction fee of $1,000,000 for its services
pursuant to the terms of the letter agreement and has agreed to reimburse Alex.
Brown for its reasonable out-of-pocket expenses. See "The Merger -- Opinion of
Olicom's Financial Advisor."
Pursuant to a letter agreement dated November 18, 1996, CrossComm
engaged Montgomery to provide financial advice and assistance in connection
with a sale or merger of CrossComm, and to render a fairness opinion in
connection with the proposed merger with a subsidiary of Olicom. CrossComm has
agreed to pay Montgomery a transaction fee for its services pursuant to the
terms of the letter agreement equal to $400,000 plus an amount equal to 3.5% of
the excess of the aggregate Merger Consideration over the value of CrossComm's
cash and cash equivalents at the Effective Time. At December 31, 1996,
CrossComm had cash and cash equivalents of $43,740,510. In addition, CrossComm
has agreed to reimburse Montgomery for its reasonable out-of-pocket expenses.
See "The Merger -- Opinion of CrossComm's Financial Advisor."
INDEMNIFICATION AND INSURANCE
The Merger Agreement provides that for a period of six years after the
Effective Time, Olicom shall, and shall cause the Surviving Corporation to,
indemnify and hold harmless the present and former officers, directors,
employees, fiduciaries and agents of CrossComm (the "Indemnified Parties") in
respect of acts or omissions occurring on or prior to the Effective Time to the
fullest extent permitted by applicable law and to the fullest extent provided
under the CrossComm Certificate and CrossComm's bylaws or any indemnification
agreement with CrossComm officers and directors to which CrossComm is a party,
in each case in effect on the date of the Merger Agreement.
The Merger Agreement also provides that until July 14, 1999, Olicom
will provide officers' and directors' liability insurance in respect of acts or
omissions occurring on or prior to the Effective Time covering each such person
currently covered by CrossComm's officers' and directors' liability insurance
policy on terms substantially similar to those of such policy in effect on the
date of the Merger Agreement; provided, however, that in satisfying such
obligations, Olicom will not be obligated to expend in any one year in excess
of $200,000 for such coverage, and if the Surviving Corporation is unable to
obtain such insurance, it is required
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to obtain as much comparable insurance as possible for an annual premium equal
to such maximum amount.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
In considering the recommendation of the CrossComm Board with respect
to the Merger, stockholders of CrossComm should be aware that certain officers
and directors of CrossComm have interests in the Merger, including those
referred to below, that presented them with potential conflicts of interests.
The CrossComm Board was aware of these potential conflicts and considered them
along with the other matters described in "The CrossComm Meeting -- Board
Recommendations" and "The Merger -- Reasons for the Merger."
The Merger Agreement provides that Olicom will assume CrossComm's
outstanding stock options, whereafter such options will be exercisable for
Olicom Common Stock. In light of the premium reflected in the Exchange Ratio,
CrossComm's officers may receive a significant benefit from the Merger in the
form of the higher value of shares issuable upon exercise of their options.
However, officers of CrossComm will not receive or be entitled to "golden
parachute"or other change of control payments particularly by virtue of the
Merger.
Olicom has entered into a consulting agreement with Mr. Tadeusz
Witkowicz, with a term commencing as of the Effective Time. In addition,
CrossComm has entered into a noncompetition and nonsolicitation agreement with
Mr. Witkowicz. See "-- Related Agreements: Witkowicz Consulting Agreement,"
"-- Related Agreements: Witkowicz Noncompetition Agreement" and "--Related
Agreements: Witkowicz License Agreement." See also "CrossComm Corporation--
Business: Certain Transactions."
The Merger Agreement provides that for a period of six years after the
Effective Time, Olicom shall, and shall cause the Surviving Corporation to,
indemnify and hold harmless the present and former officers, directors,
employees, fiduciaries and agents of CrossComm in respect of acts or omissions
occurring on or prior to the Effective Time to the fullest extent permitted by
applicable law and to the fullest extent provided under the CrossComm
Certificate and CrossComm's Bylaws or any indemnification agreement with
CrossComm officers and directors to which CrossComm is a party, in each case in
effect on the date of the Merger Agreement.
Pursuant to the Merger Agreement, Olicom agreed, in connection with the
Olicom Meeting, to nominate Tadeusz Witkowicz for a term of one year and to use
its best efforts to secure his election as a director of Olicom.
RELATED AGREEMENTS
LSNielsen Voting Agreement. In connection with the execution of the
Merger Agreement, Mr. Lars Stig Nielsen, the Managing Director and Chief
Executive Officer of Olicom, entered into a voting agreement with CrossComm.
The provisions of such voting agreement provide that
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Mr. Nielsen will vote all shares of Olicom directly owned by him in favor of
the approval of the Merger Agreement and consummation of the Merger and against
any competing proposals. Mr. Nielsen is the direct holder of approximately
1.8% (as of May __, 1997, exclusive of any shares issuable upon the exercise of
options held by him) of the shares of Olicom Common Stock entitled to vote at
the Olicom Meeting.
Witkowicz Voting Agreement. In connection with the execution of the
Merger Agreement, Mr. Tadeusz Witkowicz, the President, Chief Executive Officer
and Chairman of the Board of Directors of CrossComm, entered into the Witkowicz
Voting Agreement. The provisions of such voting agreement provide that Mr.
Witkowicz will vote all shares of CrossComm Common Stock beneficially owned by
him in favor of the approval of the Merger Agreement and consummation of the
Merger and against any competing proposals (the "Witkowicz Voting Agreement").
Mr. Witkowicz is the holder of approximately 16.9% (as of May __, 1997) of the
shares of CrossComm Common Stock entitled to vote at the CrossComm Meeting.
Pursuant to the Witkowicz Voting Agreement, Mr. Witkowicz is prohibited from
disposing of his Olicom Common Stock received pursuant to the Merger except
pursuant to Rule 145 under the Securities Act. In addition, Mr. Witkowicz has
agreed to resign from the Olicom Board in the event that at any time he
beneficially holds less than 80% of the Balance Shares (as defined below). The
term "Balance Shares" means the number of shares of Olicom Common Stock received
by Mr. Witkowicz pursuant to the Merger, net of 150,000 shares of Olicom Common
Stock that he shall be permitted to sell in the manner set forth in the
Witkowicz Voting Agreement for the purpose of satisfying tax obligations. For
so long as the provisions of Rule 145 under the Securities Act are applicable to
him, Mr. Witkowicz has agreed to make dispositions of shares of Olicom Common
Stock received by him in the Merger only through certain designated brokers.
Witkowicz Consulting Agreement. In connection with the execution of
the Merger Agreement, Mr. Witkowicz entered into a Consulting Agreement for a
term commencing at the Effective Time and extending through December 31, 1997
(the "Consulting Term"). During the Consulting Term, Mr. Witkowicz agreed to
consult with and assist Olicom in: (i) successfully and expeditiously
implementing the integration of the business of CrossComm and its subsidiaries
with those of Olicom and its subsidiaries (collectively, the "Olicom Group");
(ii) providing advice and assistance with respect to existing customers of
CrossComm, toward the end that business relationships with such customers are
preserved to the greatest extent feasible; (iii) providing advice and
assistance with respect to key sales and marketing opportunities; and (iv) such
other services relating to the business of the Olicom Group and CrossComm as
Mr. Witkowicz and the Managing Director of Olicom mutually agree. Olicom
agreed to pay Mr. Witkowicz a monthly consulting fee of $5,500 during the
Consulting Term, such amount to be reduced by the amount of payments made to
Mr. Witkowicz by Olicom pursuant to the Noncompetition Agreement described
below. In connection with the agreement of Mr. Witkowicz to render consulting,
Olicom agreed to grant to him, at the Effective Time, an option to purchase
100,000 shares of Olicom Common Stock at an exercise price equal to the average
of the high and low sales prices of Olicom Common Stock on the date on which
the Effective Time occurs. The Consulting Agreement is contingent upon the
occurrence of the Merger, and will become effective at the Effective Time.
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Witkowicz Noncompetition Agreement. In connection with the execution
of the Merger Agreement, Mr. Witkowicz also entered into a noncompetition and
nonsolicitation agreement with CrossComm (the "Noncompetition Agreement").
Pursuant to the Noncompetition Agreeement, Mr. Witkowicz agreed, for a period
of ten months after the Closing Date (the "Noncompetition Term"), not to
compete in the development and marketing of the following products in the
computer networking industry: ethernet, token ring and asychronous transfer
mode switches and network interface cards; bridges; routers; and HUBs. Mr.
Witkowicz also agreed that during the Noncompetition Term, he would not,
without the prior written consent of CrossComm (which may not be unreasonably
withheld or delayed), induce any employee of or independent contractor to
CrossComm to terminate his or her relationship with Olicom or any subsidiary or
affiliate thereof, whether or not existing as of the date of the Noncompetition
Agreement, in order to accept any position with Mr. Witkowicz or a company
affiliated with him, except as permitted by the License Agreement. CrossComm
agreed to pay Mr. Witkowicz the sum of $5,500 per month during the
Noncompetition Term, to be offset against any payments made pursuant to any
consulting agreement with CrossComm or Olicom.
Witkowicz License Agreement. On March 20, 1997, CrossComm entered into
the License Agreement with Mr. Witkowicz that provides him with a non-exclusive
license to use CrossComm's partially developed Network Delta software. The
Network Delta software was being developed to, among other things, enable
CrossComm to deliver monitoring services to its customers. CrossComm
discontinued development of this software in 1996 because it failed to meet
expectations and was inconsistent with CrossComm's strategic plan. CrossComm
decided instead to utilize a third-party solution to offer monitoring services
to its customers. Under the terms of the License Agreement, Mr. Witkowicz will
pay $30,000 for the license and an additional $25 royalty fee for each copy sold
through the end of 1998 and $5 per copy thereafter. The License Agreement also
allows Mr. Witkowicz to hire up to six engineers from CrossComm.
Witkowicz License Agreement. On March 20, 1997, CrossComm entered into
the License Agreement with Mr. Witkowicz that provides him with a non-exclusive
license to use CrossComm's partially developed Network Delta software. The
Network Delta software was being developed to, among other things, enable
CrossComm to deliver monitoring services to its customers. CrossComm
discontinued development of this software in 1996 because it failed to meet
expectations and was inconsistent with CrossComm's strategic plan. CrossComm
decided instead to utilize a third-party solution to offer monitoring services
to its customers. Under the terms of the License Agreement, Mr. Witkowicz
will pay $30,000 for the license and an additional $25 royalty fee for each
copy sold through the end of 1998 and $5 per copy thereafter. The License
Agreement also allows Mr. Witkowicz to hire up to six engineers from CrossComm.
See "CrossComm Corporation -- Business: Certain Transactions."
Reseller Agreement. Pursuant to an International VAR Agreement dated
as of September 1, 1996 (the "Reseller Agreement"), Olicom granted to CrossComm
the right to market, install and service Olicom's RapidFire(TM) PCI ATM adapter
card. The Reseller
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Agreement, which was in effect at the time that CrossComm announced that it had
retained Montgomery as its financial advisor to evaluate strategic
alternatives, contains terms and conditions that are customary for agreements
of this nature. Olicom and CrossComm have announced that they intend to expand
the scope of the Reseller Agreement to enable each company's field sales
organizations and channel partners to cross-sell the other company's products.
OLICOM A/S
BUSINESS
Olicom develops and markets local area network software and hardware
products that enable computer users to communicate, exchange data and share
computing resources in workgroup and enterprise LANs or in wide area networks.
Olicom believes that its products offer superior performance, are price
competitive and are fully compatible with industry standards and networking and
internetworking products manufactured by IBM and other vendors. Olicom's
products are marketed worldwide primarily through distributors, VARs and OEMs.
Lasat, a majority-owned subsidiary, develops and markets through distributors
and Internet service providers desktop and mobile modem products. See
"--Business: Lasat Communications."
THE LAN INDUSTRY
Since the early 1980's, the computing environments of many
organizations have evolved from a single vendor, mainframe or minicomputer
orientation to multi-vendor environments having a greater number of
workstations and personal computers ("PCs"). This trend has resulted in the
development of sophisticated local area network and wide area network hardware
and software products.
To provide local interoperability among computer devices, two primary
industry standards - Ethernet and Token Ring - were developed by computer
vendors and adopted as industry standards. More recently, asynchronous
transfer mode, a broadband technology for transmitting voice, video and data
over LANs and WANs, was developed by the International Telecommunications Union
("ITU") and the ATM Forum and adopted as a standard by ITU, the American
National Standards Institute ("ANSI"), the European Telecommunications
Standards Institute ("ETSI") and other standard bodies. All three standards
define the method of connectivity to, the physical characteristics of, and the
management of information on the network. Ethernet operates at 10 and 100 mega
bits per second ("Mbps"), while Token Ring operates at 4 and 16 Mbps. ATM is
capable at operating at 25 and 155 Mbps.
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COMPANY HISTORY
Olicom was organized in the Kingdom of Denmark in 1985 by Lars Stig
Nielsen (Olicom's Managing Director and Chief Executive Officer). Since 1987,
Olicom has been involved in designing, developing and producing high-quality
Token Ring networking products. In 1988, Olicom began marketing an increasingly
broader range of network interface cards ("NICs" or "adapters"),
internetworking products, HUBs and cabling components, repeaters, converters,
filters and associated software drivers, followed by the introduction in 1990
of Token Ring NICs for Industrial Standard Architecture ("ISA"), Extended
Industrial Standard Architecture ("EISA") and Micro Channel Architecture
("MCA") busses. Commencing in late 1991 with its introduction of local and
remote bridges, Olicom was able to supply all components necessary for total
enterprise-wide LAN networking. In 1992, a wholly-owned subsidiary of Olicom
purchased substantially all of the assets of Dico 1992 A/S (formerly known as
Connect International A/S), thereby enabling Olicom to further broaden its
product line to take advantage of the demand for Ethernet networks from small-
and medium-sized enterprises. In 1994, Olicom began developing ATM products
and in 1995 began shipping 155 Mbps ATM NICs. In 1996, Olicom began shipping a
Token Ring switch. Olicom has continued to selectively broaden its product
line as the market for specific networking and internetworking products
developed. See "Products."
In order to provide global support of an increasingly broad product
line, Olicom established Olicom Americas, with its headquarters in Plano,
Texas, to coordinate marketing in North and South America.
PRODUCTS
Olicom's principal goal has been to develop a leadership position among
those companies that develop and market products that are completely
interoperable with devices marketed by IBM and others, while at the same time
providing superior performance and additional features at competitive prices.
Olicom's products are fully compatible with IBM products, adhere to all
relevant Institute of Electrical and Electronics Engineers ("IEEE") standards,
and provide connectivity among all major PC architectures and network operating
systems.
Olicom selectively broadens its product line as the market for specific
networking and internetworking products develops. Further, in expanding its
product line, Olicom works closely with key end-users to define emerging market
requirements and features which should be addressed.
TOKEN RING PRODUCTS
Olicom's Token Ring products include NICs, internetworking products,
HUBs and cabling components, switch products, repeaters, converters, filters
and associated software drivers for use in LANs using the Token Ring protocol.
Within these categories Olicom provides a broad product range of Token Ring
network products.
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Network Interface Cards. Olicom Token Ring NICs are compatible with
standard PC bus architectures (including ISA, EISA, MCA, PC Card (formerly
called "PCMCIA") and Peripheral Component Interface ("PCI"). Olicom Token Ring
NICs support both types of standard wiring systems (unshielded twisted pair or
type 3 cabling ("UTP") and shielded twisted pair or type 1 cabling ("STP")),
both standard speeds (4 Mbps and 16 Mbps), and the leading network operating
systems developed by the major vendors (IBM, Novell, Inc. ("Novell"), Microsoft
Corporation ("Microsoft") and Banyan Systems Incorporated, together with UNIX
System V of American Telephone & Telegraph Co. and UNIX System V of Santa Cruz
Operation). At the end of 1993 Olicom addressed the portable computer market
sector through the introduction of its pocket and PCMCIA adapter products. The
Olicom Token Ring PCI NIC was a significant introduction in the second half of
1994 with a second generation NIC introduced in the first half of 1995.
Olicom has developed a specially-tuned high-performance version of the
Media Access Control ("MAC") code from Texas Instruments ("TI") and has also
developed a Logical Link Control ("LLC") protocol. Both the MAC code and the
LLC protocol interface with chipsets that are manufactured by TI and used by
Olicom in its TI-based Token Ring NICs. Olicom's engineering expertise in
analog LAN front-end design, together with the MAC code and LLC protocol
developed by Olicom's software engineers for the TI chipsets, have enabled
Olicom to produce extremely reliable Token Ring products.
Olicom's drivers include a number of special intelligent frame handling
functions which are designed to handle each frame of data in native mode in a
manner that enhances performance. In addition, by performing data path
analysis of all critical program sections, Olicom minimizes data transfer delay
in its Token Ring products.
To meet additional performance demands, an increasing number of
Olicom's NICs also include "bus master" capability to provide direct memory
access ("DMA") for faster data transfers and higher overall performance.
Olicom's Token Ring adapter card products currently consist of the following
NICs:
ISA 16/4 Adapter: a selectable 16 and 4 Mbps bus mastering NIC that is
compatible with AT or XT bus-based PCs.
MCA 16/4 Adapter: a selectable 16 and 4 Mbps bus mastering NIC that is
compatible with Micro Channel bus-based PCs.
EISA 16/4 Workstation Adapter: a selectable 16 and 4 Mbps bus mastering
NIC that is compatible with EISA bus-based PCs.
EISA 16/4 Server Adapter: a selectable 16 and 4 Mbps shared RAM NIC
that is compatible with EISA bus-based PCs used as network servers.
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PCI 16/4 Adapter: a selectable 16 and 4 Mbps NIC that is compatible
with PCI bus-based PCs.
PC Card (or PCMCIA) GoCard(TM) Adapter: a selectable 16 and 4 Mbps
credit card sized adapter for notebook PCs equipped with PCMCIA
expansion slots.
PC Card (or PCMCIA) GoCard(TM) LAN/Modem Adapter: a selectable 16 and 4
Mbps adapter and 33.6 Kbps modem for notebook PCs equipped with PCMCIA
expansion slots.
Token Ring Switch Products. Token Ring switching is seen as a way to
boost the capacity of traditional shared Token Ring LANs. Olicom's
CrossFire(TM) Token Ring switch provides eight ports for connecting eight
separate rings or file servers. Featuring a fast multi-processor architecture,
the CrossFire(TM) switch provides greater aggregate bandwidth compared to
traditional two-port bridges used for connecting rings (or LAN segments). The
greater bandwidth delivers higher overall LAN performance and enables Token
Ring networks to extend the usefulness of Token Ring LANs.
Internetworking Components. An increasing number of departmental LANs
are being connected to one another by the use of internetworking components
such as bridges and routers. To address this market, Olicom has developed and
markets a range of products that includes local and remote bridges for PCs as
well as stand alone products. In addition, Olicom markets a multi-protocol
router based on Novell's NetWare multi-protocol router software. Olicom's
internetworking products currently consist of the following:
Local Bridge 16/4: connects two closely located LAN Token Rings into
one logical network and is available in ISA and MCA bus versions.
Wire Speed Bridge 16/4: connects two closely located LAN Token Rings
into one logical network and has a frame forwarding rate which is very
close to wire speed.
Remote Bridge 16/4: connects two geographically remote Token Rings into
one logical network, and integrates the features of an intelligent hub.
The remote bridge can connect up to 40 workstations through two STP or
UTP type Lobe Attachment Modules ("LAMs") and is available in stand
alone and rack mountable product designs.
Remote Multiport Bridge 16/4: connects up to four geographically
remote Token Rings to a central site, forming one logical network.
This product is available in stand alone and rack mountable product
designs.
Multi-protocol Router Adapter: ISA, EISA and MCA Token Ring NICs that
use Novell's NetWare Multi-protocol router software to create a low
cost router product which allows the interconnection of Token Ring and
Ethernet networks.
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The connected rings for all bridges can be any combination of 4 Mbps and 16
Mbps Token Ring networks. The bridges are IBM-compatible, and manageable by
IBM LAN Manager, LAN Network Manager, HP OpenView for Windows and NetView. In
addition to running under the DOS operating system, the Remote Bridge 16/4 is
also capable of operating under IBM OS/2 LAN Server. The stand alone and rack
mountable bridges can also be managed through an out-of-band management
facility in case of network link failure, which maximizes network availability
for the end-user.
Included with all Token Ring bridge products is Olicom's Bridge Manager
utility software, which is an application interface program developed by Olicom
for use in conjunction with IBM LAN Network Manager for bridge configuring and
monitoring. Olicom's Bridge Manager software programs for PC-based and
integrated bridges support IBM LAN Network Manager protocol and Simple Network
Management Protocol ("SNMP"), use integrated, remotely managed filters, and
include WAN link utilization calculation and log performance counters for trend
analysis. In addition to being provided with Olicom bridges, this software is
marketed by Olicom to selected large OEMs, who integrate Olicom's software into
their own customers' products.
HUBs and Cabling Components. Olicom's Token Ring HUBs and cabling
products provide a broad range of connectivity options. Olicom's cabling
components currently include the following:
Controlled Access Unit ("CAU"): available with either UTP or STP
cabling support, the CAU connects the main ring and up to four LAMs,
each of which can have up to 20 nodes; the CAU and associated LAMs
comprise an IBM- compatible intelligent cabling system for Token Ring
LANs that allows the user to control ports on a network and perform
automatic Token Ring error recovery.
10-Port Controlled Attachment Module ("CAM"): integrates the features
of a CAU and LAM into one compact intelligent HUB that provides
connectivity for up to ten UTP nodes; the CAM can connect up to two
20-port UTP or STP LAMs and provides a cost-effective solution for
remote branch offices and small workgroups. Olicom also markets a
20-Port CAM.
8-Port Multistation Access Unit ("MAU"): available with either UTP or
STP cabling support, the MAU has integrated diagnostic test circuitry
which, together with lobe activity LEDs, indicates the status of relays
and provides an easy and efficient way to reset relays and test the
operation of the MAU.
All HUB products feature extensive network management support for IBM
LAN Network Manager, NetView and SNMP as well as out-of-band management.
Repeaters, Converters and Filters. To extend the physical wiring
lengths in Token Ring networks, Olicom's product line includes a Fiber
Converter 16/4 (which converts electrical
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signals to optical signals, and optical signals back to electrical signals) and
a copper signal Repeater 16/4 (which regenerates signals traveling on copper
wiring). Further, Olicom also markets a UTP Media Filter 16/4, which is a
low-cost filter assembly that limits the amount of electro-magnetic noise
radiated across unshielded cable.
ETHERNET PRODUCTS
Olicom's Ethernet products have enabled Olicom to further extend its
product line to products demanded by enterprises with networking environments
comprised of both Token Ring and Ethernet products.
Network Interface Cards. Ethernet NICs are compatible with most
standard PC architectures (including ISA, EISA and MCA), and support UTP and
Coaxial (RG 58) cabling systems (as well as 10Base5 cable through
AUI-interface). Ethernet NICs are compatible with the de facto standard set by
Novell, which provides end-users with ease of installation in all major network
operating systems by utilizing standard software drivers supplied by the
network operating systems. Additionally, Olicom's ISA/II products support
standard NE2000+ drivers and also offer fiber connectivity. Olicom's Ethernet
products currently include the following:
Ethernet MCA Adapter: a 16-bit NIC which is fully compatible with IBM
PS/2 systems and compatibles, with connectivity for UTP, Coaxial (RG
58) and AUI.
Ethernet EISA 32 Adapter: a 32-bit EISA bus-based NIC, with
connectivity for UTP, Coaxial (RG 58) and AUI.
Ethernet ISA Adapter: a 16-bit ISA bus-based NIC, with connectivity for
UTP, Coaxial (RG 58), AUI and fiber.
Ethernet GoCard(TM) PC Card Adapter: a credit card sized adapter for
notebook PCs equipped with PCMCIA expansion slots.
Ethernet GoCard(TM) LAN/Modem PC Card: an Ethernet adapter and 14.4
Kbps modem for notebook PCs equipped with PCMCIA expansion slots.
Ethernet PCI 32 Adapter: a 32-bit PCI bus-based NIC, with connectivity
for UTP, Coaxial (RG 58) and AUI.
HUBs and Cabling Components. Olicom provides managed and unmanaged
16-port and 9-port workgroup HUBs for Ethernet cabling systems.
FAST ETHERNET PRODUCTS
To meet the rapidly growing demand for better Ethernet LAN performance
due to the proliferation of high-usage workgroup and multimedia applications as
well as LAN-based
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Internet access, Olicom introduced a comprehensive range of Fast Ethernet
adapters during 1996, as follows:
Fast Ethernet MCA 10/100 Adapter: a 16-bit NIC which is fully
compatible with IBM PS/2 systems and compatibles, with connectivity for
RJ45 connectors. This NIC functions at either 10 Mbps or 100 Mbps.
Fast Ethernet ISA Adapter: a 16-bit ISA bus-based NIC, with
connectivity for RJ45 connectors. This NIC functions at either 10 Mbps
or 100 Mbps.
Fast Ethernet PCI 10/100 Adapter: a 32-bit PCI bus-based NIC, with
connectivity for RJ45 connectors. This NIC functions at either 10 Mbps
or 100 Mbps.
ATM PRODUCTS
ATM has emerged as a high-speed standard in deploying a new generation
of client/server and multimedia applications in enterprise networks. ATM
provides the increased speed and greater bandwidth required at the desktop for
these new applications. In 1995, Olicom began shipping the first adapter in
the RapidFire(TM) family of 155 Mbps NICs:
RapidFire(TM) PCI ATM 155 Adapter: this adapter provides high bandwidth
and high network data throughput for high-demand workstations and
servers, and supports full duplex 155 Mbps communication. There are
two versions of this adapter: a multiport fiber version and a UTP 5
version.
CellDriver(TM) LAN Emulation Software: this driver technology for the
RapidFire(TM) family of Olicom ATM adapters enables existing,
off-the-shelf application software, such as Lotus Notes, to be used
over ATM networks. CellDriver(TM) technology has been licensed from
Olicom by Microsoft.
STRATEGIC RELATIONSHIPS
Olicom's strategy of working with third parties to develop new product
capabilities has resulted in relationships with Cisco, Fujitsu Microelectronics
Ltd. ("Fujitsu"), TI, Intel Corporation ("Intel"), Novell, Olivetti S.p.A. and
its affiliates (collectively, "Olivetti"), and Hewlett-Packard France
("HP-France"). In addition, Olicom's strategic relationship with Lasat has now
evolved into a majority-ownership interest in Lasat. See "-- Business: Lasat
Communications." Olicom works jointly with these parties in the exchange of
technical information and the mutual development of products of common interest
and benefit. These strategic relationships provide Olicom with significant
market feedback, which Olicom utilizes in new product planning. These
relationships are undertaken by Olicom pursuant to agreements which do not
involve the sharing of revenue or (except as noted below) the payment of
license royalties.
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Cisco. During 1996, Olicom and Cisco signed a long-term agreement to
jointly develop Token Ring products and technology. As part of the agreement,
the two companies will co-develop a number of Token Ring switch products and
subsequently offer these products separately under each company's respective
brand name. Under the agreement, Cisco will also license core Token Ring
technology from Olicom, including Olicom's PowerMACH(TM) software, for use in
future Cisco internetworking products. Among the first products from the
alliance is a Token Ring switch that Olicom intends to focus on delivering
industry leading price/performance. In connection with the license of the
Cisco technology, Olicom has agreed not to enter into direct relationship with
certain vendors for the license, distribution or development of products based
on, or using, Cisco technology or its derivatives.
Fujitsu. Olicom has entered into a strategic cooperation agreement
with Fujitsu with respect to the development of ATM NIC chipsets.
TI. Olicom has worked closely with TI in the development and testing
of 4 Mbps and 16/4 Mbps Token Ring adapter cards and in the development of
optimized software drivers for these adapters to provide full 16 Mbps
performance.
Intel. Olicom has entered into an OEM agreement with Intel, whereby
Olicom sells to Intel 16/4 Mbps EISA, ISA and MCA NICs, together with UTP Media
Filters 16/4, and Olicom purchases Ethernet products from Intel on an OEM
basis. The agreement was extended in February 1995, for another
three-year-term.
Novell. Olicom and Novell are cooperating in developing and marketing
PC bridge and router technology. Part of the cooperation is Olicom's licensing
of its Bridge Manager utility software program to Novell, and Novell's
licensing of its NetWare multi-protocol router software to Olicom on an OEM
basis.
Olivetti. Olicom has entered into a strategic development contract
with Olivetti pursuant to which Olicom will develop a network management system
for Token Ring LANs. In addition, Olicom and Olivetti have entered into
additional agreements for the development of software products such as Ethernet
drivers, an Error Rate Manager software management product, and UNIX
stream-based protocol software.
HP-France. As part of an OEM agreement, HP-France has purchased
Olicom's Ethernet ISA adapter cards to integrate into PCs with remote program
load, for the purpose of marketing LAN-ready workstations.
Lasat. Olicom initially purchased a minority stake in Lasat, a modem
and ISDN developer, in 1994. Since Olicom's initial investment, Lasat has
supplied core technology for Olicom's GoCard(TM) combo LAN/modem PC Cards.
During the first quarter of 1996, Olicom increased its investment in Lasat and
now holds 75% of the share capital in Lasat. See "Lasat Communications".
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SALES AND MARKETING
Olicom markets and sells its products through carefully targeted
indirect distribution channels that include distributors, VARs (including
dealers, systems integrators and other resellers) and OEMs.
Olicom's resellers generally represent other lines of products that are
complementary to, or compete with, those of Olicom. While Olicom encourages
its resellers to focus on Olicom products through marketing and support
programs, there can be no assurance that these resellers will not give higher
priority to products of other suppliers, thereby reducing the efforts devoted
to selling Olicom's products. As distributors, VARs and OEMs have no long-term
obligations to purchase products from Olicom, there is a risk of unanticipated
declines in sales to Olicom's material customers for competitive reasons or
because of the internalization of the manufacture of products purchased from
Olicom on an OEM basis.
Olicom sells its products through distributors (such as Gateway 2000
Inc., Dell Computer Corporation, Ingram Micro Inc., Tech Data Corporation,
Computer 2000 AG and Azlan Ltd.). As brand name awareness creates demand for
products from end-users, this channel relies heavily on vendor activity,
promotional materials, advertising, show participation, direct marketing, joint
selling and similar activities to create demand, especially at the dealer
level.
Olicom's products are also sold through VARs, who are experienced in
the sale and support of complex networking solutions in vertical markets.
Resellers generally provide a more basic level of systems integration and
support than is available from OEMs or VARs. VARs typically integrate Olicom
products into complex host environments, as well as into internetworking
connectivity, and provide comprehensive training and direct technical support
to end-users. The provision of such services often plays an important role in
large end-user accounts. Olicom has been increasingly successful in selling
its Token Ring and Ethernet products through VARs and intends to build on this
success by extending VAR programs.
Olicom's products are also sold through OEMs, who sell Olicom's
products under their own private label and/or who license Olicom's technology
to integrate it into their own proprietary hardware systems or special
platforms.
Olicom's marketing programs include generating sales leads for its
resellers, supporting the efforts of its distributors, VARs and OEMs through
sales tools, including demand creation through telemarketing, and extensive
training, and creating brand name recognition of Olicom and its products.
Brand name recognition is enhanced through frequent participation in industry
trade shows, seminars and meetings, advertisement in major trade and other
publications, on-going communication with end-users of Olicom products, and
participation in public benchmark testing. In addition, Olicom undertakes
mailings of sales literature, technical articles and product evaluations, and
provides sales manuals and demonstration kits. Further, Olicom assists its
distributors, VARs and OEMs with on-site support by way of sales presentations
and product demonstrations. Olicom has also developed a significant marketing
presence on the
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Internet and promotes its products and services through its own World Wide Web
server. This medium allows all publicly available Olicom literature to be
accessible to anyone who has an Internet connection.
Olicom's distributors, VARs and OEMs generally have non-exclusive
agreements with Olicom, and purchase Olicom's products at discounts that are
typical in the industry. As is common in the LAN industry, distributor
inventory is protected with respect to price as to inventories that a
distributor may have on hand at the time of a change in the published list
price, and with respect to the rotation of slow-moving inventory in exchange
for other products of equal value.
Olicom markets its products worldwide, having established distribution
channels in North and South America, Eastern and Western Europe, Australia,
South Africa, Southeast Asia and elsewhere. Olicom has sales representatives
in the major metropolitan areas of North America and on the major continents,
including the key Western European markets. Olicom intends to further increase
its presence in various local markets.
During 1996, approximately 37% of Olicom's total sales were
concentrated in North America, European sales accounted for approximately 58%
of total sales, and Australia and other markets were responsible for
approximately 5% of total sales. See note 12 to the Consolidated Financial
Statements of Olicom (the "Olicom Consolidated Financial Statements") for
information relating to net sales during 1994, 1995 and 1996 by geographical
market, as well as information regarding net sales during 1994, 1995 and 1996
to major customers.
Olicom's international sales headquarters are located in Copenhagen.
The marketing of products in North and South America is coordinated through
Olicom Americas, which is headquartered in Plano, Texas. Olicom also maintains
regional sales offices in Austria, Australia, France, Germany, Italy, The
Netherlands, Spain, Singapore, South Africa and the United Kingdom.
As Olicom conducts its business worldwide, Olicom's sales may be
affected by changes in demand resulting from fluctuations in currency exchange
rates, as well as by governmental controls and other risks associated with
international sales (such as export licenses, political instability, trade
restrictions and changes in tariff and freight rates). Olicom generates sales
primarily in U.S. dollars and incurs expenses in a number of currencies,
principally in U.S. dollars and Danish kroner. Although Olicom seeks to manage
its foreign currency exposures by matching non-dollar revenues and expenses and
by entering into hedging transactions, there can be no assurance that exchange
rate fluctuations will not have a material adverse effect on Olicom's business,
financial condition and results of operation.
Olicom operates with a relatively short-term backlog, and substantially
all of its net sales in each quarter result from orders booked within a
generally short cycle between order and shipment (typically less than 45 days).
As a result, if near-term demand for Olicom's products weakens or if
significant anticipated sales in any quarter are not realized as expected,
Olicom's
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net sales for that quarter could be adversely affected. Olicom does not
believe that its backlog as of a particular date is indicative of future sales
levels.
Olicom's net sales may fluctuate as a result of other factors,
including increased price and other competition, the timing of significant
orders, announcements of new products by Olicom or its competitors, variations
in net revenues by product and distribution channel, decisions by distributors
and OEMs as to the quantity of Olicom's products to be maintained in
inventories, delays in shipment of existing or new products, and capital
spending patterns of end-users.
SUPPORT
Olicom's products are supported by Olicom's distribution partners, who,
in turn, have access to Olicom's sales support engineers, field engineers and
training specialists for end-user support. Olicom's resellers and large
accounts receive sales and technical training from Olicom at its training
centers in Copenhagen and Plano, as well as at resellers' offices. Olicom
conducts refresher/new products courses for resellers and large end-users of
its products, in which features of such products and their installation,
aspects of networking principles, and solutions to known problems are
addressed. Olicom provides on-line information access through the World Wide
Web, electronic bulletin boards, CompuServe and the Internet, as well as
additional technical support, available by telephone and telefax during
extended business hours.
Depending on the distribution channel, Olicom's products generally are
warranted to be free of defects in materials and workmanship for one to three
years. Before and after the expiration of the product warranty period, Olicom
offers factory-based support, parts replacement and repair services. To date,
Olicom has not encountered any significant product maintenance problems.
During 1995, Olicom introduced a limited lifetime warranty to registered users
of NIC products.
RESEARCH AND DEVELOPMENT
Olicom believes that its future success depends in substantial part on
the timely enhancement of existing products, together with the development of
new products that maintain technological excellence. Olicom is currently
developing new products and enhancements to existing products, to further
improve performance, increase price competitiveness, assure continued
interoperability, and increase market share. During 1994, 1995 and 1996,
Olicom incurred expenses of $7,531,000, $9,193,000 and $12,852,000,
respectively, with respect to research and development activities.
Although Olicom believes that it has certain technological and other
advantages over its competitors, maintaining such advantages will require
continued investment by Olicom in product development and marketing. There can
be no assurance that Olicom will be able to make the technological advances
necessary to maintain such competitive advantages. Further, there can be no
assurance that Olicom's products will not be rendered obsolete by new industry
standards or changing technology.
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Olicom's testing laboratories in Copenhagen and Plano conduct ongoing
tests for interoperability with IBM and other vendors' products and perform
benchmark testing. Olicom is a beta partner of IBM, Novell and Microsoft,
which provides Olicom with timely access to new versions of these vendors' LAN
operating system software and facilitates Olicom's development of interoperable
software drivers for its NICs. During 1996 Olicom also participated in a large
number of interoperability testing sessions at several venues, such as the
University of New Hampshire (UNH) ATM and Token Ring testing, the PCI SIG
(Special Interest Group) interoperability testing and others.
In 1994, 1995 and 1996, Olicom's research and development expenditures
were 6.6%, 7.2% and 7.6% of net sales, respectively. See "Olicom A/S --
Management's Discussion and Analysis of Financial Condition and Results of
Operation."
During 1996, Olicom introduced a complete new range of Ethernet 10/100
PC adapters including NICs for PCI, ISA and MCA busses. Included with the
products are drivers for both Windows 95, Windows NT and Novell NetWare.
Olicom is currently developing LAN products for Token Ring, Ethernet and ATM.
Included are both adapter products and switch products. It is the intention of
Olicom to maintain its position as a quality supplier of LAN products including
the newest technologies, such as Dedicated Token Ring and adapters supporting
the newest PC BUS standards such as PCI and Cardbus.
Among Olicom's current development projects is a Token Ring switch
co-development project with Cisco. By combining Cisco's switching technology
with Olicom's Token Ring technology, including development of ASIC-based Token
Ring protocol handlers, the two companies plan to launch competitive and
state-of-the-art Token Ring switching products during 1997. Olicom is also
continuing its investment in ATM technology and plans to release a number of
new ATM switching products during 1997.
Schedules for the development of high technology products are
inherently difficult to predict, and there can be no assurance that Olicom will
achieve its scheduled initial customer shipment dates. In addition, as
Olicom's strategy is driven in significant part by customer demand, its product
development schedules are inherently subject to revision as a result of
indications of change in the requirements of its customers. Olicom's business,
financial condition or result of operations could be adversely affected if
Olicom were to incur significant delays or be unsuccessful in developing these
or other new products or enhancements, or if any such products or enhancements
did not gain market acceptance.
MANUFACTURING AND DISTRIBUTION
Olicom outsources the entire production volume in its three basic
product areas: NICs, internetworking products, and wiring components. The
products are manufactured in fully automated, high-quality production lines
utilizing Surface Mounting Technology ("SMT") techniques. The products are
manufactured to meet Olicom specifications on a turnkey basis by three
different manufacturers:
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GSS/Array Technology Inc. GSS/Array manufactures Token Ring NICs and
wiring components. GSS/Array utilizes two production sites for deliveries to
Olicom, one in Thailand and one in the United States.
SCI Thailand Ltd. SCI manufactures Ethernet and Token Ring NICs,
certain modem products and wiring components. SCI utilizes two production
sites for deliveries to Olicom, one in Thailand and one in the United States.
Dovatron Ireland B.V. Dovatron manufactures Ethernet NICs and wiring
components in its plant in Ireland.
While Olicom believes that additional capacity is available from other
manufacturers, an interruption in its existing subcontract manufacturing
arrangements could have a material adverse effect on Olicom's business,
financial condition or result of operations.
Olicom's manufacturing strategy is to combine Far East-based low-cost
manufacturing with U.S. compliant manufacturing for sales to governmental
agencies in the United States. Olicom's manufacturing strategy and goal is to
achieve short time-to-market cycles of 7-12 weeks from completion of product
design to start of volume production. Olicom manages quality assurance of its
products through extensive quality control procedures which Olicom believes
have been instrumental in achieving the superior performance and reliability of
its products.
Olicom's distribution strategy is to maintain finished goods
inventories at Olicom distribution centers at a minimum level of typically 1-2
months of equivalent sales volume. Distribution effectiveness is optimized
through direct customer delivery and factory shipments to Olicom's distribution
centers in Copenhagen and Plano, Texas.
Components and sub-assemblies for Olicom's products are procured by
Olicom's manufacturers directly from third party vendors, except for certain
critical components, including chipsets and ASICs. Olicom has entered into a
number of volume purchase agreements with major material vendors in order to
secure material availability and the most favorable world-wide terms and
conditions for material procurement.
Olicom has not experienced any significant problems in obtaining
required supplies of sole or limited source components. However, the inability
to develop alternative sources of supply, if required, or a reduction or
interruption in supply or a significant increase in the price of one or more
critical components, could materially and adversely affect Olicom's business,
financial condition or results of operations and could negatively impact
customer relationships.
Olicom has granted certain customers a non-exclusive license to use,
manufacture and sell products currently being manufactured and sold by Olicom
on an OEM basis. Such licenses generally become effective in the event that
Olicom discontinues manufacturing the products being purchased by such
customer, or is unable to provide specified quantities of products or
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<PAGE> 120
levels of quality, and/or upon the bankruptcy or insolvency of Olicom. The
grants of manufacturing rights are not subject to payment of royalties.
COMPETITION
The LAN industry is intensely competitive and is characterized by rapid
technological advances and evolving industry standards. The industry can be
significantly affected by new product introductions, increased product
capabilities, and improvements in the relative price and performance of
networking products, as well as by the market activities of industry
participants. Olicom's competition in the market for network interconnection
products is primarily derived from other vendors and manufacturers of LAN
products (such as IBM, Madge and 3Com).
IBM is both the dominant supplier of Token Ring network products and an
established vendor of computer and networking systems and products to a
substantial number of existing and potential end-users of Olicom products. As
a result, Olicom believes that, in order to compete successfully in the market
to Token Ring network products, Olicom's products and systems must have more
features, greater functionality and performance, and/or lower prices than those
offered by IBM. In addition, from time to time IBM establishes strategic
working relationships with independent networking vendors relating to IBM's
long-term product development programs. If IBM were to select, on a
preferential basis, one or more of Olicom's competitors for such relationships,
Olicom's business, financial condition or results of operations could be
materially and adversely affected.
The principal competitive factors in the markets served by Olicom
include product quality and functionality, compatibility, interoperability,
performance, reliability, product support, customer satisfaction, price and
vendor reputation. While Olicom believes that it has competed effectively to
date, competition in the industry is likely to intensify as current competitors
expand their product lines and new companies enter the market.
An increase in competition could have a material adverse effect on
Olicom's business, financial condition or results of operations because of
price reductions and/or loss of market share. There can be no assurance that
Olicom will be able to compete successfully in the future with these existing
or potential competitors. Olicom believes that price competition has been
increasing and will continue to increase. Such price competition is the
result, in part, of price decreases announced by IBM and other competitors on
competitive products, as well as the success of Olicom and its competitors in
successfully engineering cost reductions into their products and the entrance
of new competitors into the market. Olicom's ability to compete successfully
with current and potential competitors will depend to a significant extent on
its ability to continue developing technologically superior products and to
adapt to changes in the marketplace. There can be no assurance that price
competition will not have a material adverse effect on Olicom's business,
financial condition or results of operation.
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<PAGE> 121
LASAT COMMUNICATIONS
Lasat became a majority-owned subsidiary of Olicom during the first
quarter of 1996. Lasat's principal products include desktop modems and
PC-Card modems for mobile computers. Lasat also produces modems for ISDN-based
communication.
Lasat markets and sells its products through carefully targeted
indirect distribution channels that include distributors, OEMs and co-branding
agreements with Internet service providers. Lasat is currently developing new
products and enhancements to existing products, to further improve performance,
increase price competitiveness, assure continued interoperability, and increase
market share.
Lasat outsources its entire production volume, which are manufactured
to meet Lasat specifications on a turnkey basis in fully automated,
high-quality production lines utilizing Surface Mounting Technology techniques.
The modem industry is intensely competitive and is characterized by
rapid technological advances and evolving industry standards. The industry can
be significantly affected by new product introductions, increased product
capabilities, and improvements in the relative price and performance of modem
products, as well as by the market activities of industry participants.
Lasat's competition is primarily derived from other vendors and manufacturers
of modem products (including U.S. Robotics among others).
PROPRIETARY RIGHTS
Olicom does not hold any patents and relies upon a combination of
copyright and trade secret laws to establish and maintain proprietary rights in
its products. There can be no assurance that such measures are or will be
adequate to protect Olicom's proprietary technology. Although Olicom believes
that its products and technology do not infringe the proprietary rights of
others, and Olicom does not have any knowledge that its products infringe the
proprietary rights of any third parties, there can be no assurance that third
parties will not assert infringement claims in the future or that such claims
will not be successful.
In addition, Olicom generally enters into confidentiality agreements
with its customers, suppliers and industry partners, and limits access to
sensitive information. Despite these precautions, it may be technologically
possible for competitors of Olicom to "reverse engineer" or otherwise obtain
information regarding aspects of Olicom's products that Olicom regards as
proprietary. The laws of some foreign countries in which Olicom sells or may
sell its products do not protect Olicom's proprietary rights in its products to
the same extent as do the laws of the Kingdom of Denmark and/or the United
States.
Olicom believes that, due to the rapid pace of innovation within the
LAN industry, factors such as the technological and creative skills of its
personnel and ongoing product support are as important in establishing and
maintaining a leadership position within the industry as are the various legal
protections of its technology.
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<PAGE> 122
Certain technology used in Olicom's products is licensed, generally on
a non-exclusive basis, by Olicom from third parties. These license agreements
generally require Olicom to pay royalties and to fulfill confidentiality
obligations in order to maintain the licenses. Olicom has entered into a
non-exclusive license agreement under certain patents relating to Token Ring
technology that were issued to Olaf Soderblom in the United States and a number
of foreign countries, and have been assigned to Willemijn Houdstermaastschappij
BV. During 1996, Olicom settled litigation commenced by Olicom against
Willemijn regarding the license agreement and its obligations thereunder.
TRADEMARK AGREEMENT
The trademark "Olicom" (the "Trademark") is a registered trademark of
Olivetti S.p.A., which has granted Olicom a worldwide, royalty-free license to
use the Trademark pursuant to a Trademark Agreement effective September 2, 1992.
During such period as Olicom is the licensee of the Trademark and for a period
of one year after any termination of the license thereof, Olivetti S.p.A has
agreed not to use itself or grant to a third party any rights to use the
Trademark on products of the type manufactured or marketed by Olicom. The
initial term of the license was three years, and the license automatically
renews on a yearly basis, unless either party gives the other 12 months' notice
of termination. In the event that the license of the Trademark were terminated,
Olicom would be required to change its name and cease using the Trademark on its
products. A change in Olicom's name and the creation of a new trademark could
involve significant expense and the possibility of customer confusion, which in
turn could have a material adverse effect on Olicom's business, financial
condition or results of operations.
EMPLOYEES
As of January 1, 1997, Olicom employed or retained (as employees or
independent contractors) approximately 480 persons, including 195 in sales and
marketing, 115 in product research and development, 90 in operations/production
including quality assurance, and 80 in administration and finance Of these
employees and independent contractors, approximately 125 were located in the
United States, 50 were located in Olicom's offices in Europe, South Africa,
Singapore and in Australia, and the remainder were located in Denmark.
Approximately 60 persons of the 480 were employed by Lasat.
None of Olicom's employees is represented by a labor union. Olicom has
not experienced any work stoppages and considers its relations with its
employees to be good.
Competition in the recruiting of highly-qualified personnel in the
computer and communications industry is intense. Olicom believes that its
future success will depend, in part, on its continued ability to hire, motivate
and retain qualified management, marketing and technical personnel. To date,
Olicom has not experienced any difficulty in attracting and retaining qualified
employees.
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<PAGE> 123
Olicom has experienced significant growth in the past, which has
required that Olicom continue to improve its operational and financial systems,
and train, motivate and manage its employees. If management is unable to
manage Olicom's growth effectively, or if the productivity of its sales force
falls below expectations, Olicom's business, financial condition or results of
operations could be materially and adversely affected. There can be no
assurance that Olicom will be able to sustain growth.
OLICOM SHARE INCENTIVE PLANS
At April 1, 1997, Olicom had issued warrants and options to its
employees and employees of Olicom Americas to purchase an aggregate of 663,200
shares of Olicom Common Stock under Olicom's Share Incentive Plans. The
exercise price for such warrants and options ranges from $5.98 to $12.00. Such
warrants and options terminate on various dates through May 1, 2001. At April
1, 1997, warrants and options to purchase an aggregate of 160,000 shares of
Common Stock were held by the directors and executive officers of Olicom.
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<PAGE> 124
PROPERTIES
Olicom's principal administrative, marketing, product development,
support facilities, and training center, as well as a warehouse and
distribution facility, are located in a modernized three-story building and a
newly-constructed adjacent building in Lyngby in the greater Copenhagen area.
where Olicom presently leases a total of approximately 125,000 square feet of
floor space as its international headquarters.
Olicom leases its international headquarters from a third-party lessor
pursuant to a lease that may be terminated by the Lessor or Olicom commencing
in 2008, upon six months' notice, and which provides for increases in annual
rentals based on the increase in the Danish net price index, with an agreed
annual minimum increase of 2.5%. An immediately adjacent building that forms
part of Olicom's headquarters complex is leased from a third party lessor
pursuant to a lease that may be terminated by either party commencing in 2006,
upon 12 months' notice, and which provides for an increase in annual rental
payments based on the increase in the Danish net price index, with an agreed
annual minimum increase of 2.5%. During 1996, Olicom leased additional space
adjacent to its international headquarters from a third party lessor pursuant
to a lease that may be terminated by either party commencing in 2006, upon 12
months' notice, and which provides for an increase in annual rental payments
based on the increase in the Danish net price index, with an agreed annual
minimum increase of 2.5%. Olicom believes that its existing facilities are
adequate for its current needs. Olicom believes that suitable space is
available in the Copenhagen area and that the three facilities should provide
sufficient additional space for foreseeable future expansion in Copenhagen.
Olicom currently leases an aggregate of approximately 29,000 square
feet of office and warehouse space in metropolitan Plano, Texas, to support
North and South American sales and marketing. Furthermore, Olicom leases
office space in the following cities to support sales and marketing in Europe:
Milan, Italy; Middlesex, U.K.; Munich and Morfelden, Germany; 's-Hertogenbosch,
the Netherlands; Nanterre, France; Madrid, Spain; and Vienna, Austria. Olicom
also leases space for sales offices in Singapore; Tokyo, Japan; Sydney,
Australia, and Sandton, South Africa. Olicom believes that suitable additional
space will be available in such locations as required.
LEGAL PROCEEDINGS
From time to time, Olicom is involved in litigation relating to claims
arising out of its operations in the normal course of business. As of May __,
1997, Olicom was not a party to any legal proceedings, the adverse outcome of
which, in management's opinion, would have a material adverse effect on
Olicom's results of operations or financial position. See also "Olicom A/S --
Business: Proprietary Rights."
In March 1995, Olicom settled a consolidated class action lawsuit
captioned In Re Olicom Securities Litigation, case no. 3-94-CV-0511-D, filed in
the United States District Court for the Northern District of Texas, alleging
violations of United States securities laws. The Stipulation
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<PAGE> 125
of Settlement acknowledged that Olicom denied liability. The Olicom
Consolidated Financial Statements at December 31, 1994, included a charge of
$4.2 million, net of insurance coverage, in connection with this settlement
(see note 12 to the Olicom Consolidated Financial Statements). On August 30,
1996, the court entered a final judgment of dismissal with prejudice with
respect to the consolidated action.
SELECTED FINANCIAL DATA
The following table sets forth certain financial information with
respect to Olicom for the five years ended December 31, 1996. This information
should be read in conjunction with "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and the Olicom Consolidated
Financial Statements and related notes included elsewhere herein.
Five-Year Comparison of Selected Financial Data
(In Thousands, Except Per Share Amounts)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------------------------
1992 1993 1994 1995 1996
----------- ----------- ----------- ---------- ----------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales $ 68,411 $ 93,927 $ 113,604 $ 127,469 $ 168,228
Cost of sales 38,717 52,887 61,198 65,191 95,236
----------- ----------- ----------- ---------- ----------
Gross profit 26,694 41,040 52,406 62,278 72,992
----------- ----------- ----------- ---------- ----------
OPERATING EXPENSES:
Sales and marketing 9,060 13,244 23,783 31,660 40,496
Research and development 4,484 5,870 7,531 9,193 12,852
Purchased research and development 1,000 0 0 0 0
General and administrative 1,893 3,094 4,440 5,662 6,848
Acquisition-related expenses 0 0 0 0 3,787
Special charge regarding mgmt. change 0 0 0 0 1,402
----------- ----------- ----------- ---------- ----------
Total operating expenses 16,437 22,208 35,754 46,515 65,385
----------- ----------- ----------- ---------- ----------
INCOME FROM OPERATIONS 13,257 18,832 16,652 15,763 7,607
Interest income, net 276 1,928 2,462 3,297 1,531
Foreign currency gains (losses) (412) 27 19 (31) 675
</TABLE>
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<PAGE> 126
<TABLE>
<S> <C> <C> <C> <C> <C>
Related party gain on sale of investment -- -- -- -- 2,878
Settlement of litigation 0 0 (4,200) 0 0
----------- ----------- ----------- ---------- ----------
INCOME BEFORE INCOME TAXES 13,121 20,787 14,933 19,029 12,691
Provision for income taxes 4,777 7,340 5,026 6,223 4,727
----------- ----------- ----------- ---------- ----------
NET INCOME BEFORE CHANGE IN
ACCOUNTING METHOD 8,344 13,447 9,907 12,806 7,964
Minority interest -- -- -- -- 539
Cumulative effect of change in
accounting methods, net of taxes 0 0 161 0 0
----------- ----------- ----------- ---------- ----------
NET INCOME $ 8,344 $ 13,447 $ 10,068 $ 12,806 $ 7,425
=========== =========== =========== ========== ==========
EARNINGS PER SHARE $ 0.67 $ 0.85 $ 0.66 $ 0.87 $ 0.50
=========== =========== =========== ========== ==========
Cash dividends declared per share (1) $ 0.06 -- -- -- --
WEIGHTED AVERAGE SHARES OUTSTANDING 12,475 15,873 15,298 14,748 14,786
=========== =========== =========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------------------------------------
1992 1993 1994 1995 1996
----------- ----------- ----------- ---------- ----------
(in thousands)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital $ 53,237 $ 68,481 $ 66,427 $ 78,600 $ 86,407
Total Assets 84,690 90,240 108,917 127,327 127,924
Current portion of long-term
obligations 97 7 0 0 0
Long-term obligations, less current
portion 323 152 0 0 0
Total shareholders' equity 62,117 77,885 78,191 90,127 97,509
</TABLE>
- -----------------
(1) In June, 1992, Olicom paid a dividend of DKK 0.3509 ($0.06) per Common
Share.
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<PAGE> 127
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
With the exception of historical information, certain of the matters
discussed in this report contain trend analysis and other forward-looking
statements within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act. Such forward-looking statements involve risks and
uncertainties, including, without limitation, the risks and uncertainties
described under the caption "Risk Factors," together with such risks and
uncertainties as are described in registration statements, reports and other
documents filed by Olicom from time to time with the Commission pursuant to the
Securities Act and the Exchange Act. Such risks and uncertainties could cause
Olicom's actual consolidated results for 1997 and beyond to differ materially
from those expressed in any statements made by, or on behalf of, Olicom.
The following discussion should be read in conjunction with the Olicom
Consolidated Financial Statements and related notes.
OVERVIEW
Olicom's wholly-owned subsidiaries include Olicom Ventures A/S
(Connect International A/S) ("Olicom Ventures"), Olicom Finance Limited and
Olicom Trading A/S. Olicom Americas is a wholly-owned subsidiary of Olicom
Trading A/S, and Olicom's interest in Lasat is held by Olicom Ventures.
Olicom's functional currency is the U.S. dollar. Olicom prepares its
financial statements in U.S. dollars and in accordance with accounting
principles generally accepted in the United States. References herein to "U.S.
dollars" or "$" are references to United States currency, and references to
"Danish kroner," "kroner" or "DKK" are references to Danish currency.
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain
financial data as percentages of Olicom's net sales. Olicom believes that
period to period comparisons of its financial results are not necessarily
meaningful and should not be relied upon as an indicator of future performance.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------
1994 1995 1996
----- ----- -----
<S> <C> <C> <C>
Net sales . . . . . . . . . . . . . . . . . . . . . . 100.0% 100.0% 100.0%
Cost of sales . . . . . . . . . . . . . . . . . . . . 53.9 51.1 56.6
----- ----- -----
Gross profit . . . . . . . . . . . . . . . . . . 46.1 48.9 43.4
Operating expenses:
Sales and marketing . . . . . . . . . . . . . . . 20.9 24.8 24.1
Research and development . . . . . . . . . . . . 6.6 7.2 7.6
Purchased research and development . . . . . . . -- -- --
General and administrative . . . . . . . . . 3.9 4.4 4.1
Acquisition-related expenses -- -- 2.3
</TABLE>
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<PAGE> 128
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------
<S> <C> <C> <C>
Special charge regarding management change . . -- -- 0.8
----- ----- -----
Total operating expenses . . . . . . . . . . . 31.4 36.4 38.9
----- ----- -----
Income from operations . . . . . . . . . . . . . . . . 14.7 12.5 4.5
Interest income, net . . . . . . . . . . . . . 2.2 2.4 0.9
Foreign currency gains (losses) -- -- 0.4
Related party gain on sale of investment . . . -- -- 1.7
Settlement of litigation . . . . . . . . . . . (3.7) -- 1.7
----- ----- -----
Income before income taxes . . . . . . . . . . . . . . 13.2 14.9 7.5
Provision for income taxes . . . . . . . . . . 4.4 4.9 2.8
----- ----- -----
Net income before change in
accounting method and minority interest in
income of consolidated subsidiary . . . . . . 8.8 10.0 4.7
Minority interest in income of consolidated
subsidiary . . . . . . . . . . . . . . . . . . -- -- 0.3
Cumulative effect of change in accounting
methods, net of taxes . . . . . . . . . . . . 0.1 -- 0.3
----- ----- -----
Net income . . . . . . . . . . . . . . . . . . . . . . 8.9% 10.0% 4.4%
===== ===== =====
</TABLE>
YEARS ENDED DECEMBER 31, 1996 AND 1995
Net Sales. Net sales increased from $127.5 million in 1995 to $168.2
million in 1996. Net sales in the North and South America (the "Americas")
increased from $52.2 million in 1995 to $62.1 million in 1996, while sales
outside of the Americas increased from $75.3 million in 1995 to $106.7 million
in 1996. The increase in net sales in 1996 was principally due to the
inclusion since January 1, 1996, of the net sales (almost exclusively in
Europe) of Lasat, as well as increases in sales of Olicom's network interface
cards. In addition to these factors, the increase in Olicom's net sales during
1996 resulted from greater market penetration across most of Olicom's
geographic regions, as well as to increased unit sales to a broad range of
customers and expansion of Olicom's distribution channels, as a result in
substantial part of refinements in marketing and product strategies implemented
by Olicom. As a result thereof, Olicom brand-name sales (which increased 28%
and 18% during 1995 and 1996, respectively) constituted 79% of net sales during
fiscal year 1996, Lasat brand-name sales constituted 15% of net sales, while
sales to OEMs (which decreased 43% in 1995 and 37% in 1996) accounted for 6% of
net sales. This trend reflects a continuation of Olicom's emphasis on
brand-name sales, as such sales accounted for 89% of net sales in 1995, while
sales to OEMs constituted 11% of net sales during the same period. While Olicom
is unable to predict the relative mix of brand-name and OEM sales during 1997,
it is possible that sales of private label products to OEMs may continue to
decrease during 1997.
During 1996, Olicom's revenues were favorably influenced by several
other factors, including the continued success of Olicom's main products, Token
Ring NICs, and in general,
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<PAGE> 129
the continued demand for LANs and the networking and internetworking products
marketed by Olicom. During the year, Olicom continued to increase unit sales of
NICs.
Sales of infrastructure products, which include switches, intelligent
HUBS and bridge products, decreased from $18.5 million in 1995 to $17.2 million
in 1996. Sales of all adapter card products represented 85.5% and 74.4% of net
sales in 1995 and 1996, respectively. Olicom anticipates that a significant
portion of its revenues during 1997 will continue to be derived from sales of
NICs.
Sales to a single distributor were $12.8 million, or 7.6% of net
sales, in 1996, compared to $13.9 million, or 10.9% of net sales during 1995.
Gross Profit. Gross profit increased by 17.2%, from $62.3 in 1995 to
$73.0 million in 1996, and decreased as a percentage of net sales from 48.9% in
1995 to 43.4% in 1996. The decrease in gross margins was primarily due to the
inclusion of Lasat in the results of Olicom's operations, as Lasat operates at
a lower average gross margin than Olicom has historically experienced.
However, gross margins were favorably impacted by cost reductions resulting
primarily from cost improved product designs, volume-based component purchasing
efficiencies, large-scale purchasing and manufacturing, and continued
reductions in other material costs. Gross margins continued to benefit from a
higher percentage of sales to distributors, on which Olicom typically realizes
higher margins than on sales to OEMs.
Olicom believes that gross margins may decline in the future, as
Olicom's products face increased price pressures and to the extent that
Olicom's product mix shifts toward lower margin Ethernet and modem products.
Olicom will continue to seek reductions in manufacturing costs to enable it to
remain price competitive and to lessen the impact that price reductions may
have on gross margins.
Sales and Marketing. Sales and marketing expenses increased from
$31.7 million in 1995 to $40.5 million in 1996, but decreased as a percentage
of net sales from 24.8% in 1995 to 24.1% in 1996. The increase in the amount
of such expenses during 1996 was primarily due to increased marketing
activities in the United States, Europe and the Far East, including increased
travel, office and personnel expenses and due to the inclusion of Lasat's
operations within the Olicom group. During the year, Olicom committed
significant additional resources to support its direct sales organization and
expand its marketing organization and programs both in the United States and in
Europe.
Research and Development. Research and development expenses increased
from $9.2 million in 1995 to $12.9 million in 1996, and increased as a
percentage of net sales from 7.2% in 1995 to 7.6% in 1996. The increase in
such expenses was primarily attributable to increased personnel associated with
enhancements of current products and to expenditures related to new product
development, including ATM and LAN switching. The inclusion of Lasat's
operations within the Olicom group also contributed to higher research and
development expenses.
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<PAGE> 130
Olicom considers research and development expenditures to be critical
to future net sales and intends to continue these expenditures at a level that
constitutes a significant percentage of net sales.
All of Olicom's research and development expenses have been charged to
operations as incurred, net of a $953,000 subsidy received from a Danish
government agency in support of ATM and LAN switching activities. The subsidy
will be repaid in the form of a royalty if and when revenue from such switching
products is realized.
General and Administrative. General and administrative expenses
increased from $5.7 million in 1995 to $6.8 million in 1996, but decreased as a
percentage of net sales from 4.4% in 1995 to 4.1% in 1996. These increased
expenses reflected the inclusion of Lasat's operations within the Olicom group,
together with the expense of salaries for additional personnel and costs
related to increases in volume.
Acquisition-Related Expenses and Other Charges and Income. During the
first quarter of 1996, Olicom purchased an additional 40% interest in Lasat,
which resulted in Olicom holding 75% of Lasat's share capital. During 1996
Olicom also made a subordinated convertible loan to a Danish ISDN hardware and
software development company. For fiscal 1996, a $3.8 million non-recurring
charge was taken as a result of the write-off of in-process engineering and
development projects of Lasat, other transaction-related expenses in connection
with these investments and the creation of a reserve with respect to the
convertible loan.
Also during 1996 Olicom implemented certain management changes
primarily in its U.S. operations, which resulted in a special charge of $1.4
million.
During 1996 Olicom also completed the sale of its minority holding in
Contex A/S to Nilex ApS, a significant shareholder in Olicom and affiliate of
its managing director, resulting in a gain of $2.9 million net of taxes. See
"Interest of Management in Certain Transactions -- Contex A/S."
Income taxes. Olicom's effective income tax rate increased from
32.7% during 1995 to 37.2% for 1996. The increase in the effective tax rate was
primarily due to the fact that charges relating to acquisitions were not
deductible for tax purposes.
YEARS ENDED DECEMBER 31, 1995 AND 1994
Net Sales. Net sales increased from $113.6 million in 1994 to $127.5
million in 1995. The growth in net sales in 1995 was principally the result of
increases in sales of NICs, as well as increased sales of Olicom's intelligent
hub products. Sales of infrastructure products increased from $11.0 million in
1994 to $18.5 million in 1995, representing 9.7% and 14.5% of net sales in 1994
and 1995, respectively. Sales of all adapter card products represented 90.3%
and 85.5% of net sales in 1994 and 1995, respectively. In addition to these
factors, the increase in Olicom's net sales during 1995 resulted from greater
market penetration across all
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<PAGE> 131
of Olicom's geographic regions, except the U.S., where sales declined 8.7% from
$57 million in 1994 to $52 million in 1995.
The growth in sales in 1995 was due primarily to increased unit sales
to a broad range of customers and expansion of Olicom's distribution channels,
as a result in substantial part of marketing and product strategies previously
implemented by Olicom that placed greater emphasis on brand-name sales. As a
result of the success of this marketing program, brand-name sales (which
increased 84% and 28% during 1994 and 1995, respectively) constituted 89% of
net sales during fiscal year 1995, while sales to OEMs (which decreased 48% in
1994 and 43% in 1995) accounted for 11% of net sales. This trend reflected a
continuation of Olicom's increased emphasis on brand-name sales, as such sales
accounted for 79% of net sales in 1994, while sales to OEMs constituted 21% of
net sales during the same period.
During 1995, Olicom's revenues were favorably influenced by many other
factors, including the continued success of Olicom's main products, Token Ring
NICs, and in general, the continued demand for LANs and the networking and
internetworking products marketed by Olicom. During the year, Olicom continued
to increase unit sales of NICs.
During 1995, sales to a single OEM customer were $7.0 million, or 5.5%
of net sales, compared to $13.4 million, or 11.8% of net sales, during 1994.
Sales to one single distributor were $13.9 million, or 10.9% of net sales, in
1995, compared to $6.7 million, or 5.9% of net sales during 1994.
Gross Profit. Gross profit increased by 18.8%, from $52.4 in 1994 to
$62.3 million in 1995, and increased as a percentage of net sales from 46.1% in
1994 to 48.9% in 1995. The improvement in gross margin was due to cost
reductions resulting primarily from cost improved product designs, volume-based
component purchasing efficiencies, large-scale purchasing and manufacturing,
and continued reductions in other material costs. Moreover, a higher
percentage of sales during 1995 were to distributors, on which Olicom typically
realizes higher margins than on sales to OEMs.
Sales and Marketing. Sales and marketing expenses increased
substantially from $23.8 million in 1994 to $31.7 million in 1995, and
increased as a percentage of net sales from 20.9% in 1994 to 24.8% in 1995.
The significant increase in these expenses during 1995 was primarily due to
increased marketing activities in the United States, Europe and the Far East,
including increased travel, office and personnel expenses. During the year,
Olicom committed significant additional resources to support its direct sales
organization and expand its marketing organization and programs both in the
United States and in Europe.
Research and Development. Research and development expenses increased
from $7.5 million in 1994 to $9.2 million in 1995, and increased as a
percentage of net sales from 6.6% in 1994 to 7.2% in 1995. The increase in
such expenses was primarily attributable to increased personnel associated with
enhancements of current products and to expenditures related to new product
development, including ATM and LAN switching.
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<PAGE> 132
All of Olicom's research and development expenses have been charged to
operations as incurred, net of a $598,000 subsidy received from a Danish
government agency in support of ATM and LAN switching activities. The subsidy
will be repaid in the form of a royalty if and when revenue from such switching
products is realized.
General and Administrative. General and administrative expenses
increased from $4.4 million in 1994 to $5.7 million in 1995, and increased as a
percentage of net sales from 3.9% in 1994 to 4.4% in 1995. These increased
expenses reflected salaries for additional personnel and costs related to the
growth in Olicom's revenues.
Income Taxes. Olicom's effective income tax rate decreased from 33.7%
during 1994 to 32.7% for 1995.
RECENT DEVELOPMENTS
The following tables shows certain information relating to Olicom's
results of operations for the three months ended March 31, 1996 and 1997,
respectively. This information is unaudited, but has been prepared on the same
basis as the audited financial statements appearing elsewhere in this Joint
Proxy Statement/Prospectus, and in the opinion of Olicom's management, includes
all adjustments (consisting only of normal recurring adjustments) necessary for
a fair presentation of the results of operations for such periods. This data
should be read in conjunction with the audited financial statements of Olicom,
related notes and other financial information appearing elsewhere in this Joint
Proxy Statement/Prospectus. The operating results for any quarter are not
necessarily indicative of results for any future period.
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
--------------------------------
1996 1997
---------- ----------
(in thousands, except per share data)
<S> <C> <C>
Net sales $ $
Cost of sales
Total operating expenses
Income from operations
Net income $ $
Earnings per share $ $
</TABLE>
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<PAGE> 133
LIQUIDITY AND CAPITAL RESOURCES
During 1996, Olicom funded its operations with cash from operations.
Olicom's available cash and short-term investments totaled $51.6 million as of
December 31, 1996, and represented 40.3% of total assets.
Olicom had unsecured line of credit facilities for an aggregate amount
of $11.0 million at December 31, 1996, of which no advances were outstanding at
such date. These facilities support foreign currency hedging and working
capital requirements.
The increase during 1996 in net cash from operating activities of
$18.5 million was primarily due to cash from net income, a significant decrease
in inventory of $12.4 million and decreases in accounts receivable of $2.6
million. Current liabilities were reduced by $7.0 million. Management believes
that the reductions in accounts receivable and in inventories were the results
of improved operating procedures.
Olicom believes that cash presently at its disposal and cash generated
from operations will be sufficient to finance Olicom's operations and currently
projected capital expenditures through at least 1997. Capital expenditures,
less proceeds from sale of property, equipment and businesses, during 1995 and
1996 were $1.1 and $1.0 million, respectively. Capital expenditures, other than
the purchase of an additional interest in Lasat, were associated with the
expansion of sales and marketing, research and development and general and
administrative activities including a new integrated management information
system. At December 31, 1996, Olicom had no material commitments for capital
expenditures. See "Subsequent Event".
During the first quarter of 1996, Olicom purchased an additional 40%
interest in Lasat. The purchase price for this shareholding, net of cash
acquired, was $2.5 million.
To date, inflation has not had a material impact on Olicom's financial
results. Olicom presently intends to retain any earnings for use in its
business and, therefore, does not anticipate paying any cash dividends in the
foreseeable future. If and when dividends are paid, such payment will be made
in kroner.
SUBSEQUENT EVENT
On March 20, 1997, Olicom entered into an Agreement and Plan of
Reorganization under which Olicom would exchange each outstanding share of
CrossComm Common Stock for $5.00 in cash, 0.2667 shares of Olicom Common Stock
and Warrants to acquire 0.1075 shares of Olicom Common Stock at an exercise
price of $19.74 per full share of Olicom Common Stock. Pursuant to the Merger
Agreement, Olicom expects to issue approximately 2,700,000 shares of its common
stock, warrants to purchase approximately 1,100,000 additional shares of Olicom
Common
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<PAGE> 134
Stock, and in addition, to issue options to purchase approximately 575,000
additional shares of Olicom Common Stock. The number of shares Olicom Common
Stock may be adjusted upward or downward under certain circumstances, based on
the high and low sales prices for Olicom Common Stock during a period prior to
Closing. The Merger, if consummated, will be accounted for using purchase
accounting, and Olicom anticipates recognizing a significant non-recurring
expense aggregating $36,250,000 during the second quarter of 1997 in order to
write off in-process research and development. The foregoing is a preliminary
estimate of expense and therefore subject to change. There can be no assurance
that Olicom will not incur additional charges to reflect costs associated with
the Merger. The Merger is subject to approval by the shareholders of both Olicom
and CrossComm, as well as other conditions, and if such approvals are obtained
and the other conditions are satisfied, the transaction is expected to become
effective in June, 1997. Olicom anticipates that the cash portion of the
consideration (net of acquired liquid assets) will be funded from available
working capital. See "Risk Factors -- Risks Relating to the Merger" for a
discussion of numerous issues that must be successfully managed to obtain the
anticipated benefits from the Merger. The inability of management to
successfully integrate the operations of Olicom and CrossComm pursuant to the
Merger could have an adverse effect on the business and results of operations of
the combined company.
MANAGEMENT OF OLICOM
The following table and discussion provides certain information about
the current directors, nominees for director and executive officers of Olicom:
<TABLE>
<CAPTION>
Name Age Position with Olicom
- ---- --- --------------------
<S> <C> <C>
Jan Bech 57 Chairman of the Board
Bo F. Vilstrup 54 Deputy Chairman of the Board
Lars Stig Nielsen 55 Managing Director, Chief
Executive Officer and Member
of the Board of Directors
Kurt Anker Nielsen 51 Member of the Board of Directors
Frank G. Petersen 64 Member of the Board of Directors
Michael J. Peytz 40 Member of the Board of Directors
Anders Knutsen 49 Nominee to the Board of Directors
Boje Rinhart 48 Chief Financial Officer
J. Michael Camp 47 President and Chief Executive Officer
of Olicom Americas
</TABLE>
Mr. Bech has been Chairman of the Olicom Board since 1985. Mr. Bech
previously served as a Vice-President of Ing. C. Olivetti & C., S.p.A., with
responsibility for the commercial activities of Olivetti in Scandinavia (from
1985 to 1992).
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<PAGE> 135
Mr. Vilstrup has been Deputy Chairman of the Board since 1992. He is
an attorney and has been a partner in the law firm of Lett, Vilstrup &
Partnere, Copenhagen, Denmark, since 1972.
Mr. Lars Stig Nielsen is the founder of Olicom and has held the
positions of Managing Director, Chief Executive Officer and member of the Board
of Directors since 1985.
Mr. Kurt Anker Nielsen, a director of Olicom since 1993, has served as
Chief Financial Officer (since 1985) and Deputy Managing Director (since 1996)
of Novo Nordisk A/S, a biotechnology company that develops, produces and
markets pharmaceutical and biochemical products.
Mr. Petersen, a director of Olicom since 1996, was employed by IBM from
1957 until his retirement in 1994. At the time of his retirement, he served as
Chairman and President of IBM Nordic AB, with responsibility for IBM's
commercial activities in Scandinavia.
Mr. Peytz, a director of Olicom since 1996, has served as Division
Director for Alcatel Kirk A/S (since 1994), with responsibility for Alcatel's
space electronics business in Denmark. He previously was a management
consultant with McKinsey & Company (from 1985 to 1994).
Mr. Knutsen, a director nominee, has served as Managing Director and
Chief Executive Officer of Bang & Olufsen A/S (since 1991), a company that
develops and markets audio and visuals products.
Mr. Rinhart has been Olicom's Chief Financial Officer since 1995.
Prior to joining Olicom, Mr. Rinhart was a partner in the management consulting
firm of Hjorth & Rinhart (from 1986 to 1995).
Mr. Camp has been the President and Chief Executive Officer of Olicom
Americas since May, 1996. Prior to joining Olicom Americas, Mr. Camp served as
a Vice-President and General Manager of the Multimedia Business Applications
Division at Northern Telecom Ltd. (from 1993 to 1996). Prior thereto, he
served as a Vice-President at Northern Telecom, where he served as General
Manager of its Data Networks Division (from 1992 to 1993), and as General
Manager of its Network Integration Division (from 1991 to 1992). Prior
thereto, he served as Director, Marketing of the Data Communications Systems
Division at Northern Telecom (from 1989 to 1991).
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<PAGE> 136
There are no family relationships among directors and executive
officers of Olicom or its subsidiaries.
The business of Olicom is managed under the direction of the Board of
Directors. the Olicom Articles provide for a board of directors of four to
eight members, to be elected by the stockholders to serve one-year terms. In
addition, directors may be elected for four-year terms by the employees of
Olicom and its Danish subsidiaries, in accordance with Danish law. The
statutory rights of the employees of Olicom and its Danish subsidiaries to
representation on the Olicom Board have not been exercised to date. Officers
of Olicom serve at the discretion of the Olicom Board.
Meetings and Committees of the Olicom Board. The Olicom Board meets
during Olicom's fiscal year to review significant developments affecting Olicom
and to act on matters requiring board approval. There were 11 meetings of the
Olicom Board during fiscal year 1996.
The Olicom Board has established an Audit Committee to assist it in the
discharge of its responsibilities. The Audit Committee recommends to the
Olicom Board a firm or firms of certified public accountants to conduct audits
of the accounts and affairs of Olicom and monitors the performance of such
firm, reviews accounting objectives and procedures of Olicom (including matters
relating to internal control systems) and the findings and reports of the
independent certified public accountants, and makes such reports and
recommendations to the Board as it deems appropriate. Olicom's Audit Committee
is comprised of three non-employee directors: Messrs. Bech (Chairman), Vilstrup
and Kurt Anker Nielsen. The Annual General Meeting of Olicom's stockholders
appoints Olicom's auditors.
The Olicom Board does not have a standing compensation committee, nor
does it have a nominating committee, or any other committee performing similar
functions. The functions customarily attributable to a compensation committee
and a nominating committee are performed by the Olicom Board as a whole.
Compensation of Directors and Executive Officers. An aggregate of
approximately $900,000 was paid by Olicom to its directors and executive
officers as a group (eight persons) for services rendered during fiscal year
1996 in all capacities, and approximately $560,000 was paid by Olicom during
fiscal year 1996 to its senior management, consisting of Olicom's Managing
Director and its Chief Financial Officer registered with the Commercial and
Companies Agency of the Kingdom of Denmark.
For fiscal year 1997, Olicom has proposed that nonmanagement directors
receive directors' fees as discussed above under "The Olicom Meeting -- Matters
to Be Considered at the Olicom Meeting: Proposal 6 -- Directors' Fees."
Olicom has entered into a service agreement (the "Employment
Agreement") with Mr. Lars Stig Nielsen, Olicom's Managing Director and a member
of the Olicom Board. The Employment Agreement does not contain a term, but is
terminable by Olicom on 24 months'
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<PAGE> 137
notice and is terminable by Mr. Nielsen on six months' notice. In the event
that either party to the Employment Agreement commits a gross breach of
contract, the other party may immediately terminate the Employment Agreement.
The Employment Agreement prohibits Mr. Nielsen from competing with Olicom for a
period of 18 months after termination of the Employment Agreement, except in
the event that the Employment Agreement is terminated by Olicom or Mr. Nielsen
terminates the Employment Agreement as a result of the gross breach thereof by
Olicom.
Indemnification Agreements. Olicom has entered into Indemnification
Agreements with its directors, executive officers and certain key employees.
Each such Indemnification Agreement provides for indemnification of Olicom's
directors, executive officers and certain key employees to the fullest extent
permitted by the Companies Act. Additionally, Olicom Americas has entered into
Indemnification Agreements with its directors (which include Messrs. Jan Bech,
Lars Stig Nielsen, Michael Camp, and Max Jensen), executive officers and
certain key employees. Each such Indemnification Agreement provides for
indemnification of the directors, executive officers and key employees of
Olicom Americas to the fullest extent permitted by the DGCL.
To the extent that the Board of Directors of Olicom or Olicom Americas
or their respective stockholders may in the future wish to limit or repeal the
ability of Olicom or Olicom Americas to indemnify directors, executive officers
and key employees, such repeal or limitation may not be effective as to
directors, executive officers and key employees who are parties to such
Indemnification Agreements, because their rights to full protection will be
contractually assured by the Indemnification Agreements. It is anticipated
that similar contracts may be entered into, from time to time, with future
directors, executive officers and key employees of Olicom and Olicom Americas.
CERTAIN TRANSACTIONS
International Headquarters. K/S Ulrikkenborg, a limited liability
partnership (the "Landlord"), was organized in 1992 by management and senior
employees of Olicom for the purpose of acquiring the real property and
improvements thereon that are presently leased by Olicom as its international
headquarters. The limited partners of the Landlord included Messrs. Lars Stig
Nielsen, Asbjorn Smitt, Kurt Nybroe-Nielsen (Olicom's former Deputy Managing
Director), Niels Jorgensen (Olicom's Vice President of Engineering), and Peter
Ryaa (Olicom's former Director of Finance).
During 1995, Olicom purchased from the Landlord the real property and
improvements thereon that comprised Olicom's headquarters for a consideration
of $10.5 million. Such consideration was based on valuations of the
headquarters received from independent appraisers. During 1995, Olicom sold
such real property and improvements to an unaffiliated public property
investment company for a purchase price of $10.7 million, and simultaneously
entered into a lease of the headquarters with such property investment company
that may be terminated by Olicom or the lessor commencing in 2008.
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<PAGE> 138
Residential Property. Olicom previously owned residential property
situated in a suburb of Copenhagen which it leased to Mr. Lars Stig Nielsen at
an annual rental approximately equal to Olicom's mortgage payments on the
property. The lease was not subject to termination by Olicom so long as Mr.
Nielsen remained its Managing Director. Pursuant to the lease, Mr. Nielsen had
the option to purchase the leased property commencing January 1, 1995, at a
price equal to the official valuation thereof. In December, 1995, Mr. Nielsen
exercised such option and purchased the property for DKK 3.16 million
(approximately $570,000), such amount being equal to the official valuation
thereof.
Contex A/S. Pursuant to a Share Purchase Agreement between Olicom and
Nilex Systems ApS dated January 23, 1996, Olicom transferred and assigned to
Nilex Olicom's minority interest in Contex A/S (the "Contex Interest"). The
purchase price for the Contex Interest was DKK 41,000,000 (approximately
$6,420,000), which resulted in a gain to Olicom of $2,900,000, net of taxes.
The purchase price for the Contex Interest was approved by a disinterested
majority of Olicom's Board of Directors, on the basis of an appraisal of the
value of the Contex Interest by an unaffiliated third party.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of April 1, 1997,
concerning the beneficial ownership of each current director of Olicom, each
executive officer of Olicom, and directors and executive officers of Olicom as
a group, and each stockholder in Olicom known to the management of Olicom to
own beneficially more than 5% of the outstanding shares of Olicom Common Stock:
<TABLE>
<CAPTION>
Name and Address Amount and Nature of Percent
of Beneficial Owner (1) Beneficial Ownership(2) of Class
- ----------------------- ----------------------- --------
<S> <C> <C>
The Lake Fund 2,394,201(3) 16.3%
Lars Stig Nielsen 2,066,330(4)(5) 14.0
Asbjorn Smitt 1,970,080(4) 13.4
Nilex Systems ApS 1,753,000(6) 11.9
Jan Bech 59,500(7) *
Boje Rinhart 29,250(8) *
Bo F. Vilstrup 29,200 *
Kurt Anker Nielsen 1,000 *
Frank G. Petersen 5,000 *
Michael J. Peytz 2,000 *
J. Michael Camp 16,250 *
All directors and executive
officers as a group
(consisting of 8 persons) 2,208,530(2)(3) 14.9
</TABLE>
- 115 -
<PAGE> 139
- ----------------
* Less than 1%
(1) The address of Mr. Nielsen is Nybrovej 114, DK-2800 Lyngby,
Denmark. The address of Mr. Smitt and Nilex Systems ApS ("Nilex") is Nordre
Strandvej 214, DK-3140 Aalsgaarde, Denmark. The address of The Lake Fund is
c/o Plevier Beleggingen B.V., Roemer Visschherplein 19, 2106 AG Heemmstede, The
Netherlands.
(2) Sole voting and investment power, unless otherwise indicated.
Percentages in the foregoing table are based on 14,701,695 shares of Olicom
Common Stock issued and outstanding as of April 2, 1997.
(3) Based on information set forth in a Schedule 13D, dated March
3, 1997, filed with the Securities and Exchange Commission by The Lake Fund.
(4) Includes 1,753,000 shares of Olicom Common Stock owned by
Nilex, as to which Messrs. Nielsen and Smitt have shared voting and investment
power. See Note 5.
(5) Includes 46,250 shares of Olicom Common Stock which may be
acquired pursuant to options exercisable within 60 days from the date hereof.
(6) Mr. Lars Stig Nielsen, Olicom's Managing Director, Chief
Executive Officer and a member of the Olicom Board, is an officer and director
of, and (through Eutronic Systems ApS ("Eutronic"), a corporation in which he
holds 70% of the share capital) a principal stockholder in, Nilex. Mr. Smitt
is an officer and director of, and (through Astronic ApS ("Astronic"), a
corporation in which he holds 70% of the share capital) a principal stockholder
in, Nilex. Eutronic is the holder of the share capital in Astronic (a 30%
interest) not owned by Mr. Smitt, and Astronic is the holder of the share
capital in Eutronic (a 30% interest) not owned by Mr. Nielsen.
(7) Includes 7,500 shares of Olicom Common Stock which may be
acquired pursuant to options exercisable within 60 days from the date hereof.
(8) Includes 18,750 shares of Olicom Common Stock which may be
acquired pursuant to options exercisable within 60 days from the date hereof.
(9) Includes 6,250 shares of Olicom Common Stock which may be
acquired pursuant to options exercisable within 60 days from the date hereof.
(9) Includes an aggregate of 78,750 shares of Olicom Common Stock
which may be acquired pursuant to options exercisable within 60 days from the
date hereof.
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<PAGE> 140
As of the close of business on April 3, 1997, Cede & Co., the nominee
of The Depository Trust Company, held of record 11,956,355 shares of Olicom
Common Stock, or 81.3% of the outstanding shares of Olicom Common Stock, all of
which were held for the accounts of member firms and institutions participating
in the facilities of The Depository Trust Company.
CROSSCOMM CORPORATION
BUSINESS
CrossComm develops, manufactures, markets and supports advanced
networking products. These products concurrently support bridging,
multi-protocol routing and high speed LAN switching functions and ATM
switching. CrossComm has marketed these products to customers transitioning
mission-critical business applications from legacy hierarchical computing
environments, typically dominated by IBM mainframe systems with SNA, to
client/server environments, where computing power is distributed throughout the
organization and interconnected by an enterprise-wide network. CrossComm's
product line, which consists of a family of multi-protocol routers and high
speed LAN and ATM switches, supports a variety of LAN and WAN connections and
LAN communications protocols and can be readily integrated with a customer's
existing computer equipment. These products are designed to provide non-stop
scalable networks that are easy to use, install and maintain and provide
customers a migration path to high bandwidth ATM networks. Because customers
in the commercial computing environment have made substantial investments in
legacy networks, CrossComm believes that such customers seek networking
solutions that integrate easily into their existing network environments and
provide a seamless migration to high bandwidth switched networks which can
handle increasing voice, video and data traffic, while at the same time
delivering traditional benefits associated with networking, such as greater
computing power, better access to information and reduced costs. CrossComm's
product line enables it to offer its customers such a solution.
CrossComm markets its products in the United States and Canada through
a direct sales organization, complemented by VARs and system integrators.
CrossComm's also sells its products internationally through a network of
international distributors and through a direct sales organization in the
United Kingdom. See "Marketing and Sales."
CROSSCOMM PRODUCTS
CrossComm operates in one business segment known as enterprise
networking. CrossComm's products include a family of networking products that
concurrently support standard bridging, multi-protocol routing and high speed
LAN and ATM switching functions.
CrossComm's products include the XL80 backbone platform, the XL20
regional product, and the XL10, XL5 and IBN branch office products. Each of
these products consists of a
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<PAGE> 141
chassis which can be configured with one or more networking modules (which
perform bridging, multiprotocol routing or high speed LAN and ATM switching)
and is available with various software options and protocol support.
Collectively, these products form the ClearPath system.
ClearPath is a unified system of products designed to take HUB and
router based networks to LAN and ATM switched environments. It is a highly
modular, standards-based system for building next generation enterprise
networks. The modular product suite includes ATM switching, LAN switching,
routing and remote office networking components. All of the hardware modules
are managed by the same software, CrossComm's Integrated Management System
(IMS), which is compatible with industry standard network management platforms
such as HP OpenView and can manage a complete line of network devices, locally
and remotely. ClearPath provides the ability to add new functionality to
networks or replace older technologies without sacrificing control and
manageability.
Modularity and scalability are the two structural elements of the
ClearPath system that allow for the transition from today's networks to LAN and
ATM switched architectures. This is accomplished through a family of hardware
platforms that accommodate the various CrossComm functional modules. These
range from small stand-alone units for remote routing or switching, to larger
multi-module platforms (with high speed backplane communications and redundant
power supplies) for multiple functions. The XL product line has been designed
to integrate routing, LAN switching and ATM technologies in a single platform.
Combinations of these technologies can be deployed in an individual network and
changed as networking needs evolve.
Two advanced multi-slot communication platforms, the XL80 and XL20,
provide the foundation for ClearPath's scalability and have the greatest range
of options for network interoperability and reliability. The XL80 is an
intelligent chassis that houses up to sixteen networking modules, and the XL20
can be populated with up to four modules. The advantage to this scalable
methodology is that it allows for expansion of the number of ports or
introduction of a new functionality as network requirements grow or change. A
third member of the ClearPath modular family is the XL10. It is designed for
workgroups or branch offices where the need for technology integration is less
critical. It can accommodate many of the same modules as the XL80 and XL20.
Both the XL80 and XL20 contain an ATM CrossPoint Matrix (CPM)
backplane. The CPM is a full duplex, high speed interconnect scheme that
builds an internal ATM backbone network within the chassis. It supports
simultaneous operation of native ATM switching traffic, LAN to LAN routing, and
switched virtual LAN traffic. Having ATM on the backplane is an integral part
of the ClearPath design, as it allows for an eventual seamless transition to
full ATM networks.
During 1996, CrossComm introduced several new products which are a
part of the growing family of ClearPath products. These include an ATM switch
module, the XLX, which supports between 8 and 16 ATM ports at OC3 speeds
(155Mbps) and DS3 speeds (45 Mbps).
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<PAGE> 142
Also introduced were the Ethernet Segment Switch and the Ethernet Workgroup
Switch which support a variety of 10Mbps and 100Mbps port configurations.
A major software addition to CrossComm's product line during 1996 was
the CrossLAN Exchange which allows legacy Token Ring and Ethernet users to
communicate with directly attached ATM based servers. A full suite of LAN
Emulation software on the client and server side was introduced to achieve
this.
SALES AND MARKETING
CrossComm utilizes a multi-channel distribution and sales network to
market its products. In the United States and Canada, CrossComm relies on a
direct sales organization complemented by VARs. From time to time, certain
computer systems companies purchase CrossComm's products for resale as part of
an integrated system offering to their end-users. CrossComm sells its products
internationally through distributors and through a direct sales organization in
the United Kingdom.
CrossComm has established marketing programs designed to identify
prospective customers and educate them about CrossComm's products. These
programs include telemarketing, distribution of sales and product literature,
trade shows, seminars, and direct mail programs. CrossComm believes that its
marketing programs enhance its effectiveness in selling to organizations in the
commercial computing environment.
CrossComm serves the United States and Canadian markets primarily
through a direct sales organization complemented by a VAR channel. CrossComm
believes that such a complementary approach, assisted by a strong technical
support staff, is particularly well suited to addressing its customers' needs
as well as differentiating its products and solutions from those of its
competitors. As of February 21, 1997, CrossComm's domestic sales organization
consisted of 34 individuals operating out of 15 sales locations in North
America. As of February 21, 1997, CrossComm had also contracted with 50 VARs
in cities across North America to assist in the distribution of its products.
CrossComm's international sales are conducted primarily through
international distributors located in Europe. As of February 21, 1997,
CrossComm had 30 such distributors. During 1996, 1995 and 1994, CrossComm's
international sales were approximately 37%, 25% and 18%, respectively, of total
revenue. Sales to international distributors are subject to government
controls and other risks associated with international sales, including
difficulties in obtaining export licenses, fluctuations in currency exchange
rates, political instability, trade restrictions, changes in duty rates and
seasonality of purchases. To date, CrossComm has not experienced any material
difficulties related to such factors.
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<PAGE> 143
CUSTOMERS AND BACKLOG
As of December 31, 1996, CrossComm had shipped approximately 21,000
units of its ILAN and XL products to more than 1,700 end-users. No single
customer accounted for more than 10% of total revenue during 1996, 1995 or
1994. Because substantially all of CrossComm's products are shipped within 30
to 60 days of receipt of the order, CrossComm does not believe that its backlog
as of any particular date is indicative of future sales levels.
CUSTOMER SUPPORT AND SERVICE
CrossComm services, repairs and provides technical support for its
products. The majority of its service and support activities are related to
software and network configuration and are provided by telephone support and
remote telephone access from CrossComm's headquarters. Remote access is
accomplished through a telephone connection made directly from CrossComm's
office to the customer's network and enables CrossComm, in most instances, to
quickly diagnose network problems. With this remote diagnostic capability,
CrossComm's technicians can generally respond to problems without traveling to
the customer's location.
CrossComm typically offers customers a three month warranty on its
products. CrossComm also offers a number of maintenance and support contracts
that include on-site service and 24-hour telephone dial-in support. CrossComm
continues to invest in developing new network diagnostic tools, such as its
IMS, and in personnel and training in order to support its customers.
CrossComm supplements its customer service capabilities with third-party
contractors, such as General DataComm and IBM, that provide on-site service in
over 300 cities throughout North America.
RESEARCH AND DEVELOPMENT
CrossComm maintains two product development organizations totaling 132
employees as of February 21, 1997. One facility is located in the United
States and the other is located in Poland at CrossComm's wholly-owned
subsidiary, CrossComm-Poland Ltd. As of February 21, 1997, the Polish
subsidiary employed approximately 105 individuals, 90 of whom were engineers.
These engineers are engaged in the development of software for use in
CrossComm's products. The software developed in Poland is integrated with
CrossComm's U.S.-developed hardware and software and is maintained by
CrossComm's U.S. employees. CrossComm's policy is to employ English speaking
software engineers in Poland to permit easier communications with CrossComm's
U.S.-based development organization.
CrossComm believes that it achieves a significant cost advantage by
developing software in Poland. Of CrossComm's research and development expense
for 1996, approximately 35% was spent in Poland. While CrossComm believes that
its Polish subsidiary gives it a competitive cost advantage, it also presents
certain risks, including exposure to the political and economic environment in
Poland, the possibility of Polish-U.S. travel and technology transfer
restrictions and the difficulties arising from the large distances separating
its two research and development
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organizations. During 1996, 1995 and 1994, CrossComm incurred expenses of
$9,830,000, $13,359,000, and $12,285,000 respectively, on research and
development activities.
MANUFACTURING
CrossComm's manufacturing operations primarily consist of final
assembly, test and quality control of subassemblies and systems. CrossComm
presently uses off-the-shelf subassemblies and third parties to manufacture
circuit boards and modules designed by CrossComm. CrossComm's management
believes that this approach permits CrossComm to more easily scale its
production to match demand, resulting in improved cost controls.
Although CrossComm generally uses standard parts and components for
its products, certain components are currently available only from single
sources, including microprocessors (Intel), various communications controller
chips or application-specific integrated circuits (TI, LSI Logic, PMC Sierra,
and Advanced Micro Devices), and power supplies (Switching Power Supply, Inc.
and Total Power International, Inc.). Other components and subassemblies are
available only from limited sources. CrossComm has also contracted with
Lockheed Commercial Electronics to be the primary manufacturer of the
networking modules for CrossComm's XL networking platform. Although CrossComm
believes that these components, subassemblies and modules are sufficiently
available from alternate sources in a reasonable amount of time, the reduction
or interruption of supply, a significant price increase or engineering changes
required by the use of alternate components, subassemblies or modules could
materially adversely affect CrossComm's operating results. CrossComm expects
that it will continue to be dependent on single or limited source supplier
relationships in the future.
COMPETITION
The market for networking systems and data communication products is
highly competitive and subject to rapid technological change. CrossComm's
principal competitors are Cisco, Bay Networks, FORE, Xylan Corporation, IBM and
3Com who are either offering competitive LAN and ATM switching products or have
announced their intentions to do so in the future. CrossComm also competes
with major system vendors, LAN HUB vendors and telecommunications companies,
who are offering or could in the future offer functionally competitive
solutions. Many of CrossComm's current and potential competitors have greater
financial, research and development and marketing resources than those of
CrossComm and are better established than CrossComm.
CrossComm believes that the principal competitive factor in the market
for enterprise-wide network systems and solutions for customers with
mission-critical business applications is the ability to consolidate SNA, LAN
and WAN traffic without sacrificing network reliability and response time. In
addition, network availability, reliability, network performance, ease-of-use,
flexibility, scalability and service are key decision criteria. While
CrossComm believes it currently competes favorably with respect to these
factors, there can be no assurance that it will be able to compete successfully
in the future.
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<PAGE> 145
PATENTS, PROPRIETARY RIGHTS AND LICENSES
CrossComm does not currently hold any patents and relies upon
copyright, trademark and trade secrets to establish and maintain its
proprietary rights to its products. Because the networking industry is
characterized by rapid technological change, CrossComm believes its success is
more dependent upon the experience of its employees and the frequency of
product introduction than on any legal protection afforded by patents.
In July 1994, CrossComm entered into a technology licensing and
product development agreement with MultiMedia Communications, Inc. ("MMC").
Terms of this agreement provide for the licensing of existing MMC ATM
technology to CrossComm. This licensed ATM technology has been used in the
design and development of an ATM switch subsystem by MMC for CrossComm. The
ATM switch subsystem has been incorporated into an ATM switch module that was
introduced by CrossComm in early 1996. The ATM switch module has been designed
to enable ATM switching functionality in accordance with adopted ATM Forum
standards, and has been incorporated into CrossComm's existing XL family of
products, thereby providing customers a path to evolving ATM switching
technology.
In July 1994, CrossComm also entered into a technology licensing and
manufacturing agreement with Applied Network Technology, Inc. ("ANT"). Terms of
this agreement provide for the licensing of existing ANT Ethernet switching
technology to CrossComm. This licensed technology has been used in the design
and development of certain Ethernet switch modules by ANT for CrossComm.
These modules have been incorporated into CrossComm's existing XL family of
products, thereby also providing customers a path to ethernet switching
technology.
EMPLOYEES
As of February 21, 1997, CrossComm employed 309 persons, including 105
employees of the Polish subsidiary. Of such employees, 132 employees were
primarily engaged in research and development, 81 in manufacturing and customer
support, 70 in sales and marketing and 26 in general management and finance.
Given employee turnover rates and the time necessary to fill vacated positions,
CrossComm does not believe that its head count figures as of any one particular
date are necessarily indicative of average personnel levels. CrossComm has no
collective bargaining agreement with its employees. CrossComm has never
experienced a work stoppage and believes that its employee relations are good.
CrossComm maintains stock option plans under which key employees have
been granted options to purchase shares of CrossComm's common stock. The
option price per share under the plans is equal to the fair market value of
CrossComm Common Stock on the date of option grant. In November 1996, options
to purchase 1,063,625 shares of CrossComm Common Stock having option exercise
prices ranging from $5.88 to $12.94 per share, were repriced to $5.00 per share
by the CrossComm Board. Similarly, in April 1994, options to purchase 729,068
shares of CrossComm Common Stock, having option exercise prices ranging from
$12.75 to
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$31.25 per share, were repriced to $12.50 per share by the CrossComm Board.
These repricings were implemented in order to retain key employees in light of
recruiting practices in the highly competitive networking industry. All other
terms of these options, including the vesting period and the number of shares
associated with each option, remained the same. No directors were subject to
this option repricing.
Competition for technical personnel in CrossComm's industry is
intense. During the course of 1996, CrossComm experienced increased competition
in the hiring and retention of its employees. CrossComm believes that its
future success will depend on its ability to attract and retain qualified
personnel.
PROPERTIES
CrossComm's principal administrative, manufacturing, research and
development, sales and marketing and support organizations are located in a
central facility in Marlborough, Massachusetts. This facility consists of
approximately 60,000 square feet and is under a lease that will expire in
December 1997. CrossComm's subsidiary, CrossComm-Poland Ltd., rents
approximately 20,000 square feet between two locations in Gdansk, Poland; one
location under a renewable short-term agreement and the other under a lease
that will expire in December 1997. CrossComm also leases and occupies sales and
technical support offices in 14 additional locations throughout North America
and 3 locations in Europe. CrossComm believes that its existing facilities are
adequate for its current needs.
LEGAL PROCEEDINGS
CrossComm is involved in various legal proceedings and claims arising
in the ordinary course of business. Management believes that the disposition
of these matters, as well as the matters noted below, would not have a material
adverse effect on the consolidated financial position or results of operations
of CrossComm.
Mr. William R. Johnson, the former President and Chief Executive
Officer of CrossComm, has brought an action against CrossComm for allegedly
unpaid severance amounts. Mr. Johnson was the CEO and President of CrossComm
from approximately March 1996 until the beginning of October 1996. In
conjunction with his assumption of these positions, Mr. Johnson executed an
employment agreement on or about March 4, 1996. Mr. Johnson's employment was
terminated in October, 1996. CrossComm believes that, among other things, Mr.
Johnson breached certain provisions of his employment agreement and,
accordingly, has declined to pay severance and other amounts claimed by Mr.
Johnson. This matter is currently in the discovery stage.
On or about September 13, 1996, Datapoint Corporation ("Datapoint")
commenced litigation in the United States District Court for the Eastern
District of New York against CrossComm, Cisco, Plaintree Systems Corporation,
Accton Technology Corporation, Cabletron Systems, Inc., Bay Networks and Asante
Technologies, Inc. individually, and as representatives
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<PAGE> 147
of a putative class of all manufacturers, vendors and users of Fast Ethernet
dual protocol local-area network products. In its complaint, Datapoint alleges
that the defendants have been, and still are, directly infringing U.S. Patent
No. 5,077,732 by making, using, selling and/or offering for sale products
embodying inventions claimed in that patent.
Similarly, Datapoint alleges that the defendants are also infringing
U.S. Patent No. 5,008,879 by using or selling products encompassed within that
patent's claims. Because it asserts that the manufacturers, vendors and users
of the implicated technology are so numerous as to make joinder of each and
every one impracticable, Datapoint seeks certification of a defendant class of
such entities for purposes of this litigation.
On or about December 30, 1996, CrossComm filed its Answer and
Counterclaims to Datapoint's complaint by denying the essential allegations;
asserting defenses that the cited patents are invalid and void; and seeking
declaratory judgment of patent non-infringement and invalidity under applicable
sections of the United States Code. Datapoint has not yet taken any action to
seek a court order certifying the class, and no party has initiated any
discovery activities. As a result, the outcome remains uncertain.
SELECTED FINANCIAL DATA
Five-Year Comparison of Selected Financial Data
(In Thousands, Except Per Share Amounts)
The following table sets forth certain financial information with
respect to CrossComm for the five years ended December 31, 1996. This
information should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and CrossComm's
Consolidated Financial Statements and related notes included elsewhere herein.
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------------------------------------------
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues $ 44,874 $ 44,528 $ 50,319 $ 49,790 $ 29,325
Income (loss) from operations (9,233) (18,798) (14,189) 7,481 3,465
Net income (loss) (5,280) (13,803) (12,207) 6,095 2,901
Earnings (loss) per share $ (.58) $ (1.52) $ (1.37) $ .70 $ .30
BALANCE SHEET DATA:
Working capital $ 46,695 $ 47,624 $ 55,978 $ 71,749 $ 29,340
Total assets 66,859 71,346 79,298 89,746 37,625
Stockholders' equity $ 54,362 $ 57,363 $ 67,058 $ 79,798 $ 33,220
</TABLE>
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<PAGE> 148
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
With the exception of historical information, certain of the matters
discussed in this report contain trend analysis and other forward-looking
statements within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act. Such forward-looking statements involve risks and
uncertainties, including, without limitation, the risks and uncertainties
described under the caption "Risk Factors," together with such risks and
uncertainties as are described in registration statements, reports and other
documents filed by CrossComm from time to time with the Commission pursuant to
the Securities Act and the Exchange Act. Such risks and uncertainties could
cause CrossComm's actual consolidated results for 1997 and beyond to differ
materially from those expressed in any statements made by, or on behalf of,
CrossComm.
RESULTS OF OPERATIONS
The table below shows certain operating data as a percentage of total
revenues and the percentage changes in such operating data for the periods
presented. CrossComm believes that period to period comparisons of its
financial results are not necessarily meaningful and should not be relied upon
as an indicator of future performance.
<TABLE>
<CAPTION>
Percentage
Increase (Decrease)
Year Ended December 31, Year to Year
---------------------------- -------------------
1995 1994
1996 1995 1994 to 1996 to 1995
<S> <C> <C> <C> <C> <C>
Revenues:
Product 76.0% 78.4% 88.0% (1.8)% (21.6)%
Service 24.0 21.6 12.0 12.9 57.8
----------------------------
Total revenues 100.0 100.0 100.0 1.4 (12.0)
Cost of revenues:
Cost of goods sold 40.8 40.6 46.0 2.0 (22.4)
Cost of services 12.9 16.9 7.9 (22.7) 88.3
----------------------------
Total cost of revenues 53.7 57.5 53.9 (5.3) (6.2)
----------------------------
Gross profit 46.3 42.5 46.1 10.4 (18.9)
</TABLE>
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<PAGE> 149
<TABLE>
<S> <C> <C> <C> <C> <C>
Operating expenses:
Selling, general and administrative 43.2 52.4 46.0 (16.3) 0.1
Research and development 21.9 30.2 24.4 (26.4) 8.7
Non recurring charges 1.7 2.4 3.9 * *
----------------------------
Total operating expenses 66.8 85.0 74.3 (20.2) 0.6
----------------------------
Income (loss) from operations (20.5) (42.5) (28.2) 50.9 (32.5)
Interest income, net 4.6 5.3 3.9 * *
Gain on sale of investments, net 4.6 6.3 -- * *
Other income (expense) (0.5) (0.3) 0.1 * *
Income (loss) before provision for
income taxes (11.8) (31.2) (24.2) 61.7 (13.5)
Provision for income taxes -- -- 0.1 * *
----------------------------
Net income (loss) (11.8)% (31.2)% (24.3)% 61.7% (13.1)%
============================
</TABLE>
- -----------------
* Not meaningful
Revenues. CrossComm's product revenues decreased from $44,265,000 in
1994 to $34,704,000 in 1995 to $34,083,000 in 1996. The decreases in 1995 and
1996 are primarily attributable to the market transition from routing to
switching technologies. Declines in sales of CrossComm's router products and
the later than anticipated release of CrossComm's new switching products
resulted in the 1995 and 1996 declines in product revenues. Both router volume
and average selling prices of router products have declined in 1996.
CrossComm believes that levels of future product revenues will be
highly dependent on its ability to successfully complete and market ATM
products, its ability to expand and capitalize on new indirect and
international sales channels, its ability to bring other new products to market
on a timely basis, and upon stability within CrossComm's direct sales force.
Service revenues (i.e. maintenance and support contracts, billable
product repairs, customer training and product installations) increased from
$6,054,000 in 1994 to $9,554,000 in 1995 to $10,791,000 in 1996. This growth
of 58% in 1995 and 13% in 1996 is primarily attributable to increases in the
number of installed units, expansion of CrossComm's customer base, and
CrossComm's increased emphasis on the sale and marketing of services.
International revenues of approximately $9,209,000, $11,029,000 and
$16,481,000 accounted for 18.3%, 24.9% and 36.7% of total revenues for the
years ended December 31, 1994, 1995 and 1996, respectively. The 1995 increase
was primarily attributable to revenue growth at CrossComm's subsidiary in the
United Kingdom ("UK"), reflecting the successes of the reorganization begun in
1994 and completed in 1995. The 1996 increase was due primarily to (i)
increased revenue related to CrossComm's European distributors, as these
distributors are now managed by the UK subsidiary, (ii) increased revenues from
the UK subsidiary's direct
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<PAGE> 150
sales channel, and (iii) increased revenues from CrossComm's indirect sales
channel in Canada. CrossComm believes that international sales will continue
to represent a significant portion of CrossComm's revenues. However, the
percentage of total revenues derived from international sales may continue to
fluctuate based on changes in the levels of domestic revenues versus
international revenues, the timing of orders from international distributors,
end users and the Canadian indirect channel partner, and the addition of new
international distributors.
Gross Profit. Gross profit as a percentage of total revenues
decreased from 46.1% in 1994 to 42.5% in 1995 and then increased to 46.3% in
1996. The decrease in gross profit from 1994 to 1995 was primarily attributable
to costs associated with the product line transitions which were taking place
in 1995.
CrossComm recorded approximately $3,200,000 of charges in the fourth
quarter of 1994 to address inventory valuation issues caused by the
finalization of CrossComm's router product line and changes in CrossComm's
future product direction toward high speed networking technologies.
Approximately $2,000,000 of these charges were attributable to (i) end of life
excess supply issues associated with certain of CrossComm's XL router modules
which were supplanted in 1995 with a new high-performance networking module and
(ii) additional end of life valuation provisions associated with CrossComm's
predecessor ILAN Universal Router product, which was no longer actively
marketed and had been replaced by CrossComm's XL branch office products in the
fourth quarter of 1994. In addition, CrossComm recorded approximately $750,000
of charges primarily related to customer hardware upgrades to enable a
migration to high speed switched networks. Finally, CrossComm incurred
approximately $450,000 of costs related to the provision of additional memory
capacity on it's XL product line, in order to support new product features
which were then being introduced.
In the fourth quarter of 1995, CrossComm recorded approximately
$2,976,000 of charges to address asset valuation issues necessitated by
CrossComm's entrance into the ATM and LAN switching market and the related
decision to de-emphasize certain other older technologies and products.
Approximately $2,538,000 of these charges are attributable to end of life
excess supply issues associated with certain of CrossComm's router products,
which have been de- emphasized given the transition to ATM and LAN switching
technologies. Additionally, CrossComm incurred approximately $438,000 of costs
primarily related to the write-off of certain capitalized license technologies
associated with these router products.
Other factors contributing to the decline in gross profit as a
percentage of revenues in 1995 include lower than expected levels of product
revenues not covering increased fixed manufacturing costs, significant
increases in service revenues as a percentage of total revenues as CrossComm
realized lower margins on service revenues, and costs associated with the
introduction of new products.
The 1996 increase in gross profit as a percentage of total revenues
was primarily due to (i) the lack of significant inventory valuation charges
that CrossComm recognized in both 1995 and 1994, (ii) a reduction in
manufacturing costs, and (iii) increased gross profit margins on
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<PAGE> 151
service revenues as CrossComm was able to support the additional service
revenue with the customer support infrastructure it already had in place with
minimal increases in variable costs. These increases in gross profit as a
percentage of total revenues were offset partially by decreases in router
product margins primarily attributable to the decline in router product selling
prices.
CrossComm believes that future gross profit levels as a percentage of
total revenues will be highly dependent on the continued transition from router
products to new switching technologies. Delays in the introduction of new XL
features and new ATM features, engineering change orders related to existing
products, CrossComm's inability to generate sufficient volume to enable product
unit cost decreases, pricing pressures associated with switching products, or
higher than expected introductory costs of new ATM switching modules could
negatively impact gross profit levels. Additionally, to the extent CrossComm is
successful at increasing sales through indirect channels, gross profit as a
percentage of revenue could be adversely affected because of lower gross
margins on such sales.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased from $23,155,000, or 46.0% of total revenues
in 1994 to $23,189,000, or 52.4% of revenues in 1995 and then decreased to
$19,402,000, or 43.2% of revenues in 1996.
Selling, general and administrative expenses in 1995 were essentially
level with 1994, reflecting (i) a decline in payroll and related costs as a
result of a smaller direct sales force resulting from the timing of
terminations and new hires, (ii) a decline in commissions as a result of the
decline in revenues and (iii) lower costs associated with international
operations as a result of the late 1994 international reorganization. These
declines were offset by significantly increased marketing costs associated with
market awareness programs and incremental personnel costs, and approximately
$1,553,000 of fourth quarter charges, consisting primarily of (i) the
write-down of certain demonstration equipment used by CrossComm's sales
organization, as it relates to the router products discussed above, (ii) the
settlement of a long-term contract receivable and (iii) costs related to
CrossComm's search for a new Chief Executive Officer.
The decrease in selling, general and administrative expenses in 1996
was attributable to (i) no charges similar to the $1,553,000 fourth quarter
charges recognized in 1995, (ii) a decrease in marketing costs associated with
market awareness programs, (iii) a decline in the amount of demonstration
equipment used by the sales organization and (iv) a decline in payroll and
related costs due to the 1995 fourth quarter restructuring and due to turnover
in CrossComm's sales force. These decreases were offset partially by higher
commission costs paid to CrossComm's sales force because 1996 incentive
compensation plans were based on quotas lower than those used for 1995, higher
costs of CrossComm's new senior management team (see Note 10 of Notes to the
CrossComm Consolidated Financial Statements (the "CrossComm Consolidated
Financial Statements") for a further discussion of non-recurring costs related
to the termination of senior management personnel in the fourth quarter of
1996) and costs incurred related to the purchase of the minority interest in a
consolidated subsidiary.
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<PAGE> 152
Selling, general and administrative expenses as a percentage of
revenues may fluctuate on a quarterly basis due to quarterly fluctuations in
revenues, the timing of spending for marketing programs and the timing of
hiring sales, marketing and administrative personnel.
Research and Development Expenses. Research and development expenses
increased from $12,285,000, or 24.4% of total revenues in 1994 to $13,359,000,
or 30.2% of revenues in 1995 and then decreased to $9,830,000, or 21.9% of
revenues in 1996.
In the fourth quarter of 1994, CrossComm incurred approximately
$2,000,000 of incremental research and development charges consisting of (i)
approximately $1,000,000 of third-party research and development costs related
primarily to ATM and LAN switching technologies, (ii) approximately $600,000
related to the write-off of previously capitalized licensed technology, which
was not utilized given the emergence of high speed ATM and LAN switching
technologies in CrossComm's new product plans and (iii) approximately $400,000
primarily related to a change in estimate of the useful lives of certain
equipment used by CrossComm's research and development organization.
The increase in research and development expenses from 1994 to 1995
was primarily due to the continued development of next generation high speed
networking modules involving ATM and LAN switching technologies required for
the XL product line, as well as the continued development of enhancements to
CrossComm's existing products. In the fourth quarter of 1995, CrossComm
incurred approximately $1,092,000 of incremental research and development
charges consisting primarily of (i) the write-off of certain capitalized
license technologies associated with de-emphasized router products and (ii) a
change in estimate of the useful lives of certain equipment used by CrossComm's
research and development organization, as necessitated by a corporate
restructuring undertaken in the fourth quarter of 1995. No significant
third-party research and development costs were incurred in 1995. Increased
personnel and experimental component costs required to perform in-house
development throughout 1995 more than offset the decline in third-party costs
from 1994.
The decrease in research and development expenses from 1995 to 1996
was primarily due to (i) the lack of charges similar to the $1,092,000 fourth
quarter charges recognized in 1995, (ii) a decline in payroll costs related to
the corporate restructuring undertaken in the fourth quarter of 1995 together
with a further reduction in headcount costs as a result of employee turnover
during 1996, and (iii) a decline in development costs associated with high
speed networking products involving ATM and LAN switching technologies due to
CrossComm's introduction of these products in 1996.
CrossComm believes that the markets for its products are characterized
by rapid rates of technological innovation for both hardware and software
products. CrossComm expects to continue to invest a significant amount of its
resources in new products, product enhancements and software development. If
CrossComm continues to experience an increase in the turnover of engineers and
has difficulty recruiting qualified replacements, its ability to compete in
such
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<PAGE> 153
a fast moving technological market could be impeded and could have a negative
impact on revenue.
Non-Recurring Charges. In the fourth quarter of 1994, CrossComm
incurred approximately $1,963,000 of restructuring charges related to the
reorganization of its international operations. Approximately $1,641,000 of
these charges consisted primarily of the write-off of unamortized intangible
assets related to CrossComm's operations in the United Kingdom. The remaining
restructuring charges of approximately $322,000 consisted of severance, lease
termination, and legal costs associated with the reorganization of CrossComm's
sales and service functions outside of the United Kingdom. See Note 10 of
Notes to the CrossComm Consolidated Financial Statements for further discussion
of the 1994 restructuring charges.
In the fourth quarter of 1995, CrossComm recorded approximately
$1,074,000 of charges related to a corporate restructuring of all functions,
designed to enable CrossComm to better address the ATM and LAN switching market
opportunity and to more appropriately align CrossComm's expense levels with its
revenues. Severance, benefits, and related costs associated with terminated
employees accounted for approximately $789,000 of the total charge. The
remaining $285,000 consisted of lease termination costs and professional fees
associated with the restructuring.
In the fourth quarter of 1996, CrossComm recorded approximately
$874,000 of non-recurring severance, benefits and related costs associated with
the termination of certain senior management personnel. These charges also
included the termination of certain research and development employees due to
CrossComm's decision not to fund previously planned development projects that
it considered outside the realm of CrossComm's current strategy.
Interest Income, Net. Interest income, net, generated from the
investment of the proceeds from CrossComm's initial public offering in June
1992 and CrossComm's secondary offering in April 1993 was $1,987,000 in 1994,
$2,349,000 in 1995 and $2,044,000 in 1996. CrossComm's use of cash to finance
operations and capital expenditures, and changes in the external interest rate
environment for short-term fixed income securities were the primary reasons for
the fluctuations over the periods.
Gain on Sale of Investments. In May 1995, CrossComm sold its minority
equity interest in Applied Network Technology, Inc. (ANT) to Fore Systems Inc.
(Fore), in connection with Fore's acquisition of ANT. In exchange for its
ownership interest in ANT, CrossComm received shares of Fore common stock, and
recorded a gain on this transaction of $2,100,000 during the second quarter of
1995. In July 1995, a portion of the Fore shares were sold by CrossComm,
whereby CrossComm realized an additional gain of approximately $725,000. See
Note 11 of Notes to the CrossComm Consolidated Financial Statements for a
further discussion of these transactions.
In September 1996, CrossComm realized an additional gain of $2,062,000
by selling a second installment of the Fore Shares.
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<PAGE> 154
Income Taxes. Pursuant to Financial Accounting Standards No. 109,
"Accounting for Income Taxes," CrossComm has not recorded a benefit related to
the operating losses experienced in 1994, 1995 and 1996. As a result, in the
event of future taxable income, CrossComm's effective income tax rate in future
periods could be lower, as such income could be offset by the loss
carryforwards. See Note 6 of Notes to the CrossComm Consolidated Financial
Statements.
LIQUIDITY AND CAPITAL RESOURCES
To date, CrossComm has satisfied its cash requirements principally
with the proceeds of equity financings. During 1996, CrossComm used $5,914,000
in cash from operating activities compared to the use of $6,692,000 in the
prior year. The decline in cash used from operating activities is primarily
attributable to the decreased operating loss for 1996 as compared to 1995, and
the timing of changes in working capital in 1996 compared to 1995. At December
31, 1996, CrossComm had $6,461,000 in cash and cash equivalents and $37,279,000
in available-for-sale securities. CrossComm also has a credit line available
for international borrowings in the amount of $320,000. This line makes
available short term credit in the form of guarantees. Grant of credit and its
continued availability is at the sole discretion of the bank. At December 31,
1996, this line was fully utilized.
CrossComm believes that existing cash and available-for-sale
securities will be sufficient to meet CrossComm's operating cash requirements
for the foreseeable future.
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<PAGE> 155
MANAGEMENT OF CROSSCOMM
The directors and executive officers of CrossComm and their ages as of
March 14, 1997 are as follows:
<TABLE>
<CAPTION>
Name Age Position With Company
- ---- --- ---------------------
<S> <C> <C>
Tadeusz Witkowicz 47 President, Chief Executive Officer and
Chairman of the Board of Directors#
Douglas G. Bryant 39 Chief Financial Officer and Treasurer
Nigel C. Machin 42 President, Enterprise Products
Nancy Casey 37 Director+#
Alexander M. Levine 65 Director*
Michael C. Ruettgers 54 Director+*
</TABLE>
- ----------
+ Member of the Audit Committee
* Member of the Compensation and Stock Option Committees
# Member of the Nominating Committee
Mr. Witkowicz, the founder of CrossComm, has been Chairman of the
Board of Directors since CrossComm's inception in April 1987 and was President
and Chief Executive Officer of CrossComm from April 1987 to March 3, 1996. In
October 1996, Mr. Witkowicz was re-appointed President and Chief Executive
Officer of CrossComm. Prior to founding CrossComm, Mr. Witkowicz was a
co-founder and President of Artel Communications Corporation, a supplier of
fiber optic products for long distance television and computer communications.
Mr. Bryant was appointed Chief Financial Officer of CrossComm in
November 1996. From July 1996 to November 1996, Mr. Bryant served as acting
Chief Financial Officer. From September 1989 to June 1996, Mr. Bryant served
as CrossComm's Controller.
Mr. Machin was appointed President, Enterprise Products Division of
CrossComm on October 1, 1996. From July 1995 to September 1996, Mr. Machin
served as CrossComm's Vice President of Business Development. From July 1994
to June 1995, Mr. Machin served as CrossComm's General Manager of High Speed
Networking Development. From October 1993 to June 1994, Mr. Machin served as
CrossComm's Vice President of Strategic Sales and from May 1988 to September
1993, Mr. Machin served as CrossComm's Vice President of Sales.
Ms. Casey has been a director of CrossComm since November 1991. She
is a General Partner of Valhallar Capital Management, L.P., a private
investment partnership, a position she has held since April 1996. From
February 1992 to April 1996, she was a special partner of Tiedemann Boltres
Partners, a private limited partnership providing asset management services.
From November 1987 until February 1992, Ms. Casey was a General Partner of
Euclid Partners III, L.P., a venture capital firm. Prior to joining Euclid
Partners III, L.P., Ms. Casey was a Co-Manager of Metropolitan Life Insurance
Company's venture capital portfolio.
Mr. Levine has been a director of CrossComm since July 1989. Mr.
Levine is a senior adviser (previously a vice president) and a director of
Leggett & Platt, Incorporated, a manufacturer of components for the bedding and
furniture industry. Mr. Levine is currently
- 132 -
<PAGE> 156
Managing Director of Waterline Capital LLC, a firm which specializes in early
stage venture capital investments.
Mr. Ruettgers has been a director of CrossComm since April 1993. He
has been the President of EMC Corporation, a manufacturer of high performance
storage products for mainframe and mid-range computer systems, since October
1989. Mr. Ruettgers has been Chief Executive Officer of EMC Corporation since
January 1992. From July 1988 to September 1989, he was Executive
Vice-President, Operations, of EMC Corporation. Before joining EMC
Corporation, he was Chief Operations Officer of TFS, a high technology
consulting company which he joined in February 1987. Mr. Ruettgers is a
director of EMC Corporation and Commonwealth Energy Corporation.
Officers are elected on an annual basis and serve at the discretion of
the Board of Directors.
COMPENSATION OF DIRECTORS
Prior to November 5, 1996, non-employee directors ("outside
directors") of CrossComm received an annual fee of $2,500 plus $500 for
attendance at each meeting of the full Board of Directors or any committee
thereof. Commencing November 5, 1996, CrossComm began to pay non-employee
directors an annual retainer of $15,000 plus $2,500 per meeting attended and
$2,500 for each committee meeting of the Board of Directors attended (not in
conjunction with a full Board of Directors meeting). Directors are reimbursed
for any related travel expenses.
Outside directors are entitled to participate in CrossComm's 1992
Directors' Option Plan (the "Director Plan") which provides for automatic
grants of non-statutory stock options to non-employee directors. The Director
Plan provides for the grant of options to purchase 12,500 shares of CrossComm
Common Stock to directors of CrossComm who were not officers or employees of
CrossComm or of any subsidiary of CrossComm on March 10, 1992, or, for persons
not then serving as directors, on the date such persons first become directors.
The Director Plan also provides for the grant of options to purchase 5,000
shares of CrossComm Common Stock on June 30 of each year commencing on the June
30 following the year in which such director's initial option was granted.
Each initial option granted under the Director Plan vests in three equal annual
installments beginning on the first anniversary of the date of grant, and each
subsequent option granted under the Director Plan vests in full three years
from the date of grant. All unvested options granted under the Director Plan
become immediately exercisable upon a change in control of CrossComm.
COMPENSATION OF EXECUTIVE OFFICERS
The following table sets forth all cash compensation paid by CrossComm
during the fiscal years ended December 31, 1996, 1995 and 1994 to each
individual who served as CrossComm's Chief Executive Officer and CrossComm's
two most highly compensated
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<PAGE> 157
executive officers (other than the Chief Executive Officer) whose total cash
compensation exceeded $100,000 in 1996 (the "Named Executives").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long-Term
Annual Compensation Compensation
-------------------------------------------- ---------------------
Other Annual Securities Underlying
Name and Principal Position Year Salary($) Bonus($) Compensation($)(1) Options Granted(#)
- --------------------------- ---- ---------- --------- ------------------- ---------------------
<S> <C> <C> <C> <C> <C>
Tadeusz Witkowicz
President and Chief 1996 $ 4 $ 648 -- --
Executive Officer(2) 1995 10,751 -- -- --
1994 173,184 -- -- --
Nigel C. Machin
President, Enterprise 1996 98,504 -- -- 200,000
Products(3)
Douglas G. Bryant
Chief Financial Officer 1996 109,958 14,089 -- 52,500
and Treasurer(4)
William R. Johnson --
Former Chief Executive 1996 120,504 100,000 350,000
Officer(5)
</TABLE>
- ---------------
(1) Other annual compensation in the form of perquisites and other
personal benefits has been omitted in those instances where such
perquisites and other personal benefits constituted less than the
lesser of $50,000 or 10% of the total salary and bonus for each named
executive officer for such year.
(2) Mr. Witkowicz served as Chief Executive Officer of CrossComm through
March 3, 1996. In late January 1995, Mr. Witkowicz agreed to have
his salary reduced to $1 per quarter, until such time as CrossComm
again reports an operating profit.
(3) Mr. Machin was appointed President, Enterprise Products Division on
October 1, 1996. From July 1995 to September 1996, Mr. Machin served
as CrossComm's Vice President of Business Development. From July 1994
to June 1995, Mr. Machin served as CrossComm's General Manager of High
Speed Networking Development. From October 1993 to June 1994, Mr.
Machin served as CrossComm's Vice President of Strategic Sales and
from May 1988 to September 1993, Mr. Machin served as CrossComm's Vice
President of Sales.
(4) Mr. Bryant was appointed Chief Financial Officer of CrossComm in
November, 1996. From July 1996 to November 1996, Mr. Bryant served as
acting Chief Financial Officer. From September 1989 to June 1996, Mr.
Bryant served as CrossComm's Controller.
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<PAGE> 158
(5) Mr. Johnson was appointed Chief Executive Officer on March 4, 1996.
Mr. Johnson left CrossComm on October 7, 1996.
CHANGE IN CONTROL ARRANGEMENT.
Pursuant to the terms of an Employee Retention Agreement dated March
9, 1997 between CrossComm and Nigel C. Machin, President, Enterprise Products
(the "Machin Agreement"), if Mr. Machin's employment is terminated by CrossComm
(other than for cause, disability or his death) or by him for "Good Reason" (as
defined in the Machin Agreement) within 24 months following a "Change in
Control" of CrossComm (as defined in the Machin Agreement), he is entitled to a
severance payment equal to one month's salary plus an additional one month's
salary for each year of service.
Pursuant to the terms of an Employee Retention Agreement dated March
9, 1997 between CrossComm and Douglas G. Bryant, Chief Financial Officer and
Treasurer (the "Bryant Agreement"), if Mr. Bryant's employment is terminated by
CrossComm (other than for cause, disability or his death) or by him for "Good
Reason" (as defined in the Bryant Agreement) within 24 months following a
"Change in Control" of CrossComm (as defined in the Bryant Agreement), he is
entitled to a severance payment equal to one month's salary plus an additional
one month's salary for each year of service.
On March 9, 1995, the CrossComm Board adopted a resolution amending
the Amended 1988 Incentive Stock Option Plan, the Amended 1989 Incentive Stock
Option Plan, the 1991 Incentive Stock Option Plan, as amended, the 1992 Stock
Option Plan, as amended, the 1992 Directors Option Plan, and the 1994 Stock
Option Plan, as amended, (collectively, the "CrossComm Plans") providing for
the following: upon a change in control of CrossComm, if an optionholder's
employment with CrossComm is terminated by CrossComm other than for cause,
death or disability within two years after such a change in control, then in
such event all options to purchase shares of capital stock of CrossComm, issued
and outstanding as of the date of such termination and then held by such
terminated optionholder pursuant to the CrossComm Plans shall immediately vest
and become fully exercisable in accordance with their terms. Such change in
control provision is also included in CrossComm's 1996 Stock Option Plan.
The following table sets forth certain information regarding options
granted during the year ended December 31, 1996 by CrossComm to the Named
Executives.
- 135 -
<PAGE> 159
OPTION GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Individual Grants
----------------------------------------------------------
Number of
Securities Percent of Total Potential Realizable Value
Underlying Options Granted to Exercise or at Assumed Annual Rates of
Options Employees in Base Price Expiration Stock Price Appreciation
Name Granted(#) Fiscal Year ($/Sh) Date for Option Term (1)
- ---- ---------- ------------------ ----------- ---------- --------------------------
5%($) 10%($)
-------------- ---------
<S> <C> <C> <C> <C> <C>
Tadeusz Witkowicz -- -- -- -- -- --
Nigel C. Machin 110,000 $ 5.00 11/5/06 $ 345,892 $ 876,558
40,000 5.00 2/23/03 71,989 164,637
30,000 5.00 12/9/04 72,628 174,406
200,00 5.00 11/17/05 55,382 136,535
-------
200,000 7.40%
Douglas G. Bryant 5,000 9.50 9/3/06 29,872 75,703
10,000 5.00 11/5/06 31,445 79,687
2,500 5.00 1/28/04 5,287 12,399
4,000 5.00 4/14/02 6,077 13,584
13,500 5.00 2/23/03 24,296 55,565
5,000 5.00 7/13/04 11,378 27,018
2,500 5.00 8/11/05 6,670 16,320
5,000 5.00 11/17/05 13,845 34,134
5,000 5.00 9/3/06 15,381 38,786
-------
52,500 1.95
William R. Johnson 350,000 12.98 10.00 3/4/06(2) 2,201,131 5,578,099
</TABLE>
- -----------
(1) Amounts represent hypothetical gains that could be achieved if the
option were exercised at the end of the option term. These gains are
based on assumed rates of CrossComm Common Stock price appreciation of
5% and 10% compounded annually from the date the option was granted to
its expiration date. This table does not take into account any
appreciation in the price of CrossComm Common Stock to date, if any.
Actual gains, if any, on stock option exercises will depend on the
future performance of CrossComm Common Stock and the date on which the
option is exercised.
(2) Unvested options cancelled upon October 7, 1996 termination. Vested
option cancelled on October 17, 1996.
The following table sets forth certain information regarding stock
options exercised during the year ended December 31, 1996 and the value of
stock options held as of December 31, 1996 by the Named Executives.
- 136 -
<PAGE> 160
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND
YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Underlying Unexercised In-the-Money Options at
Options at Fiscal Year-End(#) Fiscal Year-End($)(1)
Shares ----------------------------- -----------------------------
Acquired on Value
Name Exercise(#) Received($) Exercisable Unexercisable Exercisable Unexercisable
---- ----------- ----------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Tadeusz Witkowicz -- -- -- -- -- --
Nigel C. Machin -- -- 63,507 136,492 $15,877 $34,123
Douglas G. Bryant -- -- 29,875 27,625 47,469 6,906
William R. Johnson -- -- -- -- -- --
</TABLE>
- ------------
(1) Total value of unexercised options is based on $5.25, the last sale
price of the CrossComm Common Stock on the Nasdaq National Market on
December 31, 1996. Value is calculated on the basis of the difference
between the option exercise price and $5.25 multiplied by the number
of shares of CrossComm Common Stock underlying the option.
Report on Repricing of Options
The following table sets forth certain information regarding the
repricing of options for all Named Executives for the past ten fiscal years.
STOCK OPTION REPRICING
10-YEAR OPTION/SAR REPRICINGS
<TABLE>
<CAPTION>
Number of
Securities
Underlying Market Price Length of Original
Options'/ of Stock At Exercise Option Term
SARs Time of Price At Time New Remaining At Date
Repriced or Repricing or of Repricing Exercise of Repricing or
Name Date Amended Amendment or Amendment Price Amendment(1)
---- ---- ----------- ------------ ------------- -------- ------------------
<S> <C> <C> <C> <C> <C> <C>
Douglas G. Bryant 4/28/94 13,500 $10.50 $23.25 $12.50 106
Chief Financial 4/28/94 2,500 10.50 19.75 12.50 118
Officer and 11/5/96 4,000 5.00 8 .00 5.00 65
Treasurer 11/5/96 13,500 5.00 12.50 5.00 75
11/5/96 2,500 5.00 12.50 5.00 86
11/5/96 5,000 5.00 10.75 5.00 92
11/5/96 2,500 5.00 10.75 5.00 105
11/5/96 5,000 5.00 11.875 5.00 108
11/5/96 5,000 5.00 9 .50 5.00 118
Nigel C. Machin 4/28/94 40,000 10.50 23.25 12.50 106
President, 11/5/96 19,255 5.00 12.50 5.00 75
Enterprise 11/5/96 20,745 5.00 12.50 5.00 75
Products 11/5/96 18,780 5.00 8 .50 5.00 97
11/5/96 2,002 5.00 8 .50 5.00 97
11/5/96 2,209 5.00 8 .50 5.00 97
11/5/96 629 5.00 8 .50 5.00 97
11/5/96 3,162 5.00 8 .50 5.00 97
11/5/96 2,705 5.00 8 .50 5.00 97
11/5/96 513 5.00 8 .50 5.00 97
11/5/96 9,890 5.00 11.875 5.00 108
11/5/96 10,110 5.00 11.875 5.00 108
</TABLE>
- ----------------------
(1) Data is presented in terms of months.
- 137 -
<PAGE> 161
REPORT ON REPRICING OF OPTIONS
On November 5, 1996, the Board of Directors approved the repricing
(the "Repricing") of certain outstanding options to purchase shares of
CrossComm Common Stock under CrossComm's 1992 Stock Option Plan and 1994 Stock
Option Plan (the "Stock Plans"), having option exercise prices ranging from
$5.88 to $12.94 per share (the "Existing Options"). Such options were repriced
to $5.00 per share by canceling the existing options and granting new options
at $5.00 per share (the "New Options").
Because of significant declines in the market value of CrossComm
Common Stock, most outstanding options in November 1996 were exercisable at
prices which substantially exceeded the market value of CrossComm Common Stock.
In view of such declines in market value and in keeping with CrossComm's
philosophy of utilizing equity incentives to motivate and retain qualified
employees, the Board of Directors felt it was important to regain the incentive
intended to be provided by options to purchase shares of CrossComm Common
Stock.
The New Options modify only the exercise price of the Existing Options
to which each relates and will be issued under and governed by the respective
Stock Plan under which such options were originally granted. Therefore, other
than the different exercise price, the option agreements relating to the New
Options will be substantially the same as the option agreements for the
Existing Options that they replace.
The Compensation Committee
Alexander M. Levine
Michael C. Ruettgers
COMPENSATION COMMITTEE REPORT
Executive Compensation Philosophy
CrossComm's executive compensation program is designed to align
executive compensation with financial performance, business strategies and
Company values and objectives. This program seeks to enhance the profitability
of CrossComm, and thereby enhance stockholder value, by linking the financial
interests of CrossComm's executives with those of the stockholders. Under the
guidance of CrossComm's Compensation Committee of the Board of Directors,
CrossComm has developed and implemented an executive compensation program to
achieve these objectives while providing executives with compensation
opportunities that are competitive with companies of comparable size in related
industries.
In applying this philosophy, the Compensation Committee has
established a program to (i) attract and retain executives of outstanding
abilities who are critical to the long-term success
- 138 -
<PAGE> 162
of CrossComm, and (ii) reward executives for long-term strategic management and
the enhancement of stockholder value by providing equity ownership in
CrossComm. Through these objectives, CrossComm integrates its compensation
programs with its annual and long-term strategic planning.
Executive Compensation Program
The Compensation Committee, which is comprised solely of outside
directors, approves the executive compensation program on an annual basis,
including specified levels of compensation for all executive officers.
CrossComm's executive compensation program has been designed to implement the
objectives described above and is comprised of the following fundamental
elements:
o base salary that is determined by individual contributions and
sustained performance within an established competitive salary
range.
o long-term incentive program that rewards executives when
stockholder value is created through an increase in the market
value of CrossComm Common Stock or through significant
performance achievements that enhance the long-term success of
CrossComm.
Each of these elements of compensation is discussed below.
Salary. Salary levels for CrossComm's executive officers are
determined based primarily on historical compensation levels of the executive
officers and salary levels at companies within the internetworking industry.
Salaries for executive officers are reviewed by the Compensation Committee on
an annual basis and, in determining salary adjustments, the Compensation
Committee considers individual performance and contributions to CrossComm.
Long-Term Incentive Compensation. CrossComm's long-term incentive
compensation program is primarily implemented through the grant of stock
options. This program is intended to align executive interests with the long-
term interests of stockholders by linking executive compensation with
stockholder enhancement. In addition, the program motivates executives to
improve long-term stock market performance by allowing them to develop and
maintain a significant, long-term equity ownership position in CrossComm Common
Stock. Stock options are granted at prevailing market rates and will only have
value if CrossComm's stock price increases in the future. Generally, stock
options vest in equal quarterly amounts over a four-year or five-year period.
Further, executives generally must be employed by CrossComm at the time of
vesting in order to exercise the options. The Compensation Committee acting as
the Stock Option Committee determines the number of shares to be issued
pursuant to option grants made to CrossComm's executive officers, based on
individual accomplishments measured against certain non-budgeted objectives and
contributions to CrossComm. The Compensation Committee also considers the
number and value of options held by each executive officer that will vest in
the future.
- 139 -
<PAGE> 163
Chief Executive Officer Compensation
The Compensation Committee evaluates the performance of the Chief
Executive Officer on an annual basis and reports its assessment to the outside
members of the Board of Directors. The Compensation Committee's assessment of
the Chief Executive Officer is based on a number of factors, including the
following: achievement of short- and long-term financial and strategic targets
and objectives, considering factors such as sales and earnings per share;
Company position within the industry in which it competes, including market
share; overall economic climate; individual contribution to CrossComm; and such
other factors as the Compensation Committee may deem appropriate.
The salary of the Chief Executive Officer is reviewed by the
Compensation Committee on an annual basis and, in determining any salary
adjustment, the Compensation Committee considers the above factors.
In late January 1995, Mr. Witkowicz, who served as CrossComm's Chief
Executive Officer through March 3, 1996, agreed to have his salary reduced to a
$1 per quarter. In March, 1997, the CrossComm Board approved the reinstatement
of Mr. Witkowicz's salary.
On March 4, 1996, William J. Johnson became the new Chief Executive
Officer of CrossComm. Mr. Johnson's base salary was $200,000 per year. Mr.
Johnson was also entitled to an annual incentive payment of up to $200,000
based on achievement objectives determined by the Compensation Committee. For
calendar year 1996, the incentive payment was guaranteed to the extent of
$100,000 (which was paid in the form of a signing bonus in March 1996), with
the balance of $100,000 to be based upon the accomplishment of achievement
objectives determined by the Compensation Committee. In October 1996,
CrossComm terminated Mr. Johnson's Employment Agreement for cause. Mr. Johnson
has brought an action against CrossComm for alleged unpaid severance amounts.
Compliance with Internal Revenue Code Section 162(m)
Section 162(m) of the Code, enacted in 1993, generally disallows tax
deductions to publicly-traded corporations for compensation over $1 million
paid to the corporation's Chief Executive Officer or any of its other four most
highly compensated executive officers. Qualifying performance-based
compensation will not be subject to this disallowance if certain requirements
are met. CrossComm structures the compensation arrangements of its executive
officers to attempt to avoid disallowances under Section 162(m).
COMPENSATION COMMITTEE
Alexander M. Levine
Michael C. Ruettgers
- 140 -
<PAGE> 164
STOCK PERFORMANCE GRAPH
The following graph compares the cumulative total stockholder return
on CrossComm Common Stock of CrossComm during the period from June 18, 1992
(the date on which CrossComm Common Stock began trading on the Nasdaq National
Market) to December 31, 1996 with the cumulative total return of (i) the
Russell 2000 Index and (ii) a Peer Group Index selected by CrossComm over the
same time period. This comparison assumes the investment of $100 on June 18,
1992 in CrossComm Common Stock, the Russell 2000 Index and the Peer Group Index
and assumes any dividends are reinvested.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
6/18/92 12/31/92 12/31/93 12/31/94 12/31/95 12/31/96
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CrossComm Corporation $100.00 $260.87 $173.91 $100.00 $ 98.91 $ 45.65
Russell 2000 Index $100.00 $119.06 $141.57 $138.99 $178.51 $207.96
Peer Group Index* $100.00 $147.27 $166.69 $176.24 $202.71 $255.99
- --------------------------------------------------------------------------------------------------------
</TABLE>
- ------------------
* The Peer Group Index reflects stock performance of the following companies:
Artisoft, Inc., Cabletron Systems, Inc., Chipcom Corporation, Cisco, Computer
Network Technology Corporation, Network Systems, Inc., Novell, Optical Data
Systems, Inc., Proteon, Inc., Retix Corporation, SynOptics Communications,
Inc., 3Com, Bay Networks, Inc. (formerly Wellfleet Communications, Inc.) and
Xyplex, Inc. Bytex Corporation, which was included in the Peer Group Index in
CrossComm's 1993 Proxy Statement, ceased to be publicly-traded in November
- 141 -
<PAGE> 165
1993. SynOptics Communications, Inc. and Xyplex, Inc., which were included in
CrossComm's 1993 and 1994 Proxy Statements, were acquired in October 1994.
ChipCom Corporation which was included in the Peer Group Index in CrossComm's
1993, 1994 and 1995 Proxy Statements was acquired in 1995.
CERTAIN TRANSACTIONS AND EMPLOYMENT ARRANGEMENTS
Pursuant to the terms of an Employment Agreement dated March 4, 1996
between CrossComm and William J. Johnson, Mr. Johnson agreed to serve as
CrossComm's President and Chief Executive Officer. Mr. Johnson received a base
salary of $200,000, and an annual incentive payment of up to $200,000 based on
the achievement of objectives determined by the Compensation Committee. For
calendar year 1996, the incentive payment was guaranteed to the extent of
$100,000, which Mr. Johnson received in the form of a signing bonus in March
1996. The balance of the incentive payment of $100,000 was based upon the
accomplishment of objectives determined by the Compensation Committee.
CrossComm terminated Mr. Johnson's Employment Agreement for cause in October
1996.
On March 20, 1997, CrossComm entered into a License Agreement (the
"License Agreement") with Tadeusz Witkowicz, Chief Executive Officer and
President, that provides Mr. Witkowicz with a non-exclusive license to use
CrossComm's partially developed Network Delta software. The Network Delta
software was being developed to, among other things, enable CrossComm to
deliver monitoring services to its customers. CrossComm discontinued
development of this software in 1996 because it failed to meet expectations and
was inconsistent with CrossComm's strategic plan. CrossComm decided to utilize
a third-party solution to offer monitoring services to its customers. Under
the terms of the License Agreement, Mr. Witkowicz will pay $30,000 for the
license and an additional $25 royalty fee for each copy sold through the end of
1998 and $10 per copy thereafter. The License Agreement also allows Mr.
Witkowicz to hire up to six engineers from CrossComm.
COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Exchange Act requires CrossComm's directors,
executive officers and holders of more than 10% of CrossComm Common Stock to
file with the Securities and Exchange Commission initial reports of ownership
and reports of changes in ownership of the CrossComm Common Stock. CrossComm
believes that all officers, directors and holders of 10% of CrossComm Common
Stock complied with all Section 16(a) filing requirements, except that in June
1995, pursuant to the 1992 Directors Option Plan, CrossComm granted an option
to purchase 5,000 shares of CrossComm Common Stock to each of Alexander Levine,
Michael Ruettgers and Nancy Casey, each of whom failed to timely file a Form 5.
- 142 -
<PAGE> 166
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of March 28,
1997, with respect to the beneficial ownership of CrossComm Common Stock by (i)
each current director of CrossComm, (ii) the Named Executives, (iii) all
directors and executive officers of CrossComm as a group and (iv) each person
known by CrossComm to own beneficially more than 5% of the outstanding shares
of CrossComm Common Stock.
<TABLE>
<CAPTION>
Number of Shares Percentage of Common
Beneficial Owner Beneficially Owned(1) Stock Outstanding (2)
---------------- --------------------- ---------------------
<S> <C> <C>
Tadeusz Witkowicz(3) . . . . . . . . . . . . . . . . . . . . 1,574,125 16.9
c/o CrossComm Corporation
450 Donald Lynch Boulevard
Marlborough, Massachusetts 01752
William R. Johnson . . . . . . . . . . . . . . . . . . . . . -- *
Douglas G. Bryant (4) . . . . . . . . . . . . . . . . . . . . 34,391 *
Nigel C. Machin(5) . . . . . . . . . . . . . . . . . . . . . 75,093 *
Nancy Casey(6) . . . . . . . . . . . . . . . . . . . . . . . 18,100 *
Alexander M. Levine(7) . . . . . . . . . . . . . . . . . . . 77,500 *
Michael C. Ruettgers(8) . . . . . . . . . . . . . . . . . . . 12,500 *
All directors and executive officers as a group (6
persons)(9) . . . . . . . . . . . . . . . . . . . . . . . . . 1,791,709 18.9%
5% Stockholders (excluding Mr. Witkowicz)
----------------------------------------
Trimark Financial Corporation
One First Canadian Place
Suite 5600, P.O. Box 487
Toronto, Ontario M5X 1E5(10) . . . . . . . . . . . . 909,000 9.8%
Kopp Investment Advisors, Inc.
LeRoy C. Kopp
6600 France Avenue South
Suite 672
Edina, MN 55435(11) . . . . . . . . . . . . . . . . 728,200 7.8%
Pioneering Management Corporation
William H. Keough
60 State Street
Boston, MA 02109(12) . . . . . . . . . . . . . . . 918,000 9.9%
Travelers Group Inc.
388 Greenwich Street
New York, NY 10013(13) . . . . . . . . . . . . . . 573,300 6.2%
</TABLE>
- 143 -
<PAGE> 167
- ----------------------
* Less than 1%.
(1) The number of shares of CrossComm Common Stock beneficially owned by
each person or entity is determined under rules promulgated by the
Commission. Under such rules, beneficial ownership includes any
shares as to which the person or entity has sole or shared voting
power or investment power, and also includes any shares which the
person or entity has the right to acquire within 60 days after March
28, 1997 through the exercise of any stock option or other right.
Unless otherwise indicated, each person or entity referred to above
has sole voting and investment power with respect to the shares
listed. The inclusion herein of any shares deemed beneficially owned
does not constitute an admission of beneficial ownership of such
shares.
(2) Percentage of CrossComm Common Stock outstanding is based on 9,302,285
shares of Common Stock outstanding as of March 28, 1997. For purposes
of calculating the percentage of CrossComm Common Stock outstanding,
the number of outstanding shares of CrossComm Common Stock is adjusted
for each director and executive officer to include the number of
shares of CrossComm Common Stock into which any options held by such
person are exercisable within 60 days after March 28, 1997.
(3) Includes 10,000 shares held by Mr. Witkowicz's wife, as to which Mr.
Witkowicz disclaims beneficial ownership, and 11,400 shares held in
separate custodial accounts for the benefit of his two minor children.
Mr. Witkowicz's address is c/o CrossComm Corporation, 450 Donald Lynch
Boulevard, Marlborough, Massachusetts 01752.
(4) Includes 33,406 shares which Mr. Bryant may acquire upon the exercise
of options within 60 days of March 28, 1997.
(5) Includes 75,093 shares which Mr. Machin may acquire upon the exercise
of options within 60 days of March 28, 1997.
(6) Includes 17,500 shares which Ms. Casey may acquire upon the exercise
of options within 60 days after March 28, 1997.
(7) Includes 17,500 shares which Mr. Levine may acquire upon the exercise
of options within 60 days after March 28, 1997.
- 144 -
<PAGE> 168
(8) Includes 12,500 shares which Mr. Ruettgers may acquire upon the
exercise of options within 60 days after March 28 1997.
(9) Includes 155,999 shares which all directors and executive officers as
a group may acquire upon the exercise of options within 60 days after
March 28 1997.
(10) Certain Trimark mutual funds (the "Funds"), which are trusts organized
under the laws of Ontario, Canada, are owners of record of the
securities covered by this report. Trimark Investment Management Inc.
("TIMI"), a corporation incorporated under the laws of Canada, is a
manager and trustee of the Funds. TIMI is qualified to act as an
investment adviser and manager of the Funds in the province of Ontario
pursuant to a registration under the Securities Act (Ontario).
Trimark Financial Corporation ("TFC") is a corporation incorporated
under the laws of Ontario, Canada. It owns 100% of the voting equity
securities of TIMI. Consequently, TFC may be deemed to be the
beneficial owner of such securities. The above information was based
on Schedule 13G filed with the Commission by Trimark Financial
Corporation on or about February 5, 1997.
(11) Shares were owned beneficially at December 31, 1996 by Leroy C. Kopp.
Mr. Kopp is 100% owner of Kopp Investment Advisors, Inc., an
investment advisor registered under the Investment Advisors Act of
1940, as amended (the "Advisors Act"). Kopp Investment Advisors, Inc.
exercises discretion as to 641,000 of these shares. Neither Kopp
Investment Advisors, Inc. nor Mr. Kopp votes the vast majority of
these shares and neither is the record owner of them. As 100% owner
of Kopp Investment Advisors, Inc., Mr. Kopp may be deemed to be a
beneficial owner of the shares held by Kopp Investment Advisors, Inc.
The above information is based on Schedule 13G/A filed with the
Commission by Kopp Investment Advisors, Inc. on or about January 28,
1997.
(12) Shares were owned beneficially at December 31, 1996 by Pioneering
Management Corporation, an investment advisor registered under the
Advisors Act. The above information is based on Schedule 13G filed
with the Commission by Pioneering Management Corporation on or about
January 14, 1997.
(13) Shares were owned beneficially at December 31, 1996 by Travelers Group
Inc., an investment advisor registered under the Advisors Act. The
above information is based on Schedule 13G filed with the Commission
by Travelers Group Inc. on or about February 14, 1997.
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<PAGE> 169
UNAUDITED PRO FORMA CONDENSED COMBINED
FINANCIAL STATEMENTS
The following unaudited consolidated pro forma information gives pro forma
effect to the acquisition by Olicom of CrossComm. The unaudited pro forma
consolidated balance sheet as of December 31, 1996, and the unaudited pro forma
consolidated statement of income for the year ended December 31, 1996, combine
the consolidated historical balance sheet of Olicom and the consolidated
historical balance sheet of CrossComm as if the acquisition of CrossComm had
been completed on December 31, 1996, and combine the consolidated historical
statement of income of Olicom and the consolidated historical statement of
operations of CrossComm as if the acquisition has been completed on January 1,
1996. This pro forma information should be read in conjunction with the
respective consolidated historical financial statements (including notes
thereto) of Olicom and CrossComm appearing elsewhere herein.
The pro forma adjustments reflecting the consummation of the acquisition on the
purchase method of accounting are based on available financial information and
certain estimates and assumptions set forth in the notes to unaudited pro forma
consolidated financial information. The assumptions include the acquisition of
all of the outstanding shares of CrossComm Common Stock for $50,828,000 cash,
the issuance of approximately 2,700,000 shares of Olicom Common Stock with a
market price of $15.50 per share and the issuance of Warrants to purchase
approximately 1,100,000 shares of Olicom Common Stock, each such warrant having
an estimated market value of $3.25. Olicom and CrossComm estimate that they
will incur, in the aggregate, direct transaction costs of approximately $5
million associated with the Merger. This is a preliminary estimate only and is
therefore subject to change. There can be no assurance that Olicom will not
incur additional charges to reflect costs associated with the Merger. The pro
forma adjustments do not reflect any operating efficiencies and cost savings
that may be achievable with respect to the combined companies.
The consideration paid and costs incurred to acquire CrossComm comprises
the following:
<TABLE>
<S> <C>
Cash $ 50,828
Assumed issuance of 2.7 million shares 42,020
Assumed issuance of 1.1 million warrants 3,552
Estimated professional fees and other
DIRECT TRANSACTION COSTS 5,000
--------
$101,400
========
</TABLE>
The following information is not necessarily indicative of the future
financial position or operating results of the combined company or the financial
position or operating results of the combined company had the acquisition
occurred on December 31, 1996, or at the beginning of the year. For purposes of
preparing its consolidated financial statements, Olicom will establish a new
basis for CrossComm's assets and liabilities based upon the fair values thereof
and the Olicom's purchase price thereof, including the costs of the acquisition.
A final determination of required purchase accounting adjustments, including the
allocation of the purchase price to the identifiable tangible and intangible
assets, including in-process research and development, acquired assets of the
combined company and liabilities assumed based on their respective fair values
has not yet been made. Accordingly, the purchase accounting adjustments made in
connection with the preparation of the unaudited pro forma consolidated
financial information are preliminary and have been made solely for the purposes
of preparing the pro forma consolidated financial information. Olicom will
undertake a study to determine the fair value of certain of CrossComm's assets
and liabilities and will make appropriate purchase accounting adjustments upon
completion of that study. The pro forma statements reflect Olicom's best
estimates, however the actual financial position and results of operations may
differ significantly, from the pro forma amounts reflected herein because of
various factors, including, without limitation, access to additional
information, changes in value and changes in operating results between the date
of preparation of the pro forma financial data and the date on which the
acquisition closes.
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<PAGE> 170
UNAUDITED PROFORMA CONSOLIDATED BALANCE SHEET
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1996
-------------------------------------------------
PRO FORMA PRO FORMA
OLICOM CROSSCOMM ADJUSTMENTS CONSOLIDATED
-------- --------- ----------- ------------
<S> <C> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents (Note 1)........................ $ 41,663 $ 6,461 $(37,228) $ 10,896
Short-term investments (Note 1)........................... 9,887 37,279 (9,200) 37,966
Accounts receivable....................................... 39,625 8,277 47,902
Inventories............................................... 22,252 5,473 27,725
Deferred income taxes..................................... 945 -- 945
Prepaid expenses.......................................... 1,769 1,702 3,471
-------- -------- -------- --------
116,141 59,192 (46,428) 128,905
Property and equipment...................................... 11,032 5,464 16,496
Other assets................................................ -- 2,203 2,203
Goodwill (Note 2)........................................... 751 -- 6,390 7,141
-------- -------- -------- --------
Total Assets........................................ $127,924 $ 66,859 $(40,038) $154,745
-------- -------- -------- --------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable (Note 3)................................. $ 21,083 $ 3,537 $ 5,000 $ 29,620
Accrued payroll and related expenses...................... 5,258 4,459 9,717
Accrued product warranty expense.......................... 823 1,162 1,985
Income taxes payable...................................... 2,570 -- 2,570
Deferred revenue.......................................... -- 3,339 3,339
-------- -------- -------- --------
Total current liabilities........................... 29,734 12,497 5,000 47,231
Minority interest........................................... 681 -- 681
Common Stock (Note 4)....................................... 614 92 $ 22 728
Additional paid-in capital (Note 4)......................... 52,348 72,534 (27,074) 97,808
Retained earnings (Note 5).................................. 56,849 (21,449) (14,801) 20,599
Treasury stock.............................................. (11,831) -- (11,831)
Unrealized gain/loss........................................ (471) 3,185 (3,185) (471)
-------- -------- -------- --------
Total stockholders' equity.......................... 97,509 54,362 (45,038) 106,833
-------- -------- -------- --------
Total liabilities and stockholders' equity.......... $127,924 $ 66,859 $(40,038) $154,745
-------- -------- -------- --------
</TABLE>
UNAUDITED PROFORMA CONSOLIDATED STATEMENT OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1996
-------------------------------------------------
PROFORMA PROFORMA
OLICOM CROSSCOMM ADJUSTMENTS CONSOLIDATED
-------- --------- ----------- ------------
<S> <C> <C> <C> <C>
Net sales................................................... $168,228 $ 44,874 $213,102
Cost of sales............................................... (95,236) (24,098) (119,334)
-------- -------- ------- --------
Gross profit................................................ 72,992 20,776 -- 93,768
Research and development.................................... (12,852) (9,830) (22,682)
Sales, general and administration (Note 2).................. (47,344) (20,179) (913) (68,436)
Acquisition related expenses................................ (3,787) -- (3,787)
Special charge re. management change........................ (1,402) -- (1,402)
-------- -------- ------- --------
Income (loss) from operations............................... 7,607 (9,233) (913) (2,539)
Interest and gain on investments (Note 6)................... 5,084 3,953 (2,554) 6,483
-------- -------- ------- --------
Income (loss) before taxes.................................. 12,691 (5,280) (3,467) 3,944
Income tax (Note 6)......................................... (4,727) -- 868 (3,859)
-------- -------- ------- --------
7,964 (5,280) (2,599) 85
Minority interest........................................... (539) -- (539)
-------- -------- ------- --------
7,425 (5,280) (2,599) (454)
======== ======== ======= ========
Net income (loss) per share................................. $ 0.50 $ (0.03)
Weighted average shares outstanding (Note 7)................ 14,786 17,394
======== ========
</TABLE>
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<PAGE> 171
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED
(In Thousands)
- ---------------
Note 1: Cash adjustments assume sales of short-term investments ($9,200),
exercise of vested CrossComm Options $4,400, and cash-payment on
closing ($50,828).
Note 2: The part of the purchase price to be accounted for as goodwill has been
assumed to be $6,390, which is assumed to be amortized over a 7 year
period. The goodwill amortization is not tax deductible.
Note 3: Accounts payable adjustment reflects estimated transaction charges of
$5,000.
Note 4: Common stock and additional paid in capital adjustments reflect the
issuance of shares of Olicom Common Stock at closing. Additional paid
in capital adjustment reflects the issuance of shares of Olicom Common
Stock and Warrants at closing.
Note 5: Retained earnings adjustment reflects an assumed write-off of in process
research and development in the amount of $3,625,000.
Note 6: Interest income foregone with respect to the portion of the Merger
Consideration to be paid in cash has been assumed to be 5.5% per
annum. The tax consequence has been assumed to be 34%.
Note 7: The number of shares of Olicom Common Stock outstanding has been
adjusted to reflect the issuance of new shares.
Note 8: The purchase price has been allocated as follows:
<TABLE>
<S> <C>
Book value of net assets of CrossComm $ 58,760*
Goodwill recognized 6,390
In-process research and development 36,250
-------
$101,400
========
</TABLE>
* Includes proceeds from exercise of vested CrossComm options
Note 9: The $36,250 of acquired in-process research and development will be
written off to expense in the period in which the closing of the Cross-
Comm acquisition occurs. This write off of in-process research and
development is not reflected in the Unaudited Proforma Consolidated
Statement of Income because pro forma adjustments are limited to those
events that are expected to have a continuing impact.
Note 10:Following the acquisition, Olicom estimates that it will incur
additional charges to operations for the costs associated with
integrating the operations of the two companies.
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<PAGE> 172
TAX CONSIDERATIONS
The following describes the principal United States federal and Danish
income tax consequences of the Merger, assuming that the Merger is consummated
as contemplated herein, and of the ownership of Olicom Common Stock and the
Olicom Warrants. The discussion assumes that a CrossComm stockholder holds its
CrossComm Common Stock and will hold its Olicom Common Stock and Olicom
Warrants as capital assets. This discussion is based on current laws and
interpretations thereof, and there can be no assurance that future legislation,
regulations, administrative rulings, or court decisions will not adversely
affect the accuracy of the statements contained herein. The discussion does
not take account of rules that may apply to stockholders that are subject to
special treatment under United States federal or Danish income tax laws
(including, without limitation, trusts, insurance companies, dealers in
securities, certain retirement plans, financial institutions, tax exempt
organizations, holders who are not United States citizens or residents and
CrossComm stockholders who acquired CrossComm Common Stock pursuant to the
exercise of an employee stock option or otherwise as compensation). No rulings
have been requested or received from the Internal Revenue Service (the "IRS")
as to the matters discussed herein and there is no intent to seek any such
rulings. Accordingly, no assurance can be given that the IRS will not
challenge the tax treatment of certain matters discussed in this summary or, if
it does challenge the tax treatment, that it will not be successful.
THE DISCUSSION BELOW DOES NOT ADDRESS STATE, LOCAL, PROVINCIAL,
TERRITORIAL OR FOREIGN TAX CONSEQUENCES (OTHER THAN THOSE DESCRIBED UNDER
"DANISH TAX CONSEQUENCES OF OWNERSHIP OF OLICOM COMMON STOCK" AND "DANISH TAX
CONSEQUENCES OF OWNERSHIP OF WARRANTS") OF THE MERGER OR THE OWNERSHIP OF
OLICOM COMMON STOCK OR OLICOM WARRANTS AND THE SPECIFIC TAX CONSEQUENCES TO
EACH CROSSCOMM STOCKHOLDER MAY DIFFER. CONSEQUENTLY, EACH CROSSCOMM
STOCKHOLDER SHOULD CONSULT ITS OWN TAX ADVISOR AS TO THE SPECIFIC TAX
CONSEQUENCES OF THE MERGER AND THE OWNERSHIP OF OLICOM COMMON STOCK AND OLICOM
WARRANTS.
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
Olicom, MergerSub and CrossComm. The merger of MergerSub into
CrossComm, with CrossComm surviving and with CrossComm stockholders receiving
the Merger Consideration in the transaction, constitutes a taxable reverse
subsidiary merger which will be treated for federal income tax purposes as a
direct purchase by Olicom of the CrossComm Common Stock from the CrossComm
stockholders in exchange for the Merger Consideration, and as such the
transitory existence of MergerSub as the wholly-owned subsidiary of Olicom will
be disregarded
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<PAGE> 173
for United States federal income tax purposes. Because Olicom will be treated
as purchasing the CrossComm Common Stock directly from the CrossComm
stockholders, unless a Code Section 338 election is made (or is deemed to have
been made under the Code) to treat the purchase by Olicom of the CrossComm
Common Stock as a purchase of the assets of CrossComm resulting in a stepped up
basis in the CrossComm assets, no gain or loss will be recognized by CrossComm
as a result of the Merger. Further, no gain or loss will be recognized by
Olicom upon the receipt of the shares of CrossComm Common Stock from the
CrossComm stockholders in exchange for the Merger Consideration. Olicom's
adjusted tax basis in the CrossComm Common Stock acquired in the Merger will
generally be equal to the value of the Merger Consolidation paid by Olicom to
the CrossComm stockholders in exchange for such CrossComm Common Stock.
Net Operating Losses. CrossComm had net operating loss carryforwards
of approximately $20,965,000 as of December 31, 1996. Under Section 382 of the
Code, the ability of CrossComm to utilize its net operating losses will be
limited if CrossComm experiences an "ownership change" as a consequence of the
Merger. Section 382 defines an "ownership change" as an increase of more than
50 percentage points in ownership of stock owned by one or more 5% stockholders
over the lowest percentage of stock owned by such stockholders during the
preceding three year period. It is anticipated that the Merger will result in
an "ownership change" within the meaning of Code Section 382, and thus, will
result in the utilization of any remaining carryforwards of CrossComm being
limited under Section 382. The limitation on such net operating carryforwards
(the "Section 382 Limitation") is determined as follows: first, the value of
CrossComm is determined (i.e. the fair market value of all outstanding equity
of CrossComm immediately prior to the ownership change, subject to adjustment
in certain cases); and second, a percentage equal to the long-term tax-exempt
rate determined by the Treasury Department (currently 5.50%) is multiplied by
the value of CrossComm to determine the amount of the net operating loss
carryforwards of CrossComm which may be used in any given year to offset
taxable income of CrossComm (subject to exception for certain built-in gain
items). To the extent that CrossComm uses less than the Section 382 Limitation
in any taxable year, the unused portion of such Section 382 Limitation shall be
added to the Section 382 Limitation for the next taxable year.
CrossComm Stockholders. A CrossComm stockholder will recognize gain
or loss as a result of the Merger, measured by the difference between such
stockholder's amount realized and its adjusted basis in the CrossComm Common
Stock. Such amount realized will generally equal the fair market value of the
Merger Consideration received by such CrossComm stockholder in exchange for its
CrossComm Common Stock.
The gain or loss recognized as a result of the Merger will be treated
as a capital gain or loss, provided that CrossComm is not treated for federal
income tax purposes as a "collapsible corporation." CrossComm's management
believes that CrossComm is not a collapsible corporation for federal income tax
purposes. For United States federal income tax purposes capital losses are
generally deductible only against capital gains and not against ordinary
income.
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<PAGE> 174
UNITED STATES TAX CONSEQUENCES OF OWNERSHIP OF OLICOM COMMON STOCK
Dividends. For United States federal income tax purposes, the gross
amount of all dividends (that is, the amount before reduction for Danish
withholding tax) paid with respect to Olicom Common Stock out of the current or
accumulated earnings and profits of Olicom ("E&P") to a citizen or resident of
the United States (for United States federal income tax purposes), a
corporation or partnership organized under the laws of the United States or any
State thereof, or estates or trusts the income of which is subject to United
States federal income tax regardless of its source (collectively, "United
States Stockholders") will be subject to United States federal income taxation
as foreign source dividend income. United States corporations that hold shares
of Olicom Common Stock will not be entitled to the dividends received deduction
available for dividends received from United States corporations. To the
extent that a distribution exceeds E&P, it will be treated first as a return of
capital to the extent of the United States Stockholder's basis, and then, as
gain from the sale of a capital asset.
For United States federal income tax purposes, the amount of any
dividend paid in Danish kroner will be the United States dollar value of the
kroner at the exchange rate in effect on the date of receipt, whether or not
the kroner is converted into United States dollars at that time.
The withholding tax imposed by Denmark generally is a creditable
foreign tax for United States federal income tax purposes. Therefore, a United
States Stockholder generally will be entitled to include the amount withheld as
foreign tax paid in computing a foreign tax credit (or in computing a deduction
for foreign income taxes paid, if the United States Stockholder does not elect
to use the foreign tax credit provisions of the Code). The Code, however,
imposes a number of limitations on the use of foreign tax credits, based on the
particular facts and circumstances of each taxpayer. United States
Stockholders who hold Olicom Common Stock should consult their tax advisors
regarding the availability of the foreign tax credit.
A United States Stockholder also may be subject to backup withholding
at the rate of 31% with respect to dividends paid on or proceeds from the sale
or other disposition of shares of Olicom Common Stock, unless the United States
Stockholder (a) is a corporation or comes within certain other exempt
categories, or (b) provides a taxpayer identification number, certifies as to
no loss of exemption from backup withholding and otherwise complies with
applicable requirements of the backup withholding rules.
Sale or Other Disposition of Olicom Common Stock. Gain or loss
recognized by a United States Stockholder on the sale or other disposition of
Olicom Common Stock will be subject to United States federal income taxation as
capital gain or loss in an amount equal to the difference between such United
States Stockholder's basis in the Olicom Common Stock and the amount realized
upon such disposition. The capital gain or loss will be short-term or
long-term, depending on whether the United States Stockholder has held the
Olicom Common Stock for more than one year. Capital losses are generally
deductible only against capital gains and not against ordinary income.
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<PAGE> 175
UNITED STATES TAX CONSEQUENCES OF OWNERSHIP OF WARRANTS
Exercise of Warrants. Generally, no gain or loss will be recognized
for United States federal income tax purposes upon exercise of a Warrant. A
holder's initial tax basis in a Warrant will be equal to the value of the
Warrant at the time the holder receives such Warrant. The tax basis of shares
of Olicom Common Stock acquired upon exercise of a Warrant will be equal to the
sum of (i) the holder's tax basis in such Warrant and (ii) the exercise price.
The holding period of the Olicom Common Stock acquired upon exercise of a
Warrant will begin on the date of exercise of the Warrant.
Disposition of Warrants. In general, the sale, exchange or other
taxable disposition of a Warrant will result in gain or loss to the holder in
an amount equal to the difference between the amount realized on such sale,
exchange or other disposition and the holder's tax basis in the Warrant. Such
gain or loss generally will be long-term capital gain or loss if the Warrant is
held by the holder for more than one year at the time of the disposition and
the Olicom Common Stock issuable upon exercise of such Warrant would have been
a capital asset if acquired by the holder.
Expiration. The expiration of a Warrant should generally result in a
long-term capital loss to the holder equal to the holder's tax basis in the
Warrant if the Warrant is held by the holder for more than one year at the time
of the expiration and the Olicom Common Stock issuable upon exercise of the
Warrant would have been a capital asset if acquired by such stockholder.
Adjustments to Conversion Ratio. Adjustments made to the number of
shares of Olicom Common Stock that may be acquired upon the exercise of a
Warrant, or the failure to make such adjustments, may result in a taxable
distribution to the holders of Warrants pursuant to Section 305 of the Code.
DANISH TAX CONSEQUENCES OF THE MERGER
Olicom, MergerSub and CrossComm. The Merger of MergerSub into
CrossComm should not result in the recognition of taxable gain or loss by
Olicom, MergerSub or CrossComm for Danish income tax purposes.
CrossComm Stockholders. The exchange by a United States Stockholder
of CrossComm common stock for its allocable share of the Merger Consideration
should not result in the recognition of taxable gain or loss by such United
States Stockholder for Danish income tax purposes.
DANISH TAX CONSEQUENCES OF OWNERSHIP OF OLICOM COMMON STOCK
Dividends. For Danish income tax purposes, the gross amount of all
distributions made by Olicom to its stockholders prior to the fiscal year in
which Olicom is completely liquidated and dissolved is taxed as a dividend,
including distributions that otherwise exceed Olicom's E&P. Distributions made
by Olicom to its stockholders during the fiscal year in which Olicom is
completely liquidated and dissolved are taxed as capital gains. In addition,
the gross amount
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<PAGE> 176
paid by Olicom to redeem Olicom Common Stock owned by a stockholder generally
is taxed as a dividend. However, a stockholder may apply to Danish tax
authorities for an exemption from the dividend tax. If the exemption request
is granted, the redemption will be taxed as capital gains. The granting of
bonus shares to stockholders, and the right of stockholders to subscribe for
Olicom Common Stock at a price that is less than the current trading value of
such Olicom Common Stock, are not considered taxable distributions to
stockholders.
In general, a Danish withholding tax of 25% is levied on all
dividends. However, a United States stockholder may apply to the Danish tax
authorities for a partial refund of the dividends tax that has been withheld.
If this refund request if granted, the Danish withholding tax on such dividends
is effectively reduced to 15%. Olicom does not presently contemplate the
payment of any cash dividends on Olicom Common Stock. Should Olicom, however,
decide to make payment of a cash dividend, Olicom will apply to the Danish tax
authorities for a blanket exemption that would allow Olicom to withhold only
15% of all dividends paid to a United States holder. While Olicom believes
that such an exemption will be granted, there can be no assurance that this
will occur.
Sale of Shares. Capital gains realized by United States Stockholders
upon the sale of Olicom Common Stock should be exempt from Danish taxation.
DANISH TAX CONSEQUENCES OF OWNERSHIP OF WARRANTS
Exercise of Warrants. Generally, a United States Stockholder should
not recognize taxable gain or loss for Danish income tax purposes upon the
exercise of a Warrant.
Sale of Warrants. Generally, a United States Stockholder should not
recognize taxable gain or loss for Danish income tax purposes upon the sale of
a Warrant.
Expiration. Upon the expiration of a Warrant, a United States
Stockholder should not recognize taxable gain or loss for Danish income tax
purposes.
DESCRIPTION OF OLICOM COMMON STOCK
Set forth below is a summary of certain information concerning
Olicom's share capital and a brief description of certain provisions contained
in the Olicom Articles and of provisions of the Companies Act applicable to the
formation, organization and operation of Olicom. An English translation of the
Olicom Articles has been filed as an exhibit to this Joint Proxy
Statement/Prospectus. The following summary and description do not purport to
be complete statements of these provisions and are qualified in their entirety
by reference to the Olicom Articles, such exhibit and applicable Danish law.
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<PAGE> 177
AUTHORIZED CAPITAL
The authorized share capital of Olicom consists of 15,938,000 shares
of common stock, of which there were issued and outstanding 14,734,000 shares
as of May __, 1997, and 1,204,000 shares were held in the treasury of Olicom.
In addition, __________ shares of Olicom Common Stock are currently reserved
for issuance pursuant to options or warrants which have been or may be granted
under Olicom's Share Incentive Plans. See "The Olicom Meeting -- Matters to Be
Considered at the Olicom Meeting: Proposal 8 -- Approval of the 1997 Share
Incentive Plan."
Olicom has further authorized the issuance of 8,000,000 shares in
connection with private placements or the acquisition of assets or companies at
such times and on such terms as may be determined by the Olicom Board. The
authorizations relating to the issuance of shares for the specific purposes of
private placements, acquisitions of assets or companies are valid until August
25, 1997, and the authorizations relating to the issuance of shares under
Olicom's Share Incentive Plans are valid until May 5, 1998, unless extended by
an annual general meeting of stockholders (a "General Meeting") prior thereto.
All shares are issued in registered form.
LIABILITY TO FURTHER CALL OR ASSESSMENT
The shares of Olicom Common Stock to be issued in connection with the
Merger, and upon exercise of Warrants, when issued and paid for, will be fully
paid and non-assessable.
EXCHANGE CONTROLS
There are no governmental laws, decrees or regulations of the Kingdom
of Denmark that restrict the export or import of capital (including, without
limitation, foreign exchange controls), or that affect the remittance of
dividends, interest or other payments to nonresident holders of Olicom Common
Stock. There are no limitations imposed by the laws of the Kingdom of Denmark
or the Olicom Articles on the right of nonresident or foreign holders to hold
or vote shares of Olicom Common Stock.
TRANSFER AGENT AND REGISTRAR
American Stock Transfer & Trust Company or its successor is the
transfer agent and registrar for the Olicom Common Stock.
COMPARISON OF STOCKHOLDER RIGHTS
UNDER THE LAWS OF DENMARK AND DELAWARE
The following is a summary of material differences between the rights
of holders of CrossComm Common Stock and holders of Olicom Common Stock, and
between the DGCL and the Companies Act which may affect the rights and
interests of CrossComm stockholders. This
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<PAGE> 178
summary is not, and does not purport to be, complete and does not purport to
identify all differences that may, under given circumstances, be material to
CrossComm stockholders. This summary is qualified in its entirety be reference
to the DGCL and the Companies Act, and the Olicom Articles and the CrossComm
Certificate. This summary should be read in conjunction with the "Description
of Olicom Common Stock".
MEETINGS OF STOCKHOLDERS
The General Meeting is the supreme authority in the determination of
all matters affecting the affairs of Olicom, subject to the limitations
provided in the Companies Act and the Olicom Articles. The Olicom Articles
require that a General Meeting be held in greater Copenhagen not later than the
end of May during each year. Any stockholder in Olicom is entitled to submit
proposals to be discussed at a General Meeting; however, in order to be
considered at a General Meeting, any proposal that would require consideration
by the Olicom Board is required to be submitted in writing to the Olicom Board
not later than February 1 following the end of the year to which such General
Meeting relates. However, if a proposal is received subsequent to the February
1 deadline, the Olicom Board is required to consider such proposal to the
extent that it is practical to include consideration of such proposal in the
agenda of a General Meeting. At a General Meeting, the audited accounts of
Olicom (which are prepared in accordance with Danish law) are submitted for
approval, together with the proposed appropriations of profit and the election
of the board of directors and auditors. In addition, at a General Meeting the
Olicom Board submits a report on the activities of Olicom during the previous
year.
Under the DGCL, an annual meeting of stockholders must be held for the
election of directors on a date and at a time designated by or in the manner
provided in the bylaws. Any other proper business may be transacted at the
annual meeting.
STOCKHOLDER POWER TO CALL SPECIAL MEETINGS
Generally, extraordinary General Meetings are held at the request of
the Olicom Board, Olicom's auditors or stockholders representing at least one
tenth of the nominal value of the total share capital.
Under the DGCL, a special meeting of stockholders may be called by the
board of directors or any other person authorized to do so in the corporation's
certificate of incorporation or bylaws. The DGCL does not provide stockholders
with an automatic right to call special meetings of stockholders.
QUORUM OF STOCKHOLDERS
Pursuant to the Companies Act, a quorum of stockholders is not
required for a General Meeting to conduct business.
Under the DGCL, the presence in person or by properly executed proxy
of holders of a majority of the outstanding shares of stock entitled to vote is
required to constitute a quorum
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at meetings of stockholders. A quorum is required in order for a stockholders'
meeting to conduct business.
VOTING RIGHTS
Except as described below, a holder of a share of Olicom Common Stock
is entitled to one vote at any General Meeting. Except as described below and
subject to provisions of the Companies Act (which require that certain
resolutions be passed by a greater vote), matters (including the election of
directors) are decided at a General Meeting by a simple majority of the votes
cast. Any stockholder is entitled to attend and vote at a General Meeting,
either in person or by proxy. However, under the Olicom Articles a stockholder
who has acquired shares by means of a transfer and who is not registered in
Olicom's list of stockholders or who has not notified and documented to Olicom
such acquisition of shares at the time that Olicom notices a General Meeting has
no right to vote at such meeting.
Under the DGCL, each stockholder is entitled to one vote per share,
unless the certificate of incorporation provides otherwise. In addition, the
certificate of incorporation may provide for cumulative voting at all elections
of directors of a corporation.
CUMULATIVE VOTING
In an election of directors under cumulative voting, each share of
stock normally having one vote is entitled to a number of votes equal to the
number of directors to be elected. A stockholder may then cast all such votes
for a single candidate or may allocate them among as many candidates as the
stockholder may choose. Without cumulative voting, the holders of a majority
of the shares present at a meeting held to elect directors would have the power
to elect all the directors to be elected at that meeting, and no person could
be elected without the support of holders of a majority of the shares voting at
such meeting.
The Companies Act contains no regulation regarding cumulative voting.
The Olicom Articles do not provide for cumulative voting. Under the DGCL,
cumulative voting is permitted only if it is specifically provided for in the
corporation's certificate of incorporation.
ACTION BY WRITTEN CONSENT OF STOCKHOLDERS
Under the Companies Act, any decisions that are required to be taken at
a meeting of stockholders (including decisions with respect to the election of
directors, amendments of articles of association and other similar matters) may
only be undertaken at a General Meeting. The formal requirements for notice may
only be waived if all stockholders consent to such waiver.
The DGCL provides that, unless otherwise provided in a corporation's
certificate of incorporation, any action that may be taken at a meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize such action at a meeting,
consent in writing.
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VOTING REQUIREMENTS
Resolutions for the dissolution of Olicom, its merger with another
corporation, the amendment of the Olicom Articles, and certain other matters
are required by the Companies Act to be approved by (i) two-thirds of the votes
cast at the General Meeting, and (ii) two-thirds in nominal value of the voting
capital represented and entitled to vote at the meeting. The approval at a
General Meeting of any proposal that has not been made or endorsed by the
Olicom Board requires that more than one-half of the shares and votes be
represented at such meeting, and that three-fourths of the shares and votes
represented at such meeting vote in favor of such proposal. Amendments which
lessen the effect of Article 6 of the Olicom Articles (which provides for the
limitation of any person's ownership of Olicom's share capital or votes (see
"Limitations on Share Ownership")) require the approval of at least
three-fourths of the votes cast at a General Meeting, unless such amendment has
been proposed or endorsed by the Olicom Board in which case the amendment can
be adopted in the manner ordinarily required for amendments to the Olicom
Articles.
Under the DGCL, an amendment to the certificate of incorporation
requires the affirmative vote of the holders of majority of the shares entitled
to vote thereon, unless the corporation's certificate of incorporation requires
a greater or lesser number for approval. Furthermore, under the DGCL, the
holders of the outstanding shares of a class are entitled to vote as a class
upon any proposed amendment to the certificate of incorporation, whether or not
they are entitled to vote thereon by the provisions of the corporation's
certificate of incorporation, if the amendment would increase or decrease the
aggregate number of authorized shares of such class, increase or decrease the
par value of the shares of such class, or alter or change the powers,
preferences or special rights of the shares of such class so as to adversely
affect them.
Under the DGCL, an agreement of merger, exchange or consolidation must
be approved by the directors of each constituent corporation and adopted by the
affirmative vote of the holders of a majority of the outstanding shares
entitled to vote thereon, or by a greater vote as provided in a corporation's
charter. The DGCL does not require the separate vote of any class of shares,
unless any provision of the plan of merger would, if contained in a proposed
amendment to the articles, entitle the class or series to vote as a class or
series. Additionally, the DGCL provides generally that, unless its charter
provides otherwise, no vote of the stockholders of the surviving corporation is
required to approve the merger if (i) the agreement of merger does not amend in
any respect the corporation's charter, (ii) each share outstanding immediately
prior to the effective date is to be an identical outstanding share of the
surviving corporation after the effective date, and (iii) the number of shares
of the surviving corporation's common stock to be issued in the merger plus the
number of shares of common stock into which any other securities to be issued
in the merger are initially convertible does not exceed 20% of its common stock
outstanding immediately prior to the effective date of the merger.
Under the DGCL, a dissolution must be approved by stockholders holding
100% of the total voting power or the dissolution must be initiated by the
board of directors and approved by the holders of a majority of the outstanding
voting shares of the corporation, unless a greater vote is provided in the
certificate of incorporation.
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BOARD OF DIRECTORS
Olicom is managed by a board of directors which, under the Olicom
Articles, is required to consist of between four and eight members elected, with
a simple majority, by the stockholders at a General Meeting. Directors are
elected for one-year terms expiring at the end of the following year's General
Meeting, and are eligible for reelection. Absent an exemption from the Ministry
of Industry of Denmark, at least 50% of the directors must be residents of
Denmark; however, exemptions are automatically granted if at least 50% of the
directors are residents of other countries in the European Community. In
addition, the employees of Olicom may be represented on the Olicom Board by
directors elected in accordance with statutory Danish law to that effect. The
statutory rights of the employees of Olicom and its Danish subsidiaries (which
rights have not been exercised to date) include the following principal
features. Employees of corporations registered in Denmark that constitute a
"Group" which, during the past three years, has employed an average of not fewer
than 35 employees (such as Olicom and its Danish subsidiaries) have the right to
elect from among such employees a number of directors of the parent corporation,
so that the total number of employee-directors and substitutes therefor will
equal one-half of the total number of directors elected by the stockholders at a
General Meeting (but not fewer than three directors).
Under the DGCL, the board of directors of a corporation must consist
of one or more members. The number of directors must be fixed by, or in a
manner provided in, the bylaws, unless the certificate of incorporation fixes
the number of directors. Each director holds his or her office until a
successor is elected or qualified or until his or her resignation or removal.
The directors are elected at the annual meeting of stockholders. The DGCL
permits the board of directors of a Delaware corporation to change the
authorized number of directors by amendment to the corporation's bylaws or in
the manner provided in the bylaws unless the number of directors is fixed in
the corporation's certificate of incorporation, in which case a change in the
number of directors may be made only by amendment to the certificate of
incorporation.
REMOVAL OF DIRECTORS
Under the Companies Act, any director or the entire board of directors
may be removed, with or without cause, with the approval of a majority of the
outstanding shares entitled to vote. However, board members elected by the
employees in accordance with the statutory rights of the employees as described
above cannot be removed by the stockholders at a General Meeting. Such
employee-elected directors (who are elected for a four-year period) may be
removed at any time by utilizing the same procedure as is used for their
election. In addition, an employee-elected director is required to resign his
directorship at such time as his employment with Olicom terminates.
Under the DGCL, any director or the entire board of directors of a
Delaware corporation without a classified board of directors may be removed
with or without cause by the holders of a majority of the shares then entitled
to vote at an election of directors.
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CLASSIFIED BOARD OF DIRECTORS
A classified board is one in which a certain number, but not all, of
the directors are elected on a rotating basis each year. This method of
electing directors makes a change in the composition of the board of directors,
and a potential change in control of a corporation, a lengthier and more
difficult process. The DGCL permits, but does not require, a classified board
of directors with staggered terms under which the directors are elected for
terms of two or three years. The Olicom Articles do not currently provide for
a classified board.
FILLING VACANCIES ON THE BOARD OF DIRECTORS
Under the Companies Act, a member of the board of directors may retire
from the board of directors at any time by giving notice to the board. Where a
member of the board of directors leaves his office before the expiration of his
term and no deputy board member has been elected to replace him, the other
members of the board of directors may arrange for the election of a new member
to hold office for the remainder of the retiring member's term. Where the
election of a director is effected by a General Meeting, the election of a new
member of the board of directors can be postponed until the next ordinary
General Meeting at which election for the board of directors can take place,
provided that the board of directors, with the remaining members and deputies
therefor, constitute a quorum.
The DGCL provides that vacancies and newly-created directorships may
be filled by a majority of the directors then in office (even though less than
a quorum) unless (i) otherwise provided in the certificate of incorporation or
bylaws of the corporation or (ii) the certificate of incorporation directs that
a particular class is to elect such director, in which case any other directors
elected by such class, or sole remaining director, shall fill such vacancy.
APPRAISAL RIGHTS
Under the Companies Act, in connection with a merger, stockholders in
a non-surviving corporation may claim compensation from the corporation if they
dissent at the General Meeting and if the consideration for their shares is not
reasonable and appropriate. In such event, legal action must be instituted by
the dissenting stockholder within two weeks of the adoption of the merger by
the merging corporations.
Under the DGCL, appraisal rights are available only in connection with
statutory mergers or consolidations. Generally, stockholders of a Delaware
corporation who dissent from a merger or consolidation of the corporation for
which a stockholders' vote is required are entitled to appraisal rights,
requiring the surviving corporation to purchase the dissenting shares at fair
value. There are, however, no statutory rights of appraisal with respect to
stockholders of a Delaware corporation whose shares of stock are either (i)
listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000
stockholders, in each case where such stockholders receive only shares of stock
of the corporation surviving or resulting from the merger or consolidation, or
cash in lieu of fractional interests therein, or a combination thereof.
INSPECTION OF STOCKHOLDER LIST
Under the Companies Act, the register of stockholders is not open to
stockholders, but is available at the corporation's office for inspection by
public authorities. In corporations where the employees have not elected
members to the board of directors, the register of stockholders is also
available to a representative of the employees.
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Under the DGCL, any stockholder may inspect for any proper purpose the
stock ledger, list of stockholders and other books and records of a Delaware
corporation during the usual hours of business.
STOCKHOLDER DERIVATIVE ACTIONS
Any resolution to the effect that a Danish corporation shall institute
legal proceedings against the founders, directors, managers, valuers, auditors,
investigators or stockholders in pursuance of the applicable provisions of the
Companies Act regarding such persons' liabilities towards the corporation, is
subject to the adoption of such a resolution at a General Meeting by
stockholders. Where stockholders representing at least one-tenth of the share
capital oppose the decision in favor of an exemption from liability or in favor
of waiving the right to institute legal proceedings against such persons, any
stockholder can institute legal proceedings claiming that the responsible
persons be required to pay to the corporation the cost of such matter; however,
such persons will be entitled to have such costs reimbursed by the corporation
to the extent that the corporation recovers its costs in such action.
Stockholders who thereafter take legal action are responsible for the payment
of the costs of the case; however, they are entitled to have such costs
reimbursed by the corporation. Any such legal action may not be instituted
later than six months after the adoption of the resolution by the General
Meeting, or if an investigation into the affairs of the corporation has been
commenced in pursuance of the provisions of the Companies Act providing for
investigations, six months after such investigation having been completed.
Under Delaware law, a stockholder may bring a derivative action on
behalf of the corporation to enforce the rights of the corporation. The person
may institute and maintain such a suit only if such person was a stockholder at
the time of the transaction which is the subject of the suit. Additionally,
under the DGCL, the plaintiff generally must be a stockholder not only at the
time of the transaction which is the subject of the suit, but also through the
duration of the derivative suit. The DGCL also requires that the derivative
plaintiff make demand on the directors of the corporation to assert the
corporate claim before the suit may be prosecuted by the derivative plaintiff,
unless such demand would be futile.
FIDUCIARY DUTIES OF DIRECTORS
Under the Companies Act, the board of directors and management of a
corporation have an obligation to act in the best interests of the corporation
and its stockholders. The directors are required to arrange for an appropriate
organization of the corporation's activities. The management of a corporation
chartered under the Companies Act is in charge of the day-to-day management of
the corporation, and in this connection, is required to comply with
instructions or orders of the board of directors. Without the approval of the
board of directors, management may not conduct transactions that, in light of
the general circumstances, are of an unusual nature or importance. The board
of directors is required to assure that the corporation's accounts and
financial administration are controlled in a manner deemed to be satisfactory
in view of the corporation's circumstances. In this regard, the board of
directors is required to assure that the bookkeeping and administration of
assets of the corporation are controlled in a satisfactory manner in light of
the corporation's circumstances. The board of directors is obligated to take
into consideration and protect interests other than those of the stockholders.
For example,
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members of the board of directors who have intentionally or negligently caused
damage to creditors of a corporation may be liable to the corporation's
creditors. The board of directors also has an obligation to assure that other
laws, such as environmental laws and laws with respect to workers' protection,
are duly complied with. Under the Companies Act, a corporation may not make
loans to, or grant a security interest that benefits, stockholders of the
corporation, or with respect to the directors or managers of such corportion or
its parent.
Under Delaware law, the members of a board of directors have
substantially similar legal obligations and fiduciary duties to the corporation
and its stockholders. A Delaware corporation may lend money to, or guarantee
any obligation incurred by, its officers or directors, if, in the judgment of
the board of directors, such loan or guarantee may reasonably be expected to
benefit the corporation. With respect to any other contract or transaction
between the corporation and one or more of its directors or officers, such
transactions are neither void nor voidable if either (i) the director's or
officer's interest is made known to the disinterested directors or the
stockholders of the corporation, who thereafter approve the transaction in good
faith, or (ii) the contract or transaction is fair to the corporation as of the
time it is approved or ratified by either the board of directors, a committee
thereof, or the stockholders.
LIABILITY AND INDEMNIFICATION
Under the Companies Act, directors and managers who, in connection
with the performance of their duties, deliberately or negligently inflict
damage on the corporation shall be liable to compensate such damage. Directors
and managers are also liable for damage inflicted on stockholders, creditors of
the corporation, or any or third party through a violation of the Companies Act
or the corporation's articles of association. A stockholder may be liable for
losses suffered by a corporation, other stockholders or any third party, to the
extent that such losses are the result of a violation of the Companies Act or a
corporation's articles of association committed deliberately or through gross
neglegence. In the event that a court finds that there is a danger of continued
abuse or there are other cirucumstances that support remedial action, a court
can require a stockholder who so violates the Companies Act or a corporation's
articles of association to purchase the shares of other stockholders who are
injured as a consequence thereof. In such event, the purchase price for such
shares shall be determined with due regard for the corporation's financial
condition and other matters that the court determines are reasonable in the
circumstances. Where several persons become liable to pay compensation at the
same time, they shall be joint and severally liable for the compensation. The
concept of indemnification of directors or managers of a corporation for
liabilities arising from their actions toward third parties as directors or
managers is not well known in Denmark. It is therefore not clear to what
extent, if any, an agreement for indemnifications of directors or managers is
effective under Danish law.
Under the DGCL, a corporation may include in its certificate of
incorporation a provision which would, subject to the limitations described
below, eliminate or limit directors' liability for monetary damage for breaches
of their fiduciary duty of care. Under the DGCL, a director's liability cannot
be eliminated or limited (i) for breaches of duty of loyalty, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for the payment of unlawful dividends or
expenditure of funds for unlawful stock purchases or redemptions, or (iv) for
transactions from which such director derived an improper personal benefit.
The DGCL further provides that no such provision shall eliminate or limit the
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liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
Generally, Section 145 of the DGCL permits a corporation to indemnify
certain persons made a party to an action by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or enterprise. To the extent that
person has been successful in any such matter, that person shall be indemnified
against expenses actually and reasonably incurred by him or her. In the case
of an action by or in the right of the corporation, no indemnification may be
made in respect of any matter as to which that person was adjudged liable
unless and only to the extent that the Delaware Court of Chancery or the court
in which the action was brought determines that despite the adjudication of
liability that person is fairly and reasonably entitled to indemnity for proper
expenses.
LIMITATIONS ON SHARE OWNERSHIP
The Olicom Articles provide that no person, firm or entity (each, a
"person") may, without obtaining the approval of the Olicom Board, own more
than 33% of Olicom's share capital or votes at any time (the "Share Ownership
Limit"). The Olicom Board may condition its approval on the satisfaction of
such conditions that it determines to be appropriate. For the purpose of
determining ownership of shares or votes, a person will generally be deemed to
own shares or votes which are considered to be beneficially owned by such
person under Rule 13d-3 under the Exchange Act.
A person who owns more than 33% of Olicom's share capital or votes at
any time who has not obtained the approval of the Olicom Board cannot be
registered or otherwise accepted as a stockholder, and such person will have no
voting rights, rights to dividends or distributions, or any other rights as a
stockholder, for such portion of such person's stockholding that exceeds 33%.
The Olicom Board may approve the ownership by a person of more than 33% of
Olicom's share capital or votes in (i) the event that such person has, prior to
purchasing more than 33% of Olicom's share capital or votes, requested the
approval by the Olicom Board to own more than the Share Ownership Limit, (ii)
the event that such person has made a legally binding and irrevocable bona fide
offer to all stockholders of Olicom (other than such person, to the extent that
he is a stockholder) to purchase all the shares and votes in Olicom at a price
deemed favorable by the Olicom Board, in its discretion or (iii) such other
circumstances, as determined by the Olicom Board. The Olicom Board has given
its approval to the ownership by Nilex, Olivetti Realty N.V., Lars Stig Nielsen
and Asbjorn Smitt of shares in excess of the Share Ownership Limit.
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The Olicom Articles contain no other specific antitakeover provision.
Section 203 of the DGCL prohibits certain transactions between a
Delaware corporation and an "interested stockholder." For purposes of this
provision an "interested stockholder" is a stockholder that is directly or
indirectly a beneficial owner of 15% or more of the voting power of the
outstanding voting stock of a Delaware corporation (or its affiliate or
associate). This provision prohibits certain business combinations between an
interested stockholder and a corporation for a period of three years after the
date the interested stockholder acquired its stock, unless (i) the business
combination is approved by the corporation's board of directors prior to the
stock acquisition date; (ii) the interested stockholder acquired at least 85%
of the voting stock of the corporation in the transaction in which he became an
interested stockholder; or (iii) the business combination is approved by a
majority of the board of directors and the affirmative vote of two-thirds of
the disinterested stockholders.
PRE-EMPTIVE RIGHTS
Except for shares issued pursuant to authorizations granted to the
Olicom Board as described in the Olicom Articles, all stockholders of Olicom
have preemptive rights in the event of any increase in Olicom's share capital.
Changes in the share capital can be made by the decision of Olicom's
stockholders at a General Meeting or by the decision of the Olicom Board
pursuant to the authorizations in the Olicom Articles. At a General Meeting,
Olicom's stockholders may agree to deviations from the general preemptive
rights of the existing stockholders for the purpose of specific increases of
Olicom's share capital; however, such resolutions may be adopted only by a
majority of two-thirds of the share capital and votes represented at the
General Meeting (subject to higher voting requirements if shares will be issued
at a price below the market value of the shares). No stockholder of Olicom
will have pre-emptive rights to purchase any shares in connection with the
Merger, or in connection with the exercise of Warrants.
The DGCL provides that a corporation's stockholders have pre-emptive
rights only if such rights are expressly granted in the corporation's
certificate of incorporation.
DIVIDEND RIGHTS
Under the Companies Act, distributions of profits may only be
authorized by stockholders based on the latest annual audited accounts of
Olicom. The financial year of Olicom is the calendar year. Interim dividends
cannot be paid, and stockholders cannot authorize the payment of an annual
dividend greater than the amount that has been recommended or agreed to by the
Olicom Board. The Companies Act requires that any distribution of profits
available for distribution, after covering any losses for previous years, be
distributed pro-rata to all stockholders. All dividends that remain unclaimed
for a period of five years after having been declared are forfeited and revert
to Olicom.
Subject to any restrictions contained in a corporation's certificate
of incorporation, the DGCL generally provides that a corporation may declare
and pay dividends out of surplus
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(defined as net assets minus stated capital) or, when no surplus exists, out of
net profits for the fiscal year in which the dividend is declared and/or for
the preceding fiscal year. Dividends may not be paid out of net profits if the
capital of the corporation is less than the amount of capital represented by
the issued and outstanding stock of all classes having a preference upon the
distribution of assets. In determining the amount of surplus of a Delaware
corporation, the assets of the corporation, including stock of subsidiaries
owned by the corporation, must be valued at their fair market value as
determined by the board of directors, without regard to their historical book
value.
RIGHTS OF PURCHASE
Under the Companies Act, a corporation may, if authorized by a General
Meeting, acquire its own shares against payment of consideration, although the
aggregate amount of such shares held by a corporation and its subsidiaries may
not exceed 10% of the aggregate amount of issued shares. At the Annual General
Meeting held on May 8, 1996, the Olicom board of directors was authorized to
purchase up to 10% of Olicom's share capital at the market price of the shares
on the date of purchase, with deviation of up to 10% from the market price.
Such authorization expires on the earlier of the next General Meeting or
November 7, 1998.
Under the DGCL, a corporation may redeem or repurchase its own shares,
except that a corporation may not generally make such a purchase or redemption
if it would cause impairment of its capital.
PROVISIONS RELATED TO NON-DANISH STOCKHOLDERS
There are no special limitations or provisions in the Olicom Articles
or Danish law applicable to stockholders who are not citizens or residents of
Denmark to hold or vote shares.
STOCKHOLDER PROPOSALS
Any stockholder in Olicom is entitled to submit proposals to be
discussed at a General Meeting; however, in order to be considered at a General
Meeting, any proposal that would require consideration by the Olicom Board is
required to be submitted in writing to the Olicom Board not later than February
1 following the end of the year to which such General Meeting relates. A
proper proposal submitted by a stockholder in accordance with applicable rules
and regulations for presentation at Olicom's next General Meeting that is
received at Olicom's principal executive offices by February 1, 1998, will be
included in the Olicom's proxy statement and form of proxy for that meeting.
If the Merger is not consummated, CrossComm will hold a 1998 Annual
Meeting of Stockholders. Proposals of stockholders intended to be presented at
CrossComm's 1998 Annual Meeting of Stockholders, if the Merger is not
consummated prior thereto, must be received by CrossComm at its principal
office in Marlborough, Massachusetts, not later than December ___, 1997, for
inclusion in the proxy statement for that meeting.
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LEGAL MATTERS
The validity of the shares of Olicom Common Stock offered in
connection with the Merger will be passed upon for Olicom by Advokatfirmaet O.
Bondo Svane, Copenhagen, Denmark. Certain other legal matters relating to the
Merger and the transactions contemplated thereby will be passed upon for Olicom
by Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P., Dallas, Texas. As of the
Record Date, partners of Advokatfirmaet O. Bondo Svane participating in the
consideration of legal matters relating to the Merger and the transactions
contemplated thereby owned 13,550 shares of Olicom Common Stock.
EXPERTS
The Consolidated Financial Statements of Olicom at December 31, 1995
and 1996, and for each of the three years in the period ended December 31,
1996, included in the Joint Proxy Statement of Olicom and CrossComm which is
referred to and made a part of this Joint Proxy Statement/Prospectus and
Registration Statement, have been audited by Ernst & Young A/S, independent
auditors, as set forth in their report appearing elsewhere herein, and are
included in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
The Consolidated Financial Statements and related schedule of
CrossComm at December 31, 1996 and 1995, and for each of the three years in the
period ended December 31, 1996, included in the Joint Proxy Statement of Olicom
and CrossComm which is referred to and made a part of this Joint Proxy
Statement/Prospectus and Registration Statement, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon appearing
elsewhere herein, and are included in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
Representatives of Ernst & Young A/S are expected to be present at the
Olicom Annual Meeting. Representatives of Ernst & Young LLP are expected to
be present at the CrossComm Meeting.
FINANCIAL STATEMENTS AVAILABLE
A copy of Olicom's 1996 Annual Report containing Olicom's audited
consolidated balance sheets at December 31, 1995 and 1996, and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the three fiscal years ended December 31, 1994, 1995 and 1996, prepared in
accordance with accounting principles generally accepted in the United States,
is being mailed with this Joint Proxy Statement/Prospectus to stockholders
entitled to notice of the Olicom Meeting. The Annual Report does not
constitute a part of the proxy solicitation material.
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Upon written request to Olicom's Investor Relations Department
(Attention: Tyge Trier), c/o Olicom A/S, Nybrovej 114, DK-2800 Lyngby, Denmark,
or c/o Olicom, Inc., 900 East Park Blvd., Suite 250, Plano, Texas 75074, Olicom
will provide, without charge, copies of (i) its Annual Report on Form 20-F for
fiscal year 1996 and (ii) Olicom's Annual Accounts.
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INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Olicom A/S
Fiscal years ended December 31, 1996, 1995 and 1994
Report of Independent Auditors............................ F-2
Financial Statements:
Consolidated Balance Sheets at December 31, 1996 and
1995.................................................. F-3
Consolidated Statements of Income for each of the three
years in the period ended December 31, 1996........... F-4
Consolidated Statements of Shareholders' Equity for
each of the three years in the period ended December
31, 1996.............................................. F-5
Consolidated Statements of Cash Flows for each of the
three years in the period ended December 31, 1996..... F-6
Notes to Consolidated Financial Statements............. F-7
CrossComm Corporation
Years ended December 31, 1996, 1995 and 1994
Report of Independent Auditors............................ F-19
Financial Statements:
Consolidated Balance Sheets at December 31, 1996 and
1995.................................................. F-20
Consolidated Statements of Operations for the years
ended December 31, 1996, 1995 and 1994................ F-21
Consolidated Statements of Stockholders' Equity for the
years ended December 31, 1996, 1995 and 1994.......... F-22
Consolidated Statements of Cash Flows for the years
ended December 31, 1996, 1995 and 1994................ F-23
Notes to Consolidated Financial Statements............. F-24
</TABLE>
F-1
<PAGE> 191
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders,
Olicom A/S
We have audited the accompanying consolidated balance sheets of Olicom A/S
and subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of income, shareholders' equity and cash flows for each of the three
years in the period ended December 31, 1996. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Olicom A/S and
subsidiaries at December 31, 1996 and 1995, and the consolidated results of
their operations and their cash flows for each of the three years in the period
ended December 31, 1996, in conformity with generally accepted accounting
principles in the United States of America.
Ernst & Young
Statsautoriseret Revisionsaktieselskab
Copenhagen, April 2, 1997
F-2
<PAGE> 192
OLICOM A/S
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31
--------------------
1995 1996
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 33,065 $ 41,663
Short-term investments (Note 3)........................... 10,099 9,887
Accounts receivable, less allowance of $490 in 1995 and
$1,055 in 1996......................................... 37,137 37,712
Accounts receivable, other................................ 2,155 1,913
Inventories:
Finished goods............................................ 22,497 13,967
Raw materials............................................. 9,762 8,285
-------- --------
32,259 22,252
Deferred income taxes (Note 6).............................. 15 945
Prepaid expenses............................................ 1,070 1,769
-------- --------
Total current assets........................................ 115,800 116,141
Investments in affiliated companies (Notes 4 and 9A)........ 5,889 0
Property and equipment:
Leasehold improvements...................................... 649 2,280
Equipment................................................. 9,954 17,740
-------- --------
10,603 20,020
Accumulated depreciation.................................. (5,564) (8,988)
-------- --------
5,039 11,032
Goodwill, net of accumulated amortization of $1,506 in 1995
and $2,832 in 1996........................................ 599 751
-------- --------
Total assets................................................ $127,327 $127,924
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Notes payable to banks (Note 5)........................... $ 6,430 $ 0
Accounts payable.......................................... 25,746 21,083
Accrued payroll and related expenses...................... 2,572 3,424
Accrued product warranty expense.......................... 704 823
Other accrued expenses.................................... 285 1,834
Income taxes payable...................................... 1,463 2,570
-------- --------
Total current liabilities......................... 37,200 29,734
Minority interest in equity of consolidated subsidiary...... 0 681
Shareholders' equity:
Common stock, DKK 0.25 nominal value Authorized and
issued -- 15,837 in 1995 and 15,938 in 1996............ 610 614
Additional paid-in capital................................ 51,754 52,348
Retained earnings......................................... 49,424 56,849
Treasury stock -- 1,275 in 1995 and 1,255 in 1996......... (12,020) (11,831)
Currency translation adjustments.......................... 617 0
Unrealized gains/(losses) (Note 3)........................ (258) (471)
-------- --------
Total shareholders' equity........................ 90,127 97,509
-------- --------
Total liabilities and shareholders' equity........ $127,327 $127,924
======== ========
</TABLE>
See accompanying notes.
F-3
<PAGE> 193
OLICOM A/S
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-----------------------------------------
1994 1995 1996
----------- ----------- -----------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
Net sales
Related parties (Note 9E)............. $ 12,127 $ 5,134 $ 0
Other................................. 101,477 122,335 168,228
-------- -------- --------
Total net sales............... 113,604 127,469 168,228
Cost of sales........................... 61,198 65,191 95,236
-------- -------- --------
Gross profit............................ 52,406 62,278 72,992
-------- -------- --------
Operating expenses:
Sales and marketing................... 23,783 31,660 40,496
Research and development.............. 7,531 9,193 12,852
General and administrative............ 4,440 5,662 6,848
Acquisition-related expenses.......... 0 0 3,787
Special charge regarding management
change............................. 0 0 1,402
-------- -------- --------
Total operating expenses...... 35,754 46,515 65,385
-------- -------- --------
Income from operations.................. 16,652 15,763 7,607
Interest and other financial income..... 3,307 4,580 2,446
Interest and other financial expense.... (845) (1,283) (915)
Foreign currency gains (losses)......... 19 (31) 675
Related party gain on sale of investment
(Note 9A)............................. 0 0 2,878
Settlement of litigation (Note 12)...... (4,200) 0 0
-------- -------- --------
Income before income taxes.............. 14,933 19,029 12,691
Income taxes (Note 6)................... 5,026 6,223 4,727
-------- -------- --------
Net income before change in accounting
method and minority interest in income
of consolidated subsidiary............ $ 9,907 $ 12,806 $ 7,964
Minority interest in income of
consolidated subsidiary............... 0 0 539
Cumulative effect of change in
accounting method, net of tax $0 (Note
2).................................... 161 0 0
-------- -------- --------
Net income.................... $ 10,068 $ 12,806 $ 7,425
======== ======== ========
Net income per share.................... $ 0.66 $ 0.87 $ 0.50
======== ======== ========
Weighted average shares outstanding..... 15,298 14,748 14,786
======== ======== ========
</TABLE>
See accompanying notes.
F-4
<PAGE> 194
OLICOM A/S
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
ADDITIONAL CURRENCY
COMMON PAID-IN RETAINED TREASURY TRANSLATION UNREALIZED
STOCK CAPITAL EARNINGS STOCK ADJUSTMENTS GAINS/(LOSSES) TOTAL
------ ---------- -------- -------- ----------- -------------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1993............ $610 $51,789 $26,550 $ (853) ($211) $ 0 $77,885
Adjustment to opening balance for
change in accounting method, net of
tax $0 (Note 2).................... 0 0 0 0 0 (161) (161)
Net income for 1994................... 0 0 10,068 0 0 0 10,068
Purchase of treasury stock --
997 common stock................... 0 0 0 (9,141) 0 0 (9,141)
Warrants exercised --
10 treasury stock.................. 0 (31) 0 91 0 0 60
Change in unrealized gains/(losses)... 0 0 0 0 0 (917) (917)
Currency translation adjustments...... 0 0 0 0 397 0 397
---- ------- ------- -------- ----- ------- -------
Balance at December 31, 1994............ $610 $51,758 $36,618 $ (9,903) $186 ($1,078) $78,191
Net income for 1995................... 0 0 12,806 0 0 0 12,806
Purchase of treasury stock --
257 common stock................... 0 0 0 (2,400) 0 0 (2,400)
Options exercised --
31 common stock.................... 0 (4) 0 283 0 0 279
Change in unrealized gains/(losses)... 0 0 0 0 0 820 820
Currency translation adjustments...... 0 0 0 0 431 0 431
---- ------- ------- -------- ----- ------- -------
Balance at December 31, 1995............ $610 $51,754 $49,424 $(12,020) $617 $(258) $90,127
Net income for 1996................... 0 0 7,425 0 0 0 7,425
Purchase of treasury stock --
3 common stock..................... 0 0 0 (28) 0 0 (28)
Options and warrants exercised --
23 common stock.................... 0 (10) 0 217 0 0 207
Warrants exercised --
101 common stock................... 4 604 0 0 0 0 608
Change in unrealized gains/(losses)... 0 0 0 0 0 (213) (213)
Currency translation adjustments...... 0 0 0 0 (617) 0 (617)
---- ------- ------- -------- ----- ------- -------
Balance at December 31, 1996............ $614 $52,348 $56,849 $(11,831) $ 0 $(471) $97,509
==== ======= ======= ======== ===== ======= =======
</TABLE>
See accompanying notes.
F-5
<PAGE> 195
OLICOM A/S
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
--------------------------------
1994 1995 1996
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Operating activities
Net income............................................... $ 10,068 $ 12,806 $ 7,425
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Depreciation and amortization......................... 1,862 2,478 3,585
Related party gain on sale of investment.............. 0 0 (2,878)
Deferred income taxes................................. (1,506) 1,588 (930)
Minority interest in earnings......................... 0 0 539
Equity in net income of affiliates.................... (366) (692) 0
Purchased research and development.................... 0 0 2,170
Changes in operating assets and liabilities:
Accounts receivable................................. (14,433) (2,494) 2,572
Other receivables................................... 159 (1,938) 242
Inventories......................................... 1,875 (16,117) 12,375
Prepaid expenses.................................... (32) 14 (545)
Accounts payable.................................... 3,445 10,486 (6,285)
Accrued payroll and related expenses................ 1,661 584 (3,298)
Accrued product warranty expense.................... 153 (427) 119
Other accrued liabilities........................... 1,179 (1,167) 2,509
Net liability of settlement......................... 4,200 (4,200) 0
Income taxes payable................................ 1,200 209 901
-------- -------- --------
Net cash provided by operating activities........ 9,465 1,130 18,501
Investing activities
Capital expenditures..................................... (1,526) (13,780) (8,199)
Proceeds from sale of property and equipment............. 0 12,666 0
Proceeds from sale of investment......................... 0 0 7,193
Acquisition of Lasat Communications -- net of cash
acquired (Note 4)..................................... (1,786) 0 (2,545)
Short-term investments................................... (287) 0 0
-------- -------- --------
Net cash used in investing activities............ (3,599) (1,114) (3,551)
Financing activities
Change in short-term borrowings.......................... $ 5,857 $ 549 $ (6,451)
Long-term debt and capital lease obligations............. (166) 0 0
Sale (purchase) of treasury stock........................ (9,141) (2,400) 180
Proceeds from options and warrants exercised............. 60 279 608
-------- -------- --------
Net cash used in financing activities.................... (3,390) (1,572) (5,663)
Effects of exchange rates on cash........................ 655 76 (689)
-------- -------- --------
Net increase (decrease) in cash and cash equivalents..... 3,131 (1,480) 8,598
Cash and cash equivalents at beginning of year........... 31,414 34,545 33,065
-------- -------- --------
Cash and cash equivalents at end of year................. $ 34,545 $ 33,065 $ 41,663
======== ======== ========
Interest paid during the year............................ $ 183 $ 321 $ 187
======== ======== ========
Income taxes paid during the year........................ $ 5,392 $ 4,730 $ 4,819
======== ======== ========
</TABLE>
See accompanying notes
F-6
<PAGE> 196
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. ACCOUNTING POLICIES
Description of Business
The Company is a world-wide vendor of Asynchronous Transfer Mode, Token
Ring and Ethernet products used in local area networks and wide area networks.
The Company designs, develops, markets and supports software and hardware
products which permit computer users operating different types of equipment to
communicate, exchange data and share computing resources.
Reporting Currency
Although the Company and its Danish subsidiaries maintain their books and
records in Danish kroner, as required by Danish law, the Consolidated Financial
Statements have been prepared in U.S. dollars because the U.S. dollar is the
currency of the primary economic environment in which the Company and its
subsidiaries conduct their operations.
The majority of the Company's sales are billed and collected in U.S.
dollars, and the majority of the Company's purchases of raw materials and
finished goods inventories are invoiced and paid in U.S. dollars.
Principles of Consolidation
The consolidated financial statements include the accounts of Olicom A/S
and its majority-owned subsidiaries. The Company's investments in affiliated
companies are accounted for by the equity method of accounting.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions, that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Cash and Cash Equivalents
Cash and cash equivalents represent cash and short-term deposits with
maturities of less than three months at the time of purchase.
Short-term Investments
Management determines the appropriate classification of securities at the
time of purchase and reevaluates such designation as of each balance sheet date.
Short-term investments not classified as held-to-maturity are classified as
available-for-sale. Short-term investments available-for-sale are carried at
fair value, with the unrealized gains and losses, net of tax, reported in a
separate component of shareholders' equity. Realized gains and losses and
declines in value judged to be other than temporary on available-for-sale short-
term investments are included in interest income. The cost of short-term
investments is based on the average cost method. Interest and dividends on
short-term investments classified as available-for-sale are included in interest
income.
Inventories
Inventories are stated as the lower of cost or market with cost determined
on the basis of the first in, first out method. Raw materials inventories are
sold at the Company's cost to subcontractors who assemble products to the
Company's specifications. Finished goods inventories include completed products
purchased from subcontractors.
F-7
<PAGE> 197
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Leasehold Improvements and Equipment
Leasehold improvements and equipment are carried at cost. Depreciation is
charged on a straight-line basis to costs and expenses over the expected useful
lives of the assets. Equipment is depreciated over four years, and leasehold
improvements are amortized over the shorter of their estimated lives or
non-cancelable term of the lease.
Goodwill
Cost in excess of net assets of businesses acquired (goodwill), represents
the unamortized excess of the cost of acquiring a business over the fair value
of the assets acquired at the date of acquisition. Amortization is computed by
the straight-line method over the estimated life of the benefit received, which
is five years.
On an annual basis, an impairment test is performed on the basis of future
undiscounted operating cash-flows expected in respect of the assets to which the
goodwill relates. Should the amount of these undiscounted operating cash-flows
exceed the carrying amount of the related assets, an impairment write-off would
be recorded based on discounted expected operating cash-flows.
Revenue Recognition
Revenue is recognized when products are shipped. Certain sales have been
made allowing a limited right of return; however, the Company has not
experienced any significant amounts of such returns.
Accrued Product Warranty Expense
The Company provides for the estimated cost of warranty at the time of
product shipment.
Research and Development Costs
Research and development costs, including costs of developing software
products, are expensed as incurred. Application of Statement of Financial
Accounting Standards No. 86, "Accounting for the Costs of Computer Software to
Be Sold, Leased, or Otherwise Marketed," has not had any material effect on the
Company's consolidated financial position or results of operations.
Foreign Currency Translation
Gains and losses resulting from non-U.S. dollar transactions, and the
remeasurement of foreign currency balances and accounts denominated in
currencies other than the U.S. dollar, are included in the determination of net
income in the period in which they occur, in accordance with the requirements of
Statement of Financial Accounting Standards No. 52, "Foreign Currency
Translation".
Gains and losses resulting from translation of the Company's equity
investments into U.S. dollars are included as a separate component of equity.
Income Taxes
The Company accounts for income taxes by the liability method, as required
by Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes".
Net Income per Share
Net income per share is computed based on the weighted average number of
common stock and common stock equivalents outstanding during each year. Common
stock equivalents are determined under the
F-8
<PAGE> 198
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
assumption that outstanding warrants and options are exercised. Outstanding
warrants and options have been included in earnings per share computations based
on the treasury stock method.
Other Post-retirement and Post-employment Benefits
The Company does not provide its employees with post-retirement or
post-employment benefits.
Advertising
Advertising costs are expensed as incurred.
2. ACCOUNTING CHANGES
In May 1993, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 115, "Accounting for Certain Investments in
Debt and Equity Securities". The Company adopted the provisions of the new
standard for short-term investments held as of or acquired after January 1,
1994. In accordance with the Statement, prior period financial statements have
not been restated to reflect the change in accounting principle. The cumulative
effect as of January 1, 1994 of adopting Statement 115 increased net income by
$161,000 net of $0 in deferred income taxes, or $0.01 per share. The opening
balance of shareholders' equity was reduced by $161,000 net of $0 in deferred
income taxes to reflect the net unrealized holding losses on securities
classified as available-for-sale previously carried at aggregate lower cost or
market value.
3. SHORT-TERM INVESTMENTS
The following is a summary of available-for-sale securities held as current
assets:
<TABLE>
<CAPTION>
GROSS GROSS
UNREALIZED UNREALIZED BOOKED
COST GAINS LOSSES VALUE
------- ---------- ---------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Private US Mutual Fund....................... $10,357 $ 820 $1,078 $10,099
------- ------ ------ -------
December 31, 1995............................ $10,357 $ 820 $1,078 $10,099
======= ====== ====== =======
Private US Mutual Fund....................... $10,357 $1,050 $1,521 $ 9,887
------- ------ ------ -------
December 31, 1996............................ $10,357 $1,050 $1,521 $ 9,887
======= ====== ====== =======
</TABLE>
Unrealized holding losses on available-for-sale short-term investments
included as a separate component of shareholders' equity totaled $1,078,000,
$258,000 and $471,000 on December 31, 1994, 1995 and 1996 respectively.
4. INVESTMENTS IN LASAT COMMUNICATIONS A/S
In 1994 the Company acquired 35% of the equity in Lasat Communications A/S
("Lasat"), a Danish company whose business is the development and marketing of
modems. The investment includes $0.6 million (net book value) representing
goodwill which was being amortized on a straight-line basis over five years.
In 1996 the Company exercised an option to acquire an additional 40% of the
equity in Lasat, for $3.5 million (DKK 20.0 million). The acquisition was funded
with existing cash.
The acquisition of additional equity was accounted for using the purchase
method of accounting. Accordingly, a portion of the purchase price was allocated
to the net assets acquired based on their estimated fair values. The fair value
of tangible assets acquired was $3.8 million (cash $0.8 million, accounts
receivable
F-9
<PAGE> 199
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
$1.4 million, inventory $1.4 million, and fixed assets $0.2 million) and the
fair value of liabilities assumed $3.0 million (accounts payable $1.5 million
and loan and other liabilities $1.5 million). In addition, $2.3 million of the
purchase price was allocated to in-process engineering and development projects
that had not reached technological feasibility and had no probable alternative
future use. The Company expensed such amount at the date of acquisition. The
balance of the purchase price, $0.5 million, was recorded as excess of cost over
net assets acquired (goodwill) and is being amortized over five years on a
straight-line basis.
Lasat has been included in the consolidation from January 1, 1996, with
preacquisition earnings being charged to minority interest in income of
consolidated subsidiary.
5. NOTES PAYABLE TO BANKS
The Company has unsecured lines of credit with two banks, providing maximum
facilities as of December 31, 1995 and 1996 of $11.2 million and $11.0 million,
respectively. The unused element thereof as of December 31, 1995 and 1996,
amounted to $4.8 million and $11.0 million, respectively.
Interest rates fluctuate with the market rates of major banks. The weighted
average interest rates as of December 31, 1995 and 1996 were 6.5% and 5.8%,
respectively.
6. INCOME TAXES
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax liabilities and assets as of December 31, 1995 and
1996 are as follows:
<TABLE>
<CAPTION>
1995 1996
------ ------
(IN THOUSANDS)
<S> <C> <C>
Deferred tax liabilities
Tax over book depreciation................................ $ 273 $1.105
Inventory write down...................................... 729 223
Other..................................................... 0 55
------ ------
1,002 1.383
------ ------
Deferred tax assets
Book over tax depreciation................................ 232 318
Allowance for uncollectible receivables................... 251 410
Inventory valuations...................................... 407 940
Other accruals.............................................. 127 660
------ ------
1,017 2.328
------ ------
Net deferred tax liabilities (assets)............. $ (15) $ (945)
====== ======
</TABLE>
For financial reporting purposes, income before income taxes includes the
following components:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Pretax income:
Denmark............................................. $ 9,888 $19,167 $ 9,034
United States....................................... 5,045 (138) 3,657
------- ------- -------
14,933 $19,029 $12,691
======= ======= =======
</TABLE>
F-10
<PAGE> 200
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Significant components of the provision for income taxes are as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- ------
(IN THOUSANDS)
<S> <C> <C> <C>
Current:
Denmark.............................................. $ 3,840 $ 4,312 $3,468
United States........................................ 2,692 323 2,189
------- ------- ------
6,532 4,635 5,657
------- ------- ------
Deferred:
Denmark.............................................. (765) 1,822 (101)
United States........................................ (741) (234) (829)
------- ------- ------
(1,506) 1,588 (930)
------- ------- ------
$ 5,026 $ 6,223 $4,727
======= ======= ======
</TABLE>
The reconciliation of income tax computed at the Danish statutory tax rates
to income tax expense is:
<TABLE>
<CAPTION>
1994 1995 1996
---------------- ---------------- ----------------
(IN THOUSANDS)
PERCENT PERCENT PERCENT
------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Danish tax.............................. $5,077 34 $6,470 34 $4,315 34
Goodwill amortization and purchased
research and development written
off................................... 98 1 125 1 247 2
Acquisition-related expenses............ 0 0 0 0 336 2
Benefit of foreign tax relief........... (636) (3) (58) (0) (117) (1)
United States taxes net of credits...... 213 1 44 0 118 1
Tax on USD currency gains following
Danish tax rules...................... 68 0 0 0 0 0
Other net............................... 206 1 (358) (2) (172) (1)
------ -- ------ -- ------ --
$5,026 34 $6,223 33 $4,727 37
====== == ====== == ====== ==
</TABLE>
Undistributed earnings of the Company's United States subsidiary amounted
to $16.2 million in 1996. Those earnings are considered to be indefinitely
reinvested. Upon distribution of those earnings in the form of dividends, the
amount thereof would be subject only to withholding tax at a rate of 5% in
accordance with the provisions of the Denmark/United States double tax treaty.
7. EMPLOYEE WARRANT AND STOCK OPTION PLANS
The Company has elected to follow Accounting Principles Board Opinion No.
25, "Accounting for Stock Issued to Employees" (APB 25) and related
Interpretations in accounting for its employee stock options and warrants
because, as discussed below, the alternative fair value accounting provided for
under FASB Statement No. 123, "Accounting for Stock-Based Compensation",
requires use of option valuation models that were not developed for use in
valuing employee stock options and warrants. Under APB 25, because the exercise
price of the Company's employee stock options and warrants equals the market
price of the underlying stock on the date of grant, no compensation expense is
recognized.
1992 Warrant Plan
On May 5, 1992, the Company's shareholders approved a reserve of 1,600,000
common shares in connection with the issuance of warrants for the benefit of
employees, officers and directors of the Company
F-11
<PAGE> 201
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
and its subsidiaries. As of December 31, 1992, warrants to purchase 565,000
shares at an exercise price of $5.98 had been issued. During 1993 8,000 warrants
were cancelled, and 426,680 warrants were exercised. During 1994 10,000 warrants
were exercised, and during 1996 101,300 warrants were exercised.
The holders of the remaining 19,020 outstanding warrants as of December 31,
1996 may exercise their rights in whole or part, at a price of $5.98 per share,
during the period from April 21 to May 5, 1997. In the event that all or any
part of the warrants are not exercised by May 5, 1997, then such warrants will
expire.
1994 and 1996 Warrant and Stock Option Plans
The Company's 1994 and 1996 Share Incentive Plan authorized the grant of
options and warrants to directors, executives and key employees for up to
425,000 and 1,000,000 shares, respectively, of the Company's common stock. The
majority of options and warrants granted have 5-year terms and vest and become
fully exercisable at the end of 5 years of continued employment.
Pro forma information regarding net income and earnings per share is
required by Statement 123, and has been determined as if the Company had
accounted for its employee stock options under the fair value method of that
Statement. The fair value for these options and warrants was estimated at the
date of grant using a Black-Scholes option pricing model with the following
weighted-average assumptions for 1995 and 1996; risk-free interest rates of 5.5%
to 6.0%; dividend yields of 0%; volatility factors of the expected market price
of the Company's common stock of 0.4; 25% of these options and warrants granted
are expected to expire without being exercised; and weighted-average expected
life of the options and warrants of 3 years.
The Black-Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions including the expected stock price
volatility. Because the Company's employee stock options and warrants have
characteristics significantly different from those of traded options and
warrants, and because changes in the subjective input assumptions can materially
affect the fair value estimate, in management's opinion, the existing models do
not necessarily provide a reliable single measure of fair value of its employee
stock options and warrants.
For purposes of pro forma disclosures, the estimated fair value of the
options and warrants is amortized to expense over the options' vesting period.
The Company's pro forma information follows:
<TABLE>
<CAPTION>
1995 1996
---------- ---------
(IN THOUSANDS EXCEPT
FOR EARNINGS PER SHARE)
<S> <C> <C>
Net income -- as reported................................... $12,806 $7,425
Net income -- pro forma..................................... $12,791 $7,156
Earnings per share -- as reported........................... $ 0.87 $ 0.50
Earnings per share -- pro forma............................. $ 0.87 $ 0.48
</TABLE>
F-12
<PAGE> 202
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of the Company's stock option and warrant activity, and related
information for the years ended December 31 follows:
<TABLE>
<CAPTION>
1995 1996
-------------------------- --------------------------
WEIGHTED-AVERAGE WEIGHTED-AVERAGE
OPTIONS EXERCISE PRICE OPTIONS EXERCISE PRICE
------- ---------------- ------- ----------------
(IN THOUSANDS EXCEPT FOR PRICE PER SHARE)
<S> <C> <C> <C> <C>
Outstanding-beginning of year........ 323.5 $ 9.00 291.5 $ 9.00
Granted............................ 30.0 9.00 466.1 11.49
Exercised.......................... (31.0) 9.00 (23.0) 9.00
Expired............................ (31.0) 9.00 (68.9) 9.00
----- ------- ----- -------
Outstanding -- end of year........... 291.5 $ 9.00 665.7 $10.74
===== ======= ===== =======
Exercisable at end of year........... 47.3 $ 9.00 77.9 $ 9.00
Weighted -- average fair value of
options granted during the year.... $ 3.24 $ 3.63
</TABLE>
Exercise prices for options outstanding as of December 31, 1996 ranged from
$9 to $12. The weighted-average remaining contractual life of those options is 4
years.
8. LEASE COMMITMENTS
As of October 1, 1995 the Company entered into a noncancellable operating
lease with a public property investment company for office space, as its
international headquarters.
The lease may be cancelled by either party commencing April 1, 2008 with
six months' notice. The lease provides for increases in annual rental payments
based upon the increase in the Danish net price index, with an agreed annual
minimum increase of 2.5%.
During June 1995 the Company entered into a noncancellable operating lease
starting January 22, 1996, with a property investment partnership for additional
office space at its international headquarters.
The lease may be cancelled by either party commencing January 22, 2006 with
12 months' notice. If the lease is not cancelled by either party at that time,
the agreement provides for a new five year noncancellable term under the same
rental conditions. The lease provides for an increase in annual rental payments
based upon the increase in the Danish net price index, with an agreed annual
minimum increase of 2.5%.
During December 1996 the Company entered into a noncancellable operating
lease starting January 1, 1998, with a property investment partnership for an
expansion of office space at its international headquarters.
The lease may be cancelled by either party commencing January 1, 2007 with
12 months' notice. If the lease is not cancelled by either party at that time,
the agreement provides for a new five year noncancellable term under the same
rental conditions. The lease provides for an increase in annual rental payments
based upon the increase in the Danish net price index, with an agreed annual
minimum increase of 2.5%.
Additionally, the Company and its subsidiaries are lessees in other
noncancellable lease arrangements for office buildings and warehouses, expiring
on different dates.
F-13
<PAGE> 203
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The total future minimum rental payments under the foregoing leases at
December 31, 1996 are:
<TABLE>
<CAPTION>
HEADQUARTER OTHER TOTAL
----------- ------ -------
(IN THOUSANDS)
<S> <C> <C> <C>
1997.................................... $ 1,422 $ 800 $ 2,222
1998.................................... 2,042 641 2,683
1999.................................... 2,093 614 2,707
2000.................................... 2,146 475 2,621
2001.................................... 2,199 293 2,492
Remaining............................... 13,743 508 14,251
------- ------ -------
Total minimum lease
payments.................... $23,645 $3,331 $26,976
======= ====== =======
</TABLE>
Total lease amounts charged to expense are $1,118,000 in 1994, $1,420,000
in 1995 and $2,469,000 in 1996.
9. RELATED PARTY TRANSACTIONS
A. Contex A/S
On January 23, 1996 the Company completed the sale of its 35.6% investment
in Contex A/S to Nilex ApS, a related party, for a cash consideration of $7.2
million (DKK 41.0 million). The sale resulted in a gain of $2,878,000 net of
taxes.
B. K/S Ulrikkenborg
K/S Ulrikkenborg was a limited liability partnership, the partners of which
were Lars S. Nielsen, Asbjorn Smitt, and three other officers and employees of
the Company. Messrs. Nielsen and Smitt collectively controlled 75% of the
partnership. The partnership was formed for the purpose of purchasing, and
leasing to the Company, real property and improvements thereon, in Greater
Copenhagen for operation as the Company's international headquarters. In July
1995 the Company purchased the real property and improvements from K/S
Ulrikkenborg for an amount of $10.5 million, including leasehold improvements.
The Company paid $767,000 in 1994, $441,000 in 1995 and $0 in 1996, in rent
to the partnership.
C. Olivetti
Olivetti Realty N.V. a corporation registered in the Netherlands Antilles,
owned 8.7% of the share capital of the Company as of December 31, 1994. In June
1995, Olivetti Realty N.V. sold all of its shares in the Company. As a related
party the Company purchased and sold products to affiliates of Olivetti Realty
N.V. ("Olivetti group") in the normal course of business as described in
paragraph E below.
D. Management
In December 1995 the Company sold the residential building, previously
rented by Lars S. Nielsen in accordance with the terms of the lease for
$570,000.
F-14
<PAGE> 204
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
E. Transactions
The Company had no transactions with related parties during 1996.
Transactions with related parties in 1994 and 1995 are shown below:
<TABLE>
<CAPTION>
1994 1995
------- ------
(IN THOUSANDS)
<S> <C> <C>
Sales
Olivetti group........................ $12,115 $5,104
Contex A/S............................ 12 0
Lasat Communications A/S.............. 0 30
------- ------
$12,127 $5,134
Purchases
Olivetti group........................ $ 72 $ 6
Contex A/S............................ 78 75
Lasat Communications A/S.............. 6 644
------- ------
$ 156 $ 725
Accounts receivable
Olivetti group........................ $ 3,642 $ 0
Lasat Communications A/S.............. 0 27
Contex A/S............................ 0 0
------- ------
$ 3,642 $ 27
Accounts payable
Olivetti group........................ $ 35 $ 0
Contex A/S............................ 0 0
Lasat Communications A/S.............. 4 0
K/S Ulrikkenborg...................... 14 0
------- ------
$ 53 $ 0
</TABLE>
10. SEGMENT INFORMATION, EXPORT SALES AND MAJOR CUSTOMERS
The Company currently operates in one principal industry segment: the
design and marketing of Asynchronous Transfer Mode, Token Ring and Ethernet
products. Export sales to unaffiliated customers were divided as follows:
<TABLE>
<CAPTION>
1994 1995 1996
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Included in US operations:
Canada.............................................. $ 4,429 $ 2,147 $ 1,181
South America....................................... $ 0 $ 0 $ 1,710
Pacific Basin & other............................... $ 0 $ 0 $ 223
Included in Danish operations:
United States....................................... $ 560 $ 0 $ 637
Europe (other than Denmark)......................... $46,199 $58,951 $77,760
Pacific Basin & other............................... $ 4,550 $ 7,717 $ 8,628
</TABLE>
As disclosed in Note 9E, sales to Olivetti group accounted for more than
10% of sales in 1994. Sales to one other customer exceeded 10% of sales in 1994,
amounting to $13.4 million. Sales to one other customer exceeded 10% of sales in
1995, amounting to $13.9 million. In 1996, no single customer accounted for more
than 10% of sales.
F-15
<PAGE> 205
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Information about the Company's operations by geographic areas is as
follows:
<TABLE>
<CAPTION>
DANISH US
OPERATIONS OPERATIONS ELIMINATIONS CONSOLIDATED
---------- ---------- ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
1996
Net sales:
Customers.......................... $106,507 $61,721 $ 0 $168,228
Intercompany....................... 34,136 0 (34,136) 0
-------- ------- -------- --------
Total......................... $140,643 $61,721 $(34,136) $168,228
======== ======= ======== ========
Operating income........................ $ 4.918 $ 3,657 $ (968) $ 7,607
======== ======= ======== ========
Identifiable assets..................... $102,938 $29,840 $ (4,854) $127,924
======== ======= ======== ========
1995
Net sales:
Customers.......................... $ 75,307 $52,162 $ 0 $127,469
Intercompany....................... 41,382 0 (41,382) 0
-------- ------- -------- --------
Total......................... $116,689 $52,162 $(41,382) $127,469
======== ======= ======== ========
Operating income........................ $ 17,896 $ (138) $ (1,995) $ 15,763
======== ======= ======== ========
Identifiable assets..................... $110,904 $29,722 $(13,299) $127,327
======== ======= ======== ========
1994
Net sales:
Customers.......................... $ 56,502 $57,102 $ 0 $113,604
Intercompany....................... 36,182 0 (36,182) 0
-------- ------- -------- --------
Total......................... $ 92,684 $57,102 $(36,182) $113,604
======== ======= ======== ========
Operating income........................ $ 11,215 $ 5,995 $ (558) $ 16,652
======== ======= ======== ========
Identifiable assets..................... $ 90,760 $21,708 $ (3,551) $108,917
======== ======= ======== ========
</TABLE>
Intercompany sales between geographic areas are accounted for at cost plus
amounts to cover handling and other similar expenses.
11. FINANCIAL INSTRUMENTS
A. Fair value of financial instruments
The following methods and assumptions were used by the Company in
estimating its fair value disclosures for financial instruments:
Cash and cash equivalents and notes payable to banks: The carrying
amount reported in the balance sheet for cash and cash equivalents and
notes payable to banks approximates its fair value.
Short-term investments: The fair values for short-term investments are
based on quoted market prices.
Foreign currency exchange contracts: The fair value of the Company's
foreign currency exchange contracts are based on quoted market prices.
Foreign currency options: The fair value of the Company's foreign
currency options are based on quoted market prices.
F-16
<PAGE> 206
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The carrying amounts and fair values of the Company's financial instruments
at December 31, 1996 are as follows:
<TABLE>
<CAPTION>
1995 1996
------------------- -------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
-------- ------- -------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Cash and cash equivalents................... $33,065 $33,065 $41,663 $41,663
Short-term investments...................... 10,099 10,099 9,887 9,887
Notes payable to banks...................... 6,430 6,430 0 0
Foreign currency exchange contract.......... 92 92 0 (259)
Foreign currency options.................... 47 47 0 0
</TABLE>
B. Off-balance sheet risk
The Company enters into forward currency exchange contracts and options to
hedge foreign currency transactions on a continuing basis for periods consistent
with its foreign currency exposures. The objective of this practice is to reduce
the impact of foreign exchange movements on the Company's operating results. The
Company's hedging activities do not create exchange rate risk because gains and
losses on these contracts generally offset losses and gains on the assets,
liabilities and transactions being hedged.
At December 31, 1995 and 1996 the stated or notional amounts of the
Company's outstanding off-balance sheet financial instruments were as follows:
<TABLE>
<CAPTION>
1995 1996
------- -------
(IN THOUSANDS)
<S> <C> <C>
Forward currency exchange contracts......................... $16,260 $12,000
Foreign currency purchased options.......................... 12,000 0
Foreign currency sold options............................... 6,000 0
</TABLE>
C. Concentrations of credit risk
The Company's financial instruments that are exposed to concentrations of
credit risk consist primarily of cash and cash equivalents, short-term
investments and accounts receivable.
Cash is maintained with major banks in Denmark and the United States.
Foreign currency exchange contracts and options are entered into with a major
bank in Denmark. Short-term investments are shares in a US mutual fund. The
fund's investment policy is to invest a major part of its assets in US
Government bonds and other securities rated AAA by Standard & Poor's. The
expected average maturity is approximately three to five years.
The Company markets its products principally to distributors, value added
resellers and original equipment manufacturer customers in the computer
industry.
Concentrations of credit risk with respect to accounts receivable of
customers located outside Denmark are limited under the terms of an agreement
entered into with the company "EKR CreditInsurance A/S". This agreement
guarantees up to 90% of the amount of the related receivables. The amounts so
covered at December 31, 1995 and 1996 were $19,692,000 and $19,645,000,
respectively.
12. LITIGATION
From time to time, the Company is involved in litigation relating to claims
arising out of its operations in the normal course of business. As of December
31, 1996, the Company is not a party to any legal proceedings,
F-17
<PAGE> 207
OLICOM A/S
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
the adverse outcome of which, in management's opinion, would have a material
adverse effect on the Company's results of operations or financial position.
During fiscal year 1994 three lawsuits were filed against the Company in
the United States District Court for the Northern District of Texas, and were
subsequently consolidated into one action. The Company's Consolidated Financial
Statements at December 31, 1994, include a charge of $4,200,000, net of
insurance coverage, in connection with the settlement of the consolidated
action. This represents the Company's anticipated total liability with regard to
the settlement and was paid into an escrow account in 1995. The settlement was
approved by the court, and on August 30, 1996, the court entered a final
judgement of dismissal with prejudice with respect to the consolidated action.
13. SPECIAL CHARGE REGARDING MANAGEMENT CHANGE
In the first quarter of 1996, the Company recorded certain special charges
of $1.4 million, consisting primarily of severance pay and other costs incurred
relating to the Company's management reorganization of its U.S. operations and
other senior management changes.
14. SUBSEQUENT EVENT
On March 20, 1997, the Company entered into an Agreement and Plan of
Reorganization under which the Company would exchange each outstanding share of
common stock in CrossComm Corporation for $5.00 in cash, .2667 shares of common
stock in the Company and three year warrants evidencing the right to acquire
.1075 shares of common stock in the Company at an exercise price of $19.74 per
full share of common stock. Pursuant to the agreement, the Company expects to
issue approximately 2,700,000 shares of its common stock, warrants to purchase
approximately 1,100,000 additional shares of common stock, and in addition, to
issue options for approximately 575,000 shares of its common stock. The number
of shares of common stock in the Company may be adjusted upward and downward
under certain circumstances, based on the high and low sales prices for common
stock in Olicom during a period prior to closing. The acquisition, if
consummated, will be accounted for using purchase accounting, and the Company
anticipates recognizing a significant non-recurring expense during the second
quarter of 1997 in order to write off in-process research and development and
certain other acquisition- and integration-related expenses. The acquisition is
subject to approval by the shareholders of both the Company and CrossComm, as
well as other conditions, and if such approvals are obtained and the other
conditions are satisfied, the transaction is expected to become effective in
June, 1997. CrossComm is a publicly-held corporation that develops and markets
ATM and multi-protocol router technology for mission-critical SNA/Token Ring
environments. The Company anticipates that the cash portion of the consideration
(net of acquired liquid assets) will be funded from available working capital.
F-18
<PAGE> 208
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
CrossComm Corporation
We have audited the accompanying consolidated balance sheets of CrossComm
Corporation as of December 31, 1996 and 1995, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of the
three years in the period ended December 31, 1996. Our audits also included the
financial statement schedule listed in the Index at Item 14(a). These financial
statements and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
CrossComm Corporation at December 31, 1996 and 1995, and the consolidated
results of its operations and its cash flows for each of the three years in the
period ended December 31, 1996 in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
ERNST & YOUNG LLP
Boston, Massachusetts
January 28, 1997, except for Note 12,
as to which the date is March 20, 1997.
F-19
<PAGE> 209
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CROSSCOMM CORPORATION
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------
1996 1995
----------- -----------
<S> <C> <C>
Current assets:
Cash and cash equivalents................................. $ 6,461,027 $ 2,244,382
Available-for-sale securities............................. 37,279,483 44,528,825
Accounts receivable -- trade, net of allowances of
$997,000 at December 31, 1996 and $803,000 at December
31, 1995............................................... 8,276,496 7,141,395
Inventories, net.......................................... 5,473,065 6,394,525
Prepaid expenses and other current assets................. 1,701,755 1,253,527
----------- -----------
Total current assets.............................. 59,191,826 61,562,654
Equipment and leasehold improvements, net of accumulated
depreciation of $14,448,916 at December 31, 1996 and
$12,295,413 at December 31, 1995.......................... 5,463,578 7,079,290
Other assets, net........................................... 2,203,520 2,703,974
----------- -----------
Total assets...................................... $66,858,924 $71,345,918
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable.......................................... $ 3,536,566 $ 4,727,819
Accrued payroll and commissions........................... 843,412 686,932
Accrued liabilities....................................... 3,615,317 3,795,658
Warranty reserves......................................... 1,162,334 1,380,000
Deferred revenue.......................................... 3,338,954 3,348,157
----------- -----------
Total current liabilities......................... 12,496,583 13,938,566
Commitments and contingent liabilities (Note 8) Minority
interest in consolidated subsidiary....................... -- 44,485
Stockholders' equity:
Preferred stock, $.01 par value, 4,000,000 shares
authorized, none issued or outstanding at December 31,
1996 or December 31, 1995.............................. -- --
Common stock, $.01 par value, 20,000,000 shares
authorized, 9,236,132 shares issued and outstanding at
December 31, 1996 and 9,147,557 shares issued and
outstanding at December 31, 1995....................... 92,361 91,476
Paid-in capital in excess of par value.................... 72,533,642 71,949,833
Retained earnings (accumulated deficit)................... (21,449,166) (16,169,429)
Unrealized gain (loss) on available-for-sale securities... 3,185,504 1,490,987
----------- -----------
Total stockholders' equity........................ 54,362,341 57,362,867
----------- -----------
Total liabilities and stockholders' equity........ $66,858,924 $71,345,918
=========== ===========
</TABLE>
See accompanying notes.
F-20
<PAGE> 210
CROSSCOMM CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------
1996 1995 1994
----------- ------------ ------------
<S> <C> <C> <C>
Revenues:
Product......................................... $34,082,608 $ 34,704,046 $ 44,264,746
Service......................................... 10,791,311 9,554,380 6,054,002
----------- ------------ ------------
Total revenues.................................... 44,873,919 44,258,426 50,318,748
Cost of revenues:
Cost of goods sold.............................. 18,317,385 17,954,065 23,130,911
Cost of services................................ 5,780,425 7,480,637 3,973,351
----------- ------------ ------------
Total cost of revenues.................. 24,097,810 25,434,702 27,104,262
----------- ------------ ------------
Gross profit...................................... 20,776,109 18,823,724 23,214,486
Operating expenses:
Selling, general & administrative............... 19,401,907 23,188,994 23,155,431
Research and development........................ 9,829,719 13,358,542 12,285,426
Non-recurring charges........................... 777,258 1,074,075 1,962,705
----------- ------------ ------------
Total operating expenses................ 30,008,884 37,621,611 37,403,562
----------- ------------ ------------
Income (loss) from operations..................... (9,232,775) (18,797,887) (14,189,076)
Interest income, net.............................. 2,043,521 2,348,901 1,987,288
Gain on sale of investments....................... 2,086,743 2,803,193 --
Other income (expense)............................ (177,226) (157,318) 43,020
----------- ------------ ------------
Income (loss) before provision for income taxes... (5,279,737) (13,803,111) (12,158,768)
Provision for income taxes........................ -- -- 47,934
----------- ------------ ------------
Net income (loss)....................... $(5,279,737) $(13,803,111) $(12,206,702)
=========== ============ ============
Earnings (loss) per share......................... $ (0.58) $ (1.52) $ (1.37)
=========== ============ ============
Shares used in computing earnings (loss) per
share........................................... 9,178,500 9,058,700 8,902,000
=========== ============ ============
</TABLE>
See accompanying notes.
F-21
<PAGE> 211
CROSSCOMM CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
UNREALIZED
PAID-IN RETAINED GAIN (LOSS)
COMMON STOCK CAPITAL IN EARNINGS ON AVAILABLE- TOTAL
-------------------- EXCESS OF (ACCUMULATED FOR-SALE STOCKHOLDERS'
SHARES AMOUNT PAR VALUE DEFICIT) SECURITIES EQUITY
---------- ------- ----------- ------------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1994................ 8,835,099 $88,351 $69,869,201 $ 9,840,384 $ -- $ 79,797,936
Adjustment to beginning balance for
change in method of accounting for
investment securities................. -- -- -- -- 24,000 24,000
Adjustment to unrealized gain (loss) on
available-for-sale securities......... -- -- -- -- (1,195,000) (1,195,000)
Issuance of common stock under stock
option and stock purchase plans....... 146,365 1,464 636,660 -- -- 638,124
Net income (loss)....................... -- -- -- (12,206,702) -- (12,206,702)
---------- ------- ----------- ------------ ----------- ------------
Balance, December 31, 1994.............. 8,981,464 89,815 70,505,861 (2,366,318) (1,171,000) 67,058,358
---------- ------- ----------- ------------ ----------- ------------
Issuance of common stock under stock
option and stock purchase plans....... 166,093 1,661 1,443,972 -- -- 1,445,633
Adjustment to unrealized gain (loss) on
available-for-sale securities......... -- -- -- -- 2,661,987 2,661,987
Net income (loss)....................... -- -- -- (13,803,111) -- (13,803,111)
---------- ------- ----------- ------------ ----------- ------------
Balance, December 31, 1995.............. 9,147,557 91,476 71,949,833 (16,169,429) 1,490,987 57,362,867
---------- ------- ----------- ------------ ----------- ------------
Issuance of common stock under stock
option and stock purchase plans....... 88,575 885 583,809 -- -- 584,694
Adjustment to unrealized gain (loss) on
available-for-sale securities......... -- -- -- -- 1,694,517 1,694,517
Net income (loss)....................... -- -- -- (5,279,737) -- (5,279,737)
---------- ------- ----------- ------------ ----------- ------------
Balance, December 31, 1996.............. 9,236,132 $92,361 $72,533,642 $(21,449,166) $ 3,185,504 $ 54,362,341
========== ======= =========== ============ =========== ============
</TABLE>
See accompanying notes.
F-22
<PAGE> 212
CROSSCOMM CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------
1996 1995 1994
----------- ------------ ------------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss).................................. $(5,279,737) $(13,803,111) $(12,206,702)
Adjustments to reconcile net income (loss) to net
cash provided (used) by operating activities:
Depreciation expense............................. 2,239,391 5,406,007 4,335,318
Amortization expense............................. 849,820 1,128,165 950,176
Non-recurring charges and other write-offs....... -- 367,600 2,136,044
Provision for accounts receivable allowances..... 370,203 838,186 376,754
Provision for inventory reserves................. (366,617) 2,244,345 3,568,426
Deferred income taxes............................ -- -- 19,000
Gain on sale of investments...................... (2,086,743) (2,803,193) --
Other............................................ 274,805 274,846 341,420
Changes in operating assets and liabilities:
Accounts receivable........................... (1,227,349) 2,343,928 840,085
Inventories................................... 1,202,189 (4,527,621) (2,639,692)
Prepaid expenses and other current assets..... (448,228) 93,872 283,835
Accounts payable.............................. (1,191,253) (872,769) 961,187
Accrued liabilities, payroll and
commissions................................. (241,527) 1,499,289 2,038,560
Deferred revenue.............................. (9,203) 1,118,689 541,070
----------- ------------ ------------
Total adjustments........................ (634,512) 7,111,344 13,752,183
----------- ------------ ------------
Net cash provided (used) by operating
activities............................. (5,914,249) (6,691,767) 1,545,481
INVESTING ACTIVITIES
Purchases of available-for-sale securities......... (46,495,324) (74,579,071) (30,566,542)
Sales and maturities of available-for-sale
securities....................................... 57,526,027 78,679,886 37,901,567
Acquisition of fixed assets........................ (537,791) (4,199,726) (6,259,246)
Additions to other assets.......................... (946,712) (1,137,231) (2,456,617)
----------- ------------ ------------
Net cash provided (used) by investing
activities............................. 9,546,200 (1,236,142) (1,380,838)
FINANCING ACTIVITIES
Payments of capital lease obligations.............. -- (4,010) (16,327)
Proceeds from employee stock plans................. 584,694 1,445,633 638,124
----------- ------------ ------------
Net cash provided (used) by financing activities... 584,694 1,441,623 621,797
----------- ------------ ------------
Net increase (decrease) in cash and cash
equivalents...................................... 4,216,645 (6,486,286) 786,440
Cash and cash equivalents at beginning of period... 2,244,382 8,730,668 7,944,228
----------- ------------ ------------
Cash and cash equivalents at end of period......... $ 6,461,027 $ 2,244,382 $ 8,730,668
=========== ============ ============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Non-monetary transactions:
Intangible asset and minority interest
acquisitions effected through trade receivable
and notes receivable offsets.................. -- -- $ 1,305,077
=========== ============ ============
Equity securities received as consideration for
investment sold............................... -- $ 2,431,220 --
=========== ============ ============
</TABLE>
See accompanying notes.
F-23
<PAGE> 213
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
CrossComm Corporation (the Company) develops, manufactures, markets and
supports advanced networking products. The Company markets its products and
services principally in North America and Western Europe through a direct sales
organization, as well through indirect channels consisting of value added
resellers (VARs), systems integrators and international distributors.
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of
the Company and its wholly-owned and majority-owned subsidiaries. All
significant intercompany accounts and transactions have been eliminated in
consolidation.
Minority interest at December 31, 1995 represented a minority stockholder's
proportionate share of the equity of a foreign consolidated subsidiary. In 1996,
the Company purchased the minority stockholder's shares in the subsidiary.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
The Company's inventories, capitalized technologies, and demonstration and
service equipment consist primarily of items which are susceptible to
technological obsolescence; a fact which has been considered in determining
asset valuation reserves as of December 31, 1996 and 1995. However, in the event
of certain circumstances, such as the emergence of otherwise unforeseen new
technologies and significant changes in anticipated market requirements and
conditions, additional reserves related to assets held as of December 31, 1996
could be required in the future.
Cash and Cash Equivalents
Cash and cash equivalents consist of cash on hand, demand deposit accounts,
commercial paper, money market funds and U.S. Government obligations having
maturities of three months or less when purchased. These investments are highly
liquid and are considered cash equivalents. Cash and cash equivalents are stated
at cost which approximates market. Government agency obligations and commercial
paper are classified as cash equivalents and are "A" rated or better investment
grade securities, with no significant concentrations in any one issue.
Available-for-Sale Securities
Available-for-sale securities generally consist principally of U.S.
Government obligations maturing within one to three years. The Company considers
these investments, which represent funds available for current operations, an
integral component of its cash management activities. Management determines the
appropriate classification of debt securities at the time of purchase and
reevaluates such designation on an ongoing basis. Available-for-sale securities
at December 31, 1996 also include certain restricted equity securities of Fore
Systems, Inc. (Fore), received upon Fore's acquisition of an entity in which the
Company held a minority equity interest (see Note 11). These securities,
although not salable until mid-1997, are considered available-for-sale pursuant
to Financial Accounting Standard No. 115, "Accounting for Certain Investments in
Debt and Equity Securities," and are accounted for as such.
F-24
<PAGE> 214
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Available-for-sale securities are carried at fair value, inclusive of
accrued interest receivable, with unrealized gains and losses reported in a
separate component of stockholders' equity. Debt securities in this category are
adjusted for amortization of premiums and accretion of discounts to maturity.
Such amortization or accretion is included in investment income. Realized gains
and losses and declines in value judged to be other-than-temporary on
available-for-sale securities are included in investment income. The cost of
securities sold is based on the specific identification method. Interest and
dividends on available-for-sale securities are included in investment income.
Inventories
Inventories are valued at the lower of cost (first-in, first-out) or
market.
Equipment and Leasehold Improvements
Equipment and leasehold improvements are stated at cost. Depreciation is
computed using the straight-line method based upon the shorter of the estimated
useful lives or remaining lease terms, generally 3 to 5 years. Depreciation
expense for 1996, 1995 and 1994 includes approximately $352,000, $763,000 and
$613,000, respectively, resulting from changes in estimates of the depreciable
lives of certain equipment. Depreciation expense for 1996, 1995 and 1994 also
includes approximately $100,000, $1,224,000 and $750,000, respectively, related
to the obsolescence of certain demonstration and service equipment.
Software Development Costs and Other Intangibles
The Company capitalizes certain software development costs in accordance
with Statement of Financial Accounting Standards No. 86, "Accounting for the
Costs of Computer Software to be Sold, Leased or Otherwise Marketed." The
Company amortizes these costs over the shorter of three years or the product's
estimated useful life. At December 31, 1996 and 1995, capitalized software
development costs, net of accumulated amortization, aggregated approximately
$82,000 and $214,000, respectively. Amortization expense related to capitalized
software costs approximated $232,000, $198,000 and $172,000 for the years ended
December 31, 1996, 1995 and 1994, respectively.
Other intangibles included in other assets total approximately $2,825,000
at December 31, 1996 and 1995. These consist primarily of software technology
license fees which are being amortized on a straight-line basis over the shorter
of three years or the product's estimated useful life beginning in the year that
the related technology is used in Company products. Accumulated amortization
related to other intangibles approximated $1,908,000 and $1,290,000 at December
31, 1996 and 1995, respectively. During 1995 and 1994 software technology
license fees with unamortized costs aggregating approximately $710,000 and
$600,000, respectively, were written-off, as it was determined that the related
technology would not be used in the Company's products given changes in the
Company's product line direction in 1995 and 1996. There were no license fees
written off in 1996.
Accounting Changes
In the first quarter of 1996, the Company adopted Financial Accounting
Standards Board Statement No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed Of," which requires impairment
losses to be recorded on long-lived assets used in operations when indicators of
impairment are present and the undiscounted cash flows estimated to be generated
by those assets are less than the assets' carrying amount. Statement No. 121
also addresses the accounting for long-lived assets that are expected to be
disposed of. The effect of adoption did not have a material impact on the
Company's financial position or results of operations.
F-25
<PAGE> 215
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Stock-Based Compensation
In 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" ("SFAS 123"). This statement establishes financial accounting and
reporting standards for stock based employee compensation plans, including
incentive or non-qualified stock options for the purchase of common stock
provided for under the Company's Option Plans and shares purchased under the
Employee Stock Purchase Plan. As allowed under SFAS 123, the Company has elected
to follow Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees" (APB 25) and related interpretations in accounting for its
stock-based employee benefit plans, as opposed to the alternative fair value
accounting provided for under SFAS 123. Because the exercise price of the
Company's employee stock options granted to date equals the market price of the
underlying stock on the date of grant, no compensation expense is recognized
under APB25.
Revenue Recognition
The Company generally recognizes product revenue upon shipment. Revenues
for products under evaluation are recognized upon customer acceptance. Revenue
from sale-type leases are generally recognized upon shipment. Service revenues
are recognized ratably over the contractual periods. The Company provides for
the estimated cost of warranty at the time of product shipment.
Advertising Costs
Costs associated with advertising the Company's products and services are
expensed as incurred. Advertising expense for the years ended December 31, 1996,
1995, and 1994 approximated $317,000, $1,551,000, and $1,021,000, respectively.
Foreign Currency Translation
Gains and losses resulting from foreign currency transactions are included
in income as they occur. Foreign currency translation gains and losses are also
included in income. Foreign currency gains and losses were not material for the
years ended December 31, 1996, 1995, and 1994.
Earnings (Loss) Per Share
Earnings (loss) per share data are computed using the weighted average
number of shares of common stock outstanding.
Reclassifications
Certain information in the 1995 and 1994 consolidated financial statements
has been reclassified to conform with the 1996 presentation.
2. AVAILABLE-FOR-SALE SECURITIES
Available-for-sale securities consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31, 1996
------------------------------------------------------
GROSS GROSS
UNREALIZED UNREALIZED FAIR
COST GAINS LOSSES VALUE
----------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
U.S. Government obligations...... $33,453,279 $ 34,217 $(96,929) $33,390,567
Equity securities................ 640,700 3,248,216 -- 3,888,916
----------- ---------- -------- -----------
$34,093,979 $3,282,433 $(96,929) $37,279,483
=========== ========== ======== ===========
</TABLE>
F-26
<PAGE> 216
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31, 1995
------------------------------------------------------
GROSS GROSS
UNREALIZED UNREALIZED FAIR
COST GAINS LOSSES VALUE
----------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
U.S. Government obligations...... $42,718,446 $ 116,445 $(63,518) $42,771,373
Equity securities................ 319,392 1,438,060 -- 1,757,452
----------- ---------- -------- -----------
$43,037,838 $1,554,505 $(63,518) $44,528,825
=========== ========== ======== ===========
</TABLE>
The fair value of available-for-sale securities is determined using the
published closing prices of these securities. Realized gains on sales of
available-for-sale securities during the years ended December 31, 1996 and 1995
approximated $2,093,000 ($2,062,000 of which related to a single transaction)
and $740,000 ($725,000 of which related to a single transaction), respectively
(see Note 11). Realized losses on sales of available-for-sale securities during
the year ended December 31, 1996 and 1995 approximated $6,000 and $37,000,
respectively.
The equity securities held at December 31, 1996 and 1995 represent
restricted common stock of Fore Systems, Inc. (Fore), acquired upon Fore's
acquisition of an entity in which the Company held a minority equity interest
(see Note 11). The cost of these securities represents the market value of Fore
common stock on the date received, as reduced to reflect certain restrictions
related to the timing of the disposition of the shares received.
Subsequent to December 31, 1996 the market value of these equity securities
declined in value such that the effect on available-for-sale securities and
shareholders equity would be a reduction of approximately $592,000 at January
28, 1997. This decline is not considered to be anything other than temporary at
this time.
The amortized cost and fair value of available-for-sale securities as of
December 31, 1996, by contractual maturity, are as follows:
<TABLE>
<CAPTION>
FAIR
COST VALUE
----------- -----------
<S> <C> <C>
U.S. Government obligations:
Due in one year or less................................. $17,248,055 $17,257,545
Due after one year through two years.................... 16,205,224 16,133,022
----------- -----------
33,453,279 33,390,567
Equity securities......................................... 640,700 3,888,916
----------- -----------
$34,093,979 $37,279,483
=========== ===========
</TABLE>
3. INVENTORIES
Inventories, net of reserves of approximately $2,240,000 and $4,036,000 at
December 31, 1996 and 1995, respectively, were composed of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------
1996 1995
---------- ----------
<S> <C> <C>
Raw materials............................................... $1,253,906 $2,250,349
Work in process............................................. 1,628,055 1,826,143
Finished goods.............................................. 2,591,104 2,318,033
---------- ----------
$5,473,065 $6,394,525
========== ==========
</TABLE>
F-27
<PAGE> 217
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
During 1996 and 1995, the Company recorded inventory provisions of $366,617
and $2,244,345, respectively, primarily for end of life excess supply issues
related to planned product discontinuance or product valuation issues caused by
changes in the Company's product line direction.
4. LINES OF CREDIT
The Company has a demand line of credit available for international
guarantees in the amount of $320,000 at December 31, 1996. The grant of credit
and its continued availability is at the sole discretion of the bank. At
December 31, 1996, the credit facility was fully utilized. This borrowing has
been secured by cash collateral.
5. STOCKHOLDERS' EQUITY
Undesignated Preferred Stock
The Company has 4,000,000 authorized shares of undesignated preferred
stock, $.01 par value. The Board of Directors has the authority to issue shares
of such preferred stock and to determine the relative rights, preferences and
limitations thereon.
Stock Options
Options to purchase shares of the Company's common stock have been granted
to executives and key employees under the Company's Incentive Stock Option Plans
and to directors of the Company under the Directors' Option Plan (collectively,
the "Options Plans"). The terms and provisions of the employee plans are
similar, in all material respects, while the directors' plan provides annual
option grants. Options are granted for terms of up to 10 years and are
exercisable over varying periods, generally commencing in the quarter of or
quarter after date of grant and continuing in quarterly installments over three
to five year periods. The option price per share under the Option Plans is not
less than the fair market value of the shares on the date of grant. At December
31, 1996 and 1995, 2,429,434 shares and 1,755,137 shares, respectively, were
reserved for future issuance under the Option Plans.
F-28
<PAGE> 218
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Stock option activity for the three year period ended December 31, 1996 is
as follows:
<TABLE>
<CAPTION>
NUMBER OF WEIGHTED AVERAGE
OPTIONS EXERCISE PRICE
---------- ----------------
<S> <C> <C>
Outstanding, January 1, 1994............................ 1,046,933 $18.21
Granted............................................... 1,609,819 $11.88
Exercised............................................. (83,934) $ 2.54
Canceled.............................................. (1,091,418) $19.52
----------
Outstanding, December 31, 1994.......................... 1,481,400 $11.17
Granted............................................... 858,750 $ 2.16
Exercised............................................. (112,680) $ 8.28
Canceled.............................................. (536,720) $11.69
----------
Outstanding, December 31, 1995.......................... 1,690,750 $11.70
Granted............................................... 2,697,125 $ 7.02
Exercised............................................. (28,203) $ 6.79
Canceled.............................................. (2,553,356) $10.64
----------
Outstanding, December 31, 1996.......................... 1,806,316 $ 6.29
==========
Exercisable at December 31, 1996........................ 722,831 $ 7.68
==========
Exercisable at December 31, 1995........................ 563,522 $11.19
==========
Available for grant at December 31, 1996................ 623,117
==========
</TABLE>
In 1994, 729,068 options outstanding under the Company's 1992 Incentive
Stock Option Plan, ranging in option price from $12.75 to $31.25 per share, were
repriced to $12.50 per share by canceling the existing options and granting new
options at $12.50 per share. All other terms of these options, including the
vesting period and the number of shares associated with each option remained the
same.
For the year ended December 31, 1996, 1,063,625 options outstanding under
the Company's 1992 and 1994 Incentive Stock Option Plans, ranging in option
price from $5.88 to $12.94 per share, were repriced to $5.00 per share by
canceling the existing options and granting new options at $5.00 per share. All
other terms of these options, including the vesting period and the number of
shares associated with each option, remained the same.
The following table summarizes the status of the Company's stock options,
outstanding and exercisable at December 31, 1996:
<TABLE>
<CAPTION>
STOCK OPTIONS
OUTSTANDING STOCK OPTIONS
------------------------------------ EXERCISABLE
WEIGHTED -------------------
AVERAGE WEIGHTED WEIGHTED
REMAINING AVERAGE AVERAGE
RANGE OF CONTRACTUAL EXERCISE EXERCISE
EXERCISE PRICES SHARES LIFE PRICE SHARES PRICE
- ----------------------------- --------- ----------- -------- ------- --------
<S> <C> <C> <C> <C> <C>
$ 1.00 - $ 4.50.............. 11,450 3.14 Years $ 1.16 11,450 $ 1.16
$ 5.00 - $ 6.00.............. 1,528,064 8.73 Years $ 5.04 506,662 $ 5.08
$ 8.50 - $12.50.............. 156,115 8.04 Years $10.96 110,240 $11.21
$12.94 - $13.88.............. 83,187 8.07 Years $13.38 66,979 $13.37
$28.50 - $31.50.............. 27,500 6.42 Years $30.14 27,500 $30.14
--------- -------
1,806,316 722,831
========= =======
</TABLE>
F-29
<PAGE> 219
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Employee Stock Purchase Plan
Under the Company's Employee Stock Purchase Plan, substantially all
employees may purchase shares of the Company's common stock, during pre-defined
offering periods, at a price per share equal to 85% of the lesser of the common
stock price at the beginning or end of such periods. During 1994, 62,431 shares
were issued under this Plan, 29,820 at $8.08 per share and 32,611 at $7.86 per
share. During 1995, 53,413 shares were issued under this Plan, 26,920 at $9.62
per share and 26,493 at $9.67 per share. During 1996, 60,372 shares were issued
under this Plan, 25,301 at $8.71 per share and 35,071 at $4.46 per share. At
December 31, 1996, the Company has reserved an additional 163,135 shares for
issuance under this Plan.
Accounting for Stock Based Employee Benefits
Pro forma information regarding net income and earnings per share, as if
the Company had accounted for stock options and stock purchase shares under the
fair value method of SFAS 123, is presented below. The fair value of stock
options and stock purchase shares was estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted average
assumptions as of the date of grant: a risk free interest rate of 6.23% for 1995
and 6.12% for 1996; no dividend yields; volatility factors of the expected
market price of the Company's common stock of .66; and a weighted-average
expected life of the option of 3.74 years for 1995 and 3.17 years for 1996.
For purpose of pro forma disclosures, the estimated fair value of the stock
options is amortized to expense over the option vesting period. The Company's
pro forma information, assuming a weighted average net value per share of
options granted during the year of $3.10 in 1996 and $6.40 in 1995, follows:
<TABLE>
<CAPTION>
1996 1995
----------- ------------
<S> <C> <C>
Pro forma net income (loss)............................... $(8,125,835) $(15,164,129)
Pro forma earnings (loss) per share....................... $ (0.89) $ (1.67)
</TABLE>
6. INCOME TAXES
At December 31, 1996, the Company has net operating loss and tax credit
carryforwards of approximately $20,965,000 and $694,000, respectively for
federal income tax purposes that expire in 2009 through 2011. The net operating
loss carryforward does not reflect the tax benefit available from the 1996 and
1995 exercise of incentive stock options and subsequent sale of the related
common stock and the exercise of non-qualified stock options. For financial
reporting purposes, a valuation allowance has been recognized to offset all net
deferred tax assets, including those related to the net operating loss and tax
credit carryforwards.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes.
F-30
<PAGE> 220
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Significant components of the Company's deferred tax liabilities and assets
are as follows:
<TABLE>
<CAPTION>
1996
-----------------------------------------
TOTAL CURRENT NON-CURRENT
------------ ----------- ------------
<S> <C> <C> <C>
Deferred tax liabilities:
Unrealized gain on securities............. $ (1,104,000) $(1,104,000) $ --
Unremitted foreign earnings............... (349,000) -- (349,000)
Equity securities......................... (167,000) (167,000) --
Capitalized software...................... (31,000) -- (31,000)
Prepaid expenses and other................ (56,000) (56,000) --
------------ ----------- ------------
Total deferred tax liabilities.... (1,707,000) (1,327,000) (380,000)
------------ ----------- ------------
Deferred tax assets:
Asset valuation allowances................ 2,758,000 2,758,000 --
Intangible asset amortization............. 728,000 57,000 671,000
Accrued warranty costs.................... 442,000 442,000 --
Depreciation expense...................... 551,000 -- 551,000
Tax credit carryforwards.................. 1,109,000 -- 1,109,000
Net operating loss carryforwards.......... 8,063,000 -- 8,063,000
Other..................................... 235,000 235,000 --
------------ ----------- ------------
Total deferred tax assets......... 13,886,000 3,492,000 10,394,000
------------ ----------- ------------
Valuation allowance for deferred
tax assets...................... (12,179,000) (2,165,000) (10,014,000)
------------ ----------- ------------
Net deferred tax assets........... 1,707,000 1,327,000 380,000
------------ ----------- ------------
Net deferred tax asset (liability).......... $ -- $ -- $ --
============ =========== ============
</TABLE>
<TABLE>
<CAPTION>
1995
-----------------------------------------
TOTAL CURRENT NON-CURRENT
------------ ----------- ------------
<S> <C> <C> <C>
Deferred tax liabilities:
Contract revenue.......................... $ (190,000) $ (57,000) $ (133,000)
Unrealized gain on securities............. (507,000) (507,000) --
Unremitted foreign earnings............... (349,000) -- (349,000)
Equity securities......................... (251,000) (84,000) (167,000)
Capitalized software...................... (81,000) -- (81,000)
Prepaid expenses and other................ (50,000) (50,000) --
------------ ----------- ------------
Total deferred tax liabilities.... (1,428,000) (698,000) (730,000)
------------ ----------- ------------
Deferred tax assets:
Asset valuation allowances................ 3,202,000 3,202,000 --
Intangible asset amortization............. 658,000 49,000 609,000
Accrued warranty costs.................... 524,000 524,000 --
Depreciation expense...................... 500,000 -- 500,000
Tax credit carryforwards.................. 867,000 -- 867,000
Net operating loss carryforwards.......... 6,057,000 -- 6,057,000
Other..................................... 306,000 306,000 --
------------ ----------- ------------
Total deferred tax assets......... 12,114,000 4,081,000 8,033,000
Valuation allowance for deferred
tax assets...................... (10,686,000) (3,383,000) (7,303,000)
------------ ----------- ------------
Net deferred tax assets........... 1,428,000 698,000 730,000
------------ ----------- ------------
Net deferred tax asset (liability).......... $ -- $ -- $ --
============ =========== ============
</TABLE>
F-31
<PAGE> 221
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The reconciliation of income tax attributable to continuing operations
computed at the U.S. federal statutory tax rates to income tax expense is as
follows:
<TABLE>
<CAPTION>
1996 1995 1994
--------------------- --------------------- ---------------------
AMOUNT PERCENT AMOUNT PERCENT AMOUNT PERCENT
----------- ------- ----------- ------- ----------- -------
<S> <C> <C> <C> <C> <C> <C>
Tax at U.S. statutory rates... $(1,795,110) (34%) $(4,693,058) (34%) $(4,133,981) (34%)
Tax exempt interest........... -- -- (25,789) (131,160) (1)
Unbenefitted loss............. 1,752,212 33 4,673,683 34 4,193,159 34
Other......................... 42,898 1 45,164 -- 119,916 1
----------- --- ----------- --- ----------- ---
$ -- -- $ -- -- $ 47,934 --
=========== === =========== === =========== ===
</TABLE>
7. CONCENTRATIONS AND EXPORT SALES
Credit Risk
The Company operates in a single industry segment encompassing the
development, manufacture, marketing and support of advanced networking products.
Accordingly, the Company's customers include distributors and resellers of high
technology equipment, along with end users of such equipment. The Company
performs periodic credit evaluations of its customers' financial condition and
extends trade credit to its customers under normal terms. No single customer
accounted for more than 10% of revenues in 1996, 1995 or 1994. However, in 1996
the Company recognized $2,302,000 of revenue under a sales-type lease from one
customer. Lease receivables from this customer, recorded at their present value
and included in prepaid and other current assets and other assets, aggregate
$1,902,000 at December 31, 1996.
Financial Information By Geographic Area
Net sales, operating income and assets by major geographic area for 1996
and 1995 are summarized below. Prior to 1995, North America was the only
significant geographic area. Prices to foreign subsidiaries are at prices that
approximate market.
<TABLE>
<CAPTION>
NORTH CONSOLIDATED
AMERICA EUROPE ELIMINATION TOTAL
------------ ----------- ----------- ------------
<S> <C> <C> <C> <C>
1996:
Net sales to unaffiliated customers.... $ 38,641,663 $ 6,232,256 $ 44,873,919
Transfers between areas................ 2,124,010 4,296,739 $(6,420,749)
------------ ----------- ----------- ------------
40,765,673 10,528,995 (6,420,749) 44,873,919
Operating income....................... (8,073,709) (1,159,066) (9,232,775)
Identifiable assets.................... 61,075,629 5,783,295 66,858,924
1995:
Net sales to unaffiliated customers.... $ 39,310,136 $ 4,948,290 $ 44,258,426
Transfers between areas................ 2,187,316 3,547,591 $(5,734,907)
------------ ----------- ----------- ------------
41,497,452 8,495,881 (5,734,907) 44,258,426
Operating income....................... (17,485,179) (1,312,708) (18,797,887)
Identifiable assets.................... 65,281,289 6,064,629 71,345,918
</TABLE>
Included in North America net sales are export sales of $10,249,000 in 1996
and $6,081,000 in 1995. North America export sales to unaffiliated customers in
1994 totaled $6,777,000.
Suppliers
Although the Company generally uses standard parts and components for its
products, certain components are currently available only from single sources,
including microprocessors, various communications controller chips, and power
supplies. Other components and subassemblies are available only from limited
F-32
<PAGE> 222
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
sources. The Company has also contracted with a contract manufacturer to be the
primary manufacturer of the Company's networking modules. Although the Company
believes that these components, subassemblies and modules are sufficiently
available from alternate sources in a reasonable amount of time, the reduction
or interruption of supply, a significant price increase or engineering changes
required by the use of alternate components, subassemblies or modules could
adversely affect the Company's operating results.
8. COMMITMENTS AND CONTINGENT LIABILITIES
The Company leases office space under operating lease agreements. The
Company leases its main office and manufacturing facility under an operating
lease agreement which expires at the end of 1997. This lease contains an
escalation clause and an initial free rent period. The accompanying consolidated
statements of operations reflect rent expense on a straight-line basis over the
term of the lease.
The following is a schedule of future minimum lease payments required under
operating leases as of December 31, 1996:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
- -----------------------
<S> <C> <C>
1997............................................................. $625,000
1998............................................................. 160,000
1999............................................................. 75,000
--------
Total minimum lease payments..................................... $860,000
========
</TABLE>
Rent expense related to operating leases for the years ended December 31,
1996, 1995, and 1994 approximated $1,292,000, $1,408,000, and $1,240,000,
respectively.
9. RELATED PARTY TRANSACTIONS
In July, 1993, the Company, together with its primary distributor in the
United Kingdom (the U.K. distributor), formed CrossComm (UK) Limited (CCUK), a
consolidated subsidiary of the Company organized to increase market share in the
U.K. networking market. In exchange for their contribution of assets to the
joint venture, the Company and the U.K. distributor received ownership interests
in CCUK of 51% and 49%, respectively. Effective March 31, 1994, the Company
purchased the U.K. distributor's ownership interest in CCUK and the U.K.
distributor's router distribution business for approximately $1,750,000. As a
result of these transactions, CCUK became a wholly-owned subsidiary of the
Company. Intangible assets arising from the initial joint venture and subsequent
purchase of the router distribution business totaled approximately $2,153,000
and were subsequently written-off (see Note 10).
There were no sales to the U.K. distributor for the year ended December 31,
1996. In the years ended December 31, 1995 and 1994 sales were approximately
$60,000, and $415,000, respectively, of which no amounts were outstanding at
December 31, 1996 and 1995.
10. NON-RECURRING CHARGES
In the fourth quarter of 1996, the Company recorded approximately $874,000
of non-recurring severance, benefits and related costs associated with the
termination of certain senior management personnel. These charges also included
the termination of certain research and development employees due to the
Company's decision not to fund previously planned development projects that it
considered outside the realm of the Company's current strategy. The Company
expects to pay all of these costs in 1997.
In the fourth quarter of 1995, the Company recorded approximately
$1,074,000 of non-recurring charges related to its corporate restructuring
designed to enable the Company to better address ATM and LAN switching market
opportunities and to more appropriately align the Company's expense levels with
it's
F-33
<PAGE> 223
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
revenues. Severance, benefits, and related costs associated with terminated
employees accounted for approximately $789,000 of the total charge. The
remaining $285,000 consisted of lease termination costs and other costs
associated with the restructuring. The majority of these charges were paid by
the Company in 1996. In 1996, the Company determined that its estimate of 1995
fourth quarter charges was high by $97,000 and, accordingly, reduced accruals
and 1996 non-recurring charges by that amount.
In the fourth quarter of 1994, the Company recorded approximately
$1,963,000 of restructuring charges related to the reorganization of its
international operations. Approximately $1,641,000 of these charges related
primarily to the write-off of unamortized intangible assets arising from the
Company's March 1994 U.K. acquisitions (see Note 9). These intangible assets,
consisting principally of values ascribed to customer lists, a covenant not to
compete, and goodwill established at the organization of the joint venture, were
considered permanently impaired, based upon the lower than expected revenues and
sales prospects derived from it's U.K. subsidiary after the passage of an
initial transition period and after the Company's completion of its branch
office networking product line introduction in September and October of 1994.
The remaining charges of approximately $322,000 consisted primarily of severance
and other costs associated with the Company's reorganization of its
international sales and service functions outside of the United Kingdom. The
majority of these remaining charges were paid in 1995.
11. SALE OF INVESTMENT
In May 1995, the Company sold its minority equity interest in Applied
Network Technology, Inc. (ANT) to Fore Systems Inc. (Fore), in connection with
Fore's acquisition of ANT. In exchange for its ownership interest in ANT, the
Company received shares of Fore common stock, and recorded a gain of $2,100,000
during the second quarter of 1995, based on the difference between the carrying
value of the Company's investment in ANT and the market value of Fore common
stock on the date of Fore's acquisition of ANT, as reduced to reflect certain
restrictions related to the timing of the disposition of the shares received. In
July 1995, a portion of the Fore shares were sold by the Company, whereby the
Company realized a gain of approximately $725,000, reflecting the appreciation
in the share price of the Fore stock between May 1995 and the date of sale. In
September 1996 the Company realized a gain of $2,062,000 from the sale of
another portion of Fore shares. The remaining shares are carried in
available-for-sale securities at December 31, 1996 (see Note 2). As a result of
the reclassification of shares of Fore common stock to a short term investment,
the unrealized gain increased during 1996. This was due to the shares being
recorded at market value, as they became salable within twelve months of
December 31, 1996.
12. SUBSEQUENT EVENT
On March 20, 1997, the Company entered into an Agreement and Plan of
Reorganization with Olicom A/S ("Olicom"), whereby each outstanding share of the
Company will be exchanged for $5.00 in cash, .2667 shares of Olicom common stock
and a three year warrant to acquire .1075 shares of Olicom common stock at an
exercise price of $19.74 for each full share of Olicom common stock. The
business combination is subject to certain conditions and approvals, including
the approval of both companies' shareholders and will be accounted for by Olicom
under the purchase method of accounting.
F-34
<PAGE> 224
CROSSCOMM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
13. SELECTED QUARTERLY DATA (UNAUDITED)
<TABLE>
<CAPTION>
EARNINGS
NET INCOME (LOSS)
REVENUE GROSS PROFIT (LOSS) PER SHARE
------- ------------ ---------- ---------
IN THOUSANDS, EXCEPT PER SHARE AMOUNTS
<S> <C> <C> <C> <C>
1996
First quarter....................... $10,658 $ 4,973 $ (1,595) $ (0.17)
Second quarter...................... 11,802 5,659 (1,720) (0.19)
Third quarter....................... 10,865 4,680 (464) (0.05)
Fourth quarter...................... 11,549 5,464 (1,501) (0.16)
------- ------- -------- -------
$44,874 $20,776 $ (5,280) $ (0.58)
======= ======= ======== =======
1995
First quarter....................... $13,202 $ 7,213 $ 107 $ .01
Second quarter...................... 11,533 5,870 122 .01
Third quarter....................... 10,048 4,652 (3,033) (.33)
Fourth quarter...................... 9,475 1,089 (10,999) (1.21)
------- ------- -------- -------
$44,258 $18,824 $(13,803) $ (1.52)
======= ======= ======== =======
</TABLE>
Earnings (loss) per share calculations for each of the quarters is based on
the weighted average number of shares outstanding for each period including
common stock equivalents when dilutive. Accordingly, the sum of the quarters may
not necessarily be equal to the full year earnings (loss) per share amount.
The results of the fourth quarter of 1996 include approximately $874,000 of
non-recurring severance, benefits and related costs associated with the
termination of certain senior management personnel. These charges also included
the termination of certain research and development employees due to the
Company's decision not to fund previously planned development projects that it
considered outside the realm of the Company's current strategy.
The results of the fourth quarter of 1995 include (i) approximately
$1,074,000 of non-recurring charges related to the Company's corporate
restructuring; (ii) approximately $4,000,000 of charges to address asset
valuation issues primarily resulting from the Company's entrance into the LAN
and ATM switching market and related decision to de-emphasize certain other
older technologies and products; and (iii) approximately $1,600,000 of other
charges, including $500,000 related to the settlement of a long-term contract
receivable.
See Management's Discussion and Analysis for a further discussion of the
1996 and 1995 fourth quarter charges.
F-35
<PAGE> 225
APPENDIX A
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
OLICOM A/S,
PW ACQUISITION CORPORATION
AND
CROSSCOMM CORPORATION
MARCH 20, 1997
<PAGE> 226
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I - THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Closing; Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effect of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Certificate of Incorporation; Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Directors and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Effect on Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Dissenting Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.8 Surrender of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.9 No Further Ownership Rights in CrossComm Common Stock . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Lost, Stolen or Destroyed Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Taking of Necessary Action; Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF CROSSCOMM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 Organization, Standing and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.2 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.4 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.5 SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.7 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.8 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.10 Restrictions on Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.11 Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.12 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.15 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.16 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.17 Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.18 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.19 Customers and Suppliers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.20 Brokers' and Finders' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.21 Registration Statement; Joint Proxy Statement/Prospectus . . . . . . . . . . . . . . . . . . . 20
2.22 Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.23 Vote Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.24 Board Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.25 Section 203 of Delaware Law Not Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
- i -
<PAGE> 227
<TABLE>
<S> <C>
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF OLICOM AND MERGERSUB . . . . . . . . . . . . . . . . . . . . . 21
3.1 Organization, Standing and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.3 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.4 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.5 SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.7 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.8 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.10 Restrictions on Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.11 Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.12 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.15 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.16 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.17 Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.18 Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.19 Brokers' and Finders' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.20 Registration Statement; Joint Proxy Statement/Prospectus . . . . . . . . . . . . . . . . . . . 30
3.21 Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.22 Vote Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.23 Board Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV - CONDUCT PRIOR TO THE EFFECTIVE TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.1 Conduct of Business of CrossComm and Olicom . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2 Conduct of Business of CrossComm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.3 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V - ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.1 Joint Proxy Statement/Prospectus; Registration Statement . . . . . . . . . . . . . . . . . . . 36
5.2 Meetings of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.3 Access to Information; Advice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.5 Public Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.6 Consents; Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.7 Affiliate Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.8 Voting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.9 Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.10 Blue Sky Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.12 Letter of Olicom's and CrossComm's Accountants . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
- ii -
<PAGE> 228
<TABLE>
<S> <C>
5.13 Directorship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.14 Form S-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.15 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.16 Listing of Additional Shares, Warrants and Warrant Shares . . . . . . . . . . . . . . . . . . . 43
5.17 Best Efforts and Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE VI - CONDITIONS TO THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
6.1 Conditions to Obligations of Each Party to Effect the Merger . . . . . . . . . . . . . . . . . 44
6.2 Additional Conditions to Obligations of CrossComm . . . . . . . . . . . . . . . . . . . . . . . 45
6.3 Additional Conditions to the Obligations of Olicom and MergerSub . . . . . . . . . . . . . . . 46
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.3 Expenses and Termination Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.4 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.5 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VIII - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.1 Non-Survival at Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.3 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
9.5 Entire Agreement; Nonassignability; Parties in Interest . . . . . . . . . . . . . . . . . . . . 54
9.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.7 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.9 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
EXHIBITS
Exhibit A - Certificate of Merger
Exhibit B - Form of Warrant Certificate
Exhibit C - CrossComm Affiliates Agreement
Exhibit D - Voting Agreement - CrossComm Affiliates
Exhibit E - Voting Agreement - Olicom Affiliates
</TABLE>
- iii -
<PAGE> 229
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of March 20, 1997, by and among Olicom A/S, a corporation
organized under the laws of the Kingdom of Denmark ("Olicom"), PW Acquisition
Corporation, a corporation organized under the laws of the State of Delaware
and wholly-owned subsidiary of Olicom ("MergerSub"), and CrossComm Corporation,
a corporation organized under the laws of the State of Delaware ("CrossComm").
The Boards of Directors of CrossComm, Olicom and MergerSub believe it is
in the best interests of their respective companies and the stockholders of
their respective companies that CrossComm and MergerSub combine into a single
company through the statutory merger, pursuant to the Delaware General
Corporation Law, as amended ("Delaware Law"), of MergerSub with and into
CrossComm (the "Merger") and, in furtherance thereof, have approved the Merger.
Pursuant to the Merger, among other things, each outstanding share of
common stock in CrossComm, par value $0.01 per share ("CrossComm Common
Stock"), shall be exchanged for the Merger Consideration (as defined in
Section 1.6(b)). CrossComm, Olicom and MergerSub desire to make certain
representations and warranties and other agreements in connection with the
Merger.
Concurrent with the execution and delivery of this Agreement and as an
inducement to Olicom and MergerSub to enter into this Agreement, certain
affiliates of CrossComm and Olicom have on the date hereof entered into an
agreement to vote the shares of capital stock in CrossComm and Olicom, as the
case may be, owned by such persons to approve the Merger and against any
competing proposals.
NOW, THEREFORE, in consideration of the covenants and representations
set forth herein, and for other good and valuable consideration, the parties
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2)
and subject to and upon the terms and conditions of this Agreement, the
Certificate of Merger attached hereto as Exhibit A (the "Certificate of
Merger") and the applicable provisions of Delaware Law, MergerSub shall be
merged with and into CrossComm, the separate corporate existence of MergerSub
shall cease and CrossComm shall continue as the surviving corporation
(CrossComm, as the surviving corporation subsequent to the Merger, is
hereinafter sometimes referred to as the "Surviving Corporation").
<PAGE> 230
1.2 Closing; Effective Time. The closing of the transactions
contemplated hereby (the "Closing") shall take place (i) no later than the
second business day after satisfaction of the latest to occur of the conditions
set forth in Sections 6.1, 6.2(b) (other than the delivery of the officers'
certificates referred to therein) and 6.3(b) (other than the delivery of the
officers' certificates referred to therein) (provided that the other closing
conditions set forth in Article VI have been met or waived as provided in
Article VI at or prior to the Closing), or (ii) at such other time no later
than June 30, 1997, as the parties hereto agree (the "Closing Date"). The
Closing shall take place at the offices of Liddell, Sapp, Zivley, Hill &
LaBoon, L.L.P., 2200 Ross Avenue, Suite 900, Dallas, Texas, or at such other
location as the parties hereto agree. In connection with the Closing, the
parties hereto shall cause the Merger to be consummated by filing the
Certificate of Merger with the Secretary of State of Delaware and with the
Recorder of the county in which the registered office of each of CrossComm and
MergerSub is located, in accordance with the relevant provisions of Delaware
Law (the time of such filing being referred to herein as the "Effective Time").
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Certificate of Merger and
the applicable provisions of Delaware Law. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time all of the property,
rights, privileges, powers and franchises of CrossComm and MergerSub shall vest
in the Surviving Corporation, and all debts, liabilities and duties of
CrossComm and MergerSub shall become the debts, liabilities and duties of the
Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of Incorporation of
MergerSub, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by Delaware Law and such Certificate of Incorporation;
provided, however, that Article I of the Certificate of Incorporation of the
Surviving Corporation shall be amended to read as follows: "The name of the
corporation is CrossComm Corporation."
(b) The bylaws of MergerSub, as in effect immediately prior to
the Effective Time, shall be the bylaws of the Surviving Corporation until
thereafter amended.
1.5 Directors and Officers. At the Effective Time, the directors and
officers of the Surviving Corporation shall be the initial directors and
officers of MergerSub, until their respective successors are duly elected or
appointed and qualified.
1.6 Effect on Capital Stock. By virtue of the Merger and without any
action on the part of MergerSub, CrossComm or the holders of any of the
following securities:
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(a) Prior to the Effective Time, Surviving Corporation and/or
the Exchange Agent (as defined in Section 1.8(a)) each shall be authorized to
take all actions that either of them may deem necessary or desirable to effect
the transfer of the Merger Consideration (as defined in Section 1.6(b)) to the
holders of CrossComm Common Stock and the contribution of the Surviving
Corporation Stock to Olicom. Upon and after the approval of this Agreement by
the CrossComm stockholders, CrossComm shall be authorized to take all such
actions that it may deem necessary or desirable to effect the transfer of the
Merger Consideration to the holders of CrossComm Common Stock, including the
preparation, filing and delivery of the subscription list required under the
Companies Act of the Kingdom of Denmark (the "Companies Act") in order to
effect the delivery of the Olicom Common Stock (as defined in Section 1.6(b))
to be delivered pursuant to this Agreement. At the Effective Time, (i) each
share of CrossComm Common Stock issued and outstanding immediately prior to the
Effective Time (other than any shares of CrossComm Common Stock to be canceled
pursuant to Section 1.6(d) and Dissenting Shares (as defined in Section 1.7(a))
shall be exchanged for the Merger Consideration, and (ii) that number of shares
of Surviving Corporation Stock that is equal to the number of shares of
CrossComm Common Stock (other than any shares of CrossComm Common Stock to be
canceled pursuant to Section 1.6(d)) and the Dissenting Shares shall be
contributed to Olicom (the "Surviving Corporation Stock").
(b) At the Effective Time, each holder of a share of CrossComm
Common Stock shall be entitled only to receive upon surrender of each such
share of CrossComm Common Stock (i) 0.2667 shares of common stock in Olicom,
nominal value DKK 0.25 per share ("Olicom Common Stock") (the "Exchange
Ratio"), (ii) the sum of $5.00 in cash, and (iii) three- year warrants (each a
"Warrant") to purchase 0.1075 shares (the "Warrant Exchange Ratio") of Olicom
Common Stock at an exercise price of $19.74 per share (clauses (i), (ii) and
(iii) are collectively referred to as the "Merger Consideration"). Each such
Warrant shall contain the terms and provisions substantially as set forth in
Exhibit B. Notwithstanding the foregoing, (x) in the event that the average of
the high and low sales prices of a share of Olicom Common Stock for the ten
trading days immediately preceding (but excluding) the fifth trading day before
the CrossComm Stockholders' Meeting (as defined in Section 2.21), as reported
on the Nasdaq National Market (the "Final Closing Price"), is less than $12.50,
Olicom shall have the right to increase the Exchange Ratio to the number which,
when multiplied by the Final Closing Price, equals $3.33 (and if Olicom shall
not so increase the Exchange Ratio, CrossComm shall have the right to terminate
this Agreement pursuant to Section 7.1(i)); and (y) in the event that the Final
Closing Price is more than $20.83, Olicom shall have the right to decrease the
Exchange Ratio to the number which, when multiplied by the Final Closing Price,
equals $5.56 (and if Olicom so decreases the Exchange Ratio, CrossComm shall
have the right to terminate this Agreement pursuant to Section 7.1(i)). In the
event that the Final Closing Price triggers the provisions of clauses (x) or
(y) and Olicom desires to exercise its rights hereunder to increase or decrease
the Exchange Ratio, as the case may be, Olicom shall notify CrossComm of any
such increase or decrease, as the case may be, no later than 3:00 p.m., Dallas
time, on the fifth trading day prior to the date of the CrossComm Stockholders'
Meeting by telephone followed by telecopied confirmation thereof.
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(c) The Exchange Ratio and the Warrant Exchange Ratio shall be
adjusted to reflect fully the effect of any stock split, reverse split, stock
dividend (including any dividend or distribution of securities convertible into
Olicom Common Stock or CrossComm Common Stock), reorganization,
recapitalization or other like change with respect to Olicom Common Stock or
CrossComm Common Stock occurring after the date hereof and prior to the
Effective Time. Information regarding any adjustments to the Exchange Ratio
and the Warrant Exchange Ratio shall be made available by Olicom and CrossComm
to their respective stockholders through the use of a 1-800 phone number prior
to the CrossComm Stockholders' Meeting (as defined in Section 2.21) and Olicom
Stockholders' Meeting (as defined in Section 3.20).
(d) At the Effective Time, all shares of CrossComm Common
Stock that are owned by CrossComm as treasury stock, and each share of
CrossComm Common Stock owned by Olicom or any direct or indirect wholly-owned
subsidiary of Olicom or of CrossComm immediately prior to the Effective Time,
shall be canceled and extinguished without any conversion thereof.
(e) At or prior to the Effective Time and upon approval of the
Agreement by the stockholders of CrossComm, the Exchange Agent (as defined in
Section 1.8(a)) and/or CrossComm shall deliver to Olicom a duly executed
subscription list relating to the subscription for the Olicom Common Stock
included in the Merger Consideration, such subscription list to be in
compliance with the requirements of the Companies Act and in a form reasonably
acceptable to Olicom.
(f) At the Effective Time, the CrossComm Option Plans (as
defined in Section 8.1) and all options to purchase CrossComm Common Stock then
outstanding under the CrossComm Option Plans shall be assumed by Olicom in
accordance with Section 5.11.
(g) At the Effective Time, each share of common stock, par
value $0.01 per share, of MergerSub ("MergerSub Common Stock"), issued and
outstanding immediately prior to the Effective Time shall be cancelled and
extinguished without any exchange thereof.
(h) No fraction of a share of Olicom Common Stock shall be
issued, but in lieu thereof each holder of a share of CrossComm Common Stock
who would otherwise be entitled to a fraction of a share of Olicom Common Stock
(after aggregating all fractional shares of Olicom Common Stock to be received
by such holder) shall receive from Olicom an amount in cash (rounded to the
nearest whole cent) equal to the product of (i) such fraction, multiplied by
(ii) the Final Closing Price. No fraction of a Warrant shall be issued, but in
lieu thereof each holder of a Warrant who would otherwise be entitled to a
fraction of a Warrant (after aggregating all fractional Warrants to be received
by such holder) shall receive from Olicom an amount of cash (rounded to the
nearest whole cent) equal to the product of (i) such fraction, multiplied by
(ii) the Warrant Unit Consideration (as defined in Section 5.11(a)).
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1.7 Dissenting Shares.
(a) For purposes of this Agreement, "Dissenting Shares" means
shares of CrossComm Common Stock held as of the Effective Time by a stockholder
of record of CrossComm who has not voted such shares of CrossComm Common Stock
in favor of the Merger and with respect to which appraisal rights shall have
been duly demanded and perfected in accordance with Section 262 of Delaware Law
and not effectively withdrawn or forfeited prior to the Effective Time.
Dissenting Shares shall not be exchanged into or represent the right to receive
the consideration which the holders of CrossComm Common Stock are entitled to
receive pursuant to Section 1.6(a) or (b) unless the holder thereof shall have
forfeited his or her right to appraisal under Delaware Law or withdrawn, with
the consent of CrossComm, his or her demand for appraisal. If such stockholder
has so forfeited or withdrawn his or her right to appraisal of Dissenting
Shares, then, as of the occurrence of such event, such holder's Dissenting
Shares shall cease to be Dissenting Shares and shall be converted into and
represent the right to receive the Merger Consideration pursuant to Section
1.6(a).
(b) CrossComm shall give Olicom (i) prompt notice of any
written demands for appraisal of any shares of CrossComm Common Stock,
withdrawals of such demands, and any other instruments that relate to such
demands received by CrossComm, and (ii) the opportunity to direct all
negotiations and proceedings with respect to demands for appraisal under
Delaware Law. CrossComm shall not, except with the prior consent of Olicom,
make any payment with respect to any demands for appraisal of shares of
CrossComm Common Stock or offer to settle or settle any such demands.
1.8 Surrender of Certificates.
(a) American Stock Transfer & Trust Company shall act as
exchange agent (the "Exchange Agent") in the Merger.
(b) Promptly after the Effective Time, Olicom shall make
available to the Exchange Agent for exchange in accordance with this Article I,
through such reasonable procedures as Olicom may adopt, (i) the shares of
Olicom Common Stock and Warrants issuable, and cash payable, pursuant to
Section 1.6(b) in exchange for the Surviving Corporation Stock, and (ii) cash
in an amount sufficient to permit payment of cash in lieu of fractional shares
and fractional Warrants pursuant to Section 1.6(h) (collectively, the "Exchange
Fund").
(c) Promptly after the Effective Time (but in no event more
than five business days), the Surviving Corporation shall cause the Exchange
Agent to mail to each holder of record of a certificate or certificates (the
"Certificates") of CrossComm Common Stock, (i) a letter of
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transmittal in form reasonably acceptable to Olicom and CrossComm (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon receipt of the Certificates by the Exchange
Agent, and shall be in such form and have such other provisions as Olicom may
reasonably specify), and (ii) instructions for use in effecting the surrender
of the Certificates and obtaining delivery of whole shares of Olicom Common
Stock and Warrants, and the cash portion of the Merger Consideration (together
with cash in lieu of fractional shares of Olicom Common Stock and fractional
Warrants). Upon surrender of a Certificate for cancellation to the Exchange
Agent, together with such letter of transmittal, duly completed and validly
executed in accordance with the instructions thereto, the holder of such
Certificate shall be entitled to receive certificates evidencing the number of
whole shares of Olicom Common Stock, the number of whole Warrants, the cash
portion of the Merger Consideration, and payment in lieu of fractional shares
of Olicom Common Stock and fractional Warrants which such holder has the right
to receive pursuant to Section 1.6. Until so surrendered, (i) each outstanding
Certificate for shares of CrossComm Common Stock shall be deemed from and after
the Effective Time other than the payment of dividends, to evidence for all
corporate purposes (including the right to vote at meetings of Olicom's
stockholders), the number of whole shares of Olicom Common Stock, the number of
whole Warrants, the cash portion of the Merger Consideration for which such
shares of CrossComm Common Stock shall have been so exchanged, and the right to
receive an amount in cash in lieu of the issuance of any fractional shares of
Olicom Common Stock or fractional Warrants in accordance with Section 1.6. No
interest will be paid or accrued on any amount payable or due on the surrender
of the Certificates.
(d) No dividends or other distributions with respect to Olicom
Common Stock with a record date after the Effective Time shall be paid to the
holder of any unsurrendered Certificate until the holder of record of such
Certificate shall surrender such Certificate. Subject to applicable law,
following surrender of any such Certificate, there shall be paid to the record
holder of the certificates representing whole shares of Olicom Common Stock
issued in exchange therefor, without interest, at the time of such surrender,
the amount of any such dividends or other distributions with a record date
after the Effective Time theretofore payable (but for the provisions of this
Section 1.8(d)) with respect to such shares of Olicom Common Stock.
(e) If any certificate for shares of Olicom Common Stock or
any certificate evidencing Warrants is to be issued in a name other than that
in which the Certificate originally surrendered with respect thereto is
registered, it shall be a condition of the issuance thereof that the
Certificate so surrendered shall be properly endorsed, and otherwise be in
proper form for transfer, and that the person requesting such exchange shall
have paid to Olicom or any agent designated by it any transfer or other taxes
required by reason of the issuance of a certificate for shares of Olicom Common
Stock or Warrants in any name other than that of the registered holder of the
Certificate originally surrendered, or shall have established to the
satisfaction of Olicom or any agent designated by it that such tax has been
paid or is not payable.
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(f) Any portion of the Exchange Fund which remains
undistributed to the stockholders of CrossComm for 180 days after the Effective
Time shall be delivered to Olicom, upon demand, and any stockholders of
CrossComm who have not previously complied with this Section 1.8 shall
thereafter look only to Olicom for payment of their claim for Merger
Consideration (including any cash in lieu of fractional shares of Olicom Common
Stock or fractional Warrants, and any dividends or distributions with respect
to Olicom Common Stock.
(g) Notwithstanding anything to the contrary in this Section
1.8, none of the Exchange Agent, the Surviving Corporation or any party hereto
shall be liable to any person for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
1.9 No Further Ownership Rights in CrossComm Common Stock. All
shares of Olicom Common Stock and Warrants issued, together with the cash
portion of the Merger Consideration paid, upon the surrender of a Certificate
in accordance with the terms hereof (including any cash paid in lieu of
fractional shares of Olicom Common Stock or fractional Warrants) shall be
deemed to have been issued and paid in full satisfaction of all rights received
with respect thereto, and there shall be no further registration of transfers
on the records of the Surviving Corporation of shares of CrossComm Common Stock
which were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving Corporation for any
reason, they shall be canceled and exchanged as provided in this Article I.
1.10 Lost, Stolen or Destroyed Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent
shall issue and pay in exchange for such lost, stolen or destroyed
Certificates, upon the making of an affidavit of that fact by the holder
thereof, such shares of Olicom Common Stock, Warrants and the cash portion of
the Merger Consideration (and cash in lieu of fractional shares of Olicom
Common Stock and Warrants) as may be required pursuant to Section 1.6;
provided, however, that Olicom may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed Certificates to deliver a bond in such sum as it may reasonably
direct as indemnity against any claim that may be made against Olicom, the
Surviving Corporation or the Exchange Agent with respect to the Certificates
alleged to have been lost, stolen or destroyed.
1.11 Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of CrossComm and MergerSub, the officers and directors of
CrossComm and MergerSub are fully authorized in the name of their respective
corporations or otherwise to take, and shall take, all such lawful and necessary
action, so long as such action is not inconsistent with this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CROSSCOMM
Except as disclosed in a document of even date herewith delivered by
CrossComm to Olicom prior to the execution and delivery of this Agreement and
referring to the representations and warranties in this Agreement (the
"CrossComm Disclosure Letter"), CrossComm represents and warrants to Olicom and
MergerSub as follows:
2.1 Organization, Standing and Power. Each of CrossComm and its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. Each of CrossComm
and its subsidiaries has the corporate power to own its properties and to carry
on its business as now being conducted and is duly qualified to do business and
is in good standing in each jurisdiction in which the failure to be so
qualified and in good standing would have a Material Adverse Effect (as defined
in Section 8.1) on CrossComm and its subsidiaries, taken as a whole, or on
CrossComm-Poland Ltd. ("CrossComm - Poland"), or on CrossComm (UK) Ltd.
("CrossComm (UK)"). CrossComm has delivered to Olicom a true and correct copy
of its amended and restated certificate of incorporation, as amended (the
"Certificate of Incorporation"), bylaws, as amended (the "Bylaws"), or
equivalent charter or organizational documents, as applicable, of CrossComm and
each of its subsidiaries, each as amended to date. Neither CrossComm nor any
of its subsidiaries is in violation of any of the provisions of its Certificate
of Incorporation, Bylaws or equivalent charter or organizational documents.
2.2 Capital Structure.
(a) The authorized capital stock of CrossComm, as of March 14,
1997, consisted of 20,000,000 shares of CrossComm Common Stock and 4,000,000
shares of preferred stock, par value $0.01 per share, of which there were
issued and outstanding 9,284,584 shares of CrossComm Common Stock and no shares
of preferred stock, and no shares were held in the treasury of CrossComm. As
of March 14, 1997, there were no other outstanding shares of capital stock or
voting securities of CrossComm. All outstanding shares of CrossComm Common
Stock are duly authorized, validly issued, fully paid and non-assessable and
are free of any liens or encumbrances other than any liens or encumbrances
created by or imposed upon the holders thereof, and are not subject to
preemptive rights (contractual or otherwise) or rights of first refusal created
by statute, the Certificate of Incorporation, the Bylaws or any agreement to
which CrossComm is a party or by which it is bound.
(b) As of March 14, 1997, there were unexercised options to
purchase 1,796,465 shares of CrossComm Common Stock that had been granted to
employees and directors and were outstanding pursuant to the CrossComm Option
Plans. Since March 14, 1997, CrossComm has not (i) issued or granted
additional options under the CrossComm Option Plans, or (ii) accepted
enrollments in the CrossComm 1995 Employee Stock Purchase Plan (the
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"CrossComm ESPP"). All shares of CrossComm Common Stock subject to issuance as
set forth above, upon issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, shall be duly authorized,
validly issued, fully paid and nonassessable. Except for the rights created
pursuant to this Agreement, the CrossComm Option Plans and the CrossComm ESPP,
there are no other options, warrants, calls, rights, commitments or agreements
of any character to which CrossComm is a party or by which it is bound
obligating CrossComm to issue, deliver, sell, repurchase or redeem, or cause to
be issued, delivered, sold, repurchased or redeemed, any shares of capital
stock of CrossComm or obligating CrossComm to grant, extend, accelerate the
vesting of, change the price of, or otherwise amend or enter into any such
option, warrant, call, right, commitment or agreement. There are no contracts,
commitments or agreements relating to voting, purchase or sale of CrossComm's
capital stock (i) between or among CrossComm and any of its stockholders, and
(ii) to CrossComm's knowledge, between or among any of CrossComm's
stockholders, except for the stockholder named in Section 5.8(a) of the
CrossComm Disclosure Letter. The current "Offering" (as defined in the
CrossComm ESPP) commenced under the CrossComm ESPP on January 1, 1997 and will
end as provided in Section 5.11(c), and except for the purchase rights granted
on such commencement date to participants in the current Offering, there are no
other purchase rights or options outstanding under the CrossComm ESPP. True
and complete copies of all agreements and instruments relating to or issued
under the CrossComm Option Plans or CrossComm ESPP have been made available to
Olicom, and such agreements and instruments have not been amended, modified or
supplemented, and there are no agreements to amend, modify or supplement such
agreements or instruments in any case from the form thereof made available to
Olicom.
(c) CrossComm is the owner of all outstanding shares of
capital stock of each of its subsidiaries, and all such shares are duly
authorized, validly issued, fully paid and nonassessable and free of preemptive
rights. All of the outstanding shares of capital stock of each such subsidiary
are owned by CrossComm free and clear of all liens, charges, claims or
encumbrances or rights of others. There are no outstanding subscriptions,
options, warrants, puts, calls, rights, exchangeable or convertible securities
or other commitments or agreements of any character relating to the issued or
unissued capital stock or other securities of any such subsidiary, or otherwise
obligating CrossComm or any such subsidiary to issue, transfer, sell, purchase,
redeem or otherwise acquire any such securities.
(d) Except as disclosed in the CrossComm SEC Documents (as
defined in Section 2.5), CrossComm does not directly or indirectly own any
equity or similar interest in, or any interest convertible or exchangeable or
exercisable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
2.3 Authority. CrossComm has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of CrossComm,
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subject only to the approval of the Merger by CrossComm's stockholders as
contemplated by Section 6.1(a)(i). This Agreement has been duly executed and
delivered by CrossComm and constitutes the valid and binding obligation of
CrossComm enforceable against CrossComm in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general principles of equity. The execution and delivery of this
Agreement by CrossComm do not and, except for any required approval by
CrossComm's stockholders as set forth in Section 2.23, the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit under, (i) any provision of the
Certificate of Incorporation or Bylaws or equivalent organizational documents
of any of CrossComm's subsidiaries, as amended, or (ii) any mortgage or
indenture, or material lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to CrossComm or any of its
subsidiaries or any of their properties or assets, except where such conflict,
violation, default, termination, cancellation or acceleration with respect to
the foregoing provisions of clause (ii) is not reasonably likely to have a
Material Adverse Effect on CrossComm or such subsidiary, as the case may be.
2.4 Governmental Authorization. CrossComm and each of its
subsidiaries have obtained each federal, state, county, local or foreign
governmental consent, license, permit, grant or other authorization that is
required for the operation of CrossComm's or any of its subsidiaries'
businesses (collectively, the "CrossComm Authorizations"), and all of such
CrossComm Authorizations are in full force and effect, except where the failure
to obtain or maintain any of such CrossComm Authorizations would not have a
Material Adverse Effect on CrossComm and its subsidiaries, taken as a whole.
No consent, approval, order or authorization of, or registration, declaration
or filing with, any court, administrative agency or commission or other
governmental authority or instrumentality (each, a "Governmental Entity") is
required by or, to the knowledge of CrossComm, with respect to, CrossComm or
any of its subsidiaries in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except
for (i) the filing of the Certificate of Merger as provided in Section 1.2,
(ii) the filing with the Securities and Exchange Commission (the "Commission")
and Nasdaq of the Joint Proxy Statement (as defined in Section 2.21) relating
to the CrossComm Stockholders' Meeting, (iii) other filings under the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (iv) such consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable state securities laws and the securities laws
of any foreign country, (v) such filings as may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR"), and
(vi) such other consents, authorizations, filings, approvals and registrations
which, if not obtained or made, would have a Material Adverse Effect on
CrossComm and its subsidiaries, taken as a whole, and would prevent, or
materially alter or delay any of the transactions contemplated by this
Agreement.
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<PAGE> 239
2.5 SEC Documents. CrossComm has made available to Olicom a true and
complete copy of each notice, information statement, report, schedule,
registration statement and definitive proxy statement (including exhibits
thereto) filed with the Commission by CrossComm since December 31, 1995; and
prior to the Effective Time, CrossComm will have furnished Olicom with true and
complete copies of any additional documents filed with the Commission by
CrossComm after such date and prior to the Effective Time (collectively, the
"CrossComm SEC Documents"). All documents required to be filed as exhibits to
the CrossComm SEC Documents have been so filed. As of their respective filing
dates, the CrossComm SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
none of the CrossComm SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements made therein, in light of the circumstances
in which they were made, not misleading, except to the extent corrected by a
subsequently- filed CrossComm SEC Document.
2.6 Financial Statements. CrossComm has furnished to Olicom true,
complete and accurate copies of CrossComm's unaudited consolidated financial
statements at and for the fiscal year ended December 31, 1996, which financial
statements include, among other things, the consolidated balance sheet of
CrossComm at December 31, 1996, and the related consolidated statements of
income (loss) and cash flows for the period then ended (such financial
statements are collectively referred to herein as the "CrossComm 1996 Financial
Statement"). The consolidated financial statements of CrossComm, together
with, in each case, the notes thereto, included in the CrossComm SEC Documents
and the CrossComm 1996 Financial Statement (collectively, the "CrossComm
Financial Statements") complied or will comply as to form in all material
respects with applicable accounting requirements, to the extent filed with the
Commission, with the published rules and regulations of the Commission with
respect thereto as of their respective dates, and have been prepared in
accordance with generally accepted accounting principles applied on a basis
consistent throughout the periods indicated and consistent with each other
("GAAP") (except as may be indicated in the notes thereto or, in the case of
unaudited statements included in Quarterly Reports on Form 10-Q, as permitted
by Form 10-Q promulgated by the Commission). The CrossComm Financial
Statements fairly present or will present the consolidated financial condition
and operating results of CrossComm and its subsidiaries at the dates and during
the periods indicated therein (subject, in the case of unaudited statements, to
normal, recurring year-end adjustments which were not and are not expected to
be material in amount) in all material respects. All reserves established by
CrossComm with respect to its assets are adequate.
2.7 Absence of Certain Changes. Since December 31, 1996 (the
"CrossComm Balance Sheet Date"), CrossComm has conducted its business in the
ordinary course consistent with past practice, and there has not occurred: (i)
to the date hereof, any change, event or condition (whether or not covered by
insurance) that would result in a Material Adverse Effect to CrossComm or any
of its subsidiaries, taken as a whole; (ii) an event described in Sections 4.1
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(as to CrossComm) or 4.2(c), (e), (f) (as to subclause (i)), (g), (i), (l)-(n)
or (p); or (iii) any negotiation or agreement by CrossComm or any of its
subsidiaries to do any of the things described in the preceding clauses (i) or
(ii) (other than negotiations with Olicom and its representatives regarding the
transactions contemplated by this Agreement).
2.8 Absence of Undisclosed Liabilities. CrossComm has no material
obligations or liabilities of any nature (matured or unmatured, fixed or
contingent) other than (i) those set forth or adequately provided for in the
balance sheet included in the CrossComm 1996 Financial Statement (the
"CrossComm Balance Sheet"), (ii) those not required to be set forth in the
CrossComm Balance Sheet under GAAP, (iii) those incurred in the ordinary course
of business since the CrossComm Balance Sheet Date and consistent with past
practice, and (iv) those incurred in connection with the execution and delivery
of this Agreement.
2.9 Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any agency,
court or tribunal, foreign or domestic, or, to the knowledge of CrossComm or
any of its subsidiaries, threatened against CrossComm or any of its
subsidiaries or any of their respective properties that is reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect (i) on
CrossComm and its subsidiaries, taken as a whole, (ii) on CrossComm-Poland or
(iii) on CrossComm (UK).
2.10 Restrictions on Business Activities. There is no agreement,
judgment, injunction, order or decree binding upon CrossComm or any of its
subsidiaries which has the effect or is reasonably likely to have the effect of
prohibiting or materially impairing the conduct of business by CrossComm or any
of its subsidiaries as currently conducted by any of them. Section 2.10 of the
CrossComm Disclosure Letter contains a true and complete list or brief
description of any agreements or arrangements restricting CrossComm's ability
to compete in the marketplace, and any joint venture contract or arrangement or
any other agreement which involves or is expected to involve a sharing of
profits with other persons.
2.11 Title to Property. Neither CrossComm nor any of its subsidiaries
own any real property. CrossComm and its subsidiaries have good and valid
title to all of their respective personal property acquired after the CrossComm
Balance Sheet Date (except personal property sold or otherwise disposed of
since the CrossComm Balance Sheet Date in the ordinary course of business), or
in the case of leased personal properties and assets, valid leasehold interests
therein, free and clear of all mortgages, liens, pledges, charges or
encumbrances of any kind or character, except (i) the lien of current taxes not
yet due and payable, (ii) such imperfections of title, liens and easements as
do not and will not materially detract from or interfere with the use of the
properties subject thereto or affected thereby, or otherwise materially impair
business operations involving such properties, (iii) liens securing debt which
is reflected on the CrossComm Balance Sheet, or (iv) those which would not have
a Material Adverse Effect on CrossComm and its subsidiaries, taken as a whole.
The plants, property and equipment of CrossComm and its subsidiaries that are
used in the operations of their businesses are in good operating condition and
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repair, reasonable wear and tear excepted. All properties used in the
operations of CrossComm and its subsidiaries are reflected in the CrossComm
Balance Sheet to the extent GAAP requires the same to be reflected. Section
2.11 of the CrossComm Disclosure Letter identifies each parcel of real property
owned or leased by CrossComm or any of its subsidiaries.
2.12 Intellectual Property.
(a) To its knowledge, CrossComm and its subsidiaries own, or
are licensed or otherwise possess legally enforceable rights to use, all
patents, trademarks, trade names, service marks, copyrights, and any
applications therefor, maskworks, net lists, schematics, technology, know-how,
trade secrets, inventory, ideas, algorithms, processes, computer software
programs or applications (in both source code and object code form), and
tangible or intangible proprietary information or material (collectively,
"Intellectual Property") that are used in or necessary to conduct the business
of CrossComm and its subsidiaries as currently conducted.
(b) Section 2.12 of the CrossComm Disclosure Letter lists (i)
all patents and patent applications and all registered and unregistered
trademarks, trade names and service marks (registered and unregistered),
copyright registrations and maskwork registrations, which CrossComm considers
to be material to its business or that of any subsidiary and included in the
Intellectual Property of CrossComm, including the jurisdictions in which each
such Intellectual Property right has been issued or registered or in which any
application for such issuance and registration has been filed, (ii) all
licenses, sublicenses, distribution and original equipment manufacturer
agreements, and other agreements as to which CrossComm is a party and pursuant
to which any person is authorized to use any Intellectual Property of CrossComm
or has the right to manufacture, reproduce, market or exploit any CrossComm
product or any adaptation, translation or derivative work based on a CrossComm
product or any portion thereof, (iii) all material licenses, sublicenses and
other agreements as to which CrossComm or its subsidiaries is a party and
pursuant to which CrossComm is authorized to use any third party patents,
trademarks or copyrights, including software (collectively, "Third Party
Intellectual Property Rights"), which are used in the manufacture of,
incorporated in, or form a part of any product that is material to the business
of CrossComm and any of its subsidiaries, taken as a whole, and (iv) all
material joint development agreements to which CrossComm or any of its
subsidiaries is a party.
(c) To CrossComm's knowledge, there is no unauthorized use,
disclosure, infringement or misappropriation of any Intellectual Property
rights of CrossComm or any of its subsidiaries, any trade secret material to
CrossComm or any of its subsidiaries, or any Third Party Intellectual Property
Right to the extent licensed by or through CrossComm or any of its
subsidiaries, by any third party, including any employee or former employee of
CrossComm or any of its subsidiaries. Neither CrossComm nor any of its
subsidiaries has entered into any agreement to indemnify any other person
against any charge of infringement of any Intellectual Property, other than
indemnification provisions contained in purchase orders or customer
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agreements arising in the ordinary course of business, copies of which have
been made available to Olicom.
(d) CrossComm is not, nor will it be as a result of the
execution and delivery of this Agreement or the performance of its obligations
pursuant hereto, in breach of any license, sublicense or other agreement
relating to any Intellectual Property or Third Party Intellectual Property
Rights, the breach of which would have or would be reasonably likely to have a
Material Adverse Effect on CrossComm and its subsidiaries, taken as a whole.
(e) To CrossComm's knowledge, all patents, registered
trademarks, registered service marks and copyright registrations held by
CrossComm are valid and subsisting. Neither CrossComm nor any of its
subsidiaries (i) is a party to any suit, action or proceeding which involves a
claim of infringement of any patents, trademarks, service marks, copyrights or
violation of any trade secret or other proprietary right of any third party, or
(ii) has brought any action, suit or proceeding for infringement of
Intellectual Property or breach of any license or agreement involving
Intellectual Property against any third party. To CrossComm's knowledge, the
manufacture, marketing, licensing or sale of CrossComm's products do not
infringe any patent, trademark, service mark, copyright, trade secret or other
proprietary right of any third party.
(f) CrossComm has a policy to secure valid written assignments
from all consultants and employees who contribute or have contributed to the
creation or development of Intellectual Property of the rights to such
contributions that CrossComm does not already own by operation of law. All
use, disclosure or appropriation of proprietary and confidential information
("Confidential Information") owned by CrossComm by or to a third party has been
pursuant to the terms of a written agreement between CrossComm (or a subsidiary
of CrossComm) and such third party. All use, disclosure or appropriation of
Confidential Information not owned by CrossComm has been pursuant to the terms
of a written agreement between CrossComm (or a subsidiary of CrossComm) and the
owner of such Confidential Information, or is otherwise lawful.
2.13 Environmental Matters. CrossComm and each of its subsidiaries
(i) have obtained all applicable applications, exemptions, permits, licenses,
registrations, identification numbers, notices of intent, and other
authorizations ("Environmental Permits") that are required for the ownership,
use, or operation of their facilities (and equipment and structures thereon) to
comply with applicable laws relating to health, pollution, protection of the
environment or a community's right to know, including laws, rules, regulations,
orders, consent agreements of any foreign, federal, state or local executive,
legislative judicial, regulatory or administrative agency ("Environmental
Laws") relating to emissions, discharges, releases (or threatened releases) of
pollutants, contaminants, solid wastes, or hazardous or toxic substances,
materials or wastes ("Materials of Environmental Concern") into the
environment, including ambient air, surface water, ground water or land or
otherwise relating to the manufacture, processing, distribution,
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use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern by CrossComm or its subsidiaries (or their respective
agents), and (ii) are in compliance with all terms and conditions of such
Environmental Permits, and also are in compliance with all terms and conditions
of such Environmental Permits, and also are in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in such Environmental Laws or
contained in any judicial or administrative judgment or decision arising
thereunder, except where such failure to comply is not reasonably likely to
have a Material Adverse Effect on CrossComm and its subsidiaries, taken as a
whole.
2.14 Taxes. CrossComm and each of its subsidiaries have timely filed
all Tax Returns (as defined in this Section 2.14) required to be filed by any
of them, have paid all Taxes (as defined in this Section 2.14) shown thereon to
be due and have provided adequate accruals in accordance with GAAP in its
financial statements for any Taxes that have not been paid, whether or not
shown as being due on any Tax Returns. Except as disclosed in the CrossComm
Disclosure Letter, (i) no material claim for Taxes has become a lien against
the property of CrossComm or any of its subsidiaries or is being asserted
against CrossComm or any of its subsidiaries, other than liens for Taxes not
yet due and payable, (ii) no audit of any Tax Return of CrossComm or any of its
subsidiaries is being conducted by a Tax Authority (as defined in this Section
2.14), (iii) no extension of the statute of limitations on the assessment of
any Taxes has been granted to CrossComm or any of its subsidiaries and is
currently in effect, and (iv) there is no agreement, contract or arrangement to
which CrossComm or any of its subsidiaries is a party that may result in the
payment of any amount that would not be deductible by reason of Sections 280G
or 404 of the Internal Revenue Code of 1986, as amended (the "Code").
CrossComm has not been and will not be required to include any material
adjustment in Taxable income for any Tax period (or portion thereof) pursuant
to Sections 481 or 263A of the Code or any comparable provision under state or
foreign Tax laws as a result of transactions, events or accounting methods
employed by CrossComm or any of its subsidiaries prior to the Merger. Neither
CrossComm nor any of its subsidiaries is a party to any tax sharing or tax
allocation agreement, nor does CrossComm or any of its subsidiaries owe any
amount under any such agreement(s). For purposes of this Agreement, the
following terms have the following meanings: "Tax" (and, with correlative
meaning, "Taxes" and "Taxable") means (x) any net income, alternative or add-on
minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest or any
penalty, addition to tax or additional amount imposed by any Governmental
Entity (a "Tax Authority") responsible for the imposition of any such tax
(domestic or foreign), (y) any liability for the payment of any amounts of the
type described in clause (x) as a result of being a member of an affiliated,
consolidated, combined or unitary group for any Taxable period, and (z) any
liability for the payment of any amounts of the type described in clauses (x)
or (y) as a result of any express or implied obligation to indemnify any other
person. As used herein, "Tax
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<PAGE> 244
Return" means any return, statement, report or form (including estimated Tax
returns and reports, withholding Tax returns and reports and information
reports and returns required to be filed with respect to Taxes). CrossComm and
each of its subsidiaries are in full compliance with all terms and conditions
of any Tax exemptions or other Tax-sharing agreement or order of a foreign
government, and the consummation of the Merger shall not have any adverse
effect on the continued validity and effectiveness of any such Tax exemptions
or other Tax-sharing agreement or order.
2.15 Employee Benefit Plans.
(a) Section 2.15 of the CrossComm Disclosure Letter lists,
with respect to CrossComm, any United States subsidiary of CrossComm and any
trade or business (whether or not incorporated) which is treated as a single
employer with CrossComm (an "ERISA Affiliate") within the meaning of Sections
414(b), (c), (m) or (o) of the Code, (i) all employee benefit plans (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), subject to ERISA, (ii) each loan to a non-officer employee,
loans to officers and directors and any stock option, stock purchase, phantom
stock or stock appreciation right, (iii) all supplemental retirement,
severance, sabbatical, medical, dental, vision care, disability, employee
relocation, cafeteria benefit (Code Section 125) or dependent care (Code
Section 129), life insurance or accident insurance, bonus, pension, profit
sharing, savings, deferred compensation or incentive plans, programs or
arrangements which are not employee benefit plans as otherwise covered under
clause (i) above, (iv) other fringe or employee benefit plans, programs or
arrangements that apply to senior management of CrossComm and that do not
generally apply to all employees, and (v) any current or former employment,
executive compensation or severance agreements, written or otherwise, as to
which unsatisfied obligations of CrossComm of greater than $25,000 remain for
the benefit of, or relating to, any present or former employee, consultant or
director of CrossComm, but excluding any plan or arrangement maintained or
sponsored by any non-domestic entity (collectively, the "CrossComm Employee
Plans").
(b) CrossComm has furnished or made available to Olicom a copy
of each of the CrossComm Employee Plans and related plan documents (including
trust documents, insurance policies or contracts, employee booklets, summary
plan descriptions and other authorizing documents, and, to the extent still in
its possession, any material employee communications relating thereto) and has,
with respect to each CrossComm Employee Plan which is subject to ERISA
reporting requirements, provided copies of the Form 5500 reports filed for the
last three plan years. Any CrossComm Employee Plan intended to be qualified
under Section 401(a) of the Code has either obtained from the Internal Revenue
Service a favorable determination letter as to its qualified status under the
Code, including all amendments to the Code effected by the Tax Reform Act of
1986 and subsequent legislation, or has applied to the Internal Revenue Service
for such a determination letter prior to the expiration of the requisite period
under applicable Treasury Regulations or Internal Revenue Service
pronouncements in which to apply for such determination letter and to make any
amendments necessary to obtain a favorable determination. CrossComm
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<PAGE> 245
has also furnished or made available to Olicom the most recent Internal Revenue
Service determination letter issued with respect to each such CrossComm
Employee Plan, and nothing has occurred since the issuance of each such letter
which could reasonably be expected to cause the loss of the tax-qualified
status of any CrossComm Employee Plan subject to Code Section 401(a).
(c) Except as disclosed in Section 2.15(c) of the CrossComm
Disclosure Letter, (i) other than continued health care coverage required under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA") or applicable law, (x) none of the CrossComm Employee Plans promises
or provides retiree medical or other retiree or post termination welfare
benefits to any person, (y) each CrossComm Employee Plan may be amended or
terminated at any time without any liability to CrossComm or any ERISA
Affiliate other than for benefits accrued through the date of such termination,
and each such plan provides the administrator with the discretion to interpret
and construe the terms of the plan; (ii) there has been no "prohibited
transaction," as such term is defined in Section 406 of ERISA and Section 4975
of the Code, with respect to any CrossComm Employee Plan which is reasonably
likely to have a Material Adverse Effect on CrossComm; (iii) each CrossComm
Employee Plan is in material compliance with the requirements prescribed by all
statutes, rules and regulations (including ERISA and the Code) and has been
administered in all material respects in accordance with its terms and in
material compliance with the requirements prescribed by any and all statutes,
rules and regulations (including ERISA and the Code), and CrossComm and each
subsidiary or ERISA Affiliate have performed all obligations required to be
performed by them under, are not in any respect in material default under or
material violation of, and have no knowledge of any material default or
material violation by any other party to, any of the CrossComm Employee Plans;
(iv) neither CrossComm nor any subsidiary or ERISA Affiliate is subject to any
liability or penalty under Sections 4976 through 4980 of the Code or Title I of
ERISA with respect to any of the CrossComm Employee Plans which is reasonably
likely to have a Material Adverse Effect on CrossComm; (v) all contributions
required to be made by CrossComm or any subsidiary or ERISA Affiliate to any
CrossComm Employee Plan have been made on or before their due dates, and a
reasonable amount has been accrued for contributions to each CrossComm Employee
Plan for the current plan year; (vi) with respect to each CrossComm Employee
Plan, no "reportable event" within the meaning of Section 4043 of ERISA
(excluding any such event for which the 30 day notice requirement has been
waived under the regulations to Section 4043 of ERISA) nor any event described
in Sections 4062, 4063 or 4041 of ERISA has occurred; and (vii) no CrossComm
Employee Plan is covered by, and neither CrossComm nor any subsidiary or ERISA
Affiliate has incurred or expects to incur any liability under, Title IV of
ERISA or Section 412 of the Code. With respect to each CrossComm Employee Plan
subject to ERISA as either an employee pension plan within the meaning of
Section 3(2) of ERISA or an employee welfare benefit plan within the meaning of
Section 3(1) of ERISA, CrossComm has prepared in good faith and timely filed
all required governmental reports (which were true and correct as of the date
filed), and CrossComm has properly and timely filed and distributed or posted
all notices and reports to employees required to be filed, distributed or
posted with respect to each such CrossComm Employee Plan. No suit,
administrative proceeding, action or other litigation has been brought, or to
the
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<PAGE> 246
knowledge of CrossComm, is threatened, against or with respect to any such
CrossComm Employee Plan, including any audit or inquiry by the Internal Revenue
Service or Department of Labor, and no event (other than routine claims for
benefits) has occurred and no set of circumstances have occurred in connection
with any CrossComm Employee Plan for which CrossComm or any of its affiliates
or subsidiaries could be subject to any material liability. Neither CrossComm
nor any of its subsidiaries or other ERISA Affiliate is a party to, or has made
any contribution to or otherwise incurred any obligation under, any
"multiemployer plan," as defined in Section 3(37) of ERISA. No CrossComm
Employee Plan is funded through a "welfare benefit fund" (as such term is
defined in Code Section 419(e) of the Code). Except as disclosed in Section
2.15(c) of the CrossComm Disclosure Letter, no CrossComm Employee Plan is a
"multiple employer welfare arrangement" (as defined by Section 3(40) of ERISA).
(d) With respect to each CrossComm Employee Plan, CrossComm
and each of its United States subsidiaries have complied in all material
respects with (i) the applicable health care continuation and notice provisions
of COBRA and the proposed regulations thereunder, (ii) the applicable
requirements of the Family Leave Act of 1993 and the regulations thereunder and
(iii) Section 609 of ERISA.
(e) Except as described in Section 2.15(e) of the CrossComm
Disclosure Letter, the consummation of the transactions contemplated by this
Agreement will not (i) entitle any current or former employee or other service
provider of CrossComm, any CrossComm subsidiary or any other ERISA Affiliate to
severance benefits or any other payment, (ii) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee or
service provider, or (iii) require payments (whether in cash or property or the
vesting of property) to any employee, officer or director of CrossComm or any
ERISA Affiliate who is a "disqualified individual" (as such term is defined in
Proposed Treasury Regulation Section 1.280G-1) that could be characterized as a
"excess parachute payment" (as such term is defined in Section 280G(b)(1) of
the Code).
(f) There has been no amendment to, written interpretation or
announcement (whether or not written) by CrossComm, any CrossComm subsidiary or
other ERISA Affiliate relating to, or change in participation or coverage
under, any CrossComm Employee Plan which would materially increase the expense
of maintaining such Plan above the level of expense incurred with respect to
that Plan for the most recent fiscal year included in CrossComm's financial
statements.
(g) All voluntary employee benefit associations related to the
CrossComm Employee Plans have been submitted to and approved as exempt from
federal income tax under Section 501(c)(9) of the Code by the Internal
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<PAGE> 247
Revenue Service and have not been amended or operated in a manner which would
adversely affect such exempt status. All voluntary employee benefit
associations related to the CrossComm Employee Plans have been submitted to and
approved as exempt from federal income tax under Section 501(c)(9) of the Code
by the Internal Revenue Service and have not been amended or operated in a
manner which would adversely affect such exempt status.
(h) Except as disclosed in Section 2.15(h) of the CrossComm
Disclosure Letter, there are no guaranteed investment contracts, annuity
contracts or other funding contracts with any insurance company that are held
by any CrossComm Employee Plan. Except as set forth on Section 2.15 of the
CrossComm Disclosure Letter, no CrossComm Employee Plan covers persons employed
outside the United States, and no such Plan is subject to the laws of a foreign
jurisdiction.
2.16 Employee Matters. CrossComm and each of its subsidiaries are in
compliance in all respects with all currently applicable laws and regulations
respecting employment, discrimination in employment, terms and conditions of
employment, wages, hours and occupational safety and health and employment
practices, and are not engaged in any unfair labor practice, except where the
failure to be in compliance or the engagement in such unfair labor practices
would not have a Material Adverse Effect on CrossComm and its subsidiaries,
taken as a whole. Neither CrossComm nor any of its subsidiaries has any
obligations under COBRA with respect to any former employees or qualifying
beneficiaries thereunder, except for obligations that would not have a Material
Adverse Effect on CrossComm and its subsidiaries, taken as a whole. Neither
CrossComm nor any of its subsidiaries is a party to any collective bargaining
agreement or other labor union contract, nor does CrossComm nor any of its
subsidiaries know of any activities or proceedings of any labor union to
organize any such employees.
2.17 Certain Agreements. Section 2.17 of the CrossComm Disclosure
Letter lists all material contracts to which CrossComm or any of its
subsidiaries is a party (each, a "CrossComm Material Contract"). CrossComm has
made available to Olicom all CrossComm Material Contracts.
2.18 Compliance With Laws. Each of CrossComm and its subsidiaries has
complied with, is not in violation of, and has not received any notices of
violation with respect to, any applicable statute, law or regulation with
respect to the conduct of its business, or the ownership or operation of its
business, except for such violations or failures to comply as would not have a
Material Adverse Effect on CrossComm and its subsidiaries, taken as a whole.
2.19 Customers and Suppliers. Section 2.19 of the CrossComm
Disclosure Letter sets forth a list of CrossComm's customers with whom
CrossComm, as of the date hereof, is contractually obligated to supply
CrossComm products or services aggregating more than $250,000 (collectively,
"Continuing Customers"). No Continuing Customer has indicated to CrossComm or
any of its subsidiaries that it will stop, or materially decrease the rate of,
buying services or products of CrossComm or such subsidiary, nor has at any
time on or after January 1, 1997, decreased materially its purchases of the
services or products of CrossComm or such subsidiary. No supplier of sole
source or limited source products, components or assemblies to
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CrossComm or any of its subsidiaries has indicated that it will stop, or
materially decrease the rate of, supplying, such products, components or
assemblies to CrossComm or any of its subsidiaries. CrossComm has not
knowingly breached, so as to provide a benefit to CrossComm or such subsidiary
that was not intended by the parties, any agreement with any customer or
supplier of CrossComm or any of its subsidiaries.
2.20 Brokers' and Finders' Fees. Except for payment obligations to
Montgomery Securities disclosed to Olicom, CrossComm has not incurred, nor will
it incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or investment bankers' fees in connection with this
Agreement or any transaction contemplated hereby.
2.21 Registration Statement; Joint Proxy Statement/Prospectus. The
information supplied by CrossComm for inclusion in the registration statement
on Form F-4 (or such other or successor form as shall be appropriate) pursuant
to which the shares of Olicom Common Stock, the Rights and the Warrants to be
issued in the Merger, together with the Warrant Shares (as defined in Section
3.2(b)), will be registered with the Commission (the "Registration Statement")
shall not at the time the Registration Statement (including any amendments or
supplements thereto) is declared effective by the Commission contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
information supplied by CrossComm for inclusion in the proxy
statement/prospectus to be sent to the stockholders of CrossComm in connection
with the meeting of CrossComm's stockholders to consider the Merger (the
"CrossComm Stockholders' Meeting") (such proxy statement/prospectus, as amended
or supplemented, is referred to herein as the "Joint Proxy Statement") shall
not, on the date the Joint Proxy Statement is first mailed to CrossComm's
stockholders, at the time of the CrossComm Stockholders' Meeting or the Olicom
Stockholders' Meeting, and at the Effective Time, contain any statement which,
at such time, is false or misleading with respect to any material fact, or omit
to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not false or
misleading; or omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of
proxies for the CrossComm Stockholders' Meeting or the Olicom Stockholders'
Meeting which has become false or misleading. If at any time prior to the
Effective Time any event or information should be discovered by CrossComm which
should be set forth in an amendment to the Registration Statement or a
supplement to the Joint Proxy Statement, CrossComm shall promptly inform Olicom
and MergerSub. Notwithstanding the foregoing, CrossComm makes no
representation, warranty or covenant with respect to any information supplied
by Olicom or MergerSub which is contained in any of the foregoing documents.
2.22 Opinion of Financial Advisor. CrossComm has been advised in
writing by its financial advisor, Montgomery Securities, that in such advisor's
opinion, as of the date hereof,
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the consideration to be received by the stockholders of CrossComm is fair, from
a financial point of view, to the stockholders of CrossComm.
2.23 Vote Required. The affirmative vote of the holders of a majority
of the shares of CrossComm Common Stock outstanding on the record date set for
the CrossComm Stockholders' Meeting is the only vote of the holders of any of
CrossComm's capital stock necessary to approve this Agreement and the
transactions contemplated hereby.
2.24 Board Approval. The Board of Directors of CrossComm (the
"CrossComm Board") has, prior to the execution and delivery hereof, unanimously
(i) approved this Agreement and the Merger, (ii) determined that the Merger is
in the best interests of the stockholders of CrossComm and is on terms that are
fair to such stockholders, and (iii) determined to recommend that the
stockholders of CrossComm approve this Agreement and the consummation of the
Merger.
2.25 Section 203 of Delaware Law Not Applicable. The CrossComm Board
has taken all actions so that the restrictions contained in Section 203 of
Delaware Law applicable to a "business combination" (as defined in Section 203
of the Delaware Law) will not apply to the execution, delivery or performance of
this Agreement, the consummation of the Merger or the other transactions
contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF OLICOM AND MERGERSUB
Except as disclosed in a document of even date herewith and delivered by
Olicom to CrossComm prior to the execution and delivery of this Agreement and
referring to the representations and warranties in this Agreement (the "Olicom
Disclosure Letter"), Olicom and MergerSub represent and warrant to CrossComm as
follows:
3.1 Organization, Standing and Power. Each of Olicom and its
subsidiaries, including MergerSub, is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each of Olicom and its subsidiaries has the corporate power to
own its properties and to carry on its business as now being conducted and is
duly qualified to do business and is in good standing in each jurisdiction in
which the failure to be so qualified and in good standing would have a Material
Adverse Effect on Olicom and its subsidiaries, taken as a whole. Olicom has
delivered to CrossComm a true and correct copy of its articles of association,
as amended (the "Articles of Association"), and rules of procedure, as amended
(the "Rules of Procedure"). Neither Olicom nor any of its subsidiaries is in
violation of any of the
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<PAGE> 250
provisions of its Articles of Association or Rules of Procedure or equivalent
organizational documents.
3.2 Capital Structure.
(a) The authorized capital stock of Olicom, as of March 14,
1997, consisted of 15,938,000 shares of Olicom Common Stock, of which there
were issued and outstanding 14,734,000 shares, and 1,204,000 shares were held
in the treasury of Olicom. As of March 14, 1997, there are no other outstanding
shares of capital stock or voting securities of Olicom. The authorized capital
stock of MergerSub as of March 14, 1997, consisted of 1,000 shares of MergerSub
Common Stock, all of which were issued and outstanding and held by Olicom. All
outstanding shares of Olicom and MergerSub have been duly authorized, validly
issued, fully paid and are nonassessable and free of any liens or encumbrances,
other than any liens or encumbrances created by or imposed upon the holders
thereof.
(b) As of March 14, 1997, there were unexercised options and
warrants to purchase 663,200 shares of Olicom Common Stock that had been
granted to employees and directors and were outstanding pursuant to the Olicom
Share Incentive Plans (as defined in Section 8.1). Except for (i) the rights
created pursuant to this Agreement, and (ii) options that may be granted
pursuant to an Olicom Share Incentive Plan by Olicom subsequent to the date
hereof, there are no other options, warrants, calls, rights, commitments or
agreements of any character to which Olicom or MergerSub is a party or by which
either of them is bound obligating Olicom or MergerSub to issue, deliver, sell,
repurchase or redeem, or cause to be issued, delivered, sold, repurchased or
redeemed, any shares of the capital stock of Olicom or MergerSub or obligating
Olicom or MergerSub to grant, extend or enter into any such option, warrant,
call, right, commitment or agreement. The shares of Olicom Common Stock to be
issued pursuant to the Merger will be duly authorized, validly issued, fully
paid, and non-assessable and free of preemptive rights. The Warrants to be
issued pursuant to the Merger will be duly authorized, validly issued and fully
paid, and the shares of Olicom Common Stock issuable on exercise of the
Warrants to which they relate (the "Warrant Shares"), will be duly authorized,
validly issued, fully paid, and nonassessable and free of preemptive rights.
(c) Olicom is the owner of all outstanding shares of capital
stock of each of its subsidiaries, and all such shares are duly authorized,
validly issued, fully paid and nonassessable. All of the outstanding shares of
capital stock of each such subsidiary are owned by Olicom free and clear of all
liens, charges, claims or encumbrances or rights of others. There are no
outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable
or convertible securities or other commitments or agreements of any character
relating to the issued or unissued capital stock or other securities of any
such subsidiary, or otherwise obligating Olicom or any such subsidiary to
issue, transfer, sell, purchase, redeem or otherwise acquire any such
securities.
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<PAGE> 251
(d) Except as disclosed in the Olicom SEC Documents (as
defined in Section 3.5), Olicom does not directly or indirectly own any equity
or similar interest in, or any interest convertible or exchangeable or
exercisable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
3.3 Authority. Olicom and MergerSub have all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Olicom and
MergerSub, subject to the approval of the Merger by Olicom's stockholders as
contemplated by Section 6.1(a)(ii). This Agreement has been duly executed and
delivered by Olicom and MergerSub and constitutes the valid and binding
obligations of Olicom and MergerSub enforceable against Olicom and MergerSub,
as the case may be, in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and general
principles of equity. The execution and delivery of this Agreement do not and,
except for any required approval by Olicom's stockholders as set forth in
Section 3.22 and the authorization of the Board of Directors of Olicom to
increase the share capital of Olicom for the purposes of providing Olicom
Common Stock for exchange as the Merger Consideration, the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of a benefit under, (i) any provision of the Articles of
Association or Rules of Procedure or equivalent organizational documents of any
of Olicom's subsidiaries, as amended, or (ii) any mortgage or indenture, or
material lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Olicom or any of its subsidiaries or their properties
or assets, except where such conflict, violation, default, termination,
cancellation or acceleration with respect to the foregoing provisions of clause
(ii) is not reasonably likely to have a Material Adverse Effect on Olicom.
3.4 Governmental Authorization. Olicom and each of its subsidiaries
have obtained each federal, state, county, local or foreign governmental
consent, license, permit, grant, or other authorization that is required for
the operation of Olicom's or any of its subsidiaries' businesses (collectively,
the "Olicom Authorizations"), and all of such Olicom Authorizations are in full
force and effect, except where the failure to obtain or maintain any of such
Olicom Authorizations would not have a Material Adverse Effect on Olicom and
its subsidiaries, taken as a whole. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity, is required by or, to the knowledge of Olicom, with respect to Olicom
or any of its subsidiaries in connection with the execution and delivery of
this Agreement by Olicom and MergerSub or the consummation by Olicom and
MergerSub of the transactions contemplated hereby, except for (i) the filing of
the Certificate of Merger as provided in Section 1.2, (ii) the filing with the
Commission and NARD of the Registration Statement, (iii) other filings under
the
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Securities Act or the Exchange Act, (iv) any filings as may be required under
applicable state securities laws and the securities laws of any foreign
country, (v) such filings as may be required under HSR, (vi) the filing with
the Nasdaq National Market of a Notification Form for Listing of Additional
Shares with respect to the Warrants, the Warrant Shares, the shares of Olicom
Common Stock issuable upon the exchange of the CrossComm Common Stock in the
Merger and upon exercise of the options under the CrossComm Option Plans
assumed by Olicom, and (vii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would have a
Material Adverse Effect on Olicom and its subsidiaries, taken as a whole, and
would prevent or materially alter or delay any of the transactions contemplated
by this Agreement.
3.5 SEC Documents. Olicom has made available to CrossComm a true and
complete copy of each notice, information statement, report, schedule,
registration statement and definitive proxy statement filed with the Commission
by Olicom since December 31, 1995; and prior to the Effective Time, Olicom will
have furnished CrossComm with true and complete copies of any additional
documents filed with the Commission by Olicom after such date and prior to the
Effective Time (collectively, the "Olicom SEC Documents"). All documents
required to be filed as exhibits to the Olicom SEC Documents have been so
filed. As of their respective filing dates, the Olicom SEC Documents complied
in all material respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and none of the Olicom SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they were made, not
misleading, except to the extent corrected by a subsequently-filed Olicom SEC
Document.
3.6 Financial Statements. Olicom has furnished to CrossComm true,
complete and accurate copies of Olicom's consolidated unaudited financial
statements at and for the fiscal year ended December 31, 1996, which financial
statements include, among other things, the consolidated balance sheet of
Olicom at December 31, 1996, and the related consolidated statements of income
and cash flows for the period then ended (such financial statements are
collectively referred to herein as the "Olicom 1996 Financial Statement"). The
consolidated financial statements of Olicom, together with, in each case, the
notes thereto, included in the Olicom SEC Documents and the Olicom 1996
Financial Statement (collectively, the "Olicom Financial Statements") complied
or will comply as to form in all material respects with applicable accounting
requirements and, to the extent filed with the Commission, with the published
rules and regulations of the Commission with respect thereto as of their
respective dates, and have been prepared in accordance with GAAP (except as may
be indicated in the notes thereto or, in the case of unaudited statements
included in its Reports on Form 6-K, subject to normal, recurring year-end
adjustments). The Olicom Financial Statements fairly present or will present
the consolidated financial condition and operating results of Olicom and its
subsidiaries at the dates and during the periods indicated therein (subject, in
the case of unaudited statements, to normal, recurring
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year-end adjustments which were not and are not expected to be material in
amount) in all material respects. All reserves established by Olicom with
respect to its assets are adequate.
3.7 Absence of Certain Changes. Since December 31, 1996 (the "Olicom
Balance Sheet Date"), Olicom has conducted its business in the ordinary course
consistent with past practice, and there has not occurred: (i) any change,
event or condition (whether or not covered by insurance) that would result in a
Material Adverse Effect to Olicom; (ii) an event described in Section 4.1 (as
to Olicom); or (iii) any negotiation or agreement by Olicom or any of its
subsidiaries to do any of the things described in the preceding clauses (i) or
(ii) (other than negotiations with CrossComm and its representatives regarding
the transactions contemplated by this Agreement).
3.8 Absence of Undisclosed Liabilities. Olicom has no material
obligations or liabilities of any nature (matured or unmatured, fixed or
contingent) other than (i) those set forth or adequately provided for in the
balance sheet included in the Olicom 1996 Financial Statement (the "Olicom
Balance Sheet"), (ii) those not required to be set forth in the Olicom Balance
Sheet under GAAP, (iii) those incurred in the ordinary course of business since
the Olicom Balance Sheet Date and consistent with past practice, and (iv) those
incurred in connection with the execution and delivery of this Agreement.
3.9 Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any agency,
court or tribunal, foreign or domestic, or, to the knowledge of Olicom or any
of its subsidiaries, threatened against Olicom or any of its subsidiaries or
any of their respective properties that is reasonably likely, individually or
in the aggregate, to have a Material Adverse Effect on Olicom and its
subsidiaries, taken as a whole.
3.10 Restrictions on Business Activities. There is no material
agreement, judgment, injunction, order or decree binding upon Olicom or any of
its subsidiaries which has the effect or is reasonably likely to have the
effect of prohibiting or materially impairing the conduct of business by Olicom
or any of its subsidiaries as currently conducted. Section 3.10 of the Olicom
Disclosure Letter contains a true and complete list or brief description of any
agreements or arrangements restricting Olicom's ability to compete in the
marketplace, and any joint venture contract or arrangement or any other
agreement which involves or is expected to involve a sharing of profits with
other persons.
3.11 Title to Property. Olicom and its subsidiaries have good and
valid title to all of their respective properties, interests in properties and
assets, real and personal, acquired after the Olicom Balance Sheet Date (except
properties, interests in properties and assets sold or otherwise disposed of
since the Olicom Balance Sheet Date in the ordinary course of business), or in
the case of leased properties and assets, valid leasehold interests therein,
free and clear of all mortgages, liens, pledges, charges or encumbrances of any
kind or character, except (i) the lien of current taxes not yet due and
payable, (ii) such imperfections of title, liens and easements as do not and
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will not materially detract from or interfere with the use of the properties
subject thereto or affected thereby, or otherwise materially impair business
operations involving such properties, (iii) liens securing debt which is
reflected on the Olicom Balance Sheet, or (iv) those which would not have a
Material Adverse Effect on Olicom and its subsidiaries, taken as a whole. The
plants, property and equipment of Olicom and its subsidiaries that are used in
the operations of their businesses are in good operating condition and repair,
reasonable wear and tear excepted. All properties used in the operations of
Olicom and its subsidiaries are reflected in the Olicom Balance Sheet to the
extent GAAP requires the same to be reflected.
3.12 Intellectual Property.
(a) To its knowledge, Olicom and its subsidiaries own, or are
licensed or otherwise possess legally enforceable rights to use, all
Intellectual Property that is used in or necessary to conduct the business of
Olicom and its subsidiaries as currently conducted by Olicom and its
subsidiaries.
(b) To Olicom's knowledge, there is no unauthorized use,
disclosure, infringement or misappropriation of any Intellectual Property
rights of Olicom or any of its subsidiaries, any trade secret material to
Olicom or any of its subsidiaries, or any Third Party Intellectual Property
Right to the extent licensed by or through Olicom or any of its subsidiaries,
by any third party, including any employee or former employee of Olicom or any
of its subsidiaries.
(c) Olicom is not, nor will it be as a result of the execution
and delivery of this Agreement or the performance of its obligations pursuant
hereto, in breach of any license, sublicense or other agreement relating to any
Intellectual Property or Third Party Intellectual Property Rights, the breach
of which would have or would be reasonably likely to have a Material Adverse
Effect on Olicom and its subsidiaries, taken as a whole.
(d) To Olicom's knowledge, all patents, registered trademarks,
registered service marks and copyright registrations held by Olicom are valid
and subsisting. Neither Olicom nor any of its subsidiaries (i) is a party to
any suit, action or proceeding which involves a claim of infringement of any
patents, trademarks, service marks, copyrights or violation of any trade secret
or other proprietary right of any third party, or (ii) has brought any action,
suit or proceeding for infringement of Intellectual Property or breach of any
license or agreement involving Intellectual Property against any third party.
To Olicom's knowledge, the manufacture, marketing, licensing or sale of
Olicom's products do not infringe any patent, trademark, service mark,
copyright, trade secret or other proprietary right of any third party.
(e) Olicom has a policy to secure valid written assignments
from all consultants and employees who contribute or have contributed to the
creation or development of Intellectual Property of the rights to such
contributions that Olicom does not already own by operation of law.
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All use, disclosure or appropriation of Confidential Information owned by
Olicom by or to a third party has been pursuant to the terms of a written
agreement between Olicom (or a subsidiary of Olicom) and such third party. All
use, disclosure or appropriation of Confidential Information not owned by
Olicom has been pursuant to the terms of a written agreement between Olicom (or
a subsidiary of Olicom) and the owner of such Confidential Information, or is
otherwise lawful.
3.13 Environmental Matters. Olicom and each of its subsidiaries (i)
have obtained all applicable Environmental Permits that are required for the
ownership, use, or operation of their facilities (and equipment and structures
thereon) to comply with applicable laws relating to health, pollution,
protection of the environment or a community's right to know, including
Environmental Laws, and (ii) are in compliance with all terms and conditions of
such Environmental Permits, and also are in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in such Environmental Laws or
contained in any judicial or administrative judgment or decision arising
thereunder, except where such failure to comply is not reasonably likely to
have a Material Adverse Effect on Olicom and its subsidiaries, taken as a
whole.
3.14 Taxes. Olicom and each of its subsidiaries have timely filed all
Tax Returns required to be filed by any of them, have paid all Taxes shown
thereon to be due and have provided adequate accruals in accordance with GAAP
in its financial statements for any Taxes that have not been paid, whether or
not shown as being due on any Tax Returns. Except as disclosed in the Olicom
Disclosure Letter, (i) no material claim for Taxes has become a lien against
the property of Olicom or any of its subsidiaries or is being asserted against
Olicom or any of its subsidiaries, other than liens for Taxes not yet due and
payable, (ii) no audit of any Tax Return of Olicom or any of its subsidiaries
is being conducted by a Tax Authority, (iii) no extension of the statute of
limitations on the assessment of any Taxes has been granted to Olicom or any of
its subsidiaries and is currently in effect, and (iv) there is no agreement,
contract or arrangement to which any United States subsidiary of Olicom is a
party that may result in the payment of any amount that would not be deductible
by reason of Sections 280G or 404 of the Code. Olicom has not been and will
not be required to include any material adjustment in Taxable income for any
Tax period (or portion thereof) pursuant to Sections 481 or 263A of the Code or
any comparable provision under state or foreign Tax laws as a result of
transactions, events or accounting methods employed by Olicom or any of its
subsidiaries prior to the Merger. Neither Olicom nor any of its subsidiaries
is a party to any tax sharing or tax allocation agreement, nor does Olicom or
any of its subsidiaries owe any amount under any such agreement(s). Olicom and
each of its subsidiaries are in full compliance with all terms and conditions
of any Tax exemptions or other Tax-sharing agreement or order of a foreign
government, and the consummation of the Merger shall not have any adverse
effect on the continued validity and effectiveness of any such Tax exemptions
or other Tax-sharing agreement or order.
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3.15 Employee Benefit Plans.
(a) As used in this Section 3.15, "Olicom Employee Plans"
means, with respect to Olicom, Inc., a Delaware corporation ("Olicom USA"), (i)
all employee benefit plans subject to ERISA, (ii) any stock option, stock
purchase, phantom stock or stock appreciation right, (iii) all supplemental
retirement, severance, sabbatical, medical, dental, vision care, disability,
employee relocation, cafeteria benefit (Code Section 125) or dependent care
(Code Section 129), life insurance or accident insurance, bonus, pension,
profit sharing, savings, deferred compensation or incentive plans, programs or
arrangements which are not employee benefit plans as otherwise covered under
clause (i) above, (iv) other fringe or employee benefit plans, programs or
arrangements that apply to senior management of Olicom USA and that do not
generally apply to all employees, and (v) any current or former employment,
executive compensation or severance agreements, written or otherwise, as to
which unsatisfied obligations of Olicom of greater than $25,000 remain for the
benefit of, or relating to, any present or former employee, consultant or
director of CrossComm, but excluding any plan or arrangement maintained or
sponsored by any non-domestic entity.
(b) (i) Other than continued health care coverage required
under COBRA or applicable law, none of the Olicom Employee Plans promises or
provides retiree medical or other retiree or post termination welfare benefits
to any person; (ii) there has been no "prohibited transaction" with respect to
any Olicom Employee Plan which is reasonably likely to have a Material Adverse
Effect on Olicom USA; (iii) each Olicom Employee Plan is in material compliance
with the requirements prescribed by all statutes, rules and regulations
(including ERISA and the Code) and has been administered in all material
respects in accordance with its terms and in material compliance with the
requirements prescribed by all statutes, rules and regulations (including ERISA
and the Code), and Olicom USA and each ERISA Affiliate have performed all
obligations required to be performed by them under, are not in any respect in
material default under or violation of, and have no knowledge of any material
default or material violation by any other party to, any of the Olicom Employee
Plans; (iv) neither Olicom USA nor any ERISA Affiliate is subject to any
liability or penalty under Sections 4976 through 4980 of the Code or Title I of
ERISA with respect to any of the Olicom Employee Plans which is reasonably
likely to have a Material Adverse Effect on Olicom USA; (v) all contributions
required to be made by Olicom USA or any ERISA Affiliate to any Olicom Employee
Plan have been made on or before their due dates, and a reasonable amount has
been accrued for contributions to each Olicom Employee Plan for the current
plan years; (vi) with respect to each Olicom Employee Plan, no "reportable
event" within the meaning of Section 4043 of ERISA (excluding any such event
for which the 30 day notice requirement has been waived under the regulations
to Section 4043 of ERISA) nor any event described in Sections 4062, 4063 or
4041 or ERISA has occurred; and (vii) no Olicom Employee Plan is covered by,
and neither Olicom USA nor any ERISA Affiliate has incurred or expects to incur
any liability under Title IV of ERISA or Section 412 of the Code. With respect
to each Olicom Employee Plan subject to ERISA as either an employee pension
plan within the meaning of Section 3(2) of ERISA or an employee welfare benefit
plan within the
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meaning of Section 3(1) of ERISA, Olicom USA has prepared in good faith and
timely filed all required governmental reports (which were true and correct as
of the date filed), and Olicom USA has properly and timely filed and
distributed or posted all notices and reports to employees required to be
filed, distributed or posted with respect to each such Olicom Employee Plan.
No suit, administrative proceeding, action or other litigation has been
brought, or to the knowledge of Olicom, is threatened, against or with respect
to any such Olicom Employee Plan, including, without limitation, any audit or
inquiry by the Internal Revenue Service or Department of Labor, and no event
(other than routine claims for benefits) has occurred and no set of
circumstances have occurred in connection with any Olicom Employee Plan for
which Olicom or any of its affiliates or subsidiaries could be subject to any
material liability. Neither Olicom USA nor any ERISA Affiliate is a party to,
or has made any contribution to or otherwise incurred any obligation under, any
"multiemployer plan," as defined in Section 3(37) of ERISA.
(c) With respect to each Olicom Employee Plan, Olicom USA has
complied in all material respects with (i) the applicable health care
continuation and notice provisions of COBRA and the proposed regulations
thereunder, (ii) the applicable requirements of the Family Leave Act of 1993
and the regulations thereunder, and (iii) Section 609 of ERISA.
3.16 Employee Matters. Olicom and each of its subsidiaries are in
compliance in all respects with all currently applicable laws and regulations
respecting employment, discrimination in employment, terms and conditions of
employment, wages, hours and occupational safety and health and employment
practices, and are not engaged in any unfair labor practice, except where the
failure to be in compliance or the engagement in such unfair labor practices
would not have a Material Adverse Effect on Olicom and its subsidiaries, taken
as a whole. Neither Olicom nor any of its subsidiaries has any obligations
under COBRA with respect to any former employees or qualifying beneficiaries
thereunder, except for obligations that would not have a Material Adverse
Effect on Olicom. Neither Olicom nor any of its subsidiaries is a party to any
collective bargaining agreement or other labor union contract, nor does Olicom
nor any of its subsidiaries know of any activities or proceedings of any labor
union to organize any such employees.
3.17 Certain Agreements. Olicom has not breached or received in
writing any claim or threat that it has breached any of the terms of conditions
of any material agreement, contract or commitment (each, a "Olicom Material
Contract") in such a manner as would permit any other party to cancel or
terminate the same or would permit any other party to collect material damages
from Olicom under any Olicom Material Contract.
3.18 Compliance With Laws. Each of Olicom and its subsidiaries has
complied with, is not in violation of, and has not received any notices of
violation with respect to, any applicable statute, law or regulation with
respect to the conduct of its business, or the ownership or operation of its
business, except for such violations or failures to comply as would not have a
Material Adverse Effect on Olicom and its subsidiaries, taken as a whole.
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3.19 Brokers' and Finders' Fees. Except for payment obligations to
Alex. Brown & Sons Incorporated, Olicom has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or investment bankers' fees in connection with this Agreement or
any transaction contemplated hereby.
3.20 Registration Statement; Joint Proxy Statement/Prospectus. The
information supplied by Olicom and MergerSub for inclusion in the Registration
Statement shall not, at the time the Registration Statement (including any
amendments or supplements thereto) is declared effective by the Commission,
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The information
supplied by Olicom for inclusion in the Joint Proxy Statement shall not, on the
date the Joint Proxy Statement is first mailed to Olicom's stockholders in
connection with the meeting of Olicom's stockholders to consider the Merger
(the "Olicom Stockholders' Meeting"), at the time of the CrossComm
Stockholders' Meeting or the Olicom Stockholders' Meeting, and at the Effective
Time, contain any statement which, at such time, is false or misleading with
respect to any material fact, or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not false or misleading; or omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the CrossComm Stockholders' Meeting or the
Olicom Stockholders' Meeting which has become false or misleading. If at any
time prior to the Effective Time any event or information should be discovered
by Olicom or MergerSub which should be set forth in an amendment to the
Registration Statement or a supplement to the Joint Proxy Statement, Olicom or
MergerSub will promptly inform CrossComm. Notwithstanding the foregoing,
Olicom and MergerSub make no representation, warranty or covenant with respect
to any information supplied by CrossComm which is contained in any of the
foregoing documents.
3.21 Opinion of Financial Advisor. Olicom has been advised in writing
by its financial advisor, Alex. Brown & Sons Incorporated, that in such
advisor's opinion as of the date hereof, the consideration to be paid by Olicom
is fair to Olicom from a financial point of view.
3.22 Vote Required. The affirmative vote of a majority of the votes
cast at the Olicom Stockholders' Meeting is the only vote of the holders of any
of Olicom's capital stock necessary to approve this Agreement and the
transactions contemplated hereby.
3.23 Board Approval. The Boards of Directors of Olicom and MergerSub
have prior to the date hereof unanimously (i) approved the Merger, (ii)
determined that the Merger is in the best interests of their respective
stockholders and is on terms that are fair to such stockholders, (iii)
delegated to the Chairman of the Board and the Managing Director the authority
to approve the Agreement and (iv) determined to recommend that the stockholders
of Olicom approve this Agreement (upon its execution and delivery on behalf of
Olicom pursuant to the foregoing authorization) and the consummation of the
Merger.
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ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 Conduct of Business of CrossComm and Olicom. During the period
from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Effective Time, each of CrossComm and
Olicom agrees (except to the extent expressly contemplated by this Agreement or
as consented to in writing by the other), to carry on its and its subsidiaries'
business in the usual, regular and ordinary course in substantially the same
manner as heretofore conducted, to pay and to cause its subsidiaries to pay
debts and Taxes when due subject to good faith disputes over such debts or
taxes, to pay or perform other obligations when due, and to use all reasonable
efforts (under the circumstances) to preserve intact its and its subsidiaries'
present business organizations, use its reasonable efforts to keep available
the services of its and its subsidiaries' present officers and key employees
and use its reasonable efforts consistent with past practice to preserve its
and its subsidiaries' relationships with customers, suppliers, distributors,
licensors, licensees and others having business dealings with it or its
subsidiaries, to the end that its and its subsidiaries' goodwill and ongoing
businesses shall be unimpaired at the Effective Time. Each of CrossComm and
Olicom agrees to promptly notify the other of any event or occurrence which
would have a Material Adverse Effect. Without limiting the foregoing, except
as expressly contemplated by this Agreement, neither CrossComm nor Olicom shall
do, cause or permit any of the following, or allow, cause or permit any of its
subsidiaries to do, cause or permit any of the following, without the prior
written consent of the other:
(a) Cause or permit any amendments to the Certificate of
Incorporation or Bylaws (in the case of CrossComm), the Articles of Association
or Rules of Procedure, except as may be required to increase the share capital
of Olicom (in the case of Olicom), or equivalent charter or organizational
documents of any subsidiary;
(b) Declare or pay any dividends on or make any other
distributions (whether in cash, stock or property) in respect of any of its
capital stock, or split, combine or reclassify any of its capital stock or
issue or authorize the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, or repurchase or
otherwise acquire, directly or indirectly, any shares of its capital stock
except from former employees, directors and consultants in accordance with
agreements providing for the repurchase of shares in connection with any
termination of service to it or its subsidiaries;
(c) Take, or agree in writing or otherwise to take, any of the
actions described in Sections 4.1(a) and (b) above, or any action which would
make any of its representations or warranties contained in this Agreement
untrue or incorrect or prevent it from performing or cause it not to perform
its covenants hereunder.
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4.2 Conduct of Business of CrossComm. During the period from the
date of this Agreement and continuing until the earlier of the termination of
this Agreement or the Effective Time, except as expressly contemplated by this
Agreement, CrossComm shall not do, cause or permit any of the following, or
allow, cause or permit any of its subsidiaries to do, cause or permit any of
the following, without the prior written consent of Olicom:
(a) Enter into any customer or vendor contract or commitment
(or violate, amend or otherwise modify or waive any of the terms of any of its
contracts) except for (i) contracts or commitments with respect to customers
and vendors with commitments that do not extend beyond June 30, 1997, that were
entered into (and violations, amendments, modifications and waivers of such
contracts) in the ordinary course of business consistent with past practice in
an amount less than $500,000 in any one case; (ii) contracts or commitments
with respect to customers and vendors with commitments that extend beyond June
30, 1997, that were entered into (and violations, amendments, modifications and
waivers of such contracts) in the ordinary course of business consistent with
past practice in an amount less than $200,000; and (iii) contracts or
commitments with respect to customers and vendors that were entered into (and
violations, amendments, modifications and waivers of such contracts) not in the
ordinary course of business consistent with past practice in an amount less
than $100,000 in any one case (Olicom agrees (1) to use its best efforts to
respond to requests from CrossComm with respect to waivers of the foregoing
within twelve (12) business hours, and (2) not to unreasonably withhold
consent).
(b) Issue, deliver or sell or authorize or propose the
issuance, delivery or sale of, or purchase or propose the purchase of, any
shares of its capital stock or securities convertible into, or subscriptions,
rights, warrants or options to acquire, or other agreements or commitments of
any character obligating it to issue any such shares or other convertible
securities, other than the issuance of shares of CrossComm Common Stock
pursuant to the exercise of stock options, warrants or other rights therefor
outstanding as of March 14, 1997;
(c) Transfer or license to any person or entity any rights to
its Intellectual Property which are material, individually or in the aggregate,
to its and its subsidiaries' businesses, taken as a whole, other than in the
ordinary course of business consistent with past practice, or enter into any
license to use Third Party Intellectual Property Rights;
(d) Enter into or amend any agreements pursuant to which any
other party is granted distribution rights with respect to any of its products
or technology;
(e) Sell, lease or otherwise dispose of or encumber any of its
properties or assets which are material, individually or in the aggregate, to
its and its subsidiaries' businesses, taken as a whole;
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(f) (i) Incur any indebtedness for borrowed money or guarantee
any such indebtedness or issue or sell any debt securities or guarantee any
debt securities of others, except in the ordinary course of business consistent
with past practice; or (ii) except to the extent of reserves therefor reflected
on the CrossComm Balance Sheet, pay, discharge or satisfy in an amount in
excess of $25,000 in any one case, any claim, liability or obligation
(absolute, accrued, asserted or unasserted, contingent or otherwise) arising
other than in the ordinary course of business, other than the payment,
discharge or satisfaction of current liabilities reflected or reserved against
in the CrossComm Financial Statements;
(g) Enter into any operating lease, except in the ordinary
course of business consistent with past practice;
(h) Make any material capital expenditures, capital additions
or capital improvements in an amount greater than $50,000 in any one instance;
(i) Materially increase or reduce the amount of any material
insurance coverage provided by existing insurance policies;
(j) Except, in each instance, to the extent set forth in the
CrossComm Disclosure Letter, adopt or amend any employee benefit or stock
purchase or option plan; accelerate, amend or change the period of
exercisability or vesting of options or other rights granted under, or take any
similar action regarding any CrossComm Option Plan that is reasonably likely to
have a Material Adverse Effect on CrossComm and its subsidiaries, taken as a
whole, or authorize cash payments in exchange for any options or other rights
granted under any of such plans; employ any new officer level employee or any
director level employee; promote any employee to an officer or director level
position; pay any special bonus or special remuneration to any employee or
director; or increase the salaries or wage rates of officer or director level
employees;
(k) Grant any severance or termination pay to any director,
officer or employee except payments made pursuant to written agreements
outstanding on March 14, 1997;
(l) Commence a lawsuit other than (i) for the routine
collection of bills, (ii) in such cases where it in good faith determines that
failure to commence suit would result in the material impairment of a valuable
aspect of its business, provided that it consults with Olicom prior to the
filing of such a suit, or (iii) for a breach of this Agreement;
(m) Acquire or agree to acquire (or permit any of its
subsidiaries to acquire or agree to acquire) by merging or consolidating with,
or by purchasing a substantial portion of the assets of, or by any other
manner, any business or any corporation, partnership, association or other
business organization or division thereof, or otherwise acquire or agree to
acquire any assets which are material, individually or in the aggregate, to its
and its subsidiaries' business, taken as
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a whole, or acquire or agree to acquire any equity securities of any
corporation, partnership, association or business organization;
(n) Make or change any material election in respect of Taxes,
adopt or change any accounting method in respect of Taxes, enter into any
closing agreement, settle any claim or assessment in respect of Taxes, or
consent to any extension or waiver of the limitation period applicable to any
claim or assessment in respect of Taxes;
(o) Fail to give such notices and other information required
to be given to the employees of CrossComm, any collective bargaining unit
representing any group of employees of CrossComm, and any applicable government
authority under the WARN Act, the National Labor Relations Act, as amended, the
Code, COBRA, and other applicable law in connection with the transactions
provided for in this Agreement;
(p) Revalue any of its assets, including writing down the
value of inventory or writing off notes or accounts receivable other than in
the ordinary course of business; or
(q) Take or agree in writing or otherwise to take, any of the
actions described in Sections 4.2(a) through (p) above, or any action which
would make any of its representations or warranties contained in this Agreement
untrue or incorrect or prevent it from performing or cause it not to perform
its covenants hereunder.
4.3 No Solicitation.
(a) CrossComm and its subsidiaries, together with the
officers, directors, employees or other agents of CrossComm and its
subsidiaries, (i) shall not, directly or indirectly, take any action to
solicit, initiate or encourage any inquiries or proposals that constitute, or
which could reasonably be expected to lead to, an Acquisition Proposal (as
defined in Section 4.3(d)), (ii) shall not, directly or indirectly, subject to
the terms of the immediately following sentence, engage in negotiations or
discussions with, or disclose any nonpublic information relating to CrossComm
or any of it subsidiaries to, or afford access to the properties, books or
records of CrossComm or any of its subsidiaries to, any person with regard to
an Acquisition Proposal, and (iii) shall immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any
person, firm or entity conducted heretofore with respect to any of the
foregoing and shall inform any such person, firm or entity of the obligations
undertaken by CrossComm in this Section 4.3; provided, however, that nothing
herein shall prohibit the CrossComm Board from taking and disclosing to
CrossComm's stockholders a position with respect to a tender offer pursuant to
Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the
immediately preceding sentence, if (1) an unsolicited bona fide written
Acquisition Proposal, or an unsolicited bona fide expression of interest that
CrossComm reasonably expects could lead to a Acquisition Proposal, shall be
received by the CrossComm Board, (2) the CrossComm Board believes in good faith
that such Acquisition Proposal would,
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if consummated, result in a transaction more favorable to CrossComm's
stockholders from a financial point of view than the transaction contemplated
by this Agreement (any such more favorable Acquisition Proposal being referred
to herein as a "Superior Proposal"), (3) the CrossComm Board determines in good
faith that it is necessary for the CrossComm Board to comply with its fiduciary
duties to CrossComm's stockholders under applicable law by considering the
Superior Proposal and taking actions consistent herewith with respect thereto,
and (4) that the party making such Superior Proposal has the financial means,
or the ability to obtain the necessary financing, to consummate such
transaction (it being understood that nothing herein shall prohibit CrossComm
from engaging in discussions with such party for the limited purpose of
determining that such party has the financial means, or ability to obtain the
necessary financing, to consummate such transaction), then CrossComm and its
subsidiaries, together with their respective officers, directors, employees,
investment bankers, financial advisors, attorneys, accountants and other
representatives, may (consistent with the provisions hereof) furnish in
connection therewith information, enter into discussions and negotiations,
recommend such Superior Proposal to CrossComm's stockholders and take such
other actions as are consistent with the fiduciary obligations of the CrossComm
Board, and such actions shall not be considered a breach of this Section 4.3 or
any other provisions of this Agreement, provided that, in each such event,
CrossComm notifies Olicom of such determination by the CrossComm Board and
provides Olicom with a written summary in reasonable detail of the Superior
Proposal (including the identity of the offeror and the terms thereof) received
from such third party, together with a copy of all documents containing or
referring to non-public information of CrossComm that are supplied to such
third party and that were not previously supplied to Olicom; and provided,
further, that in order for the foregoing actions to not be considered a breach
of this Section 4.3 or any other provision of this Agreement, (x) CrossComm
shall not provide any material non-public information to any such third party
if it has not prior to the date thereof provided such information to Olicom or
Olicom's representatives, and (y) CrossComm provides such non-public
information pursuant to a binding non-disclosure agreement with terms no less
favorable as to confidential information as the Confidentiality Agreement (as
defined in Section 5.4).
(b) Notwithstanding anything to the contrary in this
Agreement, CrossComm shall not permit the CrossComm Board to adopt any
Acquisition Proposal unless CrossComm shall have terminated this Agreement
pursuant to Section 7.1(g) and paid Olicom all amounts payable to Olicom
pursuant to Section 7.3(b) and (d).
(c) CrossComm shall notify Olicom promptly (and, in any event,
no later than 24 hours), orally and in writing, after receipt by CrossComm (or
its advisors) of any Acquisition Proposal or obtaining actual knowledge that
any person is submitting an Acquisition Proposal or any request for non-public
information relating to CrossComm or any of its subsidiaries or for access to
the properties, books or records of CrossComm or any of its subsidiaries by any
person that has advised CrossComm that it may be considering making, or that
has made, an Acquisition Proposal and will keep Olicom fully informed of the
status and details of any such Acquisition Proposal, notice, request or any
correspondence or communications related thereto and shall
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provide Olicom with a written summary in reasonable detail of such Acquisition
Proposal, notice or request or correspondence or communications related thereto
(including the identity of the offeror and the complete terms and conditions of
such Acquisition Proposal).
(d) For purposes of this Agreement, "Acquisition Proposal"
means any written offer or proposal for, or any written indication of interest
in, a merger or other business combination involving CrossComm or the
acquisition of 25% or more of the outstanding shares of capital stock of
CrossComm, or the sale or transfer of all or substantially all of the assets
(excluding the sale or disposition of assets in the ordinary course of
business) of CrossComm, other than the transactions contemplated by this
Agreement.
(e) Nothing in this Section 4.3 shall (x) permit CrossComm to
terminate this Agreement (except as specifically provided in Section 4.3(b) or
Article VII), (y) permit CrossComm to enter into any agreement with respect to
an Acquisition Proposal during the term of this Agreement (it being agreed that
during the term of this Agreement, no party shall enter into any agreement with
any person that provides for, or in any way facilitates, an Acquisition
Proposal (other than (i) a confidentiality agreement in the form described
herein and information provided in accordance with Section 4.3(a), and (ii) as
set forth in Section 4.3(b)), or (z) affect any other obligation of CrossComm
under this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Joint Proxy Statement/Prospectus; Registration Statement. As
promptly as practicable after the execution and delivery of this Agreement,
CrossComm and Olicom shall prepare and file with the Commission the Joint Proxy
Statement, and Olicom shall file with the Commission a Registration Statement
on Form F-4 (or such other or successor form as shall be appropriate), which
complies in form with applicable Commission requirements. Olicom and CrossComm
shall use all reasonable efforts to cause the Registration Statement to become
effective as soon thereafter as practicable. Each of Olicom and CrossComm will
notify the other promptly of the receipt of any comments from the Commission or
its staff and of any request by the Commission or its staff or any other
government officials for amendments or supplements to the Registration
Statement or any other filing or for additional information and will supply the
other with copies of all correspondence between such company or any of its
representatives, on the one hand, and the Commission, or its staff or any other
government officials, on the other hand, with respect to the Registration
Statement or other filing. The Registration Statement and the other filings
shall comply in all material respects with all applicable requirements of law.
Whenever any event occurs which is required to be set forth in an amendment or
supplement to the Registration Statement or any other filing, Olicom or
CrossComm, as the case may be, shall promptly inform the other of such
occurrence and cooperate in filing with the Commission or its staff or any
other government officials, and/or mailing to stockholders of Olicom and
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CrossComm, such amendment or supplement. The Joint Proxy Statement shall
include the recommendation of the CrossComm Board and the Board of Directors of
Olicom in favor of the Merger; provided, however, that the recommendation of
the CrossComm Board may be withdrawn if the CrossComm Board believes in good
faith that a Superior Proposal has been made or shall determine in good faith
that to not withdraw such recommendation would constitute a breach of the
CrossComm Board's fiduciary duty to stockholders under applicable law.
5.2 Meetings of Stockholders.
(a) Promptly after the date hereof, CrossComm shall take all
action necessary in accordance with Delaware Law and its Certificate of
Incorporation and Bylaws to convene the CrossComm Stockholders' Meeting as
promptly as practicable after the Registration Statement is declared effective
by the Commission. CrossComm shall consult with Olicom regarding the date of
the CrossComm Stockholders' Meeting and use all reasonable efforts not to
postpone or adjourn (other than for the absence of a quorum) the CrossComm
Stockholders' Meeting without the consent of Olicom, which consent shall not be
required where CrossComm determines in good faith that it is necessary to
postpone or adjourn the CrossComm Stockholders' Meeting in order to comply with
its fiduciary duties to stockholders under applicable law. Subject to Section
5.1, CrossComm shall use its best efforts to solicit from stockholders of
CrossComm proxies in favor of the Merger and shall take all other action
necessary or advisable to secure the vote or consent of stockholders required
to effect the Merger.
(b) Promptly after the date hereof, Olicom shall take all
action necessary in accordance with the Companies Act, its Articles of
Association and Rules of Procedure to convene the Olicom Stockholders' Meeting
as promptly as practicable after the Registration Statement is declared
effective by the Commission. Olicom shall consult with CrossComm regarding the
date of the Olicom Stockholders' Meeting and use all reasonable efforts not to
postpone or adjourn (other than for the absence of a quorum) the Olicom
Stockholders' Meeting without the consent of CrossComm. Subject to Section
5.1, Olicom shall use its best efforts to solicit from stockholders of Olicom
proxies in favor of the Merger and shall take all other action necessary or
advisable to secure the vote or consent of stockholders required to effect the
Merger.
5.3 Access to Information; Advice of Changes.
(a) Until the earlier of the Effective Time or the termination
of this Agreement, CrossComm shall afford Olicom and its accountants, counsel
and other representatives, reasonable access during normal business hours
during the period prior to the Effective Time to (i) all of CrossComm's and its
subsidiaries' properties, books, contracts, commitments and records, and (ii)
all other information concerning the business, properties and personnel of
CrossComm and its subsidiaries as Olicom may reasonably request. CrossComm
agrees to provide to Olicom and its accountants, counsel and other
representatives copies of internal financial statements promptly upon request.
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(b) Until such time as the Registration Statement is declared
effective by the Commission or the earlier termination of this Agreement,
Olicom shall afford CrossComm and its accountants, counsel and other
representatives, reasonable access during normal business hours during the
period prior to the Effective Time to such information concerning the business,
properties and personnel of Olicom and its subsidiaries as CrossComm may
reasonably request. Olicom agrees to provide to CrossComm and its accountants,
counsel and other representatives copies of internal financial statements
promptly upon request.
(c) Subject to compliance with applicable law, from the date
hereof until the earlier of the Effective Time or the termination of this
Agreement, each of Olicom and CrossComm shall confer on a regular and frequent
basis with one or more representatives of the other party to report operational
matters of materiality and the general status of ongoing operations.
(d) No information or knowledge obtained in any investigation
pursuant to this Section 5.3 shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the Merger.
(e) Each party hereto shall promptly advise the other parties
hereto in writing of (i) any event occurring subsequent to the date of this
Agreement which would render any representation or warranty of such advising
party contained in this Agreement, if made on or as of the date of such event
or the date of the Closing, untrue or inaccurate in any material respect and
(ii) any material change in such advising party's business.
5.4 Confidentiality. The parties acknowledge that each of Olicom and
CrossComm have previously executed a non-disclosure agreement dated November
27, 1996 (the "Confidentiality Agreement"), which Confidentiality Agreement
shall continue in full force and effect in accordance with its terms.
5.5 Public Disclosure. Unless otherwise permitted by this Agreement,
Olicom and CrossComm shall consult with each other before issuing any press
release or otherwise making any public statement or making any other public (or
non-confidential) disclosure (whether or not in response to an inquiry)
regarding the terms of this Agreement and the transactions contemplated hereby,
and neither shall issue any such press release with respect to the Merger or
the transactions contemplated hereby or make any public filing with respect
thereto without the prior approval of the other (which approval shall not be
unreasonably withheld), except as may be required by law, or in exercise of the
fiduciary duties of a board of directors, or by obligations pursuant to any
listing agreement with any national securities exchange or with Nasdaq.
5.6 Consents; Cooperation. Each of Olicom and CrossComm shall
promptly apply for or otherwise seek, and use its best efforts to obtain, all
consents and approvals required to be
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obtained by it for the consummation of the Merger, including those required
under HSR, and shall use its reasonable efforts to obtain all necessary
consents, waivers and approvals under any of the CrossComm Material Contracts
or Olicom Material Contracts, as the case may be, in connection with the Merger
for the assignment thereof or otherwise, except where the failure to obtain
such consents under CrossComm Material Contracts or Olicom Material Contracts,
as the case may be, would not have a Material Adverse Effect on CrossComm or
Olicom, as the case may be. The parties hereto shall consult and cooperate
with one another, and consider in good faith the views of one another, in
connection with any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on behalf of any
party hereto in connection with proceedings under or relating to HSR or any
other federal or state antitrust or fair trade law.
5.7 Affiliate Agreements. Section 5.7 of the CrossComm Disclosure
Letter sets forth those persons who may be deemed "Affiliates" of CrossComm
within the meaning of Rule 145 promulgated under the Securities Act ("Rule
145"). CrossComm shall provide Olicom such information and documents as Olicom
shall reasonably request for purposes of reviewing such list, and shall notify
CrossComm in writing with respect to any change in the identity of its
Affiliates prior to the Closing Date. CrossComm shall use its best efforts to
deliver or cause to be delivered to Olicom, concurrently with the execution and
delivery of this Agreement (and in each case at least 30 days prior to the
Effective Time) from each of the Affiliates of CrossComm, an executed Affiliate
Agreement in the form attached hereto as Exhibit C. Olicom and MergerSub shall
be entitled to place appropriate legends on the certificates evidencing any
Olicom Common Stock to be received by such Affiliates of CrossComm pursuant to
the terms of this Agreement, and to issue appropriate stop transfer
instructions to the transfer agent for Olicom Common Stock, consistent with the
terms of such Affiliate Agreements.
5.8 Voting Agreements.
(a) Concurrently with the execution and delivery of this
Agreement, CrossComm shall use its best efforts to cause Tadeusz Witkowicz to
execute and deliver to Olicom a voting agreement substantially in the form of
Exhibit D attached hereto.
(b) Concurrently with the execution and delivery of this
Agreement, Olicom shall use its best efforts to cause Lars Stig Nielsen to
execute and deliver to CrossComm a voting agreement substantially in the form
of Exhibit E attached hereto.
5.9 Legal Requirements. Each of Olicom, MergerSub and CrossComm
shall, and shall cause their respective subsidiaries to, take all reasonable
actions necessary to comply promptly with all legal requirements which may be
imposed on them with respect to the consummation of the transactions
contemplated by this Agreement, will promptly cooperate with and furnish
information to any party hereto necessary in connection with any such
requirements imposed upon such other party in connection with the consummation
of the transactions contemplated by this
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Agreement, and shall take all reasonable actions necessary to obtain (and will
cooperate with the other parties hereto in obtaining) any consent, approval,
order or authorization of, or any registration, declaration or filing with, any
Governmental Entity or other person, required to be obtained or made in
connection with the taking of any action contemplated by this Agreement.
5.10 Blue Sky Laws. Olicom shall take such steps as may be necessary
to comply with the securities and blue sky laws of all jurisdictions which are
applicable to the issuance of the Olicom Common Stock in connection with the
Merger.
5.11 Employee Benefit Plans.
(a) As used herein, the "Option Exchange Ratio" shall equal
(1) the sum of (x) $5.00, (y) the Warrant Exchange Ratio times the Warrant Unit
Consideration (as defined in the immediately succeeding sentence) and (z) the
Exchange Ratio times the Final Closing Price, divided by (2) the Final Closing
Price. The value of a Warrant (the "Warrant Unit Consideration") shall be
calculated using the Black-Scholes Formula using a volatility equal to the 52-
week historical weekly volatility of Olicom Common Stock and a risk-free rate
of interest equal to the yield to maturity for a United States Treasury Note
with a three-year maturity, as reported by Bloomberg on its historical yield
curve page, and shall be determined by and agreed upon by each of the financial
advisors to Olicom and CrossComm prior to the Closing, which agreement shall
not be unreasonably withheld.
(b) At the Effective Time, the CrossComm Stock Option Plans
and each outstanding option to purchase shares of CrossComm Common Stock under
the CrossComm Stock Option Plans, whether vested or unvested, shall be assumed
by Olicom. Section 5.11 of the CrossComm Disclosure Letter sets forth a true
and complete list as of March 14, 1997, of all holders of outstanding options
under the CrossComm Stock Option Plans, including the number of shares of
CrossComm capital stock subject to each such option, the exercise or vesting
schedule, the exercise price per share and the term of each such option. On
the Closing Date, CrossComm shall deliver to Olicom an updated Section 5.11 of
the CrossComm Disclosure Letter current as of such date. Each such option so
assumed by Olicom under this Agreement shall continue to have, and be subject
to, the same terms and conditions set forth in the CrossComm Stock Option Plans
and the documents governing the outstanding options under those plans,
immediately prior to the Effective Time, except that (i) such option shall be
exercisable for that number of whole shares of Olicom Common Stock equal to the
product of the number of shares of CrossComm Common Stock that were issuable
upon exercise of such option immediately prior to the Effective Time multiplied
by the Option Exchange Ratio and rounded down to the nearest whole number of
shares of Olicom Common Stock, and (ii) the per share exercise price for the
shares of Olicom Common Stock issuable upon exercise of such assumed option
shall be equal to the quotient determined by dividing the exercise price per
share of CrossComm Common Stock at which such option was exercisable
immediately prior to the Effective Time by the Option Exchange Ratio, rounded
up to the nearest whole cent. Consistent with the terms of the
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CrossComm Option Plans and the documents governing the options outstanding
under such plans and except as set forth in the CrossComm Disclosure Letter,
the Merger shall not terminate any of the outstanding options under such plans
or accelerate the exercisability or vesting of such options or the shares of
Olicom Common Stock which will be subject to such options upon Olicom's
assumption of the options in the Merger. It is the intention of the parties
that any assumption of "incentive stock options" (as defined in Section 422 of
the Code) ("ISOs") shall comply with Section 424 of the Code such that ISOs so
assumed by Olicom shall qualify following the Effective Time as ISOs if and to
the extent that such options qualified as ISOs prior to the Effective Time. As
soon as reasonably practical, but in no event more than 25 days after the
Effective Time, Olicom will issue to each person who, immediately prior to the
Effective Time, was a holder of an outstanding option under the CrossComm
Option Plans a document reasonably evidencing the foregoing assumption of such
option by Olicom.
(c) Outstanding purchase rights under the CrossComm ESPP shall
be exercised or assumed, and the CrossComm ESPP shall be terminated, as
follows:
(i) If it is determined on or before June 20,
1997, that the Effective Time shall occur before July 1, 1997,
the CrossComm Board shall give notice to the holders of all
outstanding purchase rights under the CrossComm ESPP in
accordance with clause (c) of the second paragraph of Section
16 of the CrossComm ESPP, and each such outstanding purchase
right shall be deemed to be exercised as described in such
clause. The CrossComm ESPP, and all outstanding purchase
rights thereunder, shall terminate with such exercise date,
and no purchase rights shall be subsequently granted or
exercised under the CrossComm ESPP.
(ii) If it is determined on or before June 20,
1997, that the Effective Time shall occur on or after July 1,
1997, CrossComm shall take such actions as are necessary to
cause the Offering (as defined in the CrossComm ESPP)
scheduled to commence on July 1, 1997, to be postponed until
the earlier of such time as is determined by the Surviving
Corporation or the termination of this Agreement.
(iii) Section 5.11(c) of the CrossComm Disclosure
Letter hereto sets forth a true and complete list as of the
date hereof of all holders of outstanding purchase rights
under the CrossComm ESPP, including the payroll deduction
amount elected by each holder and the price per share of
CrossComm Stock at the beginning of the current Offering. On
the Closing Date, CrossComm shall deliver to Olicom an updated
Section 5.11(c) of the CrossComm Disclosure Letter current as
of such date.
5.12 Letter of Olicom's and CrossComm's Accountants.
(a) Olicom shall use all reasonable efforts to cause to
be delivered to CrossComm a Procedures Letter pursuant to SAS 76 of Olicom's
independent auditors, dated the
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date on which the Registration Statement shall become effective and addressed
to Olicom and CrossComm, in form reasonably satisfactory to CrossComm and
customary in scope and substance for letters delivered by independent public
accountants in connection with registration statements similar to the
Registration Statement.
(b) CrossComm shall use all reasonable efforts to cause
to be delivered to Olicom a Procedures Letter pursuant to SAS 76 of CrossComm's
independent auditors, dated the date on which the Registration Statement shall
become effective and addressed to Olicom and CrossComm, in form reasonably
satisfactory to Olicom and customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Registration Statement.
5.13 Directorship. In connection with the meeting of Olicom's
stockholders called for the purpose of approving this Agreement and the
transactions contemplated hereby, Olicom shall nominate Tadeusz Witkowicz as a
director for a term of one year, and use its best efforts to secure his
election as a director of Olicom.
5.14 Form S-8. Olicom agrees to file, no later than 25 days after
the Closing, a registration statement on Form S-8 covering the shares of Olicom
Common Stock issuable pursuant to outstanding options under the CrossComm
Option Plans assumed by Olicom. CrossComm shall cooperate with and assist
Olicom in the preparation of such registration statement.
5.15 Indemnification.
(a) For a period of six years after the Effective Time,
Olicom shall, and shall cause the Surviving Corporation to, indemnify and hold
harmless the present and former officers, directors, employees, fiduciaries and
agents of CrossComm (the "Indemnified Parties") in respect of acts or omissions
occurring on or prior to the Effective Time to the fullest extent permitted by
applicable law and to the fullest extent provided under CrossComm's Certificate
of Incorporation and Bylaws or any indemnification agreement with CrossComm
officers and directors to which CrossComm is a party, in each case in effect on
the date hereof; provided, however, that such indemnification shall be subject
to any limitation imposed from time to time under applicable law. Without
limitation of the foregoing, in the event any such Indemnified Party is or
becomes involved in any capacity in any action, proceeding or investigation in
connection with any matter relating to this Agreement or the transactions
contemplated hereby occurring on or prior to the Effective Time, Olicom shall,
or shall cause the Surviving Corporation to, pay as incurred such Indemnified
Party's reasonable legal and other expenses (including the cost of any
investigation and preparation) incurred in connection therewith.
(b) After the Effective Time and until July 14, 1999,
Olicom shall provide officers' and directors' liability insurance in respect of
acts or omissions occurring on or prior to
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the Effective Time covering each such person currently covered by CrossComm's
officers' and directors' liability insurance policy on terms substantially
similar to those of such policy in effect on the date hereof; provided,
however, that in satisfying its obligation under this Section, Olicom shall not
be obligated to expend in any one year in excess of $200,000 for such coverage,
and if the Surviving Corporation is unable to obtain the insurance required by
this Section 5.15, it shall obtain as much comparable insurance as possible for
an annual premium equal to such maximum amount.
(c) To the extent there is any claim, action, suit,
proceeding or investigation (whether arising before or after the Effective
Time) against an Indemnified Party that arises out of or pertains to any action
or omission in his or her capacity as a director, officer, employee, fiduciary
or agent of CrossComm occurring prior to the Effective Time, or arises out of
or pertains to the transactions contemplated by this Agreement for a period of
six years after the Effective Time (whether arising before or after the
Effective Time), such Indemnified Party shall be entitled to be represented by
counsel and following the Effective Time (i) any counsel retained by the
Indemnified Parties shall be reasonably satisfactory to the Surviving
Corporation and Olicom (it being agreed that Hale and Dorr LLP is reasonably
satisfactory), (ii) the Surviving Corporation and Olicom shall pay the
reasonable fees and expenses of such counsel, promptly after statements
therefor are received, and (iii) the Surviving Corporation and Olicom will
cooperate in the defense of any such matter; provided, however, that neither
the Surviving Corporation nor Olicom shall be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld); and provided, further, that, in the event that any claim or claims
for indemnification are asserted or made within such six-year period, all
rights to indemnification in respect of any such claim or claims shall continue
until the final disposition of any and all such claims. The Indemnified Parties
as a group may retain only one law firm to represent them with respect to any
single action unless there is, under applicable standards of professional
conduct, a conflict on any significant issue between the positions of any two
or more Indemnified Parties.
(d) The provisions of this Section 5.15 are intended to
be for the benefit of, and shall be enforceable by, each Indemnified Party, and
his or her heirs and representatives.
5.16 Listing of Additional Shares, Warrants and Warrant Shares.
Prior to the Effective Time, Olicom shall file with the Nasdaq National Market
a Notification Form for Listing of Additional Shares with respect to the shares
referred to in Section 6.1(f), and with respect to the Warrants, shall file a
Nasdaq National Market Application for Initial Inclusion and shall use its best
efforts to receive an approval letter from Nasdaq with respect thereto.
5.17 Best Efforts and Further Assurances. Each of the parties to
this Agreement shall use its best efforts to effectuate the transactions
contemplated hereby and to fulfill and cause to be fulfilled the conditions to
Closing under this Agreement. Each party hereto, at the reasonable request of
another party hereto, shall execute and deliver such other instruments and do
and
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perform such other acts and things as may be necessary or desirable for
effecting completely the consummation of this Agreement and the transactions
contemplated hereby.
ARTICLE VI
CONDITIONS TO THE MERGER
6.1 Conditions to Obligations of Each Party to Effect the Merger.
The respective obligations of each party to this Agreement to consummate and
effect this Agreement and the transactions contemplated hereby shall be subject
to the satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, by agreement of all the
parties hereto:
(a) This Agreement and the Merger shall have been
approved and adopted (i) by the requisite vote of the stockholders of CrossComm
(as described in Section 2.23) under Delaware Law, and (ii) by the requisite
vote of the stockholders of Olicom (as described in Section 3.22).
(b) The Commission shall have declared the Registration
Statement effective. No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued, and no
proceeding for that purpose, and no similar proceeding in respect of the Joint
Proxy Statement, shall have been initiated or threatened by the Commission.
(c) No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint or prohibition preventing
the consummation of the Merger shall be in effect, nor shall any proceeding
brought by an administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, seeking any of the foregoing
be pending; nor shall there be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Merger, which makes the consummation of the Merger illegal or prevents or
prohibits the Merger. In the event that an injunction or other order shall
have been issued, each party agrees to use its reasonable diligent efforts to
have such injunction or other order lifted.
(d) Olicom shall have received all state securities and
"blue sky" permits and other such authorizations necessary to consummate the
transactions contemplated hereby.
(e) All material authorizations, consents, orders or
approvals of, or declarations or filings with, or expiration of waiting periods
imposed by, any Governmental Entity (collectively, "Authorizations and
Approvals") necessary for the consummation of the transactions contemplated by
this Agreement and the Certificate of Merger shall have been filed, expired or
been obtained, other than those that, individually or in the aggregate, the
failure to be filed, expired or obtained would not (i) as to Authorizations and
Approvals required pursuant hereto of
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Olicom, in the reasonable opinion of CrossComm after consultation with Olicom,
have a material adverse effect on Olicom, and (ii) as to Authorizations and
Approvals required pursuant hereto of CrossComm, in the reasonable opinion of
Olicom after consultation with CrossComm, have a Material Adverse Effect on
CrossComm.
(f) The filing with the Nasdaq National Market of (i) a
Notification Form for Listing of Additional Shares shall have been made with
respect to the shares of Olicom Common Stock issuable upon conversion of the
CrossComm Common Stock in the Merger, upon the exercise of the Warrants and
upon exercise of the options under the CrossComm Option Plans assumed by
Olicom, and (ii) a National Market Application for Initial Inclusion with
respect to the Warrants. The Warrants shall have been approved for listing on
the Nasdaq National Market upon official notification thereof.
(g) The Commercial and Companies Agency of the Kingdom
of Denmark shall have registered the issuance of the Olicom Common Stock
included in the Merger Consideration to the extent required by the Companies
Act and the amendment of the Articles of Association that is required to
increase the share capital of Olicom.
6.2 Additional Conditions to Obligations of CrossComm. The
obligations of CrossComm to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Effective Time of each of the following conditions, any of which
may be waived, in writing, by CrossComm:
(a) The representations and warranties of Olicom and
MergerSub contained in this Agreement shall be true and correct as of the date
when made and as of the Effective Time, except to the extent that any such
representation and warranty speaks as of an earlier date, with the same force
and effect as if made on and as of the Effective Time, except for changes
expressly contemplated by this Agreement and such inaccuracies as individually
or in the aggregate that would not have a Material Adverse Effect on Olicom,
and CrossComm shall have received a certificate to such effect signed on behalf
of Olicom by the Managing Director and Chief Financial Officer of Olicom.
(b) Olicom and MergerSub shall have performed or
complied in all material respects with all covenants, obligations, conditions
and agreements required by this Agreement to be performed or complied with by
them on or prior to the Effective Time, and, CrossComm shall have received a
certificate to such effect signed by the Managing Director and Chief Financial
Officer of Olicom.
(c) There shall not have occurred any material adverse
change in the condition (financial or otherwise), properties, assets (including
intangible assets), liabilities, business, operations or results of operations
of Olicom and its subsidiaries, taken as a whole, as a consequence of (i) the
occurrence of acts of God, fire, war, strikes and other similar events
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beyond the reasonable control of Olicom the result of which (or the reasonably
likely result of which) is (or will be) the substantial impairment of the value
of the business of Olicom and its subsidiaries, taken as a whole, or (ii) a
material change in the political or economic environment in the Kingdom of
Denmark the result of which (or the reasonably likely result of which) is (or
will be) the substantial impairment of the value of the businesses of Olicom
and its subsidiaries, taken as a whole.
(d) CrossComm shall have been furnished with evidence
satisfactory to it of the consent or approval of those persons whose consent or
approval shall be required in connection with the Merger under any material
contract of Olicom or any of its subsidiaries or otherwise, except where the
failure to obtain such consent or approval would not have a Material Adverse
Effect on Olicom.
(e) No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint provision limiting or
restricting Olicom's business following the Merger shall be in effect, nor
shall any proceeding brought by an administrative agency or commission or other
Governmental Entity, domestic or foreign, seeking the foregoing be pending
except where the existence of any of the foregoing items would not have a
Material Adverse Effect on Olicom.
6.3 Additional Conditions to the Obligations of Olicom and
MergerSub. The obligations of Olicom and MergerSub to consummate and effect
this Agreement and the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, by Olicom:
(a) The representations and warranties of CrossComm
contained in this Agreement shall be true and correct as of the date when made
and as of the Effective Time, except to the extent that any such representation
and warranty speaks as of an earlier date, with the same force and effect as if
made on and as of the Effective Time, except for such inaccuracies as
individually or in the aggregate that would not have a Material Adverse Effect
on CrossComm, and Olicom and MergerSub shall have received a certificate to
such effect signed on behalf of CrossComm by the President and Chief Financial
Officer of CrossComm.
(b) CrossComm shall have performed or complied in all
material respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by it on or prior
to the Effective Time, and Olicom and MergerSub shall have received a
certificate to such effect signed by the President and Chief Financial Officer
of CrossComm.
(c) Olicom shall have been furnished with evidence
satisfactory to it of the consent or approval of those persons whose consent or
approval shall be required in connection with the Merger under any material
contract of CrossComm or any of its subsidiaries or
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otherwise, except where the failure to obtain such consent or approval would
not have a Material Adverse Effect on CrossComm.
(d) No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal or regulatory restraint provision limiting or
restricting Olicom's conduct or operation of the business of CrossComm and its
subsidiaries, following the Merger shall be in effect, nor shall any proceeding
brought by an administrative agency or commission or other Governmental Entity,
domestic or foreign, seeking the foregoing be pending, except where the
existence of any of the foregoing items would not have a Material Adverse
Effect on CrossComm.
(e) There shall not have occurred any material adverse
change in the condition (financial or otherwise), properties, assets (including
intangible assets), liabilities, business, operations or results of operations
of CrossComm and its subsidiaries, taken as a whole, as a consequence of (i)
the occurrence of acts of God, fire, war, strikes and other similar events
beyond the reasonable control of CrossComm the result of which (or the
reasonably likely result of which) is (or will be) the substantial impairment
of the value of the businesses of CrossComm and its subsidiaries, taken as a
whole, to Olicom, or (ii) a material change in the political or economic
environment in Poland which (or the reasonably likely result of which) is (or
will be) the substantial impairment of the value of the business of CrossComm
and its subsidiaries, taken as a whole, to Olicom.
(f) Olicom shall have received from each of the
Affiliates of CrossComm an executed Affiliate Agreement in substantially the
form attached hereto as Exhibit C.
(g) CrossComm shall deliver resignations of all officers
and directors of its subsidiaries.
(h) As of the taking of the vote at the CrossComm
Stockholders' Meeting with respect to the Merger, holders of no more than 15%
of the issued and outstanding shares of CrossComm Common Stock shall have duly
demanded and perfected, and not withdrawn or forfeited, demands for appraisal
rights under Delaware Law.
(i) In the event that the Final Closing Price is less
than $12.50, CrossComm shall have received an updated written opinion of
Montgomery Securities (or another nationally recognized investment banking firm
selected by the CrossComm Board) that, in such advisor's opinion, as of a date
at least one day prior to the CrossComm Stockholders' Meeting, the
consideration to be received by the stockholders of CrossComm is fair, from a
financial point of view, to the stockholders of CrossComm.
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ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time (with respect to Sections 7.1(b)-(i), by written
notice by the terminating party to the other party), whether before or after
approval of the matters presented in connection with the Merger by the
stockholders of CrossComm or Olicom:
(a) By the mutual written consent of Olicom and
CrossComm;
(b) By either Olicom or CrossComm if the Merger shall
not have been consummated by August 1, 1997 (provided that the right to
terminate this Agreement under this Section 7.1(b) shall not be available to
any party whose action or failure to act has been the cause of or resulted in
the failure of the Merger to occur on or before such date);
(c) By either Olicom or CrossComm if a court of
competent jurisdiction or other Governmental Entity shall have issued a
nonappealable final order, decree or ruling or taken any other action, in each
case having the effect of permanently restraining, enjoining or otherwise
prohibiting the Merger, except, if the party relying on such order, decree or
ruling or other action has not complied with its obligations under Section 5.9;
(d) By Olicom, if (i) for any reason, the CrossComm
Board fails to call and hold the CrossComm Stockholders' Meeting by June 30,
1997, or (ii) at the CrossComm Stockholders' Meeting (including any
adjournment or postponement), the requisite vote of the stockholders of
CrossComm in favor of this Agreement and the Merger shall not have been
obtained;
(e) By CrossComm, if (i) for any reason the Board of
Directors of Olicom fails to call and hold the Olicom Stockholders' Meeting by
June 30, 1997, or (ii) at the Olicom Stockholders' Meeting (including any
adjournment or postponement), the requisite vote of the stockholders of Olicom
in favor of this Agreement and the Merger shall not have been obtained;
(f) By Olicom, if (i) the CrossComm Board shall have
withdrawn or modified its recommendation of this Agreement or the Merger in a
manner adverse to Olicom or shall have publicly announced or disclosed to any
third party its intention to do any of the foregoing, (ii) an Alternative
Transaction (as defined in Section 7.3(f)) shall have taken place or the
CrossComm Board shall have recommended to the stockholders of CrossComm an
Alternative Transaction, or (iii) a tender offer or exchange offer for 25% or
more of the outstanding shares of CrossComm Common Stock is commenced (other
than by Olicom or an affiliate of Olicom) and the CrossComm Board recommends
that the stockholders of CrossComm tender their shares in such tender or
exchange offer;
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<PAGE> 277
(g) By CrossComm prior to the Effective Time, if (i) the
CrossComm Board receives a Superior Proposal, (ii) the CrossComm Board
determines in good faith that the failure to accept such Superior Proposal
would be inconsistent with its fiduciary duties to CrossComm's stockholders
under applicable law, (iii) CrossComm has provided Olicom with at least one
business day's written notice of such Superior Proposal, including a written
summary thereof in reasonable detail (including the identity of the offeror and
the terms of the Superior Proposal) and of the determination of the CrossComm
Board, and (iv) contemporaneously with giving the notice specified in Section
7.1(g)(iii), CrossComm makes the payment specified in Section 7.3(d);
(h) By Olicom or CrossComm, if there has been a material
breach of any representation, warranty, covenant or agreement on the part of
the other party set forth in this Agreement, which breach (i) causes the
conditions set forth in Sections 6.1 or 6.2(a) (in the case of termination by
CrossComm), or in Sections 6.1 or 6.3(a) (in the case of termination by Olicom)
not to be satisfied, and (ii) shall not have been cured within five business
days following receipt by the breaching party of written notice of such breach
from the other party; or
(i) By CrossComm, (i) if the Final Closing Price is less
than $12.50 and Olicom fails to increase the Exchange Ratio as provided in
Section 1.6(b)(x), or (ii) if the Final Closing Price is more than $20.83 and
Olicom decreases the Exchange Ratio as provided in Section 1.6(b)(y).
7.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1, this Agreement shall forthwith terminate,
except as provided in this Section 7.2 and in Section 9.1, and there shall be
no liability or obligation on the part of Olicom, MergerSub or CrossComm or
their respective officers, directors, stockholders or affiliates, except to the
extent that such termination results from the willful breach by a party hereto
of any of its representations, warranties or covenants set forth in this
Agreement; provided, however, that, the provisions of Section 5.4
(Confidentiality), Section 7.3 (Expenses and Termination Fees), this Section
7.2 and Section 9.1 (Non-Survival at Effective Time) shall remain in full force
and effect and survive any termination of this Agreement.
7.3 Expenses and Termination Fees.
(a) Except as set forth in this Section 7.3, all fees
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, whether
or not the Merger is consummated; provided, however, that Olicom and CrossComm
shall share equally all fees and expenses, other than investment banking,
attorneys' and accountants' fees and expenses, incurred in connection with the
printing and filing of the Joint Proxy Statement (including any related
preliminary materials) and the Registration Statement (including financial
statements and exhibits) and any amendments or supplements.
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(b) CrossComm shall reimburse Olicom for all of its
reasonable, documented expenses actually incurred relating to the transactions
contemplated by this Agreement prior to termination (including reasonable,
documented fees and expenses of Olicom's counsel, accountants and financial
advisors, but excluding any discretionary fees paid to such financial advisors)
upon the earliest to occur of the following events:
(i) The termination of this Agreement by Olicom
pursuant to Section 7.1(d) as a result of the failure to
receive the requisite vote for approval of this Agreement and
the Merger by the stockholders of CrossComm at the CrossComm
Stockholders' Meeting if, at the time of such failure, there
shall have been announced an Alternative Transaction which
shall not have been absolutely and unconditionally withdrawn
and abandoned; or
(ii) The termination of this Agreement by Olicom
pursuant to Section 7.1(f);
(iii) The termination of this Agreement by
CrossComm pursuant to Section 7.1(g); or
(iv) The termination of this Agreement by Olicom
pursuant to Section 7.1(h) after a material breach of this
Agreement by CrossComm.
(c) Olicom shall reimburse CrossComm for all of its
reasonable, documented expenses actually incurred relating to the transactions
contemplated by this Agreement prior to termination (including reasonable,
documented fees and expenses of CrossComm's counsel, accountants and financial
advisors, but excluding any discretionary fees paid to such financial advisors)
upon the earliest to occur of the following events:
(i) The termination of this Agreement by
CrossComm pursuant to Section 7.1(e); or
(ii) The termination of this Agreement by
CrossComm pursuant to Section 7.1(h) after a material breach
of this Agreement by Olicom.
(d) CrossComm shall pay Olicom as liquidated damages and
not as a penalty or forfeiture, a termination fee of $2,360,000 upon the
earliest to occur of the following events:
(i) The termination of this Agreement by Olicom
pursuant to Section 7.1(d) as a result of the failure to
receive the requisite vote for approval of this Agreement and
the Merger by the stockholders of CrossComm at the CrossComm
Stockholders' Meeting if, at the time of such failure, there
shall have been announced an Alternative Transaction which
shall not have been absolutely and unconditionally withdrawn
and abandoned and
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with respect to which the CrossComm Board shall not have
recommended that the stockholders of CrossComm not vote to
accept.
(ii) The termination of this Agreement by Olicom
pursuant to Section 7.1(f); or
(iii) The termination of this Agreement by
CrossComm pursuant to Section 7.1(g).
(e) The reasonable, documented expenses and fees, if
applicable, payable pursuant to Sections 7.3(b), 7.3(c), 7.3(d)(i) or
7.3(d)(ii) shall be paid by wire transfer within three business days after the
first to occur of the events described therein; provided that, in no event
shall Olicom or CrossComm, as the case may be, be required to pay any expenses
or termination fees, if applicable, to the other, if, immediately prior to the
termination of this Agreement, the party to receive the expenses, termination
fees and other payment, if applicable, was in breach of any of its material
obligations under this Agreement in any manner that shall have proximately
contributed to such action or failure to act on the part of the other party
which gives rise to the right of termination. In the event that Olicom is
required to file suit to seek all or any portion of the termination fee
described in Section 7.3(d), and it is the prevailing party therein, Olicom
shall be entitled to all expenses, including reasonable, documented attorneys'
fees and expenses, which it incurs in enforcing its rights hereunder.
(f) As used in this Agreement, "Alternative Transaction"
means either (i) a transaction pursuant to which any person (or group of
persons), other than Olicom or its affiliates (a "Third Party"), acquires more
than 25% of the outstanding shares of CrossComm Common Stock, pursuant to a
tender offer or exchange offer or otherwise, (ii) a merger or other business
combination involving CrossComm pursuant to which any Third Party acquires more
than 25% of the outstanding equity securities of CrossComm or the entity
surviving such merger or business combination, (iii) any other transaction
pursuant to which any Third Party acquires control of assets (including for
this purpose the outstanding equity securities of subsidiaries of CrossComm,
and the entity surviving any merger or business combination including any of
them) of CrossComm having a fair market value equal to more than 20% of the
fair market value of all the assets of CrossComm immediately prior to such
transaction, or (iv) any public announcement of a proposal, plan or intention
to do any of the foregoing or any agreement to engage in any of the foregoing.
7.4 Amendment. The boards of directors of the parties hereto may
cause this Agreement to be amended at any time by the execution and delivery of
an instrument in writing signed on behalf of each of the parties hereto;
provided, however, that an amendment made subsequent to adoption of the
Agreement by the stockholders of CrossComm or MergerSub shall not (i) alter or
change the amount or kind of consideration to be received on conversion of the
CrossComm Common Stock, except as provided herein, (ii) alter or change any
term of the
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<PAGE> 280
Certificate of Incorporation of the Surviving Corporation to be effected by the
Merger, or (iii) alter or change any of the terms and conditions of the
Agreement if such alteration or change would adversely affect the holders of
CrossComm Common Stock or MergerSub Common Stock.
7.5 Extension; Waiver. At any time prior to the Effective Time any
party hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto, and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE VIII
DEFINITIONS
8.1 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"DKK" and "kroner" refer to currency of the Kingdom of Denmark.
Any reference to a party's "knowledge" means such party's actual
knowledge after reasonable inquiry of executive officers and directors of such
party.
Any reference to any event, change, condition or effect being
"material" with respect to any entity or group of entities means any material
event, change, condition or effect related to the condition (financial or
otherwise), properties, assets (including intangible assets), liabilities,
business, operations or results of operations of such entity or group of
entities.
Any reference to a "Material Adverse Effect" with respect to any
entity means any event, change or effect that is materially adverse to the
condition (financial or otherwise), properties, assets, liabilities, business,
operations or results of operations of such entity.
"Olicom Share Incentive Plans" means Olicom's Share Incentive Plan,
Olicom's 1994 Share Incentive Plan and Olicom's 1996 Share Incentive Plan.
"CrossComm Option Plans" means, collectively, CrossComm's Amended 1988
Incentive Stock Option Plan, CrossComm's Amended 1989 Incentive Stock Option
Plan, CrossComm's 1991 Incentive Stock Option Plan, as amended, CrossComm's
1992 Stock Option Plan, as amended, CrossComm's 1992 Directors Option Plan, as
amended, and CrossComm's 1994 Stock Option Plan, as amended, and CrossComm's
1996 Stock Option Plan, as amended.
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"Subsidiary" (and the correlative term "subsidiaries") shall have the
meaning ascribed to it in Rule 1-02 of Regulation S-X, as promulgated by the
Commission.
"USD," "dollars" and "$" refer to currency of the United States of
America.
ARTICLE IX
GENERAL PROVISIONS
9.1 Non-Survival at Effective Time. The representations,
warranties and agreements set forth in this Agreement shall terminate at the
Effective Time, except that the agreements set forth in Article I, Section 5.4
(Confidentiality), 5.7 (Affiliate Agreements), 5.11 (Employee Benefit Plans),
5.13 (Directorship), 5.14 (Form S-8), 5.15 (Indemnification), 5.17 (Best
Efforts and Further Assurances), 7.3 (Expenses and Termination Fees), 7.4
(Amendment), and this Article IX shall survive the Effective Time.
9.2 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by
nationally recognized overnight delivery service, or sent via facsimile (with
confirmation of receipt) to the parties at the following address (or at such
other address for a party as shall be specified by like notice):
If to Olicom or MergerSub, to:
Olicom A/S
Nybrovej 114
DK-2800 Lyngby
Attn: Managing Director
Facsimile No.: +45 45 27 0129
Telephone No.: +45 45 27 0000
with a copy to:
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
2200 Ross Avenue, Suite 900
Dallas, Texas 75201
Attn: Lawrence D. Ginsburg, Esq.
Facsimile No.: (214) 220-4899
Telephone No.: (214) 220-4438
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If to CrossComm, to:
CrossComm Corporation
450 Donald Lynch Boulevard
Marlborough, Massachusetts 01752
Attn: President
Facsimile No.: (508) 229-5526
Telephone No.: (508) 481-4060
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attn:Philip P. Rossetti, Esq.
Richard N. Kimball, Esq.
Facsimile No.: (617) 526-5000
Telephone No.: (617) 526-6000
Notices by personal delivery or via nationally recognized overnight delivery
service shall be effective on receipt. Telecopied notices shall be effective
on the date of receipt if received by 5:00 p.m. local time where received, and
on the next business day if received thereafter.
9.3 Interpretation. When a reference is made in this Agreement to
Exhibits or Disclosure Letters, such reference shall be to an Exhibit or
Disclosure Letter to this Agreement unless otherwise indicated. The words
"include," "includes" and "including" when used herein shall be deemed in each
case to be followed by the words "without limitation." The phrase "made
available" in this Agreement shall mean that the information referred to has
been made available if requested by the party to whom such information is to be
made available. The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
9.5 Entire Agreement; Nonassignability; Parties in Interest. This
Agreement and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto, including the Exhibits, the
Schedules, including the CrossComm Disclosure Letter and the Olicom Disclosure
Letter (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings, both
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written and oral, among the parties with respect to the subject matter hereof
(except for the Confidentiality Agreement, which shall continue in full force
and effect, and shall survive any termination of this Agreement or the Closing,
in accordance with its terms); (b) are not intended to confer upon any other
person any rights or remedies hereunder, except as set forth in Sections
1.6(a)-(c), (e), (f) and (h), 1.7-1.9, and 5.11-5.16; and (c) shall not be
assigned by operation of law or otherwise except as otherwise specifically
provided.
9.6 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 shall 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 greatest extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
9.7 Remedies Cumulative. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
shall not preclude the exercise of any other remedy.
9.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without regard
to principles of conflicts of law); provided, however, that matters affecting
the validity of corporate action taken by Olicom shall be governed by the laws
of the Kingdom of Denmark. Each of the parties hereto irrevocably consents to
the exclusive jurisdiction of any court located within the State of Delaware in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein, agrees that process may be served upon them in any
manner authorized by the laws of the State of Delaware for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
9.9 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
[the remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, CrossComm, Olicom and MergerSub have caused this
Agreement to be executed and delivered by their respective officers thereunto
duly authorized, all as of the date first written above.
CROSSCOMM CORPORATION
By: /s/ Tadeusz Witkowicz
----------------------------
Tadeusz Witkowicz
President
OLICOM A/S
By: /s/ Lars Stig Nielsen
----------------------------
Lars Stig Nielsen
Managing Director
By: /s/ Jan Bech
----------------------------
Jan Bech
Chairman of the Board
PW ACQUISITION CORPORATION
By: /s/ Lars Stig Nielsen
----------------------------
Lars Stig Nielsen
Chairman of the Board
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EXHIBIT A
CERTIFICATE OF MERGER
MERGING
PW ACQUISITION CORPORATION
WITH AND INTO
CROSSCOMM CORPORATION
-----------------------------------
Pursuant to Section 251 of the General Corporation Law of the State of Delaware
-----------------------------------
PW Acquisition Corporation, a Delaware corporation ("MergerSub") and
CrossComm Corporation, a Delaware corporation ("CrossComm"), DO HEREBY CERTIFY
AS FOLLOWS:
FIRST: That MergerSub was incorporated on February __, 1997, pursuant
to the Delaware General Corporation Law, as amended (the "Delaware Law"), and
that CrossComm was incorporated on April __, 1987, pursuant to the Delaware
Law.
SECOND: That an Agreement and Plan of Reorganization (the
"Reorganization Agreement"), dated as of March 20, 1997, among Olicom, a
corporation organized under the laws of the Kingdom of Denmark, MergerSub and
CrossComm, setting forth the terms and conditions of the merger of MergerSub
with and into CrossComm (the "Merger"), has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in accordance
with subsection (c) of Section 251 of the Delaware Law.
THIRD: That the name of the surviving corporation of the merger (the
"Surviving Corporation") shall be CrossComm Corporation.
FOURTH: That the Certificate of Incorporation of MergerSub, pursuant
to Article I of the Reorganization Agreement, shall be the Certificate of
Incorporation of the Surviving Corporation and be amended to read in its
entirety as follows:
ARTICLE I
The name of the corporation is CrossComm Corporation.
FIFTH: That an executed copy of the Reorganization Agreement is on
file at the principal place of business of the Surviving Corporation at the
following address:
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CrossComm Corporation
450 Donald Lynch Boulevard
Marlborough, Massachusetts 01752
SIXTH: That a copy of the Reorganization Agreement will be furnished
by the Surviving Corporation, on request and without cost, to any stockholder
of any constituent corporation.
SEVENTH: That the Merger shall become effective upon the filing of
this Certificate of Merger with the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, each of MergerSub and CrossComm has caused this
Certificate of Merger to be executed in its corporate name this ___ day of ___,
1997.
PW ACQUISITION CORPORATION
By:
-----------------------------
, President
------------------
ATTEST:
- ----------------------
Secretary
CROSSCOMM CORPORATION
By:
-----------------------------
, President
------------------
ATTEST:
- ----------------------------
, Secretary
- -----------------
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EXHIBIT B _____________________
No. of Warrant Shares
FORM OF WARRANT CERTIFICATE
NO. W-__
VOID AFTER ___________, 2000
WARRANT CERTIFICATE
FOR PURCHASE OF COMMON SHARES
OLICOM A/S
This certifies that FOR VALUE RECEIVED, _______________ is the
registered holder (the "Registered Holder") of the number of Warrants (the
"Warrants") specified above. This Warrant entitles the Registered Holder, but
only subject to the terms and conditions set forth herein and in the Warrant
Agreement (as hereinafter defined), to purchase the number of fully paid and
nonassessable shares (each a "Warrant Share") of Common Stock, par value DKK
0.25 per share (the "Common Stock"), of Olicom A/S, a corporation organized
under the laws of the Kingdom of Denmark (the "Company"), indicated above at
any time after issuance through the Expiration Date (as hereinafter defined),
upon presentation and surrender of this Warrant Certificate and the form on the
reverse hereof duly executed at the principal office of American Stock Transfer
& Trust Company, as warrant agent, or its successor (the "Warrant Agent"),
accompanied by payment of $19.74 per share of Common Stock (the "Exercise
Price") to be purchased hereunder in lawful money of the United States of
America by money order or certified or official bank check made payable to the
Company.
This Warrant Certificate and each Warrant represented hereby are
issued pursuant to, and are subject in all respects to the terms and conditions
set forth in, the Warrant Agreement, dated ______________, 1997 (the "Warrant
Agreement"), by and between the Company and the Warrant Agent.
Prior to the Expiration Date, upon the occurrence of certain events
provided for in the Warrant Agreement, the Exercise Price or the number of
shares of Common Stock subject to purchase upon the exercise of each Warrant
represented hereby are subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but no fractional shares of Common Stock shall be issued.
In the case of the exercise of less than all
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of the Warrants represented hereby, the Company shall cancel this Warrant
Certificate upon the surrender hereof and shall execute and deliver a new
Warrant Certificate or Warrant Certificates, which the Warrant Agent shall
countersign, for the balance of such Warrants.
The "Expiration Date" shall mean ______________, 2000, or such earlier
date as all of the Warrants shall be exercised or redeemed. No Warrant may be
exercised after the 5:00 p.m., Central time, on the Expiration Date, and all
rights of the registered holders of the Warrants shall cease after 5:00 p.m.,
Central time, on the Expiration Date.
This Warrant Certificate is exchangeable upon surrender hereof by the
Registered Holder at the principal office of the Warrant Agent in New York, New
York, or the principal office of the Company in greater Copenhagen, Denmark,
for another Warrant Certificate or Warrant Certificates of like tenor and
representing in the aggregate the number of Warrants evidenced by the Warrant
Certificate or Warrant Certificates so surrendered.
Prior to due presentment for registration or transfer of this Warrant
Certificate, the Company and the Warrant Agent shall deem and treat the
Registered Holder hereof as the absolute owner of Warrants (notwithstanding any
notation of ownership or other writing on the Warrant Certificate made by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof and for all other purposes, and no transfer or exchange will
be effective unless made in accordance with Sections [10 and 11] of the Warrant
Agreement, and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be signed by its duly authorized officers and has caused its corporate seal to
be affixed hereunto.
<TABLE>
<S> <C> <C>
Dated: , 1997
--------- OLICOM A/S
By:
------------------------------------------------------
Its:
-----------------------------------------------------
By:
------------------------------------------------------
Its:
-----------------------------------------------------
</TABLE>
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COUNTERSIGNED:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as warrant agent
By:_________________________________
Name: _____________________________
Authorized Office
FORM TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO EXERCISE WARRANTS
The undersigned Registered Holder hereby irrevocably elects to
exercise Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________
and be delivered to
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
and if such number of exercised Warrants shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such Warrants be registered in the name of, and delivered to the
Registered Holder at the address stated below.
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The undersigned represents that the exercise of the Warrants evidenced
hereby was solicited by a member of the National Association of Securities
Dealers, Inc., if not solicited by an NASD member, please write "unsolicited"
in the space below.
<TABLE>
<S> <C> <C>
_________________________________________
(Name of NASD Member)
Dated: ___________________ X _______________________________________
(Signature of Registered Holder)
_________________________________________
_________________________________________
_________________________________________
(Please print or type name and address of registered holder)
Signature Guarantee Stamp Required Here if Securities are to be
Delivered to a Person Other Than Registered Holder
</TABLE>
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ASSIGNMENT
TO BE EXECUTED BY THE REGISTERED HOLDER
IN ORDER TO ASSIGN WARRANTS
FOR VALUE RECEIVED, ________________________ hereby sells, assigns and
transfers unto _______________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE
____________________________
(Please print or type name and address)
_______________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitutes and appoints
___________________________, Attorney, to transfer the Warrant Certificate on
the books of the Company, with full power of substitution in the premises.
Dated:
X ____________________________________
(Signature of Registered Holder)
Signature Guarantee Stamp Required Here
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND ALL REQUIRED
SIGNATURE GUARANTEES MUST BE PROVIDED BY A MEMBER OF THE MEDALLION STAMP
PROGRAM.
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APPENDIX B
[letterhead of Alex. Brown & Sons Incorporated]
March 20, 1997
Olicom A/S
Nybrovej 114
DK-2800 Lyngby
Denmark
Dear Sirs:
Olicom A/S, a corporation organized under the laws of the Kingdom of
Denmark ("Olicom" or the "Company"), PW Acquisition Corporation, a corporation
organized under the laws of the State of Delaware and a wholly-owned subsidiary
of Olicom ("MergerSub") and CrossComm Corporation, a corporation organized under
the laws of the State of Delaware (the "Target"), have entered into an Agreement
and Plan of Reorganization dated as of March 20, 1997 (the "Agreement").
Pursuant to the Agreement, the implementation of which is contingent on
stockholder approval by the Company's stockholders and Target stockholders,
MergerSub shall merge with and into Target and the separate corporate existence
of MergerSub shall cease and Target shall continue as the surviving corporation
(the "Merger"), and each share of Target common stock issued and outstanding
immediately prior to the effective time of the Merger will be converted into
$5.00 cash, 0.2667 shares of Olicom common stock, subject to adjustment under
certain conditions at the option of the Company, and 0.1075 warrants to purchase
one share of Olicom common stock with a term of 3 years and a strike price equal
to $19.74 (the "Merger Consideration"). You have requested our opinion as to
whether the Merger Consideration payable by the Company is fair, from a
financial point of view.
Alex. Brown & Sons Incorporated ("Alex. Brown"), as a customary part of its
investment banking business, is engaged in the valuation of businesses and their
securities in connection with mergers and acquisitions, negotiated
underwritings, private placements and valuations for estate, corporate and other
purposes. We have acted as financial advisor to the Board of Directors of the
Company in connection with the transaction described above and will receive a
fee for our services, a portion of which is contingent upon the consummation of
the Merger. We have also acted as the Company's lead-managing underwriter for
the October 22, 1992 initial public offering of the Company's common stock.
Alex. Brown maintains a market in the common stock of the Company and regularly
publishes research reports regarding the technology industry and the businesses
and securities of the Company and other publicly owned companies in the
technology industry. In the ordinary course of business, Alex. Brown may
actively trade the securities of both the Company and the Target for our own
account and the account of our customers and, accordingly, may at any time hold
a long or short position in securities of the Company and the Target.
In connection with this opinion, we have reviewed certain publicly
available financial information and other information concerning the Company and
Target and certain internal analyses and other information furnished to us by
the Company and Target. We have also held discussions with the members of the
senior managements of the Company and Target regarding the businesses and
prospects of their respective companies and the joint prospects of a combined
company. In addition, we have (i) reviewed the reported prices and trading
activity for the common stock of both the Company and Target, (ii) compared
certain financial and stock market information for the Company and Target with
similar information for certain other companies whose securities are publicly
traded, (iii) reviewed the financial terms of certain recent business
combinations, (iv) reviewed the terms of the Agreement, and (v) performed such
other studies and analyses and considered such other factors as we deemed
appropriate.
We have not independently verified the information described above and for
purposes of this opinion have assumed the accuracy, completeness and fairness
thereof. With respect to the information relating to the prospects of the
Company and Target, we have assumed that such information reflects the best
currently
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available judgments and estimates of the managements of the Company and Target
as to the likely future financial performances of their respective companies and
of the combined entity. In addition, we have not made nor been provided with an
independent evaluation or appraisal of the assets of the Company and Target, nor
have we been furnished with any such evaluations or appraisals. Our opinion is
based on market, economic and other conditions as they exist and can be
evaluated as of the date of this letter.
Our advisory services and the opinion expressed herein were prepared for
the use of the Board of Directors of the Company and do not constitute a
recommendation to the Company's stockholders as to how they should vote at the
stockholders' meeting in connection with the Merger. We hereby consent, however,
to the inclusion of this opinion as an exhibit to any proxy or registration
statement distributed in connection with the Merger.
Based upon and subject to the foregoing, it is our opinion that, as of the
date of this letter, the Merger Consideration payable by the Company is fair,
from a financial point of view.
Very truly yours,
By: /s/ ALEX BROWN & SONS
INCORPORATED
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APPENDIX C
[letterhead of Montgomery Securities]
March 20, 1997
Board of Directors
CrossComm Corporation
450 Donald Lynch Boulevard
Marlborough, MA 01752
Members of the Board:
We understand that CrossComm Corporation, a Delaware corporation
("Seller"), Olicom A/S, a Danish corporation ("Buyer"), and PW Acquisition
Corporation, a Delaware Corporation and wholly-owned subsidiary of Buyer
("MergerSub"), propose to enter into an Agreement and Plan of Reorganization to
be dated as of March 20, 1997 (the "Merger Agreement"), pursuant to which
MergerSub will be merged with and into Seller, which will be the surviving
entity (the "Merger"). Pursuant to the Merger, as more fully described in the
draft of the Merger Agreement dated March 19, 1997 provided to us by Seller and
as further described to us by management of Seller, we understand that each
outstanding share of the common stock, $0.01 par value per share ("Seller Common
Stock"), of Seller will be exchanged for (1) 0.2667 shares of the common stock,
DKK 0.25 nominal value per share of Buyer ("Buyer Common Stock") so long as the
Final Closing Price (as defined in Section 1.6(b) of the Merger Agreement) is
not less than $12.50 nor greater than $20.83, subject to certain adjustments,
(2) $5.00 in cash, and (3) a warrant to purchase 0.1075 shares of Buyer Common
Stock at an exercise price of $19.74 per share (collectively, the
"Consideration"). The terms and conditions of the Merger are set forth in more
detail in the Merger Agreement.
You have asked for our opinion as investment bankers as to whether the
Consideration to be received by the shareholders of Seller pursuant to the
Merger is fair to such shareholders from a financial point of view, as of the
date hereof.
In connection with our opinion, we have, among other things: (i) reviewed
certain publicly available financial and other data with respect to Seller and
Buyer, including the consolidated financial statements for recent years ending
December 31, 1996 and 1995 and certain other relevant financial and operating
data relating to Seller and Buyer made available to us from published sources
and from the internal records of Seller; (ii) reviewed the financial terms and
conditions of the draft of the Merger Agreement; (iii) reviewed certain publicly
available information concerning the trading of, and the trading market for,
Seller Common Stock and Buyer Common Stock; (iv) compared Seller and Buyer from
a financial point of view with certain other companies in the data
communications industry which we deemed to be relevant; (v) considered the
financial terms, to the extent publicly available, of selected recent business
combinations of companies in the data communications industry which we deemed to
be comparable, in whole or in part, to the Merger; (vi) reviewed and discussed
with representatives of the management of Seller and Buyer certain information
of a business and financial nature regarding Seller and Buyer, including
financial forecasts and related assumptions of Seller provided to us by
management of Seller and of Buyer obtained by us from third party research
analysts; and (vii) performed such other analyses and examinations as we have
deemed appropriate.
In connection with our review, we have not assumed any obligation
independently to verify the foregoing information and have relied on its being
accurate and complete in all material respects. With respect to the financial
forecasts for Seller provided to us by its management, upon their advice and
with your consent we have assumed for purposes of our opinion that the forecasts
have been reasonably prepared on bases reflecting the best available estimates
and judgments of their respective managements at the time of preparation as to
the future financial performance of Seller and that they provide a reasonable
basis upon which we can form our opinion. With respect to the financial
forecasts for Buyer obtained by us from third-party research analysts, upon the
advice of Buyer's management and with your consent we have assumed that they
provide a
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reasonable basis upon which we can form our opinions. We have also assumed that
there have been no material changes in Seller's or Buyer's assets, financial
condition, results of operations, business or prospects since the respective
dates of their last financial statements made available to us. We have relied on
advice of counsel and independent accountants to Seller as to all legal and
financial reporting matters with respect to Seller, the Merger and the Merger
Agreement, including the legal status and financial reporting of litigation
involving Seller. We have assumed that the Merger will be consummated in a
manner that complies in all respects with the applicable provisions of the
Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934 and all other applicable federal and state statutes, rules
and regulations. In addition, we have not assumed responsibility for making an
independent evaluation, appraisal or physical inspection of any of the assets or
liabilities (contingent or otherwise) of Seller or Buyer, nor have we been
furnished with any such appraisals. You have informed us, and we have assumed,
that the Merger will be recorded as a purchase under generally accepted
accounting principles. Finally, our opinion is based on economic, monetary and
market and other conditions as in effect on, and the information made available
to us as of, the date hereof. Accordingly, although subsequent developments may
affect this opinion, we have not assumed any obligation to update, revise or
reaffirm this opinion.
We have further assumed with your consent that the Merger will be
consummated in accordance with the terms described in the draft of the Merger
Agreement, without any further material amendments thereto, and without waiver
by Seller of any of the conditions to its obligations thereunder.
We have acted as financial advisor to Seller in connection with the Merger
and will receive a fee for our services, including rendering this opinion, a
significant portion of which is contingent upon the consummation of the Merger.
Based upon the foregoing and in reliance thereon, it is our opinion as
investment bankers that the Consideration to be received by the shareholders of
Seller pursuant to the Merger is fair to such shareholders from a financial
point of view, as of the date hereof.
This opinion is directed to the Board of Directors of Seller in its
consideration of the Merger and is not a recommendation to any shareholder as to
how such shareholder should vote with respect to the Merger. Further, this
opinion addresses only the financial fairness of the Consideration to the
shareholders and does not address the relative merits of the Merger and any
alternatives to the Merger, Seller's underlying decision to proceed with or
effect the Merger, or any other aspect of the Merger. This opinion may not be
used or referred to by Seller, or quoted or disclosed to any person in any
manner, without our prior written consent, which consent is hereby given to the
inclusion of this opinion in any proxy statement or prospectus filed with the
Securities and Exchange Commission in connection with the Merger. In furnishing
this opinion, we do not admit that we are experts within the meaning of the term
"experts" as used in the Securities Act and the rules and regulations
promulgated thereunder, nor do we admit that this opinion constitutes a report
or valuation within the meaning of Section 11 of the Securities Act.
Very truly yours,
/s/ MONTGOMERY SECURITIES
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APPENDIX D
SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW
SECTION 262 -- APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to the provisions of
subsection (d) of this Section with respect to such shares, who continuously
holds such shares through the effective date of the merger or consolidation, who
has otherwise complied with the provisions of subsection (d) of this Section and
who has neither voted in favor of the merger or consolidation nor consented
thereto in writing pursuant to Section 228 of this Chapter shall be entitled to
an appraisal by the Court of Chancery of the fair value of his shares of stock
under the circumstances described in subsections (b) and (c) of this Section. As
used in this Section, the word "stockholder" means a holder of record of stock
in a stock corporation and also a member of record of a non-stock corporation;
the words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a non-stock
corporation.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Sections 251, 252, 254, 257, 258 or 263 of this Chapter;
(1) provided, however, that no appraisal rights under this Section
shall be available for the shares of any class or series of stock which, at
the record date fixed to determine the stockholders entitled to receive
notice of and to vote at the meeting of stockholders to act upon the
agreement of merger or consolidation, were either (i) listed on a national
securities exchange or (ii) held of record by more than 2,000 stockholders;
and further provided that no appraisal rights shall be available for any
shares of stock of the constituent corporation surviving a merger if the
merger did not require for its approval the vote of the stockholders of the
surviving corporation as provided in subsection (f) of Section 251 of this
Chapter.
(2) Notwithstanding the provisions of subsection (b)(1) of this
Section, appraisal rights under this Section shall be available for the
shares of any class or series of stock of a constituent corporation if the
holders thereof are required by the terms of an agreement of merger or
consolidation pursuant to Sections 251, 252, 254, 257 and 258 of this
Chapter to accept for such stock anything except (i) shares of stock of the
corporation surviving or resulting from such merger or consolidation; (ii)
shares of stock of any other corporation which at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or held of record by more than 2,000 stockholders; (iii) cash in
lieu of fractional shares of the corporations described in the foregoing
clauses (i) and (ii); or (iv) any combination of the shares of stock and
cash in lieu of fractional shares described in the foregoing clauses (i),
(ii) and (iii) of this subsection.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under Section 253 of this chapter is not owned
by the parent corporation immediately prior to the merger, appraisal rights
shall be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this Section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this Section, including those set forth in subsections (d) and
(e), shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this Section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, shall notify each of its stockholders who was such on the
record date for such meeting with respect to shares for which appraisal
rights are available pursuant to subsections (b) or
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(c) hereof that appraisal rights are available for any or all of the shares
of the constituent corporations, and shall include in such notice a copy of
this Section. Each stockholder electing to demand the appraisal of his
shares shall deliver to the corporation, before the taking of the vote on
the merger or consolidation, a written demand for appraisal of his shares.
Such demand will be sufficient if it reasonably informs the corporation of
the identity of the stockholder and that the stockholder intends thereby to
demand the appraisal of his shares. A proxy or vote against the merger or
consolidation shall not constitute such a demand. A stockholder electing to
take such action must do so by a separate written demand as herein
provided. Within 10 days after the effective date of such merger or
consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with the
provisions of this subsection and has not voted in favor of or consented to
the merger or consolidation of the date that the merger or consolidation
has become effective; or
(2) If the merger or consolidation was approved pursuant to Section
228 or Section 253 of this Chapter, the surviving or resulting corporation,
either before the effective date of the merger or consolidation or within
10 days thereafter, shall notify each of the stockholders entitled to
appraisal rights of the effective date of the merger or consolidation and
that appraisal rights are available for any or all of the shares of the
constituent corporation, and shall include in such notice a copy of this
Section. The notice shall be sent by certified or registered mail, return
receipt requested, addressed to the stockholder at his address as it
appears on the records of the corporation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of the
notice, demand in writing from the surviving or resulting corporation the
appraisal of his shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of his shares.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with the provisions of subsections (a) and (d) hereof and who is
otherwise entitled to appraisal rights, may file a petition in the Court of
Chancery demanding a determination of the value of the stock of all such
stockholders. Notwithstanding the foregoing, at any time within 60 days after
the effective date of the merger or consolidation, any stockholder shall have
the right to withdraw his demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after his written request for such a statement is received by the surviving or
resulting corporation or within 10 days after expiration of the period for
delivery of demands for appraisal under subsection (d) hereof, whichever is
later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by one or more publications at
least one week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
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(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with the provisions of this Section and who have
become entitled to appraisal rights. The Court may require the stockholders who
have demanded an appraisal for their shares and who hold stock represented by
certificates to submit their certificates of stock to the Register in Chancery
for notation thereon of the pendency of the appraisal proceedings; and if any
stockholder fails to comply with such direction, the Court may dismiss the
proceedings as to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed at trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this Section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to appraisal rights under this Section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and in the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any other state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all of
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded his appraisal rights as provided in subsection (d)
of this Section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this Section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of his demand for
an appraisal and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this Section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery
shall be dismissed as to any stockholder without the approval of the Court, and
such approval may be conditioned upon such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation into which the
shares of such objecting Stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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APPENDIX E
OLICOM 1997 SHARE INCENTIVE PLAN
1. PURPOSE. The purpose of the Olicom A/S 1997 Share Incentive Plan (the
"Plan") is to advance the interests of Olicom A/S, a corporation organized under
the laws of the Kingdom of Denmark, with its registered office in the
municipality of Lyngby-Taarbaek (the "Company"), by strengthening the ability of
the Company to attract and retain key personnel of high caliber through
encouraging a sense of proprietorship by means of stock ownership. Certain
options issued pursuant to the Plan are intended to qualify as "incentive stock
options" pursuant to Section 422 of the United States Internal Revenue Code of
1986, as amended (the "Code") ("Incentive Options"), while certain other options
issued pursuant to the Plan shall constitute options that are not so qualified
("Nonqualified Options"). In addition to Incentive Options and Nonqualified
Options, warrants ("Warrants") may also be issued pursuant to the Plan.
2. DEFINITIONS. As used in this Plan and in any Agreement (as defined
herein), the following terms shall have the indicated meanings, unless the
context otherwise requires:
"Board" means the Board of Directors of the Company.
"Common Shares" means the common shares of the Company, nominal value
DKK 0.25 per share.
"Date of Issue" means the date on which an Option is granted or a
Warrant is issued pursuant hereto.
"Fair Market Value" means the closing sale price (or average of the
quoted closing bid and asked prices if there is no closing sale price
reported) of the Common Shares on the date specified as reported by the
Nasdaq National Market (the "NNM") or by the principal national stock
exchange on which the Common Shares are then listed. In the event that if
there is no reported price information for such date, the Fair Market Value
shall be determined by the reported price information for the Common Shares
on the day nearest preceding such date. If the Common Shares are not listed
on the NNM or any national stock exchange, Fair Market Value shall be such
price as determined in good faith by the Board.
"Optionee" means a person to whom an Option is granted under the Plan
or who has obtained the right to exercise an Option in accordance with the
provisions of the Plan.
"Options" means Incentive Options and Nonqualified Options.
"Subsidiary" means any now existing or hereinafter organized or
acquired corporation of which more than 50% of the issued and outstanding
voting stock is owned or controlled, directly or indirectly, by the Company
or through one or more Subsidiaries of the Company.
"Warrant Holder" means a person to whom a Warrant is issued under the
Plan or who has obtained the right to exercise a Warrant in accordance with
the provisions of the Plan.
3. SHARES SUBJECT TO THE PLAN. The aggregate amount of shares subject to
purchase or subscription pursuant to Options granted and Warrants issued
pursuant hereto shall not exceed 2,000,000 Common Shares. Any shares subject to
unexercised portions of Options granted or Warrants issued pursuant to the Plan
which shall have terminated, been canceled or expired may again be subject to
Options granted or Warrants issued pursuant hereto.
4. ADMINISTRATION. The Plan shall be administered by the Board. Option and
Warrant agreements (collectively, "Agreements"), in the form as approved by the
Board, and containing such terms and conditions not inconsistent with the
provisions of the Plan as shall have been determined by the Board, may be
executed on behalf of the Company by its Chairman of the Board and Managing
Director, and on behalf of any Subsidiary by its President, Managing Director or
Chief Executive Officer. The Board, from time to time, may adopt rules and
regulations for carrying out the provisions and purposes of the Plan and make
such other determinations, not inconsistent with the terms of the Plan, as the
Board shall deem appropriate. The Board shall have complete authority to (a)
construe, interpret and administer the provisions of the Plan and the provisions
of the Agreements executed pursuant hereto, (b) prescribe, amend and rescind
rules and
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regulations pertaining to the Plan, and (c) make all other determinations
necessary or deemed advisable in the administration of the Plan. Notwithstanding
the foregoing, the Board may delegate to a committee of the Board the authority
to determine the Optionees to whom Options may be granted and the Warrant
Holders to whom Warrants may be issued (the persons responsible for making such
determinations are referred to herein as the "Committee"). The interpretations
and constructions by the Board of any provision of the Plan shall be final and
conclusive, and any proceedings relating to the foregoing shall occur in Greater
Copenhagen.
5. ELIGIBILITY. Incentive Options may be issued pursuant hereto to such key
employees of the Company or its Subsidiaries (including any director who is also
a key employee of the Company or one or more of its Subsidiaries) as shall be
determined by the Committee. Nonqualified Options and Warrants may be issued
pursuant hereto to such employees, managers or directors of the Company or its
Subsidiaries as shall be determined by the Committee. The Board shall determine
the number of Options and Warrants, the consideration for each Warrant, the
exercise price of each Option and Warrant, the vesting and exercise period of
each Option and Warrant, the existence of any window periods during which
Options and Warrants may be exercised, and such other terms and conditions of
each Option and Warrant as are not inconsistent with the provisions of this
Plan. The Board (or upon delegation of authority to it, the Committee) shall
determine which persons are to be issued Options and Warrants pursuant hereto,
and the number of Common Shares subject to each Option and Warrant. In addition,
the Board may, in its sole discretion, provide for vesting of Options and
Warrants to accelerate upon a change in control of the Company. In connection
with the issuance of Incentive Options, the aggregate Fair Market Value
(determined at the Date of Issue of an Incentive Option) of the Common Shares
with respect to which Incentive Options are exercisable for the first time by an
Optionee during any calendar year (under all such plans of the Optionee's
employer corporation and its parent and subsidiary corporations, as defined in
Section 424 of the Code) shall not exceed US$100,000 or such other amount as
from time to time provided in Section 422(d) of the Code or any successor
provision.
6. PURCHASE PRICE FOR WARRANTS. The consideration to be received by Company
in consideration for the issuance of each Warrant issued pursuant hereto (the
"Purchase Price") shall be determined by the Board at the Date of Issue.
7. EXERCISE PRICE. The subscription price or prices for Common Shares
subject to an Option or Warrant (the "Exercise Price") issued pursuant thereto
shall be determined by the Board at the Date of Issue; provided, however, that
(a) the Exercise Price for any Option shall not be less than the Fair Market
Value of the Common Shares on the Date of Issue, (b) the sum of the Purchase
Price and the Exercise Price for any Warrant shall not be less than the Fair
Market Value of the Common Shares on the Date of Issue, and (c) if the Optionee
is the holder of more than 10% of the total combined voting power of all classes
of shares of the Company or its parent or any of its subsidiaries, as more fully
described in Section 422(b)(6) of the Code or any successor provision thereof
(such shareholder is referred to herein as a "10% Shareholder"), the Exercise
Price for any Incentive Option issued to such Optionee shall not be less than
110% of the Fair Market Value of the Common Shares on the Date of Issue.
Notwithstanding the foregoing, in the event that the Company determines, in
connection with the acquisition of a business enterprise, to assume options
issued by such acquired business enterprise, as set forth in Section 10(b), the
Exercise Price of such assumed options shall be the exercise price thereof
immediately prior to the closing of such acquisition, adjusted to give effect to
the consideration received by the equity holders of such acquired business
enterprise, such adjustment to be made in such manner as the Board shall
determine.
8. TERM OF OPTIONS AND WARRANTS; LIMITATIONS ON RIGHT TO EXERCISE. Subject
to the provisions of the Company's Articles of Association, as amended from time
to time (the "Articles"), and the Companies Act of the Kingdom of Denmark, as
amended from time to time (the "Companies Act"), (a) Incentive Options issued
pursuant hereto shall not be exercisable (i) more than five years after the Date
of Issue with respect to a 10% Shareholder, or (ii) more than ten years after
the Date of Issue with respect to all persons other than 10% Shareholders, (b)
Nonqualified Options issued pursuant hereto shall not be exercisable more than
ten years after the Date of Issue, and (c) Warrants issued pursuant hereto shall
not be exercisable more than five years after the Date of Issue. Subject to the
provisions of the Articles and the Companies Act, Nonqualified Options and
Warrants issued to non-management members of the Board or of the board of
directors of any Subsidiary shall not be exercisable for more than ten and five
years, respectively, except (x) that in the event
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of the death or termination of service of such member as a director of the
Company or a Subsidiary, Nonqualified Options and Warrants issued to such a
director shall not be exercisable after the expiration of one year following the
date of such member's death or termination (or if shorter, the remaining term of
the Option or Warrant), and (y) as otherwise provided by the Board at the time
that such Option or Warrant is granted or issued. The Company shall not be
required to issue any fractional shares upon the exercise of any Option or
Warrant. No Optionee or Warrant Holder, or his or her representatives, legatees
or distributees, as the case may be, shall be, or shall be deemed to be, a
holder of any Common Shares subject to an Option or Warrant, as the case may be,
unless and until (x) the Purchase Price of such Warrant has been paid, (y) such
Option or Warrant has been exercised, and (z) the Exercise Price of the Common
Shares in respect of which the Option or Warrant has been exercised has been
paid. Options and Warrants shall be exercisable only by the Optionee or the
Warrant Holder or by a person who has obtained the Optionee's or Warrant
Holder's rights under the Option or Warrant by will or under the laws of descent
and distribution.
9. TERMINATION OF EMPLOYMENT. The Board shall determine at the Date of
Issue what conditions, if any, shall apply to the exercise of an Option or
Warrant issued pursuant hereto in the event that an Optionee or Warrant Holder
ceases to be employed by the Company or a Subsidiary for any reason. In the
event of the death of an Optionee or Warrant Holder while in the employ, or
while serving as a director, of the Company or a Subsidiary, the Option or
Warrant theretofore issued to him or her shall be exercisable by the executor or
administrator of the estate of the deceased Optionee or Warrant Holder (the
"Decedent"), or if such Decedent's estate is not in administration, by the
person or persons to whom the Decedent's rights shall have passed under the
Decedent's will or under the laws of descent and distribution, no later than 12
months following the date of death or such other shorter period as may be
specified in the Agreement, but in no case later than the expiration date of
such Option or Warrant, and then only to the extent that the Decedent was
entitled to exercise such Option or Warrant at the date of his or her death.
Neither the Plan nor any Option or Warrant issued pursuant hereto is intended to
confer upon any Optionee or Warrant Holder any rights with respect to
continuation of employment or other utilization of his or her services by the
Company or a Subsidiary, nor to interfere in any way with his or her right, or
that of his or her employer, to terminate his or her employment or other
services at any time (subject to the terms of any applicable contract or
applicable law). No spouse of an Optionee or Warrant Holder shall have any
rights with respect to any Option or Warrant issued pursuant hereto, except as
to rights pursuant to will or the laws of descent and distribution that a spouse
of a Decedent acquires in an Option or Warrant issued to such Decedent.
10. MERGERS, CONSOLIDATIONS, SALE OF ASSETS, ETC.
(a) In the event of changes in the outstanding Common Shares of the Company
by reason of stock dividends, recapitalizations, mergers, consolidations,
split-ups, combinations or exchanges of shares and the like, the aggregate
number and class of shares available under the Plan, and the number, class and
the price of Common Shares subject to outstanding Options and Warrants shall be
appropriately adjusted by the Board, whose determination shall be final and
conclusive.
(b) The Company may grant options under this Plan in substitution for, or
in connection with the assumption of, options held by employees or directors of
another business enterprise who become employees or directors of the Company, or
a subsidiary of the Company, as the result of the acquisition of another
business enterprise by the Company or any of its subsidiaries (whether by a
merger or consolidation of the Company or a subsidiary thereof with such other
business enterprise, or as a result of the acquisition by the Company or a
subsidiary thereof of property or stock of such other business enterprise, or
other means by which such acquisition may be effected). The Company may direct
that substitute options be granted, or that the options or option plans of such
other business enterprise be assumed, on such terms and conditions as the Board
considers appropriate in the circumstances.
11. EXPIRATION AND TERMINATION OF THE PLAN. The Plan became effective on
April 2, 1997, pursuant to a resolution of the Board on such date, conditioned
on and subject to approval of the Plan by an Annual General Meeting of the
Company's shareholders. Subject to the provisions of the Articles and the
Companies Act, the Plan shall terminate on April 1, 2002, or at such earlier
date as may be determined by the Board or mandated by the Articles or the
Companies Act. Termination of the Plan shall not affect the rights of Optionees
or
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Warrant Holders under Options and Warrants theretofore issued, and all Options
and Warrants that have not expired shall continue in force and operation after
termination of the Plan, except as same may lapse or be terminated by their own
terms and conditions or as may be provided by the Articles or the Companies Act.
12. RELATIONSHIP TO ARTICLES OF ASSOCIATION. Pursuant to provisions of the
Articles, the Board has been, and may in the future be, granted the authority to
issue warrants, grant options and issue other instruments that entitle the
holders thereof to subscribe for Common Shares. Notwithstanding anything
contained herein, the action of the Board and of the Annual General Meetings in
authorizing this Plan or any amendment(s) hereto shall not derogate from or
otherwise affect the power of the Board to issue warrants, grant options or
issue other instruments pursuant to the authority granted to the Board in the
Articles (including, without limitation, the authority set forth in Article 8,
Section 2 of the Articles, as in effect on March 8, 1996, for the Board to issue
at any time earlier than May 8, 2001, by one or several stages, as the Board
shall determine, not more than 1,173,320 units of warrants for shares of DKK
0.25 each).
13. RESTRICTIONS ON ISSUANCE OF SHARES.
(a) The Company shall not be obligated to issue any Common Shares upon the
exercise of any Option or Warrant issued under this Plan unless (i) the offer
and sale of Common Shares with respect to which such Option or Warrant is being
exercised have been registered under applicable securities laws or are exempt
from such registration, (ii) the prior approval of such sale or issuance has
been obtained from any regulatory body having jurisdiction, and (iii) in the
event the Common Shares have been listed on the NNM or any national stock
exchange, the shares with respect to which such Option or Warrant is being
exercised have been duly listed on the NNM or such exchange on which the Common
Shares are then listed, all in accordance with the procedures specified
therefor.
(b) No Incentive Option issued pursuant hereto shall be transferable by the
Optionee other than by will or the laws of descent and distribution.
Nonqualified Options and Warrants may be issued to an affiliate of a person
otherwise permitted to be an Optionee or Warrant Holder pursuant hereto. For the
purposes of the Plan, an "affiliate" of a person shall include any person, group
or entity controlled by, controlling or under common control of such person.
14. DETERMINATION OF BREACH OF CONDITIONS. The determination of the Board
as to whether an event has occurred resulting in a forfeiture or a termination
or reduction of the Company's obligations in accordance with the provisions of
the Plan or any Agreement shall be final and conclusive.
15. TAXES. Optionees and Warrant Holders shall be entitled to satisfy the
obligation to pay any amounts required by any governmental entity to be withheld
or otherwise deducted and paid with respect to the exercise of an Option or
Warrant (including, without limitation, all applicable taxes or other
governmental impost or levy) (collectively, "Applicable Taxes"), calculated on
the basis of the rate of taxation applicable to such Optionee or Warrant Holder,
by providing the Company with funds sufficient to enable the Company to pay such
Applicable Taxes or subject to the authority of the Company under the Articles
to repurchase Common Shares, by requiring the Company to retain or to accept,
upon delivery thereof by the Optionee or Warrant Holder, Common Shares
sufficient in value (based on Fair Market Value on the date on which the Company
receives notice of exercise or conversion) to cover the amount of such
Applicable Taxes.
16. AMENDMENT OF THE PLAN. The Board may amend the Plan from time to time
in such respects as it may deem advisable in its sole discretion or in order
that the Options and Warrants issued hereunder shall conform to any change in
applicable laws, in regulations or rulings of administrative agencies, or in
order that Options and Warrants issued or Common Shares acquired upon exercise
thereof may qualify for simplified registration under applicable securities or
other laws.
17. PAYMENT UPON EXERCISE.
(a) Upon the exercise of any Option or Warrant issued hereunder, the
Company may, in its sole discretion, make financing available, from time to time
on such terms and to such Optionees or Warrant Holders as the Board may
determine in its sole discretion, for the purchase of the Common Shares that may
be purchased or subscribed for pursuant to the exercise of such Option or
Warrant. An Optionee or Warrant
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Holder may pay the Exercise Price of the Common Shares as to which an Option or
Warrant is being exercised by the delivery of cash or a certified or cashier's
check.
(b) Any Option or Warrant issued under the Plan may be exercised by a
broker-dealer acting on behalf of an Optionee or a Warrant Holder, as the case
may be, if (i) the broker-dealer has received from the Optionee, the Warrant
Holder or the Company a fully-executed counterpart of the Agreement evidencing
such Option or Warrant, together with instructions signed by the Optionee or
Warrant Holder, as the case may be, requesting the Company to deliver the Common
Shares subject to such Option or Warrant to the broker-dealer on behalf of such
Optionee or Warrant Holder and specifying the account into which such shares
should be deposited, (ii) adequate provision has been made with respect to the
payment of Applicable Taxes due upon such exercise, and (iii) the broker-dealer,
on the one hand, and the Optionee or Warrant Holder, on the other hand, have
otherwise complied with Section 220.3(e)(4) of the Regulation T of the United
States Federal Reserve System, 12 CFR Part 220, or any successor provision, to
the extent applicable.
18. LIABILITY OF THE COMPANY. By accepting any benefits under this Plan,
each Optionee and Warrant Holder, together with each person claiming under or
through such Optionee and Warrant Holder, shall be conclusively deemed to have
indicated acceptance and ratification of, and consented to, any action taken or
made to be taken or made under the Plan by the Company and the Board (and the
Committee). No Optionee or Warrant Holder, or any person claiming under or
through him or her, shall have any right or interest, whether vested or
otherwise, in the Plan or in any Option or Warrant hereunder, contingent or
otherwise, unless and until such Optionee or Warrant Holder shall have complied
with all of the terms, conditions and provisions of the Plan, together with the
Agreement relating thereto. Neither the Company, its directors, officers or
employees, nor any of the Company's Subsidiaries which are in existence or
hereafter come into existence, shall be liable to any Optionee or Warrant Holder
or other person if it is determined for any reason by the United States Internal
Revenue Service or any court having jurisdiction that any Incentive Options
issued hereunder do not qualify for tax treatment as "incentive stock options"
under Section 422 of the Code.
19. APPLICABLE LAW. The obligations of the Company pursuant hereto shall be
governed and construed in accordance with the laws of the Kingdom of Denmark;
provided, however, that the provisions of this Plan relating to Incentive
Options shall be construed in a manner consistent with the treatment of same as
"incentive stock options" pursuant to Section 422 of the Code. In the event of
any conflict between the provisions hereof, on the one hand, and the provisions
of the Companies Act and/or the Articles, on the other hand, the provisions of
the Companies Act and/or the Articles shall be deemed paramount and controlling.
Signed this the day of April 2, 1997
on behalf of the Board of Directors
/s/ Jan Bech, Chairman of the Board
/s/ Lars Stig Nielsen, Managing Director
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under the Companies Act, directors of the Registrant and the Registrant's
officers who are registered as managers with the Companies and Commercial Agency
of the Kingdom of Denmark (Messrs. Lars Stig Nielsen and Boje Rinhart are the
only officers of the Registrant so registered) are liable to the Registrant and
to third parties for any breach of the Registrant's Articles of Association or
the Companies Act. Officers not so registered are indemnified under the
Companies Act in respect of actions and claims arising out of actions taken by
them in their official capacity, provided that such actions do not involve gross
negligence or fraud.
The Registrant has entered into Indemnification Agreements with its
directors and officers which provide indemnification to the fullest extent
permitted by the Companies Act. In addition, Olicom, Inc., has entered into
Indemnification Agreements with its directors and officers who are not directors
and officers of the Registrant. Such Indemnification Agreements provide
indemnification to the fullest extent permitted by the Delaware General
Corporation Law, as amended.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
2.1 -- Agreement and Plan of Reorganization (the "Merger
Agreement") dated as of March 20, 1997, among the
Registrant, PW Acquisition Corporation and CrossComm
Corporation (attached as Appendix A to the Joint Proxy
Statement/Prospectus included in Part I of this
Registration Statement and incorporated herein by
reference). The following Exhibits to the Merger
Agreement are included as separate Exhibits to this
Registration Statement: Form of CrossComm Affiliates
Agreement (see Exhibit 10.2); Voting Agreement --
CrossComm Affiliates (Stockholder's Agreement) (see
Exhibit 10.3); Voting Agreement -- Olicom Affiliates
(Stockholder's Agreement) (see Exhibit 10.4)
3.1 -- Articles of Association (English translation) of the
Registrant
4.1 -- Specimen certificate for shares of Olicom Common Stock
(filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form F-1 filed September 9, 1992 (File No.
33-51818), and incorporated by reference herein)
4.2 -- Specimen certificate for common stock purchase warrant
(included as Exhibit B to the Merger Agreement)
5.1 -- Opinion of Advokatfirmaet O. Bondo Svane
10.1 -- Form of Warrant Agreement
10.2 -- Form of CrossComm Affiliates Agreement
10.3 -- Stockholder's Agreement dated as of March 20, 1997,
between the Registrant and Tadeusz Witkowicz
10.4 -- Stockholder's Agreement dated as of March 20, 1997,
between CrossComm Corporation and Lars Stig Nielsen
</TABLE>
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<PAGE> 305
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
10.5 -- Consulting Agreement dated March 20, 1997, between
Olicom, Inc. and Tadeusz Witkowicz (including form of
Stock Option Agreement to evidence grant to Mr. Witkowicz
of option in common shares of the Registrant)
10.6 -- Agreement dated March 20, 1997, between CrossComm
Corporation and Tadeusz Witkowicz
10.7 -- Share Purchase Agreement dated January 23, 1996 between
Olicom A/S and Nilex Systems ApS
23.1 -- Consent of Ernst & Young A/S
23.2 -- Consent of Ernst & Young LLP
23.3 -- Consent of Advokatfirmaet O. Bondo Svane (included in
Exhibit 5.1 hereto)
23.4 -- Consent of Alex. Brown & Sons Incorporated (included in
Appendix B to the Joint Proxy Statement/Prospectus)
23.5 -- Consent of Montgomery Securities (included in Appendix C
to the Joint Proxy Statement/Prospectus)
23.6 -- Consent of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
99.1 -- Form of Olicom proxy
99.2 -- Form of CrossComm proxy
99.3 -- Consent of person named to become a director
</TABLE>
(b) Financial Statement Schedules
Schedule II -- Valuation and Qualifying Accounts; included in
financial statements of CrossComm Corporation attached hereto.
(c) Item 4(b) Information
The opinions of Alex. Brown & Sons Incorporated and Montgomery
Securities are included as Appendix C and Appendix D, respectively, to the
Joint Proxy Statement/Prospectus included in this Registration Statement.
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
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2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
7. That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the Registrant undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
8. That every prospectus: (i) that is filed pursuant to the paragraph
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act of 1933 and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part
of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
9. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(b) The undersigned registrant hereby undertakes: (i) to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means; and (ii) to arrange or provide for a
facility in the United States for the purpose of responding to such requests.
The undertaking in subparagraph (i) above shall include information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to such requests.
(c) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE> 307
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Copenhagen, Kingdom of
Denmark, on the 4th day of April, 1997.
OLICOM A/S
By: /s/ LARS STIG NIELSEN
----------------------------------
Lars Stig Nielsen
Managing Director and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lars Stig Nielsen and Jan Bech and each of them
(with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE AND CAPACITY DATE
--------- ------------------ ----
<C> <S> <C>
/s/ JAN BECH Chairman of the Board and Director April 4, 1997
- -----------------------------------------------------
Jan Bech
/s/ BO F. VILSTRUP Deputy Chairman of the Board and April 4, 1997
- ----------------------------------------------------- Director
Bo F. Vilstrup
/s/ LARS STIG NIELSEN Managing Director, Chief Executive April 4, 1997
- ----------------------------------------------------- Officer and Director
Lars Stig Nielsen
/s/ BOJE RINHART Principal Financial and Accounting April 4, 1997
- ----------------------------------------------------- Officer
Boje Rinhart
/s/ KURT ANKER NIELSEN Director April 4, 1997
- -----------------------------------------------------
Kurt Anker Nielsen
/s/ FRANK G. PETERSEN Director April 4, 1997
- -----------------------------------------------------
Frank G. Petersen
/s/ MICHAEL J. PEYTZ Director April 4, 1997
- -----------------------------------------------------
Michael J. Peytz
</TABLE>
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below on April 4, 1997 by the
undersigned as the duly authorized representative of Olicom A/S in the United
States.
/s/ J. MICHAEL CAMP
------------------------------------
J. Michael Camp
II-4
<PAGE> 1
EXHIBIT 3.1
ARTICLES OF ASSOCIATION
OF
OLICOM A/S
(ENGLISH TRANSLATION)
NAME, DOMICILE AND OBJECTS
ARTICLE 1.
NAME
(1) The name of the Company is "Olicom A/S".
(2) The Company also carries on business under the secondary names of
Continuous Communication Corporation A/S (Olicom A/S), System
Independent Telecommunication A/S (Olicom A/S), Sitel A/S (Olicom
A/S), and Olicom A/S (Olicom A/S).
ARTICLE 2.
DOMICILE
The domicile of the Company is the municipality of Lyngby-Taarbaek.
ARTICLE 3.
OBJECTS
The objects of the Company are:
a) to develop, design, manufacture, and market electronic data
processing systems, equipment and systems for computer-based networks
and communication systems;
b) to supply the international market with the Company's
products through marketing, license, cooperation and joint-venture
agreements, or through direct sales, whichever is the most appropriate
in the individual case;
c) to engage in all such other business activities as are in
the discretion of the Board associated with, in promotion of, or
deriving from the above objects.
<PAGE> 2
CAPITAL & SHARES
ARTICLE 4.
SHARE CAPITAL
(1) The share capital of the Company is DKK 3,959,170 divided into
15,836,680 shares of DKK 0.25 each.
(2) The share capital is fully paid-up.
(3) Share certificates may be issued in multiples of DKK 0.25.
ARTICLE 5.
SHARES
(1) Each share amount of DKK 0.25 shall qualify its holder for one (1)
vote.
(2) No shareholder shall be bound to have his shares redeemed - wholly or
in part.
(3) The shares shall be registered in the holder's name and shall be thus
entered in the Company's authorized Register of Members.
(4) The shares shall be negotiable instruments and there shall be no
restrictions on the negotiability of the shares, cf. however Art. 6
below.
ARTICLE 6.
OWNERSHIP CAP
(1) No person, firm, or entity ("person") may without obtaining the
approval by the Company's Board of Directors own more than 33% of the
Company's share capital or votes at any time. The Board may condition
its approval on the satisfaction of such conditions that it determines
to be appropriate.
(2) For the purpose of the preceding paragraph, a person will be deemed
to own shares or votes
(i) if these shares or votes are owned, may be disposed of or
controlled by companies, foundations, or other legal
entities which such person owns or controls, directly or
indirectly;
(ii) if these shares or votes are owned, may be disposed of or
controlled directly or indirectly by any other person,
- 2 -
<PAGE> 3
firm or entity who owns or controls or is part of the same
group as such person;
(iii) in which such person, directly or indirectly, through any
contract, arrangement, understanding, relationship or
otherwise, has or shares (a) voting power (including,
without limitation, the power to vote, or to direct the
voting of, such shares), and/or (b) investment power
(including, without limitation, the power to sell or
dispose, or to direct the sale or disposition, of such
shares or votes);
(iv) which such person is entitled to vote on, or has a right to
acquire; or
(v) which are otherwise owned by an interest-related party for
the purpose of circumventing or evading the above
provisions.
Notwithstanding the provisions above, a person will not be deemed an
owner of shares or votes in the Company under the following
circumstances: (x) if such shares or votes are held, directly or
indirectly, by a member of a securities exchange or by a depositary on
behalf of any such member, if (a) such shares are held on behalf of
another person solely because such member is the record holder of such
shares, and (b) pursuant to the rules of such exchange, such member
may direct the vote of such shares, without instruction, on other than
contested matters or matters that may affect substantially the rights
or privileges of the holders of the shares to be voted, but is
otherwise precluded by the rules of such exchange from voting without
instruction; (y) if such shares are held by a person who, in the
ordinary course of its business, is a pledgee of shares under a
written pledge agreement, whereupon such pledgee shall be deemed to be
the beneficial owner of such shares at such time as the pledgee (a)
has taken all formal steps necessary which are required to declare a
default, and (b) determines that the power to vote or direct the vote
or to sell or dispose or to direct the sale or disposition of such
pledged shares will be exercised, provided that (I) the pledge
agreement is bona fide and was not entered into with the purpose nor
with the effect of circumventing or evading the provisions hereof, and
(II) the pledge agreement, prior to default, does not grant to the
pledgee the power to vote the pledged shares, or the power to dispose
or direct the disposition of the pledged shares (other than the grant
of such power(s) pursuant to a pledge agreement under which credit is
extended to a customer by a broker or dealer in connection with the
purchase of such pledged shares); or (z) if such shares are held by a
person engaged in business as an underwriter of securities who
acquires such shares through its participation in good faith in a firm
commitment
- 3 -
<PAGE> 4
underwriting registered under applicable laws of the United States of
America, then such person will not be deemed to be the beneficial
owner of such shares until the expiration of 40 days after the date of
such acquisition.
(3) A person who owns more than 33% of the Company's share capital or
votes at any time without having obtained the approval by the Board of
Directors, cannot be registered or otherwise accepted as a
shareholder, and such person has therefore no voting right, right to
dividends or distributions or otherwise any shareholder's rights for
such part of such person's shareholding that exceeds 33%.
(4) The Company's Board of Directors may grant its approval for ownership
by a person of more than 33% of the Company's share capital or votes.
The Company's Board of Directors may condition its approval - without
limitation - on the following:
(i) THAT such person has, prior to purchasing more than 33% of
the Company's share capital or votes, requested in writing
the approval by the Company's Board of Directors to own
more than this limit, and
(ii) that such person has given a legally binding and
irrevocable bona fide offer to all shareholders of the
Company (other than such person, to the extent that he is a
shareholder) to purchase all the shares and votes in the
Company at a price deemed favourable by the Board of
Directors at its discretion.
ARTICLE 7.
INCREASE OF SHARE CAPITAL
Any decision to increase the Company's share capital shall be made by the
Company in General Meeting consistent with the provisions of the Danish
Companies Act.
ARTICLE 8.
AUTHORISATION TO INCREASE THE CAPITAL
(1) The Company's Board has been authorized by the General Meeting to
increase the Company's share capital - at such times and on such terms
as the Board thinks fit - by one or several stages by not more than
DKK 2,000,000 (i.e. 8,000,000 shares of each DKK 0.25) by increasing
the capital only in connection with private placements (the admission
of one or more major investor(s)) or the acquisition of assets or
companies. The said authority shall be valid for a period of five (5)
years until 25th August 1997 and may be extended by the General
Meeting by one or more five
- 4 -
<PAGE> 5
year periods at a time. Any increase in pursuance of the Board's
authorisation may be effected without any preferential right to
subscribe on the part of the Company's present shareholders,
notwithstanding the provisions in Art. 7 above.
(2) Further to the authorisation referred to in (1) above, the Company's
Board has been authorized by the General Meeting to issue at any time
earlier than May 8, 2001, by one or several stages, as the Board shall
determine, not more than 1,173,320 units of warrants for shares of DKK
0.25 each. The warrants issued shall be registered in the holder's
name and shall be thus entered in the Company's Register of Members;
such warrants shall entitle their holders to subscribe for not more
than (nominally) DKK 293,330 of shares (i.e. 1,173,320 shares of DKK
0.25 each) at any time earlier than May 8, 2001, as determined by the
Board, by an increase of the share capital. The warrants issued shall
entitle their holders to subscribe for shares in the Company at the
price determined upon the issue of the warrants or subsequently
adjusted by reason of the terms of the issue, which price shall in no
event be less than par value. Further to the authorisation granted in
(1) above, the Company's Board has also been authorized to increase
the Company's capital, at such times and on such terms as the Board
shall determine, by one or several stages by not more than (nominally)
DKK 293,330 (i.e. 1,173,320 shares of DKK 0.25 each) for the purpose
of converting warrants into shares. Any issue of warrants in pursuance
of the Board's authorisation and the associated increase of the
capital may be effected without any preferential right to subscribe on
the part of the Company's present shareholders, notwithstanding the
provisions in Art. 7 above. The specific terms and conditions for
subscription, the warrants and the issuance thereof shall be
determined by the Board of Directors, and the Board's resolution to
that effect shall be incorporated into these Articles.
(3) Further to the authorisations referred to in (1) and (2) above, the
Company's Board has been authorized by the General Meeting, as an
integral part of the Company's share incentive plan, to raise loans on
or before May 3, 1999 by one or several stages, as the Board shall
determine, for not more than (nominally) DKK 19,000,000 against the
issue of bonds granting the lender a right to convert his claim
against the Company into new shares of the Company. The issue of
convertible bonds may be carried out at market price with no
preferential right to subscribe for the existing shareholders;
provided, however, that the conversion price of such convertible bonds
shall not be less than the fair market value of the Company's shares
at the time of the issuance of such convertible bonds (except as to
any adjustment in the conversion price resulting from events that may
occur subsequent to such issuance by reason of dilutive issuances of
shares, mergers, consolidations, split-ups, stock
- 5 -
<PAGE> 6
splits and other similar changes in the Company's capital structure,
all as may be provided for in accordance with the terms and provisions
of the convertible bonds). Further to the authorisations granted in
(1) and (2) above, the Company's Board has also been authorized to
increase the Company's capital by one or several stages by not more
than (nominally) DKK 56,250 (i.e., 225,000 shares of DKK 0.25 each) in
connection with the conversion of such convertible bonds as may be
issued in pursuance of the above authorisation. In the event of there
being a reduction of the conversion price by reason of the terms for
the convertible bonds, the authorisation to increase the capital shall
be augmented by such additional share amount as is necessary because
of the reduction of the conversion price. Notwithstanding the
provisions in Article 7 above, the capital increase may be effected
with no preferential right to subscribe for the existing shareholders.
The specific terms and conditions for subscription, the incurrence of
loans (including the granting of any security therefor), the bonds and
the issuance thereof shall be determined by the Board of Directors,
and the Board's resolution to that effect shall be incorporated into
these Articles.
(4) For capital expansions in pursuance of (1), (2) and (3) above, the
new shares shall have the same rights as the existing shares. The
shares shall be negotiable instruments, shall be issued in the
holder's name, and shall be subject to the same provisions as those
applying to the older shares, cf. Art. 5 and 6 above. Holders of the
new shares shall be entitled to dividends as from such time as the
Board shall determine, although not later than for the financial year
following the adoption of the capital increase or, as the case may be,
the subscription for shares in exchange for warrants.
(5) The Board shall be authorized to undertake such alterations of the
Articles of Association as are required in connection with the
application of the above authorisations and the expansions of capital.
ARTICLE 9.
DIVIDEND
(1) The shares are not provided with coupon sheets. Any dividend on the
shares may be paid by the Company in full and sufficient discharge by
sending it to each shareholder at his address stated in the Company's
authorized Register of Members at the time of the Annual General
Meeting.
(2) The right to dividend shall be time-barred five (5) years after the
date of the relevant General Meeting where the payment of dividend was
approved.
- 6 -
<PAGE> 7
ARTICLE 10.
CANCELLATION
Lost share certificates may be replaced by issuing new share certificates for
the shareholder's account, always provided that he has obtained cancellation in
the lawful manner. Such cancellation may be effected in accordance with the
rules of the Companies Act on cancellation out of court.
GENERAL MEETINGS
ARTICLE 11.
GENERAL MEETING
With the limits provided by the laws and by these Articles of Association the
General Meeting shall be the supreme authority of the Company.
ARTICLE 12.
PLACE OF THE GENERAL MEETING
General Meetings shall be held in Greater Copenhagen.
ARTICLE 13.
ANNUAL GENERAL MEETING
(1) The Annual General Meeting shall be held every year before the end of
May.
(2) The Agenda for the Annual General Meeting shall include:
1) Submitting the Directors' report on the activities of the
Company in the past financial year;
2) presenting the annual accounts with auditors' certificate
and annual report, and the consolidated accounts;
3) resolving on the adoption of the profit & loss account and
the balance, including any decision to discharge the
Management and the Board from their duties;
4) resolving on the application of profits or coverage of
losses as per the adopted accounts;
5) electing Directors;
6) appointing an auditor;
- 7 -
<PAGE> 8
7) possibly resolving on the granting to the Board of an
authority to purchase up to 10% of the Company's own
shares;
8) proposals, if any, from the Board or from shareholders.
ARTICLE 14.
EXTRAORDINARY GENERAL MEETINGS
Extraordinary General Meetings shall be held when a General Meeting or the
Board so resolves, or when requested by the Company's auditor or by
shareholders representing between them one-tenth (1/10) or more of the nominal
value of the total share capital. Such request shall be made in writing to the
Board and shall be accompanied by a formulated proposal for the Agenda. A
General Meeting shall then be convened by the Board within two (2) weeks after
receipt of such request and by the notice set forth in Art. 15 below.
ARTICLE 15.
CONVENING GENERAL MEETINGS
Every General Meeting shall be convened by the Board of Directors subject to
not less than eight (8) days' and not more than four (4) weeks' notice by
letter posted to registered shareholders who have requested to be notified by
mail, and otherwise by such publication as the Board of Directors determines to
be appropriate. Such notice shall contain the Agenda for the meeting. Where
proposals involving alterations of the Articles of Association are to be
considered at the General Meeting, the material contents of such proposals
shall be stated in the notice.
ARTICLE 16.
INSPECTION
The Agenda and the proposals in full, and in the case of the Annual General
Meeting, the annual accounts and consolidated accounts endorsed by the auditor
and the annual report, shall be available at the corporate office not later
than eight (8) days before the date of the General Meeting for inspection by
shareholders entered in the Register of Members and shall at the same time be
sent to every noted shareholder who has so requested or as required by the
NASDAQ Stock Market.
- 8 -
<PAGE> 9
ARTICLE 17.
PROPOSALS FROM SHAREHOLDERS
Proposals from the shareholders for consideration at the Annual General Meeting
must be received by the Company's Board of Directors in writing not later than
one (1) month after the end of the financial year. Proposals from any
shareholder received after the said date may nevertheless be included in the
agenda provided the Board of Directors have received such proposal in writing
in sufficient time to include the proposal in the agenda.
ARTICLE 18.
CHAIRMAN OF THE MEETING
Proceedings at the General Meeting shall be conducted by a chairman of the
meeting appointed by the Board prior to the General Meeting; the chairman need
not be a shareholder. The chairman of the meeting shall settle all matters
concerning the transaction of the business. Voting shall be by ballot (normally
by the use of proxy cards) except where the General Meeting waives such voting
upon the recommendation of the chairman of the meeting.
ARTICLE 19.
MINUTE-BOOK FOR GENERAL MEETINGS
A summary of the proceedings at the General Meeting shall be entered in a
minute-book which shall be signed by the chairman of the meeting and the
Directors present at the General Meeting.
ARTICLE 20.
MAJORITY OF VOTES
All business considered at the General Meeting shall be settled by an ordinary
majority of votes present, except where the Companies Act or these Articles of
Association require a special majority or representation.
Proposals for changes in the Articles of Association that have not been
proposed or have not been endorsed by the Company's Board of Directors may be
adopted by the General Meeting only if more than half of the shares and the
votes have been represented at the General Meeting and if at least
three-fourths (3/4) of the shares and the votes represented at the meeting vote
in favour of the proposal.
Any mitigation of Art. 6 requires the acceptance by at least three-fourths
(3/4) of the votes at the General Meeting unless such proposal has been put
forward by the Board of Directors, in which case the
- 9 -
<PAGE> 10
amendment can be adopted by such majority that in accordance with the Companies
Act's general rules applies to amendments to a company's Articles of
Association, cf. Art. 78 of the Companies Act.
ARTICLE 21.
ACCESS TO THE GENERAL MEETING; VOTING RIGHTS
(1) Any shareholder shall be entitled to attend a General Meeting if he
has requested an admission card not later than five (5) days prior to
the date of such General Meeting. Admission cards shall be issued to
any person listed as shareholder according to the Register of Members.
Admission cards shall be issued against proper identification at the
corporate office or elsewhere as specified in the notice.
(2) However, shareholders who have acquired shares by transfer may
exercise voting rights in respect of the relevant shares only if such
shares have been entered in the Company's Register of Members at the
time at which the General Meeting is noticed, or the shareholder has
notified and documented his acquisition, but the shares acquired shall
be deemed to be represented at the General Meeting (although the
voting right cannot be exercised) if the holding of the shares has
been entered in the Company's Register of Members prior to the General
Meeting, or when the shareholder has notified and documented his
acquisition.
ARTICLE 22.
PROXY
Voting rights may be exercised by a proxy, who need not be a shareholder,
provided always that the said proxy proves his right to attend the General
Meeting by producing an admission card and a dated letter of attorney. Powers
to vote as a proxy shall not be granted for a period exceeding one (1) year at
any one time.
BOARD OF DIRECTORS AND MANAGEMENT
ARTICLE 23.
BOARD OF DIRECTORS
(1) The Company shall be supervised by a Board of Directors ("the Board")
consisting of not less than four (4) and not more than eight (8)
members ("the Directors") elected by the Company in General Meeting.
The election shall be for one (1) year at a time until the end of the
next year's Annual General Meeting. Directors are eligible for
re-election. In addition, the employees of the Company may be
represented on the Board by
- 10 -
<PAGE> 11
Directors elected in accordance with the statutory provisions to that
effect.
(2) The Board and the Management shall be in charge of the running of the
Company's affairs. The Board shall arrange for a sound organisation of
the activities of the Company, the mutual relationship between the
Board and the management being determined by the rules of the
Companies Act.
ARTICLE 24.
CHAIRMAN OF THE BOARD; RULES OF PROCEDURE; MINUTE-BOOK AND COMMITTEES OF THE
BOARD
(1) The Board shall appoint its own chairman and deputy chairman and shall
adopt its own Rules of Procedure for the discharge of its duties. The
Board shall meet as often as is deemed necessary and shall otherwise
be convened at the request of a Director or a manager. A summary of
the proceedings at each meeting shall be entered in a minute-book and
shall be signed by the Directors present. Board meetings may, with the
consent of all board members, be conducted by telephone or through the
use of other electronic media, including video conferences.
(2) The Board may designate one or more committees to monitor specific
types of business on behalf of the Board, including a "Compensation
Committee" and an "Audit Committee". Resolutions made by such
committees must be submitted to the full Board of Directors, who may
reverse such resolutions. The Board shall appoint the chairman, and
may appoint a deputy chairman, of committees and may adopt rules of
procedure for their work. Committees shall convene as often as deemed
necessary.
ARTICLE 25.
QUORUM
The Board shall be competent to transact business when more than one half of
the Directors elected at the General Meetings are present.
ARTICLE 26.
MAJORITY OF VOTES
Resolutions by the Board shall be made by a majority of the Directors
attending. In the event of equality of votes, the chairman shall have the
casting vote.
- 11 -
<PAGE> 12
ARTICLE 27.
MANAGEMENT
The Board shall appoint a Management consisting of not more than five (5)
members to manage the day-to-day business of the Company.
ARTICLE 28.
POWER TO BIND THE COMPANY
(1) The Company shall be bound by the signature(s) of the chairman of the
Board jointly with one manager, or of the total Board of Directors.
(2) The Board may grant sole or collective powers of procuration.
ACCOUNTS AND AUDITING
ARTICLE 29.
FINANCIAL YEAR
The Company's financial year shall be the calendar year.
ARTICLE 30.
ANNUAL ACCOUNTS
The Annual Accounts shall include a profit & loss account and a balance sheet
and shall be stated with due regard to existing assets and commitments and
subject to such depreciations and provisions as are necessary in the opinion of
the Board and according to the Annual Accounts Act.
ARTICLE 31.
AUDITING
The auditing shall be undertaken by one or two chartered accountants appointed
by the Company in General Meeting. The appointment shall be for one (1) year at
a time until the end of the next year's Annual General Meting, where the
auditor(s) may be re-elected. A company or firm of accountants may be appointed
auditor.
---oO0Oo---
Adopted and amended most recently at the Annual General Meeting of the Company
on May 4, 1994.
THE CHAIRMAN OF THE MEETING:
(Eric Korre Horten)
- 12 -
<PAGE> 13
Adopted and amended most recently at the Annual General Meeting of the Company
on May 4, 1995.
THE CHAIRMAN OF THE MEETING:
(Eric Korre Horten)
Adopted and amended most recently at the Annual General Meeting of the Company
on May 8, 1996.
THE CHAIRMAN OF THE MEETING:
/s/ Eric Korre Horten
- ------------------------------
(Eric Korre Horten)
- 13 -
<PAGE> 1
EXHIBIT 5.1
[Advokatfirmaet O. Bondo Svane Letterhead]
April 1, 1997
Olicom A/S
Nybrovej 114
DK-2800 Lyngby
Ladies and Gentlemen:
We have acted as counsel to Olicom A/S, a corporation organized under
the laws of the Kingdom of Denmark (the "Company"), in connection with the
Company's registration statement on Form F-4 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), of the exchange of up
to 3,805,647 common shares in the Company, nominal value DKK 0.25 per share
(the "Shares"), and up to 1,093,285 Warrants to purchase Shares ("Warrants"),
for shares of common stock, par value USD $0.01 per share, in CrossComm
Corporation, a Delaware corporation ("CrossComm"), in connection with the
merger of CrossComm with and into a wholly-owned subsidiary of the Company.
Terms defined in the Registration Statement shall have the same meaning herein
as therein.
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete, and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, and assuming (a) that the Company's Board of
Directors duly approves the issuance of the Shares, the issuance of the
Warrants, and the assumption of the options as described in the Registration
Statement, and (b) that the capital increase in respect of the Shares and
Warrants has been registered by the Danish Commerce and Companies Agency, and
subject to the other assumptions and limitations herein set forth, we are of
the opinion that upon the issuance by the Company of the Shares and Warrants as
described in the Registration Statement, the Shares and the Warrants will be
validly issued, fully paid and nonassessable.
<PAGE> 2
This opinion is limited in all respects to the Companies Act of the
Kingdom of Denmark, and no opinion is expressed with respect to the laws of any
other jurisdiction.
This opinion may be filed as an exhibit to the Registration Statement.
Consent is also given to the reference to this firm as having passed on the
validity of the Shares under the caption "Legal Matters" and to our firm's
advice under the caption "Enforcement of Civil Liabilities" in the Joint Proxy
Statement/Prospectus contained in the Registration Statement. In giving this
consent, we do not admit that we are included in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
Yours sincerely,
Advokatfirmaet O. Bondo Svane
/s/ Eric Korre Horten /s/ Jacob Bier
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<PAGE> 1
EXHIBIT 10.1
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement") is executed as of __________,
1997, between Olicom A/S, a corporation organized under the laws of the Kingdom
of Denmark (the "Company"), and American Stock Transfer & Trust Company, a New
York corporation, as warrant agent (the "Warrant Agent").
The Company, 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
with and into CrossComm, whereby CrossComm shall be a wholly-owned subsidiary
of the Company immediately following the Effective Time (as defined in the
Merger Agreement) (the "Merger").
Pursuant to Section 1.6(b) of the Merger Agreement, the Company
proposes to issue, as part of the Merger Consideration (as defined in Section
1.6(b) of the Merger Agreement), a new issue of Warrants (as defined in Section
1.6(b) of the Merger Agreement), entitling the holders thereof to purchase
shares (the "Warrant Shares") of common stock, nominal value DKK 0.25 per
share, in the Company (the "Common Stock"). The Warrants shall be governed by
the terms and provisions of this Agreement.
The Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the issuance,
registration, registration of transfer, replacement and exchange of warrant
certificates and the exercise of Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth herein, and the Warrant Agent hereby accepts such
appointment, upon the terms and conditions hereinafter set forth.
2. Amount Issued. Subject to the provisions of this
Agreement, _______ Warrants to purchase up to an aggregate of ________ Warrant
Shares may be issued and delivered by the Company hereunder. The Warrants
issued hereunder shall be deemed to have been issued as of the Closing Date (as
defined in Section 1.2 of the Merger Agreement).
3. Form of Warrant Certificate. The certificates evidencing
the Warrants (the "Warrant Certificates") (and the forms of election to
purchase Warrant Shares and of assignment to be printed on the reverse thereof)
shall be substantially in the form set forth in Exhibit A hereto and may have
such letters, numbers or other marks of identification or designation and such
legends, summaries or endorsements printed, lithographed or engraved thereon as
the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
<PAGE> 2
regulation of The Nasdaq Stock Market or any national stock exchange on which
the Warrants may from time to time be listed, or to conform to usage. Each
Warrant Certificate shall be executed on behalf of the Company by the manual or
facsimile signature of the present or any future Managing Director and, to the
extent requested by the Company, other directors of the Company. The Warrant
Certificates shall be dated as of the Closing Date, upon initial issuance by
the Company, and thereafter, upon transfer or exchange, as of the date of
countersignature thereof by the Warrant Agent.
4. Registration and Countersignature.
(a) The Warrant Agent shall maintain books for the
registration, and registration of transfer, of the Warrant
Certificates. The Warrant Certificates shall be countersigned by the
Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Certificates shall be so countersigned,
however, by the Warrant Agent and shall be delivered by the Warrant
Agent, notwithstanding that the persons whose manual or facsimile
signatures appear thereon as proper officers (and directors, to the
extent their signatures thereon are requested by the Company) of the
Company shall have ceased to be such officers (or directors) at the
time of such countersignature or delivery.
(b) Prior to due presentment for registration or transfer
of the Warrant Certificates, the Company and the Warrant Agent shall
deem and treat the registered holder thereof as the absolute owner of
Warrants (notwithstanding any notation of ownership or other writing
on the Warrant Certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof and for
all other purposes and no transfer or exchange will be effective
unless made in accordance with Sections 11 and 12 herein and neither
the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
5. Registration of Transfers and Exchanges. The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificates made in accordance with Sections 11 and 12 herein upon the books
to be maintained by the Warrant Agent for that purpose, upon surrender thereof
to the Company or to the Warrant Agent accompanied (if so required by the
Company or the Warrant Agent) by a written instrument or instruments of
transfer in form satisfactory to the Company and the Warrant Agent, duly
executed by the registered holder or by a duly authorized representative or
attorney, such signature to be guaranteed by an eligible guarantee institution
with a membership in an approved Medallion Signature Guarantee Program, which
institution may be a commercial bank, trust company credit union or savings
association having an office in the United States, a broker or dealer that is a
member of the National Association of Securities Dealers, Inc., a member of a
national securities exchange or such commercial banks or similar institutions
in Denmark as may be designated by the Company (any such entity being an
"Eligible Institution"). In all cases of written requests pursuant to Sections
6 or 12 hereof by an attorney, the original power of attorney, duly approved,
or copy thereof, duly certified and satisfactory to the Warrant Agent, shall be
deposited and remain with the Warrant Agent. In the case of written request by
executors, administrators, guardians or other legal representatives, duly
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<PAGE> 3
authenticated evidence of their authority satisfactory to the Warrant Agent
shall be produced and deposited with the Warrant Agent. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee and the surrendered Warrant Certificate shall be cancelled by the
Warrant Agent. Warrant Certificates so cancelled shall be delivered by the
Warrant Agent to the Company from time to time or otherwise disposed of by the
Warrant Agent in a manner satisfactory to the Company. Warrant Certificates
may be exchanged at the option of the holder thereof when surrendered at the
principal office of the Warrant Agent in New York, New York or the principal
office of the Company in greater Copenhagen, Denmark (in such event the Company
shall forward the Warrant Certificates surrendered and the instruments of
transfer to the Warrant Agent) for another Warrant Certificate or other Warrant
Certificates of like tenor and representing in the aggregate the number of
Warrants evidenced by the Warrant Certificate or Warrant Certificates so
surrendered. The Warrant Agent shall countersign and deliver, in accordance
with the provisions of this Section 5 and of Section 4 hereof, the new Warrant
Certificate or Warrant Certificates required pursuant to the provisions of this
Section 5, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrant Certificates duly executed on behalf of the
Company for such purpose.
6. Duration and Exercise of Warrants.
(a) The Warrants may be exercised at any time or from
time to time after the date hereof and will expire at 5:00 p.m.,
Eastern time, on ______________________________, 2000 (the "Expiration
Date"), at which time all rights evidenced by the Warrants shall cease
and the Warrants shall become void.
(b) Subject to the provisions of this Agreement, the
registered holder of each Warrant shall have the right to purchase
from the Company (and the Company shall issue and sell to such
registered holder) the number of fully paid and nonassessable Warrant
Shares set forth on such holder's Warrant Certificate (or such number
of Warrant Shares as may result from adjustments made from time to
time as provided in Section 14 of this Agreement), at the price of
$19.74 per Warrant Share in lawful money of the United States of
America (such exercise price per Warrant Shares, as adjusted from time
to time as provided in Section 14 herein, being referred to herein as
the "Exercise Price"), upon (i) surrender of the Warrant Certificate
to the Company at the principal office of the Warrant Agent in New
York, New York or the principal office of the Company in greater
Copenhagen, Denmark with the form of exercise election contained
therein duly completed and signed in accordance with Section 5 hereof
by the registered holder or holders thereof or by a duly appointed
legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by an Eligible Institution if the Warrant
Shares are to be issued to a person other than the registered holder
of the Warrants and (ii) payment, in lawful money of the United States
of America by money order or bank draft, of the Exercise Price for the
Warrant Share or Warrant Shares in respect of which such Warrant is
exercised. Subject to Section 8 hereof, upon surrender of a Warrant
Certificate, and payment of the Exercise Price, the Company shall
issue and cause to be registered, countersigned and delivered to or
upon the written order of the registered holder of such Warrant and in
such
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<PAGE> 4
name or names as may duly be designated, a certificate for the Warrant
Shares being issued pursuant to the Warrant then being exercised,
together with cash in respect of any fraction of a Warrant Share
issuable upon such surrender.
(c) Each person in whose name any certificate for Warrant
Shares is issued upon the exercise of Warrants shall for all purposes
be deemed to have become the holder of record of the Common Stock
represented thereby on, and such certificate shall be dated, the date
upon which the Warrant Certificate evidencing such Warrants was duly
surrendered and payment of the Exercise Price (and any applicable
transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Common Stock transfer
books of the Company are closed, such person shall be deemed to have
become the record holder of such Warrant Shares on, and such
certificate shall be dated, the next succeeding business day on which
the Common Stock transfer books of the Company are open (whether
before, on or after the Expiration Date) and until such date the
Company shall be under no duty to deliver any certificate for such
share or shares.
(d) In the event that less than all the Warrants
represented by a Warrant Certificate are exercised by the registered
holder thereof or a duly authorized representative before 5:00 p.m.,
Eastern time, on the Expiration Date, a new Warrant Certificate will
be issued for the remaining number of Warrants exercisable pursuant to
the Warrant Certificate so surrendered, and the Warrant Agent shall
countersign and deliver the required new Warrant Certificate pursuant
to the provisions of this Section 6 and of Section 4 hereof and the
Company, whenever required by the Warrant Agent, shall deliver to the
Warrant Agent a Warrant Certificate duly executed on behalf of the
Company for such purpose.
(e) The number of Warrant Shares to be received upon
exercise of a Warrant and the price to be paid for a Warrant Share are
subject to adjustment from time to time as hereinafter set forth in
Section 14.
7. Fractional Interests. The Company shall not be required to
issue any Warrant Certificate evidencing a fraction of a Warrant or to issue
fractions of shares of securities on the exercise of the Warrants. If any
fraction (calculated to the nearest one-hundredth) of a Warrant or a share of
securities would, except for the provisions of this Section, be issuable on the
exercise of any Warrant, the Company shall, at its option, either purchase such
fraction for an amount in cash equal to the current value of such fraction
computed on the basis of the closing market price (as quoted on The Nasdaq
Stock Market) on the trading day immediately preceding the day upon which such
Warrant Certificate was surrendered for exercise in accordance with Section 6
hereof or issue the required Warrant or share. By accepting a Warrant
Certificate, the holder thereof expressly waives any right to receive a Warrant
Certificate evidencing any fraction of a Warrant or to receive any fractional
share of securities upon exercise of a Warrant, except as expressly provided in
this Section 7.
8. Payment of Taxes. The Company shall pay all documentary
stamp, transfer taxes and other taxes attributable to the original issuance of
the Warrants and of the Warrant Shares upon
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<PAGE> 5
the exercise of Warrants; provided, however, that the Company shall not be
required to (a) pay any tax which may be payable in respect of any transfer or
delivery of Warrant Certificates or the issuance or delivery of certificates
for shares of Common Stock in a name other than that of the registered holder
of the Warrant Certificate upon the exercise of a Warrant or (b) issue or
deliver any certificate for Warrant Shares upon the exercise of any Warrants
until any such tax required to be paid under clause (a) shall have been paid,
all such tax being payable by the holder of such Warrant at the time of
surrender.
9. Mutilated or Missing Warrant Certificates. In case any
Warrant Certificate shall be mutilated, lost, stolen or destroyed, upon
cancellation of the mutilated, lost, stolen or destroyed Warrant Certificate,
the Company shall issue, and the Warrant Agent shall countersign and deliver in
exchange and substitution for the mutilated, lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor and evidencing the number
of Warrant Shares purchasable upon exercise of the Warrant Certificate so
mutilated, lost, stolen or destroyed, but only upon receipt of evidence
satisfactory to the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and an indemnity, if requested, also satisfactory to it.
Applicants for any such substitute Warrant Certificate shall also comply with
such other reasonable requirements and pay such other reasonable charges as the
Company or the Warrant Agent may prescribe, including the posting of a
customary bond. Any such new Warrant Certificate shall constitute an original
contractual obligation of the Company, whether or not the allegedly mutilated,
lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone.
10. Reservation of Shares; Stock Certificates. The Company
covenants and agrees that it shall at all times through the Expiration Date
reserve or cause to be reserved for issuance and delivery upon exercise of the
Warrants, a sufficient number of shares of Common Stock or other securities of
the Company from time to time issuable upon exercise of the Warrants. The
Company covenants and agrees that it shall take all such action as may be
necessary to ensure that all such shares shall be duly authorized and, when
issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all preemptive
rights. The Company will keep a copy of this Agreement on file with its
transfer agent, American Stock Transfer & Trust Company, or any successor
thereto (the "Transfer Agent"). The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent
certificates issuable upon exercise of outstanding Warrants. The Company will
supply such Transfer Agent with duly executed certificates for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled by the Warrant Agent and shall thereafter be delivered to the Company
or otherwise disposed of in a manner satisfactory to the Company. Unless all
Warrants shall have been exercised prior to 5:00 p.m. Eastern time, on the
Expiration Date, the Warrant Agent shall certify to the Company, as of the
close of business on the Expiration Date, the total aggregate amount of
Warrants then outstanding, and thereafter no shares of Common Stock shall be
subject to reservation in respect of such Warrants.
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<PAGE> 6
11. Transfer and Registration of Warrants and Warrant Shares.
(a) The Warrants and the Warrant Shares, and any interest
in either, may be sold, assigned, pledged, encumbered or in any other
manner transferred or disposed of, in whole or in part, only in
accordance with Section 12 hereof and in compliance with applicable
United States federal and state securities laws and the terms and
conditions hereof.
(b) The Warrants and the Warrant Shares have been
registered under the Securities Act of 1933, as amended, pursuant to a
registration statement on Form F-4 (Registration No. __________) which
was declared effective by the Securities and Exchange Commission (the
"SEC") on __________, 1997. The Company will use its reasonable best
efforts to keep such registration statement in effect in accordance
with applicable federal securities laws through the Expiration Date or
until such earlier time as no Warrants remain outstanding. The
Company covenants and agrees:
(i) to prepare and file with the SEC such
amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective in
accordance with applicable federal securities laws through
the Expiration Date or until such earlier time as no
Warrants remain outstanding and to use its reasonable best
efforts to keep such registration statement effective
during such period;
(ii) as expeditiously as possible, to use its
reasonable best efforts to register or qualify the
Warrants, and to register or qualify the Warrant Shares,
under the securities or Blue Sky laws of each jurisdiction
in which such registration or qualification is necessary;
and
(iii) to pay all expenses incurred by the Company
in complying with this Section 11(b), including, without
limitation, (A) all registration and filing fees, (B) all
printing expenses, (C) all fees and disbursements of
counsel and independent public accountants for the Company,
(D) all Blue Sky fees and expenses (including fees and
expenses of counsel in connection with any Blue Sky
surveys), and the entire expense of any special audits
incident to or required by any such registration.
12. Exchange, Transfer or Assignment of Warrants.
(a) The Warrants may be exchanged or transferred, at the
option of the holder, upon presentation and surrender of Warrant
Certificates to the Warrant Agent or to the Company, for other Warrant
Certificates of different denominations, entitling the holder or
holders thereof to purchase in the aggregate the same number of
Warrant Shares. Subject to the preceding sentence, a Warrant
Certificate may be divided or combined with other Warrant Certificates
that carry the same rights upon presentation thereof at the office of
the Warrant Agent or the Company, together with written notice
specifying the names and
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<PAGE> 7
denominations in which new Warrant Certificates are to be issued and
signed by the holder thereof in accordance with Section 5 hereof.
(b) The Warrants may be assigned or transferred, at the
option of the holder, upon surrender of Warrant Certificates to the
Warrant Agent or to the Company, with the form of warrant assignment
contained therein duly executed in accordance with Section 5 hereof
and accompanied by funds sufficient to pay any transfer tax. The
Warrant Agent shall execute and deliver a new Warrant Certificate or
Certificates in the name of the assignee or assignees named in such
instrument of assignment and, if the holder's entire interest in the
Warrants is not being transferred or assigned, in the name of the
holder, and the Warrant Certificate surrendered shall promptly be
cancelled.
(c) Any transfer, exchange or assignment of the Warrants
shall be without charge (other than the cost of any transfer tax to be
paid by the holder pursuant to Section 8 hereof) to the holder and any
new Warrant Certificates issued pursuant to this Section 12 shall be
dated the date such new Warrant Certificate is issued.
13. Rights of Warrant Holder. The holder of any Warrant shall
not, by virtue thereof, be entitled to any rights of a shareholder in the
Company, either at law or in equity, and the rights of the holder are limited
to those expressed in this Agreement.
14. Antidilution Provisions. The Exercise Price and the number
of Warrant Shares that may be purchased upon the exercise of a Warrant and the
number of Warrants outstanding will be subject to change or adjustment as
follows:
(a) Stock Dividends, Stock Splits and Reverse Stock
Splits and Combinations. If at any time after the date of the
issuance of the Warrants and before 5:00 p.m., Eastern time, on the
Expiration Date, (i) the Company shall fix a record date for the
issuance of any stock dividend payable in shares of capital stock of
the Company or (ii) the number of shares of Common Stock shall have
been increased by a subdivision or stock split of shares of Common
Stock or decreased by a reverse stock split or combination of shares
of Common Stock, then, on the record date fixed for the determination
of holders of Common Stock entitled to receive such dividend or
immediately after the effective date of such subdivision, stock split,
reverse stock split or combination, as the case may be, the number of
Warrant Shares to be delivered upon exercise of any Warrant will be
appropriately increased or decreased, as the case may be, so that each
holder of a Warrant thereafter will be entitled to receive the number
of shares of Common Stock that such holder would have owned or have
been entitled to receive immediately following such action had the
Warrant been exercised immediately prior thereto, and the Exercise
Price will be appropriately adjusted. The time of occurrence of any
event giving rise to an adjustment made pursuant to this Section 14(a)
shall, in the case of a subdivision, stock split, reverse stock split
or combination, be the effective date thereof and shall, in the case
of a dividend or distribution, be the record date thereof.
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<PAGE> 8
(b) Reorganization, Reclassification, Etc. If any
capital reorganization of the Company, or any reclassification of the
Common Stock, or any consolidation of the Company with or merger of
the Company with or into any other corporation or any sale, lease or
other transfer of all or substantially all of the assets of the
Company to any other entity (including any individual, partnership,
joint venture, corporation, trust or group thereof), shall be effected
in such a way that the holders of the Common Stock shall be entitled
to receive stock, securities or assets with respect to or in exchange
for Common Stock, then, upon exercise of the Warrants in accordance
with the terms of this Agreement and the Warrant Certificates, each
holder shall have the right to receive the kind and amount of stock,
securities or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale, lease or other
transfer by a holder of the number of shares of Common Stock that such
holder would have owned or would have been entitled to receive upon
exercise of the Warrants had the Warrants been exercised immediately
before such reorganization, reclassification, consolidation, merger or
sale, lease or other transfer, subject to adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided
for in this Section 14.
(c) Special Distributions. If at any time after the date
of issuance of the Warrants and before 5:00 p.m., Eastern time, on the
Expiration Date the Company shall, to or for the account or benefit of
the holders of the outstanding shares of Common Stock, make any
distribution, payment or transfer of any asset, property or security
(but excluding those described in Section 14(a) or (b) hereof and any
cash distributions made as a dividend which in any fiscal year in the
aggregate are less than net earnings from continuing operations for
the previous fiscal year or dividends which are consistent with past
practice) of the Company or any of its subsidiaries, and thereafter,
successively upon each such distribution or issuance, the Exercise
Price in effect immediately prior to such distribution or issuance
shall forthwith be reduced to a price determined by multiplying the
Exercise Price in effect immediately prior to such distribution or
issuance by a fraction (i) the numerator of which shall be the Closing
Price (as defined in Section 14(d) hereof) per share of Common Stock
at the record date for the determination of shareholders entitled to
receive such distribution or issuance, less the then fair market value
(as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of such
distribution applicable to one share of Common Stock and (ii) the
denominator of which shall be the Closing Price per share of Common
Stock at such record date. An adjustment made pursuant to this
Section 14(c) shall become effective retroactively to the time
immediately after the record date for the determination of
shareholders entitled to receive such distribution or issuance.
(d) Definition of Closing Price. For the purposes of
this Agreement, "Closing Price" means the closing price per share of
the Common Stock on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or,
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<PAGE> 9
if not listed or traded on any such exchange, on The Nasdaq Stock
Market or such other over-the-counter quotations system on which such
shares of Common Stock are traded or, if not listed or traded on any
such exchange or system, the fair market value as reasonably
determined by the Board of Directors of the Company or any committee
of such Board.
(e) Definition of Common Stock. Unless the context
requires otherwise, all references to Common Stock and Warrant Shares
in this Agreement and in the Warrant Certificates shall, in the event
of an adjustment pursuant to this Section 14, be deemed to refer also
to any other securities or property then issuable upon exercise of the
Warrants as a result of such adjustment. In the event that at any
time, as a result of an adjustment made pursuant to this Section 14,
securities other than shares of Common Stock are issuable upon
exercise of the Warrants, thereafter the number of such other shares
so issuable shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in this Section
14, and all other provisions of this Agreement with respect to Common
Stock shall apply on like terms to any such other shares.
(f) Threshold Requirement. No adjustment in the Exercise
Price or in the number of Warrant Shares purchasable hereunder shall
be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in such Exercise Price or in the
number of Warrant Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of
this Section 14(f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 14 shall be made to the nearest cent
and to the nearest one-thousandth of a Warrant Share, as the case may
be.
(g) Voluntary Adjustment by the Company. The Company may
at its option, at any time during the term of the Warrants, reduce the
then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company or extend
the Expiration Date of the Warrants.
(h) Readjustments. If an adjustment is made under
paragraph (a), (b), or (c) above, and the event to which the
adjustment relates does not occur, then any adjustments in the
Exercise Price payable or number of Warrant Shares issuable that were
made in accordance with such paragraphs shall be adjusted back to the
Exercise Price and the number of Warrants that were in effect
immediately prior to the effective date thereof or the record date for
such event, as the case may be.
15. Officer's Certificate. Whenever the number of Warrant
Shares that may be purchased upon exercise of the Warrants is adjusted as
required by the provisions of this Agreement, the Company will forthwith file
in the custody of its executive officers at its principal office and with the
Warrant Agent an officer's certificate showing the adjusted number of Warrant
Shares that may be purchased upon exercise of the Warrants and the adjusted
Exercise Price, determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustments and the manner of computing such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the registered holder of the Warrants.
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<PAGE> 10
16. Notice of Certain Events. Upon any adjustment of the
Exercise Price pursuant to Section 14, the Company shall promptly, but in any
event within 20 days thereafter, cause to be mailed to the registered holders
of the Warrants, a certificate setting forth the Exercise Price as so adjusted
and the number of Warrant Shares issuable upon the exercise of each Warrant as
so adjusted and describing in reasonable detail the facts accounting for such
adjustment and the method of calculation used. Where appropriate, such
certificate may be given in advance and included as part of the notice required
to be mailed under the other provisions of this Section 16.
At any time during the period commencing on the date of this Agreement
and ending on the Expiration Date, in the event:
(a) the Company authorizes the issuance of rights or
warrants to subscribe for or purchase shares of Common Stock or any
other subscription rights or warrants to all holders of Common Stock;
(b) there shall be an adjustment to the Warrants pursuant
to Section 14(b) or 14(c) herein; or
(c) of the voluntary or involuntary dissolution, partial
dissolution, liquidation or winding-up of the Company,
then the Company will cause to be mailed to the registered holders of the
Warrants, at least 20 days before the applicable record or effective date
hereinafter specified, a notice stating (a) the date as of which the holders of
Common Stock of record entitled to receive any such rights, warrants or
distributions are to be determined or (b) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and (c) the date as of which it is
expected that holders of Common Stock of record will be entitled to exchange
their shares of Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up.
Notwithstanding the foregoing, failure to give notice as required by
this Agreement, shall not affect the validity of the underlying corporate
action taken.
17. Listing on Securities Exchanges; Reservation of Shares.
(a) The Company shall use its best efforts to cause all
shares of the Common Stock from time to time issuable upon the
exercise of the Warrants to be listed on a national securities
exchange or The Nasdaq Stock Market, or such other over-the-counter
quotation system on which any Common Stock may at any time be listed,
and shall use its best efforts to maintain such listing so long as any
other shares of Common Stock are so listed; and the Company shall use
its best efforts to so list on a national securities exchange or The
Nasdaq Stock Market, or such other over-the-counter quotation system,
and shall use its best efforts to maintain such listing of, any other
shares of capital stock of the Company issuable upon
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<PAGE> 11
the exercise of the Warrants if and so long as any shares of capital
stock of the same class are listed on such national securities
exchange or are traded on The Nasdaq Stock Market or such
over-the-counter quotation system. Any such listing or quotation will
be at the Company's expense.
(b) The Company will use its best efforts to cause the
Warrants to be listed on a national securities exchange or The Nasdaq
Stock Market, or such other over-the-counter quotation system on which
any Common Stock may at any time be listed. Any such listing or
quotation will be at the Company's expense.
18. Availability of Information. The Company shall comply with
all applicable public information reporting requirements of the SEC to which it
may from time to time be subject.
19. Right of Action. All rights of action in respect to this
Agreement are vested in the respective registered holders of the Warrant
Certificates; and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of any other holder of a Warrant Certificate,
may, in his own behalf for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, his right to exercise the Warrants
evidenced by such Warrant Certificate, for the purchase of shares of the Common
Stock in the manner provided in the Warrant Certificate and in this Agreement.
20. Agreement of Holders of Warrant Certificates. Every holder
of a Warrant Certificate by accepting the same consents and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate
that:
(a) The Warrant Certificates are transferrable on the
registry books of the Warrant Agent only upon the terms and conditions
set forth in this Agreement; and
(b) The Company and the Warrant Agent may deem and treat
the person in whose name the Warrant Certificate is registered as the
absolute owner of the Warrant (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the
Company or the Warrant Agent) for all purposes whatever and neither
the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
21. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of
the same except such as describe the Warrant Agent or action taken or
to be taken by it. The Warrant Agent assumes no responsibility with
respect to the delivery of Warrant Certificates except as herein
otherwise provided.
- 11 -
<PAGE> 12
(b) The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants contained
in this Agreement or in the Warrant Certificates to be complied with
by the Company.
(c) The Warrant Agent may consult at any time with
counsel satisfactory to it (who may be counsel for the Company), and
the Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel, provided
the Warrant Agent shall have exercised reasonable care in the
selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant for any
action taken in good faith reliance on any notice, resolution, waiver,
consent, order, certificate or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or
presented by the party or parties.
(e) The Company agrees (i) to pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent
in the execution of this Agreement, (ii) to reimburse the Warrant
Agent for all expenses, taxes and governmental charges and other
charges of any kind and nature incurred by the Warrant Agent in the
execution of this Agreement (other than taxes measured by the Warrant
Agent's net income), and (iii) upon request, to advance to the Warrant
Agent funds to pay cash in lieu of fractional shares of Common Stock
issuable upon exercise of Warrants. The Company also agrees to
indemnify Warrant Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred by Warrant Agent, for anything
done or omitted by Warrant Agent, without negligence or misconduct on
the part of Warrant Agent, in connection with the acceptance and
administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which may
be incurred. All rights of action under this Agreement or under any
of the Warrants may be enforced by the Warrant Agent without the
possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall
be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the registered holders of the
Warrants, as their respective rights or interest may appear.
(g) The Warrant Agent and any stockholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
- 12 -
<PAGE> 13
interested, or contract with or lend money to or otherwise act as
fully and freely as though it were not the Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal
entity.
(h) The Warrant Agent shall act hereunder solely as
agent, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except
for its own negligence, bad faith or willful misconduct.
22. Merger, Consolidation or Change of Name of Warrant Agent.
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Warrant Agent, shall be the successor to
the Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent
under the provisions of Section 23 hereof. If at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, and if
at that time any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the predecessor Warrant Agent and deliver such Warrant
Certificates so countersigned; and if at that time any of the Warrant
Certificates shall not have been countersigned, any successor to the Warrant
Agent may countersign such Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in
all such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so countersigned; and if at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have
the full force and effect provided in the Warrant Certificates and in this
Agreement.
23. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice in writing and
sent, postage prepaid, by first class mail to each registered holder of a
Warrant at such holder's address appearing in the Warrant Register, specifying
a date when such resignation shall take effect, which notice shall be sent at
least two weeks prior to the date so specified. Additionally, the Company may
remove and discharge the Warrant Agent from its duties under this Agreement by
giving to the Warrant Agent notice in writing, and to the holders of the
Warrants notice in writing and sent in the manner set forth in the immediately
preceding sentence, specifying a date when such removal shall take effect,
which notice shall be sent at least two weeks prior to the date of removal. If
the Warrant Agent shall resign or be removed, or otherwise become
- 13 -
<PAGE> 14
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Warrant Agent or of its property shall be appointed or any public
official shall take charge or control of the Warrant Agent or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, the
Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after it has notified
the Warrant Agent of such removal or has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
the registered holder of a Warrant (who shall, with such notice, submit such
holder's Warrant Certificate for inspection by the Company), then the
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent.
Notwithstanding any provision to the contrary contained herein, the removal or
resignation of the Warrant Agent will be effective upon the expiration of the
applicable notice period, and in the event a successor has not then been
appointed, the Company shall assume the role of Warrant Agent until such time
as a successor Warrant Agent has been appointed in accordance with the terms of
this Agreement. Any successor Warrant Agent shall be (a) a corporation
organized and doing business under the laws of the United States or of any
state thereof, in good standing, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which has at the time of its
appointment as Warrant Agent a combined capital surplus of at least ten million
dollars ($10,000,000) or (b) an affiliate of a corporation described in clause
(a) of this sentence. The Company shall cause written notice to be delivered
to the registered holders of Warrants notifying such holders of the name and
address of any successor Warrant Agent. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary
for the purpose. Failure to give any notice provided for in this Section 23,
however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Warrant Agent or the appointment of the
successor Warrant Agent, as the case may be.
24. Identity of Transfer Agent. Forthwith upon the appointment
after the date hereof of any subsequent Transfer Agent for shares of the Common
Stock, the Company will file with the Warrant Agent a statement setting forth
the name and address of such Transfer Agent.
25. Successors. All covenants and provisions of this Agreement
by or for the benefit of the Company, the Warrant Agent or the holders of the
Warrants shall bind and inure to the benefit of their respective successors,
assigns, heirs and personal representatives. This Agreement and the covenants
contained herein shall not be assigned by operation of law or otherwise except
as otherwise specifically provided.
26. Termination. This Agreement shall terminate at 5:00 p.m.,
Eastern time, on the Expiration Date or such earlier date upon which all
Warrants have been exercised or redeemed, except that the Warrant Agent shall
account to the Company for all cash held by it at 5:00 p.m., Eastern time, on
such Expiration Date.
- 14 -
<PAGE> 15
27. Governing Law. This Agreement and each Warrant Certificate
shall be governed by and construed in accordance with the laws of the State of
Delaware (without regard to principles of conflicts of law); provided, however,
that matters affecting the validity of corporate action taken by Olicom shall
be governed by the laws of the Kingdom of Denmark. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction of any court located within
the State of Delaware in connection with any matter based upon or arising out
of this Agreement or the matters contemplated herein, agrees that process may
be served upon them in any manner authorized by the laws of the State of
Delaware for such persons and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction and such
process.
28. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same agreement.
29. Headings. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
30. Amendments. This Agreement may be amended by the written
consent of the Company and the affirmative vote or the written consent of
holders holding not less than two-thirds in interest of the then outstanding
Warrants; provided, however, that, except as expressly provided herein, this
Agreement may not be amended to change (a) the Exercise Price, (b) the period
during which the Warrants may be exercised, (c) the number or type of
securities to be issued upon the exercise of the Warrants, or (d) the
provisions of this Section 30, without the consent of each holder of the
Warrants. Notwithstanding the foregoing, the Company and the Warrant Agent may
from time to time supplement or amend this Agreement, without the approval of
any holder of Warrants, in order to cure any ambiguity or to correct or
supplement any provision contained in the Agreement which may be defective or
inconsistent with any other provision in this Agreement, or to make any other
provisions in regard to matters or questions arising under this Agreement which
the Company and the Warrant Agent may deem necessary or desirable and which
shall not be inconsistent with the provisions of the Warrants and which shall
not adversely affect the interests of the holders of Warrants.
31. Issuance of New Warrant Certificates. Notwithstanding any
of the provisions of this Agreement or the several Warrant Certificates to the
contrary, the Company may, at its option, issue new Warrant Certificates in
such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Exercise Price or the number or kind of shares
purchasable under the several Warrant Certificates made in accordance with the
provisions of this Agreement.
32. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
nationally recognized overnight delivery service, or sent via facsimile (with
confirmation of receipt) to the parties at the following address (or at such
other address for a party as shall be specified by like notice):
- 15 -
<PAGE> 16
If to the Company, to:
Olicom A/S
Nybrovej 114
DK-2800 Lyngby
Attn: Managing Director
Facsimile No.: +45 45 27 0129
Telephone No.: +45 45 27 0000
with a copy to:
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
2200 Ross Avenue, Suite 900
Dallas, Texas 75201
Attn: Lawrence D. Ginsburg, Esq.
Facsimile No.: (214) 220-4899
Telephone No.: (214) 220-4438
If to the Warrant Agent, to:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
Attention: George Karfunkel
Facsimile No.: (718) 236-4588
Telephone No.: (718) 921-8200
Notices by personal delivery or via nationally recognized overnight delivery
service shall be effective upon receipt. Telecopied notices shall be effective
on the date of receipt if received by 5:00 p.m. local time where received, and
on the next business day if received thereafter.
33. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation, other than the
Company, the Warrant Agent and the registered holders of the Warrants, any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrants.
34. 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 shall 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,
- 16 -
<PAGE> 17
to the greatest extent possible, the economic, business and other purposes of
such void or unenforceable provision.
35. Remedies Cumulative. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
shall not preclude the exercise of any other remedy.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the first date written above.
OLICOM A/S
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
- 17 -
<PAGE> 18
EXHIBIT A
__________________
No. of Warrant Shares
FORM OF WARRANT CERTIFICATE
NO. W-__
VOID AFTER ___________, 2000
WARRANT CERTIFICATE
FOR PURCHASE OF COMMON SHARES
OLICOM A/S
This certifies that FOR VALUE RECEIVED, _______________ is the
registered holder (the "Registered Holder") of a Warrant (the "Warrant") to
purchase the shares of common stock, nominal value DKK 0.25 per share (the
"Common Stock"), of Olicom A/S, a corporation organized under the laws of the
Kingdom of Denmark (the "Company"), specified above. This Warrant entitles the
Registered Holder, but only subject to the terms and conditions set forth
herein and in the Warrant Agreement (as hereinafter defined), to purchase the
number of fully paid and nonassessable shares (each a "Warrant Share") of
Common Stock indicated above at any time after issuance through the Expiration
Date (as hereinafter defined), upon presentation and surrender of this Warrant
Certificate and the form on the reverse hereof duly executed at the principal
office of American Stock Transfer & Trust Company, as warrant agent, or its
successor (the "Warrant Agent"), accompanied by payment of $19.74 per share of
Common Stock (the "Exercise Price") to be purchased hereunder in lawful money
of the United States of America by money order or certified or official bank
check made payable to the Company.
This Warrant Certificate and each Warrant represented hereby are
issued pursuant to, and are subject in all respects to the terms and conditions
set forth in, the Warrant Agreement, dated ______________, 1997 (the "Warrant
Agreement"), by and between the Company and the Warrant Agent.
Prior to the Expiration Date, upon the occurrence of certain events
provided for in the Warrant Agreement, the Exercise Price or the number of
shares of Common Stock subject to purchase upon the exercise of each Warrant
represented hereby are subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder. In the case of the exercise of less than all of the
Warrants represented hereby, the Company shall
A-1
<PAGE> 19
cancel this Warrant Certificate upon the surrender hereof and shall execute and
deliver a new Warrant Certificate or Warrant Certificates, which the Warrant
Agent shall countersign, for the balance of such Warrants.
The "Expiration Date" shall mean ______________, 2000, or such earlier
date as all of the Warrants shall be exercised or redeemed. No Warrant may be
exercised after the 5:00 p.m., Eastern time, on the Expiration Date, and all
rights of the registered holders of the Warrants shall cease after 5:00 p.m.,
Eastern time, on the Expiration Date.
This Warrant Certificate is exchangeable upon surrender hereof by the
Registered Holder at the principal office of the Warrant Agent in New York, New
York, or the principal office of the Company in greater Copenhagen, Denmark,
for another Warrant Certificate or Warrant Certificates of like tenor and
representing in the aggregate the number of Warrants evidenced by the Warrant
Certificate or Warrant Certificates so surrendered.
Prior to due presentment for registration or transfer of this Warrant
Certificate, the Company and the Warrant Agent shall deem and treat the
Registered Holder hereof as the absolute owner of Warrants (notwithstanding any
notation of ownership or other writing on the Warrant Certificate made by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof and for all other purposes, and no transfer or exchange will
be effective unless made in accordance with Sections 11 and 12 of the Warrant
Agreement, and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be signed by its duly authorized officers and has caused its corporate seal to
be affixed hereunto.
Dated: , 1997
------------------
OLICOM A/S
By:
------------------------------------
Its:
------------------------------------
A-2
<PAGE> 20
COUNTERSIGNED:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as warrant agent
By:_________________________________
Name: _____________________________
Authorized Office
FORM TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO EXERCISE
WARRANTS
The undersigned Registered Holder hereby irrevocably elects to
exercise Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________
and be delivered to
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
and if such number of exercised Warrants shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such Warrants be registered in the name of, and delivered to the
Registered Holder at the address stated below.
A-3
<PAGE> 21
Dated: ___________________ X ________________________________________
(Signature of Registered Holder)
__________________________________________
--------------------
__________________________________________
--------------------
__________________________________________
--------------------
(Please print or type name and address of
registered holder)
Signature Guarantee Stamp Required Here
if Securities are to be Delivered to a
Person Other Than Registered Holder
ASSIGNMENT
TO BE EXECUTED BY THE REGISTERED HOLDER
IN ORDER TO ASSIGN WARRANTS
FOR VALUE RECEIVED,_________________________ hereby sells, assigns and
transfers unto _______________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE
____________________________
(Please print or type name and address)
_______________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitutes and appoints
___________________________, Attorney, to transfer the Warrant Certificate on
the books of the Company, with full power of substitution in the premises.
A-4
<PAGE> 22
Dated: X____________________________________
--------------------------
(Signature of Registered Holder)
Signature Guarantee Stamp Required Here
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND ALL REQUIRED
SIGNATURE GUARANTEES MUST BE PROVIDED BY A MEMBER OF THE MEDALLION STAMP
PROGRAM.
A-5
<PAGE> 1
EXHIBIT 10.2
AFFILIATE'S AGREEMENT
March 20, 1997
Olicom A/S
Nybrovej 114
DK-2800 Lyngby
Denmark
Dear Sirs:
An Agreement and Plan of Reorganization (the "Merger Agreement") dated
as of March 20, 1997, has been entered into by and among Olicom A/S, a
corporation organized under the laws of the Kingdom of Denmark ("Olicom"), PW
Acquisition Corporation, a Delaware corporation ("MergerSub"), and CrossComm
Corporation, a Delaware corporation ("CrossComm"). The Merger Agreement
provides for the merger of MergerSub with and into CrossComm (the "Merger").
In accordance with the Merger Agreement, shares of CrossComm Common Stock (as
defined in the Merger Agreement) owned by me at the Effective Time (as defined
in the Merger Agreement) shall be exchanged for the Merger Consideration (as
defined in the Merger Agreement) consisting in part of common stock, nominal
value DKK 0.25 per share, of Olicom ("Olicom Common Stock") and Warrants (as
defined in the Merger Agreement), all as described in the Merger Agreement.
I have been advised that as of the date of this Agreement I 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
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
In consideration of the mutual agreements, provisions and covenants
set forth in the Merger Agreement and in this Letter Agreement, and after such
consultation with counsel as I deemed necessary or appropriate, I represent,
warrant and covenant to Olicom that:
1. Rule 145. I will not offer, sell, pledge, transfer or
otherwise dispose of any of the shares of Olicom Common Stock, any Warrants or
any Warrant Shares (as defined in the Merger Agreement) issued to me in the
Merger unless at such time either: (i) such transaction shall be permitted
pursuant to the provisions of Rule 145 under the Securities Act, (ii) I 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 offer, sale, pledge, transfer or other
disposition; (iii) a registration statement under the Securities Act covering
the proposed offer, sale, pledge, transfer or other disposition shall be
effective under the Securities Act; or (iv) I am a partnership and such
transaction is a pro rata distribution to my partners (and if my partners are
partnerships or closely-held corporations, they may in turn make pro rata
distributions to their partners/stockholders), provided that each such
transferee agrees that such securities remain subject to the restrictions
specified in this paragraph.
<PAGE> 2
Olicom A/S
March 20, 1997
Page 2
2. Legends.
(a) I understand that all certificates representing the
CrossComm Common Stock, Warrants and Warrant Shares deliverable to me pursuant
to the Merger shall bear a legend substantially as follows:
"The securities represented by this certificate may not be offered,
sold, pledged, transferred or otherwise disposed of except in
accordance with the requirements of the Securities Act of 1933 and the
other conditions specified in the Affiliate's Agreement dated as of
March 20, 1997, between the holder of this certificate and Olicom, a
copy of which agreement may be inspected by the holder of the
certificate at the principal offices of Olicom or furnished by Olicom
to the holder of this certificate upon written request and without
charge."
(b) I understand that unless the transfer by me of shares of
Olicom Common Stock, Warrants and Warrant Shares has been registered under the
Securities Act or is a sale made in conformity with the provisions of Rule 145,
Olicom reserves the right to place the following legend on the certificates
issued to my transferee:
"The securities represented by this certificate were acquired from a
person who received such securities in a transaction to which Rule 145
promulgated under the Securities Act of 1933 applies. The securities
have been acquired by the holder not with a view to, or for resale in
connection with, any distribution thereof within the meaning of
Securities Act of 1933 and may not be sold, pledged or otherwise
transferred except in accordance with an exemption from the
registration requirements of the Securities Act of 1933."
It is understood and agreed that the legends set forth in paragraphs
(a) and (b) above shall be removed by delivery of substitute certificates
without such legend if I shall have delivered to Olicom a copy of a letter from
the staff of the Commission, or an opinion of counsel in form and substance
reasonably satisfactory to Olicom, to the effect that such legend is not
required for purposes of the Securities Act.
Olicom, in its discretion, may cause stop transfer orders to be placed
with its transfer agent with respect to the certificates for the shares of
Olicom Common Stock, Warrants and Warrant Shares which are required to bear the
foregoing legend.
(c) The restrictions in paragraph 2 shall no longer apply
and the legends set forth in this paragraph shall not apply after such time as
Rule 145(d), by its terms, is no longer applicable
<PAGE> 3
Olicom A/S
March 20, 1997
Page 3
to the shares of Olicom Common Stock, Warrants and Warrant Shares delivered
pursuant to the Merger, as the case may be.
3. Miscellaneous.
(a) This Affiliate's Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to principles of conflicts of law.
(b) This Affiliate's Agreement shall be binding on my
successors and assigns, including my heirs, executors and administrators.
I have carefully read this Affiliate's Agreement and discussed its
requirements, and other applicable limitations upon my ability to sell,
transfer or otherwise dispose of shares of Olicom Common Stock, Warrants and
Warrant Shares to the extent I believed necessary, with my counsel or counsel
for CrossComm.
Very truly yours,
------------------------------------------
Signature
Print Name
ACCEPTED:
OLICOM A/S
By: _________________________
Its: _________________________
DATE: March __, 1997
<PAGE> 1
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 Tadeusz Witkowicz (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
<PAGE> 2
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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<PAGE> 3
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 Montgomery Securities, Merrill Lynch & Co. or Alex. Brown & 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
- 3 -
<PAGE> 4
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
DK-2800 Lyngby
Denmark
- 4 -
<PAGE> 5
Copy to:
Lawrence D. Ginsburg
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
2200 Ross Avenue, Suite 900
Dallas, TX 75201-2774
If to the Stockholder:
Tadeusz Witkowicz
90 Prescott Street
West Boylston, Massachusetts 01593
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.
- 5 -
<PAGE> 6
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.
[The balance of this page is left blank intentionally]
- 6 -
<PAGE> 7
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 Stig Nielsen
------------------------------
Lars Stig Nielsen,
Managing Director
/s/Tadeusz Witkowicz
------------------------------
Tadeusz Witkowicz
- 7 -
<PAGE> 1
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 Stig Nielsen (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
<PAGE> 2
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.
- 2 -
<PAGE> 3
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
450 Donald Lynch Boulevard
Marlborough, Massachusetts 01752-4728
Copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attn: Philip P. Rossetti, Esq.
Richard N. Kimball, Esq.
If to the Stockholder:
Lars Stig Nielsen
Nybrovej 114
DK-2800 Lyngby
Denmark
Copy to:
Lawrence D. Ginsburg
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
2200 Ross Avenue, Suite 900
Dallas, Texas 75201
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
- 3 -
<PAGE> 4
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/ Douglas G. Bryant
-----------------------------------------
Douglas G. Bryant,
Chief Financial Officer
/s/ Lars Stig Nielsen
---------------------------------------------
Lars Stig Nielsen
- 4 -
<PAGE> 1
EXHIBIT 10.5
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is executed as of March
20, 1997, by and between Olicom, Inc. a Delaware corporation ("Olicom") and
Tadeusz Witkowicz (the "Consultant").
Concurrently with the execution and delivery of this Agreement, Olicom
A/S, a corporation organized under the laws of the Kingdom of Denmark (the
"Parent"), 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 the Parent
immediately following the Effective Time (as defined in the Merger Agreement)
(the "Merger").
In connection with the transactions contemplated by the Merger
Agreement and in recognition of the Consultant's significant experience and
abilities, Parent desires to assure itself of the services of the Consultant in
accordance with and subject to the terms and conditions provided herein. The
Consultant wishes to perform services for Olicom and Parent in accordance with
and subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Engagement as Consultant. Olicom hereby agrees to engage the
Consultant, and the Consultant hereby agrees to perform services for Olicom, on
the terms and conditions set forth herein.
2. Term. This Agreement is for a period commencing at the
"Effective Time" (as such term is defined in the Merger Agreement) and
extending through December 31, 1997 (the "Term").
3. Duties and Reporting Relationship. The Consultant is retained
to assist Olicom in (i) successfully and expeditiously implementing the
integration of the business of CrossComm and its subsidiaries with those of the
Parent and its subsidiaries (collectively, the "Olicom Group"); (ii) without
limiting the generality of the foregoing, providing assistance and advice
relative to (a) the expeditious realization of synergies as a result of the
combination of CrossComm with the Olicom Group, (b) matters relating to
employees and employee relations issues in connection with the Merger and the
operation of CrossComm after the consummation of the Merger, (c) the
expeditious integration of marketing and administrative functions of CrossComm
with those of the Olicom Group, (d) the expeditious integration of CrossComm's
technology with that of the Olicom Group, (e) the expeditious integration of
CrossComm's operations in Poland with those of the Olicom Group, and (f)
<PAGE> 2
in general, apprising employees of, contractors to, and others who have
business relationships with CrossComm or its subsidiaries of the benefits of
the Merger and of the advantages to be gained for all such persons, CrossComm
and the Olicom Group from the consummation of the Merger; (iii) providing
advice and assistance with respect to existing customers of CrossComm, toward
the end that business relationships with such customers are preserved to the
greatest extent feasible; (iv) providing advice and assistance with respect to
key sales and marketing opportunities; and (v) such other services relating to
the business of the Olicom Group and CrossComm as the Consultant and the
Managing Director of the Parent shall mutually agree.
(a) The Consultant shall in no event be required to
provide more than 15 hours per month (including travel time) of consulting
services to Olicom for the first three months of the Term and no more than 10
hours per month (including travel time) of consulting services to Olicom for
the balance of the Term.
(b) The scheduling of the rendition of services by the
Consultant shall be mutually agreeable to the Consultant and Olicom and shall
be performed substantially in Massachusetts.
4. Independent Contractor. During the term of this Agreement,
the Consultant shall be paid as an independent contractor and not an employee
of Olicom.
5. Compensation and Related Matters.
(a) During the Term, Olicom shall pay to the Consultant a
monthly consulting fee at a rate of $5,500.00 per month.
(b) During the Term, the Consultant will be reimbursed by
Olicom for all ordinary and appropriate business expenses incurred by him in
connection with his performance of consulting services hereunder upon
submission by the Consultant of receipts and other documentation in accordance
with Parent's normal reimbursement procedures.
(c) Parent agrees to grant to the Consultant, at the
Effective Time, an option (the "Option") to purchase 100,000 common shares in
the Parent, nominal value DKK 0.25 per share ("Common Shares"), pursuant to the
terms and provisions of the stock option agreement (the "Stock Option
Agreement") substantially in the form attached hereto as Exhibit A. Parent
agrees to use its best efforts to obtain approval of the 1997 Share Incentive
Plan (as defined in the Stock Option Agreement), at the Parent's 1997 General
Meeting at which the Merger is submitted for approval by the Parent's
shareholders.
6. Termination. Upon any termination of this Agreement or the
Consultant's engagement as a consultant hereunder, the parties hereto shall
have no further obligation or liability under this Agreement, except that (a)
Olicom shall pay the Consultant all fees and reimburse the Consultant for all
expenses incurred prior to the date of termination, and
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<PAGE> 3
(b) the provisions of Sections 5(c) and 6-13 of this Agreement shall survive
any such termination.
7. No Assignment. 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 and all
rights of the Consultant hereunder shall inure to the benefit of and be
enforceable by the Consultant's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
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
DK - 2800 Lyngby
Denmark
Copy to:
Lawrence D. Ginsburg
Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
2200 Ross Avenue, Suite 900
Dallas, TX 75201-2774
If to the Consultant:
Tadeusz Witkowicz
90 Prescott Street
West Boylston, Massachusetts 01583
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.
- 3 -
<PAGE> 4
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. 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; Exhibits. The section headings herein are
for convenience only and shall not affect the construction or interpretation of
this Agreement. All exhibits attached hereto are incorporated herein by
reference.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
OLICOM, INC.
By: /s/ Lars Stig Nielsen
-----------------------------------------
Lars Stig Nielsen,
Chairman of the Board
/s/ Tadeusz Witkowicz
-----------------------------------------
Tadeusz Witkowicz
- 4 -
<PAGE> 5
OLICOM A/S
By: /s/ Boje Rinhart
-----------------------------------------
Boje Rinhart, Chief Financial Officer
(For the sole purpose of guaranteeing the
performance of the obligations of the
Parent pursuant to Section 5(c))
- 5 -
<PAGE> 6
EXHIBIT A
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as
of __________, 1997, by and between Olicom A/S, a corporation organized under
the laws of the Kingdom of Denmark (the "Company"), and Tadeusz Witkowicz (the
"Optionee").
Pursuant to that certain Consulting Agreement of even date herewith
between Olicom, Inc., a Delaware corporation (the "Sub"), and the Optionee, Sub
has agreed to cause the Company to afford the Optionee an opportunity to
purchase common shares, nominal value DKK 0.25 per share (the "Common Shares"),
pursuant to the Company's 1997 Share Incentive Plan (the "Plan").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Optionee agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee
the right, privilege and option (the "Option") pursuant to the Plan to purchase
100,000 Common Shares (the "Option Shares") at a purchase price per share equal
to the high and low sales prices of the Common Shares on the date hereof (the
"Option Price"), in the manner and subject to the conditions hereinafter
provided.
2. Time of Exercise of Option. Subject to the limitations
contained in this Agreement, the Option may be exercised in whole or in part
until the termination thereof as provided in Section 4 hereof.
3. Method of Exercise. The Option shall be exercised by the
Optionee by the Optionee notifying the Board of Directors of the Company, at
the Company's principal place of business, specifying the number of Option
Shares purchased and accompanied by payment of the aggregate Option Price
therefor.
(a) The Company shall make prompt delivery of Option
Shares purchased; provided, however, that if any law or regulation requires the
Company to take any action with respect to the Option Shares specified in such
notice before the issuance thereof, then the date of delivery of such Option
Shares shall be extended for the period necessary to take such action.
(b) The Option may be exercised, within the above
limitations and subject to the limitations contained in this Agreement, as to
any part or all of the Option Shares covered thereby; provided, however, that
the Option may not be exercised as to less than 500 Option Shares at any one
time (or the remaining Option Shares then purchasable under the Option, if less
than 500 Option Shares).
- 1 -
<PAGE> 7
4. Termination of Option. Except as herein otherwise stated, the
Option, to the extent not theretofore exercised, shall terminate upon the first
to occur of the following dates:
(a) The expiration of one year after the later of the
date on which the Optionee's consultancy to the Company is terminated for any
reason or such date as the Optionee ceases to be a director of Olicom or any
subsidiary thereof;
(b) ________, 2000 (being the expiration of three years
from the grant of this Option).
5. Reclassification, Consolidation or Merger. If all or any
portion of the Option shall be exercised subsequent to any share dividend,
split-up, recapitalization, merger, consolidation, combination or exchange of
shares, reorganization or liquidation occurring after the date hereof, as a
result of which shares of any class of the capital stock of the Company shall
be issued in respect of the then issued and outstanding Common Shares, or
Common Shares shall be changed into the same or a different number of shares of
the same or another class or classes of the capital stock of the Company, the
person or persons so exercising the Option shall receive, for the aggregate
price paid upon such exercise, the aggregate number and class of shares of the
capital stock of the Company which, if Common Shares (as authorized at the date
hereof) had been purchased immediately prior to such event at the price per
share set forth in Section 1 hereof, such person or persons would be holding at
the time of such exercise; provided, however, that no fractional share shall be
issued upon any such exercise, and the aggregate price paid shall be
appropriately reduced on account of any fractional share not issued; and
provided further that no adjustment shall be made in the minimum number of
shares which may be purchased at any one time, as fixed by Section 3 hereof.
6. Restrictions. The Option and all Option Shares issued
pursuant to the exercise of the Option evidenced by this Agreement shall be
restricted as set forth herein.
(a) If at any time the Company shall determine, in their
discretion, that the listing, registration or qualification of the Option
Shares on any securities exchange or under any state or federal law, or the
consent or approval of any government regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting or exercise of
the Option or the issue or purchase of Option Shares, the Option may not be
exercised in whole or in part until such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any conditions
not acceptable to the Company. Subject to the terms and provisions of the
Agreement and Plan of Reorganization of even date herewith between the Company,
PW Acquisition Corporation and CrossComm Corporation (the "Merger Agreement"),
the Company shall be under no obligation to effect or obtain any such listing,
registration, qualification, consent or approval if the Company shall
determine, in its reasonable judgment, that such action would not be in the
best interest of the Company. The Company shall be liable for damages due to a
delay in the delivery or issuance of any stock certificates for any reason
whatsoever, including, without limitation,
- 2 -
<PAGE> 8
a delay caused by listing, registration or qualification of Option Shares upon
any securities exchange or under any federal or state law or the effecting or
obtaining of any consent or approval of any governmental or regulatory body
with respect to the granting or exercise of the Option or the issue or purchase
of Option Shares (subject to the provisions of the Merger Agreement).
(b) The Company may suspend for a reasonable period or
periods the time during which this Option may be exercised if, in the
reasonable opinion of the Company, such suspension is required to enable the
Company to remain in compliance with regulatory requirements relating to the
issuance of Common Shares subject to this Option; provided, however, that in
the event that Company suspends the period during which this Option may be
exercised pursuant to this Section 6(b), the period of time during which this
Option may be exercised shall be extended for a period of time equal to the
time during which the exercise of this Option was suspended.
7. Rights Prior to Exercise of Option. This Option is not
transferable by the Optionee. Transfers by inheritance or by partition of an
estate may be effected without approval by the Company's Board of Directors.
The Optionee shall have no rights as a shareholder with respect to the Option
Shares until payment of the Option Price therefor and delivery to him of such
shares as herein provided. Furthermore, the grant of the Option shall not be
construed as giving to the Optionee the right to be retained in the service of
the Company or any subsidiary, affiliate or successor of the Company, all such
rights being determined pursuant to that certain Consulting Agreement of even
date herewith between Olicom, Inc., and the Optionee.
8. Conflict with the Plan. The Option granted in this Agreement
is expressly made subject to the Plan. To the extent that there arises any
conflict between this Agreement and the Plan, the Plan shall be deemed to be
paramount and controlling.
9. Entire Agreement; Modification; Waiver. Except for the Plan,
this Agreement constitutes the entire agreement between the parties pertaining
to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties
with respect thereto. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the party to be
charged therewith. No waiver of any of the provisions of this Agreement shall
be deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver.
10. Applicable Law. The parties agree that this Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware (without regard to principles of conflicts of laws).
11. Arbitration. 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
- 3 -
<PAGE> 9
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.
12. Headings. The subject headings of the sections of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
13. Counterparts. This Agreement may be executed simultaneously
in one or more identical counterparts, each of which for all purposes shall be
deemed an original, and all of which shall constitute, collectively, one
instrument; but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one executed counterpart.
14. 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.
IN WITNESS THEREOF, the parties have executed this Agreement as of the
date and year first above written.
OLICOM A/S
By:
-------------------------------------
Its:
------------------------------------
-----------------------------------------
Tadeusz Witkowicz
- 4 -
<PAGE> 1
EXHIBIT 10.6
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered on March 20,
1997, between CrossComm Corporation, a Delaware corporation (the "Company") and
Tadeusz Witkowicz ("Tad").
This Agreement has been signed in connection with that certain
Agreement and Plan of Reorganization among Olicom A/S ("Olicom"), PW
Acquisition Corporation and CrossComm Corporation of even date herewith (the
"Merger Agreement").
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Tad and the Company agree as follows:
1. Covenant Not to Compete.
(a) Tad agrees that, for a period of 10 months following
the closing of the transactions described in the Merger Agreement (the "Term"),
he will not, anywhere in the world, whether acting individually or as an
officer, director, employee, agent, stockholder or consultant of any person,
firm, corporation, business or other entity, engage in a business that
competes, directly or indirectly, in any material respect with the "Business"
(as defined herein); provided, however, that Tad may own publicly-traded stock
of any such person, firm, corporation, business or other entity constituting
not more than 5% of the outstanding shares of such class of stock so long as
his involvement with any such entity is limited to the ownership of such stock.
As used herein, the term "Business" means the development and marketing of the
following products in the computer networking industry: ethernet, token ring
and asychronous transfer mode (ATM) switches and network interface cards;
bridges; routers; and HUBs.
(b) Tad and the Company acknowledge that Section 1(a) is
reasonable and necessary, in view of the nature of the Company, its businesses
and his knowledge thereof, in order to protect the legitimate interests of the
Company.
(c) Tad agrees that during the Term, he shall not,
without the prior written consent of the Company (which may not be unreasonably
withheld or delayed), induce any employee of or independent contractor to the
Company to terminate his or her relationship with the Company or any subsidiary
or affiliate thereof, whether or not existing as of the date hereof, in order
to accept any position with Tad or a company affiliated with him; provided,
however, that the foregoing does not prohibit Tad from negotiating with, or
offering employment or hiring, any person who, on his own initiative, contacts
Tad regarding possible employment; and, provided further, that as to an
employee or contractor who terminates his or her relationship with the Company,
Tad may solicit and hire such person after the expiration of three months
following the termination of such person's relationship with the Company.
<PAGE> 2
2. Payment. In partial consideration for the covenants of Tad
hereunder, the Company agrees to pay Tad the sum of $5,500 per month during the
Term, to be offset against any payments made pursuant to any consulting
agreement with the Company or Olicom.
3. Burden of Proof. In the event that the Company brings an
action against Tad that alleges any violation by Tad of his agreements herein,
the Company shall have the burden of proving such claims.
4. Attorneys' Fees. In any action in which Tad is the prevailing
party, he shall be reimbursed by the Company for all reasonable attorneys' fees
and costs in connection therewith; in the event that the Company is the
prevailing party in any such action, the Company shall bear its own costs and
fees.
5. Mediation. In the event that with respect to Tad's obligations
in this Agreement, Tad and the Company agree that neither will initiate
litigation or other legal proceedings against one another for a period of 90
days commencing after Tad's receipt of a notice of claimed breach of this
Agreement from the Company. During such 90-day period, the parties will submit
such dispute to binding mediation. The mediator will be a litigation partner
at a prominent law firm in Boston, Massachusetts who is reasonably acceptable
to both parties and who has never had an attorney/client relationship with
either party (or in the case of a dispute over nonsolicitation, the person who
was allegedly solicited). In such mediation, the non-prevailing party will pay
the costs and expenses of the mediator. In the event that the mediator
determines that Tad has violated any provision of this Agreement relating to
nonsolicitation, he will be prohibited from employing or contracting with the
person solicited for a period of 10 months after the mediator renders his
decision.
6. Miscellaneous. This Agreement contains the entire
understanding of the parties relating to the subject matter contained herein
and supersedes all prior agreements and understandings, written or oral,
relating to the subject matter hereof. This Agreement shall not be amended or
terminated except in a writing signed by the party against whom enforcement is
sought. 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. 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.
- 2 -
<PAGE> 3
IN WITNESS HEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
/s/Tadeusz Witkowicz
--------------------------------------
Tadeusz Witkowicz
CROSSCOMM CORPORATION
By: /s/Douglas G. Bryant
----------------------------------
Chief Financial Officer
- 3 -
<PAGE> 1
EXHIBIT 10.7
SHARE PURCHASE AGREEMENT
OLICOM A/S
(A/S reg.no. 101.733)
- hereinafter called "the Vendor" -
and
NILEX SYSTEMS APS
(ApS reg.no. 100.247)
- hereinafter called "the Purchaser" -
have today entered into the following Agreement concerning the Purchaser's
acquisition of the entire share capital ("the Shares") of OLICOM VENTURES A/S
(A/S reg.no. 61.269) ("the Company").
NOW IT IS HEREBY AGREED as follows:
1. SALE AND PURCHASE OF SHARES
1.1. The entire registered share capital of the Company is DKK 300,000
issued as A-shares in the amount of DKK 150,000 and B-shares in the
amount of DKK 150,000.
1.2. The Vendor agrees as owner to sell all the Shares, and the Purchaser
agrees to purchase the same, on the Completion Date free and clear
from any encumbrances and other adverse interests except for the
rights stipulated for in Section 3.2. and with the benefit of all
rights for the consideration specified below and subject to the terms
and conditions of this Agreement.
1.3. The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the sale and purchase of all the Shares is completed
contemporaneously.
1.4. The Shares and the Company's shares in Contex shall forthwith upon
signature of this Agreement be deposited with Advokatfirmaet O. Bondo
Svane, Trondhjems Plads 3, DK-2100 Kebenhavn E., duly endorsed for
transfer to be released to the Purchaser as stipulated in Sections
3.1. and 3.3.
<PAGE> 2
2. THE PURCHASE PRICE AND ACQUISITION FINANCIAL STATEMENT
2.1. The purchase price for the company's Shares and the "Debtnote to the
Mothercompany" has been agreed to:
Total purchase price of DKK 41,000,000
2.2. The Company is a holding company and the purchase price has therefore
been based on a valuation of the only asset transferred in this
transaction, the Company's shares in Contex A/S (A/S reg. no. 177.072)
including goodwill.
2.3. The audited financial statement of the Company at the end of fiscal
1995 Schedule 1 contains assets and liabilities that are not subject
to this Acquisition. The Vendor shall before or at completion arrange
that all other assets than those mentioned in Section 2.2. are
disposed of, and that the Company has no liabilities other than "tax
payable", "The Debtnote to the Mothercompany", "Share Capital" and
"Reserves". The balance sheet of "the Acquisition Financial Statement"
shall thus contain nothing but the following:
<TABLE>
<CAPTION>
Assets as of 30 September 1995 DKK
------------------------------
<S> <C> <C>
1. Shares in Contex in the nominal
amount of DKK 427,700 . . . . . . . . . . . . . . . . . . . . . . . . . 20.350.448
2. Concern goodwill in Contex . . . . . . . . . . . . . . . . . . . . . . . . 5.136.865
3. Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.487.313
Liabilities:
------------
A. Share capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300.000
Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.272.724
Carried forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.560.715
Total Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.133.439
B. Debtnote to Mothercompany (Olicom A/S) . . . . . . . . . . . . . . . . . . 1.353.874
Tax liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Total Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.487.313
</TABLE>
2.4. The 1993 and 1994 financial statements of the Company are attached
hereto as Schedule 2. All assets and liabilities except for those
contained in Section 2.3. above shall have been disposed of, paid or
otherwise removed from the balance sheet of the Company as at
completion.
- 2 -
<PAGE> 3
2.5. The 1995 financial statements and the Acquisition Financial Statement
shall be audited by the Company's auditors, Revisionsfirmaet Ernst &
Young A/S, who shall verify that the Acquisition Financial Statement
is in accordance with Sections 2.2. and 2.3. The Annual Financial
Statement for 1995 and the Acquisition Financial Statement shall be
available and signed by the Company's auditors not later than 2 weeks
after the Completion Date.
2.6. The Purchaser warrants that the tax obligations of the Company will be
met in a timely manner. Olicom warrants that the Company's tax
obligation is zero.
3. TERMS OF PAYMENT AND SECURITY
3.1. The purchase price shall be paid in two installments by the Purchaser
as follows:
(a) DKK 15.000.000, cash on the Completion Date.
(b) DKK 26.000.000, to be paid no later than 30 days after
Completion, provided none of the representations and
warranties have become effective in a relevant manner.
The installment (b) shall carry 4,0% p.a. interest in favor of the
Vendor from the Completion Date.
3.2. Until payment of the installment as per Section 3.1. (b) the Vendor
shall retain a security interest in the Shares, whereas the Purchaser
after Completion Date will assume a proxy to vote on behalf of the
Company at the ordinary general assembly of Contex to be held at
January 31, 1996, where a special dividend will be declared to the
shareholders of Contex. During the interim period until second
installment Section 3.1 (b) the Purchaser will assume operational
power in conjunction with the Vendor.
3.3. The Purchaser shall have the right to withhold a relevant portion of
the installment as per Section 3.1. (b), should the Acquisition
Financial Statement contain other liabilities or assets than those
shown in Section 2.3.
4. COMPLETION
4.1. Completion shall take place on January 23, 1996 ("the Completion
Date"). Each of the conditions set out in Section 5.2. below shall
have been satisfied or waived.
- 3 -
<PAGE> 4
4.2. At Completion the Vendor shall deliver to the Purchaser:
(a) the Company's "vedtaegter" (Articles of Association),
"registreringsbevis" (resume from the Registrar of Companies
confirming the registration of the Company),
"aktionaer-fortegnelse" (the Company's register of
shareholders) and all "protokoller" (protocols containing all
minutes of shareholders meetings) and all other documentation
that is to remain with the Company;
(b) duly executed registration form for notification of the
transfer to "Statsskattedirektoratet" (the tax authorities);
(c) the written resignation of all shareholder elected directors
containing acknowledgments to the effect that such directors
have no claim against the Company for compensation for loss of
office or otherwise;
(d) copies of documentation on Contex A/S; "vedtaegter" (Articles
of Association") and "registreringsbevis" (resumes from the
Registrar of Companies confirming the registration of Contex
A/S;
4.3. The Purchaser shall on Completion Date, after receipt of the required
material regarding the Company, execute payment of the first
installment of the purchase price, cf. Section 3.1. (a).
4.4 The Purchaser agrees, that the Purchaser in no manner whatsoever can
use the name "Olicom Ventures" or derivatives thereof and that the
Company should not in the future be linked to the Olicom group, and
that the Purchaser will take immediate steps to change the name of the
Company in the Articles of Association.
4.5 The Purchaser is aware that the Company is formally a registered
development company with the Ministry of Commerce under the Vendor's
authorization and that the Vendor will apply for the Ministry's accept
of a transfer of the developing activities and the government
guarantee to another legal entity appointed by Olicom. The parties
expect to have the information regarding this no later than January
25, 1996. If the transfer is refused by the Ministry the Parties agree
to negotiate in good faith in order to reach a solution.
5. REPRESENTATION AND WARRANTIES
5.1. Subject to the matters disclosed in this Agreement and the Schedules
hereto, the Vendor hereby represent and warrant that:
- 4 -
<PAGE> 5
(1) Acquisition Financial Statement
The Company has no assets or liabilities other than those
shown in the Acquisition Financial Statement.
(2) Contex A/S
The Vendor is the rightful owner of the Company and the
Company's shareholding in Contex. With regard to the business
activities of Contex, the Vendor will refer to a written
declaration from the Managing Director of Contex which is
expected to be available no later than January 25, 1996
(Schedule 3). The Purchaser has detailed knowledge about
Contex and the Vendor sells the shares in Contex "as is",
hereunder without any liability for the contents of or the
correctness of the declaration from the Managing Director of
Contex.
5.2. The Purchaser is fully informed about the shareholders agreement in
force between the shareholders of Contex and the restrictions therein,
including preemption rights.
6. DELAY, BREACH ETC.
6.1. If at any time at or before Completion the Vendor fail to comply with
all or any of their obligations including without limitation the
obligations to be performed on or within 2 weeks after the Completion
Date in accordance with Sections 4 and 6 hereof, then the Purchaser
may by written notice to the Vendor elect:
(i) to rescind this Agreement, or
(ii) to fix (on one or more subsequent occasions) a new date for
completion in which event the terms of this Agreement
(including all the remedies available to the Purchaser) shall
continue to apply as if the date for completion so fixed was
the Completion Date already specified in Section 4 hereof.
6.2. If the Purchaser does not pay the full purchase price on time, the
transaction can be terminated by the Vendor without further notice. In
case of termination the Purchaser shall pay the Vendor's reasonable
costs and expenses and compensate the Vendor for losses in accordance
with the Danish legal practice. The Vendor's re- payment of any amount
paid by the Purchaser under Section 3.1. (a) shall be made.
- 5 -
<PAGE> 6
7. ANNOUNCEMENTS
7.1. Both before and after Completion the Vendor and the Purchaser shall
consult together as to the terms, time and manner of any announcements
to shareholders, employees, customers, suppliers or to the press or
otherwise of the sale and purchase hereby agreed or of any
supplemental or ancillary transaction.
7.2. No such announcement shall be made except in mutually agreed terms
save (in the absence of agreement) for any statement or disclosure
which may be required by law, including SEC and Nasdaq regulations or
standards, and any such statement or disclosure shall be no more
extensive than is necessary to meet the minimum requirements imposed
upon the party making such statement or disclosure.
8. EXPENSES
Each party shall pay its own expenses including legal fees, except the
share transfer duty which will be split between the Vendor and the
Purchaser.
9. GOVERNING LAW
9.1. This Agreement shall be governed by and construed in accordance with
Danish law, and the parties hereby submit any disputes to arbitration
under the rules of Det Danske Voldgiftinstitut to be held in
Copenhagen as regards any claim or matter arising under this
Agreement.
- 6 -
<PAGE> 7
Vendor: Purchaser:
for Olicom A/S for Nilex Systems ApS
Date: January 23, 1996 Date: January 23, 1996
--------------------------- -------------------------------
Name: /s/Jan Bech Name: /s/ Lars Stig Nielsen
--------------------------- --------------------------------
Name: /s/Bo Vilstrup Name: /s/ Asbjorn Smitt
---------------------------- --------------------------------
Name: /s/Lars Stig Nielsen
---------------------------
- 7 -
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts," and to
the use of our report dated April 2, 1997 included in the Joint Proxy Statement
of Olicom A/S and CrossComm Corporation that is made a part of the Registration
Statement (Form F-4) and Joint Proxy Statement/Prospectus of Olicom A/S for the
registration of 3,805,647 shares of its common stock.
/s/ ERNST & YOUNG
Statsautoriseret Revisionsaktieselskab
Copenhagen, Denmark
April 4, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts," and to
the use of our report dated January 28, 1997, except for Note 12, as to which
the date is March 20, 1997, included in the Joint Proxy Statement of Olicom A/S
and CrossComm Corporation that is made a part of the Registration Statement
(Form F-4) and Joint Proxy Statement/Prospectus of Olicom A/S for the
registration of 3,805,647 shares of its common stock.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
April 2, 1997
<PAGE> 1
EXHIBIT 23.6
CONSENT OF LIDDELL, SAPP, ZIVLEY, HILL & LaBOON, L.L.P.
We consent to the reference to our Firm under the caption "Legal
Matters" in the Joint Proxy Statement/Prospectus of Olicom A/S and CrossComm
Corporation that is made a part of the Registration Statement on Form F-4 of
Olicom A/S.
Dallas, Texas /s/ Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P.
April 4, 1997
<PAGE> 1
EXHIBIT 99.1
PROXY
OLICOM A/S
PROXY SOLICITED BY THE BOARD OF DIRECTORS FOR THE
ANNUAL GENERAL MEETING OF SHAREHOLDERS TO BE HELD MAY __, 1997
The undersigned hereby appoints Jan Bech and Lars Stig Nielsen, or either of
them, each with full power of substitution, as the proxyholder(s) of the
undersigned to represent the undersigned and to vote all Common Shares of
Olicom A/S (the "Company") which the undersigned would be entitled to vote if
personally present at the Annual General Meeting of Shareholders of the Company
to be held at the Company's headquarters located at Nybrovej 114, DK-2800
Lyngby, Denmark, at 4:00 p.m., local time, on May _, 1997, and at any
adjournments or postponements of such meeting, for the following limited
purposes:
The Board of Directors recommends that you vote FOR the following proposals.
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
<S> <C> <C> <C> <C>
1. Approval of the Agreement and Plan of Reorganization dated as of [ ] [ ] [ ]
March 20, 1997, among the Company, PW Acquisition Corporation and
CrossComm Corporation.
2. Adoption of the Company's Profit and Loss Account for the fiscal year [ ] [ ] [ ]
ended December 31, 1996, and Balance Sheet at such date, approval of
the discharge of management and the Board of Directors for fiscal
year 1996, and carry forward of the Company's profits to fiscal year
1997.
3. Election of Directors
FOR all nominees listed below WITHHOLD AUTHORITY to vote for
(except as provided to the contrary below) all nominees listed below
[ ] [ ]
Jan Bech, Bo F. Vilstrup, Lars Stig Nielsen, Kurt Anker Nielsen,
Frank G. Petersen and Michael J. Peytz and Anders Knutsen.
(INSTRUCTION: To withhold authority to vote for any individual
nominee(s) write that nominee's name on the space provided below):
4. Appointment of Ernst & Young A/S and KPMG C. Jespersen as the [ ] [ ] [ ]
Company's auditors and Ernst & Young LLP as the auditors for Olicom,
Inc.
5. Authorization to purchase outstanding Common Shares. [ ] [ ] [ ]
6. Approval of the fees of the Company's Directors for fiscal year 1997. [ ] [ ] [ ]
7. Approval of amendments to the Company's Articles of Association. [ ] [ ] [ ]
8. Approval of the Company's 1997 Share Incentive Plan. [ ] [ ] [ ]
9. Approval of the postponement or adjournment of the Annual General [ ] [ ] [ ]
Meeting for additional solicitation, if necessary.
10. On any other business which may properly come before the meeting and [ ] [ ] [ ]
any adjournments thereof, hereby revoking any proxy or proxies
heretofore given by the undersigned.
</TABLE>
(Please sign on the reverse side)
<PAGE> 2
(Continued from reverse side)
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS AND WILL BE VOTED
IN ACCORDANCE WITH THE SPECIFICATIONS MADE ON THE REVERSE SIDE. IF A CHOICE IS
NOT INDICATED WITH RESPECT TO ITEMS 1, 2, 4, 5, 6, 7, 8 AND 9, THIS PROXY WILL
BE VOTED "FOR" (i) THE APPROVAL OF THE AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN THE COMPANY, PW ACQUISITION CORPORATION AND CROSSCOMM CORPORATION; (ii)
THE ADOPTION OF THE COMPANY'S PROFIT AND LOSS ACCOUNT FOR THE FISCAL YEAR ENDED
DECEMBER 31, 1996, AND BALANCE SHEET AT SUCH DATE, THE DISCHARGE OF MANAGEMENT
AND THE BOARD OF DIRECTORS FOR FISCAL YEAR 1996, AND THE CARRY FORWARD OF THE
COMPANY'S PROFITS TO FISCAL YEAR 1997; (iii) THE APPROVAL OF THE FEES OF THE
COMPANY'S DIRECTORS FOR FISCAL YEAR 1997; (iv) THE APPOINTMENT OF ERNST & YOUNG
A/S AND KPMG C. JESPERSEN AS THE COMPANY'S AUDITORS AND ERNST & YOUNG LLP AS
THE AUDITORS FOR OLICOM, INC.; (v) THE AUTHORIZATION TO PURCHASE COMMON SHARES;
(vi) THE APPROVAL OF AMENDMENTS TO THE COMPANY'S ARTICLES OF ASSOCIATION; (vii)
THE APPROVAL OF THE COMPANY'S 1997 SHARE INCENTIVE PLAN; AND (viii) THE
APPROVAL OF THE POSTPONEMENT OR ADJOURNMENT OF THE ANNUAL GENERAL MEETING FOR
ADDITIONAL SOLICITATION, IF NECESSARY. IF A CHOICE IS NOT INDICATED WITH
RESPECT TO ITEM 3, THIS PROXY WILL BE VOTED "FOR" THE ELECTION OF ALL NOMINEES
FOR DIRECTOR LISTED ON THE REVERSE SIDE. THE PROXIES WILL USE THEIR DISCRETION
WITH RESPECT TO ANY MATTER REFERRED TO IN ITEM 10. THIS PROXY IS REVOCABLE AT
ANY TIME BEFORE IT IS EXERCISED.
Receipt herewith of the Company's 1996 Annual Report and Notice of Meeting and
Proxy Statement, dated ____________, 1997, is hereby acknowledged.
[ ] Please check to receive an admission ticket to the Annual General Meeting.
Dated: ____________ , 1997.
-------------------------------------------
(Signature of Shareholder(s))
(Joint owners must EACH sign. Please sign
EXACTLY as your name(s) appear(s) on this
card. When signing as attorney, trustee,
executor, administrator, guardian or
corporate officer, please give your FULL
title.)
PLEASE SIGN, DATE AND MAIL TODAY.
<PAGE> 1
EXHIBIT 99.2
P R O X Y
CROSSCOMM CORPORATION
450 DONALD LYNCH BOULEVARD
MARLBOROUGH, MASSACHUSETTS 01752
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned, revoking all prior proxies, hereby appoints Tadeusz
Witkowicz, Douglas G. Bryant and Philip P. Rossetti, and each of them, with
full power of substitution, as proxies to represent and vote as designated
hereon all shares of stock of CrossComm Corporation (the "Company") which the
undersigned would be entitled to vote if personally present at the Annual
Meeting of Stockholders of the Company to be held at the Radisson Marlborough
Hotel, 75 Felton Street, Marlborough, Massachusetts on May ___, 1997 at 10:00
A.M., local time, and at any adjournment thereof.
IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER
MATTERS AS PROPERLY MAY COME BEFORE THE MEETING OR ANY ADJOURNMENT THEREOF.
This proxy, when properly executed, will be voted in the manner directed
herein by the undersigned stockholder(s). If no direction is given, this proxy
will be voted FOR all the nominees set forth in Proposal 3 and FOR Proposal 1,
Proposal 2 and Proposal 4. Attendance of the undersigned at the meeting or at
any adjournment thereof will not be deemed to revoke this proxy unless the
undersigned shall revoke this proxy in writing.
-----------
SEE REVERSE
SIDE.
-----------
<PAGE> 2
[X] Please mark your
votes as in this
example.
UNLESS OTHERWISE INSTRUCTED, THIS PROXY WILL BE VOTED IN FAVOR OF THE PROPOSALS
SET FORTH BELOW.
1. Approval of the Merger Agreement, as more fully described in the
accompanying Joint Proxy Statement/Prospectus.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
2. To grant to the Board of Directors of CrossComm discretionary authority to
adjourn the CrossComm Meeting in order to solicit additional votes for
approval of the Merger.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
3. Election of Directors (for all nominees except as marked below):
Nominees: Tadeusz Witkowicz, Nancy Casey, Alexander M. Levine
and Michael C. Ruettgers
FOR WITHHELD
ALL [ ] FROM ALL [ ]
NOMINEES NOMINEES
[ ] ______________________________________________________________________
(Instruction: To vote against any individual nominee, write that nominee's
name in the space provided above.)
4. Ratification of the selection of Ernst & Young LLP as the Company's
independent auditors for 1997.
FOR AGAINST ABSTAIN
[ ] [ ] [ ]
MARK HERE FOR ADDRESS CHANGE AND NOTE AT LEFT [ ]
PLEASE FILL IN, DATE, SIGN AND MAIL THIS PROXY IN THE ENCLOSED POST-PAID RETURN
ENVELOPE.
Please sign exactly as name appears hereon. If the stock is registered in the
names of two or more persons, each should sign. Executors, administrators,
trustees, guardians, attorneys and corporate officers should add their titles.
Signature____________________________________________ Date ___________________
Signature____________________________________________ Date ___________________
<PAGE> 1
EXHIBIT 99.3
CONSENT TO BE NAMED AS A DIRECTOR
I, Anders Knutsen, hereby consent to be nominated as a director of
Olicom A/S, and to be named as a nominated director in the Form F-4
Registration Statement filed with the Securities and Exchange Commission by
Olicom A/S.
Dated: April 4, 1997 /s/Anders Knutsen
----------------------------
Anders Knutsen
