<PAGE> 1
As filed with the Securities and Exchange Commission on August __, 1996
Registration No. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
U.S. ROBOTICS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 6719 36-3994412
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Number) Identification No.)
Organization)
8100 North McCormick Boulevard
Skokie, Illinois 60076
(847) 982-5010
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
George A. Vinyard, Esq.
8100 North McCormick Boulevard
Skokie, Illinois 60076
(847) 933-5830
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
Copies to:
Richard S. Millard David Fox
Mayer, Brown & Platt Skadden, Arps, Slate,
190 South LaSalle Street Meagher & Flom
Chicago, Illinois 60603 919 Third Avenue
Telephone: (312) 782-0600 New York, New York 10022
Telephone: (212) 735-3000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
----------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box:
[ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [x]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Maximum Amount of
Title of Each Class of Aggregate(1) Registration
Securities to be Registered Offering Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, par value $.01 per share $73,000,000 $25,172.37
================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(o).
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 Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED _____________
___________ SHARES
U.S. ROBOTICS CORPORATION
COMMON STOCK
This Prospectus covers _________ shares (the "Shares") of common
stock, par value $.01 per share (the "Common Stock"), of U.S. Robotics
Corporation (the "Company") which may be offered and sold from time to time by
the Selling Stockholders named herein. This Prospectus has been prepared
pursuant to a Registration Agreement described herein. See "Selling
Stockholders". The Company will not receive any of the proceeds from the sale
of any of the Shares.
The Shares may be offered and sold from time to time by the Selling
Stockholders, or by pledgees, donees, transferees or other successors in
interest to the Selling Stockholders, directly or through broker-dealers or
underwriters who may act solely as agents, or who may acquire the Shares as
principals. The distribution of the Shares may be effected in one or more
transactions that may take place through the Nasdaq Stock Market, including
block trades or ordinary broker's transactions, or through privately negotiated
transactions, or through underwritten public offerings, or through a
combination of any such methods of sale, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. Usual and customary or specially negotiated brokerage fees
or commissions may be paid by the Selling Stockholders in connection with such
sales. See "Plan of Distribution".
To the extent required, the specific number of Shares to be sold, the
names of the Selling Stockholders, purchase price, public offering price, the
names of any agent, dealer or underwriter, and any applicable commission or
discount with respect to a particular offering will be set forth in an
accompanying Prospectus Supplement. The aggregate proceeds to the Selling
Stockholders from the sale of the Shares will be the purchase price less the
aggregate agents' commissions and underwriters' discounts, if any, and other
expenses not borne by the Company. The Company has agreed to bear certain
expenses relating to the registration of the Shares under applicable federal
and state securities laws (currently estimated at $50,000) and to any offering
and sale hereunder not including certain expenses such as commissions or
discounts and fees of underwriters, dealers or agents attributable to the sale
of the Shares.
SEE "RISK FACTORS" ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS.
The Common Stock is traded on the Nasdaq Stock Market under the symbol
"USRX". On July 29, 1996, the closing sale price of the Common Stock was
$53.5625 per share.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES
TO WHICH IT RELATES OR AN OFFER TO ANY PERSON IN ANY JURISDICTION WHERE SUCH
OFFER WOULD BE UNLAWFUL. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT
IMPLY THAT INFORMATION SET FORTH HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
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 PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is August __, 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in
accordance therewith, files proxy statements, reports and other information
with the Securities and Exchange Commission (the "Commission"). Such proxy
statements, reports and other information 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 in Chicago, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and in New York, Seven World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. This material is also available at the Commission
web site at http://www.sec.gov.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (the "Registration Statement") filed on August __, 1996 by the Company with
the Commission under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the Shares offered hereby. Statements contained
herein concerning the provisions of any document are not necessarily complete
and, in each instance, reference is made to a copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed with the Commission by the
Company (Commission File No. 0-25630) or its predecessor, U.S. Robotics, Inc.
(Commission File No. 0-19550) for purposes of the information reporting
requirements of the Exchange Act, are incorporated herein by reference:
1. the Company's Annual Report on Form 10-K for the year ended
October 1, 1995;
2. the Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1995 and March 31, 1996 (two reports);
3. the Company's Current Reports on Form 8-K dated October 24,
1995, November 9, 1995, January 22, 1996, February 2, 1996,
February 29, 1996, March 4, 1996, March 12, 1996, April 12,
1996, April 16, 1996, April 22, 1996, May 9, 1996 and July 24,
1996;
4. the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated September
25, 1991, which incorporates such description by reference to
the Company's Registration Statement on Form S-1 dated August
30, 1991 (No. 33-42546) (as amended October 4, 1991 and
October 10, 1991); and
5. the description of the Company's stock purchase rights
contained in the Company's Registration Statement on Form 8-A
dated May 16, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares made hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated herein by reference will be
deemed to be modified or superseded for purposes of this 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 herein by reference
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 Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, upon
written or oral request of such person, a copy of any and all of the
information incorporated herein by reference, other than the exhibits to such
information (unless such
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<PAGE> 4
exhibits are specifically incorporated by reference into such information).
Requests should be directed to U.S. Robotics Corporation at its principal
executive offices, 8100 North McCormick Boulevard, Skokie, Illinois 60076,
Attention: Corporate Secretary ((847) 982-5010).
RISK FACTORS
Prospective purchasers of the Shares offered hereby should consider
the following risk factors, as well as other information contained in this
Prospectus.
Rapid Technological Change
The market for the Company's products is characterized by rapidly
changing technology and emerging industry standards. The Company believes that
its future success will depend upon its ability to enhance its existing
products and to develop and introduce new products which conform to or support
emerging communications standards, meet a wide range of evolving user needs and
achieve market acceptance. There can be no assurance that the Company will
succeed in developing and marketing such products or that the Company will be
able to respond effectively to technological changes, emerging industry
standards or new product introductions by others. In addition, the Company may
experience delays in obtaining regulatory approvals to sell new products in
foreign markets. Any significant delays in developing or shipping new or
enhanced products could adversely affect the Company's operating results.
Competition
The information access industry is intensely competitive. The Company
currently competes principally in the market for analog and digital dial-up
modems and network management systems. A number of the Company's existing and
potential competitors have more extensive financial, engineering, product
development, manufacturing and marketing resources than the Company. The
Company's products compete on the basis of product features, quality,
reliability, price, name recognition and technical support and service. There
can be no assurance that competitors will not introduce products incorporating
technology more advanced than the Company's. Competitive pressures often
prompt or necessitate price reductions which can lead to lower gross margins
and adversely affect operating results. In addition, the Company expects that
it will encounter an increased number of well-established competitors, many of
which have greater resources and more experience, as it enters new areas of the
information access market, including internetworking, telephony and hand held
computing and communications devices.
Dependence on Suppliers
The Company manufactures all of its products using components or
subassemblies procured from third party suppliers. Certain of these components
are available only from a single source, and others are available only from
limited sources. A substantial majority of the Company's sales are from
products containing one or more components which are available from single
supply sources. In addition, the Company is dependent on worldwide conditions
in the semi-conductor market. If the Company were unable to obtain a
sufficient supply of components from its current sources, it could experience
difficulties in obtaining alternative sources or in altering product designs to
use alternative components. Resulting delays or reductions in product
shipments could adversely affect the Company's operating results and damage
customer relationships. Further, a significant increase in the price of one or
more of these components could adversely affect the Company's operating
results.
Dependence on Independent Distributors and Resellers
The Company derives most of its revenue from sales to its national,
regional and international distributors and resellers. These independent
distributors and resellers are not contractually committed to future purchases
of the Company's products and therefore could discontinue carrying the
Company's products at any time in favor of a competitor's products or for any
other reason. The loss of any of the Company's major distributors and
resellers could have a significant adverse effect on the Company's operating
results. Subject to certain conditions, the Company offers "stock balancing"
and "price protection" programs to its distributors and resellers. Although
the Company attempts to monitor and manage the volume of sales to distributors
and
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<PAGE> 5
resellers to avoid overstocking and distributor and reseller contracts
generally provide for returns only for exchange or credit against future
purchases (except for defective goods), the Company remains subject to the risk
of price protection credits and product returns.
Volatility of Stock Price
The Company believes that factors such as quarterly fluctuations in
results of operations, adverse circumstances affecting the introduction or
market acceptance of new products offered by the Company, announcements of new
products by competitors, changes in earnings estimates by analysts, changes in
accounting principles, sales of Common Stock by existing holders, loss of key
personnel and other factors may cause the market price of the Common Stock
to fluctuate substantially. In addition, stock prices for many technology
companies, including the Company, may fluctuate for other reasons (such as
market perception of high technology industries) unrelated to operating
results. These fluctuations, as well as general economic, political and market
conditions, such as recessions or military conflicts, may adversely affect the
market price of the Common Stock. During the period from January 2, 1996 to
July 29, 1996, the closing price of the Common Stock as reported by NASDAQ (on
a split-adjusted basis) ranged from a low of $34.50 per share on January 10,
1996 to a high of $100.50 per share on May 22, 1996. On July 29, 1996, the
closing price of the Common Stock as reported by NASDAQ was $53.5625 per share.
Anti-Takeover Provisions
The Company has taken a number of actions which could have the effect
of discouraging a takeover attempt that might be beneficial to stockholders who
wish to receive a premium for their shares from a potential bidder. The
Company has adopted a stockholder rights plan which would cause substantial
dilution to a person who attempts to acquire the Company on terms not approved
by the Company's Board of Directors. The stockholder rights plan may therefore
have the effect of delaying or preventing any change in control and deterring
any prospective acquisition of the Company. The Company's Certificate of
Incorporation and By-Laws also contain provisions which may have the effect of
delaying or preventing a change in control. These provisions include: (i) the
classification of the Board of Directors; (ii) the restriction that directors
can only be removed for cause and only by a majority of the directors or by the
vote of 80% of the voting securities of the Company; (iii) the authority of the
Board of Directors to issue series of preferred stock with such voting rights
and other provisions as the Board of Directors may determine; and (iv) a
super-majority voting requirement to amend provisions of the Certificate of
Incorporation and By-laws relating to the classification of the Board and
removal of directors. In addition, Section 203 of the Delaware General
Corporation Law may have the effect of discouraging takeover attempts directed
at the Company. Furthermore, employment agreements with certain senior
executives of the Company provide for substantial severance pay in the event of
a "Change in Control" of the Company as such term is defined in such
agreements, and the Company's existing option plans provide for accelerated
vesting of options granted thereunder in certain change of control situations.
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<PAGE> 6
THE COMPANY
The Company is a leader in designing, manufacturing, marketing and
supporting high performance communications products and systems that facilitate
access, management and sharing of information in many forms, ranging from
electronic data to fax and voice. Business, professional and personal users
worldwide employ the Company's products to connect a wide variety of
information processing and communications equipment over a broad array of
analog and digital networks. The Company offers reliable, cost-effective
solutions at all points of network access from the data communications center
to the mobile user to the desktop. The Company designs its products to comply
with all major international, domestic and proprietary communications standards
and protocols. Many of the Company's products are designed using proprietary
architectures which facilitate greater functional integration at both the
circuit board and systems levels. This enables the Company to be early to
market with new and enhanced products as technologies and standards evolve and
to offer its customers flexible solutions which both meet their immediate needs
and also provide them with a longer term technological path. Additionally,
when U.S. Robotics-designed products are presented at both ends of a
communication link, performance and reliability can be enhanced.
The Company's product lines include a wide variety of dial-up modems,
flexible and scaleable Wide Area Network hubs and Local Area Network access
products and switches. The Company's products are sold under the Sportster,
Megahertz, Courier, Total Control and WorldPort brand names. To provide the
broadest possible exposure to prospective purchasers and users of its products,
the Company is active in all major domestic and international distribution
channels. The Company also manufactures and sells its products to selected
original equipment manufacturer customers.
As part of the Company's ongoing effort to expand its product
offerings to all network access points, in February 1995, the Company acquired
Megahertz Holding Corporation, a leading supplier of mobile information access
products, including high speed PCMCIA (Personal Computer Memory Card
International Association) data/fax modems, cellular capable modems, Ethernet
adapter cards and combination cards. This acquisition complemented the
Company's systems and desktop product offerings and has enabled it to devote
greater resources and expertise to the development of new products and added
features for the support of mobile and wireless communications. In August and
September 1995, the Company acquired ISDN Systems Corporation and Palm
Computing, Inc., respectively. In February 1996, the Company entered the LAN
switching market when it acquired Amber Wave Systems, Inc. ("Amber Wave"). On
July 2, 1996 the Company entered into an agreement to acquire Scorpio
Communications Ltd.
The Company's executive offices are located at 8100 North McCormick
Boulevard, Skokie, Illinois 60076, and its telephone number is (847) 982-5010.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of any
of the Shares by the Selling Stockholders.
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<PAGE> 7
SELLING STOCKHOLDERS
The following table sets forth for each Selling Stockholder the number
of shares of Common Stock beneficially owned by such Selling Stockholder prior
to this offering, the maximum number of Shares to be offered and sold from time
to time by such Selling Stockholder and the number of shares of Common Stock
beneficially owned by such Selling Stockholder after this offering. In each
case, the percentage of outstanding shares of Common Stock held by each Selling
Stockholder prior to and after this offering represents less than one percent
of the outstanding shares of Common Stock.
<TABLE>
<CAPTION>
Maximum
Number of Shares Number of Number of Shares
Beneficially Owned Shares Beneficially Owned
Selling Stockholders: Prior to Offering(1) Offered(2) After Offering
--------------------- -------------------- ---------- -------------------
<S> <C> <C> <C>
Rafi Gidron
The Emerging Markets Telecommunications
Fund, Inc.
David Efrati
Jerusalem Pacific Ventures (1994) L.P.
Galcom Communications Systems (Israel)
Ltd.
Mofet Israel Technology Fund
The C.I. Global Fund
The First Israel Fund, Inc.
Orni Petruschka
Dovrat Shrem/Polaris Fund L.P.
Oscar Gruss & Sons, Inc.
C.I. Emerging Markets Fund
Advanced Communications Solutions, Ltd.
Carnegie Partners
Adnir Holdings Ltd.
Yaccov Perry
Mordechai Perlmutter
Swift Access Ltd.
Alona Schwartz
Auzi Muriel
Mittelman Ignes
Gilad Keren Hishtalmut Ltd.
J.O.E.L Jerusalem Oil Exploration Ltd.
Yaacov Moreshet
</TABLE>
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<PAGE> 8
Tal Avnon
================================================================================
______________
(1) Calculated pursuant to Rule 13d-3 under the Exchange Act. Under Rule
13d-3(d), shares not outstanding that are subject to options,
warrants, rights or conversion privileges exercisable within 60 days
are deemed outstanding for the purpose of calculating the number and
percentage owned by such person, but are not deemed outstanding for
the purpose of calculating the percentage owned by each other person
listed.
(2) Includes any additional shares of Common Stock that become issuable in
connection with the Shares by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration that results in an increase in the number
of outstanding shares of Common Stock.
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<PAGE> 9
On ___________, ___, 1996 Orni Petruschka will enter into a three year
employment agreement with U.S. Robotics Access Corporation. In accordance with
such agreement, Mr. Petruschka will be hired as General Manager of the
Company's Israeli subsidiary and Director, U.S. Robotics Access Corp.
On __________, ____, 1996 Dr. Raphael Gidron will enter into a three
year employment agreement with U.S. Robotics Access Corporation. In accordance
with such agreement, Dr. Gidron will be hired as Director, U.S. Robotics Access
Corp. and General Manager of the WAN Switching Business Unit.
The Shares offered by the Selling Stockholders named above were issued
subject to the provisions of a registration agreement (the "Registration
Agreement"), dated as of August __, 1996, by and between the Company and the
Selling Stockholders, entered into in connection with the acquisition of
Scorpio Communications Ltd. ("Scorpio") by the Company.
The following summary of certain provisions of the Registration
Agreement does not purport to be complete and is qualified in its entirety by
reference to the Registration Agreement.
Pursuant to the Registration Agreement, the Company has agreed to keep
the Registration Statement of which this Prospectus forms a part continuously
effective until the first date on which none of the Shares held by the Selling
Stockholders constitute "Registrable Securities." A Share ceases to be a
"Registrable Security" (i) when it has been disposed of pursuant to the
Registration Statement; (ii) when it has been sold pursuant to Rule 144 (or any
successor provision) under the Securities Act; (iii) when it has otherwise been
transferred and a new certificate representing such Share not bearing a legend
restricting further transfer has been delivered by the Company; (iv) on the
third anniversary of the closing of the acquisition of Scorpio; (v) with
respect to a particular Selling Stockholder, on the date on which all of such
Selling Stockholder's remaining Shares could be sold in a single transaction in
compliance with Rule 144 under the Securities Act; or (vi) when it ceases to be
outstanding. Pursuant to the Registration Agreement, each Selling Stockholder
is obligated not to sell Shares (i) if, subject to certain conditions set forth
in the Registration Agreement, the Company has notified such Selling
Stockholder that a delay in the disposition of Shares is necessary because the
Company, in its reasonable judgment, has determined that a disposition of
Shares would require public disclosure of material nonpublic information that
the Company deems it advisable not to disclose; provided, however, that no such
delay will be imposed unless the Company has equally imposed such a delay in
the disposition of the Company's securities by any executive officer or
director of the Company; (ii) during the period beginning 10 days prior to and
ending 90 days after the closing of an underwritten offering of securities by
the Company if the managing underwriter in such offering determines the sale of
Shares in excess of such amount would have an adverse effect on an orderly
public distribution of securities in the underwritten offering or would have an
adverse effect on the price of the securities offered in the underwritten
offering; provided that, each executive officer and director of the Company
holding an amount of the Company's securities equal to or exceeding the amount
held by such Selling Stockholder agrees to the same restrictions; or (iii) if
such Selling Stockholder receives notice from the Company of the happening of
certain events including, but not limited to, the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement, the
initiation of any proceeding for that purpose, receipt of any notification with
respect to the suspension of the qualification for sale of such Shares in any
jurisdiction, or the happening of any event that makes any statement in the
Registration Statement, the Prospectus or any document incorporated herein by
reference untrue or requires the making of any changes in such documents in
order that they not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the sale of the Shares.
Each of the Selling Stockholders may sell his, her or its Shares directly or
through broker-dealers or underwriters who may act solely as agents, or who may
acquire shares as principals. The Shares may be sold from time to time by the
Selling Stockholders, or by pledgees, donees, transferees or other successors
in interest to the Selling Stockholders. The distribution of the Shares may be
effected in one or more transactions that may take place through the Nasdaq
Stock Market, including block trades or ordinary broker's transactions, or
through privately negotiated transactions, or through an underwritten public
offering, or through a combination of any such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. Usual and customary or
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<PAGE> 10
specifically negotiated brokerage fees or commissions may be paid by the
Selling Stockholders in connection with such sales.
The aggregate proceeds to the Selling Stockholders from the sale of
the Shares will be the purchase price of the Shares sold less the aggregate
agents' commissions and underwriters' discounts, if any, and other expenses of
issuance and distribution not borne by the Company. The Selling Stockholders
and any dealers or agents that participate in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act,
and any profit on the sale of the Shares by them and any commissions received
by any such dealers or agents might be deemed to be underwriting discounts and
commissions under the Securities Act.
The Selling Stockholders may effect transactions by selling the Shares
directly or through broker-dealers acting either as principal or as agent, and
such broker-dealers may receive compensation in the form of usual and customary
or specifically negotiated underwriting discounts, concessions or commissions
from the Selling Stockholders.
To the extent required, the specific number of Shares to be sold, the
names of the Selling Stockholders, purchase price, public offering price, the
names of any agent, dealer or underwriter, and any applicable commission or
discount with respect to a particular offering will be set forth in an
accompanying Prospectus Supplement.
Under the Registration Agreement, the Company has agreed to bear
certain expenses of registration of the Common Stock under the federal and
state securities laws (currently estimated to be $50,000) and of any offering
and sale hereunder not including certain expenses such as commissions or
discounts of underwriters, dealers or agents and fees attributable to the sale
of the Shares.
Pursuant to the Registration Agreement, the Company has agreed to
indemnify the Selling Stockholders against certain liabilities, including
certain potential liabilities under the Securities Act, or to contribute to
payments the Selling Stockholders may be required to make in respect thereof.
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in this Prospectus and in the Registration Statement (together with
all amendments and exhibits, the "Registration Statement") of which this
Prospectus forms a part, to the extent and for the periods indicated in their
reports, have been audited by Grant Thornton LLP, independent public
accountants, and are incorporated herein in reliance upon the authority of said
firm as experts in accounting and auditing in giving said reports.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by George A. Vinyard, Vice President, General
Counsel and Secretary of the Company. As of the date of this Prospectus, Mr.
Vinyard held options to purchase 232,000 shares of the Common Stock, 62,000 of
which were then exercisable.
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<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following are the estimated expenses in connection with the
distribution of the securities being registered:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee . . . . . . . . $
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . 1,000
Attorneys' Fees and Expenses . . . . . . . . . . . . . . . . . . . .
Nasdaq Listing Fees . . . . . . . . . . . . . . . . . . . . . . . .
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 50,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Nine of the Registrant's Certificate of Incorporation
("Article Nine") is consistent with Section 102(b)(7) of the Delaware General
Corporation Law, which generally permits a company to include a provision
limiting the personal liability of a director in the company's certificate of
incorporation. With limitations, Article Nine eliminates the personal
liability of the Registrant's directors to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director. However,
Article Nine does not eliminate director liability: (1) for breaches of the
duty of loyalty to the Registrant and its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (3) for transactions from which a director derives
improper personal benefit; or (4) under Section 174 of the Delaware General
Corporation Law ("Section 174"). Section 174 makes directors personally liable
for unlawful dividends and stock repurchases or redemptions and expressly sets
forth a negligence standard with respect to such liability. While Article Nine
protects the directors from awards for monetary damages for breaches of their
duty of care, it does not eliminate their duty of care. The limitations in
Article Nine have no effect on claims arising under the federal securities
laws.
With certain limitations, Section 7 of Article Seven of the
Registrant's By-laws ("Section 7") provides for indemnification of any of the
Registrant's past, present and future officers and directors against
liabilities and reasonable expenses incurred in any criminal or civil action by
reason of such person's being or having been an officer or director of the
Registrant or of any other corporation which such person serves as such at the
request of the Registrant. Indemnification under Section 7 is limited to
officers and directors who have acted in good faith and in a manner they
reasonably believed to be in the best interests of the Registrant. Any
questions regarding whether the officer or director has met the required
standards of conduct are to be answered by (1) the majority of disinterested
directors, (2) a written opinion of a reputable disinterested legal counsel
selected by the Board, or (3) the stockholders. Indemnification rights under
Section 7 are non-exclusive. In the event of an officer's or director's
death, such person's indemnification rights shall extend to his or her heirs
and legal representatives. Rights under Section 7 are severable, and if any
part of that section is determined to be invalid for any reason, all other
parts remain in effect.
Under Section 145 of the Delaware General Corporation Law, directors
and officers, as well as other employees and individuals, may be indemnified
against expenses (including attorneys' fees), judgments, fines, amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation -- a "derivative action") if they acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to criminal actions or
proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys'
fees) incurred in connection with the defense or settlement of such an action,
and the Delaware General Corporation Law requires court approval before there
can be any indemnification where the person seeking indemnification has been
found liable to the corporation.
With the approval of the Registrant's stockholders, the Registrant has
entered into Directorship Agreements with its directors. These Directorship
Agreements provide that the directors will be indemnified to the fullest extent
-10-
<PAGE> 12
permitted by law against all expenses (including attorneys' fees), judgments,
fines, amounts paid or incurred by them for settlement in any action or
proceeding, including any derivative action, on account of their service as
directors of the Registrant or of any subsidiary of the Registrant or of any
other company or enterprise in which they are serving at the request of the
Registrant. No indemnity will be provided to any director under these
agreements on account of liability for any breach of the director's duty of
loyalty to the Registrant, such subsidiaries, stockholders or enterprises, any
act or omission not in good faith or which involved intentional misconduct or a
knowing violation of laws, or any transaction from which the director derived
an improper personal benefit. In addition, no indemnification will be provided
(a) for which payment is made to or on behalf of the director under any
insurance policy (except with respect to any excess amount to which the
director is entitled under the Directorship Agreement beyond the amount of
payment under such insurance policy), (b) if a court having jurisdiction in the
matter finally determines that such indemnification is not lawful under any
applicable statute or public policy, or (c) in connection with any proceeding
initiated by the director, or any proceeding by the director against the
Registrant, or its directors, officers, employees or other persons entitled to
be indemnified by the Registrant, unless (i) the Registrant is expressly
required by law to make the indemnification, (ii) the proceeding was authorized
by the Board of Directors of the Registrant or (iii) the director initiated the
proceeding pursuant to the Directorship Agreement and the director is
successful in whole or in part in the proceeding.
ITEM 16. EXHIBITS
A list of the exhibits included as part of this Registration Statement
is set forth in the Exhibit Index which immediately precedes such exhibits and
which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(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 end 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 a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) or the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(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.
-11-
<PAGE> 13
(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.
(b) The undersigned Registrant hereby undertakes 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.
(c) 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.
-12-
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement, or amendment thereto, to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago and State of
Illinois on the ____ day of July, 1996.
U.S. ROBOTICS CORPORATION
By:/s/ Casey Cowell
------------------------------------------
Casey Cowell, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints George A. Vinyard and Mark Remissong,
and each of them singly, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities (including his
or her capacity as a director or officer of U.S. Robotics Corporation) to sign
any and 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 or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue thereof.
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 Date
--------- ----- ----
<S> <C> <C>
/s/ Casey Cowell Chairman of the Board, August 2, 1996
- ---------------------- President and Chief
Casey Cowell Executive Officer
(Principal Executive
Officer)
/s/ John McCartney Executive Vice President August 1, 1996
- ----------------------- and Director
John McCartney
/s/ Jonathan N. Zakin Executive Vice President August 1, 1996
- -------------------------- and Director
Jonathan N. Zakin
/s/ Mark Remissong Vice President and Chief August 2, 1996
- ----------------------- Financial Officer
Mark Remissong (Principal Financial
Officer)
/s/ Steven T. Campbell Vice President and Controller August 1, 1996
- --------------------------- (Principal Accounting Officer)
Steven T. Campbell
/s/ James E. Cowie Director August 1, 1996
- -----------------------
James E. Cowie
</TABLE>
-13-
<PAGE> 15
<TABLE>
<S> <C> <C>
/s/ Terence M. Graunke Director July 31, 1996
- --------------------------
Terence M. Graunke
/s/ Peter I. Mason Director July 31, 1996
- ---------------------
Peter I. Mason
/s/ Paul G. Yovovich Director July 31, 1996
- -----------------------
Paul G. Yovovich
</TABLE>
-14-
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description of Exhibit Page Number
- ------- ---------------------- -----------
<S> <C> <C>
4.1 Specimen Common Stock Certificate *
4.2 Rights Agreement, dated as of May 9, 1996, **
between the Company and Harris Trust and Savings Bank
5 Opinion of George A. Vinyard, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.1 Consent of Grant Thornton LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.2 Consent of George A. Vinyard, Esq. (included in Exhibit 5)
99.1 Form of Registration Agreement by and between U.S. Robotics Corporation, and certain Stockholders
of Scorpio Communications Ltd.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
__________________________________
* Incorporated herein by reference to U.S. Robotics, Inc. and U.S.
Robotics Holding Corporation Registration Statement on Form S-4,
Registration Statement No. 33-86856, declared effective by the
Commission on January 20, 1995.
** Incorporated by reference in the Company's Form 8-K filed on
May 16, 1996.
-15-
<PAGE> 1
EXHIBIT 5
August 1, 1996
U.S. Robotics Corporation
8100 North McCormick Boulevard
Skokie, Illinois 60076
Re: Common Stock, $.01 par value per share
Ladies and Gentlemen:
I have acted as counsel to U.S. Robotics Corporation ("USR") in
connection with the issuance of shares of USR common stock, $.01 par value per
share, (the "Common Stock") in connection with an acquisition of Scorpio
Communications Ltd. by USR (the "Acquisition"). I have also participated in
the preparation and filing with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, of a registration statement on Form S-3
(the "Registration Statement") relating to the registration of the resale of
the Common Stock issued in the Acquisition. In this connection, I have
examined such corporate and other records, instruments, certificates and
documents as I considered necessary to enable me to express this opinion.
Based on the foregoing, it is my opinion that the Common Stock issued
in the Acquisition was duly authorized for issuance and is fully paid and
non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Registration Statement.
I am admitted to practice law in the State of Illinois and I express
no opinions as to matters under or involving any laws other than the laws of
the State of Illinois, the federal laws of the United States of America and the
General Corporation Law of the State of Delaware.
Very truly yours,
George A. Vinyard
General Counsel
-16-
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated November 9, 1995 (except for "Note
Q-Subsequent Event" as to which the date is December 21, 1995) accompanying the
consolidated financial statements of U.S. Robotics Corporation and Subsidiaries
appearing in the 1995 Annual Report on Form 10-K for the year ended October 1,
1995, which are incorporated by reference in this Registration Statement on
Form S-3. We consent to the incorporation by reference in this Registration
Statement of the aforementioned report and to the use of our name as it appears
under the caption "Experts" in the Company's Prospectus.
GRANT THORNTON LLP
Chicago, Illinois
July 31, 1996
-17-
<PAGE> 1
EXHIBIT 99.1
REGISTRATION AGREEMENT
This Registration Agreement (this "Agreement") is made and entered
into as of _____, 1996, by and among U.S. Robotics Corporation, a Delaware
corporation ("USR"), and each of the stockholders of Scorpio Communications
Ltd., an Israeli private company limited by shares (the "Company") who have
executed and delivered an Acceptance and Adoption Agreement (each, a
"Stockholder" and collectively, the "Stockholders"). This Agreement forms a
part of an offer accepted by the holders of more than 90% of the value of the
Company Common, and by which all other holders of Company Common are bound
pursuant to notice given under Section 236 of the Company's Ordinance, and
accordingly the Section 236 Holders are, by virtue of Section 236 of the
Companies Ordinance, entitled to the benefits and subject to the obligations
imposed on the Stockholders hereunder, all subject to the terms and conditions
hereof.
The parties hereto, intending legally to be bound, hereby agree as
follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Agreement for Exchange of
Shares, dated as of July 2, 1996, among USR, USR International, Inc., a
Delaware corporation and indirectly wholly-owned subsidiary of USR
("Holdings"), the Company and the Stockholders (the "Exchange Agreement").
All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Exchange Agreement. As used in this
Agreement, the following terms shall have the meanings ascribed to them below:
(a) "Business Day" means any day on which trading is conducted on
NASDAQ.
(b) "Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplements with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, by any other amendments and
prospectus supplements (including post-effective amendments), and by any
material incorporated by reference therein.
(c) "Registrable Securities" means (x) the shares of USR Common
received by the Stockholders at the Closing under the Exchange Agreement
pursuant to Section 2.5 of the Exchange Agreement (including Escrow Shares, as
defined in the Exchange Agreement), (y) the shares of USR Common received by
the Section 236 Holders pursuant to the Section 236 Action and Section 236 of
the Companies Ordinance, and (z) any securities issued or issuable in respect
of or in exchange for any of the shares of USR Common referred to in clauses
(x) or (y) above by way of a stock dividend or stock split or in connection
with a combination of shares of USR Common, recapitalization, reclassification,
merger, consolidation, or exchange offer. For purposes of this Agreement, a
Registrable Security ceases to constitute a Registrable Security (i) when such
Registrable Security shall have been effectively registered under the
Securities Act and disposed of pursuant to the Registration Statement, (ii)
when such Registrable Security shall have been sold pursuant to Rule 144 (or
any successor provision) under the Securities Act, (iii) when such Registrable
Security shall have been otherwise transferred and a new certificate for such
Registrable Security not bearing a legend restricting further transfer shall
have been delivered by USR together with a letter from the Secretary of USR
confirming that the restriction has terminated, (iv) on the third anniversary
of the Closing under the Exchange Agreement, (v) with respect to any
<PAGE> 2
particular Stockholder, on the date on which all of such Stockholder's
remaining Registrable Securities could be sold to the public in a single
transaction in compliance with Rule 144 under the Securities Act, or (vi) when
such Registrable Security shall have ceased to be outstanding.
(d) "Registration Statement" shall have the meaning set forth in
Section 2.
(e) "Section 236 Holder" shall mean any Company Holder to whom USR
Common is issued in exchange for such Company Holder's Company Common in a
compulsory exchange pursuant to Section 236 of the Companies Ordinance.
(f) "Stockholder" means any Stockholder as well as such Stockholder's
transferees as permitted by Section 9(c) of this Agreement.
(g) "Termination Date" shall have the meaning set forth in Section 2.
2. Shelf Registration.
(a) Effective Registration. USR shall, to the extent it has not
already done so, file with the SEC under the Securities Act a Registration
Statement on Form S-3 or such other registration form as USR shall deem
appropriate (the "Registration Statement") covering the sale on a continuous or
delayed basis pursuant to Rule 415 thereunder (or any similar rule that may be
adopted by the SEC) of all securities that, upon the Closing under the Exchange
Agreement or upon completion of the Section 236 Action, shall constitute
Registrable Securities. USR shall cause such Registration Statement to be
declared effective no later than the date of the Closing, and shall thereafter
keep the Registration Statement continuously effective until the first date
(the "Termination Date") on which no Registrable Securities originally covered
by such Registration Statement shall constitute Registrable Securities.
(b) Inclusion of Other Securities. No securities other than
Registrable Securities shall be included in the Registration Statement;
provided, however, that nothing contained in this Agreement shall prohibit USR
from filing other registration statements.
3. Registration Procedures.
(a) USR Procedures. In connection with USR's registration
obligations pursuant to Section 2, USR shall use its best efforts to keep
continuously effective the Registration Statement for the period of time
provided in Section 2, to permit the sale of Registrable Securities pursuant to
the Registration Statement in accordance with the intended method or methods of
distribution thereof specified in the Registration Statement or in the related
Prospectus(es), and shall:
(i) comply with such provisions of the Securities Act,
the Exchange Act and the rules and regulations thereunder as may be
necessary to facilitate the disposition of all Registrable Securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of disposition thereof
set forth in such Registration Statement or such Prospectus or
supplement thereto;
(ii) notify the Stockholders' Agents, promptly (A) when
the Registration Statement, Prospectus or supplement thereto or
further post-effective amendment has been filed, and, with respect to
the Registration Statement or further post-effective amendment when it
has become effective, (B) of any request by the SEC for amendments or
supplements to the Registration Statement or Prospectus or for
additional information, (C) of the issuance by the SEC of any comments
with respect to any filing and of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
-2-
<PAGE> 3
proceedings for that purpose, (D) of the receipt by USR of any
notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (E) of
the happening of any event that makes any statement made in the
Registration Statement, Prospectus or any document incorporated
therein by reference untrue or that requires the making of any changes
in the Registration Statement, Prospectus or any document incorporated
therein by reference in order that such documents not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (F) of USR's determination that a further
post-effective amendment to the Registration Statement would be
appropriate;
(iii) furnish to the Stockholders' Agents, without
charge, as many conformed copies as may reasonably be requested by
such Stockholders' Agents, of the Registration Statement and any
further amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(iv) deliver to the Stockholders' Agents, without
charge, as many copies of the then effective Prospectus covering such
Registrable Securities and any amendments or supplements thereto as
such Person may reasonably request (provided, that nothing herein
shall require the Company to have the Registration Statement or any
Prospectus professionally typeset);
(v) register, qualify, obtain an exemption therefrom,
or cooperate with the Stockholders, the Section 236 Holders and their
respective counsel in connection with the registration or
qualification or exemption therefrom of such Registrable Securities
for offer and sale under the securities or blue sky laws of such
jurisdictions as reasonably requested in writing by the Stockholders'
Agents and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Registrable
Securities covered by the then effective Registration Statement;
provided, however, that USR shall not be required to (w) qualify as a
foreign corporation or generally to transact business in any
jurisdiction where it is not then so qualified, (x) qualify as a
dealer (or other similar entity) in securities, (y) otherwise subject
itself to taxation in connection with such activities, or (z) take any
action which would subject it to general service of process in any
jurisdiction where it is not then so subject;
(vi) upon the occurrence of any event contemplated by
clauses (E) or (F) of paragraph (ii) above, promptly prepare and file,
if necessary, a further post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document
so that the Registration Statement and the Prospectus will not
thereafter contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading;
(vii) in no event later than three (3) Business Days
before filing the Registration Statement, any further amendment
thereto, any Prospectus or any amendment or supplement thereto (other
than any amendment or supplement made solely as a result of
incorporation by reference of documents), furnish to the Stockholders'
Agents copies of all such documents proposed to be filed;
(viii) not file the Registration Statement or amendment
thereto or any Prospectus or any supplement thereto (other than any
amendment or supplement made solely as a result of incorporation by
reference of documents) to which the Stockholders and/or Section 236
Holders holding a majority of the Registrable Securities shall have
reasonably objected, as evidenced by written notice to USR from the
Stockholders' Agents, within three (3) Business Days after receipt of
such documents, to the effect that the Registration Statement or
amendment thereto or Prospectus or supplement thereto does not comply
in all material respects with the requirements of the Securities Act
(including, without limitation, in respect of any information
describing the manner in which the Stockholders and/or Section 236
-3-
<PAGE> 4
Holders acquired such Registrable Securities and the intended method
or methods of distribution of such Registrable Securities), (provided
that the foregoing shall not limit the right of any Stockholder or
Section 236 Holder reasonably to object, within three (3) Business
Days after receipt of such documents, to any particular information
relating specifically to such Stockholder or Section 236 Holder that
is to be contained in the Registration Statement, Prospectus or
supplement, including, without limitation, any information describing
the manner in which such Stockholder or Section 236 Holder acquired
such Registrable Securities and the intended method or methods of
distribution of such Registrable Securities), and if USR is unable to
file any such document due to the objections of the Stockholders
and/or Section 236 Holders, USR shall use its best efforts to
cooperate with the Stockholders and/or Section 236 Holders to prepare,
as soon as practicable, a document that is responsive in all material
respects to the reasonable objections of the Stockholders and/or
Section 236 Holders; and
(ix) promptly after the filing of any document that is
to be incorporated by reference into the Registration Statement or
Prospectus, provide copies of such document to the Stockholders'
Agents.
(b) Stockholder and Section 236 Holder Procedures.
(i) USR may require each Stockholder and Section 236
Holder to furnish to USR such information regarding such Stockholder
or Section 236 Holder and the distribution of such Registrable
Securities as USR may from time to time reasonably determine to be
necessary in order to allow USR to comply with Section 2(a) hereof.
(ii) Each Stockholder and Section 236 Holder agrees to
use its best efforts to cooperate with USR in all reasonable respects
in connection with the preparation and filing of the Registration
Statement, any amendment thereto, any Prospectus and any Prospectus
supplement.
(iii) Stockholders and Section 236 Holders selling
Registrable Securities shall not be required to deliver any documents
in connection with such sale other than (A) stock certificates and
normal transfer documents and (B) a certification from the Stockholder
that such sale has been made in compliance with this Agreement, and
that the seller has delivered a current copy of the Prospectus to the
purchaser.
4. Selling Restrictions.
(a) Each Stockholder and Section 236 Holder agrees to notify USR,
directly or through the Stockholders' Agents, at least two (2) Business Days
prior to any disposition of Registrable Securities pursuant to the Registration
Statement of such Stockholder's or Section 236 Holder's intent to sell or
otherwise dispose of any Registrable Securities. Such notice shall be in
writing, by facsimile or by an actual telephone conversation with either (x)
USR's Vice President, Finance and Chief Financial Officer or (y) USR's Vice
President, General Counsel and Secretary or (z) USR's Director, Office of the
Corporate Secretary at the address, facsimile number or the phone number, as
the case may be, all as set forth in Section 9(d) below. USR will exert
reasonable efforts to respond to such notice by the next Business Day on which
the notice is actually received, but in any event, USR shall respond no later
than the second Business Day following the date of receipt. Such response
shall consist of one of the following:
(i) an oral or written confirmation that USR knows of no
reason why the Stockholder or Section 236 Holder should not proceed
with the proposed sale or disposition; or
(ii) a notification that the proposed disposition must be
delayed for a specified period of up to thirty (30) days as provided
in Section 4(b) below; or
-4-
<PAGE> 5
(iii) a confirmation from either (A) the Vice President,
Finance and Chief Financial Officer, or (B) the Vice President,
General Counsel and Secretary or (C) the Director, Office of the
Corporate Secretary of USR that USR requires a limited time, not to
exceed three (3) Business Days following USR's receipt of the
Stockholder's or Section 236 Holder's notice, within which to
determine which of the foregoing responses is appropriate under the
circumstances.
Each Stockholder and Section 236 Holder agrees not to sell or otherwise dispose
of any Registrable Securities until the expiration of the applicable time
period described in clauses (ii) and (iii) above. The failure by USR to
respond by the end of the second Business Day shall be deemed to be no
objection to the proposed sale or disposition; provided that the Stockholder or
Section 236 Holder has made a second attempt to contact USR by telephone or
facsimile prior to the end of such second Business Day.
(b) In response to any notice given pursuant to Section 4(a), USR
may restrict disposition of such Registrable Securities, in which event such
Stockholder or Section 236 Holder agrees not to dispose of such Registrable
Securities, provided that:
(i) USR shall have delivered a notice in writing to
such Stockholder or Section 236 Holder, either directly or through the
Stockholders' Agents, stating that a delay in the disposition of such
Registrable Securities is necessary because USR, in its reasonable
judgment, has determined that such sales would require public
disclosure by USR of material nonpublic information that USR deems it
advisable not to disclose and the specified period (which, subject to
Sections 4(a)(iii) and 4(b)(iii), shall not exceed thirty (30) days)
in which such disposition may not be made; provided, however, that no
such delay shall be imposed unless USR shall equally prohibit during
the period of such delay any sale of USR's securities by any executive
officer or director of USR and by all holders of registration rights
similar to those granted by this Agreement;
(ii) in the event of the delivery of the notice
described in (b)(i) above by USR, USR shall use its best efforts to
amend the Registration Statement or amend or supplement the
Prospectus, if necessary, and to take all other actions necessary to
allow the proposed disposition to take place as promptly as possible
after the conditions referred to therein have ceased to exist;
(iii) USR shall not restrict dispositions under (b)(i)
above for a period exceeding thirty (30) days unless USR shall have
delivered to the Stockholder or Section 236 Holder, within the period
specified in the notice referred to in Section 4(b)(i) and subject to
the restrictions set forth in Section 4(b)(i), either directly or
through the Stockholders' Agents, a second notice in writing extending
the restriction period up to an additional fifteen (15) days (or such
shorter period of time as specified in the notice);
(iv) in no event shall USR be permitted to extend the
restriction period under (b)(i) above beyond the forty-five (45) day
period, and USR shall not restrict sales of Registrable Securities by
such Stockholder or Section 236 Holder under (b)(i) above more than a
total of twice in any twelve (12) month period; and
(v) the expiration of the period specified in the
notice under Section 4(b)(i) or Section 4(b)(iii) without any further action
on behalf of such Stockholder, such Section 236 Holder or USR will be deemed to
be no objection by USR to the proposed disposition, which may be made
immediately thereafter.
(c) Each Stockholder and each Section 236 Holder agrees not to
effect any public sale or distribution of any of USR's securities during the
period beginning ten (10) days prior to and ending up to ninety (90) days
after, the closing of an underwritten offering of securities by USR if the
managing underwriter in such offering determines the sale of Registrable
Securities by a Stockholder or Section 236 Holder would have an adverse
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<PAGE> 6
effect on an orderly public distribution of securities in the underwritten
offering or would have an adverse effect on the price of the securities offered
in the underwritten offering; provided, that each executive officer and
director of USR and each holder of registration rights similar to those granted
by this Agreement is subject to the same restrictions, provided, further, that
in the event of any underwritten secondary offering, USR shall provide notice
of such proposed offering to the Stockholders and the Section 236 Holders,
either directly or through the Stockholders' Agents, and, if within ten (10)
days of receipt of such notice, the Stockholders and/or the Section 236 Holders
submit a request, directly or through the Stockholders' Agents, to USR
specifying an aggregate number of Registrable Securities in excess of 20,000
shares of USR Common (as adjusted if USR shall declare a stock dividend or
distribution upon or subdivide, split up, reclassify or combine the USR Common
or declare a dividend, or make a distribution, on the USR Common in any
security convertible into USR Common) that they propose to sell, USR shall use
reasonable efforts to include the shares of Registrable Securities specified in
such request, in the offering and if the underwriter(s) inform USR that not all
of such shares can be included in the offering, then such shares will be
included in the offering on a pro rata basis with the other shareholders of USR
having similar "piggyback" rights.
(d) Each Stockholder and each Section 236 Holder agrees that, upon
receipt of any notice from USR, either directly or through the Stockholders'
Agents, of the happening of any event of the kind described in Sections
3(a)(ii)(B)-(F), such Stockholder or Section 236 Holder shall forthwith
discontinue all sales and distributions of Registrable Securities pursuant to
the then current Prospectus until such Stockholder, or such Section 236 Holder
receives copies of a supplemental or amended Prospectus contemplated by Section
3(a)(vi), or until such Stockholder or such Section 236 Holder (directly or by
notice from USR to the Stockholders' Agent) is advised in writing by USR that
the use of the Prospectus may be resumed, and, if so directed by USR, such
Stockholder or such Section 236 Holder or such Stockholders' Agent will deliver
to USR all copies then in the possession of such Stockholder or such
Stockholders' Agent of the Prospectus in effect with respect to the Registrable
Securities at the time of such notice by USR. Subject to USR's rights under
Sections 4(b) and 4(c), USR shall promptly take all such action as may be
necessary or appropriate, including, without limitation, the filing of an
amendment to the Registration Statement and/or the filing of an amended or
supplemental Prospectus, to limit the duration of any discontinuance with
respect to the sale and distribution of Registrable Securities pursuant to this
Section 4(d).
(e) The Stockholders and the Section 236 Holders shall not be
subject to any restrictions in the sale of their Registrable Securities other
than (i) restrictions imposed by law, (ii) the restrictions described in this
Agreement, (iii) in the case of Stockholders or Section 236 Holders who became
employees, officers or directors of USR, any restrictions applicable to
employees, officers or directors generally under policies of USR (including,
without limitation, policies relating to executive officers of USR in
connection with Section 16(a) of the Exchange Act), and (iv) restrictions
arising under other agreements to which such Stockholder or Section 236 Holder
is a party.
5. Registration Expenses.
All expenses incident to USR's performance of or compliance with this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications or
registrations (or the obtaining of exemptions therefrom) of the Registrable
Securities), printing expenses (including expenses of printing Prospectuses),
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), fees and disbursements of its counsel and its
independent certified public accountants, securities acts liability insurance
(if USR elects to obtain such insurance) and reasonable fees and expenses of
any special experts retained by USR in connection with any registration
hereunder (all such expenses being herein referred to as "Registration
Expenses"), shall be borne by USR; provided, however, that Registration
Expenses shall not include any sales or underwriting discounts, commissions or
fees attributable to the sale of the Registrable Securities or the fees
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<PAGE> 7
and expenses of counsel to the Stockholders and the Section 236 Holders, all of
which shall be borne by the Stockholder or Section 236 Holder selling such
Registrable Securities.
6. Indemnification; Contribution.
(a) Indemnification by USR. USR shall indemnify and hold
harmless, to the full extent permitted by law, each Stockholder, each Section
236 Holder and such Stockholder's or Section 236 Holder's respective general
partners, officers, employees, directors and agents, and each Person who
controls (within the meaning of the Securities Act) such Stockholder or Section
236 Holder, against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and legal expenses) resulting from
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectus, or any amendment or supplement thereto,
or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except, in each case,
insofar as the same arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in such Registration Statement, Prospectus, amendment
or supplement, as the case may be, made or omitted, as the case may be, in
reliance upon and in conformity with written information furnished to USR by
such Stockholder for use therein. This indemnity is in addition to any
liability that USR may otherwise have; provided, however, that the foregoing
shall not (i) extend to any misstatement or omission that is based upon any
misrepresentation or breach of warranty by the Company or any Stockholder under
the Exchange Agreement or (ii) limit any right of USR to indemnity under the
Exchange Agreement.
(b) Indemnification by the Stockholders. Each Stockholder shall
indemnify and hold harmless, to the full extent permitted by law, USR, its
officers, directors, employees, representatives and agents, and each Person who
controls (within the meaning of the Securities Act) USR, against all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and legal expenses) resulting from any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus, or any amendment or supplement thereto, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, to the extent the same arises out of or is based upon an
untrue statement or alleged untrue statement of a material fact or an omission
or alleged omission to state a material fact in such Registration Statement,
Prospectus, amendment or supplement, as the case may be, made or omitted, as
the case may be, in reliance upon and in conformity with written information
furnished to USR by such Stockholder expressly for use therein. This indemnity
is in addition to any liability that such Stockholder or Section 236 Holder may
otherwise have.
(c) Conduct of Indemnification Proceedings. Each party entitled
to indemnification under this Section 6 (the "Indemnified Party") shall give
notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom;
provided, that counsel for the Indemnifying Party, who will conduct the defense
of such claim or litigation, is approved by the Indemnified Party (whose
approval will not be unreasonably withheld or delayed); and provided, further,
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations except to the
extent that its defense of the claim or litigation involved is prejudiced by
such failure. The Indemnified Party may participate in such defense at such
party's expense; provided, however, that the Indemnifying Party shall pay such
expense if representation of such Indemnified Party by the counsel retained by
the Indemnifying Party would be inappropriate due to actual or potential
conflicts of interest between the Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant
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<PAGE> 8
or plaintiff to such Indemnified Party of a release from all liability in
respect of any claim or litigation, and no Indemnified Party will consent to
entry of any judgment or settle any claim or litigation without the prior
written consent of the Indemnifying Party. Each Indemnified Party shall, at
the Indemnifying Party's expense, furnish such information regarding himself,
herself or itself and the claim in question as the Indemnifying Party may
reasonably request and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
(d) Contribution.
(i) If for any reason the indemnification provided for
in this Section 6 from an Indemnifying Party, although otherwise
applicable by its terms, is determined by a court of competent
jurisdiction to be unavailable to an Indemnified Party hereunder, then
the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of an Indemnifying Party and Indemnified
Party in connection with the actions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the
Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact,
has been made by, or relates to information supplied by, an
Indemnified Party or Indemnified Parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the
limitations set forth in Section 6(c), any legal or other fees or
expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to
in the immediately preceding paragraph. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
7. Rule 144.
USR shall take such further action as any Stockholder or Section 236
Holder may reasonably request to the extent required from time to time to
enable such Stockholder or Section 236 Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144.
8. Termination.
This Agreement shall terminate at the Termination Date; provided,
however, that the provisions of Sections 6 and 7 shall survive the termination
of this Agreement.
9. Miscellaneous.
(a) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
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<PAGE> 9
the parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity.
(b) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless USR shall have obtained the prior written consent of the
Stockholders and/or Section 236 Holders holding 50% of the securities at the
time constituting Registrable Securities.
(c) Transferability. The rights provided by this Agreement are
transferable by a Stockholder or Section 236 Holder (i) by will or intestacy,
(ii) to an immediate family member, (iii) to a trust the beneficiaries of which
are exclusively Stockholders or Section 236 Holders, or (iv) any other person
controlling, controlled by or under common control with such person, whether by
ownership or control of voting securities, by contract or otherwise, provided,
that in the case of any such transfer (x) USR is given written notice of the
transfer and the name, address, telephone number and facsimile number of the
transferee, and (y) the subsequent transferee agrees in writing to be bound by
the terms of this Agreement, and a copy of such agreement of the transferee is
delivered to USR.
(d) Notices. All notices, requests, waivers, releases, consents,
and other communications required or permitted by this Agreement (collectively,
"Notices") shall be in writing. Except as otherwise provided in Section 4(a),
notices shall be deemed sufficiently given for all purposes under this
Agreement (i) when delivered in person, (ii) on the next business day following
the date when dispatched by telegram (upon written confirmation of receipt), by
electronic facsimile transmission or (upon written confirmation of receipt) or
by a nationally recognized overnight courier service, or (iii) five Business
Days after being deposited in the mail, postage prepaid, if mailed. All
Notices shall be delivered as follows:
(i) if to a Stockholder or a Section 236 Holder, at
the address indicated on USR's register relating to such securities or
at such other address as such Stockholder or Section 236 Holder may
have furnished to USR in writing
(ii) if to the Stockholders' Agents, at:
Tulchinsky Stern
22 Kanfei Nesharim Street
Jerusalem 95464
Attention: Doran Stern
Telephone: 972-2-651-1919
Facsimile: 972-2-651-3133
(iii) if to USR, at:
U.S. Robotics Corporation
8100 North McCormick Boulevard
Skokie, Illinois 60076
Facsimile No.: 847-933-5551
Attention: George A. Vinyard
Vice President,
General Counsel and Secretary
Telephone: (847) 933-5830
Facsimile: (847) 933-5149
Mark Remissong
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<PAGE> 10
Vice President, Finance
and Chief Financial Officer
Telephone: (847) 933-5796
Facsimile: (847) 933-5551
Robin Bourne Carris
Director, Office of the
Corporate Secretary
Telephone: (847) 933-5922
Facsimile: (847) 933-5149
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Facsimile No.: (312) 701-7711
Attention: Richard S. Millard
or to such other addresses, telephone numbers and facsimile numbers as USR may
hereafter designate by a notice given in accordance herewith.
(e) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of USR, and each Stockholder and each Section
236 Holder, their respective successors, heirs, legal representatives, and the
assignees of USR and, to the extent permitted by Section 9(c), the assignees of
any Stockholder or Section 236 Holder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(g) Headings; Construction. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Unless the context otherwise requires, all references to
Sections are to sections of this Agreement, "or" is inclusively disjunctive,
and words in the singular include the plural and vice versa. In computing any
period of time specified in this Agreement or in any Notices, the date of the
act or event from which such period of time is to be measured shall be
included, any such period shall expire at 5:00 p.m., Chicago time, on the last
day of such period, and any such period denominated in months shall expire on
the date in the last month of such period that has the same numerical
designation as the date of the act or event from which such period is to be
measured; provided, however, that if there is no date in the last month of such
period that has the same numerical designation as of the date of such act or
event, such period shall expire on the last day of the last month of such
period.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware,
without regard to the principles of conflicts of laws thereof.
(i) Severability. If one or more of the provisions hereof, or the
applicable thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect, for any reason, the validity, legality and
enforceability of the remaining provisions hereof shall not be in any way
affected or impaired thereby, and the provisions held to be invalid, illegal or
unenforceable shall be reformed to the minimum extent necessary, and in a
manner as consistent with the purposes thereof as is practicable, so as to
render it valid, legal and enforceable.
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<PAGE> 11
(j) Entire Agreement. This Agreement is intended by the parties
hereto to be a final expression thereof and (together with the Exchange
Agreement) is intended to be a complete and exclusive statement of the
agreement and understanding of such parties in respect of the subject matter
contained herein. This Agreement supersedes all prior agreements and
understandings among USR and any of the Stockholders and/or Section 236 Holders
with respect to such subject matter.
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<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
U.S. ROBOTICS CORPORATION
By:
-----------------------------
Name:
Title:
STOCKHOLDERS:
[insert names]
SECTION 236 HOLDERS
[insert names]
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