EXHIBIT 10.3
AFFILIATE'S AGREEMENT
November 20, 1995
ICOT CORPORATION
X.X. XXX 0000
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Amended and Restated Agreement and Plan of
Reorganization and Merger dated as of August 3, 1995 as amended by the Amendment
thereto dated as of October 6, 1995 (the "Agreement") made and entered into by
and among ICOT Corporation, a Delaware corporation ("ICOT"), Amati
Communications Corporation, a California corporation ("Amati"), and IA
Acquisition Corporation, a California corporation and a wholly-owned subsidiary
of ICOT ("IAAC"). The Agreement provides for the merger of Amati with and into
IAAC (the "Merger") in a transaction in which shares of Amati Common Stock
("Amati Common") will be exchanged and converted into shares of ICOT Common
Stock ("ICOT Common"). To induce ICOT to enter into the Agreement and to effect
the Merger, I, Xxxx X. Xxxxxx, hereby agree to the terms of this Affiliates
Agreement.
I have been informed that the shares of ICOT Common which I will acquire in
connection with the Merger will not be registered for resale under the
Securities Act of 1933, as amended (the "Securities Act"); that the Merger
constitutes a transaction covered by Rule 145 of the Rules and Regulations of
the Securities and Exchange Commission (the "Commission") under the Securities
Act; that I may be deemed to be an "affiliate" of Amati within the meaning of
Rule 145; and that, accordingly, the shares of ICOT Common which I will acquire
in connection with the Merger may only be disposed of in compliance with the
holding periods specified in Rule 144 and otherwise in compliance with the
provisions of Rule 145 or pursuant to a resale prospectus under an effective
registration statement covering such resales and the other limitations described
herein.
I understand that the representations, warranties and agreements set forth
herein will be relied upon by counsel for ICOT and Amati in rendering opinions
regarding tax and other legal consequences of the Merger.
1. I represent, warrant and agree as follows:
(a) I have full power to execute this letter and to make the
representations, warranties and agreements herein and to perform my
obligations hereunder.
(b) APPENDIX A attached hereto sets forth all shares of Amati Common
owned by me, including all options or other rights to acquire Amati
Common and all equity securities (including any shares of preferred stock)
of Amati as to which I have sole or shared voting or investment power.
(c) I will not sell, transfer or dispose of any shares of ICOT Common
that I may acquire in connection with the Merger in exchange for the
shares of Amati Common owned by me, any securities which may be paid as a
dividend or otherwise distributed thereon or with respect thereto or issued
or delivered in exchange or substitution therefor or upon conversion thereof
or issued upon exercise of options to purchase ICOT Common held by me at the
effective time (the "Effective Time") of the Merger (which Effective Time I
understand is expected to be on or about November 20, 1995) (all such shares
and other securities being herein sometimes collectively referred to as
"Restricted Securities"), or any option, right or other interest with
respect to any Restricted Securities, unless such sale, transfer or
disposition is effected as provided in Section 3 hereof.
(d) Notwithstanding Section 1(c) hereof, within 90 days after the
Effective Time, I will not sell, transfer or dispose of any
Restricted Securities.
ICOT CORPORATION
November 20, 1995
Page 2
(e) Without the written consent of ICOT, which consent shall not be
unreasonably withheld in the event of a transfer to a trust, I will
not (i) in the period up to one year after the Effective Time, sell,
transfer or otherwise dispose of any Restricted Securities in excess of 25%
of the number of shares of ICOT Common equal to the aggregate of the number
of shares of ICOT Common that I acquire at the Effective Time in exchange
for the shares of Amati Common owned by me plus the number of shares of ICOT
Common issuable to me within the two-year period following the Effective
Time upon exercise of fully-vested options to purchase ICOT Common
(together, the "Lock-up Securities") or (ii) in the period up to two years
after the Effective Time, sell, transfer or otherwise dispose of more than
50% of the Lock-up Securities. I understand that any sale, transfer or
disposition of Restricted Securities under this Section 1(e) is also subject
to the restrictions set out in Section 3 hereof.
2. By countersigning below, ICOT agrees that it will: (i) until the second
anniversary of the Effective Time, file all reports required to be filed
under the Exchange Act of 1934, as amended, within the time period permitted;
and (ii) after the second anniversary of the Effective Time, use its best
efforts to file all reports and data with the Commission necessary to permit me
to sell Restricted Securities pursuant to and otherwise in conformity with Rules
144 and 145 under the Securities Act. I understand that, except as set forth in
the Registration Rights Agreement among ICOT, certain other affiliates of Amati
and me attached hereto as EXHIBIT A, ICOT is under no obligation to register the
sale, transfer, or other disposition of any Restricted Securities by or on
behalf of me or to take any other action necessary in order to make compliance
with an exception from registration available to me, other than as set forth
herein.
3. I understand that the provisions of Rule 144 restrict public resales of
Restricted Securities. I understand that I may publicly sell my
Restricted Securities only as follows:
(a) PURSUANT TO RULE 144: I understand Rule 144 permits public resales
of Restricted Securities only if I have beneficially owned the Restricted
Securities for at least two years and am not an affiliate of ICOT, and then
only (a) while ICOT meets the public information requirements of Rule
144(c), (b) in broker's transactions, (c) upon filing of a notice on Form
144 with the Securities and Exchange Commission, and (d) where the aggregate
number of Restricted Securities sold at any time together with all sales of
ICOT Common sold for my account during the preceding three-month period does
not exceed the greater of: (i) one percent of the ICOT Common outstanding;
or (ii) the average weekly volume of trading in ICOT Common on all national
securities exchanges and/or reported through the automated quotation system
of a registered securities association, during the four calendar week period
preceding any such sale.
(b) PURSUANT TO RULE 144(K): I understand I may make unrestricted
resales of Restricted Securities pursuant to Rule 144(k) if I have
beneficially owned the Restricted Securities for at least three years and am
not, and have not been for at least three months, an affiliate of ICOT.
By its countersignature below ICOT acknowledges that the provisions of
Section 1(c) of this Affiliate's Agreement will be satisfied, as to any sale by
me of Restricted Securities: (i) pursuant to Rule 144 under the Securities Act
while ICOT meets the public information requirements of Rule 144(c), by a
broker's letter with respect to that sale stating that each of the
above-described requirements of Rule 144 has been met or is inapplicable by
virtue of Rule 144(k); or (ii) in a transaction otherwise exempt from the
Securities Act; provided, however, that if counsel for ICOT reasonably believes
that the provisions of Rule 144 or the Securities Act have not been complied
with, and if requested by ICOT in connection with a proposed disposition other
than pursuant to a registered offering, I will furnish to ICOT a copy of a "no
action" letter or other communication from the staff of the SEC, or an opinion
of counsel in form and substance satisfactory to ICOT and its counsel, to the
effect that all of the applicable requirements of Rule 144 under the Securities
Act have been complied with or that the disposition may be otherwise effected in
the manner requested in compliance with the Securities Act.
ICOT CORPORATION
November 20, 1995
Page 3
4. I also understand that stop transfer instructions will be given to ICOT's
transfer agent with respect to certificates evidencing the Restricted
Securities and that there will be placed on the certificates evidencing the
Restricted Securities a legend stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN AN AGREEMENT BETWEEN THE REGISTERED HOLDER
THEREOF AND ICOT. THE AGREEMENT PROVIDES THAT THE SHARES MAY NOT BE
SOLD, TRANSFERRED OR DISPOSED OF UNLESS SUCH SALE, TRANSFER OR
DISPOSITION MEETS THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") OR IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE ACT. A COPY OF SUCH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICES OF THE COMPANY.
By countersigning below ICOT agrees that such stop transfer instruction and
legend will be removed promptly if the provisions of this letter are complied
with or, upon request by the undersigned, after the third anniversary of the
Effective Time; provided, however, that ICOT reserves the right to impose stop
transfer instructions and legends on certificates with respect to shares held by
affiliates of ICOT to insure compliance with Rule 144 under the Securities Act
in the manner that ICOT generally takes such measures with respect to shares
held by its affiliates.
5. Once countersigned by ICOT, this letter shall be binding upon and
enforceable against me and my administrators, executors, representatives,
heirs, legatees and devisees and any pledgee holding Restricted Securities as
collateral.
6. I have carefully read this letter and have discussed its requirements and
other applicable limitations upon the sale, transfer, or other
disposition of the Restricted Securities and other ICOT securities owned by me
with my counsel to the extent I felt necessary.
Very truly yours,
__________/s/_John M. Cioffi__________
Xxxx X. Xxxxxx
Agreed to and accepted:
ICOT CORPORATION
By: __________/s/_Aamer Latif_________
Xxxxx Xxxxx, President
APPENDIX A
TO
AFFILIATE'S AGREEMENT
200,000 shares of Common Stock
Options to purchase 150,000 shares of Common Stock
