Exhibit 4.1
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement (this "Amendment") is dated as of
October 17, 2001 among VINA TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York corporation
(the "Rights Agent"), with reference to the following:
A. The Company and the Rights Agent entered into that certain Rights
Agreement dated as of July 25, 2001 (the "Agreement") in order to implement a
shareholder rights plan as more fully described therein.
B. The Company desires to amend the Agreement in certain respects in order
to permit Sierra Ventures V, L.P. and Sierra Ventures VI, L.P (or any of their
affiliates) to purchase additional shares of Common Stock of the Company without
triggering the occurrence of the Distribution Date (as defined in the
Agreement).
C. Under the Agreement, the Company and the Rights Agent may amend the
Agreement, at any time prior to the Distribution Date, which has yet to occur.
NOW, THEREFORE, pursuant to Section 27 of the Agreement, the Company and
the Rights Agent hereby amend, effective upon the date hereof, the definition of
the term "Acquiring Person" set forth in Section 1(a) of the Agreement such that
Section 1(a)(ii)(F) of the Agreement shall read in its entirety as follows:
"(F) Sierra Ventures V, L.P. and Sierra
Ventures VI, L.P. (referred to collectively with their
Affiliates and Associates as "Sierra"), so long as Sierra is
not the Beneficial Owner of a percentage of the outstanding
shares of Common Stock that is greater (by more than one
percent (1%) of the outstanding shares of Common Stock) than
(1) the percentage of the outstanding shares of Common Stock
represented by the sum of (x) the shares as to which Sierra
has Beneficial Ownership on July 25, 2001, plus (y) the shares
as to which Sierra obtains Beneficial Ownership, pursuant to
the transactions described in that certain Securities Purchase
Agreement, dated October 17, 2001, entered into by the Company
and each of the "Investors" named therein and that certain
Agreement and Plan of Merger, dated October 17, 2001, by and
between the Company and MOS Acquisition Corporation, or (2)
such lesser percentage as to which Sierra has Beneficial
Ownership following any transfer of securities by Sierra after
July 25, 2001 (except that this clause (F) shall pertain only
until such time as Sierra has Beneficial Ownership of less
than twenty percent (20%) of the outstanding shares of Common
Stock); provided, that any shares of Common Stock Beneficially
Owned by one or more officers or directors of the Company
where (x) such officers or directors are also included within
the term "Sierra" and (y) such shares of Common Stock were
distributed directly by the Company to such officers or
directors as equity based compensation, shall be excluded from
the calculation of the Beneficial Ownership of Sierra for
purposes of the definition of "Acquiring Person" if the
inclusion of such shares of Common Stock in such calculation,
by itself, would otherwise cause Sierra to be an Acquiring
Person; and"
This Amendment may be executed in any number of counterparts, each which
shall be deemed an original, and all of this together shall constitute one
instrument.
IN WITNESS WHEREOF, this Amendment is executed as of the date first written
above.
VINA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Title: Chief Financial Officer
--------------------------------
AMERICAN STOCK TRANSFER AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
