Exhibit 10.3
This
VOTING AND NOTEHOLDER AGREEMENT (this
“Agreement”), dated as of December 1, 2005, is by
and among Fluke Electronics Corporation, a
Delaware corporation
(the “Buyer”), HEA Corporation, a
Delaware corporation
and a wholly-owned subsidiary of the Buyer (the “Transitory
Sub”), and each entity listed in Exhibit I hereto
(each, a “Noteholder” and together, the
“Noteholders”).
WHEREAS, the Buyer, the Transitory Sub and Visual Networks, Inc.
(the “Company”) propose to enter into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented pursuant to the terms thereof, the
“Merger Agreement”) providing for the merger of the
Company with and into Transitory Sub (the “Merger”),
upon the terms and subject to the conditions set forth in the
Merger Agreement;
WHEREAS, as of the date hereof, each Noteholder is the record
owner of (i) the principal amount of the Company’s
5% Senior Secured Convertible Notes due December 31,
2007 (collectively as to such Noteholder, such Noteholder’s
“Existing Notes” and, together with any principal
amount of the Company’s 5% Senior Secured Convertible
Notes due December 31, 2007 acquired by such Noteholder
after the date hereof, such Noteholder’s “Notes”)
listed next to such Noteholder’s name in Exhibit I and
(ii) the number of shares of Company Common Stock listed
next to such Noteholder’s name in Exhibit I
(collectively as to such Noteholder, such Noteholder’s
“Existing Shares” and, together with any shares of
Company Common Stock, and/or any other voting securities of the
Company acquired by such Noteholder after the date hereof,
whether upon the exercise of warrants, options or other rights
(including the 2002 Warrants held by such Noteholder), the
conversion of any Notes or other convertible or exchangeable
securities or by means of purchase, dividend, distribution or
otherwise, such Noteholder’s “Shares”);
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, the Buyer has required that each Noteholder,
severally and not jointly, agree, and each Noteholder has
agreed, severally and not jointly, to enter into this Agreement;
WHEREAS, each Noteholder and the Buyer desire to set forth their
agreement with respect to the conversion or tender of the Notes
in certain circumstances and the voting of the Shares in
connection with the Merger and each Noteholder desires to grant
to the Transitory Sub a right of first refusal with respect to
transfers of its Shares, in each case upon the terms and subject
to the conditions set forth herein; and
WHEREAS, capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth below, the parties agree as follows:
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1. Conversion or Tender of Notes at Effective Time. |
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(a) Each Noteholder hereby agrees, severally and not
jointly, that: |
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(i) if the Notes are, by their terms, convertible into
shares of Company Common Stock at or prior to the Effective Time
of the Merger, such Noteholder shall convert all of such
Noteholder’s Notes into Company Common Stock effective
immediately prior to the Effective Time in accordance with the
terms of the Notes; and |
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(ii) if the Notes are not, by their terms, convertible into
shares of Company Common Stock at the Effective Time of the
Merger, such Noteholder shall tender to the Transitory Sub at
the Effective Time such Noteholder’s Notes for an amount in
cash equal to the “Repurchase Price” as specified and
defined in Section 4(a) of the Notes payable to such
Noteholder in immediately available funds as soon as practicable
following the Effective Time. The notice provisions of
Section 4 of the Notes shall not apply to any such tender
for payment. |
It is understood and agreed that this Section 1(a) shall
not be deemed to constitute a waiver of any event of default
under the Notes or to restrict any Noteholder’s ability to
take any actions as a result of any such event of default.
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(b) Note Transfer Restrictions. Each Noteholder
agrees not to sell, transfer, pledge, encumber, assign or
otherwise dispose of or hypothecate (including by gift or by
contribution or distribution to any trust or similar instrument
(collectively, “Transfer”)), or enter into any
contract, option or other arrangement or understanding
(including any profit sharing arrangement) with respect to the
Transfer of, any of such Noteholder’s Notes other than
pursuant to the terms hereof. Notwithstanding the foregoing,
nothing herein shall be construed to prohibit the conversion of
the Notes and any shares of Company Common Stock obtained by a
Noteholder upon such conversion shall be deemed to constitute
such Noteholder’s Shares for purposes of Section 2 of
this Agreement, but shall not be deemed to constitute such
Noteholder’s Shares for purposes of Section 3 of this
Agreement. For avoidance of doubt, a Noteholder shall not be
entitled to Transfer pursuant to Section 3 below any shares
of Company Common Stock obtained by such Noteholder upon such
conversion. |
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2. Voting of Shares; Proxies; Etc. |
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(a) Agreement to Vote. Each Noteholder hereby
agrees, severally and not jointly, that, from and after the date
hereof and until this Agreement shall have been terminated in
accordance with Section 8: |
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(i) At any meeting of the stockholders of the Company
called for purposes that include approval of the Merger and
adoption of the Merger Agreement, however called, or at any
adjournment thereof, or in connection with any written consent
of the stockholders of the Company or in any other circumstances
in which such Noteholder is entitled to vote, consent or give
any other approval with respect to the Merger and adoption of
the Merger Agreement, such Noteholder shall vote (or cause to be
voted) such Noteholder’s Shares (to the extent such Shares
are entitled to be voted by such Noteholder and are not so voted
pursuant to the proxy granted in Section 2(b)) in favor of
adoption of the Merger Agreement and the approval of the terms
thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement. |
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(ii) At any meeting of the stockholders of the Company,
however called, or at any adjournment thereof, or in connection
with any written consent of the stockholders of the Company, or
in any other circumstances in which such Noteholder is entitled
to vote, consent or give any other approval, such Noteholder
shall vote (or cause to be voted) such Noteholder’s Shares
(to the extent such Shares are entitled to be voted by such
Noteholder) against the following actions: |
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(1) any proposal for an action by the Company the taking of
which requires the prior consent of the Buyer under the Merger
Agreement, including the actions set forth in Section 5.1
of the Merger Agreement, for which the Buyer has not provided
such consent; |
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(2) the adoption or approval by the Company of any
Acquisition Proposal. |
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(b) Proxies. As security for the agreements of the
Noteholder provided for herein, each Noteholder hereby grants to
the Transitory Sub a proxy for the term of this Agreement to
vote such Noteholder’s Shares as indicated in
Section 2(a) above. Such Noteholder agrees that this proxy
shall be irrevocable during the term of this Agreement and
coupled with an interest and each of the Noteholder and the
Transitory Sub will, at the Buyer’s sole expense, take such
further action or execute such other instruments as may be
reasonably necessary to effectuate the intent of this proxy and
such Noteholder hereby revokes any proxy previously granted by
such Noteholder with respect to such Noteholder’s Shares
with respect to any meeting, other than the meeting of
stockholders of the Company currently scheduled for
December 6, 2005 and any adjournments or postponements
thereof. |
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(c) Transfer Restrictions. Each Noteholder agrees
not to (i) Transfer, or enter into any contract, option or
other arrangement or understanding (including any profit sharing
arrangement) with respect to the Transfer of, any of such
Noteholder’s Shares other than pursuant to the terms
hereof, (ii) enter into any voting arrangement or
understanding with respect to such Noteholder’s |
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Shares (other than this Agreement), whether by proxy, voting
agreement or otherwise, or (iii) take any action that could
make any of its representations or warranties contained herein
untrue or incorrect in any material respect or would have the
effect of preventing or disabling such Noteholder from
performing any of its obligations hereunder. For the avoidance
of doubt, (i) nothing herein shall be construed to prohibit
the exercise by any Noteholder of warrants to acquire any
Company Common Stock or the conversion of the Notes and
(ii) any shares of Company Common Stock obtained by a
Noteholder upon such exercise or conversion shall be included in
such Noteholder’s Shares. |
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(d) Appraisal Rights. Each Noteholder hereby
irrevocably waives any and all rights which it may have as to
appraisal, dissent or any similar or related matter with respect
to the Merger. |
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(e) No Solicitation. Each Noteholder will not take
any action that if taken by the Company would be a breach of
Section 6.1(a) of the Merger Agreement (disregarding for
this purpose the second sentence of such Section 6.1(a),
but subject to the last sentence of this Section 2(e)). |
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3. Permitted Transfers of Shares; Right of First
Refusal. |
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(a) Each Noteholder agrees that it will not Transfer any of
such Noteholder’s Shares unless in each such case the
Noteholder shall have first complied with this Section 3. |
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(b) Each Noteholder shall be permitted to Transfer such
Noteholder’s Shares (a “Permitted Transfer”) if
(i) such Shares are sold in “brokers’
transactions,” as defined in Rule 144 promulgated
under the Securities Act of 1933, as amended (the
“Securities Act”), or directly to a “market
maker,” as defined in Section 3(a)(38) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), (ii) to the best knowledge of such Noteholder,
no purchaser or any related group (within the meaning of
Section 13(d)(3) of the Exchange Act) would acquire from
the Noteholders more than one percent (1%) of the outstanding
Company Common Stock, (iii) the quoted bid price per share
at the time the order to sell is given by the Noteholder to such
broker is at least equal to the sum of (A) the Merger
Consideration (as defined in the Merger Agreement) and
(B) $0.25 and (iv) such Noteholder has complied with
the provisions of paragraphs 3(c) through 3(f) below. |
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(c) Any Noteholder (a “Selling Noteholder”) that
proposes to effect a Permitted Transfer shall first notify the
Transitory Sub by electronic mail and telephone of such proposed
Transfer, which notification shall (i) indicate the number
of such Noteholder’s Shares proposed to be Transferred (the
“Offered Shares”), (ii) the quoted bid price at
which such Transfer is proposed to be effected (the “Bid
Price”) and (iii) designate a person to contact
regarding the proposed Transfer (including his or her electronic
mail address and telephone number). Such notice shall be given
during “regular trading hours,” as defined in
Regulation NMS promulgated under the Exchange Act on a day
on which the Nasdaq National Market is open by telephone (which
shall be deemed to have been delivered either by reaching in
person at least one of the following persons or by leaving a
voice mail message at each of the telephone numbers set forth
below) and by electronic mail to each of the following persons:
(1) Xxxxxxxx Xxxxxxx, Xxxxxxx Corporation
(xxxxxxxx.xxxxxxx@xxxxxxx.xxx; tel: (000) 000-0000)
and (2) Xxxxxx Xxxxxx, Xxxxxxx Corporation
(xxxxxx.xxxxxx@xxxxxxx.xxx; tel: (000) 000-0000; alt.
tel: (000) 000-0000); with a copy to Xxxxxx X.
Xxxx, Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
(xxxxxx.xxxx@xxxxxxxxxx.xxx; tel: (000) 000-0000). The
date on which such notice is given is hereinafter referred to as
the “Offer Date.” The time at which such notice is
deemed to be delivered as provided in this Section 3(c) is
hereinafter referred to as the “Offer Time.” |
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(d) In the event that the Transitory Sub wishes to exercise
its right of first refusal with respect to all or a portion of
the Offered Shares, the Transitory Sub must advise the Selling
Noteholder within one (1) hour of the Offer Time that
the Transitory Sub is exercising its right of first refusal with
respect to all or a portion of the Offered Shares. Such advice
shall indicate the portion of the Offered Shares that the
Transitory Sub elects to purchase and shall be delivered by
telephone or electronic mail to the person designated for
receipt thereof in the Selling Noteholder’s notice. In the |
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event that the Transitory Sub timely delivers its advice to the
Selling Noteholder as provided herein, the Transitory Sub shall
be irrevocably obligated, subject to the accuracy as of the
Settlement Date (as defined below) of the Selling
Noteholder’s representations and warranties under
Section 4 of this Agreement, to purchase the portion of the
Offered Securities that the Transitory Sub has advised the
Noteholder it elects to purchase at the Bid Price no later than
4:00 p.m., New York time, on the third trading day
following the Offer Date (the “Settlement Date”). |
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(e) In the event that the Transitory Sub does not timely
exercise its right of first refusal for all of the Offered
Shares as provided in Section 3(d) or exercises its right
of first refusal for only a portion of the Offered Shares, the
Selling Noteholder shall have the right to enter into an
agreement complying with the requirements of Section 3(b)
to Transfer all or any part of the Offered Shares as to which
the Transitory Sub has not exercised its right of first refusal
pursuant to Section 3(d) at any time prior to the end of
the second trading day following the Offer Date. The Selling
Noteholder shall notify the Transitory Sub of the identity of
any purchaser of at least 250,000 shares of Company Common
Stock known to the Selling Noteholder. For the avoidance of
doubt, the preceding sentence shall not require the Selling
Noteholder to identify any broker or market maker used in
connection with the Permitted Transfer. |
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(f) Any Offered Shares not acquired by the Transitory Sub
pursuant to this Section 3 and not otherwise Transferred by
the Selling Noteholder in accordance with Section 3(e)
shall once again become subject to the restrictions on Transfer
specified in this Agreement. |
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4. Representations and Warranties of the Noteholder.
Each Noteholder hereby represents and warrants to the Buyer and
the Transitory Sub as of the date hereof as to itself as follows: |
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(a) Organization. Such Noteholder is a corporation,
limited liability company or limited partnership duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization. |
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(b) Authorization; Validity of Agreement; Necessary
Action. Such Noteholder has all necessary power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
it of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly and validly
authorized by all necessary action and no other proceedings on
the part of such Noteholder are necessary to authorize the
execution and delivery by it of this Agreement and the
consummation by it of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by
the Noteholder, and constitutes the legal, valid and binding
obligation of the Noteholder, enforceable against it in
accordance with its terms. Neither the execution, delivery or
performance of this Agreement by such Noteholder nor the
consummation by it of the transactions contemplated hereby nor
compliance by it with any of the provisions hereof will violate
or conflict with (A) any provision of the charter, by-laws
or other organizational document of such Noteholder,
(B) any agreement, arrangement or understanding to which
such Noteholder is a party or to which the Notes or the Shares
of such Noteholder may be subject or (C) any Governmental
Regulation or any order, injunction, writ or decree to which
such Noteholder or the Notes or the Shares of such Noteholder
may be subject. |
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(c) Notes and Shares. Such Noteholder’s
Existing Notes and Existing Shares are, and the Offered Shares
on any Settlement Date will be, owned of record by such
Noteholder. Such Noteholder’s Existing Shares constitute
all of the voting securities of the Company owned of record by
the Noteholder. All of the Noteholder’s Existing Shares are
issued and outstanding and such Noteholder does not own, of
record or beneficially, any warrants, options or other rights to
acquire any other voting securities of the Company other than
the 2002 Warrants. Such Noteholder has sole voting power, sole
power of disposition, sole power to issue instructions with
respect to the matters set forth in Sections 1, 2 and 3
hereof, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of such
Noteholder’s Existing Shares, Shares, Existing Notes or
Notes, as the case may |
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be, and will have sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set
forth in Sections 1, 2 and 3 hereof, sole power of
conversion, sole power to demand appraisal rights and sole power
to agree to all of the matters set forth in this Agreement on
the Closing Date and, with respect to the Offered Shares, on the
Settlement Date, with no limitations, qualifications or
restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement. Such Noteholder has good
and valid title to its Existing Shares and its Existing Notes,
at all times during the term hereof and on the Settlement Date
or the Closing Date will have good and valid title to its Shares
and at all times during the term hereof and on the Closing Date
will have good and valid title to its Notes, free and clear of
all liens, claims, security interests or other charges or
encumbrances, subject to (x) applicable securities laws,
(y) the Purchase Agreement, dated as of August 5,
2005, by and among the Company and the Noteholders (the
“Note Purchase Agreement”) and (z) the
Registration Rights Agreement, dated as of August 5, 2005,
by and among the Company and the Noteholders, and, upon delivery
of such Noteholder’s Shares or Notes, as the case may be,
to Transitory Sub against delivery of the consideration therefor
pursuant to this Agreement, good and valid title thereto, free
and clear of all liens, claims, security interests or other
charges or encumbrances (other than any arising as a result of
actions taken or omitted by the Buyer or the Transitory Sub or
any arising under applicable securities laws or this Agreement),
will pass to the Transitory Sub. |
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(d) No Broker’s Fees. Except for the payment of
fees by the Noteholders to brokers or market makers in
connection with Permitted Transfers pursuant to Section 3
hereof, no broker, finder, investment banker or other Person is
entitled to any broker’s, finder’s or other fee or
commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the
Noteholder. |
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5. Representations and Warranties of Buyer and
Transitory Sub. The Buyer and the Transitory Sub, jointly
and severally, hereby represent and warrant to the Noteholder as
of the date hereof as follows: |
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(a) Organization. Each of the Buyer and the
Transitory Sub is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation. |
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(b) Corporate Authorization; Validity of Agreement;
Necessary Action. Each of the Buyer and the Transitory Sub
has all necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The
execution, delivery and performance by each of the Buyer and the
Transitory Sub of this Agreement and the consummation by them of
the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action and no other
corporate proceedings on the part of the Buyer or the Transitory
Sub are necessary to authorize the execution and delivery by
them of this Agreement and the consummation by them of the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Buyer and the
Transitory Sub, and constitutes the legal, valid and binding
obligation of the Buyer and Transitory Sub, enforceable against
each of them in accordance with its terms. Neither the
execution, delivery or performance of this Agreement by the
Buyer or the Transitory Sub nor the consummation by them of the
transactions contemplated hereby nor compliance by them with any
of the provisions hereof will violate or conflict with
(A) any provision of the charter, by-laws or other
organizational document of the Buyer or the Transitory Sub,
(B) any agreement, arrangement or understanding to which
the Buyer or the Transitory Sub is a party or (C) any
Governmental Regulation or any order, injunction, writ or decree
to which the Buyer or the Transitory Sub may be subject. |
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(c) Financial Resources. No later than the
applicable Settlement Date, the Transitory Sub will have, and
the Buyer shall cause the Transitory Sub to have, sufficient
cash resources in immediately available funds to consummate any
sale of Offered Shares pursuant to Section 3 hereof. |
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6. Further Agreements of the Noteholders. |
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(a) Each Noteholder hereby authorizes and requests that a
stop transfer order be entered with the Company with respect to
all of such Noteholder’s Notes. Such Noteholder agrees
with, and covenants to, the Buyer that the Noteholder shall not
request that the Company register the transfer (book-entry or
otherwise) of any Note or Notes, unless such transfer is made in
compliance with this Agreement. |
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(b) Each Noteholder hereby authorizes and requests the
Company’s counsel to notify the Company’s transfer
agent that that there is a stop transfer order with respect to
any shares of Company Common Stock obtained by a Noteholder upon
any conversion of the Notes (the “Conversion Shares”).
Such Noteholder agrees with, and covenants to, the Buyer that
the Noteholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such
Noteholder’s Conversion Shares. |
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(c) Each Noteholder and the Company hereby agree that, if
the Merger is consummated, effective as of the Effective Time
the Note Purchase Agreement shall terminate, become null
and void and have no further effect. |
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7. Further Assurances. From time to time prior to
the Closing, at any other party’s request and without
further consideration, each party hereto shall execute and
deliver such additional documents and take all such further
lawful action as may be reasonably necessary to consummate and
make effective the transactions contemplated by this Agreement. |
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8. Termination. This Agreement shall terminate and
shall become null and void and have no further effect upon the
earliest to occur of (a) the Effective Time; provided,
however, that the obligations of the parties hereunder with
respect to all transactions contemplated hereby to take place
after the Effective Time shall continue in full force and effect
until the completion of such transactions, (b) the
termination of the Merger Agreement in accordance with its terms
or (c) the failure of the Transitory Sub to make payment on
any Settlement Date for Offered Shares it has elected to
purchase pursuant to Section 3 of this Agreement; provided
that such failure remains uncured for a period of two business
days from the date that the Noteholder notifies the Transitory
Sub of such failure. Nothing in this Section 8 shall
relieve any party of liability for any breach occurring prior to
the termination of this Agreement. |
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9. Costs and Expenses. All costs and expenses
incurred in connection with this Agreement and the consummation
of the transactions contemplated hereby shall be paid by the
party incurring such expenses. |
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10. Amendment and Modification. This Agreement may
be amended, modified and supplemented in any and all respects
only by written agreement of the parties hereto. |
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11. Notices. All notices and other communications
hereunder (except as otherwise provided in Sections 3(c)
and 3(d) hereof, which shall be delivered and confirmed in
accordance with the terms thereof) shall be in writing and shall
be deemed given if delivered personally, telecopied (which is
confirmed) or sent by an overnight courier service (providing
proof of delivery) to the parties at the following addresses (or
at such other address for a party as it may specify by like
notice): |
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(i) |
If to the Buyer or the Transitory Sub, to: |
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Fluke Electronics Corporation |
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c/x Xxxxxxx Corporation |
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0000 Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx |
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Xxxxxxxxxx XX 00000-0000 |
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Attention: Xxxxxxxx Xxxxxxx |
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(000) 000-0000 (fax) |
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with a copy to: |
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Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP |
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0000 X Xxxxxx, XX |
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Xxxxxxxxxx, XX 000000 |
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Attn: Xxxx X. Xxxxxx, Esq. |
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Xxxxxx
X. Xxxx, Esq. |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
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(ii) |
if to a Noteholder, to: |
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Special Situations Fund |
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000 Xxxx 00xx Xxxxxx,
00xx Xxxxx |
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Xxx Xxxx, Xxx Xxxx 00000 |
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Attn: Xxxxxx X. Xxxxx and
Xxxxx X. Greenhouse |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
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with a copy to: |
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Xxxxxxxxxx Xxxxxxx PC |
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00 Xxxxxxxxxx Xxxxxx |
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Xxxxxxxx, XX 00000 |
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Attn: Xxxx X. Xxxxxxxx |
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Telephone: (000) 000-0000 |
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Facsimile: (000) 000-0000 |
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12. Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of
this Agreement unless otherwise indicated. Whenever the words
“include,” “includes” or
“including” are used in this Agreement they shall be
deemed to be followed by the words “without
limitation.” The phrases “the date of this
Agreement,” “the date hereof,” and terms of
similar import, unless the context otherwise requires, shall be
deemed to refer to December 1, 2005. |
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13. Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when two or
more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart. |
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14. Entire Agreement; No Third Party Beneficiaries.
This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof, and
is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder. |
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15. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being
enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. |
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All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall
be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such
party. |
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16. Governing Law; Consent to Jurisdiction; Waiver of
Jury Trial. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof.
Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the Chancery Court of the State of Delaware and
the United States District Court for the District of Delaware
for the purpose of any suit, action, proceeding or judgment
relating to or arising out |
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of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or
proceeding may be served on each party hereto anywhere in the
world by the same methods as are specified for the giving of
notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in
any such suit, action or proceeding and to the laying of venue
in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or
proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. EACH OF
THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY
IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS
THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER. |
| |
| |
17. Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned
by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other
parties, except that (1) the Buyer and the Transitory Sub
may assign, in the Buyer’s sole discretion, any or all of
their respective rights, interests and obligations hereunder to
any direct or indirect wholly owned Subsidiary of the Buyer and
(2) the Noteholders may assign, in their sole discretion,
any or all of their respective rights, interest and obligations
hereunder to any member of the related group (within the meaning
of Section 13(d)(3) of the Exchange Act) controlled by
Xxxxxx X. Xxxxx and Xxxxx X. Greenhouse; provided,
however, that no such assignment shall relieve a party from any
of its obligations hereunder. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors
(including the Company as successor to the Transitory Sub
pursuant to the Merger), heirs, agents, representatives, trust
beneficiaries, attorneys, affiliates and associates and all of
their respective predecessors, successors, permitted assigns,
heirs, executors and administrators. |
| |
| |
18. Specific Performance. The parties acknowledge
and agree that each of the other parties hereto would be
irreparably damaged if any of the provisions of this Agreement
are not performed in accordance with their specific terms and
that any breach of this Agreement could not be adequately
compensated in all cases by monetary damages alone. Accordingly,
in addition to any other right or remedy to which any party may
be entitled, at law or in equity, it shall be entitled to
enforce any provision of this Agreement by a decree of specific
performance and temporary, preliminary and permanent injunctive
relief to prevent breaches or threatened breaches of any of the
provisions of this Agreement, without posting any bond or other
undertaking. |
[Remainder of Page Intentionally Left Blank]
8
IN WITNESS WHEREOF, the Buyer, the Transitory Sub and each
Noteholder have caused this Agreement to be signed by their
respective officers or other authorized person thereunto duly
authorized as of the date first written above.
|
|
| |
SPECIAL SITUATIONS FUND III, L.P. |
|
|
| |
SPECIAL SITUATIONS CAYMAN FUND, L.P. |
|
|
| |
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P. |
|
|
| |
SPECIAL SITUATIONS TECHNOLOGY FUND, L.P. |
9
|
|
| |
SPECIAL SITUATIONS TECHNOLOGY FUND II, L.P. |
10
|
|
| |
FLUKE ELECTRONICS CORPORATION |
Accepted and Agreed only
with respect to Section 6 hereof:
VISUAL NETWORKS, INC.
|
|
| By: |
/s/ Xxxxxxxx X. Xxxxxx |
Name: Xxxxxxxx X. Xxxxxx
|
|
| Title: |
President and Chief Executive Officer
and Chairman of the Board of Directors |
11
Exhibit I
| |
|
|
|
|
|
|
|
|
|
| |
|
|
|
Shares of Company | |
| Noteholder |
|
Notes | |
|
Common Stock | |
| |
|
| |
|
| |
|
Special Situations Fund III, L.P.
|
|
$ |
4,195,151 |
|
|
|
1,926,881 |
|
|
Special Situations Cayman Fund, L.P.
|
|
$ |
1,277,401 |
|
|
|
586,725 |
|
|
Special Situations Private Equity Fund, L.P.
|
|
$ |
3,685,340 |
|
|
|
980,786 |
|
|
Special Situations Technology Fund, L.P.
|
|
$ |
130,291 |
|
|
|
26,019 |
|
|
Special Situations Technology Fund II, L.P.
|
|
$ |
711,818 |
|
|
|
154,081 |
|
| |
Total:
|
|
$ |
10,000,001 |
|
|
|
3,674,492 |
|
