Exhibit 99.3
VINA TECHNOLOGIES, INC.
SECURITIES PURCHASE AGREEMENT
October 19, 2001
TABLE OF CONTENTS
Page
1. Purchase and Sale of Common Stock and Warrants.............................1
----------------------------------------------
1.1 Sale and Issuance of Common Stock.................................1
---------------------------------
1.2 Closing...........................................................1
-------
2. Representations, Warranties and Covenants of the Company...................2
--------------------------------------------------------
2.1 Organization; Good Standing; Qualification........................2
------------------------------------------
2.2 Authorization.....................................................2
-------------
2.3 Valid Issuance of Common Stock and Warrants.......................2
-------------------------------------------
2.4 Capitalization....................................................3
--------------
2.5 Consents..........................................................3
--------
2.6 Offering..........................................................3
--------
2.7 General Solicitation..............................................4
--------------------
2.8 No Integrated Offering............................................4
----------------------
2.9 Brokers or Finders................................................4
------------------
2.10 Nasdaq Compliance.................................................4
-----------------
2.11 SEC Compliance....................................................4
--------------
2.12 Financial Statements..............................................4
--------------------
2.13 Intellectual Property.............................................5
---------------------
2.14 No Material Adverse Change........................................5
--------------------------
2.15 Contracts.........................................................5
---------
2.16 Taxes.............................................................5
-----
2.17 Investment Company................................................5
------------------
2.18 Insurance.........................................................5
---------
2.19 Legal Proceedings.................................................5
-----------------
2.20 Subsidiaries......................................................6
------------
2.21 Reservation of Common Stock.......................................6
---------------------------
2.22 Reporting Status..................................................6
----------------
2.23 Filing of Form 8-K................................................6
------------------
2.24 Corporate Existence...............................................6
-------------------
2.25 Pledge of Securities..............................................6
--------------------
2.26 Transfer Agent Instructions.......................................6
---------------------------
3. Representations, Warranties and Covenants of the Investors.................7
----------------------------------------------------------
3.1 Authorization.....................................................7
-------------
3.2 Purchase Entirely for Own Account.................................7
---------------------------------
3.3 Reliance Upon Investor's Representations..........................8
----------------------------------------
3.4 Receipt of Information............................................8
----------------------
3.5 Investment Experience.............................................8
---------------------
3.6 Accredited Investor...............................................8
-------------------
3.7 Restricted Securities.............................................8
---------------------
3.8 Legends...........................................................8
-------
3.9 Requirements of Foreign Jurisdictions.............................9
-------------------------------------
3.10 No Legal, Tax or Investment Advice................................9
----------------------------------
3.11 Questionnaires....................................................9
--------------
4. Registration of the Shares; Compliance with the Securities Act............10
--------------------------------------------------------------
4.1 Registration Procedures and Expenses.............................10
------------------------------------
4.2 Transfer of Registrable Shares After Registration; Suspension....12
-------------------------------------------------------------
4.3 Indemnification..................................................13
---------------
4.4 Termination of Conditions and Obligations........................15
-----------------------------------------
5. Conditions of each Investor's Obligations at Closing......................16
----------------------------------------------------
5.1 Representations and Warranties...................................16
------------------------------
5.2 Performance......................................................16
-----------
5.3 Qualifications...................................................16
--------------
5.4 Opinion of Counsel...............................................16
------------------
5.5 Required Stockholder Approval....................................16
-----------------------------
5.6 Certificates.....................................................16
------------
5.7 Organizational Documents.........................................16
------------------------
5.8 Filings..........................................................17
-------
5.9 Nasdaq Listing...................................................17
--------------
6. Conditions of the Company's Obligations at Closing........................17
--------------------------------------------------
6.1 Representations and Warranties...................................17
------------------------------
6.2 Performance......................................................17
-----------
6.3 Qualifications...................................................17
--------------
6.4 Investor Questionnaires..........................................17
-----------------------
6.5 Purchase Price...................................................17
--------------
6.6 Required Stockholder Approval....................................17
-----------------------------
7. Miscellaneous.............................................................18
-------------
7.1 Entire Agreement.................................................18
----------------
7.2 Survival.........................................................18
--------
7.3 Successors and Assigns...........................................18
----------------------
7.4 Governing Law....................................................18
-------------
7.5 Counterparts.....................................................18
------------
7.6 Titles and Subtitles.............................................18
--------------------
7.7 Notices..........................................................18
-------
7.8 Expenses.........................................................19
--------
7.9 Attorneys' Fees..................................................19
---------------
7.10 Amendments and Waivers...........................................19
----------------------
7.11 Severability.....................................................19
------------
7.12 Rights of the Investor...........................................19
----------------------
7.13 Indemnification..................................................19
---------------
Exhibits
Exhibit A - Schedule of Investors
Exhibit B - Form of Warrant
Exhibit C - Form of Investor Questionnaire
Exhibit D - Form of Opinion of Company's counsel
Exhibit E - Form of Certificate of Subsequent Sale
Exhibit F - Form of Notice of Effectiveness of Registration Statement
Exhibit G - Transfer Agent Instructions
VINA TECHNOLOGIES, INC.
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), made as of the 19th
day of October 2001, by and among VINA TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), and each of the persons listed on the Schedule of
Investors (the "Schedule of Investors") attached hereto as Exhibit A (each of
---------
whom is herein referred to individually as an "Investor" and collectively as the
"Investors").
WITNESSETH:
WHEREAS, the parties hereto desire to enter into this Agreement for the
purpose of setting forth certain representations, warranties and covenants made
by each to the other as an inducement to the execution and delivery of this
Agreement and the conditions precedent to the consummation of the transactions
set forth herein,
NOW, THEREFORE, in consideration of the premises and of the mutual
provisions, agreements and covenants herein contained, the parties hereto agree
as follows:
1. Purchase and Sale of Common Stock and Warrants.
----------------------------------------------
1.1 Sale and Issuance of Common Stock. Subject to the terms and conditions
---------------------------------
of this Agreement (including without limitation, Sections 5 and 6 hereof), each
Investor severally (and not jointly and severally) agrees to purchase at the
Closing (as such term is defined below), and the Company agrees to issue and
sell to the Closing that number of shares (the "Shares") of common stock,
$0.0001 par value, of the Company (the "Common Stock") and warrants in the form
attached hereto as Exhibit B (the "Warrants") set forth opposite such Investor's
---------
name on the signature pages hereto at the purchase price set forth opposite such
Investor's name on the Schedule of Investors (the "Purchase Price"). The Shares
and Warrants to be issued and sold by the Company at the Closing are hereinafter
referred to as the "Securities."
1.2 Closing. The completion of the purchase and sale of the Shares and
-------
Warrants pursuant to Section 1.1 (the "Closing") shall take place at the offices
of Pillsbury Winthrop LLP, 00 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
at 8:00 A.M., San Francisco time, on the third business day following the date
on which the last to be fulfilled or waived of the conditions set forth in
Section 5 and Section 6 shall have been fulfilled or waived (by each of the
parties hereto), or such other place and time to be mutually agreed upon by the
Company and the Investors. Subject to satisfaction or waiver of the conditions
set forth in Section 5 and 6 hereof, at the Closing, the Investors identified on
the Schedule of Investors shall purchase the number of Shares and Warrants set
forth opposite such Investors' names on the Schedule of Investors by wire
transfer of immediately available funds in accordance with the Company's written
wire instructions. Upon receipt of payment therefor, the Company shall deliver
to each Investor one or more stock certificates representing the number of
Shares, and a Warrant representing the number of Warrant Shares, set forth
opposite such Investor's name on the Schedule of Investors, each such
certificate and Warrant to be registered in the name of the Investor or, if so
indicated on the Stock Certificate and Warrant Questionnaire attached hereto as
Exhibit C-1 (the "Stock Certificate and Warrant Questionnaire"), in the name of
-----------
a nominee designated by such Investor.
2. Representations, Warranties and Covenants of the Company. The Company
---------------------------------------------------------
hereby represents, warrants and covenants to each Investor that, except as set
forth in the correspondingly numbered section of the Disclosure Schedule
delivered to each Investor in connection herewith, which qualifies the
corresponding representations and warranties in their entirety:
2.1 Organization; Good Standing; Qualification. Each of the Company and its
------------------------------------------
subsidiaries has been duly incorporated and is validly existing and in good
standing under the laws of the state of its incorporation, has all requisite
corporate power and authority to own and operate its properties and assets and
to carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which its ownership or leasing of assets, or
the conduct of its business, makes such qualification necessary, except where
the failure to be so qualified or in good standing would not have a material
adverse effect upon the business, condition (financial or otherwise),
properties, assets or operations of the Company and its subsidiaries as a whole
("Material Adverse Effect").
2.2 Authorization. The Company has all requisite corporate power and
-------------
authority to enter into this Agreement and to perform its obligations hereunder,
including the issuance of the Securities and Warrant Shares, subject to
obtaining the requisite stockholder approval of the transactions contemplated
herein in a manner that complies with NASD Rule 4350(i) (the "Required
Stockholder Approval"). The execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company,
subject to obtaining the Required Stockholder Approval. This Agreement has been
duly executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against it in accordance with its terms,
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the enforcement of
creditors' rights generally, (b) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies, and (c)
to the extent the indemnification provisions contained in this Agreement may be
limited by applicable federal or state securities laws. The execution, delivery
and performance of this Agreement will not violate any provision of the
Company's Certificate of Incorporation or Bylaws (each as amended to date), will
not conflict with, result in any breach of any of the terms, conditions or
provisions of, constitute (with or without notice or lapse of time or both) a
default under, or require a consent or waiver under any material indenture,
lease, agreement or other instrument to which the Company is a party or by which
it or any of its properties is bound, or any decree, judgment, order, statute,
rule or regulation applicable to the Company.
2.3 Valid Issuance of Common Stock and Warrants. The Shares and the
-----------------------------------------------
Warrants have been duly authorized and, when issued, sold and delivered against
payment therefor in accordance with the terms of this Agreement, will be validly
issued and, in the case of the Shares, fully paid and nonassessable and free and
clear of all liens, taxes and encumbrances except for restrictions on transfer
contained herein, and not be subject to preemptive or similar rights. The
Warrant Shares have been duly authorized and, upon exercise of the Warrants in
accordance with the terms thereof, will be validly issued, fully paid and
nonassessable and free and clear of all liens, taxes and encumbrances except for
restrictions on transfer contained herein, and not be subject to preemptive or
similar rights.
2.4 Capitalization. The authorized capital stock of the Company consists of
--------------
125,000,000 shares of Common Stock, of which 37,262,060 shares (the "Issued
Stock") were issued and outstanding as of October 15, 2001, and 5,000,000 shares
of Preferred Stock, of which none were issued and outstanding as of October 15,
2001. As of October 15, 2001, 4,899,012 shares of Common Stock were reserved for
issuance under the Company's 2000 Stock Incentive Plan, 2000 Employee Stock
Purchase Plan, and the 1999 and 2000 Stock Option Plans of Woodwind
Communications Systems, Inc. (which were assumed by the Company in connection
with its acquisition of Woodwind Communications Systems, Inc.) (collectively,
the "Stock Incentive Plans"), and 14,292,175 shares of Common Stock were
issuable upon the exercise of outstanding stock options under the Company's
Stock Incentive Plans. As of the date hereof, 200,000 shares of Preferred Stock,
designated as "Series A Participating Preferred Stock," were reserved for
issuance pursuant to the Rights Agreement, dated as of July 25, 2001, between
the Company and American Stock Transfer & Trust Company (the "Rights
Agreement"). All shares of Issued Stock have been duly authorized and validly
issued and are fully paid and nonassessable. Other than pursuant to the Stock
Incentive Plans, each as amended to date, the Rights Agreement and this
Agreement, (A) no shares of the Company's capital stock are subject to
preemptive rights or any other similar rights created by statute, the Company's
Certificate of Incorporation or By-laws or any agreement or instrument to which
the Company is a party; and (B) there are no options, warrants, rights to
subscribe to, calls or commitments or agreements of any character which the
Company is bound to issue additional shares of capital stock of the Company or
obligating the Company to grant, effect or enter, into any such option, warrant,
right to subscribe to, call, commitment or agreement. The Company has made
available to each Investor true and correct copies of the Company's Certificate
of Incorporation, as amended and as in effect on the date hereof (the
"Certificate of Incorporation"), and the Company's By-laws, as amended and as in
effect on the date hereof (the "By-laws").
2.5 Consents. No consent, approval, qualification, order or authorization
--------
of, or filing with, any local, state or federal governmental authority or any
other person or entity is required on the part of the Company or any of its
subsidiaries in connection with the Company's valid execution, delivery or
performance of this Agreement or the offer, sale or issuance of the Securities
and the Warrant Shares except any notices of sale required to be filed with the
Securities and Exchange Commission ("SEC") under Regulation D ("Regulation D")
of the Securities Act of 1933, as amended (the "Securities Act"), or such
post-Closing filings as may be required under applicable state securities laws,
which will be timely filed within the applicable periods therefor.
2.6 Offering. Subject to the accuracy of each Investor's representations
--------
set forth in this Agreement, the offer, sale and issuance of the Securities as
contemplated by this Agreement are exempt from the registration requirements of
the Securities Act and all applicable state securities laws, and neither the
Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemption. The Company agrees to
file a Form D with respect to the Securities and Warrant Shares as required
under Regulation D and to provide a copy thereof to each Investor promptly after
such filing.
2.7 General Solicitation. Neither the Company nor any other person or
---------------------
entity authorized by the Company to act on its behalf has engaged in a general
solicitation or general advertising (within the meaning of Regulation D of the
Securities Act) of investors with respect to offers or sales of the Securities.
2.8 No Integrated Offering. Neither the Company nor its subsidiaries, nor
----------------------
any of their affiliates nor any person acting on the Company's behalf has,
directly or indirectly, made nor will any such party make, any offer or sale of
any security or solicitation of any offer to buy any security under
circumstances, that in the opinion of the Company's counsel, would eliminate the
availability of the exemption from registration under Regulation D under the
Securities Act in connection with the offer and sale of the Securities as
contemplated hereby.
2.9 Brokers or Finders. Neither the Company nor any of its subsidiaries has
------------------
incurred, and will not incur, directly or indirectly, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby, and no
broker, finder, agent or similar intermediary has acted for or on behalf of the
Company for which any Investor would become liable for any fees, commissions or
similar charges.
2.10 Nasdaq Compliance. The Common Stock is listed on Nasdaq, and the
------------------
Company has taken no action designed to or likely to have the effect of
suspension of or delisting the Common Stock from Nasdaq. On the respective
Closings, the Company shall have applied for the listing of the Shares and
Warrant Shares, in each case, upon Nasdaq and shall use all reasonable efforts
to maintain, at its expense, so long as any of the Securities or Warrant Shares
are outstanding, such listing of all Shares from time to time issuable hereunder
and all Warrant Shares from time to time issuable upon exercise of the Warrants.
2.11 SEC Compliance. Since December 31, 1999, the Company has filed all
---------------
reports, schedules, forms, statements and other documents required to be filed
by it with the SEC pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (all of the foregoing
filed prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the "SEC Documents"). As of their respective
filing dates, such SEC Documents complied as to form in all material respects
with the requirements of the Exchange Act, and the rules and regulations of the
SEC promulgated thereunder. As of their respective filing dates, the SEC
Documents did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Neither the Company nor any of its officers, directors,
employees or agents have provided, nor will provide the Investors with any
material nonpublic information.
2.12 Financial Statements. The financial statements of the Company and the
--------------------
related notes contained in the SEC Documents present fairly, in accordance with
generally accepted accounting principles, the financial position of the Company
as of the dates indicated, and the results of its operations and cash flows for
the periods therein specified, subject, in the case of unaudited financial
statements for interim periods, to normal year-end audit adjustments. Such
financial statements (including the related notes) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods therein specified, except that unaudited financial
statements may not contain all footnotes required by generally accepted
accounting principles.
2.13 Intellectual Property. The Company owns or possesses adequate rights
----------------------
to use all patents, patent rights, inventions, trade secrets, know-how,
trademarks, service marks, trade names, copyrights or other information
(collectively, "Intellectual Property"), which are necessary to conduct its
businesses as currently conducted, except where the failure to currently own or
possess would not result, either individually or in the aggregate, in a Material
Adverse Effect. The Company has not received any notice of, and has no knowledge
of, any infringement of or conflict with asserted rights of others with respect
to any Intellectual Property which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected to
have a Material Adverse Effect, and to the Company's knowledge, none of the
patent rights owned or licensed by the Company are unenforceable or invalid.
2.14 No Material Adverse Change. Since June 30, 2001, there has not been
---------------------------
any change or event which has had or would reasonably be expected to have a
Material Adverse Effect.
2.15 Contracts. The contracts described in the SEC Documents or attached as
---------
exhibits thereto that are material to the Company are in full force and effect
on the date hereof, and neither the Company nor, to the Company's knowledge, any
other party to such contracts is in breach of or default under any of such
contracts which breach or default would reasonably be expected to have a
Material Adverse Effect.
2.16 Taxes. The Company has filed all necessary federal, state and foreign
-----
income and franchise tax returns due prior to the date hereof and has paid or
accrued all taxes shown as due thereon, and the Company has no knowledge of any
material tax deficiency which has been or might be asserted or threatened
against it.
2.17 Investment Company. The Company is not, and after consummation of the
------------------
sale of the Securities will not be, an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for an investment company,
or, to its knowledge, a company "controlled by" an "investment company" (other
than any Investor) within the meaning of the Investment Company Act of 1940, as
amended.
2.18 Insurance. The Company maintains and will continue to maintain
---------
insurance of the types and in the amounts that the Company reasonably believes
is prudent and adequate for its business, all of which insurance is in full
force and effect.
2.19 Legal Proceedings. There are no legal or governmental, actions, suits
-----------------
or proceedings pending or, to the knowledge of the Company, threatened against
the Company or its subsidiaries that would reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
2.20 Subsidiaries. The Company does not own or control, directly or
------------
indirectly, any interest in any other corporation, partnership, limited
liability company, association, or other business entity. The Company is not a
participant in any joint venture, partnership or similar arrangement.
2.21 Reservation of Common Stock. Prior to the issuance of the Securities,
---------------------------
the Company shall have reserved out of its authorized and unissued Common Stock,
solely for the purpose of effecting the exercise of the Warrants, a sufficient
number of shares of Common Stock to provide for issuance of the Warrant Shares
(without regard to limits on exercise).
2.22 Reporting Status. The Company shall timely file all reports required
-----------------
to be filed with the SEC pursuant to the Exchange Act, and so long as an
Investor beneficially owns any Securities or Warrant Shares, the Company shall
not terminate its status as an issuer subject to the reporting obligations under
the Exchange Act even if the rules and regulations thereunder would otherwise
permit such termination.
2.23 Filing of Form 8-K. On the Business Day following the Closing, the
------------------
Company shall file a Current Report on Form 8-K with the SEC describing the
terms of the transactions contemplated by this Agreement, including as exhibits
to such Current Report on Form 8-K this Agreement, the form of Warrant and such
other exhibits as required by the Exchange Act
2.24 Corporate Existence. So long as an Investor beneficially owns any
--------------------
Securities or Warrant Shares, the Company shall maintain its corporate
existence, and in the event of a merger or consolidation or sale of all or
substantially all of the Company's assets, the Company shall ensure that the
surviving or successor entity in such transaction assumes the Company's
obligations hereunder and under the agreements and instruments entered into in
connection herewith.
2.25 Pledge of Securities. The Company acknowledges and agrees that the
---------------------
Securities and the Warrant Shares may be pledged by an Investor in connection
with a bona fide margin agreement or other loan secured by the Securities and/or
the Warrant Shares. Notwithstanding anything herein, the pledge of Securities or
Warrant Shares shall not be deemed to be a transfer, sale or assignment of the
Securities or Warrant Shares hereunder, and no Investor effecting a pledge of
Securities or Warrant Shares shall be required to provide the Company with any
notice thereof or otherwise make any delivery to the Company pursuant to this
Agreement. The Company hereby agrees to execute and deliver such reasonable
documentation as a pledgee of the Securities or Warrant Shares may reasonably
request in connection with a pledge of the Securities or Warrant Shares to such
pledgee by an Investor.
2.26 Transfer Agent Instructions. The Company shall use all reasonable best
---------------------------
efforts to cause its transfer agent, within ten (10) Business Days, and any
subsequent transfer agent, to agree to irrevocable instructions substantially in
the form attached hereto as Exhibit I (the "Irrevocable Transfer Agent
Instructions") to issue certificates or credit shares to the applicable balance
accounts at DTC, registered in the name of each Investor or its respective
nominee(s), for the Securities in such amounts as specified from time to time by
each Investor to the Company and acknowledged by the Company in writing upon
exercise of the Warrants. Prior to registration of the Securities under the
Securities Act, all such certificates shall bear the restrictive legend
specified in Section 3.8(a) of this Agreement. The Company warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred to
in this Section 2.26 and stop transfer instructions to give effect to Sections
3.7 and 3.8(a) hereof will be given by the Company to its transfer agent and
that the Securities shall otherwise be freely transferable on the books and
records of the Company as and to the extent provided in this Agreement and the
Warrants. If an Investor provides the Company with an opinion of counsel, in a
generally acceptable form, to the effect that a public sale, assignment or
transfer of Securities may be made without registration under the Securities Act
or the Investor provides the Company with reasonable assurances that the
Securities can be sold pursuant to Rule 144 without any restriction as to the
number of securities acquired as of a particular date that can then be
immediately sold, the Company shall permit the transfer, and, in the case of the
Warrant Shares, promptly instruct its transfer agent to issue one or more
certificates, or credit shares to one or more balance accounts at DTC, in such
name and in such denominations as specified by such Investor and without any
restrictive legend. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Investors by vitiating
the intent and purpose of the transaction contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations
under this Section 2.26 will be inadequate and agrees, in the event of a breach
of the provisions of this Section 2.26, that the Investors shall be entitled, in
addition to all other available remedies, to an order and/or injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required.
3. Representations, Warranties and Covenants of the Investors. Each
----------------------------------------------------------------
Investor hereby, severally, and not jointly represents and warrants to and
agrees with the Company that, solely as to such Investor:
3.1 Authorization. The Investor has all requisite corporate power and
-------------
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Investor and the consummation of the transactions hereby, have been duly
authorized by all necessary action on the part of the Investor. This Agreement
has been duly executed and delivered by the Investor and constitutes a valid and
legally binding agreement of the Investor, enforceable against the Investor in
accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the enforcement of creditors' rights generally, (b) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies, and (c) to the extent the indemnification provisions
contained in this Agreement may be limited by applicable federal or state
securities laws.
3.2 Purchase Entirely for Own Account. The Shares and Warrant to be
------------------------------------
purchased by the Investor will be acquired for the Investor's own account for
investment, and not as a nominee or agent, and not with a present view to the
resale or distribution of any part thereof, other than in a transaction covered
by an effective registration statement filed under or exempted from the
registration requirements of the Securities Act. Notwithstanding the foregoing,
by making the representations herein, the Investor does not agree to hold the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time, provided, however, that such disposition
shall be in accordance with or pursuant to a registration statement or an
exemption under the Securities Act and any applicable state securities laws.
3.3 Reliance Upon Investor's Representations. The Investor understands that
----------------------------------------
the issuance and sale of the Securities to it will not be registered under the
Securities Act on the ground that such issuance and sale will be exempt from
registration under the Securities Act pursuant to section 4(2) thereof, and that
the Company's reliance on such exemption is based on each Investor's
representations set forth herein.
3.4 Receipt of Information. The Investor has had an opportunity to ask
-----------------------
questions and receive answers from the Company regarding the terms and
conditions of the issuance and sale of the Securities and the business,
properties, prospects and financial condition of the Company and to obtain any
additional information requested and has received and considered all information
it deems relevant to make an informed decision to purchase the Securities. No
person other than the Company has been authorized to give any information or to
give any representation not contained in this Agreement in connection with the
issuance of the Securities and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company.
3.5 Investment Experience. The Investor is knowledgeable, sophisticated and
---------------------
experienced in evaluating and investing in securities of companies and
acknowledges that it is able to fend for itself, can bear the economic risk of
its investment, and has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the investment
in the Securities.
3.6 Accredited Investor. The Investor is an "accredited investor" as such
-------------------
term is defined in Rule 501 of Regulation D promulgated under the Securities
Act.
3.7 Restricted Securities. The Investor will not sell, offer to sell,
----------------------
assign, pledge, hypothecate or otherwise transfer any of the Securities or
Warrant Shares unless (i) pursuant to an effective registration statement under
the Securities Act, (ii) such holder provides the Company with an opinion of
counsel, in a generally acceptable form, to the effect that a public sale,
assignment or transfer of the Securities may be made without registration under
the Securities Act, or (iii) such holder provides the Company with reasonable
assurances that the Securities can be sold pursuant to Rule 144 under the
Securities Act without any restriction as to the number of securities acquired
as of a particular date that can be immediately sold. Notwithstanding anything
to the contrary contained in the Agreement or the Warrants, the Investor may
transfer (without restriction and without the need for an opinion of counsel)
the Securities and Warrants Shares to its affiliates provided that such
affiliate is an "accredited investor" under Regulation D and such affiliate
agrees to be bound by the terms and conditions of the Agreement and the
Warrants.
3.8 Legends. To the extent applicable, each certificate or other document
-------
evidencing any of the Shares shall be endorsed with the legends set forth below,
and the Investor covenants that, except to the extent such restrictions are
waived by the Company, the Investor shall not transfer the shares represented by
any such certificate without complying with the restrictions on transfer
described in the legends endorsed on such certificate (and a stop-transfer order
may be placed against the transfer of the certificates for the Shares):
(a) The following legend under the Act:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, OFFERED FOR
SALE, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL OR UPON EVIDENCE
REASONABLY SATISFACTORY TO VINA TECHNOLOGIES, INC. THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF
SUCH ACT OR ANOTHER APPLICABLE EXEMPTION."
(b) Such other legends as may be required under state securities laws.
The legend set forth above shall be removed and the Company shall issue the
relevant securities without such legend to the holder of the Securities upon
which it is stamped, if, (i) such Securities are registered for resale under the
Securities Act, (ii) in connection with a sale transaction, such holder provides
the Company with an opinion of counsel, in a generally acceptable form, to the
effect that a public sale, assignment or transfer of the Securities may be made
without registration under the Securities Act, or (iii) such holder provides the
Company with reasonable assurances that the Securities can be sold pursuant to
Rule 144 under the Securities Act without any restriction as to the number of
securities acquired as of a particular date that can be immediately sold. The
Investor agrees to sell all Securities and Warrant Shares, including those
represented by a certificate(s) from which the legend has been removed, pursuant
to an effective registration statement or under an exemption from the
registration requirements of the Securities Act.
3.9 Requirements of Foreign Jurisdictions. The Investor acknowledges,
---------------------------------------
represents and agrees that no action has been or will be taken in any
jurisdiction outside the United States by the Company that would permit an
offering of the Securities, or possession or distribution of offering materials
in connection with the issue of the Securities, in any jurisdiction outside the
United States where action for that purpose is required. Each Investor outside
the United States will comply with all applicable laws and regulations in each
foreign jurisdiction in which it purchases, offers, sells or delivers Securities
or has in its possession or distributes any offering material, in all cases at
its own expense.
3.10 No Legal, Tax or Investment Advice. The Investor understands that
------------------------------------
nothing in this Agreement or any other materials presented to the Investor in
connection with the purchase and sale of the Securities constitutes legal, tax
or investment advice. The Investor has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Securities.
3.11 Questionnaires. The Investor has completed the Stock Certificate and
--------------
Warrant Questionnaire and the Registration Statement Questionnaire (the
"Registration Statement Questionnaire") attached hereto as Exhibit C-2, for use
-----------
in the preparation of the Registration Statement, and the information provided
therein is true and correct as of the date hereof and will be true and correct
as of the effective date of the Registration Statement. The Investor hereby
agrees to notify the Company immediately of any change in any of such
information until such time as the Investor has sold all of its Securities or
until the Company is no longer required to keep the Registration Statement
effective.
4. Registration of the Shares; Compliance with the Securities Act.
--------------------------------------------------------------
4.1 Registration Procedures and Expenses. The Company hereby agrees that it
------------------------------------
shall:
(a) subject to receipt of necessary information from the Investors, prepare
and file with the SEC as soon as practicable and in no event later than sixty
(60) days following the Closing (the "Filing Date"), a registration statement on
Form S-3 or Form S-1 (the "Registration Statement"), which Registration
Statement shall not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein, or necessary to make the
statement therein, in light of the circumstances in which they were made, not
misleading, to enable the resale of the Shares and Warrant Shares (the
"Registrable Shares") by the Investors from time to time on Nasdaq and use all
reasonable efforts to cause such Registration Statement to be declared effective
as promptly as possible after filing and to remain continuously effective until
the earlier of (i) the fifth anniversary of the Closing, plus a number of days
equal to the number of days, if any, the Registration Statement is suspended or
not effective beyond the Grace Period, or (ii) such time as all Registrable
Shares purchased by the Investors pursuant to this Agreement or the Warrants, as
the case may be, have been sold thereunder or pursuant to Rule 144 under the
Securities Act (the "Registration Period"). In the event that Form S-3 is
unavailable for such registration, the Company shall use such other form as is
available for such a registration;
(b) prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective at all times until the end of the Registration Period;
(c) furnish to the Investors with respect to the Registrable Shares
registered under the Registration Statement such reasonable number of copies of
the Registration Statement, prospectuses and preliminary prospectuses in
conformity with the requirements of the Securities Act and such other documents
as the Investor may reasonably request, in order to facilitate the public sale
or other disposition of all or any of the Registrable Shares by the Investor;
(d) file documents required of the Company for normal blue sky clearance in
states specified in writing by the Investor, provided, however, that the Company
shall not be required to qualify to do business or consent to service of process
in any jurisdiction in which it is not now so qualified or has not so consented;
(e) use its reasonable best efforts to cause the Registrable Shares to be
listed on Nasdaq in connection with the filing of the Registration Statement
under Section 4.1(a);
(f) if a Registration Statement covering all the Registrable Shares is not
filed on or prior to the Filing Date for any reason other than solely by virtue
of a breach by any of the Investors of their covenants or obligations contained
herein, the Company shall pay to each holder of Registrable Shares an amount in
cash per share of Common Stock held equal to the product of (i) the aggregate
Purchase Price paid by the Investor ("Aggregate Purchase Price") multiplied by
(ii) the product of 0.000165 multiplied by the number of days after the Filing
Date (exclusive of the Filing Date and date of filing) that the Registration
Statement is not filed. The Company shall use its reasonable best efforts to
cause the Registration Statement to be declared effective on or prior to 90 days
following the Filing Date. If (i) a Registration Statement covering all the
Registrable Shares and required to be filed by the Company pursuant to this
Agreement is not declared effective by the SEC on or before 120 days following
the Filing Date (the "Effective Deadline") for any reason other than by virtue
of a breach by any of the Investors of any of their obligations or covenants
hereunder, or (ii) on any day after the Registration Statement has been declared
effective by the SEC sales of all the Registrable Shares required to be included
on such Registration Statement cannot be made (other than during a Grace Period,
as defined below, or during any period in which the effectiveness thereof has
been suspended because any of the information contained therein with respect to
any Investor and provided by the Investor is untrue in any material respect or
omits to state a material fact required to be stated therein, or necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading, or during any period in which the Company is
preparing and waiting for the effectiveness of any prospectus supplement or
post-effective amendment filed pursuant to this Agreement) pursuant to the
Registration Statement (including, without limitation, because of a failure to
keep the Registration Statement effective, to disclose such information as is
necessary for sales to be made pursuant to the Registration Statement or to
register sufficient shares of Common Stock), then the Company shall pay to each
holder of Registrable Shares an amount in cash per share of Common Stock held
equal to the product of (i) the Aggregate Purchase Price per share paid by the
Investor multiplied by (ii) the product of (I) 0.000165 multiplied by (II) the
sum of (x) the number of days after the Effective Deadline that the Registration
Statement is not declared effective by the SEC, plus (y) the number of days, in
each instance, after the Registration Statement has been declared effective by
the SEC that such Registration Statement is not available (other than during a
Grace Period or as set forth above) for the sale of at least all the Registrable
Securities required to be included on such on such Registration Statement. The
payments to which a holder shall be entitled pursuant to this Section 4.1(f) are
referred to herein as "Registration Delay Payments." Registration Delay Payments
shall be paid on the last day of each calendar month during which such
Registration Delay Payments are incurred or, if earlier, the fifth Business Day
after the event or failure giving rise to the Registration Delay Payments is
cured. In the event the Company fails to make any Registration Delay Payment in
a timely manner, each such Registration Delay Payment shall bear interest at the
rate of 1% per month (prorated for partial months) until paid in full. For
purposes of this Section 4.1(f) and Section 4.1(a) above, "Grace Period" shall
mean a suspension under Section 4.2(b) and 4.2(c) in excess of sixty (60) days
in the aggregate in any twelve month period of time;
(g) the Company shall permit a single firm of legal counsel ("Legal
Counsel") designated by the holders of at least a majority of the Registrable
Shares to review the Registration Statement and all amendments and supplements
thereto a reasonable period of time prior to their filing with the SEC;
(h) within two (2) Business Days after a Registration Statement covering
Registrable Shares is ordered effective by the SEC, the Company shall deliver,
or shall cause its legal counsel to deliver, to the transfer agent for such
Registrable Shares (with copies to the Investors) confirmation that such
Registration Statement has been declared effective by the SEC; and
(i) bear all expenses in connection with the procedures in paragraph (a)
through (h) of this Section 4.1 and the registration of the Registrable Shares
pursuant to the Registration Statement other than fees and expenses, if any, of
Legal Counsel or other advisers to the Investors or underwriting discounts,
brokerage fees and commissions incurred by the Investors, if any.
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Section 4.1 that the Investor shall furnish to the
Company such information regarding itself, the Registrable Shares to be sold by
the Investor, and the intended method of disposition of such securities as shall
be required to effect the registration of the Registrable Shares.
4.2 Transfer of Registrable Shares After Registration; Suspension.
-------------------------------------------------------------
(a) Subject to Section 4.4, the Investors agree that they will not offer to
sell or make any sale, assignment, pledge, hypothecation or other transfer with
respect to the Registrable Shares that would constitute a sale within the
meaning of the Securities Act except pursuant to the Registration Statement
referred to in Section 4.1, and that they will promptly notify the Company of
any changes in the information set forth in the Registration Statement after it
is prepared regarding the Investor or its plan of distribution to the extent
required by applicable law.
(b) In addition to any suspension rights under paragraph (c) below, the
Company may, upon the happening of any event, that, in the judgment of Company's
board of directors, renders it advisable to suspend use of the prospectus for no
more than sixty (60) days in the aggregate in any twelve (12) month period of
time due to pending corporate developments, public filings with the SEC or
similar events, suspend use of the prospectus on written notice to each Investor
(which notice will not disclose the content of any material non-public
information and will indicate the date of the beginning and end of the intended
suspension, if known), in which case each Investor shall discontinue disposition
of Registrable Shares covered by the Registration Statement or prospectus until
copies of a supplemented or amended prospectus are distributed to the Investors
or until the Investors are advised in writing by the Company that the use of the
applicable prospectus may be resumed.
(c) Subject to paragraph (d) below, in the event of: (i) any request by the
SEC or any other federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or supplements to a
Registration Statement or related prospectus or for additional information, (ii)
the issuance by the SEC or any other federal or state governmental authority of
any stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iii) the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (iv) any
event or circumstance which necessitates the making of any changes in the
Registration Statement or prospectus, or any document incorporated or deemed to
be incorporated therein by reference, so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
prospectus, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, then the Company shall deliver a certificate in
writing to the Investors (the "Suspension Notice") to the effect of the
foregoing (which notice will not disclose the content of any material non-public
information and will indicate the date of the beginning and end of the intended
suspension, if known), and, upon receipt of such Suspension Notice, the
Investors will refrain from selling any Registrable Shares pursuant to the
Registration Statement (a "Suspension") until the Investors' receipt of copies
of a supplemented or amended prospectus prepared and filed by the Company, or
until it is advised in writing by the Company that the current prospectus may be
used, and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in any such prospectus. In the
event of any Suspension, the Company will use its reasonable best efforts to
cause the use of the prospectus so suspended to be resumed as soon as possible
after delivery of a Suspension Notice to the Investors.
(d) Provided that a Suspension is not then in effect, the Investors may
sell Registrable Shares under the Registration Statement, provided that the
selling Investor arranges for delivery of a current prospectus to the transferee
of such Registrable Shares.
(e) In the event of a sale of Registrable Shares by an Investor, such
Investor must also deliver to the Company's transfer agent, with a copy to the
Company, a Certificate of Subsequent Sale substantially in the form attached
hereto as Exhibit E, so that ownership of the Registrable Shares may be properly
---------
transferred.
(f) For so long as the Company will have a class of securities registered
under Section 12(b) or Section 12(g) of the Exchange Act, the Company covenants
that it will file, on a timely basis, any reports required to be filed by it
under the Exchange Act and the rules and regulations adopted by the SEC
thereunder and keep all such reports and public information current to the
extent required by Rule 144 under the Securities Act for a period of five (5)
years after the Closing.
4.3 Indemnification. For the purpose of this Section 4.3 only, (i) the term
---------------
"Registration Statement" shall include any final prospectus, exhibit, supplement
or amendment included in or relating to the Registration Statement referred to
in Section 4.1(a); and (ii) the term "untrue statement" shall include any untrue
statement or any omission to state in the Registration Statement a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each Investor and the
directors, partners, officers, advisors, agents, representatives and employees
of such Investor (and each person, if any, who controls such Investor within the
meaning of section 15 of the Securities Act) from and against any losses,
claims, damages or liabilities to which such Investor and the directors,
officers, advisors, agents, representatives and employees of such Investor (or
such person, if any, who controls such Investor within the meaning of section 15
of the Securities Act) may become subject (under the Securities Act or
otherwise) insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or (ii) any failure by the Company to fulfill any
undertaking included in the Registration Statement, and the Company will
reimburse such Investor (and each person, if any, who controls such Investor
within the meaning of section 15 of the Securities Act) for any reasonable legal
or other expenses reasonably incurred in investigating, defending or preparing
to defend any such action, proceeding or claim; provided, however, that the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of, or is based upon, an untrue statement
made in such Registration Statement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Investor
specifically for use in preparation of the Registration Statement or the failure
of such Investor to comply with its covenants and agreements contained in
Section 3 or 4.2 hereof or any statement or omission in any prospectus that is
corrected in any subsequent prospectus that was delivered to the Investor prior
to the pertinent sale or sales by the Investor.
(b) Each Investor, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) and each
other Investor from and against any losses, claims, damages or liabilities to
which the Company (or any such officer, director or controlling person) or other
Investor may become subject (under the Securities Act or otherwise), insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement if,
and to the extent, such untrue statement was made in reliance upon and in
conformity with information furnished by or on behalf of the indemnifying
Investor in writing specifically for use in preparation of the Registration
Statement, and the indemnifying Investor will reimburse the Company (or such
officer, director or controlling person) or other Investor, as the case may be,
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim. Notwithstanding
anything to the contrary contained in this Section 4.3(b), the Investor shall
not be liable under this Section 4.3(b) for amounts in excess of the gross
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement.
(c) Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 4.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, but the omission to so notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party under this Section 4.3 (except to the extent that such
omission materially and adversely affects the indemnifying party's ability to
defend such action) or from any liability otherwise than under this Section 4.3.
Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof. In no event shall any
indemnifying person be liable in respect of any amounts paid in settlement of
any action unless the indemnifying person shall have approved the terms of such
settlement; provided that such consent shall not be unreasonably withheld. No
indemnifying person shall, without the prior written consent of the indemnified
person, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified person is or could have been a party and
indemnification could have been sought hereunder by such indemnified person,
unless such settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in this Section 4.3 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Investors on the other in
connection with the statements or omissions or other matters which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, in the case of an untrue
statement, whether the untrue statement relates to information supplied by the
Company on the one hand or an Investor on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement. The Company and the Investors agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Investors were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Investor shall be required to contribute
any amount in excess of the amount by which the gross amount received by the
Investor from the sale of the Registrable Shares to which such loss relates
exceeds the amount of any damages which such Investor has otherwise been
required to pay by reason of such untrue statement. 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. The Investors' obligations in this
subsection to contribute are several in proportion to their sales of Registrable
Shares to which such loss relates and not joint.
4.4 Termination of Conditions and Obligations. The conditions precedent
------------------------------------------
imposed by Section 4 upon the transferability of the Registrable Shares shall
cease and terminate as to any particular number of the Registrable Shares when
such Registrable Shares shall have been effectively registered under the
Securities Act and sold or otherwise disposed of in accordance with the intended
method of disposition set forth in the Registration Statement covering such
Registrable Shares or at such time as an opinion of counsel reasonably
satisfactory to the Company shall have been rendered to the effect that such
conditions are not necessary in order to comply with the Securities Act or upon
evidence reasonably satisfactory to the Company that such registration is not
required, or sold pursuant to Rule 144 of the Securities Act or another
applicable exemption.
5. Conditions of each Investor's Obligations at Closing. The obligations of
----------------------------------------------------
each Investor to purchase and pay for Shares and Warrants at the Closing are
subject to the fulfillment or written waiver by such Investor of each of the
following conditions, the waiver of which shall not be effective against any
Investor who does not consent in writing thereto:
5.1 Representations and Warranties. The representations and warranties of
-------------------------------
the Company contained in Section 2 shall be true and correct on and as of the
date of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing (except for
representations and warranties that speak as of a specific date).
5.2 Performance. The Company shall have performed and complied with all
-----------
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with on or before the date of the Closing.
5.3 Qualifications. All authorizations, approvals or permits, if any, of
--------------
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
date of the Closing. The Company shall have obtained all necessary blue sky
permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Shares.
5.4 Opinion of Counsel. The Investor shall have received the opinion of
------------------
Pillsbury Winthrop LLP, counsel to the Company, dated as of the Closing, in the
form set forth as Exhibit D attached hereto.
---------
5.5 Required Stockholder Approval. The Company shall have obtained the
-------------------------------
Required Stockholder Approval. The Investors' obligation to complete the
purchase and sale of the Shares and Warrants to be issued and sold at the
Closing shall be rescinded if (a) the Required Stockholder Approval is not
obtained at the first stockholders meeting duly called for the purpose of
obtaining such approval, or any continuance thereof, whether by adjournment,
postponement or otherwise, (b) the Closing has not occurred on or prior to the
75th day following the date of this Agreement, except to the extent any delay in
closing is caused solely by the SEC review of the Company's documents filed with
the SEC under the Exchange Act, including any proxy statement filed with respect
to such stockholders meeting and such review prevents the Company from holding a
stockholders meeting to obtain the Required Stockholder Approval, or (c) the
Closing has not occurred on or before the 120th day following the date of this
Agreement unless extended by a majority in interest of the Investors.
5.6 Certificates. The Company shall have delivered to the Investor duly
------------
executed certificates for the Shares and the Warrants (in such denominations as
are set forth opposite the Investor's name on the Schedule of Investors with
respect to the respective closing).
5.7 Organizational Documents. The Company shall have delivered to the
-------------------------
Investors (a) a certificate evidencing the incorporation and good standing of
the Company in the State of Delaware issued by the Secretary of State of the
State of Delaware, and (c) a secretary's certificate, dated as of the Closing
Date, certifying as to (i) the resolutions of the Board of Directors approving
this Agreement and the consummation of the transactions contemplated hereby,
(ii) the Certificate of Incorporation and (iii) the By-laws, each as in effect
at the Closing.
5.8 Filings. The Company shall have made all filings under all applicable
-------
federal and state securities laws necessary to consummate the issuance of the
Securities pursuant to this Agreement in compliance with such laws.
5.9 Nasdaq Listing. The Common Stock (x) shall be designated for quotation
--------------
or listed on Nasdaq and (y) shall not have been suspended by the SEC or the
Principal Market from trading on Nasdaq nor shall suspension by the SEC or
Nasdaq have been threatened either (A) in writing by the SEC or Nasdaq or (B)
except as set forth in the Disclosure Schedule, by falling below the minimum
listing maintenance requirements of the Nasdaq; and the Shares and Warrant
Shares issuable upon exercise of the Warrants (without regard to any limitations
on exercises) shall be listed (subject to official notice of issuance) upon the
Nasdaq.
6. Conditions of the Company's Obligations at Closing. The obligations of
---------------------------------------------------
the Company to sell, issue and deliver the Shares and Warrants to each Investor
at the Closing are subject to the fulfillment or written waiver by the Company
of each of the following conditions by such Investor:
6.1 Representations and Warranties. The representations and warranties of
-------------------------------
such Investor contained in Section 3 shall be true on and as of the Closing with
the same effect as though such representations and warranties had been made on
and as of the Closing (except for representations and warranties that speak as
of a specific date).
6.2 Performance. The Investor shall have performed and complied with all
-----------
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with on or before the Closing.
6.3 Qualifications. All authorizations, approvals or permits, if any, of
--------------
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Common Stock pursuant to this Agreement shall be duly obtained and effective as
of the Closing.
6.4 Investor Questionnaires. The Investor shall have completed, executed
------------------------
and delivered to the Company a completed Investor Questionnaire in the form
attached hereto as Exhibit C.
---------
6.5 Purchase Price. The Investor shall have paid to the Company its
---------------
respective Purchase Price for the Shares and Warrants as indicated on the
Schedule of Investors.
6.6 Required Stockholder Approval. The Company shall have obtained the
-------------------------------
Required Stockholder Approval.
7. Miscellaneous.
-------------
7.1 Entire Agreement. This Agreement and the documents referred to herein
----------------
and all Schedules and Exhibits thereto constitute the entire agreement among the
parties and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth
herein or therein.
7.2 Survival. The parties agree that, regardless of any investigation made
--------
by the parties, the warranties, representations and covenants of the Company and
the Investors contained in or made pursuant to this Agreement (including,
without limitation, the provisions of Section 4) shall survive the execution and
delivery of this Agreement and the Closing.
7.3 Successors and Assigns. Except as otherwise provided herein, the terms
----------------------
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including permitted
transferees of any Securities). Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.4 Governing Law. This Agreement shall be governed by and construed under
-------------
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
7.5 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.6 Titles and Subtitles. The titles and subtitles used in this Agreement
---------------------
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
7.7 Notices. Unless otherwise provided, any notice required or permitted
-------
under this Agreement shall be given in writing and shall be deemed given and
effective when delivered personally, by telex or telecopier, or by overnight
express at the following addresses or to such other address as such party may
designate by written notice to the other party in accordance with the provisions
of this Section:
If to the Company: VINA Technologies, Inc.
00000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
With a copy to: Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
If to an Investor: See the signature pages hereto
7.8 Expenses. Each party will bear its own expenses related to this
--------
Agreement and the transactions contemplated therein.
7.9 Attorneys' Fees. If any action at law or in equity is necessary to
----------------
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and disbursements in addition to
any other relief to which such party may be entitled.
7.10 Amendments and Waivers. Any term of this Agreement may be amended and
----------------------
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Investors holding a majority of the
Securities.
7.11 Severability. If one or more provisions of this Agreement are held to
------------
be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of this Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
7.12 Rights of the Investor. Each holder of the Securities shall have the
----------------------
absolute right to exercise or refrain from exercising any right or rights that
such holder may have by reason of this Agreement or any Securities, including
without limitation the right to consent to the waiver of any obligation of the
Company under this Agreement and to enter into an agreement with the Company for
the purpose of modifying this Agreement or any agreement effecting any such
modification, and such holder shall not incur any liability to any other holder
or holders of the Securities with respect to exercising or refraining from
exercising any such right or rights.
7.13 Indemnification. The Company shall defend, protect, indemnify and hold
---------------
harmless each Investor and each of their stockholders, partners, members,
officers, directors, employees and representatives (including, without
limitation, those retained in connection with the transactions contemplated by
this Agreement) (collectively, the "Indemnitees") from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "Indemnified Liabilities"), incurred by any Indemnitee as a result of, or
arising out of, or relating to (A) any misrepresentation or breach of any
representation or warranty made by the Company in this Agreement or any other
certificate, instrument or document contemplated hereby or thereby, or (B) any
breach of any covenant, agreement or obligation of the Company contained in this
Agreement or any other certificate, instrument or document contemplated hereby
or thereby. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. Except as otherwise set forth herein, the
mechanics and procedures with respect to the rights and obligations under this
Section 7.13 shall be the same as those set forth in Section 4.3, including,
without limitation, those procedures with respect to the settlement of claims
and the Company's rights to assume the defense of claims.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
VINA TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxxxxx
Chief Financial Officer
[INVESTOR SIGNATURE PAGES TO FOLLOW]
SIGNATURE PAGE TO
SECURITIES PURCHASE AGREEMENT
DATED AS OF OCTOBER 19, 2001
BY AND AMONG
VINA TECHNOLOGIES, INC.
AND EACH INVESTOR NAMED THEREIN
The undersigned hereby executes and delivers to VINA Technologies, Inc. the
Securities Purchase Agreement (the "Agreement") to which this Signature Page is
attached effective as of the date of the Agreement, which Agreement and
Signature Page, together with all counterparts of such Agreement and signature
pages of the other Investors named in such Agreement, shall constitute one and
the same document in accordance with the terms of such Agreement.
Number of Shares: 1,542,390
Xxxxxxx Capital Partners, L.P
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
Address: 000 Xxxxxxxxxx Xxx., Xxxxx 000
Xxxx Xxxx, XX 00000
EXHIBIT A
SCHEDULE OF INVESTORS
Number of Shares Investment
Investor Name Purchased from Company Number of Warrants In Dollars
------------- ---------------------- ------------------ ----------
Xxxxxxx Capital Partners, L.P. 1,524,390 500,000 $1,000,000
--------- ------- ----------
$1,000,000
