Exhibit 4.2
STOCKHOLDERS' AGREEMENT
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THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is made as of the 17th day
of October, 2001, by and among VINA Technologies, Inc., a Delaware corporation
(the "Company"), and the persons or entities whose name appears on the signature
pages hereto (the "Stockholders", and each a "Stockholder").
WHEREAS, the Stockholders currently Beneficially Own (as defined
herein) the number of shares of Company Common Stock (as defined herein) set
forth opposite their respective names on the signatures page hereto; and
WHEREAS, concurrently with the execution of this Agreement, the Company
will enter into two agreements, that certain Agreement and Plan of Merger,
between the Company and MOS Acquisition Corporation, and that certain Securities
Purchase Agreement among the Company and the Investors named therein, each dated
as of the date hereof (collectively the "Share Purchase Agreements"), pursuant
to which one or more Stockholders or their Affiliates (as defined herein) will
become the Beneficial Owner of additional shares of Company Common Stock; and
WHEREAS, as an inducement and a condition to entering into the Share
Purchase Agreements, the Company has required that the Stockholders agree, and
each Stockholder has agreed, to enter into this Agreement:
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement, the following terms shall
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have the following meanings:
"Affiliate" and "Associate" when used with reference to any Person shall
have the respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act as in effect on the date of this
Agreement.
A Person shall be deemed the "Beneficial Owner," and shall be deemed to
"Beneficially Own" or have "Beneficial Ownership," of any Company Securities
which such Person or any of such Person's Affiliates or Associates is deemed to
beneficially own, directly or indirectly pursuant to Rule 13d-3 of the General
Rules and Regulations of the Exchange Act as in effect on the date hereof.
"Company Common Stock" means the common stock, $.0001 par value, of the
Company.
"Company Securities" means any "securities" (as such term is defined in
Section 2(a)(1) of the Securities Act) of the Company (regardless of whether
such securities, options, warrants or other rights are then exercisable or
convertible).
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"Excess Incremental Shares" means the number of Voting Securities
Beneficially Owned by the Sierra Affiliated Group representing the excess, if
any, of the actual Relative Voting Power from time to time over the Voting
Ownership Percentage.
"Exchange Act" means the Securities Exchange Act of 1934, as amended (or
any successor statute).
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, other entity, government or any agency or
political subdivision thereof or any Group comprised of two or more of the
foregoing.
"Relative Voting Power" means, with respect to the Sierra Affiliated Group,
the total Voting Power (assuming all such Voting Securities were outstanding) of
the Voting Securities Beneficially Owned by each Person in the Sierra Affiliated
Group relative to (i.e., expressed as a percentage of) the sum of the total
Voting Power (assuming all such Voting Securities were outstanding) of the
following: (i) all Voting Securities actually outstanding (excluding any Voting
Securities held in the Company's treasury or belonging to any Subsidiary of the
Company which are not entitled to be voted or counted for purposes of
determining the presence of a quorum pursuant to Section 160(c) of the Delaware
General Corporation Law, or any successor statute) plus (ii) any additional
Voting Securities which are not outstanding but which are Beneficially Owned by
any Person in the Sierra Affiliated Group.
"Sierra Affiliated Group" and the "Sierra Entities" mean Sierra Ventures V,
L.P., a California limited liability partnership, SV Associates V, L.P., a
California limited liability partnership, Sierra Ventures VI, L.P., a California
limited liability partnership, SV Associates VI, L.P., a California limited
liability partnership, Sierra Ventures VII, L.P., a California limited liability
partnership, Sierra Ventures Associates VII, LLC, a California limited liability
company, Xxxxxxx X. Xxxxxx and each of their respective Affiliates and their
respective Associates.
"Term" means the period beginning on the earliest date on which any member
of the Sierra Affiliated Group acquires Beneficial Ownership of Voting
Securities pursuant to either of the Share Purchase Agreements, and ending on
the tenth anniversary thereof.
"Voting Ownership Percentage" means Relative Voting Power possessed by the
Sierra Affiliated Group of 35%.
"Voting Power" of any Voting Securities means the number of votes such
Voting Securities are entitled to cast for directors of the Company at any
meeting of stockholders of the Company.
"Voting Securities" means at any time shares of Company Securities which
are then entitled to vote generally in the election of Directors and not solely
upon the occurrence and during the continuation of certain specified events.
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2. Voting on Certain Matters. (a) During the Term, each Stockholder shall,
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and shall cause each member of the Sierra Affiliated Group who Beneficially Owns
Voting Securities (ignoring for purposes of determining such Beneficial
Ownership whether any such Voting Securities may be Excess Incremental Shares)
to, at any annual or special meeting of stockholders or in connection with a
solicitation of consents, vote or cause to be voted (or act by written consent
with respect to) all Excess Incremental Shares, if any, Beneficially Owned by it
in the same proportion as the stockholders of the Company, other than the Sierra
Affiliated Group, vote.
(b) For purposes of clarification, a vote shall include only those shares
actually voted for or against a particular matter or, in connection with the
election of directors, for a particular candidate for director. Abstentions or
broker non-votes (except by or on behalf of any member of the Sierra Affiliated
Group) shall be deemed, for purposes of this Agreement, not to have been voted.
3. Quorum; Proxy. During the Term, each Stockholder shall, and shall cause
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each member of the Sierra Affiliated Group who holds Voting Securities to, be
present in person or represented by proxy at all meetings of stockholders of the
Company to the extent necessary so that all Voting Securities Beneficially Owned
by the Sierra Affiliated Group shall be counted as present for the purpose of
determining the presence of a quorum at such meetings. Notwithstanding any
provision contained herein to the contrary, in the event that during the Term
any member of the Sierra Affiliated Group who Beneficially Owns Voting
Securities shall at any annual or special meeting of stockholders or in
connection with a solicitation of consents (a) fail to vote or cause to be voted
(or act by written consent with respect to), or (b) have submitted a proxy or
written consent determined to be invalid, then in any such event all Voting
Securities Beneficially Owned by such member shall be voted in the same
proportion as the stockholders of the Company, other than the Sierra Affiliated
Group, vote. Each member of the Sierra Affiliated Group hereby appoints the
Company and any designee of the Company, each of them individually, such
member's proxy and attorney-in-fact, with full power of substitution and
resubstitution, to vote or act by written consent with respect to all such
Voting Securities Beneficially Owned by such member (x) in accordance with this
Section 3 (to the extent required thereby) and (y) to sign its name (as a
stockholder) to any consent, certificate or other document relating to the
Company in accordance with Delaware law in connection with any matter referred
to in this Section 3. This proxy is given to secure the performance of the
duties of such member of the Sierra Affiliated Group under this Agreement and
its existence will not be deemed to relieve such members of their obligations
under this Agreement. Each member affirms that this proxy is coupled with an
interest and is irrevocable for the Term. Sierra will, and will cause all other
members of the Sierra Affiliated Group to, take such action or execute such
other instruments as may be necessary or desirable to effectuate the intent of
this proxy.
4. Covenants, Representations and Warranties of Stockholders. Each
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Stockholder, severally and not jointly, hereby represents and warrants to and
agrees with the Company as follows:
(a) Ownership of Company Common Stock. On the date hereof and without
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giving effect to the transactions contemplated by the Share Purchase Agreements,
Stockholder is the Beneficial Owner of the shares of Company Common Stock set
forth on the signature page hereto and does not Beneficially Own any other
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shares of Company Common Stock. On the date hereof, such shares of Company
Common Stock constitute all of the capital stock of VINA that Stockholder has
the right to vote as a VINA stockholder. Stockholder has sole voting power, sole
power of disposition, sole power of conversion, sole power to demand dissenter's
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of Stockholder's shares of Company
Common Stock set forth on the signature page hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) Power; Binding Agreement. Stockholder has the legal capacity, power and
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authority to enter into and perform all of its obligations under this Agreement.
The execution, delivery and performance of this Agreement by Stockholder have
been duly authorized by Stockholder. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(c) No Conflicts. None of the execution and delivery of this Agreement by
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Stockholder, the consummation by Stockholder of the transactions contemplated
hereby or compliance by Stockholder with any of the provisions hereof will (i)
conflict with or result in any breach of any applicable organizational documents
applicable to Stockholder, (ii) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, modification or
acceleration) under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which Stockholder is a party or by which Stockholder or any of its
properties or assets may be bound, (iii) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to Stockholder
or any of its properties or assets or (iv) require any filing with,
authorization, consent or approval of (herein collectively, a "Consent"), any
state or federal authority.
(d) No Encumbrances. The Excess Incremental Shares and the certificates
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representing such shares at all times will be held by Stockholder, or member of
the Sierra Affiliated Group, or by a nominee or custodian for the benefit of
Stockholder or any such member, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances, which would frustrate, interfere or hinder the
obligations and commitments of the Stockholders hereunder.
(e) Non-Interference. During the term of this Agreement, Stockholder shall
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not, directly or indirectly, take any action that would knowingly make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling Stockholder from performing its
obligations under this Agreement.
(f) Reliance by the Company. Stockholder understands and acknowledges that
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the Company is entering into the Share Purchase Agreements in reliance upon
Stockholder's execution and delivery of this Agreement.
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5. Further Assurances. From time to time, at the Company's request and
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without further consideration, each Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
6. No Ownership Interest. Nothing contained in this Agreement shall be
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deemed to vest in any direct or indirect ownership or incidence of ownership of
or with respect to any Company Common Stock. All rights, ownership and economic
benefits of and relating to the shares of Company Common Stock now held or
hereafter acquired by the Stockholders shall remain vested in and belong to the
Stockholders, and VINA shall have no authority to exercise any power or
authority to direct the Stockholders in the voting of any of such shares of
Company Common Stock, except as otherwise provided herein.
7. Company Stockholders Meeting. At any duly noticed meeting of
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stockholders of the Company called to vote upon the issuance of shares of
Company Common Stock pursuant to the Share Purchase Agreements, or either of
them, or at any adjournment thereof, or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with respect to
any such issuance is sought, each Stockholder shall vote (or cause to be voted)
all Company Common Stock Beneficially Owned by such Stockholder in favor of
approval of any such issuance.
8. Miscellaneous.
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(a) Entire Agreement. Except as otherwise provided herein, this Agreement
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contains the entire understanding of the parties with respect to the matters
covered herein and supersedes all prior agreements and understandings, written
or oral, between the parties relating to the subject matter hereof.
(b) Assignment. This Agreement shall not be assignable by operation of law
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or otherwise without the prior written consent of all parties hereto.
(c) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
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supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by all parties hereto.
(d) Notices. Unless otherwise provided, any notice, request, demand or
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other communication required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified, or when sent by telecopier (with receipt confirmed), or
overnight courier service, or upon deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed as follows (or at
such other address as a party may designate by notice to the other):
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If to VINA:
VINA Technologies, Inc.
00000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
with a copy to:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telecopier: (000) 000-0000
If to the Stockholders:
To the addresses set forth on the signature pages hereto.
(e) Severability. If one or more provisions of this Agreement are held to
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be unenforceable, invalid or void by a court of competent jurisdiction, 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.
(f) Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and, therefore, in the
event of any such breach, the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
(g) Remedies Cumulative. All rights, powers and remedies provided under
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this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any right, power or
remedy by any party shall not preclude the simultaneous or later exercise of any
other right, power or remedy by such party.
(h) No Waiver. The observance of any term of this Agreement may be waived
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(either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the party against whom such
waiver is sought to be enforced. No waiver by either party of any default with
respect to any provision, condition or requirement hereof shall be deemed to be
a continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(i) No Third Party Beneficiaries. This Agreement is not intended to be for
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the benefit of, and shall not be enforceable by, any Person that is not a party
hereto.
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(j) Several Obligations; Capacity. Notwithstanding anything herein to the
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contrary, (i) the representations, warranties, covenants, agreements and
conditions of this Agreement applicable to the Stockholders are several and not
joint and (ii) the covenants and agreements of the Stockholders under this
Agreement shall not require any Stockholder or Affiliate or Associate thereof to
act (or refrain from acting) in any manner in their capacity as an officer or
director of the Company and shall not affect the duties and obligations of any
Stockholder or Affiliate or Associate thereof acting in his or her capacity as
an officer or director of the Company.
(k) Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(l) Titles and Subtitles. The titles and subtitles used in this Agreement
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are used for convenience only and are not to be considered in construing or
interpreting this Agreement. Any reference in this Agreement to a statutory
provision or rule or regulation promulgated thereunder shall be deemed to
include any similar successor statutory provision or rule or regulation
promulgated thereunder.
(m) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
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first above written.
VINA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
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STOCKHOLDERS:
SIERRA VENTURES V, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
8,591,484 shares of Common Stock
SV ASSOCIATES V, L.P.,
as nominee for its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
No shares owned of record but is a beneficial owner of, and
has voting and dispositive power for, 8,591,484
shares held by Sierra Ventures V, L.P.
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SIERRA VENTURES VI, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
1,618,035 shares of Common Stock
SV ASSOCIATES VI, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
No shares owned of record but is a beneficial owner of, and
has voting and dispositive power for, 1,618,035
shares held by Sierra Ventures VI, L.P.
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SV ASSOCIATES VI, L.P.,
as nominee for its General Partner,
UAD 1/14/97
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
72,922 shares of Common Stock
SIERRA VENTURES VII, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
No shares owned as of the date of this Agreement
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SIERRA VENTURES ASSOCIATES VII, LLC
as nominee for its members
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
No shares owned as of the date of this Agreement
XXXXXXX X. XXXXXX, as an individual
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Address: 0000 Xxxx Xxxx Xxxx
Xxxx. 0 - 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Shares Beneficially Owned (indicate class or series
of stock and manner held, if not record owner):
311,596 shares of Common Stock (includes option shares)
and is a beneficial owner of an aggregate of 10,282,441
shares of the Sierra entities
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