EXHIBIT 2
STOCKHOLDERS AGREEMENT
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STOCKHOLDERS AGREEMENT, dated as of October 1, 2001 (this
"Agreement"), among Virata Corporation, a Delaware corporation ("Virata"), TPG
Partners, L.P., TPG Parallel I, L.P., and Communication Genpar Inc.,
(collectively the "Stockholders") a stockholder of Globespan, Inc., a Delaware
corporation ("Globespan").
WHEREAS, Globespan, Wine Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Globespan ("Sub") and Virata are,
concurrently with the execution hereof, entering into an Agreement and Plan of
Merger, dated as of October 1, 2001 (the "Merger Agreement"), pursuant to which,
upon the terms and subject to the conditions set forth in the Merger Agreement,
Sub will merge with and into Virata, with Virata being the surviving corporation
(the "Merger");
WHEREAS, each Stockholder is the record and/or beneficial
owner of such number of shares of common stock of Globespan, par value $.01 per
share ("Globespan Common Stock"), as is set forth opposite his, her or its name
on Schedule I hereto (collectively, the "Existing Shares") (all such Existing
Shares, together with all other shares of capital stock or other voting
securities of Globespan or any of its Subsidiaries with respect to which the
Stockholders have beneficial ownership (for purposes of this Agreement,
"beneficial ownership" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act) as of the date of this Agreement, and any shares of capital stock
or other voting securities of Globespan or any of its Subsidiaries, beneficial
ownership of which is directly or indirectly acquired after the date hereof,
including, without limitation, shares received pursuant to any stock splits,
stock dividends or distributions, shares acquired by purchase or upon the
exercise, conversion or exchange of any option, warrant or convertible security
or otherwise, and shares or any voting securities of Globespan or any of its
Subsidiaries received pursuant to any change in the capital stock of Globespan
or such Subsidiary by reason of any recapitalization, merger, reorganization,
consolidation, combination, exchange of shares or the like, are referred to
herein as the "Shares");
WHEREAS, each of the parties hereto desires to enter into this
Agreement to provide for, among other things, (1) the obligation of each
Stockholder to vote, or cause the record holder of the Shares to vote, the
Shares beneficially owned by such Stockholder (other than Shares subject to
unexercised options) in the manner specified herein and (2) certain restrictions
on the sale or the transfer of the record and beneficial ownership of Shares by
the Stockholders; and
WHEREAS, each Stockholder acknowledges that Globespan, Sub and
Virata are entering into the Merger Agreement in reliance on the
representations, warranties, covenants and other agreements of such Stockholder
set forth in this Agreement and would not enter into the Merger Agreement if
such Stockholder did not enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein and in the Merger Agreement, and intending to be legally bound hereby,
Virata and each Stockholder agree as follows:
1. Defined Terms. Notwithstanding anything to the contrary herein, the
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terms "Existing Shares" and "Shares" shall not include any shares which are
designated as "Exempt Shares" on Schedule I, and nothing in this Agreement shall
be deemed to apply to such shares. Terms used herein without definition shall
have the meanings assigned to such terms in the Merger Agreement.
2. Agreement to Vote. Each Stockholder hereby agrees that, from and
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after the date hereof and until the Expiration Date (as defined in Section 18),
at any meeting of the stockholders of Globespan, however called, or in
connection with any written consent of the stockholders of Globespan, such
Stockholder shall appear at each such meeting, in person or by proxy, or
otherwise cause such Stockholder's Shares (other than Shares subject to
unexercised options)to be counted as present thereat for purposes of
establishing a quorum, and such Stockholder shall vote (or cause to be voted) or
act (or cause to be acted) by written consent with respect to all of such
Stockholder's Shares (other than Shares subject to unexercised options), (a) in
favor of adoption and approval of the Merger Agreement and the Merger and the
approval of the terms thereof and each of the other actions contemplated by the
Merger Agreement and this Agreement, and any other action reasonably requested
by Virata in furtherance thereof; (b) against any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of Globespan contained in the Merger Agreement or of
Stockholder contained in this Agreement; and (c) against any Acquisition
Proposal made by any person other than Virata or any of its affiliates. Each
Stockholder hereby agrees that it will not enter into any voting or other
similar agreement or understanding with any person or entity or grant a proxy or
power of attorney with respect to the Shares prior to the Expiration Date (other
than a proxy or power of attorney to an officer of Virata that may be exercised
solely in accordance with this Section 2 and except as provided in Section 3
below) or vote or give instructions in any manner inconsistent with clause (a),
(b) or (c) of the preceding sentence. Each Stockholder hereby agrees, during the
period commencing on the date hereof and ending on the Expiration Date, not to,
and, if applicable, not to permit any of such Stockholder's affiliates to, vote
or execute any written consent in lieu of a stockholders meeting or vote, if
such consent or vote by the stockholders of Globespan would be inconsistent with
or frustrate the purposes of the other covenants of such Stockholder pursuant to
this paragraph. As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
3. PROXY. SUBJECT TO SECTION 18 HEREOF, EACH STOCKHOLDER HEREBY GRANTS
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TO, AND APPOINTS, XXXXXXX XXXXXX AND XXXXXX XXXXXX, IN THEIR RESPECTIVE
CAPACITIES AS OFFICERS OF VIRATA, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED
ANY SUCH OFFICER OF VIRATA, AND ANY OTHER PERSON DESIGNATED IN WRITING BY
VIRATA, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT
(WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT, TO THE
FULLEST EXTENT PERMITTED BY AND SUBJECT TO APPLICABLE LAW, WITH RESPECT TO THE
SHARES IN ACCORDANCE WITH SECTION 2 HEREOF IN RESPECT OF ANY MATTER SPECIFIED IN
CLAUSE (a), (b) OR (c) OF SUCH SECTION 2. THIS PROXY IS COUPLED WITH AN INTEREST
AND SHALL BE IRREVOCABLE. EACH STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR
EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF
THIS
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PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH STOCKHOLDER WITH
RESPECT TO THE SHARES. NOTWITHSTANDING THE FOREGOING, NEITHER VIRATA NOR ANY OF
THE AFORENAMED PROXIES SHALL EXERCISE THE POWERS SET FORTH IN THIS SECTION 3
UNLESS AND UNTIL GLOBESPAN SHALL HAVE RECEIVED ALL APPLICABLE REGULATORY
APPROVALS REQUIRED UNDER APPLICABLE LAW FOR SUCH EXERCISE.
4. Representations and Warranties of Virata. Virata represents and
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warrants to Stockholder as follows:
(a) Virata is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware.
(b) Virata has the requisite corporate power and authority to enter
into this Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement by Virata and the consummation by Virata of the
transactions contemplated hereby have been duly authorized by the respective
Boards of Directors of Virata and no other corporate proceedings on the part of
Virata are necessary to authorize the execution and delivery of this Agreement
by Virata and the consummation by them of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Virata and (assuming the
valid authorization, execution and delivery of this Agreement by Stockholder) is
a valid and binding obligation of Virata, enforceable against Virata in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by Virata does not,
and the performance of this Agreement by Virata will not, (i) conflict with or
violate the certificate of incorporation or by-laws of Virata, (ii) conflict
with or violate any law, rule, regulation or order applicable to Virata or by
which any of their respective properties is bound, or (iii) conflict with,
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or require
payment under, or result in the creation of any lien on the properties or assets
of Virata pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
Virata is a party or by which Virata or any of their respective properties is
bound, except for any thereof that would materially impair the ability of Virata
to perform its obligations hereunder or to consummate the transactions
contemplated hereby on a timely basis.
(d) The execution and delivery of this Agreement by Virata do not,
and the performance by Virata of their obligations hereunder will not, require
Virata to obtain any consent, approval, authorization or permit of, or to make
any filing with or notification to, any Governmental Entity, other than as set
forth in Section 4.1(d) of the Merger Agreement.
(e) There is no suit, action, investigation or proceeding pending
or, to the knowledge of Virata, threatened against Virata at law or in equity
before or by any Governmental Entity that could reasonably be expected to
materially impair the ability of Virata to perform its obligations hereunder on
a timely basis, and there is no agreement, commitment or
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law to which Virata is subject that could reasonably be expected to materially
impair the ability of Virata to perform its obligations hereunder on a timely
basis.
5. Representations and Warranties of the Stockholders. Each
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Stockholder represents and warrants to Virata as follows:
(a) If such Stockholder is a corporation, limited liability company,
partnership or trust, such Stockholder has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(b) If such Stockholder is a corporation, limited liability company,
partnership or trust, such Stockholder has all necessary corporate power and
authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby, and the execution, delivery
and performance of this Agreement by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of such Stockholder.
(c) This Agreement has been duly executed and delivered by such
Stockholder and (assuming the valid authorization, execution and delivery of
this Agreement by Virata) is a valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law).
(d) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder will not, (i)
if such Stockholder is a corporation, limited liability company, partnership or
trust, conflict with or violate the organizational documents of such
Stockholder, (ii) conflict with or violate any law, rule, regulation or order
applicable to such Stockholder or by which any of such Stockholder's properties
is bound, or (iii) conflict with, result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or require payment under, or result in the
creation of any lien on the properties or assets of such Stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which such Stockholder is
a party or by which such Stockholder or any of its properties is bound, except
for any thereof that would not result in the imposition of a lien on such
Stockholder's Shares or materially impair the ability of such Stockholder to
perform its obligations hereunder or to consummate the transactions contemplated
hereby on a timely basis.
(e) The execution and delivery of this Agreement by such Stockholder
does not, and the performance by such Stockholder of such Stockholder's
obligations hereunder will not, require such Stockholder to obtain any consent,
approval, authorization or permit of, or to make any filing with or notification
to, any Governmental Entity, except for an amendment to the Statement on
Schedule 13D filed by, among others, such Stockholder with respect to Globespan
and any required Section 16 filings.
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(f) There is no suit, action, investigation or proceeding pending
or, to the knowledge of such Stockholder, threatened against such Stockholder at
law or in equity before or by any Governmental Entity that could reasonably be
expected to materially impair the ability of such Stockholder to perform its
obligations hereunder on a timely basis, and there is no agreement, commitment
or law to which such Stockholder is subject that could reasonably be expected to
materially impair the ability of such Stockholder to perform its obligations
hereunder on a timely basis.
(g) Except as set forth on Schedule I hereto or as otherwise
provided herein, (i) such Stockholder's Existing Shares are owned beneficially
and of record by such Stockholder; (ii) such Stockholder has not appointed or
granted any proxy which is still effective with respect to any Shares other than
as provided in this Agreement; and (iii) such Stockholder has sole voting power
and sole power of disposition with respect to all of such Stockholder's Existing
Shares, with no restrictions on such Stockholder's rights of disposition
pertaining thereto. The Existing Shares constitute all of the shares of
Globespan Common Stock owned of record or beneficially by such Stockholder. All
of the Existing Shares are issued and outstanding and, except as listed on
Schedule 1 and except for the preferred stock purchase rights associated with
such Existing Shares, such Stockholder does not own, of record or beneficially,
any warrants, options, convertible securities or other rights to acquire any
shares of Globespan Common Stock.
6. Agreements of the Stockholders. (a) Each Stockholder hereby agrees,
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until the earlier of the Expiration Date and the conclusion of the Globespan
Stockholders Meeting, and except as expressly contemplated hereby, not to (i)
sell, transfer, pledge, encumber, grant, assign or otherwise dispose of, enforce
any redemption agreement with Globespan or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, pledge, encumbrance, grant, assignment or other
disposition of, record or beneficial ownership of any of such Stockholder's
Shares or any interest in any of the foregoing, except to Virata, (ii) grant any
proxies or powers of attorney, deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares, or any interest in any of
the Shares, except to Virata or (iii) take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect
or have the effect of preventing or disabling such Stockholder from performing
its obligations under this Agreement.
(b) Each Stockholder hereby agrees, until the earlier of the
Expiration Date and the conclusion of the Globespan Stockholders Meeting, except
(i) with respect to Globespan and its affiliates, and (ii) for actions taken by
persons in their capacity as officers or directors of Globespan in accordance
with Section 6.5(b) of the Merger Agreement, that such Stockholder shall not,
and shall not permit any of its affiliates or, if applicable, any director,
officer, employee consultant, agent, advisor or representative of such
Stockholder or any of such Stockholder's affiliates (collectively, the
"Representatives") to (i) initiate, solicit or encourage, directly or
indirectly, any inquiries or the making of any proposal with respect to any
matter described in Section 6(a) hereof or any Acquisition Proposal or (ii)
participate in any negotiations concerning, or provide to any other person any
information or data relating to Globespan or any of its Subsidiaries for the
purpose of, or have any discussions with any person relating to, or cooperate
with or assist or participate in, or facilitate, any inquiries or the making of
any proposal which constitutes, or would reasonably be expected to lead to, any
effort or attempt by any other person to seek to effect any matter described in
Section 6(a) hereof or any
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Acquisition Proposal, or agree to or endorse any Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement such an
Acquisition Proposal. Each Stockholder agrees immediately to cease and cause to
be terminated any existing activities, discussions or negotiations with any
persons conducted heretofore by Stockholder with respect to any possible
Acquisition Proposal, or any matter described in Section 6(a) hereof, and will
take the necessary steps to inform Stockholder's Representatives of the
obligations undertaken by Stockholder with respect to Stockholder's
Representatives in this Section 6.
(c) Each Stockholder hereby agrees, while this Agreement is in
effect, to notify Virata promptly of the number of any additional shares of
Globespan Common Stock and the number and type of any other Shares acquired by
such Stockholder, if any, after the date hereof.
7. Further Assurances. From time to time, at the other party's request
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and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement. Without limiting
the generality of the foregoing, none of the parties hereto shall enter into an
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would materially impair the ability of such party to
effectuate, carry out or comply with all the terms of this Agreement.
8. Survival. None of the representations, warranties, covenants and
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agreements of the parties herein shall survive beyond the Expiration Date.
9. Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed duly given if given in the manner set forth in
Section 9.2 of the Merger Agreement. All notices hereunder shall be given to a
party at his or its address stated on the signature pages of this Agreement or
at its address set forth in Section 9.2 of the Merger Agreement or at any other
address as the party may specify for this purpose by notice to the other parties
pursuant to this Section 9.
10. No Waivers. No failure or delay by Virata in exercising any right,
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power or privilege under this Agreement shall operate as a waiver of that right,
power or privilege. A single or partial exercise of any right, power or
privilege shall not preclude any other or further exercise of that right, power
or privilege or the exercise of any other right, power or privilege. The rights
and remedies provided in this Agreement shall be cumulative and not exclusive of
any rights or remedies provided by law.
11. Amendments, Etc. No amendment, modification, termination or waiver
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of any provision of this Agreement, and no consent to any departure by any
Stockholder or Virata from any provision of this Agreement, shall be effective
unless it shall be in writing and signed and delivered by each party hereto, and
then it shall be effective only in the specific instance and for the specific
purpose for which it is given.
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12. Successors and Assigns; Third Party Beneficiaries.
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(a) No party shall assign any of such party's rights or remedies or
delegate any of such party's obligations or liabilities, in whole or in part,
under this Agreement, except that Virata may assign all or any of its rights
hereunder to any affiliate of Virata. Any assignment or delegation in
contravention of this Section 12 shall be void ab initio and shall not relieve
the assigning or delegating party of any obligation under this Agreement.
(b) The provisions of this Agreement shall be binding upon and inure
solely to the benefit of the parties hereto and their respective permitted
heirs, executors, legal representatives, successors and assigns, and no other
person.
13. Governing Law; Submission to Jurisdiction. This Agreement and all
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rights, remedies, liabilities, powers and duties of the parties hereto and
thereto, shall be governed by and construed in accordance with the laws of the
State of Delaware applicable to contracts executed in and to be performed
entirely within that State. Virata and each Stockholder hereby (w) submit to the
exclusive jurisdiction of any State and Federal courts sitting in Delaware with
respect to matters arising out of or relating hereto, (x) agree that all claims
with respect to such matters shall be heard and determined in an action or
proceeding in such Delaware State or Federal court, and (y) agree that a final
judgment in any such action or proceeding will be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law.
14. Severability of Provisions. If any term or other provision of
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this Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
15. Headings and References. Article and Section headings in this
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Agreement are included for convenience of reference only and do not constitute a
part of this Agreement for any other purpose. References to Articles and
Sections in this Agreement are references to the Articles and Sections of this
Agreement unless the context shall require otherwise. Any of the terms defined
in this Agreement may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference. The use in this Agreement of
the word "include" or "including," when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such word or to
similar items or matters, whether or not nonlimiting language (such as "without
limitation" or "but not limited to" or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement,
term or matter.
16. Entire Agreement. This Agreement and the Merger Agreement embody
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the entire agreement and understanding of each of the parties hereto, and
supersede all other
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written or oral prior agreements or understandings, with respect to the subject
matter of this Agreement.
17. Enforcement. The parties agree that irreparable damage would
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occur in the event that any of the provisions of this Agreement was not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court sitting in the
State of Delaware or State of Delaware court, this being in addition to any
other remedy to which they are entitled at law or in equity.
18. Termination. This Agreement and the proxy set forth in Section 3
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shall terminate upon the earliest of the following dates (such date is referred
to herein as the "Expiration Date"): (i) the date on which the Merger Agreement
is terminated; (ii) the date on which Globespan terminates this Agreement upon
written notice to the Stockholders (Virata may so terminate this Agreement and
the proxy set forth herein at any time); or (iii) the Effective Time (as defined
in the Merger Agreement).
19. Counterparts. This Agreement may be signed in any number of
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counterparts and by facsimile, each of which shall be an original, with the same
effect as if all signatures were on the same instrument.
20. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT, AS A
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CONDITION OF SUCH PARTY'S RIGHT TO ENFORCE OR DEFEND ANY RIGHT UNDER OR IN
CONNECTION WITH THIS AGREEMENT, WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT AND AGREES THAT ANY
ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, Virata and the undersigned Stockholders have
caused this Agreement to be duly executed as of the day and year first above
written.
VIRATA CORPORATION
By: /s/ Virata Corporation
-----------------------------------
Name:
Title:
[Signatures of the Stockholder to follow]
We hereby consent to the matters
set forth in this Agreement and the
execution of this Agreement by
each of the parties hereto.
GLOBESPAN
By: /s/ Globespan
---------------------------------
Name:
Title:
STOCKHOLDER
TPG PARTNERS, L.P.,
By:/s/ TPG Partners, L.P.
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Name:
Title:
[Signature Page to Voting Agreement]
STOCKHOLDER
TPG PARALLEL I, L.P.
By:/s/ TPG Parallel I, L.P.
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Name:
Title:
[Signature Page to Voting Agreement]
STOCKHOLDER
COMMUNICATION GENPAR INC.
By:/s/ Communication Genpar Inc.
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Name:
Title:
[Signature Page to Voting Agreement]
SCHEDULE I
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Stockholder Existing Exempt Shares Total
Shares
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TPG Partners, L.P. 6,236,049 7,163,148 13,399,197
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TPG Parallel I, L.P. 541,839 622,392 1,164,231
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Communication Genpar Inc. 335,288 0 335,288
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Total 7,113,175 7,785,541 14,898,716
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