EXHIBIT 2.3
VINA VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 17th day of
March, 2003, by and between Larscom Incorporated, a Delaware corporation
("Larscom"), and the stockholders listed on the signature pages hereto (the
"Stockholders", and each a "Stockholder").
WHEREAS, the Stockholders own the number of shares and class or series
of capital stock of VINA Technologies, a Delaware corporation ("VINA"), set
forth opposite each Stockholder's name on Schedule 1 hereto (all of such shares
now owned and any additional shares of capital stock of VINA which may hereafter
be acquired by a Stockholder from any source prior to the termination of this
Agreement, the "VINA Shares"); and
WHEREAS, VINA, Larscom and Larscom Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Larscom (the "Transitory Sub"),
have entered into that certain Agreement and Plan of Merger of even date
herewith (the "Merger Agreement") pursuant to which the Transitory Sub will
merge with and VINA (the "First Merger") with VINA as the surviving corporation,
followed promptly by the merger of VINA with and into Larscom (the "Second
Merger" and collectively with the First Merger, the "Merger") (capitalized terms
used and not defined herein have the respective meaning ascribed to them in the
Merger Agreement); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Larscom has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions. For purposes of this Agreement, "Person" shall
mean an individual, corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity. "Beneficial ownership,"
"beneficially own" and similar terms shall refer to beneficial ownership within
the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 13d-3 thereunder.
2. Provisions Concerning the VINA Shares. During the period
commencing on the date hereof and continuing until the first to occur of (a) the
Effective Time, (b) termination of the Merger Agreement in accordance with its
terms or (c) the written agreement of the parties hereto to terminate this
Agreement (the "Voting Expiration Date"), each Stockholder agrees that it shall,
at any meeting (or any adjournment thereof) of the holders of VINA Common Stock,
however called, or in connection with any written consent of the holders of VINA
Common Stock, vote (or cause to be voted) the VINA Shares then held of record or
beneficially owned by each such Stockholder (unless such shares are otherwise
voted pursuant to the proxy granted hereunder), (i) for approval and adoption of
the VINA Voting Proposal, including the Merger, the Merger Agreement and the
transactions contemplated thereby, (ii) against any action or agreement that
could reasonably be expected to result in a breach in any material respect of
any
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covenant, representation or warranty or any other obligation of VINA under the
Merger Agreement, or could reasonably be expected to result in any of the
conditions set forth in Article VII of the Merger Agreement not being fulfilled,
(iii) against any Acquisition Proposal other than the Merger, the Merger
Agreement and transactions contemplated thereby, and (iv) against (A) any other
extraordinary corporate transaction other than the Merger, the Merger Agreement
and the transactions contemplated thereby, such as a merger, consolidation,
business combination, reorganization, recapitalization or liquidation involving
VINA or any of its Subsidiaries or (B) any other proposal or transaction not
covered by the foregoing which is intended, or could be reasonably be expected
to, impede, frustrate, prevent, hinder, delay or nullify the Merger, the Merger
Agreement and the transactions contemplated thereby. Each Stockholder agrees not
to enter into any agreement or understanding with any Person the effect of which
would be inconsistent with or violative of the provisions and agreements
contained in this Section 2.
Each Stockholder, in furtherance of the transactions contemplated
hereby and by the Merger Agreement, and in order to secure the performance of
such Stockholder's duties under this Agreement, shall concurrently with the
execution of this Agreement execute and deliver to Larscom an irrevocable proxy
in the form of Exhibit A hereto, and irrevocably appoints Larscom or its
designees, with full power of substitution, its attorney, agent and proxy to
vote (or cause to be voted) or, if applicable, to give consent with respect to,
all of the VINA Shares in the manner, and with respect to the matters, set forth
above. Each Stockholder acknowledges that the proxy executed and delivered by it
shall be coupled with an interest, shall constitute, among other things, an
inducement for Larscom to enter into the Merger Agreement, shall be irrevocable
and binding on any successor in interest of such Stockholder and shall not be
terminated by operation of law upon the occurrence of any event. Such proxy
shall operate to revoke and render void any prior proxy as to any of the VINA
Shares heretofore granted by the Stockholders. Such proxy shall terminate upon
the Voting Expiration Date. Each Stockholder shall promptly cause to be
delivered to Larscom an additional proxy substantially in the form attached
hereto as Exhibit A executed on behalf of the record owner of any outstanding
shares of VINA Common Stock that such Stockholder owned beneficially (but not of
record).
3. Covenants, Representations and Warranties of Stockholder. Each
Stockholder, severally and not jointly, hereby represents and warrants to and
agrees with Larscom as follows:
(a) Ownership of VINA Shares. Stockholder is the record and
beneficial owner of the VINA Shares set forth on Schedule 1 hereto. On the date
hereof, the VINA Shares constitute all of the capital stock of VINA that
Stockholder has the right to vote with respect to the VINA Voting Proposal.
Stockholder has sole voting power, sole power of disposition, sole power of
conversion, sole power to demand appraisal or 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 VINA Shares, 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 authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any other agreement to which Stockholder is a party
including, without limitation, any voting agreement, proxy
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arrangement, pledge agreement, shareholders' agreement or voting trust. 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. There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which Stockholder is
a trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by Stockholder of the transactions contemplated
hereby.
(c) No Conflicts. None of the execution and delivery of this
Agreement by 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 (herein collectively, a "Default")) 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; which Default or
violation or the failure to obtain any Consent, in the case of clauses (ii),
(iii) and (iv) above, would have a material adverse effect on the ability of
Stockholder to perform Stockholder's obligations hereunder.
(d) No Encumbrances. The VINA Shares and the certificates
representing such VINA Shares are now, and at all times during the term hereof
will be, held by Stockholder, or by a nominee or custodian for the benefit of
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
hereunder.
(e) No Solicitation or Negotiation.
(i) During the term of this Agreement, Stockholder shall
not, and shall cause its Representatives not to on Stockholder's
behalf, in both cases in Stockholder's capacity as a Stockholder of
VINA, directly or indirectly, (A) solicit, initiate, knowingly
encourage or take any other action to facilitate any inquiries or the
making, submission or announcement of any proposal or offer that
constitutes, or could reasonably be expected to lead to, any
Acquisition Proposal, with respect to VINA, (B) enter into, continue or
otherwise participate in any discussions or negotiations regarding,
furnish to any Person any information with respect to, knowingly assist
or participate in any effort or attempt by any Person with respect to,
or otherwise knowingly cooperate in any way with any proposal or offer
that constitutes, or could reasonably be expected to lead to, any
Acquisition Proposal with respect to VINA, except discussions as to the
existence of these provisions, (C) approve, endorse or recommend any
Acquisition Proposal with respect to VINA or (D) enter into any letter
of intent or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Acquisition Proposal or
transaction contemplated thereby with respect to VINA.
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(ii) Stockholder shall immediately advise Larscom orally,
with written confirmation to follow within 48 hours, of any Acquisition
Proposal with respect to VINA or any request for nonpublic information
in connection with any such Acquisition Proposal, or of any inquiry
with respect to, or that could reasonably be expected to lead to, any
Acquisition Proposal with respect to VINA, the material terms and
conditions of any such Acquisition Proposal or inquiry and the identity
of the Person making any such Acquisition Proposal or inquiry.
(f) Non-Interference. During the term of this Agreement,
Stockholder shall 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.
(g) Reliance by Larscom. Stockholder understands and acknowledges
that Larscom is entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
(h) Transfer of Title. During the term of this Agreement,
Stockholder covenants and agrees not to directly or indirectly sell, assign,
pledge, hypothecate, transfer, exchange, convert or dispose of (collectively
"Transfer"), or enter into any contract, option or other arrangement with
respect to the Transfer of, any of the VINA Shares, any options or warrants to
purchase capital stock of VINA or any interest therein or deposit any of the
VINA Shares into a voting trust or enter into a voting trust agreement or
arrangement with respect to the VINA Shares, or take any other action with
respect to the VINA Shares, or otherwise permit or authorize any of the
foregoing actions, other than pursuant to the Merger Agreement or this
Agreement.
(i) Waiver of Appraisal Rights. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenter's rights and any similar
rights relating to the Merger or any related transaction that Stockholder or any
other Person may have by virtue of Stockholder's beneficial or record ownership
of any shares of VINA Common Stock. This waiver does not affect Stockholder's
appraisal or dissenters' rights with respect to any other transaction.
4. Further Assurances. From time to time, at VINA's request and
without further consideration, each Stockholder shall execute and deliver such
additional documents and take all such further lawful action as may be
reasonably necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
5. Stop Transfer. During the term of this Agreement, each
Stockholder hereby agrees and consents to the entry of stop transfer
instructions with VINA's transfer agent against the transfer of any VINA Shares,
consistent with the terms of Section 3(h). During the term of this Agreement,
each Stockholder further agrees that it shall not request that VINA or any other
Person register the transfer (by book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's VINA Shares,
unless such transfer is made in compliance with this Agreement and unless the
transferee agrees in writing, in form and
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substance satisfactory to Larscom, to be bound by the provisions hereof for the
benefit of Larscom.
6. Standstill. During the term of this Agreement and except as
contemplated by the Merger Agreement, each Stockholder shall not, nor shall such
Stockholder permit any of its Representatives on Stockholder's behalf, in both
cases in such Stockholder's capacity as a Stockholder of VINA, in any manner,
directly or indirectly, to effect, or seek, offer, or propose (whether publicly
or otherwise) to effect, or cause or participate in any acquisition of (a) any
securities (or beneficial ownership thereof) of Larscom or VINA or (b) any
direct or indirect rights or options to acquire any capital stock of Larscom or
VINA, (c) any merger, consolidation, tender or exchange offer, or other business
combination involving Larscom or VINA.
7. Termination. This Agreement shall terminate upon the Voting
Expiration Date.
8. Confidentiality. Each Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Stockholder agrees that such
Stockholder shall not, and shall cause its Representatives not to, disclose or
discuss such matters with anyone not a party to this Agreement (other than
Stockholder's and VINA's Representatives) without the prior written consent of
Larscom, except for disclosures which Stockholder's counsel advises are
necessary in order to fulfill such Stockholder's obligations imposed by law, in
which event Stockholder shall give prior notice of such disclosure to VINA as
promptly as practicable and in any event prior to the time any such disclosure
is made.
9. No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Larscom any direct or indirect ownership or incidence
of ownership of or with respect to any VINA Shares. All rights, ownership and
economic benefits of and relating to the VINA Shares shall remain vested in and
belong to the Stockholders, and Larscom shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of VINA or exercise any power or authority to direct the
Stockholders in the voting of any of the VINA Shares, except as otherwise
provided herein.
10. No Group. Each Stockholder is acting individually and not as
part of a "group" as defined in the Exchange Act.
11. Miscellaneous.
(a) Entire Agreement. This Agreement and the proxy 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) Binding Agreement. This Agreement and the obligations
hereunder shall attach to the VINA Shares and shall be binding upon any Person
to which record or beneficial ownership of such VINA Shares shall pass, whether
by operation of law or otherwise. Notwithstanding any transfer of VINA Shares,
the transferor shall remain liable for the performance of all obligations under
this Agreement of the transferor.
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(c) Assignment. This Agreement shall not be assignable by
operation of law or otherwise without the prior written consent of the other
parties.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. Unless otherwise provided, any notice, request,
demand or other communication required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given upon delivery to the
party to be notified 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):
If to Larscom:
Attention: Chief Financial Officer
Telecopier:
with a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
If to the Stockholders:
To the addresses set forth on the signature pages hereto.
with a copy to:
Attention:
Telecopier:
(f) Severability. If one or more provisions of this Agreement are
held to 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.
(g) Specific Performance. Each of the parties hereto recognizes
and 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
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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.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any 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.
(i) No Waiver. 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 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.
(j) No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any Person that is
not a party hereto.
(k) Several Obligations; Capacity. Notwithstanding anything herein
to the contrary, (i) the representations, warranties, covenants, agreements and
conditions of this Agreement applicable to the Stockholders are several and not
joint, (ii) the covenants and agreements of the Stockholders under this
Agreement shall not require the Representatives of any Stockholder to act (or
refrain from acting) in their capacity as an officer or director of VINA and
shall not affect the duties and obligations of any Representative of Stockholder
acting in his or her capacity as an officer or director of VINA and (iii) no
action or failure to take action by any of Stockholder's Representatives in
their capacity as an officer or director of VINA shall be deemed to be an action
taken by such Stockholder in its capacity as a stockholder of VINA.
(l) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(m) 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. 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.
(n) 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LARSCOM INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------
Title: Chief Executive Officer
-------------------------
STOCKHOLDERS:
SIERRA VENTURES V, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
SV ASSOCIATES V, L.P.,
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
SIERRA VENTURES VI, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
SV ASSOCIATES VI, L.P.,
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
SIERRA VENTURES VII, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
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
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
W. XXXXXXX XXXX
/s/ W. Xxxxxxx Xxxx
----------------------------
Address: 00000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
XXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
-----------------------------
Address: 000 Xxxx Xxxx
Xxx Xxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
---------------------------
Address: 0000 Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
XXXX XXXXX
/s/ Xxxx Xxxxx
---------------------------
Address: 0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
---------------------------
Address: 0000 Xxxxxx Xxx
Xxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
XXXXXXX X. KAZMIRECZAK
/s/ Xxxxxxx X. Kazmireczak
-----------------------------
Address: 00000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
C. XXXX XXXXXX
/s/ C. Xxxx Xxxxxx
-----------------------------
Address: 00000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Voting Agreement, dated as of March ____, 2003 (the "Voting
Agreement"), between the undersigned and Larscom Incorporated, a Delaware
corporation, a copy of such agreement being attached hereto and incorporated by
reference herein, the undersigned hereby irrevocably appoints Xxxxxx X. Xxxxxxx
and Xxxxxx X. Xxxxxx, and each of them, as the sole and exclusive attorneys,
agents and proxies, with full power of substitution in each of them, for the
undersigned, and in the name, place and stead of the undersigned, to vote (or
cause to be voted), and exercise all voting and related rights or, if
applicable, to give consent, in such manner as each such attorney, agent and
proxy or his/her substitute shall in his/her sole discretion deem proper to
record such vote (or consent) in the manner, and with respect to the matters,
set forth in Section 2 of the Voting Agreement with respect to all of the VINA
Shares (as such term is defined in the Voting Agreement) of VINA Technologies,
Inc., a Delaware corporation ("VINA"), which the undersigned is or may be
entitled to vote at any meeting of VINA held after the date hereof, whether
annual or special and whether or not an adjourned meeting, or, if applicable, to
give written consent with respect thereto. The Stockholder may vote the VINA
Shares on all matters not referred to in this proxy and the attorneys, agents
and proxies named above may not exercise this proxy with respect to such other
matters. This proxy is coupled with an interest, shall be irrevocable and
binding on any successor in interest of the undersigned and shall not be
terminated by operation of law upon the occurrence of any event, including,
without limitation, the death or incapacity of the undersigned. This proxy shall
operate to revoke and render void any prior proxy as to the VINA Shares
heretofore granted by the undersigned, and the undersigned agrees that no
subsequent proxies will be given by the undersigned with respect to any of the
VINA Shares. This proxy shall terminate upon the termination of the Voting
Agreement. If any provision of this proxy or any part of such provision is held
to be invalid or unenforceable in any circumstances and in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such circumstance
and jurisdiction, be deemed amended to conform to applicable law so as to be
valid and enforceable to the fullest extent possible, and (b) the invalidity or
unenforceability of such provision or part of a provision under such
circumstances and in such jurisdiction shall not affect the validity or
enforceability (i) of such provision or part thereof under any other
circumstance or in any other jurisdiction, (ii) of the remainder of such
provision or (iii) of any other provision of this proxy.
Dated: ______, 2003
By ______________________________________
Name ____________________________________
Title ___________________________________
Schedule 1
