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EXHIBIT (D)3
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STOCKHOLDER'S AGREEMENT
among
NOKIA CORPORATION,
BLACKBIRD ACQUISITION, INC.
and the
STOCKHOLDER OF RAMP NETWORKS, INC.
identified on the signature page hereto
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Dated as of December 6, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
TENDER OF SHARES
<TABLE>
<S> <C> <C>
SECTION 1.01 Tender of Shares...................................................... 1
ARTICLE II
VOTING AGREEMENT
SECTION 2.01 Voting Agreement...................................................... 1
SECTION 2.02 Irrevocable Proxy..................................................... 2
ARTICLE III
THE OPTION
SECTION 3.01 Grant of Option....................................................... 2
SECTION 3.02 Exercise of Option.................................................... 2
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
SECTION 4.01 Organization, Qualification........................................... 3
SECTION 4.02 Authority Relative to this Agreement.................................. 4
SECTION 4.03 No Conflict........................................................... 4
SECTION 4.04 Title to the Shares................................................... 5
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 5.01 Corporate Organization................................................ 5
SECTION 5.02 Authority Relative to this Agreement.................................. 5
SECTION 5.03 No Conflict; Required Filings and Consents............................ 5
SECTION 5.04 Investment Intent..................................................... 6
ARTICLE VI
COVENANTS OF STOCKHOLDER
SECTION 6.01 No Disposition or Encumbrance of Shares............................... 6
SECTION 6.02 No Solicitation of Transactions....................................... 6
SECTION 6.03 Further Action; Reasonable Best Efforts............................... 6
SECTION 6.04 Additional Shares..................................................... 7
SECTION 6.05 Release............................................................... 7
ARTICLE VII
TERMINATION
SECTION 7.01 Termination........................................................... 7
</TABLE>
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ARTICLE VIII
MISCELLANEOUS
<TABLE>
<S> <C> <C>
SECTION 8.01 Amendment............................................................. 8
SECTION 8.02 Waiver................................................................ 8
SECTION 8.03 Notices............................................................... 8
SECTION 8.04 Severability.......................................................... 8
SECTION 8.05 Further Assurances.................................................... 8
SECTION 8.06 Assignment............................................................ 8
SECTION 8.07 Parties in Interest................................................... 9
SECTION 8.08 Specific Performance.................................................. 9
SECTION 8.09 Governing Law......................................................... 9
SECTION 8.10 Waiver of Jury Trial.................................................. 9
SECTION 8.11 Expenses.............................................................. 9
SECTION 8.12 Headings.............................................................. 9
SECTION 8.13 Counterparts.......................................................... 9
</TABLE>
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STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated as of December 6, 2000 (this "Agreement"),
among NOKIA CORPORATION, a company organized under the laws of the Republic of
Finland ("Parent"), BLACKBIRD ACQUISITION, INC., a corporation organized under
the laws of the State of Delaware and a wholly-owned subsidiary of Parent
("Purchaser"), and the stockholder ("Stockholder") of RAMP NETWORKS, INC., a
corporation organized under the laws of the State of Delaware (the "Company"),
identified on the signature page hereto.
WHEREAS, Parent and Purchaser are entering into an Agreement and Plan of
Merger dated as of the date hereof (as amended from time to time, the "Merger
Agreement"; capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement), with the Company,
pursuant to which (i) Purchaser agrees to commence a cash tender offer (as
such tender offer may hereafter be amended from time to time, the "Offer") to
acquire all the issued and outstanding shares of Company Common Stock for
$5.80 per Share (such amount, or any greater amount per Share paid pursuant to
the Offer, being the "Per Share Amount"); and (ii) following consummation of
the Offer, Purchaser will merge with and into the Company (the "Merger");
WHEREAS, as of the date hereof, Stockholder is the record and beneficial
owner of the number of Shares set forth opposite Stockholder's name in Exhibit
A hereto (the "Existing Shares" and, together with any shares of Company
Common Stock acquired by Stockholder after the date hereof, whether upon the
exercise of warrants, options, conversion of convertible securities or
otherwise, the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement and incurring the obligations set forth therein, including the
Offer, Parent and Purchaser have required that Stockholder agree to enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
TENDER OF SHARES
SECTION 1.01. Tender of Shares. Stockholder hereby agrees to validly
tender, pursuant to and in accordance with the terms of the Offer, as soon as
practicable after commencement of the Offer but in no event later than ten
business days after the date of commencement of the Offer, Stockholder's
Shares and to not withdraw Stockholder's Shares, except following termination
of the Offer pursuant to its terms. Stockholder hereby acknowledges and agrees
that Purchaser's obligation to accept for payment and pay for Stockholder's
Shares is subject to the terms and conditions of the Offer. Stockholder hereby
permits Parent and the Purchaser to publish and disclose in the Offer
Documents and, if approval of the Company's stockholders is required under
applicable Law, the Proxy Statement (including all documents and schedules
filed with the SEC) its identity and ownership of Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
ARTICLE II
VOTING AGREEMENT
SECTION 2.01. Voting Agreement. Stockholder hereby agrees that, from and
after the date hereof and until the earlier to occur of the consummation of
the Offer in which Stockholder's Shares are purchased and the termination of
this Agreement, at any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the Company,
Stockholder will vote (or cause to be voted) Stockholder's Shares: (a) in
favor of the approval and adoption of the Merger Agreement, the Merger and all
the transactions
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contemplated by the Merger Agreement and this Agreement and otherwise in such
manner as may be necessary to consummate the Merger; (b) except as otherwise
agreed to in writing in advance by Parent, against any action, proposal,
agreement or transaction that would result in a breach of any covenant,
obligation, agreement, representation or warranty of the Company contained in
the Merger Agreement or of Stockholder contained in this Agreement; and (c)
against any action, proposal, agreement or transaction, including, but not
limited to, any Acquisition Proposal (other than the Merger Agreement or the
Transactions), that could be reasonably expected to result in any of the
conditions to the Company's obligations under the Merger Agreement (whether or
not theretofore terminated) not being fulfilled or that could reasonably be
expected to impede, interfere with or prevent, delay, postpone, discourage or
adversely affect the Merger Agreement, the Offer, the Merger or this
Agreement.
SECTION 2.02. Irrevocable Proxy. Stockholder hereby irrevocably grants to
and appoints each of Mika Vehvilainen, Olli Huuskonen and Timo Ruikka, as
Stockholder's attorney and proxy pursuant to the provisions of Section 212(c)
of Delaware Law, each individually with full power of substitution, to vote
and otherwise act (by written consent or otherwise) with respect to
Stockholder's Shares at any meeting of stockholders of the Company (whether
annual or special and whether or not an adjourned or postponed meeting) or
consent in lieu of any such meeting or otherwise, on the matters and in the
manner specified in Section 2.01 (the "Irrevocable Proxy"). THIS PROXY AND
POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST AND, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND BINDING ON ANY
PERSON TO WHOM STOCKHOLDER MAY TRANSFER ANY OF HIS, HER OR ITS SHARES IN
BREACH OF THIS AGREEMENT. Stockholder hereby revokes all other proxies and
powers of attorney with respect to Stockholder's Shares that may have
heretofore been appointed or granted, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or executed,
shall not be effective) by Stockholder with respect thereto. All authority
herein conferred or agreed to be conferred shall survive the death or
incapacity of Stockholder and any obligation of Stockholder under this
Agreement shall be binding upon the heirs, personal representatives,
successors and assigns of Stockholder. Stockholder represents that any proxies
heretofore given in respect of Stockholder's Shares are not irrevocable, and
that any such proxies are hereby revoked. Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance
upon Stockholder's execution and delivery of this Agreement. Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 2.02 is
given in connection with the execution of the Merger Agreement, and that such
irrevocable proxy is given to secure the performance of the duties of
Stockholder under this Agreement. Stockholder hereby ratifies and confirms all
that the Irrevocable Proxy may lawfully do or cause to be done by virtue
hereof. The Irrevocable Proxy shall survive until the termination of this
Agreement in accordance with Section 7.01, at which point the Irrevocable
Proxy shall be automatically revoked.
ARTICLE III
THE OPTION
SECTION 3.01. Grant of Option. Stockholder hereby grants to Purchaser an
irrevocable option (the "Option") to purchase all, and not less than all, of
Stockholder's Shares at the applicable Per Share Amount, net to Stockholder in
cash. The Option shall expire if not exercised prior to the close of business
on the tenth business day following termination of the Merger Agreement.
SECTION 3.02. Exercise of Option. (a) The Option may be exercised by
Purchaser at any time and from time to time, including, without limitation,
following termination of the Merger Agreement and prior to the expiration of
the Option, only if the Offer is consummated without Stockholder having
tendered all its Shares in accordance with Section 1.01 hereof (a Triggering
Event).
(b) If Purchaser wishes to exercise the Option, Purchaser shall send a
written notice (the "Exercise Notice") to Stockholder of its intention to
exercise the Option, specifying the place, and, if then known, the time
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and the date (the "Closing Date") of the closing (the "Closing") of the
purchase. An Exercise Notice may be delivered by Purchaser not later than 10
business days after the occurrence of a Triggering Event, and, if such a
Notice is not delivered by such date, the Option shall terminate automatically
and be of no further force and effect. The Closing Date shall occur on the
third business day (or such longer period as may be required by applicable Law
or regulation) after the later of (i) the date on which such Exercise Notice
is delivered and (ii) the satisfaction of the conditions set forth in Section
3.02(e). If the Closing does not occur by such date, the Option shall
terminate and be of no further force or effect. For the purposes of this
Agreement, the term "business day" means a Saturday, a Sunday or a day on
which banks are not required or authorized by Law or executive order to be
closed in the City of New York.
(c) At the Closing, (i) Stockholder shall deliver to Purchaser (or its
designee) all of Stockholder's Shares by delivery of a certificate or
certificates evidencing such Shares in the denominations designated by
Purchaser, in its Exercise Notice delivered pursuant to Section 3.02(b), duly
endorsed to Purchaser or accompanied by stock powers duly executed in favor of
Purchaser, with all necessary stock transfer stamps affixed, and (ii)
Purchaser shall pay to Stockholder the aggregate Per Share Amount for
Stockholder's Shares.
(d) Purchaser shall not be under any obligation to deliver any Exercise
Notice and may allow the Option to terminate without purchasing any Shares
hereunder; provided, however, that once Purchaser has delivered to Stockholder
an Exercise Notice, subject to the terms and conditions set forth in this
Agreement, Purchaser shall, subject to the satisfaction of the conditions set
forth in Section 3.02(e), be bound to effect the purchase of Stockholder's
Shares as described in such Exercise Notice.
(e) The Closing shall be subject to the satisfaction of each of the
following conditions:
(i) No Governmental Authority shall have enacted, issued, promulgated,
enforced or entered any Law (whether temporary, preliminary or permanent)
which is then in effect and has the effect of making the acquisition of
Shares by Purchaser pursuant to the exercise of the Option illegal or
otherwise materially restricting, preventing or prohibiting consummation of
the purchase and sale of the Shares pursuant to the exercise of the Option;
(ii) No Governmental Authority or court of competent jurisdiction shall
have issued an order, decree, injunction or ruling or taken any other
action (which order, decree, injunction, ruling or other action Purchaser
and Parent shall have used their respective best efforts to lift), in each
case permanently restraining, enjoining or otherwise prohibiting the
purchase by Purchaser of the Shares to be sold to it hereunder and such
order, decree, injunction, ruling or other action shall have become final
and non-appealable; and
(iii) any waiting period applicable to the consummation of the purchase
and sale of the Shares pursuant to the exercise of the Option under the HSR
Act shall have expired or been terminated.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent and to Purchaser as
follows:
SECTION 4.01. Organization, Qualification. (a) Stockholder, if it is an
individual, has all legal capacity to enter into this Agreement, to carry out
his or her obligations hereunder and to consummate the transactions
contemplated hereby.
(b) Stockholder, if it is a corporation or other legal entity, (i) is duly
organized, validly existing and, if applicable, in good standing under the
Laws of the jurisdiction of its incorporation or formation and has the
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requisite power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now
being conducted, except where the failure to be so organized, existing or, if
applicable, in good standing or to have such power, authority and governmental
approvals would not prevent or materially delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or materially
delay Stockholder from performing its obligations under this Agreement and
(ii) is duly qualified or licensed as a foreign corporation to do business,
and is, if applicable, in good standing, in each jurisdiction where the
character of the properties owned, leased or operated by Stockholder or the
nature of its business makes such qualification or licensing necessary, except
for such failures to be so qualified or licensed and, if applicable, in good
standing that would not prevent or materially delay consummation of the
transactions contemplated by this Agreement or otherwise prevent or materially
delay Stockholder from performing its obligations under this Agreement.
(c) Stockholder, if it is a corporation or other legal entity, has
heretofore furnished to Parent and Purchaser a complete and correct copy of
the certificate of incorporation and the by-laws or equivalent organizational
documents, each as amended to date, of Stockholder. Stockholder, if it is a
trust, has heretofore furnished to Parent and Purchaser a complete and correct
copy of the trust agreement or equivalent agreement, as amended to date, of
Stockholder. Such certificates of incorporation, by-laws or equivalent
organizational documents and any of the provisions of such certificate of
incorporation, by-laws or equivalent organizational documents are in full
force and effect. Stockholder is not in violation of any of the provisions of
its certificate of incorporation, by-laws or equivalent organizational
documents.
SECTION 4.02. Authority Relative to this Agreement. Stockholder has all
necessary power and authority to execute and deliver this Agreement, to
perform Stockholder's obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a legal, valid and binding obligation
of Stockholder, enforceable against Stockholder in accordance with its terms.
SECTION 4.03. No Conflict. (a) The execution and delivery of this Agreement
by Stockholder do not, and the performance of this Agreement by Stockholder
shall not, (i) conflict with or violate the certificate of incorporation or
by-laws or equivalent organizational documents of Stockholder (if Stockholder
is a corporation or other legal entity), (ii) assuming satisfaction of the
requirements set forth in Section 4.03(b) below, conflict with or violate the
terms of any trust agreements or equivalent organizational documents of
Stockholder (if Stockholder is a trust), (iii) conflict with or violate any
Law applicable to Stockholder or by which the Shares owned by Stockholder are
bound or affected or (iv) 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 result in the creation of a lien or encumbrance on any of
the Shares owned by Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Stockholder is a party or by which
Stockholder or the Shares owned by Stockholder are bound or affected, except
for any such conflicts, violations, breaches, defaults or other occurrences
that would not prevent or materially delay consummation of the transactions
contemplated by this Agreement or otherwise prevent or materially delay
Stockholder from performing its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Stockholder do not, and
the performance of this Agreement by Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Authority on the part of Stockholder, except (i) for
applicable requirements, if any, of the Exchange Act, Blue Sky Laws, state
takeover Laws and the pre-merger notification requirements of the HSR Act and
(ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay consummation of the transactions contemplated by this
Agreement, or otherwise prevent Stockholder from performing its material
obligations under this Agreement.
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SECTION 4.04. Title to the Shares. As of the date hereof, Stockholder is
the record and beneficial owner of the number of Shares set forth opposite
Stockholder's name in Exhibit A hereto. Except as set forth on Exhibit A, such
Shares are all the securities of the Company owned, either of record or
beneficially, by Stockholder. The Shares owned by Stockholder are owned free
and clear of all Liens, other than any Liens created by this Agreement. Except
as provided in this Agreement, Stockholder has not appointed or granted any
proxy, which appointment or grant is still effective, with respect to the
Shares owned by Stockholder. At the Closing, Stockholder will deliver, upon
such delivery and payment of the Per Share Amount therefor, as applicable,
good, valid and marketable title to Stockholder's Shares free and clear of any
Liens, other than pursuant to this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent and warrant
to Stockholder as follows:
SECTION 5.01. Corporate Organization. Each of Parent and Purchaser is a
company duly organized and validly existing under the laws of its jurisdiction
of its incorporation and has the requisite corporate power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as it is now being conducted, except where the
failure to be so organized, existing or to have such power, authority and
governmental approvals would not prevent or materially delay consummation of
the transactions contemplated by this Agreement, or otherwise prevent Parent
or Purchaser from performing its material obligations under this Agreement.
SECTION 5.02. Authority Relative to this Agreement. Each of Parent and
Purchaser has all necessary corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery of this Agreement by Parent and Purchaser and the performance by
Parent and Purchaser of their obligations hereunder have been duly and validly
authorized by all necessary corporate action and no other corporate
proceedings on the part of Parent or Purchaser is necessary to authorize this
Agreement. This Agreement has been duly and validly executed and delivered by
Parent and Purchaser and, assuming due authorization, execution and delivery
by Stockholder, constitutes a legal, valid and binding obligation of each of
Parent and Purchaser enforceable against each of Parent and Purchaser in
accordance with its terms.
SECTION 5.03. No Conflict; Required Filings and Consents. (a) The execution
and delivery of this Agreement by Parent and Purchaser do not, and the
performance of this Agreement by Parent and Purchaser will not, (i) conflict
with or violate the certificate of incorporation or by-laws or equivalent
organizational documents of Parent or Purchaser, (ii) assuming satisfaction of
the requirements set forth in Section 5.03(b) below, conflict with or violate
any Law applicable to Parent or Purchaser or by which any property or asset of
either of them is bound or affected, or (iii) result in any breach of, or
constitute a default (or an event which, 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 result in the creation of a
lien or other encumbrance on any property or asset of Parent or Purchaser
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Parent
or Purchaser is a party or by which Parent or Purchaser or any property or
asset of either of them is bound or affected, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not prevent or
materially delay consummation of the transactions contemplated by this
Agreement or otherwise prevent or materially delay Parent or Purchaser from
performing its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent and Purchaser do
not, and the performance of this Agreement by Parent and Purchaser will not,
require any consent, approval, authorization or permit of, or filing with, or
notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the
Exchange Act, Blue Sky Laws and state takeover Laws and the pre-merger
notification requirements of the HSR
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Act and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay consummation of the transactions contemplated by
this Agreement, or otherwise prevent Parent or Purchaser from performing their
material obligations under this Agreement.
SECTION 5.04. Investment Intent. The purchase of Shares from Stockholder
pursuant to this Agreement is for the account of Purchaser solely for the
purpose of investment and not with a view to, or for offer or sale in
connection with, any distribution thereof within the meaning of the Securities
Act.
ARTICLE VI
COVENANTS OF STOCKHOLDER
SECTION 6.01. No Disposition or Encumbrance of Shares. Stockholder hereby
agrees that, except as contemplated by this Agreement and the Merger
Agreement, Stockholder shall not (i) sell, transfer, tender, assign,
contribute to the capital of any entity, hypothecate, give or otherwise
dispose of, grant a proxy or power of attorney with respect to, deposit into
any voting trust or enter into a voting arrangement or agreement, or create or
permit to exist any Liens of any nature whatsoever with respect to, any of
Stockholder's Shares (or agree or consent to, or offer to do, any of the
foregoing), (ii) take any action that would make any representation or
warranty of Stockholder herein untrue or incorrect in any material respect or
have the effect of preventing or adversely affecting Stockholder from
performing Stockholder's obligations hereunder or (iii) directly or
indirectly, initiate, solicit or encourage any person to take actions that
could reasonably be expected to lead to the occurrence of any of the
foregoing.
SECTION 6.02. No Solicitation of Transactions. Stockholder agrees that
between the date of this Agreement and the date of termination of the Merger
Agreement, Stockholder will not, directly or indirectly, through any officer,
director, employee, agent or otherwise, (a) solicit, initiate, accept or
encourage the submission of, any Acquisition Proposal, or (b) participate in
any discussions or negotiations regarding, or furnish to any person any
information with respect to, or otherwise cooperate in any way with respect
to, or assist or participate in, or facilitate or encourage any proposal that
constitutes, or may reasonably be expected to lead to, an Acquisition
Proposal. Stockholder shall, and shall direct or cause its directors,
officers, employees, representatives and agents to, immediately cease and
cause to be terminated any discussions or negotiations with any parties that
may be ongoing with respect to any Acquisition Proposal. Stockholder shall
(within one business day) advise Parent orally and in writing of (i) any
proposal, discussion, negotiation or inquiry received by Stockholder regarding
any Acquisition Proposal or any request for information with respect to any
Acquisition Proposal, the material terms and conditions of any proposal,
discussion, negotiation or inquiry received by Stockholder regarding such
Acquisition Proposal or request and the identity of the person making such
Acquisition Proposal or request and (ii) any changes in any such Acquisition
Proposal or request. Stockholder shall promptly provide to Parent copies of
any written materials received by Stockholder in connection with any proposal,
discussion, negotiation or inquiry regarding any Acquisition Proposal.
SECTION 6.03. Further Action; Reasonable Best Efforts. Upon the terms and
subject to the conditions hereof, each of the parties shall use its reasonable
best efforts to take, or cause to be taken, all appropriate action, and to do,
or cause to be done, all things necessary, proper or advisable under
applicable Laws and regulations to consummate and make effective this
Agreement, including, without limitation, using its reasonable best efforts to
obtain all Permits, consents, approvals, authorizations, qualifications and
orders of Governmental Authorities and parties to contracts with the Company
and the Subsidiaries as are necessary for the consummation of this Agreement.
Without limiting the foregoing, if requested in writing by Parent,
Stockholder, Parent and Purchaser shall file as soon as practicable
notifications under the HSR Act, and each party shall respond as promptly as
practicable to any inquiries received from the Federal Trade Commission and
the Antitrust Division of the United States Department of Justice or the U.S.
Department of State for additional information or documentation and respond as
promptly as practicable to all inquiries and requests received from any State
Attorney General or
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other Governmental Authority in connection with antitrust matters.
Concurrently with any filing of notifications under the HSR Act or as soon
thereafter as practicable, the parties shall each request early termination of
the HSR Act waiting period. In addition, each of the parties agree to make as
soon as practicable such other filings as may be necessary or required with
any other non-United States Governmental Authority. Stockholder shall promptly
consult with Parent and provide to Parent any information and material with
respect to filings made by them with any Governmental Authority in connection
with this Agreement and the Merger Agreement and the transactions contemplated
hereby and thereby.
SECTION 6.04. Additional Shares. Stockholder agrees, while this Agreement
is in effect, to give a prompt written notice to Parent of the number of any
new Shares acquired by Stockholder after the date hereof.
SECTION 6.05. Release. (a) Stockholder, on behalf of itself and its past or
present directors, officers, managers, employees, principals, agents,
representatives, attorneys, partners, predecessors, successors, assigns,
beneficiaries, parents, subsidiaries, affiliates, divisions, owners, co-
owners, heirs, administrators and executors, hereby completely and fully
releases and forever discharges, effective upon the purchase of such
Stockholders Shares pursuant to the terms of the Offer and/or this Agreement,
the Company and its Subsidiary, including their respective past or present
directors, officers, managers, employees, principals, agents, representatives,
attorneys, partners, predecessors, successors, assigns, beneficiaries,
parents, subsidiaries, affiliates, divisions, owners, co-owners, heirs,
administrators and executors, from any and all suits, claims, causes of
action, rights, actions, demands, damages, losses, costs, expenses (including,
without limitation, legal fees), penalties, liabilities or proceedings of any
nature whatsoever which have been, could have been or could be brought in any
forum, whether foreign or domestic, in law or in equity or otherwise, whether
known or unknown, fixed or contingent, including without limitation, all
claims for compensatory, incidental, consequential, statutory, punitive or
exemplary damages, equitable relief or penalties, except for any claims
arising in connection with or pursuant to (i) any employment arrangement
between such Stockholder and the Company, (ii) Section 7.08 of the Merger
Agreement, as applicable and (iii) the Merger Agreement and this Agreement.
(b) In addition to the foregoing, Stockholder, on behalf of itself and its
past or present directors, officers, managers, employees, principals, agents,
representatives, attorneys, partners, predecessors, successors, assigns,
beneficiaries, parents, subsidiaries, affiliates, divisions, owners, co-
owners, heirs, administrators or executors, effective upon the purchase of
such Stockholders Shares pursuant to the terms of the Offer and/or this
Agreement, hereby further agrees to opt-out of any certified class of
plaintiffs established for the purpose for seeking compensatory, incidental,
consequential, statutory, punitive or exemplary damages, equitable relief or
penalties, against the Company arising directly or indirectly from, or
relating in any way to any class-action shareholder litigation relating to
claims of fraud, insider trading, beaches of fiduciary duty, violations of
Delaware Law, the Securities Act and/or the Exchange Act and any rules
promulgated thereunder, respectively, and including, but not limited to, the
Class Action Suits. For the purposes of this Section 6.05, the term Class
Action Suits means any lawsuit filed by or on behalf of stockholders or public
investors who purchased shares of the Companys common stock during the class
period from November 15, 1999 through September 29, 2000 (as such class period
may be extended, consolidated or otherwise modified from time to time),
including, but not limited to, the complaint filed (i) on October 3, 2000, for
which Todd Simon is the named plaintiff, (ii) on October 6, 2000, for which
Jacob Elefant is the named plaintiff and (iii) on October 23, 2000, for which
Doron Shauly is the named plaintiff.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Agreement, and all rights and obligations
of the parties hereunder (except with respect to Section 6.05 hereof), shall
terminate upon the earlier of (a) the date upon which Purchaser shall have
purchased and paid for all of the Shares of Stockholder in accordance with the
terms of the Offer or pursuant to the exercise of the Option granted by
Stockholder hereunder and (b) the date on which the Option
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has expired in accordance with this Agreement. Nothing in this Section 7.01
shall relieve any party of liability for any breach of this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTIION 8.01. Amendment. This Agreement may not be amended except by an
instrument in writing signed all the parties hereto.
SECTION 8.02. Waiver. Any party to this Agreement may (i) extend the time
for the performance of any obligation or other act of any other party hereto,
(ii) waive any inaccuracy in the representations and warranties of another
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in
writing signed by the party or parties to be bound thereby.
SECTION 8.03. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
telecopy, or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in
accordance with this Section 8.03):
(a) if to Stockholder, to the address set forth after Stockholder's name on
the signature pages; and
(b) if to Parent or Purchaser:
313 Fairchild Drive
Mountain View, CA 94043
Attention: Timo Ruikka
with a copy to:
Shearman & Sterling
1550 El Camino Real
Menlo Park, CA 94025
Telecopy: (650) 330-2200
Attention: Michael J. Coleman, Esq.
SECTION 8.04. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by this Agreement 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 hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the
transactions contemplated by this Agreement be consummated as originally
contemplated to the fullest extent possible.
SECTION 8.05. Further Assurances. Stockholder, Parent and Purchaser will
execute and deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate the
transactions contemplated hereby.
SECTION 8.06. Assignment. This Agreement shall not be assigned by operation
of Law or otherwise, except that Parent and Purchaser may assign all or any of
their rights and obligations hereunder to any affiliate of Parent, provided
that no such assignment shall relieve Parent or Purchaser of its obligations
hereunder if such assignee does not perform such obligations.
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SECTION 8.07. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Notwithstanding anything herein to the contrary,
nothing set forth herein shall in any way restrict any person, including any
officer, partner, director or employee of Stockholder (if applicable) in the
exercise of his or her fiduciary duties as a director or officer of the
Company and the exercise of such persons rights and obligations in such
capacity under the Merger Agreement and in connection with the Transactions.
SECTION 8.08. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
SECTION 8.09. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State. The parties hereto
hereby (a) submit to the jurisdiction of any state or federal court sitting in
the Borough of Manhattan of The City of New York for the purpose of any Action
arising out of or relating to this Agreement brought by any party hereto, and
(b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement or the Transactions may not be enforced in or by any of the above-
named courts.
SECTION 8.10. Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable Law any right it may have
to a trial by jury with respect to any actions or proceedings directly or
indirectly arising out of, under or in connection with this Agreement.
SECTION 8.11. Expenses. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
SECTION 8.12. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
SECTION 8.13. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
ANTHONY SUN
/s/ Anthony Sun
___________________________________
Address: Venrock Associates
2492 Sand Hill Road, Suite
200
Menlo Park, CA 94025
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
MAHESH VEERINA
/s/ Mahesh Veerina
___________________________________
Address: 25665 O'Keefe Lane
Los Altos Hills, CA 94022
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
VENROCK ASSOCIATES
/s/ Anthony Sun
By: _________________________________
Name: Anthony Sun
Title: General Partner
Address: 30 Rockefeller Plaza, Room
5506
New York, NY 10112
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
VENROCK ASSOCIATES II, L.P.
/s/ Anthony Sun
By: _________________________________
Name: Anthony Sun
Title: General Partner
Address: 30 Rockefeller Plaza, Room
5506
New York, NY 10112
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
INTERWEST INVESTORS V, a general
partnership
/s/ Philip Gianos
By: _________________________________
Name: Philip Gianos
Title: General Partner
Address: 3000 Sand Hill Road
Building 3, Suite 255
Menlo Park, CA 94025
INTERWEST PARTNERS V, L.P.
By: Interwest Management Partners V,
L.P.
/s/ Philip Gianos
By: _________________________________
Name: Philip Gianos
Title: General Partner
Address: 3000 Sand Hill Road
Building 3, Suite 255
Menlo Park, CA 94025
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
PHILIP T. GIANOS
/s/ Philip T. Ganos
By: _________________________________
Address: c/o Interwest Partners
3000 Sand Hill Road
Building 3, Suite 255
Menlo Park, CA 94025
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
L. WILLIAM KRAUSE
/s/ L. William Krause
___________________________________
Address: LWK Ventures
25855 Westwind Way
Los Altos Hills, CA 94022
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
PERRY GRACE
/s/ Perry Grace
___________________________________
Address: 2365 Pleasant Acres Drive
San Jose, California 95148
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
RICHARD BRIDGES
/s/ Richard Bridges
___________________________________
Address:
1889 Orange Tree Lane
Mt. View, California 94040
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
RAGHU BATHINA
/s/ Raghu Bathina
___________________________________
Address:
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
SRIDHAR BATHINA
/s/ Sridhar Bathina
___________________________________
Address: 959H. Ladlesa Terrance
Sunnyvale, California 94086
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
NOKIA CORPORATION
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: Attorney-in-fact
BLACKBIRD ACQUISITION, INC.
/s/ Mika Vehvilainen
By: _________________________________
Name: Mika Vehvilainen
Title: President
KOTHANDAPANI RANGANATHAN
/s/ Kothandapani Ranganathan
___________________________________
Address:
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Owned Other
Stockholder Shares Securities
----------- --------- ----------
<S> <C> <C>
Anthony Sun................................................ -- 48,000
Mahesh Veerina............................................. 1,161,900 240,999
Venrock Associates......................................... 2,632,354 --
Venrock Associates II, L.P. ............................... 1,355,132
Interwest Partners V, L.P. ................................ 1,178,008 --
Interwest Investors V...................................... 7,408
Philip T. Gianos........................................... -- 48,000
L. William Krause.......................................... -- 72,000
Perry Grace................................................ 1,000 190,000
Richard Bridges............................................ 27,861 120,000
Raghu Bathina.............................................. 593,520 80,300
Sridhar Bathina............................................ 574,002 57,999
Kothandapani Ranganathan................................... 327,002 --
</TABLE>
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