EXHIBIT 2.2
IRREVOCABLE PROXY, VOTING
AND
OPTION AGREEMENT
THIS IRREVOCABLE PROXY, VOTING AND OPTION AGREEMENT (this "Agreement"),
dated as of January 23, 2000, is entered into by and between Virata Corporation,
a Delaware corporation ("Parent"), and VC Acquisition, Inc., a California
corporation and wholly-owned subsidiary of Parent ("Acquisition"), on the one
hand, and ▇▇▇▇▇ ▇. ▇▇▇▇, a resident of the State of California ("Shareholder"),
on the other hand.
RECITALS
WHEREAS, concurrently herewith, Parent, Acquisition, and D2 Technologies,
Inc., a California corporation (the "Company"), have entered into an Agreement
and Plan of Merger, of even date herewith (as such agreement may hereafter be
amended from time to time in conformity with the provisions thereof, the "Merger
Agreement"), pursuant to which Acquisition will merge with and into the Company
and the Company shall be the surviving corporation and become a wholly-owned
subsidiary of Parent (the "Merger") (initially capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to them in the Merger
Agreement);
WHEREAS, Shareholder Beneficially Owns (as defined herein) Three Million
Nine Hundred Seventy-Five Thousand (3,975,000) Shares (the "Shareholder
Shares");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Voting Agreement. Shareholder hereby agrees with Parent and
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Acquisition that, at any meeting of the Company's shareholders, however called,
or in connection with any written consent of the Company's shareholders,
Shareholder shall vote the Shareholder Shares Beneficially Owned by Shareholder
as of the date of such meeting or written consent, whether heretofore owned or
hereafter acquired, (i) in favor of approval of the Merger Agreement (including
the agreements referred to therein) and any actions required in furtherance of
the transactions contemplated by the Merger Agreement (or any such other
agreement); (ii) against any action or agreement that would result in a breach
in any respect of any representation, warranty, agreement or covenant or any
other obligation or agreement of the Company under the Merger Agreement
(including the agreements referred to therein); and (iii) except as otherwise
agreed to in writing in advance by Parent, against: (A) any Third Party
Acquisition (as defined below), (B) any change in a majority of the individuals
who, as of the date hereof, constitute the
Board of Directors of the Company (C) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving the
Company and any Third Party (as defined below), (D) a sale, lease, transfer or
disposition of any assets of the Company's business outside the ordinary course
of business, or any assets which are material to its business whether or not in
the ordinary course of business, or a reorganization, recapitalization,
dissolution or liquidation of the Company, (E) any change in the present
capitalization of the Company or any amendment of the Company's Articles of
Incorporation or Bylaws, (F) any other material change in the Company's
corporate structure or affecting its business, or (G) any other action which is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone or materially adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement (including the agreements
referred to therein), or any of the transactions contemplated by this Agreement.
Shareholder shall not enter into any agreement or understanding with any person
the effect of which would be inconsistent or violative of the provisions and
agreements contained herein.
For purposes of this Agreement, "Third Party Acquisition" means the
occurrence of any of the following events: (i) the acquisition of the Company by
merger or otherwise by any person (which includes a "person" as such term is
defined in Section 13(d)(3) of the Exchange Act of 1934, as amended (the
"Exchange Act"), other than Parent, Acquisition or any affiliate thereof (a
"Third Party"); (ii) the acquisition by a Third Party of any material portion
(which shall include ten percent (10%) or more) of the assets of the Company,
other than the sale of its products in the ordinary course of business and
consistent with past practices; (iii) the acquisition by a Third Party of ten
percent (10%) or more of the outstanding Shareholder Shares; (iv) the adoption
by the Company of a plan of liquidation or the declaration or payment of an
extraordinary dividend; (v) the repurchase by the Company of more than ten
percent (10%) of the outstanding Shareholder Shares; or (vi) the acquisition (or
any group of acquisitions) by the Company by merger, purchase of stock or
assets, joint venture or otherwise of a direct or indirect ownership interest or
investment in any entity (or entities) or business (or businesses) whose annual
revenues, net income or assets is equal or greater than ten percent (10%) of the
annual revenues, net income or assets of the Company, respectively.
For purposes of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean Shareholder's having such
ownership, control or power to direct the voting or investment with respect to,
or otherwise enabling Shareholder to legally act with respect to, such
securities as contemplated hereby, including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Securities
Beneficially Owned by Shareholder shall include securities Beneficially Owned by
all other persons with whom Shareholder would constitute a "group" as within the
meaning of Section 13(d)(3) of the Exchange Act.
2. Irrevocable Proxy.
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(a) Shareholder hereby constitutes and appoints Acquisition, which
shall act by and through ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (each, a "Proxy
Holder"), or either of them, with full power of substitution, its true and
lawful proxy and attorney-in-fact to vote at any meeting (and any adjournment or
postponement thereof) of the Company's shareholders called for purposes of
considering whether to approve the Merger Agreement (including the agreements
referred to
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therein), the Merger or any of the other transactions contemplated by the Merger
Agreement (or any such other agreements), or any Third Party Acquisition, or to
execute a written consent of shareholders in lieu of any such meeting, all
Shareholder Shares Beneficially Owned by Shareholder as of the date of such
meeting or written consent in favor of the approval of the Merger Agreement
(including the agreements referred to therein), the Merger and the other
transactions contemplated by the Merger Agreement (or any such other
agreements), with such modifications to the Merger Agreement (or any such other
agreements) as the parties thereto may make, or against a Third Party
Acquisition, as the case may be.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Shareholder. Shareholder shall not grant
any proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so shall be void. The power of attorney granted herein is a
durable power of attorney and shall survive the death or incapacity of
Shareholder.
(c) If Shareholder fails for any reason to vote his or her
Shareholder Shares in accordance with the requirements of Section 1 hereof, then
the Proxy Holder shall have the right to vote the Shareholder Shares at any
meeting of the Company's shareholders and in any action by written consent of
the Company's shareholders in accordance with the provisions of this Section 2.
The vote of a Proxy Holder shall control in any conflict between a vote of such
Shareholder Shares by a Proxy Holder and a vote by Shareholder of such
Shareholder Shares.
3. Option.
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(a) Shareholder hereby grants to Parent and Acquisition an exclusive
and irrevocable option (the "Option") to purchase all (and not less than all) of
the Shareholder Shares (including any Shareholder Shares acquired after the date
hereof) at a price per share equal to $14.05, subject to adjustment as provided
in Subsection 3(d) below (the "Exercise Price").
(b) The Option may be exercised by Parent or Acquisition, in whole,
but not in part, and only in the event that Parent has become entitled to
liquidated damages set forth in Section 6.3 of the Merger Agreement and the
conditions precedent set forth below have been satisfied. The Option shall
terminate in its entirety on the earlier (i) of the Effective Time or (ii) the
tenth (10th) day following the termination of the Merger Agreement (the "Option
Termination Date") if the Option did not become exercisable, or if, despite
becoming exercisable, it is not exercised by Parent or Acquisition, prior to the
Option Termination Date. Notwithstanding the foraging, the Option may not be
exercised even if Parent has become entitled to the liquidated damages as set
forth in Section 6.3 of the Merger Agreement, unless Parent or Acquisition,
concurrently with the exercise of this Option and prior to the Option Expiration
Date, also exercises in full the option to purchase all of the shares of Company
Common Stock beneficially owned by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Other Option Shares"),
pursuant to an option agreement of even date herewith entered into by such
Shareholder (the "Other Shareholder") with Parent and Acquisition (the "Other
Option").
(c) Shareholder shall not, prior to the Option Expiration Date, take
or refrain from taking any action that would have the effect of preventing or
disabling Shareholder from
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delivering the Shareholder Shares to Parent or Acquisition upon exercise of the
Option, or preventing or disabling Parent or Acquisition from exercising the
Option or otherwise performing its obligations or exercising its rights under
this Section 3.
(d) In the event Parent or Acquisition exercises the Option, Parent
or Acquisition shall give written notice (the "Exercise Notice") to Shareholder
prior to the Option Expiration Date specifying the place and date (not later
than ten (10) business days, nor earlier than one (1) business day, from the
date of such notice) for the closing of such purchase. It shall be a condition
precedent to the consummation of the purchase of the Option Shares that (i) the
Exercise Notice shall be accompanied by a copy of the Exercise Notice sent to
the Other Shareholder with respect to the Option granted by him to Parent and
Acquisition and (ii) Parent or Acquisition shall have consummated the purchase
of al of the Other Option Shares from the Other Shareholder concurrently with
the consummation of the purchase of all of the Shareholder Shares. Upon receipt
of such notice, Shareholder shall take or cause to be taken all step necessary
to effect the sale and delivery of the Shareholder Shares to Parent or
Acquisition at the place and date specified in the notice. At the closing of the
purchase of the Shareholder Shares by Parent or Acquisition, (i) Parent or
Acquisition, as the case mat be, shall pay to Shareholder the aggregate Exercise
Price for the Shareholder Shares by bank check or wire transfer and (ii)
Shareholder will deliver or cause to be delivered to Parent or Acquisition, as
the case may be, a certificate or certificates representing the Shareholder
Shares, duly endorsed or accompanied by stock powers duly endorsed in blank;
provided that the obligation of Shareholder to deliver the Shareholder Shares.
(e) In the event of any adjustment in the number of Shareholder
Shares pursuant to Section 7, an appropriate and proportional adjustment shall
be made to the per Share Exercise Price, such that the aggregate Exercise Price
for all of the Shareholder Shares shall remain constant.
4. Appointment of Securityholder Agent. Effective at the Effective Time,
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Shareholder hereby appoints ▇▇▇▇▇ ▇. ▇▇▇▇ as the representative of such
Shareholder (the "Securityholder Agent"), as the attorney-in-fact for and on
behalf of such Shareholder, and the taking by the Securityholder Agent of any
and all actions and the making of any decisions required or permitted to be
taken by him under the Merger Agreement or Escrow Agreement, including the
exercise of the power to (i) execute the Escrow Agreement, (ii) authorize
delivery of all or any portion of the Escrow Amount to Parent or Acquisition in
satisfaction of Indemnification Claims, (iii) agree to, negotiate, enter into
settlements and compromises of and comply with orders of courts and awards of
arbitrators with respect to such Indemnification Claims, (iv) resolve any
Indemnification Claims and (v) take all actions necessary in the judgment of the
Securityholder Agent for the accomplishment of the forgoing and all of the other
terms, conditions and limitations of the Merger Agreement and the Escrow
Agreement.
5. Director Matters Excluded. If Shareholder is a member of the Company
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Board, Parent and Acquisition acknowledge and agree that no provision of this
Agreement shall limit or otherwise restrict Shareholder with respect to any act
or omission that Shareholder may undertake or authorize in his or her capacity
as a member of the Company Board, including, without limitation, any vote that
Shareholder may make as a director of the Company with respect to any matter
presented to the Company Board, including without limitation with respect to any
Third Party Acquisition presented to the Company Board.
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6. Other Covenants, Representations and Warranties. Shareholder hereby
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represents and warrants to and covenants with Parent and Acquisition as follows:
(a) Ownership of Shareholder Shares. Shareholder is the Beneficial
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Owner of all the Shareholder Shares. On the date hereof, the Shareholder Shares
constitute all of the Shareholder Shares Beneficially Owned by Shareholder.
Shareholder has voting power with respect to the matters set forth in Section 1
hereof with respect to all of the Shareholder Shares, with no limitations,
qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Shareholder has the legal capacity,
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power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Shareholder will not violate any agreement or any court order to which
Shareholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed
and delivered by Shareholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except as
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expressly contemplated by this Agreement, during the term of this Agreement,
Shareholder shall not, directly or indirectly: (i) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the Shareholder Shares or any
Shareholder Shares of stock of any of the Company's subsidiaries (as defined in
the Merger Agreement) Beneficially Owned by Shareholder (the "Subsidiary
Shares") or any interest therein; (ii) grant any proxies or powers of attorney
with respect to any Shareholder Shares or Subsidiary Shares or deposit any
Shareholder Shares or Subsidiary Shares into a voting trust or enter into a
voting agreement with respect to any Shareholder Shares or Subsidiary Shares; or
(iii) take any action that would make any representation or warranty of
Shareholder contained herein, untrue or incorrect or have the effect of
preventing or disabling Shareholder from performing any of Shareholder's
obligations under this Agreement or the Letter Agreement.
(d) Other Potential Acquirors. Shareholder, solely in his capacity as
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a shareholder of the Company, (i) shall immediately cease any existing
discussions or negotiations, if any, with any persons conducted heretofore with
respect to any acquisition of all or any material portion of the assets of, or
any equity interest in, the Company, or any business combination with the
Company; (ii) from and after the date hereof until the earliest to occur of (A)
the termination of the Merger Agreement in accordance with its terms, (B) the
termination of this Agreement and (C) the Effective Time, shall not, in his
capacity as a shareholder of the Company, directly or indirectly, initiate,
solicit or knowingly encourage (including, without limitation, by way of
furnishing non-public information or assistance), or take any other action to
facilitate knowingly, any inquiries or the making of any Third Party
Acquisition; and (iii) shall promptly notify Parent of any proposals for, or
inquiries with respect to, a potential Third Party Acquisition received by
Shareholder or of which Shareholder otherwise has knowledge.
(e) Reliance by Parent and Acquisition. Shareholder understands and
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acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance upon Shareholder's execution and delivery of this Agreement.
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7. Stop Transfer; Adjustments. Shareholder agrees with, and covenants to,
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Parent and Acquisition that Shareholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any Shareholder Shares, and the Company may
refuse to register any such transfer on its books and records, unless (i) such
transfer is made solely for estate planning purposes or as gifts to members of
his family, (ii) in connection with such transfer, the Shareholder obtains a
written agreement, in a form reasonably acceptable to Parent, from the
transferee by which the transferee expressly agrees to be bound and comply with
this Agreement to the same extent as if such transferee was the Shareholder
hereunder with respect to the Shares being transferred to it, and (iii) such
transfer shall not cause the representations of Shareholder in the Letter
Agreement, to be untrue. In the event of a stock dividend or distribution or
any change in the capital stock or other securities of the Company by reason of
any stock dividend, split-up, recapitalization, combination, exchange of
Shareholder Shares or the like, the term "Shareholder Shares" shall be deemed to
refer to and include the Shareholder Shares as well as all such stock dividends
and distributions and any Shareholder Shares or other securities into which or
for which any or all of the Shareholder Shares may be changed or exchanged.
8. Termination. The proxy granted pursuant to Section 2 hereof and
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Shareholder's covenants and agreements contained herein with respect to the
Shareholder Shares (other than the Option pursuant to Section 3) shall terminate
upon the earliest to occur of: (a) the termination of the Merger Agreement in
accordance with its terms, either by the Company or by Parent or Acquisition, as
the case may be, and (b) the Effective Time. Shareholder's covenants and
agreements with respect to the Option contained in Section 3 shall terminate
upon the Option Expiration Date. Notwithstanding anything to the contrary
contained in this Agreement, in the event of a breach or threatened breach by
Shareholder of any representation, warranty, covenant, agreement or obligation
set forth in this Agreement prior to such termination of this Agreement, the
sole remedy of Parent and Acquisition shall be to (A) obtain equitable relief to
prevent such breach, (B) obtain an order of specific performance requiring
Shareholder to comply with his obligation and (C) exercise the Option.
9. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(b) Certain Events. Shareholder agrees that this Agreement and the
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obligations hereunder shall attach to the Shareholder Shares and shall be
binding upon any person to whom legal or beneficial ownership of any Shareholder
Shares shall pass, whether by operation of law or otherwise. Notwithstanding
any transfer of Shareholder Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of
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law or otherwise without the prior written consent of the other party; provided,
however, that Parent may, in its sole discretion, assign its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent.
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(d) Amendments, Waivers, Etc. This Agreement may not be amended,
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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. All notices, requests, claims, demands and other
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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
facsimile, by registered or certified mail (postage prepaid, return receipt
requested) or sent by nationally-recognized overnight courier to each other
party as set forth below or to such other address as the party to whom notice is
to be given may have furnished to the other parties hereto in writing in
accordance herewith. Any such notice or communication shall be deemed to have
been delivered and received (i) in the case of personal delivery, on the date of
such delivery, (ii) in the case of facsimile, on the date sent if confirmation
of receipt is received and such notice is also promptly mailed by registered or
certified mail (return receipt requested), (iii) in the case of a nationally-
recognized overnight courier in circumstances under which such courier
guarantees next business day delivery, on the next business day after the date
when sent and (iv) in the case of mailing, on the fourth business day following
that on which the piece of mail containing such communication is posted:
if to Parent or Acquisition: Virata Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
if to Shareholder, to: ▇▇▇▇▇ ▇. ▇▇▇▇
c/o D2 Technologies, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Reicker, Clough, Pfau & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
(f) Severability. Whenever possible, each provision of this Agreement
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will be interpreted in such manner as to be effective and valid under applicable
law but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any
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other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) No Waiver. The failure of any party hereto to exercise any right,
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power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(h) Governing Law; Venue; Specific Performance; Waiver of Jury Trial.
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THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
The parties hereby irrevocably submit to the jurisdiction of the courts of the
State of California and the Federal courts of the United States of America
located in the County of San Francisco in the State of California solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and in respect of
the transactions contemplated hereby, and hereby waive, and agree not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a California State or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 9(e) or in such other manner as may
be permitted by applicable law, shall be valid and sufficient service thereof.
The parties agree that irreparable damage would occur and that the
parties would not have any adequate remedy at law in the event that any of the
provisions of this Agreement were 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 or in California state court located in the
County of San Francisco in the State of California, this being in addition to
any other remedy to which they are entitled at law or in equity.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
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CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9(h).
(j) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
(k) Further Assurances. At the request of any party to another party or
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parties to this Agreement, such other party or parties shall execute and deliver
such instruments or documents to evidence or further effectuate (but not to
enlarge) the respective rights and obligations of the parties and to evidence
and effectuate any termination of this Agreement or the Option in accordance
with its terms.
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IN WITNESS WHEREOF, Parent, Acquisition and Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
VIRATA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
VC ACQUISITION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
SHAREHOLDER:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
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