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1995 SHAREHOLDER AGREEMENT
THIS 1995 SHAREHOLDER AGREEMENT is entered into as of March 13, 1995,
among Xylan Corporation, a California corporation (the "COMPANY"), the
undersigned Shareholders of the Company (the "SHAREHOLDERS") and Alcatel Data
Networks S.A., a French corporation ("ADN").
WHEREAS, the Shareholders own those number of shares of Common Stock,
Series A Preferred Stock and/or Series B Preferred Stock of the Company
("SHARES"), listed opposite their names on Exhibit A attached hereto;
WHEREAS, ADN and the Company, propose to enter into a Series C
Preferred Stock Purchase Agreement of even date herewith (the "PURCHASE
AGREEMENT") a copy of which is attached hereto as Exhibit B, pursuant to which
ADN will purchase shares of the Company's Series C Preferred Stock;
WHEREAS, the Purchase Agreement contemplates as a precondition to the
sale of Series C Preferred Stock to ADN that the Company's Articles of
Incorporation be amended and restated in the form attached as Exhibit A to the
Purchase Agreement (the "RESTATED ARTICLES");
WHEREAS, simultaneous with the execution of this Agreement and the
Purchase Agreement, (a) the Company, ADN and certain other shareholders will
enter into a Second Restated Rights Agreement in the form attached as Exhibit C
to the Purchase Agreement (the "RIGHTS AGREEMENT") and a Second Restated Co-Sale
Agreement in the form attached as Exhibit G to the Purchase Agreement (the
"CO-SALE AGREEMENT"), (b) the Company and Alcatel N.V. will enter into an
International Distributor Agreement in the form attached as Exhibit E to the
Purchase Agreement (the "DISTRIBUTION AGREEMENT"), and (c) the Company and ADN
will enter into a Product and Technology Agreement in the form attached as
Exhibit F to the Purchase Agreement (the "PRODUCT AND TECHNOLOGY AGREEMENT");
and
WHEREAS, as a condition to its willingness to enter into the Purchase
Agreement, ADN has requested that the Shareholders agree, and the Shareholders
have agreed, severally and not jointly, to the terms and conditions pursuant to
which ADN will become a shareholder in the Company;
NOW, THEREFORE, to induce ADN to enter into, and in consideration of it
entering into, the Purchase Agreement, and in consideration of the premises and
the representations, warranties and agreements herein contained, the parties
agree as follows:
1. Approval of ADN as Company Shareholder. Each Shareholder hereby
acknowledges, consents to and approves all terms and conditions of the Purchase
Agreement, the Restated Articles, the Rights Agreement, the Co-Sale Agreement,
the Distribution Agreement and the Product and Technology Agreement and all
transactions contemplated thereby. Each Shareholder hereby waives and forever
relinquishes any and all pre-emptive rights, rights of first refusal or other
rights to acquire any shares of capital stock of the Company issued or to be
issued by the Company to ADN under the Purchase Agreement which rights such
Shareholder has
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pursuant to any agreement, document or instrument, or otherwise including,
without limitation, any such rights of such Shareholder under that certain
Series B Preferred Stock Purchase Agreement dated September 2, 1994, as amended
and supplemented, among the Company and certain holders of its capital stock
(including certain Shareholders) (the "SERIES B AGREEMENT").
2. Restrictions on Transfers and Right of First Refusal.
(a) Definitions.
(i) The term "TOTAL VOTING POWER OF THE COMPANY" means the total
number of votes which may be cast in the election of directors of the Company at
any meeting of shareholders of the Company if all securities entitled to vote in
the election of directors of the Company were present and voted at such meeting,
other than votes that may be cast only upon the happening of a contingency.
(ii) The term "VOTING STOCK" means the Common Stock, Preferred
Stock and any other securities issued by the Company having the ordinary power
to vote in the election of directors of the Company (other than securities
having such power only upon the happening of a contingency).
(iii) The term "RIGHTHOLDER" means (i) with respect to transfers
of Voting Stock by ADN, the Company, and (ii) with respect to transfers of
Voting Stock by any Shareholder, ADN.
(iv) The term "INVESTOR" means any party to this Agreement other
than the Company that desires to transfer Voting Stock.
(v) The term "ADN AFFILIATE" means any person that, directly or
indirectly, controls or is controlled by or is under common control with ADN.
For purposes of this definition, control of a person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such person, whether by contract or otherwise, and, in any event and without
limiting the foregoing, any person owning fifty percent (50%) or more of the
voting securities of another person shall be deemed to control that person.
(vi) The term "PERSON" means any natural person, corporation,
partnership, proprietorship, limited liability company, joint venture or other
business organization.
(vii) The term "FINANCIAL INVESTOR" means a Person meeting the
requirements of Rule 13d-1(b)(1)(i) under the Securities Exchange Act of 1934.
(viii) The term "RESTRICTED INVESTOR" means any Person, other
than a Financial Investor or any holder of outstanding securities of the Company
as of the date of this Agreement, who proposes to acquire Voting Stock if either
(i) such Person owns ten percent (10%) or more of the Total Voting Power of the
Company prior to such acquisition or (ii) as a result of such acquisition such
Person would own ten percent (10%) or more of the Total Voting Power of the
Company immediately following such acquisition.
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(b) Restrictions on Transfer of Voting Stock by ADN. ADN shall not,
directly or indirectly, sell or transfer any Voting Stock except (i) to the
Company or any person or group approved by the Company; or (ii) to an ADN
Affiliate so long as such ADN Affiliate agrees to hold such Voting Stock subject
to all provisions of this Agreement, including this Section 2.1(b); or (iii)
pursuant to a bona fide public offering registered under the Securities Act of
1933, as amended (the "SECURITIES ACT") of either Voting Stock or securities
exchangeable or exercisable for Voting Stock or pursuant to a rights offering or
a dividend or other distribution to shareholders of ADN; or (iv) pursuant to
Rule 144 under the Securities Act (but excluding Rule 144A under the Securities
Act); or (v) pursuant to a transaction subject to the Company's right of first
refusal as set forth in Section 2(d) hereof and in compliance with the terms
thereof.
(c) Restrictions on Transfer of Voting Stock by the Shareholders. No
Shareholder shall directly or indirectly, sell or transfer any Voting Stock
except (i) to ADN or an ADN Affiliate; or (ii) pursuant to a bona fide public
offering registered under the Securities Act of either Voting Stock or
securities exchangeable or exercisable for Voting Stock; or (iii) pursuant to
Rule 144 under the Securities Act (but excluding Rule 144A under the Securities
Act); or (iv) pursuant to any pledge of Company's Common Stock made by a
Shareholder pursuant to a bona fide loan transaction which creates a mere
security interest; (v) pursuant to any repurchase of Common Stock by the
Company; (vi) pursuant to any bona fide gift; or (vii) pursuant to any transfer
to a Shareholder's ancestors, descendants, spouse or partners or to a trustee
for their benefit, (viii) pursuant to community property or similar domestic
relations laws, or (ix) pursuant to a transaction subject to ADN's right of
first refusal as set forth in Section 2(d) hereof and in compliance with the
terms thereof; provided that the exceptions in subparagraphs (ii) and (iii)
shall not be applicable if the Shareholder solicits or arranges for the
solicitation of orders to purchase Voting Stock by a Restricted Investor from an
underwriter in anticipation of or in connection with a registered public
offering or from or through a broker in anticipation of or in connection with a
Rule 144 transaction. For purposes of the preceding proviso, the execution and
performance of an underwriting agreement by the Shareholder in connection with a
registered public offering shall not in and of itself be considered soliciting
or arranging for the solicitation of orders to purchase Voting Stock.
Furthermore, ADN's right of first refusal shall not apply to transfers of those
shares of the Company's Common Stock, not to exceed 110,000 shares, that are
subject to (A) Loan and Pledge Agreements between ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ and certain
third parties, or (B) Option to Purchase Stock Agreements between ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇ and such third parties, which agreements have been entered into prior to
the date of this Agreement.
(d) Rights of First Refusal. Notwithstanding the restrictions on
transfer set out in Sections 2(b) and (c) above, any Investor may sell or
transfer Voting Stock to any person provided that the procedures contained in
this Section 2(d) are followed.
(i) Prior to making any sale or transfer of the Voting Stock
pursuant to Section 2(b)(v) or Section 2(c)(ix) above, the Investor shall give
the Rightholder the opportunity to purchase such stock in the following manner:
(A) The Investor shall give a preliminary notice (the
"PRELIMINARY NOTICE") to the Rightholder in writing of the Investor's
preliminary intention to transfer Voting Stock, specifying the approximate
amount of Voting Stock proposed to be sold or
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transferred, the approximate proposed price per share therefor, the proposed
purchaser(s) thereof and the other material terms upon which such disposition is
intended to be made.
(B) The Investor shall give an irrevocable notice (the
"TRANSFER NOTICE") to the Rightholder (including any representative of the
Rightholder as such Rightholder may designate in writing to the Investor after
the Rightholder's receipt of the Preliminary Notice) in writing of the
Investor's immediate intention to transfer Voting Stock, specifying the amount
of Voting Stock proposed to be sold or transferred, the proposed price per share
therefor (the "TRANSFER PRICE"), the proposed purchaser(s) and the other
material terms upon which such disposition is intended to be made, provided that
the Transfer Notice shall not be given by the Investor any sooner than the
expiration of thirty (30) days after the Rightholders receipt of the Preliminary
Notice.
(C) The Rightholder shall have the right, exercisable by an
irrevocable written notice given by the Rightholder to the Investor within two
(2) U.S. business days after receipt by the Rightholder of the Transfer Notice,
to purchase all of the Voting Stock specified in such Notice for cash per share
equal to the Transfer Price and under the terms set forth in the Transfer
Notice.
(D) If the Rightholder exercises its right of first refusal
hereunder, the closing of the purchase of the Voting Stock with respect to which
such right has been exercised shall take place within thirty (30) calendar days
after the Rightholder gives notice of such exercise, which period of time shall
be extended, if required, in order to comply with applicable laws and
regulations. Upon exercise of its right of first refusal by the Rightholder, the
Rightholder and the Investor shall be legally obligated to consummate the
purchase contemplated thereby and shall use their best efforts to secure any
approvals required in connection therewith.
(E) If the Rightholder does not exercise its right of first
refusal hereunder within the time specified for such exercise, the Investor
shall be free, during the period of ninety (90) calendar days following the
expiration of such time for exercise, which period of time shall be extended, if
required, in order to comply with applicable laws and regulations, to sell or
transfer the Voting Stock specified in such Transfer Notice to the proposed
purchaser(s) described in such notice and on terms no less favorable to the
Rightholder than the terms specified in such notice. The proposed sale of any
such Voting Stock not sold or transferred within such ninety (90) day period
shall again be subject to the restrictions set forth in this Section 2.
(F) If the Investor does not deliver to the Rightholder a
Transfer Notice within one hundred eighty (180) days after delivery to the
Rightholder of a Preliminary Notice with respect to any Voting Stock, the
Rightholder shall once again be entitled to receive a Preliminary Notice, and
the processes set forth above following such notice shall be followed, prior to
any proposed transfer of such Voting Stock by the Investor.
3. Board of Directors of the Company.
(a) Voting for Nominees. ADN shall have the right, but not the
obligation, to nominate one member (the "ADN NOMINEE") to the Board of Directors
of the Company (the
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"BOARD"). ADN and each Shareholder hereby agree to vote all shares of capital
stock of the Company owned or held of record by such party at any meeting of the
shareholders of the Company called for the purpose of electing or appointing
directors to the Board, and agrees to take all actions otherwise necessary
(including, without limitation, the execution of written consents and the
amendment of the Bylaws of the Company), to ensure the election to the Board of
(i) the ADN Nominee at such time as ADN has so nominated the ADN Nominee and
notified the Shareholders of such nomination and (ii) a nominee of management of
the Company (the "MANAGEMENT NOMINEE"), which nominee shall initially be ▇▇▇▇▇
▇. ▇▇▇.
(b) Removal of ADN Nominee. ADN and each Shareholder hereby agree to
use reasonable commercial efforts to call, or cause the appropriate officers and
directors of the Company to call, a special meeting of shareholders of the
Company and to vote all of the shares of capital stock of the Company owned or
held of record by such party for the removal (with or without cause) of any ADN
Nominee if ADN requests the removal of such director in writing for any reason,
or of any Management Nominee, if the President of the Company requests the
removal of such director in writing for any reason. ADN and each Shareholder
hereby agree that, at any time it is entitled to vote for the removal of
directors, it will not vote in favor of the removal of any ADN Nominee or
Management Nominee unless such removal shall be at the request of ADN, with
respect to the ADN Nominee, or the President of the Company, with respect to the
Management Nominee, or for Cause. For the purposes of this Section 3(b) "Cause"
shall mean the willful engaging by a director in conduct which is demonstrably
and materially injurious to the Company or the director's conviction of any
crime constituting a felony. ADN shall have the right to designate a new ADN
Nominee in the event any ADN Nominee shall be removed under this Section 3(b) or
shall vacate his directorship for any reason, and the President of the Company
shall have an identical right with respect to the Management Nominee.
(c) No Acting During Vacancy. Once the ADN Nominee has been
designated, the Company shall use reasonable commercial efforts to prevent any
action from being taken by the Board during the pendency of any vacancy on the
Board due to the death, resignation or removal of the ADN Nominee, unless ADN
shall have failed, for a period of thirty (30) days after notice of such
vacancy, to designate a replacement; provided, however, that the provisions of
this sentence shall not apply in circumstances in which action must be taken by
the Board to protect the best interests of the Company.
(d) Observation Rights. If ADN is not represented on the Board, ADN
shall have the right to have a representative designated by it attend all
meetings of the Board and observe all proceedings transacted at such meetings,
and the Company shall give a representative of ADN copies of all notices,
minutes, consents, and other material that it provides to its directors,
provided, however, that the Company reserves the right to exclude such
representative from any meeting or access to any material or portion thereof if
the Company believes upon advice of counsel that such exclusion is reasonably
necessary to preserve the attorney-client privilege, to protect highly
confidential proprietary information or for other similar reasons. ADN agrees,
and any representative of ADN will agree, to hold in confidence and trust and
not use or disclose any confidential information provided to or learned by it in
connection with its rights under this Section 3(d).
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(e) Termination of Rights. All rights in favor of ADN set forth in
this Section 3 shall terminate and be of no further force or effect immediately
upon the consummation of the Company's initial public offering of its Common
Stock in a bona fide, firm commitment underwriting pursuant to a registration
statement on Form S-1 under the Securities Act (other than a registration
statement relating either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan or an SEC Rule 145
transaction).
4. Representations and Warranties of the Shareholders. Each of the
Shareholders hereby represents and warrants to ADN, severally and not jointly,
as follows:
(a) Ownership. Such Shareholder is the sole, true, lawful and
beneficial owner of the number class and/or series of Shares set forth opposite
his name on Exhibit A attached hereto with no restrictions on such Shareholder's
voting rights or disposition pertaining thereto, except for the restrictions
pursuant to this Agreement. None of such Shareholder's Shares is subject to any
voting trust or other agreement or arrangement with respect to the voting of
such Shares.
(b) Authority. Such Shareholder has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery and performance of this
Agreement by such Shareholder and the consummation by the Shareholder of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Shareholder. This Agreement has been duly executed and
delivered by such Shareholder and is valid, binding and enforceable against such
Shareholder in accordance with its terms, except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, or other similar laws affecting
the enforcement of creditors' rights generally and except that the availability
of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) Agreements Regarding Shares. Except as described opposite such
Shareholder's name on Exhibit A hereto or as otherwise provided in this
Agreement, the Series B Agreement, the Rights Agreement or the Co-Sale
Agreement, such Shareholder is not a party to, or the beneficiary of, any
agreement, instrument or document relating to or affecting any capital stock of
the Company or any interests therein.
(d) No Violations. The execution, delivery and performance by such
Shareholder of this Agreement, the Rights Agreement and the Co-Sale Agreement
(to the extent that such Shareholder is a party to such Agreements) and the
consummation of the transactions contemplated hereby and thereby by such
Shareholder do not and will not, (i) violate the applicable provisions of any
law, rule, regulation, order or decree of which such Shareholder is aware and to
which such Shareholder is subject, (ii) conflict with or constitute a default or
require a consent under any contract, agreement or license to which such
Shareholder is a party, (iii) violate any provision of the formation, governing
or charter documents of such Shareholder (if applicable) or (iv) to the best of
its knowledge, require the consent or approval of, or filing with, any
governmental authority.
5. Representations and Warranties of ADN. ADN hereby represents and
warrants to the Company and the Shareholders as follows:
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(a) Authority. ADN has all requisite corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery and performance of this Agreement by ADN and
the consummation by ADN of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of ADN. This Agreement
has been duly executed and delivered by ADN and constitutes a valid and binding
obligation of ADN enforceable in accordance with its terms except as enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceeding therefor may be brought.
(b) Agreements Regarding Shares. Other than as set forth in this
Agreement, the Purchase Agreement, the Rights Agreement or the Co-Sale
Agreement, ADN is not a party to or the beneficiary of, any agreement,
instrument or document relating to or affecting any capital stock of the Company
or any interests therein.
(c) No Violations. The execution, delivery and performance by ADN of
this Agreement, the Rights Agreement and the Co-Sale Agreement and the
consummation of the transactions contemplated hereby and thereby by ADN do not
and will not, (i) violate the applicable provisions of any law, rule,
regulation, order or decree of which ADN is aware and to which ADN is subject,
(ii) conflict with or constitute a default or require a consent under any
contract, agreement or license to which ADN is a party, (iii) violate any
provision of the formation, governing or charter documents of ADN, or (iv) to
the best of its knowledge, require the consent or approval of, or filing with,
any governmental authority, other than any such consent, approval or filing that
has already been obtained or completed.
6. Term. This Agreement shall terminate upon the earlier to occur of
(a) the termination of the Product and Technology Agreement, or (b) the date on
which ADN and the ADN Affiliates collectively hold less than twenty-five percent
(25%) of the Common Stock issued or issuable upon conversion of the Preferred
Stock purchased by ADN under the Purchase Agreement.
7. Violations and Legends.
(a) Any attempt to transfer shares of Voting Stock in violation of
Section 2 hereof shall be void and the Company agrees it will not effect such a
transfer nor will it treat any alleged transferee as the holder of such shares.
(b) Legends. Each certificate representing shares of the capital
stock of the Company now or hereafter owned by ADN or any Shareholder shall be
endorsed with the following legend:
THE SALE OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN SHAREHOLDER
AGREEMENT BY AND BETWEEN THE SHAREHOLDER, THE CORPORATION AND CERTAIN
HOLDERS OF COMMON AND PREFERRED STOCK OF THE CORPORATION. COPIES OF
SUCH AGREEMENT MAY BE
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OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.
(c) Simultaneous with the execution of this Agreement the
Shareholders shall surrender their existing certificates for the purposes of
being so legended. The foregoing legend shall be removed from all relevant
certificates upon termination of this Agreement in accordance with the
provisions of Section 6.
8. Assignment. Neither this Agreement nor any of the rights, interests
or obligations under this Agreement shall be assigned by any of the parties
without the prior written consent of the other parties, except that ADN may
assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement to any ADN Affiliate. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and assigns.
9. General Provisions.
(a) Interaction With Other Rights. The parties acknowledge and agree
that as of the date of this Agreement, transfers by ▇▇▇▇▇ ▇. ▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇
are subject to (i) a right of first refusal by the Company pursuant to a
Shareholder Agreement dated February 4, 1994, as amended September 2, 1994, by
and among the Company, ▇▇. ▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ (the "1994 SHAREHOLDER
AGREEMENT"), as well as (ii) certain rights of co-sale as set forth in the
Co-Sale Agreement. The parties further acknowledge and agree that (A) the
Company's right of first refusal with respect to transfers by ▇▇. ▇▇▇ and ▇▇.
▇▇▇▇▇▇▇ and the Company's repurchase rights with respect to shares held by ▇▇.
▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, each under the 1994 Shareholder Agreement, shall be prior
and in preference to ADN's rights with respect such transfers under this
Agreement, (B) ADN's right of first refusal with respect to transfers by ▇▇. ▇▇▇
or ▇▇. ▇▇▇▇▇▇▇ shall be prior and in preference to the co-sale rights of the
Shareholders set forth in the Co-Sale Agreement and, as a result thereof, all
rights of each Shareholder pursuant to the Co-Sale Agreement are subject to the
rights of ADN hereunder, and (C) ADN's co-sale rights under the Co-Sale
Agreement shall be subject to the Company's right of first refusal with respect
to transfers by ADN as set forth herein.
(b) Applicable Law. This Agreement shall be construed in accordance
with, and all the rights, powers and liabilities of the parties hereunder shall
be governed by, the laws of the State of California, other than its rules
regarding conflicts of law.
(c) Arbitration. The parties shall attempt to settle all disputes
arising in connection with this Agreement through good faith consultation. In
the event no agreement can be reached on such dispute within sixty (60) days
after notification in writing by any party to the others concerning such
dispute, any party may submit such dispute to arbitration by three arbitrators
under the Rules of the American Arbitration Association. One arbitrator shall be
selected by each opposing party or group of parties and the third arbitrator
shall be selected by the first two arbitrators. The place of arbitration shall
be Los Angeles, California. The arbitrator's decision shall be final and binding
and any arbitration award or decision may be entered in any court of competent
jurisdiction. Expenses and fees of such arbitration shall be borne by the
non-prevailing party in such arbitration as provided in Section 8(g) below.
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(d) Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties relating to its subject matter and merges all
prior discussions and agreements among them, including without limitation any
non-disclosure or confidentiality agreement entered into prior to the date
hereof. No modification or amendment to this Agreement, nor any waiver of any
rights under this Agreement, will be effective unless in writing signed by all
parties hereto.
(e) Severability. If any provision of this Agreement is found
invalid or unenforceable, that provision will be enforced to the maximum extent
permissible under applicable law, and the remaining provisions of this Agreement
will stay in force. In addition, the parties agree to negotiate in good faith a
provision to replace the provision found invalid or unenforceable that will
have, to the extent possible, the same economic effect.
(f) Notices. All notices required or to be given pursuant to this
Agreement shall be in writing, shall be effective upon receipt and shall be
delivered in person or by first class mail, postage prepaid,
If to the Company, to: If to ADN, to:
Xylan Corporation Alcatel Data Networks S.A.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ c/o Alcatel Data Networks, Inc.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
and if to a Shareholder, to such Shareholder's address as set forth on Exhibit A
hereto or as otherwise provided from time to time in the Company's records.
(g) Attorney's Fees. If a dispute arises pursuant to this Agreement,
the prevailing party shall be entitled to receive its attorney's fees and costs
in connection with such dispute, as determined by the arbitrator or court.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY: ADN:
XYLAN CORPORATION, ALCATEL DATA NETWORKS S.A.,
a California corporation a French corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: President Title: President Directent General
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SHAREHOLDERS:
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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(Print Name) (Print Name)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Title:
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CROSSPOINT VENTURE PARTNERS 93 BRENTWOOD ASSOCIATES VI, L.P.
CROSSPOINT 1993 ENTREPRENEURS FUND By: Brentwood VI Ventures, L.P.
Its General Partner
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(Print Name)
By: /s/ By: /s/
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Title: General Partner Title: General Partner
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NORWEST EQUITY PARTNERS, IV U.S. VENTURE PARTNERS IV, L.P.
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(Print Name) (Print Name)
A Minnesota Limited Partnership SECOND VENTURE PARTNERS II, L.P.
By: Itasca Partners, General Partner USVP ENTREPRENEUR PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Partner Title: General Partner
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COMMUNITY PROPERTY ACKNOWLEDGMENT
The undersigned, as the spouses of ▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇,
respectively, hereby acknowledge that they have read the foregoing 1995
Shareholders Agreement and consent to the terms thereof, including, without
limitation, the restrictions on transfer of the shares held in the name of their
spouse.
/s/ ▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT A
SCHEDULE OF SHAREHOLDERS
SHAREHOLDER CLASS/SERIES SHARES
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BRENTWOOD ASSOCIATES VI, L.P. Series A Preferred 2,500,000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Series B Preferred 625,000
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CROSSPOINT VENTURE PARTNERS 93 Series A Preferred 808,236
One First Street Series B Preferred 303,050
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
CROSSPOINT 1993 ENTREPRENEURS FUND Series A Preferred 25,097
One First Street Series B Preferred 9,450
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
NORWEST EQUITY PARTNERS IV Series B Preferred 1,687,500
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
U.S. VENTURE PARTNERS IV, L.P. Series B Preferred 540,625
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
SECOND VENTURES II, L.P. Series B Preferred 65,625
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
USVP ENTREPRENEUR PARTNERS II, L.P. Series B Preferred 18,750
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▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇ Common 3,250,000
c/o Xylan Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12
▇▇▇▇ ▇▇▇▇▇▇▇ Common 1,500,000
c/o Xylan Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇