STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT, dated as of January 29, 2002, is made and
entered into by and among CORVIS CORPORATION, a Delaware corporation ("Corvis"),
and the parties executing this Agreement as "Principal Stockholders" (the
"Principal Stockholders").
WHEREAS, reference is made to the Agreement and Plan of Merger dated as
of January 29, 2002 (the "Merger Agreement"), among Corvis, Corvis Acquisition
Company, Inc., a Delaware corporation and a wholly-owned subsidiary of Corvis
("Corvis Sub"), and Dorsal Networks, Inc., a Delaware Corporation (the
"Company"), providing for, among other things, the merger (the "Merger") of
Corvis Sub with and into the Company, with the Company surviving the Merger as a
wholly-owned subsidiary of Corvis and the Principal Stockholders, (together with
Corvis the "Interested Parties"), along with other stockholders of the Company,
receiving shares of common stock of Corvis, $.01 par value per share ("Corvis
Common Stock"), in exchange for shares of capital stock of the Company, in the
manner provided in the Merger Agreement (capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to such terms in the Merger
Agreement);
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement the Principal Stockholders have agreed to (i) make certain
representations and warranties, and (ii) make certain provisions with respect to
the voting of the shares of Company Capital Stock held by such Principal
Stockholders.
NOW, THEREFORE, in consideration of the premises and the
representations and warranties and agreements contained herein, the parties
hereto agree as follows:
1. Representations and Warranties of Each Principal Stockholder. In
connection with the transactions contemplated by the Merger Agreement, each
Principal Stockholder hereby represents and warrants, severally, to Corvis and
Corvis Sub that the following statements are true, complete and accurate:
1.1 Authorization of Transaction. Such Principal Stockholder
has full power and authority to execute and deliver this Agreement and such
Related Agreements to which it/he is a party, and to perform its/his obligations
hereunder and thereunder. This Agreement and such Related Agreements each
constitutes the valid and legally binding obligation of such Principal
Stockholder, each enforceable in accordance with its terms and conditions. Such
Principal Stockholder need not give any notice to, make any filing with, or
obtain any authorization, consent or approval of any Governmental Entity in
order to consummate the transactions contemplated by this Agreement and such
Related Agreements.
1.2 Noncontravention. Neither the execution and the delivery
of this Agreement and the Related Agreements to which it/he is a party, nor the
consummation of the transactions contemplated hereby and thereby, will (a)
violate any constitution, statute, regulation, rule, injunction, judgment,
Order, decree, ruling, charge or other restriction of any government,
Governmental Authority, or court to which such Principal Stockholder is subject,
or (b) conflict with, result in a breach of, constitute a default under, result
in the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice
under any agreement, contract, lease, license, instrument or other arrangement
to which such Principal Stockholder is a party, by which it is bound or to which
any of its Assets is subject.
1.3 Brokers. Each Principal Stockholder has no liability or
obligation to pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by the Merger Agreement for which
Corvis or Corvis Sub or the Surviving Corporation could become liable or
obligated.
1.4 Company Shares. Such Principal Stockholder holds of record
and owns beneficially the series or class and number of shares of Company
Capital Stock set forth next to its/his name on Schedule I hereto, free and
clear of any restrictions on transfer (other than any restrictions under the
Securities Act and state securities laws and the restrictions in that certain
Investors Rights Agreement, Voting Agreement and Co-Sale Agreement, each dated
June 28, 2001 (the "Prior Agreements") which are to be terminated pursuant to
Section 6.2(f) of the Merger Agreement), Liens, options, warrants, purchase
rights, Contracts, commitments and/or equities. Except for the Prior Agreements,
such Principal Stockholder is not a party to any option, warrant, purchase right
or other contract or commitment that could require such Principal Stockholder to
sell, transfer or otherwise dispose of any capital stock of the Company (other
than pursuant to the Merger Agreement). Such Principal Stockholder is not a
party to any voting trust, proxy or other agreement or understanding with
respect to the voting of any capital stock of the Company (other than the Merger
Agreement and this Agreement).
2. Principal Stockholder Consent and Voting Agreement. Each Principal
Stockholder hereby (a) irrevocably consents to the execution and delivery of
this Agreement and to the consummation of the Merger, and (b) as long as the
Merger Agreement has not been terminated, further irrevocably agrees to vote all
Company Capital Stock as to which such Principal Stockholder is entitled to vote
at a meeting of the stockholders of the Company, or by written consent without a
meeting as follows: (i) in favor of approval and adoption of the Merger and the
Merger Agreement and the transactions contemplated thereby; (ii) against any
action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
or such Principal Stockholder under this Agreement or the Merger Agreement; and
(iii) against any action or agreement (other than this Agreement, the Merger
Agreement or the transactions contemplated by the Merger Agreement or the
termination of the Merger Agreement in accordance with its terms), that would,
directly or indirectly, impede, interfere with, delay, postpone or attempt to
discourage the Merger.
3. Principal Stockholders Grant of Proxy. Each Principal Stockholder
hereby irrevocably appoints each of the General Counsel and Chief Financial
Officer of Corvis, each with full power of substitution (each such individual
and his substitutes being referred to herein as the "Proxy"), as attorneys and
proxies to vote all Company Capital Stock on all matters referred to in Section
2 above to which such Principal Stockholder is entitled to vote at a meeting of
the stockholders of the Company or to which he is entitled to express consent or
dissent to corporate action in writing without a meeting, in accordance with
Section 2 above. Each Principal Stockholder agrees to refrain from taking any
action contrary to or in any manner inconsistent with the terms of this
Agreement or the Merger Agreement. Each Principal Stockholder agrees that this
grant of Proxy pursuant hereto may, at any time, name any other person as his
substituted Proxy to act pursuant hereto, either as to a specific matter or as
to all
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matters. Each Principal Stockholder hereby revokes any proxy previously granted
by him/it with respect to voting his or its shares of Company Capital Stock in a
manner inconsistent herewith. In discharging its powers under this Agreement,
the Proxy may rely upon advice of counsel to Corvis, and any vote made or action
taken by the Proxy in reliance upon such advice of counsel shall be deemed to
have been made in good faith by the Proxy. This grant of proxy shall terminate
upon the termination of the Merger Agreement pursuant to Section 8.1 thereof.
4. Indemnification Obligation. Each of the Principal Stockholders
hereby acknowledges and agrees that by execution of this Agreement, each such
Principal Stockholder consents to be bound by the terms and conditions of
Section 7 of the Merger Agreement with respect to the indemnification
obligations set forth therein and to the terms for the deposit of certain of the
Principal Stockholder's Merger Shares pursuant to Section 1.14 of the Merger
Agreement.
5. Stockholders Committee. Each of the Principal Stockholders agrees to
the formation and operation of the Stockholders Committee in accordance with
Section 7.8 of the Merger Agreement.
6. Termination. This Agreement shall terminate upon the termination of
the Merger Agreement in accordance with the terms thereof.
7. Miscellaneous.
(a) All notices or other communications which are required or permitted
hereunder shall be in writing and shall be deemed given when received by the
addressee. All notices shall be delivered personally or sent by
nationally-recognized overnight courier or by registered or certified mail,
return receipt requested and postage prepaid. Notices shall be sent to the
addresses given below for the parties, or to such other address for any party
notice of which, complying with these requirements, is given by that party to
all others.
(i) if to the Principal Stockholders then to:
Xxxx Xxxxxxx
Stockholders' Committee
Optical Capital Group
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
E-Mail: Xxxx.Xxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
with a copy to:
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Xxxxxx X. Xxxxxx
Xxxxxxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxxxxxxxxx Xxxxxx, XX
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier: 202-778-9100
E-Mail: xxxxxxx@xx.xxx
(ii) if to Corvis, to:
Xxx Xxxxxx, Esq.
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopier: 000-000-0000
with copies to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
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.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
(c) Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the laws of the State of Delaware without giving
effect to any choice of law or conflicting provision or rule (whether of
Delaware or any other jurisdiction) that would cause the laws of any
jurisdiction other than Delaware to be applied.
(d) Consent to Jurisdiction. Each of the Interested Parties irrevocably
consents and submits to the jurisdiction of the courts of Delaware and the
United States District Courts for Delaware, as the exclusive jurisdiction and
venue for any actions or proceedings brought by any Interested Party, arising
out of or relating to this Stockholders Agreement.
(e) Parties in Interest. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns. Anything contained herein to the contrary
notwithstanding, this Agreement shall not be assigned by any party hereto
without the consent of the other parties hereto.
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(f) Amendments. This Agreement may be amended only by a written
instrument duly executed by the parties hereto.
(g) Entire Agreement. This Agreement, the Merger Agreement and the
General Indemnity Escrow Agreement, contain the entire agreement among the
parties hereto with respect to the transactions contemplated hereby and
supersedes all prior agreements or understandings, written or oral, among the
parties identified above with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be executed and delivered on the date first above written.
CORVIS CORPORATION
By: Xxx X.Xxxxxx
--------------
Name:Xxx X. Xxxxxx
Title:SVP. General Counsel & Secretary
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
OPTICAL CAPITAL GROUP, LLC
---------------------------
By: /s/ Xxxx Xxxxxxx
-----------------
Name:Xxxx Xxxxxxx
Signature Page to Stockholders Agreement
PRINIPCAL STOCKHOLDERS:
HRLD LIMITED PARTNERSHIP
------------------------
By: /s/ Xxxxx X. Xxxxx
------------------------
Name: Xxxxx X. Xxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
OCG EQUITY PARTNERS, LLC
------------------------
By: /s/ Xxxx Xxxxxxx
--------------------
Name: Xxxx Xxxxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
Grosvenor Venture Partners III, LP
----------------------------------------
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Grosvenor Select Partners, L.L.C.
Its G.P.
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
Grosvenor Venture Partners IV (GP), L.P.
---------------------------------------
By: Xxxxx X. Xxxxxx
---------------
Name: Xxxxx X. Xxxxxx
GVP IV GP, L.L.C. its G.P.
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
U.S. Ventures L.P.
------------------
By its General Partner: Xxxxxxxxx Capital Venture
By: Xxxxxxx Xxxxxxxxx
-----------------
Name: Xxxxxxx Xxxxxxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
KS Teknoinvest VII
----------------------
By: Bjorn Bjora
-----------
Name: Bjorn Bjora
-----------
General Manager
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
Xxxx As
----------------------------
By: Xxxxx Xxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
FURUHOLMENINVEST A/S
---------------------------
By: Xxxxxxxx Xxxxxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
Ventures Technology III KS
--------------------------
By: Xxxxxx Xxxxxxx
--------------
Name: Xxxxxx Xxxxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
Xxxxxx X. Xxxxx
----------------------
By: Xxxxxx X. Xxxxx
-------------------
Name:
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
----------------------
By: Xxxxxxx X. Xxxxxxxx
-------------------
Name: Xxxxxxx X. Xxxxxxxx
Signature Page to Stockholders Agreement
PRINCIPAL STOCKHOLDERS:
By: Xxxxxx X. Xxxxxx
----------------
Name: Xxxxxx X. Xxxxxx
Signature Page to Stockholders Agreement
Schedule I
List of Company Preferred Stockholders
January __, 2002
---------------------------------------------- ------------------------------------------------
Name Shares Issued and/or Outstanding
---------------------------------------------- --------------- --------------- ----------------
Series A Series B Warrant Holders
Convertible Convertible
Preferred Preferred
Stock Stock
---------------------------------------------- --------------- --------------- ----------------
Optical Capital Group, LLC 43,970,000 9,840,727 1,135,069
---------------------------------------------- --------------- --------------- ----------------
HRLD Limited Partnership - 22,981,414 1,913,202
---------------------------------------------- --------------- --------------- ----------------
OCG Equity Partners, LLC 430,000 - -
---------------------------------------------- --------------- --------------- ----------------
Grosvenor Venture Partners III, L.P. - 8,826,190 1,200,000
---------------------------------------------- --------------- --------------- ----------------
Grosvenor Venture Partners IV, L.P. - 2,874,603 400,000
---------------------------------------------- --------------- --------------- ----------------
U.S. Ventures, L.P. - 4,335,714 -
---------------------------------------------- --------------- --------------- ----------------
KS Teknoinvest VII - 5,570,136 463,714
---------------------------------------------- --------------- --------------- ----------------
Xxxx AS - 655,311 54,555
---------------------------------------------- --------------- --------------- ----------------
Furuholmen Invest AS - 327,657 27,277
---------------------------------------------- --------------- --------------- ----------------
Venturos Technology III KS - 7,863,720 654,655
---------------------------------------------- --------------- --------------- ----------------
---------------------------------------------- --------------- --------------- ----------------
Xxxxxx, Xxxxxx - 39,321 3,273
---------------------------------------------- --------------- --------------- ----------------
Xxxxx, Xxxxxx - 26,212 2,182
---------------------------------------------- --------------- --------------- ----------------
Xxxxxxx, Xxxxxxx - 36,698 3,055
---------------------------------------------- --------------- --------------- ----------------
Total 44,400,000 63,377,703 5,856,982
---------------------------------------------- --------------- --------------- ----------------