{"id":43941,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stockholder-agreement-oni-systems-corp-and-ciena-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stockholder-agreement-oni-systems-corp-and-ciena-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/stockholder-agreement-oni-systems-corp-and-ciena-corp.html","title":{"rendered":"Stockholder Agreement &#8211; ONI Systems Corp. and CIENA Corp."},"content":{"rendered":"<pre>\n                              STOCKHOLDER AGREEMENT\n\n\n           STOCKHOLDER AGREEMENT, dated as of February 17, 2002 (this\n\"Agreement\"), by the undersigned stockholder (the \"Stockholder\") of ONI Systems\nCorp., a Delaware corporation (the \"Company\"), for the benefit of CIENA\nCorporation, a Delaware corporation (\"CIENA\").\n\n                                    RECITALS\n\n           WHEREAS, CIENA and the Company are entering into an Agreement and\nPlan of Merger, dated as of February 17, 2002 (as the same may be amended from\ntime to time, the \"Merger Agreement\"), whereby, upon the terms and subject to\nthe conditions set forth in the Merger Agreement, each issued and outstanding\nshare of common stock of the Company (\"Company Capital Stock\"), not owned\ndirectly or indirectly by CIENA or the Company, will be converted into shares of\nCommon Stock, par value $.01 per share, of CIENA (\"CIENA Common Stock\");\n\n           WHEREAS, the Stockholder owns of record, or has or shares the power\nto vote or dispose of, and\/or holds stock options, warrants or convertible\nsecurities to acquire (whether or not vested) that number and class of shares of\nCompany Capital Stock appearing on the signature page hereof (all outstanding\nshares of Company Capital Stock so owned of record or beneficially, together\nwith any other shares of capital stock of the Company acquired by such\nStockholder after the date hereof and during the term of this Agreement, being\ncollectively referred to herein as the \"Subject Shares\"); and\n\n           WHEREAS, as a condition to its willingness to enter into the Merger\nAgreement, CIENA has required that the Stockholder agree, and in order to induce\nCIENA to enter into the Merger Agreement, the Stockholder has agreed, to enter\ninto this Agreement.\n\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and\nagreements set forth herein, the Stockholder agrees as follows:\n\n1.         COVENANTS OF STOCKHOLDER. Until the termination of this Agreement in\naccordance with Section 4, Stockholder agrees as follows:\n           (a)  At the Company Stockholders Meeting (or at any adjournment\nthereof) or in any other circumstances upon which a vote, consent or other\napproval with respect to the Merger and the Merger Agreement is sought, the\nStockholder shall vote (or cause to be voted) the Subject Shares in favor of the\nMerger, the adoption of the Merger Agreement and the approval of the terms\nthereof and each of the other transactions contemplated by the Merger Agreement;\n           (b)  At any meeting of stockholders of the Company or at any\nadjournment thereof or in any other circumstances upon which the Stockholder's\nvote, consent or other approval is sought, the Stockholder shall vote (or cause\nto be voted) the Subject Shares against any proposal or any amendment of the\nCompany's Certificate of Incorporation or By-Laws, which proposal or amendment\nwould in any manner impede, frustrate, prevent or nullify the Merger, the Merger\nAgreement or any of the other transactions contemplated by the Merger Agreement\nor change in any manner the voting rights of any class of capital stock of the\nCompany, and the Stockholder further agrees not to vote (or cause to be voted)\nthe Subject Shares in favor of any proposal to approve any transaction that\narises from any Acquisition Proposal. The Stockholder further agrees not to\ncommit or agree to take any action inconsistent with the foregoing;\n           (c)  The Stockholder agrees not to (i) sell, transfer, pledge, assign\nor otherwise dispose of (including by gift) (collectively, \"Transfer\"), or enter\ninto any contract, option or other arrangement (including any profit-sharing\narrangement) with respect to the Transfer of the Subject Shares to any person or\n(ii) enter into any voting arrangement, whether by proxy, voting agreement or\notherwise, in relation to the Subject Shares, and agrees not to commit or agree\nto take any of the foregoing actions; provided, however, that the Stockholder\nmay transfer up to 100,000 shares of Company Common Stock in the aggregate (i)\nwithout consideration, by way of gift to members of the Stockholder's immediate\nfamily (or a trust for the direct or indirect benefit of the Stockholder or the\nStockholders' immediate family) and to organizations qualified under Section\n501(c)(3) of the Internal Revenue Code of 1986, or (ii) through a bona fide\npledge of the Subject Shares by the Stockholder to a third party as collateral\nfor a loan, so long as the transferee or pledgee of the Subject Shares agrees in\nwriting to be bound by the terms of this Agreement. The foregoing number of\nshares shall be appropriately adjusted if, between the date of this Agreement\nand the Effective Time, the outstanding shares of Company Common Stock are\nchanged into a different number or class of shares by reason of any stock split,\nstock dividend, reverse stock split, reclassification, recapitalization or other\nsimilar transaction.\n\n\n\n\n\n           (d)  The Stockholder shall not, nor shall the Stockholder permit any\naffiliate, director, officer, employee, investment banker, attorney or other\nadvisor or representative of the Stockholder to, (i) directly or indirectly\nsolicit, initiate or knowingly encourage the submission of, any Acquisition\nProposal or (ii) directly or indirectly participate in any discussions or\nnegotiations regarding, or furnish to any person any information with respect\nto, or take any other action to facilitate any inquiries or the making of any\nproposal that constitutes or may reasonably be expected to lead to, any\nAcquisition Proposal; provided, however, that if the Stockholder is an executive\nofficer of the Company, nothing in this Section 1(d) shall be interpreted to\nprohibit the Stockholder from acting in accordance with instructions given by\nthe Board of Directors of the Company so long as such actions comply with the\nprovisions of Section 5.4 of the Merger Agreement.\n           (e)  At any time requested by CIENA, the Stockholder shall grant to\nCIENA or its designees a written proxy or proxies to vote all of the Subject\nShares in favor of the Merger and against any Acquisition Proposal or any\nstockholder proposal intended to promote an Acquisition Proposal; and\n           (f)  The Stockholder shall use the Stockholder's reasonable best\nefforts to take, or cause to be taken, all actions, and to do, or cause to be\ndone, and to assist and cooperate with CIENA in doing, all things necessary,\nproper or advisable to support and to consummate and make effective, in the most\nexpeditious manner practicable, the Merger and the other transactions\ncontemplated by the Merger Agreement.\n\n2.         REPRESENTATIONS AND WARRANTIES. The Stockholder represents and\nwarrants to CIENA as follows:\n           (a)  The Stockholder is the beneficial owner of, and has good and\nmarketable title to, the Subject Shares. The Stockholder does not own, of record\nor beneficially, any shares of capital stock of the Company other than the\nSubject Shares. The Stockholder has the sole right to vote, and the sole power\nof disposition with respect to, the Subject Shares, and none of the Subject\nShares is subject to any voting trust, proxy or other agreement, arrangement or\nrestriction with respect to the voting or disposition of such Subject Shares,\nexcept as contemplated by this Agreement;\n           (b)  This Agreement has been duly executed and delivered by the\nStockholder. Assuming the due authorization, execution and delivery of this\nAgreement by CIENA, this Agreement constitutes the valid and binding agreement\nof the Stockholder enforceable against the Stockholder in accordance with its\nterms, except as may be limited by applicable bankruptcy, insolvency,\nreorganization, moratorium and other similar laws of general application which\nmay affect the enforcement of creditors' rights generally and by general\nequitable principles. The execution and delivery of this Agreement by the\nStockholder does not and will not conflict with any agreement, order or other\ninstrument binding upon the Stockholder, nor require the Stockholder to make or\nobtain any regulatory filing or approval.\n\n3.         AFFILIATE LETTER. The Stockholder is concurrently executing and\ndelivering an Affiliate Letter in the form of EXHIBIT B to the Merger Agreement,\nif requested by CIENA.\n\n4.         TERMINATION. The obligations of the Stockholder hereunder shall\nterminate upon the earlier of the termination of the Merger Agreement pursuant\nto ARTICLE VII thereof or the Effective Time.\n\n5.         FURTHER ASSURANCES. The Stockholder will, from time to time, execute\nand deliver, or cause to be executed and delivered, such additional or further\nconsents, documents and other instruments as CIENA may reasonably request for\nthe purpose of effectively carrying out the transactions contemplated by this\nAgreement.\n\n6.         SUCCESSORS, ASSIGNS AND TRANSFEREES BOUND. Any successor, assignee or\ntransferee (including a successor, assignee or transferee as a result of the\ndeath of the Stockholder, such as an executor or heir) shall be bound by the\nterms hereof, and the Stockholder shall take any and all actions necessary to\nobtain the written confirmation from such successor, assignee or transferee that\nit is bound by the terms hereof.\n\n7.         REMEDIES. The Stockholder acknowledges that money damages would be\nboth incalculable and an insufficient remedy for any breach of this Agreement by\nit, and that any such breach would cause CIENA irreparable harm. Accordingly,\nthe Stockholder agrees that in the event of any breach or threatened breach of\nthis Agreement, CIENA, in addition to any other remedies at law or in equity it\nmay have, shall be entitled, without the requirement of posting a bond or other\nsecurity, to equitable relief, including injunctive relief and specific\nperformance.\n\n8.         SEVERABILITY. The invalidity or unenforceability of any provision of\nthis Agreement in any jurisdiction shall not affect the validity or\nenforceability of any other provision of this Agreement in such jurisdiction, or\nthe validity or enforceability of any provision of this\n\n\n\n\n\nAgreement in any other jurisdiction.\n\n9.         AMENDMENT. This Agreement may be amended only by means of a written\ninstrument executed and delivered by both the Stockholder and CIENA.\n\n10.        GOVERNING LAW. This Agreement shall be governed by, and construed in\naccordance in accordance with, the laws of the State of Delaware, regardless of\nthe laws that might otherwise govern under applicable principles of conflicts of\nlaws thereof.\n\n11.        CAPITALIZED TERMS. Capitalized terms used in this Agreement that are\nnot defined herein shall have such meanings as set forth in the Merger\nAgreement.\n\n12.        COUNTERPARTS. For the convenience of the parties, this Agreement may\nbe executed in counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\n\n13.        NO LIMITATION ON ACTIONS OF THE STOCKHOLDER AS DIRECTOR. In the event\nthe Stockholder is a director of the Company, notwithstanding anything to the\ncontrary in this Agreement, nothing in this Agreement is intended or shall be\nconstrued to require the Stockholder to take or in any way limit any action that\nthe Stockholder may take to discharge the Stockholder's fiduciary duties as a\ndirector of the Company.\n\n\n\n\n\n                                     -------------------------------------------\n\n\n\n                                     By:\n                                        ----------------------------------------\n                                     (print or type name)\n\n                                     Number and class of shares of Company\n                                     Capital Stock owned or subject to\n                                     acquisition on the date hereof: ________\n                                     ________________ (including shares issuable\n                                     under stock options, warrants and\n                                     convertible securities)\n\n\nAccepted and Agreed to as of the date set forth above:\n\nCIENA Corporation\n\nBy:\n        ------------------------------------------------------\n        Name:\n        Title:\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7094,8415],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9629,9633],"class_list":["post-43941","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ciena-corp","corporate_contracts_companies-oni-systems-corp","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43941","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43941"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43941"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43941"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43941"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}