exv10w4



 


Exhibit 10.4




VISUAL NETWORKS, INC.




PURCHASE AGREEMENT WAIVER AND AMENDMENT TO NOTES



     
THIS PURCHASE AGREEMENT WAIVER AND AMENDMENT TO NOTES, dated as
of this 1st day of December, 2005 (this “Waiver
and Amendment”), is entered into by and among
VISUAL NETWORKS, INC., a Delaware corporation (the
“Corporation”), and the Investors set
forth on the signature pages hereto (hereinafter referred to
collectively as the “Investors”).




BACKGROUND



     
The Corporation and the Investors have entered into that certain
Purchase Agreement dated as of August 5, 2005 (the
“Purchase Agreement”). Section 7.9
of the Purchase Agreement provides that, promptly following the
execution and delivery of the Purchase Agreement, the
Corporation shall take all action necessary to call a meeting of
its stockholders (the “Stockholders
Meeting”) which shall occur not later than the
100th day after the date of the Purchase Agreement (i.e.,
November 13, 2005) for the purpose of seeking approval of
the Corporation’s stockholders pursuant to Nasdaq
Marketplace Rule 4350(i)(1)(B). On October 27, 2005,
the Corporation and the Investors executed that certain Purchase
Agreement Waiver pursuant to which the Investors agreed that the
Stockholders Meeting could occur after the 100th day after
the date of the Purchase Agreement but in no event later than
December 6, 2005.



     
The Corporation has advised the Investors that the Corporation
may enter into a material transaction (the
“Transaction”) with an Fluke Electronics
Corporation (the “Counterparty”) either
prior to, on or shortly after the date currently scheduled for
the Stockholders Meeting pursuant to the terms of a proposed
Transaction Agreement, a draft of which has been provided to the
Investors (the “Transaction Agreement”).
In connection therewith, the parties anticipate that the
Investors may enter into an agreement with the Counterparty (the
“Transaction Support Agreement”) under
which the Investors will agree to take or to refrain from taking
certain actions for the purpose of supporting the consummation
of the Transaction in accordance with its terms. The Corporation
and the Investors have agreed that, due to the expected timing
of the announcement of the proposed Transaction, the Transaction
Agreement and the Transaction Support Agreement, the
Stockholders Meeting should be postponed as provided herein.



     
In connection with and pursuant to the Purchase Agreement, the
Corporation sold an aggregate of $10 million of its
5% Senior Secured Convertible Notes due December 31,
2007 (each, a “Note”). Each Note
provides that it is an event of default under such Note if the
Corporation’s stockholders fail to approval the Proposal on
or prior to December 6, 2005. The Corporation and the
Investors desire to amend Section 8(k) of each Note as set
forth herein.



     
In connection with the waivers and amendments contained herein
(including, without limitation, the extension of the Stockholder
Meeting date deadline provided for in Section 2, below),
and in order to induce the Investors to enter into the
Transaction Support Agreement, pursuant to Section 5(p) of
the Notes, the Corporation has agreed to reduce the Conversion
Price of the Notes as provided herein.



     
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto do hereby agree as follows:



     
Section 1.     Definitions.
All capitalized terms used herein without definition shall have
the meanings ascribed to such terms in the Purchase Agreement or
the Note, as applicable.



     
Section 2.     Waiver
of Date of Stockholders Meeting. The Investors hereby waive
any right to require the Corporation to hold the Stockholders
Meeting not later than the 100th day after the date of the
Purchase Agreement and further waive any right to require the
Corporation to hold the Stockholders Meeting on or prior to
December 6, 2005 and hereby acknowledge and agree that the
Stockholders Meeting can occur after December 6, 2005 but
in no event shall the Stockholders Meeting occur after
December 16, 2005 (the “Meeting Date
Deadline”).



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Section 3.     Amendment
to Notes. Section 8(k) of each Note is hereby amended
and restated in its entirety to read as follows:






		
	 	     
    “(k) the Company’s stockholders shall fail to approve
    the Proposal on or prior to December 16, 2005.”



     
Section 4.     Reduction
in Conversion Price. Effective as of the date of the
Transaction Support Agreement, pursuant to Section 5(p) of
the Notes, the Corporation hereby irrevocably reduces the
Conversion Price of each Note to $1.30 (the
“Reduction”). Notwithstanding the
Reduction, such Conversion Price shall continue to be subject to
adjustment as provided in the Notes. The Investors hereby waive
the 15-day prior written notice of the Reduction contained in
said Section 5(p). The Reduction shall be permanent unless
and until the Transaction Agreement is terminated in accordance
with its terms (other than as a result of (i) a breach of
the terms thereof by the Corporation or (ii) the receipt by
the Corporation of a “Superior Proposal” (as defined
in the Transaction Agreement)).



     
Section 5.     Conversion
of Notes. In the event that the Proposal is approved by the
Corporation’s stockholders on or prior to the Meeting Date
Deadline, each Investor shall cause any Notes it holds on the
effective date of the Transaction or any Superior Proposal to be
converted in accordance with their terms (as modified hereby)
into shares of the Corporation’s Common Stock effective
immediately prior to the effective time of the Transaction or
any Superior Proposal; provided that all conditions thereto
(other than such conversion) have been satisfied or waived.



     
Section 6.     Acknowledgement
of Reliance. Each of the parties hereto understands and
acknowledges that the other parties hereto are relying on the
undertakings of the parties in this Waiver and Amendment and
that each party will suffer irreparable harm in the event that
any other party hereto breaches its obligations hereunder and,
therefore, that each party has the right to specifically enforce
the obligations of the other parties hereunder, in addition to
any other remedies available to such party at law or in equity.



     
Section 7.     Miscellaneous.
Except as amended by this Waiver and Amendment, the Purchase
Agreement and each Note remains in full force and effect. This
Waiver and Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York,
without regard to the choice of law principles thereof. This
Waiver and Amendment may be executed in as many counterpart
copies as may be required, via facsimile if necessary. All
counterparts shall collectively constitute a single agreement.
This Waiver and Amendment shall become effective upon execution
by the Corporation and the Investors. This Waiver and Amendment
shall be for the sole benefit of the parties hereto and their
respective successors and assigns; provided, that the
Counterparty shall be deemed to be an express third-party
beneficiary of this Agreement and shall have the right to
enforce its provisions against the parties hereto as if it were
a party.




(Signatures begin on the next page.)



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IN WITNESS WHEREOF, the parties have executed this Waiver and
Amendment or caused their duly authorized officers to execute
this Waiver and Amendment as of the date first above written.




The Company:



		
	 	
    VISUAL NETWORKS, INC.






			
	 	By: 	
    /s/ Lawrence S. Barker



		
	 	
     




			
	 	Name:	
    Lawrence S. Barker



			
	 	Title:	
    President and Chief Executive Officer and 
Chairman of the Board
    of Directors



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The Investors:



		
	 	
    SPECIAL SITUATIONS FUND III, L.P.






			
	 	By: 	
    /s/ Austin W. Marxe



		
	 	
     

	 	
    Name: Austin W. Marxe



			
	 	Title:	
    General Partner






		
	 	
    SPECIAL SITUATIONS CAYMAN FUND, L.P.






			
	 	By: 	
    /s/ Austin W. Marxe



		
	 	
     

	 	
    Name: Austin W. Marxe



			
	 	Title:	
    General Partner






		
	 	
    SPECIAL SITUATIONS PRIVATE EQUITY 

     FUND, L.P.






			
	 	By: 	
    /s/ Austin W. Marxe



		
	 	
     

	 	
    Name: Austin W. Marxe



			
	 	Title:	
    General Partner






		
	 	
    SPECIAL SITUATIONS TECHNOLOGY 

     FUND, L.P.






			
	 	By: 	
    /s/ Austin W. Marxe



		
	 	
     

	 	
    Name: Austin W. Marxe



			
	 	Title:	
    General Partner






		
	 	
    SPECIAL SITUATIONS TECHNOLOGY 

     FUND II, L.P.






			
	 	By: 	
    /s/ Austin W. Marxe



		
	 	
     

	 	
    Name: Austin W. Marxe



			
	 	Title:	
    General Partner



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