XTERA COMMUNICATIONS, INC. AMENDED AND RESTATED VOTING AGREEMENT
Exhibit 4.2
XTERA COMMUNICATIONS, INC.
AMENDED AND RESTATED VOTING AGREEMENT
This Amended and Restated Voting Agreement (the “Agreement”) is made as of August 1, 2007, by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), those certain holders of the Company’s Common Stock set forth on Exhibit A attached to this Agreement (individually, a “Common Stockholder,” and collectively, the “Common Stockholders”), and the holders of the Series A-1 Convertible Preferred Stock, par value $0.001 per share (“Series A-1 Preferred Stock”), and the Series B-1 Convertible Preferred Stock, par value $0.001 per share (“Series B-1 Preferred Stock,” and together with the Series A-1 Preferred Stock, the “Preferred Stock”), of the Company set forth on Exhibit B attached to this Agreement (individually, an “Investor,” collectively, the “Investors,” and together with the Common Stockholders, the “Stockholders”).
RECITALS
The Company and certain of the Investors are parties to the Series B-1 Preferred Stock Purchase Agreement, dated as of the date of this Agreement (as amended or otherwise modified from time to time, the “Purchase Agreement”), pursuant to which the Company has agreed to sell, and such Investors have agreed to purchase, shares of Series B-1 Preferred Stock, subject to certain conditions, including the execution and delivery of this Agreement;
The Company, certain Common Stockholders and certain of the Investors (the “Existing Stockholders”) have previously entered into the Voting Agreement dated as of August 12, 2003 (the “Prior Agreement”);
The Prior Agreement may be amended, and any provision therein waived, with the consent of the Company, the holders of at least a majority of the Series A-1 Preferred Stock and the holders of a majority of the Common Stock then outstanding and held by the Existing Stockholders;
The Company and the Existing Stockholders, as holders of at least a majority of the Series A-1 Preferred Stock and a majority of the Common Stock then outstanding and held by such Existing Stockholders, desire to amend and restate the Prior Agreement and to accept the rights and obligations created pursuant hereto in lieu of the rights and obligations created under the Prior Agreement;
To induce the Investors to enter into the Purchase Agreement and purchase shares of Series B-1 Preferred Stock thereunder, the Company, the Common Stockholders and the Investors desire to enter into this Agreement to set forth certain rights and obligations of the Stockholders;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises set forth in this Agreement, the parties to this Agreement agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following terms have the following meanings:
(a) an “Affiliate” of an entity shall mean any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such entity and with respect to any entity which is a partnership, any partner and affiliated partnership managed by the same management company or managing general partner or by an entity which controls, is controlled by, or is under common control with such management company or managing general partner.
(b) “IPO” means the first closing of a bona fide, firm commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of securities for the account of the Corporation to the public (A) at a price per share of Common Stock of not less than $3.46028 per share (subject to proportionate adjustment in the event of a stock split, reverse stock split, reclassification or stock dividend), (B) with respect to which the Corporation receives aggregate net proceeds (after deduction of underwriting discounts and commissions) of not less than $75,000,000, and (C) with respect to which such Common Stock is listed for trading on either the New York Stock Exchange or the NASDAQ National Market.
(c) “On an as-converted basis” means taking into account all of the issued and outstanding shares of Common Stock of the Company, all issued and outstanding shares of Preferred Stock and other issued and outstanding securities convertible into Common Stock of the Company, each on an as-converted basis.
(d) “Stock” means and includes all Common Stock and Preferred Stock of the Company (whether already issued or issuable upon conversion of Preferred Stock).
(e) “Transfer” means and includes any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including but not limited to transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings, or general assignees for the benefit of creditors, whether voluntary or by operation of law, directly or indirectly, except:
(i) any transfers of Stock to the Stockholder’s spouse, lineal descendant or antecedent, father, mother, brother or sister of the Stockholder, the adopted child or adopted grandchild of the Stockholder, or the spouse of any child, adopted child, grandchild or adopted grandchild of the Stockholder, or to a trust or trusts for the exclusive benefit of the Stockholder or the Stockholder’s family members as listed in this Section 1(g)(i); or
(ii) any transfers of Stock to an Affiliate;
provided that in each and all such cases, (A) the Stockholder shall inform the Company by written notice prior to effecting such permitted transfer of Stock, and (B) such transferee or Affiliate, as the case may be, shall furnish the Company with an executed counterpart copy of this Agreement and
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agree to become bound thereby as was the Stockholder. Such transferred Stock shall remain “Stock” hereunder, and the transferee shall be treated as was the Stockholder of such Stock hereunder, and shall assume all rights and obligations of such Stockholder hereunder.
2. Drag-A-Long Rights.
(a) If, at any time, holders of at least 75% of the then outstanding shares of Preferred Stock, voting together as a single class, vote in favor of any Liquidation Event as defined in the Amended and Restated Certificate of Incorporation (the “Restated Certificate”) of the Company (an “Approved Sale”), all Stockholders shall consent to and raise no objections against the Approved Sale, and if the Approved Sale is structured as (A) a merger, share exchange or consolidation of the Company, or a sale of all or substantially all of the assets of the Company or any other form of corporate reorganization, each Stockholder shall vote all of its Stock and other voting securities of the Company owned or held by such Stockholder in favor of the Approved Sale and shall waive any dissenters rights, appraisal rights or similar rights in connection with such merger, consolidation or sale, or (B) a sale of all or substantially all of the capital stock of the Company, the Stockholders shall agree to sell all their shares of Common Stock and Preferred Stock which are the subject of the Approved Sale, on the terms and conditions of such Approved Sale. The Stockholders shall take all necessary and desirable actions in connection with the consummation of the Approved Sale, including the execution of such agreements and such instruments and other actions reasonably necessary to (1) provide customary representations, warranties, indemnities, and escrow arrangements relating to such Approved Sale and (2) effectuate the allocation and distribution of the aggregate consideration upon the Approved Sale as set forth in Section 2(b)(i) below. The Stockholders shall be permitted to sell their shares of capital stock pursuant to an Approved Sale without complying with the provisions of rights of first refusal or co-sale provisions in favor of the Company or the other Stockholders.
(b) The obligations of the Stockholders pursuant to this Section 2 are subject to the satisfaction of the following conditions:
(i) upon the consummation of the Approved Sale, each Stockholder shall receive the same proportion of the aggregate consideration from such Approved Sale that such holder would have received if such aggregate consideration had been distributed by the Company in complete liquidation pursuant to the rights and preferences set forth in the Restated Certificate as in effect immediately prior to such Approved Sale (giving effect to applicable liquidation preferences);
(ii) if any Stockholders of a class are given an option as to the form and amount of consideration to be received, all Stockholders of such class will be given the same option;
(iii) no Stockholder shall be obligated to make any out-of-pocket expenditure prior to the consummation of the Approved Sale (excluding modest expenditures for postage, copies, etc.) and no Stockholder shall be obligated to pay any portion (or shall be entitled to be reimbursed by the Company for that portion paid) that is more than its pro rata share (based upon the amount of consideration received) of reasonable expenses incurred in connection with a consummated Approved Sale, to the extent such costs are incurred for the benefit of all
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Stockholders, and are not otherwise paid by the Company or the acquiring party (costs incurred by or on behalf of a Stockholder for its sole benefit will not be considered costs of the transaction hereunder), provided that a Stockholder’s liability for such expenses shall be limited to the total purchase price received by such Stockholder for its shares of capital stock;
(iv) no Stockholder shall be required to provide any representations, warranties or indemnities (other than pursuant to an escrow of consideration proportionate to the amount receivable under this Section 2) in connection with the Approved Sale, other than those representations, warranties and indemnities, which indemnities shall be several and not joint, concerning each Stockholder’s valid ownership of shares of capital stock and stock equivalents, free of all liens and encumbrances (other than those arising under applicable securities laws), provided that a Stockholder’s indemnification obligations shall be limited to the total purchase price received by such Stockholder for its shares of capital stock, and each Stockholder’s authority, power, and right to enter into and consummate such purchase or merger agreement without violating any other agreement to which such Stockholder is a party or its assets are bound; and
(v) if some or all of the consideration received in connection with the Approved Sale is other than cash, then the valuation of such assets shall be determined in accordance with Article IV, Section 2(d) of the Restated Certificate. The determination of value shall be final and binding on all parties.
(c) If the Company and any of the Stockholders or their representatives, enter into any negotiation or transaction for which Rule 506 under the Securities Act of 1933, as amended (the “Securities Act), (or any similar rule then in effect) may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), each Stockholder who is not an accredited investor (as such term is defined in Rule 501 under the Securities Act) will, at the request of the Company or the Investors, appoint a purchaser representative (as such term is defined in Rule 501 under the Securities Act) reasonably acceptable to the Company or such Stockholders.
3. Restrictive Legend and Stop Transfer Orders.
(a) Legend. Each Stockholder understands and agrees that the Company will cause the legend set forth below, or a legend substantially equivalent thereto, to be placed upon any certificate(s) or other documents or instruments evidencing ownership of Stock by the Stockholder:
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING AGREEMENT ENTERED INTO BY THE HOLDER OF THESE SHARES AND THE COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH VOTING AGREEMENT IS BINDING ON CERTAIN TRANSFEREES OF THESE SHARES.”
(b) Stop Transfer Instructions. Each Stockholder agrees, to ensure compliance with the restrictions referred to herein, that the Company may issue appropriate “stop transfer” certificates or instructions and that, if the Company transfers its own securities, it may make appropriate notations to the same effect in its records.
(c) Transfers. No securities shall be Transferred by Stockholder unless (i) such Transfer is made in compliance with all of the terms of this Agreement and in compliance with the terms of applicable federal and state securities laws and (ii) prior to such Transfer, the Transferee or Transferees sign(s) a counterpart to this Agreement pursuant to which it or they agree to be bound by the terms of this Agreement. The Company shall not be required (a) to Transfer on its books any shares that shall have been sold or Transferred in violation of any of the provisions of this Agreement or (b) to treat as the owner of such shares or to accord the right to vote as such owner or to pay dividends to any Transferee to whom such shares shall have been so Transferred.
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4. Termination and Waiver.
(a) Termination. This Agreement will terminate upon an IPO.
(b) Waiver. Any waiver by a party of its rights hereunder will be effective only if evidenced by a written instrument executed by such party or its authorized representative; provided, however, that one or more Investors holding at least a majority of the shares of Common Stock and Preferred Stock (voting together as a single class and not as a separate series, and on an as converted basis) of the Company held by all Investors may waive any of the rights of all Investors hereunder.
5. Miscellaneous Provisions.
(a) Notice. Any notice required or permitted to be given to a party pursuant to the provisions of this Agreement will be in writing and will be effective on (i) the date of delivery by facsimile, or (ii) the business day after deposit with a nationally-recognized courier or overnight service, including Express Mail, for United States deliveries or (iii) five (5) business days after deposit in the United States mail by registered or certified mail for United States deliveries. All notices not delivered personally or by facsimile will be sent with postage and other charges prepaid and properly addressed to the party to be notified at the address set forth below such party’s signature on this Agreement or at such other address as such party may designate by ten (10) days advance written notice to the other parties hereto. Notwithstanding the foregoing, all notices for delivery outside the United States shall be sent by facsimile (in which case said notice shall be deemed effective as of the next business day following the date of transmission) or nationally recognized courier (in which case said notice shall be deemed effective as of the fifth day following the date of mailing). Any notice given hereunder to more than one person will be deemed to have been given, for purposes of counting time periods hereunder, on the date given to the last party required to be given such notice. Notices to the Company will be marked to the attention of the Chief Executive Officer.
(b) Binding on Successors and Assigns: Inclusion Within Certain Definitions. This Agreement, and the rights and obligations of the parties hereunder, will inure to the benefit of, and be binding upon, their respective successors, assigns, heirs, executors, administrators and legal representatives. Any permitted Transferee of a Stockholder who is required to become a party hereto will be considered a “Stockholder” for purposes of this Agreement.
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(c) Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible and such invalidity, illegality or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had (to the extent not enforceable) never been contained herein.
(d) Amendment. This Agreement may be amended only by a written instrument executed by (i) the Company, (ii) the holders of a majority of the shares of Stock held by the Common Holders, and (iii) the holders of a majority, which majority must include the holders of at least a majority of the Series B-1 Preferred Stock, of the shares of Stock (voting together as a single class and not as a separate series, and on an as converted basis) held by the Investors; provided, however, that in the event such amendment adversely affects the obligations and/or rights of an Investor in a different manner than the other Investors, such amendment shall also require the written consent of such Investor.
(e) Governing Law. This Agreement shall be governed in all respects by the laws of the State of Delaware as applied to contracts made and to be performed entirely within that state between residents of that state.
(f) Obligation of Company. The Company and the Stockholders agree to use their best efforts to enforce the terms of this Agreement, to inform the other Stockholders of any breach hereof (to the extent of the Company’s knowledge thereof) and to assist the Stockholders in the exercise of their rights thereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument.
(h) Further Assurances. Each party hereby agrees to execute and deliver all such further instruments and documents and take all such other actions as the other party may reasonably request in order to carry out the intent and purposes of this Agreement.
(i) Entire Agreement; Successors and Assigns. This Agreement and the exhibits hereto constitute the entire agreement between the Company and each Investor relative to the subject matter hereof. Any previous agreement between the Company and each Stockholder regarding the subject matter hereof is terminated and superseded by this Agreement. Subject to the exceptions specifically set forth in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties.
(j) Conflict. In the event of any conflict between the terms of this Agreement and the Company’s Restated Certificate, or its Bylaws, the terms of the Company’s Restated Certificate or Bylaws, as the case may be, will control. In the event of any conflict between the terms of this
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Agreement and any other agreement to which the Stockholder is a party or by which such Stockholder is bound, the terms of this Agreement will control. In the event of any conflict between the Company’s books and records and this Agreement or any notice delivered hereunder, the Company’s books and records will control absent fraud or error.
(k) Dispute Resolution. All disputes, claims, or controversies arising out of or relating to this Agreement, or any other agreement executed and delivered pursuant to this Agreement, or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby, that are not resolved by mutual agreement shall be resolved solely and exclusively by binding arbitration to be conducted before J.A.M.S./Endispute, Inc. or its successor. The parties understand and agree that this arbitration provision shall apply equally to claims of fraud or fraud in the inducement. The arbitration shall be held in New York, New York before a single arbitrator and shall be conducted in accordance with the rules and regulations promulgated by J.A.M.S./Endispute, Inc. unless specifically modified herein.
The parties covenant and agree that the arbitration shall commence within one hundred twenty (120) days of the date on which a written demand for arbitration is filed by any party hereto. In connection with the arbitration proceeding, the arbitrator shall have the power to order the production of documents by each party and any third-party witnesses. In addition, each party may take up to three depositions as of right, and the arbitrator may in his or her discretion allow additional depositions upon good cause shown by the moving party. However, the arbitrator shall not have the power to order the answering of interrogatories or the response to requests for admission. In connection with any arbitration, each party shall provide to the other, no later than fourteen (14) business days before the date of the arbitration, the identity of all persons that may testify at the arbitration, a copy of all documents that may be introduced at the arbitration or considered or used by a party’s witness or expert, and a summary of the expert’s opinions and the basis for said opinions. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration. The arbitrator’s decision shall set forth a reasoned basis for any award of damages or finding of liability. The arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages.
The parties covenant and agree that they will participate in the arbitration in good faith and that they will share equally its costs, except as otherwise provided herein. Any party unsuccessfully refusing to comply with an order of the arbitrators shall be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. This Section 5(k) applies equally to requests for temporary, preliminary or permanent injunctive relief, except that in the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm. The provisions of this Section 5(k) shall be enforceable in any court of competent jurisdiction.
Subject to the second sentence of the immediately preceding paragraph, the parties shall bear their own attorneys’ fees, costs and expenses in connection with the arbitration. The parties will share equally in the fees and expenses charged by J.A.M.S.
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Each of the parties hereto irrevocably and unconditionally consents to the exclusive jurisdiction of J.A.M.S./Endispute, Inc. to resolve all disputes, claims or controversies arising out of or relating to this Agreement or any other agreement executed and delivered pursuant to this Agreement or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby and further consents to the jurisdiction of the courts of New York, New York for the purposes of enforcing the arbitration provisions of this Section 5(k). Each party further irrevocably waives any objection to proceeding before J.A.M.S./Endispute, Inc. based upon lack of personal jurisdiction or to the laying of venue and further irrevocably and unconditionally waives and agrees not to make a claim in any court that arbitration before J.A.M.S./Endispute, Inc. has been brought in an inconvenient forum. Each of the parties hereto hereby consents to service of process by registered mail at the address to which notices are to be given. Each of the parties hereto agrees that its or his submission to jurisdiction and its or his consent to service of process by mail is made for the express benefit of the other parties hereto.
(l) Trustee Liability. With respect to its signatory capacity and liability as the trustee of The Wellcome Trust, The Wellcome Trust Limited (the “Trustee”), enters into this Agreement in its capacity as the trustee for the time being of The Wellcome Trust but not otherwise and it is hereby agreed and declared that notwithstanding anything to the contrary contained or implied in this Agreement:
(i) the obligations incurred by the Trustee under or in consequent of this Agreement shall be enforceable against it or the other trustees of The Wellcome Trust from time to time; and
(ii) the liabilities of the Trustee (or such other trustees as are referred to in paragraph (a) above) in respect of such obligations shall be limited to such liabilities as can, and may lawfully and properly be met out of the assets of The Wellcome Trust for the time being in the hands or under the control of the Trustee or such other trustees.
(m) Aggregation of Stock. The Stock held by any affiliated entities or persons of an Investor shall be aggregated with such Investor’s Stock solely for purposes of determining whether or not any right granted hereunder is applicable to such Investor.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written.
| COMPANY: | ||
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Jon R. Hopper | |
| Jon R. Hopper | ||
| President and Chief Executive Officer | ||
| Address: | 500 W. Bethany Drive, Suite 100 | |
| Allen, TX 75013 | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
| [signature block for entities]: |
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| (print name of entity) | ||||||
| By: |
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| Name: |
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| Title: |
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| [signature block for individuals] |
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| (signature) | ||||||
| Print Name: |
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[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Sandra Robertson | |
| Name: | Sandra Robertson | |
| Title: | 6 Head of Portfolio Management | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, L.P. | |
| Its General Partner | ||
| By: | /s/ C. Richard Kramlich | |
| Name: | C. Richard Kramlich | |
| Title: | General Partner | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
| NEW ENTERPRISE ASSOCIATES 9, L.P. | ||
| By: | NEA Partners 9, L.P. | |
| Its General Partner | ||
| By: | /s/ C. Richard Kramlich | |
| Name: | C. Richard Kramlich | |
| Title: | General Partner | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
| NEA VENTURES 2000, L.P. | ||
| By: | /s/ Cindy Crnkovich | |
| Name: | Cindy Crnkovich | |
| Title: | Vice President | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IVA, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| SEVIN ROSEN FUND VII, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
| SEVIN ROSEN VII AFFILIATES FUND, L.P. | ||
| By | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| COMMUNICATIONS VENTURES IV, L.P. | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | General Partner | |
| Address: | 505 Hamilton Avenue, Ste. 305 | |
| Palo Alto, CA 94301 | ||
| COMMUNICATIONS VENTURES IV CEO FUND, L.P. | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | General Partner | |
| Address: | 505 Hamilton Avenue, Ste. 305 | |
| Palo Alto, CA 94301 | ||
| COMMUNICATIONS VENTURES IV ENTREPRENEURS’ FUND, L.P. | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | General Partner | |
| Address: | 505 Hamilton Avenue, Ste. 305 | |
| Palo Alto, CA 94301 | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||||
| EDF VENTURES II, LIMITED PARTNERSHIP | ||||
| By: | Enterprise Ventures II, Limited Partnership, | |||
| Its General Partner | ||||
| By: | EDM II, Inc., | |||
| Its General Partner | ||||
| By: | /s/ Beau D. Laskey | |||
| Beau D. Laskey | ||||
| Vice President and Secretary | ||||
| EDF VENTURES I, LIMITED PARTNERSHIP | ||||
| By: | Enterprise Ventures, Limited Partnership, | |||
| Its General Partner | ||||
| By: | EDM, Inc., | |||
| Its General Partner | ||||
| By: | /s/ Beau D. Laskey | |||
| Beau D. Laskey | ||||
| Vice President and Secretary | ||||
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| JON W. BAYLESS, Personal Property | ||
| /s/ Signed by John W. Bayless | ||
| Address: | 13455 Noel Road, Suite 1670 | |
| Two Galleria Tower | ||
| Dallas, TX 75240 | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford Higgerson | ||
| Address: | 361 Lytton Ave. 2nd Fl. | |
| Palo Alto, CA 94301 | ||
[AMENDED AND RESTATED VOTING AGREEMENT]
EXHIBIT A
INVESTORS
Common Stockholders
Aether Partners L.P.
ARCH Entrepreneurs Fund, L.P.
ARCH Venture Fund III LP
ARCH Venture Fund IV LP
Jon Bayless
Centerpoint Venture Fund III (Q), L.P.
Centerpoint Venture Fund III, L.P.
Comventures IV CEO Fund L.P.
ComVentures IV Entr. Fund L.P.
ComVentures IV L.P.
EDF Ventures L.P.
Patrick Ennis
Enterprise Dev. Fund II LP
Deitrich Erdmann
Hook Communications Partners LP
Hook Partners V LP
Infrastructure Co-Invest Fund LP
Infrastructure Fund L.P.
Mohr Seed Capital II LP
New Enterprise Associates 10 L.P.
New Enterprise Associates 9 L.P.
Rho Management Trust I
Rho Ventures IV (QP) L.P.
Rho Ventures IV GmbH & CO. Beteiligungs KG
Rho Ventures IV L.P.
Sevin Rosen Fund VII L.P.
Sevin Rosen VII Affiliates Fund L.P.
Star Growth Enterprise, a German Civil Law Partnership (with limitation of liability)
Star Management of Investments No. II (2000) L.P.
Star Ventures Managementgesellschaft mbH Nr. 3 & Co. Beteiligungs KG Nr. 3
SVE Star Ventures Enterprises GmbH & Co. No. IX KG
SVM Star Ventures Managementgesellschaft mbH Nr. 3
Thomas A. Kelley & Associates Profit Sharing Plan
Trellis Partners II L.P.
UNC Investment Fund LLC
University of California Berkeley Foundation
University of Illinois Foundation
University Technology Investors
WS Investment 99B
Series A-1 Investors
Access Technology Partners
James Adox
Aether Partners L.P.
Aaron Alter
Americanbuoy & Co.
ARCH Entrepreneurs Fund, L.P.
1
ARCH Venture Fund III LP
ARCH Venture Fund IV LP
ARCH Venture Fund IVA L.P.
ARCH Venture Fund VI, L.P.
Jon Bayless
Anand Bellary
Donald Don Brooks
Thomas Brooks
Centerpoint Venture Fund III (Q), L.P.
Centerpoint Venture Fund III, L.P.
Comventures IV CEO Fund L.P.
ComVentures IV Entr. Fund L.P.
ComVentures IV L.P.
Cronus & Co.
Current Ventures II L.P.
Dow Chemical Company
Drutan Investments Ltd.
EDF Ventures L.P.
Patrick Ennis
Enspire Capital Limited
Enterprise Dev. Fund II LP
Deitrich Erdmann
Fullpath Nominess Limited
Hambrecht & Quist California
Hayden H. Harris Living Trust DTD 3-6-98
Clifford Higgerson
Hook Communications Partners LP
Hook Partners V LP
Infrastructure Co-Invest Fund LP
Infrastructure Fund L.P.
InterWest Investors Q VIII
InterWest Investors VII
InterWest Investors VIII
InterWest Partners VII
InterWest Partners VIII
Anthony Jeffries
JP Morgan Partners (BHCA)
Judith A. Thompson Living Trust UTA March 12 1998
Kummell Investments Limited
Beau Laskey
Mary L. Campbell Trust
Mohr Seed Capital II LP
New Enterprise Associates 9 L.P.
New Enterprise Associates 10 L.P.
Northgate Partners, a Delaware Multiple Series LLC
Rahn Group
Ram Rao
Sena Reddy
Rell Family Partners Limited
Rho Management Trust I
Rho Ventures IV (QP) L.P.
Rho Ventures IV GmbH & CO. Beteiligungs KG
2
Rho Ventures IV L.P.
Dave Segre
Sevin Rosen Fund VII L.P.
Sevin Rosen VII Affiliates Fund L.P
Sam Srinivasan
Star Growth Enterprise, a German Civil Law Partnership (with limitation of liability)
Star Management of Investments No. II (2000) L.P.
Star Ventures Managementgesellschaft mbH Nr. 3 & Co. Beteiligungs KG Nr. 3
Sunny Century LLP
SVE Star Ventures Enterprises SVE Star Ventures Enterprises GmbH & Co. No. IX KG
SVM Star Ventures Managementgesellschaft mbH Nr. 3
John Teegen
Thomas A. Kelley & Associates Profit Sharing Plan
Thomas S. Porter Restated Trust dated 7-31-98
Tose Holdings Limited
Trellis Partners II L.P.
UNC Investment Fund LLC
University of California Berkeley Foundation
University of Illinois Foundation
University Technology Investors
Isaac Vaughn
WS Investment 99B
Series B-1 Investors
The Wellcome Trust Limited, as Trustee of The Wellcome Trust
New Enterprise Associates 10, L.P.
New Enterprise Associates 9, L.P.
ARCH Venture Fund III, L.P.
ARCH Venture Fund IV, L.P.
ARCH Venture Fund IVA, L.P.
ARCH Entrepreneurs Fund, L.P.
ARCH Venture Fund VI, L.P.
Beau D. Laskey
Clifford Higgerson
Hayden H. Harris Living Trust DTD 3-6-98
James R. Adox
Northgate Partners, a Delaware Multiple Series LLC
Patrick Ennis
Thomas S. Porter Restated Trust DTD 11-14-05
Trellis Partners II, L.P.
UC Berkeley Foundation
London Pacific Assurance Limited
EDF Ventures II, Limited Partnership
The Infrastructure Fund, LP
The Infrastructure Co-Invest Fund, LP
3
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 1 TO
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and entered into as of November 15, 2007 by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), certain of the holders of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), certain of the holders of the Company’s Series A-1 Convertible Preferred Stock, par value $0.001 per share (“Series A-1 Preferred Stock”), and certain of the holders of the Company’s Series B-1 Convertible Preferred Stock, par value $0.001 per share (“Series B-1 Preferred Stock”), all as set forth on Schedule A attached to this Agreement (collectively, the “Consenting Investors”), and each of the persons set forth on Schedule B attached to this Agreement (each a “New Investor,” and collectively, the “New Investors”).
RECITALS
WHEREAS, the Company, certain of the holders of the Common Stock and each of the holders of Series A-1 Preferred Stock and Series B-1 Preferred Stock previously entered into that certain Amended and Restated Voting Agreement, dated August 1, 2007 (the “Voting Agreement”);
WHEREAS, pursuant to the terms of that certain Agreement and Plan of Merger dated as of November 15, 2007 by and among the Company, ANI Acquisition Corp., and Azea Networks, Inc. (the “Merger Agreement”), each New Investor shall receive shares of Series B-1 Preferred Stock (the “New Shares”);
WHEREAS, as a condition to the closing of the transactions contemplated by the Merger Agreement and the issuance of the New Shares to the New Investors, each New Investor must execute this Amendment and become a party to the Voting Agreement;
WHEREAS, Section 5(d) of the Voting Agreement provides that it may only be amended by a written instrument executed by the Company, the holders of a majority of the shares of Common Stock, and the holders of a majority of the shares of the outstanding capital stock of the Company voting together as a single class on an as converted basis (which majority must include the holders of a majority of the shares of the Series B-1 Preferred Stock); and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Voting Agreement, desire to amend the Voting Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. New Investors. Each New Investor hereby agrees to become a party to the Voting Agreement and to be bound by each and every term thereof. Each of the New Investors listed on Schedule B attached hereto is hereby added to Exhibit A to the Voting Agreement as a Series B-1 Investor, and each New Investor shall be deemed an Investor (as such term is defined the Voting Agreement) for all purposes contained in the Voting Agreement.
2. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
3. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience only and are not to be considered in construing or interpreting this Amendment.
4. Entire Agreement. The Voting Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
23
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
| COMPANY: | ||
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Jon R. Hopper | |
| Jon R. Hopper | ||
| President and Chief Executive Officer | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| CONSENTING INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, | ||
| AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Peter Pereira Gray | |
| Name: | Peter Pereira Gray | |
| Title: | Deputy CIO | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW ENTERPRISE ASSOCIATES 10, | ||
| LIMITED PARTNERSHIP | ||
| By: | NEA Partners 10, Limited Partners | |
| Its General Partner | ||
| By: | /s/ Mark W. Perry | |
| Name: | Mark W. Perry | |
| Title: | General Partner | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
| NEW ENTERPRISE ASSOCIATES 9, | ||
| LIMITED PARTNERSHIP | ||
| By: | NEA Partners 9, Limited Partners | |
| Its General Partner | ||
| By: | /s/ Mark W. Perry | |
| Name: | Mark W. Perry | |
| Title: | General Partner | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
| NEA VENTURES 2000, L.P. | ||
| By: | NEA Partners 9, Limited Partners | |
| Its General Partner | ||
| By: | /s/ Mark W. Perry | |
| Name: | Mark W. Perry | |
| Title: | General Partner | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV A, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| SEVIN ROSEN FUND VII, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
| SEVIN ROSEN VII AFFILIATES FUND, L.P. | ||
| By | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | Vice President | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| COMMUNICATIONS VENTURES IV, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
| COMMUNICATIONS VENTURES IV CEO FUND, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
| COMMUNICATIONS VENTURES IV ENTREPRENEURS’ FUND, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| EDF VENTURES II, LIMITED PARTNERSHIP | ||
| By: | Enterprise Ventures II, Limited Partnership, | |
| Its General Partner | ||
| By: | EDM II, Inc., | |
| Its General Partner | ||
| By: | /s/ Linda M. Fingerle | |
| Authorized Signatory | ||
| EDF VENTURES I, LIMITED PARTNERSHIP | ||
| By: | Enterprise Ventures, Limited Partnership, | |
| Its General Partner | ||
| By: | EDM, Inc., | |
| Its General Partner | ||
| By: | /s/ Linda M. Fingerle | |
| Authorized Signatory | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| THE REGENTS OF THE UNIVERSITY OF MICHIGAN | ||
| By: | /s/ The Regents of the University of Michigan | |
| Executive Director, University of Michigan | ||
| Technology Transfer | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| CLIFFORD H. HIGGERSON |
| /s/ Clifford H. Higgerson |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | Accel Europe Associates L.P., | |
| Its General Partner | ||
| By: | Accel Europe Associates L.L.C. | |
| Its General Partner | ||
| By: | /s/ Accel Europe L.P. | |
| Attorney in Fact | ||
| ACCEL EUROPE INVESTORS 2003 L.P. | ||
| By: | Accel Europe Associates L.L.C. | |
| Its General Partner | ||
| By: | /s/ Accel Europe Associates L.L.C. | |
| Attorney in Fact | ||
| Address: | Accel Partners | |
| 16 St. James St. | ||
| London SW1A 1ER, United Kingdom | ||
| Phone: 011 44 20 7170 1000 | ||
| Facsimile: 011 44 20 7170 1099 | ||
| With a copy to: | ||
| Richard Zamboldi | ||
| Accel Partners | ||
| 428 University Avenue | ||
| Palo Alto, CA 94301 | ||
| Phone: (650) 614-4800 | ||
| Facsimile: (650) 614-4880 | ||
| E-mail: ***@*** | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| ATLAS VENTURE FUND VI, L.P. | ||
| ATLAS VENTURE ENTREPRENEURS’ FUND VI, L.P. | ||
| By: | Atlas Venture Associates VI, L.P. | |
| their general partner | ||
| By: | Atlas Venture Associates VI, Inc. | |
| its general partner | ||
| By: | /s/ Jeanne Larkin Henry | |
| Vice President | ||
| ATLAS VENTURE FUND VI GMBH & CO. KG | ||
| By: | Atlas Venture Associates VI, L.P. | |
| its managing limited partner | ||
| By: | Atlas Venture Associates VI, Inc. | |
| its general partner | ||
| By: | /s/ Jeanne Larkin Henry | |
| Vice President | ||
| Address: | 890 Winter Street | |
| Suite 320 | ||
| Waltham, MA 02451 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| QUESTER VENTURE PARTNERSHIP | ||
| acting by its general partner | ||
| Quester Venture Managers Ltd | ||
| By: | /s/ Sergio Levi | |
| Name: | Sergio Levi | |
| Title: | Director | |
| QUESTER VCT 4 PLC | ||
| By: | /s/ Sergio Levi | |
| Name: | Sergio Levi | |
| Title: | Director | |
| QUESTER VCT 5 PLC | ||
| By: | /s/ Sergio Levi | |
| Name: | Sergio Levi | |
| Title: | Director | |
| Address: | Quester Capital Management Limited | |
| 29 Queen Anne’s Gate | ||
| London | ||
| SW1H 9BU | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| LAGO VENTURES FUND ONE LIMITED | ||
| By: | /s/ Daphne Delaney | |
| Name: | Daphne Delaney | |
| Title: | Director | |
| Address: | Lyford Manor | |
| West Building, Lyford Cay | ||
| PO Box N-7776 (slot 193) | ||
| Nassau, Bahamas | ||
| With a copy to: | ||
| Nadim Nsouli | ||
| 180 Brompton Road | ||
| London SW3 1HQ | ||
| United Kingdom | ||
| CSK-VC SUSTAINABILITY INVESTMENT FUND | ||
| By CSK VENTURE CAPITAL CO., LTD., | ||
| Its Investment Manager | ||
| By: | /s/ Shunichi Ishimura | |
| Name: | Shunichi Ishimura | |
| Title: | President & CEO | |
| Address: | ||
| 5th Fl, Riviera Minami Aoyama Building | ||
| 3-3-3 Minami-Aoyama, Minato-ku, | ||
| Tokyo, 107-0062 | ||
| JAPAN | ||
| Attn: Alessandro Araldi | ||
| Tel: +81-(0)3-5771-6411 | ||
| Fax: +81-(0)3-5771-6412 | ||
| E-mail: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
| TVM V INFORMATION TECHNOLOGY GMBH & CO. KG | ||
| By: | /s/ John J. Dibello | |
| Name: | John J. Dibello | |
| Title: | Managing Limited Partner | |
| By: | /s/ Mark G. Cipriano | |
| Name: | Mark G. Cipriano | |
| Title: | Managing Limited Partner | |
| Address: | ||
| Christopher Cobbold | ||
| TVM Capital | ||
| Maximilianstr. 35, Entrance C | ||
| D-80539 Munich | ||
| Germany | ||
| With a copy to: | ||
| Stefan Fischer | ||
| TVM Capital | ||
| Maximilianstr. 35, Entrance C | ||
| D-80539 Munich | ||
| Germany | ||
| and to: | ||
| Mark G. Cipriano | ||
| TVM Capital | ||
| 101 Arch Street, Suite 1950 | ||
| Boston, MA 02110 | ||
| USA | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED VOTING AGREEMENT
SCHEDULE A
CONSENTING INVESTORS
THE WELLCOME TRUST LIMITED, AS TRUSTEE OF THE WELLCOME TRUST
NEW ENTERPRISE ASSOCIATES 10, L.P.
NEW ENTERPRISE ASSOCIATES 9, L.P.
ARCH VENTURE FUND III, L.P.
ARCH VENTURE FUND IV, L.P.
ARCH ENTREPRENEURS FUND, L.P.
ARCH VENTURE FUND IV A, L.P.
ARCH VENTURE FUND VI, L.P.
SEVIN ROSEN FUND VII, L.P.
SEVIN ROSEN VII AFFILIATES FUND, L.P.
COMMUNICATIONS VENTURES IV, L.P.
COMMUNICATIONS VENTURES IV CEO FUND, L.P.
COMMUNICATIONS VENTURES IV ENTREPRENEURS’ FUND, L.P.
EDF VENTURES II, LIMITED PARTNERSHIP
EDF VENTURES I, LIMITED PARTNERSHIP
REGENTS OF THE UNIVERSITY OF MICHIGAN
SCHEDULE B
NEW INVESTORS
ACCEL EUROPE L.P.
ACCEL EUROPE INVESTORS 2003 L.P.
ATLAS VENTURE FUND VI, L.P.
ATLAS VENTURE FUND VI GMBH & CO. KG
ATLAS VENTURE ENTREPRENEURS’ FUND VI, L.P.
QUESTER VENTURE PARTNERSHIP
QUESTER VCT 4 PLC
QUESTER VCT 5 PLC
LAGO VENTURES FUND ONE LIMITED
TVM V INFORMATION TECHNOLOGY GMBH & CO. KG
CSK-VC SUSTAINABILITY INVESTMENT FUND
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 2 TO
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and entered into as of March 28, 2008 by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), certain of the holders of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), certain of the holders of the Company’s Series A-1 Convertible Preferred Stock, par value $0.001 per share (“Series A-1 Preferred Stock”), and certain of the holders of the Company’s Series B-1 Convertible Preferred Stock, par value $0.001 per share (“Series B-1 Preferred Stock”), all as set forth on Schedule A attached to this Agreement (collectively, the “Consenting Investors”), and each of the persons set forth on Schedule B attached to this Agreement (each a “New Investor,” and collectively, the “New Investors”).
RECITALS
WHEREAS, the Company, certain of the holders of the Common Stock and each of the holders of Series A- I Preferred Stock and Series B-1 Preferred Stock previously entered into that certain Amended and Restated Voting Agreement, dated August 1, 2007, as amended (the “Voting Agreement”);
WHEREAS, pursuant to the terms of that certain Agreement and Plan of Merger dated as of March [ ], 2008 by and among the Company, Meriton Acquisition Corp., and Meriton Networks, Inc. (the “Merger Agreement”), each New Investor shall receive shares of Series B-1 Preferred Stock (the “New Shares”);
WHEREAS, as a condition to the closing of the transactions contemplated by the Merger Agreement and the issuance of the New Shares to the New Investors, each New Investor must execute this Amendment and become a party to the Voting Agreement;
WHEREAS, Section 5(d) of the Voting Agreement provides that it may only be amended by a written instrument executed by the Company, the holders of a majority of the shares of Common Stock, and the holders of a majority of the shares of the outstanding capital stock of the Company voting together as a single class on an as converted basis (which majority must include the holders of a majority of the shares of the Series B-1 Preferred Stock); and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Voting Agreement, desire to amend the Voting Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. New Investors. Each New Investor hereby agrees to become a party to the Voting Agreement and to be bound by each and every term thereof. Each of the New Investors listed on
Schedule B attached hereto is hereby added to Exhibit A to the Voting Agreement as a Series B-1 Investor, and each New Investor shall be deemed an Investor (as such term is defined the Voting Agreement) for all purposes contained in the Voting Agreement.
2. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
3. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience only and are not to be considered in construing or interpreting this Amendment.
4. Entire Agreement. The Voting Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
41
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
| COMPANY: | ||
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW ENTERPRISE ASSOCIATES 10, LIMITED PARTNERSHIP | ||
| By: | NEA Partners 10, Limited Partners | |
| Its General Partner | ||
| By: | /s/ Charles W. Newhall III | |
| Name: | Charles W. Newhall III | |
| Title: | General Partner | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
| NEW ENTERPRISE ASSOCIATES 9, LIMITED PARTNERSHIP | ||
| By: | NEA Partners 9, Limited Partners | |
| Its General Partner | ||
| By: | /s/ Charles W. Newhall III | |
| Name: | Charles W. Newhall III | |
| Title: | General Partner | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
| NEA VENTURES 2000, L.P. | ||
| By: | /s/ Pamela J. Clark | |
| Name: | Pamela J. Clark | |
| Title: | General Partner | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| CSK-VC SUSTAINABILITY INVESTMENT FUND | ||
| By CSK VENTURE CAPITAL CO., LTD., | ||
| Its Investment Manager | ||
| By: | /s/ Hiromichi Tabata | |
| Name: | Hiromichi Tabata | |
| Title: | President & CEO | |
| Address: | ||
| 5th Fl, Riviera Minami Aoyama Building | ||
| 3-3-3 Minami-Aoyama, Minato-ku, | ||
| Tokyo, 107-0062 | ||
| JAPAN | ||
| Attn: Alessandro Araldi | ||
| Tel: +81-(0)3-5771-6411 | ||
| Fax: +81-(0)3-5771-6412 | ||
| E-mail: | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| CONSENTING INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Peter Pereira Gray | |
| Name: | Peter Pereira Gray | |
| Title: | Managing Director, Investments | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| CLIFFORD H. HIGGERSON |
| /s/ Clifford H. Higgerson |
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| COMMUNICATIONS VENTURES IV, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
| COMMUNICATIONS VENTURES IV CEO FUND, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
| COMMUNICATIONS VENTURES IV ENTREPRENEURS’ FUND, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, LLC | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| ATLAS VENTURE FUND VI, L.P. | ||
| ATLAS VENTURE ENTREPRENEURS’ FUND VI, L.P. | ||
| By: | Atlas Venture Associates VI, L.P. | |
| their general partner | ||
| By: | Atlas Venture Associates VI, Inc. | |
| its general partner | ||
| By: | /s/ Jeanne Larkin Henry | |
| Vice President | ||
| ATLAS VENTURE FUND VI GMBH, & Co. KG | ||
| By: | Atlas Venture Associates VI, L.P. | |
| its managing limited partner | ||
| By: | Atlas Venture Associates VI, Inc. | |
| its general partner | ||
| By: | /s/ Jeanne Larkin Henry | |
| Vice President | ||
| Address: | 890 Winter Street | |
| Suite 320 | ||
| Waltham, MA 02451 | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| TVM V INFORMATION TECHNOLOGY GMBH & CO. KG | ||
| By: | /s/ Edward Braginsky | |
| Name: | Edward Braginsky | |
| Title: | Managing Limited Partner | |
| By: | /s/ Mark G. Cipriano | |
| Name: | Mark G. Cipriano | |
| Title: | Managing Limited Partner | |
| Address: | ||
| Christopher Cobbold | ||
| TVM Capital | ||
| Maximilianstr. 35, Entrance C | ||
| D-80539 Munich | ||
| Germany | ||
| With a copy to: | ||
| Stefan Fischer | ||
| TVM Capital | ||
| Maximilianstr. 35, Entrance C | ||
| D-80539 Munich | ||
| Germany | ||
| and to: | ||
| Mark G. Cipriano | ||
| TVM Capital | ||
| 101 Arch Street, Suite 1950 | ||
| Boston, MA 02110 | ||
| USA | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| EDF VENTURES II, LIMITED PARTNERSHIP | ||
| By: | Enterprise Ventures II, Limited Partnership, | |
| Its General Partner | ||
| By: | EDM II, Inc., | |
| Its General Partner | ||
| By: | /s/ Linda M. Fingerle | |
| Authorized Signatory | ||
| EDF VENTURES I, LIMITED PARTNERSHIP | ||
| By: | Enterprise Ventures, Limited Partnership, | |
| Its General Partner | ||
| By: | EDM, Inc., | |
| Its General Partner | ||
| By: | /s/ Linda M. Fingerle | |
| Authorized Signatory | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| ACCEL EUROPE L.P. | ||
| By: | Accel Europe Associates L.P., | |
| Its General Partner | ||
| By: | Accel Europe Associates L.L.C. | |
| Its General Partner | ||
| By: | /s/ Accel Europe L.P. | |
| Attorney in Fact | ||
| ACCEL EUROPE INVESTORS 2003 L.P. | ||
| By: | Accel Europe Associates L.L.C. | |
| Its General Partner | ||
| By: | /s/ Accel Europe Investors 2003 L.P. | |
| Attorney in Fact | ||
| Address: | Accel Partners | |
| 16 St. James St. | ||
| London SW1A 1ER, United Kingdom | ||
| Phone: 011 44 20 7170 1000 | ||
| Facsimile: 011 44 20 7170 1099 | ||
| With a copy to: | ||
| Richard Zamboldi | ||
| Accel Partners | ||
| 428 University Avenue | ||
| Palo Alto, CA 94301 | ||
| Phone: (650) 614-4800 | ||
| E-mail: ***@*** | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV A, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| SEVIN ROSEN FUND VII L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
| SEVIN ROSEN VII AFFILIATES FUND, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| QUESTER VENTURE PARTNERSHIP | ||
| acting by its general partner | ||
| Quester Venture Managers Ltd | ||
| By: | /s/ Sergio Levi | |
| Name: | Sergio Levi | |
| Title: | Director | |
| QUESTER VCT 4 PLC | ||
| By: | /s/ Sergio Levi | |
| Name: | Sergio Levi | |
| Title: | Director | |
| QUESTER VCT 5 PLC | ||
| By: | /s/ Sergio Levi | |
| Name: | Sergio Levi | |
| Title: | Director | |
| Address: | Quester Capital Management Limited | |
| 29 Queen Anne’s Gate | ||
| London | ||
| SW1H 9BU | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS: | ||
| VENTURE COACHES FUND LP | ||
| by its General Partner, | ||
| Venture Coaches Limited | ||
| By: | /s/ Claude Haw | |
| Name: | Claude Haw | |
| Title: | President | |
| Address: | 555 Legget Dr., Tower B, Suite 830 | |
| Kanata, ON K2K 2X3 | ||
| Telephone: | (613) 271-1500 | |
| Facsimile: | (613) 270-1505 | |
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS: | ||||
| VANTAGEPOINT VENTURE PARTNERS IV (Q), LP | ||||
| by VantagePoint Venture Associates IV, LLC | ||||
| its General Partner | ||||
| By: | /s/ Alan E. Salzman | |||
| Name: | Alan E. Salzman | |||
| Title: | Managing Member | |||
| Address: | VantagePoint Venture Partners | |||
| 1001 Bayhill Drive, Suite 300 | ||||
| San Bruno, CA 94066 | ||||
| Facsimile: | ||||
| VANTAGEPOINT VENTURE PARTNERS IV, LP by VantagePoint Venture Associates IV, LLC its General Partner | ||||
| By: | /s/ Alan E. Salzman | |||
| Name: | Alan E. Salzman | |||
| Title: | Managing Member | |||
| Address: | VantagePoint Venture Partners | |||
| 1001 Bayhill Drive, Suite 300 | ||||
| San Bruno, CA 94066 | ||||
| Facsimile: | ||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, LP | ||||
| by VantagePoint Venture Associates IV, LLC | ||||
| its General Partner | ||||
| By: | /s/ Alan E. Salzman | |||
| Name: | Alan E. Salzman | |||
| Title: | Managing Member | |||
| Address: | VantagePoint Venture Partners | |||
| 1001 Bayhill Drive, Suite 300 | ||||
| San Bruno, CA 94066 | ||||
| Facsimile: | ||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| NEWBURY VENTURES III, LP | ||||
| By: | /s/ David J. Kapnick | |||
| Name: | David J. Kapnick | |||
| Title: | Chief Financial Officer | |||
| Address: | 255 Shoreline Drive | |||
| Suite 520 | ||||
| Redwood Shores, CA 94065 | ||||
| Facsimile: | (650) 595-2442 | |||
| NEWBURY VENTURES III GMBH & CO. KG | ||||
| By: | /s/ David J. Kapnick | |||
| Name: | David J. Kapnick | |||
| Title: | Chief Financial Officer | |||
| Address: | 255 Shoreline Drive | |||
| Suite 520 | ||||
| Redwood Shores, CA 94065 | ||||
| Facsimile: | (650) 595-2442 | |||
| NEWBURY VENTURES CAYMAN III, LP | ||||
| By: | /s/ David J. Kapnick | |||
| Name: | David J. Kapnick | |||
| Title: | Chief Financial Officer | |||
| Address: | 255 Shoreline Drive | |||
| Suite 520 | ||||
| Redwood Shores, CA 94065 | ||||
| Facsimile: | (650) 595-2442 | |||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEWBURY VENTURES EXECUTIVES III, LP | ||||
| By: | /s/ David J. Kapnick | |||
| Name: | David J. Kapnick | |||
| Title: | Chief Financial Officer | |||
| Address: | 255 Shoreline Drive | |||
| Suite 520 | ||||
| Redwood Shores, CA 94065 | ||||
| Facsimile: | (650) 595-2442 | |||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS | ||||
| THE VENGROWTH INVESTMENT FUND INC. | ||||
| By: | /s/ Patrick DiPietro | |||
| Name: | Patrick DiPietro | |||
| Title: | Managing General Partner | |||
| By: | /s/ Jay Heller | |||
| Name: | Jay Heller | |||
| Title: | General Partner | |||
| Address: | c/o VenGrowth Capital Management Inc. | |||
| 411 Legget Drive, Suite 705 | ||||
| Kanata, Ontario | ||||
| Canada K2K 3C9 | ||||
| Attention: | Pat DiPietro | |||
| Facsimile: | (613) 591-7377 | |||
| With a copy to: | ||||
| Address: | c/o VenGrowth Capital Management Inc. | |||
| 105 Adelaide Street, | ||||
| West Suite 1000 | ||||
| Toronto, Ontario | ||||
| Canada M5H 1P9 | ||||
| Facsimile: | (416) 971-6519 | |||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS | ||||
| VENGROWTH II INVESTMENT FUND INC. | ||||
| By: | /s/ Patrick DiPietro | |||
| Name: | Patrick DiPietro | |||
| Title: | Managing General Partner | |||
| By: | /s/ Jay Heller | |||
| Name: | Jay Heller | |||
| Title: | General Partner | |||
| Address: | c/o VenGrowth Capital Management Inc. | |||
| 411 Legget Drive, Suite 705 | ||||
| Kanata, Ontario | ||||
| Canada K2K 3C9 | ||||
| Attention: Pat DiPietro | ||||
| Facsimile: | (613) 591-7377 | |||
| With a copy to: | ||||
| Address: | c/o VenGrowth Capital Management Inc. | |||
| 105 Adelaide Street, | ||||
| West Suite 1000 | ||||
| Toronto, Ontario | ||||
| Canada M5H 1P9 | ||||
| Attention: Jay Heller | ||||
| Facsimile: | (416) 971-6519 | |||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS | ||||
| VENGROWTH III INVESTMENT FUND INC. | ||||
| By: | /s/ Patrick DiPietro | |||
| Name: | Patrick DiPietro | |||
| Title: | Managing General Partner | |||
| By: | /s/ Jay Heller | |||
| Name: | Jay Heller | |||
| Title: | General Partner | |||
| Address: | c/o VenGrowth Capital Management Inc. | |||
| 411 Legget Drive, Suite 705 | ||||
| Kanata, Ontario | ||||
| Canada K2K 3C9 | ||||
| Attention: Pat DiPietro | ||||
| Facsimile: | (613 ###-###-#### | |||
| With a copy to: | ||||
| Address: | c/o VenGrowth Capital Management Inc. | |||
| 105 Adelaide Street, | ||||
| West Suite 1000 | ||||
| Toronto, Ontario | ||||
| Canada M5H 1P9 | ||||
| Attention: Jay Heller | ||||
| Facsimile: | (416) 971-6519 | |||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS: | ||||||
| KLAUS BUSCH | ||||||
|
| By: | /s/ Klaus Busch | ||||
| Witness | ||||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS: | ||||||
| MICHAEL PASCOE | ||||||
|
| By: | /s/ Michael Pascoe | ||||
| Witness | Michael Pascoe | |||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| JERUSALEM VENTURE PARTNERS IV, L.P. | JERUSALEM VENTURE PARTNERS IV-A, L.P. | |||||||
| By: | /s/ Jerusalem Venture Partners IV, LP | By: | /s/ Jerusalem Venture Partners IV-A, LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| Address: | 7 West 22nd Street, 7th Floor | Address: | 7 West 22nd Street, 7th Floor | |||||
| New York, NY 10010 | New York, NY 10010 | |||||||
| JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND IV, L.P. | JERUSALEM VENTURE PARTNERS IV (ISRAEL), L.P. | |||||||
| By: | /s/ Jerusalem Venture Partners Entrepreneurs Fund IV, LP | By: | /s/ Jerusalem Venture Partners IV (Israel), LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| Address: | 7 West 22nd Street, 7th Floor | Address: | Jerusalem Technology Park, Bldg. 1 | |||||
| New York, NY 10010 | Malha, Jerusalem 91487 | |||||||
| ISRAEL | ||||||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS | ||||
| DESJARDINS VENTURE CAPITAL, L.P., formerly known as ID, Limited Partnership herein acting by Desjardins Venture Capital Inc., | ||||
| its general partner | ||||
| By: | /s/ Lue Menard | |||
| Name: | Lue Menard | |||
| Title: | Sector Director | |||
| By: | /s/ Leon Lajoie | |||
| Name: | Leon Lajoie | |||
| Title: | Investement Director | |||
| Address: | 2 Complex e Desjardins | |||
| Suite 1717 | ||||
| Montreal, Quebec | ||||
| Canada H5B 1B8 | ||||
| Facsimile: | (514) 281-7808 | |||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED VOTING AGREEMENT
SCHEDULE A
CONSENTING INVESTORS
THE WELLCOME TRUST LIMITED, AS TRUSTEE OF THE WELLCOME TRUST
NEW ENTERPRISE ASSOCIATES 10, L.P.
NEW ENTERPRISE ASSOCIATES 9, L.P.
ARCH VENTURE FUND III, L.P.
ARCH VENTURE FUND IV, L.P.
ARCH ENTREPRENEURS FUND, L.P.
ARCII VENTURE FUND IV A, L.P.
ARCH VENTURE FUND VI, L.P.
SEVIN ROSEN FUND VII, L.P.
SEVIN ROSEN VII AFFILIATES FUND, L.P.
COMMUNICATIONS VENTURES IV, L.P.
COMMUNICATIONS VENTURES IV CEO FUND, L.P.
COMMUNICATIONS VENTURES IV ENTREPRENEURS’ FUND, L.P.
EDF VENTURES II, LIMITED PARTNERSHIP
EDF VENTURES I, LIMITED PARTNERSHIP
REGENTS OF THE UNIVERSITY OF MICHIGAN
ACCEL EUROPE L.P.
ACCEL EUROPE INVESTORS 2003 L.P.
ATLAS VENTURE FUND VI, L.P.
ATLAS VENTURE FUND VI GMBH & CO. KG
ATLAS VENTURE ENTREPRENEURS’ FUND VI, L.P.
QUESTER VENTURE PARTNERSHIP
QUESTER VCT 4 PLC
QUESTER VCT 5 PLC
LAGO VENTURES FUND ONE LIMITED
TVM V INFORMATION TECHNOLOGY GMBH & CO. KG
CSK-VC SUSTAINABILITY INVESTMENT FUND
2
SCHEDULE B
NEW INVESTORS
VANTAGEPOINT VENTURE PARTNERS IV (Q), LP
VANTAGEPOINT VENTURE PARTNERS IV, LP
VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, LP
NEWBURY VENTURES III, LP
NEWBURY VENTURES HI GMBH & Co. KG
NEWBURY VENTURES CAYMAN HI, LP
NEWBURY VENTURES EXECUTIVES III, LP
DESJARDINS VENTURE CAPITAL, L.P.
JERUSALEM VENTURE PARTNERS IV, L.P.
JERUSALEM VENTURE PARTNERS IV-A, L.P.
JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND IV, L.P.
JERUSALEM VENTURE PARTNERS IV (ISRAEL), L.P.
VENTURE COACHES FUND LP
KLAUS BUSCH
MICHAEL PASCOE
THE VENGROWTH INVESTMENT FUND INC.
THE VENGROWTH II INVESTMENT FUND INC.
THE VENGROWTH III INVESTMENT FUND INC.
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 3 TO
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and entered into as of November 3, 2009 by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), certain of the holders of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), certain of the holders of the Company’s Series A-2 Convertible Preferred Stock, par value $0.001 per share (“Series A-2 Preferred Stock”), and certain of the holders of the Company’s Series B-2 Convertible Preferred Stock, par value $0.001 per share (“Series B-2 Preferred Stock”), all as set forth on Schedule A attached to this Agreement (collectively, the “Consenting Investors”), and each of the persons set forth on Schedule B attached to this Agreement (each a “New Investor,” and collectively, the “New Investors”).
RECITALS
WHEREAS, the Company, certain of the holders of the Common Stock, Series A-1 Preferred Stock and Series B-1 Preferred Stock previously entered into that certain Amended and Restated Voting Agreement, dated August 1, 2007, as amended (the “Voting Agreement”);
WHEREAS, Section 5(d) of the Voting Agreement provides that it may only be amended by a written instrument executed by the Company, the holders of a majority of the shares of Common Stock, and the holders of a majority of the shares of the outstanding capital stock of the Company voting together as a single class on an as converted basis (which majority must include the holders of a majority of the shares of the Series B-1 Preferred Stock);
WHEREAS, pursuant to the terms of that certain Note and Warrant Purchase Agreement dated May 5, 2009, participating Investors exchanged their shares of Series A-1 Preferred Stock and Series B-1 Preferred Stock for shares of Series A-2 Preferred Stock and Series B-2 Preferred Stock;
WHEREAS, pursuant to the Amended and Restated Certificate of Incorporation of the Company as filed with the Delaware Secretary of State on May 5, 2009, each share of Series A-1 Preferred and Series B-1 Preferred outstanding on May 31, 2009 automatically converted into one share of Common Stock;
WHEREAS, pursuant to the terms of that certain Series C-2 Preferred Stock Purchase Agreement by and among the Company and Investors purchasing shares of the Company’s Series C-2 Preferred Stock, par value $0.001 per share (the “Series C-2 Preferred Stock”), and dated on or about the date hereof (the “Purchase Agreement”), each New Investor shall receive shares of Series C-2 Preferred Stock (the “New Shares”);
WHEREAS, as a condition to the closing of the transactions contemplated by the Purchase Agreement and the issuance of the New Shares to the New Investors, each New Investor must execute this Amendment and become a party to the Voting Agreement;
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Voting Agreement, desire to amend the Voting Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. New Investors. Each New Investor hereby agrees to become a party to the Voting Agreement and to be bound by each and every term thereof. Each of the New Investors listed on Schedule B attached hereto is hereby added to Exhibit A to the Voting Agreement as a Series C-2 Investor, and each New Investor shall be deemed an Investor (as such term is defined the Voting Agreement) for all purposes contained in the Voting Agreement.
2. Amended Provisions. The Voting Agreement is hereby amended such that:
The introductory paragraph is hereby replaced in its entirety with the following:
“This Amended and Restated Voting Agreement (the “Agreement”) is made as of August 1, 2007, by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), those certain holders of the Company’s Common Stock set forth on Exhibit A attached to this Agreement (individually, a “Common Stockholder,” and collectively, the “Common Stockholders”), and the holders of the Preferred Stock (as defined herein) of the Company set forth on Exhibit B attached to this Agreement (individually, an “Investor,” collectively, the “Investors,” and together with the Common Stockholders, the “Stockholders”).”
The first and fifth Recitals are hereby replaced in their entirety with the following:
“The Company and certain of the Investors are parties to a Stock Purchase Agreement, (as amended or otherwise modified from time to time, the “Purchase Agreement”), pursuant to which the Company has agreed to sell, and such Investors have agreed to purchase, shares of a series of Preferred Stock of the Company, subject to certain conditions, including the execution and delivery of this Agreement;”
“To induce the Investors to enter into the Purchase Agreement and purchase shares of Preferred Stock thereunder, the Company, the Investors desire to enter into this Agreement to set forth certain rights and obligations of the Stockholders;”
Clause (A) in the first sentence of Section 1(b) “IPO” is hereby deleted.
Clause (B) in the first sentence of Section 1(b) “IPO” hereby replaced in its entirety with the following:
“(A) with respect to which the Corporation receives aggregate net proceeds (after deduction of underwriting discounts and commissions) of not less than $50,000,000”
Clause (C) in the first sentence of Section 1(b) “IPO” is hereby relabeled Clause (B).
The following definitions are added to Section 1 Certain Definitions and the numbering of the remaining definitions shall be adjusted accordingly to maintain the alphabetical ordering of the terms:
“(d) “Preferred Stock” means the Series A-2 Convertible Preferred Stock, Series B-2 Convertible Preferred Stock and Series C-2 Convertible Preferred Stock.”
71
The reference to “Series B-1” in Clause (iii) of Section 5(d) Amendment is hereby replaced with term “Series C-2.”
3. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
4. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience only and are not to be considered in construing or interpreting this Amendment.
5. Entire Agreement. The Voting Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
72
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
| COMPANY: | ||
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, | ||
| AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Peter Pereira Gray | |
| Name: | Peter Pereira Gray | |
| Title: | General Partner | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, L.P. | |
| Its General Partner | ||
| By: | /s/ Louis S. Citron | |
| Name: | Louis S. Citron | |
| Title: | Attorney-In-Fact | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
| NEW ENTERPRISE ASSOCIATES 9, L.P. | ||
| By: | NEA Partners 9, L.P. | |
| Its General Partner | ||
| By: | /s/ Louis S. Citron | |
| Name: | Louis S. Citron | |
| Title: | Attorney-In-Fact | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| ARCH VENTURE FUND III, L.P. | ||||
| By: | ARCH Venture Partners, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IV, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IVA, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH ENTREPRENEURS FUND, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND VI, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE INFRASTRUCTURE FUND, LP | ||
| By: | IF MANAGEMENT COMPANY, LLC, | |
| Its General Partner | ||
| By: | /s/ Peter Hankin | |
| Name: | Peter Hankin | |
| Title: | Managing Member | |
| Address: | 2710 Sand Hill Road | |
| Building 3, Suite 255 | ||
| Menlo Park, CA 94025 | ||
| THE INFRASTRUCTURE CO-INVEST FUND, LP | ||
| By: | IF MANAGEMENT COMPANY, LLC, | |
| Its General Partner | ||
| By: | /s/ Peter Hankin | |
| Name: | Peter Hankin | |
| Title: | Managing Member | |
| Address: | 2710 Sand Hill Road | |
| Building 3, Suite 255 | ||
| Menlo Park, CA 94025 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| TRELLIS PARTNERS II, L.P. | ||
| By: | Trellis Management II, L.P., | |
| Its General Partner | ||
| By: | /s/ Trellis Partners II, LP | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| UC BERKELEY FOUNDATION | ||
| By: | /s/ Lina Wang | |
| Name: | Lina Wang | |
| Title: |
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| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
| By: | /s/ Loraine Binion | |
| Name: | Loraine Binion | |
| Title: | Interim Treasurer | |
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| LONDON PACIFIC ASSURANCE LIMITED | ||
| By: | /s/ Robert A. Cornman | |
| Name: | Robert A. Cornman | |
| Title: | Director | |
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| HAYDEN H. HARRIS LIVING TRUST DTD. 3-6-98 | ||
| By: | /s/ Hayden Harris | |
| Name: | Hayden Harris | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau D. Laskey | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS S. PORTER RESTATED TRUST DTD. 11-14-05 | ||
| By: | /s/ Thomas S. Porter | |
| Name: | Thomas S. Porter | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | /s/ Accel Europe L.P. | |
| Name: | Accel Europe L.P. | |
| Title: | Attorney in Fact | |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
| ACCEL EUROPE INVESTORS 2003, L.P. | ||
| By: | /s/ Accel Europe Investors 2003, LP | |
| Name: | Accel Europe Investors 2003, LP | |
| Title: | Attorney in Fact | |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JON BAYLESS | ||
| /s/ Jon Bayless | ||
| Address: | 13455 Noel Road, Suite 1670 | |
| Two Galleria Tower | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| JERUSALEM VENTURE PARTNERS IV, LP | JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND V, LP | |||||||
| By: | /s/ Jerusalem Venture Partners IV, LP | By: | /s/ Jerusalem Venture Partners IV-A, LP | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address: | 24 Hebron Road | Address: | 7 West 22nd Street 7th floor | |||||
| Jerusalem, Israel 93542 | NY, NY 10010 | |||||||
| JERUSALEM VENTURE PARTNERS IV-A, LP | JERUSALEM VENTURE PARTNERS IV (ISRAEL), LP | |||||||
| By: | /s/ Jerusalem Venture Partners Entrepreneurs Fund IV, LP | By: | /s/ Jerusalem Venture Partners IV (Israel), LP | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address: | 7 West 22nd Street 7th floor | Address: | 24 Hebron Road | |||||
| NY, NY 10010 | Jerusalem, Israel 93542 | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| LAGO VENTURES FUND ONE LIMITED | ||
| By: | /s/ Arvind Gulati | |
| Name: | Arvind Gulati | |
| Title: | Director Representative | |
| Address: | c/o Tradeinvest Asset Management Ltd. | |
| Lyford Manor, West Building | ||
| West Bay Street | ||
| Lyford Cay, N. P., The Bahamas | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| DOW CHEMICAL COMPANY | ||
| By: | /s/ Dow Chemical Company | |
| Name: |
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| Title: |
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| Address: | 2030 Dow Center | |
| Midland, Michigan 48674 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| NEWBURY VENTURES III, LP | NEWBURY VENTURES CAYMAN III, LP | |||||||
| By: | /s/ Newbury Ventures III, LP | By: | /s/ Newbury Ventures Cayman III, LP | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | Address* | |||||||
| NEWBURY VENTURES III GMBH &CO KG | NEWBURY VENTURES EXECUTIVES III, LP | |||||||
| By: | /s/ Newbury Ventures III GMBH & CO KG | By: | /s/ Newbury Ventures Executives III, LP | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | *Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| QUESTER VENTURE PARTNERSHIP | ||
| By: | /s/ Quester Venture Partnership | |
| Name: |
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| Title: |
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| Address: | 33 Glasshouse Street | |
| London W1B 5DG | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| SPARK VCT 2 plc | ||
| By: | /s/ Spark VCT 2 plc | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| STAR GROWTH ENTERPRISE | STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 & CO. | |||||||
| By: | /s/ Star Growth Enterprise | By: | /s/ Star Ventures ManagementGesellschaft MBH Nr. 3 & Co. | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | Address* | |||||||
| STAR MANAGEMENT OF INVESTMENTS NO. II (2000) L.P. | SVE STAR VENTURES ENTERPRISES | |||||||
| By: | /s/ Star Management of Investments No. II (2000) L.P. | By: | /s/ SVE Star Ventures Enterprises | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | Address* | |||||||
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 | *Address: |
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| By: | /s/ SVM Star Ventures ManagementGesellschaft MBH NR. 3 | |||||||
| Name: |
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| Title: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE RAHN GROUP | ||
| By: | /s/ The Rahn Group | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||||
| RHO MANAGEMENT TRUST I | RHO VENTURES IV GMBH & CO. BETEILIGUNGS KG | |||||||||
| By: | RHO CAPITAL PARTNERS INC. | By: | RHO CAPITAL PARTNERS VERWALTONGS GMBH | |||||||
| By: | /s/ Rho Capital Partners Inc. | By: | /s/ Rho Capital Partners Verwaltongs GMBH | |||||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | Address* | |||||||||
| RHO VENTURES IV (QP) L.P. | RHO VENTURES IV L.P. | |||||||||
| By: | RHO MANAGEMENT VENTURES, IV, LLC | By: | RHO MANAGEMENT VENTURES IV, L.L.C. | |||||||
| By: | /s/ Rho Management Ventures, IV, LLC | By: | /s/ Rho Management Ventures IV, LLC | |||||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | *Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| SEVIN ROSEN FUND VII, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| SEVIN ROSEN VII AFFILIATES FUND, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | ||
| 13455 Noel Rd., Suite 1670 | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| TVM V INFORMATION TECHNOLOGY | ||
| GMBH & CO. KG | ||
| By: | /s/ Mark G. Cipriano | |
| Name: | Mark G. Cipriano | |
| Title: | Managing Limited Partner | |
| Address: | TVM Capital | |
| 101 Arch Street, Suite 1950 | ||
| Boston, MA 02110 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| VANTAGEPOINT VENTURE PARTNERS IV, LP | VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, LP | |||||||
| By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | |||||
| By: | /s/ VantagePoint Venture Associates IV, LLC | By: | /s/ VantagePoint Venture Associates IV, LLC | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| *Address | *Address | |||||||
| VANTAGEPOINT VENTURE PARTNERS IV (Q), LP | ||||||||
| By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | *Address: |
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| By: | /s/ VantagePoint Venture Associates IV, LLC | |||||||
| Name: |
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| Title: |
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| *Address | ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| CENTERPOINT VENTURE FUND III (Q), L.P. | ||||
| By: | CENTERPOINT ASSOCIATES III, L.P. | |||
| CENTERPOINT ASSOCIATES | ||||
| MANAGEMENT III, L.L.C. | ||||
| By: | /s/ CenterPoint Associates III, LP | |||
| Name: |
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| Title: |
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| Address: |
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| CENTERPOINT VENTURE FUND III, L.P. | ||||
| By: | CENTERPOINT ASSOCIATES III, L.P. | |||
| CENTERPOINT ASSOCIATES | ||||
| MANAGEMENT III, L.L.C. | ||||
| By: | /s/ CenterPoint Associates III, LP | |||
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| ANTHONY JEFFRIES | ||||
| /s/ Anthony Jeffries | ||||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MOHR SEED CAPITAL II LP | ||
| By: | /s/ Mohr Seed Capital II LP | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| RELL FAMILY PARTNERS LIMITED | ||
| By: | /s/ Rell Family Partners Limited | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| DAVE SEGRE | ||
| /s/ Dave Segre | ||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JOHN TEEGAN | ||
| /s/ John Teegan | ||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS A. KELLEY & ASSOCIATES | ||
| PROFIT SHARING PLAN | ||
| By: | /s/ Thomas A. Kelley & Associates Profit Sharing Plan | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| UNIVERSITY OF ILLINOIS | ||
| FOUNDATION | ||
| By: | /s/ University of Illinois Foundation | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| WS INVESTMENT 99B | ||
| By: | /s/ WS Investment 99B | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| NORTHGATE PARTNERS LLC, | ||
| A DELAWARE MULTIPLE SERIES LLC | ||
| By: | /s/ Northgate Partners LLC | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MARY L. CAMPBELL TRUST | ||
| By: | EDF Ventures | |
| Its Managing Director | ||
| By: | /s/ EDF Ventures | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MIKE PASCOE | ||
| /s/ Mike Pascoe | ||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| BERKELEY INTERNATIONAL CAPITAL | ||
| By: | /s/ Berkeley International Capital | |
| Name: |
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| Title: |
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| Address: | 650 California Street, 26th Floor | |
| San Francisco, CA 94108 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO AMENDED AND RESTATED VOTING AGREEMENT
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 4 TO
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and entered into as of May 17, 2010 by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), certain of the holders of the Company’s Series A-2 Convertible Preferred Stock, par value $0.001 per share (“Series A-2 Preferred Stock”), certain of the holders of the Company’s Series B-2 Convertible Preferred Stock, par value $0.001 per share (“Series B-2 Preferred Stock”) and certain of the holders of the Company’s Series C-2 Convertible Preferred Stock, par value $0.001 per share (“Series C-2 Preferred Stock”), all as set forth on Schedule A attached to this Amendment (collectively, the “Consenting Investors”), and each of the persons set forth on Schedule B attached to this Amendment (each a “New Investor,” and collectively, the “New Investors”).
RECITALS
WHEREAS, the Company, certain of the holders of the Common Stock, Series A-2 Preferred Stock, Series B-2 Preferred Stock and Series C-2 Preferred Stock previously entered into that certain Amended and Restated Voting Agreement, dated August 1, 2007, as amended (the “Voting Agreement”);
WHEREAS, Section 5(d) of the Voting Agreement provides that it may only be amended by a written instrument executed by the Company, the holders of a majority of the shares of Common Stock, and the holders of a majority of the shares of the outstanding capital stock of the Company voting together as a single class on an as converted basis (which majority must include the holders of a majority of the shares of the Series C-2 Preferred Stock);
WHEREAS, pursuant to the terms of that certain Share Purchase Agreement dated May , 2010 by and among the Company and the shareholders of Polariq Limited, a private limited company duly incorporated and in good standing under the laws of England and Wales (the “Purchase Agreement”), each New Investor shall receive shares of Series C-2 Preferred Stock (the “New Shares”);
WHEREAS, as a condition to the closing of the transactions contemplated by the Purchase Agreement and the issuance of the New Shares to the New Investors, each New Investor must execute this Amendment and become a party to the Investor Rights Agreement; and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Voting Agreement, desire to amend the Voting Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. New Investors. Each New Investor hereby agrees to become a party to the Voting Agreement and to be bound by each and every term thereof. Each of the New Investors listed on Schedule B attached hereto is hereby added to Exhibit A to the Voting Agreement as a Series C-2 Investor, and each New Investor shall be deemed an Investor (as such term is defined the Voting Agreement) for all purposes contained in the Voting Agreement.
2. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
3. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience only and are not to be considered in construing or interpreting this Amendment.
4. Entire Agreement. The Voting Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
115
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
| COMPANY: | ||
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, | ||
| AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Peter Pereira Gray | |
| Name: | Peter Pereira Gray | |
| Title: | General Partner | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, L.P. | |
| Its General Partner | ||
| By: | /s/ Louis S. Citron | |
| Name: | Louis S. Citron | |
| Title: | Attorney-in-Fact | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
| NEW ENTERPRISE ASSOCIATES 9, L.P. | ||
| By: | NEA Partners 9, L.P. | |
| Its General Partner | ||
| By: | /s/ Louis S. Citron | |
| Name: | Louis S. Citron | |
| Title: | Attorney-in-Fact | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| ARCH VENTURE FUND III, L.P. | ||||
| By: | ARCH Venture Partners, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IV, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IVA, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH ENTREPRENEURS FUND, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND VI, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ Clinton W. Bybee | |||
| Its: | Managing Director | |||
| Address: |
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|
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE INFRASTRUCTURE FUND, LP | ||
| By: | IF MANAGEMENT COMPANY, LLC, | |
| Its General Partner | ||
| By: | /s/ Peter Hankin | |
| Name: | Peter Hankin | |
| Title: | Managing Member | |
| Address: | 2710 Sand Hill Road | |
| Building 3, Suite 255 | ||
| Menlo Park, CA 94025 | ||
| THE INFRASTRUCTURE CO-INVEST FUND, LP | ||
| By: | IF MANAGEMENT COMPANY, LLC, | |
| Its General Partner | ||
| By: | /s/ Peter Hankin | |
| Name: | Peter Hankin | |
| Title: | Managing Member | |
| Address: | 2710 Sand Hill Road | |
| Building 3, Suite 255 | ||
| Menlo Park, CA 94025 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| TRELLIS PARTNERS II, L.P. | ||
| By: | Trellis Management II, L.P., | |
| Its General Partner | ||
| By: | /s/ Alexander C. Broeker | |
| Name: | Alexander C. Broeker | |
| Title: | General Partner | |
| Address: | 2600 Via Fortuna, Suite 150 | |
| Austin, Texas 78746 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| UC BERKELEY FOUNDATION | ||
| By: | /s/ Lina Wang | |
| Name: | Lina Wang | |
| Title: |
| |
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
| By: | /s/ Loraine Binion | |
| Name: | Loraine Binion | |
| Title: | Interim Treasurer | |
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| LONDON PACIFIC ASSURANCE LIMITED | ||
| By: | /s/ Robert A. Cornman | |
| Name: | Robert A. Cornman | |
| Title: | Director | |
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| HAYDEN H. HARRIS LIVING TRUST DTD. 3-6-98 | ||
| By: | /s/ Hayden Harris | |
| Name: | Hayden Harris | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau D. Laskey | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS S. PORTER RESTATED TRUST DTD. 11-14-05 | ||
| By: | /s/ Thomas S. Porter | |
| Name: | Thomas S. Porter | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | /s/ Accel Europe L.P. | |
| Name: | Accel Europe L.P. | |
| Title: | Attorney-in-Fact | |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
| ACCEL EUROPE INVESTORS 2003, L.P. | ||
| By: | /s/ Accel Europe Investors 2003, LP | |
| Name: | Accel Europe Investors 2003, LP | |
| Title: | Attorney-in-Fact | |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JON BAYLESS | ||
| /s/ Jon Bayless | ||
| Address: | 13455 Noel Road, Suite 1670 | |
| Two Galleria Tower | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| JERUSALEM VENTURE PARTNERS IV, LP | JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND V, LP | |||||||
| By: | /s/ Jerusalem Venture Partners IV, LP | By: | /s/ Jerusalem Venture Partners IV-A, LP | |||||
| Name: |
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| Title: |
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| Address: | 24 Hebron Road | Address: | 7 West 22nd Street 7th floor | |||||
| Jerusalem, Israel 93542 | NY, NY 10010 | |||||||
| JERUSALEM VENTURE PARTNERS IV-A, LP | JERUSALEM VENTURE PARTNERS IV (ISRAEL), LP | |||||||
| By: | /s/ Jerusalem Venture Partners Entrepreneurs Fund IV, LP | By: | /s/ Jerusalem Venture Partners IV (Israel), LP | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address: | 7 West 22nd Street 7th floor | Address: | 24 Hebron Road | |||||
| NY, NY 10010 | Jerusalem, Israel 93542 | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| LAGO VENTURES FUND ONE LIMITED | ||
| By: | /s/ Arvind Gulati | |
| Name: | Arvind Gulati | |
| Title: | Director Representative | |
| Address: | c/o Tradeinvest Asset Management Ltd. | |
| Lyford Manor, West Building | ||
| West Bay Street | ||
| Lyford Cay, N. P., The Bahamas | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| DOW CHEMICAL COMPANY | ||
| By: | /s/ Dow Chemical Company | |
| Name: |
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| Title: |
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| Address: | 2030 Dow Center | |
| Midland, Michigan 48674 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| NEWBURY VENTURES III, LP | NEWBURY VENTURES CAYMAN III, LP | |||||||
| By: | /s/ Newbury Ventures III, LP | By: | /s/ Newbury Ventures Cayman III, LP | |||||
| Name: |
| Name: |
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| Title: |
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| Address* | Address* | |||||||
| NEWBURY VENTURES III GMBH &CO KG | NEWBURY VENTURES EXECUTIVES III, LP | |||||||
| By: | /s/ Newbury Ventures III GMBH & CO KG | By: | /s/ Newbury Ventures Executives III, LP | |||||
| Name: |
| Name: |
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| Title: |
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| Address* | *Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| QUESTER VENTURE PARTNERSHIP | ||
| By: | /s/ Quester Venture Partnership | |
| Name: |
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| Title: |
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| Address: | 33 Glasshouse Street | |
| London W1B 5DG | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| SPARK VCT 2 plc | ||
| By: | /s/ Spark VCT 2 plc | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| STAR GROWTH ENTERPRISE | STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 & CO. | |||||||
| By: | /s/ Dr. Meir Barel | By: | /s/ Dr. Meir Barel | |||||
| Name: | Dr. Meir Barel | Name: | Dr. Meir Barel | |||||
| Title: | Director | Title: | Director | |||||
| Address* | Address* | |||||||
| STAR MANAGEMENT OF INVESTMENTS NO. II (2000) L.P. | SVE STAR VENTURES ENTERPRISES | |||||||
| By: | /s/ Dr. Meir Barel | By: | /s/ Dr. Meir Barel | |||||
| Name: | Dr. Meir Barel | Name: | Dr. Meir Barel | |||||
| Title: | Director | Title: | Director | |||||
| Address* | Address* | |||||||
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 | *Address: c/o SVM Star Ventures Managementgesellschaft mbH Nr. 3 Possartstrasse 9; D-81679 Munich; Germany | |||||||
| By: | /s/ Dr. Meir Barel | |||||||
| Name: | Dr. Meir Barel | |||||||
| Title: | Director | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE RAHN GROUP | ||
| By: | /s/ The Rahn Group | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||||
| RHO MANAGEMENT TRUST I | RHO VENTURES IV GMBH & CO. BETEILIGUNGS KG | |||||||||
| By: | RHO CAPITAL PARTNERS INC. | By: | RHO CAPITAL PARTNERS VERWALTONGS GMBH | |||||||
| By: | /s/ Rho Capital Partners Inc. | By: | /s/ Rho Capital Partners Verwaltongs GMBH | |||||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| Address* | Address* | |||||||||
| RHO VENTURES IV (QP) L.P. | RHO VENTURES IV L.P. | |||||||||
| By: | RHO MANAGEMENT VENTURES, IV, LLC | By: | RHO MANAGEMENT VENTURES IV, L.L.C. | |||||||
| By: | /s/ Rho Management Ventures, IV, LLC | By: | /s/ Rho Management Ventures IV, LLC | |||||||
| Name: |
| Name: |
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| Title: |
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| Address* | *Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| SEVIN ROSEN FUND VII, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| SEVIN ROSEN VII AFFILIATES FUND, L.P. | ||
| By: | SRB ASSOCIATES VII L.P., | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| *Address | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| TVM V INFORMATION TECHNOLOGY GMBH & CO. KG | ||
| By: | /s/ Mark G. Cipriano | |
| Name: | Mark G. Cipriano | |
| Title: | Managing Limited Partner | |
| Address: | TVM Capital | |
| 101 Arch Street, Suite 1950 | ||
| Boston, MA 02110 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||||||
| VANTAGEPOINT VENTURE PARTNERS IV, LP | VANTAGEPOINT VENTURE PARTNERS IV PRINCIPALS FUND, LP | |||||||
| By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | |||||
| By: | /s/ VantagePoint Venture Associates IV, LLC | By: | /s/ VantagePoint Venture Associates IV, LLC | |||||
| Name: |
| Name: |
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| Title: |
| Title: |
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| *Address | *Address | |||||||
| VANTAGEPOINT VENTURE PARTNERS IV (Q), LP | ||||||||
| By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | *Address: |
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| By: | /s/ VantagePoint Venture Associates IV, LLC | |||||||
| Name: |
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| Title: |
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| *Address | ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| CENTERPOINT VENTURE FUND III (Q), L.P. | ||||
| By: | CENTERPOINT ASSOCIATES III, | |||
| L.P. | ||||
| CENTERPOINT ASSOCIATES MANAGEMENT III, L.L.C. | ||||
| By: | /s/ CenterPoint Associates III, LP | |||
| Name: |
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| Title: |
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| Address: |
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| CENTERPOINT VENTURE FUND III, L.P. | ||||
| By: | CENTERPOINT ASSOCIATES III, L.P. | |||
| CENTERPOINT ASSOCIATES MANAGEMENT III, L.L.C. | ||||
| By: | /s/ CenterPoint Associates III, LP | |||
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| ANTHONY JEFFRIES | ||||
| /s/ Anthony Jeffries | ||||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MOHR SEED CAPITAL II LP | ||
| By: | /s/ Mohr Seed Capital II LP | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| RELL FAMILY PARTNERS LIMITED | ||
| By: | /s/ Rell Family Partners Limited | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| DAVE SEGRE | ||
| /s/ Dave Segre | ||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JOHN TEEGAN | ||
| /s/ John Teegan | ||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS A. KELLEY & ASSOCIATES PROFIT SHARING PLAN | ||
| By: | /s/ Thomas A. Kelley & Associates Profit Sharing Plan | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| UNIVERSITY OF ILLINOIS FOUNDATION | ||
| By: | /s/ University of Illinois Foundation | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| WS INVESTMENT 99B | ||
| By: | /s/ WS Investment 99B | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| NORTHGATE PARTNERS LLC, | ||
| A DELAWARE MULTIPLE SERIES LLC | ||
| By: | /s/ Northgate Partners LLC | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MARY L. CAMPBELL TRUST | ||
| By: | EDF Ventures | |
| Its Managing Director | ||
| By: | /s/ EDF Ventures | |
| Name: |
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| Title: |
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| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MIKE PASCOE | ||
| /s/ Mike Pascoe | ||
| Address: |
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COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| BERKELEY INTERNATIONAL CAPITAL | ||
| By: | /s/ Berkeley International Capital | |
| Name: |
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| Title: |
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| Address: | 650 California Street, 26th Floor | |
| San Francisco, CA 94108 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
| NEW INVESTORS: | ||
| Timothy Russell Davison as Trustee under a Declaration of Trust dated 30 April 2010 | ||
| /s/ Timothy Russell Davison | ||
| Authorized Signatory, | ||
| Timothy Russell Davison | ||
| INDEPENDENT WEALTH MANAGEMENT CONSULTANTS LIMITED | ||
| By: | /s/ Timothy Russell Davison | |
| Name: | T. R. Davison | |
| Title: |
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| /s/ Stuart Barnes | ||
| Stuart Barnes | ||
| /s/ Mike Smith | ||
| Mike Smith | ||
| /s/ Stuart Barnes | ||
| Steve Webb acting by his duly authorized attorney Stuart Barnes | ||
| /s/ Stuart Barnes | ||
| Dave Winterburn acting by his duly authorized attorney Stuart Barnes | ||
| /s/ Stuart Barnes | ||
| John Ellison acting by his duly authorized attorney Stuart Barnes | ||
| /s/ Timothy Russell Davison | ||
| Russell Johnson acting by his duly authorized attorney Timothy Russell Davison | ||
| /s/ Stuart Barnes | ||
| Scott White acting by his duly authorized attorney Stuart Barnes | ||
| /s/ Stuart Barnes | ||
| Steve Desbrulais acting by his duly authorized attorney Stuart Barnes | ||
| ASTON UNIVERSITY | ||
| By: | /s/ Gareth Evans | |
| Name: | Gareth Evans | |
| Title: | Deputy University Secretary | |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO AMENDED AND RESTATED VOTING AGREEMENT
SCHEDULE B
NEW INVESTORS
Timothy Russell Davison as Trustee under a Declaration of Trust dated 30 April 2010
Timothy Russell Davison
Independent Wealth Management Consultants Limited
Stuart Barnes
Mike Hamilton-Smith
Steve Webb
Dave Winterburn
John Ellison
Russell Johnson
Scott White
Steve Desbrulais
Aston University
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 5 TO
AMENDED AND RESTATED VOTING AGREEMENT
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT (this “Amendment”) is made and entered into as of September 23, 2011 by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), certain of the holders of the Company’s Series A-2 Convertible Preferred Stock, par value $0.001 per share (“Series A-2 Preferred Stock”), certain of the holders of the Company’s Series B-2 Convertible Preferred Stock, par value $0.001 per share (“Series B-2 Preferred Stock”) and certain of the holders of the Company’s Series C-2 Convertible Preferred Stock, par value $0.001 per share (“Series C-2 Preferred Stock”), all as set forth on Schedule A attached to this Amendment (collectively, the “Consenting Investors”), and each of the persons set forth on Schedule B attached to this Amendment (each a “New Investor,” and collectively, the “New Investors”).
RECITALS
WHEREAS, the Company, certain of the holders of the Common Stock, Series A-2 Preferred Stock, Series B-2 Preferred Stock and Series C-2 Preferred Stock previously entered into that certain Amended and Restated Voting Agreement, dated August 1, 2007, as amended (the “Voting Agreement”);
WHEREAS, Section 5(d) of the Voting Agreement provides that it may only be amended by a written instrument executed by the Company, the holders of a majority of the shares of Common Stock, and the holders of a majority of the shares of the outstanding capital stock of the Company voting together as a single class on an as converted basis (which majority must include the holders of a majority of the shares of the Series C-2 Preferred Stock);
WHEREAS, pursuant to the terms of that certain Series D-3 Preferred Stock Purchase Agreement, by and among the Company and the Investors purchasing shares of the Company’s Series D-3 Preferred Stock, par value $0.001 per share (the “Series D-3 Preferred Stock”) dated on or about the date hereof (the “Purchase Agreement”), participating Investors exchanged their shares of Series A-2 Preferred Stock, Series B-2 Preferred Stock and Series C-2 Preferred Stock for shares of Series A-3 Preferred Stock, Series B-3 Preferred Stock and Series C-3 Preferred Stock;
WHEREAS, pursuant to the Amended and Restated Certificate of Incorporation of the Company as filed with the Delaware Secretary of State on September 22, 2011, each share of Series A-2 Preferred Stock, Series B-2 Preferred Stock and Series C-2 Preferred Stock outstanding on September 24, 2011 shall automatically convert into Common Stock;
WHEREAS, pursuant to the Purchase Agreement, each New Investor shall receive shares of Series D-3 Preferred Stock (the “New Shares”)
WHEREAS, as a condition to the closing of the transactions contemplated by the Purchase Agreement and the issuance of the New Shares to the New Investors, each New Investor must execute this Amendment and become a party to the Voting Agreement; and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Voting Agreement, desire to amend the Voting Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. New Investors. Each New Investor hereby agrees to become a party to the Voting Agreement and to be bound by each and every term thereof. Each of the New Investors listed on Schedule B attached hereto is hereby added to Exhibit A to the Voting Agreement as a Series D-3 Investor, and each New Investor shall be deemed an Investor (as such term is defined the Voting Agreement) for all purposes contained in the Voting Agreement.
2. Amendment Provisions. The Voting Agreement is hereby amended such that:
Section 1(d) Preferred Stock is hereby replaced in its entirety with the following:
“(d) “Preferred Stock” means the Series A-3 Convertible Preferred Stock, Series B-3 Convertible Preferred Stock, Series C-3 Convertible Preferred Stock and Series D-3 Convertible Preferred Stock.”
The reference to “Series C-2” in clause (iii) of Section 5(d) Amendment is hereby replaced with the term “Series D-3.”
All other references to “Series A-2” not otherwise amended herein are hereby replaced with the term “Series A-3.”
All other references to “Series B-2” not otherwise amended herein are hereby replaced with the term “Series B-3.”
All other references to “Series C-2” not otherwise amended herein are hereby replaced with the term “Series C-3.”
3. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
4. Titles and Subtitles. The titles and subtitles used in this Amendment are used for convenience only and are not to be considered in construing or interpreting this Amendment.
5. Entire Agreement. The Voting Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
160
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
COMPANY:
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, | ||
| AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Peter Pereira Gray | |
| Name: | Peter Pereira Gray | |
| Title: | Managing Director | |
| Address: | 215 Euston Road | |
| London NW1 2BE | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||||
| By: | NEA Partners 10, L.P. | |||
| Its General Partner | ||||
| By: | /s/ Louis S. Citron | |||
| Name: | Louis S. Citron | |||
| Title: | Attorney-in-Fact | |||
| Address: | 2490 Sand Hill Road | |||
| Menlo Park, CA 94025 | ||||
| NEW ENTERPRISE ASSOCIATES 9, L.P. | ||||
| By: | NEA Partners 9, L.P. | |||
| Its General Partner | ||||
| By: | /s/ Louis S. Citron | |||
| Name: | Louis S. Citron | |||
| Title: | Attorney-in-Fact | |||
| Address: | 2490 Sand Hill Road | |||
| Menlo Park, CA 94025 | ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV A, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Its: | Managing Director | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| TRELLIS PARTNERS II, L.P. | ||
| By: | Trellis Management II, L.P., | |
| Its General Partner | ||
| By: | /s/ Trellis Management II, L.P. | |
| Name: | ||
| Title: | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| UC BERKELEY FOUNDATION | ||
| By: | /s/ Lina Wang | |
| Name: | Lina Wang | |
| Title: | ||
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
| By: | /s/ Loraine Binion | |
| Name: | Loraine Binion | |
| Title: | Interim Treasurer | |
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford H. Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| HAYDEN H. HARRIS LIVING TRUST | ||
| DTD. 3-6-98 | ||
| By: | /s/ Hayden Harris | |
| Name: | Hayden Harris | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau Laskey | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | 3150 139th Avenue SE | |
| Building 4 | ||
| Bellevue, WA 98005 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS S. PORTER RESTATED TRUST | ||
| DTD. 11-14-05 | ||
| By: | /s/ Thomas S. Porter | |
| Name: | Thomas S. Porter | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | Accel Europe Associates L.P. | |
| its General Partner | ||
| By: | Accel Europe Associates L.L.C. | |
| its General Partner | ||
| By: | /s/ Accel Europe L.P. | |
| Name: | Accel Europe L.P. | |
| Title: | Attorney in Fact | |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
| ACCEL EUROPE INVESTORS 2003, L.P. | ||
| By: | Accel Europe Investors 2003 L.P. | |
| its General Partner | ||
| By: | Accel Europe Associates L.L.C. | |
| its General Partner | ||
| By: | /s/ Accel Europe Investors 2003 L.P. | |
| Name: | Accel Europe Investors 2003 L.P. | |
| Title: | Attorney in Fact | |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JON BAYLESS | ||
| /s/ Jon Bayless | ||
| Address: | 13455 Noel Road, Suite 1670 | |
| Two Galleria Tower | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
INVESTORS:
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| LAGO VENTURES FUND ONE LIMITED | ||
| By: | /s/ Arvind Gulati | |
| Name: | Arvind Gulati | |
| Title: | Director Representative | |
| Address: | c/o Cayside Trust Company Limited | |
| Lyford Cay House, 6th Floor | ||
| Western Road | ||
| P.O. Box N-7776 (Slot 193) | ||
| Lyford Cay, New Providence | ||
| The Bahamas | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
INVESTORS:
| * | By: Newbury Venture Partners III, LLC | |
|
| Its: General Partner | |
| ** | By: Newbury Venture Partners III, LLC | |
|
| Its: Managing Limited Partner | |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
INVESTORS:
| Star Growth Enterprise, a German Civil Law Partnership (with limitation of liability) | ||||
| By: | SVM Star Ventures Managementgesellschaft mbH Nr. 3 | |||
| Title: | Managing Partner | |||
| /s/ Meir Barel | ||||
| By: | Dr. Meir Barel | |||
| Title: | Managing Director | |||
| SVM Star Ventures Managementgesellschaft mbH Nr. 3 and Co. Beteiligungs KG Nr. 3 | ||||
| By: | SVM Star Ventures Managementgesellschaft mbH Nr. 3 | |||
| Title: | Managing Partner | |||
| /s/ Meir Barel | ||||
| By: | Dr. Meir Barel | |||
| Title: | Managing Director | |||
| SVM Star Ventures Managementgesellschaft mbH Nr. 3 | ||||
| /s/ Meir Barel | ||||
| By: | Dr. Meir Barel | |||
| Title: | Managing Director | |||
| SVE Star Ventures Enterprises GmbH & Co. No. IX KG | ||||
| By: | SVM Star Ventures Managementgesellschaft mbH Nr. 3 | |||
| Title: | Managing Partner | |||
| /s/ Meir Barel | ||||
| By: | Dr. Meir Barel | |||
| Title: | Managing Director | |||
| Star Management of Investments No. II (2000) L.P. | ||||
| By: | SVM STAR Venture Capital Management Ltd. | |||
| Title: | Managing Partner | |||
| /s/ Meir Barel | ||||
| By: | Dr. Meir Barel | |||
| Title: | Director | |||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THE RAHN GROUP | ||
| By: | /s/ The Rahn Group | |
| Name: | ||
| Title: | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
INVESTORS:
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| SEVIN ROSEN FUND VII, L.P. | ||
| SRB ASSOCIATES VII L.P. | ||
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | c/o Sevin Rosen Funds | |
| 13455 Noel Road, Suite 1670 | ||
| Dallas, TX 75240 | ||
| SEVIN ROSEN VII AFFILIATES FUND, L.P. | ||
| By: | SRB ASSOCIATES VII L.P.. | |
| Its General Partner | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| Address: | c/o Sevin Rosen Funds | |
| 13455 Noel Road, Suite 1670 | ||
| Dallas, TX 75240 | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | Vice President | |
| Address: | c/o Sevin Rosen Funds | |
| 13455 Noel Road, Suite 1670 | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
INVESTORS:
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| ANTHONY JEFFRIES | ||
| /s/ Anthony Jeffries | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| MOHR SEED CAPITAL II LP | ||
| By: | /s/ Robert Mohr | |
| Name: | Robert Mohr | |
| Title: | Owner | |
| Address: | 14643 Dallas Parkway, Suite 1000 | |
| Dallas, TX 75254 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| RELL FAMILY PARTNERS LIMITED | ||
| By: | /s/ Rell Family Partners Limited | |
| Name: | ||
| Title: | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| DAVE SEGRE | ||
| /s/ Dave Segre | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JOHN TEEGEN | ||
| /s/ John Teegen | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS A. KELLEY & ASSOCIATES | ||
| PROFIT SHARING PLAN | ||
| By: | /s/ Tom A. Kelley | |
| Name: | Tom A. Kelley | |
| Title: | Trustee of Plan | |
| Address: | 5 Franciscan Ridge | |
| Portola Valley, California | ||
| 94028-8043 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| UNIVERSITY OF ILLINOIS FOUNDATION | ||
| By: | /s/ Laura A. Vossman | |
| Name: | Laura A. Vossman | |
| Title: | Assistant Treasurer | |
| Address: | 1305 W. Green St. | |
| Urbana, IL 61801 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| WS INVESTMENT 99B | ||
| By: | /s/ WS Investment 99B | |
| Name: | ||
| Title: | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| ARTHUR TRUEGER | ||
| /s/ Arthur Trueger | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
STUART BARNES | ||
| /s/ Stuart Barnes | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
TIMOTHY RUSSELL DAVISON | ||
| /s/ Timothy Russell Davison | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
STEVEN DESBRUSLAIS | ||
| /s/ Steven Desbruslais | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
JOHN ELLISON | ||
| /s/ J. Ellison | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
MICHAEL HAMILTON-SMITH | ||
| /s/ Michael Hamilton-Smith | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
INDEPENDENT WEALTH MANAGEMENT CONSULTANTS LIMITED | ||
| By: | /s/ Timothy Davison | |
| Name: | Timothy Davison | |
| Title: | Director | |
| Address: | 14 Exchange Street | |
| Retford DN22 6BL | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS:
RUSSELL JOHNSON | ||
| /s/ Russell Johnson | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| TIMOTHY RUSSELL DAVISON AS TRUSTEE UNDER A DECLARATION OF TRUST DATED 30 APRIL 2010 | ||
| By: | /s/ Timothy Davison | |
| Name: | Timothy Davison | |
| Title: | Trustee | |
| Address: | 14 Exchange Street | |
| Retford DN22 6BL | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| STEPHEN WEBB | ||
| /s/ S.M. Webb | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| SCOTT WHITE | ||
| /s/ Scott White | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| DAVID WINTERBURN | ||
| /s/ David Winterburn | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JEANNE ANN BAYLESS | ||
| /s/ Jeanne Ann Bayless | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JON W. BAYLESS, JR. | ||
| /s/ Jon W. Bayless, Jr. | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| REBECCA L.R. BAYLESS | ||
| /s/ Rebecca L.R. Bayless | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| JON BAYLESS, SEPARATE PROPERTY | ||
| /s/ Jon Bayless | ||
| Address: | 13455 Noel Road, Suite 1670 | |
| Two Galleria Tower | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| REBECCA BAYLESS, TRUSTEE FOR CHRISTIAN A.R. BAYLESS TRUST | ||
| /s/ Rebecca Bayless | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| REBECCA BAYLESS, TRUSTEE FOR W. ANDREW BAYLESS TRUST | ||
| /s/ Rebecca Bayless | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| HAYDEN HARRIS | ||
| /s/ Hayden Harris | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
| INVESTORS: | ||
| THOMAS S. PORTER RESTATED TRUST | ||
| DTD. 7-31-98 | ||
| By: | /s/ Thomas S. Porter | |
| Name: | Thomas S. Porter | |
| Title: | Trustee | |
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 5 TO AMENDED AND RESTATED VOTING AGREEMENT
