XTERA COMMUNICATIONS, INC. PREFERRED STOCKHOLDER AGREEMENT
Exhibit 4.3
XTERA COMMUNICATIONS, INC.
PREFERRED STOCKHOLDER AGREEMENT
This Preferred Stockholder Agreement (the “Agreement”) is made as of August 1, 2007, by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), 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 A attached to this Agreement (individually, an “Investor,” collectively, the “Investors”).
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 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 Series B-1 Preferred Stock thereunder, the Company, 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) “Offered Stock” means all Stock proposed to be Transferred by the Seller.
(d) “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.
(e) “Right of First Refusal” means the right of first refusal provided to the Company and the Investors in Section 3 of this Agreement.
(f) “Seller” means any Series A-1 Stockholder proposing to Transfer Stock.
(g) “Series A-1 Stockholders” means the holders of the Series A-1 Convertible Preferred Stock.
(h) “Series B-1 Stockholders” means the holders of the Series B-1 Convertible Preferred Stock.
(i) “Stock” means and includes all Common Stock and Preferred Stock of the Company (whether already issued or issuable upon conversion of Preferred Stock).
(j) “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 Seller’s spouse, lineal descendant or antecedent, father, mother, brother or sister of the Seller, the adopted child or adopted grandchild of the Seller, or the spouse of any child, adopted child, grandchild or adopted grandchild of the Seller, or to a trust or trusts for the exclusive benefit of the Seller or the Seller’s family members as listed in this Section; or
(ii) any transfers of Stock to an Affiliate;
provided that in each and all such cases, (A) the Seller shall inform the Company and each Investor 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 and each Investor with an executed counterpart copy of this Agreement and agree to become bound thereby as was the Seller. Such transferred Stock shall remain “Stock” hereunder, and the transferee shall be treated as was the Seller of such Stock hereunder, and shall assume all rights and obligations of such Seller hereunder.
2. Notice of Proposed Transfer. Before any Seller may effect any Transfer of Stock, the Seller must give at the same time to the Company and to each Investor a written notice signed by the Seller (the “Seller’s Notice”) stating (a) the Seller’s bona fide intention to Transfer such Offered
-2-
Stock and the name and address of the proposed transferee (the “Transferee”); (b) the number of shares of the Offered Stock; and (c) the bona fide cash price or, in reasonable detail, other consideration, per share for which the Seller proposes to Transfer such Offered Stock (the “Offered Price”). Upon the request of the Company or any of such Investors, the Seller will promptly furnish information to the Company and to the Investors as may be reasonably requested to establish that the offer and Transferee are bona fide.
3. Right of First Refusal.
(a) The Right.
(i) Company’s Initial Right. The Company has the right of first refusal to purchase any or all of the Offered Stock, if the Company gives written notice of the exercise of such right to the Seller within fifteen (15) days after the date of its receipt of the Seller’s Notice to the Company (the “Company’s Refusal Period”). If the Company does not desire to purchase all of the Offered Stock, within ten (10) days after expiration of the Company’s Refusal Period, the Company will give written notice to each Investor, specifying the number of shares of Offered Stock not subscribed for by the Company through exercise of its Right of First Refusal (the “Company’s Notice”).
(ii) Investors’ Right. If the Company does not desire to purchase any or all of the Offered Stock, the Investors shall have the right of first refusal to purchase all or none of the Offered Stock; provided, that each such Investor gives written notice of the exercise of such right to the Seller within fifteen (15) days after the date of mailing or other transmission of the Company’s Notice to such Investor (the “Investors’ Refusal Period”), which notice shall indicate the maximum number of shares of Stock that such Series B-1 Stockholder is willing to purchase, including the number of shares of Stock it would purchase if one or more other Series B-1 Stockholders do not elect to purchase their Series B-1 Stockholder’s Share. To the extent the aggregate number of shares such Investors desire to purchase exceeds the Offered Stock available, each such Investor will be entitled to purchase a fraction of the Offered Stock, the numerator of which is the number of shares of Stock (assuming the Conversion of Preferred Stock into Common Stock) held by such Investor and the denominator of which is the number of shares of Stock (assuming the conversion of Preferred Stock into Common Stock) held by all Investors exercising their Right of First Refusal (and if any shares of Offered Stock remain unallocated after application of the foregoing, such shares shall be allocated through successive applications thereof).
Upon the expiration of the Investors’ Refusal Period, the number of shares of Stock to be purchased by each Investor who has elected to participate in purchasing the Offered Stock (the “Participating Investors”) shall be determined as follows: (i) first, there shall be allocated to each Investor electing to purchase, a number of shares of Stock equal to the lesser of (A) the number of shares of Stock as to which such Investor accepted as set forth in its respective acceptance notice or (B) such Investor’s Pro Rata Fraction, which shall be equal to the product obtained by multiplying the total number of shares of Stock not purchased by the Company by a fraction, the numerator of which is the total number of shares of Preferred Stock owned by such Investor, and the denominator of which is the total number of shares of Preferred Stock held by all Investors, in each case as of the date of the Seller’s Notice, and (ii) second, the balance, if any, not allocated under clause (i) above, shall be allocated to those Investors who within the Investors’
-3-
Refusal Period delivered an acceptance notice that set forth a number of shares of Stock that exceeded their respective Pro Rata Fractions, in each case on a pro rata basis in proportion to the number of shares of Stock held by each such Investor up to the amount of such excess. Within ten (10) days after expiration of the Investors’ Refusal Period (the “Confirmation Period”), the Seller will give written notice to the Company and the Participating Investors, specifying the aggregate number of shares of Offered Stock that were subscribed for by the Investors (the “Subscribed Offered Stock”) exercising their Rights of First Refusal (the “Confirmation Notice”). Should the Subscribed Offered Stock not equal or exceed the number of shares of Offered Stock, the Participating Investors may notify the Seller, within ten (10) days after expiration of the Confirmation Period, of their intent to purchase an amount equal to the difference between (i) the Offered Stock and (ii) the Subscribed Offered Stock (such amount, the “Remaining Offered Stock”). Should the Participating Investors collectively elect not to purchase an amount equal to the Remaining Offered Stock, the Right of First Refusal under this Agreement shall be deemed to have been waived with respect to the Offered Stock.
(b) Purchase Price. The purchase price for the Offered Stock to be purchased by the Company or by any Investor exercising its Right of First Refusal under this Agreement will be the Offered Price, and will be payable as set forth in Section 3(c) hereof. If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration will be the fair market value as determined by the Board of Directors of the Company, the holders of a majority the outstanding shares of Series A-1 Stock and the holders of a majority the outstanding shares of Series B-1 Stock, provided that if the Company and such Investors are unable to reach agreement, then by independent appraisal by an investment banker hired and paid by the Company, but acceptable to such Investors.
(c) Payment. Payment of the purchase price for the Offered Stock purchased by the Company or by an Investor exercising its Right of First Refusal will be made within fifteen (15) days after the later of (i) the end of the Company’s Refusal Period, or (ii) the delivery of the Company’s Notice and the end of the Investors’ Refusal Period. Payment of the purchase price will be made, at the option of the Company or the exercising Investor, (i) in cash (by check or wire transfer at the option of the purchaser), (ii) by cancellation of all or a portion of any outstanding indebtedness of the Seller to the Company or the Investor, as the case may be, or (iii) by any combination of the foregoing.
(d) Rights as an Investor. If the Company or any Investor exercises its Right of First Refusal to purchase the Offered Stock, then, upon the date the notice of such exercise is given by the Company or any Investor, the Seller will have no further rights as a holder of the Offered Stock except the right to receive payment for the Offered Stock from the Company or the Investors in accordance with the terms of this Agreement, and the Seller will forthwith cause all certificate(s) evidencing such Offered Stock to be surrendered for transfer to the Company or the Investor, as the case may be.
4. Multiple Series, Classes or Types of Stock. If the Offered Stock consists of more than one series, class or type of Stock, the Seller has the right to Transfer hereunder each such series, class or type.
-4-
5. Refusal to Transfer. Any attempt by any Seller to Transfer any Stock in violation of any provision of this Agreement will be void. The Company will not be required (i) to transfer on its books any Stock that has been sold, gifted or otherwise Transferred in violation of this Agreement, or (ii) to treat as owner of such Stock, or to accord the right to vote or pay dividends to any purchaser, donee or other Transferee to whom such Stock may have been so Transferred.
6. Board of Directors; Voting. So long as at least 1,000,000 shares of Preferred Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof) remain outstanding, each Investor hereby agrees to vote all shares of the Company’s capital stock now or hereafter directly or indirectly owned (of record or beneficially) by such Investor and otherwise to take such action as shall be necessary to:
(a) elect and appoint to the Board of Directors of the Company the following persons:
(i) two (2) individuals designated by the holders of a majority of the outstanding shares of Series B-1 Preferred Stock (each, a “Series B-1 Director”), voting as a single class, one (1) of which shall be the designee of ARCH Venture Partners (“AVP”) for so long as AVP and its Affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof), and one (1) of which shall be the designee of New Enterprise Associates (“NEA”) for so long as NEA and its affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof); and
(ii) three (3) individuals designated by the holders of a majority of the outstanding shares of Series A-1 Preferred Stock (each, a “Series A-1 Director”), voting as a single class, one (1) of which shall be the designee of Sevin Rosen Fund VII, L.P. (“SRF”) for so long as SRF and its Affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof), and one (1) of which shall be the designee of Communications Ventures IV, L.P. (“ComVen”) for so long as ComVen and its affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof);
(iii) one (1) individual designated by the holders of a majority of the outstanding shares of Common Stock, voting as a class, one (1) of which shall be the then-current Chief Executive Officer of the Company (the “CEO Director”); and
(iv) one (1) individual designated by mutual agreement of the Series B-1 Directors, the Series A-1 Directors and the CEO Director (the “Outside Director”);
(b) ensure that in the event the number of authorized directors is increased beyond seven (7), the persons filling any newly-created seats shall be approved by both the holders of a majority of the outstanding Common Stock, voting as a class, and the holders of a majority of the Preferred Stock, voting as a class;
-5-
(c) allow for The Wellcome Trust (“TWT”) to have an observer attend all meetings of the Board of Directors for so long as TWT and its Affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof); and to receive all materials provided to the Board of Directors at the time as such directors; provided that such observer shall first enter into a standard nondisclosure agreement with the Company;
(d) so long as at least 1,000,000 shares of Preferred Stock (as adjusted for any stock dividends, combinations or splits with respect to such shares) remain issued and outstanding, each authorized committee of the Board of Directors shall include at least 1 Series B-1 Director;
(e) ensure that the Board of Directors shall consist of the following persons immediately following the first closing of the Company’s Series B-1 Preferred financing pursuant to the Purchase Agreement: Clinton Bybee (Series B-1 Director), Jon Bayless, who shall be Chairman (SRF designee and Series A-1 Director), Cliff Higgerson (ComVen designee and Series A-1 Director), Hayden Harris (Series A-1 Director), Jon Hopper (CEO Director) and Tingye Li (Outside Director);
(f) elect the second Series B-1 Director upon designation of such director by NEA; and
(g) ensure that the Company shall execute and deliver a Director Indemnification Agreement for the Series B-1 Director designated by NEA in the form attached as Exhibit I to the Purchase Agreement.
7. Restrictive Legend and Stop Transfer Orders.
(a) Legend. Each Investor understands and agrees that the Company may 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 Investor:
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS OF FIRST REFUSAL AND/OR VOTING AGREEMENTS AS SET FORTH IN AN AMENDED AND RESTATED STOCKHOLDER 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 RIGHTS OF FIRST REFUSAL AND VOTING AGREEMENTS ARE BINDING ON CERTAIN TRANSFEREES OF THESE SHARES.”
(b) Stop Transfer Instructions. Each Series A-1 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 the Series A-1 Stockholders 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 a counterpart to this Agreement pursuant to which it or
-6-
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.
8. Termination and Waiver.
(a) Termination. The Right of First Refusal will not apply to and will terminate upon an IPO. The Voting Agreement set forth in Section 7 hereof will also 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 with respect to any Investor, such waiver must include the holders of a majority of the shares of Series A-1 Stock held by the Series A-1 Stockholders, and the holders of a majority of the shares of Series B-1 Stock held by the Series B-1 Stockholders.
9. 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 an Investor who is required to become a party hereto will be considered an “Investor” for purposes of this Agreement and any permitted Transferee of Stock held by the Seller will be considered a “Seller” for purposes of this Agreement.
(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.
-7-
(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 Series A-1 Stock held by the Series A-1 Stockholders, and (iii) the holders of a majority of the shares of Series B-1 Stock held by the Series B-1 Stockholders.
(e) Continuity of Other Restrictions. Any Stock not purchased by the Company or any Investor under their Right of First Refusal hereunder will continue to be subject to all other restrictions imposed upon such Stock by law or agreement, including any restrictions imposed under the Company’s Certificate of Incorporation or Bylaws or by agreement.
(f) 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.
(g) Binding Nature of Exercise. Any exercise of the Right of First Refusal will be binding upon the party so exercising, and may not be withdrawn without the written consent of the Company or the Investor as to whom it is given, as the case may be, except that such exercise may be withdrawn unilaterally by the exercising party if there is any legal prohibition as to a party’s consummation of its purchase or sale hereunder.
(h) Obligation of Company. The Company and the Series A-1 Stockholders agree to use their best efforts to enforce the terms of this Agreement, to inform the Investors of any breach hereof (to the extent of the Company’s knowledge thereof) and to assist the Investors in the exercise of their rights thereunder.
(i) 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.
(j) 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.
(k) 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. Notwithstanding the foregoing, the Company and certain Investors are party to the Amended and Restated Stockholder Agreement dated as of August 12, 2003 by and between the Company and certain holders of the Company’s capital stock (the “Series A-1 Stockholder Agreement”). Should a conflict arise between the terms of this Agreement and the Series A-1 Stockholder Agreement, the terms of this Agreement shall govern. 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.
-8-
(l) Conflict. In the event of any conflict between the terms of this Agreement and the Company’s Certificate of Incorporation, or its Bylaws, the terms of the Company’s Certificate of Incorporation or Bylaws, as the case may be, will control. In the event of any conflict between the terms of this Agreement and any other agreement to which the Investors are a party or by which such Investor 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.
(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.
(n) Termination of Prior Agreement. The Prior Agreement is hereby amended and restated in its entirety and shall be of no further force or effect.
(o) 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.
[Remainder of Page Intentionally Left Blank]
-9-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written.
| COMPANY: | ||
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
| Address: | 500 W. Bethany Drive, Suite 100 | |
| Allen, TX 75013 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| [signature block for entities]: |
| |||||
| (print name of entity) | ||||||
| By: |
| |||||
| Name: |
| |||||
| Title: |
| |||||
| [signature block for individuals] | /s/ Clifford H. Higgerson | |||||
| (signature) | ||||||
| Print Name: | Clifford H. Higgerson | |||||
[PREFERRED STOCKHOLDER AGREEMENT]
| [signature block for entities]: | Northgate Partners, A Delaware Multiple Series LLC | |||||
| (print name of entity) | ||||||
| By: | /s/ Mark Harris | |||||
| Name: | Mark Harris | |||||
| Title: | Managing Member | |||||
| [signature block for individuals] | /s/ John Teegen | |||||
| (signature) | ||||||
| Print Name: | John Teegen | |||||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Sandra Robertson | |
| Name: | Sandra Robertson | |
| Title: | Co-Head of Portfolio Management | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, L.P. | |
| Its General Partner | ||
| By: | /s/ NEA Partners 10, L.P | |
| Name: | ||
| 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/ NEA Partners 9, L.P. | |
| Name: | ||
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
| NEA VENTURES 2000, L.P. | ||
| By: | /s/ NEA Ventures 2000, L.P. | |
| Name: |
| |
| Title: |
| |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
[PREFERRED STOCKHOLDER 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: | Vice President | |
| Address: | 13455 Noel Rd., Suite 1670 | |
| Dallas, TX 75240 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| COMMUNICATIONS VENTURES IV, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, L.L.C. | |
| 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, L.L.C. | |
| 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, L.L.C. | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
[PREFERRED STOCKHOLDER 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 | ||||
[PREFERRED STOCKHOLDER 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 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| INTERWEST INVESTORS Q, VIII, LP | ||
| By: | /s/ Harvey B. Cash | |
| Name: | Harvey B. Cash | |
| Title: | Director | |
| Address: | 2710 Sand Hill Road, Second Floor | |
| Menlo Park, CA 94025 | ||
| INTERWEST INVESTORS VII, LP | ||
| By: | /s/ Harvey B. Cash | |
| Name: | Harvey B. Cash | |
| Title: | Director | |
| Address: | 2710 Sand Hill Road, Second Floor | |
| Menlo Park, CA 94025 | ||
| INTERWEST INVESTORS VIII, LP | ||
| By: | /s/ Harvey B. Cash | |
| Name: | Harvey B. Cash | |
| Title: | Director | |
| Address: | 2710 Sand Hill Road, Second Floor | |
| Menlo Park, CA 94025 | ||
| INTERWEST PARTNERS VII, LP | ||
| By: | /s/ Harvey B. Cash | |
| Name: | Harvey B. Cash | |
| Title: | Director | |
| Address: | 2710 Sand Hill Road, Second Floor | |
| Menlo Park, CA 94025 | ||
| INTERWEST PARTNERS VIII, LP | ||
| By: | /s/ Harvey B. Cash | |
| Name: | Harvey B. Cash | |
| Title: | Director | |
| Address: | 2710 Sand Hill Road, Second Floor | |
| Menlo Park, CA 94025 | ||
[PREFERRED STOCKHOLDER 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: |
| |
|
| ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| RHO VENTURES IV, L.P. | ||
| By: | Rho Management Ventures IV, L.L.C., | |
| Its General Partner | ||
| By: | /s/ Joshua Ruch | |
| Name: | Joshua Ruch | |
| Title: | Managing Member | |
| Address: | 152 West 57th, 23rd Floor | |
| New York, NY 10019 | ||
| RHO VENTURES IV GMBH & CO. BETEILIGUNGS KG | ||
| By: | Rho Capital Partners Verwaltungs GmbH, | |
| Its General Partner | ||
| By: | /s/ Joshua Ruch | |
| Name: | Joshua Ruch | |
| Title: | Managing Director | |
| Address: | 152 West 57th, 23rd Floor | |
| New York, NY 10019 | ||
| RHO VENTURES IV (QP), L.P. | ||
| By: | Rho Management Ventures IV, L.L.C., | |
| Its General Partner | ||
| By: | /s/ Joshua Ruch | |
| Name: | Joshua Ruch | |
| Title: | Managing Director | |
| Address: | 152 West 57th, 23rd Floor | |
| New York, NY 10019 | ||
| RHO MANAGEMENT TRUST I | ||
| By: | Rho Capital Partners Inc., | |
| as Investment Adviser | ||
| By: | /s/ Joshua Ruch | |
| Name: | Joshua Ruch | |
| Title: | Chief Executive Officer | |
| Address: | 10 Almaden Blvd., Suite 988 | |
| San Jose, CA 95113 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| UC BERKELEY FOUNDATION | ||
| By: | /s/ Patrick O’Leary | |
| Name: | Patrick O’Leary | |
| Title: | Vice President | |
| 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 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| CURRENT VENTURES II LIMITED | ||
| By: | /s/ Peter Mok | |
| Name: | Peter T. Mok | |
| Title: | Managing General Partner | |
| Address: | 225 Santa Clara Street, Suite 968 | |
| San Jose, CA 95113 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| STAR GROWTH ENTERPRISE, A GERMAN CIVIL LAW PARTNERSHIP (WITH LIMITATION OF LIABILITY) | ||
| By: | SVM Star Ventures Managementgesellschaft mbH Nr. 3 | |
| Its Managing Partner | ||
| By: | /s/ Meir Barel | |
| Name: | Dr. Meir Barel | |
| Title: | Managing Director | |
| Address: | Possartsrasse 9 | |
| D-81679 Munich, Germany | ||
| Fax No.: | +49-89-419-43030 | |
| Attn: | Andreas Hofbauer | |
| SVE STAR VENTURES ENTERPRISES GMBH & CO. NO. IX KG | ||
| By: | SVM Star Ventures Managementgesellschaft mbH Nr. 3 | |
| Its Managing Partner | ||
| By: | /s/ Meir Barel | |
| Name: | Dr. Meir Barel | |
| Title: | Managing Director | |
| Address: | Possartsrasse 9 | |
| D-81679 Munich, Germany | ||
| Fax No.: | +49-89-419-43030 | |
| Attn: | Andreas Hofbauer | |
| STAR MANAGEMENT OF INVESTMENTS NO. II (2000) L.P. | ||
| By: | SVM Star Venture Capital Management Ltd. | |
| By: | /s/ Meir Barel | |
| Name: | Dr. Meir Barel | |
| Title: | Managing Director | |
| Address: | Galgaley Haplada Street | |
| Herzelia Pieisch 46733, Israel | ||
| Fax No.: | +972-9 ###-###-#### | |
| Attn: | Tami Gilboa-Arbel | |
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 | ||
| By: | /s/ Meir Barel | |
| Name: | Dr. Meir Barel | |
| Title: | Managing Director | |
| Address: | Possartsrasse 9 | |
| D-81679 Munich, Germany | ||
| Fax No.: | +49-89-419-43030 | |
| Attn: | Andreas Hofbauer | |
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 & CO. BETEILIGUNGS KG NR. 3 | ||
| By: | SVM Star Ventures Managementgesellschaft mbH Nr. 3 | |
| Its Managing Partner | ||
| By: | /s/ Meir Barel | |
| Name: | Dr. Meir Barel | |
| Title: | Managing Director | |
| Address: | Possartsrasse 9 | |
| D-81679 Munich, Germany | ||
| Fax No.: | +49-89-419-43030 | |
| Attn: | Andreas Hofbauer | |
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||||||||
| JP MORGAN PARTNERS (BHCA) | ||||||||
| By: | JPMP Master Fund Manager, | |||||||
| its General Partner | ||||||||
| By: | JPMP Capital Corp, | |||||||
| its General Partner | ||||||||
| By: | Panorama Capital, LLC, | |||||||
| as Attorney-in-Fact | ||||||||
| By: | /s/ Thomas Szymoniak | |||||||
| Thomas Szymoniak, | ||||||||
| as Attorney-in-Fact | ||||||||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| LONDON PACIFIC ASSURANCE LIMITED | ||
| By: | /s/ Robert A. Cornman | |
| Name: | Robert A. Cornman | |
| Title: | Director | |
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| JON W. BAYLESS, Personal Property | ||
| /s/ Jon W. Bayless | ||
| Address: |
| |
|
| ||
|
| ||
| JON W. BAYLESS, JR. | ||
| /s/ By: Jon W. Bayless, Attorney-in-Fact | ||
| Address: |
| |
|
| ||
|
| ||
| REBECCA L.R. BAYLESS, | ||
| /s/ By: Jon W. Bayless, Attorney-in-Fact | ||
| Address: |
| |
|
| ||
|
| ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| REBECCA L.R. BAYLESS, | ||
| Trustee for Christian A.R. Bayless Trust | ||
| /s/ By: Jon W. Bayless, Attorney-in-Fact | ||
| Address: |
| |
|
| ||
|
| ||
| REBECCA L.R. BAYLESS, | ||
| Trustee for W. Andrew Bayless Trust | ||
| /s/ By: Jon W. Bayless, Attorney-in-Fact | ||
| Address: |
| |
|
| ||
|
| ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford H. Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| HAYDEN H. HARRIS LIVING TRUST DTD. 3-6-98 | ||
| By: | /s/ Hayden Harris | |
| Name: | Hayden Harris | |
| Title: | Trustee | |
| Address: | 13875 Waters Rd. | |
| Chelsea, MI 48118 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau D. Laskey | ||
| Address: | 5022 Jarvis Ave. | |
| La Cañada, CA 91011 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | 3639 River Pines Drive | |
| Ann Arbor, MI 48103 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | 4423 Phinney Avenue North #C | |
| Seattle, WA 98103 | ||
[PREFERRED STOCKHOLDER AGREEMENT]
| INVESTORS: | ||
| THOMAS S. PORTER RESTATED TRUST DTD. 11-14-05 | ||
| By: | /s/ Thomas S. Porter | |
| Name: | Thomas S. Porter | |
| Title: | Trustee | |
| Address: | 200 Orchard Hills Dr. | |
| Ann Arbor, MI 48104 |
[PREFERRED STOCKHOLDER AGREEMENT]
EXHIBIT A
INVESTORS
Series A-1 Investors
Clifford Higgerson
ARCH Entrepreneurs Fund, L.P.
ARCH Venture Fund III LP
ARCH Venture Fund IV LP
ARCH Venture Fund IVA L.P.
ARCH Venture Fund VI, L.P.
Trellis Partners II L.P.
NEA Ventures 2000, L.P.
New Enterprise Associates 9 L.P.
New Enterprise Associates 10 L.P.
Sevin Rosen Fund VII L.P.
Sevin Rosen VII Affiliates Fund L.P.
Sevin Rosen Bayless Management Company
Communications Ventures IV, L.P.
Communications Ventures IV CEO Fund, L.P.
Communications Ventures IV Entrepreneur’s Fund, L.P.
EDF Ventures I, Limited Partnership
EDF Ventures II, Limited Partnership
Beau D. Laskey
Jon W. Bayless, Personal Property
Jon W. Bayless, Jr.
Rebecca L.R. Bayless
Rebecca L.R. Bayless, Trustee for Christian A.R. Bayless Trust
Rebecca L.R. Bayless, Trustee for Andrew Bayless Trust
Hayden H. Harris Living Trust DTD 3-6-98
Patrick Ennis
InterWest Investors Q, VIII, LP
InterWest Investors VII, LP
InterWest Investors VIII, LP
InterWest Partners VII, LP
InterWest Partners VIII, LP
James R. Adox
Thomas S. Porter Restated Trust DTD 11-14-05
John Teegen
Northgate Partners, a Delaware Multiple Series LLC
Star Growth Enterprise, a German Civil Law Partnership (with limitation of liability)
SVE Star Ventures Enterprises GmbH & Co. No. IX KG
Star Management of Investments No. II (2000) L.P.
SVM Star Ventures Managementgesellschaft mbH Nr. 3
SVM Star Ventures Managementgesellschaft mbH Nr. 3 & Co. Beteiligungs KG Nr. 3
Current Ventures II Limited
1
Series B-1 Investors
Patrick Ennis
Hayden H. Harris Living Trust DTD 3-6-98
Beau D. Laskey
London Pacific Assurance Ltd
UC Berkeley Foundation
Clifford H. Higgerson
The Wellcome Trust Limited, As Trustee of the Wellcome Trust
Arch Venture Fund III, L.P.
Arch Venture Fund VI, L.P.
Arch Venture Fund IV, L.P.
Arch Entrepreneurs Fund, L.P.
Arch Venture Fund IV A, L.P.
New Enterprise Associates 9, L.P.
New Enterprise Associates 10, L.P.
James R. Adox
Northgate Partners, a Delaware Multiple Series LLC
EDF Ventures II, Limited Partnership
Thomas S. Porter Restated Trust dated 11-14-05
Trellis Partners II L.P.
The Infrastructure Fund, LP
The Infrastructure Co-Invest Fund, LP
2
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 1 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER 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 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 and each of the holders of Series A-1 Preferred Stock and Series B-1 Preferred Stock previously entered into that certain Preferred Stockholder Agreement, dated August 1, 2007 (the “Stockholders 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 Stockholders Agreement;
WHEREAS, Section 9(d) of the Stockholders 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 the Series A-1 Preferred Stock, and 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 Stockholders Agreement, desire to amend the Stockholders 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 Stockholders 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 Stockholders Agreement as a Series B-1 Stockholder, and each New Investor shall be deemed an Investor and a Series B-1 Stockholder (as each such term is defined the Stockholders Agreement) for all purposes contained in the Stockholders 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 Stockholders 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.
39
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 PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER 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/ Cindy Crnkovich | |
| Name: | Cindy Crnkovich | |
| Title: | Vice President | |
| Address: | 1119 St. Paul Street | |
| Baltimore, MD 21202 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER AGREEMENT
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV A, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| COMMUNICATIONS VENTURES IV, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, L.L.C. | |
| 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, L.L.C. | |
| 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, L.L.C. | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER 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 | ||
| Its: | Asst. Treasurer, Asst. Secretary and VP of Finance | |
| 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 | ||
| Its: | Asst. Treasurer, Asst. Secretary and VP of Finance | |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER AGREEMENT
| CLIFFORD H. HIGGERSON |
| /s/ Clifford H. Higgerson |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER 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 Associates L.L.C. | |
| 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 PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| QUESTER VENTURE PARTNERSHIP | ||
| acting by its general partner | ||
| Quester Venture GP Ltd | ||
| By: | /s/ Sergio Len | |
| Name: | Sergio Len | |
| Title: | Director | |
| QUESTER VCT 4 PLC | ||
| Acting by its Manager | ||
| Spark Venture Management Ltd | ||
| By: | /s/ Sergio Len | |
| Name: | Sergio Len | |
| Title: | Director | |
| QUESTER VCT 5 PLC | ||
| Acting by its Manager | ||
| Spark Venture Management Ltd | ||
| By: | /s/ Sergio Len | |
| Name: | Sergio Len | |
| Title: | Director | |
| Address: | Quester Capital Management Limited | |
| 29 Queen Anne’s Gate | ||
| London | ||
| SW1H 9BU | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER 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/ Hirdmichi Tabata | |
| Name: | Hirdmichi 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 TO
AMENDMENT NO. 1 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 2 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER 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 Series A-l 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 and each of the holders of Series A-l Preferred Stock and Series B-1 Preferred Stock previously entered into that certain Preferred Stockholder Agreement, dated August 1, 2007, as amended (the “Stockholders 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 Stockholders Agreement;
WHEREAS, Section 9(d) of the Stockholders 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 the Series A-1 Preferred Stock, and the holders of a majority of the shares of the Series B-l Preferred Stock; and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Stockholders Agreement, desire to amend the Stockholders 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 Stockholders 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 Stockholders Agreement as a Series B-1 Stockholder, and each New Investor shall be deemed an Investor and a Series B-l Stockholder (as each such term is defined the Stockholders Agreement) for all purposes contained in the Stockholders 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 Stockholders 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.
54
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 PREFERRED STOCKHOLDER 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, LP. | ||
| 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 PREFERRED STOCKHOLDER 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 FI, 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 PREFERRED STOCKHOLDER AGREEMENT
| CONSENTING INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, | ||
| AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ The Wellcome Trust Limited | |
| Name: |
| |
| Title: |
| |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| CLIFFORD H. HIGGERSON |
| /s/ Clifford H. Higgerson |
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| COMVENTURES IV, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, L.L.C. | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
| COMVENTURES IV CEO FUND, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, L.L.C. | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
| COMVENTURES IV ENTREPRENEURS’ FUND, L.P. | ||
| By: | ComVen IV, L.L.C. | |
| Its General Partner | ||
| By: | /s/ ComVen IV, L.L.C. | |
| Title: | VP and General Counsel | |
| Address: | 305 Lytton Avenue | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER 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/ Atlas Venture Associates VI, Inc. | |
| 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/ Atlas Venture Associates VI, Inc. | |
| Vice President | ||
| Address: | 890 Winter Street | |
| Suite 320 | ||
| Waltham, MA 02451 | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| TVM V INFORMATION TECHNOLOGY GMBH &CO. KG | ||
| By: | /s/ Mark G. Cipriano | |
| Name: | Mark G. Cipriano | |
| Title: | Managing Limited Partner | |
| By: | /s/ Edward Braginsky | |
| Name: | Edward Braginsky | |
| 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 PREFERRED STOCKHOLDER 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 | ||
| CFO, Asst. Secretary and Asst. Treasurer | ||
| 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 | ||
| CFO, Asst. Secretary and Asst. Treasurer | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER 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 Associates. L.L.C. | |
| Attorney in Fact | ||
| ACCEL EUROPE INVESTORS 2003 L.P. | ||
| By: | Accel Europe Associates L.P. Its General Partner | |
| By: | /s/ Accel Europe Associates 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 | ||
| Facsimile: (650) 614-4880 | ||
| E-mail: ***@*** | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND IV A, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ ARCH Venture Partners IV, LLC | |
| Its: | Managing Director | |
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER 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 PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| QUESTER VENTURE PARTNERSHIP | ||
| acting by its general partner | ||
| Quester Venture Managers Ltd | ||
| By: | /s/ Sergio Len | |
| Name: | Sergio Len | |
| Title: | Director | |
| QUESTER VCT 4 PLC | ||
| Acting by its Manager | ||
| Spark Venture Management Ltd | ||
| By: | /s/ Sergio Len | |
| Name: | Sergio Len | |
| Title: | Director | |
| QUESTER VCT 5 PLC | ||
| Acting by its Manager | ||
| Spark Venture Management Ltd | ||
| By: | /s/ Sergio Len | |
| Name: | Sergio Len | |
| Title: | Director | |
| Address: | Quester Capital Management Limited | |
| 29 Queen Anne’s Gate | ||
| London | ||
| SW1H 9BU | ||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER 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 Vetnure 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 Vetnure Partners | |||
| 1001 Bayhill Drive, Suite 300 | ||||
| San Bruno, CA 94066 | ||||
| Facsimile: | ||||
| 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 Vetnure Partners | |||
| 1001 Bayhill Drive, Suite 300 | ||||
| San Bruno, CA 94066 | ||||
| Facsimile: | ||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER 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 | |||
| 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 PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| NEW INVESTORS | ||||
| THE 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 PREFERRED STOCKHOLDER AGREEMENT
| NEW INVESTORS | ||||
| THE 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) 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 PREFERRED STOCKHOLDER AGREEMENT
| NEW INVESTORS: | ||||||
| KLAUS BUSCH | ||||||
|
| By: | /s/ Klaus Busch | ||||
| Witness | ||||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| NEW INVESTORS: | ||||||
| MICHAEL PASCOE | ||||||
|
| By: | /s/ Michael Pascoe | ||||
| Witness | Michael Pascoe | |||||
COUNTERPART SIGNATURE PAGE TO
AMENDMENT NO. 2 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||||||
| JERUSALEM VENTURE PARTNERS IV, L.P. | JERUSALEM VENTURE PARTNERS IV-A, L.P. | |||||||
| By: | /s/ Jerusalem Venture Partners IV, L.P. | By: | /s/ Jerusalem Venture Partners IV-A, L.P. | |||||
| 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, L.P. | By: | /s/ Jerusalem Venture Partners IV, (Israel) L.P. | |||||
| 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 PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 3 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 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 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 and holders of Series A-1 Preferred Stock and Series B-1 Preferred Stock previously entered into that certain Preferred Stockholder Agreement, dated August 1, 2007, as amended (the “Stockholders Agreement”);
WHEREAS, Section 9(d) of the Stockholders 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 the Series A-1 Preferred Stock, and 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 Stockholders Agreement; and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Stockholders Agreement, desire to amend the Stockholders 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 Stockholders 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 Stockholders Agreement as a Series C-2 Stockholder, and each New Investor shall be deemed an Investor and a Series C-2 Stockholder (as each such term is defined the Stockholders Agreement) for all purposes contained in the Stockholders Agreement.
2. Amended Provisions. The Stockholders Agreement is hereby amended such that:
The introductory paragraph is hereby replaced in its entirety with the following:
“This Preferred Stockholder Agreement (the “Agreement”) is made as of August 1, 2007, by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), and the holders of the Preferred Stock (as defined herein), of the Company set forth on Exhibit A attached to this Agreement (individually, an “Investor,” collectively, the “Investors”).”
The Recitals are hereby replaced in their entirety with the following:
“RECITALS
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;
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:”
The following definitions in Section 3 Certain Definitions are hereby replaced in their entirety with the following:
“(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) with respect to which the Corporation receives aggregate net proceeds (after deduction of underwriting discounts and commissions) of not less than $50,000,000 and (B) with respect to which such Common Stock is listed for trading on either the New York Stock Exchange or the NASDAQ National Market.”
“(h) “Seller” means any Preferred Stockholder proposing to Transfer Stock.”
79
The following definitions are added to Section 3 Certain Definitions:
“(e) “Preferred Stock” means the Series A-2 Convertible Preferred Stock, Series B-2 Convertible Preferred Stock and Series C-2 Convertible Preferred Stock.”
“(f) “Preferred Stockholder” means a holder of the Series A-2 Convertible Preferred Stock, Series B-2 Convertible Preferred Stock or Series C-2 Convertible Preferred Stock.”
“(k) “Series C-2 Stockholders” means the holders of the Series C-2 Convertible Preferred Stock.”
Section 3 (a)(ii) Investors’ Right is hereby replaced in its entirety with the following:
“(ii) Investors’ Right. If the Company does not desire to purchase any or all of the Offered Stock, the Investors shall have the right of first refusal to purchase all or none of the Offered Stock; provided, that each such Investor gives written notice of the exercise of such right to the Seller within fifteen (15) days after the date of mailing or other transmission of the Company’s Notice to such Investor (the “Investors’ Refusal Period”), which notice shall indicate the maximum number of shares of Stock that such Preferred Stockholder is willing to purchase, including the number of shares of Stock it would purchase if one or more other Preferred Stockholders do not elect to purchase their Preferred Stockholder’s Share. To the extent the aggregate number of shares such Investors desire to purchase exceeds the Offered Stock available, each such Investor will be entitled to purchase a fraction of the Offered Stock, the numerator of which is the number of shares of Stock (assuming the Conversion of Preferred Stock into Common Stock) held by such Investor and the denominator of which is the number of shares of Stock (assuming the conversion of Preferred Stock into Common Stock) held by all Investors exercising their Right of First Refusal (and if any shares of Offered Stock remain unallocated after application of the foregoing, such shares shall be allocated through successive applications thereof).”
Section 3 (b) Purchase Price is hereby replaced in its entirety with the following:
“(b) Purchase Price. The purchase price for the Offered Stock to be purchased by the Company or by any Investor exercising its Right of First Refusal under this Agreement will be the Offered Price, and will be payable as set forth in Section 3(c) hereof. If the Offered Price includes consideration other than cash, the cash equivalent value of the non-cash consideration will be the fair market value as determined by the Board of Directors of the Company, the holders of a majority the outstanding shares of Preferred Stock (voting together as a single class and not as separate series, and on an as-converted basis), provided that if the Company and such Investors are unable to reach agreement, then by independent appraisal by an investment banker hired and paid by the Company, but acceptable to such Investors.”
Section 6 (a)(iv) is hereby replaced in its entirety with the following:
“four (4) individuals designated by mutual agreement of the Series B-1 Directors, the Series A-1 Directors and the CEO Director (the “Outside Director”);”
Section 6 (b) is hereby replaced in its entirety with the following:
“ensure that in the event the number of authorized directors is increased beyond ten (10), the persons filling any newly-created seats shall be approved by both the holders of a majority of the outstanding Common Stock, voting as a class, and the holders of a majority of the Preferred Stock, voting as a class;”
80
Section 8 (b) Waiver is hereby replaced in its entirety with the following:
“(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 with respect to any Investor, such waiver must include the holders of a majority of the shares of Preferred Stock (voting together as a single class and not as separate series, and on an as-converted basis).”
Section 9 (d) Amendment is hereby replaced in its entirety with the following:
“(d) Amendment. This Agreement may be amended only by a written instrument executed by (i) the Company and (ii) the holders of a majority of the shares of Preferred Stock (voting together as a single class and not as separate series, and on an as-converted basis).”
The reference to “Series A-1 Stockholders” in Section 9 (h) Obligation of the Company is hereby replaced with term “Preferred Stockholders.”
Section 9 (k) Entire Agreement; Successors and Assigns is hereby replaced in its entirety with the following:
“(k) 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. Notwithstanding the foregoing, the Company and certain Investors are party to the Amended and Restated Stockholder Agreement dated as of August 12, 2003 by and between the Company and certain holders of the Company’s capital stock (the “2003 Stockholder Agreement”). Should a conflict arise between the terms of this Agreement and the 2003 Stockholder Agreement, the terms of this Agreement shall govern. 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.”
All other references to “Series A-1” not otherwise amended herein are hereby replaced with term “Series A-2.”
All other references to “Series B-1” not otherwise amended herein are hereby replaced with term “Series B-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 Stockholders 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.
81
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 PREFERRED STOCKHOLDER AGREEMENT
| 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 TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, L.P. | |
| Its General Partner | ||
| By: | /s/ Charles W. Newhall, III | |
| Name: | Charles W. Newhall, III | |
| 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/ Charles W. Newhall, III | |
| Name: | Charles W. Newhall, III | |
| Title: | General Partner | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||
| ARCH VENTURE FUND III, L.P. | ||||
| By: | ARCH Venture Partners, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners, LLC | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IV, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IVA, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| ARCH ENTREPRENEURS FUND, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND VI, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER 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. 3 TO PREFERRED STOCKHOLDER 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. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| LONDON PACIFIC ASSURANCE LIMITED | ||
| By: | /s/ Robert A. Cornman | |
| Name: | Robert A. Cornman | |
| Title: | Director | |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford H. Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau D. Laskey | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | /s/ Accel Europe L.P. | |
| Name: |
| |
| Title: |
| |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
| ACCEL EUROPE INVESTORS 2003, L.P. | ||
| By: | /s/ Accel Europe Investors 2003, L.P. | |
| Name: |
| |
| Title: |
| |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER 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 Entrepreneurs Fund V, LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| 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 IV-A, LP | By: | /s/ Jerusalem Venture Partners IV (Israel), LP | |||||
| Name: |
| |||||||
| Title: |
| Name: |
| |||||
| Address: | 7 West 22nd Street 7th floor | |||||||
| NY, NY 10010 | Title: |
| ||||||
| Address: | 24 Hebron Road | |||||||
| Jerusalem, Israel 93542 | ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| LAGO VENTURES FUND ONE LIMITED | ||
| By: | /s/ Lago Ventures Fund One Limited | |
| Name: |
| |
| Title: |
| |
| 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| DOW CHEMICAL COMPANY | ||
| By: | /s/ Dow Chemical Company | |
| Name: |
| |
| Title: |
| |
| Address: | 2030 Dow Center | |
| Midland, Michigan 48674 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
INVESTORS:
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| QUESTER VENTURE PARTNERSHIP | ||
| By: | /s/ Quester Venture Partnership | |
| Name: |
| |
| Title: |
| |
| Address: | 33 Glasshouse Street | |
| London W1B 5DG | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| SPARK VCT 2 plc | ||
| By: | /s/ Spark VCT 2 plc | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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: |
| |||||
| Title: |
| Title: |
| |||||
| 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: |
| |||||
| Title: |
| Title: |
| |||||
| Address* | Address* | |||||||
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 | *Address: |
| ||||||
|
| ||||||||
| By: | /s/ SVM Star Ventures Managementgesellschaft MBH NR. 3 | |||||||
| Name: |
| |||||||
| Title: |
| |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THE RAHN GROUP | ||
| By: | /s/ The Rahn Group | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
INVESTORS:
| RHO MANAGEMENT TRUST I | RHO VENTURES IV GMBH & CO. BETEILIGUNGS KG | |||||||
| By: | RHO CAPITAL PARTNERS INC. | By: | RHO CAPITAL PARTNERS VERWALTUNGS GMBH | |||||
| By: | /s/ RHO Capital Partners Inc. | By: | /s/ RHO Capital Partners Verwaltungs GMBH | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| Address* | Address* | |||||||
| RHO VENTURES IV (QP) L.P. | RHO VENTURES IV L.P. | |||||||
| By: | RHO MANAGEMENT VENTURES, IV, LLC | By: | ||||||
| By: | /s/ Rho Management Ventures, IV, LLC | By: | /s/ Rho Management Ventures IV, L.L.C. | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| Address* | ||||||||
| *Address: |
| |||||||
|
| ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 | ||
| 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 | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | General Partner | |
| *Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||
| TVM V INFORMATION TECHNOLOGY GMBH & CO. KG | ||||
| By: | /s/ John J. Dibello | /s/ Mark G. Cipriano | ||
|
| ||||
| Name: | John J. Dibello | Mark G. Cipriano | ||
|
| ||||
| Title: | Managing Limited Partners | |||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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, L.L.C. | By: | /s/ VantagePoint Venture Associates IV, L.L.C. | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| *Address | ||||||||
| *Address | ||||||||
| VANTAGEPOINT VENTURE PARTNERS IV (Q), LP | ||||||||
| By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | *Address: |
| |||||
|
| ||||||||
| By: | /s/ VantagePoint Venture Associates IV, L.L.C. | |||||||
| Name: |
| |||||||
| Title: |
| |||||||
| *Address | ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER 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 Management III, L.L.C. | |||
| Name: |
| |||
| Title: |
| |||
| Address: |
| |||
|
| ||||
| CENTERPOINT VENTURE FUND III, L.P. | ||||
| By: | CENTERPOINT ASSOCIATES III, L.P. | |||
| CENTERPOINT ASSOCIATES MANAGEMENT III, L.L.C. | ||||
| By: | /s/ Centerpoint Associates Management III, L.L.C. | |||
| Name: |
| |||
| Title: |
| |||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||
| ANTHONY JEFFRIES | ||||
| /s/ Anthony Jeffries | ||||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MOHR SEED CAPITAL II LP | ||
| By: | /s/ Mohr Seed Capital II LP | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| RELL FAMILY PARTNERS LIMITED | ||
| By: | /s/ Rell Family Partners Limited | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| DAVE SEGRE | ||
| /s/ Dave Segre | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JOHN TEEGAN | ||
| /s/ John Teegan | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THOMAS A. KELLEY & ASSOCIATES PROFIT SHARING PLAN | ||
| By: | /s/ Thomas A. Kelley & Associates Profit Sharing Plan | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| UNIVERSITY OF ILLINOIS FOUNDATION | ||
| By: | /s/ University Of Illinois Foundation | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| WS INVESTMENT 99B | ||
| By: | /s/ WS Investment 99B | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| NORTHGATE PARTNERS LLC, | ||
| A DELAWARE MULTIPLE SERIES LLC | ||
| By: | /s/ Northgate Partners LLC | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MARY L. CAMPBELL TRUST | ||
| By: | EDF Ventures | |
| Its Managing Director | ||
| By: | /s/ EDF Ventures | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MIKE PASCOE | ||
| /s/ Mike Pascoe | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| BERKELEY INTERNATIONAL CAPITAL | ||
| By: | /s/ Berkeley International Capital | |
| Name: |
| |
| Title: |
| |
| Address: | 650 California Street, 26th Floor | |
| San Francisco, CA 94108 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 3 TO PREFERRED STOCKHOLDER AGREEMENT
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 4 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 Preferred Stockholder Agreement, dated August 1, 2007, as amended (the “Stockholders Agreement”);
WHEREAS, Section 9(d) of the Stockholders Agreement provides that it may only be amended by a written instrument executed by the Company and the holders of a majority of the shares of the Preferred Stock (as defined in the Stockholders Agreement);
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, 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 Stockholders Agreement; and
WHEREAS, the undersigned, holding the requisite amount of stock necessary to amend the Stockholders Agreement, desire to amend the Stockholders 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 Stockholders 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 Stockholders Agreement as a Series C-2 Stockholder, and each New Investor shall be deemed an Investor and a Series C-2 Stockholder (as each such term is defined the Stockholders Agreement) for all purposes contained in the Stockholders 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 Stockholders 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.
124
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 PREFERRED STOCKHOLDER 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. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, L.P. | |
| Its General Partner | ||
| By: | /s/ Charles W. Newhall, III | |
| Name: | Charles W. Newhall, III | |
| 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/ Charles W. Newhall, III | |
| Name: | Charles W. Newhall, III | |
| Title: | General Partner | |
| Address: | 2490 Sand Hill Road | |
| Menlo Park, CA 94025 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||
| ARCH VENTURE FUND III, L.P. | ||||
| By: | ARCH Venture Partners, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners, LLC | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IV, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND IVA, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| ARCH ENTREPRENEURS FUND, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| ARCH VENTURE FUND VI, L.P. | ||||
| By: | ARCH Venture Partners IV, LLC, | |||
| Its General Partner | ||||
| By: | /s/ ARCH Venture Partners IV, LLC | |||
| Its: | Managing Director | |||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER 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: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| LONDON PACIFIC ASSURANCE LIMITED | ||
| By: | /s/ Robert A. Cornman | |
| Name: | Robert A. Cornman | |
| Title: | Director | |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau D. Laskey | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | /s/ Accel Europe L.P. | |
| Name: |
| |
| Title: |
| |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
| ACCEL EUROPE INVESTORS 2003, L.P. | ||
| By: | /s/ Accel Europe Investors 2003, L.P. | |
| Name: |
| |
| Title: |
| |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 PREFERRED STOCKHOLDER 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 Entrepreneurs Fund V, LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| 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 IV-A, LP | By: | /s/ Jerusalem Venture Partners Iv (Israel), LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| Address: | 7 West 22nd Street 7th floor NY, NY 10010 | Address: | 24 Hebron Road Jerusalem, Israel 93542 | |||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| LAGO VENTURES FUND ONE LIMITED | ||
| By: | /s/ Lago Ventures Fund One Limited | |
| Name: |
| |
| Title: |
| |
| 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 PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| DOW CHEMICAL COMPANY | ||
| By: | /s/ Dow Chemical Company | |
| Name: |
| |
| Title: |
| |
| Address: | 2030 Dow Center | |
| Midland, Michigan 48674 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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: |
| |||||
| Title: |
| Title: |
| |||||
| 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: |
| |||||
| Title: |
| Title: |
| |||||
| Address* | *Address: |
| ||||||
|
| ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| QUESTER VENTURE PARTNERSHIP | ||
| By: | /s/ Quester Venture Partnership | |
| Name: |
| |
| Title: |
| |
| Address: | 33 Glasshouse Street | |
| London W1B 5DG | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| SPARK VCT 2 plc | ||
| By: | /s/ SPARK VCT 2 plc | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
INVESTORS:
| STAR GROWTH ENTERPRISE | STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 & CO. | |||||||
| By: | /s/ Meir Barel | By: | /s/ Meir Barel | |||||
| Name: | Dr. Meir Barel | Name: | Dr. Meir Barel | |||||
| Title: | Managing Director | Title: | Managing Director | |||||
| Address* | Address* | |||||||
| STAR MANAGEMENT OF INVESTMENTS NO. II (2000) L.P. | SVE STAR VENTURES ENTERPRISES | |||||||
| By: | /s/ Meir Barel | By: | /s/ Meir Barel | |||||
| Name: | Dr. Meir Barel | Name: | Dr. Meir Barel | |||||
| Title: | Managing Director | Title: | Managing Director | |||||
| Address* | Address* | |||||||
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 | *Address: |
| ||||||
|
| ||||||||
| By: | /s/ Meir Barel | |||||||
| Name: | Dr. Meir Barel | |||||||
| Title: | Managing Director | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THE RAHN GROUP | ||
| By: | /s/ The Rahn Group | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
INVESTORS:
| RHO MANAGEMENT TRUST I | RHO VENTURES IV GMBH & CO. BETEILIGUNGS KG | |||||||||
| By: | RHO CAPITAL PARTNERS INC. | By: | RHO CAPITAL PARTNERS VERWALTUNGS GMBH | |||||||
| By: | /s/ RHO Capital Partners Inc. | By: | /s/ RHO Capital Partners Verwaltungs GMBH | |||||||
| Name: |
| Name: |
| |||||||
| Title: |
| Title: |
| |||||||
| 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, L.L.C. | |||||||
| Name: |
| Name: |
| |||||||
| Title: |
| Title: |
| |||||||
| Address* | *Address: |
| ||||||||
|
| ||||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 | ||
| 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 | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | Vice President | |
| *Address: | ||
| *Address |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| TVM V INFORMATION TECHNOLOGY GMBH & CO. KG | ||
| By: | /s/ TVM V Information Technology GMBH & CO. KG | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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, L.L.C. | By: | /s/ VantagePoint Venture Associates IV, L.L.C. | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| *Address | *Address | |||||||
| VANTAGEPOINT VENTURE PARTNERS IV (Q), LP | ||||||||
| By: | VANTAGEPOINT VENTURE ASSOCIATES IV, L.L.C. | *Address: |
| |||||
|
| ||||||||
| By: | /s/ VantagePoint Venture Associates IV, L.L.C. | |||||||
| Name: |
| |||||||
| Title: |
| |||||||
| *Address | ||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER 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 Management III, L.L.C. | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
| CENTERPOINT VENTURE FUND III, L.P. | ||
| By: | CENTERPOINT ASSOCIATES III, L.P. | |
| CENTERPOINT ASSOCIATES MANAGEMENT III, L.L.C. | ||
| By: | /s/ Centerpoint Associates Management III, L.L.C. | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||
| ANTHONY JEFFRIES | ||||
| /s/ Anthony Jeffries | ||||
| Address: |
| |||
|
| ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MOHR SEED CAPITAL II LP | ||
| By: | /s/ Mohr Seed Capital II LP | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| RELL FAMILY PARTNERS LIMITED | ||
| By: | /s/ Rell Family Partners Limited | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| DAVE SEGRE | ||
| /s/ Dave Segre | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JOHN TEEGAN | ||
| /s/ John Teegan | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THOMAS A. KELLEY & ASSOCIATES PROFIT SHARING PLAN | ||
| By: | /s/ Thomas A. Kelley & Associates Profit Sharing Plan | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| UNIVERSITY OF ILLINOIS FOUNDATION | ||
| By: | /s/ University Of Illinois Foundation | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| WS INVESTMENT 99B | ||
| By: | /s/ WS Investment 99B | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| NORTHGATE PARTNERS LLC, | ||
| A DELAWARE MULTIPLE SERIES LLC | ||
| By: | /s/ Northgate Partners LLC | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MARY L. CAMPBELL TRUST | ||
| By: | EDF Ventures | |
| Its Managing Director | ||
| By: | /s/ EDF Ventures | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MIKE PASCOE | ||
| /s/ Mike Pascoe | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| BERKELEY INTERNATIONAL CAPITAL | ||
| By: | /s/ Berkeley International Capital | |
| Name: |
| |
| Title: |
| |
| Address: | 650 California Street, 26th Floor | |
| San Francisco, CA 94108 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
| NEW INVESTORS: | ||
| Timothy Russell Davison as Trustee under a Declaration of Trust dated 30 April 2010 | ||
| /s/ Timothy Russell Davison | ||
| Authorised Signatory, | ||
| Timothy Russell Davison | ||
| INDEPENDENT WEALTH MANAGEMENT CONSULTANTS LIMITED | ||
| By: | /s/ T.R. Davison | |
| Name: | T.R. Davison | |
| Title: |
| |
| /s/ Stuart Barnes | ||
| Stuart Barnes | ||
| /s/ Michael Hamilton-Smith | ||
| Michael Hamilton-Smith | ||
| /s/ Stuart Barnes | ||
| Steve Webb acting by his duly authorised 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 authorised attorney Stuart Barnes | ||
| /s/ Stuart Barnes | ||
| Russell Johnson acting by his duly authorised attorney Timothy Russell Davison | ||
| /s/ Stuart Barnes | ||
| Scott White acting by his duly authorised attorney Stuart Barnes | ||
| /s/ Stuart Barnes | ||
| Steve Desbrulais acting by his duly authorised attorney Stuart Barnes | ||
| ASTON UNIVERSITY | ||
| By: | /s/ Gareth Evans | |
| Name: | Gareth Evans | |
| Title: | Deputy University Secretary | |
COUNTERPART SIGNATURE TO
AMENDMENT NO. 4 TO PREFERRED STOCKHOLDER AGREEMENT
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 5 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 5 TO PREFERRED STOCKHOLDER AGREEMENT (this “Amendment”) is made and entered into as of April 21, 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”). Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Stockholder Agreement (as defined below).
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 Preferred Stockholder Agreement, dated August 1, 2007, as amended (the “Stockholder Agreement”);
WHEREAS, Section 9(d) of the Stockholder Agreement provides that it may only be amended by a written instrument executed by the Company and the holders of a majority of the shares of the Preferred Stock;
WHEREAS, the holders of the requisite amount of stock necessary to amend the Stockholder Agreement approved this Amendment by written consent dated on or about April 21, 2011.
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. Amended Provisions. The Stockholder Agreement is hereby amended such that:
The following definitions in Section 1 Certain Definitions are hereby replaced in their entirety with the following:
“(j) “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 Seller’s spouse, lineal descendant or antecedent, father, mother, brother or sister of the Seller, the adopted child or adopted grandchild of the Seller, or the spouse of any child, adopted child, grandchild or adopted grandchild of the Seller, or to a trust or trusts for the exclusive benefit of the Seller or the Seller’s family members as listed in this Section;
(ii) any transfers of Stock to an Affiliate, other than transfers or distributions of Stock from a general partner to its limited partners, a corporation to its stockholders or other similar transfers from an entity to its equity owners; or
(iii) any transfer of Stock to an Investor;
provided that in each and all such cases, (A) the Seller shall inform the Company and each Investor by written notice prior to effecting such permitted transfer of Stock, and (B) such transferee or Affiliate, as the case may be, if not an existing Investor under the Agreement, shall furnish the Company and each Investor with an executed counterpart copy of this Agreement and agree to become bound thereby as was the Seller. Such transferred Stock shall remain “Stock” hereunder, and the transferee shall be treated as was the Seller of such Stock hereunder, and shall assume all rights and obligations of such Seller hereunder.”
Section 3 (a)(ii) Investors’ Right is hereby replaced in its entirety with the following:
“(ii) Investors’ Right. If the Company does not desire to purchase any or all of the Offered Stock, the Investors shall have the right of first refusal to purchase all or none of the Offered Stock; provided, that each such Investor gives written notice of the exercise of such right to the Seller within fifteen (15) days after the date of mailing or other transmission of the Company’s Notice to such Investor (the “Investors’ Refusal Period”), which notice shall indicate the maximum number of shares of Stock that such Preferred Stockholder is willing to purchase, including the number of shares of Stock it would purchase if one or more other Preferred Stockholders do not elect to purchase their Preferred Stockholder’s Share. To the extent the aggregate number of shares such Investors desire to purchase exceeds the Offered Stock available, each such Investor will be entitled to purchase a fraction of the Offered Stock, the numerator of which is the number of shares of Stock (assuming the Conversion of Preferred Stock into Common Stock) held by such Investor and the denominator of which is the number of shares of Stock (assuming the conversion of Preferred Stock into Common Stock) held by all Investors exercising their Right of First Refusal (and if any shares of Offered Stock remain unallocated after application of the foregoing, such shares shall be allocated through successive applications thereof).
Upon the expiration of the Investors’ Refusal Period, the number of shares of Stock to be purchased by each Investor who has elected to participate in purchasing the Offered Stock (the “Participating Investors”) shall be determined as follows: (i) first, there shall be allocated to each Investor electing to purchase, a number of shares of Stock equal to the lesser of (A) the number of shares of Stock as to which such Investor accepted as set forth in its respective acceptance notice or (B) such Investor’s Pro Rata Fraction, which shall be equal to the product obtained by multiplying the total number of shares of Stock not purchased by the Company by a fraction, the numerator of which is the total number of shares of Preferred Stock owned by such Investor, and the denominator of which is the total number of shares of Preferred Stock held by all Investors, in each case as of the date of the Seller’s Notice, and (ii) second, the balance, if any, not allocated under clause (i) above, shall be allocated to those Investors who within the Investors’ Refusal Period delivered an acceptance notice that set forth a number of shares of Stock that exceeded their respective Pro Rata Fractions, in each case on a pro rata basis in proportion to the number of shares of Stock held by each such Investor up to the amount of such excess. Within ten (10) days after expiration of the Investors’ Refusal Period (the “Confirmation Period”), the Seller will give written notice to the Company and the Participating Investors, specifying the aggregate number of shares of Offered Stock that were subscribed for by the Investors (the “Subscribed Offered Stock”) exercising their Rights of First Refusal (the “Confirmation Notice”). Should the Subscribed Offered Stock not equal or exceed the number
168
of shares of Offered Stock, the Participating Investors may notify the Seller, within ten (10) days after expiration of the Confirmation Period, of their intent to purchase an amount equal to the difference between (i) the Offered Stock and (ii) the Subscribed Offered Stock (such amount, the “Remaining Offered Stock”). Should the Participating Investors collectively elect not to purchase an amount equal to the Remaining Offered Stock, the Right of First Refusal under this Agreement shall be deemed to have been waived with respect to the Offered Stock.”
2. 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.
3. Entire Agreement. The Stockholder 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.
169
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 | ||
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 6 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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”). Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Stockholder Agreement (as defined below).
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 Preferred Stockholder Agreement, dated August 1, 2007, as amended (the “Stockholder Agreement”);
WHEREAS, Section 9(d) of the Stockholder Agreement provides that it may only be amended by a written instrument executed by the Company and the holders of a majority of the shares of the 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 Stockholder Agreement; and
WHEREAS, the holders of the requisite amount of stock necessary to amend the Stockholder Agreement, desire to amend the Stockholder 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 Stockholder 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 of the Stockholder Agreement as a Series D-3 Stockholder, and each New Investor shall be deemed an Investor and a Series D-3 Stockholder (as each such term is defined in the Stockholders Agreement) for all purposes contained in the Stockholders Agreement.
2. Amended Provisions. The Stockholder Agreement is hereby amended such that:
The following definitions in Section 1 Certain Definitions are hereby replaced in their entirety with the following:
“(e) “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.”
“(f) “Preferred Stockholder” means a holder of the Series A-3 Convertible Preferred Stock, Series B-3 Convertible Preferred Stock, Series C-3 Convertible Preferred Stock or Series D-3 Convertible Preferred Stock.”
The following definition is 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:
“(l) “Series D-3 Stockholders” means the holders of the Series D-3 Convertible Preferred Stock.”
Section 6(a) is hereby replaced in its entirety with the following:
“(a) elect and appoint to the Board of Directors of the Company the following persons:
(i) two individuals designated by the holders of a majority of the outstanding shares of Series B-3 Preferred Stock, Series C-3 Preferred Stock and Series D-3 Preferred Stock (each a “Preferred Director”), voting together as a single class, one of which shall be the designee of ARCH Venture Partners (“AVP”) for so long as AVP and its Affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof), and one of which shall be the designee of New Enterprise Associates (“NEA”) for so long as NEA and its affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof);
(ii) three individuals designated by the holders of a majority of the outstanding shares of Series A-3 Preferred Stock (each, a “Series A-3 Director”), voting as a single class, one of which shall be the designee of Sevin Rosen Fund VII, L.P. (“SRF”) for so long as SRF and its Affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof);
172
(iii) one individual designated by the holders of a majority of the outstanding shares of Common Stock, voting as a class, who shall be the then-current Chief Executive Officer of the Company (the “CEO Director”); and
(iv) four individuals designated by mutual agreement of the Preferred Directors and the Series A-3 Directors and the CEO Director (the “Outside Directors”).”
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.”
All other references to “Series B-1 Director” not otherwise amended herein are hereby replaced with the term “Preferred Director.”
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 Stockholder 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.
Signature Pages Follow
173
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. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THE WELLCOME TRUST LIMITED, | ||
| AS TRUSTEE OF THE WELLCOME TRUST | ||
| By: | /s/ Peter P. Gray | |
| Name: | Peter P. Gray | |
| Title: | Managing Director, Investments | |
| Address: | 215 Euston Road, | |
| London NW1 2BE, | ||
| United Kingdom | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||||
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||||
| By: | NEA Partners 10, L.P. | |||
| Its General Partner | ||||
| By: | /s/ NEA Partners 10, L.P. | |||
| Name: |
| |||
| Title: |
| |||
| 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/ NEA Partners 9, L.P. | |||
| Name: |
| |||
| Title: |
| |||
| Address: | 2490 Sand Hill Road | |||
| Menlo Park, CA 94025 | ||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| UC BERKELEY FOUNDATION | ||
| By: |
| |
| Name: | Lina Wang | |
| Title: |
| |
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
| By: |
| |
| Name: | Loraine Binion | |
| Title: | Interim Treasurer | |
| Address: | 2080 Addison, Suite 4200 | |
| Berkeley, CA 94720 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| CLIFFORD HIGGERSON | ||
| /s/ Clifford Higgerson | ||
| Address: | 361 Lytton Avenue, 2nd Floor | |
| Palo Alto, CA 94301 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| BEAU D. LASKEY | ||
| /s/ Beau D. Laskey | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JAMES R. ADOX | ||
| /s/ James R. Adox | ||
| Address: | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| PATRICK ENNIS | ||
| /s/ Patrick Ennis | ||
| Address: | 3150 139th Avenue SE | |
| Building 4 | ||
| Bellevue, WA 98005 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| ACCEL EUROPE L.P. | ||
| By: | /s/ Accel Europe Associates L.P. | |
| By: | /s/ Accel Europe Associates L.L.C. | |
| Name: |
| |
| Title: |
| |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
| ACCEL EUROPE INVESTORS 2003, L.P. | ||
| By: | /s/ Accel Europe Associates L.L.C. | |
| Name: |
| |
| Title: |
| |
| Address: | 428 University Ave. | |
| Palo Alto, CA ###-###-#### | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JON BAYLESS | ||
| /s/ Jon Bayless | ||
| Address: | 13455 Noel Road, Suite 1670 | |
| Two Galleria Tower | ||
| Dallas, TX 75240 | ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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 Entrepreneurs Fund V, LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| 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 IV-A, LP | By: | /s/ Jerusalem Venture Partners IV (Israel), LP | |||||
| Name: |
| Name: |
| |||||
| Title: |
| Title: |
| |||||
| Address: | 7 West 22nd Street 7th floor | Address: | 24 Hebron Road | |||||
| NY, NY 10010 | Jerusalem, Israel 93542 | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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. 6 TO PREFERRED STOCKHOLDER AGREEMENT
INVESTORS:
| NEWBURY VENTURES III, LP | NEWBURY VENTURES CAYMAN III, LP | |||||||
| By: | /s/ Joseph Kell | By: | Newbury Venture Partners III, LLC | |||||
| Its General Partner | ||||||||
| Name: | Joseph Kell | By: | /s/ Joseph Kell | |||||
| Title: | CFO | Name: | Joseph Kell | |||||
| Address* | Title: | CFO | ||||||
| Address* | ||||||||
| NEWBURY VENTURES III GMBH &CO KG | NEWBURY VENTURES EXECUTIVES III, LP | |||||||
| By: | Newbury Venture Partners III, LLC | By: | Newbury Venture Partners III, LLC | |||||
| Its Managing Limited Partner | Its General Partner | |||||||
| By: | /s/ Joseph Kell | By: | /s/ Joseph Kell | |||||
| Name: | Joseph Kell | Name: | Joseph Kell | |||||
| Title: | CFO | Title: | CFO | |||||
| Address* | Address* | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
INVESTORS:
| STAR GROWTH ENTERPRISE | STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 & CO. | |||||||
| By: | /s/ Meir Barel | By: | /s/ Meir Barel | |||||
| Name: | Meir Barel | Name: | Meir Barel | |||||
| Title: | Managing Director | Title: | Managing Director | |||||
| Address* | Address* | |||||||
| STAR MANAGEMENT OF INVESTMENTS NO. II (2000) L.P. | SVE STAR VENTURES ENTERPRISES | |||||||
| By: | /s/ Meir Barel | By: | /s/ Meir Barel | |||||
| Name: | Meir Barel | Name: | Meir Barel | |||||
| Title: | Director | Title: | Managing Director | |||||
| Address* | Address* | |||||||
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT MBH NR. 3 | *Address: |
| ||||||
|
| ||||||||
| By: | /s/ Meir Barel | |||||||
| Name: | Meir Barel | |||||||
| Title: | Managing Director | |||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THE RAHN GROUP | ||
| By: | /s/ The Rahn Group | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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/ Jeffrey Martin | By: | /s/ Jeffrey Martin | |||||||
| Name: | Jeffrey Martin | Name: | Jeffrey Martin | |||||||
| Title: | Attorney-in-fact | Title: | Attorney-in-fact | |||||||
| 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/ Jeffrey Martin | By: | /s/ Jeffrey Martin | |||||||
| Name: | Jeffrey Martin | Name: | Jeffrey Martin | |||||||
| Title: | Attorney-in-fact | Title: | Attorney-in-fact | |||||||
| Address* | *Address: | |||||||||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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 | ||
| 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: | ||
| SEVIN ROSEN BAYLESS MANAGEMENT COMPANY | ||
| By: | /s/ John V. Jaggers | |
| Name: | John V. Jaggers | |
| Title: | Vice President | |
| *Address: | ||
| *Address |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| ANTHONY JEFFRIES | ||
| /s/ Anthony Jeffries | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MOHR SEED CAPITAL II LP | ||
| By: | /s/ Robert Mohr | |
| Name: | Robert Mohr | |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| RELL FAMILY PARTNERS LIMITED | ||
| By: | /s/ Rell Family Partners Limited | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| DAVE SEGRE | ||
| /s/ Dave Segre | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JOHN TEEGEN | ||
| /s/ John Teegen | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| THOMAS A. KELLEY & ASSOCIATES | ||
| PROFIT SHARING PLAN | ||
| By: | /s/ Tom A. Kelley | |
| Name: | Tom A. Kelley | |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| UNIVERSITY OF ILLINOIS FOUNDATION | ||
| By: | /s/ Laura A. Vossman | |
| Name: | Laura A. Vossman | |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| WS INVESTMENT 99B | ||
| By: | /s/ WS Investment 99B | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| ARTHUR TRUEGER | ||
| /s/ Arthur Trueger | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| STUART BARNES | ||
| /s/ Stuart Barnes | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| TIMOTHY RUSSELL DAVISON | ||
| /s/ Timothy Russell Davison | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| STEVEN DESBRUSLAIS | ||
| /s/ Steven Desbrulais | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JOHN ELLISON | ||
| /s/ John Ellison | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| MICHAEL HAMILTON-SMITH | ||
| /s/ Michael Hamilton-Smith | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| INDEPENDENT WEALTH MANAGEMENT CONSULTANTS LIMITED | ||
| By: | /s/ Timothy Davison | |
| Name: | Timothy Davison | |
| Title: | Director | |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| RUSSELL JOHNSON | ||
| /s/ Russell Johnson | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| STEPHEN WEBB | ||
| /s/ Stephen Webb | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| SCOTT WHITE | ||
| /s/ Scott White | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| DAVID WINTERBURN | ||
| /s/ David Winterburn | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JEANNE ANN BAYLESS | ||
| /s/ Jeanne Ann Bayless | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JON W. BAYLESS, JR. | ||
| /s/ Jon W. Bayless, Jr. | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| REBECCA L.R. BAYLESS | ||
| /s/ Rebecca L.R. Bayless | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| JON BAYLESS, SEPARATE PROPERTY | ||
| /s/ Jon Bayless | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| REBECCA BAYLESS, TRUSTEE FOR CHRISTIAN A.R. BAYLESS TRUST | ||
| /s/ Rebecca Bayless | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| REBECCA BAYLESS, TRUSTEE FOR W. ANDREW BAYLESS TRUST | ||
| /s/ Rebecca Bayless | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| HAYDEN HARRIS | ||
| /s/ Hayden Harris | ||
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER 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. 6 TO PREFERRED STOCKHOLDER AGREEMENT
| INVESTORS: | ||
| NORTHGATE PARTNERS LLC, a Delaware Multiple Series LLC | ||
| By: | /s/ Northgate Partners LLC | |
| Name: |
| |
| Title: |
| |
| Address: |
| |
|
| ||
COUNTERPART SIGNATURE TO
AMENDMENT NO. 6 TO PREFERRED STOCKHOLDER AGREEMENT
XTERA COMMUNICATIONS, INC.
AMENDMENT NO. 7 TO
PREFERRED STOCKHOLDER AGREEMENT
THIS AMENDMENT NO. 7 TO PREFERRED STOCKHOLDER AGREEMENT (this “Amendment”) is made and entered into as of August 25, 2015 by and among Xtera Communications, Inc., a Delaware corporation (the “Company”), certain of the holders of the Company’s Series A-3 Convertible Preferred Stock, par value $0.001 per share (“Series A-3 Preferred Stock”), certain of the holders of the Company’s Series B-3 Convertible Preferred Stock, par value $0.001 per share (“Series B-3 Preferred Stock”), certain of the holders of the Company’s Series C-3 Convertible Preferred Stock, par value $0.001 per share (“Series C-3 Preferred Stock”) and certain of the holders of the Company’s Series D-3 Convertible Preferred Stock, par value $0.001 per share (“Series D-3 Preferred Stock”), and each of the persons set forth on Schedule B attached to this Amendment (each a “New Investor,” and collectively, the “New Investors”). Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Stockholder Agreement (as defined below).
RECITALS
WHEREAS the Company, certain of the holders of the Series A-3 Preferred Stock, Series B-3 Preferred Stock, Series C-3 Preferred Stock and Series D-3 Preferred Stock previously entered into that certain Preferred Stockholder Agreement, dated August 1, 2007, as amended (the “Stockholder Agreement”);
WHEREAS, Section 9(d) of the Stockholder Agreement provides that it may only be amended by a written instrument executed by the Company and the holders of a majority of the shares of the Preferred Stock;
WHEREAS, pursuant to the terms of that certain Series E-3 Preferred Stock Purchase Agreement, by and among the Company and the Investors purchasing shares of the Company’s Series E-3 Preferred Stock, par value $0.001 per share (the “Series E-3 Preferred Stock”) dated on or about the date hereof (the “Purchase Agreement”), certain existing parties to the Stockholder Agreement and the New Investors shall receive shares of Series E-3 Preferred Stock;
WHEREAS, as a condition to the closing of the transactions contemplated by the Purchase Agreement and the issuance of the Series E-3 Preferred Stock to the New Investors, each New Investor must execute this Amendment and become a party to the Stockholder Agreement; and
WHEREAS, the holders of the requisite amount of stock necessary to amend the Stockholder Agreement, desire to amend the Stockholder 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 Stockholder Agreement and to be bound by each and every term thereof. Each of the New Investors listed on Schedule A attached hereto is hereby added to Exhibit A of the Stockholder Agreement as a Series E-3 Stockholder, and each New Investor shall be deemed an Investor and a Series E-3 Stockholder (as each such term is defined in the Stockholders Agreement) for all purposes contained in the Stockholders Agreement. Each holder of Series E-3 Preferred Stock that is already party to the Voting Agreement shall also be added to Exhibit A to the Voting Agreement as a Series E-3 Investor.
2. Amended Provisions. The Stockholder Agreement is hereby amended such that:
The following definitions in Section 1 Certain Definitions are hereby replaced in their entirety with the following:
“(e) “Preferred Stock” means the Series A-3 Convertible Preferred Stock, Series B-3 Convertible Preferred Stock, Series C-3 Convertible Preferred Stock, Series D-3 Convertible Preferred Stock and Series E-3 Convertible Preferred Stock.”
“(f) “Preferred Stockholder” means a holder of the Series A-3 Convertible Preferred Stock, Series B-3 Convertible Preferred Stock, Series C-3 Convertible Preferred Stock, Series D-3 Convertible Preferred Stock or Series E-3 Convertible Preferred Stock.”
The following definition is 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:
“(l) “Series E-3 Stockholders” means the holders of the Series E-3 Convertible Preferred Stock.”
Section 6(a)(i) is hereby replaced in its entirety with the following:
“(i) two individuals designated by the holders of a majority of the outstanding shares of Series B-3 Preferred Stock, Series C-3 Preferred Stock, Series D-3 Preferred Stock and Series E-3 Preferred Stock (each a “Preferred Director”), voting together as a single class, one of which shall be the designee of ARCH Venture Partners (“AVP”) for so long as AVP and its Affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof), and one of which shall be the designee of New Enterprise Associates (“NEA”) for so long as NEA and its affiliates hold not less than 2,000,000 shares of Preferred Stock in the aggregate (as adjusted for any stock dividends, combinations or splits with respect to such shares occurring after the date hereof);
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 Stockholder 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.
[Remainder of Page Intentionally Left Blank]
224
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
| XTERA COMMUNICATIONS, INC. | ||
| By: | /s/ Paul J. Colan | |
| Paul J. Colan | ||
| Chief Financial Officer | ||
| HOLDER: | ||
| WELLCOME TRUST INVESTMENTS 2 UNLIMITED | ||
| By: | /s/ Nick Moakes | |
| Name: | Nick Moakes | |
| Title: | Director | |
| HOLDERS: | ||
| NEW ENTERPRISE ASSOCIATES 9, L.P. | ||
| By: | NEA Partners 9, Limited Partnership | |
| Its General Partner | ||
| By: | /s/ NEA Partners 9, Limited Partnership | |
| Name: |
| |
| Title: |
| |
| NEW ENTERPRISE ASSOCIATES 10, L.P. | ||
| By: | NEA Partners 10, Limited Partnership | |
| Its General Partner | ||
| By: | /s/ NEA Partners 10, Limited Partnership | |
| Name: |
| |
| Title: |
| |
| HOLDERS: | ||
| ARCH VENTURE FUND III, L.P. | ||
| By: | ARCH Venture Partners, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Name: | Clinton W. Bybee | |
| Title: | Managing Director | |
| ARCH VENTURE FUND IV, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Name: | Clinton W. Bybee | |
| Title: | Managing Director | |
| ARCH VENTURE FUND IVA, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Name: | Clinton W. Bybee | |
| Title: | Managing Director | |
| ARCH ENTREPRENEURS FUND, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Name: | Clinton W. Bybee | |
| Title: | Managing Director | |
| ARCH VENTURE FUND VI, L.P. | ||
| By: | ARCH Venture Partners IV, LLC, | |
| Its General Partner | ||
| By: | /s/ Clinton W. Bybee | |
| Name: | Clinton W. Bybee | |
| Title: | Managing Director | |
| HOLDER: |
| /s/ Clifford H. Higgerson |
| Clifford H. Higgerson |
| HOLDER: |
| /s/ Jon Bayless |
| Jon Bayless |
| HOLDER: | ||
| 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 Fund 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: | Vice President | |
| HOLDER: | ||
| Saints Capital Hanover, L.P. | ||
| By: | Saints Capital VI, LLC | |
| Its General Partner | ||
| By: | /s/ David Quinlivan | |
| Name: | David Quinlivan | |
| Title: | Managing Member | |
| HOLDER: |
| /s/ Jon W. Bayless |
| Jon W. Bayless, Separate Property |
| HOLDER: |
| /s/ Jon Hopper |
| Jon Hopper |
| HOLDER: | ||
| Estate of Donald W. Brooks | ||
| By: | /s/ Jon Hopper | |
| Name: | Jon Hopper | |
| Title: | Executor | |
