NEXVERSE NETWORKS, INC. AMENDED AND RESTATED VOTING AGREEMENT
Exhibit 10.13
NEXVERSE NETWORKS, INC.
AMENDED AND RESTATED VOTING AGREEMENT
This Amended and Restated Voting Agreement (the “Agreement”) is made and entered
into as of this 30th day of October, 2002, by and among NexVerse Networks, Inc., a
Delaware corporation (the “Company”), those certain holders of the Company’s Common Stock listed on
Exhibit A hereto (the “Key Holders”) and the persons and entities listed on Exhibit B hereto (the
“Investors”).
Witnesseth
Whereas, the Key Holders are the beneficial owners of an aggregate of three million
four hundred ninety three thousand one hundred seventy two (3,493,172) shares of the common stock
of the Company (the “Common Stock”);
Whereas, certain Investors hold shares of Common Stock and certain Investors are
purchasing shares of the Company’s Series C Preferred Stock (the “Series C Preferred”), pursuant to
that certain Series C Preferred Stock Purchase Agreement of even date herewith (the “Purchase
Agreement”);
Whereas, the Company is entering into that certain Share Exchange Agreement by and
among the Company, ECI Telecom Ltd. (“ECI”), and ECI Telecom – NGTS, Inc. of even date herewith
(the “Exchange Agreement”), pursuant to which the Company will acquire all of the outstanding
capital stock of certain subsidiaries of ECI upon the Closing, as defined in the Exchange Agreement
(the “Exchange Closing”);
Whereas, the Key Holders, certain Investors and the Company are parties to that
certain Voting Agreement dated November 27, 2001 (the “Prior Agreement”);
Whereas, the obligations to execute the Purchase Agreement are conditioned upon the
execution and delivery of this Agreement to the Escrow Agent (as defined in the Purchase
Agreement); and
Whereas, the Key Holders, the Investors and the Company wish to provide further
inducement to the Investors to purchase shares of the Series C Preferred pursuant to the terms of
the Purchase Agreement, and the parties hereto have agreed, effective upon the Exchange Closing, to
amend and restate the Prior Agreement in its entirety upon the terms and conditions set forth
below.
Now, Therefore, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
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1. Voting.
1.1 Key Holder Shares; Investor Shares.
(a) The Key Holders each agree to hold all shares of voting capital stock of the Company
registered in their respective names or beneficially owned by them as of the date hereof and any
and all other securities of the Company legally or beneficially acquired by each of the Key Holders
after the date hereof (hereinafter collectively referred to as the “Key Holder Shares”) subject to,
and to vote the Key Holder Shares in accordance with, the provisions of this Agreement.
(b) The Investors each agree to hold all shares of voting capital stock of the Company
(including but not limited to all shares of Common Stock issued upon conversion of the Series C
Preferred) registered in their respective names or beneficially owned by them as of the date hereof
and any and all other securities of the Company legally or beneficially acquired by each of the
Investors after the date hereof (hereinafter collectively referred to as the “Investor Shares”)
subject to, and to vote the Investor Shares in accordance with, the provisions of this Agreement.
1.2 Election of Directors. On all matters relating to the election of directors of the
Company, the Key Holders and the Investors agree to vote all Key Holder Shares and Investor Shares
held by them (or the holders thereof shall consent pursuant to an action by written consent of the
holders of capital stock of the Company) so as to elect members of the Company’s Board of Directors
as follows:
(a) At each election of directors, the Investors shall vote all of their respective Investor
Shares so as to elect: (i) one representative of Levensohn Capital Management so long as it holds
not less than five million (5,000,000) shares of Series C Preferred (as adjusted for stock splits,
dividends and the like), which individual shall initially be Xxxxxx Xxxxxxxxx; (ii) one
representative of Norwest Venture Capital so long as it holds not less than five million
(5,000,000) shares of Series C Preferred (as adjusted for stock splits, dividends and the like),
which individual shall initially be Xxxxxx Xxxxx; (iii) one representative of Battery Ventures so
long as it holds not less than five million (5,000,000) shares of Series C Preferred (as adjusted
for stock splits, dividends and the like), which individual shall initially be Xxxxxx Xxxxx; and
(iv) either: (x) three representatives of ECI so long as it holds not less than ten million
(10,000,000) shares of Series C Preferred (as adjusted for stock splits, dividends and the like),
(y) two representatives of ECI so long as it holds not less than seven million five hundred
thousand (7,500,000) shares of Series C Preferred (as adjusted for stock splits, dividends and the
like), or (z) one representative of ECI so long as it holds not less than five million (5,000,000)
shares of Series C Preferred (as adjusted for stock splits, dividends and the like) two of which
individuals shall initially be Xxxxx Xxxxx and Barak Hachamov, provided however, that so long as
ECI is entitled to designate more than one director, at least one of such designees shall, at all
times during the term of this Agreement, be neither an officer nor a director of ECI or any of its
affiliates. Any vote taken to remove any director elected pursuant to this Section 1.2(a), or to
fill any vacancy created by the resignation, removal or death of a director elected pursuant to
this Section 1.2(a), shall also be subject to the provisions of this Section 1.2(a).
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(b) At each election of directors in which the holders of Common Stock, voting as a separate
class, are entitled to elect directors of the Company, the Key Holders and Investors shall vote all
of their respective Key Holder Shares and Investor Shares so as to elect: (i) the person serving
as Chief Executive Officer of the Company, which individual shall initially be Tal Simchony, and
(ii) a Key Holder designated by a majority of the directors elected pursuant to Sections 1.2(a)(i),
1.2(a)(ii), and 1.2(a)(iii), which individual shall initially be Xxxx Xxxxxx. Any vote taken to
remove any director elected pursuant to this Section 1.2(b), or to fill any vacancy created by the
resignation, removal or death of a director elected pursuant to this Section 1.2(b), shall also be
subject to the provisions of this Section 1.2(b).
(c) At each election of directors in which the holders of Common Stock and holders of Series C
Preferred, voting together as a single class, are entitled to elect directors of the Company, the
Key Holders and Investors shall vote all of their respective Key Holder Shares and Investor Shares
so as to elect one nominee who shall be an industry representative not affiliated with the Company
or any Investor that is acceptable to the other members of the Company’s Board of Directors. Any
vote taken to remove any director elected pursuant to this Section 1.2(c), or to fill any vacancy
created by the resignation, removal or death of a director elected pursuant to this Section 1.2(c),
shall also be subject to the provisions of this Section 1.2(c).
1.3 No Liability for Election of Recommended Director. None of the parties hereto and no
officer, director, stockholder, partner, employee or agent of any party makes any representation or
warranty as to the fitness or competence of the nominee of any party hereunder to serve on the
Board of Directors by virtue of such party’s execution of this Agreement or by the act of such
party in voting for such nominee pursuant to this Agreement.
1.4 Legend.
(a) Concurrently with the execution of this Agreement, there shall be imprinted or otherwise
placed, on certificates representing the Key Holder Shares and the Investor Shares the following
restrictive legend (the “Legend”):
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS ON THE
VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST
IN SUCH SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH VOTING AGREEMENT WILL BE
FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.”
(b) The Company agrees that, during the term of this Agreement, it will not remove, and will
not permit to be removed (upon registration of transfer, reissuance or otherwise), the Legend from
any such certificate and will place or cause to be placed the Legend
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on any new certificate issued to represent Key Holder Shares or Investor Shares theretofore represented by a certificate carrying
the Legend.
1.5 Successors. The provisions of this Agreement shall be binding upon the successors in
interest to any of the Key Holder Shares or Investor Shares. The Company shall not permit the
transfer of any of the Key Holder Shares or Investor Shares on its books or issue a new certificate
representing any of the Key Holder Shares or Investor Shares unless and until the person to whom
such security is to be transferred shall have executed a written agreement, substantially in the
form of this Agreement, pursuant to which such person becomes a party to this Agreement and agrees
to be bound by all the provisions hereof as if such person were a Key Holder or Investor, as
applicable.
1.6 Other Rights. Except as provided by this Agreement or any other agreement entered into in
connection with the Financing, each Key Holder and Investor shall exercise the full rights of a
holder of capital stock of the Company with respect to the Key Holder Shares and the Investor
Shares, respectively.
2. Termination.
2.1 This Agreement shall continue in full force and effect from the date hereof through the
earliest of the following dates, on which date it shall terminate in its entirety:
(a) the date of the closing of a firmly underwritten public offering of the Common Stock
pursuant to a registration statement filed with the Securities and Exchange Commission, and
declared effective under the Securities Act of 1933, as amended which results in the Preferred
Stock being converted into Common Stock;
(b) ten (10) years from the date of this Agreement;
(c) the date of the closing of a sale, lease, or other disposition of all or substantially all
of the Company’s assets or the Company’s merger into or consolidation with any other corporation or
other entity, or any other corporate reorganization, in which the holders of the Company’s
outstanding voting stock immediately prior to such transaction own, immediately after such
transaction, securities representing less than fifty percent (50%) of the voting power of the
corporation or other entity surviving such transaction, provided that this Section 2.1(d) shall not
apply to a merger effected exclusively for the purpose of changing the domicile of the Company; or
(d) the date as of which the parties hereto terminate this Agreement by written consent of a
majority in interest of the holders of Series C Preferred, a majority in interest of the Key
Holders then providing services to the Company as officers, employees or consultants, and the
written consent of each party entitled to designate a seat pursuant to Section 1.2(a).
3. Miscellaneous.
3.1 Ownership. Each Key Holder represents and warrants to the Investors and the Company that
(a) such Key Holder now owns the Key Holder Shares, free and clear of liens or encumbrances, and
has not, prior to or on the date of this Agreement, executed or delivered any
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proxy or entered into any other voting agreement or similar arrangement other than one which has expired or terminated
prior to the date hereof, and (b) such Key Holder has full power and capacity to execute, deliver
and perform this Agreement, which has been duly executed and delivered by, and evidences the valid
and binding obligation of, such Key Holder enforceable in accordance with its terms. Each Investor
represents and warrants to the Investors and the Company that (a) such Investor now owns, or will
own upon the Closing (as defined in the Purchase Agreement), the Investor Shares, free and clear of
liens or encumbrances, and has not, prior to or on the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar arrangement other than
one which has expired or terminated prior to the date hereof, and (b) such Investor has full power
and capacity to execute, deliver and perform this Agreement, which has been duly executed and
delivered by, and evidences the valid and binding obligation of, such Investor enforceable in
accordance with its terms.
3.2 Further Action. If and whenever the Key Holder Shares are sold, the Key Holders or the
personal representative of the Key Holders shall do all things and execute and deliver all
documents and make all transfers, and cause any transferee of the Key Holder Shares to do all
things and execute and deliver all documents, as may be necessary to consummate such sale
consistent with this Agreement.
3.3 Specific Performance. The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to their heirs, personal
representatives, or assigns by reason of a failure to perform any of the obligations under this
Agreement and agree that the terms of this Agreement shall be specifically enforceable. If any
party hereto or his heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such action or proceeding is
brought hereby waives the claim or defense therein that such party or such personal representative
has an adequate remedy at law, and such person shall not offer in any such action or proceeding the
claim or defense that such remedy at law exists.
3.4 Governing Law. This Agreement, and the rights of the parties hereto, shall be governed by and construed in
accordance with the laws of the State of California as such laws apply to agreements among
California residents made and to be performed entirely within the State of California.
3.5 Amendment or Waiver. This Agreement may be amended (or provisions of this Agreement
waived) only by an instrument in writing signed by (i) the Company, (ii) a majority in interest of
the Investors and (iii) a majority in interest of the Key Holders then providing services to the
Company as officers, employees or consultants. Any amendment or waiver so effected shall be
binding upon the Company, each of the parties hereto and any assignee of any such party provided,
however, that notwithstanding the foregoing, Section 1.2(a) of this Agreement shall not be amended
or waived without the written consent of each of the parties entitled to designate a seat pursuant
to Section 1.2(a). Notwithstanding the foregoing, Section 1.2 of this Agreement may be amended to
add obligations of holders of additional series of the Company’s Preferred Stock by an instrument
in writing signed by the Company and the holders of such series.
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3.6 Severability. In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
3.7 Successors. This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, successors, assigns, administrators, executors and other legal
representatives.
3.8 Additional Shares. In the event that subsequent to the date of this Agreement any shares
or other securities are issued on, or in exchange for, any of the Key Holder Shares or Investor
Shares by reason of any stock dividend, stock split, combination of shares, reclassification or the
like, such shares or securities shall be deemed to be Key Holder Shares or Investor Shares, as the
case may be, for purposes of this Agreement.
3.9 Addition of Investors. Notwithstanding anything to the contrary contained herein, if the
Company shall issue additional shares of its Series C Preferred pursuant to the Purchase Agreement,
any purchaser of such shares of Series C Preferred shall become a party to this Agreement by
executing and delivering an additional counterpart signature page to this Agreement and shall be
deemed an “Investor” hereunder.
3.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an
original but all of which together shall constitute one and the same agreement.
3.11 Waiver. No waivers of any breach of this Agreement extended by any party hereto to any
other party shall be construed as a waiver of any rights or remedies of any other party hereto or
with respect to any subsequent breach.
3.12 Attorney’s Fees. In the event that any suit or action is instituted to enforce any
provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from
the losing party all fees, costs and expenses of enforcing any right of such prevailing party under
or with respect to this Agreement, including without limitation, such reasonable fees and expenses
of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses
of appeals.
3.13 Notices. Any notices required in connection with this Agreement shall be in writing and
shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii)
when sent by confirmed electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (iii) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day delivery, with written
notification of receipt. All notices shall be addressed to the holder appearing on the books of
the Company or at such address as such party may designate by ten (10) days advance written notice
to the other parties hereto.
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3.14 Entire Agreement. This Agreement and the Exhibits hereto, along with the Purchase
Agreement and each of the Exhibits thereto, constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof and no party shall be
liable or bound to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein. Upon the effective date of this
Agreement as set forth in Section 3.15 below, the Prior Agreement is hereby amended and restated in
its entirety as set forth herein and shall be of no further force or effect.
3.15 Effective Date Of Agreement. This Agreement and the rights and obligations contained
herein shall be effective immediately upon and simultaneously with the Closing as defined in the
Purchase Agreement. Prior to such Closing, this Agreement shall be of no force or effect.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| COMPANY: | ||
| NexVerse Networks, Inc. | ||
By:
|
/s/ Xxxx Xxxxxx | |
| Xxxx Xxxxxx, Chief Executive Officer | ||
Address:
|
000 Xxxx Xxx. | |
| Xxx Xxxx, XX 00000 |
KEY HOLDERS:
|
||
/s/ Xxxx Xxxxxx |
||
Xxxx Xxxxxx |
||
/s/ Xxxxx Xxxxxxxx |
||
Xxxxx Xxxxxxxx |
||
/s/ Xxxxxxxxx Xxxxx |
||
Xxxxxxxxx Xxxxx |
||
/s/ Xxxx Xxxxx |
||
Xxxx Xxxxx |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| Star Bay Technology Ventures IV, L.P. | ||||||
| By Levensohn Capital Partners II LLC, | ||||||
| its General Partner | ||||||
| By Levensohn Capital Management, LLC | ||||||
| its Managing Member | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||
| Xxxxxx Xxxxxxxxx, President | ||||||
| Star Bay Partners, L.P. (Rollover Fund) | ||||||
| By APH Capital Management LLC, | ||||||
| its General Partner | ||||||
| By Levensohn Capital Management, LLC | ||||||
| its Managing Member | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||
| Xxxxxx Xxxxxxxxx, President | ||||||
| Star Bay Entrepreneurs Fund, L.P. | ||||||
| By Levensohn Capital Management, LLC | ||||||
| its General Partner | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||
| Xxxxxx Xxxxxxxxx, President | ||||||
| Star Bay Associates Fund, L.P. | ||||||
| By Levensohn Capital Management, LLC | ||||||
| its General Partner | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||
| Xxxxxx Xxxxxxxxx, President | ||||||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| Comdisco, Ventures, Inc. successor in interest to Comdisco, Inc. | ||||
| Signature: | /s/ Xxxxxx Xxxxx | |||
| Print Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| Battery Ventures V, L.P. | ||||
| By: | Battery Partners V, LLC | |||
| General Partner | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Member Manager | |||
| Battery Ventures Convergence Fund, L.P. | ||||
| By: | Battery Convergence Partners, LLC | |||
| General Partner | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Member Manager | |||
| Battery Investment Partners V, LLC | ||||
| /s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Member Manager | |||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| Norwest Venture Partners VII, L.P. | ||||
| By: | Itasca VC Partners VII, LLP | |||
| Its: | General Partner | |||
| /s/ Xxxxxx Xxxxx | ||||
| Name: | Xxxxxx Xxxxx | |||
| Title: | General Partner | |||
| Norwest Venture Partners IX, L.P. | ||||
| By: | Genesis VC Partners IX, LLC | |||
| /s/ Xxxxxx Xxxxx | ||||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
| NVP Entrepreneurs Fund IX, L.P. | ||||
| By: | Genesis VC Partners IX, LLC | |||
| /s/ Xxxxxx Xxxxx | ||||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Director | |||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| KPCB Holdings, Inc., as Nominee | ||||
| Signature: | /s/ Illegible | |||
| Print Name: | ||||
| Title: | ||||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| Liberty Mutual Insurance Company | ||||||
| Signature: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Vice President | ||||||
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
In Witness Whereof, the parties hereto have executed this Amended and Restated Voting Agreement as of the date first above written.
| /s/ Xxxxxx X. Xxxxxx | ||
| Xxxxxx X. Xxxxxx |
AMENDED AND RESTATED VOTING AGREEMENT
SIGNATURE PAGE
SIGNATURE PAGE
Exhibit A
LIST OF KEY HOLDERS
Xxxx Xxxxxx
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxx
Exhibit B
LIST OF INVESTORS
ECI Telecom Ltd.
Star Bay Technology Ventures IV, L.P.
Star Bay Partners, L.P. (Rollover Fund)
Star Bay Entrepreneurs Fund, L.P.
Star Bay Associates Fund, L.P.
Comdisco, Inc.
GATX Ventures, Inc., a Delaware Corporation
Battery Ventures V, L.P.
Battery Ventures Convergence Fund, L. P.
Battery Investment Partners V, LLC
Norwest Venture Partners VII, L.P.
Norwest Venture Partners IX, L.P.
NVP Entrepreneurs Fund IX, L.P
KPCB Holdings, Inc., as Nominee
Dominion Capital Management L.L.C.
Comerica Bank – California, a California Banking Corporation, Successor by Merger to Imperial
Bank
Liberty Mutual Insurance Company
Xxxxxx X. Xxxxxx
