SHORETEL, INC. SEVENTH AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit 4.2
SHORETEL, INC.
SEVENTH AMENDED AND RESTATED RIGHTS AGREEMENT
This SEVENTH AMENDED AND RESTATED RIGHTS AGREEMENT (this “Rights Agreement”) is entered into
as of October 20, 2004, by and among ShoreTel, Inc., a California corporation (the “Company”), the
persons and entities listed on Exhibit A hereto (the “Investors”), Xxxxx X. Xxxxxx, Xxxxxxx
Xxxxxxxx, Xxx X. Xxxxx, Xxxxx X. Xxx and Xxxxx X. Xxxx (each a “Common Holder” and collectively,
the “Common Holders”) and with respect to Section 1 only, Silicon Valley Bank (“SVB”).
RECITALS
A. Certain of the Investors have agreed to purchase shares of the Company’s Series H Preferred
Stock (the “Series H Preferred Shares”) pursuant to a Series H Preferred Stock Purchase Agreement
dated of even date herewith (such agreement, as it may be amended from time to time is referred to
herein as the “Series H Agreement”).
B. The holders of the Company’s currently outstanding shares of Preferred Stock have certain
information and registration rights and rights of first refusal under a Sixth Amended and Restated
Rights Agreement dated March 1, 2004 by and among the Company and such persons and entities (the
“Prior Rights Agreement”).
C. The Series H Agreement provides that, as a condition to the purchase by certain of the
Investors of Series H Preferred Shares thereunder, the Company will enter into this Agreement and
the Investors will be granted the rights set forth herein. Accordingly, the Company and the
Investors desire to enter into this Agreement in order to amend, restate and replace the rights and
obligations of the parties under the Prior Rights Agreement with the rights and obligations set
forth in this Agreement. Section 4.1 of the Prior Rights Agreement provides that the Prior Rights
Agreement may be amended by the written consent of the holders of at least a majority of the
“Registrable Securities” (as defined in the Prior Rights Agreement), and the undersigned parties to
this Agreement hold in excess of a majority of such “Registrable Securities”.
AGREEMENT
NOW, THEREFORE, in consideration for and of the foregoing and of the mutual promises,
covenants and conditions set forth herein and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
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1. Registration Rights.
1.1 Definitions. As used in this Rights Agreement, the following terms shall have the
following respective meanings:
(a) The term “Affiliate” shall mean a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control with, the person
specified and includes without limitation any person meeting the definition of “affiliate” set
forth in Rule 405 of the Securities Act.
(b) The term “Preferred Stock” shall mean the preferred stock of the Company.
(c) The terms “register,” “registered” and “registration” refer to a registration effected
by preparing and filing a registration statement in compliance with the Securities Act of 1933,
as amended (the “Securities Act”), and the declaration or ordering of the effectiveness of such
registration statement.
(d) The term “Registrable Securities” means (i) any and all shares of common stock of the
Company (“Common Stock”) issued or issuable upon conversion of the Company’s Preferred Stock
(the “Conversion Shares”), (ii) any and all shares of Common Stock or other securities issued or
issuable in respect of the current or previously authorized and outstanding Preferred Stock,
including without limitation a total of 3,814,741 shares of Common Stock issued to holders of
Series E Preferred Stock on October 11, 2002, (iii) the shares of Common Stock (the “SVB
Shares”) issuable upon conversion of the shares of the Company’s Series F Preferred Stock
issuable upon exercise of that certain Warrant to Purchase Stock issued by the Company to SVB in
September 2003, and (iv) any and all shares of Common Stock or other securities issued or
issuable upon any conversion of the Preferred Stock upon any stock split, stock dividend,
recapitalization or similar event, excluding in all cases, however, Registrable Securities sold
by a person in a transaction in which his rights under this Section 1 are not assigned;
provided, however, that notwithstanding anything herein to the contrary, the SVB
Shares and any shares of Common Stock described in clause (iv) of this Section 1.1(d) that are
issued in respect of any SVB Shares shall not be Registrable Securities for purposes of Section
1.2 of this Agreement; provided, further, that any and all shares described in
clauses (i)-(iv) above which have been resold to the public shall cease to be Registrable
Securities upon such resale and any shares as to which registration rights have terminated
pursuant to Section 1.14 below shall cease to be Registrable Securities upon such termination.
Registrable Securities shall also include, but solely for purposes of Sections 1.3, 1.5, 1.6,
1.7, 1.8, 1.12 and 1.14 of this Rights Agreement, any and all shares of Common Stock held, now
or hereafter, by the Common Holders.
(e) The number of shares of “Registrable Securities” outstanding shall be determined by the
number of shares of Common Stock outstanding that are, and the
number of shares of Common Stock issuable pursuant to then exercisable or convertible
securities that are, Registrable Securities.
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(f) The terms “Holder” or “Holders” means the Investors and any person or persons to
whom Registrable Securities were transferred under Section 1.10 hereof who hold Registrable
Securities. The terms Holder and Holders shall also include, but solely for purposes of
Sections 1.3, 1.5, 1.6, 1.7, 1.8, 1.12 and 1.14 of this Rights Agreement, the Common Holders.
(g) The term “Initiating Holders” means any Holder or Holders holding 50% or greater of the
aggregate of the Registrable Securities then outstanding; provided, however, the term
“Initiating Holders” shall mean any Holder or Holders holding any percentage of the aggregate of
Registrable Securities outstanding if the anticipated aggregate offering price of the securities
to be registered in the proposed registration exceeds $20,000,000.
(h) The term “SEC” means the Securities and Exchange Commission.
(i) The term “Registration Expenses” shall mean all expenses incurred by the Company in
complying with Sections 1.2, 1.3 and 1.4 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, reasonable fees and disbursements of one counsel for
all Holders which are selling Registrable Securities under such registration statement, blue sky
fees and expenses, and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the Company which shall be
paid in any event by the Company).
1.2 Demand Registration.
(a) Request for Registration. In case the Company shall receive from Initiating
Holders a written request that the Company effect a registration with respect to Registrable
Securities, the Company will:
(i) promptly give written notice of the proposed registration to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect all such registrations
(including, without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under the applicable blue sky or other state
securities laws and appropriate compliance with exemptive regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or such portion
of such Initiating Holder’s or Initiating Holders’ Registrable Securities as are specified
in such request, together with all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified in a written request given within
thirty (30) days after receipt of such written notice from the Company; provided,
however, that the Company shall not be obligated to take any action to effect such
registration pursuant to this Section 1.2:
(A) at any time prior to the earlier to occur of (1) March 1, 2007 or (2) 180 days
following the effective date of the registration statement
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under the Securities Act for the Company’s initial registered underwritten
public offering of its securities to the general public (other than a registration
statement relating either to the sale of securities to employees of the Company pursuant
to a stock option, stock purchase or similar plan or a SEC Rule 145 transaction) with a
per share price of at least $0.645 per share (as adjusted for stock splits,
combinations, and the like) and aggregate proceeds in excess of $20,000,000 (the
“Qualified IPO”);
(B) in any particular jurisdiction in which the Company would be required to
execute a general consent to service of process in effecting such registration,
qualification or compliance unless the Company is already subject to service in such
jurisdiction and except as required by the Securities Act; or
(C) after the Company has effected two (2) such registrations pursuant to this
Section 1.2(a) and such registrations have been declared or ordered effective.
Subject to the foregoing clauses (A) through (C), the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as soon as
practicable, but in any event within ninety (90) days, after receipt of the request or requests
of the Initiating Holders; provided, however, that if the Company shall furnish
to such Initiating Holders a certificate signed by the President of the Company stating that in
the good faith judgment of the Company’s board of directors (the “Board of Directors”), it would
be detrimental to the Company and its shareholders for such registration statement to be filed
on or before the date filing would be required and it is therefore essential to defer the filing
of such registration statement, the Company shall have the right to defer such filing for a
period of not more than ninety (90) days after the receipt of the request of the Initiating
Holders; and, provided further, however, that the Board of Directors shall not exercise such
right to defer a filing more than once in any consecutive twelve (12) month period.
(b) Underwriting. If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so advise the Company
as part of their request made pursuant to Section 1.2(a) and the Company shall include such
information in the written notice referred to in Section 1.2(a)(i). In such event, the
underwriter shall be selected by a majority in interest of the Initiating Holders and shall be
reasonably acceptable to the Company. The right of any Holder to registration pursuant to Section
1.2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of
such Holder’s Registrable Securities in the underwriting (unless otherwise mutually agreed by a
majority in interest of the Initiating Holders and such Holder) to the extent provided herein. The
Company shall (together with all Holders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the underwriter or
underwriters. Notwithstanding any other provision of this Section 1.2, if the underwriter advises
the Initiating Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, the Initiating Holders shall so advise all Holders, and the number of
shares of Registrable Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders; provided, however, that the
number of shares of Registrable Securities to be included in such underwriting shall not
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be reduced
unless all other securities are first entirely excluded from the underwriting. If any Holder of
Registrable Securities disapproves of the terms of the underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company, the underwriter and the Initiating Holders.
Any Registrable Securities which are excluded from the underwriting by reason of the underwriter’s
marketing limitation or withdrawn from such underwriting shall be withdrawn from such registration.
(c) Company Shares. If the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include securities for its own account
or for the account of others in such registration if the managing underwriter so agrees and if the
number of Registrable Securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
1.3 Company Registration.
(a) Registration. If at any time or from time to time, the Company shall determine
to register any of its securities, for its own account or the account of any of its
shareholders, other than a registration relating solely to employee stock option or purchase
plans, or a registration relating solely to an SEC Rule 145 transaction, or a registration on
any other form (other than Form X-0, X-0, X-0 or S-18, or their successor forms) or any
successor to such forms, which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of Registrable Securities,
the Company will:
(i) promptly give to each Holder written notice thereof and
(ii) include in such registration (and compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or requests, made
within twenty (20) days after receipt of such written notice from the Company, by any Holder
or Holders, except as set forth in Section 1.3(b) below.
(b) Underwriting. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section 1.3(a)(i). In
such event the right of any Holder to registration pursuant to Section 1.3 shall be conditioned
upon such Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided herein. All Holders proposing
to distribute their securities through such underwriting shall (together with the Company and
the other shareholders distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section 1.3, if the
underwriter determines that marketing factors require a limitation of the number of shares to be
underwritten, and (i) if such registration is in connection with the Qualified IPO, the
underwriter may limit the number of Registrable Securities to be included in the registration
and underwriting, or may exclude Registrable Securities entirely from such registration and
underwriting, or (ii) if such registration is other than the first registered offering of the
sale of the Company’s securities to the general public, the underwriter may
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limit the amount of securities to be included in the registration and underwriting by
the Company’s shareholders; provided, however, the number of Registrable
Securities to be included in such registration and underwriting under this Section 1.3(b)(ii)
shall not be reduced to less than 25% of the aggregate securities included in such registration
without the prior consent of the Holders of not less than a majority of the Registrable
Securities proposed to be included in such registration and underwriting. The Company shall so
advise all Holders of Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among Holders requesting
registration in proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by each of such Holders as of the date of the notice pursuant to Section
1.3(a)(i) above; provided, however, that in no instance shall shares of any
other selling shareholder or Registrable Securities held by the Common Holders be included in
such registration and underwriting if such inclusion would reduce the number of shares of
Registrable Securities held by other Holders able to be included in such registration and
underwriting. If any Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
1.4 Form S-3. In addition to the rights and obligations set forth in Section 1.2
above, if Holders holding 20% or more of the Registrable Securities then outstanding (“S-3
Holders”) request that the Company file a registration statement on Form S-3 (or any successor to
Form S-3) for a public offering of shares of Registrable Securities, the reasonably anticipated
aggregate price to the public of which (net of underwriting discounts and commissions) would exceed
$1,000,000 and the Company is then a registrant entitled to use Form S-3 (or any successor form to
Form S-3) to register the shares for such an offering, the Company shall use its
best efforts to cause such shares to be registered for the offering as soon as practicable on
Form S-3 (or any successor form to Form S-3); provided, however, the Company shall
not be required to effect a registration pursuant to this Section 1.4:
(a) in any particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction and except as
may be required by the Securities Act;
(b) if the Company, within ten (10) days of the receipt of the request of the S-3 Holders,
gives notice of its bona fide intention to effect the filing of a registration statement with
the SEC within forty-five (45) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction, an offering solely to employees or
any other registration which is not appropriate for the registration of Registrable Securities),
and does so file within said forty-five (45) day period and makes reasonable efforts to cause
such registration to become effective;
(c) during a period of ninety (90) days following the effective date of a registration
statement;
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(d) if the Company has effected two (2) registrations pursuant to this Section 1.4
within a twelve (12) month period from the date of such request; or
(e) if the Company shall furnish to such S-3 Holders a certificate signed by the President
of the Company stating that in the good faith judgment of the Board of Directors, it would be
detrimental to the Company and its shareholders for such registration statement to be filed on
or before the date filing would be required and it is therefore essential to defer the filing of
such registration statement, in which case the Company shall have the right to defer such filing
for a period of not more than ninety (90) days after the furnishing of such a certificate of
deferral; provided, however, that the Board of Directors shall not exercise such
right to defer a filing more than once in any consecutive twelve (12) month period.
In the event such S-3 Holders propose to offer the shares of Registrable Securities pursuant to
this Section 1.4 by means of an underwriting, the proposed underwriter(s) shall be reasonably
acceptable to the Company, provided, however, that in the event such underwriter(s)
is (are) not reasonably acceptable to the Company, the Company shall be required to furnish to the
Holders, within twenty (20) days of the receipt of the request for registration from S-3 Holders
pursuant to this Section 1.4, the names of at least two (2) underwriters acceptable to the Company,
who agree to act as underwriter for the proposed offering on terms no less favorable to the Holders
than those terms proposed in writing by the underwriter(s) selected by the S-3 Holders. The
Company shall give written notice to all Holders of the receipt of a request for registration
pursuant to this Section 1.4 and shall provide a reasonable opportunity for other Holders to
participate in the registration, provided that if the registration is for an underwritten offering,
the terms of Section 1.2(b) shall apply to all participants in such offering.
1.5 Expenses of Registration. All Registration Expenses incurred in connection with
any registration pursuant to this Section 1 shall be borne by the Company except as follows:
(a) The Company shall not be required to pay for expenses of any registration proceeding
begun pursuant to Section 1.2 the request for which has been subsequently withdrawn by the
Initiating Holders (in which case, such expenses shall be borne by the Holders requesting such
withdrawal), unless the Initiating Holders agree to forfeit their right to one (1) registration
pursuant to Section 1.2; provided, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the condition, business or
prospects of the Company from that known to the Holders at the time of their request and have
withdrawn the request with reasonable promptness following disclosure by the Company of such
material adverse change, then the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to Section 1.2 or 1.4.
(b) The Company shall not be required to pay fees or disbursements of legal counsel of a
Holder unless the Holders holding a majority of the shares included in the registration specify
one special counsel.
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(c) The Company shall not be required to pay underwriters’ fees, discounts or
commissions relating to Registrable Securities.
1.6 Registration Procedures. In the case of each registration effected by the Company
pursuant to this Rights Agreement, the Company will keep each Holder participating therein advised
in writing as to the initiation of each registration, qualification and compliance and as to the
completion thereof. Except as otherwise provided in Section 1.5, at its expense the Company will:
(a) Prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to become effective,
and, upon the request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred twenty (120) days
or, if a shorter period, until securities included in the registration statement are sold.
(b) Prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the disposition of Registrable Securities
owned by them.
(d) Use its best efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with the managing
underwriter of such offering. Each Holder participating in such underwriting shall also enter
into and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be delivered under the Securities Act
or the happening of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting registration of Registrable Securities
pursuant to this Section 1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
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Section 1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form and substance as
is customarily given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable Securities and
(ii) a letter dated such date, from the independent public accountants of the Company, in form
and substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
(h) Cause all such Registrable Securities registered pursuant hereunder to be listed on
each securities exchange on which similar securities issued by the Company are then listed.
(i) Provide a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not
later than the effective date of such registration.
1.7 Indemnification.
(a) The Company will indemnify and defend each Holder and each of its officers, directors,
members, managers, partners (including X.X. Xxxxxx Investment Management Inc. or JPMorgan Chase
Bank solely in their role as advisors to X.X. Xxxxxx Direct Venture Capital Institutional
Investors LLC, X.X. Xxxxxx Direct Venture Capital Private Investors LLC, or 000 Xxxxx Xxxxxx
Fund, L.P. referred to hereinafter as the “X.X. Xxxxxx Partners”), and each person controlling
such Holder, with respect to which a registration has been effected pursuant to this Rights
Agreement, and each underwriter, if any, and each person who controls any underwriter of the
Registrable Securities held by or issuable to such Holder, against all claims, losses, expenses,
damages and liabilities (or actions in respect thereto) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any registration
statement or prospectus incident to such registration, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation or alleged violation by the Company of
the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any
state securities law applicable to the Company or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any such state law and relating to action or inaction
required of the Company in connection with any such registration, and will reimburse each such
Holder, each of its officers, directors, members, managers, partners (including the X.X. Xxxxxx
Partners), and each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, as incurred for any reasonable legal and any other expenses
incurred in connection with investigating, defending or settling any such claim, loss, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 1.7(a) shall not apply to amounts paid in settlement of any such claim, loss,
damage, liability, or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld); and, provided further,
however, that the
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Company will not be liable in any such case to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by an instrument duly executed by such Holder or
underwriter specifically for use therein.
(b) Each Holder will, if Registrable Securities held by or issuable to such Holder are
included in the securities as to which such registration is being effected, indemnify and defend
the Company, each of its directors and officers, each underwriter, if any, of the Company’s
securities covered by such a registration statement, each person who controls the Company within
the meaning of the Securities Act, and each other such Holder, each of its officers, directors,
members, managers, partners (including the X.X. Xxxxxx Partners), and each person controlling
such other Holder, against all claims, losses, expenses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged untrue statement)
of a material fact contained in any registration statement or prospectus incident to such
registration, or any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse
the Company, such other Holders, such directors, officers, members, managers, partners
(including the X.X. Xxxxxx Partners), persons or underwriters for any reasonable legal or any
other expenses incurred in connection with investigating, defending or settling any such claim,
loss, damage, liability or action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such
registration statement or prospectus in reliance upon and in conformity with written information
furnished to the Company by such Holder in an instrument duly executed by such Holder
specifically for use therein; provided, however, that the indemnity agreement
contained in this Section 1.7(b) and Section 1.7(d) below shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if such settlement is effected
without the consent of such Holder (which consent shall not be unreasonably withheld or
delayed); and, provided further, that the total amount for which any Holder shall be liable
under this Section 1.7(b) shall not in any event exceed the aggregate proceeds received by such
Holder from the sale of Registrable Securities held by such Holder in such registration.
(c) Each party entitled to indemnification under this Section 1.7 (the “Indemnified Party”)
shall give notice to the party required to provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party who shall conduct the defense of such claim or litigation, shall be approved
by the Indemnified Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at its own expense; and, provided
further, that the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations hereunder, unless such failure resulted in
prejudice to the Indemnifying Party; and, provided further, however, that an
Indemnified Party (together with all other Indemnified Parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel, with the fees and
expenses to be paid by the Indemnifying Party, if representation of such Indemnified Party by
the counsel retained by the Indemnifying Party would be
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reasonably inappropriate due to a conflict of interests between such Indemnified Party
and any other party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.7 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any losses, claims,
damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection with the
violation(s) that resulted in such loss, claim, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by the indemnified
party and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided, however, that in no
event shall any contribution by a Holder hereunder and any indemnification by a holder pursuant
to Section 1.7(b) in the aggregate exceed the net proceeds from the offering received by such
Holder.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution combined in the underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing provisions, the provisions in
the underwriting agreement shall control.
(f) The obligations of the Company and Holders under this Section 1.7 shall survive
completion of any offering of Registrable Securities in a registration statement and the
termination of this agreement.
1.8 Information by Holder. Any Holder or Holders of Registrable Securities included
in any registration shall promptly furnish to the Company such information regarding such Holder or
Holders and the distribution proposed by such Holder or Holders as the Company may request in
writing and as shall be required in connection with any registration, qualification or compliance
referred to herein.
1.9 Rule 144 Reporting. With a view to making available to Holders the benefits of
certain rules and regulations of the SEC which may permit the sale of the Registrable Securities to
the public without registration, the Company agrees at all times to:
(a) make and keep public information available, as those terms are understood and defined
in SEC Rule 144, after ninety (90) days after the effective date of the first registration filed
by the Company for an offering of its securities to the general public;
ShoreTel (Series H) – Rights Agmt
-11-
(b) file with the SEC in a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements); and
(c) so long as a Holder owns any Registrable Securities, to furnish to such Holder
forthwith upon request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 (at any time after ninety (90) days after the effective
date of the first registration statement filed by the Company for an offering of its securities
to the general public), and of the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by the Company as the
Holder may reasonably request in complying with any rule or regulation of the SEC allowing the
Holder to sell any such securities without registration.
1.10 Transfer of Registration Rights. The Holders’ rights to cause the Company to
register their securities and ancillary rights and keep information available, granted to them by
the Company under the preceding Sections of this Section 1, may be assigned to a transferee or
assignee of at least 100,000 shares (as adjusted for stock splits, stock dividends,
recapitalization and like events) of a Holder’s Registrable Securities not sold to the public,
provided in each case that (a) the Company is given written notice by such Holder at the time of or
within a reasonable time after said transfer, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration rights are being
assigned, and (b) such transferee agrees to abide by and be bound by the terms of this Agreement.
The Company may prohibit the transfer of any Holders’ rights under this Section 1.10 to any
proposed transferee or assignee who the Company reasonably believes is a competitor of the Company.
Notwithstanding anything else in this Section 1.10, any Holder may transfer rights to a transferee
of fewer than 100,000 shares (as adjusted for stock splits, stock dividends, recapitalizations and
like events) of a Holder’s Registrable Securities if such transferee is an Affiliate of such
Holder.
1.11 Limitations on Subsequent Registration Rights. From and after the date hereof,
the Company shall not, without the prior written consent of the Holders (which consent will not be
unreasonably withheld) of not less than a majority of the Registrable Securities then outstanding
enter into any agreement, with any holder or prospective holder of any securities of the Company
which would allow such holder or prospective holder to demand any registration or include such
securities in any registration filed under Sections 1.2, 1.3 or 1.4 hereof if such inclusion would
adversely affect the rights of any Holder (or any qualifying transferee under
Section 1.10) under such Sections, including reducing the number of shares of Registrable
Securities of a Holder able to be included in any registration.
1.12 “Market Stand-Off” Agreement. Each Holder hereby agrees that, during the period
of duration (not to exceed one hundred eighty (180) days) specified by the Company and an
underwriter of common stock or other securities convertible into common stock of the Company
following the effective date of a registration statement of the Company filed under the Securities
Act, it shall not, to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase, pledge or otherwise transfer or dispose of (other than to donees who
ShoreTel (Series H) – Rights Agmt
-12-
agree to be similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided, however, that:
(a) such agreement shall be applicable only to the registration statement of the Company filed
in connection with the Qualified IPO; and
(b) such agreement shall not be required unless all officers and directors of the Company and
all holders of two percent or more of the Company’s outstanding capital stock (on a
common-equivalent basis) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions
with respect to the Registrable Securities of each Holder (and the shares of securities of every
other person subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, in the event that the Company or the underwriters shall release
from the terms of the foregoing lockup provisions or such agreements more than (i) 25,000 shares of
Registrable Securities held by any person or entity, or (ii) 250,000 shares of Registrable
Securities in the aggregate (any such amount released, the “Excess Release Amount”), the Company
shall immediately so notify all other holders of Registrable Securities and each holder of
Registrable Securities shall automatically be released from its lockup provided for in this Section
1.12 that amount of such holder’s Registrable Securities subject thereto equal to such holder’s
pro-rata share of the Excess Release Amount, determined in according to the amount of Registrable
Securities held by such holder.
Each Holder agrees that a legend reading substantially as follows shall be placed on all
certificates representing all Registrable Securities of each Holder (and the shares or securities
of every other person subject to the restriction contained in this Section 1.12):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD OF UP
TO 180 DAYS AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED
UNDER THE ACT, AS AMENDED, AS SET FORTH IN AN AGREEMENT BETWEEN
THE COMPANY AND THE ORIGINAL HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE
OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON
TRANSFEREES OF THESE SHARES.
1.13 Obligations of the Company — Cooperation. In the event of any underwritten
public offering undertaken pursuant to Sections 1.2 or 1.4, the Company shall cooperate with the
Holders requesting registration pursuant to this Section, the underwriters participating in the
offering and their counsel in any due diligence investigation reasonably requested by the Holders
or the underwriters in connection therewith, and participate, to the extent reasonably requested by
the managing underwriter for the offering or the Holders, in efforts to sell the Registrable
Securities under the offering (including without limitation, participating in “roadshow” meetings
with prospective investors) that would be customary for underwritten primary offerings of a
comparable amount of equity securities by the Company.
ShoreTel (Series H) – Rights Agmt
-13-
1.14 Termination of Registration Rights. The obligations of the Company pursuant
to this Section 1 shall terminate with respect to any Holder on the earlier of (i) the date five
(5) years after the closing of the Qualified IPO, or (ii) with respect to a Holder that, together
with its Affiliates, holds less than 1% of the outstanding common stock, the date on which such
Holder can sell all of his/her remaining Registrable Securities under Rule 144 during any three (3)
month period.
2. Investors’ Right of First Offer.
2.1 If, at any time prior to the termination of this right of first offer pursuant to Section
2.6, the Company should desire to issue in a transaction not registered under the Securities Act in
reliance upon a claimed exemption thereunder, any Equity Securities (as hereinafter defined), it
shall give each Investor the right to purchase such Investor’s pro rata share (or any part thereof)
of all of such privately offered Equity Securities on the same terms as the Company is willing to
sell such Equity Securities to any other person. Each Investor’s pro rata share of the Equity
Securities shall be equal to that percentage of the outstanding Common Stock then held by such
Investor. For purposes of this Section 2.1, the outstanding Common Stock shall include (a)
outstanding shares of Common Stock, and (b) shares of Common Stock issued or issuable upon exercise
and/or conversion of any then outstanding options (which are fully vested), warrants or shares of
the Preferred Stock.
2.2 Prior to any sale or issuance by the Company of any Equity Securities, the Company shall
notify each Investor in writing of its intention to sell and issue such securities, setting forth
the terms under which it proposes to make such sale. Within twenty (20) days after receipt of such
notice, each Investor shall notify the Company in writing whether such Investor desires to exercise
the option to purchase such Investor’s pro rata share (or any part thereof) of
the Equity Securities so offered. If an Investor elects to purchase such Investor’s pro rata
share, then such Investor shall have a right of over-allotment such that if any other Investor
fails to purchase such Investor’s pro rata share of the Equity Securities, such Investor(s) who
have elected to purchase their pro rata shares may purchase, on a pro rata basis, that portion of
the Equity Securities which such other Investors elected not to purchase.
2.3 After termination of the twenty (20) day period specified in Section 2.2 above, the
Company may, during a period of ninety (90) days following the end of such twenty (20) day period,
sell and issue such Equity Securities as to which (a) the Investors have no right under this
Section 2 to purchase, and (b) the Investors do not indicate a desire to purchase, to another
person upon the same terms and conditions as those set forth in the notice to the Investors. In
the event the Company has not sold the Equity Securities, or has not entered into an agreement to
sell the Equity Securities, within said ninety (90) day period, the Company shall not thereafter
issue or sell any Equity Securities without first offering such securities to the Investors in the
manner provided above.
2.4 If an Investor gives the Company written notice that such Investor desires to purchase any
of the Equity Securities offered by the Company, payment for the Equity Securities shall be by
check, or wire transfer, against delivery of the Equity Securities at the executive offices of the
Company within ten (10) days after giving the Company such notice, or, if later, the closing date
for the sale of such Equity Securities. The Company shall take all such
ShoreTel (Series H) – Rights Agmt
-14-
actions as may be required by any regulatory authority in connection with the exercise by
an Investor of the right to purchase Equity Securities as set forth in this Section 2.
2.5 The following shall not be deemed “Equity Securities”, and the right of first offer
contained in this Section 2 shall not apply to the issuance by the Company of the following: (a)
shares of Common Stock (and/or options, warrants and/or rights therefor) granted, issued or sold to
employees, consultants, advisors, directors or officers of the Company or any subsidiary of the
Company pursuant to stock grant, stock purchase and/or stock option plans, warrants, stock bonuses
or awards, or any other stock incentive program, agreement or arrangement approved by the Board of
Directors, (b) shares of Common Stock or Preferred Stock issuable upon exercise of any options,
warrants or rights to purchase any securities of the Company outstanding as of the date hereof, and
any securities issuable upon the conversion thereof, (c) shares of Common Stock or Preferred Stock
(and/or options, warrants and/or rights therefor) issued by the Company as part of bona fide
acquisitions by the Company of all or substantially all of the assets or shares of other companies
or entities whether through a merger, exchange, reorganization or the like, in each case which
transaction is approved by the Board of Directors, (d) shares of Common Stock or Preferred Stock
(and/or options, warrants and/or rights therefor) issued by the Company pursuant to financial
institutions or lessors in connection with commercial credit arrangements, equipment financing or
leasing arrangements, leases of real or personal property, or in connection with strategic
transactions involving the Company (including without limitation joint ventures, manufacturing,
marketing and distribution arrangements, and
technology transfer and development arrangements), in each case which transaction or
arrangement is approved by the Board of Directors and the principal purpose thereof is not to raise
additional equity capital for the Company, (e) shares of Series H Preferred Stock issued pursuant
to the Series H Agreement, (f) shares of Common Stock issued upon conversion of shares of the
Preferred Stock outstanding as of the date hereof, or upon conversion of shares of Series H
Preferred Stock issued pursuant to the Series H Agreement, (g) shares of Common Stock or Preferred
Stock (and/or options, warrants and/or rights therefor) issued in connection with any stock split,
stock dividend, recapitalization or similar event, or (h) shares of Common Stock (and/or options,
warrants and/or rights therefor) issued in connection with an underwritten public offering of
shares of the Company’s capital stock.
2.6 The right of first offer contained in this Section 2 shall terminate upon the earliest to
occur of (a) the consummation of the Qualified IPO or (b) the closing of (i) a merger or
consolidation of the Company with or into any other corporation in which the Company’s shareholders
shall own less than 50% of the voting securities of the surviving corporation, (ii) a sale,
transfer, or disposition of all or substantially all of the assets of the Company, or (iii) the
grant by the Company of an exclusive license of all or substantially all of the Company’s material
intellectual property assets.
2.7 The term “Equity Securities” shall mean (a) Common Stock or Preferred Stock, or equity
security and rights, options or warrants to purchase Common Stock or Preferred Stock or equity
security, (b) any security other than Common Stock or Preferred Stock having voting rights in the
election of the Board of Directors, not contingent upon a failure to pay dividends, (c) any
security convertible into or exchangeable for any of the foregoing, and (d) any agreement or
commitment to issue any of the foregoing.
ShoreTel (Series H) – Rights Agmt
-15-
2.8 An Investor’s right to purchase any Equity Securities pursuant to this Section 2 may
be assigned by an Investor to an Affiliate of an Investor.
3. Information Rights.
3.1 Annual Financial Information; Business Plan; Budget. As soon as practicable after
the end of each fiscal year, and in any event within ninety (90) days thereafter, the Company will
furnish to each Investor, audited financial statements, including consolidated balance sheets of
the Company and its subsidiaries, if any, as at the end of such fiscal year and consolidated
statements of income and surplus and consolidated statements of changes in financial position of
the Company and its subsidiaries, if any, for such year, prepared in accordance with generally
accepted accounting principles. Not later than thirty (30) days prior to
the beginning of each fiscal year of the Company, the Company will deliver to each Investor
the Company’s business plan and projected operating budget for the next fiscal year.
3.2 Quarterly Financial Information. As soon as available and in any event within
forty-five (45) days after each quarterly accounting period, the Company will furnish to each
Investor quarterly financial statements of the Company, including a balance sheet, profit and loss
statement, cash flow analysis and a comparison to budget.
3.3 Inspection. The Company shall permit each Investor, at such Investor’s expense,
to visit and inspect the Company’s properties, to examine its books of account and records and to
discuss the Company’s affairs, finances and accounts with its officers, all at such reasonable
times as may be requested by the Investor; provided, however, that the Company
shall not be obligated pursuant to this Section 3.3 to provide access to any information that it
reasonably considers to be a trade secret or similar confidential information.
3.4 Other Information. For so long as any Investor holds at least 1,000,000 shares of
Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof, as
adjusted for stock splits, combinations, and the like), the Company shall make available to such
Investor such other information relating to the Company’s financial condition, business prospects,
or corporate affairs as such Investor may from time to time reasonably request.
3.5 Confidentiality of Information. Each Investor agrees that any information
obtained by it pursuant to Sections 3.1, 3.2, 3.3 and 3.4 will not be disclosed to any person or
entity without the prior written consent of the Company; provided, however, that
such consent shall not be unreasonably withheld and that notwithstanding the foregoing, each
Investor may disclose such information without the prior written consent of the Company to its
members, partners, shareholders, legal counsel, professional accountants, investment advisor,
associates or employees in order to evaluate this investment and as may be necessary to continue to
evaluate the Company and provided further, that any Investor may provide financial information to
its partners or members as required by any partnership agreement or limited liability operating
agreement. Each Investor agrees that any recipient of information obtained by the Investor
pursuant to Sections 3.1, 3.2, 3.3 and 3.4 shall agree to be bound by the provisions of this
Section 3.5 respect to such information. Each Investor’s obligations under this Section 3.5 shall
not apply to any information which:
ShoreTel (Series H) – Rights Agmt
-16-
(a) was in the public domain at the time it was communicated to the Investor by the
Company;
(b) entered the public domain subsequent to the time it was communicated to the Investor
through no fault of the Investor;
(c) was in the Investor’s possession free of any obligation of confidence at the time it
was communicated to the Investor by the Company;
(d) was rightfully communicated to the Investor by a third party free of any obligation of
confidence subsequent to the time it was communicated to the Investor by the Company;
(e) was disclosed by the Investor in response to a valid order by a court or other
governmental body, was otherwise required to be disclosed by law, or was necessary to establish
the rights of either party under this Rights Agreement; or
(f) was independently developed by the Investor without using the confidential information
of the Company.
3.6 Termination of Covenants. The covenants set forth in Sections 3.1, 3.2, 3.3 and
3.4 shall terminate and be of no further force and effect upon the earlier to occur of (a) the
Qualified IPO or (b) upon any merger or consolidation of the Company with any other corporation in
which the shareholders of the Company immediately prior to such transaction shall own less than 50%
of the voting securities of the surviving corporation.
4. General.
4.1 Waivers and Amendments. With the written consent of the record or beneficial
holders of at least a majority of the Registrable Securities (other than Registrable Securities
consisting of Common Stock held by the Common Holders), the obligations of the Company and the
rights of the parties under this agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively, and either for a specified period of time or
indefinitely), and with the same consent the Company, when authorized by resolution of its Board of
Directors, may enter into a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Rights Agreement;
provided, however, that no such modification, amendment or waiver shall adversely
affect the rights of the Common Holders under this Rights Agreement with respect to shares of
Common Stock held by such Common Holders without the prior written consent of the record or
beneficial holders of at least a majority of the shares of outstanding Common Stock then held by
the Common Holders. Upon the effectuation of each such waiver, consent, agreement of amendment or
modification, the Company shall promptly give written notice thereof to the record holders of the
Registrable Securities who have not previously consented thereto in writing. This Rights Agreement
or any provision hereof may be changed, waived, discharged or terminated only by a statement in
writing signed by the party against which enforcement of the change, waiver, discharge or
termination is sought, except to the extent provided in this Section 4.1.
ShoreTel (Series H) – Rights Agmt
-17-
4.2 Employee Agreements. Unless otherwise approved by the Board of Directors,
all current and future officers and employees of (except for the Common Holders) and consultants to
the Company who shall purchase (other than by exercise of stock options meeting the requirements of
this Section 4.2), or receive options to purchase, shares of Common Stock following the date hereof
shall be required to (i) execute stock purchase or option agreements providing for (x) in the case
of initial grants to individuals, vesting of shares over a four-year period with the first 25% of
such shares vesting following twelve (12) months of continued employment or services, and the
remaining shares vesting thereafter at the rate of 1/48 at the end of each month until all of the
shares are vested; or (y) in the case of merit grants vesting at the rate of 1/48 at the end of
each month; or (z) as otherwise approved by the Board of Directors, and (ii) enter into a “market
stand-off” agreement as provided in Section 1.12 hereof.
4.3 Aggregation of Stock. All Registrable Securities held or acquired by Affiliates
shall be aggregated together for the purpose of determining the availability of any rights under
this Agreement.
4.4 Governing Law. This Rights Agreement shall be governed in all respects by the
laws of the State of California as such laws are applied to agreements between California residents
entered into and to be performed entirely within California.
4.5 Successors and Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto.
4.6 Entire Rights Agreement. Except as set forth below, this Rights Agreement and the
other documents delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof, and this Rights
Agreement shall supersede and cancel all prior agreements between the parties hereto with regard to
the subject matter hereof, including but not limited to the Prior Rights Agreement.
4.7 Notices. All notices and other communications required or permitted hereunder
shall be in writing and shall be delivered by overnight courier service or mailed by first class
mail, postage prepaid, certified or registered mail, return receipt requested, addressed (a) if to
any Investor, at such party’s address as set forth in the Company’s records, or at such other
address as such party shall have furnished to the Company in writing, or (b) if to the Company,
attention Chief Financial Officer, ShoreTel, Inc., 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000,
Facsimile: (000) 000-0000, or at such other address as the Company shall have furnished to the
Investor in writing.
4.8 Severability. In case any provision of this Rights Agreement shall be invalid,
illegal, or unenforceable, the validity, legality and enforceability of the remaining
provisions of this Rights Agreement or any provision of the other agreements among the
Investors and the Company shall not in any way be affected or impaired thereby.
ShoreTel (Series H) – Rights Agmt
-18-
4.9 Titles and Subtitles. The titles of the sections and Sections of this Rights
Agreement are for convenience of reference only and are not to be considered in construing this
Rights Agreement.
4.10 Counterparts and Facsimile Signature. This Rights Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which together shall
constitute one instrument. This Agreement may be executed and delivered by facsimile or electronic
mail and upon such delivery the facsimile or electronic signature will be deemed to have the same
effect as if the original signature had been delivered to the other party.
[Signature Page Follows]
ShoreTel (Series H) – Rights Agmt
-19-
IN WITNESS WHEREOF, the parties hereby have executed this Rights Agreement on the date
first above written.
THE COMPANY:
SHORETEL, INC.
By:
|
/s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, |
||||
| Chief Executive Officer |
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
INVESTORS:
| CROSSPOINT VENTURE PARTNERS 2000 Q, L.P. | ||||
| Signature: | /s/ Xxxx X. Xxxxxx | |||
| Print Name: | Xxxx Xxxxxx | |||
| Print Title: | Managing Partner | |||
| CROSSPOINT VENTURE PARTNERS 2000, L.P. | ||||
| Signature: | /s/ Xxxx X. Xxxxxx | |||
| Print Name: | Xxxx Xxxxxx | |||
| Print Title: | Managing Partner | |||
| CROSSPOINT VENTURE PARTNERS 1996 | ||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Partner | |||
| CROSSPOINT VENTURE PARTNERS LS2000 LP | ||||
| By: : | /s/ Xxxx X. Xxxxxx | |||
| Name : | Xxxx Xxxxxx | |||
| Title: | Managing Partner | |||
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
| LBI GROUP INC. | ||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | ||||
| XXXXXX BROTHERS P.A. LLC | ||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | ||||
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
| XXXXXX BROTHERS VENTURE CAPITAL PARTNERS II, L.P. | ||||
| By: | Xxxxxx Brothers Venture Associates II LLC, its General Partner | |||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | ||||
| XXXXXX BROTHERS PARTNERSHIP | ||||
| ACCOUNT 2000/2001, L.P. | ||||
| By: | Xxxxxx Brothers Partnership GP 2000/2001, L.P., its General Partner |
|||
| By: | LB I Group Inc., its General Partner | |||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | ||||
| XXXXXX BROTHERS OFFSHORE PARTNERSHIP ACCOUNT 2000/2001, L.P. |
||||
| By: | Xxxxxx Brothers Offshore Partnership GP 2000/2001, L.P., its General Partner |
|||
| By: | Xxxxxx Brothers Offshore Partners Ltd., its General Partner | |||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | ||||
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
| FOUNDATION CAPITAL, L.P. | ||||
| By: Foundation Capital Management, LLC | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Manager | ||||
| FOUNDATION CAPITAL | ||||
| ENTREPRENEURS FUND, LLC |
||||
| By: Foundation Capital Management, LLC | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Manager | ||||
| FOUNDATION CAPITAL LEADERSHIP FUND, L.P. | ||||
| By: | FC Leadership Management Co., LLC | |||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Manager | ||||
| FOUNDATION CAPITAL LEADERSHIP PRINCIPALS FUND, LLC |
||||
| By: | FC Leadership Management Co., LLC | |||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Manager | ||||
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
| X.X. XXXXXX DIRECT VENTURE CAPITAL | ||||
| INSTITUTIONAL INVESTORS LLC | ||||
| By: | JPMorgan Chase Bank (as investment advisor) | |||
| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx, Managing Director | ||||
| X.X. XXXXXX DIRECT VENTURE CAPITAL | ||||
| PRIVATE INVESTORS LLC | ||||
| By: | X.X. Xxxxxx Investment Management Inc. | |||
| (as investment advisor) | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx, Managing Director | ||||
| 000 XXXXX XXXXXX FUND, L.P. | ||||
| (2004 PROGRAM) | ||||
| By: | X.X. Xxxxxx Investment Management Inc. | |||
| (as investment advisor) | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx, Managing Director | ||||
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
| /s/ Xxxxx Xxxxxx | ||||
| Xxxxx Xxxxxx | ||||
[Signature page to Seventh Amended and Restated Rights Agreement]
ShoreTel (Series H) – Rights Agmt
EXHIBIT A
INVESTORS
Crosspoint Venture Partners 1996
Crosspoint Venture Partners XX0000 X.X.
Xxxxxxxxxx Venture Partners 2000 Q L.P.
Crosspoint Venture Partners 2000 L.P.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
Crosspoint Venture Partners XX0000 X.X.
Xxxxxxxxxx Venture Partners 2000 Q L.P.
Crosspoint Venture Partners 2000 L.P.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
LB I Group Inc.
Xxxxxx Brothers P.A. LLC
Xxxxxx Brothers Venture Capital Partners II, X.X.
Xxxxxx Brothers Partnership Account 2000/2001, X.X.
Xxxxxx Brothers Offshore Partnership Account 2000/2001, L.P.
c/x Xxxxxx Brothers
000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxx
Xxxxxx Brothers P.A. LLC
Xxxxxx Brothers Venture Capital Partners II, X.X.
Xxxxxx Brothers Partnership Account 2000/2001, X.X.
Xxxxxx Brothers Offshore Partnership Account 2000/2001, L.P.
c/x Xxxxxx Brothers
000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxx
Foundation Capital, L.P.
Foundation Capital Entrepreneurs Fund, LLC
Foundation Capital Leadership Fund, L.P.
Foundation Capital Leadership Principals Fund, LLC
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
Foundation Capital Entrepreneurs Fund, LLC
Foundation Capital Leadership Fund, L.P.
Foundation Capital Leadership Principals Fund, LLC
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxx Xxxxxx
X.X. Xxxxxx Direct Venture Capital Institutional Investors LLC
X.X. Xxxxxx Direct Venture Capital Private Investors LLC
000 Xxxxx Xxxxxx Fund, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxxx
X.X. Xxxxxx Direct Venture Capital Private Investors LLC
000 Xxxxx Xxxxxx Fund, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxxx
Focus Ventures, L.P.
Focus Ventures Co-Investment Fund, L.P.
FV Investors, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Mr. Xxxxxx Xxxx
Focus Ventures Co-Investment Fund, L.P.
FV Investors, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Attn: Mr. Xxxxxx Xxxx
Matrix Partners IV, L.P.
Matrix IV Entrepreneurs Fund, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
Matrix IV Entrepreneurs Fund, L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
ShoreTel (Series H) – Rights Agmt
Norwest Venture Partners VI, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Mr. Xxxx Xxxxxx
JAFCO Co., LTD.
JAFCO R-3 Investment Enterprise Partnership
JAFCO JS-3 Investment Enterprise Partnership
JAFCO G-6(A) Investment Enterprise Partnership
JAFCO G-6(B) Investment Enterprise Partnership
JAFCO G-7(A) Investment Enterprise Partnership
JAFCO G-7(B) Investment Enterprise Partnership
JAFCO America Ventures Inc.
U.S. Information Technology No. 2 Investment Enterprise Partnership
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Mr. Xxxx Xxxxxx
JAFCO Co., LTD.
JAFCO R-3 Investment Enterprise Partnership
JAFCO JS-3 Investment Enterprise Partnership
JAFCO G-6(A) Investment Enterprise Partnership
JAFCO G-6(B) Investment Enterprise Partnership
JAFCO G-7(A) Investment Enterprise Partnership
JAFCO G-7(B) Investment Enterprise Partnership
JAFCO America Ventures Inc.
U.S. Information Technology No. 2 Investment Enterprise Partnership
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
Silicon Valley Bank
0000 Xxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
0000 Xxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
WS Investment 97A
WS Investment 99B
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxx Xxxxxxxxx
WS Investment 99B
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xx. Xxx Xxxxxxxxx
Xxxxxx xxx Xxxxxxxx
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
c/o ShoreTel, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
ShoreTel (Series H) – Rights Agmt
