Exhibit 10.5
AIRVANA, INC.
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Agreement, dated as of February 8, 2002, is entered into by and among
Airvana, Inc., a Delaware corporation (the "Company"), the persons and entities
listed on Schedule A hereto (individually, a "Preferred Investor", and
collectively, the "Preferred Investors"), the persons and entities listed on
Schedule B hereto (individually, an "Other Investor", and collectively, the
"Other Investors"), Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx (individually, a "Founder",
and collectively, the "Founders") and Silicon Valley Bank, CommVest LLC and GATX
Ventures, Inc. (collectively, the "Warrant Holders").
BACKGROUND
WHEREAS, the Company, certain of the Preferred Investors, certain of the
Other Investors, the Founders and the Warrant Holders have previously entered
into an Amended and Restated Investor Rights Agreement, dated February 6, 2001
(as amended, the "Prior Investor Agreement");
WHEREAS, the Company, certain of the Preferred Investors and certain of the
Other Investors have entered into a Series C Preferred Stock Purchase Agreement
of even date herewith (the "Purchase Agreement");
WHEREAS, in order to induce such Preferred Investors and Other Investors to
enter into the Purchase Agreement, the Company has agreed to provide the
Preferred Investors and the Other Investors with the stockholder rights set
forth in this agreement, subject to the terms, provisions and conditions set
forth herein; and
WHEREAS, the Company, the Preferred Investors, the Other Investors, the
Founders and the Warrant Holders wish to provide stockholder rights to the
Preferred Investors, the Other Investors and the Warrant Holders pursuant to a
single agreement, and thereby intend this Agreement to supersede the Prior
Investor Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and the consummation of the sale and purchase of
the Series C Convertible Preferred Stock pursuant to the Series C Purchase
Agreement, and for other valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $0.001 par value per share, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Initial Public Offering" means the sale of shares of Common Stock in a
firm commitment underwritten public offering pursuant to a Registration
Statement at a price to the public of at least $7.00 per share (adjusted for
stock splits, stock dividends and similar events affecting the Common Stock)
resulting in proceeds (net of the underwriting discounts or commissions and
offering expenses) to the Company of at least $20,000,000.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock by
the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a similar limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 4 of
Article III below.
"Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of the Shares, (ii) solely for the purposes of Sections
2 through 10 of Article III hereof, shares of Common Stock held by the Founders,
(iii) solely for the purposes of Sections 2 through 10 of Article III hereof,
shares of Common Stock issued or issuable upon conversion of any Warrant Shares
held by the Warrant Holders, (iv) any shares of Common Stock, and any shares of
Common Stock issued or issuable upon the conversion or exercise of any other
securities, acquired by the Preferred Investors pursuant to Article IV of this
Agreement or pursuant to the Second Amended and Restated Right of First Refusal
and Co-Sale Agreement of even date herewith among the Company, the Preferred
Investors and certain other parties thereto, and (v) any other shares of Common
Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); provided,
however, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares (a) upon any sale of such shares pursuant to a
Registration Statement or Rule 144 under the Securities Act, (b) upon any sale
of such shares in any manner to a person or entity which, by virtue of Section 2
of Article V of this Agreement, is not entitled to the rights provided by this
Agreement, or (c) for purposes of Section 2 of Article III hereof, following the
third anniversary of the Initial Public Offering. Wherever reference is made in
this Agreement to a request or consent of holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include shares of
Common Stock issuable upon conversion of the Shares even if such conversion has
not yet been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"Shares" means (i) the Series A Convertible Preferred Stock of the Company,
par value $.01 per share, (ii) the Series B1 Convertible Preferred Stock of the
Company, par value $.01 per share, (iii) the Series B2 Convertible Preferred
Stock of the Company, par value $.01 per share and (iv) the Series C Convertible
Preferred Stock of the Company, par value $.01 per share.
-2-
"Stockholders" means (i) the Preferred Investors, (ii) the Founders, (iii)
any persons or entities to whom the rights granted to Preferred Investors under
this Agreement are transferred by a Preferred Investor, its successors or
permitted assigns pursuant to Section 2 of Article V below and (iv) for the
purposes of Article III only, the Other Investors and the Warrant Holders.
"Warrant Shares" means Shares issued or issuable upon exercise of warrants
issued to the Warrant Holders in October 2001.
ARTICLE II. ELECTION OF DIRECTORS
1. Voting of Shares. In any and all elections of directors of the Company
(whether at a meeting or by written consent in lieu of a meeting), each
Stockholder shall vote or cause to be voted all Voting Shares (as defined in
Section 2 of Article II below) owned by him, her or it, or over which he, she or
it has voting control, and otherwise use his, her or its respective best
efforts, so as to fix the number of directors at six and to elect as directors:
(a) Xxxxxxx Xxxxx, as long as he is employed by the Company;
(b) Xxxxx Xxxxxxxx, as long as he is employed by the Company;
(c) Xxxxxxx Xxxxxx, as long as he is employed by the Company;
(d) two individuals designated by Matrix Partners VI, L.P., who shall
initially be Xxxx Xxxxx and Xxxxx Xxxxxxx;
(e) Xxxx Xxxxxxxxx as long as he is a stockholder, or his affiliates
are stockholders, of the Company; and
(f) one individual who is independent and is approved by (a) the Chief
Executive Officer, (b) the holders a majority of the then outstanding Shares and
(c) at least one Founder, if at least one Founder is then serving on the Board
of Directors, who shall initially be Xxxxxx Xxxxx.
If and when the Board of Directors deems it appropriate to elect an eighth
director, the Stockholders shall agree to vote all of their Voting Shares to
elect such eighth director as long as he or she is an independent director and
is approved by (a) the Chief Executive Officer, (b) the holders a majority of
the then outstanding Shares and (c) at least one Founder, if at least one
Founder is then serving on the Board of Directors.
2. Voting Shares. "Voting Shares" shall mean and include any and all shares
of the Common Stock, Shares, and/or shares of capital stock of the Company, by
whatever name called, which carry voting rights (including voting rights which
arise by reason of default).
3. Restrictive Legend. All certificates representing Voting Shares owned or
hereafter acquired by the Stockholders or any transferee bound by this Agreement
shall have affixed thereto a legend substantially in the following form:
-3-
"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in a Second Amended and
Restated Investor Rights Agreement by and among the registered owner
of this certificate, the Company and certain other stockholders of the
Company, a copy of which is available for inspection at the offices of
the Secretary of the Company."
4. Transfers of Voting Rights. Any transferee to whom Voting Shares are
transferred by a Stockholder, whether voluntarily or by operation of law, shall
be bound by the voting obligations imposed upon the transferor under this
Agreement, to the same extent as if such transferee were a Stockholder
hereunder.
ARTICLE III. REGISTRATION RIGHTS
1. Required Registrations.
(a) At any time after the earlier of December 31, 2004 or 180 days
after the closing of the Company's first underwritten public offering of shares
of Common Stock pursuant to a Registration Statement, Stockholders holding in
the aggregate at least 35% of the Registrable Shares held by the Stockholders
may request, in writing, that the Company effect the registration on Form S-1 or
Form S-2 (or any successor form) of Registrable Shares owned by such
Stockholders having an aggregate offering price of at least $5,000,000 (based on
the market price or fair value at the time of such request). If the Stockholders
initiating the registration intend to distribute the Registrable Shares by means
of an underwriting, they shall so advise the Company in their request.
Thereupon, the Company shall, as expeditiously as possible, use its reasonable
best efforts to effect the registration on Form S-1 or Form S-2 (or any
successor form) of all Registrable Shares which the Company has been requested
to so register.
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Stockholder or Stockholders may request the Company, in writing,
to effect the registration on Form S-3 (or such successor form), of Registrable
Shares having an aggregate offering price of at least $1,000,000 (based on the
public market price at the time of such request). Thereupon, the Company shall,
as expeditiously as possible, use its reasonable best efforts to effect the
registration on Form S-3 (or such successor form) of all Registrable Shares
which the Company has been requested to so register.
(c) The Company shall not be required to effect more than three
registrations pursuant to paragraph (a) above; provided, however, that such
obligation shall be deemed satisfied only when a registration statement covering
the applicable Registrable Shares shall have (i) become effective or (ii) been
withdrawn at the request of the Stockholders requesting such registration (other
than as a result of information concerning the business or financial condition
of the Company which is made known to the Stockholders after the date on which
such registration was requested). There shall be no limit to the number of
registrations which may be requested and obtained pursuant to paragraph (b)
above.
-4-
(d) If at the time of any request to register Registrable Shares
pursuant to this Section 1, the Company is engaged or has plans to engage within
90 days of the time of the request in a registered public offering of securities
for its own account or is engaged in any other activity which, in the good faith
determination of the Company's Board of Directors, would be adversely affected
by the requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period not
in excess of three months from the effective date of such offering or the date
of commencement of such other material activity, as the case may be, such right
to delay a request to be exercised by the Company not more than once in any
12-month period.
2. Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement at
any time and from time to time, it will, prior to such filing, give written
notice to all Stockholders of its intention to do so and, upon the written
request of a Stockholder or Stockholders, given within 10 business days after
the Company provides such notice (which request shall state the intended method
of disposition of such Registrable Shares), the Company shall use its reasonable
best efforts to cause all Registrable Shares which the Company has been
requested by such Stockholder or Stockholders to register, to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Stockholder or Stockholders; provided, however, that the
Company shall have the right to postpone or withdraw any registration effected
pursuant to this Section 2 without obligation to any Stockholder.
(b) In connection with any registration under this Section 2 involving
an underwriting, the Company shall not be required to include any Registrable
Shares in such registration unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it. If in the opinion of the managing underwriter it is desirable because of
marketing factors or otherwise to limit the number of Registrable Shares to be
included in the offering, then the Company shall be required to include in the
registration only that number of Registrable Shares, if any, which the managing
underwriter believes should be included therein; provided, however, that no
persons or entities other than the Company, the Stockholders and other persons
or entities holding registration rights shall be permitted to include securities
in the offering. If the number of Registrable Shares to be included in the
offering in accordance with the foregoing is less than the total number of
shares which the holders of Registrable Shares have requested to be included,
then the holders of Registrable Shares who have requested registration and other
holders of securities entitled to include them in such registration shall
participate in the registration pro rata based upon their total ownership of
shares of Common Stock (giving effect to the conversion into Common Stock of all
securities convertible thereinto). If any holder would thus be entitled to
include more securities than such holder requested to be registered, the excess
shall be allocated among other requesting holders pro rata in the manner
described in the preceding sentence.
3. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its reasonable best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
-5-
(a) file with the Commission a Registration Statement with respect to
such Registrable Shares and use its reasonable best efforts to cause that
Registration Statement to become effective;
(b) as expeditiously as possible prepare and file with the Commission
any amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective, in the case of a firm commitment underwritten
public offering, until each underwriter has completed the distribution of all
securities purchased by it and, in the case of any other offering, until the
earlier of the sale of all Registrable Shares covered thereby or 180 days after
the effective date thereof;
(c) as expeditiously as possible furnish to each selling Stockholder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder; and
(d) as expeditiously as possible use its reasonable best efforts to
register or qualify the Registrable Shares covered by the Registration Statement
under the securities or Blue Sky laws of such states as the selling Stockholder
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholder to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; provided, however, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholder shall
immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide each selling
Stockholder with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholder shall be free to resume making offers of
the Registrable Shares.
If, after a registration statement becomes effective, the Company becomes
engaged in any activity which, in the good faith determination of the Company's
Board of Directors, involves information that would have to be disclosed in the
Registration Statement but which the Company desires to keep confidential for
valid business reasons, then the Company may at its option, by notice to such
Stockholders, require that the Stockholders who have included Shares in such
Registration Statement cease sales of such Shares under such Registration
Statement for a period not in excess of three months from the date of such
notice, such right to be exercised by the Company not more than once in any
12-month period. If, in connection therewith, the Company considers it
appropriate for such Registration Statement to be amended, the Company shall so
amend such Registration Statement as promptly as practicable and such
Stockholders shall suspend any further sales of their Shares until the Company
advises them that such Registration Statement has been amended. The time periods
referred to herein during which
-6-
such Registration Statement must be kept effective shall be extended for an
additional number of days equal to the number of days during which the right to
sell shares was suspended pursuant to this paragraph.
4. Allocation of Expenses. The Company will pay all Registration Expenses
of all registrations under this Agreement. For purposes of this Section 4, the
term "Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Article III, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company to represent the selling Stockholder(s), state Blue Sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration, but excluding underwriting discounts, selling
commissions and the fees and expenses of selling Stockholders' own counsel.
5. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Shares, each underwriter of
such Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such seller, underwriter
and each such controlling person for any legal or any other expenses reasonably
incurred by such seller, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to a
seller, underwriter or controlling person to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or final
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims,
-7-
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to such seller furnished in writing to the Company by or on
behalf of such seller specifically for use in connection with the preparation of
such Registration Statement, prospectus, amendment or supplement; provided,
however, that the obligations of each such Stockholder hereunder shall be
limited to an amount equal to the net proceeds to such Stockholder of
Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Article III,
Section 5 (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, 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, provided further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article III, Section 5, unless
and except to the extent that the Indemnifying Party is prejudiced by the
failure of the Indemnified Party to provide timely notice. The Indemnified Party
may participate in such defense at such party's expense; provided, however, that
the Indemnifying Party shall pay such expense if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
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 of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Article III, Section 5 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Article III, Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling Stockholder or any such controlling person in circumstances for which
indemnification is provided under this Article III, Section 5; then, in each
such case, the Company and such Stockholder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportions so
-8-
that such holder is responsible for the portion represented by the percentage
that the public offering price of its Registrable Shares offered by the
Registration Statement bears to the public offering price of all securities
offered by such Registration Statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such holder
will be required to contribute any amount in excess of the net proceeds to it of
all Registrable Shares sold by it pursuant to such Registration Statement, and
(B) no person or entity guilty of fraudulent misrepresentation, within the
meaning of Section 11(f) of the Securities Act, shall be entitled to
contribution from any person or entity who is not guilty of such fraudulent
misrepresentation.
6. Indemnification with Respect to Underwritten Offering. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering, the Company agrees to enter into an underwriting
agreement containing customary representations and warranties with respect to
the business and operations of an issuer of the securities being registered and
customary covenants and agreements to be performed by such issuer, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering.
7. Information by Holder. Each Stockholder including Registrable Shares in
any registration shall furnish to the Company such information regarding such
Stockholder and the distribution proposed by such Stockholder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
8. "Stand-Off" Agreement. Each Stockholder, if requested by the Company and
the managing underwriter of an offering by the Company of Common Stock or other
securities of the Company pursuant to a Registration Statement, shall not sell,
contract to sell, grant any option to purchase, make any short sale or otherwise
dispose of any Registrable Shares or other securities of the Company held by
such Stockholder for a specified period of time (not to exceed 180 days)
following the effective date of such Registration Statement; provided, that:
(a) such agreement shall only apply to the first Registration
Statement covering Common Stock to be sold by or on behalf of the Company to the
public in an underwritten offering; and
(b) all officers and directors of the Company and all stockholders
holding more than 1%, by voting power, of the outstanding capital stock of the
Company enter into similar agreements.
9. Limitations on Subsequent Registration Rights. The Company shall not,
without the prior written consent of Preferred Investors holding a majority of
the Registrable Shares held by all Preferred Investors, enter into any agreement
(other than this Agreement) with any holder or prospective holder of any
securities of the Company which would allow such holder or prospective holder
(a) to include securities of the Company in any Registration Statement upon
terms which are more favorable to such holder or prospective holder than the
terms on which holders of Registrable Shares may include shares in such
registration, or (b) to make a demand registration which could result in such
registration statement being declared effective prior to
-9-
December 31, 2004.
10. Rule 144 Requirements. After the earliest of (a) the closing of the
sale of securities of the Company pursuant to a Registration Statement, (b) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (c) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) use its best efforts to file with the Commission 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) furnish to any holder of Registrable Shares upon request (A) a
written statement by the Company as to its compliance with the requirements of
said Rule 144(c), and the reporting requirements of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (B) a copy of the most recent annual or quarterly report of the
Company, and (C) such other reports and documents of the Company as such holder
may reasonably request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
ARTICLE IV. RIGHT OF FIRST REFUSAL
1. Right of First Refusal.
(a) The Company shall not issue, sell or exchange, agree to issue,
sell or exchange, or reserve or set aside for issuance, sale or exchange, (i)
any shares of its Common Stock, (ii) any other equity securities of the Company,
including, without limitation, shares of preferred stock, (iii) any option,
warrant or other right to subscribe for, purchase or otherwise acquire any
equity securities of the Company, or (iv) any debt securities convertible into
capital stock of the Company (collectively, the "Offered Securities"), unless in
each such case the Company shall have first complied with Article IV of this
Agreement. The Company shall deliver to each Preferred Investor a written notice
of any proposed or intended issuance, sale or exchange of Offered Securities
(the "Offer"), which Offer shall (i) identify and describe the Offered
Securities, (ii) describe the price and other terms upon which they are to be
issued, sold or exchanged, and the number or amount of the Offered Securities to
be issued, sold or exchanged, (iii) identify the persons or entities, if known,
to which or with which the Offered Securities are to be offered, issued, sold or
exchanged, and (iv) offer to issue and sell to or exchange with such Preferred
Investor such portion of 50% of the Offered Securities as is equal to a
fraction, the numerator of which is the aggregate number of shares of Common
Stock issued or issuable upon conversion of the Shares then held by such
Preferred Investor and the denominator of which is the total number of shares of
Common Stock issued or issuable upon conversion of all Shares then held by all
Preferred Investors (the "Pro Rata Share"), plus an additional portion of 50% of
the Offered Securities attributable to the Pro Rata Shares of other Preferred
Investors as such Preferred Investor shall indicate it will purchase or acquire
should the
-10-
other Preferred Investors subscribe for less than their full Pro Rata Shares
(the "Undersubscription Amount"). Each Preferred Investor shall have the right,
for a period of 20 days following delivery of the Offer, to purchase or acquire,
at the price and upon the other terms specified in the Offer, the number or
amount of Offered Securities described above. The Offer by its terms shall
remain open and irrevocable for such 20-day period.
(b) To accept an Offer, in whole or in part, a Preferred Investor must
deliver a written notice to the Company prior to the end of the 20-day period of
the Offer, setting forth the portion of such Preferred Investor's Pro Rata Share
that such Preferred Investor elects to purchase and if such Preferred Investor
shall elect to purchase all of its Pro Rata Share, the Undersubscription Amount,
if any, that such Preferred Investor elects to purchase (a "Notice of
Acceptance"). If the Pro Rata Shares subscribed by all Preferred Investors are
less than the total of all of the Pro Rata Shares available for purchase, each
Preferred Investor who had set forth an Undersubscription Amount in its Notice
of Acceptance shall be entitled to purchase, in addition to the Pro Rata Share
subscribed for, the Undersubscription Amount it has subscribed for; provided,
however, that if the Undersubscription Amount subscribed for exceed the
difference between the total of all the Pro Rata Shares available for purchase
and the Pro Rata Shares subscribed for ("Available Undersubscription Amount"),
each Preferred Investor who has subscribed for an Undersubscription Amount shall
be entitled to purchase only that portion of the of the Available
Undersubscription Amount as the Undersubscription Amount subscribed for by such
Preferred Investor bears to the total Undersubscription Amounts subscribed for
by all Preferred Investors, subject to rounding by the Board of Directors to the
extent it deems necessary.
(c) The Company shall have 90 days from the expiration of the 20-day
period set forth in Section 1(a) to issue, sell or exchange all or any part of
such Offered Securities as to which a Notice of Acceptance has not been given by
the Preferred Investors (the "Available Securities"), but only upon terms and
conditions which are not more favorable, in the aggregate, to the acquiring
person or persons or less favorable to the Company than those set forth in the
Offer.
(d) Upon the closing of the issuance, sale or exchange of all or less
than all the Available Securities, the Preferred Investors shall acquire from
the Company, and the Company shall issue to the Preferred Investors, the number
or amount of Offered Securities specified in the Notices of Acceptance, upon the
terms and conditions specified in the Offer. The purchase by the Preferred
Investors of any Offered Securities is subject in all cases to the preparation,
execution and delivery by the Company and the Preferred Investors of a purchase
agreement relating to such Offered Securities reasonably satisfactory in form
and substance to the Preferred Investors and the Company.
(e) Any Offered Securities not acquired by the Preferred Investors or
other persons in accordance with Section 1(c) may not be issued, sold or
exchanged until they are again offered to the Preferred Investors under the
procedures specified in this Article.
2. Excluded Issuances. The rights of the Preferred Investors under this
Article IV shall not apply to:
-11-
(a) Common Stock issued as a stock dividend to holders of Common Stock
or upon any subdivision or combination of shares of Common Stock;
(b) the issuance of any shares of Common Stock upon conversion of
outstanding shares of convertible preferred stock;
(c) the issuance of Common Stock issuable upon the exercise of
warrants outstanding on the date hereof or upon the conversion of capital stock
of the Company issuable upon the exercise of warrants outstanding on the date
hereof;
(d) shares of Series C Preferred Stock issued pursuant to the Purchase
Agreement;
(e) up to 17,225,000 shares of Common Stock, either issued in the form
of restricted stock awards or options exercisable for Common Stock (subject to
appropriate adjustment for stock split, stock dividends, combinations and other
similar recapitalizations affecting such shares), plus such additional number of
shares as may be approved by a majority of the non-employee directors of the
Company, including the directors designated by the Preferred Stockholders,
issued or issuable to officers, directors, consultants and employees of the
Company or any subsidiary pursuant to any plan, agreement or arrangement
approved by the Board of Directors of the Company;
(f) securities issued solely in consideration for the acquisition
(whether by merger or otherwise) by the Company or any of its subsidiaries of
all or substantially all of the stock or assets of any other entity;
(g) shares of Common Stock sold by the Company in an underwritten
public offering pursuant to an effective registration statement under the
Securities Act; and
(h) securities issued to equipment lessors or commercial lenders, as
approved by a majority of the non-employee directors of the Company.
ARTICLE V. GENERAL
1. Termination. Article II and Article IV of this Agreement shall terminate
in their entirety upon the earlier of (a) an Acquisition (as defined below), or
(b) the closing of an Initial Public Offering, or (c) the redemption of all
Shares. An "Acquisition" shall mean any (i) merger or consolidation which
results in the voting securities of the Company outstanding immediately prior
thereto representing immediately thereafter (either by remaining outstanding or
by being converted into voting securities of the surviving or acquiring entity)
less than a majority of the combined voting power of the voting securities of
the Company or such surviving or acquiring entity outstanding immediately after
such merger or consolidation, (ii) sale of all or substantially all the assets
of the Company or (iii) sale of shares of capital stock of the Company, in a
single transaction or series of related transactions, representing at least 80%
of the voting power of the voting securities of the Company.
2. Transfer of Rights. This Agreement, and the rights and obligations of a
Preferred Investor or Other Investor hereunder, may be assigned by such
Preferred Investor or Other
-12-
Investor to any person or entity (a) which is an affiliate of such Preferred
Investor or Other Investor, (b) which is a parent, spouse, child, uncle, aunt,
brother or sister of such Preferred Investor or Other Investor or a trust for
their benefit, or (c) to which at least 75,000 Shares, or Registrable Shares
issuable upon conversion of 75,000 Shares (or all of the Shares originally
purchased hereunder by such Preferred Investor or Other Investor, if less than
75,000 Shares), are transferred by such Preferred Investor or Other Investor,
and such transferee shall be deemed a "Preferred Investor" or "Other Investor",
as applicable, for purposes of this Agreement; provided that the transferee
provides written notice of such assignment to the Company and agrees to be bound
by the terms and conditions set forth herein.
3. Severability. The provisions of this Agreement are severable, so that
the invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other term or provision of this
Agreement, which shall remain in full force and effect.
4. Specific Performance. In addition to any and all other remedies that may
be available at law in the event of any breach of this Agreement, the Preferred
Investors and the Founders shall be entitled to specific performance of the
agreements and obligations of the other parties hereunder and to such other
injunctive or other equitable relief as may be granted by a court of competent
jurisdiction.
5. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware (without
reference to the conflicts of law provisions thereof).
6. Notices. All notices, requests, consents, and other communications under
this Agreement shall be in writing and shall be delivered by hand, sent via a
reputable nationwide overnight courier service or mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
If to the Company, at Airvana, Inc., 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000, Attn: President, or at such other address or addresses as may have been
furnished in writing by the Company to the Preferred Investors, Other Investors
and Warrant Holders, with a copy to Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
XX 00000, Attn: Xxxx X. Xxxxxx, Esq.;
If to a Preferred Investor or Other Investor, at its, his or her address as
set forth on Schedules A and B hereto, or at such other address or addresses as
may have been furnished in writing by such Preferred Investor or Other Investor
to the Company;
If to a Founder, at his address as set forth on the signature page hereto,
or at such other address or addresses as may have been furnished by such Founder
to the Company, the Preferred Investors and the Other Investors; and
If to a Warrant Holder, at its, his or her address as set forth on Schedule
C hereto, or at such other address or addresses as may have been furnished in
writing by such Warrant Holder to the Company.
-13-
Notices provided in accordance with this Section 6 shall be deemed
delivered upon personal delivery, one business day after being sent via a
reputable nationwide overnight courier service, or three business days after
deposit in the mail.
7. Complete Agreement; Amendments.
(a) This Agreement constitutes the full and complete agreement of the
parties hereto with respect to the subject matter hereof and amends and restates
in its entirety the Prior Investor Agreement.
(b) This Agreement may be amended, or any provision that may be
waived, by a written instrument signed by the Company and Preferred Investors
holding at least a majority of the shares of Common Stock issued or issuable
upon conversion of the Registrable Shares held by Preferred Investors, provided
that (i) no consent shall be required for an amendment pursuant to Section 11
below and (ii) no amendment or waiver shall adversely affect the rights of a
Founder to be designated as a director under Article II or adversely affect in a
manner different than the Preferred Investors such Founder's rights under
Section 2 of Article III, without the consent of such Founder. No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
8. Pronouns. Whenever the content may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one Agreement binding on all the parties hereto.
10. Captions. Captions of sections have been added only for convenience and
shall not be deemed to be a part of this Agreement.
11. Addition of Purchasers. Each purchaser of shares of Series C Preferred
Stock of the Company under Section 2.2 of the Purchase Agreement shall become a
party to and an "Other Investor" under this Agreement upon the closing of its
purchase of shares of Series C Preferred Stock thereunder and its execution of a
counterpart signature page to this Agreement.
12. Waiver. The Preferred Investors hereby waive any rights they may have
under Article IV of the Prior Investor Agreement or this Agreement with respect
to the issuance of shares of Series C Preferred Stock under the Purchase
Agreement.
-14-
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
COMPANY:
AIRVANA, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
President
PREFERRED INVESTORS:
MATRIX PARTNERS VII, L.P.
By: Matrix VII Management Co., LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
MATRIX PARTNERS VI, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
[Signature Page to Investor Rights Agreement]
MATRIX VI PARALLEL PARTNERSHIP-A, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
MATRIX VI PARALLEL PARTNERSHIP-B, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
MATRIX CAPITAL MANAGEMENT FUND, LP
By: Matrix Capital Management Co, LLC
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx, Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
[Signature Page to Investor Rights Agreement]
MATRIX CAPITAL MANAGEMENT FUND II, LP
By: Matrix Capital Management Co, LLC
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx, Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
MATRIX CAPITAL MANAGEMENT FUND
(OFFSHORE) LTD
By: Matrix Capital Management Co, LLC
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx, Managing Member
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
XXXXXXXX XXXXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: COO & CFO
Address: 0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
[Signature Page to Investor Rights Agreement]
WESTON & CO. VI LLC, as Nominee
By: Matrix Management Corporation
Sole Member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx, Vice President
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
Address: c/o Sycamore Networks, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
COMMVEST PARTNERS II
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney in Fact
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XXXXXXX STREET ASSOCIATES IX, LLC
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Vice President
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
[Signature Page to Investor Rights Agreement]
OTHER INVESTORS:
SNOWS HILL LLC
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title:
---------------------------------
Address: x/x Xxxxxx Xxxxx
X.X. Xxx 000
20 Snows Hill Lane
Dover, MA 02030-2657
XXXXXXX-XXXXXXXXX FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
---------------------------------
Address: c/o Xxx Xxxxxxx
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
XXXXX X. XXXXX FAMILY IRREVOCABLE TRUST
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
Trustee
Address: McKinsey & Co.
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
[Signature Page to Investor Rights Agreement]
/s/ Jit Saxena
----------------------------------------
Jit Saxena
Address: 00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
FOUNDERS:
/s/ Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx
[Signature Page to Investor Rights Agreement]
SCHEDULE A
PREFERRED INVESTORS
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- ---------- --------- --------- ----------
CommVest Partners II 310,174
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxxx 2,300,000 1,273,647 1,954,094
c/o Sycamore Networks, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
GJD Capital LLC 81,296
c/o Xxxxxxx Xxxxxxxxx
Sycamore Networks, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Matrix Partners VI, L.P. 2,975,000 964,344 4,613,833
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000
Matrix VI Parallel Partnership-A, L.P. 992,500 321,718 1,539,237
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000
-21-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- ---------- --------- --------- ----------
Matrix VI Parallel Partnership-B, L.P. 332,500 107,780 515,664
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000
Matrix Partners VII, L.P. 7,754,342
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000
Matrix Capital Management Fund, L.P. 742,626 2,791,381
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Matrix Capital Management Fund II, L.P. 17,747 65,251
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
-22-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- ---------- --------- --------- ----------
Matrix Capital Management Fund 50,000 245,105
(Offshore) LTD
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
XXXXXXXX Xxxxxxxxxxxx 900,414 3,101,737
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxxx Xxxxx 250,000 64,830
c/o Sycamore Networks, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Weston & Co. VI LLC 700,000 226,904 1,085,608
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000
Xxxxxxx Street Associates IX, LLC 403,226
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx, as Special Trustee of the 2,300,000
Deshpande Irrevocable Trust u/a dated 3/25/98
c/o Palmer & Dodge LLP
000 Xxxxxxxxxx Xxxxxx at Prudential Center
Xxxxxx, XX 00000-0000
-23-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- ---------- --------- --------- ----------
Xxxxx Xxxxx 150,000 38,898
c/o Sycamore Networks, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
---------- --------- ------- ----------
TOTALS 10,000,000 3,889,790 900,414 24,379.652
========== ========= ======= ==========
-24-
SCHEDULE B
OTHER INVESTORS
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- --------- --------- --------- ---------
Xxxxxx Xxxxx 45,000
c/o Sonus Networks
0 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Gulsen Bari 14,000
Xxxxxxxx 00, XX
Xxxxxx, 00000
Xxxxxxx
Xxxxx Xxxxxx and Xxxxxxxx Xxxxxx, 17,827
Trustees of the Xxxxx Xxxxxx and
Xxxxxxxx Xxxxxx Revocable
Living Trust u/a dated 12/19/1996
00 Xxx Xxxxxx Xxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx 10,000 4,864
c/o Airvana, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxxx 22,500
c/x Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxxxx 4,000
000 Xxx Xxxxx Xxxxxxx
00000 Xxxxx
Xxxxxx
Xxxxx Xxxx 437,500
c/o Airvana, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
-25-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- --------- --------- --------- ---------
Shih-Xxxx Xxxx 3,242
00 000xx Xxxx
Xxx. #0, 10th floor
North Lin-Sen St.
Taipei
TAIWAN
Jae Won Chey 16,207
c/o SK Telecom
00 Xxxxxx-xxxx,
Xxxxxx-xx,
Xxxxx, 000-000
XXXXX
I-Xxxxx Xxxx 4,862
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Xx. Xxxx Xxxxx 3,242
000-0 Xxxxxxxxxx-xxxx
Xx-000,
Xxxxxxx-xx
Xxxxx, 000-000
XXXXX
Xxxxxx X. Xxxx 20,000
0 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
G. Xxxxx Xxxxxx 15,000
0000 Xxxxxxxx Xxxxx
Xxx. 0X
Xxxxxxxxx, XX 00000
Xxxxxx X. and Xxxxxx X. Xxxxxxx, 1,620
JTWROS
000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
-26-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- --------- --------- --------- ---------
Xxxxx Xxxxxxx 9,725
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Mahesh Ganmuki 5,673
000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxx-Xxxxxxxxx Family Trust 31,017
c/o Xxx Xxxxxxx
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxx 45,000
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxxx Family Irrevocable
Trust 62,035
c/o Xxxxx Xxxxx
McKinsey & Co.
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
H&D Investments 2000 22,500
c/o Xxxx Xxxxxxxx
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
H&S Associates, LLC 100,000
c/o Xxx Xxxxx
Chief Financial Officer,
Corona Capital Partners
0000 X. Xxxxx Xxxxxxx, Xxx. 000
Xxxxxx xxx Xxx, XX 00000
Xxxxxxx X. Xxxxxxx 25,000
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
-27-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- --------- --------- --------- ---------
Xxxxxx Xxxxxx 7,000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx 4,000
000 Xxx Xxxxxxxx
00000 Xxxxx,
Xxxxxx
Xxxxx Xxxxxxx 4,000
00 Xxx Xxxxxxxxxx
00000 Xxxxx,
Xxxxxx
Xxxxx Xxxxxxx 4,000
00 Xxxxxxxxx xx Xxxxxxxxx
00000 Xxxxx,
Xxxxxx
Xxxxxx X. Xxxxxx 45,000
00 Xxxx Xxxx Xxxx
Xxxxxx, XX 00000
Xxxx Xxx Xxx 000
00X Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Sang Xxxx Xxx 810
BB01 Woolim Villa
146 UN Village
Xxxxxx-xxxx,
Yongsan-ku
Xxxxx, 000-000
XXXXX
Dr. Seung Xxx Xxx 3,242
210-1502 Olympic Family Apt.,
MoonJung-dong,
SongPa-gu
Seoul
KOREA
-28-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- --------- --------- --------- ---------
Xxxxxx X. XxXxxxxx 3,000
000 Xxxxx Xxxxxxxxxx Xxxx #00
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx, Xx. 25,000
c/x Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
C. Xxxxxxx Xxxxxx 20,000
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Sarv Xxxxxxx Xxxxxxx 20,000
0000 Xxxxxxxxx Xxxxx Xx.
Xxxxxx, XX 00000
Xxxxxx Xx 30,000
c/o Airvana Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx X'Xxxx 16,207
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxx Xxxxxx 15,000
000 Xxxxxx Xxxxxx
Xxxx 0
Xxxxxx, XX 00000
Jit Saxena 62,035
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Snows Hill LLC 310,174
x/x Xxxxxx Xxxxx
X.X. Xxx 000
00 Xxxxx Xxxx Xxxx
Xxxxx, XX 00000-0000
-29-
Shares of Shares of Shares of Shares of
Name and Address of Investor Series A Series B1 Series B2 Series C
---------------------------- --------- --------- --------- ---------
The Viterbi Group 16,207 62,035
Attn: Dr. Xxxxxx Xxxxxxx
0000 Xx Xxxxx Xxxxxxx Xxxxx,
Xxxxx 000
Xxx Xxxxx, XX 00000
------- ------- --- -------
TOTALS 937,500 104,538 0 527,296
======= ======= === =======
-30-
SCHEDULE C
WARRANT HOLDERS
Silicon Valley Bank
0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000
CommVest LLC
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
GATX Ventures, Inc.
0000 Xx. Xxxxxx Xxxx.,
Xxxxx 000
Xxxxxxxxx, XX 00000
-31-
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amendment No. 1 to the Second Amended and Restated Investor Rights
Agreement dated as of this 31st day of July, 2002 (the "Amendment"), is entered
into among Airvana, Inc., a Delaware corporation (the "Company") and the
Preferred Investors, the Other Investors, the Founders and the Warrant Holders
(each as hereinafter defined).
WHEREAS, the Company and the persons and entities listed on the signature
page thereto under the heading "Preferred Investors" (the "Preferred
Investors"), the persons and entities listed on the signature page thereto under
the heading "Other Investors" (the "Other Investors"), Xxxxxxx Xxxxx and Xxxxx
Xxxxxxxx (collectively, the "Founders") and Silicon Valley Bank, CommVest LLC
and GATX Ventures, Inc. (collectively, the "Warrant Holders" are parties to the
Second Amended and Restated Investor Rights Agreement dated as of February 8,
2002 (the "Investor Rights Agreement"); and
WHEREAS, the Company, the Preferred Investors, the Other Investors, the
Founders and the Warrant Holders believe it to be in their mutual best interests
to amend the Investor Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree as follows:
1. Amendments to Article I.
(a) Article I of the Investor Rights Agreement is hereby amended by
deleting the definition of "Registrable Shares" and replacing it with the
following:
""Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of the Shares, (ii) solely for the purposes
of Sections 2 through 10 of Article III hereof, shares of Common Stock
held by the Founders, (iii) solely for the purposes of Sections 2
through 10 of Article III hereof, shares of Common Stock issued or
issuable upon conversion of any Warrant Shares held by the Warrant
Holders or by Xxxxxx Financial Leasing, Inc., (iv) any shares of
Common Stock, and any shares of Common Stock issued or issuable upon
the conversion or exercise of any other securities, acquired by the
Preferred Investors pursuant to Article IV of this Agreement or
pursuant to the Second Amended and Restated Right of First Refusal and
Co-Sale Agreement of even date herewith among the Company, the
Preferred Investors and certain other parties thereto, and (v) any
other shares of Common Stock issued in respect of such shares (because
of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); provided, however, that shares
of Common Stock which are Registrable Shares shall cease to be
Registrable Shares (a) upon any sale of such shares pursuant to a
Registration Statement or Rule 144 under the Securities Act, (b) upon
any sale of such shares in any manner to a person or entity which, by
virtue of Section 2 of Article V of this Agreement, is not entitled to
the rights provided by this Agreement, or (c) for purposes of Section
2 of Article III hereof,
-32-
following the third anniversary of the Initial Public Offering.
Wherever reference is made in this Agreement to a request or consent
of holders of a certain percentage of Registrable Shares, the
determination of such percentage shall include shares of Common Stock
issuable upon conversion of the Shares even if such conversion has not
yet been effected.."
(b) Article I of the Investor Rights Agreement is hereby amended by
deleting the definition of "Warrant Shares" and replacing it with the following:
"Warrant Shares" means Shares issued or issuable upon exercise of (i)
warrants issued to the Warrant Holders in October 2001 (ii) warrants
issued to Xxxxxx Financial, Inc. in [July] 2002.
2. Ratification. In all other respects, the Investor Rights Agreement is
hereby ratified and confirmed.
3. Counterparts. This amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
4. Effective Date. This amendment shall become effective upon (a) approval
by the Company and Preferred Investors holding at least a majority of the shares
of Common Stock issued or issuable upon conversion of the Registrable Shares (as
defined in the Investor Rights Agreement) held by Preferred Investors and (b)
the execution of a counterpart signature page by Xxxxxx Financial, Inc. by which
it agrees to become a party to the Investor Rights Agreement.
[Signature Pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Investor Rights Agreement as of the date first written above.
COMPANY:
AIRVANA, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
President
PREFERRED INVESTORS:
MATRIX PARTNERS VII, L.P.
By: Matrix VII Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
MATRIX PARTNERS VI, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
MATRIX VI PARALLEL PARTNERSHIP-A, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
[Signature Page to Amendment No. 1 to the Investor Rights Agreement]
MATRIX VI PARALLEL PARTNERSHIP-B, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
WESTON & CO. VII LLC
By: Matrix Management Corporation,
Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
WESTON & CO. VI LLC
By: Matrix Management Corporation,
Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
XXXXXXXX XXXXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
MATRIX CAPITAL MANAGEMENT FUND, LP
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
[Signature Page to Amendment No. 1 to the Investor Rights Agreement]
MATRIX CAPITAL MANAGEMENT FUND II, LP
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
MATRIX CAPITAL MANAGEMENT FUND
(OFFSHORE) LTD
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
GJD CAPITAL LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
---------------------------------
[Signature Page to Amendment No. 1 to the Investor Rights Agreement]
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amendment No. 2 to the Second Amended and Restated Investor Rights
Agreement dated as of this 18th day of December, 2003 (the "Amendment"), is
entered into among Airvana, Inc., a Delaware corporation (the "Company") and the
Preferred Investors, the Other Investors, the Founders, the Warrant Holders and
Xxxxxx (each as hereinafter defined).
WHEREAS, the Company, the persons and entities listed on the signature page
to the Investor Rights Agreement (as hereinafter defined) under the heading
"Preferred Investors" (the "Preferred Investors"), one of which is Qualcomm,
Incorporated ("Qualcomm"), the persons and entities listed on the signature page
to the Investor Rights Agreement under the heading "Other Investors" (the "Other
Investors"), Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx (collectively, the "Founders"),
Silicon Valley Bank, CommVest LLC, GATX Ventures, Inc. (collectively, the
"Warrant Holders") and Xxxxxx Financial, Inc. ("Xxxxxx") are parties to the
Second Amended and Restated Investor Rights Agreement dated as of February 8,
2002, as amended (the "Investor Rights Agreement");
WHEREAS, the Company and Qualcomm have entered into a Series D Preferred
Stock Purchase Agreement of even date herewith (the "Series D Purchase
Agreement"); and
WHEREAS, the Company, the Preferred Investors, the Other Investors, the
Founders, the Warrant Holders and Xxxxxx believe it to be in their mutual best
interests to further amend the Investor Rights Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree as follows:
1. Amendments to Article I.
(a) Article I of the Investor Rights Agreement is hereby amended by
deleting the definition of "Shares" and replacing it with the following:
""Shares" means (i) the Series A Convertible Preferred Stock of the
Company, par value $.01 per share, (ii) the Series B1 Convertible
Preferred Stock of the Company, par value $.01 per share, (iii) the
Series B2 Convertible Preferred Stock of the Company, par value $.01
per share, (iv) the Series C Convertible Preferred Stock of the
Company, par value $.01 per share and (v) the Series D Convertible
Preferred Stock of the Company, par value $.01 per share."
(b) Article I of the Investor Rights Agreement is hereby amended by
deleting the definition of "Warrant Shares" and replacing it with the following:
""Warrant Shares" means Shares issued or issuable upon exercise of (i)
warrants issued to the Warrant Holders in October 2001, or (ii)
warrants issued to Xxxxxx on August 1, 2002."
2. Waiver. The Preferred Investors hereby waive any rights they may have
under Article IV of the Investor Rights Agreement with respect to the issuance
of shares of Series D Preferred Stock under the Series D Purchase Agreement and
any issuance of shares of Common Stock upon conversion thereof.
3. Ratification. In all other respects, the Investor Rights Agreement is
hereby ratified and confirmed.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
5. Effective Date. This Amendment shall become effective upon approval by
the Company and Preferred Investors holding at least a majority of the
Registrable Shares (as defined in the Investor Rights Agreement) held by
Preferred Investors.
[Signature Pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
to the Investor Rights Agreement as of the date first written above.
COMPANY:
AIRVANA, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
President
PREFERRED INVESTORS:
MATRIX PARTNERS VII, L.P.
By: Matrix VII Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
MATRIX PARTNERS VI, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
MATRIX VI PARALLEL PARTNERSHIP-A, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
[Signature Page to Amendment No. 2 to the Investor Rights Agreement]
MATRIX VI PARALLEL PARTNERSHIP-B, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
WESTON & CO. VII LLC
By: Matrix Management Corporation,
Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
WESTON & CO. VI LLC
By: Matrix Management Corporation,
Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
XXXXXXXX XXXXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
MATRIX CAPITAL MANAGEMENT FUND, LP
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
[Signature Page to Amendment No. 2 to the Investor Rights Agreement]
MATRIX CAPITAL MANAGEMENT FUND II, LP
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
MATRIX CAPITAL MANAGEMENT FUND
(OFFSHORE) LTD
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
GJD CAPITAL LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
---------------------------------
[Signature Page to Amendment No. 2 to the Investor Rights Agreement]
AMENDMENT NO. 3 TO THE
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amendment No. 3 to the Second Amended and Restated Investor Rights
Agreement dated as of this 27th day of January, 2006 (the "Amendment"), is
entered into among Airvana, Inc., a Delaware corporation (the "Company") and the
other parties to the Second Amended and Restated Investor Rights Agreement dated
as of February 8, 2002, as amended (the "Investor Rights Agreement");
WHEREAS, the Company has agreed to sell 298,953 shares of its Series D
Convertible Preferred Stock, par value $0.01 per share (the "Shares"), to
Xxxxxxx Xxxxxxx ("Xxxxxxx") on or about the date hereof;
WHEREAS, the Company and the other parties thereto believe it to be in
their mutual best interests to further amend the Investor Rights Agreement to
allow Xxxxxxx to join as a "Preferred Investor" thereunder; and
WHEREAS, by his execution and delivery of this Amendment, Xxxxxxx shall
become a party to the Investor Rights Agreement as a "Preferred Investor".
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree as follows:
1. Amendment to Schedule A. Schedule A of the Investor Rights Agreement is
hereby amended to include Xxxxxxx Xxxxxxx thereon.
2. Waiver. The Preferred Investors hereby waive any rights they may have
under Article iv of the Investor Rights Agreement with respect to the issuance
of the Shares and any issuance of shares of Common Stock upon conversion
thereof.
3. Ratification. In all other respects, the Investor Rights Agreement is
hereby ratified and confirmed.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
5. Effective Date. This Amendment shall become effective upon approval by
the Company and Preferred Investors holding at least a majority of the
Registrable Shares (as defined in the Investor Rights Agreement) held by
Preferred Investors.
[Signature Pages follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3
to the Investor Rights Agreement as of the date first written above.
COMPANY:
AIRVANA, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
President
PREFERRED INVESTORS:
MATRIX PARTNERS VII, L.P.
By: Matrix VII Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
MATRIX PARTNERS VI, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
MATRIX VI PARALLEL PARTNERSHIP-A, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
[Signature Page to Amendment No. 3 to the Investor Rights Agreement]
MATRIX VI PARALLEL PARTNERSHIP-B, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Managing Member
WESTON & CO. VII LLC
By: Matrix Management Corporation,
Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
WESTON & CO. VI LLC
By: Matrix Management Corporation,
Sole Member
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
MATRIX CAPITAL MANAGEMENT FUND, LP
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
MATRIX CAPITAL MANAGEMENT FUND II, LP
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
[Signature Page to Amendment No. 3 to the Investor Rights Agreement]
MATRIX CAPITAL MANAGEMENT FUND
(OFFSHORE) LTD
By: Matrix Capital Management Co., LLC,
Portfolio Manager
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Managing Member
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
GJD CAPITAL LLC
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Member - Manager
UNICORN TRUST
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Trustee
UNICORN TRUST II
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Trustee
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
[Signature Page to Amendment No. 3 to the Investor Rights Agreement]
