Exhibit 10.5
AIRVANA, INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Agreement, dated as of June 6, 2007, 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"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (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, the Preferred Investors, the Other Investors, the
Founders and the Warrant Holders are parties to a Second Amended and Restated
Investor Rights Agreement, dated as of February 8, 2002 (as amended, the "Prior
Investor Agreement");
WHEREAS, the Company is preparing for an initial public offering of its
Common Stock; and
WHEREAS, the Company, the Preferred Investors, the Other Investors, the
Founders and the Warrant Holders wish to amend and restate the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this 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 (i) 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 or (ii) the
Registration Statement on Form S-1 (Reg. No. 333-142210) and any related
Registration Statement under Rule 462(b).
"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 issuable upon conversion or exercise of the warrants
issued to each of Silicon Valley Bank, CommVest LLC and GATX Ventures, Inc. in
October 2001 or issuable upon conversion of any Shares issued or issuable upon
conversion or exercise of any such warrant, (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, dated as of February 8, 2002, as amended, 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, (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.
"Stockholders" means (i) the Preferred Investors, (ii) the Founders, (iii)
any persons or entities to whom the rights granted to Preferred Investors or
Founders under this Agreement are transferred by a Preferred Investor or
Founder, its successors or permitted assigns pursuant to
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Section 2 of Article V below and (iv) for the purposes of Article III only, the
Other Investors and the Warrant Holders.
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 seven and to elect as
directors:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇, as long as he is employed by the Company;
(b) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as long as he is employed by the Company;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as long as he is employed by the Company;
(d) two individuals designated by Matrix Partners VI, L.P., who shall
initially be ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇;
(e) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇.
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:
"The shares of stock represented by this certificate are subject to
certain voting agreements as set forth in a Third 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."
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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.
(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
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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.
(c) Notwithstanding the foregoing paragraphs (a) and (b), the
provisions of this Section 2 shall not apply to the public offering of shares
pursuant to the Registration Statement on Form S-1 (Reg. No. 333-142210) and any
related Registration Statement under Rule 462(b), including the obligation of
the Company to provide notice of the filing of any Registration Statement in
connection therewith.
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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:
(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
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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 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
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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, 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
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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 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
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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
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
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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 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.
-11-
(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:
(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) up to 31,200,215 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;
(e) 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;
(f) shares of Common Stock sold by the Company in an underwritten
public offering pursuant to an effective registration statement under the
Securities Act; and
(g) 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
-12-
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, Founder or Other Investor hereunder, may be assigned by
such Preferred Investor, Founder or Other Investor to any person or entity (a)
which is an affiliate of such Preferred Investor, Founder or Other Investor, (b)
which is a parent, spouse, child, uncle, aunt, brother or sister of such
Preferred Investor, Founder 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, Founder or Other Investor, if less than 75,000
Shares), are transferred by such Preferred Investor, Founder or Other Investor,
and such transferee shall be deemed a "Preferred Investor," "Founder" 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
Company, 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., ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, 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;
-13-
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.
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 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. 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/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
PREFERRED INVESTORS:
COMMVEST PARTNERS II
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-Fact
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
DESHPANDE IRREVOCABLE TRUST
U/A DATED 3/25/98
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Special Trustee
▇. ▇▇▇▇▇ ▇▇▇▇▇ 2001 IRREVOCABLE TRUST
By:
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Trustee
[Signature Page to Third Amended and Restated Investor Rights Agreement]
GJD CAPITAL LLC
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
MATRIX PARTNERS VI, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
MATRIX VI PARALLEL PARTNERSHIP-A, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
MATRIX VI PARALLEL PARTNERSHIP-B, L.P.
By: Matrix VI Management Co., LLC,
its General Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
MATRIX PARTNERS VII, L.P.
By: Matrix VII Management Co., LLC,
its General Partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Member
[Signature Page to Third Amended and Restated Investor Rights Agreement]
MATRIX CAPITAL MANAGEMENT FUND, LP
By: Matrix General Partner LLC, its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Managing Member
MATRIX CAPITAL MANAGEMENT FUND II, LP
By: Matrix General Partner LLC,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Managing Member
MATRIX CAPITAL MANAGEMENT FUND
(OFFSHORE) LTD
By: Matrix General Partner LLC,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Managing Member
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and CFO
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
[Signature Page to Third Amended and Restated Investor Rights Agreement]
UNICORN TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Trustee
UNICORN TRUST III
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Trustee
UNICORN TRUST V
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Trustee
WESTON & CO. VI LLC, as Nominee
By: Matrix Partners Management
Services, L.P.,
Sole Member
By: Matrix Partners Management
Services GP, LLC,
its General Partner
By: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Member
WESTON & CO. VII LLC, as Nominee
By: Matrix Partners Management
Services, L.P., Sole Member
By: Matrix Partners Management
Services GP, LLC,
its General Partner
By: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Authorized Member
[Signature Page to Third Amended and Restated Investor Rights Agreement]
▇▇▇▇▇▇▇ STREET ASSOCIATES IX, LLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
[Signature Page to Third Amended and Restated Investor Rights Agreement]
OTHER INVESTORS:
/s/▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Gulsen Bari
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇
------------------------------------
Shih-▇▇▇▇ ▇▇▇▇
------------------------------------
Jae Won Chey
/s/I-▇▇▇▇▇ ▇▇▇▇
------------------------------------
I-▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇. ▇▇▇▇ ▇▇▇▇▇
[Signature Page to Third Amended and Restated Investor Rights Agreement]
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/G. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Mahesh Ganmuki
G.V. PARTNERS
By: /s/▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇ ▇▇▇▇▇▇▇
Trustee
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
H&D INVESTMENTS 2000
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
General Partner
[Signature Page to Third Amended and Restated Investor Rights Agreement]
H&S ASSOCIATES, LLC
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Manager
▇▇▇▇▇ ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
REVOCABLE LIVING TRUST U/A DATED
12/19/1996
By: /s/
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
By:
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇ FINANCIAL LEASING, INC.
By:
--------------------------------
Name:
Title:
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
THE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ NOMINEE TRUST
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
[Signature Page to Third Amended and Restated Investor Rights Agreement]
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇ ▇▇▇
------------------------------------
Sang ▇▇▇▇ ▇▇▇
------------------------------------
Dr. Seung ▇▇▇ ▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ Sarv ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Sarv ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇
[Signature Page to Third Amended and Restated Investor Rights Agreement]
------------------------------------
▇▇▇▇▇ ▇'▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ FAMILY IRREVOCABLE
TRUST
By:
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
------------------------------------
Jit Saxena
SNOWS HILL LLC
By:
---------------------------------
Name:
Title:
THE VITERBI GROUP
By: /s/ Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
[Signature Page to Third Amended and Restated Investor Rights Agreement]
FOUNDERS:
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Signature Page to Third Amended and Restated Investor Rights Agreement]
WARRANT HOLDERS:
GATX VENTURES, INC.
By:
--------------------------------
Name:
Title:
SILICON VALLEY BANK
By:
--------------------------------
Name:
Title:
COMMVEST PARTNERS II
(See signature under Preferred
Investors)
[Signature Page to Third Amended and Restated Investor Rights Agreement]
SCHEDULE A
PREFERRED INVESTORS
Name and Address of Investor
CommVest Partners II
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Special Trustee of the
Deshpande Irrevocable Trust u/a dated
3/25/98
c/o Palmer & Dodge LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ at Prudential Center
Boston, MA 02199-7613
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as Trustee of the
▇. ▇▇▇▇▇ ▇▇▇▇▇ 2001 Irrevocable Trust
c/o Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GJD Capital LLC
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Matrix Partners VI, L.P.
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-27-
SCHEDULE A
(CONTINUED)
PREFERRED INVESTORS
Name and Address of Investor
Matrix VI Parallel Partnership-A, L.P.
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Matrix VI Parallel Partnership-B, L.P.
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Matrix Partners VII, L.P.
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-28-
SCHEDULE A
(CONTINUED)
PREFERRED INVESTORS
Name and Address of Investor
Matrix Capital Management Fund, L.P.
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Matrix Capital Management Fund II, L.P.
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Matrix Capital Management Fund
(Offshore) LTD
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-29-
SCHEDULE A
(CONTINUED)
PREFERRED INVESTORS
Name and Address of Investor
▇▇▇▇▇▇ ▇▇▇▇▇
c/o Sycamore Networks, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Unicorn Trust
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Unicorn Trust III
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Unicorn Trust V
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Weston & Co. VI LLC, as Nominee
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-30-
SCHEDULE A
(CONTINUED)
PREFERRED INVESTORS
Name and Address of Investor
Weston & Co. VII LLC, as Nominee
Bay Colony Corporate Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Street Associates IX, LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
c/o Sycamore Networks, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-31-
SCHEDULE B
OTHER INVESTORS
Name and Address of Investor
▇▇▇▇▇▇ ▇▇▇▇▇
c/o Sonus Networks
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇, ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o Airvana, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
c/o Airvana, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Shih-▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇. #▇, 10th floor
North Lin-Sen St.
Taipei
TAIWAN
-32-
SCHEDULE B
(CONTINUED)
OTHER INVESTORS
Name and Address of Investor
Jae Won Chey
c/o SK Telecom
▇▇ ▇▇▇▇▇▇-▇▇▇▇,
▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇-▇▇▇
▇▇▇▇▇
I-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇
▇▇-▇▇▇,
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇-▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
G. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇. ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, JTWROS
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mahesh Ganmuki
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-33-
SCHEDULE B
(CONTINUED)
OTHER INVESTORS
Name and Address of Investor
G.V. Partners
c/o ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
H&D Investments ▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
H&S Associates, LLC
c/o ▇▇▇ ▇▇▇▇▇
Chief Financial Officer,
Corona Capital Partners
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees of
the ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Revocable Living Trust u/a dated 12/19/1996
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Financial Leasing, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Nominee Trust
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-34-
SCHEDULE B
(CONTINUED)
OTHER INVESTORS
Name and Address of Investor
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sang ▇▇▇▇ ▇▇▇
BB01 Woolim Villa
146 UN Village
▇▇▇▇▇▇-▇▇▇▇,
Yongsan-ku
▇▇▇▇▇, ▇▇▇-▇▇▇
▇▇▇▇▇
-35-
SCHEDULE B
(CONTINUED)
OTHER INVESTORS
Name and Address of Investor
Dr. Seung ▇▇▇ ▇▇▇
210-1502 Olympic Family Apt.,
MoonJung-dong,
SongPa-gu
Seoul
KOREA
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
c/▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sarv ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
c/o Airvana Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇'▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-36-
SCHEDULE B
(CONTINUED)
OTHER INVESTORS
Name and Address of Investor
▇▇▇▇▇ ▇. ▇▇▇▇▇ Family Irrevocable Trust
c/o ▇▇▇▇▇ ▇▇▇▇▇
McKinsey & Co.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Jit Saxena
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Snows Hill LLC
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
The Viterbi Group
Attn: Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-37-
SCHEDULE C
WARRANT HOLDERS
CommVest Partners II
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GATX Ventures, Inc.
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
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Silicon Valley Bank
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