AMENDED AND RESTATED VOTING
AGREEMENT
This Amended and Restated Voting
Agreement (the “Agreement”) is made and
entered into as of this 30th day of October, 2002, by and among
NexVerse Networks,
Inc., a Delaware corporation (the
“Company”), those certain holders of the
Company’s Common Stock listed on Exhibit A hereto
(the “Key Holders”) and the persons and entities listed
on Exhibit B hereto (the
“Investors”).
Whereas , the Key Holders are
the beneficial owners of an aggregate of three million four hundred
ninety three thousand one hundred seventy two (3,493,172) shares of
the common stock of the Company (the “Common
Stock”);
Whereas , certain Investors
hold shares of Common Stock and certain Investors are purchasing
shares of the Company’s Series C Preferred Stock (the
“Series C Preferred”), pursuant to that certain
Series C Preferred Stock Purchase Agreement of even date
herewith (the “Purchase Agreement”);
Whereas , the Company is
entering into that certain Share Exchange Agreement by and among
the Company, ECI Telecom Ltd. (“ECI”), and ECI Telecom
– NGTS, Inc. of even date herewith (the “Exchange
Agreement”), pursuant to which the Company will acquire all
of the outstanding capital stock of certain subsidiaries of ECI
upon the Closing, as defined in the Exchange Agreement (the
“Exchange Closing”);
Whereas, the Key Holders,
certain Investors and the Company are parties to that certain
Voting Agreement dated November 27, 2001 (the “Prior
Agreement”);
Whereas , the obligations to
execute the Purchase Agreement are conditioned upon the execution
and delivery of this Agreement to the Escrow Agent (as defined in
the Purchase Agreement); and
Whereas, the Key Holders, the
Investors and the Company wish to provide further inducement to the
Investors to purchase shares of the Series C Preferred
pursuant to the terms of the Purchase Agreement, and the parties
hereto have agreed, effective upon the Exchange Closing, to amend
and restate the Prior Agreement in its entirety upon the terms and
conditions set forth below.
Now, Therefore , in
consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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1.1 Key Holder
Shares; Investor Shares.
(a) The Key Holders each agree to hold all shares of voting
capital stock of the Company registered in their respective names
or beneficially owned by them as of the date hereof and any and all
other securities of the Company legally or beneficially acquired by
each of the Key Holders after the date hereof (hereinafter
collectively referred to as the “Key Holder Shares”)
subject to, and to vote the Key Holder Shares in accordance with,
the provisions of this Agreement.
(b) The Investors each agree to hold all shares of voting
capital stock of the Company (including but not limited to all
shares of Common Stock issued upon conversion of the Series C
Preferred) registered in their respective names or beneficially
owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each
of the Investors after the date hereof (hereinafter collectively
referred to as the “Investor Shares”) subject to, and
to vote the Investor Shares in accordance with, the provisions of
this Agreement.
1.2 Election
of Directors. On all matters relating to the election of
directors of the Company, the Key Holders and the Investors agree
to vote all Key Holder Shares and Investor Shares held by them (or
the holders thereof shall consent pursuant to an action by written
consent of the holders of capital stock of the Company) so as to
elect members of the Company’s Board of Directors as
follows:
(a) At each election of directors, the Investors shall vote
all of their respective Investor Shares so as to elect:
(i) one representative of Levensohn Capital Management so long
as it holds not less than five million (5,000,000) shares of
Series C Preferred (as adjusted for stock splits, dividends
and the like), which individual shall initially be Pascal
Levensohn; (ii) one representative of Norwest Venture Capital
so long as it holds not less than five million (5,000,000) shares
of Series C Preferred (as adjusted for stock splits, dividends
and the like), which individual shall initially be Promod Haque;
(iii) one representative of Battery Ventures so long as it
holds not less than five million (5,000,000) shares of
Series C Preferred (as adjusted for stock splits, dividends
and the like), which individual shall initially be Morgan Jones;
and (iv) either: (x) three representatives of ECI so long
as it holds not less than ten million (10,000,000) shares of
Series C Preferred (as adjusted for stock splits, dividends
and the like), (y) two representatives of ECI so long as it
holds not less than seven million five hundred thousand (7,500,000)
shares of Series C Preferred (as adjusted for stock splits,
dividends and the like), or (z) one representative of ECI so
long as it holds not less than five million (5,000,000) shares of
Series C Preferred (as adjusted for stock splits, dividends
and the like) two of which individuals shall initially be Giora
Bitan and Barak Hachamov, provided however, that so long as
ECI is entitled to designate more than one director, at least one
of such designees shall, at all times during the term of this
Agreement, be neither an officer nor a director of ECI or any of
its affiliates. Any vote taken to remove any director elected
pursuant to this Section 1.2(a), or to fill any vacancy
created by the resignation, removal or death of a director elected
pursuant to this Section 1.2(a), shall also be subject to the
provisions of this Section 1.2(a).
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(b) At each election of directors in which the holders of
Common Stock, voting as a separate class, are entitled to elect
directors of the Company, the Key Holders and Investors shall vote
all of their respective Key Holder Shares and Investor Shares so as
to elect: (i) the person serving as Chief Executive Officer of
the Company, which individual shall initially be Tal Simchony, and
(ii) a Key Holder designated by a majority of the directors
elected pursuant to Sections 1.2(a)(i), 1.2(a)(ii), and
1.2(a)(iii), which individual shall initially be Amit Chawla. Any
vote taken to remove any director elected pursuant to this
Section 1.2(b), or to fill any vacancy created by the
resignation, removal or death of a director elected pursuant to
this Section 1.2(b), shall also be subject to the provisions
of this Section 1.2(b).
(c) At each election of directors in which the holders of
Common Stock and holders of Series C Preferred, voting
together as a single class, are entitled to elect directors of the
Company, the Key Holders and Investors shall vote all of their
respective Key Holder Shares and Investor Shares so as to elect one
nominee who shall be an industry representative not affiliated with
the Company or any Investor that is acceptable to the other members
of the Company’s Board of Directors. Any vote taken to remove
any director elected pursuant to this Section 1.2(c), or to
fill any vacancy created by the resignation, removal or death of a
director elected pursuant to this Section 1.2(c), shall also
be subject to the provisions of this
Section 1.2(c).
1.3 No
Liability for Election of Recommended Director. None of the
parties hereto and no officer, director, stockholder, partner,
employee or agent of any party makes any representation or warranty
as to the fitness or competence of the nominee of any party
hereunder to serve on the Board of Directors by virtue of such
party’s execution of this Agreement or by the act of such
party in voting for such nominee pursuant to this
Agreement.
(a) Concurrently with the execution of this Agreement, there
shall be imprinted or otherwise placed, on certificates
representing the Key Holder Shares and the Investor Shares the
following restrictive legend (the “Legend”):
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A VOTING AGREEMENT WHICH PLACES CERTAIN RESTRICTIONS
ON THE VOTING OF THE SHARES REPRESENTED HEREBY. ANY PERSON
ACCEPTING ANY INTEREST IN SUCH SHARES SHALL BE DEEMED TO AGREE TO
AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT. A
COPY OF SUCH VOTING AGREEMENT WILL BE FURNISHED TO THE RECORD
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO
THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.”
(b) The Company agrees that, during the term of this
Agreement, it will not remove, and will not permit to be removed
(upon registration of transfer, reissuance or otherwise), the
Legend from any such certificate and will place or cause to be
placed the Legend
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on any new
certificate issued to represent Key Holder Shares or Investor
Shares theretofore represented by a certificate carrying the
Legend.
1.5
Successors. The provisions of this Agreement shall be binding
upon the successors in interest to any of the Key Holder Shares or
Investor Shares. The Company shall not permit the transfer of any
of the Key Holder Shares or Investor Shares on its books or issue a
new certificate representing any of the Key Holder Shares or
Investor Shares unless and until the person to whom such security
is to be transferred shall have executed a written agreement,
substantially in the form of this Agreement, pursuant to which such
person becomes a party to this Agreement and agrees to be bound by
all the provisions hereof as if such perso
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