FOURTH AMENDED AND RESTATED
STOCKHOLDERS’ VOTING AGREEMENT
This Fourth
Amended and Restated Stockholders’ Voting Agreement (this
“ Agreement ”), dated as of May 24,
2006, is entered into by and among Sourcefire, Inc. a Delaware
corporation (the “ Company ”), the
individuals and entities listed on Exhibit A
attached hereto (collectively, the “ Purchasers
”), and the individuals and entities listed on
Exhibit B (collectively, the “
Existing Stockholders ”). The Purchasers and
the Existing Stockholders are sometimes referred to in this
Agreement collectively as the “ Stockholders
.”
WHEREAS, certain of the
Purchasers are purchasing shares of the Company’s
Series D Convertible Preferred Stock, par value $0.001 per
share (the “ Series D Preferred Stock
”), pursuant to that certain Series D Convertible
Preferred Stock Purchase Agreement, dated as of the date hereof, by
and among the Company and the parties identified therein (the
“ Purchase Agreement ”);
WHEREAS, the obligations in the
Purchase Agreement are conditioned upon the execution and delivery
of this Agreement;
WHEREAS, certain of the
Purchasers (the “ Initial Purchasers ”)
are holders of the Company’s Series A Convertible
Preferred Stock, par value $0.001 per share (the “
Series A Preferred Stock ”), Series B
Convertible Preferred Stock, par value $0.001 per share (the
“ Series B Preferred Stock ”),
Series C Convertible Preferred Stock, par value $0.001 per
share (the “ Series C Preferred
Stock” , and together with the Series A
Preferred Stock, the Series B Preferred Stock and the Series D
Preferred Stock, the “ Preferred Stock
”);
WHEREAS, the Company, the Initial
Purchasers and the Existing Stockholders are parties to the Third
Amended and Restated Stockholders’ Voting Agreement, dated as
of January 15, 2004 (the “ Prior Agreement
”);
WHEREAS, the Existing
Stockholders are the beneficial owners of shares of the Common
Stock of the Company, par value $0.001 per share (the “
Common Stock ”);
WHEREAS, the Prior Agreement can
be amended with the written consent of (i) the Company,
(ii) those Initial Purchasers holding at least two-thirds of
the outstanding shares of Series A Preferred Stock,
(iii) those Initial Purchasers holding at least sixty percent
(60%) of the outstanding shares of Series B Preferred Stock,
(iv) those Initial Purchasers holding at least a majority of
the outstanding shares of Series C Preferred Stock, and
(v) those Existing Stockholders holding Shares (as defined in
Section 2 below) representing at least a majority of the
outstanding Shares then held by those Existing Stockholders who are
parties to the Prior Agreement; and
WHEREAS, the parties to the Prior
Agreement desire to amend and restate the Prior Agreement in its
entirety and, together with the other parties hereto, desire to
enter into this
Agreement in
order to effect such amendment and restatement of the Prior
Agreement and to provide for the composition of the Board of
Directors of the Company in the manner set forth below.
NOW THERFORE, in
consideration of the mutual covenants contained herein and the
consummation of the sale and purchase of the Series D
Preferred Stock pursuant to the Purchase Agreement, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1. Voting
of Shares . In any and all elections of directors of the
Company (whether at a meeting of the stockholders or by written
consent in lieu of a meeting), each Stockholder shall vote or cause
to be voted all Shares (as defined in Section 2 below) owned
by such Stockholder and all Shares over which such Stockholder has
voting control, and otherwise use best efforts so as to fix the
number of directors of the Company at seven (7) and to vote as
follows:
(a) At
each election of directors in which the holders of Series A
Preferred Stock, voting as a separate class, are entitled to elect
directors of the Company, the Stockholders shall vote all of their
Shares so as to elect one (1) representative (the “
Series A Director ”) nominated by Sierra
Ventures so long as it holds any shares of Series A Preferred
Stock, which individual shall initially be Tim Guleri.
(b) At
each election of directors in which the holders of Series B
Preferred Stock, voting as a separate class, are entitled to elect
directors of the Company, the Stockholders shall vote all of their
Shares so as to elect one (1) representative (the “
Series B Director ”) nominated by New
Enterprise Associates 10, Limited Partnership so long as it holds
any shares of Series B Preferred Stock, which individual shall
initially be Harry Weller.
(c) 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 Stockholders shall vote all of their Shares so as to
elect two (2) individuals (the “ Common
Directors ”), one (1) of whom shall be the
Company’s Chief Executive Officer, who shall initially be E.
Wayne Jackson, III, and one (1) of whom is an individual
nominated by the holders of a majority of the Common Stock, who
shall initially be the Company’s Chief Technology Officer of
the Company, Martin Roesch.
(d) At
each election of directors in which holders of shares of Preferred
Stock and Common Stock, voting together as a single class on an
as-if-converted to Common Stock basis, are entitled to elect
directors of the Company, the Stockholders shall vote all of their
Shares so as to elect one (1) individual nominated and
mutually acceptable to (i) the holders of at least two-thirds
of the Series A Preferred Stock then-outstanding,
(ii) the holders of at least a sixty percent (60%) of the
Series B Preferred Stock then-outstanding, (iii) the
holders of at least a majority of the Series C Preferred Stock
then-outstanding, and (iv) the holders of at least a majority
of the Series D Preferred Stock then-outstanding who shall be
an independent industry representative not affiliated with the
Company or employed by the Company or any holders of
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the Preferred
Stock (the “ First Independent Director
”) and who shall initially be Asheem Chandna.
(i) During
the period commencing on the Initial Closing Date (as defined in
the Purchase Agreement) and ending on the earlier of (y) the
election of a director pursuant to Section 1(e)(ii) or
(z) six (6) months after the Initial Closing Date, unless
extended by a majority of the Board of Directors (the “
Designation Period ”), and so long as Meritech
Capital Partners III, L.P. and its affiliates (collectively,
“ Meritech ”) hold at least 227,092
shares of Series D Preferred Stock, Meritech shall have the
right to appoint one (1) representative (the “
Series D Director ”) nominated by
Meritech, who shall initially be Michael B. Gordon, and such
individual shall serve as director of the Company on a temporary
basis for no longer that the Designation Period.
(ii) After
the Designation Period, at each election of directors in which
holders of shares of Preferred Stock and Common Stock, voting
together as a single class, are entitled to elect directors of the
Company, and so long as Meritech holds at least 227,092 shares of
Series D Preferred Stock, the Stockholders shall vote all of
their Shares so as to elect one (1) individual designated by
Meritech, who shall be an independent industry representative not
affiliated with the Company or employed by the Company or any
holders of the Preferred Stock, and (ii) mutually acceptable
to (a) the holders of at least a majority of the Preferred
Stock then-outstanding, voting together as a separate class on an
as-if-converted to Common Stock basis, and (b) the holders of
at least a majority of the Common Stock then-outstanding, voting as
a separate class.
(f) At
each election of directors in which holders of shares of Preferred
Stock and Common Stock, voting together as a single class, are
entitled to elect directors of the Company, the Stockholders shall
vote all of their Shares so as to elect one (1) individual
nominated by the majority of the Board of Directors, who shall be
(i) an independent industry representative with significant
experience in finance or accounting or other comparable experience
or background, including a current or past position as a principal
financial officer or other senior officer with financial oversight
responsibilities and who is not affiliated with the Company or
employed by the Company or any holders of the Preferred Stock, and
(ii) mutually acceptable to (a) the holders of at least a
majority of the Preferred Stock then-outstanding, voting together
as a separate class on an as-if-converted to Common Stock basis,
and (b) the holders of at least a majority of the Common Stock
then-outstanding, voting as a separate class (the “
Financial Expert Independent Director
”).
(g) Action
taken to remove the Series A Director elected pursuant to
Section 1(a), or to fill any vacancy created by the
resignation or death of such director, shall be subject to the
approval of such nominating Purchaser in accordance with
Section 1(a).
(h) Action
taken to remove the Series B Director elected pursuant to
Section 1(b), or to fill any vacancy created by the
resignation or death of such director, shall be subject to the
approval of such nominating Purchaser in accordance with
Section 1(b).
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(i) Action
taken to remove any of the Common Directors elected pursuant to
Section 1(c) or to fill any vacancy created by the resignation or
death of any of such directors, shall be subject to the provisions
of Section 1(c).
(j) Action
taken to remove the First Independent Director elected pursuant to
Section 1(d) or to fill any vacancy created by the resignation or
death of such director, shall be subject to the approval of such
nominating Purchasers in accordance with
Section 1(d).
(k) Action
taken to remove the Series D Director elected pursuant to
Section 1(e) or to fill any vacancy created by the resignation or
death of such director, shall be subject to the approval of
Meritech in accordance with Section 1(e).
(l) Action
taken to remove the Financial Expert Independent Director elected
pursuant to Section 1(f) or to fill any vacancy created by the
resignation or death of such director, shall be subject to the
provisions of Section 1(f).
(m) The
Company agrees to nominate and recommend for election as directors
only the individuals designated, or to be designated, pursuant to
this Section 1.
2.
Shares . “ Shares ” shall mean and
include any and all shares of capital stock of the Company, by
whatever name called, which carry voting rights (including voting
rights which arise by reason of default), and shall include any
such shares of Common Stock or Preferred Stock now owned or
hereafter acquired by a Stockholder, however acquired, including
without limitation stock splits and stock dividends.
3.
Termination . This Agreement shall continue in full force
and effect from the date hereof through the earliest of the
following dates, on which date it shall terminate in its
entirety:
(a) the
closing of a Company Sale (as defined in the Fourth Amended and
Restated Investor Rights Agreement of even date herewith among the
Company and the Purchasers);
(b) the
closing of a Qualifying Public Offering (as defined in the
Company’s Certificate of Incorporation); or
(c) the
date on which (i) the Company, (ii) the holders of at
least two-thirds of the Series A Preferred Stock
then-outstanding, (iii) the holders of at least sixty percent
(60%) of the Series B Preferred Stock then-outstanding,
(iv) the holders of at least a majority of the Series C
Preferred Stock then-outstanding, and (v) the holders of at
least a majority of the Series D Preferred Stock
then-outstanding agree in writing to terminate this
Agreement.
4. No
Revocation . The voting agreements contained herein are coupled
with an interest and may not be revoked, except by an amendment,
modification or termination effected in accordance with
Section 3 or 7(f) hereof. Nothing in this Section 4 shall
be construed as limiting the provisions of Section 3 or 7(f)
hereof.
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5.
Restrictive Legend . All certificates representing Shares
owned or hereafter acquired by the Stockholders or any transferee
of the Stockholders shall have affixed thereto a legend
substantially in the following form:
“The
shares of stock represented by this certificate are subject to a
Stockholders’ Voting Agreement, as may be amended
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