Voting Agreement - Finisar Corp., Frank Levinson, Jerry Rawls, TA Associates Inc., Summit Partners LLC, WS Investment Co. 98-B, Stanford University, Universal Technology Inc., John Gallant, Robert Curtin, Michael Maichen and Stephen Dichiara
VOTING AGREEMENT
THIS AGREEMENT is made as of the 6th day of November, 1998, by and among
Finisar Corporation, a California corporation (the "Company), Frank Levinson and
Jerry Rawls (each, a "Founder" and collectively, the "Founders") and each of the
persons named in the Schedule of Purchasers (the "Purchasers") attached to the
Securities Purchase Agreement (the "Purchase Agreement"), dated November 6,
1998, by and among the Company, the Founders and the Purchasers.
WHEREAS, the Purchasers are purchasing up to an aggregate of 12,100,000
shares of Series A Convertible Preferred Stock pursuant to the Purchase
Agreement;
WHEREAS, in order to induce the Purchasers to consummate their purchase
of the Series A Convertible Preferred Stock, the parties have agreed to execute
this Voting Agreement pursuant to the terms and conditions set forth below; and
WHEREAS, the Amended and Restated Articles of Incorporation of the
Company (the "Amended and Restated Articles") provide that at each annual or
special election of the Company's directors, the holders of the then outstanding
shares of Series A Convertible Preferred Stock voting together as a single
class, shall be entitled to elect one (1) director and that at each annual or
special election of the Company's directors, the holders of the then outstanding
shares of Common Stock, voting together as a single class, shall be entitled to
elect all remaining directors;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. AGREEMENT TO VOTE. Each of the Purchasers and the Founders, as
holders of Series A Convertible Preferred Stock, and Common Stock, respectively,
agrees to vote all securities owned by him or it, or act by written consent of
shareholders, as the case may be, in accordance with, the provisions of this
Agreement.
2. BOARD SIZE. Each of the Purchasers and the Founders agree to vote
their securities to ensure that the size of the Company's Board of Directors
shall be set at not more than seven (7) directors; provided, however, that such
Board size may be increased or decreased pursuant to an amendment of this
Agreement in accordance with Section 7 hereof.
3. ELECTION OF SERIES A PREFERRED STOCK DIRECTORS. Each of the
Purchasers and the Founders agree to vote their securities as follows:
(a) To elect (and against the removal of, except for cause)
one (1) and only one (1) designee of TA Associates or one of its affiliates
(the "TA Associates Designee") so long as any Series A Convertible Preferred
Stock remains outstanding. Any vacancy occurring because of the death,
resignation or removal of the TA Associate Designee shall be filled according
to this sub-paragraph 3(a).
(b) The initial TA Associates Designee pursuant to this Section
3 shall be Mike Child.
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4. ELECTION OF COMMON STOCK DIRECTORS. Each of the Purchasers agree
to vote their Series A Preferred Stock in proportion and for the same candidates
that is voted by a majority of the outstanding shares of Common Stock.
5. SUCCESSORS IN INTEREST.
(a) The provisions of this Agreement shall be binding upon the
successors in interest to any of the shares of Series A Convertible Preferred
Stock and Common Stock. The Company shall not permit the transfer of any of
such securities on its books or issue new certificates representing any of such
securities unless and until each person to whom such securities are 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 person
was a party hereunder.
(b) Each certificate representing any of such securities shall
bear a legend reading as follows:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO THE TERMS OF A
VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED WITHOUT
CHARGE FROM THE ISSUER), AND BY ACCEPTING ANY INTEREST IN
SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE
DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE
PROVISIONS OF SUCH VOTING AGREEMENT.
6. TERMINATION. This Agreement shall terminate on the date on
which no shares of the Series A Convertible Preferred Stock remains
outstanding.
7. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of (a) the Company, (b) the Purchasers, or their assigns, holding not
less than a majority of the Series A Convertible Preferred Stock then
outstanding purchased pursuant to the Purchase Agreement and (c) the Founders.
Any amendment or waiver so effected shall be binding upon the Company, all
parties hereto, any assignee of any such party, and any other shareholder of the
Company subject to the terms of this Agreement, whether or not such party,
assignee, or other shareholder entered into or approved such amendment or
waiver.
8. STOCK SPLITS, STOCK DIVIDENDS, ETC. In the event of any stock
split, stock dividend, recapitalization, reorganization, or the like, any
securities issued with respect to the Series A Convertible Preferred Stock shall
become "Series A Convertible Preferred Stock" for purposes of this Agreement and
shall be endorsed with the legend set forth in Section 5(b) hereof.
9. ENFORCEABILITY/SEVERABILITY. The parties hereto agree that each
provision of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. If any provision of this Agreement
shall nevertheless be held to be prohibited by or invalid under applicable law,
(a) such provision shall be effective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of
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this Agreement, and (b) the parties shall, to the extent permissible by
applicable law, amend this Agreement, or enter into a voting agreement under
which the Series A Convertible Preferred Stock shall be transferred, so as to
make effective and enforceable the intent of this Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to contracts among
California residents entered into and to be performed entirely within
California.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year herein above first written.
FINISAR CORPORATION
By: /s/ Jerry Rawls
------------------------------------
Jerry Rawls
FOUNDERS:
/s/ Frank Levinson
---------------------------------------
Frank Levinson
/s/ Jerry Rawls
---------------------------------------
Jerry Rawls
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SIGNATURE PAGE TO VOTING AGREEMENT
PURCHASERS:
TA INVESTORS LLC
By: TA Associates Inc.
its Manager
/s/ Michael Child
-----------------------------------
Michael Child
Managing Director
ADVENT ATLANTIC AND PACIFIC III L.P.
By: TA Associates AAP III Partners
its General Partner
By: TA Associates Inc.
its General Partner
/s/ Michael Child
-----------------------------------
Michael Child
Managing Director
TA/ADVENT VIII L.P.
By: TA Associates VIII LLC
its General Partner
By: TA Associates Inc.
its Manager
/s/ Michael Child
-----------------------------------
Michael Child
Managing Director
TA EXECUTIVES FUND LLC
By: TA Associates Inc.
its Manager
/s/ Michael Child
-----------------------------------
Michael Child
Managing Director
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SIGNATURE PAGE TO VOTING AGREEMENT
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.
its General Partner
By: Summit Partners, LLC
its General Partner
/s/ Walter G. Kortschak
-------------------------------------------
Member
Name: Walter G. Kortshak
-------------------------------------
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.
its General Partner
By: Summit Partners, LLC
its General Partner
/s/ Walter G. Kortschak
-------------------------------------------
Member
Name: Walter G. Kortschak
-------------------------------------
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners, LLC
its General Partner
/s/ Walter G. Kortschak
-------------------------------------------
Member
Name: Walter G. Kortschak
-------------------------------------
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners, LLC
its General Partner
/s/ Walter G. Kortschak
-------------------------------------------
Member
Name: Walter G. Kortschak
-------------------------------------
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SIGNATURE PAGE TO VOTING AGREEMENT
SUMMIT INVESTORS III, L.P.
/s/ Walter G. Kortschak
-------------------------------------------
General Partner
Name: Walter G. Kortschak
-------------------------------------
WS INVESTMENT CO. 98-B
/s/ Blair W. Stewart, Jr.
-------------------------------------------
Blair W. Stewart, Jr.
PICKARD FAMILY TRUST
/s/ W. Jeffers Pickard
-------------------------------------------
W. Jeffers Pickard
Trustee
STANFORD UNIVERSITY
/s/ Carol Gilmer
-------------------------------------------
Carol Gilmer
UNIVERSAL TECHNOLOGY, INC.
/s/ John Gallant
-------------------------------------------
John Gallant
President
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SIGNATURE PAGE TO VOTING AGREEMENT
JOHN GALLANT
/s/ John Gallant
-------------------------------------------
John Gallant
ROBERT CURTIN
/s/ Robert Curtin
-------------------------------------------
Robert Curtin
MICHAEL MAICHEN
/s/ Michael Maichen
-------------------------------------------
Michael Maichen
STEPHEN DICHIARA
/s/ Stephen Dichiara
-------------------------------------------
Stephen Dichiara
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