Xtera Communications, Inc. Sample Contracts

Xtera Communications, Inc. – Amendment to Subordination Agreement (October 6th, 2016)

This Amendment to Subordination Agreement (this “Amendment”) is executed, jointly and severally, by the above-named Creditors (collectively referred to herein as “Creditor”) and HORIZON TECHNOLOGY FINANCE CORPORATION (“Horizon”), whose address is 312 Farmington Avenue, Farmington, CT 06032, with respect to the above-named Borrower (collectively referred to herein as “Borrower” or “the Borrower”).  Creditor and Horizon are parties to a certain Subordination Agreement, dated September 13, 2106 (as amended, restated, supplemented, or otherwise modified from time to time, the “Subordination Agreement”).  Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Subordination Agreement.

Xtera Communications, Inc. – LIMITED WAIVER AND TWELFTH amendment of VENTURE LOAN AND SECURITY AGREEMENT (October 6th, 2016)

This TWELFTH AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (this “Agreement”), effective and dated as of September 30, 2016, is entered into by and between Xtera Communications, Inc., a Delaware corporation (“Xtera” or “Borrower”) and Horizon Technology Finance Corporation, a Delaware corporation (“Lender”).

Xtera Communications, Inc. – Limited Waiver and Eighth Amendment to Loan Agreement (October 6th, 2016)

This Eighth Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – Amendment to Subordination Agreement (October 6th, 2016)

This Amendment to Subordination Agreement (this “Amendment”) is executed, jointly and severally, by the above-named Creditors (collectively referred to herein as “Creditor”) and PACIFIC WESTERN BANK (“Bank”) (successor-in-interest by merger to SQUARE 1 BANK), whose address is 406 Blackwell Street, Suite 240, Durham, North Carolina 27701, with respect to the above-named Borrowers (collectively referred to herein as “Borrower” or “the Borrower”).  Creditor and Bank are parties to a certain Subordination Agreement, dated September 13, 2106 (as amended, restated, supplemented, or otherwise modified from time to time, the “Subordination Agreement”).  Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Subordination Agreement.

Xtera Communications, Inc. – Subordination Agreement (September 14th, 2016)

This Subordination Agreement is executed, jointly and severally, by the above-named Creditors (collectively referred to herein as “Creditor”) in favor of PACIFIC WESTERN BANK (“Bank”) (successor-in-interest by merger to SQUARE 1 BANK), whose address is 406 Blackwell Street, Suite 240, Durham, North Carolina 27701, with respect to the above-named Borrowers (collectively referred to herein as “Borrower” or “the Borrower”).  Borrower and Bank are parties to a certain Loan and Security Agreement, dated January 16, 2015 (as amended, restated, supplemented, or otherwise modified from time to time, the “Loan Agreement”).  Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Loan Agreement.

Xtera Communications, Inc. – SECURITY AGREEMENT (September 14th, 2016)

this security agreement (this “Agreement”) is made as of September 13, 2016 by and among Xtera Communications, Inc., a Delaware corporation (the “Debtor”) and the investors set forth on Exhibit A attached to this Agreement (the “Secured Parties” and each of the Secured Parties individually, a “Secured Party”).  Capitalized terms not specifically defined herein shall have the meanings ascribed to them in the Notes (as defined below).

Xtera Communications, Inc. – THIS NOTE HAS NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THIS NOTE BE TRANSFERRED ON THE BOOKS OF THE BORROWER, WITHOUT REGISTRATION OF SUCH NOTE UNDER ALL APPLICABLE UNITED STATES FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM. (September 14th, 2016)

THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN SUBORDINATION AGREEMENT, BY AND AMONG PACIFIC WESTERN BANK, AS SUCCESSOR IN INTEREST TO SQUARE 1 BANK, AND THE HOLDER.

Xtera Communications, Inc. – Subordination Agreement (September 14th, 2016)

This Subordination Agreement is executed, jointly and severally, by the above-named Creditors (collectively referred to herein as “Creditor”) in favor of HORIZON TECHNOLOGY FINANCE CORPORATION (“Horizon”), whose address is 312 Farmington Avenue, Farmington, CT 06032, with respect to the above-named Borrower (referred to herein as “Borrower” or “the Borrower”).  Borrower and Horizon are parties to a certain Venture Loan and Security Agreement, dated May 10, 2011 (as amended, restated, supplemented, or otherwise modified from time to time, the “Loan Agreement”).  Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Loan Agreement.

Xtera Communications, Inc. – Contract (September 14th, 2016)

THIS WARRANT AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THIS WARRANT OR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT BE TRANSFERRED ON THE BOOKS OF THE COMPANY, WITHOUT REGISTRATION OF SUCH WARRANT OR SECURITIES, AS APPLICABLE, UNDER ALL APPLICABLE UNITED STATES FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE, AT THE OPTION OF THE COMPANY, TO BE EVIDENCED BY AN OPINION OF THE HOLDER’S COUNSEL, IN A FORM ACCEPTABLE TO THE COMPANY, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT.

Xtera Communications, Inc. – LIMITED WAIVER AND ELEVENTH amendment of VENTURE LOAN AND SECURITY AGREEMENT (September 7th, 2016)

This ELEVENTH AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (this “Agreement”), effective and dated as of August 31, 2016, is entered into by and between Xtera Communications, Inc., a Delaware corporation (“Xtera” or “Borrower”) and Horizon Technology Finance Corporation, a Delaware corporation (“Lender”).

Xtera Communications, Inc. – Limited Waiver and Seventh Amendment to Loan Agreement (September 7th, 2016)

This Limited Waiver and Seventh Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – Xtera Announces Fiscal Third Quarter Financial Results (August 11th, 2016)

The company's GAAP net loss for the fiscal third quarter of 2016 was $(23.6) million, or $(1.37) per basic and fully diluted share, compared to a GAAP net loss of $(4.6) million, or $(4.38) per basic and fully diluted share, for the third fiscal quarter of 2015. The company's non-GAAP net loss for the fiscal third quarter of 2016 was $(23.3) million, or $(1.35) per basic and fully diluted share, compared to a non-GAAP net loss of $(4.3) million, or $(4.24) per basic and fully diluted share, for the third fiscal quarter of 2015.

Xtera Communications, Inc. – TENTH amendment of VENTURE LOAN AND SECURITY AGREEMENT (August 4th, 2016)

This TENTH AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (this “Agreement”), effective and dated as of July 31, 2016, is entered into by and between Xtera Communications, Inc., a Delaware corporation (“Xtera” or “Borrower”) and Horizon Technology Finance Corporation, a Delaware corporation (“Lender”).

Xtera Communications, Inc. – Limited Waiver and Sixth Amendment to Loan Agreement (August 4th, 2016)

This Limited Waiver and Sixth Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – LIMITED WAIVER AND NINTH AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (July 7th, 2016)

This NINTH AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (this “Agreement”), effective and dated as of June 30, 2016, is entered into by and between Xtera Communications, Inc., a Delaware corporation (“Xtera” or “Borrower”) and Horizon Technology Finance Corporation, a Delaware corporation (“Lender”).

Xtera Communications, Inc. – Limited Waiver and Fifth Amendment to Loan Agreement (July 7th, 2016)

This Limited Waiver and Fifth Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (June 3rd, 2016)

Delaware corporation (“Borrower”), HEREBY PROMISES TO PAY to HORIZON FUNDING TRUST 2013-1, as assignee of HORIZON TECHNOLOGY FINANCE CORPORATION, a Delaware

Xtera Communications, Inc. – EIGHTH AMENDMENT OF VENTURE LOAN AND SECURITY AGREEMENT (June 3rd, 2016)

(this “Agreement”), effective and dated as of May 31, 2016, is entered into by and between Xtera Communications, Inc., a Delaware corporation (“Xtera” or “Borrower”) and Horizon Funding Trust 2013-1 (“Horizon Trust”), as assignee

Xtera Communications, Inc. – FOURTH AMENDED AND RESTATED SECURED PROMISSORY NOTE (June 3rd, 2016)

Delaware corporation (“Borrower”), HEREBY PROMISES TO PAY to HORIZON FUNDING TRUST 2013-1, as assignee of HORIZON TECHNOLOGY FINANCE CORPORATION, a Delaware

Xtera Communications, Inc. – Fourth Amendment to Loan Agreement (June 3rd, 2016)

This Fourth Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – Limited Waiver and First Amendment to Loan Agreement (May 16th, 2016)

THIS LIMITED WAIVER AND FIRST AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively, “Borrower”).

Xtera Communications, Inc. – Extension to the Master Manufacturing Agreement between Xtera Communications, Inc. and NSG Technology, Inc. (May 16th, 2016)

This Extension to the Master Manufacturing Agreement (“Extension”) is entered into as of January 1-, 2016 and is by and between Xtera Communications, Inc. (“Xtera”) with a place of business at 500 W. Bethany Drive, Suite 100, Allen, TX  75013 and NSG Technology, Inc. (“NSG”) with a place of business at 1705 Junction Court, Suite 200, San Jose, CA  95112.

Xtera Communications, Inc. – Second Amendment to Loan Agreement (May 16th, 2016)

This Second Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – Xtera Announces Fiscal Second Quarter Financial Results (May 16th, 2016)

The company's GAAP net loss for the fiscal second quarter of 2016 was $(6.6) million, or $(0.38) per basic and fully diluted share, compared to a GAAP net loss of $(2.2) million, or $(3.08) per basic and fully diluted share, for the second fiscal quarter of 2015. The company's non-GAAP net loss for the fiscal second quarter of 2016 was $(6.1) million, or $(0.35) per basic and fully diluted share, compared to a non-GAAP net loss of $(1.9) million, or $(2.93) per basic and fully diluted share, for the second fiscal quarter of 2015.

Xtera Communications, Inc. – Limited Waiver and Third Amendment to Loan Agreement (May 3rd, 2016)

This Limited Waiver and Third Amendment to Loan Agreement (this “Amendment”) is entered into between Pacific Western Bank (“Lender”) and, jointly and severally, the borrowers named above (collectively referred to herein as “Borrower”).

Xtera Communications, Inc. – EMPLOYMENT AGREEMENT (May 3rd, 2016)

This Employment Agreement (this “Agreement”) is made effective as of May 2, 2016 (“Effective Date”), by and between Xtera Communications, Inc., a Delaware corporation (“Company”), and Joseph R. Chinnici (“Executive”).

Xtera Communications, Inc. – Xtera Announces Fiscal First Quarter Financial Results (February 3rd, 2016)

The company's GAAP net loss for the fiscal first quarter of 2016 was $7.2 million, or $0.71 per basic and fully diluted share, compared to a GAAP net loss of $3.2 million, or $3.65 per basic and fully diluted share, for the first fiscal quarter of 2015. The company's non-GAAP net loss for the fiscal first quarter of 2016 was $6.9 million, or $0.68 per basic and fully diluted share, compared to a non-GAAP net loss of $3.0 million, or $3.49 per basic and fully diluted share, for the first fiscal quarter of 2015.

Xtera Communications, Inc. – Xtera Announces Fiscal Fourth Quarter and Full Year 2015 Financial Results (December 9th, 2015)

The company's net loss for the fiscal fourth quarter of 2015 was $6.6 million, or $5.49 per basic and fully diluted share, compared to a net loss of $15.0 million, or $10.12 per basic and fully diluted share, for the fourth quarter of 2014. Basic and fully diluted net loss per share for the fiscal fourth quarter ended September 30, 2015 and 2014 reflect 1.9 million and 1.8 million common shares outstanding, respectively, and do not include shares issued in conjunction with the company’s initial public offering and the conversion of preferred shares into common shares in November 2015.

Xtera Communications, Inc. – Shares* XTERA COMMUNICATIONS, INC. Common Stock UNDERWRITING AGREEMENT (October 26th, 2015)
Xtera Communications, Inc. – INDEMNIFICATION AGREEMENT (October 26th, 2015)

This Indemnification Agreement, dated                     , is made between Xtera Communications, Inc., a Delaware corporation (the “Company”), and                      (the “Indemnitee”).

Xtera Communications, Inc. – AMENDED AND RESTATED BYLAWS OF XTERA COMMUNICATIONS, INC. (October 26th, 2015)
Xtera Communications, Inc. – AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF XTERA COMMUNICATIONS, INC. (Pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware) (October 26th, 2015)

Xtera Communications, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”),

Xtera Communications, Inc. – CERTIFICATE OF AMENDMENT TO THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF XTERA COMMUNICATIONS, INC. (October 26th, 2015)

XTERA COMMUNICATIONS, INC. (the “Corporation”), a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

Xtera Communications, Inc. – XTERA COMMUNICATIONS, INC. 2015 EQUITY INCENTIVE PLAN (October 26th, 2015)
Xtera Communications, Inc. – Page ARTICLE 1 STOCKHOLDERS 1 1.1 ANNUAL MEETINGS 1 1.2 SPECIAL MEETINGS 1 1.3 NOTICE OF MEETINGS 1 1.4 ADJOURNMENTS 1 1.5 QUORUM 2 1.6 ORGANIZATION 2 1.7 VOTING; PROXIES 2 1.8 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD 3 1.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE 3 1.10 ACTION BY CONSENT OF STOCKHOLDERS 4 ARTICLE 2 BOARD OF DIRECTORS 4 2.1 NUMBER; QUALIFICATIONS 4 2.2 ELECTION; RESIGNATION; REMOVAL; VACANCIES 4 2.3 REGULAR MEETINGS 4 2.4 SPECIAL MEETINGS 4 2.5 TELEPHONIC MEETINGS PERMITTED 5 2.6 QUORUM; VOTE REQUIRED FOR ACTION 5 2.7 ORGANIZATION 5 2.8 INFORMAL ACTION BY DIRECTORS (October 5th, 2015)