EXHIBIT 10.36
CORSAIR COMMUNICATIONS, INC.
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT DATED OCTOBER 30, 1996
This Amendment No. 1 ("Amendment") to the Amended and Restated Investors'
Rights Agreement dated October 30, 1996 (the "Agreement") is made as of this 7th
day of March, 1997 by and among Corsair Communications, Inc., a Delaware
corporation (the "Company"), each of the individuals and entities listed as
Existing Investors on the signature page to the Agreement, (the "Existing
Investors") and each of the individuals and entities listed as New Investors on
the signature page to this Amendment (the "New Investors"). Capitalized terms
used herein which are not defined herein shall have the definition ascribed to
them in the Agreement.
RECITALS
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The Company desires to sell and issue to the New Investors and the New
Investors desire to purchase from the Company, shares of the Company's Series D
Preferred Stock pursuant to that certain Series D Preferred Stock Purchase
Agreement of even date herewith (the "Series D Agreement").
The Existing Investors desire for the New Investors to invest in the
Company and, as a condition thereof and to induce such investment, the Existing
Investors and the Company are willing to enter into this Amendment to permit the
New Investors to become a party to the Agreement.
In consideration of the foregoing and the promises and covenants contained
herein and other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. ADDITIONAL PARTIES TO THE AGREEMENT.
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The New Investors hereby enter into and become parties to the Agreement.
The signature page to the Agreement is amended to include the New Investors.
2. AMENDMENTS TO AGREEMENT.
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2.1 The New Investors and the Existing Investors are collectively
referred to as "Investors" for the purposes of the Agreement.
2.2 Section 1.1(c) of the Agreement is amended in its entirety to
read as follows:
"(c) The term "Registrable Securities" means (1) the Common Stock
issuable or issued upon conversion of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and/or Series D
Preferred Stock and (2) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or
other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
or Series D Preferred Stock (or the Common Stock issued upon
conversion thereof), excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his rights under
this Section 1 are not assigned;
2.3 Section 2.4 of the Agreement is amended in its entirety to read
as follows:
"2.4 Right of First Offer. Subject to the terms and conditions
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specified in this Section 2.4, the Company hereby grants to each Major
Investor (as hereinafter defined) a right of first offer with respect
to future sales by the Company of its Shares (as hereinafter defined).
For purposes of this Section 2.4, a Major Investor shall mean (a) any
Investor who holds at least (i) 10% of the original investment such
Investor made in the Company pursuant to that certain Series A
Preferred Stock Purchase Agreement dated December 10, 1994 (the
"Series A Agreement"), (ii) 10% of the original investment such
Investor made in the Company pursuant to that certain Series B
Preferred Stock Purchase Agreement dated October 31, 1995 (the "Series
B Agreement"), (iii) 10% of the original investment such Investor made
in the Company pursuant to that certain Series C Preferred Stock
Purchase Agreement dated October 30, 1996 or (iv) 10% of the original
investment such Investor makes in the Company pursuant to the Series D
Agreement and (b) any person who acquired or will acquire at least (i)
10% of the Series A Preferred Stock (or the common stock issued upon
conversion thereof) issued pursuant to the Series A Agreement, (ii)
10% of the Series B Preferred Stock (or Common Stock issued upon
conversion thereof) issued pursuant to the Series B Agreement, (iii)
10% of the Series C Preferred Stock (or the common stock issued upon
conversion thereof) issued pursuant to the Series C Agreement or (iv)
10% of the Series D Preferred Stock (or the common stock issued upon
conversion thereof) issued pursuant to the Series D Agreement. For
purposes of this Section 2.4, an Investor includes any general
partners and affiliates of an Investor. An Investor shall be entitled
to apportion the right of first offer hereby granted it among itself
and its partners and affiliates in such proportions as it deems
appropriate.
Each time the Company proposes to offer any shares of, or securities
convertible into or exercisable for any shares of, any class of its capital
stock
("Shares"), the Company shall first make an offering of such Shares to each
Major Investor in accordance with the following provisions:
(a) The Company shall deliver a notice by certified mail
("Notice") to the Major Investors stating (i) its bona fide intention to
offer such Shares, (ii) the number of such Shares to be offered, and (iii)
the price and terms, if any, upon which it proposes to offer such Shares.
(b) Within 20 calendar days after receipt of the Notice, each
Major Investor may elect to purchase or obtain, at the price and on the
terms specified in the Notice, up to that portion of such Shares which
equals the proportion that the number of shares of common stock issued and
held, or issuable upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and/or Series D Preferred Stock
then held, by such Major Investor bears to the total number of shares of
common stock of the Company then outstanding (assuming full conversion and
exercise of all convertible or exercisable securities). The Company shall
promptly, in writing, inform each Major Investor which purchases all the
shares available to it ("Fully-Exercising Investor") of any other Major
Investor's failure to do likewise. During the ten-day period commencing
after receipt of such information is given, each Fully-Exercising Investor
shall be entitled to obtain that portion of the Shares not subscribed for
by the Major Investors which is equal to the proportion that the number of
shares of common stock issued and held, or issuable upon conversion of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and/or Series D Preferred Stock then held by such Fully-Exercising
Investor bears to the total number of shares of common stock issued and
held, or issuable upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and/or Series D Preferred Stock
then held, by all Fully-Exercising Investors who wish to purchase some of
the unsubscribed shares.
(c) If all Shares that Investors are entitled to obtain pursuant
to subsection 2.4(b) are not elected to be obtained as provided in
subsection 2.4(b) hereof, the Company may, during the 60-day period
following the expiration of the period provided in subsection 2.4(b)
hereof, offer the remaining unsubscribed portion of such Shares to any
person or persons at a price not less than, and upon terms no more
favorable to the offeree than those specified in the Notice. If the
Company does not enter into an agreement for the sale of the Shares within
such period, or if such agreement is not consummated within 60 days of the
execution thereof, the right provided hereunder shall be deemed to be
revived and such Shares shall not be offered unless first reoffered to the
Major Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.4 shall not be
applicable: (i) to the issuance or sale of common stock (or options
therefor) to employees, consultants and directors, directly or pursuant to
a stock option plan
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or agreement or restricted stock plan or agreement approved by the Board of
Directors of this Company, provided each employee executes an agreement
containing the provisions set forth in Section 2.5(b) hereof, (ii) to or
after consummation of a bona fide, firmly underwritten public offering of
shares of common stock, registered under the Act pursuant to a registration
statement on Form S-1, at an offering price of at least $10.00 per share
(appropriately adjusted for any stock split, dividend, combination or other
recapitalization) and $15,000,000 in the aggregate, (iii) to the issuance
of securities pursuant to the conversion or exercise of convertible or
exercisable securities, (iv) to the issuance of securities in connection
with a bona fide business acquisition of or by the Company, whether by
merger, consolidation, sale of assets, sale or exchange of stock or
otherwise or (v) to the issuance of stock, warrants or other securities or
rights to persons or entities with which the Company has business
relationships, provided such issuances are for other than primarily equity
financing purposes.
3. WAIVER AND CONSENT.
------------------
Each Existing Investor, pursuant to any rights such Existing Investor
may have under the Agreement, hereby, on behalf of himself and the other
Investors under the Agreement, (a) waives all rights under, and any notice
required by, Section 2.4 of the Agreement relating to any rights to purchase or
rights of first offer with respect to the sale of the shares of Series D
Preferred Stock, (b) consents to adding the New Investors as parties to the
Agreement, and (c) consents to the registration rights hereby provided the New
Investors, which consent is given pursuant to Section 1.14 of the Agreement.
4. EFFECT OF AMENDMENT.
-------------------
Except as amended and set forth above, the Agreement shall continue in full
force and effect.
5. COUNTERPARTS.
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This Amendment may be executed in any number of counterparts, each which
will be deemed an original, and all of which together shall constitute one
instrument.
6. SEVERABILITY.
------------
If one or more provisions of this Amendment are held to be
unenforceable under applicable law, such provision shall be excluded from this
Amendment and the balance of the Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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7. ENTIRE AGREEMENT.
----------------
This Amendment, together with the Agreement, constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
8. GOVERNING LAW.
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This Amendment shall be governed by and construed under the laws of
the State of California as applied to agreements among California residents
entered into and to be performed entirely within California.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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This Amendment is hereby executed as of the date first above written.
CORSAIR COMMUNICATIONS, INC., a Delaware
corporation
By: /s/ Xxxx Xxx Xxxxxx
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Xxxx Xxx Xxxxxx, President
Address: 0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
EXISTING INVESTORS:
XXXXXXX XXXXXXX XXXXXXXX & XXXXX VII, L.P.
By: /s/ Xxxxx Xxxxxxx
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Title: General Partner
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Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXX XXXXX FUND IV L.P.
By: SRB Associates IV L.P.
Its: General Partner
By: /s/ Xxxx Xxxxxxx
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General Partner
Address: Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
XXXXX XXXXX XXXXXXX MANAGEMENT COMPANY
By: /s/ Xxxx Xxxxxxx
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Title: Vice President
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Address: Two Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
NORWEST EQUITY PARTNERS IV, a
Minnesota Limited Partnership
By: Itasca Partners
Its: General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Title: Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
NORWEST EQUITY PARTNERS, V, a Minnesota Limited
Liability Partnership
By: Itasca Partners V, L.L.P.
Its: General Partner
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Title: Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
XXXXXXX CAPITAL SBIC, L.P.
By: Xxxxxxx Capital Management Partners, L.P.
Its: _________________________________________
By:______________________________________
Title:___________________________________
Address: 000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXX CAPITAL PARTNERS, L.P.
By:___________________________________________
Title:________________________________________
Address: 000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXX EMERGING GROWTH PARTNERS
By:___________________________________________
Title:________________________________________
Address: 000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
ACCEL IV L.P.
By: Accel IV Associates L.P.
Its: General Partner
By: /s/ X. Xxxxxx Sednaoui
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General Partner
Address: c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
ACCEL INVESTORS '95 L.P.
By: /s/ X. Xxxxxx Sednaoui
----------------------------------------------
General Partner
Address: c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
ACCEL KEIRETSU L.P.
By: Accel Partners & Co. Inc.
Its: General Partner
By: /s/ X. Xxxxxx Sednaoui
----------------------------------------
Title: Chief Financial Officer
-------------------------------------
Address: c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ illegible
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General Partner
Address: c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
TECHNOLOGY CROSSOVER VENTURES, L.P.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Title: Chief Financial Officer
-----------------------------------------
Address: 000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
TECHNOLOGY CROSSOVER VENTURES, C.V.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Title: Chief Financial Officer
-----------------------------------------
Address: 000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
INTEGRAL CAPITAL PARTNERS II, L.P.
By: Integral Capital Management II, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Hogenah
--------------------------------------
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
INTEGRAL CAPITAL PARTNERS INTERNATIONAL II, C.V.
By: Integral Capital Management II, L.P.
Its: Investment General Partner
By: /s/ Xxxxxx X. Hogenah
--------------------------------------
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB INFORMATION SCIENCES ZAIBATSU FUND II, L.P.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Title: General Partner
-----------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXX X. RING CHARITABLE REMAINDER UNITRUST UTA
Dated 5/20/96
By:_____________________________________________
Xxxxx X. Ring, Trustee
Address: 0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
UST PRIVATE EQUITY INVESTORS FUND, INC.
By: /s/ illegible
------------------------------------------
Title: Pres & CEO
---------------------------------------
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
ORCHID AND CO., Nominee for
X. Xxxx Price Threshold Fund III, L.P.
By: X. XXXX PRICE THRESHOLD FUND ASSOCIATES,
INC.,
General Partner
By: /s/ illegible
-------------------------------------
Title: President
----------------------------------
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
COLUMBIA CAPITAL INVESTMENTS, LLC
By: /s/ illegible
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Title: Vice President
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Address: 000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
SPINNAKER FUND
By:____________________________________________
Title:_________________________________________
Address: 00 Xxxxxxxxx Xxxx
P. O. Xxx 000000
Xxxxxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
ANDBACH VENTURES VI, L.P.
By:____________________________________________
Title:_________________________________________
Address: 000 X. Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
TRAILHEAD VENTURES, L.P.
By: /s/ illegible
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Title: General Partner
----------------------------------------
Address: 0000 Xxxxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000
SOUNDVIEW PARTNERS
By:____________________________________________
Title:_________________________________________
Address: Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
XXXXXXXXX & XXXXX CALIFORNIA, a California
corporation
By:____________________________________________
Title:_________________________________________
Address: Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
______________________________________
XXXXXX XXXXXXXXX
Address: x/x Xxxxxxxxx & Xxxxx California
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
______________________________________
XXXXXXXXXXX XXXXXXXX
Address: x/x Xxxxxxxxx & Xxxxx California
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
______________________________________
XXXXXX XXXX
Address: x/x Xxxxxxxxx & Xxxxx California
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
______________________________________
XXXXX XXXXX
Address: x/x Xxxxxxxxx & Xxxxx California
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
COMDISCO, INC.
By:_______________________________________________
Title:____________________________________________
Address: 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
UMB BANK, N.A., as Trustee for Xxxxxxx, Xxxxxxx &
Xxxxxxxx Retirement Savings Trust F/B/O Xxxx X.
Xxxxxxxxx
By: /s/ illegible
----------------------------------------------
Title: Assistant Trust Officer
-------------------------------------------
Address: UMB Bank, N.A.
P. O. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
__________________________________________________
XXXXXXX X. XXXXXXX
Address: 0000 Xxxxxx Xxx Xxx
Xx Xxxxx, XX 00000
__________________________________________________
XXXXX X. XxXXXXXXX
Address: 000 Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
/s/ Xxxxxxxx Xxxx Xxxxxxx
----------------------------------------------
XXXXXXXX XXXX XXXXXXX
Address: 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
______________________________________________
XXXXXX X. XXXX
Address: c/o Comdisco, Inc.
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
KPCB VII FOUNDERS FUND
By: /s/ Xxxxx X Xxxxxxx
----------------------------------------
Title: General Partner
-------------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
TRW, INC.
By: /s/ illegible
-----------------------------------------
Title: Vice President
--------------------------------------
Address: 1 Federal System Xxxx Xx., XX0-0000
Xxxxxxx, VA 22033-4411
Attn: Xxxxxx Xxxxxxxxx
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
_____________________________________________
XXXXX X. RING
Address: 0000 00xx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
NEW INVESTORS:
SUMITOMO CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Title: Attorney-in-Fact
-----------------------------------
Address:
SUMITOMO CORPORATION OF
AMERICA
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Title: Senior Vice President
-----------------------------------
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
