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EXHIBIT 10.5
AMENDMENT TWO TO 8/1/96 INVESTORS' RIGHTS AGREEMENT
OF
SIGNALSOFT CORPORATION
THIS AMENDMENT, is entered into as of this December 15, 1999, by and among
SignalSoft Corporation, a Delaware corporation (the "Company"), the undersigned
investors who comprise all of the holders of the Company's Series A Preferred
Stock (the "Series A Investors"), all of the holders of the Company's Series B
Preferred Stock (the "Series B Investors"), the Company's three founders --
Xxxxx Hose, Xxxx Xxxxxx, and Xxx Xxxxx (individually a "Founder" and
collectively the "Founders") -- and the investors listed on Exhibit A hereto as
that Exhibit A now exists and may hereafter be added to in accordance with the
provisions of paragraph 1.2(c) of that certain SignalSoft Corporation Series C
Preferred Stock Purchase Agreement of even date herewith (the "Series C Purchase
Agreement") by and among the Company and the investors listed on Exhibit A
hereto and thereto (the "Series C Investors").
RECITALS
WHEREAS, the Company, the Series A Investors, the Series B Investors and
the Founders are signatories to that certain SignalSoft Corporation Investors'
Rights Agreement entered into as of the 1st day of August, 1996, as amended by
Amendment One thereto dated January 22, 1998 (the "8/1/96 Investors' Rights
Agreement"); and,
WHEREAS, paragraph 3.7 of the 8/1/96 Investors' Rights Agreement provides
that such agreement may be amended only with the written consent of the Company
and the holders of a majority of the Registrable Securities then outstanding,
not including the Founders' Stock, as those terms are defined therein (provided
that the consent of the holder or holders of a majority of the Founders' Stock
is also required in certain circumstances), and that any amendment so effected
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and the
Company; and,
WHEREAS, the Series A Investors and the Series B Investors are the holders
of a majority of the currently outstanding Registrable Securities, not including
the Founders' Stock as defined in the 8/20/86 Registration Rights Agreement; and
the Series A Investors, the Series B Investors and the Company, as well as each
of the Founders, desire to amend the 8/1/96 Investors' Rights Agreement in the
manner set forth in this Amendment in order to induce the Series C Investors to
purchase shares of the Company's Series C Preferred Stock pursuant to the Series
C Purchase Agreement by agreeing to the terms and conditions in this Amendment;
and,
WHEREAS, it is the intent of the parties hereto by this Amendment to extend
to all the holders of the Company's Series C Preferred Stock the identical
rights, privileges and obligations granted to, and assumed by, the Series A
Investors and the Series B Investors under the terms and conditions of the
8/1/96 Investors' Rights Agreement (such 8/1/96 Investors' Rights Agreement, as
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amended by this Amendment, the "Amended Investors' Rights Agreement") in a
manner which makes all of the Preferred Stock rights and privileges granted
under the Amended Investors' Rights Agreement applicable to the Series A and
Series B and Series C Preferred Stock taken together as the "Preferred Stock".
NOW THEREFORE, in consideration of the above recitals and the mutual
promises contained below, the parties hereby agree as follows:
1. Clause (i) of paragraph 1.1(b) is hereby amended to read in its entirety
as follows:
"(b) The term "Registrable Securities" means (i) the shares of Common Stock
issuable or issued upon conversion of the Series A and Series B and Series
C Preferred Stock (such shares of Common Stock are collectively referred to
hereinafter as the "Stock"),"
2. Paragraph 1.1(g) is hereby amended to read in its entirety as follows:
"(g) The term "Investor" means and shall include each holder of Series A
Preferred Stock and/or Series B Preferred Stock and/or Series C Preferred
Stock of the Company."
3. Paragraph 1.1(h) is hereby amended to read in its entirety as follows:
"(h) The term "Preferred Stock" means and shall include the Company's
Series A Preferred Stock and Series B Preferred Stock and Series C
Preferred Stock aggregated together."
4. The first sentence of paragraph 3.1 of the 8/1/96 Investors' Rights
Agreement is hereby amended to read in its entirety as follows:
"3.1 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties
(including transferees of any of the Series A and/or Series B and/or Series
C Preferred Stock or any Common Stock issued upon conversion thereof)."
5. Paragraph 3.10 of the 8/1/96 Investors' Rights Agreement is hereby
amended to read in its entirety as follows:
"3.10 Legend on Stock Certificates. Each certificate representing
shares of capital stock that are subject to this Agreement shall bear a
legend substantially in the following form:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, OR ENCUMBRANCE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
INVESTORS' RIGHTS AGREEMENT DATED AUGUST 1, 1996, AS AMENDED FROM TIME
TO TIME, BY AND AMONG SIGNALSOFT
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CORPORATION AND CERTAIN HOLDERS OF ITS OUTSTANDING CAPITAL STOCK.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF
SIGNALSOFT CORPORATION."
8. This Amendment shall be deemed effective as of December 15, 1999, the
date of the SignalSoft Corporation Series C Purchase Agreement, and specifically
hereby is intended to make Series C Investors beneficiaries of the Amended
Investors' Rights Agreement as defined above as soon as they purchase shares of
the Company's Series C Preferred Stock pursuant to the Series C Purchase
Agreement.
9. The Company acknowledges and confirms that it has assumed all
obligations of its predecessor Colorado corporation, SignalSoft Corp. under the
8/1/96 Investors' Rights Agreement, and upon its execution and delivery hereof,
will be obligated under and bound by all the amended terms of the Amended
Investors' Rights Agreement.
10. Except as expressly amended hereby, each of the terms of the 8/1/96
Investors' Rights Agreement is hereby ratified and confirmed and continues in
full force and effect.
[Signature Pages Follow]
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The parties have executed this Amendment Two to 8/1/96 Investors' Rights
Agreement as of the date first written above.
COMPANY:
SIGNALSOFT CORPORATION
By: /s/ Xxxxx Hose
-------------------------
Name: Xxxxx Hose
-----------------------
(print)
Title: President
Address: 0000 Xxxxxx Xxxx.
Xxxxxxx Xxxxxxxx 00000
SERIES A INVESTORS:
OLYMPIC VENTURE PARTNERS III, L.P. OVP III ENTREPRENEURS
By OVMC III LLC its GP FUND, X.X.Xx OVMC III LLC its GP
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx. Name: Xxxxxxx X. Xxxxx, Xx.
----------------------------- -------------------------------
(print) (print)
Title: Managing Member Title: Managing Member
Address: 0000 Xxxxxxxx Xxxxx Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx XX 00000 Xxxxxxxx XX 00000
FOUNDERS:
/s/ Xxxxx Hose
/s/ Xxxx Xxxxxx
/s/Xxx Xxxxx
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NEW SERIES B INVESTORS:
OLYMPIC VENTURE PARTNERS IV, L.P. OVP IV ENTREPRENEURS FUND, L.P.
By OVMC IV LLC its GP By OVMC IV LLC its GP
By: /s/ Xxxxxxx X. Xxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx, Xx. Name: Xxxxxxx X. Xxxxx, Xx.
-------------------------- ----------------------------
(print) (print)
Title: Managing Member Title: Managing Member
Address: 0000 Xxxxxxxx Xxxxx Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx XX 00000 Xxxxxxxx XX 00000
LAZARD FRERES & CO. LLC TGI FUND II, LC
By Tredegar Investments Inc., its
Manager
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxx
---------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxx
-------------------------- -----------------------------
(print) (print)
Title: Managing Director Title: President
Address: 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX Address: 0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx as nominee
for the Broadview Partners Group
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/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
WA&H INVESTMENT, L.L.C.
By: Xxxxxxx, Xxxxxx & Xxxxxxxxx Group, L.L.C.
By: /s/ Xxxx Xxxx
-------------------------------
Print Name: Xxxx Xxxx
-----------------------
Print Title: Director of Finance and
Administration, Xxxx
Xxxxxxxx Xxxxxxx, a
division of Xxxx
Xxxxxxxx Incorporated
NEW SERIES C PURCHASERS/INVESTORS:
I IDS LIFE SERIES FUND, INC.-- AXP VARIABLE PORTFOLIO--
EQUITY PORTFOLIO STRATEGY AGGRESSIVE FUND
By: /s/ Xxxxxxxxx X. Quiesfeld By: /s/ Xxxxxxxxx X. Quiesfeld
-------------------------------- -------------------------------
Name: Xxxxxxxxx X. Quiesfeld Name: Xxxxxxxxx X. Quiesfeld
------------------------------ -----------------------------
(print) (print)
Title: Vice President Title: Vice President
----------------------------- ----------------------------
Address: 000 Xxxxxxxxx Xxx. Address: 000 Xxxxxxxxx Xxx.
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
AXP STRATEGY AGGRESSIVE FUND Address: 000 Xxxxxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
By: /s/ Xxxxxxxxx X. Quiesfeld
--------------------------------
Name: Xxxxxxxxx X. Quiesfeld
------------------------------
(print)
Title: Vice President
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MEDIATEL MANAGEMENT S.A., a public limited liability company organised under the
laws of the Grand Duchy of Luxembourg acting for itself and on behalf of the
unitholders of MediaTel Capital organised as a non-incorporated
co-proprietorship of assets being a mutual investment fund (FCP - Fonds Commun
de Placement) under the laws of the Grand Duchy of Luxembourg
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
-----------------------------
(print)
Title: Senior Advisor
-----------------------------
Address: 0 Xxxx Xxxxx X 0000 Xxxxxxxxxx
XXXXXXX ONLINE INC.
By: /s/ Xxxxxxx Xxxxx Address: 00000 XXX Xxx
----------------------------- Xxxxxx, XX 00000-0000
Name: Xxxxxxx Xxxxx
-----------------------------
(print)
Title: Vice Chairman
COMVERSE TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx Address: 00 X. 00xx Xxxxxx
--------------------------------- Xxx Xxxx, XX 00000
Name: Xxxxxxx X. Xxxxx
--------------------------------
(print)
Title: Secretary and General Counsel
-------------------------------
CTI CAPITAL CORP.
By: /s/ Xxxxxxx X. Xxxxx Address: 00 X. 00xx Xxxxxx
--------------------------------- Xxx Xxxx, XX 00000
Name: Xxxxxxx X. Xxxxx
--------------------------------
(print)
Title: Secretary and General Counsel
-------------------------------
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SIEMENS INFORMATION AND COMMUNICATION NETWORKS, INC.
By: /s/ Xxxxxx Xxxxx Address: 900 Broken Sound Parkway
-------------------------------- Xxxx Xxxxx, XX 00000
Name: Xxxxxx Xxxxx ATTN: Executive Vice President & CFO
----------------------------- COPIES TO: SIEMENS CORPORATION
(print) 1301 Avenue of the Americas
Title: Exec. V.P. & CFO Xxx Xxxx, XX 00000
----------------------------- Attn: General Counsel
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxx Xxxx Address: 000 Xxxxxxxxx Xxxxxx
------------------------------- Xxx Xxxx, XX 00000
Name: Xxxxx Xxxx ATTN: Xxxxx X. Xxxx, Managing Director
-----------------------------
(print)
Title: Managing Director
-----------------------------
/s/ Xxxxx X. XxXxxxx
--------------------------------
Xxxxx X. XxXxxxx
Address: 000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Address: 0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
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INTEL CORPORATION
By: /s/ Xxxxxx Xxxxxxx Address: 0000 Xxxxxxx Xxxxxxx Xxxx.
------------------------------- Xxxxx Xxxxx, XX 00000
Name: Xxxxxx Xxxxxxx Attn: M&A Portfolio Manager-M/S RN6-46
----------------------------- Fax # 000-000-0000
(print)
Title: Vice President and Treasurer
-----------------------------
NEW GROUND CAPITAL LIMITED
By: /s/ Xxxxxx X. X. XxXxxxxx Address: X.X. Xxx 00, 00 Xxx Xxxxxx.
----------------------------- Orbis House
Name: Xxxxxx X. X. XxXxxxxx St. Xxxxx Port
----------------------------- GY14AN
(print) Channel Islands
Title: Director
-----------------------------
HIKARI TSUSHIN INC.
By: /s/ Xxxxxxxx Xxxxx Address: 2-1-1 Ohtemachi
----------------------------- 23F Ohtemachi Nomura Blg.
Name: Xxxxxxxx Xxxxx Chiyoda-ku, Tokyo
---------------------------- 100-0004
(print) Japan
Title: Executive Managing Director
-----------------------------
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