1
Exhibit 10.6
UNWIRED PLANET, INC.
FOURTH AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
---------------------------------
THIS FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
"AGREEMENT") is entered into effective as of March 12, 1999 by and among Unwired
Planet, Inc., a Delaware corporation (the "COMPANY"), those holders of Series A
Preferred Stock of the Company (the "SERIES A INVESTORS"), those holders of
Series B Preferred Stock of the Company (the "SERIES B INVESTORS"), those
holders of Series C Preferred Stock of the Company (the "SERIES C INVESTORS"),
those holders of Series D Preferred Stock (the "SERIES D INVESTORS") and those
holders of Series E Preferred Stock (the "SERIES E INVESTORS") set forth in
Exhibit A hereto (collectively, the "INVESTORS").
R E C I T A L S
1. In connection with the prior issuance of its outstanding
Series A Preferred Stock (the "SERIES A STOCK") to the Series A Investors, its
outstanding Series B Preferred Stock (the "SERIES B STOCK") to the Series B
Investors, its outstanding Series C Preferred Stock (the "SERIES C STOCK") to
the Series C Investors and its outstanding Series D Preferred Stock (the "SERIES
D STOCK") to the Series D Investors the Company entered into the Third Amended
and Restated Investor Rights Agreement, as amended, dated as of January 23, 1998
(the "THIRD AMENDED AND RESTATED AGREEMENT") pursuant to which the Company
granted the Series A Investors, the Series B Investors, the Series C Investors
and the Series D Investors certain registration, first refusal and information
rights.
2. The Company and the Series E Investors are parties to the
Series E Preferred Stock Purchase Agreement, dated March 12, 1999 (the "SERIES E
AGREEMENT") pursuant to which the Company shall issue and sell up to 3,729,256
shares of its Series E Preferred Stock (the "SERIES E STOCK").
3. The Company, the Series A Investors, the Series B Investors,
the Series C Investors and the Series D Investors wish to enter into this
Agreement to amend and supersede the Third Amended and Restated Agreement so as
to modify the registration, first refusal and information rights contained
therein to be as set forth herein and to extend such rights to the Series E
Investors.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties agree as follows:
A G R E E M E N T
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
2
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Stock of the Company.
"CONVERSION STOCK" means the Common Stock issued or issuable pursuant to
conversion of the Preferred Stock.
"HOLDER" shall mean (i) any Investor holding Registrable Securities, and
(ii) any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 5.9 hereof.
"INITIATING HOLDERS" shall mean any Holders who in the aggregate hold
not less than 50% of the Registrable Securities.
"PREFERRED STOCK" shall mean the Series A Stock, the Series B Stock, the
Series C Stock, the Series D Stock and the Series E Stock of the Company.
"REGISTRABLE SECURITIES" means the Conversion Stock and any Common Stock
issued or issuable in respect of the Conversion Stock upon any stock split,
dividend, recapitalization, or similar event, or any Common Stock otherwise
issuable with respect to the Conversion Stock; provided, however, that shares of
Conversion Stock or other securities shall only be treated as Registrable
Securities if and so long as they have not been (a) sold to or through a broker
or dealer or underwriter in a public distribution or a public securities
transaction, or (b) sold in a single transaction exempt from the registration
and prospectus delivery requirements of the Securities Act of 1933, as amended,
so that all transfer restrictions and restrictive legends with respect thereto
are removed prior to any such sale.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise
stated below, incurred by the Company in complying with Sections 5.1, 5.2 and
5.3 hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company, which shall be paid in any event by the
Company) and excluding the fees and disbursements of counsel for Holders.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 3 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
-2-
3
"SECURITIES EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth under "Registration Expenses," all fees and
disbursements of counsel for any Holder.
2. RESTRICTIONS ON TRANSFERABILITY. The Preferred Stock, the Conversion
Stock and any other securities issued in respect of the Preferred Stock or the
Conversion Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event shall not be sold, assigned, transferred or
pledged except upon the conditions specified in this Agreement, which conditions
are intended to ensure compliance with the provisions of the Securities Act. The
Investors will cause any proposed purchaser, assignee, transferee, or pledgee of
any such shares held by the Investors to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Agreement.
3. RESTRICTIVE LEGEND. Each certificate representing (i) the Preferred
Stock, (ii) the Conversion Stock, and (iii) any other securities issued in
respect of the Preferred Stock or the Conversion Stock upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 4 below) be stamped or
otherwise imprinted with a legend in substantially the following form (in
addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. SUCH SHARES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS
OF SAID ACT.
COPIES OF THE AGREEMENTS COVERING THE PURCHASE OF THESE SHARES
AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE CORPORATION.
Each Investor and/or Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Preferred Stock or
the Common Stock in order to implement the restrictions on transfer established
in this Agreement.
-3-
4
4. NOTICE OF PROPOSED TRANSFER. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than (i) a
transfer not involving a change in beneficial ownership, (ii) in transactions
involving the distribution without consideration of Restricted Securities by the
Investor to any of its partners, or retired partners, or to the estate of any of
its partners or retired partners, (iii) in transactions involving the transfer
without consideration of Restricted Securities by the Investor during his
lifetime by way of gift or on death by will or intestacy, (iv) in transactions
involving the transfer or distribution of Restricted Securities by a corporation
to any subsidiary, parent or affiliated corporation of such corporation, or (v)
in transactions in compliance with Rule 144), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the holder thereof shall give written notice to the Company of such holder's
intention to effect such transfer, sale, assignment or pledge. Each such notice
shall describe the manner and circumstances of the proposed transfer, sale,
assignment or pledge in sufficient detail, and shall be accompanied, at such
holder's expense by either (i) an unqualified written opinion of legal counsel
who shall be, and whose legal opinion shall be, reasonably satisfactory to the
Company addressed to the Company, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Commission to the effect
that the transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the holder to the Company. Each certificate evidencing the
Restricted Securities transferred as above provided shall bear, except if such
transfer is made pursuant to Rule 144, the appropriate restrictive legend set
forth in Section 3 above, except that such certificate shall not bear such
restrictive legend if, in the opinion of counsel for such holder and the
Company, such legend is not required in order to establish compliance with any
provision of the Securities Act.
5. REGISTRATION.
5.1 DEMAND REGISTRATION.
(a) Demand for Registration. In case the Company shall
receive from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than thirty
percent (30%) of the shares of Preferred Stock or Conversion Stock, or any
lesser number of shares if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed ($15,000,000) fifteen
million dollars the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts
to effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such
-4-
5
portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within 20 days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Section 5.1:
A. In any particular jurisdiction in which
the Company would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless the Company
is already subject to service in such jurisdiction and except as may be required
by the Securities Act;
B. Prior to the earlier of June 30, 2002 or
six months after the effective date of the Company's first registered public
offering of its stock;
C. If the Company, within ten (10) days of
the receipt of the request of the Initiating Holders, gives notice of its bona
fide intention to effect the filing of a registration statement with the
Commission within ninety (90) days of receipt of such request;
D. During the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of, and ending on the date 180 days immediately following the effective date of,
any registration statement pertaining to securities of the Company, provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
E. After the Company has effected two such
registrations pursuant to this Section 5.1(a);
F. Within twelve (12) months after the
Company has effected such a registration pursuant to this Section 5.1(a); or
G. If the Company shall furnish to such
Initiating Holders a certificate signed by the Chief Executive Officer of the
Company stating that in the good faith judgment of the Company's Board of
Directors (the "BOARD") it would be seriously detrimental to the Company or its
stockholders for a registration statement to be filed at the date filing would
be required, in which case the Company's obligation to use its best efforts to
register, qualify or comply under this Section 5.1 shall be deferred for a
period not to exceed 120 days from the date of receipt of written request from
the Initiating Holders, provided that the Company may not exercise this deferral
right more than once during any twelve (12) month period.
Subject to the foregoing clauses (A) through (G), the Company shall file
a registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. Any registration pursuant to Section 5.1
shall be firmly underwritten by an underwriter of national recognition. In the
event that a registration pursuant to Section 5.1 is for a public offering
involving an underwriting, the Company shall so advise the Holders as part of
the notice given pursuant to Section 5.1(a)(i), and the right of any Holder to
registration pursuant to Section 5.1 shall be conditioned upon such Holder's
participation
-5-
6
in such underwriting arrangements, and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent requested shall be
limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders, but subject to the
Company's reasonable approval. Notwithstanding any other provision of this
Section 5.1, if the managing underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all holders of Registrable
Securities, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by such Holders at the time of filing the
registration statement. No Registrable Securities excluded from the underwriting
by reason of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration, or such other shorter period of time as the underwriters
may require. If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include securities for its own
account (or for the account of other stockholders) in such registration if the
underwriter so agrees and if the number of Registrable Securities that would
otherwise have been included in such registration and underwriting will not
thereby be limited.
5.2 COMPANY REGISTRATION.
(a) Notice of Registration. If at any time or from time to
time the Company shall determine to register any of its equity securities,
either for its own account or for the account of a security holder or holders
(other than pursuant to Section 5.1 or Section 5.3 hereof), other than (A) a
registration relating solely to employee benefit plans, (B) a registration
relating solely to a Rule 145 transaction, or (C) a registration on any
registration form that does not permit secondary sales, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) use its best efforts to include in such
registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 5.2 (b) below, and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within twenty (20) days after receipt of such
written notice from the Company by any Holder.
-6-
7
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 5.2(a)(i). In such event the right of any Holder to
registration pursuant to Section 5.2 shall be conditioned upon such Holder's
participation in such underwriting, and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company. Notwithstanding any other provision of this Section 5.2, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration (i) in the case of
the Company's initial public offering, to zero, and (ii) in the case of any
other offering, to an amount no less than 25% of all shares to be included in
such offering; provided however, that any such limitation or "cutback" shall be
first applied to all shares proposed to be sold in such offering other than for
the account of the Company which are not Registrable Securities. The Company
shall so advise all Holders and other holders distributing their securities
through such underwriting, and the number of shares of Registrable Securities or
other securities that may be included in the registration and underwriting shall
be first allocated among all the Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holder at the time of filing the registration statement. To facilitate the
allocation of shares in accordance with the above provisions, the Company may
round the number of shares allocated to any Holder or holder to the nearest 100
shares.
If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. Any securities excluded or withdrawn from
such underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 180 days after the effective date
of the registration statement thereto, or such other shorter period of time as
the underwriters may require.
(c) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 5.2 prior to the effectiveness of such registration whether or not
any Holder has elected to include securities in such registration.
5.3 REGISTRATION ON FORM S-3.
(a) If any Holder or Holders request that the Company file
a registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate price to the public of which would equal or exceed one
million dollars ($1,000,000), and the Company is a registrant entitled to use
Form S-3 to register the Registrable Securities for such an offering, the
Company shall use its best efforts to cause such Registrable Securities to be
registered for the offering on such form and to cause such Registrable
Securities to be qualified in such jurisdictions as such Holder or Holders may
reasonably request; provided, however, that the Company shall not be required to
effect more than one registration pursuant to this Section 5.3 in any twelve
(12) month period. The Company shall inform
-7-
8
other Holders of the proposed registration and offer them the opportunity to
participate. In the event the registration is proposed to be part of a firm
commitment underwritten public offering, the substantive provisions of Section
5.1(b) shall be applicable to each such registration initiated under this
Section 5.3.
(b) Notwithstanding the foregoing, the Company shall not
be obligated to take any action pursuant to this Section 5.3:
(i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities Act;
(ii) if the Company, within ten (10) days of the
receipt of the request of the Initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within ninety (90) days of receipt of such request;
(iii) during the period starting with the date
sixty (60) days prior to the Company's good faith estimate of the date of filing
of, and ending on the date 180 days immediately following the effective date of,
any registration statement pertaining to securities of the Company, provided
that the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or
(iv) if the Company shall furnish to such Holder or
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board it would be seriously detrimental to the
Company or its stockholders for registration statements to be filed at the date
filing would be required, in which case the Company's obligation to use its best
efforts to file a registration statement shall be deferred for a period not to
exceed 120 days from the receipt of the request to file such registration by
such Holder or Holders, provided that the Company may not exercise this deferral
right more than once during any twelve (12) month period.
5.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with (i) two registrations pursuant to Section 5.1 and (ii) all
registrations pursuant to Section 5.2 shall be borne by the Company. Unless
otherwise stated, all expenses incurred in connection with registrations
pursuant to Section 5.3 of this Agreement and all other Selling Expenses
relating to securities registered on behalf of the Holders shall be borne by the
Holders pro rata on the basis of the number of shares so registered.
Notwithstanding the foregoing, the Company shall not be required to effect or to
pay any Registration Expenses of any registration begun pursuant to Sections 5.1
or 5.3, the request of which has been subsequently withdrawn by Holders of a
number of shares of Registrable Securities such that there are no Holders of
Registrable Securities intending to participate in the registration sufficient
to request such a registration, in which case such expenses shall be borne by
the Holders of securities (including Registrable Securities) requesting or
causing such withdrawal; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business or prospects of the Company from that known to the Holders
at the time of their request, then the Holders shall not be required to pay any
of such Registration Expenses and shall retain their rights pursuant to this
Section 5.4.
-8-
9
5.5 REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
twenty (120) days or until the distribution described in the registration
statement has been completed, whichever first occurs; and
(b) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as such Holders and
underwriters may reasonably request in order to facilitate the public offering
of such securities.
(c) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(d) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(e) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
5.6 INDEMNIFICATION.
(a) The Company will indemnify each Holder of Registrable
Securities included in a registration, qualification or compliance pursuant to
this Agreement, each of its officers and directors and partners, and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act, the
-9-
10
Securities Exchange Act, state securities law or any rule or regulation
promulgated under the such laws applicable to the Company in connection with any
such registration, qualification and compliance, and the Company will reimburse
each such Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred, as
such expenses are incurred, in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by any Holder, controlling person or underwriter and
stated to be specifically for use therein; provided, however, that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement, alleged untrue statement, omission or alleged
omission made in a preliminary prospectus, such indemnity agreement shall not
inure to the benefit of any underwriter, or any Holder, if there is no
underwriter, if a copy of the final prospectus filed with the Commission
pursuant to its Rule 424(b) was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act, and if such final prospectus cured the untrue statement,
alleged untrue statement, omission or alleged omission giving rise to the loss,
liability, claim or damage.
(b) Each Holder will, if Registrable Securities held by
such Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such registration statement, each person who controls the
Company or such underwriter within the meaning of Section 15 of the Securities
Act, and each other such Holder, each of its officers, directors and partners
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company, such Holders, such directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred, as such expenses are incurred, in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by an instrument duly executed by such Holder and stated to be
specifically for use therein. Notwithstanding the foregoing, the liability of
each Holder under this Section 5.6(b) shall be limited in an amount equal to the
net proceeds of the shares sold by such Holder, unless such liability arises out
of or is based on willful misconduct by such Holder. In no event will any Holder
be required to enter into any agreement or undertaking for the benefit of the
Company in connection with any registration, qualification or compliance under
this Section 5 providing for any indemnification or contribution obligations on
the part of such Holder greater than such Holder's obligations under this
Section 5.6 (b).
-10-
11
(c) Each party entitled to indemnification under this
Section 5.6 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action, and provided further that the Indemnifying Party shall not
assume the defense for matters as to which representation of both the
Indemnifying Party and the Indemnified Party by the same counsel would be
inappropriate due to actual or potential differing interests between them, but
shall instead in such event pay the fees and costs of separate counsel for the
Indemnified Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
5.7 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration, qualification or compliance shall
furnish to the Company such information regarding such Holder or Holders, the
Registrable Securities held by them and the distribution proposed by such Holder
or Holders as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
5.8 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Restricted Securities to the public without
registration, after such time as a public market exists for the Common Stock,
the Company agrees to use its best efforts to:
(a) Make and keep public information regarding the Company
available as those terms are understood and defined in Rule 144 under the
Securities Act, at all times from and after (90) days following the effective
date of the first registration under the Securities Act filed by the Company for
an offering of its securities to the general public;
(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Securities Exchange Act (at any time after it has become subject to such
reporting requirements); and
(c) So long as a Holder owns any Restricted Securities to
furnish to such Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public)
and of the Securities Act and the Securities Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company,
-11-
12
and such other reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without registration.
5.9 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register securities granted Investors under Sections 5.1, 5.2 and 5.3
may be assigned to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by the Investor provided that: (i) such
transfer may otherwise be effected in accordance with applicable securities
laws, (ii) such assignee or transferee acquires at least 575,000 shares of
Registrable Securities held by the assignor or transferor (as presently
constituted and subject to subsequent adjustments for recapitalizations, stock
splits, stock dividends and the like) (iii) written notice is promptly given to
the Company and (iv) such transferee agrees to be bound by the provisions of
this Agreement. Notwithstanding the foregoing, the rights to cause the Company
to register securities may be assigned to (A) any affiliated partnership or
constituent partner or retired partner of an Investor which is a partnership,
(B) any affiliate of any corporate Investor, provided that such affiliate
acquires at least 207,000 shares of Registrable Securities or (C) a family
member or trust for the benefit of an Investor who is an individual, provided
written notice thereof is promptly given to the Company and the transferee
agrees to be bound by the provisions of this Agreement.
5.10 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and
after the date of this Agreement, the Company shall not, without the prior
written consent of Holders holding more than fifty percent (50%) of the
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder to (i) require the Company to effect a registration,
qualification or compliance prior to the date set forth in Section 5.1 (a) (ii)
(B) or (ii) include any securities in any registration, qualification or
compliance filed under Section 5.1 hereof, unless, under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such securities will
not diminish the amount of Registrable Securities which are included in such
registration and includes the equivalent of Section 11 of this Agreement as a
term.
5.11 TERMINATION OF REGISTRATION RIGHTS. The rights granted
pursuant to Sections 5.1, 5.2 and 5.3 of this Agreement shall terminate at the
sooner of: (i) as to all Holders, five (5) years after the consummation of the
sale of securities pursuant to a registration statement filed by the Company
under the Securities Act, in connection with the firm commitment underwritten
offering of its securities to the general public; or (ii) as to any Holder, at
such time as such Holder can sell all of his Registrable Securities pursuant to
Rule 144 promulgated under the Securities Act in any ninety (90) day period.
6. FINANCIAL INFORMATION.
(a) The Company will provide the following reports to each
holder of at least 207,000 shares of Preferred Stock and/or Conversion Stock
(appropriately adjusted for recapitalizations, stock splits and the like after
the date hereof):
(i) As soon as practicable after the end of each
fiscal year, and in any event within 90 days thereafter, consolidated balance
sheets of the Company, as of the end of
-12-
13
such fiscal year, and consolidated statements of operations and of cash flows
and stockholders' equity of the Company, for such year, prepared in accordance
with generally accepted accounting principles, all in reasonable detail and
audited by independent public accountants of national standing selected by the
Company.
(ii) As soon as practicable after the end of the
first, second and third quarterly accounting periods in each fiscal year of the
Company, and in any event within 45 days thereafter, a consolidated balance
sheet of the Company as of the end of each such quarterly period, and
consolidated statements of operations and of cash flows of the Company for such
period and for the current fiscal year to date, prepared in accordance with
generally accepted accounting principles (other than for accompanying notes),
subject to changes resulting from year-end audit adjustments, in reasonable
detail.
(iii) At least thirty days prior to the beginning
of each fiscal year, a budget adopted by the Board for the fiscal year, and, as
soon as prepared, any other budgets or revised budgets prepared by the Company;
7. VISITATION AND INSPECTION.
(a) The Company will afford to each holder of Preferred
Stock and/or Conversion Stock reasonable access during normal business hours to
the Company's accounting books and records and minutes of proceedings of the
stockholders and the Board and committees of the Board, and all information
distributed to the Board, for a purpose reasonably related to such holder's
interests as a stockholder of the Company.
(b) The Company will afford to each holder of shares of
Preferred Stock and/or Conversion Stock the right, upon twenty (20) days advance
notice, to meet periodically with the Company's principal executive officer or
chief financial officer during normal business hours to discuss and make
recommendations regarding the conduct of the Company's business and affairs.
8. CONFIDENTIALITY. Not withstanding the foregoing, the Company is not
required to disclose trade secrets or confidential information pursuant to
Section 6 or Section 7.
9. RIGHT OF FIRST REFUSAL.
(a) The Company hereby grants to each holder of at least
575,000 shares of Preferred Stock and/or Conversion Stock (appropriately
adjusted for recapitalizations, stock splits and the like after the date hereof)
(each such holder referred to herein as a "QUALIFIED INVESTOR"), the right of
first refusal to purchase its Pro Rata Share of New Securities (as defined in
this Section 9) which the Company may, from time to time, propose to sell and
issue. A "PRO RATA SHARE," for purposes of this right of first refusal, is the
ratio that (i) the sum of the number of shares of Common Stock then held by each
Qualified Investor and the number of shares of Common Stock issuable upon
conversion of the Preferred Stock then held by such Qualified Investor bears to
(ii) the sum of the total number of shares of Common Stock then outstanding and
the number of shares of Common Stock issuable upon exercise or conversion of all
then outstanding securities exercisable for or convertible into, directly or
indirectly, Common Stock.
-13-
14
(b) Except as set forth below, "NEW SECURITIES" shall mean
any shares of capital stock of the Company, including Common Stock and any
series of preferred stock, whether now authorized or not, and rights, options or
warrants to purchase said shares of Common Stock or preferred stock, and
securities of any type whatsoever that are, or may become, convertible into or
exchangeable for said shares of Common Stock or preferred stock. Notwithstanding
the foregoing, "NEW SECURITIES" does not include (i) the Conversion Stock, (ii)
Common Stock offered to the public generally pursuant to a registration
statement under the Securities Act in connection with the Company's initial
public offering, (iii) securities issued pursuant to the acquisition of another
corporation by the Company by merger, purchase of all or substantially all of
the assets or other reorganization whereby the Company or its stockholders own
more than fifty percent (50%) of the voting power of the surviving or successor
corporation, (iv) shares of the Company's Common Stock or related options,
warrants or other rights to purchase such Common Stock issued to employees,
officers and directors of, and consultants to the Company, pursuant to
arrangements approved by the Board (the "EMPLOYEE SHARES"), (v) stock issued
pursuant to any rights, agreements or convertible securities, including without
limitation options and warrants, provided that the rights of first refusal
established by this Section 9 applied with respect to the initial sale or grant
by the Company of such rights, agreements or convertible securities, or (vi)
stock issued in connection with any stock split, stock dividend or
recapitalization by the Company.
(c) In the event the Company proposes to undertake an
issuance of New Securities, it shall give each Qualified Investor written notice
of its intention, describing the amount and type of New Securities, and the
price and terms upon which the Company proposes to issue the same. Each
Qualified Investor shall have ten (10) days from the date of receipt of any such
notice to agree to purchase up to its respective Pro Rata Share of such New
Securities for the price and upon the terms specified in the notice by giving
written notice to the Company and stating therein the quantity of New Securities
to be purchased. If any Qualified Investor fails to agree to purchase its full
Pro Rata Share within such ten (10) day period, the Company will give the
Qualified Investors who did so agree (the "ELECTING QUALIFIED INVESTORS") notice
of the number of New Securities which were not subscribed for. Such notice may
be by telephone if followed by written confirmation within two days. The
Electing Qualified Investors shall have ten (10) days from the date of such
second notice to agree to purchase their Pro Rata Share of all or any part of
the New Securities not purchased by such other Qualified Investors. For the
purpose of this second election under this Section 9(c), shares held by
Qualified Investors other than Electing Qualified Investors shall be excluded
from clause (ii) for the definition of "PRO RATA Share" contained in Section
9(a).
(d) In the event all of the New Securities are not elected
to be purchased by Qualified Investors within ten (10) days after the second
notice pursuant to Section 9(c) above, the Company shall have ninety (90) days
thereafter to sell the New Securities not elected to be purchased by Qualified
Investors at the price and upon the terms no more favorable to the purchasers of
such securities than specified in the Company's notice. In the event the Company
has not sold the New Securities within said ninety (90) day period, the Company
shall not thereafter issue or sell any New Securities without first offering
such securities in the manner provided above.
(e) The right of first refusal hereunder is not assignable
except by each of such Qualified Investors to any party who acquires at least
575,000 shares of the Preferred Stock and/or Conversion Stock (appropriately
adjusted for recapitalizations, stock splits and the like after the date
hereof).
-14-
15
10. TERMINATION OF COVENANTS. The covenants set forth in Sections 6, 7,
9 and 12 shall terminate and be of no further force or effect upon the
consummation of a firm commitment underwritten public offering or at such time
as the Company is required to file reports pursuant to Section 13 or 15(d) of
the Securities Exchange Act, whichever shall occur first.
11. STANDOFF AGREEMENT. In connection with the initial public offering
of the Company's securities, each Investor and Holder agrees, upon request of
the Company or the underwriters managing any underwritten offering of the
Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any securities of the
Company (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not to exceed one hundred eighty (180) days)) from the
effective date of such registration as may be requested by the underwriters,
provided that all officers and directors of the Company who own stock of or hold
options to purchase stock of the Company also agree to such restrictions. The
Investors and Holders agree that the Company may instruct its transfer agent to
place stop-transfer notations in its records to enforce the provisions of this
Section 11.
12. ADDITIONAL COVENANTS OF THE COMPANY.
12.1 RESERVED EMPLOYEE SHARES. The Employee Shares shall be
issued from time to time under a stock option and/or restricted stock plan (the
"STOCK PLAN") approved by the Board or such other arrangements, contracts or
plans as are reasonably recommended by management and approved by the Board.
Unless otherwise agreed to by a majority of the Directors who are not then
employees of the Company, Employee Shares subject to options issued under the
Stock Plan or other approved plans will vest, until the option holder's
employment with or service to the Company terminates, over a four year period on
terms no more favorable than 25% at the end of the first year and on an equal
monthly basis thereafter. Unless otherwise agreed to by a majority of the
Directors who are not then employees of the Company, all officers, directors and
employees of or consultants to, the Company acquiring Employee Shares other than
pursuant to an option will execute a stock restriction agreement with the
Company under which the Company will retain the right to repurchase the unvested
shares, over a four-year vesting period which shall lapse on terms no more
favorable than 25% at the end of the first year and on an equal monthly basis
thereafter, for the original purchase price in the event the holder's employment
with or service to the Company terminates. Pursuant to the option agreement or
restricted stock agreement, as the case may be, the Company shall retain a right
of first refusal with respect to all such Employee Shares subject to such
agreement (which right shall terminate and be of no further force or effect upon
the consummation of a firm commitment underwritten public offering or at such
time as the Company is required to file reports pursuant to Section 13 or 15(d)
of the Exchange Act, whichever shall first occur), and the holder shall agree to
a market standoff provision substantially identical to the market standoff
provision contained in Section 11 hereof.
13. DETERMINATION OF SHARE AMOUNTS AND PERCENTAGES. For the purposes of
determining the minimum holdings set forth in this Agreement, including without
limitation the minimum holdings pursuant to Sections 5.9, 6(a), 9(a) and 9(e),
the following rules shall govern:
(a) All shares held by entities affiliated with the
holder, to include, without limitation, any entity who holds more than 15% of
the outstanding voting stock of the
-15-
16
holder, shall be deemed held by such holder, and any holder which is a
partnership shall be deemed to hold any shares of Preferred Stock and/or
Conversion Stock originally purchased by such holder and subsequently
distributed to partners of such holder which have not been resold by such
partners.
(b) When shares of Preferred Stock are counted either
separately or together with shares of Conversion Stock or shares of Common
Stock, shares of Preferred Stock shall be counted on an as-converted into Common
Stock basis, and the term "CONVERSION STOCK" shall mean only the shares of
Common Stock which have been issued pursuant to conversion of Preferred Stock.
(c) Unless otherwise specified, shares of Series A Stock,
Series B Stock, Series C Stock, Series D Stock, Series E Stock or any other
series of preferred stock issuable upon exercise of any warrants shall not be
counted as "Preferred Stock."
14. AMENDMENT.
(a) Any provision of Section 5 of this Agreement may be
amended or the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the Registrable
Securities then outstanding or deemed to be outstanding. Any amendment or waiver
effected in accordance with this Section 14(a) shall be binding upon each
Investor and each Holder of Registrable Securities at the time outstanding or
deemed to be outstanding (including securities into which such securities are
convertible), each future holder of all such securities, and the Company.
(b) Any provision of Section 9 of this Agreement may be
amended or the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holder of 66 2/3% of Preferred and
Conversion Stock then outstanding or deemed to be outstanding. Any amendment or
waiver effected in accordance with this Section 14(b) shall be binding upon each
Investor at the time outstanding or deemed to be outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
(c) Except as expressly provided herein, no other Section
of this Agreement may be amended, waived, discharged or terminated other than by
a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought; provided, however, that
holders of a majority of the Preferred Stock and Conversion Stock may, with the
Company's prior written consent, waive, modify or amend on behalf of all holders
any provisions hereof so long as the effect thereof will be that all such
persons will be treated in the same manner.
15. ADDITIONAL PARTIES. The parties hereto agree that additional
purchasers of the Series E Stock may, with the consent only of the Company, be
added as parties to this Agreement with respect to any or all securities of the
Company held by them, and shall thereupon be deemed for all purposes "Investors"
hereunder. Any such additional purchaser of Series E Stock shall execute a
counter-part of this Agreement, and upon execution by such additional party and
by the Company, shall be considered an Investor for purposes of this Agreement.
-16-
17
16. GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of California with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
17. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
18. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery to the party to be notified or three (3) days after
deposit with the United States mail, by registered or certified mail, postage
prepaid, addressed (a) if to an Investor, at such Investor's address as set
forth on the Schedule of Investors attached hereto, or at such other address as
such Investor shall have furnished to the Company in writing in accordance with
this Section 17, (b) if to any other holder of Preferred Stock or Conversion
Stock, at such address as such holder shall have furnished the Company in
writing in accordance with this Section 17, or, until any such holder so
furnishes an address to the Company, then to and at the address of the last
holder thereof who has so furnished an address to the Company, or (c) if to the
company, at its principal office.
19. ATTORNEYS' FEES. In the event that any suit or action is instituted
to enforce any provision in this Agreement, the prevailing party shall be
entitled to all costs and expenses of maintaining such suit or action, including
reasonable attorney's fees.
20. AMENDMENT OF ORIGINAL AGREEMENT; BINDING EFFECT. Effective upon the
first closing of the sale of Series E Stock pursuant to the Series E Agreement
and subject to the terms of this Section 20, the Third Amended and Restated
Agreement shall be terminated and replaced in its entirety by this Agreement,
The rights of the holders of the Series A Stock, the Series B Stock , the Series
C Stock and the Series D Stock pursuant to Section 9 of the Third Amended and
Restated Agreement are hereby waived with respect to the sale of the Series E
Stock pursuant to the Series E Agreement. In accordance with Section 14 of the
Third Amended and Restated Agreement, this Agreement shall become binding upon
its execution and delivery by the Company, the Series E Investors and the
holders of more than 66 2/3% of the Series A Stock, the Series B Stock, the
Series C Stock and the Series D Stock voting together as a class.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[Remainder of Page Intentionally Blank]
-17-
18
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By: /s/ X. Xxxxxxxx
-------------------------------------
Title: Chief Executive Officer
----------------------------------
"INVESTORS"
By:
-------------------------------------
Title:
----------------------------------
19
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Managing Director
----------------------------------
ABN AMRO Capital (USA), Inc.
ABN AMRO Chicago Corproation
I Eagle Trust
20
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: VP, Corporate Development
----------------------------------
BCE Mobile Communications, Inc.
21
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
XXXX ATLANTIC INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: President and Treasurer
----------------------------------
22
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
CITICORP
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
----------------------------------
23
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: President
----------------------------------
DDI Corporation
24
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Partner
----------------------------------
Greylock Equity Limited Partnership
25
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By: /s/ X. Xxxxxxx
-------------------------------------
Title: Chief Executive Officer
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Director
----------------------------------
Hikari Tsushin, Inc.
26
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: General Manager
Information Technology Business Dept.
--------------------------------------
Itochu Corporation
27
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: /s/ X. Xxxxxx
-------------------------------------
Title: President
----------------------------------
Itochu Techno-Science Corporation
28
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Title: Partner
----------------------------------
JK&B Capital, L.P.
JK&B Capital II, L.P.
29
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Principal
----------------------------------
KLM Capital Management, Inc.
30
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------
Title: Senior Managing Director
----------------------------------
Kyocera Corporation
31
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: General Partner
----------------------------------
Matrix Partners IV, L.P.
Matrix IV Entrepreneurs Fund, L.P.
32
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: G.P.
----------------------------------
News Capital Partnership I
33
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
PARIBAS NORTH AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Title: Financial Controller
----------------------------------
34
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Principal
----------------------------------
Sema Group
35
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Executive VP and CFO
----------------------------------
36
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
Siienna Limited Partnership II
By: Signature
-------------------------------------
Title: Principal and GP
----------------------------------
37
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: /s/ Xxxxx Xxxxx
-------------------------------------
Title: General Manager (Illegible)
----------------------------------
38
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Investment Director
----------------------------------
Societe de Financements et de
Participations dans la
Communication (Part' Com), S.A.
39
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
C.V. SOFINNOVA VENTURES PARTNERS III
By: /s/ Xxxxx Xxxx
-------------------------------------
Title: General Partner
----------------------------------
Sofinnova Management L.P.
40
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: /s/ Xxxx Xxxxxx
-------------------------------------
Title: Xxxx Xxxxxx
----------------------------------
41
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: /s/ X. Xxx Xxxxxxx
-------------------------------------
Title: President
----------------------------------
Xxx Xxxxxxx Capital Management
42
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
WPG Enterprise Fund II, L.L.C.
By WPG Venture Partners II, L.P.,
Fund Investment Advisory Member
By: /s/ Xxxxx Xxxx
-------------------------------------
Title: General Partner
----------------------------------
Xxxxx, Xxxx & Xxxxx Venture
Associates III, L.L.C.
By WPG Venture Partners II, L.P.,
Fund Investment Advisory Member
By: /s/ Xxxxx Xxxx
-------------------------------------
Title: General Partner
----------------------------------
43
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title:
----------------------------------
44
The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
Unwired Planet, Inc.
a Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
"INVESTORS"
By: Signature
-------------------------------------
Title: Officer - Zay Cel Ltd.
----------------------------------
45
EXHIBIT A
SCHEDULE OF INVESTORS
(TO INVESTOR RIGHTS AGREEMENT)
46
SERIES A INVESTORS SERIES B INVESTORS (CONTINUED)
Matrix Partners IV, L.P.
Matrix Partners IV, L.P. Bay Colony Corporate Center
One International Place 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxx 0000 Xxxxxxx, XX 00000
Xxxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxxxx,
Attn: Xxxxxx X. Xxxxxxxx, General Partner
General Partner
Cirrus Logic, Inc.
Matrix IV Entrepreneurs Fund, L.P. 0000 Xxxx Xxxxxx
Xxx Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx: Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, C.V. Sofinnova Venture Partners III
General Partner c/o Sofinnova, Inc.
One Market Plaza
Greylock Equity Limited Xxxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xx Xxxxxxxx Equity G.P. Limited Partnership Xxx Xxxxxxxxx, XX 00000
One Federal Street Attn: Xxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx Matrix IV Entrepreneurs Fund, L.P.
Bay Colony Corporate Center
C.V. Sofinnova Venture Partners III. 0000 Xxxxxx Xxxxxx, Xxxxx 0000
c/o Sofinnova, Inc. Xxxxxxx, XX 00000
One Market Plaza Attn: Xxxxxx X. Xxxxxxxx,
Xxxxxxx Plaza, Suite 2630 General Partner
Xxx Xxxxxxxxx, XX 00000
WPG Enterprise Fund II, L.P.
Xxxxx Xxxxxxxx c/x Xxxxx, Xxxx & Xxxxx
c/o Unwired Planet, Inc. 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
000 Xxxxxx Xxxxxxx Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Xxxx, XX 00000 Attn: Xxxx Xxxxx
Xxxxx, Xxxx & Xxxxx Venture Associates III,
SERIES B INVESTORS L.P.
c/x Xxxxx, Xxxx & Xxxxx
Mitsubishi Electric Corporation 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxxxxxx, XX 00000
Xxxxxxxxx, XX 00000 Attn: Xxxx Xxxxx
Attn: Xxxxx Xx
Greylock Equity Limited Partnership
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
-20-
47
SERIES B INVESTORS (CONTINUED) SERIES C INVESTORS (CONTINUED)
AT&T Wireless Services, Inc. C.V. Sofinnova Venture Partners III
00000 X.X. Xxxxxx Xxxxx c/o Sofinnova, Inc.
Xxxxxxxx, XX 00000 One Market Plaza
Attn: Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxx as Trustee, or the Successor Attn: Xxxxx Xxxx
Trustee or Trustees, U/A/D June 29, 1995, as
amended, creating the Xxxxx Xxxx Revocable Cirrus Logic, Inc.
Trust 0000 Xxxx Xxxxxx
c/o Venture Law Group Xxxxxxx, XX 00000
0000 Xxxx Xxxx Xxxx Attn: Xxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
AT&T Wireless Services, Inc.
Xxxx X. Xxxxxxxx 00000 X.X. Xxxxxx Xxxxx
c/o Venture Law Group Xxxxxxxx, XX 00000
0000 Xxxx Xxxx Xxxx Attn: Xxxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
WPG Enterprise Fund II, L.P.
VLG Investments 1996 x/x Xxxxx, Xxxx & Xxxxx
x/x Xxxxxxx Law Group 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxx Xxxx Xxxx Xxx Xxxxxxxxx, XX 00000
Xxxxx Xxxx, XX 00000 Attn: Xxxx Xxxxx
Attn: Xxxxx Xxxxxxx
Xxxxx, Xxxx & Xxxxx Venture Associates III,
SERIES C INVESTORS L.P.
c/o Weiss, Xxxx & Xxxxx
Greylock Equity Limited Partnership 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx Xxxxxx Xxx Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000 Attn: Xxxx Xxxxx
Attn: Xxxxx Xxxxx
Xxxxxxxx Xxxxxxxxxxxx
Matrix Partners IV, L.P. 0000 Xxxx Xxxxxxxxx
Xxx Xxxxxx Xxxxxxxxx Xxxxxx Xxx Xxxxx, XX 00000
0000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx: Xxxxxxx X. Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Mitsubishi Electric Corporation
0000 Xxxx Xxxxxx Xxxxxx
Matrix IV Entrepreneurs Fund, L.P. Xxxxxxxxx, XX 00000
Bay Colony Corporate Center Attn: Xxxxx Xx
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
-21-
48
SERIES C INVESTORS (CONTINUED)
Alexandre Xxxxxxx Xxxx Xxxx Xxxxx
Societe de Financements et de Participations Smart Fund (Gemplus)
dans la Communication (Part' Com), S.A. c/o Candel Partners
Tour Maine Xxxxxxxxxxxx 00 xxx Xxxxxxxx
00 Xxxxxx Xx Xxxxx 00000 Xxxx-Xxx-Xxxxxxxxxx
Xxxxx, Xxxxxx 75755 Cedex France
Xxxxx Xxx Xxxxxxx Xxxxx
KLM Capital Management, Inc. Sema Group
0000 Xxxxxxx Xxxxxxx Xxxxxxxxx 00, Xxx Xxxxxx
Xxxxx 000 Xxxxxx 92126
Xxxxx Xxxxx, XX 00000
Xxxxxx Xxx
Xxx Xxxxxxx Capital Management
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
-22-
49
SERIES D INVESTORS
Xxxxxxxx Xxxxxxxxxxxx (Correspondence Address below)
0000 Xxxx Xxxxxxxxx JK& B Capital, L.P.
Xxx Xxxxx, XX 00000 JK& B Capital II, L.P.
Attn: Xxxxxxx X. Xxxxxxxx 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Kyocera Corporation Attn: Xxxxx Xxxxxxxx, Partner
Corporate Development Group 000 000 0000
5-22 Kitainoue-cho. Higashino
Yamashina-ku, Kyoto 000 Xxxxx Zayucel Ltd.
Attn: Xx. Xxxxxxxx Xxxx P.O. Box 71, Road Town
Tortola, British Virgin Islands
Mr. Kazushi Oi (Entity Registered Address above)
DDI Corporation (Correspondence Address below)
0, Xxxxxxxxxx, Xxxxxxx-xx Xxxxxxx Xxx
Xxxxx 000 Xxxxx Officer
00 Xxxxxx Xxxx, Xxxx 00-00
Nexus Capital Partners I, L.P. Xxxxxxxxx 000000
By Nexus Capital Partners Singapore
0 Xxxxxx Xxxxxx Phone: 00-000-0000
Xxxxxxx Xxxxx, Xxxxx 0000 Fax: 00-000-0000
Xxx Xxxxxxxxx, XX 00000
Attn: Will Wethersby Greylock Equity Limited Partnership
By Greylock Equity G.P. Limited Partnership
BCE Mobile Communications, Inc. Xxx Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxxxx, XX 00000
Xxxxxxxxxxx, Xxxxxxx Xxxxxx
X0X0X0 WPG Enterprise Fund II, L.P.
Attn: Mr. Xxx Maksimowksi c/o Weiss, Xxxx & Xxxxx
Vice President Corporate Development 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
JK& B Capital, L.P. Attn: Xxxx Xxxxx/Xxxxx Xxxx
JK&B Capital II, L.P.
Corporate Centre Xxxxx, Xxxx & Xxxxx Venture Associates III,
W. Bay Road L.P.
Leeward 1 c/x Xxxxx, Xxxx & Xxxxx
P.O. Box 31106 SMB 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Great Cayman, Cayman Islands Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Attn: Xxxx Xxxxx/Xxxxx Xxxx
(Entity Registered Address above)
Matrix Partners IV, L.P.
Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx,
-23-
50
Matrix IV Entrepreneurs Fund, X.X. Xxxxxx Ltd.
Bay Colony Corporate Center Xxxxx Xxx Investment Holdings
0000 Xxxxxx Xxxxxx, Xxxxx 0000 No. 00, Xxxxx 000
Xxxxxxx, XX 00000 Pateh Section 2
Attn: Xxxxxx X. Xxxxxxxx Taipei, Taiwan 106
Attn: Xxxxx Xxxxx
Xx. Xxxxx Xxxxxx
3-30-3 Denen-chofu ABN AMRO Capital (USA), Inc.
Xxxx-xx, Xxxxx 000-0000 Xxxxx c/o Xxxxxx X. Xxxxxxx
000 Xx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
ABN AMRO Chicago Corporation I Eagle Trust
c/o Xxxxxx X. Xxxxxxx c/o Xxxxxx X. Xxxxxxx
208 La Salle Street, 10th Floor 000 Xx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
C.V. Sofinnova Venture Partners III Xxxxxx Corporation, N.V.
c/o Sofinnova, Inc. x/x Xxxx Xxxxxx
Xxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxx 0000 Compass Capital Advisors, Ltd.
Xxx Xxxxxxxxx, XX 00000 Xxxx Xxxxx, 00 Xxx Xxxx Xxxxxx
Attention: Xxxxx Xxxx London W1X 3AD
Asia Tech Ventures Limited Cam Amenedo
0000 Xxxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxxx, XX 00000 Citicorp Center
Attn: Xxxxx Xxx 000 X. 00xx Xxxxxx, 0xx Xxxxx
Executive Director Xxx Xxxx, XX 00000
Sienna Limited Partnership II Paribas North America
c/o Xxxxx X. Xxxxx c/o Xxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxx Xxxxxxxxx Xxxxx
Xxxxx 000 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxx Reuters Holdings PLC
00000 Xxxxxxxx Xxxx 00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, Xxxxxxx XX0X0XX
Attn: Xxxx Xxxxxx
-24-
51
SERIES E INVESTORS
Siemens Information and Communication Itochu Techno-Science Corporation
Networks, Inc. 11-5, Fujimi 1-Chome,
000 Xxxxxx Xxxxx Xxxxxxx Xxxxxxx-Xx, Xxxxx 000 XXXXX
Xxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx
with a copy to:
Siemens Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. XxXxxxx
Hikari Tsushin, Inc. Itochu Corporation
22F Ohtemachi Nomura Building 5-1, Kita-Aoyama 2-chome,
0-0-0 Xxxxxxxxx, Xxxxxxx-xx, Xxxxx 000-0000 Xxxxxx-xx, Xxxxx, 000-0000, XXXXX
Japan
Xxxx Atlantic Investments, Inc. Alexandre Xxxxxxx Xxxx
0000 Xxxxxxxxxx Xx., 0xx Xxxxx Societe de Financements et de Participations
Xxxxxxxxxx, XX 00000 dans la Communication (Part' Com), S.A.
Attn: Xxxxx Xxxxxxx Tour Maine Montparnasse
00 Xxxxxx Xx Xxxxx
with a copy to: Xxxxx, Xxxxxx 00000
Xxxx Atlantic Mobile
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxx
Xxxx Xxxxxx
Credit Suisse First Boston
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
-25-
