EXHIBIT 10.46
CORSAIR COMMUNICATIONS, INC.
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
______________________
March 7, 1997
TABLE OF CONTENTS
Page
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1. Purchase and Sale of Stock............................................. 1
1.1 Sale and Issuance of Series D Preferred Stock..................... 1
1.2 Closing........................................................... 1
2. Representations and Warranties of the Company.......................... 1
2.1 Organization, Good Standing and Qualification..................... 1
2.2 Capitalization and Voting Rights.................................. 2
2.3 Subsidiaries...................................................... 2
2.4 Authorization..................................................... 3
2.5 Valid Issuance of Preferred and Common Stock...................... 3
2.6 Governmental Consents............................................. 3
2.7 Litigation........................................................ 3
2.8 Compliance with Other Instruments................................. 4
2.9 Agreements; Action................................................ 4
2.10 Related-Party Transactions........................................ 5
2.11 Permits........................................................... 5
2.12 Disclosure........................................................ 5
2.13 Minute Books...................................................... 5
2.14 Labor Agreements and Actions...................................... 5
2.15 Registration Rights............................................... 6
2.16 Returns and Complaints............................................ 6
2.17 Offering.......................................................... 6
2.18 Title to Property and Assets; Leases.............................. 6
2.19 Financial Statements.............................................. 6
2.20 Changes........................................................... 7
2.21 Patents and Trademarks............................................ 8
2.22 Manufacturing and Marketing Rights................................ 9
2.23 Proprietary Information and Inventions Agreements................. 9
2.24 Tax Returns, Payments, and Elections.............................. 9
2.25 Insurance......................................................... 10
2.26 Environmental and Safety Laws..................................... 10
2.27 Section 83(b) Elections........................................... 10
3. Representations and Warranties of the Investor......................... 10
3.1 Authorization..................................................... 10
3.2 Purchase Entirely for Own Account................................. 10
3.3 Disclosure of Information......................................... 10
3.4 Investment Experience............................................. 11
3.5 Accredited Investor............................................... 11
3.6 Restricted Securities............................................. 11
3.7 Further Limitations on Disposition................................ 11
3.8 Legends........................................................... 12
(i)
4. California Commissioner of Corporations................................ 12
4.1 Corporate Securities Law.......................................... 12
5. Conditions of Investor's Obligations at Closing........................ 12
5.1 Representations and Warranties.................................... 12
5.2 Performance....................................................... 13
5.3 Compliance Certificate............................................ 13
5.4 Qualifications.................................................... 13
5.5 Proceedings and Documents......................................... 13
5.6 Opinion of Company Counsel........................................ 13
5.7 Investors' Rights Agreement....................................... 13
5.8 Stock Certificates................................................ 13
6. Conditions of the Company's Obligations at Closing..................... 13
6.1 Representations and Warranties.................................... 13
6.2 Payment of Purchase Price......................................... 14
6.3 Qualifications.................................................... 14
7. Miscellaneous.......................................................... 14
7.1 Survival of Warranties............................................ 14
7.2 Successors and Assigns............................................ 14
7.3 Governing Law..................................................... 14
7.4 Counterparts...................................................... 14
7.5 Titles and Subtitles.............................................. 14
7.6 Notices........................................................... 14
7.7 Finder's Fee...................................................... 15
7.8 Expenses.......................................................... 15
7.9 Amendments and Waivers............................................ 15
7.10 Severability...................................................... 15
7.11 Aggregation of Stock.............................................. 15
7.12 Entire Agreement.................................................. 15
SCHEDULE A - Schedule of Investors
EXHIBIT A - Certificate of Incorporation
EXHIBIT B - Amendment No. 1 to the Amended and Restated Investors'
Rights Agreement dated October 30, 1996
SCHEDULE OF EXCEPTIONS
(ii)
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
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THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is made
as of the March 7, 1997, by and between Corsair Communications, Inc., a Delaware
corporation (the "Company"), and the investors listed on Schedule A hereto, each
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of which is herein referred to as an "Investor."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
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1.1 Sale and Issuance of Series D Preferred Stock.
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(a) The Company shall adopt and file with the Secretary of State
of Delaware on or before the Closing (as defined below) the Amended and Restated
Certificate of Incorporation in the form attached hereto as Exhibit A.
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(b) Subject to the terms and conditions of this Agreement, each
Investor agrees, severally, to purchase at the Closing and the Company agrees to
sell and issue to each Investor at the Closing, that number of shares of the
Company's Series D Preferred Stock set forth opposite each Investor's name on
Schedule A hereto for the purchase price set forth thereon. Such purchase price
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shall be payable by Investor by delivery to Company by Investor of a check in
the amount of the purchase price set forth opposite such Investor's name on
Schedule A payable to the Company's order or by wire transfer of funds in such
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amount to the Company's designated bank account.
1.2 Closing. The purchase and sale of the Series D Preferred Stock
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shall take place at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx, 000 Xxxx "X"
Xxxxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx at 11:00 A.M., on March 7, 1997, or at
such other time and place as the Company and Investors acquiring in the
aggregate more than half the shares of Series D Preferred Stock sold pursuant
hereto mutually agree upon orally or in writing (which time and place are
designated as the "Closing"). At the Closing the Company shall deliver to each
Investor a certificate representing the Series D Preferred Stock which such
Investor is purchasing against delivery to the Company by such Investor of the
purchase price in the form as set forth above in Section 1.1(b).
2. Representations and Warranties of the Company. The Company hereby
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represents and warrants to each Investor that, except as set forth on a Schedule
of Exceptions attached hereto, which exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its
business as now conducted. The Company is duly qualified to transact business
and is in good standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on its business or properties.
2.2 Capitalization and Voting Rights. The authorized capital of the
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Company consists, or will consist prior to the Closing, of:
(i) Preferred Stock. 14,548,963 shares of Preferred Stock (the
"Preferred Stock"), of which 8,120,000 shares have been designated Series A
Preferred Stock all of which are issued and outstanding, 2,228,963 shares of
which have been designated Series B Preferred Stock of which 1,992,104 shares
are issued and outstanding, 3,800,000 shares of which have been designated
Series C Preferred Stock of which 3,637,272 shares are issued and outstanding,
and 400,000 shares of which have been designated Series D Preferred Stock up to
all of which will be sold pursuant to this Agreement. The rights, privileges and
preferences of the Series D Preferred Stock will be as stated in the Company's
Amended and Restated Certificate of Incorporation attached hereto as Exhibit A.
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(ii) Common Stock. 20,000,000 shares of common stock ("Common
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Stock"), 1,642,176 of which are currently issued and outstanding.
(iii) Except for (A) the conversion privileges of the
Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock and the Series D Preferred Stock to be issued under this Agreement, (B)
outstanding warrants to purchase 236,859 shares of Series B Preferred Stock, (C)
the rights provided in Section 2.4 of the Amended and Restated Investors' Rights
Agreement dated October 30, 1996, as amended pursuant to Amendment No. 1 thereto
of even date herewith by and among the Company and certain investors (the
"Investors' Rights Agreement"), and (C) the rights provided in the Directed
Share Agreement dated October 30, 1996 by and among the Company and certain
investors (the "Directed Share Agreement"), there are not outstanding any
options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from the Company of any shares of its
capital stock; provided that the Company has reserved 3,500,000 shares for
issuance to employees, consultants or directors of the Company pursuant to
equity incentive agreements approved by the Board of Directors. The Company is
not a party or subject to any agreement or understanding, and, to the Company's
knowledge, there is no agreement or understanding between any persons and/or
entities, which affects or relates to the voting or giving of written consents
with respect to any security or by a director of the Company.
2.3 Subsidiaries. The Company does not presently own or control,
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directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture,
partnership, or similar arrangement.
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2.4 Authorization. All corporate action on the part of the Company,
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its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, Amendment No. 1 to the Investors'
Rights Agreement dated October 30, 1996 and any other agreement to which the
Company is a party, the execution and delivery of which is contemplated hereby
(the "Ancillary Agreements"), the performance of all obligations of the Company
hereunder and thereunder and the authorization, issuance (or reservation for
issuance) and delivery of the Series D Preferred Stock being sold hereunder and
the Common Stock issuable upon conversion of the Series D Preferred Stock has
been taken or will be taken prior to the Closing, and this Agreement, Amendment
No. 1 to the Investors' Rights Agreement dated October 30, 1996 and any
Ancillary Agreements constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Investors' Rights
Agreement may be limited by applicable federal or state securities laws.
2.5 Valid Issuance of Preferred and Common Stock. The Series D
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Preferred Stock which is being purchased by the Investors hereunder, when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable and, based in part upon the representations of the Investors in
this Agreement, will be issued in compliance with all applicable federal and
state securities laws. The Common Stock issuable upon conversion of the Series
D Preferred Stock purchased under this Agreement has been duly and validly
reserved for issuance and, upon issuance in accordance with the terms of the
Amended and Restated Certificate of Incorporation, shall be duly and validly
issued, fully paid and nonassessable, and issued in compliance with all
applicable securities laws, as presently in effect, of the United States and
each of the states whose securities laws govern the issuance of any of the
Series D Preferred Stock hereunder.
2.6 Governmental Consents. No consent, approval, order or
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authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement, except for the filing pursuant to
Section 25102(f) of the California Corporate Securities Law of 1968, as amended,
and the rules thereunder, which filing will be effected within 15 days of the
sale of the Series D Preferred Stock hereunder.
2.7 Litigation. There is no action, suit, proceeding or
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investigation pending or currently threatened against the Company which
questions the validity of this Agreement, Amendment No. 1 to the Investors'
Rights Agreement dated October 30, 1996 or any Ancillary Agreements, or the
right of the Company to enter into any of them, or to consummate the
transactions contemplated hereby or thereby, or which might result, either
individually or in the aggregate, in any material adverse changes in the assets,
condition, affairs or prospects of the Company, financially or otherwise, or any
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change in the current equity ownership of the Company, nor is the Company aware
that there is any basis for the foregoing. The Company is not a party or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company currently pending or which the
Company intends to initiate.
2.8 Compliance with Other Instruments. The Company is not in
---------------------------------
violation or default of any provisions of its Amended and Restated Certificate
of Incorporation or Bylaws or of any instrument, judgment, order, writ, decree
or contract to which it is a party or by which it is bound or, to its knowledge,
of any provision of federal or state statute, rule or regulation applicable to
the Company. The execution, delivery and performance of this Agreement,
Amendment No. 1 to the Investors' Rights Agreement dated October 30, 1996 or any
Ancillary Agreements and the consummation of the transactions contemplated
hereby and thereby will not result in any such violation or be in conflict with
or constitute, with or without the passage of time and giving of notice, either
a default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company or the suspension, revocation,
impairment, forfeiture, or nonrenewal of any material permit, license,
authorization, or approval applicable to the Company, its business or operations
or any of its assets or properties.
2.9 Agreements; Action.
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(a) Except for agreements explicitly contemplated hereby and by
Amendment No. 1 to the Investors' Rights Agreement dated October 30, 1996 and
any Ancillary Agreements, there are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates,
or any affiliate thereof.
(b) The Company is not a party to any contract, agreement,
lease, commitment or proposed transaction, written or oral, absolute or
contingent, other than (i) contracts for the purchase of supplies and services
that were entered into in the ordinary course of business and that do not
involve more than $100,000, and do not extend for more than one (1) year beyond
the date hereof, (ii) sales contracts entered into in the ordinary course of
business, and (iii) contracts terminable at will by the Company on no more than
thirty (30) days notice without cost or liability to the Company and that do not
involve any employment or consulting arrangement and are not material to the
conduct of the Company's business. For the purpose of this paragraph, employment
and consulting contracts and contracts with labor unions, and license agreements
and any other agreements relating to the acquisition or disposition of the
Company's technology, shall not be considered to be contracts entered into in
the ordinary course of business.
(c) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) incurred any indebtedness for money borrowed or any
other liabilities individually in excess of $100,000 or, in the case of
indebtedness and/or liabilities
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individually less than $100,000, in excess of $300,000 in the aggregate, (iii)
made any loans or advances to any person, other than ordinary advances for
travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its
assets or rights, other than the sale of its inventory in the ordinary course of
business.
(d) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated therewith) shall be
aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.
2.10 Related-Party Transactions. No employee, officer, or director of
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the Company or member of his or her immediate family is indebted to the Company,
nor is the Company indebted (or committed to make loans or extend or guarantee
credit) to any of them. To the best of the Company's knowledge, none of such
persons has any direct or indirect ownership interest in any firm or corporation
with which the Company is affiliated or with which the Company has a business
relationship, or any firm or corporation that competes with the Company, except
that employees, officers, or directors of the Company and members of their
immediate families may own stock in publicly traded companies that may compete
with the Company. No member of the immediate family of any officer or director
of the Company is directly or indirectly interested in any material contract
with the Company.
2.11 Permits. The Company has all franchises, permits, licenses, and
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any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of the Company and
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. The Company is not
in default in any material respect under any of such franchises, permits,
licenses, or other similar authority.
2.12 Disclosure. The Company has fully provided each Investor with
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all the information which such Investor has requested for deciding whether to
purchase the Series D Preferred Stock and all information which the Company
believes is reasonably necessary to enable such Investor to make such decision.
Neither this Agreement, Amendment No. 1 to the Investors' Rights Agreement dated
October 30, 1996 and any Ancillary Agreements, nor any other statements,
certificates or documents made or delivered in connection herewith or therewith,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements herein or therein not misleading.
2.13 Minute Books. The minute books of the Company provided to the
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Investors contain a complete summary of all meetings of directors and
stockholders since the time of incorporation and reflect all transactions
referred to in such minutes accurately in all material respects.
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2.14 Labor Agreements and Actions. The Company is not bound by or
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subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, prospects or business of the Company (as such business is
presently conducted and as it is proposed to be conducted), nor is the Company
aware of any labor organization activity involving its employees. The Company
is not aware that any officer or key employee, or that any group of key
employees, intends to terminate their employment with the Company, nor does the
Company have a present intention to terminate the employment of any of the
foregoing. Subject to general principles related to wrongful termination of
employees, the employment of each officer and employee of the Company is
terminable at the will of the Company.
2.15 Registration Rights. Except as provided in the Investors' Rights
-------------------
Agreement, the Company is not obligated to register under the Securities Act of
1933 ("Securities Act") any of its presently outstanding securities or any of
its securities that may subsequently be issued.
2.16 Returns and Complaints. The Company has received no customer
----------------------
complaints concerning alleged defects in the design of its products that, if
true, would materially adversely affect the operations, financial condition or
prospects of the Company.
2.17 Offering. Subject in part to the truth and accuracy of each
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Investor's representations set forth in this Agreement, the offer, sale and
issuance of the Series D Preferred Stock as contemplated by this Agreement is
exempt from the registration requirements of the Securities Act, and neither the
Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemption.
2.18 Title to Property and Assets; Leases. Except (a) as reflected in
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the Financial Statements (defined in Section 2.19), (b) for liens for current
taxes not yet delinquent, (c) for liens imposed by law and incurred in the
ordinary course of business for obligations not past due to carriers,
warehousemen, laborers, materialmen and the like, (d) for liens in respect of
pledges or deposits under workers' compensation laws or similar legislation, or
(e) for minor defects in title, none of which, individually or in the aggregate
materially interferes with the use of such property, the Company owns its
property and assets free and clear of all mortgages, liens, claims and
encumbrances. With respect to the property and assets it leases, the Company is
in compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances, subject to clauses
(a)-(e) above.
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2.19 Financial Statements. The Company has delivered to each
--------------------
Investor its unaudited financial statements (balance sheet and profit and loss
statement including notes thereto) as at and for the year ended December 31,
1996 (the "Financial Statements"). The Financial Statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated and with each other, except
that the Financial Statements may not contain all footnotes required by
generally accepted accounting principles. The Financial Statements fairly
present the financial condition and operating results of the Company as of the
dates, and for the periods, indicated therein, subject to normal year-end audit
adjustments. Except as set forth in the Financial Statements, the Company has
no material liabilities, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31, 1996 and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in the Financial Statements, which, in both cases, individually or
in the aggregate, are not material to the financial condition, operating results
or prospects of the Company. Except as disclosed in the Financial Statements,
the Company is not a guarantor or indemnitor of any indebtedness of any other
person, firm or corporation. The Company maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with generally accepted accounting principles.
2.20 Changes. To the best of the Company's knowledge, since December
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31, 1996, there has not been:
(a) Any change in the assets, liabilities, financial condition,
operating results or prospects of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business that
have not been, in the aggregate, materially adverse;
(b) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the business, properties,
prospects or financial condition of the Company (as such business is presently
conducted and as it is proposed to be conducted);
(c) Any waiver or compromise by the Company of a valuable right
or of a material debt owed to it;
(d) Any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and which is not material to the business, properties,
prospects or financial condition of the Company (as such business is presently
conducted and as it is proposed to be conducted);
(e) Any material change to a material contract or arrangement by
which the Company or any of its assets is bound or subject;
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(f) Any material change in any compensation arrangement or
agreement with any employee, officer, director, or stockholder;
(g) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets;
(h) Any resignation or termination of employment of any key
officer of the Company; and the Company, to its knowledge, does not know of the
impending resignation or termination of employment of any such officer;
(i) Receipt of notice that there has been a loss of, or material
order cancellation by, any major customer of the Company;
(j) Any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company, with respect to any of its material properties or
assets, except liens for taxes not yet due or payable;
(k) Any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(l) Any declaration, setting aside or payment or other
distribution in respect of any of the Company's capital stock, or any direct or
indirect redemption, purchase or other acquisition of any of such stock by the
Company;
(m) Any other event or condition of any character that might
materially and adversely affect the business, properties, prospects or financial
condition of the Company (as such business is presently conducted and as it is
proposed to be conducted); or
(n) Any agreement or commitment by the Company to do any of the
things described in this Section 2.20.
2.21 Patents and Trademarks. To the best of its knowledge (but
----------------------
without having conducted any special investigation or patent search) the Company
owns or possesses sufficient legal rights to all patents, trademarks,
servicemarks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights and processes necessary for its business as now conducted and
as proposed to be conducted without any conflict with or infringement of the
rights of others. The Schedule of Exceptions contains a complete list of
patents and pending patent applications of the Company. Except for agreements
with its own employees or consultants, substantially in the form referenced in
Section 2.23 below, there are no outstanding options, licenses, or agreements of
any kind relating to the foregoing, nor is the Company bound by or a party to
any options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and
-8-
processes of any other person or entity. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as proposed, would violate any of the patents, trademarks, service
marks, trade names, copyrights, trade secrets or other proprietary rights of any
other person or entity nor is the Company aware of any basis therefor. The
Company is not aware that any of it employees is obligated under any contract
(including licenses, covenants or commitments of any nature) or other agreement,
or subject to any judgment, decree or order of any court or administrative
agency, that would interfere with the use of such employee's best efforts to
promote the interests of the Company or that would conflict with the Company's
business as proposed to be conducted. Neither the execution nor delivery of
this Agreement, nor the carrying on of the Company's business by the employees
of the Company, nor the conduct of the Company's business as proposed, will, to
the best of the Company's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated. The
Company does not believe it is or will be necessary to use any inventions of any
of its employees (or persons it currently intends to hire) made prior to their
employment by the Company.
2.22 Manufacturing and Marketing Rights. The Company has not granted
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rights to manufacture, produce, assemble, license, market, or sell its products
to any other person, and is not bound by any agreement that affects the
Company's exclusive right to develop, manufacture, assemble, distribute, market,
or sell its products.
2.23 Proprietary Information and Inventions Agreements. Each employee
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and officer of the Company has executed a Proprietary Information and Inventions
Agreement substantially in the form or forms that have been delivered to special
counsel for the Investors.
2.24 Tax Returns, Payments, and Elections. The Company has filed all
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tax returns and reports as required by law. These returns and reports are true
and correct in all material respects. The Company has paid all taxes and other
assessments due, except those contested by it in good faith. The provision for
taxes of the Company as shown in the Financial Statements is adequate for taxes
due or accrued as of the date thereof. The Company has not elected pursuant to
the Internal Revenue Code of 1986, as amended ("Code"), to be treated as an S
corporation or a collapsible corporation pursuant to Section 341(f) of Section
1362(a) of the Code, nor has it made any other elections pursuant to the Code
(other than elections which relate solely to methods of accounting, depreciation
or amortization) which would have a material effect on the business, properties,
prospects or financial condition of the Company. The Company has never had any
tax deficiency proposed or assessed against it and has not executed any waiver
of any statute of limitations on the assessment or collection of any tax or
governmental charge. None of the Company's federal income tax returns and none
of its state income or franchise tax or sales or use tax returns has ever been
audited by governmental authorities. Since the date of the Financial
Statements, the Company has made adequate provisions on its books of account for
all taxes, assessments and governmental charges with respect to its business,
properties and operations for such
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period. The Company has withheld or collected from each payment made to each of
its employees, the amount of all taxes (including, but not limited to, federal
income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment
Tax Act taxes) required to be withheld or collected therefrom, and has paid the
same to the proper tax receiving officers or authorized depositaries.
2.25 Insurance. The Company has in full force and effect fire and
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casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed. The Company has in full force and effect
products liability insurance in amounts customary for companies similarly
situated.
2.26 Environmental and Safety Laws. To the best of its knowledge, the
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Company is not in violation of any applicable statute, law, or regulation
relating to the environment or occupational health and safety, and to the best
of its knowledge, no material expenditures are or will be required in order to
comply with any such existing statute, law, or regulation.
2.27 Section 83(b) Elections. To the best of the Company's knowledge,
-----------------------
all individuals who have purchased shares of the Company's Common Stock have
timely filed elections under Section 83(b) of the Internal Revenue Code and any
analogous provisions of applicable state tax laws.
3. Representations and Warranties of the Investor. Each Investor hereby
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represents and warrants that:
3.1 Authorization. This Agreement constitutes its valid and legally
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binding obligation, enforceable in accordance with its terms, except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization and moratorium
laws and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made with
---------------------------------
each Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Series D Preferred Stock to be received by such Investor and
the Common Stock issuable upon conversion thereof (collectively, the
"Securities") will be acquired for investment for such Investor's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof, and that such Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same. By executing
this Agreement, each Investor further represents that such Investor does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person,
with respect to any of the Securities. Each Investor represents that it has
full power and authority to enter into this Agreement.
-10-
3.3 Disclosure of Information. It believes it has received all the
-------------------------
information it considers necessary or appropriate for deciding whether to
purchase the Series D Preferred Stock. Each Investor further represents that it
has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Series D Preferred
Stock. The foregoing, however, does not limit or modify the representations and
warranties of the Company in Section 2 of this Agreement or the right of the
Investors to rely thereon.
3.4 Investment Experience. It is an investor in securities of
---------------------
companies in the development stage and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Series D Preferred Stock.
3.5 Accredited Investor. It is an "accredited investor" within the
-------------------
meaning of SEC Rule 501 of Regulation D, as presently in effect. If other than
an individual, Investor also represents either (a) it has not been organized for
the purpose of acquiring the Series D Preferred Stock or (b) if it has been
organized for the purpose of acquiring the Series D Preferred Stock, that all
the equity owners of such entity are accredited investors.
3.6 Restricted Securities. It understands that the shares of Series
---------------------
D Preferred Stock it is purchasing are characterized as "restricted securities"
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Act, only in certain limited circumstances. In this
connection, each Investor represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
3.7 Further Limitations on Disposition. Without in any way limiting
----------------------------------
the representations set forth above, each Investor further agrees not to make
any disposition of all or any portion of the Series D Preferred Stock (or the
Common Stock issuable upon the conversion thereof) unless and until the
transferee has agreed in writing for the benefit of the Company to be bound by
this Section 3.7, provided and to the extent such section is then applicable,
the Investors' Rights Agreement, and any applicable Ancillary Agreement and:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, such Investor shall have furnished the
Company with an opinion of counsel,
-11-
reasonably satisfactory to the Company, that such disposition will not require
registration of such shares under the Act. It is agreed that the Company will
not require opinions of counsel for transactions made pursuant to Rule 144
except in unusual circumstances.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by an Investor which is a partnership to a partner of such
partnership or a retired partner of such partnership who retires after the date
hereof, or to the estate of any such partner or retired partner or the transfer
by gift, will or intestate succession of any partner to his spouse or to the
siblings, lineal descendants or ancestors of such partner or his spouse, or to
an affiliate (as such term is defined in SEC Rule 405) of such partnership, if
the transferee agrees in writing to be subject to the terms hereof to the same
extent as if he were an original Investor hereunder.
3.8 Legends. It is understood that the certificates evidencing the
-------
Series D Preferred Stock (and the Common Stock issuable upon conversion thereof)
may bear one or all of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933. They may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or an opinion of counsel satisfactory to the
Company that such registration is not required or unless sold pursuant to Rule
144 of such Act."
(b) Any legend required by the laws of the State of Delaware or
California, including any legend required by the California Department of
Corporations and Sections 417 and 418 of the Corporations Code of California.
4. California Commissioner of Corporations.
---------------------------------------
4.1 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE
------------------------
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
5. Conditions of Investor's Obligations at Closing. The obligations of
-----------------------------------------------
each Investor under subsection 1.1(b) of this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
in writing thereto:
-12-
5.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
5.2 Performance. The Company shall have performed and complied with
-----------
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 Compliance Certificate. The President of the Company shall
----------------------
deliver to each Investor at the Closing a certificate certifying that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there shall have been no adverse change in the business, affairs,
prospects, operations, properties, assets or condition of the Company since
December 31, 1996.
5.4 Qualifications. The Commissioner of Corporations of the State of
--------------
California shall have issued a permit qualifying the offer and sale of the
Series D Preferred Stock and the underlying Common Stock to the Investors
pursuant to this Agreement, or such offer and sale shall be exempt from such
qualification.
5.5 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Investors' special counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
5.6 Opinion of Company Counsel. Each Investor shall have received
--------------------------
from Xxxxxxx, Xxxxxxx & Xxxxxxxx, counsel for the Company, an opinion, dated as
of the Closing, in form and substance satisfactory to special counsel to the
Investors.
5.7 Investors' Rights Agreement. The Company, the holders of a
---------------------------
majority of the Registrable Securities (as defined in that certain Investors'
Rights Agreement dated October 30, 1996) currently outstanding and each Investor
shall have entered into Amendment No. 1 to the Investors' Rights Agreement dated
October 30, 1996, in the form attached hereto as Exhibit B.
---------
5.8 Stock Certificates. The Company shall have executed and
------------------
delivered to each Investor the stock certificates representing the number of
shares of the Company purchased by each Investor pursuant to this Agreement.
6. Conditions of the Company's Obligations at Closing. The obligations
--------------------------------------------------
of the Company to each Investor under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions by that
Investor:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of the Investor contained in Section 3 shall be true on and as of the
Closing
-13-
with the same effect as though such representations and warranties had been made
on and as of the Closing.
6.2 Payment of Purchase Price. The Investor shall have delivered the
-------------------------
purchase price specified in Section 1.2.
6.3 Qualifications. The Commissioner of Corporations of the State of
--------------
California shall have issued a permit qualifying the offer and sale to the
Investor of the Series D Preferred Stock and the Common Stock issuable upon the
conversion thereof or such offer and sale shall be exempt from such
qualification.
7. Miscellaneous.
-------------
7.1 Survival of Warranties. The warranties, representations and
----------------------
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
7.2 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 shares of Series D Preferred Stock sold hereunder or any
Common Stock issued upon conversion thereof). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
7.3 Governing Law. This Agreement 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.
7.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.5 Titles and Subtitles. The titles and subtitles used in this
--------------------
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.6 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon (a) personal delivery to the party to be notified, (b)
upon telefacsimile transmission to the party to be notified at the telefacsimile
number indicated for such party on the signature page hereof, if any, or (c)
upon deposit with an overnight courier service or the United States Post Office,
by registered or certified mail, postage prepaid
-14-
and addressed to the party to be notified at the address(es) indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
7.7 Finder's Fee. Each party represents that it neither is nor will
------------
be obligated for any finder's fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Investor or any of its officers, partners,
employees, or representatives is responsible. The Company agrees to indemnify
and hold harmless each Investor from any liability for any commission or
compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
7.8 Expenses. Irrespective of whether the Closing is effected, each
--------
party hereto shall pay all costs and expenses (including legal expenses) that it
incurs with respect to the negotiation, execution, delivery and performance of
this Agreement. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement or the Amended and Restated Certificate of
Incorporation, the prevailing party shall be entitled to reasonable attorneys'
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
7.9 Amendments and Waivers. Any term of this Agreement may be
----------------------
amended and the observance of any term of this Agreement 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 Common Stock issued or issuable upon conversion of the Series
D Preferred Stock issued pursuant hereto. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of any
securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company; provided, however, that no condition set
forth in Section 5 hereof may be waived with respect to any Investor who does
not consent thereto.
7.10 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
7.11 Aggregation of Stock. All shares of the Series D Preferred Stock
--------------------
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
7.12 Entire Agreement. This Agreement and the documents referred to
----------------
herein constitute the entire agreement among the parties and no party shall be
liable or
-15-
bound to any other party in any manner by any warranties, representations, or
covenants except as specifically set forth herein or therein.
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CORSAIR COMMUNICATIONS, INC., a
Delaware corporation
By: /s/ Marry Xxx Xxxxxx
----------------------------------------
Xxxx Xxx Xxxxxx, President
Address: 0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
INVESTORS:
SUMITOMO CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Title: Attorney-in-Fact
-------------------------------------
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SUMITOMO CORPORATION OF AMERICA
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------
Title: Senior Vice President
-------------------------------------
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO
SERIES D PREFERRED STOCK PURCHASE AGREEMENT]
SCHEDULE A
SCHEDULE OF INVESTORS
---------------------
Cash Purchase No. of
Name Price Shares
--------------------------------- ------------- -------
Sumitomo Corporation $1,500,000.00 200,000
Sumitomo Corporation of America $1,500,000.00 200,000
CLOSING TOTALS: $3,000,000.00 400,000
Schedule A-1
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
-------------------------------------------------
A-1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF CORSAIR COMMUNICATIONS, INC.,
a Delaware corporation
Corsair Communications, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is Corsair Communications, Inc. The
original Certificate of Incorporation of the corporation was filed with the
Secretary of State of the State of Delaware on December 5, 1994 and was amended
pursuant to a Certificate of Amendment of Certificate of Incorporation of the
corporation filed with the Secretary of State of the State of Delaware on
January 25, 1995. An amended and restated Certificate of Incorporation was
filed with the Secretary of State of the State of Delaware on October 26, 1995
and was amended pursuant to a Certificate of Amendment of Certificate of
Incorporation of the corporation filed with the Secretary of State of the State
of Delaware on December 18, 1995. An amended and restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
October 30, 1996.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware, the Amended and Restated Certificate of Incorporation was
adopted by the corporation's Board of Directors and stockholders, the
stockholders of the corporation having approved the Amended and Restated
Certificate of Incorporation by the written consent of the holders of at least a
majority of the outstanding shares in accordance with Section 228 thereof, and
written notice having been given in accordance with the requirements of such
Section. The Amended and Restated Certificate of Incorporation restates,
integrates and amends the provisions of the Certificate of Incorporation of this
corporation.
3. The Certificate of Incorporation of the corporation is hereby amended
and restated in its entirety as follows:
ARTICLE I
The name of this corporation is Corsair Communications, Inc.
ARTICLE II
The address of this corporation's registered office in the State of
Delaware is 00 Xxxx Xxxxx Xxxxxx, Xxxx xx Xxxxx, Xxxxxx of Kent 19901. The name
of its registered agent at such address is Incorporating Services, Ltd.
ARTICLE III
The purpose of this corporation is to engage in any lawful act or activity
for which a corporation may now or hereafter be organized under the Delaware
General Corporation Law.
ARTICLE IV
A. Classes of Stock. This corporation is authorized to issue two classes
----------------
of stock to be designated, respectively, "Common Stock" and "Preferred Stock."
The total number of shares which the corporation is authorized to issue is
Thirty-Four Million Five Hundred Forty-Eight Thousand Nine Hundred Sixty Three
(34,548,963) shares. Twenty Million (20,000,000) shares shall be Common Stock,
$.001 par value per share, and Fourteen Million Five Hundred Forty-Eight
Thousand Nine Hundred Sixty Three (14,548,963) shares shall be Preferred Stock,
$.001 par value per share, of which Eight Million One Hundred Twenty Thousand
(8,120,000) shares shall be Series A Preferred Stock, Two Million Two Hundred
Twenty-Eight Thousand Nine Hundred Sixty Three (2,228,963) shares shall be
Series B Preferred Stock, Three Million Eight Hundred Thousand (3,800,000)
shares shall be Series C Preferred Stock, and Four Hundred Thousand (400,000)
shares shall be Series D Preferred Stock.
B. Rights, Preferences and Restrictions of Preferred Stock. The rights,
-------------------------------------------------------
preferences, restrictions and other matters relating to the Preferred Stock are
as follows:
1. Dividend Provisions.
-------------------
a. The holders of shares of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock shall be
entitled to receive dividends, out of any assets legally available therefor,
prior and in preference to any declaration or payment of any dividend (payable
other than in Common Stock or other securities and rights convertible into or
entitling the holder thereof to receive, directly or indirectly, additional
shares of Common Stock of this corporation) on the Common Stock of this
corporation, at the rate of $0.10 per share of Series A Preferred Stock per
annum, $0.22 per share of Series B Preferred Stock per annum, $0.275 per share
of Series C Preferred Stock per annum, and $0.375 per share of Series D
Preferred Stock per annum (subject to appropriate adjustments for stock splits,
stock dividends, combinations or other recapitalizations) payable when, as and
if declared by the Board of Directors. Such dividends shall not be cumulative.
No cash dividend shall be declared or paid with respect to the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock unless at the same time a like proportionate cash dividend for
the same dividend period, ratably in proportion to the respective annual
dividend rates set forth above, is declared and paid with respect to the Series
A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock
and the Series D Preferred Stock.
-2-
b. In the event this corporation shall declare a distribution
payable in securities of other persons, evidences of indebtedness issued by this
corporation or other persons, assets (excluding cash dividends) or options or
rights to purchase any such securities or evidences of indebtedness, then, in
each case the holders of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock shall be entitled to a
proportionate share of any such distribution as though the holders of the Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series
D Preferred Stock were the holders of the number of shares of Common Stock of
this corporation into which their respective shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
are convertible as of the record date fixed for the determination of the holders
of Common Stock of this corporation entitled to receive such distribution.
2. Liquidation Preference.
----------------------
a. In the event of any liquidation, dissolution or winding up
of this corporation, either voluntary or involuntary, the holders of Series C
Preferred Stock and Series D Preferred Stock shall be entitled to receive, prior
and in preference to any distribution of any of the assets of this corporation
to the holders of Series A Preferred Stock, Series B Preferred Stock or Common
Stock by reason of their ownership thereof, an amount per share equal to the sum
of (i) $5.50 for each outstanding share of Series C Preferred Stock and $7.50
for each outstanding share of Series D Preferred Stock (subject to appropriate
adjustments for stock splits, stock dividends, combinations or other
recapitalizations and hereafter referred to as the "Original Series C Issue
Price" and "Original Series D Issue Price," respectively), and (ii) an amount
equal to declared but unpaid dividends on such shares of Series C Preferred
Stock and Series D Preferred Stock as applicable. If upon the occurrence of such
event, the assets and funds thus distributed among the holders of Series C
Preferred Stock and Series D Preferred Stock shall be insufficient to permit the
payment to such holders of the full aforesaid preferential amounts, then, the
entire assets and funds of the corporation legally available for distribution
shall be distributed ratably among the holders of Series C Preferred Stock and
Series D Preferred Stock in proportion to the aggregate liquidation preferences
of the respective series, and ratably among the holders of the Series C
Preferred Stock and Series D Preferred Stock in proportion to the amount of such
stock owned by each such holder.
b. After the distribution described in subsection (a) above has
been paid, the holders of Series A Preferred Stock and Series B Preferred Stock
shall be entitled to receive, prior and in preference to any distribution of any
of the assets of this corporation to the holders of Common Stock by reason of
their ownership thereof, an amount per share equal to the sum of (i) $2.00 for
each outstanding share of Series A Preferred Stock (subject to appropriate
adjustments for stock splits, stock dividends, combinations or other
recapitalizations and hereafter referred to as the "Original Series A Issue
Price"), (ii) $4.43 for each outstanding share of Series B Preferred Stock
(subject to appropriate adjustments for stock splits, stock dividends,
combinations or other
-3-
recapitalizations and hereafter referred to as the "Original Series B Issue
Price"), and (iii) an amount equal to declared but unpaid dividends on such
shares of Series A Preferred Stock or Series B Preferred Stock as applicable.
If upon the occurrence of such event, and after the distribution described in
subsection (a) above has been paid, the assets and funds thus distributed among
the holders of Series A Preferred Stock and the Series B Preferred Stock shall
be insufficient to permit the payment to such holders of the full aforesaid
preferential amounts, then, the entire assets and funds of the corporation
legally available for distribution shall be distributed ratably among the
holders of Series A Preferred Stock and Series B Preferred Stock in proportion
to the aggregate liquidation preferences of the respective series, and ratably
among the holders of each series in proportion to the amount of such stock owned
by each such holder.
c. After the distributions described in subsections (a) and (b)
above have been paid, the remaining assets of the corporation available for
distribution to stockholders shall be distributed among the holders of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Common Stock pro rata based on the number of shares of
Common Stock held by each (assuming conversion of all such Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock).
d. A consolidation or merger of this corporation with or into
any other corporation or corporations, or a sale, conveyance or disposition of
all or substantially all of the assets of this corporation or the effectuation
by the corporation of a transaction or series of related transactions in which
more than 50% of the voting power of the corporation is disposed of (excluding
the issuance of shares of Series A Preferred Stock pursuant to the Series A
Preferred Stock Purchase Agreement, the issuance of Series B Preferred Stock
pursuant to the Series B Preferred Stock Purchase Agreement, the issuance of
Series C Preferred Stock pursuant to the Series C Preferred Stock Purchase
Agreement and the issuance of Series D Preferred Stock pursuant to the Series D
Preferred Stock Purchase Agreement), shall be deemed to be a liquidation,
dissolution or winding up within the meaning of this Section 2.
3. Conversion. The holders of the Series A Preferred Stock, Series
----------
B Preferred Stock and Series C Preferred Stock shall have conversion rights as
follows (the "Conversion Rights"):
a. Right to Convert.
----------------
(i) Subject to subsection (c), each share of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock shall be convertible, at the option of the holder thereof, at
any time after the date of issuance of such share, at the office of this
corporation or any transfer agent for the particular series of Preferred Stock,
into such number of fully paid and nonassessable shares of Common Stock as is
determined by dividing (A) the Original Series A Issue Price for each share of
Series A Preferred Stock, (B) the Original Series B Issue Price for each share
of Series B Preferred Stock, (C) the Original Series C Issue
-4-
Price for each share of Series C Preferred Stock and (D) the Original Series D
Issue Price for each share of Series D Preferred Stock, plus all declared but
unpaid dividends thereon for each share of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock, by the
Conversion Price at the time in effect for such share. The initial Conversion
Price per share for shares of Series A Preferred Stock shall be the Original
Series A Issue Price, the initial Conversion Price per share for shares of
Series B Preferred Stock shall be the Original Series B Issue Price, the initial
Conversion Price per share for shares of Series C Preferred Stock shall be the
Original Series C Issue Price and the initial Conversion Price per share for
shares of Series D Preferred Stock shall be the Original Series D Issue Price;
provided, however, that the Conversion Price for the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
shall be subject to adjustment as set forth in subsection 3(c).
(ii) Each share of Series A Preferred Stock and Series B
Preferred Stock shall automatically be converted into shares of Common Stock at
the Conversion Price at the time in effect for such shares immediately upon the
earlier of (A) the consummation of the corporation's sale of its Common Stock in
a bona fide, firm commitment underwriting pursuant to a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), the public
offering price of which was not less than $10.00 per share (subject to
appropriate adjustments for stock splits, stock dividends, combinations or other
recapitalizations) and $15,000,000 in the aggregate or (B) the date upon which
the corporation obtains the written consent of the holders of a majority of the
then outstanding shares of Series A Preferred Stock and Series B Preferred Stock
voting together as a single class on an as converted basis.
(iii) Each share of Series C Preferred Stock and Series D
Preferred Stock shall automatically be converted into shares of Common Stock at
the Conversion Price at the time in effect for such shares immediately upon the
earlier of (A) the consummation of the corporation's sale of its Common Stock in
a bona fide, firm commitment underwriting pursuant to a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), the public
offering price of which was not less than $10.00 per share (subject to
appropriate adjustments for stock splits, stock dividends, combinations or other
recapitalizations) and $15,000,000 in the aggregate or (B) the date upon which
the corporation obtains the written consent of the holders of a majority of the
then outstanding shares of Series C Preferred Stock and Series D Preferred Stock
voting together as a single class on an as converted basis.
b. Mechanics of Conversion. Before any holder of Series A
-----------------------
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or Series D
Preferred Stock shall be entitled to convert the same into shares of Common
Stock, he shall surrender the certificate or certificates therefor, duly
endorsed, at the office of this corporation or of any transfer agent for the
particular series of Preferred Stock, and shall give written notice by mail,
postage prepaid, to this corporation at its principal corporate office, of the
election to convert the same and shall state therein the name or names in which
the certificate or certificates for shares of Common Stock are to be issued.
This
-5-
corporation shall, as soon as practicable thereafter, issue and deliver at such
office to such holder of Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and/or Series D Preferred Stock, or to the nominee or
nominees of such holder, a certificate or certificates for the number of shares
of Common Stock to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and/or Series D
Preferred Stock to be converted, and the person or persons entitled to receive
the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock as
of such date. If the conversion is in connection with an underwritten offer of
securities registered pursuant to the Securities Act, the conversion may, at the
option of any holder tendering Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and/or Series D Preferred Stock for conversion,
be conditioned upon the closing with the underwriter of the sale of securities
pursuant to such offering, in which event the person(s) entitled to receive the
Common Stock issuable upon such conversion of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and/or Series D Preferred
Stock shall not be deemed to have converted such Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and/or Series D Preferred
Stock until immediately prior to the closing of such sale of securities.
c. Conversion Price Adjustments of Preferred Stock. The
-----------------------------------------------
Conversion Prices of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock shall be subject to
adjustment from time to time as follows:
(i) A. If the corporation shall issue any Additional
Stock (as defined below) without consideration or for a consideration per share
less than the Conversion Price for the Series A Preferred Stock, the Conversion
Price for the Series B Preferred Stock, the Conversion Price for the Series C
Preferred Stock or the Conversion Price for the Series D Preferred Stock in
effect immediately prior to the issuance of such Additional Stock, the
Conversion Price for the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock, as the case may be, in
effect immediately prior to each such issuance shall forthwith (except as
otherwise provided in this clause (i)) be adjusted to a price equal to the
quotient obtained by dividing the total computed under clause (x) below by the
total computed under clause (y) below as follows:
(x) an amount equal to the sum of
(1) the aggregate purchase price of the
shares of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock sold pursuant to
the applicable agreements pursuant to which such shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or
Series D
-6-
Preferred Stock, as the case may be, are first issued (the "Stock
Purchase Agreements"), plus
(2) the aggregate consideration, if any,
received by the corporation for all Additional Stock issued on or
after the dates of the applicable Stock Purchase Agreements (the
"Purchase Date") other than shares of Common Stock issued or issuable
with respect to the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock;
(y) an amount equal to the sum of
(1) the aggregate purchase price of the
shares of the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock sold pursuant to
the applicable Stock Purchase Agreements divided by the applicable
Conversion Price for such shares in effect at the applicable Purchase
Date (or such higher or lower Conversion Price for such series as
results from the application of subsections 3(c)(iii) and (iv) and
assuming that this Certificate was in effect as of the applicable
Purchase Date) plus
(2) the number of shares of Additional
Stock issued since the applicable Purchase Date (increased or
decreased to the extent that the number of such shares of Additional
Stock shall have been increased or decreased as the result of the
application of subsections 3(c)(iii) and (iv)).
B. No adjustment of the Conversion Price for the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock shall be made in an amount less than one cent per
share, provided that any adjustments which are not required to be made by reason
of this sentence shall be carried forward and shall be either taken into account
in any subsequent adjustment made prior to 3 years from the date of the event
giving rise to the adjustment being carried forward, or shall be made at the end
of 3 years from the date of the event giving rise to the adjustment being
carried forward. Except to the limited extent provided for in subsections (E)(3)
and (E)(4), no adjustment of such Conversion Price pursuant to this subsection
3(c)(i) shall have the effect of increasing the Conversion Price above the
Conversion Price in effect immediately prior to such adjustment.
C. In the case of the issuance of Common Stock for
cash, the consideration shall be deemed to be the amount of cash paid therefor
before deducting any reasonable discounts, commissions or other expenses
allowed, paid or incurred by this corporation for any underwriting or otherwise
in connection with the issuance and sale thereof.
-7-
D. In the case of the issuance of the Common Stock
for a consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair value thereof as determined by the
Board of Directors irrespective of any accounting treatment.
E. In the case of the issuance (whether before, on
or after the applicable Purchase Date) of options to purchase or rights to
subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock or options to purchase or rights to subscribe for
such convertible or exchangeable securities, the following provisions shall
apply for all purposes of this subsection 3(c)(i) and subsection 3(c)(ii):
1. The aggregate maximum number of shares of
Common Stock deliverable upon exercise of such options to purchase or
rights to subscribe for Common Stock shall be deemed to have been
issued at the time such options or rights were issued and for a
consideration equal to the consideration (determined in the manner
provided in subsections 3(c)(i)(C) and (c)(i)(D)), if any, received by
the corporation upon the issuance of such options or rights plus the
minimum exercise price provided in such options or rights (without
taking into account potential antidilution adjustments) for the Common
Stock covered thereby.
2. The aggregate maximum number of shares of
Common Stock deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities or upon the exercise of
options to purchase or rights to subscribe for such convertible or
exchangeable securities and subsequent conversion or exchange thereof
shall be deemed to have been issued at the time such securities were
issued or such options or rights were issued and for a consideration
equal to the consideration, if any, received by the corporation for
any such securities and related options or rights (excluding any cash
received on account of accrued interest or accrued dividends), plus
the minimum additional consideration, if any, to be received by the
corporation (without taking into account potential antidilution
adjustments) upon the conversion or exchange of such securities or the
exercise of any related options or rights (the consideration in each
case to be determined in the manner provided in subsections 3(c)(i)(C)
and (c)(i)(D)).
3. In the event of any change in the number of
shares of Common Stock deliverable or in the consideration payable to
this corporation upon exercise of such options or rights or upon
conversion of or in exchange for such convertible or exchangeable
securities, including, but not limited to, a change resulting from the
antidilution provisions thereof, the applicable Conversion Price of
the Series A Preferred Stock, Series B Preferred Stock Series C
Preferred
-8-
Stock and Series D Preferred Stock, as applicable, and to the extent
in any way affected by or computed using such options, rights or
securities, shall be recomputed to reflect such change, but no further
adjustment shall be made for the actual issuance of Common Stock or
any payment of such consideration upon the exercise of any such
options or rights or the conversion or exchange of such securities.
4. Upon the expiration of any such options or
rights, the termination of any such rights to convert or exchange or
the expiration of any options or rights related to such convertible or
exchangeable securities, the applicable Conversion Price of the Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock, as applicable, to the extent in any way
affected by or computed using such options, rights or securities or
options or rights related to such securities, shall be recomputed to
reflect the issuance of only the number of shares of Common Stock (and
convertible or exchangeable securities which remain in effect)
actually issued upon the exercise of such options or rights, upon the
conversion or exchange of such securities or upon the exercise of the
options or rights related to such securities.
5. The number of shares of Common Stock deemed
issued and the consideration deemed paid therefor pursuant to
subsections 3(c)(i)(E)(1) and (2) shall be appropriately adjusted to
reflect any change, termination or expiration of the type described in
either subsection 3(c)(i)(E)(3) or (4).
(ii) "Additional Stock" shall mean any shares of Common
Stock issued (or deemed to have been issued pursuant to subsection 3(c)(i)(E))
by this corporation before, on or after the applicable Purchase Date other than
A. shares of Common Stock issued pursuant to a
transaction described in subsection 3(c)(iii) hereof,
B. shares of Common Stock issued upon conversion of
shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock,
C. shares of Common Stock issuable or issued to
employees, consultants, or directors of this corporation directly or
pursuant to a stock option plan or agreement or restricted stock plan
or agreement approved by the Board of Directors of this corporation,
D. shares of Common Stock issued or issuable (I) in
a public offering before or in connection with which all outstanding
shares of Series A Preferred Stock, Series B Preferred Stock, Series C
-9-
Preferred Stock and Series D Preferred Stock will be converted to
Common Stock or (II) upon exercise of warrants or rights granted to
underwriters in connection with such a public offering,
E. shares of Series B Preferred Stock issued or
issuable to Comdisco, Inc. pursuant to Warrants dated August 31, 1995,
July 31, 1996, and August 5, 1996, or
F. shares of Series B Preferred Stock issued or
issuable to MMC/GATX PARTNERSHIP NO. 1 pursuant to a Warrant dated
July 31, 1996.
(iii) In the event the corporation should at any time or
from time to time after the applicable Purchase Date fix a record date for the
effectuation of a split or subdivision of the outstanding shares of Common Stock
or the determination of holders of Common Stock entitled to receive a dividend
or other distribution payable in additional shares of Common Stock or other
securities or rights convertible into, or entitling the holder thereof to
receive directly or indirectly, additional shares of Common Stock (hereinafter
referred to as "Common Stock Equivalents") without payment of any consideration
by such holder for the additional shares of Common Stock or the Common Stock
Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of
such dividend distribution, split or subdivision if no record date is fixed),
the applicable Conversion Price of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock then in
effect shall be appropriately decreased so that the number of shares of Common
Stock issuable on conversion of each share of such series shall be increased in
proportion to such increase of the aggregate of shares of Common Stock
outstanding and those issuable with respect to such Common Stock Equivalents.
(iv) If the number of shares of Common Stock outstanding
at any time after the applicable Purchase Date is decreased by a combination of
the outstanding shares of Common Stock, then, following the record date of such
combination, the applicable Conversion Price for the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
then in effect shall be appropriately increased so that the number of shares of
Common Stock issuable on conversion of each share of such series shall be
decreased in proportion to such decrease in outstanding shares.
d. Other Distributions. In the event this corporation shall
-------------------
declare a distribution payable in securities of other persons, evidences of
indebtedness issued by this corporation or other persons, assets (excluding cash
dividends) or options or rights not referred to in subsection 3(c)(iii), then,
in each such case for the purpose of this subsection 3(d), the holders of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock shall be entitled to a proportionate share of any such
distribution as though they were the holders of the
-10-
number of shares of Common Stock of the corporation into which their shares of
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock are convertible as of the record date fixed for the
determination of the holders of Common Stock of the corporation entitled to
receive such distribution.
e. Recapitalizations. If at any time or from time to time
-----------------
there shall be a recapitalization of the Common Stock (other than a subdivision
or a combination provided for elsewhere in this Section 3) provision shall be
made so that the holders of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock shall thereafter be
entitled to receive upon conversion of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock,
respectively, the number of shares of stock or other securities or property of
the Company or otherwise, to which a holder of Common Stock deliverable upon
conversion would have been entitled on such recapitalization. In any such case,
appropriate adjustment shall be made in the application of the provisions of
this Section 3 with respect to the rights of the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock after the recapitalization to the end that the provisions of
this Section 3 (including adjustment of the Conversion Price then in effect and
the number of shares issuable upon conversion of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock)
shall be applicable after that event as nearly equivalent as may be practicable.
f. No Impairment. This corporation will not, by amendment of
-------------
of its Certificate of Incorporation or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or performed
hereunder by this corporation, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3 and in the taking of all
such action as may be necessary or appropriate in order to protect the
Conversion Rights of the holders of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock against
impairment.
g. No Fractional Shares and Certificate as to Adjustments.
------------------------------------------------------
(i) No fractional shares shall be issued upon conversion
of the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock, and the number of shares of Common Stock to
be issued shall be rounded up to the nearest whole share. The number of shares
of Common Stock issuable upon such conversion shall be determined on the basis
of the total number of shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock the holder is at
the time converting into Common Stock.
(ii) Upon the occurrence of each adjustment or
readjustment of the Conversion Price of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock pursuant
to this Section 3,
-11-
this corporation, at its expense, shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. This corporation shall, upon the written request at any
time of any holder of Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock or Series D Preferred Stock, furnish or cause to be furnished
to such holder a like certificate setting forth (A) such adjustment and
readjustment, (B) the Conversion Price at the time in effect, and (C) the number
of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of a share of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock or Series D Preferred
Stock.
h. Notices of Record Date. In the event of any taking by this
----------------------
corporation of a record of the holders of any class of securities for the
purpose of determining the holders thereof who are entitled to receive any
dividend (other than a cash dividend) or other distribution, any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, this
corporation shall mail to each holder of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock at least
20 days prior to the date specified therein, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
i. Reservation of Stock Issuable Upon Conversion. This
---------------------------------------------
corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Common Stock solely for the purpose of effecting the
conversion of the shares of the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock such number of its
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; and if
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding shares of the
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock, in addition to such other remedies as shall be
available to the holder of such Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock or Series D Preferred Stock, this corporation
will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such
number of shares as shall be sufficient for such purposes.
j. Notices. Any notice required by the provisions of this
-------
Section 3 to be given to the holders of shares of Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
shall be deemed
-12-
given if deposited in the United States mail, postage prepaid, and addressed to
each holder of record at his address appearing on the books of this corporation.
4. Voting Rights.
-------------
a. General Voting Rights. The holder of each share of Series A
---------------------
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock shall have the right to one vote for each share of Common Stock
into which such Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock could then be converted (with any
fractional share determined on an aggregate conversion basis being rounded to
the nearest whole share), and with respect to such vote, such holder shall have
full voting rights and powers equal to the voting rights and powers of the
holders of Common Stock, and shall be entitled, notwithstanding any provision
hereof, to notice of any stockholders' meeting in accordance with the Bylaws of
this corporation, and shall be entitled to vote, together as a single class with
holders of Common Stock, with respect to any question upon which holders of
Common Stock have the right to vote; except for the election of directors.
b. Election of Directors. The authorized number of directors
---------------------
of this Corporation shall be seven (7). Notwithstanding 4(a) above, the holders
of Series A Preferred Stock, voting as a separate class, shall be entitled to
elect four (4) directors of the corporation; and the holders of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Common Stock, voting together as a single class on an as
converted basis, shall be entitled to elect three (3) directors of the
corporation. At any meeting held for the purpose of electing directors, the
presence in person or by proxy of the holders of a majority of the Series A
Preferred Stock then outstanding shall constitute a quorum of the Series A
Preferred Stock for the election of directors to be elected solely by the
holders of Series A Preferred Stock. At any meeting held for the purpose of
electing directors, the presence in person or by proxy of the holders of a
majority of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Common Stock then outstanding, on
an as converted basis, shall constitute a quorum of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Common Stock for the election of directors to be elected solely by the
holders of the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Common Stock, voting together as a
single class on an as converted basis. A vacancy in any directorship elected by
the holders of Series A Preferred Stock shall be filled only by vote of the
holders of Series A Preferred Stock; and a vacancy in any directorship elected
by the holders of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Common Stock voting together shall
be filled only by the vote of the holders of Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Common
Stock voting together as provided above.
-13-
5. Protective Provisions.
---------------------
a. Preferred Stock. So long as shares of Series A Preferred
---------------
Stock, Series B Preferred Stock, Series C Preferred Stock and/or Series D
Preferred Stock are outstanding, this corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of a majority of the then outstanding shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock, voting together as a single class on an as converted basis:
i) sell, convey, or otherwise dispose of or encumber all
or substantially all of its property or business or merge into or consolidate
with any other corporation (other than a wholly owned subsidiary corporation) or
effect any transaction or series of related transactions in which more than 50%
of the voting power of the corporation is disposed of;
ii) alter or change the rights, preferences or privileges
of the shares of Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock or Series D Preferred Stock;
iii) increase the authorized number of shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock or Common Stock;
iv) create any new class or series of stock or any other
securities convertible into equity securities of the corporation (i) having a
preference over, or being on a parity with, the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock with
respect to voting, dividends, conversion rights or upon liquidation, or (ii)
having rights similar to any of the rights of the Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
under this Section 5;
v) pay any dividend to the holders of Common Stock; or
vi) change the authorized number of directors from seven
(7).
b. Series C Preferred Stock. So long as shares of Series C
------------------------
Preferred Stock are outstanding, this corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of a majority of the then outstanding shares of Series C Preferred Stock
alter or change the rights, preferences or privileges of the shares of Series C
Preferred Stock so as to adversely affect the shares or the holders thereof.
-14-
c. Series D Preferred Stock. So long as shares of Series D
------------------------
Preferred Stock are outstanding, this corporation shall not without first
obtaining the approval (by vote or written consent, as provided by law) of the
holders of a majority of the then outstanding shares of Series D Preferred Stock
alter or change the rights, preferences or privileges of the shares of Series D
Preferred Stock so as to adversely affect the shares or the holders thereof.
C. Common Stock.
------------
1. Dividend Rights. Subject to the prior rights of holders of all
---------------
classes of stock at the time outstanding having prior rights as to dividends,
the holders of the Common Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of any assets of the corporation legally
available therefor, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation Rights. Upon the liquidation, dissolution or winding
------------------
up of the corporation, the assets of the corporation shall be distributed as
provided in Section 2 of Division (B) of this Article IV hereof.
3. Redemption. The Common Stock is not redeemable.
----------
4. Voting Rights. The holder of each share of Common Stock shall
-------------
have the right to one vote, and shall be entitled to notice of any stockholders'
meeting in accordance with the Bylaws of this corporation, and shall be entitled
to vote upon such matters and in such manner as may be provided by law.
ARTICLE V
A. Exculpation. A director of the Corporation shall not be personally
-----------
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is hereafter
amended to further reduce or to authorize, with the approval of the
Corporation's stockholders, further reductions in the liability of the
Corporation's directors for breach of fiduciary duty, then a director of the
Corporation shall not be liable for any such breach to the fullest extent
permitted by the Delaware General Corporation Law as so amended.
B. Indemnification. To the extent permitted by applicable law, this
---------------
Corporation is also authorized to provide indemnification of (and advancement of
expenses to) such agents (and any other persons to which Delaware law permits
this Corporation to provide indemnification) through bylaw provisions,
agreements with such
-15-
agents or other persons, vote of stockholders or disinterested directors or
otherwise, in excess of the indemnification and advancement otherwise permitted
by Section 145 of the Delaware General Corporation Law, subject only to limits
created by applicable Delaware law (statutory or non-statutory), with respect to
actions for breach of duty to the Corporation, its stockholders, and others.
C. Effect of Repeal or Modification. Any repeal or modification of any
--------------------------------
of the foregoing provisions of this Article V shall not adversely affect any
right or protection of a director, officer, agent or other person existing at
the time of, or increase the liability of any director of the Corporation with
respect to any acts or omissions of such director occurring prior to, such
repeal or modification.
ARTICLE VI
The corporation shall have a perpetual existence.
ARTICLE VII
Except as otherwise provided in this Certificate of Incorporation, in
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors of this corporation is expressly authorized to make, alter, amend,
rescind or repeal the Bylaws of the corporation.
ARTICLE VIII
Elections of directors need not be by written ballot except and to the
extent provided in the Bylaws of the corporation.
ARTICLE IX
The corporation shall not be subject to the provisions of Section 203 of
the Delaware General Corporation Law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-16-
IN WITNESS WHEREOF, the Amended and Restated Certificate of Incorporation
has been signed under the seal of this corporation as of this 3rd day of March,
1997.
CORSAIR COMMUNICATIONS, INC.
By: ________________________________________
Xxxx Xxx Xxxxxx, President
ATTEST:
___________________________________
Xxxxxx Silver, Secretary
EXHIBIT B
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED INVESTORS'
------------------------------------------------------
RIGHTS AGREEMENT DATED OCTOBER 30, 1996
---------------------------------------
B-1
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
--------
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.
-----------------------------------
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.
-----------------------
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
--------------------
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
-2-
("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
-3-
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.
------------
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.
-4-
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.
-------------
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]
-5-
This Amendment is hereby executed as of the date first above written.
CORSAIR COMMUNICATIONS, INC., a Delaware
corporation
By:_______________________________________________
Xxxx Xxx Xxxxxx, President
Address: 0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
EXISTING INVESTORS:
XXXXXXX XXXXXXX XXXXXXXX & XXXXX VII, L.P.
By:_______________________________________________
Title:____________________________________________
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:_________________________________________
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:_______________________________________________
Title:____________________________________________
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:_________________________________________
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:_________________________________________
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:_________________________________________
General Partner
Address: c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
ACCEL INVESTORS '95 L.P.
By:_______________________________________________
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:_________________________________________
Title:______________________________________
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:_______________________________________________
General Partner
Address: c/o Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
TECHNOLOGY CROSSOVER VENTURES, L.P.
By:_______________________________________________
Title:____________________________________________
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:_______________________________________________
Title:____________________________________________
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:_________________________________________
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:_________________________________________
General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB INFORMATION SCIENCES ZAIBATSU FUND II, L.P.
By:_______________________________________________
Title:____________________________________________
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:_______________________________________________
Title:____________________________________________
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:_________________________________________
Title:______________________________________
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
COLUMBIA CAPITAL INVESTMENTS, LLC
By:_______________________________________________
Title:____________________________________________
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:_______________________________________________
Title:____________________________________________
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:_______________________________________________
Title:____________________________________________
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]
__________________________________________________
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:_______________________________________________
Title:____________________________________________
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:_______________________________________________
Title:____________________________________________
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:_______________________________________________
Title:____________________________________________
Address:
SUMITOMO CORPORATION OF AMERICA
By:_______________________________________________
Title:____________________________________________
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND
RESTATED INVESTORS' RIGHTS AGREEMENT]
SCHEDULE OF EXCEPTIONS
----------------------
The following matters are exceptions to the representations and warranties
of Corsair Communications, Inc., a Delaware corporation (the "Company") as set
forth in Section 2 of the Series D Preferred Stock Purchase Agreement (the
"Agreement"). The section numbers in this Schedule of Exceptions correspond to
the section numbers in the Agreement; however, any information disclosed herein
under any section number shall be deemed to be disclosed and incorporated into
any other section number under the Agreement where such disclosure would
otherwise be appropriate. Where the terms of a contract or other disclosure
item have been summarized or described in this Schedule of Exceptions, such
summary or description does not purport to be a complete statement of the
material terms of such contract or other item. Any terms defined in the
Agreement shall have the same meaning when used in this Schedule of Exceptions
as when used in the Agreement unless the context otherwise requires.
