SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
July 8, 1998 (June 30, 1998)
SECURE COMPUTING CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
0-27074 52-1637226
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(Commission File Number) (IRS Employer Identification No.)
One Almaden Blvd., Suite 400, San Jose, California 95113
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (408) 918-6100
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Item 5. OTHER EVENTS.
On June 30, 1998, Secure Computing Corporation (the "Company")
received a $16 million equity investment from two investors led by an affiliate
of Credit Suisse First Boston and an affiliate of Castle Creek Partners, a
Chicago-based private investment partnership. A copy of the press release dated
July 1, 1998 announcing the investment is attached to this Current Report as
Exhibit 99.1 and is incorporated herein.
In the investment, the Company sold 16,000 shares of newly issued
Series C Convertible Preferred Stock ("Series C Preferred") for an aggregate of
$16 million. The Company also issued warrants to acquire 174,464 shares of
Common Stock (the "Warrants"). The offer and sale of these securities were
completed pursuant to the exemption provided by Regulation D under the
Securities Act of 1933.
The Series C Preferred is convertible at the election of the holder
into shares of Common Stock beginning six months after issuance, and at any time
prior to six months upon the occurrence of certain events, including a merger
and similar transactions which would result in a change of control of the
Company. The Series C Preferred is also subject to redemption: (i) at the
request of the holders at a specified redemption premium upon the occurrence of
certain events, including a breach by the Company of certain covenants,
representations and warranties made to the investors and certain specified
business combinations involving the Company or its subsidiaries or (ii) at the
request of the Company at a specified redemption premium if, during any period
of twenty (20) consecutive trading days, the average closing bid price for the
Common Stock is less than $5.00.
Each share of Series C Preferred, which has a face value of $1,000,
is convertible into the number of shares of Common Stock which may be purchased
for such face value at a per share price equal to the lower of (i) the average
of the closing bid prices for the Common Stock for the five trading days
immediately prior to the date of conversion, (ii) the average of the closing bid
prices for the Common Stock for the fifteen trading days immediately prior to
the date of the conversion and (iii) 103% of the average of the closing bid
prices for the Common Stock for the 15 trading days occurring immediately prior
to the 180th day following the initial issuance date of the Series C Preferred.
The conversion price of the Series C Preferred is subject to modification and
adjustment upon the occurrence of specified events.
The Warrants may be exercised until the earlier to occur of: (i)
June 29, 2001 and (ii) the date on which the closing of a consolidation, merger
or other business combination with or into another entity pursuant to which the
Company is not the surviving Company. The exercise price for the Common Stock
related to the Warrant is 130% of the average of the closing bid prices for the
Common Stock on the 15 trading days occurring immediately prior to June 30,
1998.
The Series C Preferred is senior to the Company's Series A and
Series B Convertible Preferred Stock in respect of the right to receive dividend
payments and liquidation preferences.
The Company is obligated to file with the Securities and Exchange
Commission a "shelf" registration statement covering the resale of all shares of
Common Stock issuable upon conversion of the Series C Preferred and upon
exercise of the Warrants.
The foregoing description is only a summary and is qualified in its
entirety by reference to the Securities Purchase Agreement dated as of June 30,
1998 between the Company and the purchasers listed therein, the Registration
Rights Agreement dated as of June 30, 1998 between the Company and the
purchasers listed therein, the Warrants issued by the Company to the purchasers
and the Certificate of Designation of Series C Convertible Preferred Stock
attached to this Current Report as Exhibits 10.1, 10.2, 10.3, and 3.1
respectively.
The proceeds from the equity investment will be used for working
capital purposes.
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Item 7. EXHIBITS.
Exhibit No. Description
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3.1 Certificate of Designation of Series C Preferred Stock
10.1 Securities Purchase Agreement dated as of June 30, 1998
between the Company and the purchasers listed therein
10.2 Registration Rights Agreement dated as of June 30, 1998
between the Company and the purchasers listed therein
10.3 Form of Warrant to purchase shares of Common Stock, dated
as of June 30, 1998, issued by the Company to the purchasers
99.1 Press Release dated July 1, 1998
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this Current Report to be signed on its behalf by
the undersigned, thereunto duly authorized in the City of San Jose, State of
California, on July 9, 1998.
SECURE COMPUTING CORPORATION
By: /s/ TIMOTHY MCGURRAN
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Timothy McGurran,
Senior Vice President and
Chief Financial Officer
EXHIBIT 3.1
CERTIFICATE OF DESIGNATION
OF
SERIES C CONVERTIBLE PREFERRED STOCK
OF
SECURE COMPUTING CORPORATION
Pursuant to Section 151 of the
Delaware General Corporation Law
Secure Computing Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that the following resolutions were duly adopted by the Board of Directors of
the Corporation pursuant to the authority of the Board of Directors granted by
Section 151 of the Delaware General Corporation Law.
RESOLVED, that pursuant to the authority granted to the Board of
Directors in accordance with the provisions of the Corporation's Certificate of
Incorporation, the Board of Directors hereby authorizes a series of the
Corporation's previously authorized Preferred Stock, par value $0.01 per share
(the "Preferred Stock"), to be issued pursuant to a Securities Purchase
Agreement between the Corporation and the Purchasers named therein (the
"Securities Purchase Agreement"), and hereby states the designation and number
of shares, and fixes the relative rights, preferences, privileges and
restrictions thereof as follows:
1. DESIGNATION AND AMOUNT.
The designation of this series, which consists of sixteen thousand
(16,000) shares (the "Preferred Shares ") of Preferred Stock, is the Series C
Convertible Preferred Stock (the "Series C Preferred Stock") and the face amount
shall be One Thousand Dollars ($1,000) per share (subject to ratable adjustment
in the event of any stock split or combination of the Series C Preferred Stock
and to equitable adjustment in the event of a reclassification of the Series C
Preferred Stock or other similar event)(the "Stated Value"). The date on which
the Preferred Shares are issued and sold pursuant to the Securities Purchase
Agreement is referred to herein as the "Issue Date".
2. DIVIDENDS. The Series C Preferred Stock will not bear dividends.
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3. PRIORITY.
(a) Payment upon Dissolution.
(i) Upon the occurrence of (x) any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, commenced by the Corporation or by its
creditors, as such, or relating to its assets or (y) the dissolution or other
winding up of the Corporation whether total or partial, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy proceedings,
or (z) any assignment for the benefit of creditors or any marshalling of the
material assets or material liabilities of the Corporation (each, a "Liquidation
Event"), no distribution shall be made to the holders of any shares of Junior
Securities (as defined below) unless, following the payment of preferential
amounts on all Senior Securities (as defined below), each Holder of Preferred
Shares (each, a "Holder" and collectively, the "Holders") shall have received
the Liquidation Preference (as defined below) with respect to each Preferred
Share then held by such Holder. In the event that upon the occurrence of a
Liquidation Event, and following the payment of preferential amounts on all
Senior Securities (as defined below), the assets available for distribution to
the Holders and the holders of Pari Passu Securities are insufficient to pay the
Liquidation Preference with respect to all of the outstanding Preferred Shares
and the preferential amounts payable to such holders, the entire assets of the
Corporation shall be distributed ratably among the Preferred Shares and the
shares of Pari Passu Securities in proportion to the ratio that the preferential
amount payable on each such share (which shall be the Liquidation Preference in
the case of a Preferred Share) bears to the aggregate preferential amount
payable on all such shares.
(ii) The "Liquidation Preference" with respect to a Preferred
Share shall mean an amount equal to the Stated Value of such Preferred Share.
"Junior Securities" shall mean the Common Stock and all other capital stock or
securities of the Corporation that are not Pari Passu Securities or do not have
a preference over the Series C Preferred Stock in respect of redemption or
distribution upon liquidation. "Pari Passu Securities" shall mean any securities
ranking PARI PASSU with the Series C Preferred Stock in respect of redemption or
distribution upon liquidation. "Senior Securities" shall mean any securities of
the Corporation which by their terms have a preference over the Series C
Preferred Stock in respect of redemption or distribution upon liquidation.
4. CONVERSION.
(a) Right to Convert. Each Holder shall have the right to convert, at
any time on or after the one hundred and eightieth (180th) day following the
Issue Date (the "Initial Conversion Date"), all or any part of the Preferred
Shares held by such Holder into such number of fully paid and non-assessable
shares ("Conversion Shares") of the Company's common stock, par value $0.01 per
share (the "Common Stock"), as is determined in accordance with the terms hereof
(a "Conversion"); provided, however, that in the event that either (i) the
Corporation enters into an agreement relating to a Change of Control Transaction
(as defined below), immediately upon which event the Corporation shall make a
public announcement of such transaction, (ii) a material
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adverse change in the business, operations, financial condition or prospects of
the Corporation since the Issue Date occurs or (iii) a Mandatory Redemption
Event (as defined below) occurs, (each of (i), (ii) and (iii) being referred to
herein as an "Early Conversion Event"), the Initial Conversion Date for purposes
hereof shall be deemed to be the first date on which an Early Conversion Event
occurs.
(b) Conversion Notice. In order to convert Preferred Shares, a Holder
shall send by facsimile transmission, at any time prior to 11:59 p.m., eastern
time, on the date on which such Holder wishes to effect such Conversion (the
"Conversion Date"), (i) a notice of conversion (a "Conversion Notice"), in
substantially the form of Exhibit A hereto, to the Corporation and to the
Corporation's transfer agent for the Common Stock (the "Transfer Agent") stating
the number of Preferred Shares to be converted, the applicable Conversion Price
(as defined below) and a calculation of the number of shares of Common Stock
issuable upon such Conversion and (ii) a copy of the certificate or certificates
representing the Preferred Shares being converted. The Holder shall thereafter
send the original of the Conversion Notice and of such certificate or
certificates to the Transfer Agent. The Corporation shall issue a new
certificate for Preferred Shares in the event that less than all of the
Preferred Shares represented by a certificate delivered to the Corporation in
connection with a Conversion are converted. Except as otherwise provided herein,
upon delivery of a Conversion Notice by a Holder in accordance with the terms
hereof, such Holder shall, as of the applicable Conversion Date, be deemed for
all purposes to be the record owner of the Common Stock to which such Conversion
Notice relates. In the case of a dispute between the Corporation and a Holder as
to the calculation of the Conversion Price or the number of Conversion Shares
issuable upon a Conversion, the Corporation shall promptly issue to such Holder
the number of Conversion Shares that are not disputed and shall submit the
disputed calculations to its independent accountant within one (1) Business Day
of receipt of such Holder's Conversion Notice. The Corporation shall cause such
accountant to calculate the Conversion Price as provided herein and to notify
the Corporation and such Holder of the results in writing no later than five (5)
Business Days following the day on which it received the disputed calculations.
Such accountant's calculation shall be deemed conclusive absent manifest error.
The fees of any such accountant shall be borne by the party whose calculations
were most at variance with those of such accountant.
(c) Number of Conversion Shares; Conversion Price. The number of
Conversion Shares to be delivered by the Corporation pursuant to a Conversion
shall be determined by dividing the aggregate Stated Value of the Preferred
Shares to be converted by the Conversion Price (as defined herein) in effect on
the applicable Conversion Date. Subject to adjustment as provided in Section 6
below, the "Conversion Price" with respect to a Preferred Share shall be equal
to the lesser of the Floating Conversion Price and the Fixed Conversion Price
(each as defined below). The "Floating Conversion Price" shall mean the lesser
of (A) the average Closing Bid Price (as defined below) for the Common Stock
during the period of five (5) Trading Days (as defined below) occurring
immediately prior to (but not including) the applicable Conversion Date and (B)
the average Closing Bid Price for the Common Stock during the period of fifteen
(15) Trading Days occurring immediately prior to (but not including) the
applicable Conversion Date. The "Fixed Conversion Price" shall mean one hundred
and three percent (103%) of the average Closing Bid Price for the Common Stock
during the period of fifteen (15)
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Trading Days occurring immediately prior to (but not including) the one hundred
and eightieth (180th) day following the Issue Date.
(d) Certain Definitions. "Trading Day" means any day on which the
Common Stock is traded on the principal securities exchange or market on which
the Common Stock is then traded. "Closing Bid Price" means, with respect to the
Common Stock, the closing bid price for the Common Stock occurring on a given
Trading Day on the principal securities exchange or trading market where such
security is listed or traded as reported by Bloomberg Financial Markets or, if
Bloomberg Financial Markets is not then reporting such prices, by a comparable
reporting service of national reputation selected by the Corporation and
reasonably acceptable to holders of a majority of the then outstanding Preferred
Shares (collectively, "Bloomberg") or if the foregoing does not apply, the last
reported bid price of such security in the over-the-counter market on the
electronic bulletin board for such security as reported by Bloomberg, or, if no
bid price is reported for such security by Bloomberg, the average of the bid
prices of all market makers for such security as reported in the "pink sheets"
by the National Quotation Bureau, Inc. If the Closing Bid Price cannot be
calculated for such security on any of the foregoing bases, the Closing Bid
Price of such security shall be the fair market value as reasonably determined
by an investment banking firm selected by the Holders of a majority of the then
outstanding Preferred Shares and reasonably acceptable to the Corporation, with
the costs of such appraisal to be borne by the Corporation. "Business Day" means
any day on which the New York Stock Exchange and commercial banks located in the
City of New York are open for business. "Change of Control Transaction" means
the sale, conveyance or disposition of all or substantially all of the assets of
the Corporation (including without limitation the sale or other conveyance of
any assets or common stock or other equity securities of any of the
Corporation's subsidiaries), or the effectuation of a transaction or series of
related transactions, in which more than 50% of the voting power of the
Corporation is disposed of, or the consolidation, merger or other business
combination of the Corporation or any of its subsidiaries with or into any other
entity, immediately following which the prior stockholders of the Corporation
fail to own, directly or indirectly, at least fifty percent (50%) of the
surviving entity.
(e) Delivery of Common Stock Upon Conversion. Upon receipt of a
Conversion Notice from a Holder pursuant to paragraph 4(b) above, the
Corporation shall, no later than the close of business on the third (3rd)
Business Day following the Conversion Date set forth in such Conversion Notice
(the "Delivery Date"), issue and deliver or cause to be delivered to such Holder
the number of Conversion Shares as shall be determined as provided herein. The
Corporation shall effect delivery of Conversion Shares to a Holder by, as long
as the Transfer Agent participates in the Depository Trust Company ("DTC") Fast
Automated Securities Transfer program ("FAST"), and as long as the Conversion
Shares are not required to bear any restrictive legend, crediting the account of
such Holder or its nominee at DTC through its Deposit Withdrawal Agent
Commission system with the number of Conversion Shares required to be delivered,
no later than the close of business on such Delivery Date. In the event that
Transfer Agent is not a participant in FAST or if a Holder so specifies in a
Conversion Notice or otherwise in writing, the Corporation shall effect delivery
of Conversion Shares by delivering to the Holder or its nominee physical
certificates representing such Conversion Shares, no later than the close of
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business on such Delivery Date. If any Conversion would create a fractional
Conversion Share, such fractional Conversion Share shall be disregarded and the
number of Conversion Shares issuable upon such Conversion, in the aggregate,
shall be the next higher number of Conversion Shares. Conversion Shares
delivered to the Holder shall not contain any restrictive legend as long as (A)
the resale or transfer (including without limitation a pledge) of the Conversion
Shares is registered pursuant to an effective registration statement and the
Holder has represented to the Corporation, in the related Conversion Notice or
otherwise in writing, that such Holder has resold or transferred such Conversion
Shares in accordance with the terms of the prospectus relating to such
registration statement, (B) such Holder provides the Corporation with an opinion
of counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions to the effect that such Conversion Shares can be sold
publicly without registration under the Securities Act (provided that such
opinion shall not be required for a sale or transfer of Conversion Shares to an
affiliate of the holder), (C) such Conversion Shares can be sold pursuant to
Rule 144 under the Securities Act or any successor provision ("Rule 144") and a
registered broker dealer provides to the Corporation a customary broker's Rule
144 letter and such Holder delivers to the Corporation a customary seller's
representation letter or (D) such Conversion Shares are eligible for resale
under Rule 144(k) or any successor provision, such Conversion Shares shall be
issued without any legend or other restrictive language and, with respect to
Conversion Shares upon which such legend is stamped, the Company shall issue new
certificates without such legend to the holder thereof upon request.
(f) Failure to Deliver Conversion Shares.
(i) In the event that the Corporation fails for any reason to
deliver to a Holder certificates representing the number of Conversion Shares
specified in the applicable Conversion Notice on or before the Delivery Date
therefor (a "Conversion Default"), and such failure continues for seven (7)
Business Days following the Delivery Date, the Corporation shall pay to such
Holder payments ("Conversion Default Payments") in the amount of (i) (N/365)
multiplied by (ii) the aggregate Stated Value of the Preferred Share(s)
represented by the Conversion Shares which remain the subject of such Conversion
Default multiplied by (iii) the lower of twenty-four percent (24%) and the
maximum rate permitted by applicable law (the "Default Interest Rate"), where
"N" equals the number of days elapsed between the original Delivery Date for
such Conversion Shares and the date on which all of the certificates
representing such Conversion Shares are issued and delivered to such Holder.
Amounts payable under this subparagraph (f) shall be paid to the Holder in
immediately available funds on or before the fifth (5th) Business Day of the
calendar month immediately following the calendar month in which such amounts
have accrued.
(ii) In the event that a Holder has not received certificates
representing the Conversion Shares by the tenth (10th) Business Day following a
Conversion Default, such Holder may, upon written notice (a "Withdrawal Notice")
delivered to the Corporation on such Business Day or on any Business Day
thereafter (unless, prior to the delivery of such notice, such Conversion Shares
are delivered to such Holder), withdraw its Conversion Notice with respect to
such Conversion Shares and regain its rights as a Holder of the Preferred Shares
that are the subject of such Conversion Default. In such event, the Conversion
Price that would otherwise be in effect when such Preferred Shares are
thereafter converted in accordance with the terms hereof
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shall be reduced by one percent (1%) for each day occurring during the period
immediately following such 10th Business Day until the day on which the such
Holder delivers a Withdrawal Notice to the Corporation; PROVIDED, HOWEVER, that
the maximum percentage by which such Conversion Price may be reduced hereunder
shall be fifty percent (50%). (For example, if such Conversion Default were to
continue for five days following such 10th Business Day, such Conversion Price
would be reduced by 5%; if for ten days, by 10%; and for fifty days or more,
50%, so that the number of Conversion Shares deliverable upon conversion of such
Preferred Shares would be increased proportionately). Upon delivery by a Holder
of a Withdrawal Notice, such Holder shall retain all of such Holder's rights and
remedies with respect to the Corporation's failure to deliver such Conversion
Shares (including without limitation the right to receive the cash payments
specified in subparagraph 4(f)(i) above).
(iii) In addition to any other remedies provided herein, each
Holder shall have the right to pursue actual damages for the Corporation's
failure to issue and deliver Conversion Shares on the applicable Delivery Date
(including, without limitation, damages relating to any purchase of shares of
Common Stock by such Holder to make delivery on a sale effected in anticipation
of receiving Conversion Shares upon Conversion, such damages to be in an amount
equal to (A) the aggregate amount paid by such Holder for the shares of Common
Stock so purchased minus (B) the aggregate Conversion Price for such Conversion
Shares), and such Holder shall have the right to pursue all remedies available
to it at law or in equity (including, without limitation, a decree of specific
performance and/or injunctive relief).
(g) Conversion at Maturity. On the date which is three (3) years
following the Issue Date (the "Maturity Date"), all outstanding Preferred Shares
shall be automatically converted into the number of shares of Common Stock equal
to the Stated Value of such Preferred Shares divided by the Conversion Price
then in effect (a "Conversion at Maturity"); PROVIDED, HOWEVER, that if, on a
Maturity Date, (i) the number of shares of Common Stock authorized, unissued and
unreserved for all other purposes, or held in the Corporation's treasury, is not
sufficient to effect the issuance and delivery of the number of Conversion
Shares into which all outstanding Preferred Shares are then convertible, (ii)
the Common Stock is not [actively] traded on the Nasdaq National Market, or
(iii) a Mandatory Redemption Event (as defined herein) has occurred and is
continuing, each Holder shall have the option, upon written notice to the
Corporation, to regain its rights as a holder of Preferred Shares, including
without limitation, the right to convert such Preferred Shares in accordance
with the terms of paragraphs 4(a) through 4(f) hereof and, upon delivery of such
notice, such Preferred Shares shall not be subject to a Conversion at Maturity
hereunder until the thirtieth (30th) day following the later of (a) the date on
which the event specified (i), (ii) or (iii) is no longer continuing and (b) the
date on which the Corporation delivers to each Holder written notice to such
effect, and in such event, such thirtieth day shall be deemed to be the Maturity
Date for purposes of this Certificate of Designation. If a Conversion at
Maturity occurs, the Corporation and each Holder shall follow the procedures for
Conversion set forth in this Section 4, with the Maturity Date deemed to be the
Conversion Date, except that the Holder shall not be required to send a
Conversion Notice as contemplated by paragraph 4(b).
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5. CONVERSION LIMITATIONS.
In no event shall a Holder be permitted to convert any Preferred Shares
in excess of the number of such shares, upon the Conversion of which:
(a) the number of Conversion Shares to be issued pursuant to such
Conversion, when added to the number of shares of Common Stock issued pursuant
to all prior Conversions of Preferred Shares, would exceed 19.99% of the number
of shares of Common Stock outstanding on the Issue Date (subject to equitable
adjustments from time to time for the events described in Section 6 below) (the
"Cap Amount"), except that such limitation shall not apply in the event that the
Corporation obtains the approval of the holders of a majority of the shares of
Common Stock for issuances of Common Stock in excess of such amount or the
Holders of a majority of the number of Preferred Shares then outstanding obtain
an opinion of counsel reasonably satisfactory to the Corporation and its counsel
that such approval is not required. Until such approval is obtained, no
purchaser of Preferred Shares pursuant to the Securities Purchase Agreement
(each, a "Purchaser" and together the "Purchasers") shall be issued, upon
Conversion of the Preferred Shares, Conversion Shares in an amount greater than
the product of (A) the Cap Amount times (B) a fraction, the numerator of which
is the number of Preferred Shares issued to such Purchaser pursuant to the
Securities Purchase Agreement and the denominator of which is the aggregate
amount of all of the Preferred Shares issued to the Purchasers pursuant to the
Securities Purchase Agreement (the "Allocation Amount"). In the event that any
Purchaser shall sell or otherwise transfer any of such Purchaser's Preferred
Shares, the transferee shall be allocated a pro rata portion of the remaining
unissued shares constituting such Purchaser's Allocation Amount. In the event
that any Holder shall convert all of such Holder's Preferred Shares into a
number of Conversion Shares which, in the aggregate, is less than such Holder's
Allocation Amount, then the difference between such Holder's Allocation Amount
and the number of Conversion Shares actually issued to such Holder shall be
allocated to the respective Allocation Amounts of the remaining Holders of
Preferred Shares on a pro rata basis in proportion to the number of Preferred
Shares then held by each such Holder. From and after the earlier to occur of (a)
the one hundred and eightieth day following the Initial Issue Date and (b) an
Early Conversion Date, in the event that any Holder's Allocation Amount
represents one hundred and fifty percent (150%) or less of (A) the number of
Conversion Shares into which the Preferred Shares then held by such Holder are
convertible at the Conversion Price then in effect plus (B) the number of
Conversion Shares into which such Holder has previously converted Preferred
Shares, such Holder shall have the right to require the Corporation, upon
written notice delivered by such Holder to the Corporation, (x) to prepare and
file with the Commission, within ten (10) days after receiving such notice, a
proxy statement in which the Corporation seeks the approval of its stockholders
for the transactions described herein and in the Securities Purchase Agreement
and Registration Rights Agreement (the "Proxy Statement"), (y) in the event that
the Corporation is notified that the Commission has no comments on the Proxy
Statement, to deliver the Proxy Statement to its stockholders and to hold a
special meeting of stockholders for the purpose of voting on the matters
described therein (a "Special Meeting") within forty five (45) days after
receiving such notification and (z) in the event that the Corporation receives
comments from the Commission on the Proxy Statement, to respond accurately and
completely to each such comment within ten (10) days of being notified of such
comment by the Commission, and to deliver the Proxy Statement to its
stockholders and hold a Special Meeting
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within thirty five (35) days after receiving notification from the Commission
that it has no further comments on the Proxy Statement); and
(b) (x) the number of shares of Common Stock beneficially owned by such
Holder (other than shares of Common Stock issuable upon conversion of such
Preferred Shares or which would otherwise be deemed beneficially owned except
for being subject to a limitation on conversion or exercise analogous to the
limitation contained in this subparagraph (b)) plus (y) the number of shares of
Common Stock issuable upon the Conversion of such Preferred Shares, would be
equal to or exceed (z) 4.99% of the number of shares of Common Stock then issued
and outstanding. As used herein, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules thereunder. To the extent that the limitation contained
in this paragraph 5(b) applies, the determination of whether Preferred Shares
are convertible (in relation to other securities owned by a Holder) and of which
Preferred Shares are convertible shall be in the sole discretion of such Holder,
and the submission of Preferred Shares for Conversion shall be deemed to be such
Holder's determination that such Preferred Shares are convertible pursuant to
the terms hereof, and the Corporation shall have no obligation whatsoever to
verify or confirm the accuracy of such determination. This paragraph may be
amended (i) in order to clarify an ambiguity or otherwise to give effect to such
limitation, by the Holders of two-thirds (2/3) of the Preferred Shares then
outstanding and (ii) for any other reason, with the further consent of the
holders of a majority of the shares of Common Stock then outstanding. Nothing
contained herein shall be deemed to restrict the right of a Holder to convert
Preferred Shares at such time as the Conversion thereof will not violate the
provisions of this subparagraph 5(b). The restriction contained in this
subparagraph 5(b) shall not apply in the event of a Conversion at Maturity or
upon the occurrence of a Mandatory Redemption Event (as defined below), in which
case such restriction shall continue to apply with respect to the Preferred
Shares held by the Holder or Holders who have not delivered a Mandatory
Redemption Notice (as defined below) to the Corporation, and may be irrevocably
amended by any Holder with respect to itself so that such limit shall be 9.99%
instead of 4.99% following at least seventy five (75) days' prior written notice
by such Holder to the Corporation.
6. ADJUSTMENTS TO CONVERSION PRICE.
(a) Adjustment to Fixed Conversion Price Due to Stock Split, Stock
Dividend, Etc. If, prior to the Conversion of all of the Preferred Shares, (A)
the number of outstanding shares of Common Stock is increased by a stock split,
a stock dividend on the Common Stock, a reclassification of the Common Stock,
the distribution to holders of Common Stock of rights or warrants entitling them
to subscribe for or purchase Common Stock at less than the then current market
price [(other than a sale of such rights or warrants for consideration that the
Corporation's Board of Directors has determined to represent fair value for such
rights or warrants)] thereof (based upon the subscription or exercise price of
such rights or warrants at the time of the issuance thereof) or other similar
event, the Fixed Conversion Price shall be proportionately reduced, or (B) the
number of outstanding shares of Common Stock is decreased by a reverse stock
split, combination or reclassification of shares or other similar event, the
Fixed Conversion Price shall be proportionately increased. In such event, the
Corporation shall notify the Transfer Agent of such change on or before the
effective date thereof. For purposes of this subparagraph
<PAGE>
(a), the market price per share of Common Stock on any date shall be the average
Closing Bid Price for the Common Stock on the five (5) consecutive Trading Days
occurring immediately prior to but not including the earlier of such date and
the Trading Day before the "ex" date, if any, with respect to the issuance or
distribution requiring such computation. The term "'ex' date", when used with
respect to any issuance or distribution, means the first Trading Day on which
the Common Stock trades regular way in the market from which such average
Closing Bid Price is then to be determined without the right to receive such
issuance or distribution.
(b) Adjustment to Conversion Price During Reference Period. If, prior
to the Conversion of all of the Preferred Shares, the number of outstanding
shares of Common Stock is increased or decreased by a stock split, a stock
dividend on the Common Stock, a combination, a reclassification of the Common
Stock or other similar event, and such event takes place during the reference
period for the determination of the Conversion Price for any Conversion thereof,
the Conversion Price shall be calculated giving appropriate effect to the stock
split, stock dividend, combination, reclassification or other similar event for
all Trading Days occurring during such reference period.
(c) Adjustment Due to Merger, Consolidation, Etc. If, prior to the
Conversion of all of the Preferred Shares, there shall be any merger,
consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a result
of which shares of Common Stock shall be changed into or exchanged for the same
or a different number of shares of the same or another class or classes of stock
or securities of the Corporation or another entity (an "Exchange Transaction"),
then such Holder shall (A) upon the closing of such Exchange Transaction, have
the right to receive, with respect to any shares of Common Stock then held by
such Holder, or which such Holder is then entitled to receive pursuant to a
Conversion Notice previously delivered by such Holder, (and without regard to
whether such shares contain a restrictive legend or are freely-tradeable) the
same amount and type of consideration (including without limitation, stock,
securities and/or other assets) and on the same terms as a holder of shares of
Common Stock would be entitled to receive in connection with the consummation of
such Exchange Transaction (the "Exchange Consideration"), and (B) upon the
Conversion of Preferred Shares occurring on a Conversion Date subsequent to the
closing of such Exchange Transaction, have the right to receive the Exchange
Consideration which such Holder would have been entitled to receive in
connection with such Exchange Transaction had such shares been converted
immediately prior to such Exchange Transaction at the Conversion Price in effect
on such Conversion Date, and in any such case appropriate provisions shall be
made with respect to the rights and interests of such Holder to the end that the
provisions hereof (including, without limitation, provisions for the adjustment
of the Conversion Price and of the number of shares issuable upon a Conversion)
shall thereafter be applicable as nearly as may be practicable in relation to
any securities thereafter deliverable upon the Conversion of such Preferred
Shares. The Corporation shall not effect any Exchange Transaction unless (i) it
first gives to each Holder twenty (20) days prior written notice of such
Exchange Transaction (an "Exchange Notice"), and makes a public announcement of
such event at the same time that it gives such notice and (ii) the resulting
successor or acquiring entity (if not the Corporation) assumes by written
instrument the obligations of the Corporation hereunder, including the terms of
this subparagraph 6(c), and under the Securities Purchase Agreement and
<PAGE>
related the Registration Rights Agreement by and among the Corporation and the
Purchasers named therein (the "Registration Rights Agreement").
(d) Distribution of Assets. If the Corporation or any of its
subsidiaries shall declare or make any distribution of cash, evidences of
indebtedness or other securities or assets (other than cash dividends or
distributions payable out of earned surplus for the current or the immediately
preceding year), or any rights to acquire any of the foregoing, to holders of
Common Stock (or to a holder of the common stock of any such subsidiary),
including any dividend or distribution in shares of capital stock of a
subsidiary of the Corporation (collectively, a "Distribution"), each Holder
shall have the right to receive, on the date such Distribution is made (the
"Distribution Date"), the amount of the Distribution allocated to each share of
Common Stock (or common stock of any such subsidiary) times the number of shares
of Common Stock issuable upon conversion of the Preferred Shares held by such
Holder on the Distribution Date, assuming for such purpose that such Preferred
Shares are convertible (regardless of whether any restriction on the ability of
such Holder to convert such Preferred Shares then applies) at the Conversion
Price applicable on the Distribution Date.
(e) Adjustment Due to Major Announcement. If the Corporation (i) makes
a public announcement that it intends to enter into a Change of Control
Transaction or (ii) any person, group or entity (including the Corporation)
publicly announces a tender offer, exchange offer or other transaction to
purchase 50% or more of the Common Stock (such announcement being referred to
herein as a "Major Announcement" and the date on which a Major Announcement is
made, the "Announcement Date"), then, in the event that a Holder seeks to
convert Preferred Shares on or following the Announcement Date, the Conversion
Price shall, effective upon the Announcement Date and continuing through the
fifth (5th) Business Day following the earlier to occur of the consummation of
the proposed transaction or tender offer, exchange offer or other transaction
and the Abandonment Date (as defined below), be equal to the lower of (x) the
average Closing Bid Price for the Common Stock on the five (5) Trading Days
immediately preceding (but not including) the Announcement Date and (y) the
Conversion Price that would otherwise be in effect on the Conversion Date for
such Preferred Shares. "Abandonment Date" means with respect to any proposed
transaction or tender offer, exchange offer or other transaction for which a
public announcement as contemplated by this paragraph 6(e) has been made, the
date upon which the Corporation (in the case of clause (i) above) or the person,
group or entity (in the case of clause (ii) above) publicly announces the
termination or abandonment of the proposed transaction or tender offer, exchange
offer or another transaction which caused this paragraph 6(e) to become
operative.
(f) Adjustment Pursuant to Other Agreements. In addition to and without
limiting in any way the adjustments provided in this Section 6, the Conversion
Price shall be adjusted as may be required by the provisions of the Registration
Rights Agreement.
(g) No Fractional Shares. If any adjustment under this Section would
create a fractional share of Common Stock or a right to acquire a fractional
share of Common Stock, such fractional share shall be disregarded and the number
of shares of Common Stock issuable upon Conversion shall be the next higher
number of shares or, at the option of the Corporation, shall be
<PAGE>
paid in cash in an amount calculated by multiplying the amount of the fractional
share times the Closing Bid Price used to calculate the Conversion Price for
such Conversion.
7. MANDATORY REDEMPTION BY HOLDER.
(a) Mandatory Redemption. In the event that a Mandatory Redemption
Event (as defined below) occurs, each Holder shall have the right to require the
Corporation to redeem all or any portion of the Preferred Shares held by such
Holder (a "Mandatory Redemption") at the Mandatory Redemption Price (as defined
herein) in same day funds. In order to exercise its right to effect a Mandatory
Redemption, a Holder must deliver a written notice (a "Mandatory Redemption
Notice") to the Corporation at any time on or before the Business Day following
the day on which such event is no longer continuing; PROVIDED, HOWEVER, that, in
the case of subparagraph (b)(vi) below, the following procedure shall be
followed in lieu thereof: (a) no sooner than twenty five (25) days nor later
than twenty (20) days prior to the Corporation's good faith estimate of the
consummation of a Change of Control Transaction, but not prior to the public
announcement of such Change of Control Transaction, the Corporation shall
deliver a written notice (a "Notice of Change of Control Transaction") to each
Holder, and (b) within five (5) days of delivery by the Corporation of a Notice
of Change of Control Transaction, each Holder who wishes to exercise its right
to effect a Mandatory Redemption hereunder shall deliver a Mandatory Redemption
Notice to the Corporation. The Mandatory Redemption Notice shall specify the
effective date of such Mandatory Redemption (the "Mandatory Redemption Date")
and the number of such shares to be redeemed. In the event that a Change of
Control Transaction occurs and the Corporation does not deliver to a Holder a
Notice of Change of Control Transaction within the time frames set forth above,
such Holder may exercise its right to a Mandatory Redemption hereunder by
delivering a Mandatory Redemption Notice to the Corporation (or to the surviving
or successor entity) at any time on or before the twentieth (20th) Business Day
following such Change of Control Transaction.
(b) Mandatory Redemption Event. Each of the following events shall be
deemed a "Mandatory Redemption Event":
(i) the Corporation fails for any reason (including without limitation
as a result of not having a sufficient number of shares of Common Stock
authorized and reserved for issuance or due to the Company's failure to obtain
the approval of its stockholders at a Special Meeting required to be held by the
terms of paragraph 5(a) above) to issue shares of Common Stock to a Holder and
deliver certificates representing such shares to such Holder as and when
required by the provisions hereof upon Conversion of any Preferred Shares, and
such failure continues for ten (10) Business Days;
(ii) any material representation or warranty made by the Corporation in
the Securities Purchase Agreement, the Registration Rights Agreement, the
Warrants or any other agreement, document, certificate or other instrument
delivered in connection with the transactions contemplated thereby is inaccurate
or misleading in any material respect as of the date such representation or
warranty was made;
<PAGE>
(iii) the Registration Statement described in the Registration Rights
Agreement (the "Registration Statement") is not declared effective by the one
hundred and thirty-fifth (135th) day following the earlier to occur of (a) the
Filing Deadline (as defined in the Registration Rights Agreement) and (b) the
date on which the Registration Statement is filed with the Commission, or if the
Registration Statement has been declared effective by such date and, while the
effectiveness of the Registration Statement is required to be maintained
pursuant to the terms of the Registration Rights Agreement, the effectiveness of
the Registration Statement lapses for any reason (including without limitation,
the issuance of a stop order) or is unavailable to the Holder for the sale of
Conversion Shares in accordance with the terms of the Registration Rights
Agreement, and such lapse or unavailability continues for a period of five (5)
Business Days, provided that the cause of such lapse or unavailability is not
due to factors solely within the control of the Holder and provided, further,
that, for purposes of this clause (iii), the Registration Statement shall not be
deemed to be unavailable to a Holder during any Blackout Period (as defined in
the Registration Rights Agreement);
(iv) the Corporation undertakes any voluntary action to terminate the
quotation or listing of the Common Stock on the Nasdaq National Market or on a
national securities exchange;
(v) the Corporation fails to obtain either (A) the approval of
stockholders described in paragraph 5(a) above on or before the ninetieth (90th)
day following the first request by a Holder pursuant to paragraph 5(a) to obtain
such approval or (B) the approval of stockholders described in paragraph 4.6 of
the Securities Purchase Agreement on or before the one hundred and eightieth
(180th) day following the Issue Date; and
(vi) there occurs the consolidation, merger or other business
combination of the Corporation or any of its subsidiaries with or into any other
entity (A) where the common stock of such other entity is not actively traded on
the Nasdaq National Market or the New York Stock Exchange (it being understood
that the common stock of such other entity will be deemed "actively traded" if
the average daily trading volume for such common stock on the principal exchange
or market on which such common stock is traded during the ninety (90) day period
immediately prior to the closing date of such transaction is no less than ninety
percent (90%) of the average daily trading volume for the Common Stock on the
principal exchange or market on which the Common Stock is traded during such
ninety day period) or (B) that is effected through a "leveraged buy-out".
(c) Mandatory Redemption Price. The "Mandatory Redemption Price" shall
be equal to the greater of (i) Stated Value of the Preferred Shares being
redeemed multiplied by one hundred and twenty five percent (125%) and (ii) an
amount determined by dividing the Stated Value of the Preferred Shares being
redeemed by the Conversion Price in effect on the Mandatory Redemption Date and
multiplying the resulting quotient by the average Closing Bid Price for the
Common Stock on the five (5) Trading Days immediately preceding (but not
including) the Mandatory Redemption Date.
<PAGE>
(d) Payment of Mandatory Redemption Price.
(i) The Corporation shall pay the Mandatory Redemption Price
to the Holder exercising its right to redemption on the later to occur of (i)
the fifth (5th) Business Day following the Mandatory Redemption Date and (ii)
the date on which the Preferred Shares being redeemed are delivered by the
Purchaser to the Corporation for cancellation (the "Mandatory Redemption Payment
Date").
(ii) If Corporation fails to pay the Mandatory Redemption
Price to the Holder within five (5) Business Days of the Mandatory Redemption
Payment Date, the Holder shall be entitled to interest thereon, from and after
the Mandatory Redemption Payment Date until the Mandatory Redemption Price has
been paid in full, at an annual rate equal to the Default Interest Rate.
(iii) If the Corporation fails to pay the Mandatory Redemption
Price within ten (10) Business Days of the Mandatory Redemption Payment Date,
then the Holder shall have the right at any time, so long as the Corporation
remains in default, to require the Corporation, upon written notice, to
immediately issue, in lieu of the Mandatory Redemption Price, the number of
shares of Common Stock of the Corporation equal to the Mandatory Redemption
Price divided by the Conversion Price in effect on such Conversion Date as is
specified by the Holder in writing to the Corporation, such Conversion Price to
be reduced by one percent (1%) for each day beyond such 10th Business Day in
which the failure to pay the Mandatory Redemption Price continues; PROVIDED,
HOWEVER, that the maximum percentage by which such Conversion Price may be
reduced hereunder shall be fifty percent (50%).
(e) Modification of Mandatory Redemption Provisions. The terms of this
Section 7 shall apply to the Series C Preferred Stock until such time, if any,
as such terms have been superseded, in whole or in part, by the terms of a
Determination Certificate (as defined below). A "Determination Certificate"
shall be a written instrument containing redemption provisions applicable to the
Series C Preferred Stock (or affirming the absence of any such provisions)
proposed by the Holders of a majority of the shares of Series C Preferred Stock
at the time outstanding and duly adopted by the Board of Directors of the
Corporation, provided that the approval of the Board of Directors shall be
deemed to be given if the adopting Holders furnish the Corporation with a
certificate to the effect that the Determination Certificate reflects a
determination made in consultation with the Corporation's auditors that the
changes contemplated thereby are necessary to qualify the Series C Preferred
Stock as stockholders' equity under generally accepted accounting principles.
The Corporation shall promptly give written notice of the adoption of any
Determination Certificate to all holders of its Series C Preferred Stock, shall
refer to the existence of any Determination Certificate in its annual financial
statements and shall supply to any stockholder upon request the full text
thereof. One or more Determination Certificates may be adopted pursuant to this
paragraph. The contents of a Determination Certificate shall be deemed to be
"facts" for purposes of Section 151 of the Delaware General Corporation Law.
<PAGE>
8. OPTIONAL REDEMPTION BY CORPORATION.
(a) Optional Redemption. If during any period of twenty (20)
consecutive Trading Days, the average Closing Bid Price for the Common Stock is
less than $5.00, the Corporation shall have the right to redeem all of the
outstanding Preferred Shares (other than those Preferred Shares with respect to
which a Conversion Notice has been submitted to the Corporation prior to the
Optional Redemption Date (as defined below), in which case such Preferred Shares
shall be converted into Conversion Shares in accordance with this Certificate of
Designation) in same day funds at the Optional Redemption Price (as defined
below) (an "Optional Redemption"), to the extent permitted by applicable law and
so long as the Corporation delivers to each Holder written notice thereof (an
"Optional Redemption Notice") on or before 11:59 (eastern time) on the twentieth
(20th) Business Day immediately prior to the date on which such Optional
Redemption is to be effected (the "Optional Redemption Date") and, at the same
time that it delivers such notice, the Corporation shall confirm delivery
thereof with each Holder by telephone, either personally or by voicemail
message.
(b) Optional Redemption Price. The "Optional Redemption Price" to be
paid by the Corporation to a Holder in the event of an Optional Redemption shall
be equal to (A) during the period of three hundred and sixty five (365) days
following the Issue Date, the aggregate Stated Value of the Preferred Shares
then held by such Holder times 113% and (B) at any time following such period,
the aggregate Stated Value of the Preferred Shares then held by such Holder
times a percentage such that such Holder shall receive an annualized return on
such Preferred Shares equal to 13%.
(c) Payment of Optional Redemption Price.
(i) The Corporation shall pay the Optional Redemption Price to
each Holder not later than the later to occur of (A) the fifth (5th) Business
Day following the Optional Redemption Date and (B) the date on which the
Corporation receives from such Holder the certificates representing the
Preferred Shares being redeemed (or, in the case of lost or destroyed
certificates, an affidavit from such Holder to such effect).
(ii) If the Corporation fails to pay the Optional Redemption
Price to a Holder within five (5) Business Days of the Optional Redemption Date
and so long as such Holder has tendered its Preferred Shares to the Corporation,
such Holder shall be entitled to interest thereon, from and after the Optional
Redemption Date until the Optional Redemption Price has been paid in full, at an
annual rate equal to the Default Interest Rate for the number of days elapsed
from such Optional Redemption Date until such amount is paid in full.
(iii) If the Corporation fails to pay the Optional Redemption
Price to a Holder within ten (10) Business Days of the Optional Redemption Date,
each Holder may, upon written notice to the Corporation, regain its rights as a
Holder of the Series C Preferred Stock and the Corporation shall return to such
Holder the certificates representing the Preferred Shares that were delivered to
the Corporation in connection with such Optional Redemption; in such event, the
Corporation may not effect an Optional Redemption thereafter.
<PAGE>
9. MISCELLANEOUS.
(a) Transfer of Preferred Shares. A Holder may sell or transfer all or
any portion of the Preferred Shares to any person or entity as long as such sale
or transfer is made in accordance with the terms of the Securities Purchase
Agreement. From and after the date of such sale or transfer, the transferee
thereof shall be deemed to be a Holder. Upon any such sale or transfer, the
Corporation shall, promptly following the return of the certificate or
certificates representing the Preferred Shares that are the subject of such sale
or transfer, issue and deliver to such transferee a new certificate in the name
of such transferee.
(b) Notices. Except as otherwise provided herein, any notice, demand or
request required or permitted to be given pursuant to the terms hereof, the form
or delivery of which notice, demand or request is not otherwise specified
herein, shall be in writing and shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission on or before 5:00 p.m.,
eastern time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) on the next Business Day after timely
delivery to an overnight courier and (iii) on the third Business Day after
deposit in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid), addressed to the parties as follows:
IF TO THE CORPORATION:
Secure Computing Corporation
One Alamaden Boulevard
Suite 400
San Jose, California 95113
Attn: Chief Financial Officer
Tel: (408) 918-6100
Fax: (408) 918-6204
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Jeffrey D. Saper, Esq.
Tel: (650) 493-9300
Fax: (650) 493-6811
and if to any Holder, to such address for such Holder as shall be designated by
such Holder in writing to the Corporation.
(c) Lost or Stolen Certificate. Upon receipt by the Corporation of
evidence of the loss, theft, destruction or mutilation of a certificate
representing Preferred Shares, and (in the case of loss, theft or destruction)
of indemnity reasonably satisfactory to the Corporation and the Transfer
<PAGE>
Agent, and upon surrender and cancellation of such certificate if mutilated, the
Corporation shall execute and deliver to the Holder a new certificate identical
in all respects to the original certificate.
(d) No Voting Rights. Except as provided by applicable law and
paragraph 9(g) below, the Holders of the Preferred Shares shall have no voting
rights with respect to the business, management or affairs of the Corporation;
provided that the Corporation shall provide each Holder with prior notification
of each meeting of stockholders (and copies of proxy statements and other
information sent to such stockholders).
(e) Remedies, Characterization, Other Obligations, Breaches and
Injunctive Relief. The remedies provided to a Holder in this Certificate of
Designation shall be cumulative and in addition to all other remedies available
to such Holder under this Certificate of Designation or under any Transaction
Document (as defined in the Securities Purchase Agreement), at law or in equity
(including without limitation a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing contained
herein shall limit such Holder's right to pursue actual damages for any failure
by the Corporation to comply with the terms of this Certificate of Designation.
The Corporation agrees with each Holder that there shall be no characterization
concerning this instrument other than as specifically provided herein. Amounts
set forth or provided for herein with respect to payments, conversion and the
like (and the computation thereof) shall be the amounts to be received by the
Holder hereof and shall not, except as expressly provided herein, be subject to
any other obligation of the Corporation (or the performance thereof). The
Corporation acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to the Holders and that the remedy at law for any such
breach may be inadequate. The Corporation agrees, in the event of any such
breach or threatened breach, each Holder shall be entitled, in addition to all
other available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security being
required.
(f) Failure or Delay not Waiver. No failure or delay on the part of a
Holder in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
(g) Protective Provisions.
So long as any shares of Series C Preferred Stock are
outstanding (except with respect to clauses (ii), (iii), (iv) and (v) below, in
which case so long as at least 2,400 shares of Series C Preferred Stock are
outstanding), the Corporation shall not, without first obtaining the approval of
the Holders of at least two-thirds (2/3) of the then outstanding shares of
Series C Preferred Stock:
<PAGE>
(i) alter or change the rights, preferences or privileges of
the Series C Preferred Stock or any other capital stock of the Corporation so as
to affect adversely the Series C Preferred Stock;
(ii) create any new class or series of capital stock having a
preference over or ranking pari passu with the Series C Preferred Stock as to
redemption or distribution of assets upon a Liquidation Event or any other
liquidation, dissolution or winding up of the Corporation;
(iii) increase the authorized number of shares of Preferred
Stock;
(iv) re-issue any shares of Series C Preferred Stock which
have been converted or redeemed in accordance with the terms hereof;
(v) issue any Pari Passu Securities or Senior Securities
(other than (x) shares of Series C Preferred Stock issued pursuant to the
Securities Purchase Agreement or (y) debt securities which are not convertible
into or exchangeable for Common Stock or any other equity or convertible
security of the Corporation); or
(vi) redeem, or declare, pay or make any provision for any
dividend or distribution with respect to, the Common Stock or any other capital
stock of the Corporation ranking junior to the Series C Preferred Stock as to
the distribution of assets upon liquidation, dissolution or winding up of the
Corporation.
In the event that Holders of at least two-thirds (2/3) of the then
outstanding shares of Series C Preferred Stock agree to allow the Corporation to
alter or change the rights, preferences or privileges of the shares of Series C
Preferred Stock, pursuant to the terms hereof, then the Corporation will deliver
notice of such approved change to the holders of the Series C Preferred Stock
that did not agree to such alteration or change (the "Dissenting Holders") and
the Dissenting Holders shall have the right for a period of thirty (30) days
following such delivery to convert their Preferred Shares pursuant to the terms
hereof as they existed prior to such alteration or change, or to continue to
hold such Preferred Shares. No such change shall be effective to the extent
that, by its terms, it applies to less than all of the Holders of Preferred
Shares then outstanding.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the Corporation has executed this Certificate of
Designation as of the _____ day of June, 1998.
SECURE COMPUTING CORPORATION
By:
--------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
NOTICE OF CONVERSION
The undersigned hereby elects to convert shares of Series C Convertible
Preferred Stock (the "Preferred Stock"), represented by stock certificate No(s).
______________ (the "Preferred Stock Certificates"), into shares of common stock
("Common Stock") of Secure Computing Corporation according to the terms and
conditions of the Certificate of Designation relating to the Preferred Stock
(the "Certificate of Designation"), as of the date written below. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Certificate of Designation.
[ ] (check box if shares of Common Stock have been resold) The undersigned
represents that the shares of Common Stock to be issued by the Company hereby
have been resold or transferred by the undersigned in accordance with the
provisions of the prospectus included in the Registration Statement.
Date of Conversion: ___________________________
Number of Shares of
Preferred Stock to be Converted: _____________
Applicable Conversion Price: _____________
Number of Shares of
Common Stock to be Issued: _____________
Name of Holder: ___________________________
Address: ___________________________
___________________________
___________________________
Signature: ________________________________
Name:
Title:
Holder Requests Delivery to be made: (check one)
[ ] By Delivery of Physical Certificates to the Above Address
[ ] Through Depository Trust Corporation
(Account ______________________________)
EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of June 30,
1998, by and between Secure Computing Corporation, a Delaware corporation (the
"Company"), and each of the entities whose names appear on the signature pages
hereof. Such entities are each referred to herein as a "Purchaser" and,
collectively, as the "Purchasers".
The Company wishes to sell to each Purchaser, and each Purchaser wishes
to purchase, on the terms and subject to the conditions set forth in this
Agreement, shares (the "Preferred Shares") of the Company's Series C Convertible
Preferred Stock, par value $0.01 per share (the "Preferred Stock") and related
Warrants in the form attached hereto as Exhibit A (the "Warrants"). The
Preferred Shares are convertible pursuant to the terms of a Certificate of
Designation relating to the Preferred Stock, the form of which is attached
hereto as Exhibit B (the "Certificate of Designation") into shares (the
"Conversion Shares") of the Company's common stock, par value $0.01 per share
(the "Common Stock"). The Warrants are exercisable into shares of Common Stock
(the "Warrant Shares") in accordance with their terms. The Preferred Shares, the
Conversion Shares, the Warrants and the Warrant Shares are collectively referred
to herein as the "Securities".
The Company has agreed to effect the registration of the Conversion
Shares and the Warrant Shares under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Rights Agreement of even date
herewith by and among the Company and the Purchasers (the "Registration Rights
Agreement"). The sale of the Preferred Shares and the Warrants by the Company to
the Purchasers will be effected in reliance upon the exemption from securities
registration afforded by the provisions of Regulation D ("Regulation D"), as
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act.
The Company and each Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES.
1.1 Agreement to Purchase and Sell. Upon the terms and subject to the
satisfaction or waiver of the conditions set forth herein, the Company agrees to
sell at the Closing (as defined below) and each Purchaser agrees to purchase the
number of Preferred Shares, together with Warrants to purchase the number of
shares of Common Stock, set forth below such Purchaser's name on the signature
pages hereof at a purchase price for such Preferred Shares and Warrants equal to
one thousand dollars ($1,000) times the number of Preferred Shares purchased by
such Purchaser (the "Purchase Price"). The Warrants will entitle each Purchaser
to purchase, at the exercise price stated therein, a number of shares of Common
Stock equal to the aggregate Stated Value (as defined in the Certificate of
Designation) of the Preferred Shares purchased by such Purchaser hereunder
divided by the average Closing Bid Price (as defined in the Certificate of
Designation) for the Common Stock
<PAGE>
during the period of fifteen (15) Trading Days (as defined in the Certificate of
Designation) occurring immediately prior to (but not including) the issue date
for the Warrants multiplied by ten percent (10%).
1.2 Closing. Subject to the satisfaction or waiver of the conditions
set forth herein, the closing of the purchase and sale of the Preferred Shares
and Warrants (the "Closing") will be deemed to occur when this Agreement and the
other Transaction Documents (as defined below) have been executed and delivered
by the Company and each Purchaser (which delivery may be effected by facsimile
transmission), and full payment of the Purchase Price has been made by each
Purchaser by wire transfer of immediately available funds against physical
delivery by the Company of duly executed certificates representing the Preferred
Shares and the Warrants purchased by such Purchaser at the Closing. The date on
which the Closing is deemed to occur is referred to herein as the "Closing
Date". It is anticipated that the Closing Date will occur on June 30, 1998 or
such later date as may be mutually agreed to by the parties.
1.3 Certain Definitions. When used herein, (A) "business day" shall
mean any day on which the New York Stock Exchange and commercial banks in the
city of New York are open for business, (B) an "affiliate" of a party shall mean
any person or entity controlling, controlled by or under common control with
that party and (C) "control" shall mean, with respect to an entity, the ability
to direct the business, operations or management of such entity, whether through
an equity interest therein or otherwise.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby makes the following representations and
warranties to the Company and agrees with the Company that, as of the date of
this Agreement and as of the Closing Date:
2.1 Authorization; Enforceability. Such Purchaser is duly and validly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization with full power and authority
to purchase the Preferred Shares and Warrants and to execute and deliver this
Agreement. This Agreement constitutes such Purchaser's valid and legally binding
obligation, enforceable in accordance with its terms, except as such enforcement
may be limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) general principles of equity.
2.2 Accredited Investor; Investment Intent. Such Purchaser is an
accredited investor as that term is defined in Rule 501 of Regulation D, and is
acquiring the Preferred Shares and Warrants solely for its own account as a
principal for investment purposes and not with a present view to the public
resale or distribution of all or any part thereof, except pursuant to sales that
are exempt from the registration requirements of the Securities Act and/or sales
registered under the Securities Act; provided, however that in making such
representation, such Purchaser does not agree (except as otherwise expressly set
forth in this Agreement or in the other Transaction Documents) to hold the
Securities for any minimum or specific term and reserves the right to sell,
transfer or otherwise dispose
<PAGE>
of the Securities at any time in accordance with the provisions of this
Agreement and with Federal and state securities laws applicable to such sale,
transfer or disposition.
2.3 Information. The Company has provided such Purchaser with
information regarding the business, operations and financial condition of the
Company, and has granted to such Purchaser the opportunity to ask questions of
and receive answers from representatives of the Company, its officers,
directors, employees and agents concerning the Company and materials relating to
the terms and conditions of the purchase and sale of the Preferred Shares and
Warrants hereunder. Neither such information nor any other investigation
conducted by such Purchaser or any of its representatives shall modify, amend or
otherwise affect such Purchaser's right to rely on the Company's representations
and warranties contained in this Agreement.
2.4 Limitations on Disposition. Such Purchaser acknowledges that,
except as provided in the Registration Rights Agreement, the Securities have not
been and are not being registered under the Securities Act and may not be
transferred or resold without registration under the Securities Act or unless
pursuant to an exemption therefrom.
2.5 Legend. Such Purchaser understands that the certificates
representing the Securities may bear at issuance a restrictive legend in
substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, and
may not be offered or sold unless a registration statement
under the Securities Act and applicable state securities laws
shall have become effective with regard thereto, or an
exemption from registration under the Securities Act and
applicable state securities laws is available in connection
with such offer or sale. Such securities are issued subject to
the provisions of (i) the Certificate of Designation relating
to the Series C Convertible Preferred Stock of Secure
Computing Corporation (the "Company"), (ii) a Securities
Purchase Agreement, dated as of June30, 1998, by and among the
Company and the purchasers named therein, and (iii) a
Registration Rights Agreement, dated as of June 30, 1998, by
and among the Company and such purchasers."
Notwithstanding the foregoing, it is agreed that, as long as
(A) the resale or transfer (including without limitation a pledge) of Securities
is registered pursuant to an effective registration statement and the holder
thereof has represented to the Company, in a related conversion or exercise
notice or otherwise in writing, that such holder has resold or transferred
Securities in accordance with the terms of the prospectus relating to such
registration statement, (B) such holder provides the Company with an opinion of
counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions to the effect that Securities can be sold publicly
without registration under the Securities Act (provided that such opinion shall
not be required for a sale or transfer of Securities to an affiliate of the
holder), (C) Securities can be sold pursuant to Rule 144 under the Securities
Act or any successor provision ("Rule 144") and a registered broker dealer
provides to the Company a customary broker's Rule 144 letter and such holder
delivers to the Company a customary seller's
<PAGE>
representation letter or (D) Securities are eligible for resale under Rule
144(k) or any successor provision, such Securities shall be issued without any
legend or other restrictive language and, with respect to Securities upon which
such legend is stamped, the Company shall issue new certificates without such
legend to the holder upon request.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties
to each Purchaser and agrees with each Purchaser that, as of the date of this
Agreement and as of the Closing Date:
3.1 Organization, Good Standing and Qualification. Each of the Company
and its subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization and has
all requisite power and authority to carry on its business as now conducted.
Each of the Company and its subsidiaries 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 the consolidated business, operations,
properties, financial condition, prospects or results of operations of the
Company and its subsidiaries taken as a whole or on the ability of the Company
to perform its obligations under the Transaction Documents or the Certificate of
Designation (a "Material Adverse Effect"). The term "subsidiaries" shall mean
entities in which the Company has an equity interest of 50% or greater.
3.2 Authorization; Consents. The Company has the requisite corporate
power and authority to enter into and perform its obligations under (i) this
Agreement, (ii) the Registration Rights Agreement, (iii) the Warrants and (iv)
all other agreements, documents, certificates or other instruments executed and
delivered by or on behalf of the Company at any Closing (the instruments
described in (i), (ii), (iii) and (iv) being collectively referred to herein as
the "Transaction Documents"), to execute and perform its obligations under the
Certificate of Designation, to issue and sell the Preferred Shares and the
Warrants to the Purchasers in accordance with the terms hereof, to issue the
Conversion Shares upon conversion of the Preferred Shares in accordance with the
Certificate of Designation and to issue the Warrant Shares upon exercise of the
Warrants. All corporate action on the part of the Company by its officers,
directors and stockholders necessary for (A) the authorization, execution and
delivery of, and the performance by the Company of its obligations under, the
Transaction Documents, and (B) the authorization, execution and filing of, and
the performance by the Company of its obligations under, the Certificate of
Designation has been taken, and no further consent or authorization of the
Company, its Board of Directors, its stockholders, any governmental agency or
organization (other than such approval as may be required under the Securities
Act and applicable state securities laws in respect of the Registration Rights
Agreement), or any other person or entity is required (pursuant to any rule of
the National Association of Securities Dealers, Inc. ("NASD")or otherwise,
except for any stockholder approval that may be required pursuant to NASD Rule
4460(i)).
3.3 Enforcement. The Transaction Documents and the Certificate of
Designation constitute valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except as such
enforcement may be limited by (i) applicable bankruptcy, insolvency,
<PAGE>
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity.
3.4 Disclosure Documents; Agreements; Financial Statements; Other
Information. The Company has filed with the Commission: (i) the Company's Annual
Report on Form 10-K for the year ended December 31, 1997, (ii) a Quarterly
Report on Form 10-Q for the quarter ended March 31, 1998, (iii) all Current
Reports on Form 8-K required to be filed with the Commission since December 31,
1997 and (iv) the Company's definitive Proxy Statement for its 1998 Annual
Meeting of Stockholders (collectively, the "Disclosure Documents"). The Company
is not aware of any event occurring on or prior to the Closing Date (other than
the transactions effected hereby) that would require the filing of, or with
respect to which the Company intends to file, a Form 8-K after the Closing. Each
Disclosure Document, as of the date of the filing thereof with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder and, as of the date of such filing, such Disclosure
Document did not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. All material agreements required to be filed as exhibits to the
Disclosure Documents have been filed as required. Neither the Company nor any of
its subsidiaries is in breach of any agreement to which it is a party or by
which it is bound where such breach is reasonably likely to have a Material
Adverse Effect. Except as set forth in the Disclosure Documents or any schedule
or exhibit attached hereto, the Company has no liabilities, contingent or
otherwise, other than liabilities incurred in the ordinary course of business
which, under generally accepted accounting principles, are not required to be
reflected in such financial statements and which, individually or in the
aggregate, are not material to the consolidated business or financial condition
of the Company and its subsidiaries taken as a whole. As of their respective
dates, the financial statements of the Company included in the Disclosure
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission with respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied at
the times and during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto, or (ii) in the case
of unaudited interim statements, to the extent they may exclude footnotes or may
be condensed or summary statements) and fairly present in all material respects
the financial position of the Company as of the dates thereof and the results of
its operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end adjustments). The written
information described in paragraph 2.3 above does not contain an untrue
statement of material fact or omit to state a material fact required in order to
make such information not misleading, and does not include any material,
non-public information.
3.5 Capitalization. The capitalization of the Company as of May 31,
1998, including its authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to
the Company's stock option plans, the number of shares issuable and reserved for
issuance pursuant to securities (other than the Preferred Stock) exercisable
for, or convertible into or exchangeable for any shares of Common Stock and the
number of shares initially to be reserved for issuance upon conversion of the
Preferred Shares and exercise of the Warrants is set
<PAGE>
forth on Schedule 3.5 hereto. All of such outstanding shares of capital stock
have been, or upon issuance will be, validly issued, fully paid and
non-assessable. No shares of the capital stock of the Company are subject to
preemptive rights or any other similar rights of the stockholders of the Company
or any liens or encumbrances created by or through the Company. Except as
disclosed on Schedule 3.5, or as contemplated herein, as of the date of this
Agreement and as of the Closing Date, there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into or exercisable
or exchangeable for, any shares of capital stock of the Company or any of its
subsidiaries, or arrangements by which the Company or any of its subsidiaries is
or may become bound to issue additional shares of capital stock of the Company
or any of its subsidiaries. There has been no material changes to the
information set forth on Schedule 3.5 since May 31, 1998.
3.6 Valid Issuance. The Preferred Shares are duly authorized and, when
issued, sold and delivered in accordance with the terms hereof, (i) will be duly
and validly issued, fully paid and nonassessable, free and clear of any taxes,
liens, claims, preemptive or similar rights or encumbrances imposed by or
through the Company, (ii) based in part upon the representations of each
Purchaser in this Agreement, will be issued, sold and delivered in compliance
with all applicable Federal and state securities laws and (iii) will be entitled
to all of the rights, preferences and privileges set forth in the Certificate of
Designation. The Warrants are duly authorized and, when issued, sold and
delivered in accordance with the terms hereof, (i) will be duly and validly
issued, fully paid and nonassessable, free and clear of any taxes, liens,
claims, preemptive or similar rights or encumbrances imposed by or through the
Company and (ii) based in part upon the representations of each Purchaser in
this Agreement, will be issued, sold and delivered in compliance with all
applicable Federal and state securities laws. The Conversion Shares are duly
authorized and, to the extent required pursuant to this Agreement, the other
Transaction Documents and the Certificate of Designation, reserved for issuance
and, when issued upon conversion of the Preferred Shares in accordance with the
terms of the Certificate of Designation, will be duly and validly issued, fully
paid and nonassessable, free and clear of any taxes, liens, claims, preemptive
or similar rights or encumbrances imposed by or through the Company. The Warrant
Shares are duly authorized and, upon the issuance thereof in accordance with the
terms of the Warrant, will be duly and validly issued, fully paid and
nonassessable, free and clear of any taxes, liens, claims, preemptive or similar
rights or encumbrances imposed by or through the Company.
3.7 No Conflict with Other Instruments. except as set forth in Schedule
3.7 hereto, neither the Company nor any of its subsidiaries is in violation of
any provisions of its charter, Bylaws or any other governing document or in
default (and no event has occurred which, with notice or lapse of time or both,
would constitute a default) under any provision of any instrument or contract to
which it is a party or by which it is bound, or of any provision of any Federal
or state judgment, writ, decree, order, statute, rule or governmental regulation
applicable to the Company, which would have a Material Adverse Effect. The (i)
execution, delivery and performance of this Agreement and the other Transaction
Documents, (ii) execution and filing of the Certificate of Designation, and
(iii) consummation of the transactions contemplated hereby and thereby
(including without limitation, the issuance of the Preferred Shares and the
Warrants and the reservation for issuance and issuance of the
<PAGE>
Conversion Shares and the Warrant Shares) 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 or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company or of any of its subsidiaries or the
triggering of any preemptive or anti-dilution rights or rights of first refusal
or first offer on the part of holders of the Company's securities.
3.8 Financial Condition; Taxes; Litigation.
3.8.1 The Company's financial condition is, in all material
respects, as described in the Disclosure Documents, except for changes in the
ordinary course of business and normal year-end adjustments that are not, in the
aggregate, materially adverse to the consolidated business or financial
condition of the Company and its subsidiaries taken as a whole. Except as
otherwise described in the Disclosure Documents, there has been no material
adverse change to the Company's business, operations, properties, financial
condition, prospects or results of operations since the date of the Company's
most recent audited financial statements contained in the Disclosure Documents.
3.8.2 The Company has filed all tax returns required to be
filed by it and paid all taxes which are due, except for taxes which it
reasonably disputes or which could not reasonably be expected to have a Material
Adverse Effect.
3.8.3 Neither the Company nor any of its subsidiaries is the
subject of any pending or, to the Company's knowledge, threatened inquiry,
investigation or administrative or legal proceeding by the Internal Revenue
Service, the taxing authorities of any state or local jurisdiction, the
Commission or any state securities commission or other governmental or
regulatory entity.
3.8.4 Except as described on Schedule 3.8.4, there is no
material claim, litigation or administrative proceeding pending, or, to the
Company's knowledge, threatened or contemplated, against the Company or any of
its subsidiaries, or against any officer, director or employee of the Company or
any such subsidiary in connection with such person's employment therewith.
Neither the Company nor any of its subsidiaries is a party to or subject to the
provisions of, any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which could reasonably be expected to have
a Material Adverse Effect.
3.9 Reporting Company; Form S-3. The Company is subject to the
reporting requirements of the Exchange Act, has a class of securities registered
under Section 12 of the Exchange Act, and has filed all reports required
thereby. The Company is eligible to register shares of its Common Stock on a
registration statement on Form S-3 under the Securities Act.
3.10 Acknowledgement of Dilution. The Company acknowledges that the
issuance of the Conversion Shares upon conversion of the Preferred Shares in
accordance with the terms of the Certificate of Designation and the issuance of
the Warrant Shares upon exercise of the Warrants may result in dilution of the
outstanding shares of Common Stock, which dilution may be substantial under
<PAGE>
certain market conditions. The Company further acknowledges that its obligation
to issue Conversion Shares upon conversion of the Preferred Shares and to issue
Warrant Shares upon exercise of the Warrants is unconditional and absolute
regardless of the effect of any such dilution.
3.11 Intellectual Property. The Company and its subsidiaries each owns
or possesses adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other intellectual
property rights necessary to conduct the business now operated by it (the
"Intellectual Property Rights"), and is not aware of any infringement by a third
party with respect to such rights or of any infringement by it or conflict with
asserted rights of others that, in any such case, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect. The Intellectual Property Rights are valid and
enforceable and no registration relating thereto has lapsed, expired or
terminated or is the subject of any claim or proceeding that could result in any
such lapse, expiration or termination. The Company and its subsidiaries each has
complied in all material respects with its obligations pursuant to any agreement
relating to the Intellectual Property Rights that are the subject of licenses
granted by third parties.
3.12 Registration Rights; Rights of Participation. Except as described
on Schedule 3.12 hereto, (A) the Company has not granted or agreed to grant to
any person or entity any rights (including "piggy-back" registration rights) to
have any securities of the Company registered with the Commission or any other
governmental authority which has not been satisfied and (B) no person or entity,
including, but not limited to, current or former stockholders of the Company,
underwriters, brokers, agents or other third parties, has any right of first
refusal, preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by this Agreement, the other
Transaction Documents or the Certificate of Designation which has not been
waived.
3.13 Trading on Nasdaq. The Common Stock is authorized for quotation on
the Nasdaq National Market, and trading in the Common Stock on Nasdaq has not
been suspended. The Company is in full compliance with the continued designation
criteria of the Nasdaq National Market, and does not reasonably anticipate that
the Common Stock will lose its designation as a Nasdaq National Market Security,
whether by reason of the transactions contemplated by this Agreement, the other
Transaction Documents or the Certificate of Designation, and is not aware of any
inquiry by or received any notice from the National Association of Securities
Dealers, Inc. ("NASD") regarding any failure or alleged failure by the Company
to comply with such criteria.
3.14 Solicitation. Neither the Company nor any of its subsidiaries or
affiliates, nor any person acting on its or their behalf, (i) has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the Preferred Shares or
(ii) has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under any circumstances that would
require registration of the Preferred Shares under the Securities Act.
3.15 Fees. Except as described on Schedule 3.15 hereto, the Company is
not obligated to pay any compensation or other fee, cost or related expenditure
to any underwriter, broker, agent or
<PAGE>
other representative in connection with the transactions contemplated hereby.
3.16 Foreign Corrupt Practices. To the knowledge of the Company,
neither the Company, nor any of its subsidiaries nor any director, officer,
agent, employee or other person acting on behalf of the Company or any
subsidiary, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political activity,
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee, or (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
3.17 Other Issuances of Securities. The Company has not issued (and
will not issue) any shares of Common Stock or shares of any series of preferred
stock or other securities or instruments convertible into, exchangeable for or
otherwise entitling the holder thereof to acquire shares of Common Stock which
would be integrated with the sale of the Preferred Shares to the Purchasers, or
the issuance of the Conversion Shares upon conversion thereof, for purposes of
determining whether stockholder approval is required under the designation
criteria of the Nasdaq National Market or otherwise.
3.18 Title. The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the Company
and its subsidiaries, in each case free and clear of all liens, claims,
encumbrances and defects, except for liens, claims, encumbrances or defects
which do not materially affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company and its
subsidiaries. Any real property and facilities held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings by the Company
and its subsidiaries.
3.19 Regulatory Permits. The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses where the lack of any such certificate, authorization or permit would
have a Material Adverse Effect, and neither the Company nor any such subsidiary
has received any notice of proceedings relating to the revocation or material
modification of any such certificate, authorization or permit.
4. COVENANTS OF THE COMPANY AND THE PURCHASERS.
4.1 Corporate Existence. The Company shall, so long as any Purchaser or
any affiliate of such Purchaser beneficially owns any Securities, maintain its
corporate existence in good standing and shall pay all taxes owed by it when due
except for taxes which the Company reasonably disputes or as to which the
failure to pay could not reasonably be expected to have a Material Adverse
Effect.
<PAGE>
4.2 Provision of Information. The Company shall provide each Purchaser
with copies of its annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K, press releases and proxy statements and other
materials sent to stockholders, in each such case promptly after the filing
thereof with the Commission, until the conversion or redemption of all of the
Preferred Shares.
4.3 Form D; Blue-Sky Qualification. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Purchaser promptly after such filing. The Company shall, on
or before the Closing Date, take such action as is necessary to qualify the
Preferred Shares for sale under applicable state or "blue-sky" laws or obtain an
exemption therefrom, and shall provide evidence of any such action to each
Purchaser at or prior to the Closing.
4.4 Reporting Status. As long as any Purchaser or any affiliate of such
Purchaser beneficially owns any Securities and until the date on which any of
the foregoing may be sold to the public pursuant to Rule 144(k) (or any
successor rule or regulation), (i) the Company shall timely file with the
Commission all reports required to be so filed pursuant to the Exchange Act and
(ii) the Company shall not terminate its status as an issuer required by the
Exchange Act to file reports thereunder even if the Exchange Act or the rules or
regulations thereunder would permit such termination. The Company agrees to file
with the Commission a Form 8-K describing the terms of the transactions
contemplated by this Agreement and the other Transaction Documents, with the
Transaction Documents attached to such Form 8-K as an exhibit thereto, on or
before the fifteenth (15th) day following the Closing Date in the form required
by the Exchange Act. On or before the business day immediately following the
Closing Date, the Company agrees to issue a press release describing all of the
material terms of the transaction consummated at the Closing.
4.5 Reservation of Common Stock. The Company shall at all times have
authorized and reserved for issuance, free from any preemptive rights, solely
for the purpose of effecting conversions of the Preferred Shares and exercise of
the Warrants, such number of its shares of Common Stock as shall from time to
time be sufficient to effect the conversion of all of the Preferred Shares and
exercise of all of the Warrants (the "Reserved Amount"). As of the Closing Date,
the Reserved Amount shall be equal to no less than 125% of the number of shares
of Common Stock issuable upon conversion of all of the Preferred Shares plus
100% of the number of shares of Common Stock issuable upon exercise of all of
the Warrants to be issued at the Closing (assuming for such purpose that such
conversion or exercise were to occur as of the Closing Date). If on any date the
Reserved Amount is less than 112.5% of the number of shares of Common Stock then
issuable upon conversion of all of the Preferred Shares plus 100% of the number
of shares of Common Stock issuable upon exercise of all of the Warrants then
outstanding (assuming for such purpose that such conversion or exercise were to
occur as of such date), the Company shall take action (including without
limitation seeking stockholder approval for the authorization or reservation of
additional shares of Common Stock) as soon as practicable (but in no event later
than the fifth (5th) business day or, in the event that stockholder approval is
required, the sixtieth (60th) day following receipt by the Company of notice
thereof from a Purchaser) to increase the Reserved Amount to no less than 125%
of the number of shares of Common Stock into which such outstanding Preferred
Shares are then convertible plus 100% of the number of
<PAGE>
shares of Common Stock issuable upon the exercise of such outstanding Warrants
are exercisable. The Company shall not reduce the number of shares reserved for
issuance hereunder without the written consent of the holders of two-thirds of
the Preferred Shares then outstanding. Any determination made hereunder as to
the number of shares of Common Stock issuable upon the conversion of Preferred
Shares or exercise of Warrants shall be made without regard to any restriction
on such conversion or exercise that might otherwise exist under this Agreement,
the other Transaction Documents or the Certificate of Designation.
4.6 Stockholder Meeting. The Company agrees that, on or prior to the
date which is one hundred and eighty (180) days following the Closing Date, it
will hold a special meeting of its stockholders at which it will recommend that
such stockholders approve the transactions contemplated by this Agreement, the
other Transaction Documents and the Certificate of Designation.
4.7 Use of Proceeds. The Company shall use the proceeds from the sale
of the Preferred Shares and the Warrants for general corporate purposes only, in
the ordinary course of its business and consistent with past practice, and shall
not use such proceeds to make a loan to any employee, officer or director of the
Company or to repurchase or pay a dividend on shares of Common Stock, except in
connection with a stock repurchase at the original purchase price therefor (as
long as such repurchase is effected at a purchase price for the shares of Common
Stock being repurchased which is less than the then current market value of the
Common Stock) from an employee under a stock option plan or other similar
agreement in effect on the date hereof.
4.8 Transactions with Affiliates. The Company agrees that any
transaction or arrangement between it or any of its subsidiaries and any
affiliate or employee of the Company shall be effected on an arms' length basis
in accordance with customary commercial practice and shall be approved by a
majority of the Company's outside directors.
4.9 Quotation on Nasdaq. The Company shall (i) promptly following the
Closing take such action as may be necessary to include the Conversion Shares
and the Warrant Shares on the Nasdaq National Market, and (ii) use its best
efforts to maintain the designation and quotation, or listing, of the Common
Stock on the Nasdaq National Market, the New York Stock Exchange or the American
Stock Exchange.
4.10 Use of Purchaser Name. Except as may be required by applicable
law, the Company shall not use, directly or indirectly, any Purchaser's name or
the name of any of its affiliates in any advertisement, announcement, press
release or other similar communication unless it has received the prior written
consent of any Purchaser for the specific use contemplated or as otherwise
required by applicable law or regulation.
4.11 Company's Instructions to Transfer Agent. On or prior to the
Closing Date, the Company shall execute and deliver irrevocable instructions to
its transfer agent (the "Transfer Agent") (i) to issue certificates representing
Conversion Shares upon conversion of the Preferred Shares in accordance with the
terms of the Certificate of Designation and receipt of a valid Conversion Notice
(as defined in the Certificate of Designation) from a Purchaser, in the amount
specified in such Conversion
<PAGE>
Notice, in the name of such Purchaser or its nominee, (ii) to issue certificates
representing Warrant Shares upon exercise of the Warrants in accordance with
their terms and receipt of a valid Exercise Notice (as defined in the Warrants)
from a Purchaser, in the amount specified in such Exercise Notice in the name of
such Purchaser or its nominee and (iii) to deliver such certificates to such
Purchaser no later than the close of business on the third (3rd) business day
following the related Conversion Date (as defined in the Certificate of
Designation) or Exercise Date (as defined in the Warrant), as the case may be.
As long as the Company shall instruct the transfer agent that, in lieu of
delivering physical certificates representing shares of Common Stock to a
Purchaser upon conversion of the Preferred Shares, or exercise of the Warrants,
and as long as the Transfer Agent is a participant in the Depository Trust
Company ("DTC") Fast Automated Securities Transfer program, and such Purchaser
has not informed the Company that it wishes to receive physical certificates
therefor, the transfer agent may effect delivery of Conversion Shares or Warrant
Shares, as the case may be, by crediting the account of such Purchaser or its
nominee at DTC for the number of shares for which delivery is required hereunder
within the time frame specified above for delivery of certificates. The Company
represents to and agrees with each Purchaser that it will not give any
instruction to the Transfer Agent that will conflict with the foregoing
instruction or otherwise restrict such Purchaser's right to convert the
Preferred Shares or to receive Conversion Shares in accordance with the terms of
the Certificate of Designation or to exercise the Warrant or to receive Warrant
Shares upon exercise of the Warrants. In the event that the Company's
relationship with the Transfer Agent should be terminated for any reason, the
Transfer Agent shall continue acting as transfer agent pursuant to the terms
hereof until such time that a successor transfer agent is appointed by the
Company and receives the instructions described above.
4.12 Capital Raising Limitation. The Company will not, during the
ninety (90) day period following the Closing Date, offer for sale or sell any
Common Stock (or any security convertible into, or exercisable or exchangeable
for, Common Stock) (the "Capital Raising Limitation"). The Capital Raising
Limitation will not apply to (i) a transaction involving the issuance of Common
Stock in a registered firm-commitment underwritten public offering (other than
an offering conducted pursuant to Rule 415 under the Securities Act), (ii) the
issuance of securities upon exercise or conversion of the Company's options,
warrants or other convertible securities outstanding on the date hereof or (iii)
the grant of options or warrants, or the issuance of additional securities,
under any Company stock option or restricted stock plan or similar equity
incentive plan or arrangement in effect on the date hereof for the benefit of
the Company's employees, directors or consultants.
4.13 Right of First Offer. Prior to any offer or sale, other than
pursuant to a firm-commitment, underwritten public offering, by the Company of
Common Stock (or any securities convertible or exercisable into or exchangeable
for Common Stock) during the one (1) year period following the Closing Date (the
"First Offer Period"), the Company must first deliver to each Purchaser written
notice describing the proposed issuance, including the terms and conditions
thereof, and provide such Purchaser with an option during the five (5) business
day period following delivery of such notice to purchase up to its proportionate
share (based on the number of Preferred Shares purchased by such Purchaser
hereunder relative to the number of Preferred Shares purchased by all of the
Purchasers hereunder) of the securities being offered on the same terms as
contemplated by such
<PAGE>
issuance. In the event that such Purchaser either does not give notice within
such five business day period that it intends to exercise the foregoing option
or informs the Company in writing that it does not intend to participate in such
issuance, the Company may offer to a third party the option to purchase up to,
in the aggregate, the amount of securities which were declined by such
Purchaser, on the same terms as were offered to such Purchaser.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Purchasers' Obligations at Closing. Each Purchaser's
obligations at the Closing, including without limitation its obligation to
purchase Preferred Shares and Warrants at the Closing, are conditioned upon the
fulfillment (or waiver by such Purchaser) of each of the following events as of
the Closing Date:
5.1.1 the representations and warranties of the Company set
forth in this Agreement shall be true and correct in
all material respects as of such date as if made on
the Closing Date;
5.1.2 the Company shall have complied with or performed in
all material respects all of the agreements,
obligations and conditions set forth in this
Agreement that are required to be complied with or
performed by the Company on or before the Closing;
5.1.3 the Company shall have delivered to such Purchaser a
certificate, signed by an officer of the Company,
certifying that the conditions specified in
paragraphs 5.1.1 and 5.1.2 above have been fulfilled
as of the Closing;
5.1.4 the Company shall have filed the Certificate of
Designation with the Secretary of State of the State
of Delaware and shall have furnished such Purchaser
with a file-stamped copy thereof;
5.1.5 the Company shall have delivered to such Purchaser an
opinion of counsel for the Company, dated as of such
date, in substantially the form set forth on Exhibit
5.1.5 hereto
5.1.6 the Company shall have delivered duly executed
certificates representing the Preferred Shares and
the Warrants being so purchased;
5.1.7 the Company shall have executed and delivered the
Registration Rights Agreement;
5.1.8 the Common Stock shall be designated for quotation
and actively traded on the Nasdaq National Market;
<PAGE>
5.1.9 there shall have been no material adverse change in
the Company's consolidated business or financial
condition since the date of the Company's most recent
audited financial statements contained in the
Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for
issuance one hundred and twenty five percent (125%)
of the aggregate number of shares of Common Stock
issuable upon conversion of all of the Preferred
Shares plus one hundred percent (100%) of the
aggregate number of shares of Common Stock issuable
upon exercise of all of the Warrants (such number to
be determined using the Conversion Price or exercise
price in effect on the Closing Date without regard to
any restriction on such conversion or exercise that
might otherwise exist pursuant to this Agreement, any
other Transaction Document or the Certificate of
Designation) to be issued at the Closing;
5.1.11 Jeffrey Waxman and Timothy McGurran shall have
executed and delivered an irrevocable agreement
addressed to the Company regarding such person's
agreement to refrain, during the six month period
beginning on the Closing Date, from selling any of
such shares of Common Stock at a price per share of
less than fifteen dollars ($15.00);
5.1.12 Jeffrey Waxman and Timothy McGurran shall have
executed and delivered an irrevocable agreement
addressed to the Company regarding such person's
agreement to vote such shares in favor of any
proposal made at or in connection with any meeting of
the holders of the Company's Common Stock regarding
(i) approval of the transactions contemplated herein
or (ii) the authorization of additional shares of
Common Stock for issuance as Conversion Shares; and
5.1.13 the Company shall have notified such Purchaser in
writing of the name, address, and telephone and fax
numbers of, and the name of a contact person at, the
Transfer Agent for the purpose of delivering
Conversion Notices (as defined in the Certificate of
Designation).
5.2 Conditions to Company's Obligations at the Closing. The Company's
obligations at the Closing are conditioned upon the fulfillment of each of the
following events as of the Closing Date:
5.2.1 the representations and warranties of each Purchaser
shall be true and correct in all material respects as
of such date as if made on the Closing Date; and
<PAGE>
5.2.2 each Purchaser shall have complied with or performed
all of the agreements, obligations and conditions set
forth in this Agreement that are required to be
complied with or performed by the Purchaser on or
before the Closing; and
5.2.3 each Purchaser shall have tendered payment of the
Purchase Price for the Preferred Shares and Warrant
to be purchased by such Purchaser.
6. MISCELLANEOUS.
6.1 Survival; Severability. The representations, warranties, covenants
and indemnities made by the parties herein shall survive the Closing
notwithstanding any due diligence investigation made by or on behalf of the
party seeking to rely thereon. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that in such case the parties shall negotiate
in good faith to replace such provision with a new provision which is not
illegal, unenforceable or void, as long as such new provision does not
materially change the economic benefits of this Agreement to the parties.
6.2 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement. The Purchaser may assign its rights and obligations
hereunder, in connection with any private sale or transfer of the Preferred
Shares in accordance with the terms hereof, as long as, as a condition precedent
to such transfer, the transferee (i) provides the Company with prior notice of
the transfer, including the identity and address of the proposed transferee and
the number of shares to be transferred and (ii) executes an acknowledgment
agreeing to be bound by the applicable provisions of this Agreement, in which
case the term "Purchaser" shall be deemed to refer to such transferee as though
such transferee were an original signatory hereto. The Company may not assign it
rights or obligations under this Agreement.
6.3 No Reliance. Each party acknowledges that (i) it has such knowledge
in business and financial matters as to be fully capable of evaluating this
Agreement, the other Transaction Documents and the transactions contemplated
hereby and thereby, (ii) it is not relying on any advice or representation of
the other party in connection with entering into this Agreement, the other
Transaction Documents or such transactions (other than the representations made
in this Agreement or the other Transaction Documents), (iii) it has not received
from such party any assurance or guarantee as to the merits (whether legal,
regulatory, tax, financial or otherwise) of entering into this Agreement or the
other Transaction Documents or the performance of its obligations hereunder and
thereunder, and (iv) it has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the extent that it
has deemed necessary, and has entered into this Agreement
<PAGE>
and the other Transaction Documents based on its own independent judgment and on
the advice of its advisors as it has deemed necessary, and not on any view
(whether written or oral) expressed by such party.
6.4 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of the other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser hereunder. Nothing contained herein or in any other agreement or
document delivered at the Closing, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
Each Purchaser shall be entitled to protect and enforce its rights, including
without limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such purpose.
6.5 Injunctive Relief. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the Purchaser and that
the remedy or remedies at law for any such breach will be inadequate and agrees,
in the event of any such breach, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate and specific
performance of such obligations without the necessity of showing economic loss.
6.6 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed under the laws of the State of New York without regard to the
conflict of laws provisions thereof. Each party hereby irrevocably submits to
the non-exclusive jurisdiction of the state and federal courts sitting in the
City of New York, borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
6.8 Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
<PAGE>
6.9 Notices. Any notice, demand or request required or permitted to be
given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., eastern time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
third business day after deposit in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid), addressed to the parties as follows:
IF TO THE COMPANY:
Secure Computing Corporation
One Alamaden Boulevard
Suite 400
San Jose, California 95113
Attn: Chief Financial Officer
Tel: (408) 918-6100
Fax: (408) 918-6204
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Jeffrey D. Saper, Esq.
Tel: (650) 493-9300
Fax: (650) 493-6811
and if to any Purchaser, to such address for such Purchaser as shall appear on
the signature page hereof executed by such Purchaser, or as shall be designated
by such Purchaser in writing to the Company.
6.10 Expenses. The Company and each Purchaser each shall pay all costs
and expenses that it incurs in connection with the negotiation, execution,
delivery and performance of this Agreement, provided, however, that the Company
shall reimburse the Purchasers for all out-of-pocket expenses (including without
limitation legal fees and expenses) incurred by it in connection with its due
diligence investigation of the Company and the negotiation, preparation,
execution, delivery and performance of the Certificate of Designation, this
Agreement and the other Transaction Documents in an amount not to exceed twenty
five thousand dollars ($25,000).
6.11 Entire Agreement; Amendments. This Agreement and the other
Transaction Documents constitute the entire agreement between the parties with
regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between or
<PAGE>
among the parties. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the holders of at least two-thirds (2/3) of the
Preferred Shares then outstanding, and no provision hereof may be waived other
than by a written instrument signed by the party against whom enforcement of any
such waiver is sought.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
SECURE COMPUTING CORPORATION
By:
-------------------------------
Name:
Title:
PURCHASER NAME:
-----------------------------
By:
-------------------------------
Name:
Title:
ADDRESS:
---------------------------------
---------------------------------
Tel:
----------------------------
Fax:
----------------------------
Number of Shares of Series C Preferred Stock to be Purchased: _______________
Number of Shares of Common Stock represented by
the Warrants to be Purchased: _______________
EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 30,
1998, by and among Secure Computing Corporation, a Delaware corporation (the
"Company"), and each of the entities whose names appear on the signature pages
hereof. Such entities are each referred to herein as a "Purchaser" and,
collectively, as the "Purchasers".
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"Securities Purchase Agreement"), to issue and sell to each Purchaser shares
(the "Preferred Shares") of the Company's Series C Convertible Preferred Stock,
par value $0.01 per share (the "Preferred Stock"), and a Warrant (each, a
"Warrant" and, when taken together with all of the warrants issued pursuant to
the Securities Purchase Agreement, the "Warrants") entitling the holder thereof
to purchase shares (the "Warrant Shares") of Common Stock. The Preferred Shares
are convertible pursuant to the Company's Certificate of Designation (the
"Certificate of Designation") into shares (the "Conversion Shares") of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"). In order
to induce the Purchasers to enter into the Securities Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended (the "Securities Act"), and under applicable state
securities laws. Capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Securities Purchase Agreement.
In consideration of each Purchaser entering into the Securities
Purchase Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "Blackout Period" means such day or days, not to exceed an
aggregate of thirty (30) days during any period of twelve (12) consecutive
months, with respect to which the Board of Directors of the Company determines
in good faith (A) that an amendment or supplement to the Registration Statement
(as defined below) or prospectus contained therein is necessary, in light of
subsequent events, in order to correct a material misstatement made therein or
to include information the absence of which would render the Registration
Statement or such prospectus materially misleading and (B) that the filing of
such amendment or supplement would result in the disclosure of information which
the Company has a bona fide business purpose for preserving as confidential;
provided that the Company shall be entitled to impose no more than two (2)
Blackout Periods during any period of twelve (12) consecutive months;
(b) "Closing Date" shall have the meaning specified in the
Securities Purchase Agreement;
(c) "Filing Deadline" means the forty-fifth (45th) day
following the Closing Date;
<PAGE>
(d) "Registration Deadline" means the ninetieth (90th) day
following the Closing Date;
(e) "Holder" means any person owning or having the right to
acquire, through conversion of Preferred Shares or exercise of the Warrant,
Registrable Securities, including initially each Purchaser and thereafter any
permitted assignee thereof;
(f) "Register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement or
statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act ("Rule 415") or any successor rule providing for the offering
of securities on a continuous or delayed basis ("Registration Statement"), and
the declaration or ordering of effectiveness of the Registration Statement by
the Securities and Exchange Commission (the "Commission"); and
(g) "Registrable Securities" means the Conversion Shares and
the Warrant Shares and any other shares of Common Stock issuable pursuant to the
terms of the Preferred Stock or of the Warrants, whether as a dividend, payment
of a redemption price or otherwise, and any shares of capital stock issued or
issuable from time to time (with any adjustments) in replacement of, in exchange
for or otherwise in respect of the Conversion Shares or the Warrant Shares,
including without limitation any securities received by a Holder in connection
with an Exchange Transaction (as defined in the Certificate of Designation);
provided, however, that such securities shall cease to be Registrable Securities
when they have been distributed to the public pursuant to an offering registered
under the Securities Act or pursuant to Rule 144 under the Securities Act ("Rule
144") or are freely saleable pursuant to Rule 144(k).
2. MANDATORY REGISTRATION.
(a) On or before the Filing Deadline, the Company shall
prepare and file with the Commission a Registration Statement on Form S-3 as a
"shelf" registration statement under Rule 415 covering the resale of at least
125% of the number of shares of Registrable Securities then issuable on
conversion of the Preferred Shares plus 100% of the number of shares of Common
Stock issuable upon exercise of the Warrants then outstanding (without regard to
any restrictions on such conversion or exercise that might otherwise exist). The
Company may not register for resale on the Registration Statement any securities
other than the Registrable Securities. The Registration Statement shall state,
to the extent permitted by Rule 416 under the Securities Act, that it also
covers such indeterminate number of shares of Common Stock as may be required to
effect (i) conversion of the Preferred Shares to prevent dilution resulting from
stock splits, stock dividends or similar events, or by reason of changes in the
Conversion Price in accordance with the terms of the Certificate of Designation
and (ii) exercise of the Warrants in full to prevent dilution resulting from
stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the
Registration Statement to become effective as soon as practicable following the
filing thereof, but in no event later than the Registration Deadline, and shall
submit to the Commission, within one (1) business day after the
<PAGE>
Company learns that no review of the Registration Statement will be made by the
staff of the Commission or that the staff of the Commission has no further
comments on the Registration Statement, as the case may be, a request for
acceleration of the effectiveness of the Registration Statement to a time and
date not later than forty-eight (48) hours after the submission of such request,
and maintain the effectiveness of the Registration Statement until the earlier
to occur of (i) the date on which all of the Registrable Securities have been
sold pursuant to the Registration Statement and (ii) the date on which all of
the remaining Registrable Securities (in the reasonable opinion of counsel to
the Purchaser) may be immediately sold to the public without registration and
without regard to the amount of Registrable Securities which may be sold by a
Holder thereof at a given time (the "Registration Period").
(c) If (A) the Registration Statement is not filed on or
before the Filing Deadline or declared effective by the Commission on or before
the Registration Deadline, (B) after the Registration Statement has been
declared effective by the Commission, sales of Registrable Securities cannot be
made by a Holder under the Registration Statement for any reason not within the
exclusive control of such Holder (other than (i) during a Blackout Period or
(ii) with respect to Registrable Securities that are then freely saleable
pursuant to Rule 144(k) under the Securities Act), (C) the Common Stock is not
included for quotation on the Nasdaq National Market or Nasdaq Small Cap Market
(together, the "Nasdaq Stock Market") or listed on the New York Stock Exchange
or American Stock Exchange (each, a "Registration Event"), the Company shall pay
to each Holder an amount equal to the lesser of (x) one and one half percent
(1.5%) per month and (y) the highest rate permitted by applicable law, times the
aggregate Stated Value (as defined in the Certificate of Designation) of the
Preferred Shares held by such Holder, accruing daily and compounded monthly,
from the date on which a Registration Event first occurs until the date on which
the Registration Event is no longer continuing. The amounts paid or payable by
the Company hereunder shall be in addition to any other remedies available to a
Holder at law or in equity or pursuant to the terms of any other Transaction
Document. Payments of cash pursuant hereto shall be made within five (5) days
after the end of each period that gives rise to such obligation, provided that,
if any such period extends for more than thirty (30) days, payments shall be
made at the end of each thirty-day period.
(d) In the event that (A) the Registration Statement is not
declared effective by the twentieth (20th) Business Day following the
Registration Deadline, (B) after the Registration Statement has been declared
effective by the Commission, sales of Registrable Securities cannot be made by a
Holder under the Registration Statement for any reason not within the exclusive
control of such Holder (other than (i) during a Blackout Period or (ii) with
respect to Registrable Securities as are then freely saleable pursuant to Rule
144(k) under the Securities Act), or (C) the Common Stock is not included for
quotation on the Nasdaq Stock Market or listed on the New York Stock Exchange or
the American Stock Exchange, (each event described in clause (A), (B) or (C)
being hereinafter referred to as a "Repricing Event"), in addition to the
amounts which may be payable pursuant to paragraph 2(c) above, the Fixed
Conversion Price (as defined in the Certificate of Designation) for any
conversion of Preferred Shares occurring during the twenty two (22) Trading Days
following the Cure Date (as defined below) with respect to such event shall be
deemed to be equal to the lesser of (i) the lowest Conversion Price (as defined
in the Certificate of Designation) that would have applied had such conversion
occurred during the period between the date on which a Repricing Event occurs
and the date on which such Repricing Event is no longer continuing (the
<PAGE>
"Cure Date") and (ii) the Fixed Conversion Price that would otherwise be in
effect on the relevant Conversion Date (as defined in the Certificate of
Designation).
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration
Period, (i) the Company proposes to register shares of Common Stock under the
Securities Act in connection with the public offering of such shares for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan or employee stock award or a registration
on Form S-4 under the Securities Act or any successor or similar form
registering stock issuable upon a reclassification, a business combination
involving an exchange of securities or an exchange offer for securities of the
issuer or another entity) (a "Proposed Registration") and (ii) a registration
statement covering the sale of all of the Registrable Securities is not then
effective and available for sales thereof by the Holders, the Company shall, at
such time, promptly give each Holder written notice of such Proposed
Registration. Each Holder shall have thirty (30) days from its receipt of such
notice to deliver to the Company a written request specifying the amount of
Registrable Securities that such Holder intends to sell and such Holder's
intended method of distribution. Upon receipt of such request, the Company shall
use its best efforts to cause all Registrable Securities which the Company has
been requested to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such Holder;
provided, however, that the Company shall have the right to postpone or withdraw
any registration effected pursuant to this Section 3 without obligation to the
Holder. If, in connection with any underwritten public offering for the account
of the Company, the managing underwriter(s) thereof shall impose a limitation on
the number of shares of Common Stock which may be included in the Registration
Statement because, in such underwriter(s)' judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the Company shall be obligated to include in such Registration Statement only
such limited portion of the Registrable Securities with respect to which each
Holder has requested inclusion hereunder as such underwriter(s) shall permit.
Any exclusion of Registrable Securities shall be made pro rata among the Holders
seeking to include Registrable Securities in the Registration Statement, in
proportion to the number of Registrable Securities sought to be included by such
Holders; provided, however, that the Company shall not exclude any Registrable
Securities unless the Company has first excluded all outstanding securities, the
holders of which are not entitled to inclusion of such securities in such
Registration Statement or are not entitled to pro rata inclusion with the
Registrable Securities; and provided, further, however, that, after giving
effect to the immediately preceding proviso, any exclusion of Registrable
Securities shall be made pro rata with holders of other securities having the
right to include such securities in the Registration Statement before any Holder
includes any or all of its Registrable Securities in any registration statement
relating to an underwritten public offering with respect to which, in the good
faith opinion of the managing underwriter, the inclusion in the offering of all
shares requested to be registered by all persons holding registration rights
would materially jeopardize the successful marketing of the securities to be
sold.
<PAGE>
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including those
pursuant to paragraphs 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary (except during a Blackout
Period) to comply with the provisions of the Securities Act or to maintain the
effectiveness of the Registration Statement during the Registration Period, or
as may be reasonably requested by a Holder in order to incorporate information
concerning such Holder or such Holder's intended method of distribution;
(b) in the event that the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three consecutive Trading Days to cover 112.5% of the Registrable
Securities then issued or issuable, the Company shall (except during a Black-out
Period) promptly amend the Registration Statement, or file a new Registration
Statement, or both, so as to cover 125% of such Registrable Securities, in any
event as soon as practicable, but not later than the tenth business day
following the last day of such three day period; provided, however, that in the
event that the Company obtains either (A) the approval of its stockholders
referred to in paragraph 4.6 of the Securities Purchase Agreement or (B) the
approval of its stockholders referred to in paragraph 5(a) of the Certificate of
Designation, and on any date thereafter the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three consecutive Trading Days to cover 175% of the Registrable
Securities then issued or issuable, the Company shall promptly amend the
Registration Statement, or file a new Registration Statement, or both, so as to
cover 200% of such Registrable Securities, in any event as soon as practicable,
but not later than the tenth business day following the last day of such three
day period. Any Registration Statement filed pursuant to this Section 4 shall
state that, to the extent permitted by Rule 416 under the Securities Act, such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable upon conversion of the Preferred
Shares or exercise of the Warrants in full. Unless and until such amendment or
new Registration Statement becomes effective, each Holder shall have the rights
described in Section 2 above;
(c) secure the designation and quotation of the Registrable
Securities on the Nasdaq Stock Market or the listing thereof on the New York
Stock Exchange or the American Stock Exchange;
(d) furnish to each Holder such number of copies of the
prospectus included in such Registration Statement, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of such Holder's Registrable Securities;
(e) use all commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested
from time to time by a Holder, and do any and all other acts or things which may
be necessary or advisable to enable such Holder to consummate the public sale or
other
<PAGE>
disposition of the Registrable Securities in such jurisdictions; provided that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction;
(f) in the event of an underwritten public offering of the
Registrable Securities, enter into and perform its obligations under an
underwriting agreement, in usual and customary form reasonably acceptable to the
Company, with the managing underwriter of such offering;
(g) notify each Holder immediately upon the occurrence of any
event as a result of which the prospectus included in such Registration
Statement, as then in effect, contains an untrue statement of material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and as promptly as practicable, prepare, file and furnish to each
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(h) use all commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of such
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(i) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) a letter, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, confirming the effectiveness of the Registration Statement and, to
the knowledge of such counsel, the absence of any stop order, and (y) in the
case of an underwriting, (A) an opinion, dated such date, of such outside
counsel, in form and substance as is customarily given to underwriters in an
underwritten public offering, and (B) a letter, dated such date, from the
Company's independent certified public accountants, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters and to each
Holder;
(j) provide each Holder and its representatives the
opportunity to conduct a reasonable inquiry of the Company's financial and other
records during normal business hours and make available its officers, directors
and employees for questions regarding information which such Holder may
reasonably request in order to fulfill any due diligence obligation on its
par,provided, however, that the Company shall not provide the Holder with
material non-public information in connection with such inquiry except to a
Holder who specifically requests such information in writing;
(k) permit counsel for each Holder (at such Holder's expense)
to review such Registration Statement and all amendments and supplements thereto
a reasonable period of time prior to the filing thereof with the Commission; and
<PAGE>
(l) provide written notice to each Holder (i) immediately
upon the imposition of a Blackout Period and (ii)
immediately upon the cessation of any such Blackout
Period. In the event that the Company imposes a
Blackout Period hereunder, each Holder shall be
entitled, upon written notice to the Company, to use
as a Conversion Price (as defined in the Certificate
of Designation) for any conversion of Preferred
Shares occurring during the first five (5) Trading
Days after the termination of such Blackout Period
(A) where the duration of such Blackout Period, when
added to the duration of any other Blackout Period
that may have occurred in the twelve month period
immediately preceding the imposition of such Blackout
Period, is equal to or less than fifteen (15) days,
the lower of (a) the Conversion Price in effect
pursuant to the terms of the Certificate of
Designation and (b) the lowest Conversion Price that
would have applied had such conversion occurred
during such Blackout Period and (B) where the
duration of such Blackout Period, when added to the
duration of any other Blackout Period that may have
occurred in the twelve month period immediately
preceding the imposition of such Blackout Period, is
greater than fifteen (15) days, the lower of (a) the
Conversion Price in effect pursuant to the terms of
the Certificate of Designation and (b) the lowest
Closing Bid Price (as defined in the Certificate of
Designation) occurring during such Blackout Period .
The Company agrees that it will not disclose any
material, non-public information to any Holder
regarding the reasons for imposing a Blackout Period,
except to a Holder who specifically requests in
writing such information.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of the Registrable Securities
pursuant to the Registration Statement, each Holder shall:
(a) furnish to the Company such information regarding itself
and the intended method of disposition of Registrable Securities as the Company
shall reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(g), 4(h) or 4(l) (a
"Suspension Notice"), immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement until the filing of an
amendment or supplement as described in paragraph 4(g), withdrawal of the stop
order referred to in paragraph 4(h) or notice from the Company of the cessation
of a Blackout Period pursuant to paragraph 4(l); provided, however, that the
Company shall instruct the Transfer Agent to deliver unlegended shares of Common
Stock to a Holder or to the transferee of such Holder in accordance with the
Certificate of Designation or Warrant, as the case may be, in connection with
any sale of Registrable Securities with respect to which such Holder has entered
into a contract of sale prior to its receipt of a Suspension Notice from the
Company (as long as such delivery is not prohibited by the express terms of any
stop order or other order suspending the effectiveness of the Registration
Statement);
<PAGE>
(c) in the event of an underwritten offering of the
Registrable Securities in which such Holder participates, enter into a customary
and reasonable underwriting agreement and execute such other documents as the
managing underwriter for such offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to each purchaser of Registrable Securities; and
(e) notify the Company when it has sold all of the Registrable
Securities theretofore held by it.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, employees,
agents and representatives of such Holder, and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
liabilities or reasonable out-of-pocket expenses (whether joint or several)
(collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "Losses"), insofar as any such
Losses arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Company will reimburse such Holder, and each such
officer, director, employee, agent, representative or controlling person for any
legal or other expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be obligated to
indemnify any person for any Loss to the extent that such Loss arises out of or
is based upon and in conformity with written information furnished by such
person expressly for use in such Registration Statement; and provided, further,
that the Company shall not be required to indemnify any person to the extent
that any Loss results from such person selling Registrable Securities (i) to a
person to whom there was not sent or given, at or prior to the written
confirmation of the sale of such shares, a copy of the prospectus, as most
recently amended or supplemented, if the Company has previously furnished or
made available copies thereof or (ii) during any period following written notice
by the Company to such Holder of an event described in Section 4(g) or 4(h).
(b) To the extent permitted by law, each Holder, acting
severally and not jointly, shall indemnify and hold harmless the Company, the
officers, directors, employees, agents and representatives of the Company, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the 1934 Act, against any Losses to the extent (and only to
the
<PAGE>
extent) that any such Losses arise out of or are based upon and in conformity
with written information furnished by such Holder expressly for use in such
Registration Statement; and such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director,
employee, agent, representative, or controlling person, in connection with
investigating or defending any such Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of such Holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this subsection 6(b) exceed the net purchase price of securities sold by
such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 6 with respect to such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 6 or
with respect to any other action.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net purchase
price of securities sold by it under the Registration Statement. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or by such Holder. The
Company and each Holder agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of either
the Securities Act or the
<PAGE>
Exchange Act and each officer, director, employee, agent or representative of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this
Section 6 shall survive the conversion or redemption, if any, of the Preferred
Shares, the exercise of the Warrant, and the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this
Agreement, or otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of
Rule 144 and any other similar rule or regulation of the Commission that may at
any time permit such Holder to sell securities of the Company to the public
without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing such Holder of any rule or regulation of the Commission which
permits the selling of any such securities without registration.
8. MISCELLANEOUS.
(a) Expenses of Registration. All expenses, other than
underwriting discounts and commissions and fees and expenses of counsel to each
Holder, incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, the fees and disbursements of
counsel for the Company, and the fees and disbursements incurred in connection
with the opinion and letter described in paragraph 4(i) hereof, shall be borne
by the Company.
(b) Amendment; Waiver. Any provision of this Agreement may be
amended only pursuant to a written instrument executed by the Company and
Holders of at least two thirds (2/3) of the outstanding Registrable Securities
or, if no Registrable Securities are outstanding, of at least two thirds (2/3)
of the outstanding Preferred Shares. Any waiver of the provisions of this
Agreement may be made only pursuant to a written instrument executed by the
party against whom enforcement is sought. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder, each future
Holder, and the Company. The failure of any party to
<PAGE>
exercise any right or remedy under this Agreement or otherwise, or the delay by
any party in exercising such right or remedy, shall not operate as a waiver
thereof.
(c) Notices. Any notice, demand or request required or
permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing and shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow)
on or before 5:00 p.m., eastern time, on a business day or, if such day is not a
business day, on the next succeeding business day, (ii) on the next business day
after timely delivery to a nationally-recognized overnight courier and (iii) on
the third business day after deposit in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid), addressed to the parties as
follows:
If to the Company:
Secure Computing Corporation
One Alamaden Boulevard
Suite 400
San Jose, California 95113
Attn: Chief Financial Officer
Tel: (408) 918-6100
Fax: (408) 918-6204
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Jeffrey D. Saper, Esq.
Tel: (650) 493-9300
Fax: (650) 493-6811
and if to any Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Termination. This Agreement shall terminate on the earlier
to occur of (a) the end of the Registration Period and (b) the date on which all
of the Registrable Securities have been publicly distributed; but any such
termination shall be without prejudice to (i) the parties' rights and
obligations arising from breaches of this Agreement occurring prior to such
termination and (ii) the indemnification and contribution obligations under this
Agreement.
(e) Assignment. The rights of a Holder hereunder shall be
assigned automatically to any transferee of the Preferred Shares, the Warrant or
Registrable Securities from such Holder as long as: (i) the Company is, prior to
such transfer, furnished with written notice of the name and address of such
transferee, (ii) the transferee agrees in writing with the Company to be bound
by all of the provisions hereof and (iii) such transfer is made in accordance
with the applicable requirements of the Securities Purchase Agreement or the
Warrant, as the case may be.
<PAGE>
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflict of laws provisions thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
SECURE COMPUTING CORPORATION
By:
-----------------------------
Name:
Title:
PURCHASER NAME:
---------------------------
By:
-----------------------------
Name:
Title:
EXHIBIT 10.3
EXHIBIT A
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD OR
TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. THIS WARRANT (THIS
"WARRANT") AND THE WARRANTS OF EVEN DATE HEREWITH (TOGETHER WITH THIS WARRANT,
THE "WARRANTS") ARE ISSUED SUBJECT TO THE TERMS OF (A) A SECURITIES PURCHASE
AGREEMENT, DATED JUNE 30, 1998 ("SECURITIES PURCHASE AGREEMENT"), BY AND BETWEEN
SECURE COMPUTING CORPORATION AND THE HOLDER OF THIS WARRANT AND (B) A
REGISTRATION RIGHTS AGREEMENT, DATED JUNE 30, 1998 ("REGISTRATION RIGHTS
AGREEMENT"), BY AND BETWEEN SECURE COMPUTING CORPORATION AND THE HOLDER OF THIS
WARRANT.
WARRANT TO PURCHASE
______________SHARES
WARRANT TO PURCHASE COMMON STOCK
OF
SECURE COMPUTING CORPORATION
THIS CERTIFIES that ________________ or any subsequent holder hereof
(the "Holder"), has the right to purchase from Secure Computing Corporation, a
Delaware corporation (the "Company"), up to _____________ fully paid and
nonassessable shares of the Company's Common Stock, par value $0.01 per share
(the "Common Stock"), subject to adjustment as provided herein, at a price equal
to the Exercise Price (as defined below), at any time beginning on the date on
which this Warrant is issued (the "Issue Date") and ending at 5:00 p.m., eastern
time, on the earlier to occur of (i) June 29, 2001 and (ii) the date on which
the closing of a consolidation, merger or other business combination of the
Company with or into another entity (other than an entity which is an affiliate
of the Company prior to such transaction) occurs, and immediately following such
transaction the Company is not the surviving company; provided, however, that
any such transaction must be effected for a bona fide commercial purpose and not
for the purpose of affecting the terms of this Warrant (the "Expiration Date").
This Warrant is issued, and all rights hereunder shall be, subject to all of the
conditions, limitations and provisions set forth herein and in the Securities
Purchase Agreement.
<PAGE>
1. Exercise.
(a) RIGHT TO EXERCISE; EXERCISE PRICE. The Holder shall have the right
to exercise this Warrant at any time and from time to time up to and including
the Expiration Date as to all or any part of the shares of Common Stock covered
hereby (the "Warrant Shares"). The "Exercise Price" payable by the Holder in
connection with the exercise of this Warrant shall be equal to one hundred and
thirty percent (130%) of the average of the Closing Bid Prices (as defined in
the Certificate of Designation) for the Common Stock during the fifteen (15)
Trading Days (as defined in the Certificate of Designation) occurring
immediately prior to (but not including) the Issue Date.
(b) EXERCISE NOTICE. In order to exercise this Warrant, the Holder
shall send by facsimile transmission, at any time prior to 11:59 p.m., eastern
time, on the date on which the Holder wishes to effect such exercise (the
"Exercise Date"), to the Company and to its designated transfer agent for the
Common Stock (the "Transfer Agent") a copy of the notice of exercise in the form
attached hereto as Exhibit A (the "Exercise Notice") stating the number of
Warrant Shares as to which such exercise applies and the calculation therefor.
The Holder shall thereafter deliver to the Company the original Exercise Notice,
the original Warrant and the Exercise Price. In the case of a dispute as to the
calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder, the Company shall promptly issue to the Holder the number of Warrant
Shares that are not disputed and shall submit the disputed calculations to the
Company's independent accountant within one (1) business day following the
Exercise Date. The Company shall cause such accountant to calculate the Exercise
Price and/or the number of Warrant Shares issuable hereunder and to notify the
Company and the Holder of the results in writing no later than five (5) business
days following the day on which it received the disputed calculations. Such
accountant's calculation shall be deemed conclusive absent manifest error. The
fees of any such accountant shall be borne by the party whose calculations were
most at variance with those of such accountant.
(c) CANCELLATION OF WARRANT. This Warrant shall be canceled upon its
exercise and the Holder shall be entitled to receive, as soon as practicable
after the Exercise Date, a new Warrant or Warrants (containing terms identical
to this Warrant) representing any unexercised portion of this Warrant.
2. Delivery of Warrant Shares Upon Exercise. Upon receipt of an
Exercise Notice pursuant to paragraph 1 above, the Company shall, (A) in the
case of a Cashless Exercise (as defined below), no later than the close of
business on the third (3rd) business day following the later to occur of (i) the
Exercise Date set forth in such Exercise Notice and (ii) the date on which the
Company shall have received the original Warrant, (B) in the case of a Cash
Exercise (as defined below) no later than the close of business on the later to
occur of (i) the third (3rd) business day following the Exercise Date set forth
in such Exercise Notice and (ii) the date on which the Company shall have
received payment of the Exercise Price and the original Warrant, and (C) with
respect to Warrant Shares which are disputed as described in paragraph 1(b)
above, and required to be delivered by the Company pursuant to the accountant's
calculations described therein, the third (3rd) business day following the date
on
<PAGE>
which notice from such accountants is received regarding such disputed shares
(the "Delivery Date"), issue and deliver or caused to be delivered to the Holder
the number of Warrant Shares as shall be determined as provided herein. Warrant
Shares delivered to the Holder shall not contain any restrictive legend as long
as (A) the resale or transfer (including without limitation a pledge) of such
Warrant Shares is registered pursuant to an effective registration statement and
the Holder thereof has represented to the Company, in a related conversion or
exercise notice or otherwise in writing, that such Holder has resold or
transferred such Warrant Shares in accordance with the terms of the prospectus
relating to such registration statement, (B) such Holder provides the Company
with an opinion of counsel, in form, substance and scope customary for opinions
of counsel in comparable transactions to the effect that such Warrant Shares can
be sold publicly without registration under the Securities Act (provided that
such opinion shall not be required for a sale or transfer of such Warrant Shares
to an affiliate of the Holder), (C) such Warrant Shares can be sold pursuant to
Rule 144 under the Securities Act or any successor provision ("Rule 144") and a
registered broker dealer provides to the Company a customary broker's Rule 144
letter and such Holder delivers to the Company a customary seller's
representation letter or (D) such Warrant Shares are eligible for resale under
Rule 144(k) or any successor provision, such Warrant Shares shall be issued
without any legend or other restrictive language and, with respect to Warrant
Shares upon which such legend is stamped, the Company shall issue new
certificates without such legend to the Holder upon request.
3. Failure to Deliver Warrant Shares.
(a) EXERCISE DEFAULT. In the event that the Company fails for
any reason (other than by operation of paragraph 4 below) to deliver to a Holder
certificates representing the number of Warrant Shares specified in the
applicable Exercise Notice on or before the seventh (7th) business day following
the Delivery Date therefor (an "Exercise Default"), the Company shall pay to
such Holder payments in the amount of (i) (N/365) multiplied by (ii) the
aggregate Exercise Price for the Warrant Shares which are the subject of such
Exercise Default multiplied by (iii) the lower of twenty-four percent (24%) and
the maximum rate permitted by applicable law, where "N" equals the number of
days elapsed between the original Delivery Date for such Warrant Shares and the
date on which all of such Warrant Shares are issued and delivered to such
Holder. Amounts payable under this subparagraph 3(a) shall be paid to the Holder
in immediately available funds on or before the fifth (5th) business day of the
calendar month immediately following the calendar month in which such amount has
accrued.
(b) REDUCTION OF EXERCISE PRICE. In the event that a Holder
has not received certificates representing the Warrant Shares by the tenth
(10th) Business Day following an Exercise Default, such Holder may, upon written
notice to the Company, regain on such business day the rights of a Holder of
this Warrant, or part thereof, with respect to the Warrant Shares that are the
subject of such Exercise Default, and the Exercise Price for such Warrant Shares
shall be reduced by one percent (1%) for each day beyond such 10th business day
in which the Exercise Default continues. In such event, such Holder shall retain
all of such Holder's rights and remedies with respect to the Company's failure
to deliver such Warrant Shares (including without limitation the right to
receive the cash
<PAGE>
payments specified in subparagraph 3(a) above).
(c) BUY-IN. Nothing herein shall limit a Holder's right to
pursue actual damages for the Company's failure to issue and deliver Warrant
Shares in connection with an exercise on the applicable Delivery Date
(including, without limitation, damages relating to any purchase of shares of
Common Stock by such Holder to make delivery on a sale effected in anticipation
of receiving Warrant Shares upon exercise, such damages to be in an amount equal
to (A) the aggregate amount paid by such Holder for the shares of Common Stock
so purchased minus (B) the aggregate amount of net proceeds, if any, received by
such Holder from the sale of the Warrant Shares issued by the Company pursuant
to such exercise), and such Holder shall have the right to pursue all remedies
available to it at law or in equity (including, without limitation, a decree of
specific performance and/or injunctive relief).
(d) HOLDER OF RECORD. Each Holder shall, for all purposes, be
deemed to have become the holder of record of Warrant Shares on the Exercise
Date of this Warrant, irrespective of the date of delivery of such Warrant
Shares. Nothing in this Warrant shall be construed as conferring upon the Holder
hereof any rights as a stockholder of the Company.
4. Exercise Limitations.
In no event shall a Holder be permitted to exercise this Warrant, or
part thereof, with respect to Warrant Shares in excess of the number of such
shares, upon the issuance of which, (x) the number of shares of Common Stock
beneficially owned by such Holder and its affiliates plus (y) the number of
shares of Common Stock issuable upon such exercise, would be equal to or exceed
(z) 4.99% of the number of shares of Common Stock then issued and outstanding.
As used herein, beneficial ownership shall be determined in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules
thereunder. To the extent that the limitation contained in this paragraph 4
applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by a Holder) shall be in the sole discretion of such
Holder, and the submission of an Exercise Notice shall be deemed to be such
Holder's determination that this Warrant is exercisable pursuant to the terms
hereof, and the Company shall have no obligation whatsoever to verify or confirm
the accuracy of such determination. Nothing contained herein shall be deemed to
restrict the right of a Holder to exercise this Warrant, or part thereof, at
such time as such exercise will not violate the provisions of this Section 4.
5. Payment of the Exercise Price. The Holder may pay the Exercise Price
in either of the following forms or, at the election of Holder, a combination
thereof:
(a) CASH EXERCISE: by delivery of immediately available funds.
<PAGE>
(b) CASHLESS EXERCISE: by surrender of this Warrant to the Company
together with a notice of cashless exercise, in which event the Company
shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y x (A-B)/A where:
X = the number of Warrant Shares to be issued to the Holder.
Y = the number of Warrant Shares with respect to which this Warrant
is being exercised.
A = the average of the Closing Bid Prices of the Common Stock for
the five (5) Trading Days immediately prior to (but not including)
the Exercise Date.
B = the Exercise Price.
For purposes of Rule 144 under the Securities Act of 1933, as amended, it is
intended, understood and acknowledged that the Warrant Shares issued in a
cashless exercise transaction shall be deemed to have been acquired by the
Holder, and the holding period for the Warrant Shares shall be deemed to have
been commenced, on the Closing Date (as defined in the Securities Purchase
Agreement).
6. Anti-Dilution Adjustments.
(a) STOCK DIVIDEND. If the Company shall at any time declare a dividend
payable in shares of Common Stock, then the Holder hereof, upon exercise of this
Warrant after the record date for the determination of Holders of Common Stock
entitled to receive such dividend, shall be entitled to receive, in addition to
the number of shares of Common Stock as to which this Warrant is exercised, such
additional shares of Common Stock as such Holder would have received had this
Warrant been exercised immediately prior to such record date and, in order to
effect such right to additional shares, the Exercise Price will be
proportionately adjusted.
(b) RECAPITALIZATION OR RECLASSIFICATION. If the Company shall at any
time effect a recapitalization, reclassification or other similar transaction of
such character that the shares of Common Stock shall be changed into or become
exchangeable for a larger or smaller number of shares, then upon the effective
date thereof, the number of shares of Common Stock which the Holder hereof shall
be entitled to purchase upon exercise of this Warrant shall be increased or
decreased, as the case may be, in direct proportion to the increase or decrease
in the number of shares of Common Stock by reason of such recapitalization,
reclassification or similar transaction, and , in order to effect such change in
the number of shares to which the Holder shall be entitled, the Exercise Price
shall be, in the case of an increase in the number of shares, proportionally
decreased and, in the case of decrease in the number of shares, proportionally
increased. The Company shall give the Warrant Holder the same notice at the same
time it provides such notice to holders of Common Stock of any transaction
<PAGE>
described in this Section 6(b).
(c) DISTRIBUTIONS. If the Company shall at any time distribute to
holders of Common Stock cash, evidences of indebtedness or other securities or
assets (other than cash dividends or distributions payable out of earned surplus
or net profits for the current or a preceding year) then, in any such case, the
Holder of this Warrant shall be entitled to receive, upon exercise of this
Warrant, with respect to each share of Common Stock issuable upon such exercise,
the amount of cash or evidences of indebtedness or other securities or assets
which such Holder would have been entitled to receive with respect to each such
share of Common Stock as a result of the happening of such event had this
Warrant been exercised immediately prior to the record date or other date fixing
shareholders to be affected by such event.
(d) NOTICE OF CONSOLIDATION OR MERGER. In the event of a merger,
consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a result
of which shares of Common Stock of the Company shall be changed into or
exchanged for the same or a different number of shares of the same or another
class or classes of stock or securities or other assets of the Company or
another entity or there is a sale of all or substantially all the Company's
assets (a "Corporate Change"), then this Warrant shall be exercisable into such
class and type of securities or other assets as the Holder would have received
had the Holder exercised this Warrant immediately prior to such Corporate
Change; provided, however, that Company may not affect any Corporate Change
unless (i) it first shall have given at least twenty (20) business days' notice
to the Holder hereof of any Corporate Change and makes a public announcement of
such event at the same time that it gives such notice and (ii) it requires the
resulting successor or acquiring entity (if not the Corporation) to assume by
written instrument the obligations of the Corporation hereunder and under the
Securities Purchase Agreement and the Registration Rights Agreement.
(e) EXERCISE PRICE AS ADJUSTED. As used in this Warrant, the term
"Exercise Price" shall mean the purchase price per share specified in paragraph
1 of this Warrant, until the occurrence of an event stated in subsection (a),
(b) or (c) of this paragraph 6, and thereafter shall mean said price as adjusted
from time to time in accordance with the provisions of each such subsection. No
such adjustment under this paragraph 6 shall be made unless such adjustment
would change the Exercise Price at the time by two percent (2%) or more;
provided, however, that all adjustments not so made shall be deferred and made
when the aggregate thereof would change the Exercise Price at the time by $.01
or more. No adjustment made pursuant to any provision of this paragraph 6 shall
have the effect of increasing the total consideration payable upon exercise of
this Warrant in respect of all the Common Stock as to which this Warrant may be
exercised.
(f) ADJUSTMENTS: ADDITIONAL SHARES, SECURITIES OR ASSETS. In the event
that at any time, as a result of an adjustment made pursuant to this Section 6,
the Holder of this Warrant shall, upon exercise of this Warrant, become entitled
to receive shares and/or other securities or assets (other than Common Stock)
then, wherever appropriate, all references herein to shares of Common Stock
shall be deemed to refer to and include such shares and/or other securities or
assets; and thereafter the number of such
<PAGE>
shares and/or other securities or assets shall be subject to adjustment from
time to time in a manner and upon terms as nearly equivalent as practicable to
the provisions of this paragraph 6.
7. Fractional Interests. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of this Warrant, but on
exercise of this Warrant, the Holder hereof may purchase only a whole number of
shares of Common Stock. If, on exercise of this Warrant, the Holder hereof would
be entitled to a fractional share of Common Stock or a right to acquire a
fractional share of Common Stock, such fractional share shall be disregarded and
the number of shares of Common Stock issuable upon exercise shall be rounded up
or down to the nearest whole number of shares of Common Stock.
8. Transfer of this Warrant. The Holder may sell, transfer, assign,
pledge or otherwise dispose of this Warrant, in whole or in part, as long as (A)
such sale or other disposition is made pursuant to an effective registration
statement or an exemption to the registration requirements of the Securities Act
of 1933, as amended, and applicable state laws and (B) such sale or other
disposition is made to an accredited investor (as such term is defined in
Regulation D under the Securities Act). Upon such transfer or other disposition,
the Holder shall deliver a written notice to Company, substantially in the form
of the Transfer Notice attached hereto as Exhibit B (the "Transfer Notice"),
indicating the person or persons to whom this Warrant shall be transferred and,
if less than all of this Warrant is transferred or this Warrant is transferred
in parts, the number of Warrant Shares to be covered by the part of this Warrant
to be transferred to each such person. Within five (5) business days of
receiving a Transfer Notice and the original of this Warrant, along with
evidence reasonably satisfactory to the Company of compliance with the
requirements for transfer set forth in this Section 8, the Company shall deliver
to the each transferee designated by the Holder a Warrant or Warrants of like
tenor and terms for the appropriate number of Warrant Shares.
9. Benefits of this Warrant.
Nothing in this Warrant shall be construed to confer upon any
person other than the Holder of this Warrant any legal or equitable right,
remedy or claim under this Warrant and this Warrant shall be for the sole and
exclusive benefit of the Holder of this Warrant.
10. Loss, theft, destruction or mutilation of Warrant.
Upon receipt by the Company of evidence of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnity or security reasonably satisfactory to the Company,
and upon surrender of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date.
11. Notice or Demands.
Except as otherwise provided herein, any notice, demand or
request required or
<PAGE>
permitted to be given pursuant to the terms of this Warrant shall be in writing
and shall be deemed given (i) when delivered personally or by verifiable
facsimile transmission (with an original to follow) on or before 5:00 p.m.,
eastern time, on a business day or, if such day is not a business day, on the
next succeeding business day, (ii) on the next business day after timely
delivery to a nationally-recognized overnight courier and (iii) on the third
business day after deposit in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid), addressed as follows:
IF TO THE COMPANY:
Secure Computing Corporation
One Alamaden Boulevard
Suite 400
San Jose, California 95113
Attn: Chief Financial Officer
Tel: (408) 918-6100
Fax: (408) 918-6204
WITH A COPY TO:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
Attn: Jeffrey D. Saper, Esq.
Tel: (650) 493-9300
Fax: (650) 493-6811
and if to the Holder, to such address as shall be designated by the Holder in
writing to the Company.
12. Applicable Law.
This Warrant is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the state of New York,
without giving effect to conflict of law provisions thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of the
_____ day of June, 1998.
SECURE COMPUTING CORPORATION
By:
-------------------------------------
Name:
Title:
<PAGE>
EXHIBIT A to WARRANT
EXERCISE NOTICE
The undersigned Holder hereby irrevocably exercises the right to
purchase _____________ of the shares of Common Stock ("Warrant Shares") of
Secure Computing Corporation, a Delaware corporation (the "Company"), evidenced
by the attached Warrant (the "Warrant"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Exercise Price. The Holder intends that payment of the
Exercise Price shall be made as:
____ a Cash Exercise with respect to ________ Warrant Shares; and/or
____ a Cashless Exercise with respect to ________ Warrant Shares.
2. Payment of Exercise Price. In the event that the Holder has elected
a Cash Exercise with respect to some or all of the Warrant Shares to be issued
pursuant hereto, the Holder shall pay the sum of $________________ to the
Company in accordance with the terms of the Warrant.
3. Delivery of Warrant Shares. The Company shall deliver to the Holder
_____________ Warrant Shares in accordance with the terms of the Warrant.
Date:
-----------------------
- ------------------------------------
Name of Registered Holder
By:
--------------------------------
Name:
Title:
<PAGE>
EXHIBIT B to WARRANT
TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant hereby sells,
assigns and transfers unto the person or persons named below the right to
purchase ____________ shares of the Common Stock of Secure Computing Corporation
evidenced by the attached Warrant.
Date:
-----------------------
- ------------------------------------
Name of Registered Holder
By:
--------------------------------
Name:
Title:
Transferee Name and Address:
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
Investment Community Media
Mike Anderegg, CFA Ken Montgomery
408-918-6182 408-918-6120
SECURE COMPUTING RECEIVES $16 MILLION EQUITY INVESTMENT LED BY AN AFFILIATE OF
CREDIT SUISSE FIRST BOSTON
JUNE 30, 1998 -- SAN JOSE, CA-- Secure Computing Corporation (NASDAQ: SCUR)
today announced that it has completed a $16 million convertible preferred
private placement with two investors led by an affiliate of Credit Suisse First
Boston (CSFB) and including affiliates of Castle Creek Partners, a Chicago-based
private investment partnership specializing in technology investments. Under the
terms of the agreement, Secure Computing sold 16,000 shares of newly designated
Series C Convertible Preferred Stock for an aggregate of $16 million.
PaineWebber Incorporated served as the Company's placement agent on this
transaction.
The Series C Convertible Preferred Stock is convertible into shares of Common
Stock six months after issuance and will automatically convert into Common Stock
three years after the date of its issuance by Secure. Each share of Series C
Convertible Preferred Stock is convertible into Common Stock at a per share
price equal to either A) a fixed conversion price set in six months, or, B) a
variable conversion price based upon market prices prior to conversion. The
Series C Preferred stock pays no dividend and has 10% warrant coverage.
"This financing enhances our financial flexibility and greatly strengthens our
balance sheet, positioning us to more fully pursue strong growth opportunities."
said Senior Vice President of Operations and CFO Tim McGurran.
The securities issued in the private placement have not been registered under
the Securities Act of 1933, as amended, and may not be offered or sold in the
United States absent registration or an applicable exemption from registration
requirements.
ABOUT SECURE COMPUTING
Headquartered in San Jose, CA, Secure Computing Corporation provides a trusted,
comprehensive offering of interoperable, standards-based products for end-to-end
network security solutions including firewalls, Web filtering, identification,
authentication, authorization, encryption, extranet technologies and
professional services. Secure Computing has a worldwide presence in financial
services, telecom, aerospace, manufacturing, and hi-tech industries, ranging
from Fortune 1000 companies to service providers and government agencies. More
information is available over the Internet at www.securecomputing.com or by
calling: in the U.S. 800-379-4944 or 408-918-6100; in Europe +44-1753-826000; in
Asia/Pacific +61-2-9844-5440.
