{"id":43352,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/common-stock-and-warrant-purchase-agreement-redback-networks.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"common-stock-and-warrant-purchase-agreement-redback-networks","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/common-stock-and-warrant-purchase-agreement-redback-networks.html","title":{"rendered":"Common Stock and Warrant Purchase Agreement &#8211; Redback Networks Inc."},"content":{"rendered":"<pre>                              REDBACK NETWORKS INC.\n                   COMMON STOCK and WARRANT PURCHASE AGREEMENT\n\nThis Common Stock and Warrant Purchase Agreement (this \"Agreement\"), dated as of\n                                                        ---------\nMay 21, 2002, between REDBACK NETWORKS INC., a Delaware corporation (the\n\"Company\"), and NOKIA FINANCE INTERNATIONAL BV, a private company with limited\n -------\nliability (besloten vennootschap met beperkte aansprakelijkheid) organized under\nthe laws of the Netherlands (the \"Investor\"), and a subsidiary of Nokia\n                                  --------\nCorporation, a Finnish corporation.\n\nTHE PARTIES HEREBY AGREE AS FOLLOWS:\n\n1.   Purchase and Sale of Stock and Warrant.\n\n     1.1  Sale and Issuance of Common Stock and Warrant. Subject to the terms\nand conditions of this Agreement, the Investor agrees to purchase at the Closing\n(as defined below), and the Company agrees to sell and issue to the Investor at\nthe Closing, (i) the Common Stock (as defined below) purchase warrant in the\nform attached hereto as Exhibit A (the \"Warrant\"), and (ii) 17,723,297 shares\n                        ---------       -------\n(the \"Initial Shares\") of common stock, par value $0.0001 per share, of the\n      --------------\nCompany (the \"Common Stock\"), (which represents one share less than 10% of the\n              ------------\npro forma Common Stock outstanding on the date of the Closing (as defined\nbelow), assuming the issuance of the Initial Shares and including only shares of\nCommon Stock that are actually outstanding (excluding shares issuable upon\nexercise of outstanding options, warrants and other convertible securities)), at\na purchase price per share of $2.02 for an aggregate purchase price, payable in\ncash, equal to $35,801,060 (the \"Purchase Price\").\n                                 --------------\n\n     1.2  Closing. Subject to the terms and conditions of this Agreement, the\npurchase and sale of the Common Stock and Warrant shall take place at a closing\n(the \"Closing\") to be held at the offices of Shearman &amp; Sterling, 1080 Marsh\n      -------\nRoad, Menlo Park, California, on or before 10:00 A.M. Pacific time, on May 21,\n2002, or at such other time and place as the Company and the Investor mutually\nagree upon in writing. At the Closing, the Company shall deliver to the\nInvestor: (i) a certificate representing the Common Stock that the Investor is\npurchasing pursuant to the terms hereof; (ii) the executed Warrant; (iii) a\nreceipt for the Purchase Price; and (iv) the other documents listed in Section 4\nof this Agreement. At the Closing, the Investor shall deliver to the Company:\n(i) the Purchase Price by wire transfer in immediately available funds to a bank\naccount in the United States to be designated by the Company in writing to the\nPurchaser; and (ii) the other documents listed in Section 5 of this Agreement.\n\n2.   Representations and Warranties of the Company. The Company hereby\nrepresents and warrants to the Investor that, except as set forth on a Schedule\nof Exceptions (the \"Schedule of Exceptions\") furnished to the Investor on or\n                    ----------------------\nprior to entering into this Agreement, which exceptions shall qualify the\nrepresentation and warranty that has the corresponding number as the numbered\nparagraph in the Schedule of Exceptions, and which representations and\nwarranties so qualified shall be deemed to be representations and warranties as\nif made hereunder, as of the date hereof and as of the date of Closing:\n\n     2.1  Organization and Qualification; Subsidiaries. (a) Each of the Company\nand each subsidiary of the Company (each a \"Subsidiary\") is a corporation duly\n                                            ----------\norganized, validly\n\n\n\nexisting and in good standing under the laws of the jurisdiction of its\norganization and has the requisite corporate power and authority and all\nnecessary governmental approvals to own, lease and operate its properties and to\ncarry on its business as it is now being conducted, except where the failure to\nbe so organized, existing or in good standing or to have such power, authority\nand governmental approvals would not, individually or in the aggregate, have a\nMaterial Adverse Effect (as defined below). Each of the Company and each\nSubsidiary is duly qualified or licensed as a foreign corporation to do\nbusiness, and is in good standing, in each jurisdiction where the character of\nthe properties owned, leased or operated by it or the nature of its business\nmakes such qualification or licensing necessary, except for such failures to be\nso qualified or licensed and in good standing that would not, individually or in\nthe aggregate, have a Material Adverse Effect. \"Material Adverse Effect\" means\n                                                -----------------------\nany event, circumstance, change or effect that, individually or in the aggregate\nwith all other events, circumstances, changes and effects, is or is reasonably\nlikely to be materially adverse to the business, condition (financial or\notherwise), assets, liabilities or results of operations of the Company and the\nSubsidiaries taken as a whole.\n\n          (b)  A true and complete list of all the Subsidiaries, together with\nthe jurisdiction of incorporation of each Subsidiary, is set forth in Section\n2.1(b) of the Schedule of Exceptions. Each Subsidiary is a wholly-owned\nsubsidiary of the Company. Except as disclosed in Section 2.1(b) of the Schedule\nof Exceptions, the Company does not directly or indirectly own any equity or\nsimilar interest in, or any interest convertible into or exchangeable or\nexercisable for any equity or similar interest in, any corporation, partnership,\njoint venture or other business association or entity.\n\n     2.2  Certificate of Incorporation and By-laws. The Company has heretofore\nmade available to the Investor a complete and correct copy of the Certificate of\nIncorporation and the By-laws, each as amended to date, of the Company. Such\nCertificate of Incorporation and By-laws are in full force and effect. The\nCompany is not in violation of any of the provisions of its Certificate of\nIncorporation or By-laws.\n\n     2.3  Capitalization. (a) The authorized capital stock of the Company\nconsists of (i) 750,000,000 shares of Common Stock and (ii) 10,000,000 shares of\npreferred stock, par value $0.0001 per share (\"Company Preferred Stock\"). As of\n                                               -----------------------\nMay 21, 2002, (i) 159,509,681 shares of Common Stock are issued and outstanding,\nall of which are validly issued, fully paid and nonassessable, which includes\nthe shares of Common Stock issuable upon exchange of the exchangeable shares of\n610381 B.C. Inc., a wholly owned subsidiary of the Company, (ii) no shares of\nCommon Stock are held in the treasury of the Company, (iii) no shares of Common\nStock are held by the Subsidiaries, (iv) 39,036,768 shares of Common Stock are\nreserved for future issuance pursuant to outstanding employee stock options or\nstock incentive rights granted pursuant to the Company's 1999 Stock Incentive\nPlan, as amended, the 2001 Employee Option Plan, 1999 Directors Stock Plan and\nthe 1997 Stock Plan, as amended, (collectively, the \"Plans\") and (v) 2,503,533\n                                                     -----\nshares of Common Stock are reserved for future issuance pursuant to the\nIndenture, dated as of March 29, 2000, between the Company and Norwest Bank\nMinnesota, National Association, as trustee relating to the Company's 5%\nConvertible Subordinated Notes due April 1, 2007. As of the date of this\nAgreement, no shares of Company Preferred Stock are issued and outstanding.\nExcept as set forth in this Section 2.3, other than the rights (the \"Rights\")\n                                                                     ------\nissued pursuant to the Rights Agreement, dated as of June 12, 2001 (the \"Company\n                                                                         -------\nRights Agreement\"), between the Company and US Stock Transfer Corporation, as\n----------------\nrights agent,\n\n                                       2\n\n\n\nthere are no options, warrants or other rights, agreements, arrangements or\ncommitments of any character relating to the issued or unissued capital stock of\nthe Company or any Subsidiary or obligating the Company or any Subsidiary to\nissue or sell any shares of capital stock of, or other equity interests in, the\nCompany or any Subsidiary. All shares of Common Stock subject to issuance as\naforesaid, upon issuance on the terms and conditions specified in the\ninstruments pursuant to which they are issuable, will be duly authorized,\nvalidly issued, fully paid and nonassessable. There are no outstanding\ncontractual obligations of the Company or any Subsidiary to repurchase, redeem\nor otherwise acquire any shares of Common Stock or any capital stock of any\nSubsidiary or to provide funds to, or make any investment (in the form of a\nloan, capital contribution or otherwise) in, any Subsidiary or any other person,\nexcept pursuant to the Plans. All outstanding shares of Common Stock, all\noutstanding stock options to purchase Common Stock, and all outstanding shares\nof capital stock of each subsidiary of the Company have been issued and granted\nin compliance with (i) all applicable U.S. securities laws, (ii) all applicable\nnon-U.S. securities laws, (iii) all other applicable Laws (as defined below) and\n(iv) all requirements set forth in applicable contracts, except in the case of\nclause (ii), (iii) or (iv) to the extent that any such noncompliance would not\nresult in a Material Adverse Effect.\n\n          (b) Each outstanding share of capital stock of each Subsidiary is duly\nauthorized, validly issued, fully paid and nonassessable, and each such share is\nowned by the Company or another Subsidiary free and clear of all security\ninterests, liens, claims, pledges, options, rights of first refusal, agreements,\nlimitations on the Company's or any Subsidiary's voting rights, charges and\nother encumbrances of any nature whatsoever.\n\n     2.4  Authority Relative to This Agreement. The Company has all necessary\ncorporate power and authority to execute and deliver this Agreement, the\nInvestor's Rights Agreement in the form attached hereto as Exhibit B (the\n                                                           ---------\n\"Investor's Rights Agreement\"), the Warrant, Amendment No. 6 to System\n ---------------------------\nIntegrator Agreement, dated the date hereof, between the Company and Nokia\nCorporation (\"Amendment 6\"), which contemplates certain definitive agreements\n              -----------\n(the \"Commercial Agreements\") (the Investor's Rights Agreement, the Warrant,\n      ---------------------\nAmendment 6 and the Commercial Agreements are collectively referred to as the\n\"Transaction Agreements\"), to perform its obligations hereunder and thereunder\n ----------------------\nand to consummate the transactions contemplated hereby or thereby. The execution\nand delivery of this Agreement and the Transaction Agreements by the Company and\nthe consummation by the Company of the transactions contemplated hereby or\nthereby have been duly and validly authorized by all necessary corporate action,\nand no other corporate proceedings on the part of the Company are necessary to\nauthorize this Agreement and the Transaction Agreements or to consummate the\ntransactions contemplated hereby or thereby. Each of this Agreement and the\nTransaction Agreements has been (or in the case of the Commercial Agreements\nwill be) duly and validly executed and delivered by the Company and, assuming\nthe due authorization, execution and delivery by the Company, constitutes (or in\nthe case of the Commercial Agreements, upon execution and delivery by the\nCompany will constitute) a legal, valid and binding obligation of the Company,\nenforceable against the Company in accordance with its terms subject to the\neffect of any applicable bankruptcy, insolvency (including, without limitation,\nall laws relating to fraudulent transfers), reorganization, moratorium or\nsimilar laws affecting creditors' rights generally and subject to the effect of\ngeneral principles of equity (regardless of whether considered in a proceeding\nat law or in equity). The Company Board of Directors (the \"Company Board\") has\n                                                           -------------\napproved this Agreement, the Transaction Agreements and\n\n                                       3\n\n\n\nthe transactions contemplated hereby or thereby and such approvals are\nsufficient so that the restrictions on business combinations set forth in\nSection 203(a) of the General Corporation Law of the State of Delaware (the\n\"DGCL\") shall not apply to any of the transactions contemplated hereby or\n ----\nthereby, including, but not limited to, any exercise of the Warrant or actions\npermitted pursuant to the Investor's Rights Agreement.\n\n     2.5 No Conflict; Required Filings and Consents. (a) The execution and\ndelivery of this Agreement and the Transaction Agreements by the Company do not,\nand the performance of this Agreement and the Transaction Agreements by the\nCompany will not, (i) conflict with or violate the Certificate of Incorporation\nor By-laws of the Company, (ii) conflict with or violate any United States\nstatute, law, ordinance, regulation, rule, code, executive order, injunction,\njudgment, decree or other order (\"Law\") applicable to the Company or any\n                                  ---\nSubsidiary or by which any property or asset of the Company or any Subsidiary is\nbound or affected, or (iii) result in any breach of or constitute a default (or\nan event which, with notice or lapse of time or both, would become a default)\nunder, or give to others any right of termination, amendment, acceleration or\ncancellation of, or result in the creation of a lien or other encumbrance on any\nproperty or asset of the Company or any Subsidiary pursuant to, any note, bond,\nmortgage, indenture, contract, agreement, lease, license, permit, franchise or\nother instrument or obligation, except, with respect to clauses (ii) and (iii),\nfor any such conflicts, violations, breaches, defaults or other occurrences\nwhich would not, individually or in the aggregate, have a Material Adverse\nEffect.\n\n         (b) The execution and delivery of this Agreement and the Transaction\nAgreements by the Company do not, and the performance of this Agreement and the\nTransaction Agreements by the Company will not, require any consent, approval,\nauthorization or permit of, or filing with or notification to, any United States\nfederal, state, county or local or non-United States government, governmental,\nregulatory or administrative authority, agency, instrumentality or commission or\nany court, tribunal, or judicial or arbitral body (a \"Governmental Authority\"),\n                                                      ----------------------\nother than (i) filings that may be required under the Hart-Scott-Rodino\nAntitrust Improvement Act of 1976, as amended, and the rules and regulations\nthereunder, and (ii) any filings necessary to comply with state securities or\n\"blue sky\" laws.\n\n     2.6 Permits; Compliance. Each of the Company and the Subsidiaries is in\npossession of all franchises, grants, authorizations, licenses, permits,\neasements, variances, exceptions, consents, certificates, approvals and orders\nof any Governmental Authority necessary for each of the Company or the\nSubsidiaries to own, lease and operate its properties or to carry on its\nbusiness as it is now being conducted (the \"Company Permits\"), except where the\n                                            ---------------\nfailure to have, or the suspension or cancellation of, any of the Company\nPermits would not, individually or in the aggregate, have a Material Adverse\nEffect. No suspension or cancellation of any of the Company Permits is pending\nor, to the knowledge of the Company, threatened, except where the failure to\nhave, or the suspension or cancellation of, any of the Company Permits would\nnot, individually or in the aggregate, have a Material Adverse Effect. Neither\nthe Company nor any Subsidiary is in conflict with, or in default, breach or\nviolation of, (a) any Law applicable to the Company or any Subsidiary or by\nwhich any property or asset of the Company or any Subsidiary is bound or\naffected, or (b) any note, bond, mortgage, indenture, contract, agreement,\nlease, license, Company Permit, franchise or other instrument or obligation to\nwhich the Company or any Subsidiary is a party or by which the Company or any\nSubsidiary or any\n\n                                       4\n\n\n\nproperty or asset of the Company or any Subsidiary is bound, except for any such\nconflicts, defaults, breaches or violations that would not, individually or in\nthe aggregate, have a Material Adverse Effect.\n\n     2.7 SEC Filings; Financial Statements. (a) The Company has filed all forms,\nreports and documents required to be filed by it with the Securities and\nExchange Commission (the \"SEC\") since May 18, 1999, and has heretofore made\n                          ---\navailable to the Investor, in the form filed with the SEC, (i) its Annual\nReports on Form 10-K for the fiscal years ended December 31, 1999, 2000 and\n2001, respectively, (ii) its Quarterly Report on Form 10-Q for the period ended\nMarch 31, 2002, (iii) all proxy statements relating to the Company's meetings of\nstockholders (whether annual or special) held since May 18, 1999 and (iv) all\nother forms, reports and other registration statements filed by the Company with\nthe SEC since March 31, 2002 (the forms, reports and other documents referred to\nin clauses (i), (ii), (iii) and (iv) above being, collectively, the \"Company SEC\n                                                                     -----------\nReports\"). The Company SEC Reports (i) were prepared in accordance with either\n-------\nthe requirements of the Securities Act of 1933, as amended (the \"Securities\n                                                                 ----------\nAct\"), or the Securities Exchange Act of 1934, as amended (the \"Exchange Act\"),\n---                                                             ------------\nas the case may be, and the rules and regulations promulgated thereunder\nexisting at the time the Company SEC Reports were filed, and (ii) did not, at\nthe time they were filed, or, if amended, as of the date of such amendment,\ncontain any untrue statement of a material fact or omit to state a material fact\nrequired to be stated therein or necessary in order to make the statements made\ntherein, in the light of the circumstances under which they were made, not\nmisleading. No Subsidiary is required to file any form, report or other document\nwith the SEC.\n\n         (b) Each of the consolidated financial statements (including, in each\ncase, any notes thereto) contained in the Company SEC Reports was prepared in\naccordance with United States generally accepted accounting principles (\"GAAP\")\n                                                                         ----\napplied on a consistent basis throughout the periods indicated (except as may be\nindicated in the notes thereto or, in the case of unaudited statements, as\npermitted by Form 10-Q of the SEC) and each fairly presents, in all material\nrespects, the consolidated financial position, results of operations and cash\nflows of the Company and its consolidated Subsidiaries as at the respective\ndates thereof and for the respective periods indicated therein , except as\notherwise noted therein (subject, in the case of unaudited statements, to normal\nand recurring year-end adjustments which would not have had, and would not have,\nindividually or in the aggregate, a Material Adverse Effect) and for pro forma\nfinancial information disclosed therein.\n\n         (c) Except as and to the extent set forth on the consolidated balance\nsheet of the Company and the consolidated Subsidiaries as at March 31, 2002,\nincluding the notes thereto, neither the Company nor any Subsidiary has any\nliability or obligation of any nature (whether accrued, absolute, contingent or\notherwise), except for liabilities and obligations, incurred in the ordinary\ncourse of business consistent with past practice since that date.\n\n         (d) The Company has heretofore furnished or made available to the\nInvestor complete and correct copies of all amendments and modifications that\nhave not been filed by the Company with the SEC to all agreements, documents and\nother instruments that previously had been filed by the Company with the SEC and\nare currently in effect.\n\n                                       5\n\n\n\n     2.8  Absence of Certain Changes or Events. Since March 31, 2002, except as\nset forth in Section 2.8 of the Schedule of Exceptions, or as expressly\ncontemplated by this Agreement, or specifically disclosed in any Company SEC\nReport filed since March 31, 2002 and prior to the date of this Agreement, (a)\nthe Company and the Subsidiaries have conducted their businesses only in the\nordinary course and in a manner consistent with past practice and (b) there has\nnot been any Material Adverse Effect.\n\n     2.9  Absence of Litigation. Except as specifically disclosed in the Company\nSEC Reports filed prior to the date of this Agreement, there is no litigation,\nsuit, claim, action, proceeding or investigation (an \"Action\") pending or, to\n                                                      ------\nthe knowledge of the Company, threatened against the Company or any Subsidiary,\nor any property or asset of the Company or any Subsidiary, before any\nGovernmental Authority that, individually or in the aggregate, has had or would\nhave a Material Adverse Effect. Neither the Company nor any Subsidiary nor any\nmaterial property or asset of the Company or any Subsidiary is subject to any\ncontinuing order of, consent decree, settlement agreement or other similar\nwritten agreement with, or, to the knowledge of the Company, continuing\ninvestigation by, any Governmental Authority, or any order, writ, judgment,\ninjunction, decree, determination or award of any Governmental Authority that\nwould, individually or in the aggregate, have a Material Adverse Effect.\n\n     2.10 Valid Issuance of Common Stock. The Common Stock that is being\npurchased by the Investor hereunder, when issued, sold and delivered in\naccordance with the terms of this Agreement for the consideration expressed\nherein, will be duly authorized, validly issued, fully paid and nonassessable,\nand will be free of restrictions on transfer other than restrictions on transfer\nunder the Transaction Agreements and under applicable state and federal\nsecurities laws. The shares of Common Stock issuable upon exercise of the\nWarrant have been duly and validly reserved for issuance and, upon issuance,\nwill be duly authorized, validly issued, fully paid and nonassessable and will\nbe free of restrictions on transfer other than restrictions on transfer under\nthis Agreement and the Transaction Agreements and under applicable state and\nfederal securities laws.\n\n     2.11 Intellectual Property Rights. Except as disclosed in the Company SEC\nReports, each of the Company and its subsidiaries (i) owns or possesses adequate\nlicenses or other rights to use all patents, trademarks, service marks, trade\nnames, copyrights, technology, software, know-how and trade secrets\n(collectively, \"Intellectual Property\") necessary to conduct the business now\n                ---------------------\nconducted by the Company and its Subsidiaries. Except as disclosed in the\nCompany SEC Reports, neither the Company nor any of its Subsidiaries has\nreceived any notice of infringement of or conflict with and knows of no such\ninfringement of or conflict with, asserted rights of others with respect to any\nIntellectual Property that would have a Material Adverse Effect, and, to the\nCompany's knowledge, the discoveries, inventions, products, services or\nprocesses used in the business of the Company and its Subsidiaries do not\ninfringe or conflict with any right or patent of any third party, or any\ndiscovery, invention, product or process which is the subject of a patent\napplication filed by any third party in a manner that would have a Material\nAdverse Effect.\n\n     2.12 Brokerage. Except for Credit Suisse First Boston Corporation, there\nare no claims for brokerage commissions, finders' fees or similar compensation\nin connection with the transactions contemplated by this Agreement and the\nTransaction Agreements for which the\n\n                                       6\n\n\n\nInvestor will have any liability or responsibility based on any arrangement or\nagreement binding upon the Company or any of its subsidiaries. The fees and\nexpenses of Credit Suisse First Boston Corporation will be paid by the Company\npursuant to the terms and conditions of that certain engagement letter, dated as\nof January 14, 2002, between the Company and Credit Suisse First Boston\nCorporation.\n\n     2.13 Disclosure. (a) The Company is not aware of any facts pertaining to\nthe Company or its Subsidiaries which could have a Material Adverse Effect and\nwhich have not been disclosed in this Agreement, the Schedule of Exceptions or\nthe Company SEC Reports filed prior to the date hereof or otherwise disclosed to\nthe Investor by the Company in writing.\n\n          (b) No representation or warranty of the Company in this Agreement or\nthe Transaction Agreements, nor any statement or certificate furnished or to be\nfurnished to the Investor pursuant to the Transaction Agreements, when taken in\nconjunction with all the information provided or made available by the Company\nto the Investor in connection with the transactions contemplated by this\nAgreement, taken as a whole, contains or will contain any untrue statement of a\nmaterial fact, or omits or will omit to state a material fact necessary to make\nthe statements contained herein or therein not misleading.\n\n     2.14 Registration Rights. Except as provided in the Schedule of Exceptions\nand the Investor's Rights Agreement, the Company has not granted or agreed to\ngrant any registration rights, including piggy-back rights, to any person.\n\n     2.15 Agreements, Contracts and Commitments. Except as identified in the\nSchedule of Exceptions, during the past 12 months, neither the Company nor any\nof its Subsidiaries has breached, violated or defaulted under, or received\nnotice that it has breached, violated or defaulted under, nor is a breach,\nviolation, or default continuing under, any Material Contract (as defined below)\nto which the Company or any Subsidiary is a party or by which its is bound.\n\"Material Contract\" means:\n -----------------\n\n          (a) any agreement, contract or commitment containing any covenant\nlimiting the freedom of the Company or any of its Subsidiaries to engage in any\nmaterial line of business or compete with any person in any material line of\nbusiness; or\n\n          (b) any \"material contract\" (as such term is defined in Item\n601(b)(10) of Regulation S-K of the SEC) with respect to the Company and its\nSubsidiaries.\n\n3.   Representations and Warranties of the Investor. The Investor hereby\nrepresents and warrants that:\n\n     3.1  Organization and Qualification. The Investor is a corporation duly\norganized, validly existing and in good standing under the laws of the\njurisdiction of its organization.\n\n     3.2  Authority Relative to This Agreement. The Investor has all necessary\ncorporate power and authority to execute and deliver this Agreement and the\nTransaction Agreements, to perform its obligations hereunder and thereunder and\nto consummate the transactions contemplated hereby or thereby. The execution and\ndelivery of this Agreement and the Transaction Agreements by the Investor and\nthe consummation by the Investor of the\n\n                                       7\n\n\n\ntransactions contemplated hereby or thereby have been duly and validly\nauthorized by all necessary corporate action, and no other corporate proceedings\non the part of the Investor are necessary to authorize this Agreement and the\nTransaction Agreements or to consummate the transactions contemplated hereby or\nthereby. Each of this Agreement and the Transaction Agreements has been (or in\nthe case of the Commercial Agreements will be) duly and validly executed and\ndelivered by the Investor and, assuming the due authorization, execution and\ndelivery by the Investor, constitutes a (or in the case of the Commercial\nAgreements, upon execution and delivery by the Company will constitute) legal,\nvalid and binding obligation of the Investor, enforceable against the Investor\nin accordance with its terms subject to the effect of any applicable bankruptcy,\ninsolvency (including, without limitation, all laws relating to fraudulent\ntransfers), reorganization, moratorium or similar laws affecting creditors'\nrights generally and subject to the effect of general principles of equity\n(regardless of whether considered in a proceeding at law or in equity). The\nInvestor's Board of Directors has approved this Agreement and the transactions\ncontemplated hereby.\n\n     3.3  No Conflict; Required Filings and Consents. (a) The execution and\ndelivery of this Agreement and the Transaction Agreements by the Investor do\nnot, and the performance of this Agreement and the Transaction Agreements by the\nInvestor will not, (i) conflict with or violate the organizational documents of\nthe Investor or (ii) conflict with or violate any Law applicable to the\nInvestor.\n\n          (b) The execution and delivery of this Agreement and the Transaction\nAgreements by the Company do not, and the performance of this Agreement and the\nTransaction Agreements by the Company will not, require any consent, approval,\nauthorization or permit of, or filing with or notification to, any Governmental\nAuthority.\n\n     3.4  Brokerage. There are no claims for brokerage commissions, finders'\nfees or similar compensation in connection with the transactions contemplated by\nthis Agreement and the Transaction Agreements for which Parent or the Investor\nwill have any liability or responsibility based on any arrangement or agreement\nbinding upon the Investor or any of its subsidiaries.\n\n     3.5  Purchase Entirely for Own Account. This Agreement is made with the\nInvestor in reliance upon the Investor's representation to the Company, which by\nthe Investor's execution of this Agreement the Investor hereby confirms, that\nthe Investor is an \"accredited investor\" within the meaning of Regulation D\npromulgated under the Securities Act, that the Common Stock and Warrant to be\nreceived by the Investor (collectively, the \"Securities\") will be acquired for\n                                             ----------\ninvestment for the Investor's own account, not as a nominee or agent, and not\nwith a view to the resale or distribution of any part thereof, and that the\nInvestor has no present intention of selling, granting any participation in, or\notherwise distributing the same other than in a transaction registered under the\nSecurities Act or exempt from, or not subject to, such registration. By\nexecuting this Agreement, the Investor further represents that the Investor does\nnot have any contract, undertaking, agreement or arrangement with any person to\nsell, transfer or grant participations to such person or to any third person,\nwith respect to any of the Securities.\n\n                                       8\n\n\n\n     3.6  Disclosure of Information. The Investor has been afforded access to\nsuch information as it has requested regarding the Company and its subsidiaries\nand their respective financial condition, operating results, properties,\nliabilities, operations and management.\n\n     3.7  Restricted Securities. The Investor understands that the Securities it\nis purchasing are characterized as \"restricted securities\" under the federal\nsecurities laws inasmuch as they are being acquired from the Company in a\ntransaction not involving a public offering and that under such laws and\napplicable regulations such securities may be resold without registration under\nthe Securities Act, only in certain limited circumstances. In this connection,\nthe Investor represents that it is familiar with Rule 144 under the Securities\nAct, as presently in effect (\"Rule 144\"), and understands the resale limitations\n                              --------\nimposed thereby and by the Securities Act.\n\n     3.8  Legends. It is understood that the certificates evidencing the\nSecurities may bear one or all of the following legend(s):\n\n     \"These securities have not been registered under the Securities Act of\n     1933, as amended. They may not be sold, offered for sale, pledged or\n     hypothecated in the absence of a registration statement in effect with\n     respect to the securities under such Act or an opinion of counsel\n     satisfactory to the Company that such registration is not required or\n     unless sold pursuant to Rule 144 of such Act.\"\n\n     \"The shares represented hereby are subject to certain restrictions under\n     the terms of the Investor Rights Agreement, dated May 21, 2002, as amended\n     from time to time, between the issuer and the holder hereof and may not be\n     offered, sold, transferred or otherwise disposed of except in accordance\n     with the terms of that agreement.\"\n\n     3.9  Holdings in Common Stock. Except for any shares of Common Stock held\nby the venture funds of Nokia Venture Partners, as of May 21, 2002, none of the\nInvestor or any Holder Affiliate (as such term is defined in Investor's Rights\nAgreement) owned any shares of Common Stock.\n\n4.   Conditions of the Investor to Effect the Closing. The obligations of the\nInvestor to consummate the transactions contemplated hereby are subject to the\nfulfillment or waiver (where permissible) on or before the Closing of each of\nthe following conditions:\n\n     4.1  Representations and Warranties. The representations and warranties of\nthe Company contained in Section 2 shall be true and correct as of the date\nhereof and as of the date of the Closing with the same effect as though such\nrepresentations and warranties had been made on and as of the date of such\nClosing.\n\n     4.2  Performance. The Company shall have performed and complied with all\nagreements, obligations and conditions contained in this Agreement that are\nrequired to be performed or complied with by it on or before the Closing.\n\n     4.3  Compliance Certificate. The President of the Company shall have\ndelivered to the Investor at the Closing a certificate stating that the\nconditions specified in Sections 4.1 and\n\n                                       9\n\n\n\n4.2 have been fulfilled. In addition, the Compliance Certificate shall state\nthe number of shares of the outstanding Common Stock of the Company immediately\nprior to the Closing.\n\n     4.4  Incumbency Certificate. The certificate of the Secretary of the\nCompany certifying the names and signatures of the officers of the Company\nauthorized to sign this Agreement and the other Transaction Agreements and all\nother documents to be delivered hereunder and thereunder.\n\n     4.5  Qualifications. All authorizations, approvals, or permits, if any, of\nany governmental authority or regulatory body of the United States or of any\nstate that are required in connection with the lawful issuance and sale of the\nSecurities pursuant to this Agreement shall have been duly obtained and\neffective as of the Closing.\n\n     4.6  Proceedings and Documents. All corporate and other proceedings in\nconnection with the transactions contemplated hereby and all documents incident\nto the Closing shall be reasonably satisfactory in form and substance to the\nInvestor's counsel, and they shall have received all such counterpart original\nand certified or other copies of such documents as they may reasonably request.\n\n     4.7  Board of Directors. The Company Board shall have taken all necessary\naction to increase the size of the Company Board to eight directors and to\nappoint Ari Lehtoranta to the Company Board, in each case effective immediately\nafter the Closing.\n\n     4.8  Investor's Rights Agreement. The Company shall have executed and\ndelivered to the Investor a counterpart to the Investor's Rights Agreement.\n\n     4.9  Warrant. The Company shall have executed and delivered to the Investor\nthe Warrant.\n\n     4.10 DGCL Section 203. The Company shall take all necessary steps to cause\nthe Investor not to be an \"interested stockholder\" pursuant to Section 203 of\nthe DGCL and to ensure that Section 203 of the DGCL does not apply to any of the\ntransactions contemplated by this Agreement or the Transaction Agreements\n(including, but not limited to, any exercise of the Warrant or actions permitted\npursuant to the Investor's Rights Agreement).\n\n     4.11 No Material Adverse Effect. No event or events shall have occurred, or\nbe reasonably likely to occur, which individually or in the aggregate, have or\ncould have, a Material Adverse Effect.\n\n5.   Conditions of the Company to Effect the Closing. The obligations of the\nCompany to consummate the transactions contemplated hereby are subject to the\nfulfillment or waiver (where permissible) on or before the Closing of each of\nthe following conditions:\n\n     5.1  Representations and Warranties. The representations and warranties of\nthe Investor contained in Section 3 shall be true and correct as of the date\nhereof and as of the date of Closing with the same effect as though such\nrepresentations and warranties had been made on and as of the Closing.\n\n                                       10\n\n\n\n     5.2 Performance. The Investor shall have performed and complied with all\nagreements, obligations and conditions contained in this Agreement that are\nrequired to be performed or complied with by it on or before the Closing.\n\n     5.3 Compliance Certificate. An authorized officer of the Investor shall\nhave delivered to the Company at the Closing a certificate stating that the\nconditions specified in Sections 5.1 and 5.2 have been fulfilled.\n\n     5.4 Power of Attorney. The Investor shall have delivered to the Company a\ncopy of the special power of attorney appointing Mr. Jorgen Smidt the true and\nlawful attorney for Ursula Ranin and Hannu Mustonen, each a director of the\nInvestor, in connection with this Agreement and the transactions contemplated\nhereby.\n\n     5.5 Proceedings and Documents. All corporate and other proceedings in\nconnection with the transactions contemplated at the hereby and all documents\nincident to the Closing shall be reasonably satisfactory in form and substance\nto the Company's counsel, and they shall have received all such counterpart\noriginal and certified or other copies of such documents as they may reasonably\nrequest.\n\n     5.6 Investor's Rights Agreement. The Investor shall have executed and\ndelivered a counterpart to the Investor's Rights Agreement.\n\n6.   Miscellaneous.\n\n     6.1 Survival of Representations, Warranties and Other Agreements. The\nrepresentations, warranties and other agreements of each of the Company and the\nInvestor, respectively, included or provided for in the Transaction Agreements,\nshall survive the execution and delivery of this Agreement, the other\nTransaction Agreements and the Closing and shall in no way be affected by any\ninvestigation of the subject matter thereof made by or on behalf of the Company\nor the Investor.\n\n     6.2 Successors and Assigns. Except as otherwise provided herein, the terms\nand conditions of this Agreement shall inure to the benefit of and be binding\nupon the respective successors and assigns of the parties (including transferees\nof any Securities). Nothing in this Agreement, express or implied, is intended\nto confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under\nor by reason of this Agreement, except as expressly provided in this Agreement.\n\n     6.3 Governing Law; Venue. This Agreement shall be governed by and construed\nunder the laws of the State of Delaware as applied to agreements executed in and\nto be performed entirely within Delaware.\n\n     6.4 Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n     6.5 Titles and Subtitles. The titles and subtitles used in this Agreement\nare used for convenience only and are not to be considered in construing or\ninterpreting this Agreement.\n\n                                       11\n\n\n\n     6.6  Notices. Unless otherwise provided, any notice required or permitted\nunder this Agreement shall be given in writing and shall be deemed effectively\ngiven upon personal delivery to the party to be notified or upon deposit with\nthe United States Post Office, by registered or certified mail, postage prepaid\nand addressed to the party to be notified at the address indicated for such\nparty on the signature page hereof, or at such other address as such party may\ndesignate by ten (10) days' advance written notice to the other parties given in\naccordance with this Section 6.6.\n\n     6.7  Expenses. Irrespective of whether the Closing is effected, each party\nshall pay all of the costs and expenses, including, without limitation, fees and\ndisbursements of counsel, financial advisors and accountants, that it incurs\nwith respect to the negotiation, execution, delivery and performance of the\nTransaction Agreements.\n\n     6.8  Amendments and Waivers. Any term of this Agreement may be amended only\nin writing signed by, or on behalf of, the Company and the Investor. At any time\nprior to the Closing, any party hereto may (a) extend the time for the\nperformance of any obligation or other act of any other party hereto, (b) waive\nany inaccuracy in the representations and warranties of any other party\ncontained herein or in any document delivered pursuant hereto and (c) waive\ncompliance with any agreement of any other party or any condition to its own\nobligations contained herein. Any such extension or waiver shall be valid if set\nforth in an instrument in writing signed by the party or parties to be bound\nthereby. Any waiver of any term or condition shall not be construed as a waiver\nof any subsequent breach or a subsequent waiver of the same term or condition,\nor a waiver of any other term or condition of this Agreement. The failure of any\nparty to assert any of its rights shall not constitute a waiver of any of such\nrights.\n\n     6.9  Severability. If any term or provision of this Agreement is held to be\nunenforceable under applicable Law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect\nso long as the economic or legal substance of the Transactions is not affected\nin any manner adverse to any party. Upon such determination that any term or\nother provision is invalid, illegal or incapable of being enforced, the parties\nhereto shall negotiate in good faith to modify this Agreement so as to effect\nthe original intent of the parties as closely as possible in a mutually\nacceptable manner in order that the transactions contemplated hereby are\nconsummated as originally contemplated to the fullest extent possible.\n\n     6.10 Publicity. No party hereto shall issue any press release or otherwise\nmake any statements to any third party with respect to this Agreement or the\ntransactions contemplated hereby without the prior written consent of the other\nparty, which consent shall not be unreasonably withheld, and the parties shall\ncooperate as to the timing and contents of any such press release or public\nannouncement.\n\n     6.11 Entire Agreement. This Agreement and the other Transaction Agreements\nconstitute the entire agreement among the parties with respect to the subject\nmatter hereof and supersedes all prior agreements and undertakings, both written\nand oral, among the parties, or any of them, with respect to the subject matter\nhereof.\n\n                                       12\n\n\n\n         IN WITNESS WHEREOF, the parties have executed this Common Stock and\nWarrant Purchase Agreement as of the date first above written.\n\n                                          REDBACK NETWORKS INC.\n\n\n                                          BY: \/S\/ KEVIN DENUCCIO\n                                              ------------------\n                                          Name:     Kevin DeNuccio\n                                          Title:    President and CEO\n                                          Address:  300 Holger Way\n                                                    San Jose, California 95134\n\n                                          NOKIA FINANCE INTERNATIONAL BV\n\n                                          BY: \/S\/ JORGEN SMIDT\n                                              ----------------\n                                          Name:     Jorgen Smidt\n                                          Title:    Attorney-in-Fact\n                                          Address:  6000 Connection Drive,\n                                                    Irving, Texas 75039\n\n                                          With copies to\n                                          Nokia Corporation\n                                          P.O. Box 226\n                                          FIN-00045\n\n                                          NOKIA GROUP\n                                          Keilalahdentie 4\n                                          FIN-02150\n                                          Espoo, Finland\n                                          Attn:  Ursula Ranin, Vice President,\n                                          General Counsel\n\n                                          and\n\n                                          Nokia Inc.\n                                          6000 Connection Drive\n                                          Irving, Texas 75039 USA\n                                          Attn: Richard W. Stimson,\n                                          Vice President, Legal Services\n\n                                       13\n\n\n\n                                                                       Exhibit A\n                                                                       ---------\n\n                                 Form of Warrant\n                                 ---------------\n\n\n                                       A-1\n\n\n\n\n                                                                       Exhibit B\n                                                                       ---------\n\n                       Form of Investor's Rights Agreement\n                       -----------------------------------\n\n                                      B-1\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8364,8660],"corporate_contracts_industries":[9516],"corporate_contracts_types":[9622,9627],"class_list":["post-43352","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-nokia-corp","corporate_contracts_companies-redback-networks-inc","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43352","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43352"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43352"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43352"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43352"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}