Wells Fargo Bank Indiana, N.A. (the "Bank") may be deemed to beneficially own 2,472,178 shares of Common Stock as a result of the voting trust agreement (the "Agreement"), among the Bank, as trustee, and Sprout Capital VI, L.P., Sprout Capital VIII, L.P., Sprout Venture Capital, L.P., DLJ ESC II, L.P., The Sprout CEO Fund, L.P., DLJ Capital Corporation, and Donaldson, Lufkin & Jenrette, Inc. (each, including any other person or entity for which Trust Shares (as defined below) are held by the Bank, a "Holder"). The 2,472,178 shares of Common Stock that the Bank may be deemed to beneficially own are issuable upon conversion of 443,440 shares of the Series B Preferred Stock and represent about 13% of the shares of Common Stock outstanding at November 3, 2000, assuming conversion of the 443,440 shares of Series B Preferred Stock into 2,472,178 shares of Common Stock.
The following discussion of the Agreement is qualified in its entirety by reference to the Agreement, which is filed as Exhibit 1 hereto and incorporated herein by reference.
Under the Agreement, the Bank issues certificates ("Trust Certificates") for shares of Series B Preferred Stock that have been transferred to and deposited with the Bank ("Trust Shares"). Each share of Series B Preferred Stock currently is convertible into 5.575 shares of Common Stock. Shares of Common Stock issued upon conversion of Series B Preferred Stock subject to the Agreement will become Trust Shares under the Agreement.
Under the Agreement, the Bank has the power to vote the Trust Shares in its sole discretion, subject to limitations on who it may communicate or consult with regarding the voting of the Trust Shares.
Under the Agreement, Trust Shares may only be transferred as directed by the Holders or otherwise in accordance with the terms of the Agreement. Holders may not transfer Trust Shares unless the proposed transfer qualifies as an eligible transfer under the Agreement.
The Agreement terminates on the earliest of (1) August 11, 2009, (2) the transfer of all Trust Shares in accordance with the Agreement, (3) the effective date of a liquidation or dissolution of the Issuer, or (4) the written election of Donaldson, Lufkin & Jenrette, Inc. or the Holders of Trust Certificates representing at least 50% of the Trust Shares, provided that prior to such election certain conditions set forth in the Agreement have been met.
Upon termination of the Agreement and the surrender by the Holders of their Trust Certificates to the Bank, the Bank will deliver certificates to the Holders for the number of shares of Common Stock or Series B Preferred Stock, as the case may be, represented by the Trust Certificates surrendered.
Wells Fargo & Company: Parent Holding Company in accordance with 240.13d-1(b)(1)(ii)(G)
Note=2001 company went bankruptcy. Company's assets purchased by Additional Technology
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