UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549

---

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No.     )*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ý

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

^* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(1)  Represents 2,250,000 outstanding shares of Common Stock and 1,419,000 shares of Common Stock issuable upon conversion of an aggregate of $17,500,000 in principal amount of general unsecured senior convertible promissory notes of the issuer held by the reporting person as of December 31, 2004.

 

(2)  Based on 49,030,542 shares of the issuer’s Common Stock outstanding, which is the sum of (i) 43,111,542 shares of the issuer’s Common Stock outstanding as of October 19, 2004, as reported on the issuer’s Quarterly Report on Form 10-Q filed on November 3, 2004, (ii) an additional 4,500,000 shares of Common Stock issued by the issuer on December 31, 2004, and (iii) the 1,419,000 shares of Common Stock by which the outstanding Common Stock of the issuer would increase as a result of the issuance of shares upon conversion of the notes held by the reporting person.

 

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(1)  Represents 2,250,000 outstanding shares of Common Stock and 1,419,000 shares of Common Stock issuable upon conversion of an aggregate of $17,500,000 in principal amount of general unsecured senior convertible promissory notes of the issuer held by the reporting person as of December 31, 2004, all of which are held indirectly by the reporting person through Tako Ventures, LLC.

 

(2)  Based on 49,030,542 shares of the issuer’s Common Stock outstanding, which is the sum of (i) 43,111,542 shares of the issuer’s Common Stock outstanding as of October 19, 2004, as reported on the issuer’s Quarterly Report on Form 10-Q filed on November 3, 2004, (ii) an additional 4,500,000 shares of Common Stock issued by the issuer on December 31, 2004, and (iii) the 1,419,000 shares of Common Stock by which the outstanding Common Stock of the issuer would increase as a result of the issuance of shares upon conversion of the notes held by the reporting person.

 

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(1)  Represents 2,250,000 outstanding shares of Common Stock and 1,419,000 shares of Common Stock issuable upon conversion of an aggregate of $17,500,000 in principal amount of general unsecured senior convertible promissory notes of the issuer held by the reporting person as of December 31, 2004, all of which are held indirectly by the reporting person through Tako Ventures, LLC.

 

(2)  Based on 49,030,542 shares of the issuer’s Common Stock outstanding, which is the sum of (i) 43,111,542 shares of the issuer’s Common Stock outstanding as of October 19, 2004, as reported on the issuer’s Quarterly Report on Form 10-Q filed on November 3, 2004, (ii) an additional 4,500,000 shares of Common Stock issued by the issuer on December 31, 2004, and (iii) the 1,419,000 shares of Common Stock by which the outstanding Common Stock of the issuer would increase as a result of the issuance of shares upon conversion of the notes held by the reporting person.

 

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(1)  Represents 4,500,000 outstanding shares of Common Stock and 2,838,000 shares of Common Stock issuable upon conversion of an aggregate of $35,000,000 in principal amount of general unsecured senior convertible promissory notes of the issuer held by the reporting person as of December 31, 2004, including 2,250,000 outstanding shares of Common Stock and 1,419,000 shares of Common Stock issuable upon conversion of promissory notes of the issuer held indirectly by the reporting person through Tako Ventures, LLC.

 

(2)  Based on 50,449,542 shares of the issuer’s Common Stock outstanding, which is the sum of (i) 43,111,542 shares of the issuer’s Common Stock outstanding as of October 19, 2004, as reported on the issuer’s Quarterly Report on Form 10-Q filed on November 3, 2004, (ii) an additional 4,500,000 shares of Common Stock issued by the issuer on December 31, 2004, and (iii) the 2,838,000 shares of Common Stock by which the outstanding Common Stock of the issuer would increase as a result of the issuance of shares upon conversion of the notes held directly and indirectly by the reporting person.

 

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This statement on Schedule 13D (“Schedule 13D”) relating to C-COR Incorporated, a Pennsylvania corporation, is being filed on behalf of the undersigned to amend the Schedule 13G filed with the Commission on January 10, 2005 (the “Schedule 13G”).  The Schedule 13G is superseded in its entirety by the information provided in this Schedule 13D.

 

Item 1.	Security and Issuer
This statement on Schedule 13D relates to the Common Stock (“Common Stock”) of C COR, Incorporated, a Pennsylvania corporation (“C-Cor” or the “Issuer”).  The principal executive offices of the Issuer are located at 60 Decibel Road, State College, PA 16801.
Item 2.	Identity and Background
This statement is being filed jointly by:  (A) Tako Ventures, LLC; (B) Cephalopod Corporation; (C) Lawrence Investments, LLC; and (D) Lawrence J. Ellison, who are together referred to as the “Reporting Persons.”  This Schedule 13D relates solely to, and is being filed for, the investment by Tako, Cephalopod, Lawrence Investments, and Lawrence J. Ellison and does not relate to any investment by Oracle Corporation or by Lawrence J. Ellison in his capacity as Chief Executive Officer of Oracle Corporation.  This Statement is based upon the direct and indirect beneficial ownership of shares of the Issuer by Lawrence J. Ellison, Tako, Cephalopod, and Lawrence Investments.
(A)          Tako Ventures, LLC   Tako Ventures, LLC (“Tako”) is a California limited liability company whose principal office address is 101 Ygnacio Valley Road, Suite 320, Walnut Creek, CA 94596.  Tako’s principal business is to make and hold investments made on behalf of Mr. Ellison.  Tako has no executive officers or directors.  Tako is managed directly by its members, Cephalopod Corporation (which is the managing member) and Lawrence Investments, LLC.   (B)           Cephalopod Corporation   Cephalopod Corporation (“Cephalopod”) is a California corporation whose principal office address is 101 Ygnacio Valley Road, Suite 320, Walnut Creek, CA 94596.  Cephalopod’s principal business is to manage and act as a holding company for entities that make and hold private equity investments made on behalf of Mr. Ellison.  Mr. Ellison is the Chief Executive Officer and Chief Financial Officer of Cephalopod.  Philip B. Simon is the sole director of Cephalopod and also the President and Secretary of Cephalopod.   (C)           Lawrence Investments, LLC   Lawrence Investments, LLC (“Lawrence Investments”) is a California limited liability company whose principal office address is 101 Ygnacio Valley Road, Suite 320, Walnut Creek, CA 94596.  Lawrence Investment’s principal business is to manage and act as a holding company for entities that make and hold private equity investments made

 

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on behalf of Mr. Ellison.  Lawrence Investments has no directors.  Lawrence Investments is managed by its members, who are the Lawrence J. Ellison Revocable Trust U/D/D 12/8/95 (the “Ellison Trust”), Philip B. Simon and Steven B. Fink.  Mr. Fink is the Chief Executive Officer of Lawrence Investments, and Mr. Simon is the President of Lawrence Investments.   Mr. Ellison is the sole beneficiary and a co-trustee of the Ellison Trust.  Mr. Simon is the other co-trustee of the Ellison Trust.  The Ellison Trust was formed under the laws of the State of California, its principal business is to hold the assets and estate of Mr. Ellison, and its business address is 101 Ygnacio Valley Road, Suite 320, Walnut Creek, CA 94596.   Mr. Fink is a citizen of the United States of America.  His principal employment is as Chief Executive Officer of Lawrence Investments, and his principal business address is 1250 4th Street, Santa Monica, CA 90401.   Mr. Simon is a citizen of the United States of America.  His principal employment is as a principal of Howson & Simon LLP, an accounting and wealth management advisory firm.  His principal business address is 101 Ygnacio Valley Road, Suite 310, Walnut Creek, CA 94596.   (D)          Lawrence J. Ellison   Lawrence J. Ellison is a citizen of the United States of America.  His principal employment is as Chief Executive Officer of Oracle Corporation.  Mr. Ellison’s and Oracle’s business address is 500 Oracle Parkway, Redwood Shores, CA 94065.  Oracle is the world’s largest provider of enterprise software.  For purposes of the federal securities laws, Mr. Ellison may be deemed to be the person ultimately in control Tako, Cephalopod and Lawrence Investments.   During the last five years, none of the Reporting Persons, and neither the Ellison Trust, Mr. Simon nor Mr. Fink, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws.
Item 3.	Source and Amount of Funds or Other Consideration
The Common Stock of C-Cor beneficially owned by the Reporting Persons was acquired by them in consideration of the acquisition by C-Cor of the business assets of nCUBE Corporation (“nCUBE”).  nCUBE is a privately held company based in Beaverton, Oregon that is substantially owned and controlled by the Reporting Persons.   On December 31, 2004, nCUBE transferred substantially all of its business assets to nCUBE Sub, LLC (“Sub”), and nCUBE then sold all of the membership interests in Sub to a

 

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wholly-owned, indirect subsidiary of C-Cor, pursuant to the terms of a Member Interest Purchase Agreement, dated October 20, 2004, as amended, by and among C-Cor, its subsidiary, nCUBE, and Sub (the “Sale Agreement”).  A copy of the Sale Agreement is attached hereto as Exhibit 1, and a copy of an amendment to the Sale Agreement is attached hereto as Exhibit 2.   In partial consideration for the sale of the business assets of nCUBE, Tako and the Ellison Trust, as creditors of nCUBE, received an aggregate of 4,500,000 shares of C-Cor Common Stock and $35,000,000 in principal amount of general unsecured senior notes that are convertible into shares of C-Cor common stock (the “Convertible Notes”) pursuant to the terms of an Indenture by and between C-Cor and Wachovia Bank, National Association, as trustee (the “Indenture”). The Convertible Notes are convertible at the option of the holder into Common Stock of the Issuer at a conversion price of $12.33, subject to adjustment in certain circumstances.  At the initial conversion price, each $1,000.00 in principal amount of Convertible Notes is convertible into approximately 81.0905 shares of Common Stock.  Subject to certain exceptions, the Convertible Notes are convertible at the option of the holder at any time prior to December 31, 2009.  Of the 4,500,000 shares of Common Stock received by Tako and the Ellison Trust, 1,043,176 of such shares were deposited into an escrow account pursuant to the terms of the Sale Agreement.
Item 4.	Purpose of Transaction
The Reporting Persons acquired the Common Stock and Convertible Notes as consideration in the transaction described under Item 3, and hold the securities of C-Cor currently beneficially owned by them for general investment purposes.  They retain the right to change their investment intent.  On January 19, 2005, Steven B. Fink, who is a member and the Chief Executive Officer of Lawrence Investments, was elected to the Board of Directors of C-Cor.  There is no contractual or other obligation or arrangement between C-Cor and any of the Reporting Persons (or other persons who manage, own or control the Reporting Persons) with respect to the election of Mr. Fink to the Board of Directors of C-Cor.   Except as set forth herein or in the exhibits attached hereto, none of the Reporting Persons has any plans or proposals that relate to or would result in any of the transactions or events described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5.	Interest in Securities of the Issuer

 

	(a)	Amount beneficially owned:
		Tako, Cephalopod, Lawrence Investments: 3,669,000 (1)(3)
		Lawrence J. Ellison: 7,338,000 (2)(3)
		Percent of class:
		Tako, Cephalopod, Lawrence Investments: 7.5% (4)
		Lawrence J. Ellison: 14.5% (5)

 

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		(b)	Number of shares as to which each such person has:
			(i)	Sole power to vote or to direct the vote:
				Tako, Cephalopod, Lawrence Investments: 3,669,000 (1)(3)
				Lawrence J. Ellison: 7,338,000 (2)(3)
			(ii)	Shared power to vote or to direct the vote:
				n/a
			(iii)	Sole power to dispose or to direct the disposition of:
				Tako, Cephalopod, Lawrence Investments: 3,669,000 (1)(3)
				Lawrence J. Ellison: 7,338,000 (2)(3)
			(iv)	Shared power to dispose or to direct the disposition of:
				n/a
Notes:   (1)  Of the total amount shown:   (i)            2,250,000 outstanding shares of the Issuer’s Common Stock are held directly by Tako.   (ii)           Approximately 1,419,000 shares of the Issuer’s Common Stock are issuable to Tako upon conversion of $17,500,000 in principal amount of Convertible Notes held directly by Tako.  (See Item 3 for a summary of the terms under which these notes may be converted into shares of the Issuer’s Common Stock).   (2)  Of the total amount shown:   (i)            2,250,000 outstanding shares of the Issuer’s Common Stock are held directly by Tako.   (ii)           2,250,000 outstanding shares of the Issuer’s Common Stock are held by Lawrence J. Ellison (held of record by the Ellison Trust).   (iii)          Approximately 1,419,000 shares of the Issuer’s Common Stock are issuable to Tako upon conversion of $17,500,000 in principal amount of Convertible Notes held directly by Tako.  (See Item 3 for a summary of the terms under which these notes may be converted into shares of the Issuer’s Common Stock).   (iv)          Approximately 1,419,000 shares of the Issuer’s Common Stock are issuable to the Ellison Trust upon conversion of $17,500,000 in principal amount of Convertible Notes held directly by the Ellison Trust.  (See Item 3 for a summary of the terms under which these notes may be converted into shares of the Issuer’s Common Stock).

 

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(3)   Cephalopod and Lawrence Investments together control Tako, and may be deemed to have voting and investment power over the shares of the Issuer held directly by Tako.  Lawrence J. Ellison controls both Cephalopod and Lawrence Investments, and may be deemed to have voting and investment power over the shares of the Issuer held directly or indirectly by those entities.   (4)   Calculations are based on 49,030,542 shares of the Issuer’s Common Stock outstanding, which is the sum of (i) 43,111,542 shares of the Issuer’s Common Stock outstanding as of October 19, 2004, as reported on the Issuer’s Quarterly Report on Form 10-Q filed on November 3, 2004, (ii) the additional 4,500,000 shares of Common Stock issued by the Issuer to the Reporting Persons on December 31, 2004, and (iii) 1,419,000 shares of Common Stock by which the outstanding Common Stock of the Issuer would increase as a result of the issuance of shares upon conversion of the Convertible Notes mentioned in footnote 1(ii).   (5)   Calculations are based on 50,449,542 shares of the Issuer’s Common Stock outstanding, which is the sum of (i) 43,111,542 shares of the Issuer’s Common Stock outstanding as of October 19, 2004, as reported on the Issuer’s Quarterly Report on Form 10-Q filed on November 3, 2004, (ii) the additional 4,500,000 shares of Common Stock issued by the Issuer to the Reporting Persons on December 31, 2004, and (iii) 2,838,000 shares of Common Stock by which the outstanding Common Stock of the Issuer would increase as a result of the issuance of shares upon conversion of the Convertible Notes mentioned in footnote 2(iii) and (iv).   (c)           To the best knowledge of the Reporting Persons, and except as described in Item 3 herein, none of the Reporting Persons and neither the Ellison Trust, Mr. Simon nor Mr. Fink has effected any transactions in the Common Stock during the past 60 days.   (d)           No other person is known by the Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities, with respect to shares of Common Stock beneficially owned by the Reporting Persons.   (e)           Inapplicable.
Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Mr. Ellison (holding of record under the Ellison Trust) and Tako acquired the shares of Common Stock and the Convertible Notes directly from the Issuer pursuant to the terms of a Member Interest Purchase Agreement, dated as of October 20, 2004 (the “Sale Agreement”).  A copy of the Sale Agreement and an amendment to the Sale Agreement are attached hereto as Exhibits 1 and 2, respectively.   Under the terms of the Sale Agreement, 1,043,176 of the shares of Common Stock issued to the Reporting Persons pursuant to the Sale Agreement are held in escrow pursuant to an Escrow Agreement dated December 31, 2004.  Such shares are to be released from the escrow account at the end of a period of time determined based on the date of filing of C-Cor’s Annual Report on Form 10-K for the fiscal year ending June 30, 2005 and on the number of days until receipt by C-Cor of the

 

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Supplemental Financial Statements (as defined in the Sale Agreement).  A copy of the Escrow Agreement is attached hereto as Exhibit 3.
Tako and the Ellison Trust have entered into Lock-Up Agreements, dated December 17, 2004, pursuant to which Tako and the Ellison Trust have agreed not to sell, loan, transfer, pledge or agree to sell, loan, transfer or pledge 50% of the shares of Common Stock received by them or deposited into escrow pursuant to the Sale Agreement.  A form of the Lock-Up Agreement is attached hereto as Exhibit 4.   The Convertible Notes were issued pursuant to the terms of the Indenture by and between C-Cor and Wachovia Bank, National Association, as trustee.  The Convertible Notes bear interest at the annual rate of 3.5%, payable semi-annually.  The Convertible Notes are general unsecured obligations, and rank equal in right of payment to all other existing and future unsecured and unsubordinated indebtedness of C-Cor.  Beginning December 31, 2007, C-Cor, at its option, may call the Convertible Notes by paying principal and accrued interest, as set forth in the Indenture.  A copy of the Indenture and the form of the Convertible Note are attached hereto as Exhibits 5 and 6, respectively.   The foregoing descriptions of, and references to, the Sale Agreement, amendment to the Sale Agreement, Escrow Agreement, Lock-Up Agreements, Indenture and Convertible Notes are qualified in their entirety by reference to the applicable documents, which are attached as Exhibits 1, 2, 3, 4, 5 and 6 hereto, respectively.   The operating agreements and other charter documents of Tako, Cephalopod and Lawrence Investments include provisions with respect to the ownership and distribution of securities held by those entities.  Under those agreements and charter documents, Mr. Ellison effectively owns and controls all the assets and securities held by those entities, including the securities of the Issuer beneficially owned by them.  Mr. Fink and Mr. Simon, as members of Lawrence Investments, each have an allocated minority interest in the overall profits and losses in the investments made or managed by Lawrence Investments, including the investments represented by the securities of C-Cor held by the Reporting Persons.   Except for the agreements described above, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss or the giving or withholding of proxies, among the persons enumerated in Item 2, or between them and any other person, with respect to any securities of C-Cor, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities.
Item 7.	Material to Be Filed as Exhibits
Exhibit 1         Member Interest Purchase Agreement, dated as of October 20, 2004, by and among C-Cor Incorporated, Broadband Management Solutions LLC, nCUBE Corporation and nCUBE SUB LLC, (incorporated by reference to

 

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Exhibit 2.1 of C-Cor’s Form 10-Q for the quarter ended September 24, 2004, filed November 3, 2004)   Exhibit 2         Amendment to Member Interest Purchase Agreement, dated as of December 30, 2004, by and among C-Cor Incorporated, Broadband Management Solutions LLC, nCUBE Corporation and nCUBE SUB LLC (incorporated by reference to Exhibit 2.2 of C-Cor’s Form 8-K, filed January 6, 2005)   Exhibit 3         Escrow Agreement, dated as of December 31, 2004, among Broadband Management Solutions, LLC, The Lawrence J. Ellison Revocable Trust U/D/D 12/8/95, Tako Ventures, LLC, nCUBE Corporation and Law Debenture Trust Company of New York, as Escrow Agent   Exhibit 4         Form of Lock-Up Agreement, dated December 17, 2004   Exhibit 5         Indenture, dated as of December 31, 2004 between C-Cor Incorporated and Wachovia Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 of C-Cor’s Form 8-K, filed January 6, 2005)   Exhibit 6         Form of 3.5% Convertible Senior Unsecured Notes due 2009 (incorporated by reference to Exhibit A to Exhibit 4.1 of C-Cor’s Form 8-K, filed January 6, 2005)   Exhibit 7         Joint Filing Agreement, dated as of January 28, 2005, by and among Tako Ventures, LLC, Cephalopod Corporation, Lawrence Investments, LLC, and Lawrence J. Ellison

 

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Signature

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

Date: January 31, 2005
	Lawrence Investments, LLC
	/s/ Philip B. Simon
	Name: Philip B. Simon
	Its: Member
	Tako Ventures, LLC
	By:  Cephalopod Corporation, Member
	/s/ Philip B. Simon
	Name: Philip B. Simon
	Its: President
	Lawrence J. Ellison
	By:	/s/ Philip B. Simon
	by Philip B. Simon, his attorney in fact
	Cephalopod Corporation
	/s/ Philip B. Simon
	Name: Philip B. Simon
	Its: President

 

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EXHIBITS

 

3		Escrow Agreement, dated as of December 31, 2004, among Broadband Management Solutions, LLC, The Lawrence J. Ellison Revocable Trust U/D/D 12/8/95, Tako Ventures, LLC, nCUBE Corporation and Law Debenture Trust Company of New York, as Escrow Agent
4		Form of Lock-Up Agreement, dated December 17, 2004
7		Joint Filing Agreement

 

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Exhibit 3

 

ESCROW AGREEMENT

 

This Escrow Agreement (this “Agreement”) is entered into this 31^st day of December, 2004 by and among Broadband Management Solutions, LLC (“BMS”), The Lawrence J. Ellison Revocable Trust U/D/D 12/8/95 (the “Trust”), as amended, Tako Ventures, LLC (“Tako”), nCUBE Corporation (“nCUBE” and together with the Trust, Tako and BMS, the “Depositors”) and Law Debenture Trust Company of New York, as Escrow Agent (the “Escrow Agent”).

 

BACKGROUND

 

A.  Pursuant to that certain Member Interest Purchase Agreement, by and among C-COR Incorporated (“C-COR”), BMS, nCUBE and nCUBE Sub, LLC (“Sub”) (the “Purchase Agreement”), attached as Exhibit A hereto, Depositors have agreed, in connection with the contribution by nCUBE of certain assets and liabilities to Sub and the purchase of Sub’s outstanding member interest units by BMS, the purchase of the Business Intellectual Property by Broadband Royalty Corporation and the purchase of the Subsidiary Interests by C-COR Europe Holdings, B.V. (together, the “Transaction”), to deposit certain cash and/or shares of C-COR Common Stock, par value $0.05 per share (the “Common Stock”), into escrow by BMS (the “Transaction”) for indemnification purposes.  Except as provided herein, capitalized terms used but not defined herein have the meanings given to such terms in the Purchase Agreement.

 

B.  Pursuant to the Purchase Agreement, at nCUBE’s direction, a portion of the purchase price will be paid using shares of Common Stock of C-COR Incorporated (“C-COR”), and such shares of Common Stock will be issued directly to the Trust and Tako.

 

C.  Pursuant to Section 2.3 of the Purchase Agreement, C-COR is depositing into escrow with the Escrow Agent Zero and No/100 Dollars ($0) (the “Escrow Cash Amount”) and 1,043,176 shares of Common Stock of C-COR (the “Escrow Shares”, and together with the Escrow Cash Amount, as such Escrow Shares and Escrow Cash Amount may be decreased or increased from time to time pursuant to the terms of this Agreement, the “Escrow Property”).

 

D.  The Depositors wish to provide for the appointment of an escrow agent to hold the Escrow Property to be deposited into escrow and to set forth the terms and conditions consistent with the Purchase Agreement under which the Escrow Property held in escrow shall be disbursed by the Escrow Agent.

 

E.  The Depositors desire that the Escrow Property be held by the Escrow Agent until a period of time equal to the number of days from the Closing Date to the date C-COR’s Annual Report on Form 10-K for the 2005 fiscal year is filed with the SEC plus the number of calendar days from the Closing Date of receipt by BMS of the Supplemental Financial Statements (as defined in the Purchase Agreement), at which time the balance remaining of the Escrow Property shall be released to the Trust and Tako, subject to certain limitations contained herein.

 

 

AGREEMENT

 

NOW, THEREFORE, intending to be legally bound hereby, the parties hereto agree as follows:

 

1.  Appointment of Escrow Agent.  Depositors hereby appoint the Escrow Agent as the escrow agent under this Agreement and the Escrow Agent hereby accepts such appointment and agrees to hold and deposit the Escrow Property and all other consideration deposited into escrow with it pursuant to the Purchase Agreement, together with all proceeds thereon, in accordance with the terms hereof, and to perform its other duties hereunder.  One half of the escrow fees for Escrow Agent’s performance of this Agreement shall be invoiced to, and payable by the Trust and Tako and one half shall be invoiced to, and payable by BMS in accordance with the “Fee Schedule” attached hereto as Schedule B.

 

2.  Acknowledgment of Receipt of the Escrow Property.  Concurrently with the execution of this Agreement, the Escrow Agent acknowledges it has received (i) delivery of shares of common stock representing the Escrow Shares, and (ii) an amount of cash equal to the Escrow Cash Amount.  Escrow Agent shall hold the Escrow Property, together with all interest thereon, subject to the terms and conditions of this Agreement in accounts created by Escrow Agent on behalf of the Depositors as specified below.

 

Account Number		Account Name
80018		BMS/nCUBE escrow account for cash
80023		BMS/nCUBE escrow account for shares

 

The accounts created by the Escrow Agent for the Escrow Property deposited with it hereunder are herein collectively called the “Escrow Accounts.”  Except as contemplated by this Agreement, neither the Escrow Property nor any beneficial interest therein may be pledged, sold, assigned or transferred, including by operation of law, by Escrow Agent, BMS, the Trust or Tako, nor shall the Escrow Property or any beneficial interest therein be subject to attachment or otherwise taken or reached by any legal or equitable process in satisfaction of any debt or other liability, except as expressly set forth herein, before the Escrow Property, if any, is transferred by the Escrow Agent to BMS or nCUBE pursuant to the terms hereof.

 

3.  Escrow Property.  As long as any Escrow Shares are held in the Escrow Accounts, and pending the distribution thereof to BMS, the Trust or Tako, as the case may be, in connection with any distributions from the Escrow Accounts in accordance with the terms hereof:

 

(a)           In accordance with nCUBE’s written direction with respect to the relative ownership interests of the Trust and Tako, each of the Trust and Tako will have all rights with respect to its pro rata portion of the Escrow Shares (including, without limitation, with respect to the Escrow Shares the right to vote such shares as set forth in Section 3(b) below), except (i) the right of possession thereof or (ii) the right to sell, assign, pledge, hypothecate or otherwise dispose of or encumber such Escrow Shares or any interest therein.

 

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(b)           In accordance with nCUBE’s written direction with respect to the relative ownership interests of the Trust and Tako, each of the Trust and Tako shall have the right to exercise any voting rights with respect to its pro rata portion of the Escrow Shares.  The Trust and Tako shall direct the Depositary Agent in writing as to the exercise of any voting rights of the Trust and Tako, and the Depositary Agent shall comply with any such directions of the Trust and Tako.  In the absence of such directions, the Depositary Agent shall not vote any of the Escrow Shares.

 

(c)           All dividends or distributions of any kind (other than distributions described in the following sentence) on Escrow Shares (“Escrow Share Income”) shall not be retained in the Escrow Accounts and shall not be treated as Escrow Property, but shall be distributed to the Trust and Tako in accordance with their ownership interests, promptly upon the addition of such Escrow Share Income into the Escrow Accounts.  Any shares of Common Stock of C-COR or other equity equivalent securities issued or distributed by C-COR in respect of Escrow Shares that have not been released from the Escrow Accounts (excluding any shares of Common Stock of C-COR or other equity equivalent securities so issued or distributed that are taxable, pursuant to Section 301 of the Code, to the beneficial owner of such shares or securities) shall be deposited and included in the Escrow Accounts.

 

(d)           The Trust and Tako shall each be responsible for and shall pay and discharge its pro rata portion of all taxes, assessments and governmental charges imposed on or with respect to the Escrow Property.  The parties hereto agree to treat the Escrow Property as owned by the Trust and Tako in accordance with their ownership interests, in all cases to the extent not distributed to BMS pursuant to Section 6 hereof, and to file all Tax Returns on a basis consistent with such treatment.  Unless otherwise required by law, the parties hereto shall (i) treat all Escrow Income as having been received by the Trust and Tako for United States federal income tax purposes, and (ii) report Escrow Income as income of the Trust and Tako and report related expenses as expenses of the Trust and Tako for United States federal income tax purposes.   For purposes of this Agreement, “Escrow Income” shall mean Escrow Cash Income and Escrow Share Income.

 

(e)           If, after the date of this Agreement, the Escrow Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the provisions of this Agreement shall be correspondingly adjusted to the extent appropriate to reflect equitably such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.

 

(f)            At any time and from time to time after the date hereof, pursuant to the written instructions from nCUBE delivered to the Escrow Agent with respect to the relevant interests of the Trust and Tako, the Trust and Tako may substitute cash for all or any portion of the Escrow Shares.  Upon receipt of immediately available funds into the Escrow Accounts and joint written instructions of BMS and nCUBE, the Escrow Agent shall distribute to the Trust and Tako the number of Escrow Shares set forth in such joint written instructions, which shall be valued at the volume-weighted average price per share of C-COR Common Stock as reported by Bloomberg L.P. on the NASDAQ

 

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National Market System for the ten (10) consecutive Trading Days immediately preceding the business day prior to the date of distribution of such funds.  The Escrow Agent shall not be responsible for the calculations described in this Section 3(f).

 

(g)           In the event Escrow Shares are distributed or transferred by the Escrow Agent hereunder, C-COR, BMS, the Trust and Tako, and, upon the written direction of BMS and C-COR, the Escrow Agent shall take such action as may be necessary to cause appropriate certificates to be issued and delivered with respect to such distribution or transfer of Escrow Shares.

 

4.  Wire Transfer Instructions.  The wiring instructions for each party to this Agreement are as follows:

 

(a)	For BMS:
	Bank Name:
	ABA #:
	Clearing/Beneficiary A/C #:
	FFC A/C #:
	Trading / Beneficiary Name:
	Comment: Attn:
(b)	For nCUBE:
	Bank Name:
	ABA #:
	Account Name:
	A/C #:
(c)	For Escrow Agent:

 

For Cash		For Stock
Citibank, NA		Adam Berman
ABA		Vice President
Law Debenture Collection Account		Law Debenture Trust Company of New York
Account #		767 Third Avenue, 31st Floor
Ref. C-COR/nCUBE		New York, NY 10017
Account

 

5.  Investment of Escrow Account.

 

(a)  Escrow Agent shall maintain and invest the Escrow Cash Amount as described below, or in such other investment vehicle (hereinafter referred to as the “Fund”) as the Trust and Tako from time to time may jointly request in writing to the Escrow Agent to use for any or all of the Escrow Cash Amount.

 

Account Number		Investment Election
80018		Goldman Sachs FS

 

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(b)  Escrow Agent represents that the Fund investment advisor, custodian, distributor and/or other service provider as described in the Fund prospectus previously provided to the Depositors are not affiliates of the Escrow Agent, and investment in the Fund includes approval of the Fund’s fees and expenses as detailed in the Fund prospectus, including advisory and custodial fees and shareholder service expenses (which may be so called 12b-1 shareholder service fees), which fees and expenses are paid to the investment advisor or the Escrow Agent as the case may be.  The shares of the Fund are not deposits or obligations of, or guaranteed by, any bank including the Escrow Agent, or any of its affiliates, nor are they insured by the Federal Deposit Insurance Corporation, the Federal Reserve Board or any other agency.  Investment in the Fund involves investment risk, including possible loss of principal.

 

(c)  Should the Trust and Tako wish to invest in direct investments, all cash associated with direct investments that are unable to be invested due to overages shall remain uninvested until such cash is disbursed or such overage no longer exists.  All fees charged by the investment manager in relation to the direct investment shall be deducted from the Escrow Property.

 

(d)  Each Depositor shall receive a detailed monthly statement of receipts, disbursements and the balance of the portion of the Escrow Property invested pursuant to this Section 4.

 

6.  Termination and Release of Escrow Property.

 

(a)  The Escrow Agent shall only distribute the Escrow Property to either a Purchaser Indemnitee (as defined in the Purchase Agreement), the Trust and Tako, or their designee, as the case may be, in accordance with this Section 6(a).

 

(i)            In the event a Purchaser Indemnitee asserts that it is entitled to release (a “Claim” and such amount, the “Claim Amount”) of Escrow Property, then a Purchaser Indemnitee shall deliver a written notice (a “Claim Notice”) to the Escrow Agent and to nCUBE, the Trust and Tako with a certification of an officer or authorized person of such Purchaser Indemnitee certifying delivery of the Claim Notice to nCUBE, the Trust and Tako.  Such Claim Notice (A) shall state that such Purchaser Indemnitee has paid or accrued or incurred Damages for which it has the right to indemnification pursuant to Section 11 of the Purchase Agreement, (B) shall set forth in reasonable detail the nature of the Claim and (C) shall state the Claim Amount requested to be released to such Purchaser Indemnitee from the Escrow Property to satisfy such Claim, the individual items included in the Claim Amount and the date each such item was paid or accrued or incurred; provided, that, the Claim Amount shall not exceed the Escrow Property then held by the Escrow Agent.  In the event that nCUBE does not dispute such Claim as provided herein within fifteen (15) business days after the delivery date certified in such Claim Notice, the Escrow Agent shall, subject to the following, promptly release to such Purchaser Indemnitee a combination of the Escrow Cash Amount and Escrow Shares, determined as set forth in Section 6(e) hereof, equal to the Claim Amount.  For the purposes of determining the amount of Escrow Shares to be released to such Purchaser Indemnitee out of the Escrow Property pursuant to this paragraph, such Escrow Shares shall be valued at the volume-weighted average price per share of C-COR Common Stock as reported by Bloomberg L.P. on the NASDAQ National Market System for the ten (10) consecutive Trading Days immediately

 

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preceding the business day prior to the date of distribution of such Escrow Shares.  The Escrow Agent shall not be responsible for calculating the value of shares to be released pursuant to this Section 6(a)(i).

 

(ii)           For a period of fifteen (15) business days after any delivery of a Claim Notice, the Escrow Agent shall make no delivery of any Escrow Property pursuant to Section 6(a)(i) hereof unless the Escrow Agent shall have received written authorization from BMS and nCUBE to make such delivery.  After the expiration of such fifteen (15) business day period, the Escrow Agent shall make delivery of the Escrow Property in accordance with Section 6(a)(i) hereof; provided, that no such payment or delivery shall be made if nCUBE, the Trust or Tako shall object in a written notice (a “Notice of Dispute”) and such Notice of Dispute shall have been delivered to BMS and the Escrow Agent prior to the expiration of such fifteen (15) business day period.  Any Notice of Dispute shall set forth the objections of nCUBE, the Trust or Tako to the Claim Notice and set forth in reasonable detail, the reasons why such Purchaser Indemnitee is not entitled to all or any portion of the Claim Amount.  If none of nCube, the Trust or Tako delivers a Notice of Dispute to BMS and the Escrow Agent before such fifteenth (15th) business day, or if portions of the Claim Notice are not disputed (the “Undisputed Portions”), then the Claim Amount or the Undisputed Portions, as applicable, shall be conclusive and binding on the applicable parties.

 

(iii)          If BMS and the Escrow Agent receive a Notice of Dispute before such fifteenth (15^th) business day, BMS, nCUBE, the Trust and Tako shall negotiate in good faith and use all reasonable efforts to agree upon the respective rights and obligations of such Purchaser Indemnitee and nCUBE, the Trust and Tako.

 

(iv)          If the Escrow Agent receives a Notice of Dispute before such fifteenth (15^th) business day, the Escrow Agent shall not release to BMS any Escrow Property that are the subject of the Notice of Dispute until, and then shall release such Escrow Property only at such times and to the extent that, the Escrow Agent receives: (A) written instructions signed by both BMS on the one hand and nCUBE, the Trust or Tako on the other hand directing the Escrow Agent to distribute all or any portion of the Escrow Property; (B) an award, judgment or decree of an arbitrator or arbitration panel resulting from an arbitration proceeding conducted pursuant to the Purchase Agreement directing Escrow Agent to distribute all or any portion of the Escrow Property; (C) an order entered by a court of competent jurisdiction directing Escrow Agent to distribute all or any portion of the Escrow Property.  The Escrow Agent may rely on the advice of counsel to determine whether any award, judgment or decree delivered pursuant to subsection (B) or (C) above is final (Subsections (A), (B) and (C) each constituting a “Final Order”).  Within five (5) business days after receipt of any instruction or Final Order, the Escrow Agent shall release the applicable Escrow Property in accordance with the terms of such instructions or Final Order.

 

(b)  All interest and other earnings from investment of the Escrow Cash (“Income”) shall be paid to Tako and the Trust in accordance with their ownership percentages, upon the final distribution and termination of this escrow fund.  Depositors shall provide the Escrow Agent with a Form W-9 or Form W-8 prior to the closing date of this Agreement.  A statement of citizenship and compliance with the USA PATRIOT Act of 2001, if applicable, shall be provided to the Escrow Agent if so requested.

 

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(c)  This Agreement shall terminate upon the final payment by the Escrow Agent of the Escrow Property and interest thereon to BMS or the Trust and Tako, as the case may be, pursuant to the terms of this Agreement.

 

(d)  Notwithstanding paragraphs (a), (b) and (c) of this Section 6, the balance of the Escrow Property shall be released to the Trust and Tako upon the period of time equal to the number of days from the Closing Date to the date C-COR’s Annual Report on Form 10-K for the 2005 fiscal year is filed with the SEC plus the number of calendar days from the Closing Date of receipt by BMS of the Supplemental Financial Statements (as defined in the Purchase Agreement).  The Escrow Agent will only release the balance of the Escrow Property when it receives a notice from BMS that the appropriate amount of time after C-COR’s Annual Report on Form 10-K filing has occurred pursuant to this Section 6(d).  If at the time BMS advises Escrow Agent that the Escrow Period has been met, there is a Claim Notice or any Notice of Dispute outstanding, then, the amount of Escrow Property to be released to the Trust and Tako shall be reduced by the amount of Damages that such Purchaser Indemnitee has paid, accrued or incurred as set forth in the Claim Notice.

 

(e)  BMS, nCUBE, the Trust and Tako agree that for so long as there shall remain any Escrow Shares in the Escrow Accounts, any joint written notice delivered to the Escrow Agent providing for a transfer or series of related transfers from the Escrow Property shall include a number of Escrow Shares, rounded down to the nearest whole share, equal to the product of (i) the amount of such transfer or series of related transfers and (ii) the quotient obtained by dividing (A) the aggregate value of Escrow Shares then held in the Escrow Accounts by (B) the aggregate value of all cash, Escrow Shares and other property then held in the Escrow Accounts, as reasonably determined by BMS, Tako and the Trust, in accordance with Section 3(f) hereof.

 

7.  Rights and Duties of Escrow Agent.

 

(a)  The Escrow Agent is expressly authorized to disregard any and all notices or warnings given by any person or entity other than those who have been authorized to direct the Escrow Agent in Schedule A attached hereto, except Final Orders.  The Escrow Agent is expressly authorized to comply with and obey any and all Final Orders.  The Escrow Agent shall not be liable to any of the Depositors or to any other person or entity by reason of compliance with any Final Orders, notwithstanding that such Final Order may later be subsequently reversed, modified, annulled, set aside or vacated, or found to have such been entered without jurisdiction..

 

(b)  The Escrow Agent is not a party to, and is not bound by, or charged with notice of, any agreement out of which this escrow may arise, including, but not limited to, the Purchase Agreement.  The Escrow Agent shall not be bound by any modification, amendment or revision of this Agreement unless the same shall be in writing, signed by all of the parties hereto with a copy delivered to the Escrow Agent.

 

(c)  The Escrow Agent may resign at any time by giving written notice to all Depositors pursuant to this Agreement.  Resignation shall be effective thirty (30) calendar days after such notice has been deposited in the mail or from the date of successful facsimile

 

7

 

transmission; provided that no resignation shall be effective until Depositors appoint a successor escrow agent, which shall be a bank or national banking association, and such successor acknowledges receipt of the Escrow Property.  If a successor escrow agent has not been appointed within such thirty (30) day period, the Escrow Agent may petition any court of competent jurisdiction or may interplead the Depositors in a proceeding for the appointment of a successor Escrow Agent, and all fees, including but not limited to extraordinary fees associated with the filing of interpleader, and expenses associated therewith shall be deducted from the Escrow Property.

 

8.  Miscellaneous.

 

(a)  Indemnification.  The Depositors agree to indemnify and hold harmless the Escrow Agent for any liability, except for the gross negligence, willful misconduct or fraud of Escrow Agent, incurred to any person or entity by reason of having accepted the Escrow Property and to reimburse all expenses, including, among other things, attorneys’ fees and court costs.  The Escrow Agent shall have a first and prior lien on the Escrow Property to secure its indemnification and payment of fees and expenses.  In the event Escrow Agent is entitled to indemnification hereunder, but payment is not received promptly from the undersigned Depositors, the Escrow Agent is authorized to deduct fees and expenses to Depositors from Escrow Property with prior written notice.

 

(b)  Modification.  This Agreement may be altered, amended, modified or revoked only in writing, signed by Depositors and approved by the Escrow Agent.

 

(c)  Assignment.  No assignment, transfer or conveyance or hypothecation of any right, title or interest in the subject matter of this Escrow Agreement shall be binding upon any party absent the written consent of the Depositors and notice to the Escrow Agent; provided that any entity into which the Escrow Agent may be merged or with which it may be consolidated, or any entity to whom the Escrow Agent may transfer a substantial amount of its Escrow business, shall be the Successor to the Escrow Agent without the execution or filing of any paper of the Depositors, anything herein to the contrary notwithstanding.  Notwithstanding anything to the contrary contained in this Agreement, nCUBE shall have the right to assign its interest in the Escrow Property, Escrow Share Income and any Income thereon, its right to receive any distribution of the Escrow Property and all other rights and obligations of nCUBE under this Agreement by delivery of written notice to BMS and the Escrow Agent.

 

(d)  Notices.  All notices shall be sent via facsimile, to the addresses and/or facsimile numbers provided on the signature page of this Agreement, with the original being delivered by first class mail, postage prepaid, or a nationally recognized overnight delivery service.  Notice shall be effective as of the date of successful transmission of such facsimile. All such notices to the Escrow Agent must contain the account number(s), as referenced in Section 2.

 

(e)  Publicity.  The parties hereto hereby agree not to use the name of LAW DEBENTURE TRUST COMPANY OF NEW YORK to imply an association with this transaction other than that of a legal escrow agent.

 

8

 

(f)  Regulatory Acknowledgment.  The parties acknowledge that to the extent regulations of the Comptroller of Currency or other applicable regulatory entity grant a right to receive brokerage confirmations of security transactions of the escrow, the parties waive receipt of such confirmations, to the extent permitted by law.  The Escrow Agent shall furnish a statement of security transactions on its regular monthly reports.

 

(g)  Successors and Assigns.  This Agreement and the Purchase Agreement set forth the entire understanding of the parties with respect to the subject matter hereof.  All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.

 

(h)  Governing Law.  This Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to that state’s conflict of laws provisions.

 

(i)  Signatures.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and any party hereto may execute any such counterpart, all of which, when taken together, will constitute one and the same instrument.  Each party agrees to accept the facsimile signature of the other party hereto and to be bound by its own facsimile signature hereon.

 

(j)  Entire Agreement; No Third-Party Beneficiaries.  This Agreement and the Purchase Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement.  This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies.

 

(k)  Covenants of BMS, Tako, the Trust and nCUBE.  BMS, Tako, the Trust and nCUBE covenant and agree to execute written instructions to the Escrow Agent to disburse the Escrow Property in accordance with the rights and obligations of the parties to the Purchase Agreement or any subsequent written agreement between BMS, Tako, the Trust and nCUBE which, by its terms, replaces or amends the Purchase Agreement as it relates to the Escrow Property.  In the event that any of the Escrow Shares are required to be released to BMS pursuant to the terms of this Agreement or the Purchase Agreement, Tako and the Trust shall each execute and deliver an Assignment Separate From Certificate in the form attached as Schedule C to assign their respective portions of such Escrowed Shares.

 

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IN WITNESS WHEREOF, this Agreement has been executed as of the date and year first-above written.

 

 

BROADBAND MANAGEMENT SOLUTIONS, LLC		nCUBE CORPORATION
/s/ William T. Hannelly		/s/ Steven B. Fink
William T. Hanelly		Steven B. Fink
Chief Financial Officer		Chairman
60 Decibel Road		1825 NW 167th Place
State College, PA 16801		Beaverton, OR 97006
Telephone: 814-235-3444		Telephone:
Facsimile: 814-237-5574		Facsimile:
THE LAWRENCE J. ELLISON		LAW DEBENTURE TRUST COMPANY OF NEW YORK
REVOCABLE TRUST U/D/D 12/8/95, AS AMENDED
		as Escrow Agent
/s/ Philip B. Simon
Name:  Philip B. Simon		/s/ Adam Berman
Title:  Co-Trustee		as Escrow Agent
		Adam Berman
		Assistant Vice President
TAKO VENTURES, LLC		767 Third Avenue – 31st Floor
By: Cephalopod Corp., Member		New York, New York 10017
		Telephone: (212) 750-6474
		Facsimile: (212) 750-1361
/s/ Philip B. Simon		adam.berman@Lawdeb.com
Name:  Philip B. Simon
Title:  President

 

Exhibit 4

 

December 17, 2004

 

 

C-COR Incorporated 60 Decibel Road State College, Pennsylvania 16801

 

Re:                               C-COR Incorporated (the “Company”)

 

Ladies and Gentlemen:

 

A subsidiary of the Company, Broadband Management Solutions, LLC (“BMS”), shall purchase certain assets and liabilities of nCUBE Corporation (“nCUBE”) with all of such assets and liabilities (other than certain specified assets which may be sold directly by nCUBE to affiliates of BMS) to be contributed to nCUBE Sub, LLC, and with nCUBE selling all of the outstanding securities of nCUBE Sub, LLC to BMS pursuant to the terms and subject to the conditions set forth in that certain Member Interest Purchase Agreement among the Company, BMS, nCUBE and nCUBE Sub, LLC, dated as of October 20, 2004 (the “Purchase Agreement”).  The purchase price paid to nCUBE in respect of such transaction will include certain unsecured senior convertible notes of the Company (the “Notes”), convertible into shares of common stock of the Company, $0.05 par value per share (“Common Stock”), and 4,500,000 shares of Common Stock (the “Shares”).  The Purchase Agreement contemplates that the Notes and the Shares will be delivered to the undersigned creditors of nCUBE (each a “Holder” and together, the “Holders”).  The Purchase Agreement requires the Holders to sign this letter agreement.  The Holders acknowledge that the Company is relying on the representations and agreements of each Holder contained in this letter agreement in carrying out the Company’s obligations under the Purchase Agreement.

 

In consideration of the foregoing, each Holder hereby agrees not to, directly or indirectly, sell, offer to sell, contract to sell, loan , pledge, grant any option for sale or purchase of, agree to sell or otherwise dispose of (collectively “Disposition”), more than 50% of the Shares received by the Holder or delivered into escrow on such Holder’s behalf, for a period beginning on the date of this letter agreement, which in any event shall be no later than twelve (12) days prior to the closing of the transactions contemplated by the Purchase Agreement (the “Closing”), and ending one year thereafter (the “Lock-Up Period”), without the prior written consent of the Company; provided, however, that the foregoing agreement shall not apply to (i)

 

 

gifts to family members (or trusts for the direct or indirect benefit of family members) or charitable contributions of the Shares made by the Holder in transfers not involving a public distribution or public offering, if the transferee agrees in writing as a condition precedent to such transfer to be bound by the terms hereof or (ii) transfers of the Shares to “affiliates” of the transferor in transfers not involving a public distribution or public offering, if the transferee agrees in writing as a condition precedent to such transfer to be bound by the terms hereof.  The term “affiliate” shall have the meaning given such term in Rule 144 under the Securities Act of 1933, as amended.  The transferor shall notify the Company in writing prior to the transfer at 60 Decibel Road, State College, Pennsylvania 16801, Attn: CFO, and shall deliver the above-mentioned agreement on the part of the permitted transferee to the Company.  During the Lock-Up Period, there shall be no further transfer of the Shares by either the Holder or any permitted transferee, except in accordance with this letter agreement.

 

The foregoing restriction has been expressly agreed to preclude the Holder from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Shares during the Lock-Up Period, even if such Shares would be disposed of by someone other than such Holder.  Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Shares or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Shares.

 

In furtherance of the foregoing, the Company and its transfer agent are hereby authorized to decline to make any transfer of Shares if such transfer would constitute a violation or breach of this letter agreement.  The Holders also agree and consent to the entry of stop transfer instructions with the Company’s transfer agent against the transfer of any of the Shares.

 

This agreement is irrevocable and will be binding on the Holders and the respective successors, heirs, personal representatives, and assigns of the Holders.

 

The Holder, by executing this letter agreement, represents and warrants that the Holder (i) has such knowledge and experience with respect to the financial, tax and business aspects of the ownership of the Shares, Notes and the shares of Common Stock underlying the Notes, (ii) is capable of evaluating the risks and merits of participating in the purchase of such securities, (iii) can bear the economic risk of an investment in the Shares, Notes and the shares of Common Stock underlying the Notes for an indefinite period of time and can afford to suffer the complete loss thereof, (iv) is purchasing the Notes and Shares for its own account and for the purposes of investment only and (v) acknowledges that notwithstanding any obligation of C-COR to file a registration statement relating to the resale of the Notes, Shares and the shares of Common Stock underlying the Notes with the Securities and Exchange Commission, no registration statement has yet become, or will be as of Closing, effective, and neither the Notes nor the Shares and the shares of Common Stock underlying the Notes may be offered, pledged, hypothecated, distributed, sold or otherwise transferred or disposed of nor may offers to pledge, hypothecate, distribute, sell or otherwise transfer or dispose of be accepted prior to the time that a valid registration statement becomes effective,

 

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except in the event of an exemption from registration and in accordance with all federal and state securities laws.

 

The Holder, by executing this letter agreement, also represents and warrants that the Holder (a) is either a bank as defined in section 3(a)(2) of the Securities Act, or a savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act, whether acting in an individual or fiduciary capacity; a broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended; an insurance company as defined in section 2(13) of the Securities Act; an investment company registered under the Investment Company Act or a business development company as defined in section 2(a)(48) of the Investment Company Act; a Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; a plan established and maintained by a state of the United States of America, its political subdivisions or any agency or instrumentality of a state of the United States of America or its political subdivisions for the benefit of its employees that has total assets in excess of $5,000,000; an Employee Benefit Plan within the meaning of ERISA if the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, savings and loan association, insurance company or registered investment advisor; an Employee Benefit Plan that has total assets in excess of $5,000,000; or an Employee Benefit Plan that is a self-directed plan, with investment decisions made solely by persons that are accredited investors; (b) is a private business development company as defined in section 202(a)(22) of the Investment Advisers Act; (c) is either an organization described in section 501(c)(3) of the Code; a corporation; a Massachusetts or similar business trust; or a partnership, in each case not formed for the specific purpose of acquiring the securities offered and in each case with total assets in excess of $5,000,000; (d) is an entity as to which all of the equity owners are accredited investors; (e) is a trust, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000 and whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D promulgated under the Securities Act; (f) was not formed and is not being utilized primarily for the purpose of making an investment in the Notes and Shares; (g) is or is acting on behalf of an employee benefit plan within the meaning of section 3(3) of ERISA, whether or not such plan is subject to ERISA, or an entity which is deemed to hold the assets of any such employee benefit plan pursuant to 29 C.F.R. §2510.3-101 or is or was acting on behalf of such an employee benefit plan or is an entity deemed to hold the assets of any such plan or plans (i.e., the Holder is subject to ERISA); or (h) is a U.S. pension trust or governmental plan qualified under section 401(a) of the Code or a U.S. tax-exempt organization qualified under section 501(c)(3) of the Code.

 

In no event shall this letter agreement be construed to apply to any Disposition of the Notes or the Common Stock underlying the Notes on or after the closing of the transactions contemplated by the Purchase Agreement.

 

If the Purchase Agreement terminates, then the terms of this letter agreement shall lapse and become null and void.

 

3

 

This letter agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without regard to the conflict of laws principles thereof.

 

 

[Remainder of page intentionally left blank,]

 

4

 

The undersigned intends to be legally bound hereby.

 

		Very truly yours,
		Printed Name of Holder
		By:
					Signature
		Printed Name of Person Signing
		(and indicate capacity of person signing if signing
		as custodian, trustee, or on behalf of an entity)
		Date:

 

5

EXHIBIT 7

 

JOINT FILING AGREEMENT

 

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint acquisition statements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the other, except to the extent that it knows or has reason to believe that such information is inaccurate.

 

Dated: January 28, 2005
	Lawrence Investments, LLC
	/s/ Philip B. Simon
	Name: Philip B. Simon
	Its: Member
	Tako Ventures, LLC
	By:  Cephalopod Corporation, Member
	/s/ Philip B. Simon
	Name: Philip B. Simon
	Its: President
	Lawrence J. Ellison
	By:	/s/ Philip B. Simon
	by Philip B. Simon, his attorney in fact
	Cephalopod Corporation
	/s/ Philip B. Simon
	Name: Philip B. Simon
	Its: President