-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VEJNw7IDrLJaKxCZHwc2ajBUgc5K6ks19vF/NaLAVHONEHsS/ELYgwmadtm0ASqa nM3toJi0ttbsAiOEV8CnLQ== 0000919574-06-005048.txt : 20061228 0000919574-06-005048.hdr.sgml : 20061228 20061227180504 ACCESSION NUMBER: 0000919574-06-005048 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20061228 DATE AS OF CHANGE: 20061227 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OPENWAVE SYSTEMS INC CENTRAL INDEX KEY: 0001082506 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943219054 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-57801 FILM NUMBER: 061301376 BUSINESS ADDRESS: STREET 1: 2100 SEAPORT BLVD. CITY: REDWOOD CITY STATE: CA ZIP: 94063 BUSINESS PHONE: 650-480-8000 MAIL ADDRESS: STREET 1: 2100 SEAPORT BLVD. CITY: REDWOOD CITY STATE: CA ZIP: 94063 FORMER COMPANY: FORMER CONFORMED NAME: PHONE COM INC DATE OF NAME CHANGE: 19990504 FORMER COMPANY: FORMER CONFORMED NAME: UNWIRED PLANET INC DATE OF NAME CHANGE: 19990324 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. CENTRAL INDEX KEY: 0001233563 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O INTERNATIONAL FUND SERVICES STREET 2: THIRD FL BISHOP SQUARE REDMONDS HILL CITY: DUBLIN IRELAND STATE: L2 ZIP: 00000 BUSINESS PHONE: 2125216972 MAIL ADDRESS: STREET 1: C/O INTERNATIONAL FUND SERVICES STREET 2: THIRD FL BISHOP SQUARE REDMONDS HILL CITY: DUBLIN IRELAND STATE: L2 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: HARBERT DISTRESSED INVESTMENT MASTER FUND LTD DATE OF NAME CHANGE: 20030516 SC 13D 1 d734327_13d.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Openwave Systems, Inc. ----------------------------------------------------------------------------- (Name of Issuer) Common Stock ----------------------------------------------------------------------------- (Title of Class of Securities) 683718308 ----------------------------------------------------------------------------- (CUSIP Number) William R. Lucas, Jr. One Riverchase Parkway South Birmingham, AL 35244 ----------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 27, 2006 ----------------------------------------------------------------------------- (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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [X]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. - ---------- (1) 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 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 CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Master Fund I, Ltd. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 7,684,950 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 7,684,950 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,684,950 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.1% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Offshore Manager, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 7,684,950 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 7,684,950 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,684,950 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.1% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) HMC Investors, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 7,684,950 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 7,684,950 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,684,950 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.1% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Special Situations Fund, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 2,315,050 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 2,315,050 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,315,050 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5% 14. TYPE OF REPORTING PERSON* PN CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Special Situations GP, LLC 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 2,315,050 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 2,315,050 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,315,050 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) HMC - New York, Inc. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION New York NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 2,315,050 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 2,315,050 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,315,050 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbert Management Corporation 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Alabama NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 10,000,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 10,000,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,000,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.6% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Philip Falcone 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 10,000,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 10,000,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,000,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.6% 14. TYPE OF REPORTING PERSON* IN CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Raymond J. Harbert 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 10,000,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 10,000,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,000,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.6% 14. TYPE OF REPORTING PERSON* IN CUSIP No. 683718308 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Michael D. Luce 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 10,000,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 10,000,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10,000,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 10.6% 14. TYPE OF REPORTING PERSON* IN CUSIP No. 683718308 --------------------- SCHEDULE 13D - ----------------------------------------------------------------------------- Item 1. Security and Issuer. Openwave Systems, Inc., a Delaware corporation (the "Issuer"), Common Stock (the "Shares"). The principal executive offices of Issuer are located at 2100 Seaport Boulevard, Redwood City, California 94063. - ----------------------------------------------------------------------------- Item 2. Identity and Background (a-c,f) This Schedule 13D is being filed by Harbinger Capital Partners Master Fund I, Ltd. (the "Master Fund"), Harbinger Capital Partners Offshore Manager, L.L.C. ("Harbinger Management"), the investment manager of the Master Fund, HMC Investors, L.L.C., its managing member ("HMC Investors"), Harbinger Capital Partners Special Situations Fund, L.P. (the "Special Fund"), Harbinger Capital Partners Special Situations GP, LLC, the general partner of the Special Fund ("HCPSS"), HMC - New York, Inc., the managing member of HCPSS ("HMCNY"), Harbert Management Corporation ("HMC"), the managing member of HMC Investors and the parent of HMCNY, Philip Falcone, a shareholder of HMC and the portfolio manager of the Master Fund and the Special Fund, Raymond J. Harbert , a shareholder of HMC, and Michael D. Luce, a shareholder of HMC (each of the Master Fund, Harbinger Management, HMC Investors, HMC, Special Fund, HCPSS, HMCNY, Philip Falcone, Raymond J. Harbert and Michael D. Luce may be referred to herein as a "Reporting Person" and collectively may be referred to as "Harbinger Reporting Persons"). The Master Fund is a Cayman Islands corporation with its principal business address at c/o International Fund Services (Ireland) Limited, Third Floor, Bishop's Square, Redmond's Hill, Dublin 2, Ireland. Each of Harbinger Management, HMC Investors and HCPSS is a Delaware limited liability company. The Special Fund is a Delaware limited partnership. HMC is an Alabama corporation. HMCNY is a New York corporation. Each of Philip Falcone, Raymond J. Harbert and Michael D. Luce is a United States citizen. The principal business address for each of the Special Fund, HCPSS, HMCNY and Philip Falcone is 555 Madison Avenue, 16th Floor, New York, New York 10022. The principal business address for each of Harbinger Management, HMC Investors, HMC, Raymond J. Harbert and Michael D. Luce is One Riverchase Parkway South, Birmingham, Alabama 35244. (d) None of Philip Falcone, Raymond J. Harbert or Michael D. Luce has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) None of the Harbinger Reporting Persons have, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws. - ----------------------------------------------------------------------------- Item 3. Source and Amount of Funds or Other Consideration. As of the date hereof the Master Fund may be deemed to beneficially own 7,684,950 Shares. As of the date hereof Harbinger Management may be deemed to beneficially own 7,684,950 Shares. As of the date hereof HMC Investors may be deemed to beneficially own 7,684,950 Shares. As of the date hereof the Special Fund may be deemed to beneficially own 2,315,050 Shares. As of the date hereof HCPSS may be deemed to beneficially own 2,315,050 Shares. As of the date hereof HMCNY may be deemed to beneficially own 2,315,050 Shares. As of the date hereof HMC may be deemed to beneficially own 10,000,000 Shares. As of the date hereof Mr. Falcone may be deemed to beneficially own 10,000,000 Shares. As of the date hereof Mr. Harbert may be deemed to beneficially own 10,000,000 Shares. As of the date hereof Mr. Luce may be deemed to beneficially own 10,000,000 Shares. No borrowed funds were used to purchase the Shares, other than any borrowed funds used for working capital purposes in the ordinary course of business. - ----------------------------------------------------------------------------- Item 4. Purpose of Transaction. On December 27, 2006, the Master Fund and the Special Fund filed preliminary proxy material (the "Proxy") with the Securities and Exchange Commission (the "SEC"), attached as Exhibit C hereto. The Proxy will be furnished by the Master Fund, the Special Fund, James L. Zucco ("Mr. Zucco") and Andrew J. Breen ("Mr. Breen") to the stockholders (the "Stockholders") of Openwave Systems, Inc. (the "Company") in connection with the solicitation by the Master Fund, the Special Fund, Mr. Zucco and Mr. Breen of proxies to be voted at the Issuer's 2006 Annual Meeting of Stockholders (the "Annual Meeting"). The Annual Meeting will be held on Wednesday, January 17, 2007 at 8:30 a.m. PST at the Issuer's offices located at 2100 Seaport Boulevard, Redwood City, California 94063. The Master Fund, the Special Fund and Messrs. Zucco and Breen will be soliciting proxies from Stockholders in order to elect Mr. Zucco and Mr. Breen to the Board of Directors of the Issuer (the "Board") as Class III directors at the Annual Meeting. Also on December 27, 2006, the Master Fund and the Special Fund delivered a letter to the Issuer requesting, pursuant to Section 220 of the Delaware General Corporation Law, a complete list of the Issuer's stockholders and other corporate records in order to allow the Reporting Persons to communicate with the Issuer's stockholders. A copy of this letter is attached hereto as Exhibit E and is incorporated herein by reference. Mr. Zucco and Mr. Breen have a wealth of experience in both the software and telecommunications industries and both the Master Fund and the Special Fund are confident they can help the Board develop and implement plans to address the issues the Issuer is facing. The Proxy includes certain recommendations the Master Fund, the Special Fund, Mr. Zucco and Mr. Breen would propose to the Board if Mr. Zucco and Mr. Breen are elected as directors. These recommendations include (i) establishing a unified and focused vision for the Issuer's overall product offering with the Issuer's most strategic core products; (ii) phasing-out non-performing product lines to reduce costs; (iii) immediately reducing quarterly operating expenses to approximately $50 million and (iv) immediately commencing a significant share repurchase program. The Shares held by the Harbinger Reporting Persons were acquired in the ordinary course of business or investment activities, as the case may be. The Harbinger Reporting Persons reserve their rights to sell, transfer or otherwise dispose of the Shares or acquire additional Shares. SOLICITATIONS FOR PROXIES WILL ONLY BE MADE BY WAY OF A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY. SHAREHOLDERS ARE ADVISED TO READ ANY PROXY STATEMENT OR OTHER DOCUMENTS RELATED TO A SOLICITATION OF PROXY THAT MAY BE MADE BY THE REPORTING PERSONS. WHEN AND IF COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO SHAREHOLDERS OF THE ISSUER AND WILL BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV. - --------------------------------------------------------------------------- Item 5. Interest in Securities of the Issuer. (a, b) As of the date hereof, the Master Fund may be deemed to be the beneficial owner of 7,684,950 Shares, constituting 8.1% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. The Master Fund has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 7,684,950 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 7,684,950 Shares. (a, b) As of the date hereof, Harbinger Management may be deemed to be the beneficial owner of 7,684,950 Shares, constituting 8.1% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. Harbinger Management has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 7,684,950 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 7,684,950 Shares. Harbinger Management specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMC Investors may be deemed to be the beneficial owner of 7,684,950 Shares, constituting 8.1% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. HMC Investors has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 7,684,950 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 7,684,950 Shares. HMC Investors specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, the Special Fund may be deemed to be the beneficial owner of 2,315,050 Shares, constituting 2.5% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. The Special Fund has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 2,315,050 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 2,315,050 Shares. The Special Fund specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HCPSS may be deemed to be the beneficial owner of 2,315,050 Shares, constituting 2.5% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. HCPSS has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 2,315,050 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 2,315,050 Shares. HCPSS specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMCNY may be deemed to be the beneficial owner of 2,315,050 Shares, constituting 2.5% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. HMCNY has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 2,315,050 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 2,315,050 Shares. HMCNY specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMC may be deemed to be the beneficial owner of 10,000,000 Shares, constituting 10.6% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. HMC has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 10,000,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 10,000,000 Shares. HMC specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, Philip Falcone may be deemed to be the beneficial owner of 10,000,000 Shares, constituting 10.6% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. Mr. Falcone has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 10,000,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 10,000,000 Shares. Mr. Falcone specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. (a, b) As of the date hereof, Raymond J. Harbert may be deemed to be the beneficial owner of 10,000,000 Shares, constituting 10.6% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. Mr. Harbert has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 10,000,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 10,000,000 Shares. Mr. Harbert specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. (a, b) As of the date hereof, Michael D. Luce may be deemed to be the beneficial owner of 10,000,000 Shares, constituting 10.6% of the Shares of the Issuer, based upon 94,612,874 Shares outstanding as of the date of this filing. Mr. Luce has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 10,000,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 10,000,000 Shares. Mr. Luce specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. - ----------------------------------------------------------------------------- Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Mr. Breen and his partner, Sanford Cohen, at Treyex, LLC ("Treyex") will provide consulting services to the Master Fund and the Special Fund under a consulting agreement, which is attached as Exhibit D hereto. Under this consulting agreement, there is no stated termination date, but may be terminated by either party. For the Master Fund's and the Special Fund's investment in the Issuer, Treyex is entitled to a success fee based upon the following terms: o If the price of the Shares rises during the term of the consulting agreement by 20%, Treyex shall be entitled to a fee of 2.4% of the profits made by the Master Fund and the Special Fund on their investments. o For each additional 1% increase in the price of the Shares during the term of the consulting agreement, Treyex shall be entitled to an additional 0.02% of the profits made by the Master Fund and the Special Fund. All prior monthly retainer payments (including such payments made under the previous agreement among the Master Fund, the Special Fund and Treyex) shall be credited against the success fee. o The success fee is payable only if there is a realization of at least a 20% profit upon the sale by the Master Fund and the Special Fund of their entire positions of the Shares. o Treyex's right to receive success fee payments is further contingent upon Mr. Breen being available to serve on the Board; as well as Treyex (a) helping to find additional strategic and financial investors in the Issuer; (b) identifying potential candidates for senior management positions that may become available; (c) helping the Issuer execute its business plans and (d) implementing any other reasonable request made by the Master Fund or the Special Fund. o The success fee will be calculated based on the lowest entry price paid by the Master Fund and the Special Fund for the Shares. o If the Master Fund and the Special Fund return to passive-investor status with respect to its ownership of the Shares, Treyex will be entitled to the success fee only if the Master Fund and the Special Fund sell their entire position of the Shares for at least a 20% profit within 90 days of returning to such a passive-investor status. The Master Fund and the Special Fund will promptly notify Treyex in writing of becoming a passive investor. If the Master Fund and the Special Fund return to passive-investor status, the Success Fee contingencies in the fourth bullet will no longer apply. o If, after returning to passive-investor status with respect to its ownership of the Shares, the Master Fund and the Special Fund sell their entire position of the Shares after 90 days for any profit, Treyex shall be entitled to an additional fee. Such additional fee shall be calculated by (x) totaling the retainer fees paid to date and (y) multiplying such total by the percentage of profit. o If Treyex terminates the consulting agreement, the Master Fund and the Special Fund will have no obligation to pay the success fee; however, if the Master Fund and the Special Fund terminate the consulting agreement, the success fee provisions will survive and remain payable upon the sale by the Master Fund and the Special Fund of their entire positions of the Shares. o For purposes of this consulting agreement, profit shall mean realized gain, net of all expenses incurred by the Master Fund and the Special Fund, including, but not limited to, normal brokerage commissions and extraordinary fees associated with this proxy solicitation by the Master Fund and the Special Fund. ? For purposes of the consulting agreement, passive-investor status shall mean when the Master Fund and the Special Fund no longer actively seek to influence or change management or other elements of the operation of Openwave's business. As long as Mr. Breen is on the board of directors of Openwave, the Master Fund and the Special Fund will not change their status to that of a passive investor. - ----------------------------------------------------------------------------- Item 7. Material to be Filed as Exhibits. Exhibit A: Joint Filing Agreement Exhibit B: Schedule of Transactions in the Shares of the Issuer during the past sixty days or since the most recent filing on Schedule 13D. Exhibit C: Proxy Material filed with the SEC on December 27, 2006. Exhibit D: Consulting Agreement Exhibit E: 220 Demand Letter 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. Harbinger Capital Partners Master Fund I, Ltd. By: Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------ Harbinger Capital Partners Offshore Manager, L.L.C.* By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------ HMC Investors, L.L.C.* By: /s/ Joel B. Piassick - ------------------------ Harbinger Capital Partners Special Situations Fund, L.P. By: Harbinger Capital Partners Special Situations GP, LLC By: HMC - New York, Inc., Managing Member By: /s/ Joel B. Piassick - ------------------------- Harbinger Capital Partners Special Situations GP, LLC* By: HMC - New York, Inc., Managing Member By: /s/ Joel B. Piassick - ------------------------- HMC - New York, Inc.* By: /s/ Joel B. Piassick - ------------------------- Harbert Management Corporation* By: /s/ William R. Lucas, Jr. - ------------------------ /s/ Philip Falcone* - ------------------------ Philip Falcone* /s/ Raymond J. Harbert* - ------------------------ Raymond J. Harbert* /s/ Michael D. Luce* - ------------------------ Michael D. Luce* December 27, 2006 *The Reporting Persons disclaim beneficial ownership in the shares reported herein except to the extent of their pecuniary interest therein. Attention. Intentional misstatements or omissions of fact constitute federal criminal violations (see 18 U.S.C. 1001). Exhibit A AGREEMENT The undersigned agree that this Schedule 13D, dated December 27, 2006 relating to the Common Stock of Openwave Systems Inc. shall be filed on behalf of the undersigned. Harbinger Capital Partners Master Fund I, Ltd. By: Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------ Harbinger Capital Partners Offshore Manager, L.L.C.* By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------ HMC Investors, L.L.C.* By: /s/ Joel B. Piassick - ------------------------ Harbinger Capital Partners Special Situations Fund, L.P. By: Harbinger Capital Partners Special Situations GP, LLC By: HMC - New York, Inc., Managing Member By: /s/ Joel B. Piassick - ------------------------- Harbinger Capital Partners Special Situations GP, LLC* By: HMC - New York, Inc., Managing Member By: /s/ Joel B. Piassick - ------------------------- HMC - New York, Inc.* By: /s/ Joel B. Piassick - ------------------------- Harbert Management Corporation* By: /s/ William R. Lucas, Jr. - ------------------------ /s/ Philip Falcone* - ------------------------ Philip Falcone /s/ Raymond J. Harbert* - ------------------------ Raymond J. Harbert /s/ Michael D. Luce* - ------------------------ Michael D. Luce * The Reporting Persons disclaim beneficial ownership in the shares reported herein except to the extent of their pecuniary interest therein. Exhibit B Transactions in the Common Stock -------------------------------- TRANSACTIONS BY HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. Date of Number of Shares Price per Share Transaction Purchase/(Sold) 10/27/06 350,000 8.71 10/30/06 57,089 8.47 10/31/06 270,051 8.61 12/4/06 166,750 8.85 12/5/06 48,600 9.15 TRANSACTIONS BY HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. Date of Number of Shares Price per Share Transaction Purchase/(Sold) 12/4/06 83,250 8.85 12/5/06 24,260 9.15 SK 03773 0003 734327 EX-99.C 2 d734563_ex-c.txt EXHIBIT C SCHEDULE 14A INFORMATION (Rule 14A-101) INFORMATION REQUIRED IN PROXY STATEMENT SCHEDULE 14A INFORMATION Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934 Filed by the Registrant [ ] Filed by a Party other than the Registrant [X] Check the appropriate box: [X] Preliminary Proxy Statement [ ] Confidential, for Use of [ ] Definitive Proxy Statement the Commission Only (as [ ] Definitive Additional Materials permitted by Rule 14a-6(e)(2)) [ ] Soliciting Material Pursuant to Rule 14a-12 OPENWAVE SYSTEMS, INC. ------------------------------------------------ (Name of Registrant as Specified In Its Charter) HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD., HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P., JAMES L. ZUCCO AND ANDREW J. BREEN ------------------------------------------------ (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): [X] No fee required. [ ] Fee computed on the table below per Exchange Act Rule 14a-6(i)(1) and 0-11. (1) Title of each class of securities to which transaction applies: ----------------------------------------------------------------- (2) Aggregate number of securities to which transaction applies: ----------------------------------------------------------------- (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): ----------------------------------------------------------------- (4) Proposed maximum aggregate value of transaction: ----------------------------------------------------------------- (5) Total fee paid: ----------------------------------------------------------------- [ ] Fee paid previously with preliminary materials. [ ] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: ----------------------------------------------------------------- (2) Form, Schedule or Registration Statement No.: ----------------------------------------------------------------- (3) Filing Party: ----------------------------------------------------------------- (4) Date Filed: ----------------------------------------------------------------- PRELIMINARY COPY, SUBJECT TO COMPLETION DATED DECEMBER 27, 2006 PROXY STATEMENT OF HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD., HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P., JAMES L. ZUCCO AND ANDREW J. BREEN IN CONNECTION WITH THE 2006 ANNUAL MEETING OF STOCKHOLDERS OF OPENWAVE SYSTEMS, INC. ------------------------------ INTRODUCTION This Proxy Statement (the "Proxy Statement") and the accompanying form of Proxy are being furnished by Harbinger Capital Partners Master Fund I, Ltd. ("Master Fund"), Harbinger Capital Partners Special Situations Fund, L.P. ("Special Situations Fund" and together with Master Fund, "Harbinger Capital Partners"), James L. Zucco ("Mr. Zucco") and Andrew J. Breen ("Mr. Breen") to the stockholders (the "Stockholders") of Openwave Systems, Inc. (the "Company") in connection with the solicitation by Harbinger Capital Partners, Mr. Zucco and Mr. Breen of proxies to be voted at the Company's 2006 Annual Meeting of Stockholders (the "Annual Meeting"). The Company has announced that the Annual Meeting will be held on Wednesday, January 17, 2007 at 8:30 a.m. PST at the Company's offices located at 2100 Seaport Boulevard, Redwood City, California 94063. This Proxy Statement and form of Proxy are being mailed to Stockholders on or about December [__], 2006. Harbinger Capital Partners and Messrs. Zucco and Breen are soliciting proxies from Stockholders in order to elect Mr. Zucco and Mr. Breen (each, a "Harbinger Nominee") to the Board of Directors of the Company (the "Board") at the Annual Meeting. We are asking Stockholders to elect Mr. Zucco and Mr. Breen to replace the current Class III directors. We are seeking to elect nominees to the Board as we are disappointed with the performance of the Company's stock and feel strongly that strategic and operational changes need to take place. We believe that in order for Stockholders to mitigate and reverse the losses they have suffered and to take full advantage of the Company's true potential, significant immediate changes are required. To begin the process, Messrs. Zucco and Breen are asking current Stockholders to send a clear message of "no confidence" to the existing Board and management by electing the Harbinger Nominees. If the Harbinger Nominees are elected, we intend to make a number of recommendations to the Board, which we believe will benefit the Company and the Stockholders. WHY YOU SHOULD VOTE FOR THE HARBINGER NOMINEES o The significant industry expertise and related experience of the Harbinger Nominees will enable them to help the Company implement changes necessary to increase shareholder value. Mr. Zucco is currently the Chairman and Chief Executive Officer of Corente, Inc. ("Corente") and has over 25 years of executive experience in the software and telecommunications industries. His broad-based industry experience includes senior executive roles with MCI and AT&T, the successful turnaround of a public company, active board and investment roles with leading emerging growth companies and the Chief Executive Officer position at a startup. Prior to taking on an operating position with Corente, Mr. Zucco was instrumental in incubating and building Corente from a Board of Directors level. Previous to becoming Corente's Chief Executive Officer, Mr. Zucco was a General Partner with Blue Rock Capital and an active investor and board member in the software and services segment. From 1999 to 2001, Mr. Zucco was Chairman and Chief Executive Officer of Spike Broadband Systems, a developer and supplier of fixed wireless systems. During his two-year tenure, Mr. Zucco grew the company from a small group of engineers narrowly focused on proprietary antenna technologies to a global leader in carrier-grade broadband wireless networks, increasing revenue from less than $1 million to $20 million during the period. Mr. Zucco's executive experience includes Senior Vice President and Chief Information Officer of the MCI Corporation, where he led product development and systems engineering. At MCI, Mr. Zucco was a key leader and operating executive for MCI's competitive differentiation strategy that leveraged computing technologies to offer greater value to its customers. Among many accomplishments, Mr. Zucco co-conceived, developed and operated the highly successful competitive long distance program, MCI Friends and Family. Under Mr. Zucco's leadership, MCI achieved consistent market share gains, increased profitability and drove revenue growth from $3.6 billion to $10.6 billion (1986-1992). Mr. Zucco was also instrumental in MCI's technological success and under Mr. Zucco's guidance, MCI was rated the #1 IT organization in Computerworld's Premier 100 five years in a row. Mr. Zucco architected, developed and operated the world's first computer-controlled telecommunications soft switch, on which MCI's Virtual Network Services were delivered. In addition, Mr. Zucco was responsible for the design and evolution of the network, switching, and OSS and network management architectures as well as product evolution. Mr. Zucco also conceived, developed and launched the first telecommunications electronic billing product, MCI Perspective. At AT&T, Mr. Zucco served as Vice President and General Manager of the Business Communications Group, managing a capital budget for investments in excess of $500 million and leading the launch of AT&T's Internet business activities, including AT&T's first IP network and WorldNet, their ISP. While at AT&T, Mr. Zucco structured, negotiated and closed one of the largest communications services contract of its time, a $4 billion contract over 10 years from IBM, laying the groundwork for AT&T to acquire IBM's global communications services unit. As a key part of the 1996 breakup of AT&T, Mr. Zucco led the team that chartered and launched AT&T Labs as a spin-off of Bell Labs. At Lucent Technologies, Mr. Zucco served as Vice President and General Manager of the North America carrier business unit, leading the Network Systems North America Carrier Products to $8.5 billion in revenue, becoming the most profitable product group in Lucent's first year of existence. At Shiva Corporation, Mr. Zucco executed a turnaround strategy that returned profitability within 18 months and, under his leadership, concluded a successful sale of Shiva to the Intel Corporation. Mr. Zucco has also served as Executive-in-Residence at Kleiner, Perkins, Caufield and Byers where he consulted on the markets and product viability of potential investments and worked with existing Kleiner portfolio companies on their business strategies and tactics. Mr. Zucco was the independent board member of two leaders in the emerging market for VoIP technologies and services - dynamicsoft and NetSolve - that became key components in the evolution of Cisco Systems' voice portfolio when Cisco acquired them both in the fall of 2004. Mr. Zucco currently sits on the board of uReach Technologies, a leader in the converged messaging marketplace, as well as the advisory boards of Sword Diagnostics, a bio-technology company and Omni Capital Group, LLC, an information technology and communications industry venture firm. Mr. Zucco received his B.A. from Western Maryland College and his M.B.A. from Loyola College. Mr. Breen is currently an advisor with Treyex, LLC ("Treyex") where he advises the firm on strategic investments in public companies in the mobile technology industry and provides industry and company analysis, as well as engaging senior management with turnaround strategies. Mr. Breen is an experienced technology entrepreneur and his experiences range from working with startup software and services companies to leading product development groups within larger organizations. He has driven the formation and growth of several businesses to successful launch and expansion. Prior to his position with Treyex, Mr. Breen was most recently the Director of Services Product Marketing for Palm, Inc. As the Director of Palm Inc.'s Services Product Marketing Group, Mr. Breen led the formation and strategic direction of Palm Inc.'s new wireless data services business. This included responsibility for product marketing and development; sales and market strategy; and infrastructure vendor evaluation and negotiation. The business grew from concept to one of the top three initiatives at Palm Inc. within one year. Prior to that, Mr. Breen was focused on driving new revenue opportunities for Palm Inc. by providing value-added solutions for the Treo to B2B and pro-sumer customers as well as Palm Inc.'s carrier partners. Mr. Breen was heavily involved in all aspects of management, planning, and execution of value-added wireless data solutions. Earlier at Palm Inc., Mr. Breen was Director of Palm Inc.'s Professional Services organization and an enterprise product strategist focused on mobile strategy and partnerships, including product mix and features, as well as the "go-to-market" planning for Palm Inc. solutions targeted for sale to carriers and the enterprise. Mr. Breen was the Vice President of Infrastructure Products and Business Development at ThinAirApps ("TAA") before TAA was acquired by Palm Inc. in December 2001. Mr. Breen led TAA's efforts to build strategic partnerships around TAA's core wireless application technology with companies such as Palm Inc. and Sun Microsystems, and was heavily involved in the strategic planning for the company. Mr. Breen also was responsible for all of TAA's relationships with carriers for wireless email infrastructure and developed the business, product, and partner strategy for all TAA carrier infrastructure products. As Vice President of Business Development, Mr. Breen was responsible for the development of all indirect channels for enterprise wireless software distribution including resellers, service providers, systems integrators, and OEM/ISVs. Mr. Breen signed over 15 new deals in nine months providing over 75% of company revenues and grew partnership and new business revenue from $0 to over $4 million in 18 months. Including his time at Palm and TAA, Mr. Breen has twelve years of Internet and IT systems experience, including seven years doing strategy, product development and design and implementation of large-scale enterprise transaction, commerce and collaborative systems. Mr. Breen has served as the Director of Software Engineering for EarthWeb's Software Products Division and Chief Information Officer for Interactive Imaginations (now 24/7 Media Inc). In addition, Mr. Breen has worked for or acted as a consultant to such companies as J.P. Morgan, Credit Suisse First Boston, Columbia House, Sun Microsystems and several startup software companies. Mr. Breen has focused on the strategic business and technical challenges surrounding mobile data products. Mr. Breen sat on Sun's Java Advisory Board in 1997 - a group of 25 or so of the leading architects in the Java community - advising Sun on the direction of the Java technology. Mr. Breen holds a Bachelor of Science degree with a dual major in Information and Decision Systems with a concentration in Computer Science and Industrial Management (Business) from Carnegie-Mellon University in Pittsburgh. THE SOLICITATION IS BEING MADE BY HARBINGER CAPITAL PARTNERS AND MESSRS. ZUCCO AND BREEN AND NOT ON BEHALF OF THE BOARD As of the date of this Proxy Statement, Harbinger Capital Partners is the beneficial owner of 10,000,000 shares of Company common stock (or approximately 10.6% of Company common stock ). Neither Mr. Zucco nor Mr. Breen beneficially owns any common stock of the Company. Mr. Zucco is currently the Chairman and Chief Executive Officer of Corente Innovation Advisers. He conducts his business from Far Hills, New Jersey. Mr. Breen is currently an advisor at Treyex where he advises the firm on strategic investments in public companies in the mobile technology industry and provides industry and company analysis, as well as engaging senior management with turnaround strategies. He conducts his business from New York, New York. Mr. Breen and his partner, Sanford Cohen, at Treyex will provide consulting services to Harbinger Capital Partners under a consulting agreement. Under this consulting agreement, there is no stated termination date, but may be terminated by either party. For Harbinger Capital Partners' investment in the Company, Treyex is entitled to a success fee based upon the following terms: o If the price of the Company's common stock rises during the term of the consulting agreement by 20%, Treyex shall be entitled to a fee of 2.4% of the profits made by Harbinger Capital Partners on its investment. o For each additional 1% increase in the price of the Company's common stock during the term of the consulting agreement, Treyex shall be entitled to an additional 0.02% of the profits made by Harbinger Capital Partners. All prior monthly retainer payments (including such payments made under the previous agreement between Harbinger Capital Partners and Treyex) shall be credited against the success fee. o The success fee is payable only if there is a realization of at least a 20% profit upon the sale by Harbinger Capital Partners of its entire position of the Company's common stock. o Treyex's right to receive success fee payments is further contingent upon Mr. Breen being available to serve on the Board; as well as Treyex (a) helping to find additional strategic and financial investors in Openwave; (b) identifying potential candidates for senior management positions that may become available; (c) helping Openwave execute its business plans and (d) implementing any other reasonable request made by Harbinger Capital Partners. o The success fee will be calculated based on the lowest entry price paid by Harbinger Capital Partners for the Company's common stock. o If Harbinger Capital Partners returns to passive-investor status with respect to its ownership of the Company's common stock, Treyex will be entitled to the success fee only if Harbinger Capital Partners sells its entire position of the Company's common stock for at least a 20% profit within 90 days of returning to such a passive-investor status. Harbinger Capital Partners will promptly notify Treyex in writing of becoming a passive investor. If Harbinger Capital Partners returns to passive-investor status, the success fee contingencies in the fourth bullet above will no longer apply. o If, after returning to passive-investor status with respect to its ownership of the Company's common stock, Harbinger Capital Partners sells its entire position of the Company's common stock after 90 days for any profit, Treyex shall be entitled to an additional fee. Such additional fee shall be calculated by (x) totaling retainer fees paid to date and (y) multiplying the such total by the percentage of profit. o If Treyex terminates the consulting agreement, Harbinger Capital Partners will have no obligation to pay the success fee; however, if Harbinger Capital Partners terminates the consulting agreement, the success fee provisions will survive and remain payable upon the sale by Harbinger Capital Partners of its entire position of the Company's common stock. o For purposes of this consulting agreement, profit shall mean realized gain, net of all expenses incurred by Harbinger Capital Partners, including, but not limited to, normal brokerage commissions and extraordinary fees associated with this proxy solicitation by Harbinger Capital Partners. o For purposes of this consulting agreement, passive-investor status shall mean when Harbinger Capital Partners no longer actively seeks to influence or change management or other elements of the operation of the Company's business. As long as Mr. Breen is on the Board, Harbinger Capital Partners will not change its status to that of a passive investor. PLEASE DISREGARD ANY PROXY CARD YOU RECEIVE FROM THE COMPANY. WE ENCOURAGE YOU TO RETURN ONLY THE ENCLOSED GREEN PROXY CARD. OUR RECOMMENDATIONS IF THE HARBINGER NOMINEES ARE ELECTED If elected, we plan to make the following recommendations to the Board, which we believe are in the best interests of the Company and its Stockholders: o Establish a unified and focused "platform" vision for the Company's overall product offering with the Company's most strategic core products. Currently, the Company is supporting a very broad product line with a divergent mix of products for each customer. The Company is now in the process of creating significant new technology (OPPS and ODP) which is unproven in the marketplace and with only minor tie-ins to existing products. Perceived delays in product development and the release of these new products have caused investors to worry about the future of the Company. We urge the Company to develop a unified vision and customer message with a coherent business, market, and technology strategy. The value proposition should clearly communicate that an investment in the Openwave platform can be leveraged across multiple applications and product generations. o Prune non-performing product lines to further reduce costs. Many of the Company's aging lower-margin products no longer warrant continued investment and allocation of resources to such products prevents management, sales organization, and R&D employees from properly developing and selling new products. The Company needs to apply a specific set of investment metrics against all current and planned products and products not meeting the criteria for continued investment should be discontinued. o Immediately reduce quarterly operating expenses to approximately $50 million. Given the uncertainty of deal flow for new products as well as declining revenues and pricing pressure for legacy products, the Company's revenue is more likely to remain in its current range for the next several quarters and there must be some contribution to margin generated by more significant reductions in operating costs. We believe that the Company can make this reduction through office consolidation, reduction in redundant headcount, sales reorganization, and other administrative cost reductions. o Immediately commence a significant share repurchase program. As of September 30, 2006, the Company had cash and cash investments totaling $505.1 million and net cash of approximately $355 million. While we recognize that a strong balance sheet is needed in order to compete for business in the Company's end markets, we feel strongly that the amount of cash currently on hand could only be justified by management's desire to make acquisitions. While we recognize that acquisitions are an important part of any growth strategy, Harbinger Capital Partners do not believe funding large-scale acquisitions would be a prudent use of this capital at this time. Harbinger Capital Partners would recommend that the Board take steps to implement a $200 million share repurchase program or dutch auction tender, reducing current shares outstanding by approximately 25%. This would leave the Company with net cash of approximately $155 million (gross cash of approximately twice the outstanding debt) which should provide ample financial flexibility. The Harbinger Nominees, subject to their fiduciary duties to the Company and Stockholders under applicable law, intend to support these recommendations. By voting the enclosed GREEN Proxy Card for Mr. Zucco and Mr. Breen, Stockholders can demonstrate to the other members of the Board their support for our nominees and our proposed recommendations. If elected, the Harbinger Nominees will not have the power by themselves to cause the Board to act in any particular way. In addition, our proposals will require the support of the Company's audit and compensation committees. However, subject to their fiduciary duties to the Company and Stockholders under applicable law, the Harbinger Nominees will attempt to influence their fellow directors to act in a manner that we believe is in the best interests of all Stockholders. EVEN AFTER YOU HAVE SUBMITTED YOUR PROXY, YOU MAY CHANGE YOUR VOTE AT ANY TIME BEFORE THE MEETING BY SENDING A DULY EXECUTED PROXY WITH A LATER DATE TO MACKENZIE PARTNERS AT THE ADDRESS ON THE BACK COVER. NOMINEES FOR DIRECTOR GENERAL The by-laws of the Company provide that the exact number of directors shall be fixed by resolution of the Board. According to public information, the Board currently consists of six members and is divided into three classes having three-year terms that expire in successive years. The term of office of the two directors in Class III expires at the Annual Meeting. We have nominated James L. Zucco and Andrew J. Breen to serve as Class III directors for a term of three years and until their successors are duly elected and qualified. Mr. Zucco and Mr. Breen have consented to serve as directors if elected. THE HARBINGER NOMINEES The information below concerning age and principal occupation has been furnished by James L. Zucco and Andrew J. Breen. NAME AGE PRINCIPAL OCCUPATION - ---- --- -------------------- James L. Zucco 55 Mr. Zucco is currently the Chairman and Chief Executive Officer of Corente Innovation Advisers and has over 20 years of executive experience in the software and telecommunications industries. Prior to taking on an operating position with Corente Innovation Advisers, Mr. Zucco was instrumental in incubating and building the company from a board of directors level. Andrew J. Breen 35 Mr. Breen is currently an advisor at Treyex, LLC where he advises the firm on strategic investments in public companies in the mobile technology industry and provides industry and company analysis, as well as engaging senior management with turnaround strategies. WE RECOMMEND THAT STOCKHOLDERS VOTE IN FAVOR OF THE HARBINGER NOMINEES LISTED ABOVE AND NOT RETURN THE COMPANY'S [COLOR] PROXY CARD TO THE COMPANY AND NOT VOTE IN FAVOR OF THE NOMINEES OF THE COMPANY. QUESTIONS CONCERNING THIS PROXY STATEMENT OR THE ENCLOSED GREEN PROXY CARD SHOULD BE DIRECTED TO: MACKENZIE PARTNERS, INC. 105 MADISON AVENUE, NEW YORK, NY 10016 CALL TOLL FREE 1-800-322-2885 ------------ VOTING Based on public information, the Board has fixed the close of business on November 27, 2006 as the record date for the determination of the Stockholders entitled to notice of and to vote at the Annual Meeting. Based on the latest available public information, there were 94,612,874 shares of common stock outstanding on November 27, 2006. The holders of a majority of such shares, represented in person or by proxy, shall constitute a quorum at the Annual Meeting. A quorum is necessary before business may be transacted at the Annual Meeting except that, even if a quorum is not present, the Stockholders present in person or by proxy shall have the power to adjourn the meeting from time to time until a quorum is present. Each Stockholder entitled to vote shall have the right to one vote for each share of common stock outstanding in such Stockholder's name. Directors are to be elected by a plurality of the votes cast at the Annual Meeting. With respect to any other matter that may properly be brought before the Annual Meeting, the affirmative vote of a majority of the votes cast by Stockholders entitled to vote thereon is required to take action, unless a greater percentage is required either by law or by the Company's certificate of incorporation or by-laws. In determining the number of votes cast with respect to any voting matter, only those cast "for" or "withhold authority" are included. Abstentions will be considered present and entitled to vote at the Annual Meeting but will not be counted as votes cast. Accordingly, abstentions will have no effect on the vote. Similarly, where brokers submit proxies but are prohibited and thus refrain from exercising discretionary authority in voting shares on certain matters for beneficial owners who have not provided voting instructions with respect to such matters (commonly referred to as "broker non-votes"), those shares will be considered present and entitled to vote at the Annual Meeting but will not be counted as votes cast as to such matters and thus will have no effect on the vote. Execution and return of the enclosed GREEN Proxy Card will not affect a Stockholder's right to attend the Annual Meeting and vote in person. Any Stockholder that executes and returns a Proxy Card has the right to revoke it by giving notice of revocation to the Secretary of the Company at any time before the Proxy is voted. Unless contrary instructions are indicated on the enclosed GREEN Proxy Card, all shares of common stock represented by valid Proxies received pursuant to this solicitation (which have not been revoked as described above) will be voted (a) FOR the election of James L. Zucco and Andrew J. Breen and (b) at the discretion of the Proxy holder(s), on such other business as may properly come before the Annual Meeting, including any adjournment(s) or postponements(s) thereof. IF YOU WISH TO VOTE FOR JAMES L. ZUCCO AND ANDREW J. BREEN, YOU MUST EXECUTE AND RETURN THE ENCLOSED GREEN PROXY CARD AND SHOULD NOT EXECUTE OR RETURN THE COMPANY'S [COLOR] PROXY CARD. DO NOT RETURN ANY PROXY CARD OTHER THAN THE GREEN PROXY CARD. IF YOU RETURN MORE THAN ONE PROXY CARD THERE IS A RISK THAT YOUR SHARES WILL NOT BE VOTED AS YOU DESIRE, BECAUSE ONLY THE LATEST DATED PROXY CARD YOU SUBMIT COUNTS. EVEN AFTER YOU HAVE SUBMITTED YOUR PROXY, YOU MAY CHANGE YOUR VOTE AT ANY TIME BEFORE THE MEETING BY SENDING A DULY EXECUTED PROXY WITH A LATER DATE TO MACKENZIE PARTNERS AT THE ADDRESS ON THE BACK COVER. IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK OR NOMINEE ON THE RECORD DATE, ONLY IT CAN VOTE YOUR SHARES AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. PLEASE CONTACT THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND GIVE INSTRUCTIONS FOR YOUR SHARES TO BE VOTED ON THE GREEN PROXY CARD FOR JAMES L. ZUCCO AND ANDREW J. BREEN. YOUR VOTE AT THIS YEAR'S ANNUAL MEETING IS ESPECIALLY IMPORTANT. PLEASE SIGN AND DATE THE ENCLOSED GREEN PROXY CARD AND RETURN IT IN THE ENCLOSED POSTAGE-PAID ENVELOPE PROMPTLY. INFORMATION CONCERNING PERSONS WHO MAY SOLICIT PROXIES Under the applicable regulations of the Securities and Exchange Commission, each of Harbinger Capital Partners, Mr. Zucco and Mr. Breen is deemed to be a "participant" in our solicitation of proxies. The name, business address and principal occupation of each of Harbinger Capital Partners, Mr. Zucco and Mr. Breen appear earlier in this Proxy Statement (each a "Participant"). Except as described in this Proxy Statement, neither the Participant nor any of his or her respective affiliates or associates (together, the "Participant Affiliates"), (i) directly or indirectly beneficially owns any securities of the Company or of any subsidiary of the Company or (ii) has had any relationship with the Company in any capacity other than as a Stockholder. Furthermore, except as described in this Proxy Statement, neither the Participant nor any Participant Affiliate is a party to any transaction or series of transactions since [January 1, 2005], or has knowledge of any currently proposed transaction or series of transactions, (i) to which the Company or any of its subsidiaries was or is to be a party, (ii) in which the amount involved exceeds $60,000, and (iii) in which the Participant or Participant Affiliate had or will have, a direct or indirect material interest. Except as described in this Proxy Statement, neither the Participant nor any Participant Affiliate has entered into any agreement or understanding with any person respecting any (i) future employment by the Company or its affiliates or (ii) any transactions to which the Company or any of its affiliates will or may be a party. Except as described in this Proxy Statement, there are no contracts, arrangements or understandings by the Participant or Participant Affiliates within the past year with any person with respect to any capital stock of the Company. COST AND METHOD OF SOLICITATION We will bear the cost of this solicitation. While no precise estimate of this cost can be made at the present time, we currently estimate that we collectively will spend a total of approximately $[________] for our solicitation of proxies, including expenditures for attorneys, solicitors and advertising, printing, transportation and related expenses. As of [________], 2006, we have incurred proxy solicitation expenses of approximately $[________]. We expect to seek reimbursement from the Company for our expenses in connection with this solicitation. In addition to soliciting proxies by mail, proxies may be solicited in person or by telephone, telecopy, e-mail or the Internet. We will also reimburse brokers, fiduciaries, custodians and other nominees, as well as persons holding stock for others who have the right to give voting instructions, for out-of-pocket expenses incurred in forwarding this Proxy Statement and related materials to, and obtaining instructions or authorizations relating to such materials from, beneficial owners of Company capital stock. We will pay for the cost of these solicitations, but these individuals will receive no additional compensation for these solicitation services. We have retained the proxy solicitation firm of MacKenzie Partners, Inc. at customary fees, plus reasonable out-of-pocket expenses, to participate in the solicitation of proxies and revocations. We also have agreed to indemnify MacKenzie Partners against certain liabilities and expenses. We estimate that approximately [50] employees of MacKenzie Partners will be involved in the solicitation of proxies on our behalf. ADDITIONAL INFORMATION Certain information regarding common stock held by the Company's directors, nominees, management and 5% stockholders is contained in the Company's [color] proxy statement and is incorporated herein by reference. Information concerning the date by which proposals of security holders intended to be presented at the next annual meeting of stockholders of the Company must be received by the Company for inclusion in the Company's proxy statement and form of proxy for that meeting is also contained in the Company's proxy statement and is incorporated herein by reference. We assume no responsibility for the accuracy or completeness of any information contained herein which is based on, or incorporated by reference to, the Company's proxy statement. HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. JAMES L. ZUCCO ANDREW J. BREEN December 27, 2006 IMPORTANT PLEASE REVIEW THIS DOCUMENT AND THE ENCLOSED MATERIALS CAREFULLY. YOUR VOTE IS VERY IMPORTANT, NO MATTER HOW MANY OR HOW FEW SHARES OF COMMON STOCK YOU OWN. 1. If your shares are registered in your own name, please sign, date and mail the enclosed GREEN Proxy Card to MacKenzie Partners, Inc. in the postage-paid envelope provided today. 2. If you have previously signed and returned a proxy card to Openwave Systems, Inc., you have every right to change your vote. Only your latest dated card will count. You may revoke any proxy card already sent to Openwave Systems, Inc. by signing, dating and mailing the enclosed GREEN Proxy Card in the postage-paid envelope provided. Any proxy may be revoked at any time prior to the 2006 Annual Meeting by sending a new proxy card to MacKenzie Partners, Inc. or the Secretary of Openwave Systems, Inc., or by voting in person at the 2006 Annual Meeting. 3. If your shares are held in the name of a brokerage firm, bank nominee or other institution, only it can sign a GREEN Proxy Card with respect to your shares and only after receiving your specific instructions. Accordingly, please sign, date and mail the enclosed GREEN Proxy Card in the postage-paid envelope provided, and to ensure that your shares are voted, you should also contact the person responsible for your account and give instructions for a GREEN Proxy Card to be issued representing your shares. 4. After signing the enclosed GREEN Proxy Card do not sign or return the Company's proxy card unless you intend to change your vote, because only your latest dated proxy card will be counted. If you have any questions about giving your proxy or require assistance, please call toll-free: MACKENZIE PARTNERS, INC. 1-800-322-2885 IN OPPOSITION TO THE BOARD OF DIRECTORS OF OPENWAVE SYSTEMS, INC. PROXY FOR THE 2006 ANNUAL MEETING OF STOCKHOLDERS THIS PROXY IS SOLICITED ON BEHALF OF MASTER FUND, JAMES L. ZUCCO AND ANDREW J. BREEN The undersigned hereby appoints Philip Falcone, James L. Zucco and Andrew J. Breen, or any of them proxies for the undersigned with full power of substitution, to vote all shares of beneficial interest of Openwave Systems, Inc. (the "Company") which the undersigned is entitled to vote at the Company's 2006 Annual Meeting of Stockholders, and any postponements or adjournments thereof, hereby revoking all prior proxies, on the matters set forth below as follows: HARBINGER CAPITAL PARTNERS, JAMES L. ZUCCO AND ANDREW J. BREEN RECOMMEND A VOTE FOR PROPOSAL 1. THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED. IF A CHOICE IS NOT SPECIFIED, THE PROXY WILL BE VOTED FOR THE NOMINEES LISTED BELOW. [X] Please mark your votes as in this example. 1. Election of James L. Zucco and Andrew J. Breen as Class III Directors whose terms expire in [2009]: [_] FOR all nominees (except as [_] WITHHOLD AUTHORITY for all nominees marked below) (INSTRUCTION: To withhold authority to vote for one or more nominees, mark FOR above and print the name(s) of the person(s) with respect to whom you wish to withhold authority in the space provided below.) --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- 2. To act upon any other matters that may properly come before the meeting. PLEASE MARK YOUR VOTES (ON REVERSE SIDE), SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED POSTAGE-PAID ENVELOPE. Please sign exactly as your name appears on this Proxy. When shares are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee or guardian, please give your full title. If a corporation, please sign in full corporate name by President or other authorized officer. If a partnership, please sign in partnership name by the authorized person. Date: _______________, 200__ ---------------------------------- Signature of Stockholder ---------------------------------- Signature of Stockholder HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. 555 Madison Avenue, 16th Floor New York, NY 10022 December 27, 2006 Dear Stockholder: As you may know, Harbinger Capital Partners Master Fund I, Ltd. ("Harbinger") and Harbinger Capital Partners Special Situations Fund, L.P. ("Special Situations Fund" and together with the Harbinger, "Harbinger Capital Partners") hold approximately 11% of the outstanding common stock of Openwave Systems, Inc. ("Openwave" or the "Company"). On December 27, 2006, Harbinger Capital Partners filed proxy material (the "Proxy") with the Securities and Exchange Commission (the "SEC"). The Proxy was furnished by Harbinger Capital Partners, James L. Zucco ("Mr. Zucco") and Andrew J. Breen ("Mr. Breen") to the stockholders (the "Stockholders") of Openwave in connection with the solicitation by Harbinger Capital Partners, Mr. Zucco and Mr. Breen of proxies to be voted at the Company's 2006 Annual Meeting of Stockholders (the "Annual Meeting"). The Annual Meeting will be held on Wednesday, January 17, 2007 at 8:30 a.m. PST at the Company's offices located at 2100 Seaport Boulevard, Redwood City, California 94063. Harbinger Capital Partners and Messrs. Zucco and Breen are soliciting proxies from Stockholders in order to elect Mr. Zucco and Mr. Breen to the Board of Directors of the Company (the "Board") as Class III directors at the Annual Meeting. Mr. Zucco and Mr. Breen have a wealth of experience in both the software and telecommunications industries and Harbinger Capital Partners is confident they can help the Board develop and implement plans to address the issues the Company is facing. The Proxy includes certain recommendations Harbinger Capital Partners, Mr. Zucco and Mr. Breen would propose to the Board if Mr. Zucco and Mr. Breen are elected as directors. These recommendations include (i) establishing a unified and focused vision for the Company's overall product offering with the Company's most strategic core products; (ii) phasing-out non-performing product lines to reduce costs; (iii) immediately reducing quarterly operating expenses to approximately $50 million and (iv) immediately commencing a significant share repurchase program. Harbinger Capital Partners acquired the Company's common stock in the ordinary course of business or investment activities, as the case may be. Harbinger Capital Partners reserve their right to sell, transfer or otherwise dispose of, or acquire additional shares of, the Company's common stock. Sincerely, HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: ------------------------------------ Name: ------------------------------------ HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: ------------------------------------ Name: ------------------------------------ SK 03773 0003 734563 EX-99.D 3 d734562_ex-d.txt EXHIBIT D CONSULTING AGREEMENT This agreement dated as of December 27, 2006 (the "Agreement") shall set forth the terms under which Treyex, LLC. ("Treyex"), through its employees Andrew Breen ("Mr. Breen") and Sanford Cohen ("Mr. Cohen," together with Mr. Breen, the "Consultants"), has rendered and shall render professional services (the "Services") to Harbinger Capital Partners Master Fund I, Ltd. ("Master Fund") and Harbinger Capital Partners Special Situations Fund, L.P. ("Special Situations Fund" and together with Master Fund, "Harbinger Capital Partners"). This Agreement shall supersede all prior written agreements among these parties in their entirety. The term of this Agreement shall begin December 27, 2006, and continue indefinitely unless and until terminated immediately upon written notice by either party. Services may include performing research, designing models, reviewing documents, performing quantitative and qualitative analysis, evaluating securities and preparing reports. Consultants is expressly prohibited from communicating with any proposed or actual Harbinger Capital Partners' counterparty on behalf of Harbinger Capital Partners about the purchase or sale of securities, or otherwise communicating in a manner that would require Consultants to possess a securities license, unless accompanied by Philip Falcone or a person designated by him. Consultants shall use his best efforts to perform the Services in a timely fashion. Treyex shall be paid for the performance of Services in connection with Openwave at a rate of $50,000.00 per month during the term of this Agreement, payable on the 30th of each month (the "Retainer"). Harbinger Capital Partners shall reimburse Treyex for any travel or third party consulting or legal costs which Harbinger Capital Partners at its sole discretion directs (in writing) Treyex to incur, however, provision of the Services shall not require any such costs to be incurred. Treyex shall be responsible for all federal, state, and local tax payments related to amounts it receives under this Agreement and Harbinger Capital Partners shall not make any withholdings from the amounts paid to Treyex. Treyex and Consultants' relationship to Harbinger Capital Partners shall be that of an independent contractor and this Agreement shall not be construed to create an employer-employee relationship between Harbinger Capital Partners and Treyex or Consultants. With respect to Harbinger Capital Partners' investment in Openwave Systems, Inc. ("Openwave"), Treyex shall be entitled to a fee (the "Success Fee") as follows: 1. If the price of Openwave's common stock (the "Shares") rises during the term of this agreement by 20%, Treyex shall be entitled to a fee of 2.4% of the profits made by Harbinger Capital Partners on its investment. 2. For each additional 1% increase in the price of the Shares during the term of this Agreement, Treyex shall be entitled to an additional 0.02% of the profits made by Harbinger Capital Partners. All prior monthly Retainer payments (including such payments made under the previous agreement between Harbinger Capital Partners and Treyex) shall be credited against the Success Fee. 3. The Success Fee is payable only if there is a realization of at least a 20% profit upon the sale by Harbinger Capital Partners of its entire position of the Shares. 4. Treyex's right to receive Success Fee payments is further contingent upon Mr. Breen being available to serve on the board of directors of Openwave, as well as Treyex (a) helping to find additional strategic and financial investors in Openwave; (b) identifying potential candidates for senior management positions that may become available; (c) helping Openwave execute its business plans and (d) implementing any other reasonable request made by Harbinger Capital Partners. 5. The Success Fee will be calculated based on the lowest entry price paid by Harbinger Capital Partners for the Shares. 6. If Harbinger Capital Partners returns to passive-investor status with respect to its ownership of the Shares, Treyex will be entitled to the Success Fee only if Harbinger Capital Partners sells its entire position of the Shares for at least a 20% profit within 90 days of returning to such a passive-investor status. Harbinger Capital Partners will promptly notify Treyex in writing of becoming a passive investor. Passive-investor status shall have the meaning set forth in Section 10. If Harbinger Capital Partners returns to passive-investor status, the Success Fee contingencies in Section 4 will no longer apply. 7. If, after returning to passive-investor status with respect to its ownership of the Shares, Harbinger Capital Partners sells its entire position of the Shares after 90 days for any profit, Treyex shall be entitled to an additional fee. Such additional fee shall be calculated by (x) totaling Retainer fees paid to date (the "Retainer Total") and (y) multiplying the Retainer Total by the percentage of profit. 8. If Treyex terminates this Agreement, Harbinger Capital Partners will have no obligation to pay the Success Fee; however, if Harbinger Capital Partners terminates this Agreement, the Success Fee provisions will survive and remain payable upon the sale by Harbinger Capital Partners of its entire position of the Shares. 9. For purposes of this Agreement, profit shall mean realized gain, net of all expenses incurred by Harbinger Capital Partners, including, but not limited to, normal brokerage commissions and extraordinary fees associated with the proposed proxy solicitation by Harbinger Capital Partners. 10. For purposes of this Agreement, passive-investor status shall mean when Harbinger Capital Partners no longer actively seeks to influence or change management or other elements of the operation of Openwave's business. If Harbinger Capital Partners returns to passive-investor status, the Success Fee contingencies in Section 4 will no longer apply. As long as Mr. Breen is on the board of directors of Openwave, Harbinger Capital Partners will not change its status to that of a passive investor. Neither Treyex nor Consultants shall be entitled to any other compensation, bonus, benefits or other remuneration from Harbinger Capital Partners or be eligible to participate in benefits or privileges given or extended by Harbinger Capital Partners to its employees. Neither Harbinger Capital Partners nor Treyex or Consultants shall have the power to create, and shall not represent to any person that it has the power to create, any express or implied obligation on the other's behalf. Harbinger Capital Partners may elect to provide Treyex or Consultants certain confidential and/or proprietary information with respect to its business (the "Confidential Information"). Confidential Information shall not include materials or information in the public domain other than through a breach of this Agreement by Treyex or Consultants, or materials or information obtained from a third-party not subject to confidentiality obligations with regard thereto. Treyex and Consultants' use of any Confidential Information shall be solely for the purpose of providing Services to Harbinger Capital Partners. Except as required by law, regulation or an order in a legal proceeding, Treyex and Consultants may not disclose Confidential Information without Harbinger Capital Partners' prior written consent. Treyex or Consultants will provide Harbinger Capital Partners with certain information in writing or by electronic mail. Harbinger Capital Partners may use such information as it deems desirable, provided that Harbinger Capital Partners shall not be permitted to share such information with third-parties other than its counsel and/or as required by law, regulation or an order in a legal proceeding. Harbinger Capital Partners agrees that Treyex or Consultants may share such written or emailed information with third-parties, except to the extent that it reveals Confidential Information of Harbinger Capital Partners. Without the prior consent of Openwave, Mr. Breen shall not share with Harbinger Capital Partners any confidential information regarding Openwave which Mr. Breen may obtain in connection with Mr. Breen's service as a director or other fiduciary of Openwave. For so long as Mr. Breen shall be a member of the board of directors of Openwave, any actions taken or decisions made by Mr. Breen in his capacity as a director of the Openwave shall be independent of, and not related to or arising out of, this Agreement. Nothing in the Agreement shall prohibit or impede Mr. Breen from (i) taking any action which he reasonably believes to be in furtherance and fulfillment of his duties to Openwave, (ii) otherwise fulfilling his obligations and performing his duties as a director of Openwave. Harbinger Capital Partners shall indemnify Treyex and the Consultants against expenses (including attorneys' fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising out of the performance of the Services under this Agreement and running for the board of directors of Openwave, as these expenses are incurred. This indemnification right shall survive for a period of one year after termination of this Agreement. This Agreement states the entire understanding of the parties with regard to its subject matter and may not be amended or modified except in writing, signed by each of the parties named below. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have either executed and acknowledged this Agreement, or caused it to be executed and acknowledged on their behalf by their duly authorized officers all as of the date first above written. HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: ----------------------------------------------------- Name: ----------------------------------------------------- HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: ----------------------------------------------------- Name: ----------------------------------------------------- TREYEX, LLC By: ----------------------------------------------------- Name: ----------------------------------------------------- CONSULTANTS By: ----------------------------------------------------- Name: ----------------------------------------------------- By: ----------------------------------------------------- Name: ----------------------------------------------------- SK 03773 0003 734562 EX-99.E 4 d734542_ex-e.txt EXHIBIT E HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. c/o 555 Madison Avenue, 16th Floor New York, NY 10022 December 27, 2006 By Hand By Federal Express and Email Openwave Systems, Inc. Openwave Systems, Inc. c/o Corporation Service Company 22100 Seaport Boulevard 2711 Centreville Road, Suite 400 Redwood City, CA 94063 Wilmington, DE 19808 c/o Jim Wu, Esquire, Secretary (jim.wu@openwave.com) Re: Demand For Inspection Of Stock List Materials Of Openwave Systems, Inc. Pursuant to 8 Del.C. s.220 Gentlemen: As you are aware, Harbinger Capital Partners Master Fund I, Ltd. ("Master Fund"), and Harbinger Capital Partners Special Situations Fund, L.P., ("Special Situations Fund") (collectively Master Fund and Special Situations Fund are referred to herein as "Harbinger") own 10 million shares of the common stock of Openwave Systems, Inc. ("Openwave" or the Company"). In addition each of Master Fund and Special Situations Fund is the record holder of 100 shares of Openwave stock. A copy of the stock certificates is attached. Pursuant to s. 220 of the Delaware General Corporation Law, Harbinger demands that the Company provide it with copies of all of its stock list materials, including but not limited to the following: (a) A complete record or list of the holders of the Common Stock, certified by the Company's transfer agent(s) and/or registrar(s), showing the name, address and number of shares registered in the name of each such holder, as of the date hereof as well as any record date established, or to be established, for the 2006 annual meeting of stockholders of the Company (currently scheduled for January 17, 2007), or any other record date that may be established for the annual meeting or any other meeting of stockholders held in lieu thereof and any adjournments, postponements, re-schedulings or continuations thereof (the "Annual Meeting"), and any special meeting of stockholders and any record date for a consent in writing without a meeting between the date hereof and the 2006 Annual Meeting (any such date, the "Determination Date"); (b) A magnetic computer tape list or other electronic medium of the holders of the Common Stock as of the Determination Date, showing the name, address and number of shares registered in the name of each such holder; such computer processing data as is necessary to make use of such magnetic computer tape; and a hard copy printout of such magnetic computer tape for verification purposes; (c) A stop list or stop lists relating to shares of Common Stock of the Company and any additions or deletions thereto. Any daily transfer sheets after the initial Determination Date; (d) All information in the Company's or its transfer agent's possession, or which can reasonably be obtained from nominees of any central certificate depository systems or their nominees, brokers, dealers, banks, respondent banks, clearing agencies, voting trusts and their nominees or other nominees, concerning the number, identity of, and shares held by the actual beneficial owners of the Common Stock as of the Determination Date, including an alphabetical breakdown of any holdings in the respective names of Cede & Co. and other similar depositories or nominees as well as any material request list provided by Automatic Data Processing-Investor Communications Services and any omnibus proxies issued by such entities; (e) All information in or which comes into the Company's possession or which can reasonably be obtained from brokers, dealers, banks, clearing agencies or voting trustees relating to the names of the non-objecting beneficial owners of the Common Stock in the format of a magnetic computer tape, cartridge file or other electronic medium of such owners showing the name, address and number of shares registered in the name of each such owner; such computer processing data as is necessary to make use of such magnetic computer tape or cartridge; and a hard copy printout of such magnetic computer tape or cartridge for verification purposes (such information with respect to brokers and dealers is readily available to the Company under Rule 14b-1 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from ADP Proxy Services); (f) All "respondent bank" lists and omnibus proxies for such lists, pursuant to Rule 14b-2 of the Exchange Act; (g) A list of stockholders of the Company who are participants in any Company employee stock ownership, stock purchase, stock option, retirement, restricted stock, incentive, profit sharing, dividend reinvestment or any similar plan in which voting of Common Stock under the plan is controlled, directly or indirectly, individually or collectively, by such plan's participants, showing (i) the name and address of each such participant, (ii) the number of shares of Common Stock attributable to each such participant in any such plan, and (iii) the method by which Newcastle or its agents may communicate with each such participant, as well as the name, firm and phone number of the trustee or administrator of such plan, and a detailed explanation of the treatment not only of shares for which the trustee or administrator receives instructions from participants, but also shares for which either they do not receive instructions or shares which are outstanding in the plan but are unallocated to any participant; and (h) A correct and complete copy of the bylaws of the Company. We hereby further demand that modifications, additions or deletions to any and all information referred to in paragraphs (a) through (h) be immediately furnished as such modifications, additions or deletions become available to the Company or its agents or representatives. We will bear the reasonable costs incurred by the Company including those of its transfer agent(s) or registrar(s) in connection with the production of the information demanded. Please have your counsel immediately advise our counsel, M. Douglas Dunn or John T. O'Connor of Milbank, Tweed, Hadley & McCloy, LLP at 212-530-5000 where and when the aforementioned books, records and other documents will be available for inspection and copying. Very truly yours, HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, L.L.C., its Investment Manager By: ---------------------------------------------------- Name: Title: HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: Harbinger Capital Partners Special Situations GP, LLC, its General Partner By: ---------------------------------------------------- Name: Title: Verification and Power of Attorney STATE OF ALABAMA ) : SS. COUNTY OF JEFFERSON ) BE IT REMEMBERED that the undersigned, David Boutwell, personally appeared before me, who being duly sworn, deposes and says: 1. That the foregoing is the undersigned's letter of demand for the inspection of designated stocklist materials and books and records of Openwave Systems, Inc. and that the statements made in such letter are true and correct. 2. That the letter designates MacKenzie Partners, Inc., Milbank, Tweed, Hadley & McCloy LLP and Ashby & Geddes and their respective partners, officers, associates, employees, and other persons to be designated by them, acting together, singly, or in combination, as the undersigned's attorney or agent to conduct such inspection, and that the foregoing and this verification are the undersigned's power of attorney authorizing the foregoing persons to act on behalf of the undersigned. HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, L.L.C., its Investment Manager By: ---------------------------------------------------- Name: David Boutwell Title: Executive Vice President HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: Harbinger Capital Partners Special Situations GP, LLC, its General Partner By: ---------------------------------------------------- Name: David Boutwell Title: Executive Vice President SWORN TO AND SUBSCRIBED BEFORE ME this 27th day of December, 2006. - --------------------------------------- Notary Public SK 03773 0003 734542 -----END PRIVACY-ENHANCED MESSAGE-----