EXHIBIT 10.44
Secured Full Recourse Promissory Note
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Foster City, California
$ 230,300.00 November 30, 1999
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Reference is made to that certain Restricted Stock Purchase Agreement (the
"Purchase Agreement") of even date herewith, by and between the undersigned (the
"Purchaser") and Dovebid Inc., a Delaware corporation (the "Company"), issued to
Purchaser. This Secured Full Recourse Promissory Note (the "Note") is being
tendered by Purchaser to the Company as part of the total purchase price of the
Shares (as defined below) pursuant to the Purchase Agreement.
1. Obligation. In exchange for the issuance to the Purchaser
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pursuant to the Purchase Agreement of 700,000 shares of the Company's Common
Stock (the "Shares"), receipt of which is hereby acknowledged, Purchaser hereby
promises to pay to the order of the Company on or before the fifth anniversary
of the date set forth above at the Company's principal place of business located
at 0000 X. Xxxxxxxxx Xxxx., Xxxxxx Xxxx, Xxxxxxxxxx 00000, or at such other
place as the Company may direct, the principal sum of two hundred and thirty
thousand three hundred dollars ($230,300.00) together with interest compounded
monthly on the unpaid principal at the rate of 5.92%, which rate is not less
than the minimum rate established pursuant to Section 1274(d) of the Internal
Revenue Code of 1986, as amended, on the earliest date on which there was a
binding contract in writing for the purchase of the Shares; provided, however,
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that the rate at which interest will accrue on unpaid principal under this Note
will not exceed the highest rate permitted by applicable law. All payments
hereunder shall be made in lawful tender of the United States.
2. Security. Performance of Purchaser's obligations under this Note
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is secured by a security interest in the Shares granted to the Company by
Purchaser under a Stock Pledge Agreement dated of even date herewith between the
Company and Purchaser (the "Pledge Agreement")
3. Events of Default. Purchaser will be deemed to be in default
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under this Note upon the occurrence of any of the following events (each an
"Event of Default"): (i) upon Purchaser's failure to make any payment when due
under this Note; (iii) the failure of any representation or warranty in the
Pledge Agreement to have been true, the failure of Purchaser to perform any
obligation under the Pledge, or upon any other breach by the Purchaser of the
Pledge Agreement; (iv) any voluntary or involuntary transfer of any of the
Shares or any interest therein (except a transfer to the Company) without the
Company's consent; (v) upon the filing regarding the Purchaser of any voluntary
or involuntary petition for relief under the United States Bankruptcy Code or
the initiation of any proceeding under federal law or law of any other
jurisdiction for the general relief of debtors; or (vi) upon the execution by
Purchaser of an assignment for the
benefit of creditors or the appointment of a receiver, custodian, trustee or
similar party to take possession of Purchaser's assets or property.
4. Acceleration; Remedies On Default. Upon the occurrence of any
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Event of Default, at the option of the Company, all principal and other amounts
owed under this Note shall become immediately due and payable without notice or
demand on the part of the Company, and the Company will have, in addition to its
rights and remedies under this Note, the Pledge Agreement, full recourse against
any real, personal, tangible or intangible assets of Purchaser, and may pursue
any legal or equitable remedies that are available to it.
5. Rule 144 Holding Period. PURCHASER UNDERSTANDS THAT THE HOLDING
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PERIOD SPECIFIED UNDER RULE 144(d) OF THE SECURITIES AND EXCHANGE COMMISSION
WILL NOT BEGIN TO RUN WITH RESPECT TO SHARES PURCHASED WITH THIS NOTE UNTIL
EITHER (i) THE EXERCISE PRICE OF SUCH SHARES IS PAID IN FULL IN CASH OR BY OTHER
PROPERTY ACCEPTED BY THE COMPANY, OR (ii) THIS NOTE IS SECURED BY COLLATERAL,
OTHER THAN THE SHARES THAT HAVE NOT BEEN FULLY PAID FOR IN CASH, HAVING A FAIR
MARKET VALUE AT LEAST EQUAL TO THE AMOUNT OF PURCHASER'S THEN OUTSTANDING
OBLIGATION UNDER THIS NOTE (INCLUDING ACCRUED INTEREST).
6. Prepayment. Prepayment of principal and/or other amounts owed
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under this Note may be made at any time without penalty. Unless otherwise
agreed in writing by the Company, each payment will be applied to the extent of
available funds from such payment in the following order: (i) first to the
accrued but unpaid interest, and (ii) then to the outstanding principal.
7. Governing Law; Waiver. The validity, construction and
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performance of this Note will be governed by the internal laws of the State of
California, excluding that body of law pertaining to conflicts of law.
Purchaser hereby waives presentment, notice of non-payment, notice of dishonor,
protest, demand and diligence.
8. Attorneys' Fees. If suit is brought for collection of this Note,
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Purchaser agrees to pay all reasonable expenses, including attorneys' fees,
incurred by the holder in connection therewith whether or not such suit is
prosecuted to judgment.
IN WITNESS WHEREOF, Purchaser has executed this Note as of the date
and year first above written.
/s/ Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx Purchaser's Signature
[Signature page to Dovebid, Inc. Secured Full Recourse Promissory Note]
