EXHIBIT 10.56
DOVEBID, INC.
Amendment to
Series C Preferred Stock Purchase Agreement
and Ancillary Agreements
This Amendment is entered into as of August 7, 2000 by and among DoveBid,
Inc., a Delaware Corporation (the "Company"), and the "Investors" who are
parties to that certain Series C Preferred Stock Purchase Agreement, dated as of
February 25, 2000 (the "Agreement"). Any capitalized terms not defined herein
shall have the meanings given to those terms in the Agreement.
Whereas, it has been proposed that the period during which the Company may
hold Additional Closings pursuant to the Agreement be extended until October 1,
2000; and
Whereas, it has been proposed that the number of shares of Series C
Preferred Stock that may be sold pursuant to the Agreement be increased from
43,000,000 to 54,235,955 to enable the Company to issue and sell up to
11,235,955 additional shares of Series C Preferred Stock (the "Additional
Stock") for a total purchase price of approximately $30,000,000; and
Whereas, the Company has requested that the Investors amend the Agreement,
as well as the agreements entered into by the parties thereto in connection with
the Agreement, in order to extend the closing period and to increase the number
of shares purchasable thereunder, so that additional shares of Series C
Preferred Stock may be sold pursuant to the Agreement and related agreements;
Now, Therefore, the Company and each of the Investors agree as follows.
1. Amendment of Agreement Section 1.3. Section 1.3 of the Agreement is
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hereby amended to read as follows.
"1.3 Additional Closings.
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(a) Conditions of Additional Closing(s). Subject to Section
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1.3(b) below, at any time and from time to time during the period prior to
October 1, 2000 (the "Additional Closing Period"), the Company may, at one
or more additional closings (each an "Additional Closing"), without
obtaining the signature, consent or permission of any of the Investors,
offer and sell additional shares of Series C Preferred Stock to other
investors (the "New Investors") in an amount equal to 54,235,955 minus the
Shares and the Shares subject to the Warrant, if any, purchased at the
Closing, under the terms and conditions set forth in this Agreement. New
Investors may include persons or entities who are already Investors under
this Agreement and may include any or all of Comdisco, Sun, Data Stream or
Yahoo.
(b) Amendments. The Company and the New Investors purchasing
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Shares at each Additional Closing will execute counterpart signature pages
to this Agreement, the Second Amended and Restated Investors Rights
Agreement dated as of even date herewith (the "Investors' Rights
Agreement") and the Second Amended and Restated Stockholders' Agreement
dated as of even date herewith (the "Stockholders' Agreement," referred to
with the Investors' Rights Agreement as the "Ancillary Agreements"), and
such New Investors will, upon delivery to the Company of such signature
pages, become parties to, and bound by, this Agreement and the Ancillary
Agreements to the same extent as if they had been Investors at the Closing,
as modified by the Amendment to Series C Preferred Stock Purchase Agreement
and Ancillary Agreements dated as of August 3, 2000 among the Company and
the Investors. Immediately after each Additional Closing, the Schedule of
Investors attached to this Agreement as Schedule 1.1 will be amended to
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list the New Investors purchasing Shares hereunder at each such Additional
Closing. The Company will promptly furnish to each Investor upon request a
copy of the amendments to Schedule 1.1 referred to in the preceding
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sentence.
(c) Status of New Investors. Upon the completion of each
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Additional Closing as provided in this Section 1, each New Investor will be
deemed to be an "Investor" for all purposes of this Agreement, and will be
an "Investor" and a "Stockholder" for all purposes of the Ancillary
Agreements described above, as amended by the Amendment, and the shares of
Series C Preferred Stock purchased by such New Investors will be considered
"Shares" hereunder."
2. First Additional Closing. The first Additional Closing to be held
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subsequent to the date hereof (the "First Additional Closing") shall be subject
to the following terms. Capitalized terms not defined herein shall have the
terms given such terms in the Agreement.
2.1 Agreement to Purchase and Sell. The Investors whose names are set
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forth on Schedule 1 attached to this Amendment agree to purchase at the First
Additional Closing, severally and not jointly, upon the terms and conditions set
forth in the Agreement as modified by this Amendment, and the Company hereby
agrees to sell and issue to each such Investor at such Additional Closing, at a
purchase price of $2.67 per share, that number of Shares set forth opposite each
such Investor's name on Schedule 1 attached to this Amendment. Each of such
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Investors hereby agrees to approve, in its capacity as a stockholder of the
Company, and does hereby approve, amendment of the Company's Certificate of
Incorporation to increase the authorized number of shares of Series C Preferred
Stock to 55,000,000.
2.2 Preclosing. Before August 3, 2000, the Company and each of the
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Investors whose names are set forth on Schedule 1 shall deliver to Fenwick &
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West LLP, counsel for the Company ("Fenwick & West"), at Xxx Xxxx Xxxx Xxxxxx,
Xxxx Xxxx, Xxxxxxxxxx 00000, a signature page to this Amendment and the
Agreement and such documents and instruments and undated stock certificates
representing the Shares to be purchased issued in the name of the Investors as
shall be necessary to satisfy the following conditions to the Closing:
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(a) Satisfaction or waiver of the conditions to the obligation of
each Investor to purchase the Shares that are set forth in the following
subsections of Section 4.1 of the Agreement: (a) (Representations and
Warranties, which shall be true and complete at the preclosing, rather than
the First Additional Closing and an updated Disclosure Schedule shall be
delivered to the Investors at the preclosing); (b) (Performance, as to
issuance of stock certificates as provided above); (d) (Regulatory
Requirements, other than compliance with the HSR Act); (e) (Board of
Directors); (f) (Certificate of Incorporation); (g) through (j) (Collateral
Agreements); (l) (Confidentiality Agreements); and (m) (Proceedings and
Documents); and
(b) Satisfaction of the conditions to the obligation of the Company
to issue and sell the Shares that are set forth in the following
subsections of Section 4.2 of the Agreement: (a) (Representations and
Warranties, which shall be true and complete at the preclosing, rather than
the First Additional Closing); (b) (Performance, other than delivery of the
Purchase Price); (c) (Regulatory Requirements, other than compliance with
the HSR Act); (d) through (g) (Collateral Agreements); and (h) (Board of
Directors).
Since each of the Investors who will participate in the First Additional Closing
is a party to the Agreement, the Investors' Rights Agreement and the
Stockholders Agreement, only this Amendment need be executed in connection with
the First Additional Closing and the Agreement and the Ancillary Agreements need
not be re-executed. The preclosing of the First Additional Closing shall be held
on August 4, 2000 at 9:00 a.m. at the offices of Fenwick & West, or at such
other time, date or place as the Company and the Investors listed on Schedule 1
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who are to purchase a majority of the Shares at the First Additional Closing
shall agree.
2.3. Closing. The closing of the purchase and sale of the Shares at
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the First Additional Closing shall be held at the offices of Fenwick & West
immediately upon termination or expiration of the HSR Act waiting period, if
any, and the satisfaction or waiver of the following conditions to Closing.
(a) With respect solely to Shares to be purchased by TPG Partners,
III, L.P., the termination or expiration of the waiting period under the
HSR Act, if any, as provided in Section 4.1(d) the Agreement;
(b) Satisfaction or waiver of the conditions to the obligation of
each Investor to purchase the Shares that are set forth in the following
subsections of Section 4.1 of the Agreement: (b) (Performance);(c)
(Compliance Certificates); and (k) (Legal Opinion), which shall also
include amendment of the Company's Certificate of Incorporation to increase
the authorized number of shares of Series C Preferred Stock in a manner
sufficient to permit sale of the Shares at the First Additional Closing;
and
(c) Satisfaction of the conditions to the obligation of the Company
to issue and sell the Shares that are set forth in the following
subsections of Section 4.2 of the Agreement: (b) (Performance, only as to
delivery of the Purchase Price); and (c) (Regulatory Requirements, as to
compliance with the HSR Act), which shall also include
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approval by the stockholders of the Company to amendment of the Company's
Certificate of Incorporation to increase the authorized number of shares of
Series C Preferred Stock in a manner sufficient to permit sale of the
Shares at the First Additional Closing.
At the First Additional Closing, the Company shall deliver to each Investor a
certificate representing the Shares that such Investor has purchased at the
First Additional Closing against delivery to the Company by such Investor of
checks or wire transfers in the amount of the aggregate Purchase Price therefor
to be paid by such Investor as set forth on Schedule 1. All documents and
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instruments otherwise required to be delivered at the Closing shall also be
delivered by one party to another at the First Additional Closing shall be
delivered and the purchase and sale of the Shares shall thereafter be
consummated. However, in the event that the First Additional Closing is not held
on or before October 1, 2000 (which date may be extended by written consent of
the Company and Investors who are to purchase a majority of the Shares at the
First Additional Closing and, such date, as it may be so extended, referred to
as the "Termination Date"), the stock certificates and other documents to have
been delivered at the First Additional Closing shall be returned to the Company,
the documents delivered by the Investors shall be returned to the Investors and
the obligations of the Investors and the Company to hold the First Additional
Closing shall terminate and be of no force or effect.
3. Shares Increased. The number of "Shares" of "Series C Preferred
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Stock," as defined in the Agreement, shall include the 11,235,955 shares of
Additional Stock that may be sold pursuant to the terms and conditions of the
Agreement, as the same shall be amended hereby.
4. Ancillary Agreements. The term "Ancillary Agreements," as used in
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Sections 2, 3, 4 and 5 of the Agreement with respect to any Additional Closing
occurring after March 8, 2000, shall mean the Ancillary Agreements, as amended
by this Amendment. All References in the Investors' Rights Agreement to the
Series C Purchase Agreement shall refer to the Agreement, as amended by this
Amendment.
5. Confirmation of Rights Pursuant to Ancillary Agreement. The parties to
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this Amendment hereby confirm that, upon execution and delivery of a signature
page to each of (a) this Amendment in connection with the First Additional
Closing only, and (b) the Agreement, the Investors' Rights Agreement and the
Stockholders' Agreement in connection with any Additional Closing other than the
First Additional Closing, and upon acceptance by the Company of such signatory's
investment at an Additional Closing pursuant to the Agreement, such signatory:
(a) will become a party to the Investors' Rights Agreement as an
"Investor" and a "New Investor" thereunder, entitled to all of the
registration, and the other rights, set forth therein that are applicable
to the same; and
(b) will become a party to the Stockholders' Agreement as a
"Stockholder" and a "New Stockholder" thereunder, entitled to all of the
rights set forth therein that are applicable to the same."
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6. Waiver of Rights of First Offer. Each Investor hereby waives,
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effective as of as of the date hereof, for purposes of applicability both
individually and to all parties to the Stockholders' Agreement, the right of
first offer set forth in Section 2.4 of the Investors' Rights Agreement with
respect to the offer and issuance by the Company of the Additional Stock on or
before the Termination Date, as contemplated hereby, and hereby waives any
rights to notice required therein with respect to the Additional Closings
permitted hereby. This waiver and all counterparts hereto, when executed by the
undersigned Investor, shall become effective as to and binding upon such
undersigned Investor and when executed by Investors and others constituting (a)
Stockholders (as defined in the Stockholders' Agreement") holding at least 66.7%
of the outstanding Company's Series A, B and C Preferred Stock (voting together
as a single class on an as-converted basis), and (b) Stockholders holding a
majority of Common Stock outstanding, then this waiver shall become effective as
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to and binding upon all Investors and on all of the Stockholders. This waiver is
given with respect only to the offer and issuance of the Additional Stock sold
pursuant to the Agreement, and not with respect to any other offer or issuance
by the Company of any other shares of Company Stock (as defined in the
Stockholders' Agreement) to which the Stockholders' respective rights under the
Stockholders' Agreement would apply.
7. No Other Change; Counterparts. Except as amended above, the Agreement
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and the Ancillary Agreements remain unmodified, in full force and effect as of
the date of this Amendment. This Amendment may be signed in any number of
counterparts, each of which will be deemed and original and all of which, taken
together, constitute one and the same Amendment.
In Witness Whereof, the parties have executed and delivered this Amendment
as of the date first written above by their representatives, duly authorized.
COMPANY:
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DOVEBID, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Its: President
Address: 0000 Xxxx Xxxxxxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attention: Chief Executive Officer
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STOCKHOLDERS / INVESTORS:
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THE DOVE HOLDINGS CORPORATION
By: /s/ Xxxx Xxxx
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Its:
/s/ Xxxx Xxxx
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XXXX XXXX
/s/ Xxxx Xxxx
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XXXX XXXX
XXXX MANAGEMENT SERVICES, INC.
By:_______________________________
Its:
XXXX & COMPANY, INC.
By:_______________________________
Its: Vice President
COMDISCO, INC.
By:_______________________________
Title:____________________________
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FREMONT VENTURES I, L.P.
a Delaware limited partnership
By: FV, L.P., its General Partner
By: Fremont Resources, Inc.
its General Partner
By:_______________________________
Its:
F&W INVESTMENTS 2000
By:_______________________________
It's: General Partner
XXXXXXXX X, L.P.
By: Xxxxxxxx X Management, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
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Its: Managing Director
XXXXXXXX ASSOCIATES FUND V, L.P.
By: Xxxxxxxx X Management, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
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Its: Managing Director
XXXXXXXX PRINCIPALS FUND, L.L.C.
By: Xxxxxxxx X Management, L.L.C.
Its: Managing Member
By: /s/ Xxxxx X. Xxxxx
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Its: Managing Director
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SOFTBANK CAPITAL PARTNERS LP
a Delaware limited partnership
By: SOFTBANK Capital Partners LLC
its General Partner
By: /s/ [illegible]
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Its: Admin. Member
SOFTBANK CAPITAL ADVISORS FUND LP
a Delaware limited partnership
By: SOFTBANK Capital Partners LLC
its General Partner
By: /s/ [illegible]
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Its: Admin. Member
SUN MICROSYSTEMS, INC.
By:_______________________________
Its:
TPG PARTNERS III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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TPG PARALLEL III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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TPG INVESTORS III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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T/3/ PARTNERS, L.P.
By: T/3/ GenPar, L.P.
By: T/3/ Advisors, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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T/3/ PARALLEL, L.P.
By: T/3/ GenPar, L.P.
By: T/3/ Advisors, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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T/3/ INVESTORS, L.P.
By: T/3/ GenPar, L.P.
By: T/3/ Advisors, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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FOF PARTNERS III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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FOF PARTNERS III-B, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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TPG DUTCH PARALLEL III, C.V.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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T/3/ DUTCH PARALLEL, C.V.
By: T/3/ GenPar, L.P.
By: T/3/ Advisors, Inc.
By: /s/ Xxxxxx Xxxxxxx
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Title: Vice President
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T.H. eVENTURE PTE LTD
By: /s/ Giam Xxx Xxxx
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Name : GIAM XXX XXXX (MS)
Its: Company Secretary
YAHOO! INC.
By:_______________________________
Its:
DATA STREAM SYSTEMS, INC.
By:_______________________________
Its:
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SCHEDULE 1
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List of Investors at First Additional Closing
Number Total
Name of Investor of Shares Purchase Price
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Xxxxxxxx Associates Fund V, L.P............... 37,079 $ 99,000.93
Xxxxxxxx X, L.P............................... 1,075,281 2,871,000.27
Xxxxxxxx Principals Fund, L.L.C............... 123,596 330,001.32
SOFTBANK Capital Partners LP.................. 3,691,761 9,857,001.87
SOFTBANK Capital Advisors Fund LP............. 53,558 142,999.86
TPG Partners III, L.P......................... 1,967,026 5,251,959.42
TPG Parallel III, L.P......................... 378,214 1,009,831.38
TPG Dutch Parallel, C.V....................... 54,277 144,919.59
TPG Investor III, L.P......................... 125,146 334,139.82
T/3/Partners, L.P............................. 962,195 2,569,060.65
T/3/Parallel, L.P............................. 72,682 194,060.94
T/3/Dutch Parallel, C.V....................... 55,910 149,279.70
T/3/Investors, L.P............................ 53,880 143,859.60
FOF Partners III, L.P......................... 3,273 8,738.91
FOF Partners III-B, L.P....................... 72,715 194,149.05
T.H. eVenture Pte Ltd......................... 175,056 467,399.52
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Total......................... 8,901,649 $23,767,402.83
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