EXHIBIT 10.29
AVANTGO, INC.
ADDENDUM TO SERIES D PREFERRED STOCK
PURCHASE AGREEMENT
------------------
This Addendum to Series D Preferred Stock Purchase Agreement (the
"Addendum") is made as of the 7th day of April, 2000 by and among AvantGo, Inc.,
--------
a Delaware corporation (the "Company"), and the entities listed on Exhibit A
-------
attached hereto (the "Additional Purchasers").
---------------------
RECITALS
On March 8, 2000, the Company entered into a Series D Preferred Stock
Purchase Agreement (the "Purchase Agreement") with certain investors set forth
------------------
on Exhibit A attached thereto, which provides that the Company may sell all of
---------
the shares of the Company's authorized but unissued Series D Preferred Stock
(the "Additional Shares") to the Additional Purchasers and that, under
-----------------
conditions set forth therein, the Additional Purchasers may become parties to
the Purchase Agreement and the Ancillary Agreements (as defined in the Purchase
Agreement). All terms not defined herein shall have the meaning ascribed
thereto in the Purchase Agreement.
AGREEMENT
In consideration of the mutual promises, covenants and conditions
hereinafter set forth, the parties hereto mutually agree as follows:
1. Sale of Preferred Stock.
Subject to the terms and conditions hereof, at the Closing (as defined in
Section 2.1 hereof) the Company will issue and sell to each Additional
Purchaser, and each Additional Purchaser severally agrees to purchase from the
Company, that number of Additional Shares specified opposite such Additional
Purchaser's name on Exhibit A hereto, at a cash purchase price of $8.36 per
---------
share. Each of the Additional Purchasers, by their signatures hereto, shall
hereby (i) become parties to the Purchase Agreement, (ii) be considered a
"Purchaser" for all purposes under the Purchase Agreement and (iii) have all the
----------
rights and obligations of a Purchaser thereunder. The Additional Shares acquired
by the Additional Purchasers hereunder shall be considered "Series D Preferred
------------------
Stock" for all purposes under the Purchase Agreement, as amended.
-----
2. Closing; Delivery.
2.1 Closing.
The closing of the purchase and sale of the Additional Shares
hereunder (the "Closing") shall be held at the offices of Xxxxxxx Coie LLP,
Menlo Park, California, at 1:00 PM., on April 7th, 2000, or at such other time
and place as the Company and the Additional Purchasers may agree.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as ****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commision.
2.2 Delivery.
At the Closing, the Company will deliver to each Additional Purchaser
a certificate representing the number of Additional Shares set forth opposite
such Additional Purchaser's name on Exhibit A, against payment of the purchase
---------
price therefor by each Additional Purchaser by check payable to the Company or
by wire transfer to the Company at its account maintained by Xxxxxxx Coie LLP,
or by any combination thereof.
3. Disclosure.
Each Additional Purchaser hereby acknowledges receipt of the Purchase
Agreement and the exhibits thereto. The Company affirms to each Additional
Purchaser that:
(i) The representations and warranties of the Company set forth in
Section 2 of the Purchase Agreement were true and accurate when made;
(ii) The representations and warranties set forth in Section 2 of the
Purchase Agreement, which are incorporated herein by reference and made a part
hereof, remain true and accurate as of the date hereof, except (A) for changes
resulting from the transactions contemplated in the Purchase Agreement and (B)
as set forth in the Schedule of Exceptions to Representations and Warranties
attached hereto as Exhibit B.
---------
(iii) The conditions to closing set forth in Section 4 of the
Purchase Agreement and in Section 5 hereof have been satisfied, provided that
the conditions set forth in Section 4.1 of the Purchase Agreement shall include
references to changes in the Company's representations and warranties and the
Company's status, respectively, as set forth herein and in the Exhibits attached
hereto, and resulting from the consummation of the transactions contemplated by
the Purchase Agreement.
4. Representations and Warranties of Additional Purchasers.
4.1 Incorporation of Representations.
Each Additional Purchaser acknowledges that such Additional Purchaser has
reviewed the representations and warranties set forth in Section 3 of the
Purchase Agreement and agrees with the Company that such representations and
warranties, which are incorporated herein by this reference and made a part
hereof, are true and correct as of the date hereof as they relate to such
Additional Purchaser's purchase of the Additional Shares hereunder.
4.2 Additional Representations by Foreign Purchasers.
If an Additional Purchaser is not a United States person, such Additional
Purchaser hereby represents that he or she has satisfied himself or herself as
to the full observance of the laws of his or her jurisdiction in connection with
any invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within his jurisdiction for the purchase of
the Securities, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be obtained,
and (iv) the income tax
-2-
and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale, or transfer of the Securities. Such Additional
Purchaser's subscription and payment for, and his or her continued beneficial
ownership of the Securities, will not violate any applicable securities or other
laws of his or her jurisdiction.
5. Conditions to Additional Purchasers' Obligations at Closing.
The obligation of each Additional Purchaser to purchase the Additional
Shares at the Closing is subject to the fulfillment to such Additional
Purchaser's satisfaction at or prior to the Closing of the following conditions:
5.1 Representations and Warranties Correct: Performance of Obligations.
The representations and warranties made by the Company in Section 3
hereof, including the representations and warranties incorporated by reference
from Section 2 of the Purchase Agreement, were true and correct in all material
respects when made, and shall be true and correct in all material respects on
and as of the date of the Closing with the same force and effect as if they had
been made on and as of said date; and the Company shall have performed all
obligations and conditions herein required to be performed or observed by it at
or prior to the Closing.
5.2 Legal Opinion.
Each of the Additional Purchasers shall have received from Xxxxxxx
Coie LLP, legal counsel for the Company, an opinion, dated as of the Closing, in
substantially the form of Exhibit C.
5.3 Compliance Certificate.
The President of the Company shall deliver to the Purchasers at the
Closing a certificate certifying that the conditions specified in Section 5.1
have been fulfilled.
6. Conditions to Company's Obligations at Closing.
The obligations of the Company under Section 1 of this Addendum are
subject to the fulfillment at or before the Closing of each of the following
conditions:
6.1 Representations and Warranties.
The representations and warranties of each Additional Purchaser
contained in Section 4 hereof shall be true at the Closing.
7. Miscellaneous.
7.1 Survival of Warranties.
-3-
Unless otherwise set forth in this Addendum the warranties,
representations and covenants of the Company and the Purchasers contained in or
made pursuant to this Addendum shall survive the execution and delivery of this
Addendum and the Closing.
7.2 Incorporation by Reference.
The provisions set forth in Section 6 of the Purchase Agreement (other
than Sections 6.1 and 6.6) are incorporated herein by this reference and made a
part hereof.
7.3 Notices.
Any notice required or permitted by this Addendum shall be in writing
and shall be deemed sufficient upon delivery, when delivered personally or by
overnight courier or sent by telegram or fax, or forty-eight (48) hours after
being deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, addressed to the party to be notified at such party's address as set
forth below or on Exhibit A hereto, or as subsequently modified by written
---------
notice, and if to the Company, with a copy to Xxxxxxx Coie LLP, 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000 fax [******], Attn: Xxxxx
X. Xxxxxxx III.
7.4 Counterparts.
This Addendum may be executed in any number of counterparts, each of
which may be executed by less than all of the Additional Purchasers, each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
[Signature Page Follows]
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-4-
The parties hereto have executed this Addendum as of the date first set
forth above.
AVANTGO, INC.
By: /s/ Xxxxx Xxx
-------------------------------------------
Xxxxx Xxx, Chairman of the Board
PURCHASER:
RESEARCH IN MOTION USA CORPORATION
25227 Xxxxxx'x Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX
00000-0000
By: /s/ Illegible for
--------------------------------------
Printed Name: Xxxxxxx X. Xxxxx
Title: Director
ADDITIONAL PURCHASER:
Xxxxxx X. Xxxxxxxx & Xxxx X. Xxxxxxxx,
Trustees
Xxxxxxxx Family Revocable Trust
-------------------------------------------------
(Purchaser Name) u/a/d 12-16-94 amended 9-30-99
By: /s/ Xxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Trustee
-------------------------------------------
Address: 00 Xxxxxx Xxxx
-----------------------------------------
Xxxxxx, XX 00000
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
/s/ X. Xxxxxxxxxx
-------------------------------------------------
(Purchaser Name)
By: Xxxxx Xxxxxxxxxx
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Address: [******]
-----------------------------------------
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
Xxxxxx X. Xxxxx
-------------------------------------------------
(Purchaser Name)
By:/s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------------
Title:
-------------------------------------------
Address: [******]
-----------------------------------------
[******]
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
TWB Investment Partnership L.P.
-------------------------------------------------
(Purchaser Name)
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------------
Title: Managing Director
-------------------------------------------
Address: 0000 Xxxxx Xxxxxx 40th Floor
-----------------------------------------
Xxxxxxx, XX 00000
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
Broadway SLP
-------------------------------------------------
(Purchaser Name)
By: /s/ Xxxxx Xxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------------
Title: CFO of its GP Broadway Scottish LLC
-------------------------------------------
Address:
-----------------------------------------
-------------------------------------------------
Fax:
---------------------------------------------
ADDITIONAL PURCHASER:
SKGF Investments-2000-1, L.L.C.
-------------------------------------------------
(Purchaser Name)
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------------------------
Title: Manager
-------------------------------------------
Address: 0000 Xxx Xxxx Xxxxxx, Xxxxx 000 XX
-----------------------------------------
Xxxxxxxxxx, X.X. 00000
-------------------------------------------------
Fax: [******]
---------------------------------------------
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-5-
ADDITIONAL PURCHASER:
Xxxxx & Company Incorporated
-------------------------------------------------
(Purchaser Name)
By: /s/ Xxx Xxxxxxx
----------------------------------------------
Name: Xxx X. Xxxxxxx
--------------------------------------------
Title: CFO & Managing Director
-------------------------------------------
Address: 00 Xxxxx Xxx
-----------------------------------------
XX, XX 00000
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
Write Image Limited
-------------------------------------------------
(Purchaser Name)
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------------------
Title: Director
-------------------------------------------
Address: 000 Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx, XXX 0XX XX
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
ANGEL (0) INVESTORS II, L.P.
-------------------------------------------------
(Purchaser Name)
By: ArchAngel II, LLC its general partner
----------------------------------------------
Name: /s/ J. Xxxxx XxXxxxx
--------------------------------------------
J. Xxxxx XxXxxxx
Title: Member
-------------------------------------------
Address: c/o Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
-----------------------------------------
000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
XXXXX XXXXXX
-------------------------------------------------
(Purchaser Name)
By: /s/ S Bonham
----------------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------------
Title: Vice President, Capital Group
-------------------------------------------
Address: 000 00xx Xxxxxx
-----------------------------------------
Xxx Xxxxxxxxx, XX 00000
-------------------------------------------------
Fax:
---------------------------------------------
ADDITIONAL PURCHASER:
DRW VENTURE PARTNERS LP
-------------------------------------------------
(Purchaser Name)
By: /s/ Xxxx Xxxxxx
----------------------------------------------
Name: Xxxx Xxxxxx
--------------------------------------------
Title: Director Finance & Administration
-------------------------------------------
Address: 00 Xxxxx 0xx Xxxxxx
-----------------------------------------
Xxxxxxxxxxx, XX 00000
-------------------------------------------------
Fax: [******]
---------------------------------------------
ADDITIONAL PURCHASER:
THE LEASING GROUP PLC
-------------------------------------------------
(Purchaser Name)
By: /s/ Xxx Xxxxxx
----------------------------------------------
Name: Xxx Xxxxxx
--------------------------------------------
Title: Group Director
-------------------------------------------
Address: 00 Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx, Xxxxxxxxx XXX 0XX
-------------------------------------------------
Fax: [******]
---------------------------------------------
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
-6-
