EXHIBIT 10.33
DOVEBID, INC.
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AMENDMENT TO CONVERTIBLE
SUBORDINATED PROMISSORY NOTE
This Amendment is entered into as of April 25, 2001, by and between
Xxxxxx Xxxx ("Payee") and DoveBid, Inc., a Delaware corporation (the "Company").
This Amendment amends the terms and conditions of that certain Convertible
Subordinated Promissory Note issued by the Company to Payee on March 24, 2000 in
the principal amount of $4,329,800.81 (the "Note").
Whereas, Payee and the Company desire to amend the Note on the terms
and conditions set forth below;
Now, therefore, in consideration of the foregoing and for other good
and valuable consideration (receipt and sufficiency of which is mutually
acknowledged), the parties agree as follows:
1. Extension of Term. The first two sentences of the Note are hereby
amended to read as follows:
"DoveBid, Inc., a Delaware corporation (the "Company"), with offices at
0000 Xxxx Xxxxxxxxx Xxxx., Xxxxxx Xxxx, XX 00000, for value received,
promises to pay to the order of Xxxxxx Xxxx ("Payee") at such address
as Payee may designate, Four Million Three Hundred Twenty-Nine Thousand
Eight Hundred Dollars and Eighty-One Cents ($4,329,800.81) plus simple
interest thereon calculated from the date hereof until paid at an
annual rate equal to the minimum rate established pursuant to Section
1274(d) of the Internal Revenue Code of 1986, as amended, as of the
date hereof, compounded annually; provided that if this Note shall not
have converted into Conversion Stock (as defined below) by July 1,
2000, then on and after such date the interest payable per annum with
respect to principal outstanding under this Note shall be equal to the
prime lending rate (the "Prime Rate") in effect on July 2, 2000 as
announced by Chase Manhattan Bank (provided, however, that the interest
payable per annum with respect to principal outstanding under this Note
shall be 6.00% during any period in which the Prime Rate is less than
6.00%), and thereafter accrued interest shall be payable at the end of
each three month period thereafter. Except as otherwise provided in the
preceding sentence, principal and accrued interest will be due and
payable in lawful money of the United States in full on the earlier of
(i) the five year anniversary of the date of this Note, or (ii) upon an
Event of Default (the "Maturity Date"), unless this Note shall have
been previously paid by the Company or converted pursuant to Section 2
below, in which case the portion of the outstanding principal under
this Note that was converted and all accrued but unpaid interest
thereon shall be satisfied in full by virtue of conversion as set forth
in Section 2 below."
2. Definitions.
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2.1 Definition of Optional Convertible Debt. A new definition
is hereby added to the Note as Section 1.7 to read as follows: " `Optional
Convertible Debt' shall mean $2,164,900.41 of the principal amount of this Note
(as reduced by any prepayments made by the Company as permitted in Section 5
hereof), and all of the accrued but unpaid interest on such portion of this
Note."
2.2 Definition of Mandatory Convertible Debt. A new definition
is hereby added to the Note as Section 1.8 to read as follows: " `Mandatory
Convertible Debt" shall mean all of the principal amount of this Note and all of
the accrued but unpaid interest on this Note, as reduced by (i) any prepayments
made by the Company as permitted in Section 5 hereof and (ii) any conversion
pursuant to Section 2.2 of this Note."
2.3 Definition of Conversion Stock. Section 1.2 of the Note is
hereby amended to read as follows: " `Conversion Stock' shall mean shares of
Common Stock of the Company, with respect to conversion of the Optional
Convertible Debt, and shall mean Common Stock of the Company of the same class
of common stock that is registered by the Company pursuant to an Initial Public
Offering, with respect to conversion of the Mandatory Convertible Debt. If the
outstanding Common Stock of the Company shall hereafter be changed through a
reorganization or recapitalization into shares of a different series or class of
the Company's capital stock, the Conversion Stock shall thereafter mean the
shares into which the Common Stock was changed."
3. Conversion. Section 2 of the Note is hereby amended to read as
follows:
"2.1 Mandatory Conversion. Subject to Section 2.7 hereof, this
Note and all of the outstanding Mandatory Convertible Debt shall be
converted into Conversion Stock at a price of $8.01 per share of
Conversion Stock, as appropriately adjusted to reflect the effect of
stock splits and combinations, stock dividends, recapitalizations and
reorganizations of or on the Conversion Stock after April 24, 2001 (the
"Conversion Price") on the first day following the end of the calendar
month in which the Company has conducted its Initial Public Offering;
provided that in connection with such conversion the Company shall also
pay the Noteholder all accrued but unpaid interest under the Note
through the date of such conversion. In the event that this Note
converts and interest is paid pursuant to this Section 2.1, then all
outstanding principal under this Note and all accrued interest thereon
shall be satisfied in full by virtue of such conversion and payment and
the issuance and delivery of the shares of Conversion Stock to the
holder.
For informational purposes, the Company shall provide the
Noteholder with written notice (at the most recent address for the
Noteholder provided to the Company by the Noteholder in writing)
reasonably promptly following the closing of an Initial Public
Offering. Conversion as described in this Section 2.1 shall occur only
if the Company shall have conducted its Initial Public Offering,
provided that as a condition precedent or condition subsequent to
conversion (the
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election between which type of condition shall be the Company's sole
election in the Company's sole discretion), the Noteholder must
surrender this Note for conversion at the principal office of the
Company. Incident to any conversion, the Conversion Stock will have
those rights and privileges, and be subject to those restrictions, of
the shares of Common Stock as set forth in the Company's Certificate of
Incorporation and Bylaws and this Note (including the restrictions on
transfer of Conversion Stock set forth in this Note), and the
Noteholder will receive the rights and be subject to the obligations
applicable to the purchasers of Common Stock. This Note shall not be
convertible pursuant to this Section 2.1 and shall not be converted
into Conversion Stock under this Section 2.1 if there is not an Initial
Public Offering on or before the Maturity Date.
2.2 Optional Conversion. All of the outstanding Optional
Convertible Debt may be converted, at any time prior to the Maturity
Date, into Conversion Stock at the Conversion Price in the sole
discretion of the Company. To elect to convert the Optional Convertible
Debt, the Company shall send written notice of its election to the
Noteholder prior to the Maturity Date. Noteholder will thereafter
deliver the original Note to the Company at the Company's principal
office for reissunce to reflect the conversion of the Optional
Convertible Debt. Incident to any conversion, the Conversion Stock will
have those rights and privileges, and be subject to those restrictions,
of the shares of Conversion Stock as set forth in the Company's
Certificate of Incorporation and Bylaws and this Note (including the
restrictions on transfer of Conversion Stock set forth in this Note),
and the Noteholder will receive the rights and be subject to the
obligations applicable to the purchasers of Conversion Stock. If the
Company fails to deliver the written notice provided for in this
Section 2.2 prior to the Maturity Date, the conversion right of the
Company that is set forth in this Section 2.2 shall terminate on the
Maturity Date. In connection with any conversion effected pursuant to
this Section 2.2 prior to March 24, 2005, as a result of which
conversion the Noteholder incurs an income-tax liability (a "Tax
Liability"), the Company shall pay an amount of cash (a "Conversion
Fee") to the Noteholder equal to the simple interest that would accrue
on the amount of the Tax Liability if compounded annually at the
Company's cost of capital from the date that the Tax Liability is due
and payable to the relevant governmental authority (the "Taxing Date")
until March 24, 2005; provided that (i) within ten days after the
Taxing Date, the Noteholder must advise the Company of the amount of
the Tax Liability, and (ii) the Company must be afforded a reasonable
opportunity to inspect those of the Noteholder's records relevant to
the determination of the Tax Liability. If the foregoing conditions are
satisfied, and the Company raises no objection to the Noteholder's
determination of the Tax Liability, then the Conversion Fee shall be
due and payable to the Noteholder 30 days after the Taxing Date.
2.3 No Fractional Shares. No fractional shares will be issued
on conversion of this Note. If on any conversion of this Note a
fraction of a share results, the Company will pay the cash value of
that fractional share, calculated on the basis of the Conversion Price.
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2.4 Reservation of Stock. Prior to any conversion of this Note
pursuant to this Section 2, the Company will take such corporate action
and obtain such government consents and approvals as may, in the
reasonable opinion of its counsel, be necessary to authorize the
issuance of a sufficient number of shares of Conversion Stock into
which this Note is to convert.
2.5 Fully Paid Shares; Certificates. All shares of Conversion
Stock issued upon the conversion of this Note shall be validly issued,
fully paid and non-assessable. The certificates representing the shares
of Conversion Stock issued upon conversion hereof shall be delivered to
the holder against surrender of this Note. The holder, by accepting
this Note, undertakes and agrees to accept such shares of Conversion
Stock in full satisfaction of the Optional Convertible Debt or of the
Mandatory Convertible Debt, as the case may be, that is outstanding as
of the effective date of conversion in accordance with the terms of
this Note. Anything to the contrary in this Note notwithstanding, the
Company's obligation to issue shares of Conversion Stock to any holder
of this Note is expressly conditioned upon compliance of such issuance
with applicable federal and state securities laws without registration
or other qualification thereunder.
2.6 No Other Conversion. The conversion provisions set forth in
this Section 2 constitute the sole methods by which this Note will
convert.
2.7. Subordination. This Note and the indebtedness evidence by
this Note are subordinated to the prior payment in full of all or
substantially all other indebtedness of the Company pursuant to the
terms of a Subordination Agreement in the form attached hereto as Annex
A and incorporated herein by reference.
2.8 Adjustment for Consolidation, Merger. In the event of any
consolidation for merger of the Company with or into another
corporation, in which the holders of Common Stock of the Company
receive stock, securities or other property of: (i) another corporation
or company whose common stock is then publicly traded, then upon the
consummation of such transaction this Note will automatically convert
into the number and type of stock, securities or other property to
which Noteholder would have been entitled upon consummation of such
transaction if this Note had converted into Conversion Stock pursuant
to Section 2.1 hereto immediately prior thereto, all subject to
additional adjustment as provided in this Note; or (ii) another
corporation or company whose common stock is not publicly traded, then
the acquiring corporation or company whose shall assume all of the
Company's rights and obligations under this Note, and this Note will be
convertible (as provided in Section 2.1) into, and the Noteholder will
be entitled to receive upon such conversion of this Note, at anytime
after the consummation of such transaction, in lieu of the number of
shares and type of Conversion Stock receivable upon the conversion of
this Note prior to the consummation of such transaction, the stock,
securities or other property to which such Noteholder would have been
entitled upon consummation of such transaction, if this Note had
converted into Conversion Stock pursuant to Section 2.1 hereto
immediately prior thereto, all subject to additional adjustment as
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provided in this Note; and in each such case, the terms of this Note
shall be applicable to the shares of stock, securities or other
property receivable upon the conversion of this Note after the
consummation of such transaction."
4. Effect of Prepayments. There is hereby added an additional
sentence at the end of Section 5 of the Note to read as follows: "In the event
of any partial prepayment of the Note prior to conversion of the entire Optional
Convertible Debt, the amount prepaid shall be credited towards the Optional
Convertible Debt and/or the Mandatory Convertible Debt that does not constitute
Optional Conversion Debt, as specified by the Company in its sole discretion,
until the Optional Convertible Debt is repaid in full."
5. Effect of Amendment. This Amendment will be effective as of the
date first set forth above, upon execution of this Amendment by the Company and
Payee. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original and all of which, taken together, will
constitute one and the same Amendment. Except as expressly provided above, the
terms and conditions of the Note remain in full force and effect, unmodified, as
of the date hereof.
In Witness Whereof, Payee and the Company have executed this Amendment
to Convertible Subordinated Promissory Note, in the case of the Company by a
person duly authorized to do so.
THE COMPANY: DOVEBID, INC. PAYEE: XXXXXX XXXX
By: /s/ Xxxxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxx
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Title: VP and General Counsel
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