IRONPLANET.COM, INC. AMENDMENT TO THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 4.3
XXXXXXXXXX.XXX, INC.
AMENDMENT TO THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
This Amendment (the “Amendment”) to the Third Amended and Restated Investors’ Rights
Agreement dated August 28, 2008 (the “Rights Agreement”) is made and entered into as of
August 29, 2008 by and among XxxxXxxxxx.xxx, Inc., a Delaware corporation (the “Company”)
and Australian Capital Equity (USA), Inc. (“ACE USA”). All terms not defined herein shall
have the meaning given to them in the Rights Agreement.
RECITALS
A. The Company, the Founder, and certain holders of the Company’s Preferred Stock (the
“Existing Preferred Holders”) have previously entered into the Rights Agreement, pursuant
to which the Company granted the Founder and the Existing Preferred Holders certain rights.
B. The Company and ACE USA are parties to that certain Series C Preferred Stock Purchase
Agreement (“Purchase Agreement”) dated as of an even date herewith, whereby the Company
wishes to sell, and ACE USA wishes to purchase shares of the Company’s Series C Preferred Stock.
C. A condition to ACE USA’s obligations under the Purchase Agreement is that the Company amend
the Rights Agreement in order to provide ACE USA with (i) certain rights to register shares of the
Company’s Common Stock issuable upon conversion of the Series C Preferred Stock held by ACE USA,
(ii) certain rights to receive or inspect information pertaining to the Company, and (iii) a right
of first offer with respect to certain issuances by the Company of its securities.
D. The Company desires to amend the Rights Agreement to add ACE USA as a party thereto.
F. Pursuant to Section 3.3 of the Rights Agreement, the Rights Agreement may be amended with
only the written consent of the Company for the sole purpose of including additional purchasers of
Series C Preferred Stock as “Investors” and “Holders.”
AGREEMENT
The parties hereby agree as follows:
1. Execution of Rights Agreement. The Company acknowledges and agrees that upon
execution of this Amendment, ACE USA shall become a party to the Rights Agreement and an “Investor”
and “Holder” as defined therein and shall be entitled to all rights and subject to all obligations
as a party thereto.
2. Force and Effect. Except as amended and set forth above, the Rights Agreement
shall remain in full force and effect.
3. Miscellaneous.
3.1 Governing Law. This Amendment and all acts and transactions pursuant hereto shall
be governed, construed and interpreted in accordance with the laws of the State of California,
without giving effect to principles of conflicts of laws.
3.2 Counterparts. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature Pages Follow]
The parties have executed this Amendment as of the date first written above.
| COMPANY: | ||||||
| XXXXXXXXXX.XXX, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: | President and Chief Executive Officer | |||||
| Address: | ||||||
| 0000 Xxxxxx Xxxxx, #000 | ||||||
| Xxxxxxxxxx XX 00000 | ||||||
| Fax: (000) 000-0000 | ||||||
| AUSTRALIAN CAPITAL EQUITY (USA), INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | President | |||||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED INVESTORS’
RIGHTS AGREEMENT OF XXXXXXXXXX.XXX, INC.
RIGHTS AGREEMENT OF XXXXXXXXXX.XXX, INC.
