EXHIBIT 10.18
XXXXXXX.XXX, INC.
AMENDMENT TO SERIES D PREFERRED STOCK PURCHASE AGREEMENT
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This Amendment to Series D Preferred Stock Purchase Agreement (the
"Amendment") is made as of January 21, 2000 by and between Xxxxxxx.xxx, Inc., a
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Delaware corporation (the "Company"), a majority of the Purchasers listed on
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Exhibit A to the Series D Preferred Stock Purchase Agreement dated as of
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November 29, 1999 (the "Purchase Agreement") and the purchasers listed on
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Exhibit A attached hereto (the "Additional Purchasers").
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WHEREAS, the Company and the "Purchasers" (as defined in the Purchase
Agreement) are parties to the Purchase Agreement pursuant to which each
Purchaser purchased shares of Series D Preferred Stock from the Company on the
terms and conditions set forth therein;
WHEREAS, the Company and a majority of the Purchasers wish to amend the
Purchase Agreement in accordance with Section 7.10 of the Purchase Agreement
(terms defined in the Purchase Agreement are used herein as therein defined);
WHEREAS, the Additional Purchasers desire to purchase and the Company
desires to sell up to 3,567,542 shares of the Company's Series D Preferred Stock
at the Subsequent Closing (as defined below);
NOW, THEREFORE, in consideration of the foregoing recitals (which are
hereby incorporated into and shall be deemed part of this Amendment) and of the
covenants and mutual agreements contained in this Amendment, each of the
Company, a majority of the Purchasers and the Additional Purchasers agrees as
follows:
Section 1. Amendments. The Company and a majority of the Purchasers
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hereby agree that the Purchase Agreement shall be amended as follows:
(A) Section 1.1(a) of the Purchase Agreement shall be amended by (i)
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replacing "Closing" with "First Closing", (ii) adding "Fourth" before "Restated
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Certificate", and (iii) adding the following at the end of the subsection:
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"The Company shall also adopt and file with the Secretary of
State of the State of Delaware on or before the Subsequent Closing (as
defined below) the Fifth Amended and Restated Certificate of
Incorporation in the form attached hereto as Exhibit B-1 (the "Fifth
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Restated Certificate" and together with the Fourth Restated
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Certificate, the "Restated Certificate")."
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(B) Section 1.1(b) of the Purchase Agreement shall be deleted in its
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entirety and substituting the following therefor:
"(b) Subject to the terms and conditions of this Agreement, the
Purchasers agree to purchase and the Company agrees to sell and issue
to each Purchaser at the First and Subsequent Closings that number of
shares of Series D Preferred Stock set forth opposite each such
Purchaser's name on Exhibit A
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attached hereto at a purchase price of $5.6061 per share (the
"Purchase Price"), provided that the purchase price shall be payable
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by National Broadcasting Company, Inc. ("NBC") in consideration of the
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execution and delivery by NBC of the Letter Agreement dated as of the
date hereof regarding the granting by NBC of advertising credits to
the Company (the "Letter Agreement"). The shares of Series D Preferred
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Stock issued to the Purchasers pursuant to this Agreement shall be
hereinafter referred to as the "Stock.""
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(C) Section 1.2 of the Purchase Agreement shall be deleted in its
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entirety and substituting the following therefor:
"1.2 Closing; Delivery
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(a) The purchase and sale of the Stock shall take place at the
offices of Xxxxxxx Coie LLP, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxx, Xxxxxxxxxx, at 10:00 a.m., on November 29, 1999, or at such
other time and place as the Company and the Purchasers of not less
than 6,243,200 shares of the Stock mutually agree upon, orally or in
writing (which time and place are designated as the "First Closing").
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The closings of the purchase and sale of up to 9,837,804 shares of
Stock in the aggregate (not including shares of Stock sold in the
First Closing, the "Additional Shares") hereunder (the "Subsequent
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Closings" and together with the First Closing, the "Closing") shall be
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held at the offices of Xxxxxxx Coie LLP on the date hereof. Any
Additional Shares may be sold only to the investors listed on Exhibit
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A-1.
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(b) Subject to the terms of this Agreement, at the Closing, the
Company shall deliver to each Purchaser a certificate representing the
Stock being purchased by such Purchaser against payment of the
purchase price therefor by check payable to the Company, by wire
transfer to the Company's bank account, by cancellation of
indebtedness, or by any combination thereof. At the Subsequent
Closings, if any, a Supplemental Schedule of Purchasers shall be added
to this Agreement as Exhibit A-2 and the Company will deliver to each
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additional Purchaser who shall have executed this Agreement (each an
"Additional Purchaser") a certificate or certificates representing the
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number of Additional Shares being purchased hereby against (i) payment
of the purchase price therefor by check payable to the Company, by
wire transfer to the Company's bank account, by cancellation of
indebtedness, or by any combination thereof, (ii) in the case of NBC,
by the execution and delivery of the Letter Agreement and (iii)
delivery of signature pages to this Agreement and each of the Related
Agreements (as defined below). In addition, at any Subsequent Closing
pursuant to which the Company shall have sold more than 8,918,856
shares of Stock, the Company shall issue and grant to each Purchaser
and Additional Purchaser a Series D Warrant, in accordance with the
terms and conditions of Section 6.3 hereof."
(D) The following shall be added to the Purchase Agreement as Section
2.2.5:
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"2.2.5 Capitalization. Immediately prior to the Subsequent Closing,
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the authorized capital of the Company consists of:
(a) 49,180,000 shares of Preferred Stock, (i) 11,555,000 of
which shares have been designated Series A Preferred Stock, 9,755,000
of which are issued and outstanding and 1,800,000 of which have been
reserved for issuance upon exercise of outstanding warrants to
purchase shares of Series A Preferred Stock (the "Series A Warrants"),
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(ii) 8,000,000 of which have been designated Series B Preferred Stock,
7,736,345 of which are issued and outstanding, (iii) 12,940,620 of
which have been designated Series C Preferred Stock, 3,017,175 of
which are issued and outstanding, 4,803,458 of which have been
reserved for issuance to PETCO Animal Supplies, Inc. ("PETCO") upon
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the achievement of certain milestones (the "PETCO Shares"), and
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5,119,987 of which have been reserved for issuance upon exercise of
outstanding warrants to purchase shares of Series C Preferred Stock
(the "Series C Warrants"), (iv) 14,000,000 of which have been
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designated Series D Preferred Stock, 6,270,262 of which are issued and
outstanding and 918,948 of which have been reserved for issuance upon
exercise of warrants issued or issuable to the Purchasers pursuant to
Section 6.3 herein (the "Series D Warrants"), and (v) 2,330,000 of
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which shares have been designated Series E Preferred Stock, 2,007,637
of which are issued and outstanding, 76,617 of which have been
reserved for issuance upon exercise of warrants to purchase shares of
Series E Preferred Stock (the "ICOD Warrants"), and 180,000 of which
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have been reserved for issuance upon exercise of warrants issued or
issuable to Greyrock Capital, a division of Banc of America Commercial
Finance Corporation (the "Greyrock Warrants" and, together with the
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ICOD Warrants, the "Series E Warrants"). The rights, privileges and
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preferences of the Series A, Series B, Series C, Series D and Series E
Preferred Stock are as stated in the Restated Certificate. All
issuances of shares of Series A, Series B, Series C, Series D and
Series E Preferred Stock referenced above, other than the PETCO
Shares, have been consummated and, except as described above, the
Company will not issue additional shares of Series A, Series B, Series
C, Series D or Series E Preferred Stock. The shares of Series A,
Series B, Series C, Series D and Series E Preferred Stock issued by
the Company were duly authorized, validly issued, fully paid,
nonassessable, free and clear of any liens or encumbrances (other than
those imposed by the purchasers thereof), and based in part on the
representations made by the purchasers thereof, were exempt from
registration under Section 5 of the Securities Act of 1933, as amended
and the California Corporate Securities Law of 1968, as amended. The
rights of PETCO as set forth in Section 6.6 of the Series C Preferred
Stock Purchase Agreement dated July 12, 1999 by and between the
Company and PETCO expired prior to any exercise thereof.
(b) 71,180,000 shares of Common Stock, 9,873,718 shares of
which are issued and outstanding. All of the outstanding shares of
Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable, and were issued in compliance with all
applicable federal and state securities laws.
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(c) The Company has reserved 7,500,000 shares of Common Stock
for issuance to officers, directors, employees and consultants of the
Company pursuant to its 1999 Stock Plan duly adopted by the Board of
Directors and approved by the Company's stockholders (the "Stock
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Plan"), of which options to purchase 5,016,769 shares of Common Stock
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are currently outstanding, 2,024,157 shares of Common Stock have been
issued and 459,074 shares are available for future issuance under the
Stock Plan. The Company has reserved (i) 11,555,000 shares of Common
Stock for issuance upon conversion of the Series A Preferred Stock,
(ii) 8,000,000 shares of Common Stock for issuance upon conversion of
the Series B Preferred Stock, (iii) 12,940,620 shares of Common Stock
for issuance upon conversion of the Series C Preferred Stock, (iv)
14,000,000 shares of Common Stock for issuance upon conversion of the
Series D Preferred Stock, (v) 2,330,000 shares of Common Stock for
issuance upon conversion of the Series E Preferred Stock, (vi) 585,000
shares of Common Stock for issuance upon the exercise of outstanding
warrants to purchase Common Stock issued or issuable to the founders
of Loveland Pet Products, Inc. (the "Loveland Warrants") and (vii)
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917,749 shares of Common Stock for issuance upon the exercise of
warrants to purchase Common Stock issued or issuable to NBC (the "NBC
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Warrants").
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(d) Except for (i) the conversion privileges of the Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series A Warrants,
Loveland Warrants, the Petco Shares, the Series C Warrants, the Series
D Warrants, the Series E Warrants and the NBC Warrants, (ii) the
rights of first refusal as set forth in the Investors' Rights
Agreement and the Co-Sale Agreement (each as defined below), (iii) the
rights to participate in the initial public offering as indicated in
Section 2.6 of the Investors' Rights Agreement (as defined below) and
in the IPO Allocation Agreement dated as of May 4, 1999 between the
Company and certain purchasers of Series A Preferred Stock (the "May
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IPO Allocation Agreement"), and (iv) 7,500,000 shares of Common Stock
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reserved for issuance pursuant to the Stock Plan, there are, to our
knowledge, no options, warrants, conversion privileges or other rights
(or agreements for any such rights) outstanding to purchase or
otherwise obtain from the Company any of the Company's securities
except as set forth on the Schedule of Exceptions."
(E) Section 3.2 of the Purchase Agreement shall be amended to delete the
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last sentence thereof.
(F) Section 6.3 of the Purchase Agreement shall be deleted in its
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entirety and substituting the following therefor:
"6.3 Series D Warrants. If the Company sells more than
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8,918,856 shares of Stock (the number of any such shares, the "Excess
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Shares"), then it will issue to each Purchaser and Additional
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Purchaser warrants (the "Series D Warrants") to purchase additional
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shares of Stock, the exact aggregate number of which shall be equal to
the product of (x) a fraction, the numerator of which is the
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shares of Stock held by such Purchaser or Additional Purchaser (other
than Excess Shares) and the denominator of which is 8,918,856, and (y)
the aggregate number of Excess Shares.
The Series D Warrants, if any, shall be in the form attached
hereto as Exhibit J and shall terminate five years after the issuance
thereof, unless earlier exercised. The exercise price for the Series
D Warrants shall be equal to the Purchase Price hereunder. The
holders of the share of Stock issued pursuant to the exercise of the
Series D Warrants shall become parties to the Related Agreements upon
execution and delivery of the signature pages thereto."
(G) Section 7.15 of the Purchase Agreement shall be amended by adding the
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following at the end of such Section:
"Notwithstanding the foregoing, confidential information shall
not include any information that is: (i) in the public domain; (ii)
was already known to the receiving party or within the receiving
party's possession at the time of receipt thereof from the Company;
(iii) received by receiving party from a third party without
reasonable basis for receiving party to believe disclosure was made in
violation of a confidential agreement with the Company; (iv) approved
for disclosure by written authorization of the Company; (v)
independently developed by the receiving party, (vi) published or
otherwise made available to the public at the time of its receipt by
receiving party or subsequently became published or available to the
public other than by a breach of this Agreement; and/or (vii) required
to be disclosed by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, or
similar process."
(H) Exhibit A-1 of the Purchase Agreement shall be amended to add the
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following entity to the Schedule of Permitted Investors:
ValueVision International Inc.
Section 2. Additional Purchasers. Each of the Additional Purchasers
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listed on the attached Exhibit A shall become parties to the Purchase Agreement
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by executing this Amendment and by virtue of their inclusion on Exhibit A
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attached hereto, which Exhibit A shall be added to the Purchase Agreement as
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Exhibit A-2.
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Section 3. Fifth Restated Certificate. Exhibit B attached hereto shall be
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added to the Purchase Agreement as Exhibit B-1.
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Section 4. Series D Warrants. Exhibit C attached hereto shall be added to
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the Purchase Agreement as Exhibit J. The Series D Warrants to be issued
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pursuant to Section 6.3 of the Purchase Agreement, as amended by this Amendment,
will be issued to the Purchasers and Additional Purchasers listed on Exhibit D
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attached hereto in the amounts set for opposite their names, which Exhibit D
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shall be added to the Purchase Agreement as Exhibit K.
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Section 5. Governing Law. This Amendment and all acts and transactions
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pursuant hereto and the rights and obligations of the parties 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.
Section 6. Amendments. This Amendment may not be modified or amended
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except by written agreement signed by the Company and a majority of the holders
of the Series D Preferred Stock.
Section 7. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, a majority of the Purchasers, the Additional Purchasers
and the Company have caused this Amendment to be duly executed as of the date
first above written.
COMPANY:
XXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PURCHASERS:
TCV III (GP)
a Delaware General Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV III STRATEGIC PARTNERS, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Mailing Address:
Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
PETCO ANIMAL SUPPLIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman, President and Chief Executive
Officer
Mailing Address:
0000 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
ARKARO HOLDING, B.V.
By: /s/ Xxxxx X. van der Sluijs-Xxxxxx
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Name: Xxxxx X. van der Sluijs-Xxxxxx
Title: Managing Director
Mailing Address:
Locatellikade 1
Parnassustoren
1076 AZ Amsterdam
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxxxx X. van der Sluijs-Xxxxxx
ADDITIONAL PURCHASERS:
NATIONAL BROADCASTING COMPANY, INC.
a Delaware corporation
By: __________________________________________________
Name:
Title:
Mailing Address:
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: President, NBC Interactive Media
With a copy to: VP, Law, Corporate Transactions
VALUE VISION INTERNATIONAL INC.
a Minnesota corporation
By: ________________________________________________
Name:
Title:
Mailing Address:
0000 Xxxxx Xxx Xxxx
Xxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Faegre & Xxxxxx LLP
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
