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EXHIBIT 10.20
NETLIBRARY, INC.
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT (the "Agreement") is made and entered into as of February 18, 2000, by
and among NETLIBRARY, INC., a Delaware corporation (the "Company"), those
certain holders of the Company's Common Stock listed on Exhibit A hereto (the
"Key Stockholders") and the persons and entities listed on Exhibit B hereto, as
amended from time to time (the "Investors").
RECITALS
WHEREAS, the Key Stockholders or their transferees are the beneficial
owners of an aggregate of Two Million Eight Hundred Seventy Thousand Two Hundred
Ninety-Seven (2,870,297) shares of the Common Stock of the Company;
WHEREAS, the Company previously sold shares of its Series A Preferred
Stock (the "Series A Preferred Stock"), its Series B Preferred Stock (the
"Series B Preferred Stock") and its Series C Preferred Stock (the "Series C
Preferred Stock") to certain of the Investors;
WHEREAS, the Company, the Key Stockholders and such Investors entered
into a certain Amended and Restated Stockholders Agreement, dated as of October
8, 1999, as amended by the Amendment thereto dated January 18, 2000 (the
"Stockholders Agreement");
WHEREAS, the Company proposes to sell shares of its Series D Preferred
Stock (the "Series D Preferred Stock") to certain of the Investors pursuant to a
Series D Preferred Stock Purchase Agreement and/or the Agreement and Plan of
Merger between the Company and xxxxxxxxxxx.xxx, Inc. and certain other parties
(collectively, the "Series D Purchase Agreement") (the "Series D Financing");
and
WHEREAS, in connection with the consummation of the Series D Financing,
the Company, the Key Stockholders and the Investors desire to amend the
Stockholders Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 1(c) shall be modified in its entirety to read as
follows:
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(c) "INVESTOR SHARES" shall mean all shares of
capital stock of the Company registered in the names of the
Investors or beneficially owned by them as of the date hereof
and any and all other securities of the Company legally
acquired by the Investors after the date hereof (including but
not limited to all shares of Common Stock issued upon
conversion of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock).
2. Section 3.4(a) shall be amended by (i) deleting the word
"and" before the words "each holder of Series C Preferred Stock," and (ii) by
inserting after the words "(390,000) shares of Series C Preferred Stock" the
following: "and each holder of Series D Preferred Stock that, by itself or with
its Affiliates holds at least Two Hundred Eighty Thousand (280,000) shares of
Series D Preferred Stock."
3. Section 6.5(y) shall be amended in its entirety to read as
follows:
this Agreement may be amended in connection with the closing
of any purchase of the Company's Series C Preferred Stock or
Series D Preferred Stock so as to add any purchaser of the
Series C Preferred Stock or Series D Preferred Stock as a
party hereto, and as an Investor as defined above, by having
each such purchaser execute a counterpart copy of this
Agreement and modifying Exhibit B to include such person.
4. Except as specifically set forth above, the Stockholders
Agreement shall remain in effect, without modification.
IN WITNESS WHEREOF, the parties hereto have executed this
AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT as of the date
first above written.
COMPANY:
NETLIBRARY, INC.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: President and CEO
------------------------------
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KEY STOCKHOLDERS:
/s/ XXXXXXX X. XXXXXXX WORLD VENTURE PARTNERS, INC.
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ F. XXXXX XXXXX By: /s/ XXXX XXXXXX
---------------------------------------- ------------------------------
F. Xxxxx Xxxxx Name: Xxxx Xxxxxx
Title: Principal
/s/ XXXXX XXXXXXXX
----------------------------------------
Xxxxx Xxxxxxxx
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INVESTORS:
/s/ R. XXXXXXX XXXXXXXX
-----------------------------------
R. Xxxxxxx Xxxxxxxx
/s/ XXXXXX X. Xxxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxxx, Xx.
GRAND CENTRAL HOLDINGS, LLC
By: /s/ XXXXXX X. XXXXX, XX.
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Member
GCH PEANUTPRESS, LLC
By: Grand Central Holdings, LLC,
its Managing Member
By: /s/ XXXXXX X. XXXXX, XX.
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Member
XXXXXX VENTURE PARTNERS, L.P.
By: Grand Central Holdings, LLC,
holder of an irrevocable proxy
By: /s/ XXXXXX X. XXXXX, XX.
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Member
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ABC-CLIO ANSCHUTZ FAMILY
INVESTMENT COMPANY LLC
By: Anschutz Company, its Manager
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXX XXXXXXXXX
------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx Xxxxxxxxx
Title: CEO Title: Vice President
Date: February 17, 2000 Date: February __, 2000
BOWANA FOUNDATION BCI INVESTMENTS II, LLC
By: /s/ XXXX XXXXXXX By: /s/ XXXXXXX X. XXXXXX
------------------------------- --------------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President Title: Member
Date: February 17, 2000 Date: February 7, 2000
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XXXX CAPITAL FUND VI, L.P. PEP INVESTMENTS PTY LTD
BY: Xxxx Capital Partners VI, L.P., By: Xxxx Capital, Inc.,
its General Partner its attorney-in-fact
By: Xxxx Capital Investors VI, Inc., By: /s/ XXXX XXXXXXX
its General Partner -------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
By: /s/ XXXX XXXXXXX Date: February__, 2000
--------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Date: February __, 2000
BROOKSIDE CAPITAL PARTNERS SANKATY HIGH YIELD ASSET
FUND, L.P. PARTNERS, L.P.
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXXXXX XXXXXX
------------------------- -------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxxx Xxxxxx
Title: Managing Director Title: Managing Director
Date: February 12, 2000 Date: February __, 2000
BCIP ASSOCIATES II BCIP ASSOCIATES II-B
By: Xxxx Capital, Inc., By: Xxxx Capital, Inc.,
its Managing Partner its Managing Partner
By: /s/ XXXX XXXXXXX By: /s/ XXXX XXXXXXX
--------------------- ---------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
Title: Managing Director Title: Managing Director
Date: February __, 2000 Date: February __, 2000
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XXXXXX NEW GENERATION FUND
A SERIES OF THE XXXXXX INVESTMENT
PORTFOLIO OF TRUSTS
By: /s/ XXXX X. XXXXXXXXXX
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Date: February 18, 2000
COMCAST INTERACTIVE CAPITAL, L.P.
By: CIC Partners, LP, its general partner
By: CIC Venture Management, LLC, general partner
By: /s/ XXXXX X. XXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Date: February __, 2000
COVESTCO-MEDEURA, LLC UNIVERSITY OF COLORADO
FOUNDATION, INC.
By: Medeura, LLC, its Manager
By: Medeura Limited, its Managing Member
By: /s/ XXXXX X. XXXXXX By: /s/ XXX XXXXXX
------------------------------- -----------------------
Name: Xxxxx X. Xxxxxx Name: Xxx Xxxxxx
Title: Director Title: Treasurer
Date: February 24, 2000 Date: February 17, 2000
DLJ CAPITAL CORP. DLJ ESC II, L.P.
By: DLJ LBO Plans Management
Corporation
Its: Manager
By: /s/ XXXXXX XXXXX
------------------------------- By: /s/ XXXXXX XXXXX
Name: Xxxxxx Xxxxx -------------------------
Its: Attorney in Fact Name: Xxxxxx Xxxxx
Date: February __, 2000 Date: February __, 2000
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EBSCO INDUSTRIES, INC. EPIXTECH, INC. (FORMERLY KNOWN
AS AMERITECH LIBRARY SERVICES)
By: /s/ XXXXXXX X. XXXXXXXX By: /s/ XXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxxx
Title: Vice President & CFO Title: President / CEO
Date: February 18, 2000 Date: February __, 2000
XXXXXXX CORPORATION HOUGHTON MIFFLIN
By: /s/ XXXXXXX X. XXXX By: /s/ XXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxx Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman / CEO Title: Chairman, President and CEO
Date: March 8, 2000 Date: February 18, 2000
LDIG NL, INC. XXXXXX XXXXXX, INC.
By: /s/ XXXXX XXXXXXXXX By:
--------------------------- ----------------------------
Name: Xxxxx Xxxxxxxxx Name:
Title: VP Business Development --------------------------
& Strategy Title:
Date: March 14, 2000 -------------------------
Date: February __, 0000
XXXXXX XXXXXX XXXXXXXX XX XXXXXXXXX VENTURE PARTNERS III, L.P.
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXXX XXXX
--------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx Xxxx
Title: Managing General Partner Title: Authorized Signatory
Date: February 20, 2000 Date: February __, 2000
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THE XXXXXX-XXXX
COMPANIES, INC. XXXXXX & SON LIMITED
By: /s/ XXXXXX X. XXXXXX By: /s/ XXX XXXXXXX
------------------------------- -----------------------
Name: Xxxxxx X. Xxxxxx Name: Xxx Xxxxxxx
Title: EVP CFO Title: Director / Secretary
Date: February 18, 2000 Date: February 18th, 2000
PARTHENON INVESTORS, L.P. PCIP INVESTORS
By: Parthenon Investment Advisors, L.L.C.
its general partner
By: /s/ XXXX XXXXXXXXXX By: /s/ XXXX XXXXXXXXXX
------------------------------- -----------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxx Xxxxxxxxxx
Title: Managing Member Title: General Partner
Date: February __, 2000 Date: February __, 0000
XXXXX XXXXXX TRUST REPERTOIRE CAPITAL
VENTURES RLLLP
By: /s/ XXXXX X. XXXX By: /s/ XXXX XXXXXXXX
------------------------------- -----------------------
Name: Xxxxx X. Xxxx Name: Xxxx Xxxxxxxx
Title: Trustee Title: General Partner
Date: February 17, 2000 Date: February 11, 2000
SEQUEL LIMITED PARTNERSHIP SEQUEL EURO LIMITED
PARTNERSHIP
By: Sequel Venture Partners, L.L.C., By: Sequel Venture Partners, L.L.C.
General Partner General Partner
By: /s/ XXXXXX X. WASHING By: /s/ XXXXXX X. WASHING
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Name: Xxxxxx X. Washing Name: Xxxxxx X. Washing
Title: General Partner Title: General Partner
Date: February __, 2000 Date: February __, 2000
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XXXXXXXX FAMILY LIMITED XXXXXXXX LIMITED PARTNERSHIP,
PARTNERSHIP FLLLP
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXXXX
------------------------- -------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: General Partner Title: General Partner
Date: February 17, 2000 Date: February 17, 2000
SPROUT CAPITAL VIII, L.P. SPROUT VENTURE CAPITAL, L.P.
By: DLJ Capital Corp. By: DLJ Capital Corp.
Its: Managing General Partner Its: Managing General Partner
By: /s/ XXXXXX XXXXX By: /s/ XXXXXX XXXXX
------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx
Its: Attorney in Fact Its: Attorney in Fact
THE TELL ERTL FAMILY WORLD VENTURE PARTNERS, INC.
By: /s/ XXXXXX X. XXX By: /s/ XXXX XXXXXX
------------------------- -------------------------
Name: Xxxxxx X. Xxx Name: Xxxx Xxxxxx
Title: Co-Trustee Title: President
Date: February 17, 2000 Date: February __, 2000
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WPG NETWORKING FUND, LP WPG SOFTWARE FUND, LP
By: Xxxxx, Xxxx & Xxxxx, LLC, By: Xxxxx, Xxxx & Xxxxx, LLC,
its General Partner its General Partner
By: /s/ XXX XXXXX By: /s/ XXXXXXXX XXXXX XXXXXX
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Member Member
Name: Xxx Xxxxx Name: Xxxxxxxx Xxxxx Xxxxxx
Title: Managing Director Title: Managing Director
Date: February __, 2000 Date: February __, 2000
WPG INSTITUTIONAL WPG INSTITUTIONAL
NETWORKING FUND, LP SOFTWARE FUND, LP
By: Xxxxx, Xxxx & Xxxxx, LLC, By: Xxxxx, Xxxx & Xxxxx, LLC,
its General Partner its General Partner
By: /s/ XXX XXXXX By: /s/ XXXXXXXX XXXXX XXXXXX
------------------------- ----------------------------
Member Member
Name: Xxx Xxxxx Name: Xxxxxxxx Xxxxx Xxxxxx
Title: Managing Director Title: Managing Director
Date: February __, 2000 Date: February __, 2000
WPG RAYTHEON WPG RAYTHEON
NETWORKING FUND, LP SOFTWARE FUND, LP
By: Xxxxx, Xxxx & Xxxxx, LLC, By: Xxxxx, Xxxx & Xxxxx, LLC,
its attorney-in-fact its attorney-in-fact
By: /s/ XXX XXXXX By: /s/ XXXXXXXX XXXXX XXXXXX
------------------------- ----------------------------
Member Member
Name: Xxx Xxxxx Name: Xxxxxxxx Xxxxx Xxxxxx
Title: Managing Director Title: Managing Director
Date: February __, 2000 Date: February __, 2000
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/s/ XXX XXXXX /s/ XXXXX XXXX
--------------------------- ------------------------------
XXX XXXXX XXXXX XXXX
/s/ XXX XXXXXXX /s/ XXXXXX XXXXXXX
--------------------------- ------------------------------
XXX XXXXXXX XXXXXX XXXXXXX
/s/ XXXXX XXXXXXXX
--------------------------- ------------------------------
XXXXXX XXXX XXXXX XXXXXXXX
---------------------------
XXX XXXX
/s/ XXXXX X. XXXXXXXX /s/ XXXXX XXXXXXX
--------------------------- ------------------------------
XXXXX X. XXXXXXXX XXXXX XXXXXXX
/s/ XXXX XXXXXXX
--------------------------- ------------------------------
XXXX XXXXXXX XXXXXXX XXXXXX
/s/ XXX X. XXXXXXXXX
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XXX X. XXXXXXXXX
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