WHALESHARK MEDIA, INC. AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
Exhibit 4.2.2
WHALESHARK MEDIA, INC.
AMENDMENT TO
THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL
AND CO-SALE AGREEMENT
THIS AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this “Amendment”), which amends that certain Third Amended and Restated Right of First Refusal and Co-Sale Agreement dated October 28, 2011 (the “Original Agreement”), by and among WhaleShark Media, Inc., a Delaware corporation (the “Company”), the persons and entities set forth on Exhibit A thereto (each a “Common Stockholder” and collectively, the “Common Stockholders”) and the persons and entities set forth on Exhibit B thereto (each an “Investor” and collectively, the “Investors”), is made and entered into as of May 10, 2012. Unless otherwise defined herein, capitalized terms shall have the definitions ascribed to them in the Original Agreement.
RECITALS
WHEREAS, Section 5.2 of the Original Agreement provides that the Original Agreement may be amended by a written instrument signed by (a) the Company and (b) Investors holding (i) a majority of the shares of Preferred Stock then outstanding, voting together as a single class, (ii) a majority of the Series B-3 Preferred Stock then outstanding and (iii) a majority of the Series BB-3 Preferred Stock then outstanding (the “Requisite Stockholders”).
WHEREAS, the Company and the Requisite Stockholders desire to amend the Original Agreement as set forth herein.
AMENDMENT
1. The preamble of the Original Agreement is hereby amended and restated in its entirety as follows:
THIS THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (this “Agreement”) is made and entered into as of October 28, 2011 by and among WhaleShark Media, Inc., a Delaware corporation (the “Company”), those holders of the Company’s Common Stock, par value $0.001 per share (“Common Stock”), or options to acquire Common Stock set forth on Exhibit A attached to this Agreement (together with any other person who becomes a party hereto as a Common Stockholder pursuant to Section 3, individually, a “Common Stockholder,” and collectively, the “Common Stockholders”), and the holders of the Company’s Series B-1 Preferred Stock, par value $0.001 per share (“Series B-1 Preferred Stock”), Series B-2 Preferred Stock, par value $0.001 per share (“Series B-2 Preferred Stock”), Series B-3 Preferred Stock, par value $0.001 per share (“Series B-3 Preferred Stock”), Series BB-3 Preferred Stock, par value $0.001 per share “Series BB-3 Preferred Stock”), Series B-4 Preferred Stock, par value $0.001 per share (“Series B-4 Preferred Stock”) and Series B-5 Preferred Stock, par value $0.001 per share (“Series B-5 Preferred Stock,” together with the Series B-1 Preferred Stock, Series B-2 Preferred Stock, Series B-3 Preferred Stock, Series BB-3 Preferred Stock and Series B-4 Preferred Stock, collectively “Preferred Stock”), as set forth on Exhibit B attached to this Agreement (together with any other person who becomes a party hereto as an Investor pursuant to Section 5.2, individually, an “Investor,” collectively, the “Investors,” and together with the Common Stockholders, the “Stockholders”).
2. Entire Agreement. The Original Agreement, as modified by this Amendment, and the documents referred to herein and therein constitute the entire agreement among the parties in respect of the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first set forth above.
| COMPANY: | ||
| WHALESHARK MEDIA, INC. | ||
| By: | /s/ X. Xxxxxx Xxxxxxxxxx | |
| X. Xxxxxx Xxxxxxxxxx, | ||
| President and Chief Executive Officer | ||
| Address: | 000 Xxxxxxxx Xxxxxx, Xxxxx 000 | |
| Xxxxxx, Xxxxx 00000 | ||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
| COMMON STOCKHOLDERS: | ||
| /s/ X. Xxxxxx Xxxxxxxxxx | ||
| X. Xxxxxx Xxxxxxxxxx | ||
| INVESTORS: | ||
| AUSTIN VENTURES IX, L.P. | ||
| By: | AV Partners IX, L.P., | |
| its general partner | ||
| By: | AV Partners IX, LLC, | |
| its general partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Member | ||
| AUSTIN VENTURES X, L.P. | ||
| By: | AV Partners X, L.P., | |
| its general partner | ||
| By: | AV Partners X, LLC, | |
| its general partner | ||
| By: | /s/ Xxxxxx Xxxxxx | |
| Member | ||
| Address: 000 Xxxx 0xx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxx, Xxxxx 00000-0000 | ||
| Attn: | C. Xxxxxx Xxxx | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
| Norwest Venture Partners XI, LP | ||
| By: | Genesis VC Partners XI, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Xxxx Xxxxx | |
| Xxxx Xxxxx | ||
| Norwest Venture Partners VII-A, LP | ||
| By: | Itasca VC Partners VII-A, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| Norwest Venture Partners VI-A, LP | ||
| By: | Itasca VC Partners VI-A, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| Address: 000 Xxxxxxxxxx Xxx., Xxxxx 000 | ||
| Xxxx Xxxx, XX 00000-0000 | ||
| Attn: | Xxxx Xxxxxxx, CFO | |
| With a copy to: | ||
| Norwest Venture Partners XI, LP | ||
| 000 Xxxxxxxxxx Xxx., Xxxxx 000 | ||
| Xxxx Xxxx, XX 00000-0000 | ||
| Attn: | Xxxx X. Xxxxxxx, General Counsel | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
| XXXXX STREET 2010 DIRECT FUND, L.P. | ||||
| By: | ASP 2010 Direct Management, LLC, its General Partner | |||
| By: | Xxxxx Street Partners, LLC, its Managing Member | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Partner | |||
| XXXXX STREET 2009 DIRECT FUND, L.P. | ||||
| By: | ASP 2009 Direct Management, LLC, its General Partner | |||
| By: | Xxxxx Street Partners, LLC, its Managing Member | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Partner | |||
| XXXXX STREET 2008 DIRECT FUND, L.P. | ||||
| By: | ASP 2008 Direct Management, LLC, its General Partner | |||
| By: | Xxxxx Street Partners, LLC, its Managing Member | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Partner | |||
| Address: x/x Xxxxx Xxxxxx Partners, LLC | ||||
| Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 | ||||
| Xxxxxxx, XX 00000-0000 | ||||
| Attn: | Xxxxx Xxxx | |||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
| GOOGLE VENTURES 2011, L.P. | ||
| By: | Google Ventures 2011 GP, L.L.C., | |
| its general partner | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Member | |
| Address: | 0000 Xxxxxxxxxxxx Xxxxxxx | |
| Xxxxxxxx Xxxx, XX 00000 | ||
| Attn: Xxxxx Xxxxx | ||
| With a copy to: | ||
| Google Ventures 2011, L.P. | ||
| Attn: General Counsel, Google Ventures | ||
| Email: xx-xxxxxx@xxxxxx.xxx | ||
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| Xxxxxx Xxxxxxxx | ||
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| Xxx Xxxxxxxx | ||
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| Xxxxxxx Xxxxxxx | ||
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| Xxxxxxx Argiolas | ||
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| Xxxxxx Xxxxx | ||
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| Xxxx-Xxxx Xxxxx | ||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
| INSTITUTIONAL VENTURE PARTNERS XIII L.P. | ||||
| By: | Institutional Venture Management XIII LLC | |||
| Its: | General Partner | |||
| By: | /s/ Xxxxx Xxxxx | |||
| Title: |
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| XX XXXXXX DIGITAL GROWTH FUND L.P. | ||||
| By: | X.X. Xxxxxx Investment Management Inc. | |||
| Its: | Investment Advisor | |||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| Executed by King Holdings (Vic) Pty Ltd ACN 147 435 970 in its capacity as trustee for the King Holdings Trust, in accordance with S. 127 of the Corporations Xxx 0000 by being signed by the following officer: | ||
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| Guy Xxxxxxx Xxxx being the sole director and company secretary | ||
| Executed by Xxxxx/Xxxx Holdings Pty Ltd ACN 000 000 000 in its capacity as trustee for the Xxxxx/Xxxx Holdings Trust, in accordance with S. 127 of the Corporations Xxx 0000 by being signed by the following officer: | ||
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| Xxxxx Xxxxx Xxxxx being the sole director and company secretary | ||
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
| MOUVEO, a French société à responsibilité limitée, registered with the Trade and Companies Registry of Vannes under number 539 803 775 | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Gérant | |
| INVENTUZ, a French société à responsibilité limitée, registered with the Trade and Companies Registry of Vannes under number 000 000 000 | ||
| By: | /s/ Francois Larvor | |
| Name: | Francois Larvor | |
| Title: | Gérant | |
SIGNATURE PAGE TO AMENDMENT TO THIRD AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
