EXHIBIT 4.6
AMENDMENT NO. 1 TO
INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT (this
"Amendment") is made as of August 12, 2002, by and among Ziff Xxxxx Holdings
Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxxx & Partners III,
L.P., a Delaware limited partnership ("Xxxxxx Xxxxx III"), and Xxxxxx Xxxxx &
Partners II, L.P., a Delaware limited partnership ("Xxxxxx Xxxxx XX" and
together with Xxxxxx Xxxxx III, "Xxxxxx Xxxxx"). Unless otherwise indicated,
capitalized terms not defined herein shall have the meanings assigned to such
terms in the Investor Rights Agreement of the Company, dated as of April 5, 2000
(the "Pre-Amendment Investor Rights Agreement").
WHEREAS, Xxxxxx Xxxxx and the Company may amend the
Pre-Amendment Investor Rights Agreement pursuant to Section 17B thereof.
WHEREAS, Xxxxxx Xxxxx and the Company desire to amend the
Pre-Amendment Investor Rights Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants made herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Amendment of the Pre-Amendment Investor Rights Agreement.
(a) The definition of "Preferred Stock" in Section 16 of the
Pre-Amendment Investor Rights Agreement is hereby deleted in its entirety and
replaced with the following:
"`Preferred Stock' means the Company's Series A Preferred
Stock, par value $.01 per share, Series B Preferred Stock, par
value $.01 per share, Series C Convertible Preferred Stock,
par value $.01 per share, Series D Redeemable Preferred Stock,
par value $.01 per share, Series E Preferred Stock, par value
$.01 per share, Series E-1 Preferred Stock, par value $.01 per
share, and any other series or classes of Preferred Stock
issued by the Company."
(b) Section 4A of the Pre-Amendment Investor Rights Agreement is
hereby amended by inserting the following sentence at the end of Section 4A of
the Pre-Amendment Investor Rights Agreement:
"Notwithstanding the foregoing, the percentage of New
Securities that is required to be offered to each holder of
Investor Shares pursuant to this Section 4A will exclude, when
calculating such percentage, the aggregate amount of such New
Securities that were purchased or will be purchased by the
holder or holders of (i) Series E Preferred Stock pursuant to
the purchase rights granted to all holders of Series E
Preferred Stock pursuant
to Article Four B.V.7(a) of the Fifth Amended and Restated
Certificate of Incorporation of the Company and (ii) Series
E-1 Preferred Stock pursuant to the purchase rights granted to
all holders of Series E-1 Preferred Stock pursuant to Article
Four B.VI.7(a) of the Fifth Amended and Restated Certificate
of Incorporation of the Company."
(c) The definition of "Liquidation Value" in Section 16 of the
Pre-Amendment Investor Rights Agreement is hereby deleted in its entirety and
replaced with the following:
"`Liquidation Value'" means, with respect to each share of
Preferred Stock, the liquidation value of such share of
Preferred Stock as set forth in the Company's Certificate of
Incorporation, plus the aggregate amount of accrued and unpaid
dividends thereon."
2. Effectiveness. Pursuant to Section 17B of the Pre-Amendment
Investor Rights Agreement, this Amendment shall be effective and binding upon
execution hereof by the Company and Xxxxxx Xxxxx, and the Pre-Amendment Investor
Rights Agreement shall be deemed amended as of the date first written above
immediately following such execution by the Company and Xxxxxx Xxxxx. Any
reference in the Pre-Amendment Investor Rights Agreement to "Agreement" shall
hereafter be deemed to refer to the Pre-Amendment Investor Rights Agreement as
hereby amended.
3. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but all of such counterparts shall constitute one amendment.
(b) Governing Law. The corporate law of Delaware will govern all
issues arising under, or in connection with, this Amendment concerning the
relative rights of the Company and its Stockholders. All other issues arising
under, or in connection with, this Amendment shall be governed by and construed
in accordance with the laws of the State of Illinois without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than the State of Illinois.
(c) Effect on Pre-Amendment Investor Rights Agreement. Except as
expressly modified by this Amendment, the Pre-Amendment Investor Rights
Agreement remains in full force and effect.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 to Investor Rights Agreement on the day and year first above
written.
THE COMPANY:
ZIFF XXXXX HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Its: Chief Operating Officer and
Chief Financial Officer
XXXXXX XXXXX & PARTNERS III, L.P.:
By: Xxxxxx Xxxxx & Partners Management III, L.P.
Its: General Partner
By: Xxxxxx Xxxxx & Partners Management III, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Director
XXXXXX XXXXX & PARTNERS II, L.P.:
By: Xxxxxx Xxxxx & Partners Management II, L.P.
Its: General Partner
By: Xxxxxx Xxxxx & Partners Management II, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Member
