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EXHIBIT 4.3
XXXXXXXXX.XXX, INC.
SECOND ADDENDUM TO
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Second Addendum (this "Addendum") dated as of July 26, 1999, to
the Fourth Amended and Restated Investors' Rights Agreement dated as of May 18,
1999 (the "Rights Agreement"), by and among xxxxxxxxx.xxx, inc., a Delaware
corporation (the "Company") and the parties listed on Exhibit A hereto hereby
adds certain securities to the definition of "registrable securities" under the
Rights Agreement. A prior Addendum to the Rights Agreement dated as of June 17,
1999 remains in full force and effect.
RECITALS
A. The Company and Xxxxxx.xxx, Inc. ("Xxxxxx.xxx") have entered into a
letter agreement (the "Letter Agreement"), a copy of which is attached as
Exhibit B hereto, pursuant to which the Company will sell to Xxxxxx.xxx and
Xxxxxx.xxx will purchase from the Company $10,000,000 of shares of the Company's
Common Stock in a private placement transaction to be closed concurrently with
the closing of the Company's initial public offering of Common Stock (the
"Amazon Private Placement"). The Company and the Investors party to the Rights
Agreement are willing to grant Xxxxxx.xxx registration rights with regard to
such shares.
B. On July 9, 1999, the Company's board of directors resolved to
contribute 200,000 shares of Common Stock with registration rights to the
xxxxxxxxx.xxx Foundation.
C. Pursuant to Section 5.2 of the Rights Agreement, this Addendum is
being executed by the Company and the holders of at least two-thirds (2/3) of
the Registrable Securities presently outstanding, thereby permitting the Rights
Agreement be amended hereby.
D. Capitalized terms used herein and not defined shall have the
meanings given to them in the Rights Agreement.
AGREEMENT
1. The parties agree that for purposes of Section 1 of the Rights
Agreement, shares of Common Stock of the Company issued to Xxxxxx.xxx pursuant
to the Amazon Private Placement and shares of Common Stock given to the
xxxxxxxxx.xxx Foundation by the Company shall be deemed to be "Registrable
Securities" for all purposes and subject to all conditions of the Rights
Agreement. The xxxxxxxxx.xxx Foundation shall become a party to the Rights
Agreement upon execution of this Addendum.
2. Each Investor hereby waives its right of first offer under Section
2.3 of the Rights Agreement with respect to the sale of shares of Common Stock
to Xxxxxx.xxx in the Amazon Private Placement and the transfer of shares for no
consideration to the xxxxxxxxx.xxx Foundation.
3. This Addendum shall become effective upon the closing of the Amazon
Private Placement. Upon such effectiveness:
(a) all references in any document to the Rights Agreement shall be
deemed to be references to the Rights Agreement as modified by this Addendum;
and
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(b) except as specifically modified hereby, the Rights Agreement
shall continue in full force and effect in accordance with the provisions
thereof.
4. This Addendum shall automatically terminate if the Amazon Private
Placement is not consummated prior to November 30, 1999. If such termination
occurs, this Addendum shall become void and of no further effect.
5. This Addendum, which 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, may be executed in counterparts.
[Signature Page Follows]
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EXHIBIT A
INVESTORS
Name and Address
-------------------------------------------------------------
Rite Aid Corporation
00 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
General Nutrition Companies, Inc.
000 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Vulcan Ventures Incorporated
000xx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB VIII Founders Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB Life Sciences Zaibatsu Fund II, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx
c/x Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxx.xxx, Inc.
0000 0xx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Xxxxx X. Xxxxxxx
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
Maveron Equity Partners, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
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Maveron Equity Partners, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Liberty DS, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
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The parties have executed this Second Addendum to the Fourth Amended
and Restated Investors' Rights Agreement as of the date first above written.
COMPANY: INVESTORS:
XXXXXXXXX.XXX, INC., RITE AID CORPORATION,
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Grass
---------------------- --------------------------------
Xxxxx X. Xxxxxxx Name: Xxxxxx X. Grass
President Title: Chairman of the Board & CEO
Address: Address:
00000 XX Xxxxxxxx Xxx 00 Xxxxxx Xxxx
Xxxxx 000 Xxxx Xxxx, XX 00000
Xxxxxxxx, XX 00000
GENERAL NUTRITION COMPANIES, INC.,
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: VP
Address:
------------------------------------
------------------------------------
VULCAN VENTURES INCORPORATED,
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address:
000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXX XXXXXXX XXXXXXXX & XXXXX VIII, L.P.,
By: KPCB VIII Associates, L.P., its General Partner
By: /s/ L. Xxxx Xxxxx
------------------------
a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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KPCB VIII FOUNDERS FUND, L.P.,
By: KPCB VIII Associates, L.P., its General Partner
By: /s/ L. Xxxx Xxxxx
-----------------------
a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB LIFE SCIENCES ZAIBATSU FUND II, L.P.,
By: KPCB VII Associates, L.P., its General Partner
By: /s/ L. Xxxx Xxxxx
-----------------------
a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: V.P. Corporate Development
Address:
0000 0xx Xxxxxx
Xxxxxxx, XX 00000
XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
-----------------------
Address:
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXXXX.XXX FOUNDATION
By: /s/ Xxxxxx Xxxxxx
-----------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
Address:
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
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MAVERON EQUITY PARTNERS, L.P.
By: /s/ Xxx Xxxxxxx
-----------------------
Name:
Title:
Address:
000 Xxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
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