EXHIBIT 10.14.2
AUDIBLE, INC.
AMENDMENT NO. 2 TO
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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THIS AMENDMENT NO. 2 (the "Amendment") dated as of June 17, 1999, to
the Amended and Restated Registration Rights Agreement dated February 26, 1998,
as amended (the "Agreement"), by and among Audible, Inc., a Delaware corporation
(the "Company"), and the holders of the Company's Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
listed on the signature pages thereto (such holders, the "Series A Holders", the
"Series B Holders", the "Series C Holders" and the "Series D Holders",
respectively), is hereby entered into by the Company, the Series A Holders, the
Series B Holders, the Series C Holders, the Series D Holders and Xxxxx Xxxxxxxx
(the "Artist"). The undersigned Series A Holders, Series B Holders, Series C
Holders and Series D Holders constitute the holders of at least a majority of
the Registrable Securities, as such term is defined in the Agreement.
WHEREAS, the Company is issuing to the Artist warrants to purchase an
aggregate of 900,000 shares of the Company's Common Stock (the "Warrant
Shares"), under the terms and conditions set forth in the Common Stock Purchase
Warrants, issued as of the date hereof (the "Warrants"); and
WHEREAS, the Company, the Series A Holders, the Series B Holders, the
Series C Holders and the Series D Holders desire that the Artist be granted
Piggy-Back Registration rights, as such term is defined in the Agreement, with
respect to the Warrant Shares.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section 1.1 of the Agreement shall be amended by adding the
following new term:
"Warrant Shares" shall mean shares of Common Stock issued or issuable
upon exercise of the Warrants, held by the Artist, but only to the extent
currently exercised or exercisable.
2. Section 1.1 of the Agreement shall be amended by amending the term
"Registrable Securities" to read as follows:
"Registrable Securities" shall mean the Series A Registrable Shares,
the Series B Registrable Shares, the Series C and Warrant Registrable Shares,
the Series D Registrable Shares and the Warrant Shares, without distinction,
except as the context otherwise requires.
3. The Artist shall be a "Holder", as such term is defined in the
Agreement.
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4. Wherever the Agreement is itself referred to in the Agreement, or
wherever there are references in the Agreement to "hereunder', "hereof',
"herein", or words of like import, they shall mean the Agreement, as amended
hereby.
5. The Artist agrees to be bound by all the terms and conditions of,
and is hereby granted all of the rights of a Holder under, the Agreement as
though the Artist had been an original party to the Agreement, and by executing
this Amendment, the Artist becomes a party thereto and is bound thereby.
6. All notices, pursuant to Section 6.9 of the Agreement, addressed
to the Artist at such address as he may provide to the Company.
7. The Company anticipates that the New Shares will be issued at one
or more closings and the parties hereto acknowledge and agree that additional
investors who purchase New Shares on any such subsequent closing will be
required, by executing counterparts of this Amendment, to become Investors for
all purposes of this Amendment and the Agreement.
8. This Amendment shall in all respects be governed by, and construed
and enforced in accordance with, the internal laws of the State of New York,
without regard to the conflict of law principles thereof.
9. Any party's failure to enforce any provision or provisions of this
Amendment shall not in any way be construed as a waiver of any such provision or
provisions, nor shall such failure to enforce prevent that party thereafter from
enforcing each and every other provision of this Amendment. The rights granted
to the parties herein are cumulative and shall not constitute a waiver of any
party's right to assert all other legal remedies available to it under the
circumstances.
10. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
11. Each Investor agrees upon request to execute any further documents
or instruments necessary or desirable to carry out the purposes or intent of
this Amendment or the Agreement.
12. The Agreement, as amended by this Amendment, is and shall continue
to be in full force and effect and is hereby in all respects ratified and
confirmed.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
AUDIBLE, INC.
By: /s/ Xxxxxx Xxxxxxx
_________________________
Xxxxxx Xxxxxxx, President
ARTIST
/s/ Xxxxx Xxxxxxxx
_________________________
Xxxxx Xxxxxxxx
INVESTORS
VENTURE FUND I, L.P.
By: /s/ Xxxxxxxx Xxxxxxx
_______________________
Name:
Title:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
AT&T VENTURE FUND II, L.P.
By: /s/ Xxxxxxxx Xxxxxxx
_______________________
Name:
Title:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
MICROSOFT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
__________________________________
Name: Xxxxxxx X. Xxxxxx
__________________________________
Title: Vice President of Finance, Chief
________________________________
Financial Officer
_________________________________
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CSK VENTURE CAPITAL CO., LTD. AS INVESTMENT
MANAGER FOR CSK-1(A) INVESTMENT FUND
By:
_________________________________
Name:
_______________________________
Title:
________________________________
CSK VENTURE CAPITAL CO., LTD. AS INVESTMENT
MANAGER FOR CSK-1(B) INVESTMENT FUND
By:
_________________________________
Name:
_______________________________
Title:
________________________________
CSK VENTURE CAPITAL CO., LTD. AS INVESTMENT
MANAGER FOR CSK-2 INVESTMENT FUND
By:
_________________________________
Name:
_______________________________
Title:
________________________________
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APA EXCELSIOR IV, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.
Its General Partner
By: PATRICOF & CO. MANAGERS INC.,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
_________________________
Name:
Title:
000 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
APA EXCELSIOR IV/OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC.,
its Investment Advisor
By: /s/ Xxxxxx Xxxxxxxxxx
_________________________
Name:
Title:
000 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.,
its General Partner
By: PATRICOF & CO. MANAGERS, INC.,
its General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
_________________________
Name:
Title:
000 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
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XXXXXXX XXXXXXX XXXXXXXX & XXXXX VIII
By: PCB VIII ASSOCIATES,
its General Partner
By: /s/ Xxxxx Xxxxxxx
_____________________
Name:
Title:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB INFORMATION SCIENCES ZAIBATSU FUND II
By: KPCB VII ASSOCIATES,
its General Partner
By: /s/ Xxxxx Xxxxxxx
______________________
Name:
Title:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB VIII FOUNDERS FUND
By: KPCB VIII Associates
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
______________________
Name:
Title:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
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IRONWOOD CAPITAL L.L.C.
By: /s/ Xxx Xxxx
_______________________
Name:
Title:
0000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxxxx Xxxxxx
___________________________
Xxxxxxx Xxxxxx
Address: __________________
___________________________
/s/ Xxxxxxxx Xxxxxxxx
___________________________
Xxxxxxxx Xxxxxxxx
Address:___________________
___________________________
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