Exhibit 4.3
FORM OF
AMENDMENT NO. 2
TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
XXXXXXXX.XXX, INC.
April 9, 1999
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED INVESTOR
RIGHTS AGREEMENT (the "Second Amendment") is entered into as of the 9th day
of April 1999, by and among xxxxxxxx.xxx, inc., a Delaware corporation (the
"Company"), and the Investors, as defined in the Second Amended and
Restated Investor Rights Agreement, as amended (the "Agreement").
Capitalized items used herein and not otherwise defined shall have the
meanings ascribed thereto in the Agreement.
W I T N E S S E T H:
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WHEREAS, the Investors hold registration and information rights
pursuant to the Agreement;
WHEREAS, the Investors, with the written consent of the Company, have
amended certain provisions of the Agreement pursuant to Amendment No. 1 to
Second Amended and Restated Investor Rights Agreement, dated August 31,
1998 (the "First Amendment"); and
WHEREAS, pursuant to Section 2.10 of the Agreement, the Holders of a
majority in interest of the Registrable Securities desire to amend certain
provisions of Section 2 of the Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
I. The Investors hereby waive on behalf of all of the Holders any
violation of the Agreement which may occur by the Company failing to notify
the Holders prior to filing a Registration Statement on Form S-1 during
April 1999.
II. Paragraph (a)(iii) of Section 2.1 of the Agreement is hereby
deleted in its entirety and is replaced with the following:
(iii) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel
shall be necessary for a transfer by a Holder which is (A) a
partnership to its partners or former partners in accordance with
partnership interests, (B) a corporation to its shareholders in
accordance with their interest in the corporation, (C) a limited
liability company to its members or former members in accordance
with their interest in the limited liability company, or (D) to
the Holder's family member or trust for the benefit of an
individual Holder or such Holder's family member, provided the
transferee will be subject to the terms of this Section 2.1 to
the same extent as if he were an original Holder hereunder.
The first paragraph of Section 2.2 of the Agreement, which has been
amended by the First Amendment, is hereby deleted in its entirety and is
replaced with the following:
2.2 PIGGYBACK REGISTRATIONS. The Company shall notify
all Holders in writing within five (5) days following the
filing of any registration statement under the Securities
Act for purposes of a public offering of securities (other
than non-convertible debt securities) of the Company
(excluding registration statements relating to employee
benefit plans or with respect to corporate reorganizations
or shares issued in connection with any merger or
acquisition (which shall include any resale registration
statement for such issued shares and any acquisition shelf
registration statement for shares which may be issued in
connection with any merger or acquisition transaction),
including other transactions under Rule 145 of the
Securities Act) and will afford each such Holder an
opportunity to include in such registration statement all or
part of such Registrable Securities held by such Holder.
Each Holder desiring to include in any such registration
statement all or any part of the Registrable Securities held
by it shall, within ten (10) days after the above-described
notice from the Company, so notify the Company in writing.
Such notice shall state the maximum number of Registrable
Securities intended to be included in such registration and
the intended method of disposition of the Registrable
Securities by such Holder. If a Holder decides not to
request inclusion of all of its Registrable Securities in
any registration statement thereafter filed by the Company,
such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent such
registration statement or registration statements as may be
filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth
herein.
Paragraph (a) of Section 2.2 of the Agreement, which has been amended
by the First Amendment, is hereby deleted in its entirety and is replaced
with the following:
(a) UNDERWRITING. If the registration statement under
which the Company gives notice under this Section 2.2 is for
an underwritten offering, the Company shall so advise the
Holders. In such event, the right of any such Holder to be
included in a registration pursuant to this Section 2.2
shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent
provided herein except that such Holder shall not be
permitted to withdraw such Holder's shares from any
underwriting pursuant to the registration statement
following the fifth day prior to the printing of the
preliminary prospectus related to such registration
statement. Each Holder proposing to distribute its
Registrable Securities through such underwriting shall enter
into a custody agreement and power of attorney authorizing
the Company or an employee thereof to act as the Holder's
attorney-in-fact to sell the Registrable Securities to be
offered by such Holders and to execute on the Holder's
behalf (x) an underwriting agreement in customary form with
the underwriter or underwriters selected for such
underwriting by the Company and (y) any other closing
certificates or similar documents requested by the
underwriter. The custody agreement may contain such other
terms as are customary for this type and shall require the
Holder to deposit its shares of Common Stock being
registered with the custodian for the time periods specified
in the custody agreement. Each Holder agrees that its shares
will be sold at the same price as the other selling
stockholders (and the Company, if applicable) in the
offering under the registration statement. If any Holder is
or will be unable to deliver any document (including any
underwriting agreement, legal opinions or closing
certificates) reasonably required by the underwriters to
register such Registrable Securities, then the Company shall
have no obligation to include such Registrable Securities in
such registration. Notwithstanding any other provision of
the Agreement, if the underwriter determines in good faith
that marketing factors require a limitation of the number of
shares to be underwritten, the number of shares that may be
included in the underwriting shall be allocated as follows:
first, to the Company for its own account; and second, to
any Holder or other stockholder of the Company who has
registration rights, each on a pro rata basis in accordance
with the terms of their respective Agreements providing for
registration rights with the Company. No such reduction
shall reduce the securities being offered by the Company for
its own account to be included in the registration and
underwriting.
Section 2.11 of the Agreement is hereby deleted in its entirety and is
replaced with the following:
2.11 "MARKET STAND-OFF" AGREEMENT. In the case of any
underwritten public offering by the Company of shares of
Common Stock, whether for its own account or for the account
of any stockholder of the Company, each Holder agrees that,
during a period of seven (7) days prior to and ninety (90)
days following the effective date of a registration
statement filed in connection with such offering, such
Holder will not, without the prior written consent of the
Company, sell or otherwise transfer or dispose of any shares
of Common Stock (or other securities) of the Company held by
each such Holder (other than those included in the
registration). The Company shall give notice of such
restriction in the manner set forth in Section 4.7. Upon the
request of the underwriters for any underwritten public
offering of Common Stock of the Company referred to above,
each Holder hereby agrees to deliver a "lock-up" or "market
stand-off" agreement signed by such Holder which is
equivalent in substance to the agreement set forth in this
Section 2.11 addressed to such underwriter. Any such
underwriter shall expressly be deemed to be a third party
beneficiary of this Section 2.11.
The obligations described in this Section 2.11 shall
not apply to (i) transfers to a Holder's family member or
trust for the benefit of an individual Holder or such
Holder's family member made in accordance with Section
2.1(a)(iii) hereof; or (ii) a registration relating solely
to employee benefit plans on Form S-1 or Form S-8 or similar
forms that may be promulgated in the future, or a
registration relating solely to shares issued in an
acquisition or pursuant to a Commission Rule 145 transaction
(including the registration for resale of securities issued
in a Rule 145 transaction or other acquisition transaction)
on Form S-1 or Form S-4 under the Securities Act or similar
forms that may be promulgated in the future, unless in any
such case such registration is in connection with an
underwritten public offering. The Company may impose
stop-transfer instructions with respect to the shares of
Common Stock (or other securities) subject to the foregoing
restriction until the end of such restrictive period.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 2 to Second Amended and Restated Investor Rights Agreement as
of the date set forth above.
xxxxxxxx.xxx, inc. Dancing Bear Investments, Inc.
By: By:
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Xxxx X. Xxxxxxxxx Name: Xxxxxxx Xxxx
Co-Chief Executive Officer and Title:
Co-President
Xxxxxx Xxxxxxxx
By: -----------------------------
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Xxxxxxx X. Xxxxxxxx
Co-Chief Executive Officer,
Co-President and Secretary
Xxxxx Xxxxxxxx
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