SECOND AMENDMENT TO THE FIFTH AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT
Exhibit 4.4
SECOND AMENDMENT TO THE FIFTH AMENDED AND RESTATED
STOCKHOLDER RIGHTS AGREEMENT
STOCKHOLDER RIGHTS AGREEMENT
This SECOND AMENDMENT TO THE FIFTH AMENDED AND RESTATED STOCKHOLDER RIGHTS AGREEMENT, dated as
of October 8, 2009 (this “Second Amendment”), by and among WATERFRONT MEDIA INC., a
Delaware corporation (the “Company”), and the INVESTORS, KEY HOLDERS and OTHER HOLDERS, as
defined in the Stockholder Rights Agreement referred to below. Capitalized terms not defined herein
shall have the meanings set forth in the Stockholder Rights Agreement.
WITNESSETH:
WHEREAS, the parties have previously entered into that certain Fifth Amended and Restated
Stockholder Rights Agreement (the “Stockholder Rights Agreement”) dated October 15, 2008,
among the Company and the Investors, Key Holders and Other Holders as defined therein;
WHEREAS, the Stockholder Rights Agreement was amended pursuant to that certain First Amendment
to the Stockholder Rights Agreement dated September 18, 2009 (the “First Amendment”);
WHEREAS, the Company wishes to obtain a secured loan from Compass Horizon Funding Company LLC
(the “Lender”) pursuant to a Venture Loan and Security Agreement by and among the Company,
Revolution Health Group LLC, CarePages, Inc. and the Lender dated as of October 8, 2009 (the
“Loan Agreement”);
WHEREAS, in connection with the Loan Agreement, the Company will grant to the Lender a warrant
to purchase a certain number of shares of Series F Preferred Stock of the Company (the
“Warrant”);
WHEREAS, the Warrant provides for the holder of the Warrant to be granted certain rights to
register the shares of the Company’s Common Stock issued upon conversion of the Series F Preferred
Stock, issued pursuant to the exercise of the Warrant; and
WHEREAS, the parties hereto, constituting the holders of that number of shares of Preferred
Stock of the Company exceeding the Requisite Threshold (as defined in the Stockholder Rights
Agreement), desire to amend the Stockholder Rights Agreement as provided in this Second Amendment.
NOW THEREFORE, in consideration of the foregoing premises and the representations, warranties,
covenants and agreements herein contained, the parties hereto, intending to be legally bound, agree
as follows:
1. Section 1.20 of the Stockholder Rights Agreement is hereby deleted in its entirety
and is hereby replaced with the following:
The term “Registrable Securities” means (i) any Common Stock issued upon conversion of any
Preferred Stock of the Company or issuable upon conversion of any Preferred Stock of the
Company that is currently held or acquired after the date hereof, by the Investors or Other
Holders (excluding the Warrants); (ii) any shares of Common Stock held by the Key Holders
or XXX, provided, however, that such shares of Common Stock shall not be deemed Registrable
Securities and the Key Holders or XXX shall not be deemed Holders for the purposes of
Sections 2.1, 2.3, 2.4(a), 2.7, 2.11 and Section 6.6; (iii) any shares of Common Stock held
by the Other Holders, provided, however, that such shares of Common Stock shall not be
deemed Registrable Securities for the purposes of Sections 2.1, 2.3, 2.4(a), 2.7, 2.11 and
Section 6.6; (iv) any shares of Common Stock held by Square 1 Bank (“Square 1”) or Compass
Horizon Funding Company LLC (“Compass”) issued or issuable upon conversion of the Series F
Preferred Stock issued pursuant to the exercise of the Warrants (as defined herein),
provided, however, that such shares of Common Stock shall not be deemed Registrable
Securities and neither Square 1 nor Compass shall be deemed Holders for purposes of
Sections 2.1, 2.4(a), 2.7, 2.11 and Section 6.6; and (v) any Common Stock issued as (or
issuable upon the conversion or exercise of any warrant, right, or other security that is
issued as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, the shares referenced in clauses (i), (ii) and (iii) above; excluding in
all cases, however, any Registrable Securities sold by a Person in a transaction in which
the rights under Section 2 hereof are not assigned or any shares for which registration
rights have terminated pursuant to Section 2.15 of this Agreement.
2. Section 1.40 is hereby deleted in its entirety and is hereby replaced with the
following:
The term “Warrants” means the warrants to purchase a certain number of shares of Series F
Preferred Stock issued to (a) Square 1 pursuant to the Loan and Security Agreement, by and
between the Company, Square 1, Revolution Health Group LLC and CarePages, Inc., dated as of
September 18, 2009 and (b) Compass pursuant to the Venture Loan and Security Agreement by
and among the Company, Compass, Revolution Health Group LLC and CarePages, Inc., dated as
of October 8, 2009.
3. Upon its execution of a counterpart signature page to the Stockholder Rights Agreement, the
Lender shall become a party to the Stockholder Rights Agreement.
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4. This Second Amendment shall be governed by, and construed in accordance with, the law of
the State of New York without reference to choice of law principles, including all matters of
construction, validity and performance.
5. This Second Amendment constitutes an amendment to the Stockholder Rights Agreement pursuant
to Section 6.6 of the Stockholder Rights Agreement. Except as expressly amended by this Second
Amendment, each and every provision of the Stockholder Rights Agreement remains in full force and
effect in accordance with the terms and provisions thereof and, by reference, the terms and
provisions of the Stockholder Rights Agreement are incorporated herein and made hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the Fifth
Amended and Restated Stockholder Rights Agreement as of the date first above written.
| COMPANY: WATERFRONT MEDIA INC. |
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| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Senior Vice President and General Counsel | |||
| INVESTORS: | ||||||
| WF HOLDING COMPANY, LLC | ||||||
| By: Name: |
/s/ Xxxx Xxxxxxxxxx
|
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| Title: | Vice President and Secretary | |||||
| INVESTORS: | ||||||
| SCALE VENTURE PARTNERS II, LP | ||||||
| By: Scale Venture Management II, LLC, its General Partner |
||||||
| By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||||
| Title: | Managing Director | |||||
| INVESTORS: NEOCARTA VENTURES, L.P. |
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| By: | NeoCarta Associates, LLC, its General Partner |
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| By: | /s/ D. Xxxxxxx Xxxxxxx | |||
| Name: | D. Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| NEOCARTA SCOUT FUND, L.L.C. |
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| By: | NeoCarta Associates, LLC, its Manager |
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| By: | /s/ D. Xxxxxxx Xxxxxxx | |||
| Name: | D. Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| INVESTORS: RHO MANAGEMENT TRUST I |
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| By: | RHO CAPITAL PARTNERS, INC. INVESTMENT ADVISOR |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Attorney-In-Fact | |||
| RHO VENTURES VI, L.P. By: RMV VI, L.L.C., its General Partner By: Rho Capital Partners LLC, its Managing Member |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Attorney-In-Fact | |||
| INVESTORS: SVM STAR VENTURES MANAGEMENTGESELLSCHAFT mbH NR.3 |
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| By: | ||||
| Name: | Xx. Xxxx Xxxxx | |||
| Title: | Managing Director | |||
| SVM STAR VENTURES MANAGEMENTGESELLSCHAFT mbH NR.3 & CO. BETEILIGUNGS KG NR.2 |
||||
| By: | SVM STAR VENTURES MANAGEMENTGESELLSCHAFT mbH NR.3 — MANAGING PARTNER |
|||
| By: | ||||
| Name: | Xx. Xxxx Xxxxx | |||
| Title: | Managing Director | |||
| SVE STAR VENTURES ENTERPRISES NO. VII, A GERMAN CIVIL LAW PARTNERSHIP (WITH LIMITATION OF LIABILITY) |
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| By: | SVM STAR VENTURES MANAGEMENTGESELLSCHAFT mbH NR.3 — MANAGING PARTNER |
|||
| By: | ||||
| Name: | Xx. Xxxx Xxxxx | |||
| Title: | Managing Director | |||
| SVE STAR VENTURES ENTERPRISES GMBH & CO. NO. VIIa, KG |
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| By: | SVM STAR VENTURES MANAGEMENTGESELLSCHAFT mbH NR.3 — MANAGING LIMITED PARTNER |
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| By: | ||||
| Name: | Xx. Xxxx Xxxxx | |||
| Title: | Managing Director | |||
| INVESTORS: TIME WARNER INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INVESTORS: THE BERKSHIRES CAPITAL INVESTORS L.P. |
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| By: | The Berkshires Management Company, LLC its General Partner |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BERKSHIRES CAPITAL INVESTORS FUND II L.P. |
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| By: | The Berkshires Management Company, LLC its General Partner |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INVESTORS: | ||||||
| PEABODY FAMILY VENTURES | ||||||
| By: | Xxxxxxx Xx X. Xxxxxxx, as General Partner |
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| By: | /s/ Xxxxxxx Xx X. Xxxxxxx
|
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| INVESTORS: VILLAGE VENTURES PARTNERS FUND, L.P. |
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| By: | VILLAGE VENTURES CAPITAL PARTNERS I, LLC, its General Partner |
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| By: | VILLAGE VENTURES, INC., its manager |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Chief Operating Officer | |||
| VILLAGE VENTURES PARTNERS FUND A, L.P. |
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| By: | VILLAGE VENTURES CAPITAL PARTNERS, I, LLC, its General Partner |
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| By: | VILLAGE VENTURES, INC., its manager |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Chief Operating Officer | |||
| INVESTORS: BRAND EQUITY VENTURES II, L.P. By: Brand Equity Partners II, L.L.C. Its General Partner |
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| By: | ||||
| Name: | Xxxx Xxxxxx | |||
| Title: | Member | |||
| INVESTORS: HERCULES TECHNOLOGY GROWTH CAPITAL, INC. |
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| By: | ||||
| Name: | X. Xxxxxxxx Martitsch | |||
| Title: | Associate General Counsel | |||
| INVESTORS & KEY HOLDERS: DRUGSITE TRUST |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| INVESTORS & KEY HOLDERS: FOUNDATION CAPITAL V, L.P. |
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| By: | Foundation Capital Management Co. V, LLC |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Manager | |||
| FOUNDATION CAPITAL V PRINCIPALS FUND, LLC |
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| By: | Foundation Capital Management Co. V, LLC |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Manager | |||
INVESTORS:
Xxxxxx Xxxxxxxx
KEY HOLDERS:
Xxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxx
| OTHER HOLDERS: | ||||||
| BRAND EQUITY VENTURES II, L.P. | ||||||
| By: Brand Equity Partners II, L.L.C. Its General Partner |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | Member | |
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| /s/ Xxxxxxx X. XxXxxxxxx | ||||||
| Xxxxxxx X. XxXxxxxxx | ||||||
| Xxxxx X. Xxxxxx, Xx. | ||||||
| Xxxxx X. Xxxxxxxx | ||||||
| Xxxxxx X. Xxxx | ||||||
| Xxxxx X. Xxxxxxxxx | ||||||
| Xxxxxxx X. Xxxxxx | ||||||
| Xxxxxxx X. Xxxxxxx | ||||||
| Xxxxxx X. Xxxxxx | ||||||
| Xxxx X. Xxxxxxxx | ||||||
| Xxxx Xxxxxxx | ||||||
| Xxxxx and Xxxxxxxx Xxxxx Xxxxxxx | ||||||
| Xxxxx and Xxxxxx Xxxxxxx | ||||||
| Xxxxxxx Xxxxxx | ||||||
| Xxxxxx X. Xxxxxx | ||||||
| Xxxxxxxx Xxxxxxxx | ||||||
| Xxxxxxx X. Xxxxxxx | ||||||
| Xxxx Xxxxxxx | ||||||
| Xxxxx X. Xxx | ||||||
| Xxx Xxxxxx | ||||||
| Xxxx Xxxxxx | ||||||
| Xxxxxx Xxxxxxx | ||||||
| Xxxxxx Xxxxxxx | ||||||
| SOFTWARE VENTURE PARTNERS | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Xxxxxxx X. Xxxxx | ||||||
| Xxxxxxx Xxxxxxxxxx | ||||||
| XXXXX & COMPANY INCORPORATED | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Xxxxxxx X. Birmingham | ||||||
| Xxxxxx Xxxxx | ||||||
| Xxx Xxxxxxx | ||||||
| Xxxxx Xxxxx | ||||||
| Xxxxxx Xxxxx | ||||||
| Xxx Xxxxx | ||||||
| Xxxxx X’Xxxxx | ||||||
| Xxxxxxx Xxxxx | ||||||
