EXHIBIT 4.2
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
xxxxxxxx.xxx, inc.
August 31, 1998
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT (the "Amendment") is entered into as of the 31st day of August,
1998, 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 (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:
-------------------
WHEREAS, the Investors hold registration and information rights
pursuant to the Agreement;
WHEREAS, pursuant to Section 2.10 of the Agreement, the holders of a
majority in interest of the Registrable Securities desire to amend the
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:
The first paragraph of Section 2.2 of the Agreement is hereby deleted
in its entirety and is replaced with the following:
2.2 PIGGYBACK REGISTRATIONS. Except in connection with an Initial
Offering, the Company shall notify all Holders in writing at least
fifteen (15) days prior to 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 sold in
connection with an acquisition, 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 fifteen (15) 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. Notwithstanding the foregoing,
nothing in this Section 2.2 shall be deemed to convey upon any Holder
the right to include in any registration statement filed in connection
with an Initial Offering all or part of such Holder's Registrable
Securities.
Paragraph (a) of Section 2.2 of the Agreement 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. Each
Holder proposing to distribute its Registrable Securities through such
underwriting shall enter into a custody agreement and power of
attorney authorizing the Company to sell the Registrable Securities to
be offered by such Holders and to execute on the Holder's behalf an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. If any
Holder is or will be unable to deliver any document 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; second, to the holders under the Company's
Registration Rights Agreement, dated as of August ____, 1998 (the
"Registration Rights Agreement"), and Holders on a pro rata basis
based on the total number of Registrable Securities held by such
persons; and third, to any stockholder of the Company (other than a
Holder or a holder under the Registration Rights Agreement) on a pro
rata basis. No such reduction shall reduce the securities being
offered by the Company for its own account to be included in the
registration and underwriting. In no event will shares of any other
selling stockholder be included in such registration which would
reduce the number of shares which may be included by Holders without
the written consent of Holders of not less than two-thirds (66 2/3%)
of the Registrable Securities proposed to be sold in the offering.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 1 to Second Amended and Restated Investor Rights Agreement as of the
date set forth above.
xxxxxxxx.xxx, inc. Dancing Bear Investments, Inc.
By: By:
------------------------------- ------------------------------
Xxxx X. Xxxxxxxxx Name:
Co-Chief Executive Officer and Title:
Co-President
Xxxxxx Xxxxxxxx
By:
-------------------------------
Xxxxxxx X. Xxxxxxxx
Co-Chief Executive Officer,
Co-President and Secretary ------------------------------
Xxxxx Xxxxxxxx
------------------------------
