EXHIBIT 4.4
AMENDMENT No. 3
to Second Amended and Restated
Investor Rights Agreement
xxxxxxxx.xxx, inc.
April ___, 1999
AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
This Amendment No. 3 to Second Amended and Restated Investor Rights
Agreement (the "Third Amendment") is entered into as of the ____ 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 each of Amendment No. 1
to Second Amended and Restated Investor Rights Agreement, dated August 31, 1998
(the "First Amendment"), and Amendment No. 2 to Second Amended and Restated
Investor Rights Agreement, dated April 9, 1999 (the "Second 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:
Section 2.9 of the Agreement is hereby deleted in its entirety and is
replaced with the following:
2.9 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 2 may
be assigned by a Holder to a transferee or assignee of Registrable
Securities which (i) is a Holder's family member or trust for the benefit
of an individual Holder, or (ii) acquires at least ten thousand (10,000)
shares of Registrable Securities prior to conversion to Common Stock or one
hundred thousand (100,000) shares of Registrable Securities issued upon
conversion of the Shares (as adjusted for stock splits, combinations and
the like that occur after the original issuance of such shares); provided,
however, (A) the transferor shall, within ten (10) days after such
transfer, furnish to the Company written notice of the name and
address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned, and (B) such transferee
shall agree to be subject to all restrictions set forth in this Agreement;
provided, further, that such transfer shall have been made in compliance
with the Bylaws, as applicable. Additionally, any Holder may transfer or
assign all or a portion of such Holder's right to include Registrable
Securities in a registration statement, after taking into account any
underwriters' cutbacks applicable to such Holder, to any other Holder bound
by the terms of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 3 to Second Amended and Restated Investor Rights Agreement as of the date
set forth above.
xxxxxxxx.xxx, inc. Investor
By:______________________________ By:___________________________
Xxxx X. Xxxxxxxxx Name:
Co-Chief Executive Officer and Title:
Co-President
By:______________________________
Xxxxxxx X. Xxxxxxxx
Co-Chief Executive Officer,
Co-President and Secretary