Exhibit 10.25
XXXXXXXXX.XXX, INC.
ADDENDUM TO
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
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THIS ADDENDUM dated as of June 17, 1999, TO THE FOURTH AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT dated as of May 18, 1999, by and among
xxxxxxxxx.xxx, inc., a Delaware corporation (the "Company") and the parties
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listed on Exhibit A hereto hereby adds Rite Aid Corporation, a Delaware
corporation ("Rite Aid"), and General Nutrition Companies, Inc., a Delaware
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corporation ("GNC") as parties to such Investors' Rights Agreement (the "Rights
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Agreement") to the extent set forth herein.
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RECITALS
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A. The Company, Rite Aid and GNC have entered into a Series E Preferred
Stock Purchase Agreement (the "Purchase Agreement") dated as of June 17, 1999,
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pursuant to which the Company will sell to Rite Aid and GNC (through its wholly
owned subsidiary General Nutrition Investment Company) and Rite Aid and GNC will
purchase from the Company shares of the Company's Series E Preferred Stock. The
Company and the Investors party to the Rights Agreement desire to induce Rite
Aid and GNC to purchase shares of Series E Preferred Stock pursuant to the terms
of the Purchase Agreement by agreeing to the terms and conditions set forth
herein.
B. Pursuant to Section 5.2 of the Rights Agreement, this Addendum is being
executed by the Company and the holders of at least two-thirds (2/3) of the
Registrable Securities then outstanding, thereby agreeing that the Rights
Agreement be amended hereby.
C. Defined terms used herein and not defined shall have the meanings given
to them in the Rights Agreement.
AGREEMENT
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1. The parties hereby agree that upon effectiveness of this Addendum as
set forth below, Rite Aid and GNC shall each have (i) the rights and obligations
of an "Investor" and/or a "Holder" under Sections 1.1-1.15, 2.1, 2.2 and 2.5 of
the Rights Agreement (provided that for Rite Aid and GNC, clause (i) of Section
1.15 of the Rights Agreement shall be deemed to be ten years rather than five),
(ii) the same rights and obligations as Vulcan under Section 1.4 of the Rights
Agreement (but only for so long as they satisfy the $40 million threshold
requirement under such Section), and (iii) all applicable rights and obligations
of a
party to the Rights Agreement under Section 5 thereof. The parties hereby
further agree that from and after the fourth anniversary of the closing under
the Purchase Agreement, Rite Aid will have one additional right to request a
registration under Section 1.2 or 1.4 of the Rights Agreement (subject to all
the other rights and obligations of an "Investor" and/or "Holder" in respect
thereof). The parties hereby further agree that a written request from Rite Aid
under Section 1.2(a) of the Rights Agreement shall be deemed to satisfy the
requirement of a request from the Holders of at least thirty-three percent (33%)
of the Registrable Securities then outstanding even in the event Rite Aid may
own less than such amount of Registrable Securities outstanding on the date of
such request. The parties hereby further agree that for purposes of Section 1 of
the Rights Agreement, shares of Common Stock issuable or issued upon conversion
of the Series E Preferred Stock of the Company issued to Rite Aid and GNC on the
date hereof pursuant to the Purchase Agreement shall be deemed to be
"Registrable Securities", subject to the proviso set forth in the definition
thereof. Each Investor hereby waives its right of first offer/refusal under
Section 2.3 of the Rights Agreement (and, in the case of Xxxxxx.xxx, under
paragraph 1 of the Amended Letter Agreement dated May 19, 1999, between the
Company and Xxxxxx.xxx) with respect to the sale of shares of Series E Preferred
Stock under the Purchase Agreement and as to the issuance of shares of Common
Stock upon conversion of such shares of Series E Preferred Stock.
2. The parties hereby agree that upon effectiveness of this Addendum as
set forth below, Section 3.5 of the Rights Agreement shall be deemed amended by
restating the first sentence thereof as follows: "Notwithstanding the
provisions of this Section 3, (i) on and after the eleventh business day after
commencement of a proxy contest, tender offer or exchange offer by a third party
not affiliated with the Company which could result in a "Change of Control
Transaction" (as defined below) for outstanding securities, (ii) on and after
the commencement of a proxy contest, tender offer or exchange offer by a third
party affiliated with the Company which could result in a Change of Control
Transaction for outstanding securities, (iii) on or after the public
announcement that the Company has entered into an agreement with a third party
not affiliated with the Company that would result in a Change of Control
Transaction, or (iv) on or after the public announcement that the Company has
entered into an agreement with a third party affiliated with the Company that
would result in a Change of Control Transaction, the Standstill Investor shall
be permitted to make a proposal to the Company's Board of Directors or
shareholders or to
tender or exchange any Securities beneficially owned by it pursuant to such
transaction (provided, however, that in the case of such a proxy contest, tender
offer or exchange offer by an affiliate as described in clause (ii) above or an
agreement with an affiliate as described in clause (iv) above, if such proxy
contest, tender offer, exchange offer or agreement is thereafter withdrawn or
terminated, the Standstill Investor shall cease to have the right to make or
continue a proposal of the type described herein)."
3. This Addendum (other than the last sentence of Section 1 which shall
become effective upon execution of a counterpart hereof by each party listed on
the signature pages hereto) shall become effective only concurrently with the
Closing (as defined in the Purchase Agreement). Upon such effectiveness:
(a) all references in any document to the Rights Agreement shall be
deemed to be references to the Rights Agreement as modified by this Addendum;
and
(b) except as specifically modified hereby, the Rights Agreement shall
continue in full force and effect in accordance with the provisions thereof.
4. This Addendum shall automatically terminate concurrently with any
termination of the Purchase Agreement pursuant to Section 7.16 thereof. Upon
such termination, this Addendum shall become void and of no further effect.
5. This Addendum, which shall be governed, construed and interpreted in
accordance with the laws of the State of California, without giving effect to
principles of conflicts of laws, may be executed in counterparts.
[Signature Page Follows]
The parties have executed this Addendum to the Fourth Amended and Restated
Investors' Rights Agreement as of the date first above written.
COMPANY: INVESTORS:
XXXXXXXXX.XXX, INC., RITE AID CORPORATION,
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
President Title: Executive Vice President
Address: 13920 SE Eastgate Address: 00 Xxxxxx Xxxx
Xxx, Xxxxx 000 Xxxx Xxxx, XX 00000
Xxxxxxxx, XX 00000
GENERAL NUTRITION COMPANIES, INC.,
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
VULCAN VENTURES INCORPORATED,
By:
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Name:
Title:
Address:
XXXXXXX XXXXXXX XXXXXXXX & XXXXX
VIII, L.P.,
By: KPCB VIII Associates, L.P., its
General Partner
By: /s/ L. Xxxx Xxxxx
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a General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB VIII FOUNDERS FUND, L.P.,
By: KPCB VIII Associates,
L.P., its General Partner
By: /s/ L. Xxxx Xxxxx
---------------------------------
a General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB LIFE SCIENCES ZAIBATSU FUND
II, L.P.,
By: KPCB VII Associates, L.P., its
General Partner
By: /s/ L. Xxxx Xxxxx
---------------------------------
a General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
XXXXXX.XXX, INC.,
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
Address: 0000 0xx Xxxxxx
Xxxxxxx, XX 00000
XXXXX XXXXXXX,
By: /s/ Xxxxx Xxxxxxx
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Address: 00000 XX 00xx Xxxxx
Xxxxxxx, XX 00000
MAVERON EQUITY PARTNERS, L.P.
By: __________________________________
Address: 000 Xxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
EXHIBIT A
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INVESTORS
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Name and Address
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Rite Aid Corporation
00 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
General Nutrition Companies, Inc.
000 0xx Xxxxxx
Xxxxxxxxxx, XX 00000
Vulcan Ventures Incorporated
000xx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VIII
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB VIII Founders Fund, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
KPCB Life Sciences Zaibatsu Fund II, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxx
c/x Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Xxxxxx.xxx, Inc.
0000 0xx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Xxxxx X. Xxxxxxx
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
Maveron Equity Partners, L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Liberty DS, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
