EXHIBIT 4
AMENDMENT OF
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT OF AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT (this
"Amendment") is made and entered into as of October 13, 1999, by and between
XxxxxxXx.xxx, Inc., a Delaware corporation (the "Company"), XxxxXxxxxxxx.xxx,
Inc., a Delaware corporation ("YPC"), and the investors listed on Schedule A
(the "Investors") to that certain Amended and Restated Investors' Rights
Agreement, dated as of September 3, 1999, by and among the Company and the
Investors (the "Investors' Rights Agreement").
WHEREAS, the Company, YPC PRX Holdings, Inc., PRX Acquisition Corp. and
Express Scripts, Inc. have entered into that certain Asset Contribution and
Reorganization Agreement dated as of August 31, 1999 (the "Asset Contribution
Agreement");
WHEREAS, pursuant to Section 4(h) of the Asset Contribution Agreement, the
Investors' Rights Agreement is to be amended to, among other things, add YPC as
a party; and
WHEREAS, pursuant to section 3.7 of the Investors' Rights Agreement, the
Investors' Rights Agreement may be amended with the written consent of the
Company and the holders of a majority of the Registrable Securities (as defined
in the Investors' Rights Agreement).
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Unless otherwise indicated, words and terms which are
defined in the Merger Agreement shall have the same meaning where used herein.
2. Addition of YPC as a Party. YPC is hereby added as a party to the
Investors' Rights Agreement, including, with out limitation, as a Holder under
Section 1.1(b) thereof, with all corresponding benefits and obligations, and the
Schedule of Investors, attached thereto as Exhibit A, shall be amended to
include YPC.
3. Amendment to Section 1.4. The introductory language to Section 1.4 of
the Investors' Rights Agreement is hereby amended to read in its entirety:
"1.4Form S-3 Registration. In case the Company shall receive from either
(i) the Holders of at least thirty percent (30%) of the Registrable Securities
or (ii) the Holders of Registrable Securities with an anticipated aggregate
offering price of at least $2,000,000 a written request or requests that the
Company effect a registration on Form S-3 (or similar or successor form) and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company shall:"
4. Amendment to Section 1.14. Section 1.14 of the Investors' Rights
Agreement is hereby amended to read in its entirety:
"1.14 Termination of Registration Rights. No Holder shall be entitled to
exercise any right provided for in this Section 1 after three (3) years
following the consummation of the Initial Offering or, as to any Holder, such
earlier time at which all Registrable Securities held by such Holder (and any
affiliate of the Holder with whom such Holder must aggregate its sales under
Rule 144) can be sold in any three (3)-month period without registration in
compliance with Rule 144 of the Act. Notwithstanding the foregoing and solely
with respect to XxxxXxxxxxxx.xxx, Inc., the registration rights provided for in
this Section 1 shall not terminate until five (5) years following the
consummation of the Initial Offering.
5. Continued Validity of Investors' Rights Agreement. Except as amended
hereby, the Investors' Rights Agreement shall continue in full force and effect
as originally constituted and is ratified and affirmed by the parties hereto.
6. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
7. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
COMPANY:
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
YPC:
XXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Chairman of the Board of Directors
