EXHIBIT 10.32
XXXXXXXXX.XXX, INC.
FORM OF SECOND ADDENDUM TO
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Second Addendum (this "Addendum") dated as of July __, 1999, to the
--------
Fourth Amended and Restated Investors' Rights Agreement dated as of May 18, 1999
(the "Rights Agreement"), by and among xxxxxxxxx.xxx, inc., a Delaware
----------------
corporation (the "Company") and the parties listed on Exhibit A hereto hereby
-------
adds certain securities to the definition of "registrable securities" under the
Rights Agreement. A prior Addendum to the Rights Agreement dated as of June 17,
1999 remains in full force and effect.
Recitals
--------
A. The Company and Xxxxxx.xxx, Inc. ("Xxxxxx.xxx") have entered into
----------
a letter agreement (the "Letter Agreement"), a copy of which is attached as
----------------
Exhibit B hereto, pursuant to which the Company will sell to Xxxxxx.xxx and
Xxxxxx.xxx will purchase from the Company $10,000,000 of shares of the Company's
Common Stock in a private placement transaction to be closed concurrently with
the closing of the Company's initial public offering of Common Stock (the
"Amazon Private Placement"). The Company and the Investors party to the Rights
-------------------------
Agreement are willing to grant Xxxxxx.xxx registration rights with regard to
such shares.
B. On July 9, 1999, the Company's board of directors resolved to
contribute 200,000 shares of Common Stock with registration rights to the
xxxxxxxxx.xxx Foundation.
C. 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 presently outstanding, thereby permitting the Rights
Agreement be amended hereby.
D. Capitalized terms used herein and not defined shall have the meanings
given to them in the Rights Agreement.
Agreement
---------
1. The parties agree that for purposes of Section 1 of the Rights
Agreement, shares of Common Stock of the Company issued to Xxxxxx.xxx pursuant
to the Amazon Private Placement and shares of Common Stock given to the
xxxxxxxxx.xxx Foundation by the Company shall be deemed to be "Registrable
Securities" for all purposes and subject to all conditions of the Rights
Agreement. The xxxxxxxxx.xxx Foundation shall become a party to the Rights
Agreement upon execution of this Addendum.
2. Each Investor hereby waives its right of first offer under Section 2.3
of the Rights Agreement with respect to the sale of shares of Common Stock to
Xxxxxx.xxx in the Amazon Private Placement and the transfer of shares for no
consideration to the xxxxxxxxx.xxx Foundation.
3. This Addendum shall become effective only upon the closing of the
Amazon Private Placement. 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 if the Amazon Private
Placement is not consummated prior to November 30, 1999. If such termination
occurs, 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]
-2-
The parties have executed this Second 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: _____________________________ By: _______________________________
Xxxxx X. Xxxxxxx Name:
President Title:
Address: Address:
00000 XX Xxxxxxxx Xxx 00 Xxxxxx Xxxx
Xxxxx 000 Xxxx Xxxx, XX 00000
Xxxxxxxx, XX 00000
GENERAL NUTRITION COMPANIES, INC.,
By: _______________________________
Name:
Title:
Address:
___________________________________
___________________________________
VULCAN VENTURES INCORPORATED,
By: _______________________________
Name:
Title:
Address:
000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXX XXXXXXX XXXXXXXX & XXXXX
VIII, L.P.,
By: KPCB VIII Associates, L.P., its
General Partner
By: __________________________________
a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
-3-
KPCB VIII FOUNDERS FUND, L.P.,
By: KPCB VIII Associates, L.P., its
General Partner
By: _______________________________
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: ________________________________
a General Partner
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, , XX 00000
XXXXXX.XXX, INC.
By: ________________________________
Name:
Title:
Address:
0000 0xx Xxxxxx
Xxxxxxx, XX 00000
XXXXX XXXXXXX
By: ________________________________
Address:
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
XXXXXXXXX.XXX FOUNDATION
By: _________________________
Name:
Title:
Address:
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
-4-
MAVERON EQUITY PARTNERS, L.P.
By: _____________________________
Name:
Title:
Address:
000 Xxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
-5-
EXHIBIT A
---------
INVESTORS
---------
Name and Address
---------------------------------------------------------
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
-0-
Xxxxxxx, XX 00000
Liberty DS, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
-2-
