AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit 6
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Amendment No. 2, dated as of November 15, 2007 (this “Amendment”), between
XXXXXXXXX.XXX, INC., a Delaware corporation (the “Company”), and AMERICAN STOCK TRANSFER &
TRUST COMPANY, a New York banking corporation, as Rights Agent (the “Rights Agent”).
WHEREAS, the Company and the Rights Agent entered into a Rights Agreement, dated as of May 14,
1999;
WHEREAS, the Company and the Rights Agent entered into Amendment No. 1 to Rights Agreement,
dated as of August 7, 2000 (as so amended, the “Rights Agreement”);
WHEREAS, there is not as of the date hereof any Acquiring Person (as defined in the Rights
Agreement); and
WHEREAS, the Company desires to further amend the Rights Agreement in accordance with Section
27 of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements set forth in the Rights
Agreement and this Amendment, the parties hereby agree as follows:
Section 1. Definition of “Exempt Person.” Section 1(kk) of the Rights Agreement is amended
and restated to read in its entirety as follows:
“(kk) “Exempt Person” shall mean: (i) Go2Net, Inc., a Delaware corporation, and
Vulcan Ventures, Inc., a Washington corporation, and their respective Affiliates and
Associates until such time as (x) any one of them becomes the Beneficial Owner of
any shares of Common Stock other than shares of Common Stock issued pursuant to the
Securities Purchase Agreement or (y) any one of them is in breach of Section 9.11 of
the Securities Purchase Agreement which breach is not waived by the Company in
accordance with the requirements of the Securities Purchase Agreement, in each case
as determined by the Board of Directors of the Company in its sole and absolute
discretion; and (ii) TCV VI, L.P., a Delaware limited partnership, (“TCV VI”) and
TCV Member Fund, L.P., a Delaware limited partnership (“TCV Member Fund”), and their
respective Affiliates and Associates until such time as any one of them becomes the
Beneficial Owner of any shares of the Company’s capital stock (A) other than shares
of Series B Preferred Stock or Warrants issued pursuant to the TCV Purchase
Agreement or shares of Common Stock received upon conversion of shares of Series B
Preferred Stock or upon exercise of the Warrants, or (B) that would result in a
breach of Section 4.2(a) of the TCV Purchase Agreement.”
Section 2. Definition of “Series B Preferred Stock” and “TCV Purchase Agreement.” Section 1
of the Rights Agreement is amended to insert after subsection (ll) thereof the following:
“(mm) “Series B Preferred Stock” shall mean the Company’s Series B Convertible
Preferred Stock, par value $0.01 per share.
“(nn) “TCV Purchase Agreement” shall mean that certain Securities Purchase Agreement
dated as of November 15, 2007 among the Company, TCV VI, L.P., a Delaware limited
partnership, and TCV Member Fund, L.P., a Delaware limited partnership.
“(oo) “Warrants” shall mean the warrants to purchase Common Stock issued pursuant to
the TCV Purchase Agreement.”
Section 3. Rights Agreement as Amended. The term “Agreement” as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby. The foregoing amendments shall
be effective as of the date hereof and, except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected hereby.
Section 4. Counterparts. This Amendment may be executed in any number of counterparts, and
each of such counterparts shall for all purposes be deemed an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 5. Governing Law. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts made and to be performed entirely within such
State.
Section 6. Descriptive Headings. Descriptive headings of the several Sections of the
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the day and year first above written.
| XXXXXXXXX.XXX, INC. | ||||
| By: | ||||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||
| Title: | Chairman of the Board |
|||
| and Chief Executive Officer | ||||
| AMERICAN STOCK TRANSFER & | ||||
| TRUST COMPANY, as Rights Agent | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
