Exhibit 4.5
FORM OF
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
XXXXXXXX.XXX, INC.
April 9, 1999
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT (the
"Amendment") is entered into as of the 9th day of April 1999, by and among
xxxxxxxx.xxx, inc., a Delaware corporation (the "Company"), Dancing Bear
Investments, Inc. ("Xxxx"), Xxxx x. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxx and the
Series A Investors, as defined in the Registration Rights Agreement, dated
September 1, 1998 (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:
- - - - - - - - - -
WHEREAS, the Holders hold registration and information rights pursuant
to the Agreement; 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:
I. The Investors hereby waive on behalf of all of the Holders any
violation of the Agreement which may occur by the Company failing to notify
the Holders prior to filing a Registration Statement on Form S-1 during
April 1999.
II. The first paragraph of Section 2.1 of the Agreement is hereby
deleted in its entirety and is replaced with the following:
2.1 PIGGYBACK REGISTRATIONS. The Company shall notify
all Holders in writing within five (5) days following the
filing of any registration statement under the Securities
Act for purposes of a public offering of securities (other
than non-convertible debt securities) of the Company
(including, but not limited to, registration statements
relating to secondary offerings of securities of the
Company, but excluding registration statements relating to
employee benefit plans or with respect to corporate
reorganizations or shares issued in connection with any
merger or acquisition (which shall include any resale
registration statement for such issued shares and any
acquisition shelf registration statement for shares which
may be issued in connection with any merger or acquisition
transaction), including other transactions under Rule 145 of
the Securities Act) and will afford each such Holder an
opportunity to include in such registration statement all or
part of such Registrable Securities held by such Holder.
Each Holder desiring to include in any such registration
statement all or any part of the Registrable Securities held
by it shall, within ten (10) days after the above-described
notice from the Company, so notify the Company in writing.
Such notice shall state the maximum number of Registrable
Securities intended to be included in such registration and
the intended method of disposition of the Registrable
Securities by such Holder. If a Holder decides not to
request inclusion of all of its Registrable Securities in
any registration statement thereafter filed by the Company,
such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent such
registration statement or registration statements as may be
filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth
herein.
Paragraph 2.1(a) of the Agreement is hereby deleted in its entirety
and is replaced with the following:
(a) UNDERWRITING. If the registration statement under
which the Company gives notice under this Section 2.1 is for
an underwritten offering, the Company shall so advise the
Holders. In such event, the right of any such Holder to be
included in a registration pursuant to this Section 2.1
shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent
provided herein except that such Holder shall not be
permitted to withdraw such Holder's shares from any
underwriting pursuant to the registration statement
following the fifth day prior to the printing of the
preliminary prospectus related to such registration
statement or as otherwise provided in the custody agreement.
Each Holder proposing to distribute its Registrable
Securities through such underwriting shall enter into a
custody agreement and power of attorney, authorizing the
Company or an employee thereof to act as the Holder's
attorney-in-fact to (i) sell the Registrable Securities to
be offered by such Holders and (ii) execute on the Holder's
behalf (x) an underwriting agreement in customary form with
the underwriter or underwriters selected for such
underwriting by the Company and (y) any other closing
certificates or similar documents requested by the
underwriter. The custody agreement may contain such other
terms as are customary for this type and shall require the
Holder to deposit its shares of Common Stock being
registered with the custodian for the time periods specified
in the custody agreement. Each Holder agrees that its shares
will be sold at the same price as the other selling
stockholders (and the Company, if applicable) in the
offering under the registration statement. If any Holder is
or will be unable to deliver any document (including any
underwriting agreement, legal opinions or closing
certificates) reasonably required by the underwriters in
connection with the sale of such Registrable Securities,
including, but not limited to legal opinions and other
closing certificates, then the Company shall have no
obligation to include such Registrable Securities in such
registration. Notwithstanding any other provision of the
Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of
shares to be underwritten, the number of shares that may be
included in the underwriting shall be allocated as follows:
first, to the Company for its own account; and second, to
any Holder or other stockholder of the Company who has
registration rights, each on a pro rata basis in accordance
with the terms of their respective agreement providing for
registration rights with the Company. No such reduction
shall reduce the securities being offered by the Company for
its own account to be included in the registration and
underwriting.
Section 2.10 of the Agreement is hereby deleted in its entirety and is
replaced with the following:
2.10 "MARKET STAND-OFF" AGREEMENT. In the case of any
underwritten public offering by the Company of shares of
Common Stock, whether for its own account or for the account
of any stockholder of the Company, each Holder agrees that,
during a period of seven (7) days prior to and ninety (90)
days following the effective date of a registration
statement filed in connection with such offering, such
Holder will not, without the prior written consent of the
Company, sell or otherwise transfer or dispose of any shares
of Common Stock (or other securities) of the Company held by
each such Holder (other than those included in the
registration). The Company shall give notice of such
restriction in the manner set forth in Section 4.7. Upon the
request of the underwriters for any underwritten public
offering of Common Stock of the Company referred to above,
each Holder hereby agrees to deliver a "lock-up" or "market
stand-off" agreement signed by such Holder which is
equivalent in substance to the agreement set forth in this
Section 2.10 addressed to such underwriter. Any such
underwriter shall expressly be deemed to be a third party
beneficiary of this Section 2.10.
The obligations described in this Section 2.10 shall
not apply to (i) transfers to a Holder's family member or
trust for the benefit of an individual Holder or family
member, or (ii) a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms that
may be promulgated in the future, or a registration relating
solely to shares issued in an acquisition or pursuant to a
Commission Rule 145 transaction (including the registration
for resale of securities issued in a Rule 145 transaction or
other acquisition transaction) on Form S-1 or Form S-4 under
the Securities Act or similar forms that may be promulgated
in the future, unless in any such case such registration is
in connection with an underwritten public offering. The
Company may impose stop-transfer instructions with respect
to the shares of Common Stock (or other securities) subject
to the foregoing restriction until the end of such
restrictive period.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 to Registration Rights Agreement as of the date set forth
above.
xxxxxxxx.xxx, inc. Dancing Bear Investments, Inc.
By: By:
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Name: Name: Xxxxxxx Xxxx
Title: Title:
By:
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Name: Xxxxxx Xxxxxxxx
Title:
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Xxxxx Xxxxxxxx
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Xxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxx
