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EXHIBIT 4.3
▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
SECOND ADDENDUM TO
FOURTH AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
This Second Addendum (this "Addendum") dated as of July 26, 1999, to
the Fourth Amended and Restated Investors' Rights Agreement dated as of May 18,
1999 (the "Rights Agreement"), by and among ▇▇▇▇▇▇▇▇▇.▇▇▇, 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 ▇▇▇▇▇▇.▇▇▇, Inc. ("▇▇▇▇▇▇.▇▇▇") 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 ▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇ 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
▇▇▇▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇ pursuant
to the Amazon Private Placement and shares of Common Stock given to the
▇▇▇▇▇▇▇▇▇.▇▇▇ Foundation by the Company shall be deemed to be "Registrable
Securities" for all purposes and subject to all conditions of the Rights
Agreement. The ▇▇▇▇▇▇▇▇▇.▇▇▇ 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 ▇▇▇▇▇▇.▇▇▇ in the Amazon Private Placement and the transfer of shares for no
consideration to the ▇▇▇▇▇▇▇▇▇.▇▇▇ Foundation.
3. This Addendum shall become effective 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
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(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]
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EXHIBIT A
INVESTORS
Name and Address
-------------------------------------------------------------
Rite Aid Corporation
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
General Nutrition Companies, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vulcan Ventures Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
KPCB VIII Founders Fund, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
KPCB Life Sciences Zaibatsu Fund II, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Maveron Equity Partners, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Maveron Equity Partners, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Liberty DS, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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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:
▇▇▇▇▇▇▇▇▇.▇▇▇, INC., RITE AID CORPORATION,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. Grass
---------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. Grass
President Title: Chairman of the Board & CEO
Address: Address:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GENERAL NUTRITION COMPANIES, INC.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP
Address:
------------------------------------
------------------------------------
VULCAN VENTURES INCORPORATED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII, L.P.,
By: KPCB VIII Associates, L.P., its General Partner
By: /s/ L. ▇▇▇▇ ▇▇▇▇▇
------------------------
a General Partner
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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KPCB VIII FOUNDERS FUND, L.P.,
By: KPCB VIII Associates, L.P., its General Partner
By: /s/ L. ▇▇▇▇ ▇▇▇▇▇
-----------------------
a General Partner
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
KPCB LIFE SCIENCES ZAIBATSU FUND II, L.P.,
By: KPCB VII Associates, L.P., its General Partner
By: /s/ L. ▇▇▇▇ ▇▇▇▇▇
-----------------------
a General Partner
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: V.P. Corporate Development
Address:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Address:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇ FOUNDATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
Address:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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MAVERON EQUITY PARTNERS, L.P.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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