WAIVER AND AMENDMENT NO. 1 TO THE AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT, THE AMENDED AND RESTATED VOTING AGREEMENT AND THE AMENDED AND RESTATED FIRST REFUSAL AND CO-SALE AGREEMENT
Exhibit 4.4
WAIVER AND AMENDMENT NO. 1 TO
THE AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT,
THE AMENDED AND RESTATED VOTING AGREEMENT AND
THE AMENDED AND RESTATED FIRST REFUSAL AND CO-SALE AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 TO THE AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT, THE AMENDED AND RESTATED VOTING AGREEMENT AND THE AMENDED AND RESTATED FIRST REFUSAL AND CO-SALE AGREEMENT (the “Amendment”) is made as of November 12, 2010, by and among RPX Corporation, a Delaware corporation (the “Company”) and the undersigned holders of the Company’s capital stock (the “Stockholders”).
RECITALS
WHEREAS, the Company and the Stockholders are parties to that certain Amended and Restated Investors’ Rights Agreement, that certain Amended and Restated Voting Agreement and that certain Amended and Restated First Refusal and Co-Sale Agreement, each dated July 15, 2009 (the “Investors’ Rights Agreement,” the “Voting Agreement” and the “Co-Sale Agreement,” respectively, and together, the “Transaction Documents”);
WHEREAS, pursuant to Section 3.8 of the Investors’ Rights Agreement, the Investors’ Rights Agreement may be amended only with the written consent of (i) the Company and (ii) the holders of at least fifty-five percent (55%) of the Registrable Securities (as defined in the Investors’ Rights Agreement);
WHEREAS, pursuant to Section 16 of the Voting Agreement, the Voting Agreement may be amended only with the written consent of (i) the Company, (ii) the holders of a majority of the then outstanding voting securities held by the Founders (as defined in the Voting Agreement) who are then providing services to the Company as an employee or consultant and (iii) the holders of at least fifty-five percent (55%) of the then outstanding voting securities held by the Investors (as defined in the Voting Agreement);
WHEREAS, pursuant to Section 10 of the Co-Sale Agreement, the Co-Sale Agreement may be amended only with the written consent of (i) the Company, (ii) the Founders (as defined in the Co-Sale Agreement) holding a majority of the Common Stock of the Company then held by the Founders who are then providing services to the Company as an employee or consultant and (iii) Investors (as defined in the Co-Sale Agreement) holding at least fifty-five percent (55%) of the Common Stock issuable or issued upon conversion of the shares of Preferred Stock;
WHEREAS, the Company is selling shares of Series C Preferred Stock to certain of the Stockholders;
WHEREAS, the Company and the Stockholders desire to amend the Transaction Documents as set forth herein to include shares of Series C Preferred Stock in the definitions of Preferred Stock; and
WHEREAS, the Stockholders represent the voting power required under each of the Transaction Documents to amend the Transaction Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree to the following:
1. Definitions. All capitalized terms used herein without definition shall have the meanings ascribed to them in the respective Transaction Documents, as applicable.
2. Amendment to the Investors’ Rights Agreement.
(a) Pursuant to Section 3.8 of the Investors’ Rights Agreement, the definition of “Preferred Stock,” as set forth in the recitals of the Investors’ Rights Agreement, is hereby amended and restated to include the following: Series A Preferred Stock, Series A-1 Preferred Stock, Series B Preferred Stock and Series C Preferred Stock.
(b) Pursuant to Section 3.8 of the Investors’ Rights Agreement and upon the execution of a counterpart signature page, Schedule A of the Investors’ Rights Agreement is hereby amended to add SLF Partners ‘10, LLC as a party, such that SLF Partners ‘10, LLC shall be deemed an Investor under the Investors’ Rights Agreement, with all accompanying rights, privileges and obligations.
3. Amendments to the Voting Agreement.
(a) Pursuant to Section 16 of the Voting Agreement, the definition of “Preferred Stock,” as set forth in the first paragraph of the Voting Agreement, is hereby amended and restated to include the following: Series A Preferred Stock, Series A-1 Preferred Stock, Series B Preferred Stock and Series C Preferred Stock.
(b) Pursuant to Section 16 of the Voting Agreement and upon the execution of a counterpart signature page, Schedule A of the Voting Agreement is hereby amended to add SLF Partners ‘10, LLC as a party, such that SLF Partners ‘10, LLC shall be deemed an Investor under the Voting Agreement, with all accompanying rights, privileges and obligations.
4. Amendments to the Co-Sale Agreement. Pursuant to Section 10 of the Co-Sale Agreement and upon the execution of a counterpart signature page, Exhibit A of the Co-Sale Agreement is hereby amended to add SLF Partners ‘10, LLC as a party, such that SLF Partners ‘10, LLC shall be deemed an Investor under the Co-Sale Agreement, with all accompanying rights, privileges and obligations.
5. Waiver of Right of First Offer. Each of the undersigned Stockholders who is a Major Investor (as defined in the Investors’ Rights Agreement) hereby irrevocably waives, on behalf of itself and all other Major Investors, the right of first offer set forth in Section 2.4 of the Investors’ Rights Agreement, and all related notice periods or notice rights, with respect to the issuance of Series C Preferred Stock pursuant to the Series C Preferred Stock Purchase Agreement on or about the date hereof.
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6. Waiver of Right of First Refusal and Co-Sale. Each of the undersigned Stockholders who is an Investor (as defined in that certain Amended and Restated First Refusal and Co-Sale Agreement, dated July 15, 2009 (the “Co-Sale Agreement”)) hereby irrevocably waives, on behalf of itself and all other Investors, and their successors and assigns, all rights to notice, rights of first refusal and co-sale rights set forth in Sections 2 and 3 of the Co-Sale Agreement or otherwise, with respect to the repurchase of 488,433 shares of Common Stock by the Company from certain stockholders of the Company on or about the date hereof.
7. Effect of Amendment. Except as amended as set forth above, the Transaction Documents shall continue in full force and effect.
8. Counterparts. This Amendment may be signed in counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed one and the same document.
9. Governing Law. This Amendment 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| RPX CORPORATION | ||||||
| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: |
▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| Title: |
Chief Executive Officer | |||||
| Address: |
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
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| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||||
| STOCKHOLDER | ||||||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| [Address] | ||||||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| STOCKHOLDERS: | ||||
| /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| [Address] | ||||
| /s/ ▇▇▇▇ ▇▇▇ | ||||
| ▇▇▇▇ ▇▇▇ | ||||
| [Address] | ||||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| STOCKHOLDERS: | ||||||
| INDEX VENTURES GROWTH I (JERSEY), L.P | ||||||
| By: its Managing General Partner: | ||||||
| Index Venture Growth Associates I Limited | ||||||
| By: |
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
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Director Director | ||||||
| INDEX VENTURES GROWTH I PARALLEL ENTREPRENEUR FUND (JERSEY), L.P | ||||||
| By: its Managing General Partner: | ||||||
| Index Venture Growth Associates I Limited | ||||||
| By: |
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||||
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Director Director | ||||||
| Address: |
Index Venture Growth Associates I Limited | |||||
| No ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| ▇▇ ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ | ||||||
| Channel Islands | ||||||
| Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| STOCKHOLDERS: | ||||||
| INDEX VENTURES IV (JERSEY), L.P | ||||||
| By: its Managing General Partner: | ||||||
| Index Venture Associates IV Limited | ||||||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| Alternate Director | ||||||
| INDEX VENTURES IV PARALLEL ENTREPRENEUR FUND (JERSEY), L.P | ||||||
| By: its Managing General Partner: | ||||||
| Index Venture Associates IV Limited | ||||||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||||
| Alternate Director | ||||||
| Address: |
Index Venture Associates IV Limited ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Channel Islands Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ | |||||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| STOCKHOLDERS: | ||||||
| ▇▇▇▇▇▇▇ RIVER PARTNERSHIP XIII, LP | ||||||
| By: ▇▇▇▇▇▇▇ River XIII GP, LP | ||||||
| Its General Partner | ||||||
| By: |
▇▇▇▇▇▇▇ River XIII GP, LLC | |||||
| Its General Partner | ||||||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Authorized Manager | ||||||
| ▇▇▇▇▇▇▇ RIVER FRIENDS XIII-A, LP | ||||||
| By: ▇▇▇▇▇▇▇ River XIII GP, LLC | ||||||
| Its General Partner | ||||||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| Authorized Manager | ||||||
| Address: |
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ | |||||
| ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||||
| with a copy to: ▇▇▇▇▇ ▇▇▇▇ | ||||||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| STOCKHOLDER: | ||||
| KPCB HOLDINGS, INC., AS NOMINEE | ||||
| By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Its: President | ||||
| Address: |
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement, the Amended and Restated Voting Agreement and the Amended and Restated First Refusal and Co-Sale Agreement as of the date first above written.
| STOCKHOLDER: | ||||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ROLLOVER | ||||||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||||
| Name: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||||
| Title: |
Authorized Signatory | |||||
| Address: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Rollover | |||||
| JPMCC Custodian | ||||||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ | ||||||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||||
SIGNATURE PAGE TO THE WAIVER AND AMENDMENT NO. 1 TO
THE INVESTORS’ RIGHTS AGREEMENT, THE VOTING AGREEMENT
AND THE CO-SALE AGREEMENT OF RPX CORPORATION