EXHIBIT 4.3
REDENVELOPE, INC.
OMNIBUS AMENDMENT TO INVESTORS' RIGHTS AGREEMENT, RIGHT OF FIRST
REFUSAL AND CO-SALE AGREEMENT AND VOTING AGREEMENT
This Omnibus Amendment to Investors' Rights Agreement, Right of First
Refusal and Co-Sale Agreement and Voting Agreement (this "Amendment") is made as
of is made as of May 29, 2003 by and among RedEnvelope, Inc., a Delaware
corporation (the "Company"), and the undersigned parties hereto. This Amendment
amends the Company's Amended and Restated Investors' Rights Agreement (the
"Rights Agreement"), Amended and Restated Right of First Refusal and Co-Sale
Agreement (the "Co-Sale Agreement") and Amended and Restated Voting Agreement
(the "Voting Agreement", and together with the Rights Agreement and the Co-Sale
Agreement, the "Agreements") each dated as of April 17, 2002.
RECITALS
WHEREAS, the Company and the undersigned parties hereto wish to amend
the Agreements as set forth below;
WHEREAS, under Section 3.7 of the Rights Agreement, the Company may
amend the Agreement as contemplated hereunder only with the written consent of
the Company and the holders of a majority of the shares of Common Stock issuable
or issued upon conversion of the Series B, Series C, Series D, Series E and
Series F Preferred Stock;
WHEREAS, under Section 3.5 of the Co-Sale Agreement, the Company may
amend the Agreement as contemplated hereunder only with the written consent of
the Company, the Founders (as defined in the Co-Sale Agreement) holding a
majority of the Company Common Stock held, or issuable upon conversion of
Preferred Stock held, by all Founders and the holders of a majority of the
Series B, Series C, Series D, Series E and Series F Preferred Stock voting
together (including any Common Stock then held by the such holders issued upon
conversion of such Series B, Series C, Series D, Series E and Series F Preferred
Stock);
WHEREAS, under Section 2.6 of the Voting Agreement, the Company may
amend the Agreement as contemplated hereunder only with the written consent of
the Company and the holders of a majority of the Preferred Stock of the Company;
and
WHEREAS, the foregoing requirements will be satisfied by execution of
this Amendment by the undersigned parties.
NOW, THEREFORE, IT IS AGREED THAT:
1. Amendments to Rights Agreement.
1.1 Section 1.1(b) of the Rights Agreement is hereby amended by
deleting such sub-section in its entirety and replacing it with the following:
"(b) The term "Registrable Securities" means (i) the shares of
Common Stock issuable or issued upon conversion of the Company's Series
B Preferred Stock, (ii) the shares of Common Stock issuable or issued
upon conversion of the Company's Series C Preferred Stock, (iii) the
shares of Common Stock issuable or issued upon conversion of the
Company's Series D Preferred Stock, (iv) the shares of Common Stock
issuable or issued upon conversion of the Company's
Series E Preferred Stock, (v) the shares of Common Stock issuable or
issued upon conversion of the Company's Series F Preferred Stock
(together with the Series B, the Series C, the Series D and the Series
E Preferred Stock, the "Stock"), (vi) the shares of Common Stock
issuable or issued upon conversion of the Company's Series A Preferred
Stock (the "Founders' Stock"); provided, however, that for the purposes
of Sections 1.2 and 1.12 hereof, the Founders' Stock shall not be
deemed Registrable Securities and the Founders shall not be deemed
Holders, (vii) any other shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right
or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, the Stock or
the Founders' Stock, (viii) 209,104 shares of Common Stock issued or
issuable upon exercise of outstanding warrants held by certain of the
Prior Investors, issued in connection with the Series B Preferred
Stock, (ix) 9,282 shares of Common Stock issued or issuable upon
exercise of a warrant held by Comdisco, Inc., (x) 200,000 shares of
Common Stock issued or issuable upon exercise of a warrant held by
Lighthouse Capital Partners, (xi) the shares of Common Stock issuable
or issued upon conversion of the Series F Preferred Stock issuable or
issued upon exercise of a warrant dated as of April 17, 2002 held by
Camelot Ventures LLC, (xii) the shares of Common Stock issuable or
issued upon conversion of the Series F Preferred Stock issuable or
issued upon exercise of a warrant dated as of September 6, 2002 held by
Lighthouse Capital Partners, provided, however, that the foregoing
definition shall exclude in all cases any Registrable Securities sold
by a person in a transaction in which such person's rights under this
Agreement are not assigned. Notwithstanding the foregoing, shares of
Common Stock or other securities shall only be treated as Registrable
Securities if and so long as (A) they have not been sold to or through
a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (B) they have not been sold in a transaction
exempt from the registration and prospectus delivery requirements of
the Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon
the consummation of such sale, or (C) the registration rights with
respect to such securities have not terminated pursuant to Section
1.15;"
1.2 Section 1.1(e) of the Rights Agreement is hereby amended by
deleting such sub-section in its entirety and replacing it with the following:
"(e) The term "Qualified Public Offering" shall mean the Company's
sale of its Common Stock in a firm commitment underwritten public
offering pursuant to a registration statement under the Securities Act
of 1933, as amended, the public offering price of which is not less
than (x) $0.80 per share, if such sale shall occur on or prior to
October 15, 2003, or (y) $1.5952 per share, if such sale shall occur
after October 15, 2003 (in either case, such minimum price adjusted to
reflect subsequent stock dividends, stock splits, combinations,
recapitalizations or the like) and which results in either case in
aggregate cash proceeds to the Company of at least $20,000,000 (gross
proceeds before deducting of underwriting discounts and commissions)."
1.3 Section 2.4(d) of the Rights Agreement is hereby amended by
deleting such sub-section in its entirety and replacing it with the following:
"(d) The right of first offer in this Section 2.4 shall not be
applicable (i) to the issuance or sale of shares of Common Stock, or
options therefor, to employees, consultants and directors of the
Company, pursuant to plans or agreements approved by the Board of
Directors for the primary purpose of soliciting or retaining their
services, (ii) to or after consummation of the sale of securities
pursuant to a Qualified Public Offering, (iii) to the issuance of
securities pursuant to the conversion or exercise of convertible or
exercisable securities, (iv) capital stock or warrants or options to
purchase capital stock issued as consideration for bona fide
acquisitions, mergers or similar transactions, the terms of which are
approved by the Board of Directors of the Company, (v) to the issuance
of securities to financial institutions or lessors in connection with
commercial
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credit arrangements, equipment financings, commercial property lease
transactions or similar transactions approved by the Board of
Directors, (vi) upon and subsequent to the closing of a Liquidation
Transaction, (vii) to the issuance of additional shares of Series F
Preferred Stock pursuant to Section 1.2(c) of the Purchase Agreement or
(viii) to the issuance of securities pursuant to a Board-approved stock
split or stock dividend."
2. Amendment to Co-Sale Agreement. Section 1.4 of the Co-Sale Agreement
is hereby amended by deleting such section in its entirety and replacing it with
the following:
"Section 1.4 Termination of Right of First Refusal and Co-Sale Right.
The Investors' Right of First Refusal and Co-Sale Right shall terminate
and be of no further force and effect immediately upon:
(a) the effectiveness of a Qualified Public Offering (as defined
in the Investors' Rights Agreement dated as of April 17, 2002 by and
between the Company, the Investors and the Founders, as such agreement
may be amended, modified or supplemented from time to time, the
"Investors' Rights Agreement"); or
(b) the closing of a Liquidation Transaction (as defined in the
Investors' Rights Agreement) of the Company."
3. Amendment to Voting Agreement. Section 1.4 of the Voting Agreement is
hereby amended by deleting such section in its entirety and replacing it with
the following:
"1.4 Termination of Voting Agreement. The provisions of this
Agreement shall terminate and be of no further force and effect upon
the effective date of a Qualified Public Offering (as defined in the
Investors' Right Agreement dated as of April 17, 2002 herewith by and
between the Company, the Investors and the Founders, as such agreement
may be amended, modified or supplemented from time to time, the
"Investors' Rights Agreement") or upon a Liquidation Transaction (as
defined in the Investors' Rights Agreement) of the Company."
4. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
5. Effect of Amendment. Except as amended as set forth above, the
Agreements shall continue in full force and effect.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Omnibus Amendment to
Investors' Rights Agreement, Right of First Refusal and Co-Sale Agreement and
Voting Agreement as of the date first written above.
COMPANY:
REDENVELOPE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. May
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Name: ▇▇▇▇▇▇ ▇. May
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Title: President & CEO
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PURCHASER:
MOUSSENVELOPE, L.L.C.
By: Moussescapade, L.P., Managing Member
By: Moussescribe, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
Address: c/o Mousse Partners Limited
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
WESTON PRESIDIO CAPITAL III, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
Address:
WPC ENTREPRENEUR FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
Address:
SEQUOIA CAPITAL IX
SEQUOIA CAPITAL ENTREPRENEURS FUND
SEQUOIA CAPITAL IX PRINCIPALS FUND
By: SC IX Management, LLC
A Delaware Limited Liability Company
General Partner of Each
By: /s/ [Illegible]
Managing Member
Address:
SEQUOIA CAPITAL FRANCHISE FUND
SEQUOIA CAPITAL FRANCHISE PARTNERS
By: SCFF Management, LLC
A Delaware Limited Liability
Company General Partner of Each
By: /s/ [Illegible]
Managing Member
Address:
SIPPL ▇▇▇▇▇▇▇▇▇ VENTURES II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: General Partner
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Address:
SIPPL ▇▇▇▇▇▇▇▇▇ VENTURES III, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: General Partner
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Address:
DIRECT EQUITY PARTNERS, L.P.
By: /s/ [Illegible]
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Name: __________________________________
Title: _________________________________
Address: Attn: Claire Gruppo
Direct Equity Partners
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Address:
CAPITAL RESEARCH & MANAGEMENT COMPANY,
ON BEHALF OF SMALL CAP WORLD FUND, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
Address:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ CAPITAL, G.P.
By: /s/ R. ▇▇▇ ▇▇▇▇▇▇▇
Name: R. ▇▇▇ ▇▇▇▇▇▇▇
Title: Partner
Address:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ LIVING TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Trustee
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Address:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address:
/S/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, TRUSTEE OF THE ▇▇▇▇▇▇
FAMILY FUND DATED APRIL 5, 1999
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: ▇▇▇▇▇▇ Family Fund Trustee
Address:
