EXHIBIT 10.32
FIRST AMENDMENT TO INVESTOR RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO INVESTOR RIGHTS AGREEMENT (this
"Amendment") is entered into as of October 28, 2002, by and among (i) ▇▇▇▇▇▇'▇
Acquisition Corp., a Delaware corporation (the "Company") and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇
& Partners III, L.P., ("WS"), for the purpose of amending the Investor Rights
Agreement between the Company, WS and certain other parties dated June 6, 2002
(the "Agreement"). Each capitalized term used but not otherwise defined herein
is used with the meaning given it in the Agreement.
The Agreement provides that it may be amended with the consent
and approval of the Company and the Majority ▇▇ ▇▇▇▇▇▇. WS is the Majority ▇▇
▇▇▇▇▇▇, as that term is defined in the Agreement.
The undersigned parties wish to amend the Agreement in certain
respects to accommodate its application to additional shares of Common Stock or
Preferred Stock that may be issued by the Company after the date of the
Agreement to persons who are not parties to the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Amendment
hereby agree as follows:
SECTION 1: AMENDMENTS TO THE AGREEMENT
The Agreement is hereby amended in the following respects:
1A. EXECUTIVE STOCK. The definition of "Executive Stock" in
Section 16 of the Agreement is amended by striking clause (i) thereof ("the
Common Stock issued to the Executive pursuant to the Executive Agreement") and
replacing said clause (i) with the following:
"(i) shares of Common Stock issued to an officer, employee
and/or director of the Company and/or ▇▇▇▇▇▇'▇, Inc. which,
pursuant to the agreement under which they are issued, are
"unvested" (as defined in such agreement), and . . ."
1B. STOCKHOLDER. The definition of "Stockholder" and
"Stockholders" in Section 16 of the Agreement is amended to read, in its
entirety, as follows:
" `Stockholder' or `Stockholders' means those Persons defined
as such in the Preamble, as well as any other Person who
acquires shares of Common Stock or Preferred Stock after the
date of the Agreement and signs a Joinder Agreement,
substantially in the form of Exhibit B attached hereto,
agreeing to become a party to the Agreement as a
`Stockholder'."
1C. FULLY DILUTED. The definition of "Fully Diluted Basis" in
Section 16 of the Agreement is amended by striking clause (i) thereof ("all
shares of such class of stock outstanding at such time plus ") and replacing
said clause (i) with the following:
"all shares of such class of stock outstanding at such time
(including, without limitation, shares which, pursuant to the
agreement under which they are issued, are "unvested" (as
defined in such agreement)), plus"
SECTION 2: MISCELLANEOUS
2A. EFFECTIVE DATE; AGREEMENT TO REMAIN IN EFFECT. This Amendment
shall be effective as of the date it is executed by the Company and WS. Subject
only to the amendments expressly provided herein, the Agreement shall remain in
full force and effect in accordance with its original terms.
2B. BINDING EFFECT. This Amendment shall bind and inure to the
benefit of and be enforceable by the Company and its successors and assigns, the
Stockholders who were parties to the Agreement prior to this Amendment, and any
subsequent Stockholders or holders of Stockholder Shares or Executive Stock and
the respective successors and assigns of each of them, so long as they hold
Stockholder Shares or Executive Stock.
2C. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment to Investor Rights Agreement on the day and year first above
written.
THE COMPANY: WS:
▇▇▇▇▇▇'▇ ACQUISITION CORP. ▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III-C, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-A, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-B, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: VP & Secretary By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.P.
--------------------- Its: General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.L.C.
Its: General Partner
By: /s/ Avy ▇. ▇▇▇▇▇
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Name: Avy ▇. ▇▇▇▇▇
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Title: Manager
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FORM OF TRANSFER NOTICE AND JOINDER AGREEMENT
[STOCK ISSUED BY THE COMPANY]
This notice is being delivered to ▇▇▇▇▇▇'▇ Acquisition Corp.,
a Delaware corporation (the "Company"), pursuant to the Investors Rights
Agreement, dated as of June 6, 2002 and amended by the First Amendment thereto
dated as of October 28, 2002 (as amended from time to time, the "Investor Rights
Agreement"), among the Company, ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III, L.P., a Delaware
limited partnership, and certain other stockholders of the Company who are from
time to time party thereto. Capitalized terms used herein shall have the
meanings assigned to such terms in the Investor Rights Agreement.
The undersigned hereby notifies the Company that __________
has acquired _______ Stockholder Shares (all of which are Common Stock). In
connection with such transfer, the undersigned hereby becomes a party to the
Investor Rights Agreement as a "Stockholder" thereunder, and agrees to be bound
by the provisions of the Investor Rights Agreement affecting such Stockholder
Shares.
Any notice provided for in the Investor Rights Agreement
should be delivered to the undersigned at the address set forth below:
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Telephone:
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Dated:
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[name]
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