1
EXHIBIT 10.3.1
FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Amendment") is dated February 29, 2000 by and among BOLT, INC.,
a Delaware corporation (the "Company"), SANDLER CAPITAL PARTNERS IV, L.P.; a
Delaware limited partnership ("SCP IV"), SANDLER CAPITAL PARTNERS IV FTE, L.P.,
a Delaware limited partnership ("SCP IV FTE" and, collectively with SCP IV,
"Sandler"), BECHTEL ENTERPRISES HOLDINGS, INC. a Delaware corporation (formerly
known as BECHTEL ENTERPRISES, INC.) ("Bechtel"), HIGHLAND CAPITAL PARTNERS IV
LIMITED PARTNERSHIP, a Delaware limited partnership ("HCP IV") HIGHLAND
ENTREPRENEURS FUND IV LIMITED PARTNERSHIP ("HEF IV" and, collectively with HCP
IV, "Highland"), OAK INVESTMENT PARTNERS VIII, LIMITED PARTNERSHIP, a Delaware
limited partnership ("Oak VIII"), OAK VIII AFFILIATES FUND, LIMITED PARTNERSHIP,
a Delaware limited partnership ("Oak Affiliates" and, collectively with Oak
VIII, "Oak"), MOORE GLOBAL INVESTMENTS, LTD., a Bahamian limited company
("Moore"), REMINGTON INVESTMENTS STRATEGIES, L.P., a Delaware limited
partnership ("Remington", and together with Moore, the "Moore Parties") and the
parties listed on Schedules 1, Schedule 2 and Schedule 3 hereto (the "Other
Investors").
WITNESSETH:
WHEREAS, the Company entered into that certain Stock Purchase Agreement
(the "Stock Purchase Agreement"), dated as of November 17, 1999 with the Moore
Parties and the parties listed on Schedule 1 thereto (the "Series C Investors"),
pursuant to which the Company agreed to issue and sell to the Series C Investors
shares of the Company's Series C Convertible Preferred Stock, par value $0.001
per share, (the "Series C Stock");
WHEREAS, the Company and the parties to the Amended and Restated
Registration Rights Agreement amended and restated in its entirety the Amended
and Restated Registration Rights Agreement in order to grant the Series C
Investors the same registration rights granted to the other parties to the
Amended and Restated Registration Rights Agreement;
WHEREAS, concurrently with the execution and delivery of this Amendment and
pursuant to a Stock Purchase Agreement (the "Ford Stock Purchase Agreement")
dated as of February 29, 2000 by and between the Company and Ford Motor Company
(the "Series D Investor"), the Company has agreed to issue and sell shares of
the Company's
1
2
Series D Convertible Preferred Stock, $0.001 par value per share (the "Series D
Stock"), subject to the terms and conditions set forth in the Ford Stock
Purchase Agreement;
WHEREAS, concurrently with the execution and delivery of this Amendment,
the Company has agreed to issue and sell a warrant for the purchase of up to
56,000 shares of common stock, par value $0.001 per share, to The Procter &
Gamble Company (the "Procter & Gamble Warrant");
WHEREAS, the Company and the parties to the Second Amended and Restated
Registration Rights Agreement agree to further amend the Second Amended and
Restated Registration Rights Agreement in order to grant the Series D Investor
certain registration rights and The Procter & Gamble Company certain
registration rights;
WHEREAS, the execution and delivery of this Amendment is a condition to the
consummation of the transactions contemplated by the Ford Stock Purchase
Agreement; and
WHEREAS, the provisions of the Second Amended and Restated Registration
Rights Agreement may be waived, amended, modified or terminated by approval of
the holders of a majority of the Series A Stock, Series B Stock and Series C
Stock, and the signatories hereto constitute such requisite percentage necessary
to approve the amendments contained herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby amend the Second Amended and Restated Registration
Rights Agreement and agree as follows:
1. Section 1.4 of Article 1 is hereby deleted and replaced with the
following:
1.4 "Holders" shall mean and include each of Bechtel, Sandler, Highland,
the Other Investors, Oak, the Series C Investors, the Series D Investor and The
Procter & Gamble Company and any person or entity that shall have executed this
Agreement and whose name appears on the Schedule of Registration Rights Holders
attached hereto as Exhibit A or who shall, pursuant to Section 11.3 hereof,
become a party hereto, and any permitted transferee under Article 9 hereof which
holds Registrable Securities; except that, for purposes of Section 2.1 of
Article 1 and Article 3, Holders shall not include the parties listed on
Schedule 3 hereto.
2. The definition of "Registrable Securities" set forth in Section 1.9 of
Article 1 is hereby deleted and replaced with the following:
1.9 "Registrable Securities" means any and all shares of Common
Stock: (i) issued or issuable upon conversion of the Series A Stock, the
Series B
2
3
Stock, the Series C Stock and the Series D Stock; (ii) issued or issuable
upon the exercise of the Procter & Gamble Warrant; (iii) issued or issuable
with respect to the Series A Stock, the Series B Stock, the Series C Stock,
the Series D Stock or Procter & Gamble Warrant upon any stock split, stock
dividend, combination, recapitalization, reclassification, merger,
consolidation or other similar event; and (iv) otherwise held or acquired
by any of Bechtel, Sandler, Highland, Oak, or the Series C Investors,
Series D Investor, or the Other Investors excluding in all cases, however,
Registrable Securities sold by a Holder to the public or pursuant to Rule
144 promulgated under the Securities Act (or any similar or analogous rule
promulgated under the Securities Act). For purposes of this Agreement, a
person will be deemed to be a Holder of Registrable Securities whenever
such person has the right to acquire directly or indirectly such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such
acquisition has actually been effected.
2. Article 1 is hereby amended to include the following definition:
1.16 "Series D Investor" shall mean the purchasers of Series D
Convertible Preferred Stock, par value $0.001 per share, of the Company
(the "Series D Stock") set forth on Schedule 2 attached hereto.
3. The first sentence of Section 2.2 of Article 2 is hereby deleted and
replaced with the following:
Request by Series C Investors and Series D Investor for
Registration. Beginning on the earlier of (i) the date which is 180 days
after the effective date of Series C Qualified Public Offering or (ii) the
date which is after November 17, 2001, upon the request of one or more of
the Series C Investors and/or Series D Investor who own in the aggregate
not less than forty percent of the Series C Stock and Series D Stock,
combined (the "Series C and D Initiating Holders"), such Series C and D
Initiating Holders may request registration in accordance with this Article
2; provided that, the Series C and D Initiating Holders may not request
registration pursuant to this Article 2 prior to the effective date of
Series C Qualified Public Offering unless such requested registration is
for a public offering of shares reasonably anticipated to have an aggregate
offering price to the public of at least $5,000,000. In the event the
Company shall receive from the Series C and D Initiating Holders a written
request that the Company effect any such registration, qualification or
compliance with respect to Registrable Securities, the Company will:
4. Section 2.2(c) of Article 2 is hereby deleted and replaced with the
following:
3
4
(c) Subject to the foregoing clauses (i) through (v), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the
request of the Series C and D Initiating Holders and provide notice to the
other Holders as required by Section 2.2(a); provided, however, that if the
Company shall furnish to such Holders a certificate signed by the Chairman
or Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be detrimental
to the Company and its stockholders for such registration statement to be
filed, the Company shall have the right to defer such filing for a period
of not more than 180 days after receipt of the request of such Series C and
D Initiating Holders; provided, further, that the Company shall not be
permitted to exercise such deferral right under this Section 2.2(c) or
Section 4.1(c) hereof more than once in any 365-day period.
5. Section 2.3(a) of Article 2 is hereby deleted and replaced with the
following:
(a) With respect to registrations initiated pursuant to Section 2.1
herein, the distribution of the Registrable Securities covered by the
request of the Holders shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. With respect to registrations
initiated pursuant to Section 2.2 herein, the distribution of Registrable
Securities covered by such request shall be effected by means of the method
selection by the holders of a majority of the Series C Investors and Series
D Investor, combined, holding Registrable Securities. If such distribution
is effected by means of an underwriting, the right of any Holder to
registration pursuant to this Article 2 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.
6. Article 10 is hereby amended to include the following:
10.3 In connection with the grant of registration rights to the
holders of the Series D Stock and to the Procter & Gamble Company pursuant
to this Agreement, each of Sandler, Bechtel, Highland, Oak, the Series C
Investors and the Other Investors agree and consent to waive the provisions
of Article 10 relating to limitations on registration rights granted to
other securities holders set forth in the Second Amended and Restated
Registration Rights Agreement.
7. Section 11.4 of Article 11 is hereby deleted and replaced with the
following:
4
5
11.4 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof. Subject to Sections 11.11, 11.12 and 11.13 herein, any
provision of this Agreement may be amended, waived or modified, and this
Agreement may be terminated, if, but only if, such amendment, waiver or
modification or termination is in writing and is signed by the holders of a
majority of the Series A Stock, Series B Stock and Series C Stock and
Series D Stock, combined, provided, however, that no amendment, waiver,
modification or termination may treat any holder that does not consent
thereto differently than a holder that does consent thereto; whenever any
provision of this Agreement requires action or approval by the holders of a
specified number of Series A Stock, Series B Stock or Series C Stock and
Series D Stock, combined, such action or approval may be evidenced by a
written consent executed by the requisite holders of Series A Stock, Series
B Stock or Series C Stock and Series D Stock, combined, without any
requirement of a meeting or prior notice to the other holders of such
shares.
8. Section 11.5 of Article 11 is hereby amended to include the following:
if to Ford:
Ford Motor Company
c/o Strategy and New Business Development
Ford World Headquarters
The American Road
Dearborn, MI 48121
Attention: John Kwant
Telephone: (313) 845-3100
Facsimile: (313) 594-0228
with a copy to (which shall not constitute notice):
Ford Motor Company
Office of the General Counsel
The American Road
Dearborn, MI 48121
Attention: Corporate Secretary
Telephone: (313) 322-3000
Facsimile: (313) 337-9591
5
6
if to The Procter & Gamble Company:
The Procter & Gamble Company
2 P&G Plaza
Cincinnati, OH 45202
9. Exhibit A is hereby amended to include the following:
1. The Procter & Gamble Company
10. Schedule 2 is hereby amended to include the following:
Purchasers of Series D Stock
1. Ford Motor Company
11. To add a Schedule 3 immediately following Schedule 2 which shall
include the following:
1. The Procter & Gamble Company
12. The parties hereby ratify and confirm all of the provisions of the
Second Amended and Restated Registration Rights Agreement, as amended hereby,
and agree and acknowledge that the same as so amended remains in full force and
effect.
13. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to its conflicts of law
provisions.
[Remainder of this page intentionally left blank]
6
7
This Amendment may be executed in multiple counterparts and shall be
and constitute the valid agreement of all of the parties executing the same
(even if some of the persons or institutions whose names are reflected on
the signature pages attached to this Amendment do not execute this
Amendment) with respect to any one or more of the provisions of this
Amendment set forth above at such time as this Amendment has been executed
by those parties whose execution of this Amendment is required under the
terms of the Second Amended and Restated Registration Rights Agreement to
make such provisions effective.
Executed as of the date above written.
SERIES A-1 STOCKHOLDERS: SERIES B-1 STOCKHOLDERS:
Bechtel Enterprises Holdings, Inc. SANDLER CAPITAL PARTNERS IV, L.P.
SANDLER CAPITAL PARTNERS IV,
FTE, L.P.
By: /s/ Robert Dove By: Sandler Investment Partners, L.P., the General Partner
---------------------------- By: Sandler Capital Management, the
General Partner
Robert Dove
SERIES A-2 STOCKHOLDERS: By: MJDM Corp., a General Partner
Bechtel Enterprises Holdings, Inc. By: /s/ Edward G. Grinacoff
-------------------------------
By: /s/ Robert Dove Edward G. Grinacoff
---------------------------- President
Robert Dove
HIGHLAND CAPITAL PARTNERS IV
LIMITED PARTNERSHIP
By: Highland Management Partners IV, LLC,
its General Partner
By: /s/ W. Crousbeck
-------------------------------
Name: W. Crousbeck
-----------------------------
Title: Managing Member, G.P.
-----------------------------
7
8
HIGHLAND ENTREPENEURS FUND IV ---------------------------------
LIMITED PARTNERSHIP Glenn M. Creamer
By: Highland Enterpreneurs Fund IV, LLC
Its General Partner 1998 KORNREICH CHILDREN'S TRUST
By: /s/ W. Crousbeck By: /s/ John Kornreich
----------------------------- -----------------------------
Name: W. Crousbeck Name:
---------------------------- Title:
Title: Managing Member, G.P.
--------------------------- PEABODY FAMILY VENTURES
/s/ Samantha McCuen By: /s/ William "Bo" S. Peabody
- --------------------------------- -----------------------------
Samantha McCuen Name: William "Bo" S. Peabody
Title: Managing Partner
- --------------------------------- PEABODY SABOT VENTURES
Jonathan M. Nelson
By: /s/ William "Bo" S. Peabody
-----------------------------
- --------------------------------- Name: William "Bo" S. Peabody
Paul J. Salem Title: Managing Partner
/s/ William "Bo" S. Peabody
---------------------------------
- --------------------------------- William "Bo" S. Peabody
Mark J. Masiello
SERIES B-2 STOCKHOLDERS:
-----------------------
- --------------------------------- OAK INVESTMENT PARTNERS VIII
Mark A. Pelson Limited Partnership
By: Oak Associates VIII, LLC,
its General Partner
- ---------------------------------
Alexander D. Evans By:
-----------------------------
Name:
- --------------------------------- ----------------------------
Raymond M. Mathieu Title:
---------------------------
- --------------------------------- OAK VIII AFFILIATES FUND
Michael J. Angelakis Limited Partnership
By: Oak VIII Affiliates, LLC
/s/ Frank Harrison its General Partner
- ---------------------------------
Frank Harrison By:
-----------------------------
/s/ Harvey Sandler Name:
- --------------------------------- -----------------------------
Harvey Sandler Title:
---------------------------
MJM ASSOCIATES L.P.
By: /s/ Michael J.Morocco
-----------------------------
Michael J. Marocco
General Partner
/s/ Andrew Sandler
- ---------------------------------
Andrew Sandler
8
9
SERIES C STOCKHOLDERS: Title: Managing Member of Oak
Associates VIII, LLC, The
General Partner of Oak
Investment VIII Limited
Partnership
---------------------------
Bechtel Enterprises Holdings, Inc.
By: /s/ Robert Dove OAK VIII AFFILIATES FUND
----------------------------- Limited Partnership
Name: By: Oak VIII Affiliates, LLC
Title: its General Partner
By: /s/ Ann Lamont
SANDLER CAPITAL PARTNERS IV, L.P. -----------------------------
SANDLER CAPITAL PARTNERS IV, FTE, L.P. Name: Ann Lamont
SANDLER INTERNET PARTNERS, L.P. ----------------------------
By: Sandler Investment Partners, L.P., Title: Managing Member of Oak
the General Partner Associates VIII, LLC, The
By: Sandler Capital Management, General Partner of Oak
the General Partner Investment VIII Limited
Partnership
----------------------------
FORD MOTOR COMPANY
By: MJDM Corp., a General Partner By: /s/ P. Horlock
By: /s/ Edward G. Grinacoff -----------------------------
----------------------------- Name: P. Horlock
Edward G. Grinacoff ----------------------------
President Title: Executive Director
----------------------------
HIGHLAND CAPITAL PARTNERS IV MOORE GLOBAL INVESTMENTS, LTD
LIMITED PARTNERSHIP
By: Highland Management Partners IV, LLC, ------------------------------
its General Partner By: Moore Capital Management, Inc.
Its: Trading Advisor
By: /s/ W. Crousbeck
----------------------------- REMINGTON INVESTMENTS STRATEGIES, L.P.
Name: W. Crousbeck
---------------------------- ------------------------------
Title: Managing Member, G.P. By: Moore Capital Management, Llc
--------------------------- Its: General Partner
ENTERCOM DELAWARE HOLDINGS
HIGHLAND ENTREPENEURS FUND IV COMPANY, LLC
LIMITED PARTNERSHIP
By: Highland Entrepreneurs Fund IV, LLC By:
Its General Partner -----------------------------
Name:
By: /s/ W. Crousbeck -----------------------------
----------------------------- Title:
Name: W. Crousbeck -----------------------------
-----------------------------
Title: Managing Member G.P.
-----------------------------
OAK INVESTMENT PARTNERS VIII
Limited Partnership
By: Oak Associates VIII, LLC,
its General Partner
By: /s/ Ann Lamont
-----------------------------
Name: Ann Lamont
----------------------------
9
10
PEABODY SABOT VENTURES
By: /s/ William Bo S. Peabody
-----------------------------
Name: William Bo S. Peabody
COMCAST INTERACTIVE CAPITAL, L.P. Title: Managing Partner
By: CIC Partners, L.P., CARIBOU VENTURES
Its General Partner
By: /s/ William Bo S. Peabody
By: CIC Venture Management, LLC, -----------------------------
Its General Partner Name: William Bo S. Peabody
Title: Managing Partner
By: /s/ Abram E. Patlove
----------------------------- CONCRETE MEDIA, INC
Name: Abram E. Patlove
Title: Vice President By: /s/ Aaron Cohen
-----------------------------
TIME WARNER, INC. Name: Aaron Cohen
Title: CEO
By:
----------------------------- WILSHIRE BOULEVARD PARTNERS III, LLC
Name:
Title: By:
-----------------------------
WATERVIEW PARTNERS, L.P. Name:
Title:
By: WaterView Advisors LLC
By: /s/ Augustus K. Oliver AMERICA ONLINE, INC.
-----------------------------
Name: Augustus K. Oliver By:
Title: Managing Member -----------------------------
Name:
INVEMED ASSOCIATES, LLC Title:
By: BLUE RIDGE LIMITED PARTNERSHIP
-----------------------------
Name: By:
Title: -----------------------------
By:
ML/BI L.L.C. -----------------------------
Name:
By: Mintz Levin Investments L.L.C. Title:
/s/ Al Pastino
By: /s/ Irwin Heller -------------------------------
----------------------------- Al Pastino
Name: /s/ Justin T. Nesci
Title: -------------------------------
Justin T. Nesci
PEABODY FAMILY VENTURES /s/ Sigurd Kirk
-------------------------------
By: /s/ William Bo S. Peabody Sigurd C. Kirk
-----------------------------
Name: William Bo S. Peabody -------------------------------
Title: Managing Partner Thomas D. Menard
10
11
-------------------------------
/s/ Daniel Pelson Juan Patino
- -------------------------------
Daniel Pelson
/s/ Frank Harrison
- -------------------------------
Frank M. Harrison
- -------------------------------
Lawrence V. Calcano
SERIES D STOCKHOLDER:
FORD MOTOR COMPANY
By: /s/ P. Horlock
-----------------------------
Name: P. Horlock
Title: Executive Director
COMMON STOCKHOLDERS:
/s/ Daniel Pelson
- -------------------------------
Daniel Pelson
WARRANT HOLDER:
PROCTER & GAMBLE, INC.
By: /s/ Mark F. Schar
-----------------------------
Name: Mark F. Schar
Title: V.P. Global Venture
11