Amendment to Second Amended and Restated Stockholders Agreement by and among NetLibrary, Inc., Key Stockholders, and Investors

Summary

This amendment, dated January 18, 2000, updates the Second Amended and Restated Stockholders Agreement among NetLibrary, Inc., certain key stockholders, and various investors. The changes clarify the definition of "Investor Shares" to include shares from the new Series D Preferred Stock and adjust provisions regarding rights for Series D holders. All other terms of the original agreement remain unchanged. The amendment is part of a new Series D financing round and is effective upon execution by the listed parties.

EX-10.19 23 ex10-19.txt AM. TO 2ND AM. AND RESTATED STOCKHOLDERS AGREEMENT 1 EXHIBIT 10.19 NETLIBRARY, INC. AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THIS AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "Agreement") is made and entered into as of January 18, 2000, by and among NETLIBRARY, INC., a Delaware corporation (the "Company"), those certain holders of the Company's Common Stock listed on Exhibit A hereto (the "Key Stockholders") and the persons and entities listed on Exhibit B hereto, as amended from time to time (the "Investors"). RECITALS WHEREAS, the Key Stockholders or their transferees are the beneficial owners of an aggregate of Two Million Eight Hundred Seventy Thousand Two Hundred Ninety-Seven (2,870,297) shares of the Common Stock of the Company; WHEREAS, the Company previously sold shares of its Series A Preferred Stock (the "Series A Preferred Stock"), its Series B Preferred Stock (the "Series B Preferred Stock") and its Series C Preferred Stock (the "Series C Preferred Stock") to certain of the Investors; WHEREAS, the Company, the Key Stockholders and such Investors entered into a certain Amended and Restated Stockholders Agreement, dated as of October 8, 1999 (the "Stockholders Agreement"); WHEREAS, the Company proposes to sell shares of its Series D Preferred Stock (the "Series D Preferred Stock") to certain of the Investors pursuant to the Series D Preferred Stock Purchase Agreement (the "Series D Purchase Agreement") of even date herewith (the "Series D Financing"); and WHEREAS, in connection with the consummation of the Series D Financing, the Company, the Key Stockholders and the Investors desire to amend the Stockholders Agreement as set forth below. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Section 1(c) shall be modified in its entirety to read as follows: (c) "INVESTOR SHARES" shall mean all shares of capital stock of the Company registered in the names of the Investors or beneficially 2 owned by them as of the date hereof and any and all other securities of the Company legally acquired by the Investors after the date hereof (including but not limited to all shares of Common Stock issued upon conversion of the Series A Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock). 2. Section 3.4(a) shall be amended by (i) deleting the word "and" before the words "each holder of Series C Preferred Stock," and (ii) by inserting after the words "(390,000) shares of Series C Preferred Stock" the following: "and each holder of Series D Preferred Stock that, by itself or with its Affiliates holds at least Two Hundred Eighty Thousand (280,000) shares of Series D Preferred Stock." 3. Except as specifically set forth above the Stockholders Agreement shall remain in effect, without modification. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT TO SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT as of the date first above written. COMPANY: NETLIBRARY, INC. 3080 Center Green Drive Boulder, Colorado 80301 By: /s/ TIMOTHY R. SCHIEWE ------------------------------ Name: Timothy R. Schiewe Title: President and CEO KEY STOCKHOLDERS: /s/ TIMOTHY R. SCHIEWE WORLD VENTURE PARTNERS, INC. - ---------------------------------- Timothy R. Schiewe By: /s/ PETE ESTLER /s/ F. CLARK ELLIS ------------------------------ - ---------------------------------- Name: Pete Estler F. Clark Ellis Title: Principal /s/ HENRY VELLANDI - ---------------------------------- Henry Vellandi 2 3 INVESTORS: ABC-CLIO ANSCHUTZ FAMILY INVESTMENT COMPANY LLC By: Anschutz Company, its Manager By: /s/ RONALD J. BOEHM By: /s/ SCOTT CARPENTER ------------------------------ ------------------------------- Name: Ronald J. Boehm Name: Scott Carpenter Title: CEO Title: Vice President Date: January 10, 2000 Date: January , 2000 -- BOWANA FOUNDATION BCI INVESTMENTS II, LLC By: /s/ ERIC J. SWANSON By: /s/ JEFFREY S. DEMOND ------------------------------ ------------------------------- Name: Eric J. Swanson Name: Jeffrey S. DeMond Title: Vice President Title: Manager/Member Date: January , 2000 Date: January , 2000 -- -- 3 4 BAIN CAPITAL FUND VI, L.P. PEP INVESTMENTS PTY LTD By: Bain Capital Partners VI, L.P., By: Bain Capital, Inc., its General Partner its attorney-in-fact By: Bain Capital Investors VI, Inc., By: /s/ JOSHUA BERENSTEIN its General Partner ------------------------------- Name: Joshua Berenstein Title: Managing Director Date: January __, 2000 By: /s/ JOSHUA BERENSTEIN -------------------------- Name: Joshua Berenstein Title: Managing Director Date: January __, 2000 BROOKSIDE CAPITAL PARTNERS SANKATY HIGH YIELD ASSET FUND, L.P. PARTNERS, L.P. By: /s/ D. FERRANTE By: /s/ JOSHUA BERENSTEIN ------------------------------ ------------------------------- Name: Domenic Ferrante Name: Joshua Berenstein Title: Managing Director Title: Managing Director Date: January __, 2000 Date: January __, 2000 BCIP ASSOCIATES II BCIP ASSOCIATES II-B By: Bain Capital, Inc., By: Bain Capital, Inc., its Managing Partner its Managing Partner By: /s/ JOSHUA BERENSTEIN By: /s/ JOSHUA BERENSTEIN -------------------------- --------------------------- Name: Joshua Berenstein Name: Joshua Berenstein Title: Managing Director Title: Managing Director Date: January __, 2000 Date: January __, 2000 4 5 BERGER NEW GENERATION FUND A SERIES OF THE BERGER INVESTMENT PORTFOLIO OF TRUSTS By: /s/ MARK S. SUNDERHUSE ------------------------------ Name: Mark S. Sunderhuse Title: Managing Director Date: January 25, 2000 COMCAST INTERACTIVE CAPITAL, L.P. By: CIC Partners, LP, its general partner By: /s/ ABRAM E. PATLOVE -------------------------- Name: Abram E. Patlove Title: Vice President Date: January , 2000 -- COVESTCO-MEDEURA, LLC UNIVERSITY OF COLORADO FOUNDATION By: /s/ ALBIN JOHANN By: /s/ JIM BARLOW ------------------------------ ------------------------------- Name: Albin Johann Name: Jim Barlow Title: Director Title: CFO Treasurer Date: January 24, 2000 Date: March 2, 2000 DLJ CAPITAL CORP. DLJ ESC II, L.P. By: /s/ ROBERT FINZI By: /s/ ROBERT FINZI ------------------------------ ------------------------------- Name: Robert Finzi Name: Robert Finzi Title: Vice President Title: Vice President Date: January 4, 2000 Date: January 4, 2000 5 6 EBSCO INDUSTRIES, INC. EPIXTECH, INC. (FORMERLY KNOW AS AMERITECH LIBRARY SERVICES) By: /s/ TIM COLLINS By: /s/ LANA PORTER ------------------------------ ------------------------------- Name: Tim Collins Name: Lana Porter Title: Vice President Title: President / CEO Date: January __, 2000 Date: January __, 2000 FOLLETT CORPORATION HOUGHTON MIFFLIN By: /s/ KENNETH J. HULL By: /s/ NADER F. DAREHSHORI ------------------------------ ------------------------------- Name: Kenneth J. Hull Name: Nader F. Darehshori Title: Chairman / CEO Title: Chairman, President & CEO Date: January 11, 2000 Date: January 18, 2000 LDIG NL, INC. MARCEL DEKKER, INC. By: /s/ CRAIG ENENSTEIN By: /s/ DAVID DEKKER ------------------------------ ------------------------------- Name: Craig Enenstein Name: David Dekker Title: VP Business Development & Strategy Title: COO Date: March 2, 2000 Date: January 31, 2000 MARKET STREET PARTNERS NL MARQUETTE VENTURE PARTNERS III, L.P. By: /s/ MICHAEL C. FRANSON By: Marquette III, L.L.C., ------------------------------ its General Partner Name: Michael C. Franson Title: Managing Partner By: /s/ LLOYD D. RUTH Date: January 11, 2000 ------------------------------- Name: Lloyd D. Ruth Title: Authorized Signatory Date: January __, 2000 6 7 THE MCGRAW-HILL COMPANIES, INC. PARKER & SON LIMITED By: /s/ ROBERT J. BAHASH By: /s/ TIM EUSTACE ------------------------------ ------------------------------- Name: Robert J. Bahash Name: Tim Eustace Title: EVP CFO Title: Director / Secretary Date: January 11, 2000 Date: January __, 2000 PARTHENON INVESTORS, L.P. PCIP INVESTORS, L.P. By: PCIP Investors, By: PCIP Investors, its general partner its general partner By: /s/ JOHN RUTHERFORD By: /s/ JOHN RUTHERFORD -------------------------- --------------------------- Name: John Rutherford Name: John Rutherford Title: Managing Member Title: General Partner Date: January 18, 2000 Date: January 18, 2000 PEARL STREET TRUST REPERTOIRE CAPITAL VENTURES RLLLP By: /s/ SCOTT A. BECK By: /s/ KARL FRIEDMAN ------------------------------ ------------------------------- Name: Scott A. Beck Name: Karl Friedman Title: Trustee Title: General Partner Date: January 11, 2000 Date: January __, 2000 SEQUEL LIMITED PARTNERSHIP SEQUEL EURO LIMITED PARTNERSHIP By: Sequel Venture Partners, L.L.C., By: Sequel Venture Partners, General Partner L.L.C., General Partner By: /s/ THOMAS G. WASHING By: /s/ THOMAS G. WASHING ------------------------------ ------------------------------- Name: Thomas G. Washing Name: Thomas G. Washing Title: General Partner Title: General Partner Date: January 10, 2000 Date: January 10, 2000 7 8 SORENSON LIMITED PARTNERSHIP, FLLLP By: /s/ RALPH Z. SORENSON ------------------------------- Name: Ralph Z. Sorenson Title: General Partner Date: January __, 2000 SPROUT CAPITAL VIII, L.P. SPROUT VENTURE CAPITAL, L.P. By: DLJ Capital Corp. By: DLJ Capital Corp. Its Managing General Partner Its Managing General Partner By: /s/ ROBERT FINZI By: /s/ ROBERT FINZI ------------------------------ ------------------------------- Name: Robert Finzi Name: Robert Finzi Title: Vice President Title: Vice President Date: January 11, 2000 Date: January 11, 2000 THE TELL ERTL FAMILY TRUST WORLD VENTURE PARTNERS, INC. By: /s/ JOSEPH L. FOX By: /s/ PETE ESTLER ------------------------------ ------------------------------- Name: Joseph L. Fox Name: Pete Estler Title: Trustee Title: Principal Date: January 17, 2000 Date: January __, 2000 8 9 WPG NETWORKING FUND, LP WPG SOFTWARE FUND, LP By: Weiss, Peck & Greer, LLC, By: Weiss, Peck & Greer, LLC, its General Partner its General Partner By: /s/ RICHARD POLLACK By: /s/ RICHARD POLLACK -------------------------- --------------------------- Member Member Name: Richard Pollack Name: Richard Pollack Title: General Counsel & Title: General Counsel & Managing Director Managing Director Date: January __, 2000 Date: January __, 2000 WPG INSTITUTIONAL WPG INSTITUTIONAL NETWORKING FUND, LP SOFTWARE FUND, LP By: Weiss, Peck & Greer, LLC, By: Weiss, Peck & Greer, LLC, its General Partner its General Partner By: /s/ RICHARD POLLACK By: /s/ RICHARD POLLACK -------------------------- ----------------------------- Member Member Name: Richard Pollack Name: Richard Pollack Title: General Counsel & Title: General Counsel & Managing Director Managing Director Date: January __, 2000 Date: January __, 2000 WPG RAYTHEON WPG RAYTHEON NETWORKING FUND, LP SOFTWARE FUND, LP By: Weiss, Peck & Greer, LLC, By: Weiss, Peck & Greer, LLC, its attorney-in-fact its attorney-in-fact By: /s/ RICHARD POLLACK By: /s/ RICHARD POLLACK -------------------------- ----------------------------- Member Member Name: Richard Pollack Name: Richard Pollack Title: General Counsel & Title: General Counsel & Managing Director Managing Director Date: January __, 2000 Date: January __, 2000 9 10 /s/ RAJ MEHRA /s/ LLOYD RUTH - --------------------------------- ------------------------------------ RAJ MEHRA LLOYD RUTH /s/ TIM COLLINS /s/ SHARON MAGNESS - --------------------------------- ------------------------------------ TIM COLLINS SHARON MAGNESS /s/ NAVEEN JAIN /s/ PETER BEHRENDT - --------------------------------- ------------------------------------ NAVEEN JAIN PETER BEHRENDT /s/ RALPH Z. SORENSON /s/ NANCY OVERMAN - --------------------------------- ------------------------------------ RALPH Z. SORENSON NANCY OVERMAN /s/ ANA JAIN /s/ LILLIAN NADHIR - --------------------------------- ------------------------------------ ANA JAIN LILLIAN NADHIR /s/ MARK WATTLES - --------------------------------- MARK WATTLES 10 11 In addition to becoming a party to the Agreement, the undersigned consents to be bound by the terms of the Second Amended and Restated Stockholders Agreement. /s/ DAN H. BROUGHTON - ---------------------- DAN H. BROUGHTON 10