SECOND AMENDMENT TO THIRD AMENDED AND RESTATED INVESTORS RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
Exhibit 1.1
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT
AND WAIVER OF REGISTRATION RIGHTS
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS (this “Amendment”), which amends that certain Third Amended and Restated Investors’ Rights Agreement dated October 28, 2011, as amended (the “Original Agreement”), by and among RetailMeNot, Inc., a Delaware corporation (the “Company”), and the persons and entities listed on Exhibit A thereto (each an “Investor” and collectively, the “Investors”), is made and entered into as of the December 6, 2013. Unless otherwise defined herein, capitalized terms shall have the definitions ascribed to them in the Original Agreement.
RECITALS
WHEREAS, the parties hereto, being all of the parties to the Original Agreement, desire to amend the Original Agreement and to waive certain rights thereunder as set forth herein.
AMENDMENT AND WAIVER
1. Section 5.2 of the Original Agreement is hereby amended and restated in its entirety as follows:
“Amendment of Rights. Any provision of this Agreement may be amended and the observance of such provision may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and Investors holding (a) a majority of the Registrable Securities then held by the Investors, (b) a majority of the shares of Common Stock then outstanding which were issued upon conversion of the shares of Series B-3 Preferred Stock and (c) a majority of the shares of Common Stock then outstanding which were issued upon conversion of the shares of Series BB-3 Preferred stock. Any amendment or waiver effected in accordance with this Section 5.2 shall be binding upon each Investor, each permitted successor or assignee of such Investor, and the Company; provided, no amendment or waiver that uniquely and adversely affects the rights of any Investor without the consent of such uniquely and adversely affected Investor.
2. All of the obligations, rights, duties and covenants of the Company contained in Section 4 of the Original Agreement are hereby terminated and Sections 4.1, 4.2, 4.3, 4.4, 4.5 and 4.7 of the Original Agreement shall be of no further force or effect.
3. In connection with the proposed follow-on public offering of the Company’s Series 1 common stock on or before December 31, 2013 (the “Offering”) the undersigned hereby irrevocably waive (the “Waiver”) any and all rights pursuant to Section 1 of the Original Agreement in connection with the Offering, including, without limitation, the rights to register any shares, whether now owned or hereafter acquired, of the Company’s capital stock, pursuant to Section 1.4 of the Original Agreement, and any and all notice requirements contained in the Original Agreement related thereto.
4. The undersigned agree and acknowledge that the Company, its advisors and the underwriters will proceed with the Offering in reliance upon this Amendment and the Waiver.
5. This Amendment may be executed in any number of counterparts (by facsimile, PDF electronic delivery or otherwise), each of which shall be an original, but all of which shall constitute one and the same instrument. The undersigned agree and acknowledge that this Amendment shall be of no force or effect until countersigned by the Company.
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This Amendment has been executed by the undersigned, effective as of the date first written above.
| COMPANY: | ||
| RETAILMENOT, INC. | ||
| By: | /s/ G. Cotter Cunningham | |
| G. Cotter Cunningham, | ||
| President and Chief Executive Officer | ||
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| INVESTORS: | ||
| AUSTIN VENTURES IX, L.P. | ||
| By: | AV Partners IX, L.P., | |
| its general partner | ||
| By: | AV Partners IX, LLC, | |
| its general partner | ||
| By: | /s/ Ken DeAngelis | |
| Authorized Representative | ||
| AUSTIN VENTURES X, L.P. | ||
| By: | AV Partners X, L.P., | |
| its general partner | ||
| By: | AV Partners X, LLC, | |
| its general partner | ||
| By: | /s/ Ken DeAngelis | |
| Member | ||
| Address: 300 West 6th Street, Suite 2300 Austin, Texas ###-###-#### Attn: C. Thomas Ball | ||
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| G. COTTER CUNNINGHAM |
| /s/ G. Cotter Cunningham |
| G. Cotter Cunningham |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| Norwest Venture Partners XI, LP | ||
| By: | Genesis VC Partners XI, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Jeff Crowe | |
| Jeff Crowe | ||
| Norwest Venture Partners VII-A, LP | ||
| By: | Itasca VC Partners VII-A, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Jeff Crowe | |
| Jeff Crowe | ||
| Norwest Venture Partners VI-A, LP | ||
| By: | Itasca VC Partners VI-A, LLC, General Partner | |
| By: | NVP Associates, LLC, | |
| Managing Member | ||
| By: | /s/ Jeff Crowe | |
| Jeff Crowe | ||
| Address: 525 University Ave., Suite 800 | ||
| Palo Alto, CA ###-###-#### | ||
| Attn: | Kurt Betcher, CFO | |
| With a copy to: | ||
| Norwest Venture Partners XI, LP | ||
| 525 University Ave., Suite 800 | ||
| Palo Alto, CA ###-###-#### | ||
| Attn: | Bill Myers | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| ADAMS STREET 2010 DIRECT FUND, L.P. | ||
| By: | ASP 2010 Direct Management, LLC, its | |
| General Partner | ||
| By: | Adams Street Partners, LLC, its | |
| Managing Member | ||
| By: | /s/ Robin Murray | |
| Partner | ||
| ADAMS STREET 2009 DIRECT FUND, L.P. | ||
| By: | ASP 2009 Direct Management, LLC, its | |
| General Partner | ||
| By: | Adams Street Partners, LLC, its | |
| Managing Member | ||
| By: | /s/ Robin Murray | |
| Partner | ||
| ADAMS STREET 2008 DIRECT FUND, L.P. | ||
| By: | ASP 2008 Direct Management, LLC, its | |
| General Partner | ||
| By: | Adams Street Partners, LLC, its | |
| Managing Member | ||
| By: | /s/ Robin Murray | |
| Partner | ||
| Address: c/o Adams Street Partners, LLC | ||
| One North Wacker Drive, Suite 2200 | ||
| Chicago, IL 60606-2823 | ||
| Attn: | Sejal Shah | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| GOOGLE VENTURES 2011, L.P. | ||
| By: | Google Ventures 2011 GP, L.L.C., | |
| its general partner | ||
| By: | /s/ William J. Maris | |
| Name: William J. Maris | ||
| Title: Member | ||
| Address: | 1600 Amphitheatre Parkway | |
| Mountain View, CA 94043 | ||
| Attn: Karim Faris | ||
| With a copy to: | ||
| Google Ventures 2011, L.P. | ||
| Attn: General Counsel, Google Ventures | ||
| Email: ***@*** | ||
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| /s/ Duncan Jennings |
| Duncan Jennings |
| /s/ Max Jennings |
| Max Jennings |
| /s/ Richard Foister |
| Richard Foister |
| /s/ Antonio Argiolas |
| Antonio Argiolas |
| /s/ Daniel Bower |
| Daniel Bower |
| /s/ John-Paul Jones |
| John-Paul Jones |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| INSTITUTIONAL VENTURE PARTNERS XIII L.P. | ||
| By: | Institutional Venture Management XIII LLC | |
| Its: | General Partner | |
| By: | /s/ Jules Maltz | |
| Name: | Jules Maltz | |
| Title: | Authorized Signatory | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| JP MORGAN DIGITAL GROWTH FUND L.P. | ||
| By: | J.P. Morgan Investment Management Inc. | |
| Its: | Investment Advisor | |
| By: | /s/ Ashmi Mehrotra | |
| Name: | Ashmi Mehrotra | |
| Title: | Managing Director | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| 522 FIFTH AVENUE FUND, L.P. | ||
| By: | J.P. Morgan Investment Management Inc. | |
| Its: | Investment Advisor | |
| By: | /s/ Ashmi Mehrotra | |
| Name: | Ashmi Mehrotra | |
| Title: | Managing Director | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| J.P. MORGAN SECONDARY PRIVATE EQUITY INVESTORS II, L.P. | ||
| By: | J.P. Morgan Investment Management Inc. | |
| Its: | Investment Advisor | |
| By: | /s/ Ashmi Mehrotra | |
| Name: | Ashmi Mehrotra | |
| Title: | Managing Director | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| Executed by King Holdings (Vic) Pty Ltd ACN 147 435 970 in its capacity as trustee for the King Holdings Trust, in accordance with S. 127 of the Corporations Act 2001 by being signed by the following officer: |
| /s/ Guy Phillip King |
| Guy Phillip King being the sole director and company secretary |
| Executed by Clark/Kirk Holdings Pty Ltd ACN 147 455 767 in its capacity as trustee for the Clark/Kirk Holdings Trust, in accordance with S. 127 of the Corporations Act 2001 by being signed by the following officer: |
| /s/ Bevan Heath Clark |
| Bevan Heath Clark being the sole director and company secretary |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| MOUVEO, a French société à responsibilité limitée, registered with the Trade and Companies Registry of Vannes under number 539 803 775 | ||
| By: | /s/ Olivier David | |
| Name: | Olivier David | |
| Title: | Chief Executive Officer | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| INVENTUZ, a French société à responsibilité limitée, registered with the Trade and Companies Registry of Vannes under number 539 805 572 | ||
| By: | /s/ Francois Larvor | |
| Name: | Francois Larvor | |
| Title: | Chief Executive Officer | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| THE 2010 GLOZMAN FAMILY TRUST DATED JULY 13, 2010 | ||
| By: | /s/ M. Glozman | |
| Name: | M. Glozman | |
| Title: | Trustee | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| JUSTIN HALLORAN |
| /s/ Justin Halloran |
| Justin Halloran |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| ARBOR GREEN II, LP |
| /s/ Thomas P. Borders |
| Thomas P. Borders, Trustee |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| PETER MORSE |
| /s/ Peter Morse |
| Peter Morse |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| MOOSE POND INVESTMENTS, LP | ||
| By: | /s/ Brian Sharples | |
| Name: | Brian Sharples | |
| Title: | Partner | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
This Amendment has been executed by the undersigned, effective as of the date first written above.
| MTG PORTFOLIO, LTD. | ||
| By: | Midtown Group, Inc., its general partner | |
| By: | /s/ Thomas P. Borders | |
| Name: | Thomas P. Borders | |
| Title: | President | |
SECOND AMENDMENT TO THIRD A&R INVESTORS’ RIGHTS AGREEMENT AND WAIVER OF REGISTRATION RIGHTS
