First Amendment to Seventh Amended and Restated Investors Rights Agreement by and between Winc, Inc. and certain security holders of Winc, Inc., dated as of October 12, 2021
Exhibit 10.1(a)
FIRST AMENDMENT TO THE
WINC, INC.
SEVENTH AMENDED AND RESTATED
INVESTORS’ RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO THE WINC, INC. SEVENTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Amendment”), dated as of the October 6, 2021, is entered into by and among Winc, Inc., a Delaware corporation (the “Company”), and the undersigned investors constituting the holders of a majority of the Registrable Securities currently outstanding and the holders a majority of the Registrable Securities then held by the Major Investors (collectively, the “Holders”). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Agreement (as defined below).
WHEREAS, the Company and the Holders previously entered into that certain Winc, Inc. Seventh Amended and Restated Investors’ Rights Agreement, dated April 6, 2021 (the “Agreement”);
WHEREAS, pursuant to Section 6.6 of the Agreement, the Agreement may be amended only with the written consent of the Company, the holders of a majority of the Registrable Securities then outstanding, and the holders a majority of the Registrable Securities then held by the Major Investors; and
WHEREAS, the Company and the undersigned Holders, representing holders of a majority of the Registrable Securities currently outstanding and the holders a majority of the Registrable Securities then held by the Major Investors, desire to amend the Agreement as set forth herein.
RESOLVED, that, for consideration that is acknowledged by each of the Company and the Holders, the Agreement is hereby amended as set forth herein.
1. Section 2.13 of the Agreement is hereby amended and restated to read in its entirety as follows:
“Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Subsections 2.1 or 2.2 shall terminate upon the earliest to occur of:
(a) the closing of a Deemed Liquidation Event;
(b) the fifth (5th) anniversary of the QIPO; and
(c) such time as such Holder holds less than 1% of the Company’s outstanding Common Stock (treating all shares of Preferred Stock on an as converted basis) and all Common Stock held by or issuable to such Holder (and its Affiliates) may be sold pursuant to SEC Rule 144 during any ninety (90) day period.”
1
2. This Amendment shall be and is hereby incorporated in and forms a part of the Agreement.
3. This Amendment shall be effective as of the date first written above.
4. This Amendment shall be governed by and construed in accordance with the General Corporation Law of the State of Delaware without regard to conflicts of law principles thereof.
5. This Amendment may be executed and delivered by facsimile signature, PDF or any electronic signature complying with the US federal ESIGN Act of 2000 (e.g., www.docusign.com) and in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
6. Except as set forth herein, the Agreement shall remain in full force and effect.
[signature pages follow]
2
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| COMPANY: | ||
| WINC, INC. | ||
| By: | /s/ Matthew Thelen | |
| Name: | Matthew Thelen | |
| Title: | General Counsel | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| 15 ANGELS II LLC | ||
| By: | /s/ Scott Ring | |
| Name: | Scott Ring | |
| Title: | Authorized Person | |
| Address: | 1865 Palmer Ave., Suite 104 | |
| Larchmont, NY 10538 |
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| BESSEMER VENTURE PARTNERS VIII | ||
| INSTITUTIONAL l.p. | ||
| By: Deer VIII & Co. L.P., its general partner | ||
| By: Deer VIII & Co. Ltd., its general partner | ||
| By: | /s/ Scott Ring | |
| Name: | Scott Ring | |
| Title: | Authorized Person | |
| Address: | c/o Bessemer Venture Partners | |
| 1865 Palmer Ave., Suite 104 | ||
| Larchmont, NY 10538 |
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| GOBLUE VENTURES LLC | ||
| By: | /s/ Scott Ring | |
| Name: | Scott Ring | |
| Title: | Authorized Person | |
| Address: | 1865 Palmer Ave., Suite 104 | |
| Larchmont, NY 10538 |
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| WAHOOWA VENTURES LLC | ||
| By: | /s/ Scott Ring | |
| Name: | Scott Ring | |
| Title: | Authorized Person | |
| Address: | 1865 Palmer Ave., Suite 104 | |
| Larchmont, NY 10538 |
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| C2 CLUB W HOLDINGS LLC | ||
| By: | /s/ Rick Smith | |
| Name: | Rick Smith | |
| Title: | Principal | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| C2 CLUB W SPV LLC | ||
| By: | /s/ Rick Smith | |
| Name: | Rick Smith | |
| Title: | Principal | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| CROSCUT VENTURES 2 L.P. | ||
| By: | /s/ Rick Smith | |
| Name: | Rick Smith | |
| Title: | Principal | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| RICE WINE VENTURES LLC | ||
| By: | /s/ Shuhei Ohashi | |
| Name: | Shuhei Ohashi | |
| Title: | Manager | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| SAKE VENTURES, LLC | ||
| By: | /s/ Akihiro Ishii | |
| Name: | Akihiro Ishii | |
| Title: | Manager | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| DREAM CATCHER INVESTMENTS | ||
| By: | /s/ Xiangwei Weng | |
| Name: | Xiangwei Weng | |
| Title: | ||
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| DREAMER PATHWAY LIMITED (BVI) | ||
| By: | /s/ Xiangwei Weng | |
| Name: | Xiangwei Weng | |
| Title: | ||
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| SHININGWINE LIMITED (BVI) | ||
| By: | /s/ Xiangwei Weng | |
| Name: | Xiangwei Weng | |
| Title: | ||
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| SIEMER VENTURES II LP (D/B/A WAVEMAKER PARTNERS II) | ||
| By: | /s/ Eric Manlunas | |
| Name: | Eric Manlunas | |
| Title: | Principal | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| WAVEMAKER GLOBAL SELECT LLC | ||
| By: | /s/ Eric Manlunas | |
| Name: | Eric Manlunas | |
| Title: | Principal | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
| HOLDER: | ||
| WAVEMAKER PARTNERS V LP | ||
| By: | /s/ Eric Manlunas | |
| Name: | Eric Manlunas | |
| Title: | Principal | |
| Address: | ||
[Signature Page to the First Amendment to the Winc, Inc.
Seventh Amended And Restated Investors’ Rights Agreement]
