Exhibit 4.6
SELECT COMFORT CORPORATION
AMENDMENT NUMBER 2 TO
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AND WAIVER OF PREEMPTIVE RIGHTS
This Amendment Number 2 to the Amended and Restated Registration Rights
Agreement is made as of the 1st day of November, 1996, among Select Comfort
Corporation, a Minnesota corporation (the "Company"), and each of the Holders,
as defined in the Registration Rights Agreement, as defined below.
WHEREAS, the Company and the Holders entered into that certain Amended and
Restated Registration Rights Agreement dated as of December 28, 1995, as amended
by that certain Amendment Number 1 made on April 25, 1996 (the "Registration
Rights Agreement"); and
WHEREAS, the Company and the Holders desire to amend, effective as of
November 1, 1996, the Registration Rights Agreement, all as more fully set forth
herein; and
WHEREAS, terms used herein with an initial capital letter, unless otherwise
expressly defined herein, shall have the meaning given to such terms in the
Registration Rights Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and the Holders agree as
follows:
1. AMENDMENT OF REGISTRATION RIGHTS AGREEMENT. The Registration
Rights Agreement is hereby modified and amended as follows:
(a) The term "Holders" as used therein shall be deemed to
include (i) the holders of the warrants to purchase shares of Common Stock of
the Company issued in connection with that certain bridge financing transaction
entered into between the Company and certain Holders on or about November 1,
1996 in the maximum aggregate principal amount of $1,500,000 (the "Bridge
Warrants"), (ii) the holders of the securities issuable upon exercise of the
Bridge Warrants (the "Bridge Warrant Stock"), and (iii) any subsequent legal or
beneficial owner of the Bridge Warrants or the Bridge Warrant Stock who has
become a party to the Registration Rights Agreement in accordance with Section
14 thereof.
(b) The term "Registrable Common" as used therein shall be
deemed to include (i) any shares of Common Stock then outstanding which were
issued upon exercise or conversion of any of the Bridge Warrants; (ii) any
shares of Common Stock then issuable upon conversion of any then outstanding
Bridge Warrants, (iii) any shares of Common Stock then outstanding which were
issued as, or were issued directly or indirectly upon the conversion of other
Securities (as defined in the Registration Rights Agreement) issued as, a
dividend or other distribution with respect to, or in replacement of, or upon
exercise of, the Bridge Warrants or other Registrable Common (as defined in the
Registration Rights Agreement), and (iv) any
shares of Common Stock then issuable directly or indirectly upon the
conversion or exercise of other Securities issued as a dividend or other
distribution with respect to, or in replacement of, or upon exercise of, the
Bridge Warrants or other Registrable Common.
2. WAIVER OF PREEMPTIVE RIGHTS. Each of the Holders hereby waives
any and all preemptive rights that the Holders or any holders of Preferred Stock
of the Company may have pursuant to the Restated Articles or otherwise in
connection with the offer, issuance and sale by the Company of any of the Bridge
Warrants and the Bridge Warrant Stock.
3. CHANGES, WAIVERS, ETC. Neither this Amendment Number 2 nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only by a statement in writing signed by the party against which enforcement of
the change, waiver, discharge or termination is sought, except to the extent
provided in the Registration Rights Agreement.
4. PARTIES IN INTEREST. All the terms and provisions of this
Amendment Number 2 shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
whether so expressed or not, and, in particular, shall inure to the benefit of
and be enforceable by the holder or holders from time to time of any of the
Bridge Warrants or the Bridge Warrant Stock.
5. CHOICE OF LAW. The laws of Minnesota shall govern the validity
of this Amendment Number 2, the construction of its terms and the interpretation
of the rights and duties of the parties hereunder.
6. FORCE OF AMENDMENT. Except as specifically amended hereby, the
Registration Rights Agreement shall remain in full force and effect.
7. COUNTERPARTS. This Amendment Number 2 may be executed
concurrently in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
8. SEVERABILITY. Should any one or more of the provisions of this
Amendment Number 2 be determined to be illegal or unenforceable, all other
provisions of this Amendment Number 2 shall be given effect separately from the
provision or provisions determined to be illegal or unenforceable and shall not
be affected thereby.
2
IN WITNESS WHEREOF, the Company has caused this Amendment Number 2 to be
executed by its duly authorized representative and each of the Holders has
caused this Amendment Number 2 to be executed by signing in counterpart the
acceptance form attached to this Amendment Number 2.
SELECT COMFORT CORPORATION,
a Minnesota corporation
By: /S/
--------------------------------------
Its:
--------------------------------------
ST. XXXX FIRE AND MARINE
INSURANCE CO., a Minnesota corporation
By: /S/
--------------------------------------
Its:
--------------------------------------
CHERRY TREE VENTURES IV,
a Minnesota Limited Partnership
By: /S/
--------------------------------------
Its General Partner
CONSUMER VENTURE PARTNERS I,
L.P., a Delaware Limited Partnership
By: Consumer Venture Associates, L.P.,
Its General Partner
By: /S/
--------------------------------------
Its General Partner
CONSUMER VENTURE PARTNERS II,
L.P., a Delaware Limited Partnership
By: Consumer Venture Associates II, L.P.,
Its General Partner
By: /S/
--------------------------------------
Its General Partner
APEX INVESTMENT FUND, L.P.,
3
a Delaware Limited Partnership
By: Apex Management Partnership,
Its General Partner
By: Stellar Investment Co.,
Its Managing General Partner
By: /S/
--------------------------------------
Xxxxx X. Xxxxxxx, President
THE PRODUCTIVITY FUND II, L.P.,
a Delaware Limited Partnership
By: First Analysis Management Company
II,
Its General Partner
By: First Analysis Corporation,
Its General Partner
By: /S/
--------------------------------------
Its:
--------------------------------------
KCB BV, L.P.,
a California Limited Partnership
By: KCB BV, INC.,
Its General Partner
By:
--------------------------------------
Xxxxxx X. Xxxxx, President
NORWEST EQUITY PARTNERS IV,
a Minnesota Limited Partnership
By: Itasca Partners
Its General Partner
By: /S/
--------------------------------------
Its:
--------------------------------------
NORWEST EQUITY PARTNERS V,
a Minnesota Limited Partnership
4
By: Itasca Partners V
Its General Partner
By: /S/
--------------------------------------
Its:
--------------------------------------
XXXXXXXX INVESTMENTS,
a General Partnership
By: /S/
--------------------------------------
Its General Partner
H & Q SELECT COMFORT INVESTORS
L.P., a limited partnership
By: H & Q Select Comfort Investors L.L.C.
Its General Partner
By: /S/
--------------------------------------
Its:
--------------------------------------
H & Q LONDON VENTURES
By: /S/
--------------------------------------
Its:
--------------------------------------
MARQUETTE VENTURE PARTNERS II,
L.P., a limited partnership
By: /S/
--------------------------------------
Its:
--------------------------------------
MVP II AFFILIATES FUND, L.P.,
a limited partnership
By: /S/
--------------------------------------
Its:
--------------------------------------
XXXXX LIMITED PARTNERSHIP
By: /S/
--------------------------------------
5
Its:
--------------------------------------
XXXXX XXXXXX INCORPORATED,
CUSTODIAN OF XXXX X. XXXXX
DECEDENT XXX
By:
--------------------------------------
Its:
--------------------------------------
BAYVIEW HOLDERS, LTD.
By:
--------------------------------------
Its:
--------------------------------------
ALEX. XXXXX & SONS EMPLOYEES
VENTURE FUND LP
By:
--------------------------------------
Its:
--------------------------------------
XXXXXXXXXX ASSOCIATES, 1992 L.P.
By:
--------------------------------------
Its:
--------------------------------------
/S/
-----------------------------------------
Xxxxxxx X. Xxxx
/S/
-----------------------------------------
Xxxxxxxx X. Xxxxxxx
/S/
-----------------------------------------
Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
6
/S/
-----------------------------------------
Xxxxxx X. XxXxxxx
-----------------------------------------
Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
/S/
-----------------------------------------
Xxxxxx X. Xxxxx
/S/
-----------------------------------------
Xxxxxxxxx Xxxxx Xxxxxxx
/S/
-----------------------------------------
Xxxxxxx Xxxxx Xxxxxxxx
/S/
-----------------------------------------
Xxxxx Xxxx Xxxxx Xxxxxxxxx
/S/
-----------------------------------------
Xxxx Xxxxxx
/S/
-----------------------------------------
Xxxxxxx X. Xxx
/S/
-----------------------------------------
Xxxxxxx X. Xxxxxx
7
/S/
-----------------------------------------
Xxxxxx Xxxxxx
/S/
-----------------------------------------
Xxxxx X. Xxxxx
/S/
-----------------------------------------
Xxxx X. Xxxxxxxxx
/S/
-----------------------------------------
Xxxxx X. Xxxx
/S/
-----------------------------------------
Xxxx Xxxxxxx
/S/
-----------------------------------------
Xxxxx X. Xxxxxx
/S/
-----------------------------------------
Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
8
