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EXHIBIT 4.1
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT, dated as of August 1,
2001 (this "Amendment"), by and among ▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation
(the "Company"), General Atlantic Partners 74, L.P., a Delaware limited
partnership ("GAP LP"), GAP Coinvestment Partners II, L.P., a Delaware limited
partnership ("GAP Coinvestment"), GapStar, LLC, a Delaware limited liability
company ("GapStar"), Ardara US Direct Investment Inc., a British Virgin Islands
corporation ("Ardara"), International Capital Partners, Inc., Profit Sharing
Trust, a Connecticut trust ("ICP"), Sports Capital Partners, L.P., a Delaware
limited partnership ("SC Delaware"), Sports Capital Partners (Cayman Islands),
L.P., a Cayman Islands limited partnership ("SC Cayman"), Sports Capital
Partners CEV, LLC, a Delaware limited liability company ("SC LLC" and together
with SC Delaware and SC Cayman, "Sports Capital"), and the other persons set
forth on Schedule I attached hereto (the "Other Investors").
WHEREAS, the Company, GAP LP, GAP Coinvestment, GapStar, Ardara, ICP
and the Other Investors entered into a Registration Rights Agreement, dated as
of June 21, 2001 (the "Registration Rights Agreement");
WHEREAS, pursuant to the Stock Purchase Agreement, dated as of May 1,
2001, as amended (the "Stock Purchase Agreement"), by and among the Company, GAP
LP, GAP Coinvestment, GapStar, Ardara, ICP and the other persons named therein,
the Company proposes at a second closing thereunder to issue and sell to GAP LP,
GAP Coinvestment, GapStar, Ardara, ICP, SC Delaware, SC Cayman, SC LLC and the
Other Investors an aggregate of 17,500,000 shares of Series F Senior Cumulative
Redeemable Preferred Stock, par value $0.000225 per share, of the Company (the
"Preferred Stock");
WHEREAS, in order to induce each of SC Delaware, SC Cayman and SC LLC
to purchase its shares of Preferred Stock, the parties hereto desire to amend
the Registration Rights Agreement to grant registration rights to SC Delaware,
SC Cayman and SC LLC with respect to such shares of Preferred Stock.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree to amend the
Registration Rights Agreement as follows:
1. Defined Terms. Except as defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Registration Rights
Agreement.
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2. Additional Parties. Each of SC Delaware, SC Cayman and SC LLC is
hereby made a party to the Registration Rights Agreement as a Major Stockholder
in accordance with this Amendment.
3. Additional Definitions. The following definitions are hereby added
to Section 1 of the Registration Rights Agreement in the appropriate
alphabetical order:
"SC Cayman" means Sports Capital Partners (Cayman Islands), L.P., a
Cayman Islands limited partnership.
"SC Delaware" means Sports Capital Partners, L.P., a Delaware
limited partnership.
"SC LLC" means Sports Capital Partners CEV, LLC, a Delaware limited
liability company.
"Sports Capital" means SC Cayman, SC Delaware and SC LLC.
4. Amendment to Definition of Affiliate. The definition of "Affiliate"
in Section 1 of the Registration Rights Agreement is hereby amended to read in
its entirety as follows:
"Affiliate" means any Person who is an "affiliate" as defined in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
In addition, the following shall be deemed to be Affiliates of GAP
Coinvestment, GAP LP and GapStar: (a) GAP LLC, the members of GAP LLC,
the limited partners of GAP Coinvestment and the limited partners of
GAP LP; (b) any Affiliate of GAP LLC, the members of GAP LLC, the
limited partners of GAP Coinvestment or the limited partners of GAP LP;
and (c) any limited liability company or partnership a majority of
whose members or partners, as the case may be, are members or former
members of GAP LLC or consultants or key employees of General Atlantic
Service Corporation, a Delaware corporation and an Affiliate of GAP
LLC. In addition, GAP LP, GAP Coinvestment and GapStar shall be deemed
to be Affiliates of one another. Additionally, the following shall be
deemed to be Affiliates of SC LLC, SC Delaware and SC Cayman: (a) the
direct and indirect beneficial owners (whether limited or general
partners, shareholders, stockholders or otherwise) of SC LLC, the
direct and indirect beneficial owners (whether limited or general
partners, shareholders, stockholders or otherwise) of SC Delaware and
the direct and indirect beneficial owners (whether limited or general
partners, shareholders, stockholders or otherwise) of SC Cayman; (b)
any Affiliate of the members of SC LLC, the limited partners of SC
Delaware or the limited partners of SC Cayman; and (c) any limited
liability company or partnership a majority of whose members or
partners, as the case may be, are members or key employees of Sports
Capital Partners, LLC, a Delaware limited liability company, SC LLC, SC
Delaware and SC Cayman. In addition, SC LLC, SC Delaware and SC Cayman
shall be deemed to be Affiliates of one another.
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5. Amendment to Definition of Major Stockholders. The definition of
"Major Stockholders" in Section 1 of the Registration Rights Agreement is hereby
amended to read in its entirety as follows:
"Major Stockholders" means Ardara, ICP, the Other Investors, SC
Delaware, SC Cayman, SC LLC and any transferee thereof to whom
Registrable Securities are transferred in accordance with Section 10(f)
of this Agreement.
6. Amendment to Section 10(e) of the Stock Purchase Agreement. Section
10(e) of the Registration Rights Agreement is hereby deleted and replaced in its
entirety with the following:
(e) Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
(i) if to the Company:
▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Phleger & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the GAP Purchasers:
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
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(iii) if to ICP:
International Capital Partners, Inc., Profit
Sharing Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
(iv) if to Sports Capital:
c/o Sports Capital Partners
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(v) if to Ardara:
Lombard, Odier & Co.
▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy: 011-41-22-709-3944
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Bastaroli
with a copy to:
c/o International Capital Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(vi) if to the Other Investors:
c/o Zesiger Capital Group LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
Proskauer Rose LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
7. Continuing Effect of Registration Rights Agreement. This Amendment
shall not constitute a waiver, amendment or modification of any other provision
of the Registration Rights Agreement not expressly referred to herein and shall
not be construed as a waiver or consent to any further or future action on the
part of the Company that would require a waiver or consent of the GAP Purchasers
and ICP. Except as expressly amended or modified herein, the provisions of the
Registration Rights Agreement are and shall remain in full force and effect.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
9. Valid and Binding. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
10. Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Amendment on the date first written above.
▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
GENERAL ATLANTIC PARTNERS 74, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: A Managing Member
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INTERNATIONAL CAPITAL PARTNERS, INC.,
PROFIT SHARING TRUST
By: /s/ N. E. ▇▇▇▇▇▇▇▇
----------------------------------
Name: N.E. ▇▇▇▇▇▇▇▇
Title: Trustee
ARDARA US DIRECT INVESTMENT INC.
▇▇▇▇▇ LIMITED
By:
----------------------------------
Name:
Title:
ZCG PURCHASERS
By: ▇▇▇▇▇▇▇ Capital Group, LLC,
as agent and attorney in fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
SPORTS CAPITAL PARTNERS, L.P.
By: Sports Capital Partners, LLC,
its Managing Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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SPORTS CAPITAL PARTNERS (CAYMAN
ISLANDS), L.P.
By: Sports Capital Partners, LLC,
its Managing Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
SPORTS CAPITAL PARTNERS CEV, LLC
By: Sports Capital Partners, LLC,
its Managing Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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SCHEDULE 1
Purchaser: Record Holder:
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1 NFIB Corporate Account Huland & Co.
2 Public Employee Retirement System of Idaho Mellon Bank NA custodian for ▇▇▇▇▇-▇▇▇▇▇▇▇ Capital
3 City of Stamford Firemen's Pension Fund City of Stamford Firemen's Pension Fund
4 The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation Batrus & Co.
5 ▇▇▇▇▇ Foundation Hare & Co.
6 Roanoke College FirstUnion & Co.
7 ▇▇▇▇▇▇ Family LLC ▇▇▇▇ & Co.
8 ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
9 HBL Charitable Unitrust HBL Charitable ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
11 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Co.
12 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
13 Psychology Associates Psychology Associates
14 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
15 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
16 ▇▇▇▇▇▇ Capital, LLC ▇▇▇▇▇▇ Capital, LLC
17 ▇▇▇▇▇▇ Foundation ▇▇▇▇▇▇ Foundation
18 The ▇▇▇▇▇▇ Investment Partnership I, L.P. The ▇▇▇▇▇▇ Investment Partnership I, L.P.
19 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
20 ▇▇▇▇▇▇ Trust Co. of the Bahamas Ltd. ▇▇▇▇▇▇ Trust Co.of the Bahamas Ltd.
As Trustee U/A/D 11/30/93 as Trustee U/A/D 11/30/93
21 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Hare & Co.
22 Theeuwes Family Trust, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee Theeuwes Family Trust, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee
23 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
24 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
25 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
26 ▇▇▇▇▇▇ and ▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
27 ▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
28 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
29 ▇▇▇▇▇▇▇ Investment Partners ▇▇ ▇▇▇▇▇▇▇ Investment Partners LP
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