EXHIBIT 4.5
FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT
THIS FIRST AMENDMENT
TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT is entered into as of this
day of
,
2007 (this “ Amendment ”), by and among HSW
INTERNATIONAL, INC. , a Delaware corporation (“
Company ”), HOWSTUFFWORKS, INC. , a
Delaware corporation (“ HSW ”), and WEI
ZHOU , a citizen of Germany (“ Zhou
”).
Background
A.
The parties have entered into that certain Amended and Restated
Stockholders Agreement dated as of January 29, 2007 (the
“ Stockholders Agreement ”).
B.
The parties desire to amend the Stockholders Agreement as set forth
herein.
Agreement
NOW THEREFORE,
in consideration of the
mutual covenants herein contained and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
Composition of the Board,
Committees and Management . Article 3 of the Stockholders
Agreement is hereby amended by deleting Section 3.01 in its
entirety (including Exhibit 3.01(a) referred to
therein) and replacing it with the following new
Section 3.01:
“SECTION 3.01
Composition of the Board, Committees and Management
.
(a)
From and after the Closing, the number of directors comprising the
Board shall be seven (7), or such number of directors as may be
determined by the Board in accordance with the Amended and Restated
Certificate of Incorporation and the Amended and Restated Bylaws of
the Company, effective as of the Closing. At all times, a
majority of the directors on the Board shall be independent
directors and the independent directors (including those designated
by any Stockholder) shall meet all requirements regarding the
independence of directors as may be applicable to the Company
pursuant to applicable Law or the rules of the stock exchange
on which the shares of Common Stock are listed.
HSW
shall have the right to designate three (3) directors (one
(1) of whom shall be an independent director) and such
directors designated by HSW shall be referred to herein as the
“HSW Designees”. WEI ZHOU shall have the right to
designate two (2) directors (one (1) of whom shall be an
independent director) and such directors designated by WEI ZHOU
shall be referred to herein as the “WEI ZHOU
Designees”. Each Stockholder shall have the right to
request the removal, with or without cause, of any directors
designated by such Stockholder, and HSW, WEI ZHOU and the
Company, through the Board, shall cause any such person to be
removed from the Board.
If
any director shall be unable or unwilling to serve as a director
(including as a member of any committee), the Stockholder which
designated such individual shall designate another individual and
each of HSW, WEI ZHOU and the Company, through the Board, shall
cause such person to be nominated for such position. If it is
determined that any incumbent director designated by a Stockholder
shall not stand for re-election at any annual meeting of the
Company’s stockholders, such Stockholder shall designate the
person who shall be nominated for election as a director in lieu of
such incumbent director.
(b)
At each election of directors at which the term of any director
designated by a Stockholder will expire, the Board shall
(i) recommend for election to the Board a nominee who shall be
designated by the Stockholder that initially designated the
director whose term will expire, and (ii) shall use best
efforts to solicit proxies in favor of such nominee consistent with
the efforts used to solicit proxies for any other Board
nominees.
(c)
A Special Committee, a Compensation Committee, an Audit Committee
and a Nominating and Governance Committee of the Board shall be
established and maintained. In addition to the Special
Committee, a Compensation Committee, an Audit Committee and a
Nominating and Governance Committee, the Board shall have such
other committees as the Board may from time to time determine, as
may be permitted under applicable Law, the Amended and Restated
Certificate of Incorporation and the Amended and Restated Bylaws of
the Company. Each of the Special Committee, a Compensation
Committee, an Audit Committee and a Nominating and Governance
Committee shall be comprised of at least three
(3) members. The composition of the committees shall be
subject to the following: (i) one independent director
designated by each Stockholder shall serve on each committee of the
Board, (ii) all members of the Compensation Committee and the
Audit Committee shall be independent directors, and (iii) the
chairperson of the Nominating and Governance Committee shall be an
HSW Designee.
(d)
Subject to Section 3.02 with respect to any E
