exv4w10






Exhibit 4.10




AMENDMENT NO. 2 TO RIGHTS AGREEMENT




     This Amendment No. 2 to Rights Agreement, dated as of January 8, 2009 (the
“Amendment”), is by and between PlanetOut, Inc., a Delaware corporation (the
“Company”), and Wells Fargo Bank, N.A. (the “Rights Agent”), amending certain
provisions of the Rights Agreement, as amended, dated as of January 4, 2007 (the
“Agreement”), by and between the Company and the Rights Agent. Terms not otherwise defined
herein which are defined in the Agreement shall have the same respective meanings herein as
therein.



     WHEREAS, in accordance with Section 27 of the Agreement, the Company has directed prior to the
Distribution Date that it and the Rights Agent amend certain provisions of the Agreement as
specifically set forth in this Amendment.



     NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:



     1. Amendment to Agreement. The Agreement is hereby amended as follows:



     (a) Section 1(a) of the Agreement is hereby deleted in its entirety and replaced with the
following (which shows the new text added pursuant to this Amendment as underlined text):




     (a) “Acquiring Person” shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the Common Shares then outstanding.
Notwithstanding the foregoing, (A) the term Acquiring Person shall not include (i) the
Company, (ii) any Subsidiary (as such term is hereinafter defined) of the Company,
(iii) any employee benefit or compensation plan of the Company or any Subsidiary of
the Company, (iv) any entity holding Common Shares for or pursuant to the terms of any
such employee benefit or compensation plan of the Company or any Subsidiary of the
Company or (v) any Person, together with all Affiliates and Associates of such Person,
who is the Beneficial Owner of 15% or more of the Common Shares outstanding as of the
date of this Agreement until such time after the date of this Agreement that such
Person, together with all Affiliates and Associates of such Person, shall become the
Beneficial Owner of any additional Common Shares (other than by means of a dividend
made by the Company on the Common Shares outstanding or pursuant to a split,
subdivision or other reclassification of the Common Shares undertaken by the Company)
and shall then beneficially own more than 15% of the Common Shares outstanding, (B) no
Person shall become an “Acquiring Person” either (x) as the result of an acquisition
of Common Shares by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such Person to 15%
or more of the Common Shares then outstanding; provided, however, that if a Person
shall become the Beneficial Owner of 15% or more of the Common Shares then outstanding
by reason of share purchases by the Company and shall, following written notice from,
or public disclosure by the Company of such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares without the prior consent of the
Company and shall then Beneficially Own more than 15% of the Common Shares then
outstanding, then such Person shall be deemed to be an “Acquiring Person,” or (y) if
the Board of Directors determines in good faith that a Person who would otherwise be
an “Acquiring Person,” as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently, and such Person divests, as promptly as
practicable (as determined in good faith by the Board of Directors), following receipt
of written notice from the Company of such event, of Beneficial Ownership of a
sufficient number of Common Shares so that such Person would no longer be an Acquiring
Person, as defined pursuant to the foregoing provisions of this paragraph (a), then
such Person shall not be deemed to be an “Acquiring Person” for any purposes of this
Agreement; provided, however, that if such Person shall again become the Beneficial
Owner of 15% or more of the Common Shares then outstanding, such Person shall be
deemed an “Acquiring Person,” subject to the exceptions set forth in this Section
1(a), (C) none of the several purchasers of the Company’s Common Stock who are
parties (as “Investors” thereunder) to that certain Purchase Agreement dated as of
June 29, 2007 by and among the Company and the several Investors named therein (the
“2007 Purchase Agreement”) shall be deemed to be an “Acquiring Person” solely as a
result of acting together in connection with the acquisition of shares of the
Company’s Common Stock pursuant to the 2007 Purchase Agreement, and (D) none of
the parties to that certain Agreement and Plan of Merger dated as of January 8, 2009
by and among the Company, Here Media Inc., HMI Merger Sub, and the HMI Owners and HMI
Entities (each as defined therein) (the “2009 Merger Agreement”) shall be deemed to be
an “Acquiring Person” as a result of the execution of the 2009 Merger Agreement or the
consummation of the transactions contemplated thereby. 



     (b) Section 1(b) of the Agreement is hereby deleted in its entirety and replaced with the
following (which shows the new text added pursuant to this Amendment as underlined text):



 









 





     (b) “Affiliate” and “Associate” shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), as in effect on the date of this Agreement; provided, however, that the
limited partners of a limited partnership shall not be deemed to be Associates of such
limited partnership solely by virtue of their limited partnership interests; provided,
further that otherwise unaffiliated Persons who are parties (as “Investors”
thereunder) to the 2007 Purchase Agreement shall not be deemed to be “affiliates” or
“associates” for the purposes of this Agreement solely by virtue of their entry into
to the 2007 Purchase Agreement; and provided further that otherwise unaffiliated
Persons who are parties to the 2009 Merger Agreement shall not be deemed to be
“affiliates” or “associates” for the purposes of this Agreement solely by virtue of
their entry into to the 2009 Merger Agreement.



     (c) Section 1(p) of the Agreement is hereby deleted in its entirety and replaced with the
following (which shows the new text added pursuant to this Amendment as underlined text):




     (p) “Transaction” shall mean any merger, consolidation or sale of assets
described in Section 13(a) hereof or any acquisition of Common Shares which would
result in a Person becoming an Acquiring Person or a Principal Party (as such term is
hereinafter defined); provided, however, that the transactions contemplated by the
2009 Merger Agreement shall not constitute a Transaction under this Agreement.



     (d) A new Section 35 is hereby added to the Agreement as follows:




     SECTION 35. Termination. Notwithstanding anything to the contrary
herein, this Agreement shall terminate and have no further force or effect upon the
Closing (as defined in the 2009 Merger Agreement) of the 2009 Merger Agreement.



     2. Condition to Effectiveness. This Amendment shall not become effective
until executed by the Company and the Rights Agent.



     3. Ratification, Etc. Except as expressly amended hereby, all terms and
conditions of the Agreement are hereby ratified and confirmed in all respects and shall continue in
full force and effect. The Agreement and this Amendment shall be read and construed as a single
agreement. All references to the Agreement shall hereafter refer to the Agreement, as amended
hereby.



     4. No Waiver. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect, any obligation of the Company under the Agreement or any rights of any
party consequent thereon.



     5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall constitute one and
the same instrument.



     6. Governing Law. This amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without reference to conflict of laws).



[Signature Pages Follow]




 









 







     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a document under seal
as of the date first above written.



	 	 	 	 	 
	Company:





PLANETOUT, INC.

 	 	 
	By:  	/s/ Karen Magee
 	 	 
	 	Karen Magee, Chief Executive Officer 	 	 
	 	 	 	 
	 
	Rights Agent:



WELLS FARGO BANK, N.A., as Rights Agent

 	 	 
	By:  	/s/ Pamela E. Herlich
 	 	 
	 	Name:  	Pamela E. Herlich 	 	 
	 	Its: Vice President