EXHIBIT 10.6
XXXXXXX.XXX, INC.
June 22, 1999
TO CERTAIN INVESTORS IN THE
SERIES C PREFERRED STOCK AND SERIES D PREFERRED STOCK
OF XXXXXXX.XXX, INC.
Re: Amended and Restated Agreement Concerning the
Right to Participate in Initial Public Offering
Ladies and Gentlemen:
In connection with the purchase of Series C Preferred Stock of XxxXxxx.xxx,
Inc. (the "Company") by Foundation Capital II, L.P., Technology Crossover
Ventures II, L.P., Institutional Venture Partners VIII, L.P. and certain of
their affiliates (the "Original IPO Holders"), the Company and the Original IPO
Holders entered into a letter agreement dated February 16, 1999 (the "Original
Letter Agreement"), pursuant to which the Company agreed to take certain actions
on behalf of the Original IPO Holders in connection with the initial public
offering of the Company's Common Stock (the "IPO"). In consideration of the
Company's closing of its Series D Preferred Stock financing and the rights
granted pursuant to this letter agreement (this "New Letter Agreement"), the
Original IPO Holders hereby waive any and all rights and obligations arising
under the Original Letter Agreement and agree that the Original Letter Agreement
shall be null and void and of no further force or effect.
This New Letter Agreement sets forth the agreement by and among the
Company, the Original IPO Holders and Forum Holding Amsterdam B.V. (together
with the Original IPO Holders, the "IPO Holders") that, subject to and in
consideration of the purchase of shares of Series C Preferred Stock and Series D
Preferred Stock of the Company by the IPO Holders, in connection with the IPO,
the Company shall require the managing underwriter or underwriters of such IPO
to offer to each IPO Holder the right to purchase their Pro-Rata Share (as
defined below) of that number of shares of capital stock to be sold in the IPO
equal to ten percent (10%) of the total number of primary shares issued by the
Company in the IPO (the "IPO Shares"). For purposes of this New Letter
Agreement, "Pro-Rata Share" shall mean that fraction, the numerator of which is
equal to the total number of shares of Series C Preferred Stock and/or Series D
Preferred Stock (determined on an as-converted basis) held by such IPO Holder
and the denominator of which is the total number of shares of Series C Preferred
Stock and Series D Preferred Stock (determined on an as-converted basis) held by
all IPO Holders. To the extent that one or more of the IPO Holders does not
offer to purchase its full Pro-Rata Share of the IPO Shares, the Company shall
require the managing underwriter or underwriters to offer any remaining IPO
Shares to the participating IPO Holders based on each such holder's Pro-Rata
Share. Notwithstanding the foregoing, all action taken pursuant to this New
Letter Agreement shall be made in accordance with all federal and state
securities laws, including Rule 134 of the Securities Act of 1933, as amended,
and in no event shall the Company be required to take any action pursuant to
this New Letter Agreement that would be in violation of applicable law or rules
or regulations promulgated thereunder. Further, the Company shall in no event be
liable to the
IPO Holders to the extent it is prohibited from taking action pursuant to this
New Letter Agreement because such action would be in violation of applicable law
or such rules or regulations thereunder.
Very truly yours,
XXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Title: CEO
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Accepted and Agreed on June 22, 1999:
Foundation Capital II, L.P.
a Delaware Limited Partnership
By: Foundation Capital Management II, LLC,
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Chief Financial Officer
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II, L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Institutional Venture Partners VIII, L.P.
a Delaware Limited Partnership
By: Institutional Venture Management VIII, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
Forum Holding Amsterdam B.V.
By: /s/ Xxxxx X. Van der Sluijs Xxxxxx
-----------------------------------
Name: Xxxxx X. Van der Sluijs Xxxxxx
Title: Managing Director
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