EXHIBIT 91.1.9
SYBARI SOFTWARE, INC.
000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxxxx, Xxx Xxxx 00000
January 12, 2005
To the Holders of Subordinated Debentures, Series A Redeemable Preferred Stock
and Series B Convertible Redeemable Preferred Stock of Sybari Software Inc.:
We refer you to (i) the Securities Purchase and Redemption Agreement,
dated as of March 30, 2001, as amended (the "Agreement"), by and among Sybari
Software, Inc., a Delaware corporation (the "Company"), each of Xxxxxx X.
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx X. Xxxxxxxx and Xxxxxxx XxxxXxxxxxx (each a
"Principal Shareholder," and collectively the "Principal Shareholders") and the
purchasers named in Schedule 1.1 of the Agreement (the "Investors"); (ii) the
Shareholders' Agreement, dated as of March 30, 2001, as amended (the
"Shareholders' Agreement"), by and among the Company, the Principal
Shareholders, the Investors, and certain other holders of common stock, par
value $0.01 per share (the "Common Stock"), of the Company; (iii) the Redemption
Agreement, dated as of March 30, 2001, as amended (the "Redemption Agreement"),
by and among the Company and the Investors; and (iv) the Subordinated Debenture
dated March 30, 2001 issued by the Company to Summit Subordinated Debt Fund II,
L.P. and the Subordinated Debenture dated March 30, 2001 issued by the Company
to Summit Investors III, L.P. (each, a "Subordinated Debenture").
Capitalized terms used but not otherwise defined herein shall have the
meanings given to such terms in the Agreement.
WHEREAS, the Company proposes to undertake an initial public offering of
its Common Stock (an "IPO"); and
WHEREAS, to allow for the expeditious consummation of an IPO, the
Principal Shareholders and the Investors desire to amend the Agreement, the
Shareholders' Agreement, the Redemption Agreement and each Subordinated
Debenture by revising the definitions of "Liquidity Event," "Qualified Public
Offering" and "Initial Public Offering" contained therein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
FIRST: Article XI of the Agreement shall be amended, by modifying clause (iv)
contained in the definition of the term "Liquidity Event" therein by
substituting in lieu thereof the following:
(iv) the consummation of the first public offering of securities of the
Company pursuant to a registration statement filed and declared effective
under the Act, pursuant to which (A) the aggregate public offering price
of the shares sold by the Company equals or
exceeds $46,900,000 (if such offering is consummated on or before June 30,
2005) or $50,000,000 (if such offering is consummated after June 30,
2005), (B) the price per share of Common Stock equals or exceeds three
times the original purchase price of the Series B Preferred Stock (which
amount shall be subject to equitable adjustments whenever there shall
occur a stock split, combination, reclassification or other similar event
involving the Common Stock or the Series B Preferred Stock) and (C) all of
the Series A Preferred Stock has been redeemed and all amounts due and
owing under the Debentures have been paid in full.
SECOND: The Shareholders' Agreement shall be amended by deleting the last
sentence of Section 9 in its entirety and substituting in lieu thereof the
following:
A "Qualified Public Offering" means the consummation of the first public
offering of securities of the Company pursuant to a registration statement
filed and declared effective under the Securities Act of 1933, as amended
(the "Act"), pursuant to which (A) the aggregate public offering price of
the shares sold by the Company equals or exceeds $46,900,000 (if such
offering is consummated on or before June 30, 2005) or $50,000,000 (if
such offering is consummated after June 30, 2005), (B) the price per share
of Common Stock equals or exceeds three times the original purchase price
of the Series B Preferred Stock (which amount shall be subject to
equitable adjustments whenever there shall occur a stock split,
combination, reclassification or other similar event involving the Common
Stock or the Series B Preferred Stock) and (C) all of the Series A
Preferred Stock has been redeemed and all amounts due and owing under the
Debentures have been paid in full.
THIRD: Section 1 of the Redemption Agreement shall be amended, by modifying
clause (iv) contained in the definition of the term "Liquidity Event" therein by
substituting in lieu thereof the following:
(iv) the consummation of the first public offering of securities of the
Company pursuant to a registration statement filed and declared effective
under the Act, pursuant to which (A) the aggregate public offering price
of the shares sold by the Company equals or exceeds $46,900,000 (if such
offering is consummated on or before June 30, 2005) or $50,000,000 (if
such offering is consummated after June 30, 2005), (B) the price per share
of Common Stock equals or exceeds three times the original purchase price
of the Series B Preferred Stock (which amount shall be subject to
equitable adjustments whenever there shall occur a stock split,
combination, reclassification or other similar event involving the Common
Stock or the Series B Preferred Stock) and (C) all of the Series A
Preferred Stock has been redeemed and all amounts due and owing under the
Debentures have been paid in full
FOURTH: Each Subordinated Debenture shall be amended by deleting the last
sentence of the first paragraph in its entirety and substituting in lieu thereof
the following:
The term "Initial Public Offering" shall mean the consummation of the
first public offering of securities of the Company pursuant to a
registration statement filed and
declared effective under the Act, pursuant to which (A) the aggregate
public offering price of the shares sold by the Company equals or exceeds
$46,900,000 (if such offering is consummated on or before June 30, 2005)
or $50,000,000 (if such offering is consummated after June 30, 2005), (B)
the price per share of Common Stock equals or exceeds three times the
original purchase price of the Series B Preferred Stock (which amount
shall be subject to equitable adjustments whenever there shall occur a
stock split, combination, reclassification or other similar event
involving the Common Stock or the Series B Preferred Stock) and (C) all of
the Series A Preferred Stock has been redeemed and all amounts due and
owing under the Debentures have been paid in full
FIFTH: Except as amended by this letter agreement, it is expressly acknowledged
and understood that this letter agreement shall not be construed to alter any
other provisions in the Agreement, the Shareholders' Agreement, the Redemption
Agreement or each Subordinated Debenture, and the Agreement, the Shareholders'
Agreement, the Redemption Agreement and each Subordinated Debenture shall remain
in full force and effect from and after the date hereof.
SIXTH: This letter agreement may be executed in multiple counterparts, each of
which shall constitute an original but all of which together shall constitute
one and the same instrument. One or more copies of this letter agreement may be
delivered via telecopier, with the intention that they shall have the same
effect as an original counterpart hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this letter agreement to be
executed in the name and on behalf of the parties hereto as of the date first
above written.
COMPANY:
SYBARI SOFTWARE, INC.
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
PRINCIPAL SHAREHOLDERS:
/s/ XXXXXX X. XXXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ XXXXXX XXXXXX
---------------------------------------------
Xxxxxx Xxxxxx
/s/ XXXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXXXXXXXX
---------------------------------------------
Xxxxxxx X. XxxxXxxxxxx
INVESTORS:
SUMMIT VENTURES V, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ XXX XXXXXXX
-------------------------------------
Member
SUMMIT V COMPANION FUND, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ XXX XXXXXXX
-------------------------------------
Member
SUMMIT V ADVISORS FUND, L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ XXX XXXXXXX
-------------------------------------
Member
SUMMIT V ADVISORS FUND (QP), L.P.
By: Summit Partners V, L.P.
Its General Partner
By: Summit Partners, LLC
Its General Partner
By: /s/ XXX XXXXXXX
-------------------------------------
Member
SUMMIT SUBORDINATED DEBT FUND II, L.P.
By: Summit Partners SD II, LLC
Its General Partner
By: Stamps, Xxxxxxx & Co. IV
Its Managing Member
By: /s/ XXX XXXXXXX
-----------------------------------------
General Partner
SUMMIT INVESTORS III, L.P.
By: /s/ XXX XXXXXXX
-----------------------------------------
General Partner
