Exhibit 4.4
AMENDMENT NO. 1 TO
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO SERIES C PREFERRED STOCK PURCHASE AGREEMENT
("Amendment") is made and entered into as of October 29, 1999, by and among
CacheFlow Inc., a Delaware corporation (the "Company"), and certain Investors
(as such term is defined in that certain Series C Preferred Stock Purchase
Agreement by and between the Company and the Investors dated as of May 28, 1999
(as amended, the "Agreement")). The Investors executing this Amendment are
referred to herein as the "Amending Investors." Capitalized terms not otherwise
defined in this Amendment have the meaning given them in the Agreement.
RECITALS
WHEREAS, pursuant to Section 7.9 of the Agreement, any term of the
Agreement may be amended and the observance of any term of the Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
at least a majority of the Common Stock issuable or issued upon conversion of
the Series C Preferred Stock; provided, however, that any amendment or waiver of
Section 7.14 of the Agreement shall require the written consent of the Company
and the holders of at least sixty-seven percent (67%) of the Common Stock
issuable or issued upon conversion of the Series C Preferred Stock; and
WHEREAS, the Amending Investors hold at least sixty-seven percent
(67%) of the Common Stock issuable or issued upon conversion of the Series C
Preferred Stock;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company and the Amending Investors, on behalf of
themselves and all other holders of outstanding Series C Preferred Stock, hereby
agree as follows:
1. Section 7.14 of the Agreement shall be amended and restated in its
entirety to read as follows:
7.14 Right to Participate in Initial Public Offering. In
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connection with the Company's initial firm commitment underwritten public
offering (the "IPO"), the Company shall use its best efforts to cause the
managing underwriter or underwriters of such IPO to establish a program
(the "Program") whereby such managing underwriter or underwriters give the
Investors priority, as described herein, with respect to the purchase of
shares of the Company's Common Stock available for sale pursuant to the
Program.
Subject to the terms hereof, the number of shares of Common Stock
available for sale pursuant to the Program (the "Program Shares") shall
equal no less than 250,000 shares (subject to adjustment for stock splits,
stock
dividends, recapitalizations and the like); provided, however, that
such number of Program Shares shall be subject to reasonable reduction by
the Company if (i) the Company's Board of Directors determines in good
faith, by a duly adopted resolution (based in part on the advice of the
managing underwriter or underwriters), that the purchase by the Investors
of the number of Program Shares determined in accordance with the
provisions hereof would be materially detrimental to the success of the
IPO, or (ii) necessary to guarantee that at least one percent (1%) of the
total shares offered to the public in the IPO is available for distribution
to insiders of the Company and their friends and family.
The managing underwriter or underwriters shall offer to each
Investor the right to purchase its Pro-Rata Share of the Program Shares.
Each Investor's "Pro-Rata Share" shall equal the quotient obtained by
dividing (i) the number of shares of Common Stock issuable or issued upon
conversion of shares of Series C Preferred Stock then held by such
Investor, by (ii) the number of shares of Common Stock issuable or issued
upon conversion of shares of Series C Preferred Stock then held by all
Investors.
The Program may be amended, modified or eliminated if in the
reasonable discretion of the Company's Board of Directors, such action is
necessary to comply with all federal and state securities laws and
regulations, including, without limitation, Rule 134 of the Securities Act
of 1933, as amended, and all applicable rules and regulations promulgated
by the National Association of Securities Dealers, Inc. and other such
self-regulating or quasi-public regulatory organizations.
Notwithstanding the foregoing, the Investors participating in the
Program shall comply with all requirements and procedures required by the
managing underwriter or underwriters of the IPO of purchasers participating
in a directed share program, if any, or of purchasers in the IPO generally.
Furthermore, the Investors agree to furnish upon request to the Company and
the managing underwriter or underwriters of the IPO such further
information, to execute and deliver to the Company and the managing
underwriter or underwriters of the IPO such other documents, and to do such
other acts and things, all as the Company and the managing underwriter or
underwriters of the IPO may request for the purpose of carrying out the
intent of this Section 7.14.
2 This Amendment shall be governed by and construed under the laws of
the State of California without regard to applicable principles of conflicts of
law.
3. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
4. This Amendment, when executed by the Company and the Amending
Investors as of the date hereof, shall have been effected in accordance with
Section 7.9 of the
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Agreement and accordingly shall be binding upon each holder of any securities
purchased under the Agreement as of the date of this Amendment (including
securities into which such securities are convertible), each future holder of
all such securities and the Company.
5. The Agreement and this Amendment and the documents referred to
therein and herein constitute the entire agreement between the parties hereto
pertaining to the subject matter thereof and hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CACHEFLOW INC.
By: __________________________________
Xxxxx XxXxxxx
President
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
INVESTORS:
TCV III (GP)
a Delaware General Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TCV III, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TCV III (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
TCV III Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management III, L.L.C.,
Its: General Partner
By: __________________________________
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
U.S. Venture Partners V, L.P.
USVP V International, L.P.
2180 Associates Fund V, L.P.
USVP V Entrepreneur Partners, L.P.
By Presidio Management Group V, L.L.C.
Its General Partner
By: __________________________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
BENCHMARK CAPITAL PARTNERS, L.P.
By: BENCHMARK CAPITAL MANAGEMENT
CO., L.L.C.
Its General Partner
By: __________________________________
Member
BENCHMARK FOUNDERS' FUND, L.P.
By: BENCHMARK CAPITAL MANAGEMENT
CO., L.L.C.
Its General Partner
By: __________________________________
Member
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
K-H INVESTORS (1996-B), L.P.
By: _______________________________
Print Name: _______________________
Title: ____________________________
Address: c/x Xxxxx Capital Management
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
K-H INVESTORS (1998-A), L.P.
By: _______________________________
Print Name: _______________________
Title: ____________________________
Address: c/x Xxxxx Capital Management
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
XXXXX VENTURES - CACHEFLOW III, L.P.
By: _______________________________
Print Name: _______________________
Title: ____________________________
Address: c/x Xxxxx Capital Management
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
XXXXX XXXXXXX XXXXX TRUST
DATED 10/30/89
By: _______________________________
Print Name: _______________________
Title: ____________________________
Address: c/x Xxxxx Capital Management
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
___________________________________
Xxxxxxxx X. Xxxxx
Address: c/x Xxxxx Capital Management
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
