Exhibit 10.59
AMENDMENT NO. 3 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
@VENTURES FOREIGN FUND III, L.P.
This Amendment No. 3 (this
“Amendment No. 3”), dated as of February 26,2003, to
the Agreement of Limited Partnership dated as of December 22,1998
(as amended to date, the “Agreement”) of @Ventures
Foreign Fund III, L.P., a Delaware limited partnership (the
“Partnership”), is by and among @Ventures Partners III,
LLC, the general partner of the Partnership (the “General
Partner”), and all of the Limited Partners of the
Partnership. Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings ascribed to them
in the Agreement.
WHEREAS, the undersigned Partners
desire to amend the Agreement to (i) reflect that the General
Partner and the Management Company have agreed to waive all
Incentive Distributions and Management Fees, respectively, with
respect to the conduct of the business of the Partnership from and
after February 1,2002, (ii) reflect that certain penalty provisions
relating to the General Partner have been modified or deleted, and
(iii) modify certain other provisions of the Agreement, as more
fully set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned Partners agree as
follows:
1. Effective Date of
Amendment . This Amendment No. 3 shall become effective on the
date on which this Amendment No. 3 has been signed and delivered by
the General Partner and all of the Limited Partners (such date, the
“Amendment No. 3 Effective Date”).
2. Addition of Section 5.10 .
Section 5.10A is hereby amended and restated in its entirety to
read as follows:
“5.10 General Partner
Distributions and Payments; Amendment Effective Date
Distributions .
A. From and after February 26, 2003,
the General Partner hereby waives its right to receive (i) any
Incentive Distributions, (ii) any associated allocations of
Operating Income or Loss and Investment Gain or Loss to the extent
attributable to the amounts waived pursuant to clause (i) of this
Section 5.10A and (iii) any distributions upon liquidation in
respect of its positive Capital Account to the extent of any
portion of such Capital Account balance which is attributable to
amounts waived pursuant to clauses (i) and (ii) of this Section
5.10A.”
3. Amendment to Section 6.4 .
The second paragraph of Section 6.4 of the Agreement is hereby
amended and restated in its entirety to read as follows:
“Each of Mills, Nerrow and
Poirier agrees that, during the period from the Amendment Effective
Date through December 31,2003, he shall be engaged in the
activities contemplated by the second sentence of Section 7.1 (as
amended
