Exhibit 10.61
AMENDMENT NO. 5 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
@VENTURES FOREIGN FUND III, L.P.
This Amendment No. 5, dated as of
June 30, 2004 (this “Amendment”), 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 Limited Partners and
the General Partner desire to extend the term of the Partnership,
and to modify certain provisions of the Agreement in connection
with such extension, 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 shall become effective on the date
hereof (such date, the “ Amendment Effective Date
”).
2. Election to Extend Term .
Pursuant to and in accordance with Section 11.1(1)(x) of the
Agreement, the General Partner and Two-Thirds in Interest of the
Limited Partners have elected to extend the term of the Partnership
through June 30, 2005, and the Agreement is hereby amended to
reflect such election. For purposes of the Agreement, the period
from January 1, 2004 to June 30, 2004 is hereinafter referred to as
the “Extension Period” and the period from July 1, 2004
through June 30, 2005 is hereinafter referred to as the
“Second Extension Period.”
3. Amendment to Section 6.4 .
The last sentence of Section 6.4 of the Agreement is hereby amended
to read in its entirety as follows:
“Mills agrees that, during the
period from January 1, 2004 until June 30, 2005, he shall be
engaged in the activities contemplated by the last sentence of
Section 7.1, and that the Partnership shall not be permitted to pay
salary or bonus compensation to him or any other person during such
period (except pursuant to Section 5.10B).”
4. Management Fee During
Extension Period and Second Extension Period . Pursuant to and
in accordance with Section 6.5C of the Agreement, the Management
Company, the General Partner and Two-Thirds in Interest of the
Limited Partners have agreed that during the Extension Period and
the Second Extension Period, no Management Fee shall be payable.
The Agreement is hereby amended to reflect such agreement. The
Management Company, by signing this Amendment below, hereby
consents to and agrees to provide management services to the
Partnership pursuant to the Management Contract for no Management
Fee during the Extension Period and the Second Extension
Period.
5. Amendments to Sections 6.5E
and F . Sections 6.5 E and 6.5F shall be amended by replacing
the words “through June 30, 2004” with the words
“through the end of the term of the
Partnership.”
6. Amendment to Section 7.1.
The last sentence of Section 7.1 of the Agreement is hereby amended
to read in its entirety as follows:
“From January 1, 2004 until
June 30, 2005, Mills agrees to use his best efforts in furtherance
of the purposes and objectives of the Partnership, to devote such
of his ti
