FIRST AMENDMENT TO THE SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 4.4
FIRST AMENDMENT TO THE
SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO THE SIXTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Amendment”) made as of the 1st day of October 2010, by and among (i) Kayak Software Corporation, a Delaware corporation (the “Company”), (ii) those persons and entities listed under the heading “Investors” on Schedule I hereto (the “Investors”) and (iii) those persons listed under the heading “Founders” on Schedule I hereto (the “Founders”). Capitalized terms not defined herein shall have the meanings ascribed to them in the Investor Rights Agreement (as defined below).
WITNESSETH:
WHEREAS, the Company, the Investors and the Founders have heretofore entered into a Sixth Amended and Restated Investor Rights Agreement, dated as of March 22, 2010 (together with all exhibits thereto, the “Agreement”) and
WHEREAS, the Company, the Investors and the Founders have mutually agreed to amend a certain provision contained in the Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the Company, the Investors and the Founders hereby agree as follows:
1. Section 1. Section 1 of the Agreement is hereby amended by deleting in its entirety the definition of “Reserved Employee Shares” found therein and replacing it with the following:
“Reserved Employee Shares” shall mean up to 12,000,000 shares of Common Stock (appropriately adjusted to reflect stock splits, stock dividends, combinations of shares and the like with respect to the Common Stock occurring after March 22, 2010) reserved by the Company from time to time for (i) the sale or issuance of shares of Common Stock to employees, consultants or non-employee directors of the Company or (ii) the issuance and/or exercise of options to purchase Common Stock granted to employees, consultants or non-employee directors of the Company, all pursuant to arrangements approved by the Board of Directors and the Series A Directors.
2. Effect of Amendment. This Amendment will be effective in accordance with Section 15(d) of the Agreement upon execution by Company, the Investors and the Founders. Except as expressly provided herein and as amended hereby, the Agreement shall remain in full force and effect in accordance with its terms.
3. Counterparts. This Amendment may be executed in counterparts.
IN WITNESS WHEREOF, the Company, the Investors and the Founders have executed this First Amendment to the Sixth Amended and Restated Investor Rights Agreement as of the date first above written.
COMPANY:
| KAYAK SOFTWARE CORPORATION | ||
| By: | /s/ Daniel Stephen Hafner | |
| Name: | Daniel Stephen Hafner | |
| Title: | President | |
Signature Page to the 1st Amendment to the Investor Rights Agreement
| FOUNDERS: | ||
| /s/ Daniel Stephen Hafner | ||
| Daniel Stephen Hafner | ||
| /s/ Paul English | ||
| Paul English | ||
| /s/ Jean A. English | ||
| Jean A. English | ||
| The Paul M. English 2009 Charitable Remainder Unitrust I | ||
| By: /s/ Paul M. English | ||
| Name: Paul M. English, Trustee | ||
| By: /s/ Jean A. English | ||
| Name: Jean A. English, Trustee | ||
| The Paul M. English 2009 Charitable Remainder Unitrust II | ||
| By: /s/ Paul M. English | ||
| Name: Paul M. English, Trustee | ||
| By: /s/ Jean A. English | ||
| Name: Jean A. English, Trustee | ||
Signature Page to the 1st Amendment to the Investor Rights Agreement
| INVESTORS: | ||||||||||
| GENERAL CATALYST GROUP II, L.P. | GENERAL CATALYST GROUP III, L.P. | |||||||||
| By: General Catalyst Partners II, L.P. | By: General Catalyst Partners III, L.P. | |||||||||
| Its General Partner | Its General Partner | |||||||||
| By: General Catalyst II, LLC | By: General Catalyst GP III, LLC | |||||||||
| Its General Partner | Its General Partner | |||||||||
| By: | /s/ William J. Fitzgerald | By: | /s/ William J. Fitzgerald | |||||||
| Name: William J. Fitzgerald | Name: William J. Fitzgerald | |||||||||
| Title: Member and Chief Financial Officer | Title: Member and Chief Financial Officer | |||||||||
| GC ENTREPRENEURS FUND II, L.P. | GC ENTREPRENEURS FUND III, L.P. | |||||||||
| By: General Catalyst Partners II, L.P. | By: General Catalyst Partners III, L.P. | |||||||||
| Its General Partner | Its General Partner | |||||||||
| By: General Catalyst GP II, LLC | By: General Catalyst GP III, LLC | |||||||||
| Its General Partner | Its General Partner | |||||||||
| By: | /s/ William J. Fitzgerald | By: | /s/ William J. Fitzgerald | |||||||
| Name: William J. Fitzgerald | Name: William J. Fitzgerald | |||||||||
| Title: Member and Chief Financial Officer | Title: Member and Chief Financial Officer | |||||||||
| GENERAL CATALYST GROUP V, L.P. | GC ENTREPRENEURS FUND V, L.P. | |||||||||
| By: General Catalyst Partners V, L.P. | By: General Catalyst Partners V, L.P. | |||||||||
| Its General Partner | Its General Partner | |||||||||
| By: General Catalyst GP V, LLC | By: General Catalyst GP V, LLC | |||||||||
| Its General partner | Its General partner | |||||||||
| By: | /s/ William J. Fitzgerald | By: | /s/ William J. Fitzgerald | |||||||
| Name: William J. Fitzgerald | Name: William J. Fitzgerald | |||||||||
| Title: Member and Chief Financial Officer | Title: Member and Chief Financial Officer | |||||||||
| GENERAL CATALYST GROUP V | ||||||||||
| SUPPLEMENTAL, L.P. | ||||||||||
| By: General Catalyst Partners V, L.P. | ||||||||||
| Its General Partner | ||||||||||
| By: General Catalyst GP V, LLC | ||||||||||
| Its General Partner | ||||||||||
| By: /s/ William J. Fitzgerald | ||||||||||
| Name: William J. Fitzgerald | ||||||||||
| Title: Member and Chief Financial Officer | ||||||||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
INVESTORS:
SEQUOIA CAPITAL XI
SEQUOIA TECHNOLOGY PARTNERS XI
SEQUOIA CAPITAL XI PRINCIPALS FUND
By: SC Xl Management, LLC
A Delaware Limited Liability Company
General Partner of Each
| By: | /s/ Michael Moritz | |||
| Name: Michael Moritz | ||||
| Title: Managing Member | ||||
SEQUOIA CAPITAL GROWTH FUND III
SEQUOIA CAPITAL GROWTH PARTNERS III
SEQUOIA CAPITAL GROWTH III PRINCIPALS FUND
By: SCGF III Management, LLC
A Delaware Limited Liability Company
General Partner of Each
| By: | /s/ Michael Moritz | |||
| Name: Michael Moritz | ||||
| Title: Managing Member | ||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
INVESTOR:
| /s/ Greg Slyngstad | ||
| Greg Slyngstad |
Signature Page to the 1st Amendment to the Investor Rights Agreement
INVESTOR:
| /s/ Daniel Stephen Hafner | ||
| Daniel Stephen Hafner |
Signature Page to the 1st Amendment to the Investor Rights Agreement
INVESTOR:
| /s/ Paul English | ||
| Paul English | ||
| /s/ Jean A. English | ||
| Jean A. English | ||
Signature Page to the 1st Amendment to the Investor Rights Agreement
| INVESTORS: | ||||
| ACCEL LONDON II L.P. | ||||
| By: Accel London II Associates L.P. | ||||
| Its: General Partner | ||||
| By: Accel London II Associates L.L.C. | ||||
| Its: General Partner | ||||
| By: | (illegible) | |||
| Name: | ||||
| Title: Attorney in Fact | ||||
| ACCEL LONDON INVESTORS 2006 L.P. | ||||
| By: Accel London II Associates L.L.C. | ||||
| Its: General Partner | ||||
| By: | (illegible) | |||
| Name: | ||||
| Title: Attorney in Fact | ||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
INVESTORS:
TRIDENT CAPITAL FUND-V, L.P
TRIDENT CAPITAL FUND-V AFFILIATES FUND, L.P.
TRIDENT CAPITAL FUND-V AFFILIATES FUND (Q), L.P.
TRIDENT CAPITAL FUND-V PRINCIPALS FUND, L.P.
TRIDENT CAPITAL PARALLEL FUND-V, C.V.
Executed on behalf of the foregoing funds
by the undersigned, as an authorized signatory
of the respective general partner of each such fund:
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| (signature) | ||
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| (print name) | ||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
INVESTORS:
| NORWEST VENTURE PARTNERS VII-A, LP | NORWEST VENTURE PARTNERS X, LP | |||||||||
| By: Itasca VC Partners VII-A, LLC | By: Genesis VC Partners X, LLC | |||||||||
| Its General Partner | Its General Partner | |||||||||
| By: |
| By: |
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| Name: |
| Name: |
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| Title: |
| Title: |
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Signature Page to the 1st Amendment to the Investor Rights Agreement
| INVESTOR: | ||
| OAK INVESTMENT PARTNERS XII, LIMITED PARTNERSHIP | ||
| By: Oak Associates XII, LLC, its General Partner | ||
| By: | /s/ Iftikar A. Ahmed | |
| Name: Iftikar A. Ahmed | ||
| Title: Managing Member | ||
Signature Page to the 1st Amendment to the Investor Rights Agreement
| INVESTORS: | ||||
| TENAYA CAPITAL V, L.P. | ||||
| By: | Tenaya Capital V GP, L.P., its General Partner | |||
| By: | Tenaya Capital V GP, LLC, its General Partner | |||
| By: |
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| Name: |
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| Title: |
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| TENAYA CAPITAL V-P, L.P. | ||||
| By: | Tenaya Capital V GP, L.P., its General Partner | |||
| By: | Tenaya Capital V GP, LLC, its General Partner | |||
| By: |
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| Name: |
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| Title: |
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| TENAYA CAPITAL B, LP | ||||
| By: |
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| By: |
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| Name: |
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| Title: |
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Signature Page to the 1st Amendment to the Investor Rights Agreement
| INVESTOR: | ||||
| SILICON VALLEY BANK | ||||
| By: |
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| Name: | ||||
| Title: | ||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
| INVESTORS: | ||||
| GOLDHILL VENTURE LENDING 03, L.P. | ||||
| By: |
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| Name: | ||||
| Title: | ||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
INSTITUTIONAL VENTURE PARTNERS XII, L.P.
| By: Institutional Venture Management XII, LLC | ||||
| Its General Partner | ||||
| By: | (illegible) | |||
| Name: | ||||
| Title: | ||||
Signature Page to the 1st Amendment to the Investor Rights Agreement
Schedule I
Investors:
General Catalyst Group II, L.P.
GC Entrepreneurs Fund II, L.P.
General Catalyst Group III, L.P.
GC Entrepreneurs Fund III, L.P.
General Catalyst Group V, L.P.
General Catalyst Group V Supplemental, L.P.
GC Entrepreneurs Fund V, L.P.
20 University Road, Suite 450
Cambridge, MA 02138
Fax: (617) ###-###-####
Attn: Joel Cutler
Sequoia Capital Growth Fund III
Sequoia Capital Growth Partners III
Sequoia Capital Growth III Principals Fund
Sequoia Capital XI
Sequoia Technology Partners XI
Sequoia Capital XI Principals Fund
3000 Sand Hill Road
Bldg 4, Suite 180
Menlo Park, CA 94025
America Online, Inc.
22000 AOL Way
Dulles, VA 20166
Attn: Deputy General Counsel
Fax: (703) ###-###-####
Daniel Stephen Hafner
1316 Pequot Avenue
Southport, CT 06890
Fax: (203) ###-###-####
Paul English
204 Pleasant Street
Arlington, MA 02474
Fax: (781) ###-###-####
Greg Slyngstad
1736 W. Beaver Lake Drive SE
Sammamish, WA 98075
Fax: (425) ###-###-####
Signature Page to the 1st Amendment to the Investor Rights Agreement
Accel London II, L.P.
Accel London Investors 2006 L.P.
428 University Avenue
Palo Alto, CA ###-###-####
Fax: (650) ###-###-####
Attn: Richard Zamboldi
Notices also sent to
Accel Partners
16 St. James’s Street
London SW1A 1ER
United Kingdom
Fax: +44 (0) 20 7170 1099
Attn: Jonathan Biggs
Attn: Harry Nelis
Norwest Venture Partners VII-A
Norwest Venture Partners X, LP
525 University Avenue
Palo Alto, Ca. 94301
650 ###-###-####
Oak Investment Partners XII, Limited Partnership
One Gorham Island
Westport, CT 06880
Attn: Iftikar A. Ahmed
Lehman Brothers Venture Partners V L.P.
Lehman Brothers Venture Partners V-P, L.P.
3000 Sand Hill Road, Building 3, Suite 190
Menlo Park, California 94025-7103
Tenaya Capital B, LP
3000 Sand Hill Road, Building 3, Suite 190
Menlo Park, California 94025-7103
Trident Capital Fund-V, L.P
Trident Capital Fund-V Affiliates Fund, L.P.
Trident Capital Fund-V Affiliates Fund (Q), L.P.
Trident Capital Fund-V Principals Fund, L.P.
Trident Capital Parallel Fund-V, C.V.
505 Hamilton Avye, Suite 200
Palo Alto, CA 94301
Gold Hill Venture Lending 03, L.P.
Two Newton Executive Park, Suite 203
Newton, MA 02462
The Paul M. English 2009 Charitable Remainder Unitrust I
204 Pleasant Street
Arlington, MA 02476
The Paul M. English 2009 Charitable Remainder Unitrust II
204 Pleasant Street
Arlington, MA 02476
Signature Page to the 1st Amendment to the Investor Rights Agreement
Jean A. English
51 Winchester Road
Arlington, MA 02474
Signature Page to the 1st Amendment to the Investor Rights Agreement
Founders:
Daniel Stephen Hafner
1316 Pequot Avenue
Southport, CT 06890
Fax: (203) ###-###-####
Paul English
204 Pleasant Street
Arlington, MA 02474
Signature Page to the 1st Amendment to the Investor Rights Agreement
