CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS. ASTERISKS DENOTE OMISSIONS.
EXHIBIT 10.63
EXECUTION COPY
CMG @VENTURES III, LLC
AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
THIS AMENDMENT, dated as of the 7th day of June, 2002, to the Limited
Liability Company Agreement of CMG @Ventures III, LLC (the "Company"), dated as
of August 7, 1998 (as amended to date, the "Agreement"), is among CMG@Ventures
Capital Corp., a Delaware corporation (the "Capital Member"), and @Ventures
Partners III, LLC, a Delaware limited liability company (the "Managing Member"
and together with the Capital Member, the "Members"). Capitalized terms used
herein, and not otherwise defined herein, shall have the respective meanings
ascribed thereto in the Agreement.
WHEREAS, on the date hereof, the Managing Member, in its capacity as the
general partner of each of the Funds, entered into an amendment to each of the
Fund Agreements; and
WHEREAS, in connection with such amendments, the Capital Member and the
Managing Member desire to modify certain provisions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Members hereby agree as
follows:
1. Amendment to Section 4.4. Section 4.4.2 of the Agreement is hereby
amended to add, at the end thereof, the following sentence:
"Notwithstanding anything to the contrary in this Agreement or the
Management Contract, in no event shall the Management Fee be reduced in the
event that either the Domestic Fund or the Foreign Fund (or both) is in the
Continuity Mode (i.e., the contemplated 50% reduction of the Management Fee
in such event is hereby waived)."
The corresponding provisions of the Management Contract between the Company
and the Management Company are hereby deemed to be amended in the manner
described herein, and the Management Company and the Company, and the Capital
Member (by its signature below), hereby consent to such amendment.
2. Addition of Section 4.5. Article IV of the Agreement is hereby amended
by inserting, at the end thereof, the following Section 4.5:
"Section 4.5 LP Advisory Board. In connection with the amendments to the
Fund Agreements made on or about June __, 2002, there has been established
an "LP Advisory
Board" for the Domestic Fund and the Foreign Fund. As provided in such
amendments, (i) the LP Advisory Board shall be invited to participate (in
person at the principal place of business of the Funds, or by means of
telephone conference call) once per month in the regularly scheduled weekly
meeting of the general partner of the Funds (i.e., the Managing Member), at
which meeting such general partner shall report on Fund activities, and
(ii) a representative of the Company shall be entitled to attend and
participate in all such meetings, but shall not be a member of the LP
Advisory Board. Any such representative shall be designated, and may be
removed (with or without cause, for any reason or no reason) or replaced,
by the Capital Member."
3. Amendment to Section 8.1. Section 8.1 of the Agreement is hereby amended
to read in its entirety as follows:
"Section 8.1 Events Causing Dissolution.
The Company shall dissolve and its affairs shall be wound upon the
earliest to occur of the following:
8.1.1 the Consent of all of the Members;
8.1.2 the sale or other disposition by the Company of all or
substantially all of its assets;
8.1.3 the entry of a decree of judicial dissolution under
Section 18-802 of the Act; and
8.1.4 on [***], provided that the term of the Company may be
extended beyond [***] at the request of the Managing Member, for up to
three one-year terms, provided that any such extension shall be effective
only if approved by the Capital Member."
4. In all other respects, the Agreement is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
MANAGING MEMBER: CAPITAL MEMBER:
@VENTURES PARTNERS III, LLC CMG@VENTURES CAPITAL CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------ -------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Member Title: Chief Financial Officer
-2-
The Management Company and the Company hereby consent to the amendment to
the Management Contract contemplated by Section 1 of this Amendment, as of the
date first written above.
@VENTURES MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Authorized Member
CMG @VENTURES III, LLC
By @Ventures Partners III, LLC,
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Authorized Managing Member
-3-