EXHIBIT 10.5
LIMITED LIABILITY COMPANY AGREEMENT OF
CMGI @VENTURES IV, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT of CMGI @Ventures IV, LLC (the
"LLC"), dated as of June 1, 2000, is by and among the persons named on Schedule
--------
A attached hereto, each of whom is designated as a Class A Member, a Class B
-
Member or a Class C Member.
WHEREAS, CMG @Ventures Capital Corp. formed the LLC as a limited
liability company pursuant to the Delaware Limited Liability Company Act, by the
filing, on November 10, 1999, in the Office of the Secretary of State of the
State of Delaware, of a Certificate of Formation for the LLC (the
"Certificate"); and
WHEREAS, effective as of the date hereof, the persons designated on
Schedule A as Class B Members and Class C Members have been admitted to the LLC;
----------
and
WHEREAS, the Members desire to enter into this Agreement to set forth
the agreements among the Members with respect to the LLC, all as more fully set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the
agreements hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
The following capitalized terms used in this Agreement shall have the
respective meanings ascribed to them below:
"Act" means the Delaware Limited Liability Company Act, in effect at
the time of the initial filing of the Certificate with the Office of the
Secretary of State of the State of Delaware, and as thereafter amended from time
to time.
"Affiliate" shall mean, with respect to any specified person or entity,
(i) any person or entity that directly or indirectly controls, is controlled by,
or is under common control with such specified person or entity; (ii) any person
or entity that directly or indirectly controls 10% or more of the outstanding
equity securities of the specified entity or of which the specified person or
entity is directly or indirectly the owner of 10% or more of any class of equity
securities; (iii) any person or entity that is an officer of, director of,
manager of, partner in, or trustee of, or serves in a similar capacity with
respect to, the specified person or entity or of which the specified person or
entity is an officer, director, partner, manager or trustee, or with respect to
which the specified person or entity serves in a similar capacity; or (iv) any
person that is a spouse, mother, father, brother, sister or lineal descendant of
the specified person.
"Agreement" means this Limited Liability Company Agreement as it may be
amended, supplemented, or restated from time to time.
"Aggregate Change of Control Purchase Price" shall have the meaning
ascribed thereto in Section 8.04.
"Appraiser" shall have the meaning ascribed thereto in Section 8.04.
"Budget" shall have the meaning ascribed thereto in Section 6.05(a).
"Capital Account" means a separate account maintained for each Member
and adjusted in accordance with Treasury Regulations under Section 704 of the
Code. To the extent consistent with such Treasury Regulations, the adjustments
to such accounts shall include the following:
(i) There shall be credited to each Member's Capital Account
the amount of any cash actually contributed by such Member to the capital of the
LLC, the fair market value of any property contributed by such Member to the
capital of the LLC, the amount of liabilities of the LLC assumed by the Member
or to which property distributed to the Member was subject and such Member's
share of the Net Profits of the LLC and of any items in the nature of income or
gain separately allocated to the Members; and there shall be charged against
each Member's Capital Account the amount of all cash distributions to such
Member, the fair market value of any property distributed to such Member by the
LLC, the amount of liabilities of the Member assumed by the LLC or to which
property contributed by the Member to the LLC was subject and such Member's
share of the Net Losses of the LLC and of any items in the nature of losses or
deductions separately allocated to the Members.
(ii) If the LLC at any time distributes any of its assets
kind to any Member, the Capital Account of each Member shall be adjusted to
account for that Member's allocable share of the Net Profits, Net Losses or
items thereof that would be realized by the LLC if it sold the assets that were
distributed at their respective fair market values (taking Code Section 7701(g)
into account) immediately prior to their distribution.
"Capital Contribution" means the aggregate amount of cash and the fair
market value (as determined in accordance with Section 6.09 hereof) of any
property contributed to the LLC by a Member.
"Class A Member" shall refer severally to any person named as a Class A
Member in this Agreement and any person who becomes an additional, substitute or
replacement Class A Member as permitted by this Agreement, in such person's
capacity as a Class A Member of the LLC. "Class A Members" shall refer
collectively to all such persons in their capacities as Class A Members.
"Class B Member" shall refer severally to any person named as a Class B
Member in this Agreement and any person who becomes an additional, substitute or
replacement Class B Member as permitted by this Agreement, in such person's
capacity as a Class B Member of the LLC. "Class B Members" shall refer
collectively to all such persons in their capacities as Class B Members.
"Class C Member" shall refer severally to any person named as a Class C
Member in this Agreement and any person who becomes an additional, substitute or
replacement Class C Member as permitted by this Agreement, in such person's
capacity as a Class C Member of the
-2-
LLC. "Class C Members" shall refer collectively to all such persons in their
capacities as Class C Members.
"Carrying Value" means, with respect to any asset, the asset's adjusted
basis for federal income tax purposes; provided, however, that (i) the initial
-------- -------
Carrying Value of any asset contributed to the LLC shall be adjusted to equal
its gross fair market value at the time of its contribution and (ii) the
Carrying Values of all assets held by the LLC shall be adjusted to equal their
respective gross fair market values (taking Code Section 7701(g) into account)
upon an adjustment to the Capital Accounts of the Members described in Treasury
Regulation Section 1.704-1(b)(2)(iv)(f). The Carrying Value of any asset whose
Carrying Value was adjusted pursuant to the preceding sentence thereafter shall
be adjusted in accordance with the provisions of Treasury Regulation Section
1.704-1(b)(2)(iv)(g).
"Cause" shall mean, in connection with the termination of a Class B or
Class C Member's relationship with the Employer:
(i) indictment for commission, conviction of, or plea of
nolo contendere to, (A) a felony, whether or not business related, which may
injure the business or reputation of the Employer, or (B) a crime of moral
turpitude;
(ii) theft, embezzlement of assets of, or other financial
fraud against, the Employer;
(iii) a material breach of any agreement between the Class B
or Class C Member and the Employer including, without limitation, any violation
of the covenants set forth in Sections 6.06 and 6.07 below, which breach is not
cured within 30 days after written notice of such breach is given to such Member
by the Employer;
(iv) the willful and continued failure by the Class B or
Class C Member to substantially perform his or her duties (other than as a
result of incapacity due to physical or mental illness);
(v) misappropriation for personal use of any material
asset or business opportunity of the Employer; or
(vi) neglect of duties or responsibilities as an employee
of the Employer, or as a Class B or Class C Member, or dishonesty or
incompetence, or willful misconduct, which in any case adversely affects the
business of the Employer, but only if there has been a good faith determination
by Two-thirds in Number of the Class B Members (excluding any Class B Member
which is the subject of the determination) that such neglect or misconduct or
dishonesty or incompetence has occurred.
Notwithstanding the foregoing, with respect to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
shall be deemed to have been terminated with Cause if there occurs a "Cause
Termination" under the ▇▇▇▇▇▇ Letter Agreement.
"Certificate" means the Certificate of Formation creating the LLC, as
it may, from time to time, be amended in accordance with the Act.
-3-
"Change of Control" shall have the meaning ascribed thereto in Section
8.04.
"Change of Control Purchase Price" shall have the meaning ascribed
thereto in Section 8.04.
"CMGI" means CMGI Inc., a Delaware corporation.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Distributable Other Cash" means, with respect to any fiscal period,
the sum of (i) the excess of (A) Other Cash Receipts over (B) the Expenses which
the Class B Members allocate to Short-Term Investments and other activities that
produce Other Cash Receipts in accordance with Exhibit 2 hereto.
---------
"Employer" shall mean, for any Class B or Class C Member, the LLC,
@Ventures Management LLC, CMGI or any Affiliate of any of them that employs the
Class B or Class C Member on a substantially full-time basis. For purposes of
this Agreement, a Portfolio Company shall not constitute an Affiliate of any of
the LLC, or CMGI (and a Class B or Class C Member shall not be deemed to be
employed by an Employer if such Class B or Class C Member is employed by a
Portfolio Company), unless the Class A Member specifically elects in writing to
treat a Portfolio Company as an Affiliate and such Portfolio Company falls
within the definition of "Affiliate" set forth above.
"Event of Forfeiture" shall mean and shall be deemed to have occurred
in the event that:
(x) a Class B or Class C Member dies or becomes
mentally or physically disabled (as determined by a physician licensed
in the Commonwealth of Massachusetts, selected by the Class B Members
exclusive of any Class B Member which is the subject of the
determination) or a conservator or guardian is appointed for the
benefit of any Class B or Class C Member or his property;
(y) the relationship of such Class B or Class C
Member to all Employers is terminated by such Member or by the
Employer, in either case without Cause (subject to clause (z) below in
the case of a termination by the Member without cause), or for any
reason other than the reasons specified in clauses (x) and (z) of this
definition (each of the foregoing, a "Clause Y Event"); or
(z) the relationship of such Class B or Class C
Member to the LLC is (I) terminated by the LLC with Cause (in
accordance with the procedures described in Section 6.01(g) below), or
(II) terminated by the Class B or Class C Member, following which
termination it is determined (in accordance with the procedures
described in Section 6.01(g) below) that the LLC had Cause to terminate
such Member (each of the foregoing, a "Clause Z Event").
An Event of Forfeiture for a Class B or Class C Member whose relationship with
all Employers was terminated pursuant to clause (y) may thereafter occur if any
Clause Z Event occurs with respect to such Class B or Class C Member.
-4-
Notwithstanding the foregoing, with respect to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an Event
of Forfeiture shall be deemed to have occurred if an "Event of Termination"
occurs with respect to ▇▇▇▇▇▇ for purposes of the ▇▇▇▇▇▇ Letter Agreement.
"Expenses" shall mean, for any fiscal period, any and all expenses of
the LLC (other than Unreimbursed Acquisition Expenses and expenses incurred in
connection with the acquisition of an Investment by the LLC which were
reimbursed by a third party), including:
(i) cash disbursements for all items which are customarily
considered to be "operating expenses", including without limitation amounts paid
by the LLC under Section 6.04;
(ii) payments of interest, principal and premium and points
and other costs of borrowing under any indebtedness of the LLC;
(iii) payments made to purchase inventory or capital assets
other than Investments, and capital construction, rehabilitation, alterations
and improvements;
(iv) payments (other than the purchase price) made in
connection with the purchase or sale of securities, and brokerage commissions,
finders fees and transaction costs;
(v) amounts set aside as reserves for working capital,
contingent liabilities, replacements or for any of the expenditures described in
clauses (i) through
(iv) above which are deemed by the Class B Members (in
their reasonable discretion) to be necessary to meet the current and anticipated
future needs of the LLC; an d
(vi) the amount of any economic loss actually realized with
respect to any Short-Term Investments of the LLC.
"▇▇▇▇▇▇ Letter Agreement" means that certain letter agreement dated as
of September 14, 2000 between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and CMGI @Ventures, Inc.
"Follow-on Investment" shall mean an Investment in securities of a
Portfolio Company in which the LLC owns securities or debt instruments.
"Former Profit Member" shall mean any person holding an interest in the
LLC as a Profit Member as to whom an Event of Forfeiture has occurred.
"Fully Loaded Investment Cost" means, for a particular Investment, an
amount equal to the sum of (i) the aggregate purchase price paid by the LLC for
such Investment, (ii) the aggregate Unreimbursed Acquisition Expenses
attributable to such Investment and (iii) the aggregate amount of Expenses
allocated to such Investment (in accordance with Exhibit 2 hereto) to the extent
---------
such Expenses were considered to be funded by Capital Contributions as
determined in accordance with Exhibit 2 hereto. It is the intention of the
---------
Members that the amount of any Capital Contribution will ultimately be allocated
to the Fully Loaded Investment Cost of one or more Investments in accordance
with Exhibit 2 hereto.
---------
"Initial Election" shall have the meaning ascribed thereto in Section
8.04.
-5-
"Investment" means an investment in a Portfolio Company made by the
LLC, including without limitation a Follow-on Investment. As and when the LLC
makes an Investment, there shall be attached to this Agreement a Schedule for
such Investment, which shall reflect the information described in Section
3.03(a). Each such Schedule is hereinafter referred to as an "Investment
Schedule" and all such Schedules are referred to collectively as the "Investment
Schedules." The term "Investment" shall not include Short-Term Investments made
by the LLC; provided, however, that investments funded from Net Investment
-------- -------
Receipts attributable to a particular Investment shall be considered to be the
successor of such Investment and shall be treated for all purposes of this
Agreement as the original Investment rather than as one or more Short-Term
Investments.
"Investment Loss" shall mean, with respect to any Investment, the
excess, if any, of the Fully Loaded Investment Cost relating to such Investment
(reduced by the amount of any previously recorded Investment Losses with respect
to such Investment) over (i) the amount realized by the LLC upon a disposition
of the Investment or, if the LLC has not disposed of the Investment, (ii) the
lower of (A) the lowest fair market value of the Investment reflected at any
time on the balance sheet of the LLC for financial accounting purposes and (B)
the lowest fair market value of the Investment at any time as determined by the
Class B Members in their reasonable discretion.
"Investment Percentage Interest" means each Member's Percentage
Interest in an Investment, as specified on the Investment Schedule for such
Investment.
"Investment Receipts" shall mean, with respect to any Investment, the
amount of any cash and the fair market value (as determined in accordance with
Section 6.09 hereof) of any property received by the LLC with respect to such
Investment. For this purpose, any Investment held by the LLC shall be considered
to give rise to a receipt at the time it is distributed to the Members.
"LLC" means the limited liability company formed pursuant to the
Certificate and this Agreement, as it may from time to time be constituted and
amended.
"Majority in Number of the Class B Members" means, with respect to a
particular action or matter, a majority in number of the Class B Members then
entitled to vote on the action.
"Marketable Securities" means securities of the LLC (i) that are
freely tradeable pursuant to a registration under the Securities Act, or an
exemption therefrom, (ii) that immediately after giving effect to their
distribution will not be subject to any contractual restriction on transfer,
(iii) that will be traded on a national securities exchange or reported through
the National Association of Securities Dealers Automated Quotation System, and
(iv) that may be sold without regard to volume limitations.
"Member" shall refer severally to any person named as a Class A Member,
Class B Member or Class C Member in this Agreement and any person who becomes an
additional, substitute or replacement Class A, Class B or Class C Member as
permitted by this Agreement, in such person's capacity as a Member of the LLC.
"Members" shall refer collectively to all such persons in their capacities as
Members.
-6-
"Net Investment Receipts" shall mean, with respect to any particular
Investment for any fiscal period, the excess of all Investment Receipts of the
LLC with respect to such Investment for such fiscal period over the aggregate
amount of Expenses relating to such Investment for such fiscal period. The
amount of Expenses allocable to a particular investment shall be determined in
accordance with Section III of Exhibit 2 hereto.
---------
"Net Profits" and "Net Losses" mean the taxable income or loss, as the
case may be, for a period as determined in accordance with Code Section 703(a)
computed with the following adjustments:
(i) Items of gain, loss, and deduction shall be computed
based upon the Carrying Values of the LLC's assets (in accordance with Treasury
Regulation Sections 1.704(b)(2)(iv)(g) and/or 1.704-3(d)) rather than upon the
assets' adjusted bases for federal income tax purposes;
(ii) Any tax-exempt income received by the LLC shall be
included as an item of gross income;
(iii) The amount of any adjustments to the Carrying Values
of any assets of the LLC pursuant to Code Section 743 shall not be taken into
account;
(iv) Any expenditure of the LLC described in Code Section
705(a)(2)(B) (including any expenditures treated as being described in Section
705(a)(2)(B) pursuant to Treasury Regulations under Code Section 704(b)) shall
be treated as a deductible expense;
(v) The amount of items of income, gain, loss or
deduction specially allocated to any Members pursuant to Sections 5.02 or 5.03
shall not be included in the computation;
(vi) The amount of any items of Net Profits or Net Losses
deemed realized pursuant to paragraph (ii) of the definition of "Capital
Account" shall be included in the computation;
(vii) The amount of any adjustment to the Carrying Value of
an asset of the LLC pursuant to clause (ii) of the definition of "Carrying
Value" shall be included as an item of gain (if positive) or loss (if negative);
and
(viii) The amount of any Net Profits Attributable to Other
Cash Receipts shall be excluded from the computation.
"Net Profits Attributable to Other Cash Receipts" means Net Profits
computed solely with respect to the activities and assets that produce Other
Cash Receipts. For purposes of computing Net Profits Attributable to Other Cash
Receipts, items of deduction or loss shall be allocated to such activities and
assets in a manner similar to that set forth in Exhibit 2 hereto for the
allocation of Expenses.
-7-
"Other Cash Receipts" means cash receipts of the LLC, exclusive of
Capital Contributions of the Members, which the Class B Members reasonably
determine are not attributable to Investments; provided, however, that Other
--------- -------
Cash Receipts shall not include any receipts of the LLC from a disposition of a
Short-Term Investment to the extent such receipts do not exceed the amount of
the original acquisition price of the Short-Term Investment plus the amount of
any Expenses previously allocated to such Short-Term Investment to the extent
treated as funded by Capital Contributions as a result of the application of
Sections I or II of Exhibit 2 hereto (i.e., Other Cash Receipts attributable to
Short-Term Investments generally shall only include receipts attributable to
income and gain realized with respect to such Short-Term Investments).
"Percentage Interest" shall be the percentage interest of a Member set
forth in Schedule B, as amended from time to time, and subject to adjustment
----------
pursuant to Sections 3.04, 8.02 and 8.03.
"Permitted Transferee" means (A) any Member; (B) any spouse, parent,
lineal descendant (including a natural or adopted child, grandchild, etc.),
brother, sister, or spouse of a brother or sister of a Member; (C) any trust,
corporation or partnership or other entity in which any Member and/or one of the
persons designated in clause (B) is a principal, beneficiary, majority
stockholder, member or limited or general partner with an aggregate interest in
profits and losses of greater than fifty percent; (D) grantors or beneficiaries
of a trust which is (or of which the trustees thereof are, in their capacities
as trustees) a Member; or (E) charitable foundations created or primarily
endowed by a Member or a member of his or her family.
"Portfolio Company" means the issuer of any security in which the LLC
has invested, other than issuers in which the LLC has made short-term
investments pending the making of long-term investments.
"Profit Member" shall refer severally to any person named as a Class B
Member or a C Member in this Agreement and any person who becomes an additional,
substitute or replacement Class B Member or Class C Member as permitted by this
Agreement, in such person's capacity as a Class B Member or Class C Member of
the LLC. "Profit Members" shall refer collectively to all such persons in their
capacities as Profit Members.
"Qualifying Change of Control" shall have the meaning ascribed thereto
in Section 8.04.
"Securities Act" means the Securities Act of 1933, as
amended.
"Short-Term Investment" means any investment (other than an
Investment), including any bank, money market or similar account, in which the
LLC invests pending the acquisition of one or more Investments. Such term shall
not include any investment characterized as an Investment pursuant to the
proviso to the last sentence of the definition of "Investment."
"Target Balance" means, for each Member at any point in time, either
(i) a positive amount equal to the net amount, if any, the Member would be
entitled to receive or (ii) a negative amount equal to the net amount the Member
would be required to pay or contribute to the LLC or to any third party,
assuming, in each case, that (A) the LLC sold all of its assets for an aggregate
purchase price equal to the aggregate Carrying Value of the LLC's assets, (B)
any
-8-
Member that was obligated to contribute to the LLC pursuant to Section 3.01(c)
hereof or otherwise (including the amount any Member was obligated to pay to any
third party pursuant to the terms of any liability of the LLC or pursuant to any
guaranty, indemnity or similar ancillary agreement or arrangement entered into
in connection with any liability of the LLC) contributed such amount to the LLC,
(C) all liabilities of the LLC were paid in accordance with their terms from the
amounts specified in clauses (A) and (B) of this sentence and (D) the balance,
if any, of the amounts specified in clauses (A) and (B) of this sentence was
distributed in accordance with Section 4.01(b) (taking into account the last
sentence thereof) and (c) hereof, as applicable.
"Termination of Contributions" shall be deemed to have occurred upon
(i) the Class A Member's failure for any reason to make any contributions of
capital for Investments (other than Follow-On Investments) proposed in good
faith by the Class B Members under Section 3.01(b)(i) for at least 120
consecutive days, provided that, during such 120-day period the Class B Members
proposed in good faith at least three Investments (other than Follow-On
Investments) or (ii) the Class A Member's written notice to the LLC that it
intends to suspend (permanently or temporarily) its investments in the LLC for a
period of 120 days or more; except that, in either case, if during the 60-day
period following such 120-day period (in the case of clause (i)) or any such
notice (in the case of clause (ii)), (x) the Class A Member makes contributions
for at least two Investments (other than Follow-On Investments) which are
proposed in good faith by the Class B Members during such 60-day period or (y)
the Class B Members fail to propose in good faith at least two Investments
(other than Follow-on Investments) during such 60-day period, then a Termination
of Contributions shall be deemed not to have occurred.
"Two-thirds in Number of the Class B Members" means, with respect to a
particular action or matter, as least two-thirds in number of the Class B
Members entitled to vote on the action.
"Unrecovered Capital Contribution" shall have the meaning ascribed
thereto in Section 8.04.
"Unreimbursed Acquisition Expense" means, with respect to any
Investment, the amount of any costs or expenses incurred by the LLC in
connection with the acquisition of such Investment, as reasonably determined by
the Class B Members, which costs and expenses were not reimbursed by a third
party.
"Unreturned Fully Loaded Investment Cost" means, at any point in time,
with respect to an Investment, the excess, if any, of (i) the aggregate Fully
Loaded Investment Cost of such Investment over (ii) the aggregate cumulative
amount distributed pursuant to Section 4.01(b)(i) or (ii), as applicable, with
respect to such Investment.
"Vesting Commencement Date" means, for each Class B or Class C Member,
the Vesting Commencement Date specified on Schedule A attached hereto.
----------
"Vesting Escrow" shall have the meaning ascribed thereto in Section
4.02.
"Vested Percentage" means, for any Profit Member, a fraction (expressed
as a percentage) the numerator of which is the number of whole calendar quarters
that have elapsed
-9-
between such Profit Member's Vesting Commencement Date and the date of
determination and the denominator of which is 20; provided, however, that (I)
--------- -------
the Vested Percentage of each Profit Member prior to the first anniversary of
such Member's Vesting Commencement Date shall equal zero; (II) upon the
occurrence of a Change of Control or a Termination of Contributions, each Profit
Member's and Former Profit Member's Vested Percentage shall equal 100% and (III)
in no event shall a Profit Member's Vested Percentage exceed 100%.
ARTICLE II
GENERAL PROVISIONS
2.01 Formation of Limited Liability Company; Foreign Qualification. The
-------------------------------------------------------------
Class A Member formed the LLC as a limited liability company under the Act on
November 10, 1999, by the filing on such date of the Certificate in the Office
of the Secretary of State of the State of Delaware. The Certificate was amended
by the filing of a certificate of amendment thereto, which was filed in the
Office of the Secretary of State of the State of Delaware on December 10, 1999.
The LLC shall comply, to the extent procedures are available, with all
requirements necessary to qualify the LLC as a foreign limited liability company
in each jurisdiction in which such qualification is either necessary or
appropriate. Each Member shall execute, acknowledge, swear to and deliver all
certificates and other instruments conforming to this Agreement that are
necessary or appropriate to qualify, or, as appropriate, to continue or
terminate the foreign qualification of, the LLC as a limited liability company
in all such jurisdictions in which the LLC may conduct business.
2.02 Name of the LLC. The LLC was formed under the name CMG @Ventures IV,
---------------
LLC. The name of the LLC was changed, effective December 10, 1999, to CMGI
@Ventures IV, LLC. 2.03 Business of the LLC. The general character of the
business of the LLC is to (a) make equity and equity-related investments in
business enterprises of all types; (b) manage, supervise, vote, hold and dispose
of such investments, and receive the profits and losses therefrom; and (c)
engage in any activities directly or indirectly related or incidental thereto
which may be lawfully conducted by a limited liability company formed under the
laws of the State of Delaware.
2.04 Place of Business of the LLC; Resident Agent. The address of the
--------------------------------------------
principal place of business of the LLC, and the office at which the LLC will
maintain its records is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
LLC's registered office in Delaware is c/o Corporation Trust Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, and the LLC's registered agent for
service of process in Delaware is Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇. The Class B Members may at any time and from time
in-to time change the LLC's principal place of business, establish additional
places of business, change the LLC's registered agent or registered office in
Delaware, and in each case shall promptly provide notice of any of such actions
(identifying all such offices and agents) to all Members.
-10-
2.05 Duration of the LLC. The term of the LLC commenced on November 10,
-------------------
1999, and the LLC shall have perpetual existence, unless earlier terminated in
accordance with Article IX hereof.
2.06 Members' Names and Addresses. The name and address of each Member
----------------------------
are set forth on Schedule A. Additional Members may be admitted in accordance
----------
with the procedures specified in Article VIII. A Member may not resign from the
LLC at any time.
2.07 No Partnership. The LLC is not intended to be a general partnership,
--------------
limited partnership or joint venture, and no Member shall be considered to be a
partner or joint venturer of any other Member, for any purposes other than
foreign and domestic federal, state, provincial and local income tax purposes,
and this Agreement shall not be construed to suggest otherwise.
2.08 Title to LLC Property. All property owned by the LLC, whether real
---------------------
or personal, tangible or intangible, shall be deemed to be owned by the LLC as
an entity, and no Member, individually, shall have any ownership of such
property. The LLC may hold any of its assets in its own name or in the name of
its nominee, which nominee may be one or more trusts. Any property held by a
nominee trust for the benefit of the LLC shall, for purposes of this Agreement,
be treated as if such property were directly owned by the LLC.
2.09 Nature of Member's Interest. The interests of all of the Members in
---------------------------
the LLC are personal property and shall not, under any circumstances, be
considered real property.
2.10 Investment Representations. Each Member, by execution of this
--------------------------
Agreement or an amendment hereto reflecting such Member's admission to the LLC,
hereby represents and warrants to the LLC that:
(a) It is acquiring an interest in the LLC for its own account for
investment only, and not with a view to, or for sale in connection with, any
distribution thereof in violation of the Securities Act or any rule or
regulation thereunder.
(b) It understands that (i) the interest in the LLC it is
acquiring has not been registered under the Securities Act or applicable state
securities laws and cannot be resold unless subsequently registered under the
Securities Act and such laws or unless an exemption from such registration is
available, (ii) such registration under the Securities Act and such laws is
unlikely at any time in the future and neither the LLC nor the Members are
obligated to file a registration statement under the Securities Act or such
laws, and (iii) the assignment, sale, transfer, exchange, or other disposition
of the interests in the LLC is restricted in accordance with the terms of this
Agreement.
(c) It has had such opportunity as it has deemed adequate to ask
questions of and receive answers from representatives of the LLC concerning the
LLC, and to obtain from representatives of the LLC such information which the
LLC possesses or can acquire without unreasonable effort or expense, as is
necessary to evaluate the merits and risks of an investment in the LLC.
(d) It has, either alone or with its professional advisers,
sufficient experience in business, financial and investment matters to be able
to evaluate the merits and risks involved
-11-
in investing in the LLC and to make an informed investment decision with respect
to such investment.
(e) It can afford a complete loss of the value of its investment in
the LLC and is able to bear the economic risk of holding such investment for an
indefinite period.
(f) If it is an entity, (i) it is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization, (ii) it
has full organizational power to execute and deliver this Agreement and to
perform its obligations hereunder, (iii) its execution, delivery and performance
of this Agreement has been authorized by all requisite action on behalf of the
entity, and (iv) it has duly executed and delivered this Agreement.
(g) In the case of each Profit Member, its interest in the LLC is
subject to vesting and forfeiture, as provided in this Agreement.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.01 Capital Contributions.
---------------------
(a) Each Member shall be required to make Capital Contributions to
the LLC in accordance with this Section 3.01.
(b) As and when the LLC requires capital, the Class A Member shall
contribute the amount required, subject to and in accordance with the provisions
of this Section 3.01(b).
(i) As and when the LLC requires capital to make an Investment,
the Class B Members shall provide a notice (which notice may be given in writing
or by electronic mail) to the Class A Member which describes (A) the Investment,
(B) the aggregate purchase price of such proposed Investment, (C) the
Unreimbursed Acquisition Expenses, if any, reasonably expected to be incurred in
connection with the acquisition of the Investment, and (D) the expected date on
which such Investment is proposed to be made. If the Class A Member approves the
making of such Investment, it shall contribute to the capital of the LLC the
aggregate purchase price and Unreimbursed Acquisition Expenses specified in the
notice, on or before the date of the anticipated purchase of the Investment. The
Class A Member may approve or disapprove the making of any proposed Investment
in its sole and absolute discretion. If the Class A Member fails to notify the
Class B Members of its decision with respect to the proposed Investment, it
shall be deemed to have disapproved the proposed Investment.
(ii) As and when the LLC requires funds to finance its operations
(other than amounts of the types described in Section 3.01(b)(i) above), the
Class B Members shall notify the Class A Member of the amount required and the
intended uses thereof (which notice may be given in writing or by electronic
mail). Provided that such amounts and the purposes for which they are proposed
to be used are consistent with the Budget for the LLC as then in effect, the
Class A Member shall contribute the funds requested in the notice within 10
business days after receipt of such notice.
-12-
(iii) The Class B Members may call for capital from the Class A
Member for any other purpose from time to time as needed; provided that the
Class A Member shall not be obligated to contribute any such amount unless it
consents thereto, which consent may be withheld in the Class A Member's sole and
absolute discretion. In connection with any such call, the Class B Members shall
provide to the Class A Member notice of a call for capital (which notice may be
given in writing or by electronic mail), which notice shall specify the
aggregate amount called for, a general statement of the purposes for which such
capital call is being made, and the date on which the capital contribution is
due (which date shall, to the extent reasonably practicable, be not less than 10
business days after the date of the notice).
(c) If and to the extent that upon dissolution of the LLC, the Profit
Members as a group shall have received, during the term of the LLC, aggregate
distributions which exceed an amount equal to 20% of the excess of (x) all
distributions made by the LLC to all Members (other than distributions pursuant
to Section 4.01(c)) over (y) the aggregate amount of the Capital Contributions
made by the Class A Member to the LLC, then each Profit Member shall contribute
to the LLC (which shall promptly distribute such amounts to the Class A Member)
a portion of such amount based on the aggregate amount of distributions received
by such Profit Member from the LLC as compared to the aggregate amount of
distributions received by all Profit Members from the LLC. Any amount held for
the benefit of a Profit Member in a Vesting Escrow shall be applied towards such
Profit Member's contribution obligation hereunder, and the remaining amount of
such obligation, if any, shall be funded by such Profit Member. Notwithstanding
the foregoing, in no event shall any Profit Member be obligated to contribute to
the LLC any amount pursuant to this clause (ii) in excess of (x) the total
amount of distributions received by such Profit Member (or held in the Vesting
Escrow for the benefit of such Profit Member) from the LLC minus (y) the
cumulative Tax Distribution Amounts which such Profit Member would have received
assuming for purposes of this clause (y) that the LLC had paid the maximum Tax
Distribution Amount permitted under Section 4.01(d) in each fiscal year. The
obligation of each Member to make Capital Contributions pursuant to this Section
3.01(c) shall survive the withdrawal, resignation or default of any Profit
Member, and the occurrence of an Event of Forfeiture of any Profit Member (and
the Capital Contribution obligation contemplated hereby shall be borne by all
persons who at any time received distributions from the LLC in their capacities
as Profit Members or Former Profit Members).
(d) The LLC shall maintain written records indicating the amount of
Capital Contributed by the Class A Member to the LLC.
3.02 No Additional Capital. Except as provided in this Article III, no
---------------------
Member shall be obligated or permitted to contribute any additional capital to
the LLC. No interest shall accrue on any Capital Contributions of the LLC, and
no Member shall have the right to withdraw or to be repaid any Capital
Contribution made by it or to receive any other payment in respect of its
interest in the LLC, including without limitation as a result of the withdrawal
or resignation of such Member from the LLC, except as specifically provided in
this Agreement.
3.03 Anticipated Operations of the LLC.
---------------------------------
(a) As and when the LLC acquires an Investment, the Class B Members
shall create an Investment Schedule for such Investment, which shall be attached
to this Agreement.
-13-
The Investment Schedule for each Investment shall reflect (a) the Portfolio
Company issuing the securities, (b) the Acquisition Date, (d) the number and
class or series of shares of such securities, (c) the aggregate purchase price
of such Investment, (d) the Unreimbursed Acquisition Expenses incurred by the
LLC in connection with the acquisition of such Investment, (e) the Investment
Percentage Interest of each of the Members in such Investment (determined in the
manner hereinafter provided) and (f) such other information, if any, as the
Class B Members may deem appropriate.
(b) The Investment Percentage Interest of the Class A Member in each
Investment (including Follow-on Investments) shall at all times equal 80%.
(c) Subject to Section 3.04, the Investment Percentage Interest of
each Profit Member for whom an Event of Forfeiture has not occurred in any
Investment shall be determined in the manner provided in this Section 3.03(c).
First, the Investment Percentage Interest, if any, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
("▇▇▇▇▇▇") in the Investment shall be determined. If an Investment is identified
to the LLC, and developed, by ▇▇▇▇▇▇ (taking into account all relevant facts and
circumstances, including whether any other Member was aware of the particular
investment opportunity), in accordance with the guidelines specified in the
▇▇▇▇▇▇ Letter Agreement, and ▇▇▇▇▇▇ will thereafter serve on the board of
directors of the Investment as the LLC's designee and actively monitor such
Investment, as specified in the ▇▇▇▇▇▇ Letter Agreement, ▇▇▇▇▇▇'▇ Investment
Percentage Interest in such Investment shall be 2%; if an Investment is
identified to the LLC, and developed, by ▇▇▇▇▇▇ (taking into account all
relevant facts and circumstances, including whether any other Member was aware
of the particular investment opportunity), in accordance with the guidelines
specified in the ▇▇▇▇▇ Letter Agreement, and ▇▇▇▇▇▇ will not thereafter serve on
the board of directors of the investment as the LLC's designee, ▇▇▇▇▇▇'▇
Investment Percentage Interest in such Investment shall be 1%; and in all other
cases ▇▇▇▇▇▇'▇ Investment Percentage Interest shall be zero. A Majority in
Number of the Class B Members shall, in their reasonable judgment, make all
determinations as to ▇▇▇▇▇▇'▇ Investment Percentage Interest, if any, in each
Investment in accordance with the standards enumerated in this paragraph and the
▇▇▇▇▇▇ Letter Agreement. The Investment Percentage Interest of each other Profit
Member (exclusive of any Profit Member for whom an Event of Forfeiture has
occurred) in any Investment shall equal (I) 20% minus the Investment Percentage
Interest, if any, of ▇▇▇▇▇▇ in such Investment multiplied by (II) a fraction (x)
the numerator of which shall equal such Profit Member's Percentage Interest as
of the date on which such Investment is made and (y) the denominator of which
shall equal the aggregate Percentage Interests on such date of all Profit
Members exclusive of those for whom an Event of Forfeiture has occurred. The
Investment Percentage Interest of each Profit Member (including ▇▇▇▇▇▇) in each
Investment shall be subject to reduction upon the occurrence of an Event of
Forfeiture. If ▇▇▇▇▇▇'▇ Investment Percentage Interest in a particular
investment is initially fixed at 2%, and thereafter ▇▇▇▇▇▇ ceases to serve on
the board of the directors of the Investment as the LLC's designee and to
actively monitor such Investment (as determined by a Majority in Number of the
Class B Members and in accordance with the ▇▇▇▇▇▇ Letter Agreement), ▇▇▇▇▇▇'▇
interest in such Investment shall be reduced to 1%, and the 1% interest in such
Investment forfeited by Finnie shall be reallocated among the Class B Members
participating in such Investment (exclusive of any Class B Member for whom an
Event of
-14-
Forfeiture has occurred), pro rata based on their respective Investment
Percentage Interests in such Investment.
3.04 Event of Forfeiture.
-------------------
(a) Each Profit Member's Percentage Interest and Investment
Percentage Interest in each Investment are subject to adjustment upon the
occurrence of an Event of Forfeiture with respect to such Profit Member, as
provided in this Section 3.04. In no event shall the provisions of this Section
3.04 be applicable to the interest of the Class A Member.
(b) Upon the occurrence of an Event of Forfeiture with respect to a
Profit Member:
(i) Such Profit Member's Percentage Interest in the LLC shall,
from and after the date of the Event of Forfeiture, be reduced to zero, and the
Percentage Interest in the LLC of all Class B Members (exclusive of any Class B
Member for whom an Event of Forfeiture has occurred) shall be increased by an
aggregate amount equal to the amount of the Percentage Interest of the Profit
Member for whom the Event of Forfeiture has occurred (such increase to be
allocated among such Class B Members in proportion to their respective
Percentage Interests immediately prior to the adjustment contemplated hereby).
(ii) If the Event of Forfeiture is not a Clause Z Event, such
Profit Member's Investment Percentage Interest in each Investment in which such
Profit Member participates shall be reduced to a Percentage determined by
multiplying the Profit Member's initial Investment Percentage Interest by such
Profit Member's then Vested Percentage; provided that, if the Event of
Forfeiture is a Clause Y Event, Two-thirds in Number of the Class B Members may
elect to permit such Profit Member to retain a greater Investment Percentage
Interest in all or certain Investments, but in no event may such retained
Investment Percentage Interest in any such Investment exceed such Profit
Member's Investment Percentage Interest in such Investment immediately prior to
the occurrence of the Event of Forfeiture. If the Event of Forfeiture is a
Clause Z Event, such Profit Member's Investment Percentage Interest in each
Investment in which such Profit Member participates shall be reduced to zero.
The Investment Percentage Interest in each Investment of all Class B Members
(exclusive of any Class B Member for whom an Event of Forfeiture has occurred)
participating in such Investment shall be increased by an aggregate amount equal
to the amount of the reduction in the Investment Percentage Interest of the
Profit Member for whom the Event of Forfeiture has occurred (such increase to be
allocated among them in proportion to such Class B Members' respective
Investment Percentage Interests in such Investment immediately prior to the
adjustment contemplated hereby).
(iii) Any amount held in any Vesting Escrow for the benefit of
such Profit Member, to the extent allocable to the portion of each Investment
forfeited under clause (ii) above, shall be forfeited. Amounts so forfeited
shall (subject to the provisions of this Section 3.04 and Section 4.02) be
allocated, on an Investment-by-Investment basis, to all Class B Members
(exclusive of any Class B Member for whom an Event of Forfeiture has occurred)
participating in each such Investment (such distributions to be allocated among
them in
-15-
proportion to their respective Investment Percentage Interests in each such
Investment immediately prior to the adjustment contemplated hereby).
(iv) Such Profit Member shall have no right to vote on or
participate in any decision or matter on or in which Profit Members (or any
Class thereof) are entitled to vote or participate and such Profit Member shall
be disregarded for all purposes in determining the number of Class B or Class C
Members which constitute a Majority in Number of the Class B or Class C Members,
as applicable, or the number or percentage or Class B Members or Class C Members
or Profit Members entitled to vote on any matter, as the case may be.
(c) A Profit Member with respect to whom an Event of Forfeiture has
occurred: (i) shall not be entitled to participate in any Investment (including
without limitation, a Follow-on Investment) made by the LLC after the date of
the Event of Forfeiture; and (ii) automatically and without any action on the
part of the LLC, such Profit Member or any other Member, shall be deemed to have
withdrawn from the LLC on the first date on which the LLC no longer owns any
Investment in which such Profit Member has an Investment Percentage Interest. In
no event shall any portion of the interest of a Profit Member with respect to
whom an Event of Forfeiture has occurred vest after the date of such Event of
Forfeiture, including without limitation upon the occurrence of a Change of
Control.
The Class B Members shall make all determinations under this Section 3.04
(including determinations as to when and whether an Event of Forfeiture has
occurred, and the reduction in the Percentage Interest and Investment Percentage
Interests of the affected Profit Member in connection therewith), in their
reasonable discretion.
ARTICLE IV
DISTRIBUTIONS
4.01 Distribution of Net Investment Receipts and Distributable Other Cash.
--------------------------------------------------------------------
(a) Net Investment Receipts of the LLC shall be distributed on an
Investment-by-Investment basis. To the extent that such Net Investment Receipts
constitute (x) Marketable Securities, or (y) cash realized from the sale or
disposition of an Investment, such Net Investment Receipts shall be distributed
(i) in the case of Marketable Securities, as soon as reasonably practicable
after they become Marketable Securities, and (ii) in the case of such cash, as
soon as reasonably practicable following receipt by the LLC thereof.
Distributable Other Cash shall be distributed, in such amounts as the Class B
Members may determine, but not less frequently than quarterly, within 30 days
following the last day of each fiscal quarter of the LLC. All other Net
Investment Receipts shall be distributed at such times and in such amounts as
the Class B Members may in their reasonable discretion determine. Any non-cash
distributions made to the Members shall be valued, as of the date of
distribution, at their respective fair market values, as determined by the Class
B Members in good faith and in a manner consistent with the valuation procedures
contained in Section 6.09.
(b) Subject to the provisions of Sections 4.02 and 9.02(b) below, Net
Investment Receipts related to an Investment shall be distributed as follows:
-16-
(i) First, to the Class A Member, an amount equal to the
Unreturned Fully Loaded Investment Cost with respect to the Investment
generating the Net Investment Receipts (reduced by the amount of any Investment
Loss previously realized with respect to such Investment);
(ii) Second, to the Class A Member until the aggregate amount
distributed pursuant to this clause (ii) equals the aggregate cumulative amount
of Investment Loss incurred by the LLC with respect to all Investments; and
(iii) The balance, if any, to the Members in proportion to their
respective Investment Percentage Interests in the Investment generating the Net
Investment Receipts on the date the LLC makes such distribution.
Notwithstanding the foregoing, distributions of Net Investment Receipts
from the LLC's investment in ▇▇▇▇.▇▇▇ shall be made in accordance with the
provisions of Exhibit 1, but shall be subject to the provisions of Section 4.02
---------
and all other provisions of this Agreement.
(c) Subject to the provisions of Section 9.02(b) below, Distributable
Other Cash shall be distributed 100% to the Class A Member. (d) The Class B
Members will use reasonable efforts to cause the LLC to distribute to each
Member in each year the Tax Distribution Amount (as defined below), which amount
shall be treated as an advance against future distributions to such Member
pursuant to Section 4.01(b) above. The Tax Distribution Amount shall equal an
amount which, when added to all distributions previously made to the Member
pursuant to this Section 4.01 from the inception of the LLC, equals the product
of (i) the Member's allocable share of the net taxable income of the LLC
computed on an aggregate cumulative basis from the inception of the LLC and (ii)
the Applicable Marginal Rate (as hereinafter defined). The "Applicable Marginal
Rate" shall equal the higher of (x) the highest combined marginal rate of
federal and Massachusetts state income tax applicable to individuals for any
year since the inception of the LLC and (y) the highest combined marginal rate
of federal and California state income tax applicable to individuals for any
year since the inception of the LLC. Separate Tax Distribution Amounts shall be
computed with respect to each Investment, and, to the extent practicable, the
required distribution of the Tax Distribution Amount attributable to a
particular Investment for a particular period shall be satisfied by a
distribution of Net Investment Receipts attributable to such Investment. To the
extent that the required distribution of the Tax Distribution Amount
attributable to a particular Investment is satisfied by a distribution of Net
Investment Receipts attributable to another Investment, rules similar to those
set forth in Section III.B of Exhibit 2 shall apply.
---------
4.02 Vesting Escrow.
--------------
(a) Notwithstanding the provisions of Section 4.01 above, the LLC
shall distribute to each Profit Member on the date of any distribution only that
portion of any Net Investment Receipts to which he is entitled which is equal to
his Vested Percentage of such amount. Any portion of any distribution which is
not distributed as a result of the operation of this Section 4.02(a) shall be
held in escrow by the LLC, in accordance with this Section 4.02.
-17-
Any escrow established pursuant to this Section 4.02 is herein referred to as a
"Vesting Escrow." Subject to Section 3.04, if, on the last day of each calendar
quarter following the date of the distribution with respect to any Investment,
any Profit Member's Vested Percentage increases, then a portion of the Vesting
Escrow of such Profit Member (proportionate to the amount of the increase in the
Vested Percentage of such Profit Member) shall be disbursed from such Vesting
Escrow to such Profit Member.
(b) The interest of the Class A Member shall not be subject to the
provisions of this Section 4.02, and it shall at all times be entitled to
receive 100% of any distributions to Net Investment Receipts allocable to it
pursuant to and in accordance with Section 4.01.
(c) Each of the Profit Members hereby agrees and acknowledges that,
as a result of the operation of this Section 4.02, (i) such Profit Member may be
allocated Net Profits and Net Losses of the LLC without corresponding
distributions of Net Investment Receipts; (ii) the Class B Members are
authorized to and may (but shall not be required to) invest amounts that are
held in a Vesting Escrow in Short-Term Investments pending distribution of such
amounts to the Profit Members; (iii) the LLC may hold in a Vesting Escrow
securities which would otherwise have been distributed to such Profit Member,
and the LLC shall be entitled to vote, transfer, sell, assign and exercise all
rights of ownership with respect to all such securities prior to their
distribution to the Profit Members in accordance with this Section 4.02; and
(iv) amounts held in escrow pursuant to this Section 4.02 shall be irrevocably
forfeited by a Profit Member from and after the date of any Event of Forfeiture
with respect to such Profit Member. If any property which is held in escrow
pursuant to this Section 4.02 is sold or otherwise disposed of, the proceeds of
such sale or other disposition shall be substituted in the Vesting Escrow for
such property, and released in accordance with Section 4.02(a) above at the same
time such property would have been released from such Vesting Escrow.
(d) Upon (i) the discontinuance of the investing activities of the
LLC, and with the approval of the Class A Member and a Majority in Number of the
Class B Members, (ii) the occurrence of a Change of Control, or (iii) a
Termination of Contributions, the Vested Percentage of each Profit Member shall
be increased to one hundred percent (100%).
(e) The LLC may, at the request and on behalf of any Profit Member,
engage in hedging activities with respect to securities held in the Vesting
Escrow of such Profit Member, provided that (i) Two-thirds in Number of the
Class B Members approves in advance any such hedging activities; (ii) the Profit
Member for whose benefit the hedging activities were undertaken bears all of the
costs incurred in connection with such activities and indemnifies the LLC in
writing with respect to any costs or losses incurred by the LLC in connection
with any such activities; and (iii) the securities held in such Profit Member's
Vesting Escrow may not be used to settle any "hedged" position until such time
as such securities are released to such Profit Member from such Vesting Escrow.
The Class B Members, by action of Two-thirds in Number thereof, may determine to
engage in hedging activities with respect to all of the LLC's securities of a
Portfolio Company which are held in Vesting Escrows, in which case all Profit
Members for whom a Vesting Escrow which includes such Portfolio Company security
shall be bound by such hedging arrangements. The Profit Members agree and
acknowledge that, if the LLC has engaged in hedging activities with respect to
securities held in a Vesting Escrow pursuant to and in accordance with this
Section 4.02(e), and an Event of Forfeiture occurs with respect to a Member
-18-
whose Vesting Escrow includes such hedged securities, then the Class B Members
who are entitled to a share of the forfeited Vesting Escrow which includes such
"hedged" securities will receive "hedged" securities upon such forfeiture. In no
event shall the Class A Member or the LLC bear any of the costs associated with
any hedging activities permitted by this paragraph.
Except as permitted in this Section 4.02(e), the LLC shall not engage in any
other hedging activities except with the prior approval of the Class A Member.
4.03 Certain Payments to the Internal Revenue Service Treated as
-----------------------------------------------------------
Distributions. Notwithstanding anything to the contrary herein, to the extent
-------------
that the LLC is required (as determined in the discretion of the Class B
Members), or elects, pursuant to applicable law, either (i) to pay tax
(including estimated tax) on a Member's allocable share of LLC items of income
or gain, whether or not distributed, or (ii) to withhold and pay over to the tax
authorities any portion of a distribution otherwise distributable to a Member,
the LLC may pay over such tax or such withheld amount to the tax authorities,
and such amount shall be treated as a distribution to such Member at the time it
is paid to the tax authorities. In the event that the amount paid (or paid over)
to the tax authorities on behalf of a Member exceeds the amount that would have
been distributed to such Member absent such tax obligation, such excess shall be
treated as a demand loan from the LLC to such Member, which loan shall bear
interest at the prime rate announced from time to time by The Wall Street
Journal, until paid in full.
4.04 Distributions in Kind. A Member, regardless of the nature of his
---------------------
contribution to the LLC, shall have no right to demand or receive any
distribution from the LLC in any form other than cash. The LLC may, at any time
and from time to time, make distributions in kind to the Members. Any Member
entitled to any interest in such assets shall, unless otherwise determined by
the Members, receive separate assets of the LLC and not an interest as a tenant-
in-common with other Members so entitled in any asset being distributed.
ARTICLE V
ALLOCATION OF PROFITS AND LOSSES
5.01 Basic Allocations.
-----------------
(a) For each fiscal year (or shorter fiscal period for which an
allocation of income, loss, gain, or deduction is to be made), Net Profits
Attributable to Other Cash Receipts shall be allocated to the Class A Member.
(b) Net Profits and Net Losses of the LLC for any fiscal period shall
be allocated among the Members in such proportions and in such amounts as may be
necessary so that following such allocations, the Capital Account balance of
each Member equals such Member's then Target Balance.
(c) If the amount of Net Profits or Net Losses allocable to the
Members pursuant to Section 5.01(b) for a period is insufficient to allow the
Capital Account balance of each Member to equal such Member's Target Balance,
such Net Profits or Net Losses shall be allocated among the Members in such a
manner as to decrease the differences between the
-19-
Members' respective Capital Account balances and their respective Target
Balances in proportion to such differences.
(d) Net Profits and Net Losses of the LLC shall be computed on an
Investment-by-Investment basis. For purposes of such computation, expenses and
deductions shall be allocated among the Investments, Short-Term Investments and
other sources of Other Cash Receipts in a manner similar to that set forth in
Exhibit 2 hereto relating to the allocation of Expenses. To the maximum extent
not inconsistent with Sections 5.01(b) and (c) hereof or applicable provisions
of the Treasury Regulations under Section 704 of the Code, for each fiscal year
(or other relevant period), each Profit Member shall be allocated Net Profits
with respect to any Investment in which such Member has an Investment Percentage
Interest until the excess of the aggregate cumulative amount of Net Profits
allocated to such Member attributable to such Investment for all fiscal years
(or other relevant periods) over the aggregate cumulative amount of "Offsetting
Net Losses" (as defined below) allocated to such Member with respect to such
Investment for all fiscal years (or other relevant periods) equals the aggregate
cumulative amount of Net Investment Receipts distributed (or distributable) to
such Member with respect to such Investment for all fiscal years (or other
relevant periods), and the balance of all Net Profits and Net Losses shall be
allocated to the Class A Member. For purposes of the preceding sentence, an
"Offsetting Net Loss" with respect to an Investment shall mean the amount of any
Net Loss realized with respect to a second Investment that, in the reasonable
discretion of the Class B Members, has the effect under Section 5.01(b) hereof
of offsetting the amount of Net Profits (whether realized previously,
simultaneously or subsequently) attributable to the first Investment.
(e) Notwithstanding Section 5.01(a) above, Net Profits and Net Losses
attributable to any assets held in a Vesting Escrow shall be specially allocated
to the Profit Member to whom such Vesting Escrow relates.
(f) Allocations of Net Profits and Net Losses provided for in this
Section 5.01 shall generally be made as of the end of the fiscal year of the
LLC; provided, however, that allocations of items of Net Profits and Net Losses
-------- -------
described in clause (vii) of the definition of "Net Profits" and "Net Losses"
shall be made at the time deemed realized as described in the definition of
"Capital Account."
5.02 Allocations of Nonrecourse Deductions and Minimum Gain.
------------------------------------------------------
Notwithstanding the provisions of Section 5.01, if at any time the LLC incurs
any "nonrecourse debt" (i.e. debt that is treated as nonrecourse for purposes of
Treasury Regulation Section 1.1001-2), the following provisions will apply
notwithstanding anything to the contrary expressed elsewhere in this Agreement:
(a) "Nonrecourse deductions" (as defined in Treasury Regulation
Sections 1.704-2(b) and (c)) other than deductions attributable to "partner
nonrecourse debt" (as defined in Treasury Regulation Section 1.704-2(b)(4))
shall be allocated in the same manner as are Net Profits or Net Losses;
(b) Nonrecourse deductions attributable to partner nonrecourse debt
shall be specially allocated to the Member or Members that bear the economic
risk of loss associated with the debt;
-20-
(c) If in any year there is a net decrease in "partnership minimum
gain" (as defined in Treasury Regulation Section 1.704-2(d)) or "partner
nonrecourse debt minimum gain" (as defined in Treasury Regulation Section 1.704-
2(i)(3), Members will be specially allocated items of income or gain for such
year (and/or subsequent years to the extent necessary) in accordance with the
"minimum gain chargeback" provisions of Treasury Regulation Section 1.704-2(f)
and/or Treasury Regulation Section 1.704-2(i)(5).
(d) The aggregate selling price of the assets of the LLC referenced
in clause (A) of the definition of "Target Balance" shall be increased by the
amount of any "partnership minimum gain" or "partner nonrecourse debt minimum
gain."
5.03 Overriding Allocations of Net Profits and Net Losses. Notwithstanding
----------------------------------------------------
the provisions of Section 5.01 above, but subject to the provisions of Section
5.02 above, the following allocations shall be made:
(a) Items of income or gain (computed with the adjustments contained
in the definition of "Net Profits and Net Losses") for any taxable period shall
be allocated to the Members in the manner and to the extent required by the
"qualified income offset" provisions of Treasury Regulation Section 1.704-
1(b)(2)(ii)(d).
(b) In no event shall Net Losses of the LLC be allocated to a Member
if such allocation would cause or increase a negative balance in such Member's
Capital Account (determined for purposes of this Section 5.03(b) only, by
increasing the Member's Capital Account balance by (i) the amount the Member is
obligated to restore to the LLC pursuant to Treasury Regulation Section 1.704-
1(b)(2)(ii)(c) (including any amounts specified in Section 3.01(c) hereof) and
(ii) such Member's share of "minimum gain" and of "partner nonrecourse debt
minimum gain" as determined pursuant to Treasury Regulation Sections 1.704-2(g)
and 1.704-2(i)(5), respectively).
(c) Except as otherwise provided herein or as required by Code
Section 704, for tax purposes, all items of income, gain, loss, deduction or
credit shall be allocated to the Members in the same manner as are Net Profits
and Net Losses; provided, however, that if the Carrying Value of any property of
the LLC differs from its adjusted basis for tax purposes, then items of income,
gain, loss, deduction or credit related to such property for tax purposes shall
be allocated among the Members so as to take account of the variation between
the adjusted basis of the property for tax purposes and its Carrying Value in
the manner provided for under Code Section 704(c).
5.04 Allocations Upon Transfer or Admission. In the event that a Member
--------------------------------------
acquires an interest in the LLC either by transfer from another Member or by
acquisition from the LLC, the LLC shall close its books as of the date of the
acquisition and Net Profits, Net Losses and similar items computed for the
portion of the year ending on the date of the acquisition shall be allocated
among the Members without regard to such acquisition, and Net Profits, Net
Losses and similar items computed for the portion of the year commencing on the
day following the date of the acquisition shall be allocated among the Members
taking into account such acquisition. For purposes of this Section 5.04, any
modifications to a Member's Percentage Interest or Investment
-21-
Percentage Interest for any Investment, shall be treated as if a Member acquired
an interest in the LLC.
ARTICLE VI
MANAGEMENT
6.01 Management of the LLC.
---------------------
(a) Subject to the provisions of this Agreement and the Act, all
powers shall be exercised by or under the authority of, and the business and
affairs of the LLC shall be controlled by the Members.
(b) Except to the extent that this Agreement specifically provides
for a higher or lower number or percentage of Members, all decisions respecting
any matter set forth herein or otherwise affecting or arising out of the conduct
of the business of the LLC, and all actions required to be taken "by the Class B
Members" hereunder, shall be made by action of a Majority in Number of the Class
B Members; provided that, Class B Members with respect to whom an Event of
Forfeiture has occurred shall have no right to vote on or participate in any
matter or decision to be made by the Class B Members and shall be disregarded
for all purposes in determining the number of Class B Members which constitute a
Majority in Number of the Class B Members. The Class C Members shall have no
right to vote on or participate in any matter or decision or to otherwise manage
the business of the LLC, except to the extent expressly provided in this
Agreement.
(c) Subject to the foregoing, the Class B Members shall have the
exclusive right and full authority to manage, conduct and operate the LLC
business. Specifically, but not by way of limitation, the Class B Members (by
action of such Majority in Number) shall be authorized, for and on behalf of the
LLC:
(i) to borrow money, to issue evidences of indebtedness and to
guarantee the debts of others for whatever purposes they may specify, and, as
security therefor, to pledge or otherwise encumber the assets of the LLC;
(ii) to cause to be paid on or before the due date thereof all
amounts due and payable by the LLC to any person or entity;
(iii) to employ such agents, employees, managers, accountants,
attorneys, consultants and other persons necessary or appropriate to carry out
the business and affairs of the LLC, whether or not any such persons so employed
are Members or are affiliated or related to any Member, and to pay such fees,
expenses, salaries, wages and other compensation to such persons as the Members
shall in their sole discretion determine;
(iv) to pay, extend, renew, modify, adjust, submit to
arbitration, prosecute, defend or compromise, upon such terms as they may
determine and upon such evidence as they may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor of
or against the LLC;
-22-
(v) to pay any and all fees and to make any and all
expenditures which the Class B Members, in their discretion, deem necessary or
appropriate in connection with the organization of the LLC, and the carrying out
of its obligations and responsibilities under this or any other Agreement;
(vi) to invest the assets of the LLC, and to lease, sell,
finance, refinance or dispose of all or any portion of the LLC's property;
(vii) to cause the LLC to make or revoke any of the elections
referred to in Sections 108, 704, 709, 754 or 1017 of the Code or any similar
provisions enacted in lieu thereof, or in any other Section of the Code;
(viii) to establish and maintain reserves for such purposes and
in such amounts as they deem appropriate from time to time;
(ix) to pay all organizational expenses and general and
administrative expenses of the LLC;
(x) to deal with, or otherwise engage in business with, or
provide services to and receive compensation therefor from, any person who has
provided or may in the future provide any services to, lend money to, sell
property to, or purchase property from the LLC, including without limitation, a
Member;
(xi) to engage in any kind of activity and to perform and carry
out contracts of any kind necessary to, or in connection with, or incidental to
the accomplishment of the purposes of the LLC;
(xii) to cause to be paid any and all taxes, charges and
assessments that may be levied, assessed or imposed upon any of the assets of
the LLC, unless the same are contested by the Class B Members;
(xiii) to exercise all powers and authority granted by the Act to
members, except as otherwise specifically provided in this Agreement; and
(xiv) to exercise all other rights, powers, privileges and other
incidents of ownership with respect to the interest of the LLC in each Portfolio
Company.
(d) Notwithstanding the foregoing, the Class B Members shall not be
authorized to take any of the following actions without the prior approval of
the Class A Member:
(i) to do any act that is in contravention of this Agreement
or that is not consistent with the purposes of the LLC;
(ii) to do any act that would make it impossible to carry on
the ordinary business of the LLC;
(iii) to guarantee the obligations of any Portfolio Company;
-23-
(iv) to invest more than $100 million in the securities of any
one issuer;
(v) to incur expenses in amounts or for purposes which are not
consistent with the provisions of the then applicable Budget; or
(vi) to take any other action which requires the consent or
approval of the Class A Member pursuant to this Agreement.
Other than as set forth in this Section 6.01(c), the Class A Member shall not
participate in the management or control of the LLC and shall have no authority
to act for or bind the LLC.
(e) Any Class B Member is authorized to execute, deliver and file on
behalf of the LLC any documents to be filed with the Secretary of State of the
State of Delaware. The signature of one Class B Member on any agreement,
contract, instrument or other document shall be sufficient to bind the LLC in
respect thereof and conclusively evidence the authority of such Class B Member
and the LLC with respect thereto, and no third party need look to any other
evidence or require the joinder or consent of any other party.
(f) Each Class B Member is authorized to use the title "Managing
Director" when acting on behalf of the LLC in the conduct of the LLC's business.
The Class B Members may at any time and from time to time establish offices of
the LLC, and elect officers thereto. Such officers may have such titles as the
Class B Members may designate, including without limitation, "Managing Partner,"
"Partner" and "Associate." Such officers may, but shall not be required to be,
Members of the LLC. In connection with the establishment of any office or title,
the Class B Members shall determine the authority associated with such office
and title. Any officer, or person holding any title, elected or designated in
accordance with this Section 6.01(f) may be removed from such office at any
time, with or without cause, by the Class B Members. If an Event of Forfeiture
occurs with respect to any Member at any time at which such Member is serving as
an officer of the LLC, such Member shall automatically, and without any action
on the part of such Member or the LLC, be deemed to have resigned from all
offices of the LLC which such Member then holds. If any officer or other
titleholder is not a party to this Agreement, the Class B Members may extend to
such person rights to indemnification from the LLC, on terms not more favorable
than those provided to the Members in Section 6.04.
(g) The Class B Members, by action of Two-thirds in Number of the
Class B Members exclusive of any Class B Member (if applicable) as to whom the
determination is being made, shall determine whether or not "Cause" is present
in connection with the termination of the relationship of a Profit Member with
the LLC. Any such determination (whether in connection with a termination of
relationship by the LLC or by the Profit Member) shall be made only after a
hearing to consider the matter. Any such hearing shall be held only after
written notice has been given to all Members, including the Profit Member
proposed to be terminated or the Profit Member who has terminated the
relationship, as the case may be. (If the determination is to be made after the
termination of the relationship with the LLC by the Profit Member, such hearing
must be held not later than 60 days after the later to occur of (x) the
effective date of the termination or (y) the date the LLC is notified by the
Profit Member of the termination.) Such notice must be given not less than 10
days prior to such hearing, and must specify the time and place at which the
hearing will be held, and a general statement of the nature of the charges
-24-
against the Profit Member which is the subject of the determination. At such
hearing, the Profit Member who is the subject of the hearing will have an
opportunity to respond to the charges constituting Cause. None of the Members
(including the Profit Member who is the subject of the hearing), may be
represented at such hearing by counsel or other representatives. At the time any
such notice is given, or any time thereafter, but prior to a decision of Two-
thirds in Number of the Class B Members following the hearing, Two-thirds in
Number of the Class B Members (exclusive of the Member proposed to be
terminated, if a Class B Member) may immediately relieve the Profit Member
proposed to be terminated of his or her duties and responsibilities hereunder
pending a decision.
6.02 Tax Matters Partner. CMG @Ventures Capital Corp. shall be the tax
-------------------
matters partner for the LLC pursuant to Code Sections 6221 through 6231.
6.03 Liability of the Members; Exculpation.
-------------------------------------
(a) No Member shall be liable to the LLC or any other Member for any
act or omission taken by the Member in good faith and in a manner reasonably
believed to be within the scope of the authority conferred on the Member by this
Agreement; provided that such act or omission is not in violation of this
Agreement and does not constitute gross negligence, willful misconduct, fraud or
a willful violation of law by the Member. No Member shall be liable to the LLC
or any other Member for any action taken by any other Member, nor shall any
Member (in the absence of gross negligence, willful misconduct, fraud or a
willful violation of law by the Member) be liable to the LLC or any other Member
for any action of any employee or agent of the LLC provided that the Member
shall have exercised appropriate care in the selection and supervision of such
employee or agent.
(b) Except as otherwise provided by the Act, the debts, obligations
and liabilities of the LLC, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the LLC, and no Member
shall be obligated personally for any such debt, obligation or liability of the
LLC solely by reason of being a Member.
(c) The liability of the Members for the losses, debts and
obligations of the LLC shall be further limited to their capital contributions;
provided, however, that under applicable law, the Members may under certain
circumstances be liable to the LLC to the extent of previous distributions made
to them in the event that the LLC does not have sufficient assets to discharge
its liabilities.
(d) A Member shall be fully protected in relying in good faith upon
the records of the LLC and upon such information, opinions, reports or
statements presented to the Member by any third party professional as to matters
the Member reasonably believes are within such third party's professional or
expert competence.
6.04 Indemnification
---------------
(a) Each Member and its respective partners, agents, employees and
Affiliates (the "Indemnitees") shall be and hereby are (i) indemnified and held
harmless by the LLC and (ii) released by the other Members from and against any
and all claims, demands, liabilities, costs, expenses, damages, losses, suits,
proceedings and actions for which such Indemnitee has
-25-
not otherwise been reimbursed (collectively, "Liabilities"), whether judicial,
administrative, investigative or otherwise, of any nature whatsoever, known or
unknown, liquidated or unliquidated, that may accrue to the LLC or any other
Member or in which any of the Indemnitees may become involved, as a party or
otherwise, arising out of the conduct of the business or affairs of the LLC by
the respective Indemnitee or otherwise relating to this Agreement, including
without limitation, in connection with the Indemnitee's service at the request
or with the authorization of the Class B Members as a board member, officer or
employee of any Portfolio Company, provided that an Indemnitee shall not be
entitled to indemnification or release hereunder if it shall have been
determined by (i) in the case of the Class A Member or an Indemnitee claiming by
or through the Class A Member, it has been finally adjudicated by a court of
competent jurisdiction, or (ii) in the case of any Profit Member or an
Indemnitee claiming by or through the Profit Member, by the Class A Member, that
(x) such person did not act in good faith and in a manner such person reasonably
believed to be in the best interests of the LLC and, in the case of a criminal
proceeding, had reasonable cause to believe that its conduct was unlawful, or
(y) such Liabilities shall have arisen from a violation of this Agreement or the
gross negligence, willful misconduct, fraud or willful violation of law by such
Indemnitee, or actions of such Indemnitee outside the scope of and unauthorized
by this Agreement.
(b) Promptly after receipt by any Member from any third party of
notice of any demand, claim or circumstance that would reasonably be expected to
give rise to a claim or the commencement (or threatened commencement) of any
action, proceeding or investigation (an "Asserted Liability") that could
reasonably be expected to result in any loss, damage or claim with respect to
which the Member might be entitled to indemnification from the LLC under Section
6.04(a), the Member shall give notice thereof (the "Claims Notice") to the LLC;
provided, however, that a failure to give such notice shall not prejudice the
Member's right to indemnification hereunder except to the extent that the LLC is
actually prejudiced thereby. The Claims Notice shall describe the Asserted
Liability in such reasonable detail as is practicable under the circumstances,
and shall, to the extent practicable under the circumstances, indicate the
amount (estimated, if necessary) of the loss or damage that has been or may be
suffered by the Member.
(c) The LLC may elect to compromise or defend, at its own expense and
by its own counsel, any Asserted Liability; provided, however, that if the named
parties to any action or proceeding include (or could reasonably be expected to
include) both the LLC and a Member, or more than one Member, and the LLC is
advised by counsel that representation of both parties by the same counsel would
be inappropriate under applicable standards of professional conduct, the Member
may engage separate counsel at the expense of the LLC (subject to the Member's
obligation to reimburse the LLC if it is ultimately determined that the Member
is not entitled to indemnification in accordance with this Section 6.04). If the
LLC elects to compromise or defend such Asserted Liability, it shall within
twenty (20) business days (or sooner, if the nature of the Asserted Liability so
requires) notify the Member of its intent to do so, and the Member shall
cooperate, at the expense of the LLC, in the compromise of, or defense against,
such Asserted Liability. If the LLC elects not to compromise or defend such
Asserted Liability, fails to notify the Member of its election as herein
provided, contests its obligation to provide indemnification under this
Agreement, or fails to make or ceases making a good faith and diligent defense,
the Member may defend, compromise or pay such Asserted
-26-
Liability in accordance with the provisions of Section 6.04(d) below. Except as
set forth in the preceding sentence, neither the LLC nor the Class B Members may
settle or compromise any claim against a Member over the objection of such
Member; provided, however, that consent to settlement or compromise shall not be
unreasonably withheld. In any event, the LLC and the Member may participate at
their own expense, in the defense of such Asserted Liability. If the Member
chooses to defend any claim, the Member shall make available to the LLC any
books, records or other documents within its control that are necessary or
appropriate for such defense, all at the expense of the LLC.
(d) If the LLC elects not to compromise or defend an Asserted
Liability, or fails to notify the Member of its election as herein provided,
contests its obligation to provide indemnification, or fails to make or ceases
making a good faith and diligent defense, then the Member shall be entitled to
assume the defense and all expenses (including legal fees) incurred by a Member
in defending any Asserted Liability shall promptly be advanced by the LLC prior
to the final disposition of such claim, demand, action, suit or proceeding
following receipt by the LLC of an undertaking by or on behalf of the Member to
repay such amount if it shall be determined that the Member is not entitled to
be indemnified as authorized in Section 6.04(a) hereof.
(e) The termination of any proceeding by settlement shall not, of
itself, create a presumption that the Indemnitee did not act in good faith and
in a manner that such person reasonably believed to be in the best interests of
the LLC or that the Indemnitee did not have reasonable cause to believe that its
conduct was lawful.
(f) The right of indemnification hereby provided shall not be
exclusive of, and shall not affect, any other rights to which a Member may be
entitled. Nothing contained in this Section 6.04 shall limit any lawful rights
to indemnification existing independently of this Section. The obligations of
the LLC under this Section 6.04 shall be satisfied only after any applicable
insurance proceeds have been exhausted and then only out of LLC assets and, to
the extent required by law, distributions made by the LLC to the Members, and,
subject to Section 6.04(h) below, the Members shall otherwise have no personal
liability to fund any indemnification payment hereunder.
(g) The indemnification rights provided by this Section 6.04 shall
also inure to the benefit of the heirs, executors, administrators, successors
and assigns of a Member and any officers, directors, partners, members,
shareholders, employees and Affiliates of such Member (and any former officer,
director, partner, member, shareholder or employee of such Member, if the loss,
damage or claim was incurred while such person was an officer, director,
partner, member, shareholder or employee of such Member). The Class B Members or
the LLC may extend the indemnification called for by Section 6.04 to non-
employee agents of the LLC.
(h) Notwithstanding any provision of this Agreement, including
Section 3.01, to the contrary, as and when the LLC requires funds to discharge
any indemnification obligation under this Section 6.04, if funds of the LLC are
not otherwise available therefor, the Class A Member shall contribute the amount
required within 10 business days after receipt of notice from the Class B
Members of the amount required and the nature of the liability (which notice may
be given in writing or by electronic mail).
-27-
6.05 Budget; Certain Fees and Expenses.
---------------------------------
(a) On or before June 1 of each year, the Class B Members shall
prepare and submit to the Class A Member for its consideration a budget (herein
referred to as the "Budget"), setting forth the estimated expenditures (capital,
operating, and other) of the LLC for the 12-month period covered by the Budget
(which shall be the 12 months commencing on the next succeeding August 1). If
the Class A Member does not, within 45 days after receipt of the proposed
Budget, indicate that it disapproves of all or any portion of the proposed
Budget, then such budget shall be deemed to have been approved. When approved by
the Class A Member, the Class B Members shall be authorized to implement the
Budget and shall be authorized, without the need for further approval by the
Class A Member, to make the expenditures and incur the obligations provided for
in the Budget, in the name and on behalf of the LLC, and shall be authorized to
call for contributions of capital to the LLC from the Class A Member in
accordance with Section 3.01(b) in order to finance the operations of the LLC
during the period covered by the Budget. Any Budget may be amended during any
year with the approval of the Class A Member.
If the Class A Member does not approve the proposed Budget for any fiscal
year of the Venture, the Class B Members and the Class A Member shall negotiate
in good faith to resolve the disagreement. Prior to the date on which such
disagreement has been resolved, the Class B Members shall implement during such
period the operating (but not the capital) Budget adopted for the comparable
portion of the preceding fiscal year, and shall be authorized, without the need
for further approval by the Class A Member, to make the operating (but not
capital) expenditures and incur ordinary obligations in the amounts provided for
in such prior year's Budget, in the name and on behalf of the LLC, and to call
for contributions of capital to the LLC from the Class A Member in accordance
with Section 3.01(b) in order to finance the operations of the LLC in accordance
with such prior year's Budget.
(b) All out-of-pocket expenses reasonably incurred by any Member in
connection with the LLC's business (including an allocable share of certain
overhead and similar expenses of the Class A Member) shall be paid by the LLC or
reimbursed to the Member by the LLC.
6.06 Other Activities.
----------------
(a) Subject to Sections 6.06(b) and (c) and Section 6.07 below, the
Members and their respective Affiliates may engage in and possess interests in
other business ventures and investment opportunities of every kind and
description, independently or with others, including serving as directors,
officers, stockholders, managers, members and general or limited partners of
corporations, partnerships or other limited liability companies with purposes
similar to or the same as those of the LLC. Neither the LLC nor any other Member
shall have any rights in or to such ventures or opportunities or the income or
profits therefrom. Each Profit Member shall be required to pay over to the LLC
any cash or non-cash compensation or remuneration to which such Profit Member
becomes entitled from any Portfolio Company for services rendered to such
Portfolio Company (or, in the case of options or similar compensation, to hold
the same as nominee for the LLC).
-28-
(b) Each Profit Member agrees that (I) during his or her employment
by the Employer, and (II) for a period of 18 months following termination of his
or her employment relationship with the Employer if such employment is
terminated: (A) by the Profit Member voluntarily, or (B) by the Employer for
Cause, such Profit Member will not, directly or indirectly:
(x) recruit, solicit or induce, or attempt to induce, any
employee of the Employer or of any Portfolio Company or of any Affiliate of
any of them to terminate his or her employment with, or otherwise cease any
relationship with, the Employer or any Portfolio Company or any Affiliate
of any of them; or
(y) solicit, divert, take away, or attempt to divert or take
away, any investment opportunity with respect to any Portfolio Company or
any investment opportunity with respect to any prospective investment or
prospective portfolio company which the LLC contacted or solicited during
such Member's employment relationship with the Employer.
If any restriction set forth herein is found by any court to be unenforceable
because it extends for too long a period of time, or over too great a range of
activities, or over too broad a geographic area, the restriction shall be
interpreted to extend only over the maximum period of time, range of activities,
or geographic area which the court finds to be enforceable. Each Profit Member
acknowledges and agrees that the restrictions contained in this Section 6.06(b)
are necessary for the protection of the business and goodwill of the Employer,
the Portfolio Companies and the Affiliates of any of them and are considered by
such Profit Member to be reasonable for such purpose and that his or her
interest in the LLC is being received partly in consideration for the foregoing
covenant.
(c) Each Profit Member agrees that during his or her employment by
the Employer, he or she shall not invest in any Qualified Investment Opportunity
(as hereinafter defined) which is made available to him or her unless such
Profit Member has notified the LLC of such opportunity (which notice may be
given orally) and the LLC has elected not to undertake such Qualified Investment
Opportunity. If, within 14 days following the notice from the Profit Member to
the LLC of such opportunity, the LLC fails to notify the Profit Member that it
has determined to undertake such opportunity, the LLC shall be deemed to have
elected not to undertake such opportunity. As used herein, a "Qualified
Investment Opportunity" shall mean an investment which is suitable for the LLC,
the total offered participation of which is $100,000 or more.
6.07 Commitment of Members. Each of the Profit Members hereby agrees to use
---------------------
its best efforts in connection with the purposes and objectives of the LLC and
to devote to such purposes and objectives such of its business time and
resources as shall be necessary for the management of the affairs of the LLC.
Subject to the foregoing, if any Profit Member serves as a member of the board
of directors (or in a similar capacity) of any company other than a Portfolio
Company (or a company in which the Class A Member, CMGI or any investment
vehicle affiliated with or sponsored by CMGI has invested), then such Profit
Member shall be required to provide written notice to the LLC that the Profit
Member is serving in such capacity.
-29-
6.08 Conflicts of Interest. No contract or transaction between the LLC and
---------------------
one or more of its Members or Affiliates, or between the LLC and any other
corporation, partnership association or other organization in which one or more
of its Members or Affiliates are directors, officers, members, managers or
partners or have a financial interest, shall be void or voidable solely for such
reason, or solely because the Member or Affiliate is present at or participates
in any meeting of Class B Members which authorizes the contract or transaction,
or solely because his, her or its votes are counted for such purpose, if:
(i) the material facts as to his, her or its interest as to the
contract or transaction are disclosed or are known to the Members entitled to
authorize such a contract or transaction and such Members thereafter authorize
the contract or transaction by a vote sufficient for such purpose without
counting the vote of any interested Member even though the disinterested Members
may be less than a majority in number of the Members entitled to vote thereon;
or
(ii) the material facts as to his, her or its interest and as to the
contract or transaction are disclosed or are known to the Members entitled to
vote thereon, and the contract or transaction is specifically approved by a vote
of such Members; and
(iii) in the case of (i) or (ii), the contract or transaction is fair
to the LLC or its Affiliates as of the time it is authorized, approved or
ratified by the Members entitled to vote thereon.
6.09 Valuation of Investments.
------------------------
(a) Subject to the provisions of Section 8.04, whenever valuation of
the LLC's net worth or any particular asset of the LLC is required by this
Agreement, the Class B Members shall, as of a reasonable valuation date
established by them, make a good faith determination of the "fair value" of all
noncash assets of the LLC (if net worth is to be evaluated) or of such
particular asset. Such determination of "fair value" with respect to any
investment shall be based upon all relevant factors, including, without
limitation, type of security, marketability, liquidity, restrictions on
disposition, recent purchases of the same or similar securities by other
investors, pending mergers or acquisitions, current financial position and
operating results, and risks and potential of the security.
(b) The fair value of any publicly-traded securities owned by the LLC
and which are not subject to any restrictions on transfer (including volume
limitations) under applicable state and federal securities laws or any
contractual arrangements to which the LLC is a party ("Liquid Securities") shall
be equal to the average of: (i) if applicable, the median of the "bid" and
"asked" prices for such securities in the market on which such securities are
regularly traded; or (ii) if applicable, the closing price on the market on
which such securities are regularly traded; in each case, on the ten trading
days immediately preceding the date of valuation of such securities.
(c) Subject to the foregoing and to the provisions of Section 8.04,
any determination of LLC net worth or of the value of a particular asset
required by this Agreement to be made pursuant to this Section 6.09 shall be
made in accordance with generally accepted
-30-
accounting principles, as from time to time applicable to the LLC or similar
entities; provided, however, that no value whatsoever shall be assigned to the
-------- -------
LLC name and goodwill or to the office records, files, statistical data or any
similar intangible assets of the LLC not normally reflected in the LLC's
accounting records; and provided further, that liabilities of the LLC shall be
taken in the amounts at which they are carried on the books of the LLC and
reasonable provision shall be made for contingent or other liabilities not
reflected on such books and, in the case of valuation in connection with the
liquidation of the LLC, for the expenses (to be borne by the LLC) of the
liquidation and winding up of the LLC's affairs.
(d) It is understood by the Members that some or all of the
investments of the LLC may have no readily ascertainable market value and that,
in all cases, the Class B Members are given a wide range of discretion in
determining such values.
ARTICLE VII
BOOKS, RECORDS AND BANK ACCOUNTS
7.01 Books and Records. The Class B Members shall keep or cause to be kept
-----------------
just and true books of account with respect to the operations of the LLC. Such
books shall be maintained at the LLC's principal place of business, or at such
other place as the Members shall determine, and all Members, and their duly
authorized representatives, shall at all reasonable times have access to such
books as well as any information required to be made available to the Members
under the Act. The Class B Members shall not be required to deliver or mail
copies of the LLC's Certificate of Formation or copies of certificates of
amendment thereto or cancellation thereof to the Members, although such
documents shall be available for review and/or copying by the Members at the
LLC's principal place of business.
7.02 Accounting Basis and Fiscal Year. The LLC's books shall be kept on the
--------------------------------
accrual method of accounting, or on such other method of accounting as the
Members may from time to time determine, and shall be closed and balanced at the
end of each fiscal year of the LLC. The fiscal year of the LLC shall be the
12-month period ending on July 31 of each year.
7.03 Bank Accounts. The Class B Members shall be responsible for causing
-------------
one or more accounts to be maintained in a bank (or banks), which accounts shall
be used for the payment of the expenditures incurred by the Class B Members in
connection with the business of the LLC, and in which shall be deposited any and
all cash receipts of the LLC. All deposits and funds not needed for the
operations of the LLC may be invested in such short-term investments as the
Class B Members may determine. All such amounts shall be and remain the property
of the LLC, and shall be received, held and disbursed by the Class B Members for
the purposes specified in this Agreement. There shall not be deposited in any of
said accounts any funds other than funds belonging to the LLC, and no other
funds shall in any way be commingled with such funds.
7.04 Reports to Members. Within 90 days after the end of each LLC fiscal
------------------
year, the Class B Members shall cause the LLC to furnish to each Member (i) such
information as may be needed to enable the Members to file their federal income
tax returns and any required state income tax returns, and (ii) an unaudited
balance sheet of the LLC as of the last day of such
-31-
fiscal year, and unaudited financial statements of the LLC for such fiscal year.
The cost of such reporting shall be paid by the LLC as a LLC expense. Any Member
may, at any time, at its own expense, cause an audit of the ▇▇▇ ▇▇▇▇▇ to be made
by a certified public accountant of its own selection. All expenses incurred by
such accountant shall be borne by such Member.
ARTICLE VIII
TRANSFERS OF INTERESTS OF MEMBERS
8.01 Substitution and Assignment of Member's Interest.
------------------------------------------------
(a) Subject to Section 8.01(b) below, no Profit Member may sell,
transfer, assign, pledge, hypothecate or otherwise dispose of all or any part of
its interest in the LLC (whether voluntarily, involuntarily or by operation of
law), unless (i) the Class A Member and (ii) Two-thirds in Number of the Class B
Members (exclusive of the transferor) shall have previously consented to such
transfer, assignment, pledge, hypothecation or disposition in writing, the
granting or denying of which consent shall be in such Members' absolute
discretion. Subject to Section 8.01(b) below, the provisions of this Section
8.01(a) shall not be applicable to any assignment of the interest of a Profit
Member to a Permitted Transferee (provided that no such Permitted Transferee may
be admitted to the LLC as a substitute Member except as provided in Section
8.01(c) below). Subject to Sections 8.01(b) and 8.04 below, the Class A Member
may sell, transfer, assign, pledge, hypothecate or otherwise dispose of all or
any part of its interest in the LLC without the consent or approval of any other
Member, provided that the transferee of any such interest may not be admitted to
the LLC as a substitute Member except as provided in Section 8.01(c) below.
(b) No assignment of the interest of a Member shall be made if,
in the opinion of counsel to the LLC, such assignment (i) may not be effected
without registration under the Securities Act of 1933, as amended, (ii) would
result in the violation of any applicable state securities laws, (iii) would
result in a termination of the LLC under Section 708 of the Code, unless such a
transfer is consented to by (i) the Class A Member and (ii) Two-thirds in Number
of the Class B Members, (iv) would result in the treatment of the LLC as an
association taxable as a corporation or as a "publicly-traded limited
partnership" for tax purposes, unless such a transfer is consented to by all
Class A and Class B Members or (v) would require the LLC to register as an
investment company under the Investment Company Act of 1940, as amended, or as
an investment advisor under the Investment Advisors Act of 1940, as amended. The
LLC shall not be required to recognize any assignment until the instrument
conveying such interest has been delivered to the LLC for recordation on the
books of the LLC. Unless an assignee becomes a substituted Member in accordance
with the provisions of Section 8.01(c), it shall not be entitled to any of the
rights granted to a Member hereunder, other than the right to receive all or
part of the share of the Net Profits, Net Losses, distributions of cash or
property or returns of capital to which his assignor would otherwise be
entitled.
(c) An assignee of the interest of a Member, or any portion
thereof, shall become a substituted Member entitled to all the rights of a
Member if, and only if:
(i) the assignor gives the assignee such right;
-32-
(ii) in the case of an assignee of a Profit Member, the Class
A Member and Two-thirds in Number of the Class B Members (exclusive of the
assignor) consent to such substitution, the granting or denying of which consent
shall be in the other Members' absolute discretion;
(iii) in the case of an assignee of the Class A Member, a
Majority in Number of the Class B Members consent to such substitution, the
granting or denying of which consent shall be in the Class B Members' absolute
discretion, except that, in the case of a transfer of all or substantially all
of the business or assets of CMGI (by sale of assets, sale of stock, merger or
otherwise), including its indirect interest in the LLC, no such consent of the
Class B Members shall be required;
(iv) the assignee or the assignor pays to the LLC all costs
and expenses incurred in connection with such substitution, including
specifically, without limitation, costs incurred in the review and processing of
the assignment and in amending this Agreement; and
(v) the assignee executes and delivers such instruments, in
form and substance satisfactory to the LLC, as may be necessary or desirable to
effect such substitution and to confirm the agreement of the assignee to be
bound by all of the terms and provisions of this Agreement.
(d) The LLC and the Members shall be entitled to treat the record
owner of any interest in the LLC as the absolute owner thereof in all respects,
and shall incur no liability for distributions of cash or other property made in
good faith to such owner until such time as a written assignment of such
interest has been received and accepted by the Class B Members and recorded on
the books of the LLC. The Class B Members may refuse to accept an assignment
until the end of the next successive quarterly accounting period. In no event
shall any interest in the LLC, or any portion thereof, be sold, transferred or
assigned to a minor or incompetent, and any such attempted sale, transfer or
assignment shall be void and ineffectual and shall not bind the LLC.
(e) If a Member who is an individual dies or a court of competent
jurisdiction adjudges him to be incompetent to manage his person or his
property, the Member's executor, administrator, guardian, conservator or other
legal representative may exercise all of the Member's rights hereunder, but
solely for the purpose of settling his estate or administering his property, and
in no event shall such executor, administrator, guardian, conservator or legal
representative participate in any way in the conduct of the business of the LLC,
or in the making of any decision or the taking of any action provided for
hereunder (including without limitation, Section 6.01(a) or (b)) for any other
purpose. If a Member is a corporation, trust or other entity, and is dissolved
or terminated, the powers of that Member may be exercised by its legal
representative or successor.
8.02 Additional Members.
------------------
(a) Except as provided in Section 8.01, additional Members may be
admitted to the LLC only upon the written consent of the Class A Member and Two-
thirds in Number of the Class B Members. Any such consent shall specify (i) the
capital contribution, if any, and the
-33-
Percentage Interest of the additional Member, (ii) the class of membership
interest to be owned by such additional Member, and (iii) any other rights and
obligations of such additional Member. Such approval shall bind all Members. In
connection with any such admission of an additional Member, this Agreement
(including Schedules A and B) shall be amended to reflect the additional Member,
-----------
its capital contribution, if any, its Percentage Interest, its Vesting
Commencement Date, and any other rights and obligations of the additional
Member. In connection with any such admission of an additional Member, the
Percentage Interest or other rights and interests of each Class A Member and
Class C Member in the LLC may not be diluted or otherwise modified or adjusted
without the specific written consent of such Class A or Class C Member.
(b) Unless all Class B Members (exclusive of those with respect to
whom an Event of Forfeiture has occurred) otherwise agree, in connection with
the admission of any additional Class B or Class C Member to the LLC, the
Percentage Interests of all Class B Members shall be diluted proportionately
based on their respective Percentage Interests immediately prior to any such
admission.
(c) Each Class B Member, and each person who is hereinafter admitted
to the LLC as a Class B Member, hereby (i) consents to the admission to the LLC
of any such third party on such terms as may be approved by the Members in
accordance with this Section 8.02, and to any amendment to this Agreement which
may be necessary or appropriate to reflect the admission of any such third party
and the terms of its interest in the LLC, and (ii) acknowledges that, in
connection with any admission of any such person, such Member's interest in
allocations of Net Profits and Net Losses and distributions of cash and property
of the LLC, and net proceeds upon liquidation of the LLC, may be diluted or
otherwise altered (subject to the provisions of this Section 8.02).
(d) Any amendment to this Agreement which shall be made in order to
effectuate the provisions of this Section 8.02 shall be executed by the
additional Member, the Class A Member and Two-thirds in Number of the Class B
Members, and any such amendment shall be binding upon all of the Members.
8.03 Reallocation of Percentage Interests.
------------------------------------
(a) The Class B Members, by action of Two-thirds in Number of the
Class B Members, may, not later than 10 business days following the commencement
of any fiscal year, elect to modify the respective Percentage Interests of the
Class B Members. Any such determination to modify the Percentage Interests of
the Class B Members shall be made based on the respective professional and
managerial contribution and anticipated contribution to the business of the LLC
of the Class B Members, and any such determination shall take effect as of the
first day of such fiscal year, and shall not otherwise have any retroactive
effect. In no event shall the Percentage Interest of the Class A Member or any
Class C Member be modified or adjusted as a result of this Section 8.03(a). In
connection with any such adjustment to the interests of the Members, Schedule B
----------
shall be amended accordingly, and all Members shall be bound by the
determination of Two-thirds in Number of the Class B Members.
-34-
(b) The Class B Members, by action of Two-thirds in Number of the
Class B Members, may at any time and from time to time, elect to modify the
respective Percentage Interests of the Class C Members. Any such determination
to modify the Percentage Interests of the Class C Members shall be made based on
the respective professional and managerial contribution and anticipated
contribution to the business of the LLC of the Class C Members, and any such
determination shall take effect following any such determination, and shall not
have any retroactive effect. In no event shall the Percentage Interest of the
Class A Member be modified or adjusted as a result of this Section 8.03(b). If,
as a result of any such adjustment, the aggregate Percentage Interests of the
Class C Members increase, the aggregate Percentage Interests of the Class B
Members shall be proportionately reduced. If, as a result of any such
adjustment, the aggregate Percentage Interests of the Class C Members decrease,
the aggregate Percentage Interests of the Class B Members (exclusive of any
Class B Members for whom an Event of Forfeiture has occurred) shall be
proportionately increased. Schedule B shall be amended to reflect any changes
----------
made in accordance with this Section 8.03(b), and all Members shall be bound by
the determination of Two-thirds in Number of the Class B Members.
8.04 Change of Control.
-----------------
(a) Upon a Qualifying Change of Control, as hereinafter defined, the
LLC shall repurchase all, and not less than all, of the interest of each Profit
Member and each Former Profit Member, at the individual election (an "Initial
Election") of each Profit Member and each Former Profit Member (such election to
be made in writing to the Class A Member within two (2) months of the date of
such Qualifying Change of Control). The aggregate purchase price for all such
interests (the "Aggregate Change of Control Purchase Price") shall be paid in
cash, in an amount equal to twenty percent (20%) of the Fair Market Value of the
LLC (determined as provided in 8.04(b) below) in excess of an amount equal to
the Class A Member's "Unrecovered Capital Contribution." The Class A Member's
"Unrecovered Capital Contribution" shall equal the excess of (x) the aggregate
capital contributions made by the Class A Member to the LLC over (y) the
aggregate amount distributed to the Class A Member pursuant to Section
4.01(b)(i) and (ii). The Aggregate Change of Control Purchase Price shall be
allocated among all Profit Members and Former Profit Members pro rata based on
the respective amounts which would be distributed to them if all of the LLC's
assets were distributed to the Members pursuant to Section 4.01 at the time of
the Qualifying Change of Control (and the portion of the Aggregate Change of
Control Purchase Price so determined for each Profit Member or Former Profit
Member is hereinafter referred to as such person's "Change of Control Purchase
Price").
(b) For purposes of determining the Aggregate Change of Control
Purchase Price, the Fair Market Value of the LLC (determined as if the LLC were
a publicly traded entity) shall be determined by an independent firm of
investment bankers of national reputation (the "Appraiser"), acceptable to both
(i) a majority of all the members of the Board of Directors of the Class A
Member and (ii) a Majority in Number of the Class B Members. The Appraiser must
be selected within one (1) month of the date of the Qualifying Change of
Control. If a majority of all the members of the Board of Directors of the Class
A Member and a Majority in Number of the Class B Members fail to agree on an
Appraiser, then each shall select an independent firm of investment bankers of
national reputation and those two firms shall select an Appraiser in any case
within two (2) months following the date of the Qualifying Change of Control.
The Fair Market Value of the LLC shall be the fair market value of the LLC
-35-
determined by the Appraiser as if the LLC were a publicly traded entity at the
time of the Qualifying Change of Control. In determining the Fair Market Value
of the LLC as if it were a publicly traded entity, the Appraiser shall give
primary and substantial weight as a relevant frame of reference to the fair
market value of the LLC determined in accordance with the following methodology:
(i) The Appraiser shall first determine the consideration
or value belonging or accruing to all the stockholders of CMGI as the ultimate
owners of both (A) 100% of the Unrecovered Capital and 80% of the profits of the
LLC and (B) all the other assets of CMGI, at the time of the Qualifying Change
of Control, which consideration or value shall be deemed to be equal to the
Common Stock Price, as hereinafter defined, multiplied by the number of shares
of Common Stock of CMGI outstanding at the time of the Qualifying Change of
Control determined after giving effect to (X) the conversion of all convertible
securities of CMGI and (Y) the exercise of all options to acquire equity
securities in CMGI, whether or not exercisable, outstanding at such time. As
used herein, the "Common Stock Price" shall mean the average of the closing
prices of CMGI Common Stock as quoted on the Nasdaq National Market for each of
the ten business days immediately preceding the date upon which the Qualifying
Change of Control occurs.
(ii) The Appraiser shall then deduct from that consideration
or value (A) all cash, cash equivalents and the amount of any invested cash held
directly or indirectly by CMGI (including, without limitation, all Unrecovered
Capital Contributions of the Class A Member as appearing on the books of the
LLC) and (B) the fair market value of CMGI's other core businesses (excluding
the LLC and its Investments, Portfolio Companies and other activities) comprised
of companies, tangible assets and operating divisions to the extent owned by
CMGI (determined as if these other core businesses were, in the aggregate, a
separate publicly traded entity), the fair market value of which shall also be
determined by the Appraiser as of the time of the Qualifying Change of Control.
The purpose of this calculation is to determine the value of the LLC considered
as if it were a publicly traded entity at the time of the Qualifying Change of
Control by determining that portion of the value of CMGI as measured by the
Common Stock Price (less cash, cash equivalents and the amount of any invested
cash including the Unrecovered Capital Contribution and the appraised value of
CMGI's interest in other core businesses) which reflects the value of all the
LLC's Internet-related Investments, Portfolio Companies and activities which
have been invested in by the LLC determined as if the LLC were a publicly traded
entity owned by the stockholders of CMGI immediately prior to the time of the
Qualifying Change of Control with the remainder of the value of CMGI as measured
by the Common Stock Price reflecting the value of CMGI's other core businesses
(excluding the LLC and its investments, Portfolio Companies and other
activities) determined as if those other core businesses were a separate
publicly traded entity also owned by the stockholders of CMGI immediately prior
to the time of the Qualifying Change of Control.
The Appraiser must first determine the Fair Market Value of the LLC
determined as if it were a publicly traded entity by applying the methodology
set forth above, because the Members agree and acknowledge that such methodology
is the best available evidence of the actual value of the LLC as if it were a
publicly traded entity at the time of the Qualifying Change of Control to the
extent that the Common Stock Price reflects the Fair Market Value of the LLC.
-36-
Thereafter, the Appraiser, in its discretion, may also (but need not) consider
and take into account the following criteria in descending order of importance:
(x) The fair market value of other publicly traded entities
dealing primarily in Internet-related investments and activities of a kind
similar to those of the LLC; and
(y) The Fair Market Value of the LLC (determined as if the LLC
were a publicly traded entity) taken as a whole after taking into account
the future earnings potential business prospects of all its various
Internet-related investments and activities taken as a whole, with
particular emphasis on the LLC's business plan and strategy for
implementing that plan, taken as a whole, and the general market conditions
in the venture capital industry for Internet-related investments and
activities of the kind owned by the LLC.
In determining the Fair Market Value of the LLC, the Appraiser in no event shall
determine the individual value of each of the investments of the LLC and then
add these values together because such a methodology would fail to take into
account the overall business plan and strategy of the LLC to build a business
comprised of Internet-related investments and activities which complement and
support each other as parts of an overall strategy for the development of an
Internet business), but must in all events consider the Fair Market Value of the
LLC taken as a whole.
(c) Upon a Change of Control, as hereinafter defined, each Profit
Member's interest shall no longer be subject to the provisions of Section 3.04
(except to the extent such provisions have already been applied to adjust the
interest of a Profit Member), provided, however, that the provisions of the
second sentence of Section 3.04(b)(ii) and other provisions which apply upon the
occurrence of a Clause Z Event shall continue to be applicable in the case of
Profit Members and Former Profit Members (i.e., their Investment Percentage
Interests shall be subject to complete forfeiture upon the occurrence of a
Clause Z Event).
(d) The LLC, the Class A Member, and CMGI shall be jointly and
severally liable to each Profit Member and Former Profit Member for the payment
of his or her Change of Control Purchase Price with respect to the LLC's
purchase of the interest of such Profit Member or Former Profit Member this
Section 8.04.
(e) Upon the consummation of the purchase by the LLC of any of the
interests of the Profit Members or Former Profit Members upon a Qualifying
Change of Control pursuant to this Section 8.04, the Class A Member may, in its
sole discretion, and without the approval of the Class B Members (i) treat such
interests as being redeemed by the LLC or (ii) admit additional Class B and/or
Class C Members in accordance with Section 8.02 hereof and award to the
additional Class B and/or Class C Members any or all of the repurchased
interests, and no such admission or award shall require the approval of any
other Member.
(f) For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred when there has occurred a change of control of CMGI (i)
which has not been approved by a majority of all the members of the Board of
Directors of CMGI, or (ii) which has
-37-
been approved by a majority of all the members of the Board of Directors of CMGI
but which has not been approved by a Majority in Number of the Class B Members
and which is likely by its terms to have a material adverse effect upon the
business and prospects of the LLC as currently, or planned to be, conducted, and
which change of control in either event is of a nature that would be required to
be reported in response to Items 6(e) or 14(i), (iv), or (v) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") provided that, in the case of a Change of Control
reportable under Item 6(e), such Change of Control involves the acquisition by
any "person" (as such term is used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act, but expressly excluding ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇) of beneficial
ownership, directly or indirectly, of securities or interests in CMGI which
represent more than forty percent (40%) of the combined voting power of CMGI's
outstanding securities. For purposes of this Agreement, a "Change of Control"
shall also be deemed to have occurred when there has occurred a change of
control of the Class A Member (i) which has not been approved by a majority of
all the members of the Board of Directors of CMGI, or (ii) which has been
approved by a majority of all the members of the Board of Directors of CMGI but
which has not been approved by a Majority in Number of the Class B Members and
which is likely by its terms to have a material adverse effect upon the business
and prospects of the LLC as currently, or planned to be, conducted, and which
change of control in either event involves (A) the acquisition by any "person"
(as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) of
beneficial ownership, directly or indirectly, of securities or interests in the
Class A Member which represents more than fifty percent (50%) of the combined
voting power of the Class A Member's outstanding securities, or (B) a sale of
all or substantially all of the assets of the LLC or of the Class A Member, or
(C) either the merger or consolidation of the LLC or the Class A Member with
another entity which is the surviving entity of such merger or consolidation
provided that such other entity, prior to such merger or consolidation, was not
controlled directly or indirectly by CMGI. A "Qualifying Change of Control"
shall mean any Change of Control which is described in clause (i) of either of
the two preceding sentences.
(g) All fees and expenses associated with the appraisal process set
forth above shall be paid by CMGI.
(h) Each Profit Member or Former Profit Member making an Initial
Election to have his or her interest repurchased by the LLC as provided in
Section 8.04(a) above following a Qualifying Change of Control shall have one
(1) month following the determination of such person's Change of Control
Purchase Price as provided above to reconsider and withdraw such Initial
Election. Any withdrawal of an Initial Election must be made by the Profit
Member or Former Profit Member by written notice to the Class A Member within
said one (1) month period. In the event any such Initial Election is not
withdrawn in a timely manner, then it shall become final and binding on the
parties and the LLC shall proceed to repurchase the interest owned by such
Profit Member or Former Profit Member within two (2) months following the date
of the determination of the Change of Control Purchase Price as provided above.
In the event that any Profit Member or Former Profit Member fails to make a
timely Initial Election to have his or her interest purchased by the LLC as
provided in Section 8.04(a) above following a Qualifying Change of Control, such
right shall immediately become null and void and shall be of no further force or
effect with respect to that Qualifying Change of Control, but such Profit Member
or Former Profit Member shall retain his or her rights hereunder with respect to
any other or future Qualifying Change of Control.
-38-
ARTICLE IX
DISSOLUTION AND TERMINATION
9.01 Events of Dissolution.
---------------------
(a) The LLC shall be dissolved:
(i) on a date designated in writing by (A) the Class A
Member and (B) Two-thirds in Number of the Class B Members;
(ii) upon the sale or other disposition of all of the LLC's
assets; or
(iii) upon the entry of a decree of judicial dissolution
under Section 18-802 of the Act.
(b) Dissolution of the LLC shall be effective on the day on
which the event occurs giving rise to the dissolution, but the LLC shall not
terminate until the LLC's Certificate of Formation shall have been cancelled and
the assets of the LLC shall have been distributed as provided herein.
Notwithstanding the dissolution of the LLC, prior to the termination of the LLC,
as aforesaid, the business of the LLC and the affairs of the Members, as such,
shall continue to be governed by this Agreement. A liquidator appointed by the
Class B Members (who may be a Member), shall liquidate the assets of the LLC,
and distribute the proceeds thereof as contemplated by this Agreement and cause
the cancellation of the LLC's Certificate of Formation.
9.02 Distributions Upon Liquidation.
------------------------------
(a) After payment of liabilities owing to creditors, the
liquidator shall set up such reserves as it deems reasonably necessary for any
contingent or unforeseen liabilities or obligations of the LLC. Said reserves
may be paid over by such liquidator to a bank, to be held in escrow for the
purpose of paying any such contingent or unforeseen liabilities or obligations
and, at the expiration of such period as such liquidator may deem advisable,
such reserves shall be distributed to the Members or their assigns in the manner
set forth in paragraph (b) below.
(b) After paying such liabilities and providing for such
reserves, the liquidator shall cause the remaining net assets of the LLC to be
distributed to all Members in accordance with Section 4.01 hereof. In the event
that any part of such net assets consists of notes or accounts receivable or
other non-cash assets, the liquidator may take whatever steps it deems
appropriate to convert such assets into cash or into any other form which would
facilitate the distribution thereof. If any assets of the LLC are to be
distributed in kind, such assets shall be distributed on the basis of their fair
market value net of any liabilities. No Member other than the Class A Member
shall have any right or interest in or to the name "@Ventures" and all rights
and interest in such name shall, upon termination of the LLC, be assigned and
transferred to the Class A Member.
-39-
ARTICLE X
MISCELLANEOUS
10.01 Notices. Except as otherwise specifically provided in this
-------
Agreement, any and all notices, requests, elections, consents or demands
permitted or required to be made under this Agreement shall be in writing,
signed by the Member giving such notice, request, election, consent or demand,
and shall be delivered personally, or sent by registered or certified mail, or
by overnight mail, Federal Express or other similar commercial overnight
courier, to the other Member or Members at their addresses set forth in Schedule
--------
A, and, in the case of a notice to the LLC, at the address of its principal
-
office as set forth in Article I hereof, or at such other address as may be
supplied by written notice given in conformity with the terms of this Section
10.01. The date of personal delivery, three days after the date of mailing, the
business day after delivery to an overnight courier, as the case may be, or the
date of actual delivery if sent by any other method, shall be the date of such
notice.
10.02 Successors and Assigns. Subject to the restrictions on transfer
----------------------
set forth herein, this Agreement, and each and every provision hereof, shall be
binding upon and shall inure to the benefit of the Members, their respective
successors, successors-in-title, heirs and assigns, and each and every
successor-in-interest to any Member, whether such successor acquires such
interest by way of gift, purchase, foreclosure, or by any other method, shall
hold such interest subject to all of the terms and provisions of this Agreement.
10.03 Amendments. Except as otherwise specifically provided in this
----------
Agreement (including without limitation, Section 3.04 and Article VIII), this
Agreement may be amended or modified only by (i) the Class A Member and (ii) a
Majority in Number of the Class B Members; provided that (x) no such amendment
shall increase the liability of, increase the obligations of or
disproportionately adversely affect the interest of, any Member without the
specific approval of such Member (other than upon the occurrence of an Event of
Forfeiture, upon admission of a Profit Member in accordance with Section 8.02 or
upon the adjustment of the Percentage Interests of the Class B Members in
accordance with Section 8.03); (y) if any provision of this Agreement provides
for the approval or consent of a greater number of Members or of Members holding
a higher percentage of the total Percentage Interests of the Members, any
amendment effectuated pursuant to such provision, and any amendment to such
provision, shall require the approval or consent of such greater number of
Members or of Members holding such higher percentage of Percentage Interests;
and (z) subject to clauses (x) and (y) above, any amendment to this Section
10.03 shall require the approval of (i) the Class A Member and (ii) Class B
Members holding not less than two-thirds of all Percentage Interests held by all
Class B Members.
10.04 Partition. The Members hereby agree that no Member nor any
---------
successor-in-interest to any Member, shall have the right while this Agreement
remains in effect to have the property of the LLC partitioned, or to file a
complaint or institute any proceeding at law or in equity to have the property
of the LLC partitioned, and each Member, on behalf of himself, his successors,
representatives, heirs and assigns, hereby waives any such right. It is the
intention of the Members that during the term of this Agreement, the rights of
the Members and their successors-in-interest, as among themselves, shall be
governed by the terms of this Agreement, and that the right of any Member or
successor-in-interest to assign, transfer, sell or otherwise
-40-
dispose of his interest in the LLC shall be subject to the limitations and
restrictions of this Agreement.
10.05 No Waiver. The failure of any Member to insist upon strict
---------
performance of a covenant hereunder or of any obligation hereunder, irrespective
of the length of time for which such failure continues, shall not be a waiver of
such Member's right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of
any obligation hereunder, shall constitute a consent or waiver to or of any
other breach or default in the performance of the same or any other obligation
hereunder.
10.06 Entire Agreement. This Agreement constitutes the full and complete
----------------
agreement of the parties hereto with respect to the subject matter hereof. 10.07
Captions. Titles or captions of Articles or sections contained in this Agreement
are inserted only as a matter of convenience and for reference, and in no way
define, limit, extend or describe the scope of this Agreement or the intent of
any provision hereof.
10.7 Captions. Titles or captions of Articles or sections contained in this
--------
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
10.08 Counterparts. This Agreement may be executed in a number of
------------
counterparts, all of which together shall for all purposes constitute one
Agreement, binding on all the Members notwithstanding that all Members have not
signed the same counterpart.
10.09 Applicable Law. This Agreement and the rights and obligations of the
--------------
parties hereunder shall be governed by and interpreted, construed and enforced
in accordance with the laws of the State of Delaware.
10.10 Gender, Etc. In the case of all terms used in this Agreement, the
-----------
singular shall include the plural and the masculine gender shall include the
feminine and neuter, and vice versa, as the context requires.
10.11 Creditors. None of the provisions of this Agreement shall be for the
---------
benefit of or enforceable by any creditor of any Member or of the LLC other than
a Member who is such a creditor of the LLC.
[Signature pages follow.]
-41-
IN WITNESS WHEREOF, the Members have signed and sworn to this
Agreement under penalties of perjury as of the date first above written.
CLASS A MEMBER:
CMG @VENTURES CAPITAL CORP.
By: /s/▇▇▇▇▇▇ ▇. Hajducky_III
--------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
--------------------------------
Title Chief Financial Officer
--------------------------------
CLASS B MEMBERS:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ Case
--------------------------------------
▇▇▇▇ ▇▇▇▇▇ Case
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-42-
CLASS C MEMBERS:
/s/▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
/s/▇▇▇▇▇▇▇ Cabute
--------------------------------------
▇▇▇▇▇▇▇ Cabute
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
CMGI INC. (solely for purposes of confirming
its obligations under Section 8.04(d) and (g) above):
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
-----------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
--------------------------------
Title Chief Financial Officer
--------------------------------
-43-
FIRST AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
CMGI @VENTURES IV, LLC
THIS FIRST AMENDMENT, dated as of the 16th day of June, 2000, to the
Limited Liability Company Agreement dated as of June 1, 2000 (the "Agreement"),
of CMGI @Ventures IV, LLC, a Delaware limited liability company (the "LLC"), is
by and among the persons named as the Class A Member and a Majority in Number of
the Class B Members on Schedule A to the Agreement, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇")
and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"). Capitalized terms used herein, and not otherwise
defined herein, shall have the respective meanings ascribed to them in the
Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Members, desiring to admit each of ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ to the LLC as a Class C Member, effective as of the date hereof, hereby
amend the Agreement as follows.
1. Admission of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇. Effective as of the date hereof,
-------------------------------
Schedules A and B to the Agreement are hereby deleted, and Schedules A and B
----------- - ----------- -
attached hereto are substituted therefor, in order to reflect (i) the admission
of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ as Class C Members, each with the respective Percentage
Interest specified opposite his or her name on Schedule B, and (ii) the
----------
reduction of the Percentage Interests of each of the Class B Members in
connection with such admission, as contemplated by Section 8.02(b) of the
Agreement.
2. Agreement of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇. Each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, by
-------------------------------
her or his execution and delivery of this Amendment: (a) hereby agrees to be
bound by all of the covenants, terms and conditions of the Agreement, including
without limitation, the obligation to make capital contributions to the LLC
pursuant to Section 3.01(c) of the Agreement; (b) hereby agrees to perform all
of the obligations arising under the Agreement from and after the date hereof
with respect to the interest in the LLC acquired by her or him as a Class C
Member; and (c) hereby ratifies and confirms all actions taken by the LLC to
date.
Without limiting the foregoing:
(i) Each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ hereby acknowledges that she or
he has received and reviewed a copy of the Agreement, and understands
the restrictions imposed upon her or him, in her or his capacity as a
Class C Member of the LLC.
(ii) Each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ agrees and acknowledges that: (A)
her or his interest in the LLC is subject to modification and
forfeiture, all as more fully described in Sections 6.01(d), 8.02,
8.03 and 3.04 of the Agreement; (B) she or he understands that
pursuant to Section 6.07 of the Agreement she or he has agreed to
devote the substantial portion of her or his business time to the
conduct of the business of the LLC and that pursuant to Section 6.06,
she or he has agreed to certain restrictions on her or his business
activities; (C) her or his interest in the LLC may not be assigned or
transferred, except in compliance with the Agreement, including
without limitation,
Section 8.01; and (D) she or he has had such opportunity as she or he
has deemed adequate to ask questions of and receive answers from the
LLC or other representatives of the LLC concerning the LLC, and to
obtain from representatives of the LLC such information regarding the
LLC, which the LLC possesses or can acquire without unreasonable
effort or expense, as is necessary to evaluate her or his
participation in the LLC.
3. No Other Amendments. In all other respects, the Agreement is
-------------------
hereby ratified and confirmed.
[Signature pages follow.]
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
CLASS A MEMBER:
CMG @VENTURES CAPITAL CORP.
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
---------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
--------------------------------
Title Chief Executive Officer
-------------------------------
CLASS B MEMBERS (to be signed by a Majority
in Number hereof):
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇ Case
------------------------------------
▇▇▇▇ ▇▇▇▇▇ Case
/s/▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
-3-
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
MEMBERS ADMITTED HEREBY:
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
-4-
SECOND AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
CMGI @VENTURES IV, LLC
THIS SECOND AMENDMENT, dated as of the 22/nd/ day of August, 2000, to
the Limited Liability Company Agreement dated as of June 1, 2000 (the
"Agreement"), of CMGI @Ventures IV, LLC, a Delaware limited liability company
(the "LLC"), is by and among the persons named as the Class A Member and a
Majority in Number of the Class B Members on Schedule A to the Agreement, and
▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"). Capitalized terms used herein, and not otherwise defined
herein, shall have the respective meanings ascribed to them in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Members, desiring to admit ▇▇▇▇▇ ▇▇▇▇ to the
LLC as a Class C Member, effective as of the date hereof, hereby amend the
Agreement as follows.
1. Admission of ▇▇▇▇. Effective as of the date hereof, Schedules A and
----------------- -----------
B to the Agreement are hereby deleted, and Schedules A and B attached hereto are
----------- -
substituted therefor, in order to reflect (i) the admission of ▇▇▇▇ as a Class C
Member, with the Percentage Interest specified on Schedule B, and (ii) the
----------
reduction of the Percentage Interests of each of the Class B Members in
connection with such admission, as contemplated by Section 8.02(b) of the
Agreement.
2. Agreement of ▇▇▇▇. ▇▇▇▇, by her execution and delivery of this
-----------------
Amendment: (a) hereby agrees to be bound by all of the covenants, terms and
conditions of the Agreement, including without limitation, the obligation to
make capital contributions to the LLC pursuant to Section 3.01(c) of the
Agreement; (b) hereby agrees to perform all of the obligations arising under the
Agreement from and after the date hereof with respect to the interest in the LLC
acquired by her as a Class C Member; and (c) hereby ratifies and confirms all
actions taken by the LLC to date.
Without limiting the foregoing:
(i) ▇▇▇▇ hereby acknowledges that she has received and reviewed
a copy of the Agreement, and understands the restrictions imposed upon
her, in her capacity as a Class C Member of the LLC.
(ii) ▇▇▇▇ agrees and acknowledges that: (A) her interest in the
LLC is subject to modification and forfeiture, all as more fully
described in Sections 6.01(d), 8.02, 8.03 and 3.04 of the Agreement;
(B) she understands that pursuant to Section 6.07 of the Agreements he
has agreed to devote the substantial portion of her business time to
the conduct of the business of the LLC and that pursuant to Section
6.06, she has agreed to certain restrictions on her business
activities; (C) her interest in the LLC may not be assigned or
transferred, except in compliance with the Agreement, including
without limitation, Section 8.01; and (D) she has had such opportunity
as he has deemed adequate to ask questions of and receive answers from
the LLC or other representatives of the LLC
concerning the LLC, and to obtain from representatives of the LLC such
information regarding the LLC, which the LLC possesses or can acquire
without unreasonable effort or expense, as is necessary to evaluate
her participation in the LLC.
3. No Other Amendments. In all other respects, the Agreement is
-------------------
hereby ratified and confirmed.
[Signature pages follow.]
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
CLASS A MEMBER:
CMG @VENTURES CAPITAL CORP.
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
----------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
--------------------------------
Title Chief Financial Officer
------------------------------
CLASS B MEMBERS (to be signed by a Majority
in Number hereof):
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇ Case
------------------------------------
▇▇▇▇ ▇▇▇▇▇ Case
/s/▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
-3-
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
MEMBER ADMITTED HEREBY:
/s/ ▇▇▇▇▇ ▇▇▇▇
--------------
▇▇▇▇▇ ▇▇▇▇
-4-
THIRD AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
CMGI @VENTURES IV, LLC
THIS THIRD AMENDMENT, dated as of the 6th day of September, 2000, to
the Limited Liability Company Agreement dated as of June 1, 2000 (the
"Agreement"), of CMGI @Ventures IV, LLC, a Delaware limited liability company
(the "LLC"), is by and among the persons named as the Class A Member and a
Majority in Number of the Class B Members on Schedule A to the Agreement, and
----------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"). Capitalized terms used herein, and not otherwise
defined herein, shall have the respective meanings ascribed to them in the
Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Members, desiring to admit ▇▇▇▇ ▇▇▇▇▇▇▇▇ to
the LLC as a Class C Member, effective as of the date hereof, hereby amend the
Agreement as follows.
1. Admission of ▇▇▇▇▇▇▇▇. Effective as of the date hereof, Schedules A
--------------------- -----------
and B to the Agreement are hereby deleted, and Schedules A and B attached hereto
- ----------- -
are substituted therefor, in order to reflect (i) the admission of ▇▇▇▇▇▇▇▇ as a
Class C Member, with the Percentage Interest specified on Schedule B, and (ii)
----------
the reduction of the Percentage Interests of each of the Class B Members in
connection with such admission, as contemplated by Section 8.02(b) of the
Agreement.
2. Agreement of ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇, by her execution and delivery of
---------------------
this Amendment: (a) hereby agrees to be bound by all of the covenants, terms and
conditions of the Agreement, including without limitation, the obligation to
make capital contributions to the LLC pursuant to Section 3.01(c) of the
Agreement; (b) hereby agrees to perform all of the obligations arising under the
Agreement from and after the date hereof with respect to the interest in the LLC
acquired by her as a Class C Member; and (c) hereby ratifies and confirms all
actions taken by the LLC to date.
Without limiting the foregoing:
(i) ▇▇▇▇▇▇▇▇ hereby acknowledges that she has received and
reviewed a copy of the Agreement, and understands the restrictions imposed upon
her, in her capacity as a Class C Member of the LLC.
(ii) ▇▇▇▇▇▇▇▇ agrees and acknowledges that: (A) her interest in the
LLC is subject to modification and forfeiture, all as more fully described in
Sections 6.01(d), 8.02, 8.03 and 3.04 of the Agreement; (B) she understands that
pursuant to Section 6.07 of the Agreement she has agreed to devote the
substantial portion of her business time to the conduct of the business of the
LLC and that pursuant to Section 6.06, she has agreed to certain restrictions on
her business activities; (C) her interest in the LLC may not be assigned or
transferred, except in compliance with the Agreement, including without
limitation, Section 8.01; and (D) she has had such opportunity as he has deemed
adequate
to ask questions of and receive answers from the LLC or other
representatives of the LLC concerning the LLC, and to obtain from
representatives of the LLC such information regarding the LLC, which
the LLC possesses or can acquire without unreasonable effort or
expense, as is necessary to evaluate her participation in the LLC.
3. No Other Amendments. In all other respects, the Agreement is
-------------------
hereby ratified and confirmed.
[Signature pages follow.]
-2-
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
CLASS A MEMBER:
CMG @VENTURES CAPITAL CORP.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
---------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
---------------------------------
Title Chief Financial Officer
--------------------------------
CLASS B MEMBERS (to be signed by a Majority
in Number hereof):
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ Case
--------------------------------------
▇▇▇▇ ▇▇▇▇▇ Case
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
-3-
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
MEMBER ADMITTED HEREBY:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
-4-
FOURTH AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
CMGI @VENTURES IV, LLC
THIS FOURTH AMENDMENT, dated as of the first day of December, 2000, to
the Limited Liability Company Agreement dated as of June 1, 2000 (as amended to
date, the "Agreement"), of CMGI @Ventures IV, LLC, a Delaware limited liability
company (the "LLC"), is by and among Two-thirds in Number of the Class B Members
named on Schedule A to the Agreement, and ▇▇▇▇▇▇ ▇▇▇▇. Capitalized terms used
----------
herein, and not otherwise defined herein, shall have the respective meanings
ascribed to them in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Members hereby amend the Agreement as follows.
1. Treatment of ▇▇. ▇▇▇▇ in Respect of Event of Termination. Effective
--------------------------------------------------------
as of the date hereof, ▇▇. ▇▇▇▇' relationship with all Employers has terminated,
and such termination constitutes an Event of Forfeiture. The Members and ▇▇.
▇▇▇▇ agree that, notwithstanding any provision of the Agreement to the contrary,
(i) such Event of Forfeiture shall not constitute a Clause Z Event, and (ii) ▇▇.
▇▇▇▇' Vested Percentage shall equal 20%. Therefore, effective as of the date
hereof, (a) ▇▇. ▇▇▇▇' Percentage Interest has been reduced to zero; (b) ▇▇.
▇▇▇▇' Investment Percentage Interest in each Investment in which she
participates has been reduced in accordance with Section 3.04(b)(ii) of the
Agreement and the Investment Percentage Interest of the other Members
participating in such Investments shall be increased to the extent and in the
manner provided in Section 3.04(b)(ii); and (c) any amount held in any Vesting
Escrow for the benefit of ▇▇. ▇▇▇▇ which is attributable to the portion of her
interest which has been forfeited effective as of the date hereof shall be
forfeited as provided in Section 3.04(b)(iii). ▇▇. ▇▇▇▇ shall continue to be
subject to all other provisions of the Agreement, including without limitation,
Sections 3.01(c), and 6.06(b), and the last sentence in the definition of the
term "Event of Forfeiture."
2. Amendment to Schedule B. Schedule B to the Agreement is hereby
----------------------- ----------
deleted, and Schedule B attached hereto is substituted therefor, in order to
----------
reflect, effective as of the date hereof: (a) the matters described in Section 1
of this Amendment, (b) an increase in the Percentage Interest of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ made pursuant to Section 8.03(b) of the Agreement, and (c) the
modification of the Percentage Interests of the Class B Members as a result of
the foregoing.
3. No Other Amendments. In all other respects, the Agreement is
-------------------
hereby ratified and confirmed.
[Signature pages follow.]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
CLASS B MEMBERS (to be signed by a
Two-thirds in Number hereof):
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ Case
---------------------------------------
▇▇▇▇ ▇▇▇▇▇ Case
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
▇▇▇▇▇▇ ▇▇▇▇
-2-
FIFTH AMENDMENT TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
CMGI @VENTURES IV, LLC
THIS FIFTH AMENDMENT, dated as of the first day of January, 2001, to
the Limited Liability Company Agreement dated as of June 1, 2000 (as amended to
date, the "Agreement"), of CMGI @Ventures IV, LLC, a Delaware limited liability
company (the "LLC"), is by and among Two-thirds in Number of the Class B Members
named on Schedule A to the Agreement, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇. Capitalized terms
----------
used herein, and not otherwise defined herein, shall have the respective
meanings ascribed to them in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Members hereby amend the Agreement as follows.
1. Treatment of ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ in Respect of Event of Termination.
----------------------------------------------------------------
Effective as of the date hereof, ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇'▇ relationship with all
Employers has terminated, and such termination constitutes an Event of
Forfeiture. The Members and ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ agree that, notwithstanding any
provision of the Agreement to the contrary, (i) such Event of Forfeiture shall
not constitute a Clause Z Event, and (ii) ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇'▇ Vested Percentage
shall equal 20%. Therefore, effective as of the date hereof, (a) ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇'▇ Percentage Interest has been reduced to zero; (b) ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇'▇ Investment Percentage Interest in each Investment in which he
participates has been reduced in accordance with Section 3.04(b)(ii) of the
Agreement and the Investment Percentage Interest of the other Members
participating in such Investments shall be increased to the extent and in the
manner provided in Section 3.04(b)(ii); and (c) any amount held in any Vesting
Escrow for the benefit of ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ which is attributable to the portion
of his interest which has been forfeited effective as of the date hereof shall
be forfeited as provided in Section 3.04(b)(iii). ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇ shall
continue to be subject to all other provisions of the Agreement, including
without limitation, Sections 3.01(c), and 6.06(b), and the last sentence in the
definition of the term "Event of Forfeiture."
2. Amendment to Schedule B. Schedule B to the Agreement is hereby
----------------------- ----------
deleted, and Schedule B attached hereto is substituted therefor, in order to
----------
reflect, effective as of the date hereof: (a) the matters described in Section 1
of this Amendment, (b) an increase in the Percentage Interest of ▇▇▇▇ ▇▇▇▇▇▇▇
made pursuant to Section 8.03(b) of the Agreement, and (c) the modification of
the Percentage Interests of the Class B Members as a result of the foregoing.
3. No Other Amendments. In all other respects, the Agreement is
-------------------
hereby ratified and confirmed.
[Signature pages follow.]
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date first above written.
CLASS B MEMBERS (to be signed by Two-thirds
in Number hereof):
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇ Case
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇ Case
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-2-
