Limited Liability Company Agreement - CMGI @Ventures IV LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
CMGI @VENTURES IV, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of CMGI
@Ventures IV, LLC (the "LLC"), dated as of July 27, 2001, is by and among the
persons named on Schedule A attached hereto, each of whom is designated as a
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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 June 1, 2000, certain Class B Members and Class C
Members were admitted to the LLC, and such persons, and the Class A Member,
executed and delivered a Limited Liability Company Agreement dated as of June 1,
2000, which agreement has been amended through the date hereof by nine
amendments thereto (as amended to date, the "Original Agreement");
WHEREAS, the Class A Member and the Class B Members desire to amend and
restate in its entirety the Original Agreement, to modify certain of the
provisions thereof.
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 Original Agreement is hereby amended and
restated to read in its entirety 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
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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 Amended and Restated Limited Liability Company
Agreement as it may be amended, supplemented, or restated from time to time.
"Appraiser" shall have the meaning ascribed thereto in Section 8.04.
"Bonus Incentive Fee" shall have the meaning ascribed thereto in Section
4.01(b)(i).
"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 in-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
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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 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
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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), which failure is not cured within
30 days after written notice of such breach is given to such Member;
(v) misappropriation for personal use of any material asset or
business opportunity of the Employer; or
(vi) willful misconduct, which 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 misconduct has occurred.
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Notwithstanding the foregoing, with respect to Charles Finnie, Finnie shall
be deemed to have been terminated with Cause if there occurs a "Cause
Termination" under the Finnie 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.
"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.
"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 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").
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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.
Notwithstanding the foregoing, with respect to Charles Finnie, an Event of
Forfeiture shall be deemed to have occurred if an "Event of Termination" occurs
with respect to Finnie for purposes of the Finnie Letter Agreement.
A Clause Y Event has occurred with respect to certain Profit Members as of
the date of this Amended and Restated Agreement, and such Profit Members have
assumed the status of Former Profit Members as of the date hereof. Such Former
Profit Members are entitled to certain severance and benefit continuation
payments pursuant to separate written agreements, and the receipt of such
amounts shall not be deemed to constitute a continuation of the employment
relationship of such Former Profit Members with the LLC or any of its
Affiliates.
"Finnie Letter Agreement" means that certain letter agreement dated as of
September 14, 2000 between Charles Finnie 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.
"Friendly Change of Control" shall be deemed to have occurred when:
(i) there has occurred a change of control of CMGI which has been
approved by a majority of all the members of the Board of Directors of
CMGI, and which change of control 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 David S.
Wetherell) 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; provided however,
that any of the foregoing which results from (X) the conversion of any
security or class of securities issued by CMGI and outstanding as of the
date of this Amended and Restated Agreement, or any securities issued in
respect of or in exchange for any of such outstanding securities or (Y)
payment of any amounts due under any debt instruments of CMGI to Compaq
Computer Corporation which are outstanding as of the date of this Amended
and Restated Agreement, or any securities issued in respect of or in
exchange for any of such outstanding debt instruments, shall not constitute
a Friendly Change of Control for purposes of this definition; or
(ii) there has occurred a change of control of the Class A Member
which has been approved by a majority of all the members of the Board of
Directors of CMGI, and which change of control involves (A) the acquisition
by any "person" (as such term is used in
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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; provided
however, that any of the foregoing which results from (X) the conversion of
any security or class of securities issued by CMGI and outstanding as of
the date of this Amended and Restated Agreement, or any securities issued
in respect of or in exchange for any of such outstanding securities or (Y)
payment of any amounts due under any debt instruments of CMGI to Compaq
Computer Corporation which are outstanding as of the date of this Amended
and Restated Agreement, or any securities issued in respect of or in
exchange for any of such outstanding debt instruments, shall not constitute
a Friendly Change of Control for purposes of this definition.
"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, and (ii) the aggregate Unreimbursed Acquisition Expenses
attributable to such Investment.
"Incentive Percentage" shall have the meaning ascribed thereto on Exhibit
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1.
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"Initial Election" shall have the meaning ascribed thereto in Section 8.04.
"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
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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 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.
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"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 on the Nasdaq Stock Market
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.
"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 the unreimbursed third party transaction costs, if any, associated
with the disposition of such Investment or realization of such Investment
Receipts, including without limitation, brokerage commissions, finders fees, and
attorneys fees, investment banking fees and accountants fees.
"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;
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(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.
"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, and shall include any receipts of the LLC from
dispositions of Short-Term Investments.
"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.
"Profit Member Investment Percentage Interest" means each Profit Member's
percentage of the total amount of such Investment which is allocable or
distributable to the Profit Members as a group, as specified on the Investment
Schedule for such Investment.
"Profit Member Percentage Interest" shall be the percentage interest of a
Profit Member set forth in Schedule B, as amended from time to time, and subject
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to adjustment pursuant to Sections 3.04, 8.02 and 8.03. Each Profit Member's
Profit Member Percentage Interest represents his or her share of the total of an
amount, distribution or item which is allocable or distributable to the Profit
Members as a group.
"Qualifying Change of Control" shall have the meaning ascribed thereto in
Section 8.04.
"Securities Act" means the Securities Act of 1933, as amended.
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"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 Member
that was obligated to contribute to the LLC pursuant to this Agreement 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 (including payment of all Bonus Incentive Fees)
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)(ii) and (iii) (taking into account the last sentence
thereof) and 4.01(c) hereof, as applicable.
"Two-thirds in Number of the Class B Members" means, with respect to a
particular action or matter, at least two-thirds in number of the Class B
Members entitled to vote on the action.
"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 (or portion thereof), the excess, if any, of (i) the
aggregate Fully Loaded Investment Cost of such Investment (or portion thereof)
over (ii) the aggregate cumulative amount previously distributed pursuant to
Section 4.01(b)(ii) with respect to such Investment (or portion thereof).
"Vested Percentage" means
(i) with respect to any determination made after the date of
this Amended and Restated Agreement but prior to May 15, 2002, for any
Profit Member (other than a Former Profit Member), a fraction
(expressed as a percentage) the numerator of which is the sum of (x)
12 plus (y) the number of whole calendar months that have elapsed
between such Profit Member's Vesting Commencement Date and the date of
determination and the denominator of which is 60; and
(ii) with respect to any determination made on or after May 15,
2002, for any Profit Member (other than a Former Profit Member), a
fraction (expressed
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as a percentage) the numerator of which is the sum of (x) 24 plus (y)
the number of whole calendar months that have elapsed between such
Profit Member's Vesting Commencement Date and the date of
determination and the denominator of which is 60;
provided, however, that
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(I) upon the occurrence of a Change of Control or a Vesting
Event, each Profit Member's Vested Percentage shall equal 100%;
(II) if, for any reason, the Class A Member fails to fund any
operating expense included in an approved annual operating Budget in
accordance with its terms, the numerator, for purposes of the fraction
described in clause (i) or (ii) above, as applicable, shall be
increased by 12;
(III) if the relationship of any Profit Member to all Employers
or with the LLC is terminated for any reason (including by such
Member, the Employer, or the LLC, with or without Cause and/or with or
without Good Reason, or upon death or disability such Member), then
Two-Thirds in Number of the Class B Members (exclusive of any Class B
Member which is the subject of the determination) may elect to
increase such Profit Member's Vested Percentage (to a percentage which
is in excess of the percentage calculated in accordance with clauses
(i) and (ii) above, but not in excess of 100%);
(IV) if an Event of Forfeiture described in clause (x) of the
definition of the term "Event of Forfeiture" occurs with respect to a
Profit Member (but not a Former Profit Member) prior to May 15, 2002,
then for purposes of determining such Profit Member's Vested
Percentage, such Event of Forfeiture shall be deemed to have occurred
on May 15, 2002, and therefore clause (ii) above shall be applicable;
(V) upon the occurrence of a Friendly Change of Control, a
Profit Member's Vested Percentage shall be increased to a Percentage
equal to the greater of
(x) the sum of (AA) the Vested Percentage as of the date
of the Friendly Change of Control determined in accordance with
clause (i) or (ii) above, as applicable plus (BB) 50% of the
excess, if any, of 100% minus the Vested Percentage as of the
date of the Friendly Change of Control determined in accordance
with clause (i) or (ii) above, as applicable, and
(y) the Percentage determined as of the date of the
Friendly Change of Control in accordance with clause (i) or (ii),
as applicable, if the numerator for purposes of such clause were
increased by 12;
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and after giving effect to such increase, the Vested Percentage
shall continue to vest in monthly installments as contemplated by
clauses (i) and (ii) above; and
(VI) in no event shall a Profit Member's Vested Percentage
exceed 100%.
Certain of the Profit Members have entered into Retention Agreements and
General Releases with the LLC and certain affiliated entities ("Retention
Agreements") on or about the date of this Agreement. Such Retention Agreements
provide for acceleration of vesting of such Profit Members' Vested Percentages
under certain circumstances, and the terms of such agreements, as in effect on
the date hereof, are hereby incorporated by reference herein. The adoption of
this Amended and Restated Agreement shall not modify the Vested Percentage for
any Profit Member who became a Former Profit Member on or prior to the date
hereof. Certain of the Former Profit Members entered into severance agreements
with the LLC and certain other parties on or about the date hereof (the
"Severance Agreements"), and the Vested Percentages of such Former Profit
Members have been determined pursuant to and in accordance with the Severance
Agreements, and not in accordance with the foregoing definition.
"Vesting Commencement Date" means, for each Class B or Class C Member, the
Vesting Commencement Date specified on Schedule A attached hereto.
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"Vesting Escrow" shall have the meaning ascribed thereto in Section 4.02.
"Vesting Event" shall mean the occurrence of any of the following:
(i) The failure of the Class A Member for any reason to adopt a
budget for Follow-on Investments (x) by September 1, 2001 with respect to
the CMGI fiscal year beginning on August 1, 2001, and (y) by September 1,
2002 with respect to the CMGI fiscal year beginning on August 1, 2002;
(ii) The failure of the Class A Member for any reason to adopt by
September 1 of each CMGI fiscal year (which begins on the immediately
preceding August 1) an annual Budget (a draft of which is submitted to the
Class A Member by the Class B Members for approval at least 60 days prior
to the first day of the applicable CMGI fiscal year) for operating expenses
(and exclusive of amounts for Investments, including Follow-on Investments)
in an amount to be mutually agreed on by the Class B Members and the Class
A Member (provided that, if no such agreement is reached, the failure to
adopt any such budget within the specified time period shall not constitute
a Vesting Event).
(iii) The filing, on or before July 31, 2002, of a Report on Form 8-K
by CMGI or the issuance, on or before July 31, 2002 of any press release,
or the occurrence, on or before July 31, 2002, of any guidance call or
earnings call which call includes the Chief Executive Officer, Chief
Financial Officer and/or other executive officer of CMGI, which Form 8-K,
release or call includes a statement to the effect that CMGI or its venture
capital investing unit intends to suspend, terminate or materially reduce
its commitment to making Follow-on Investments (and for this purpose, a
"material reduction" shall
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mean a reduction below the respective amount budgeted for the applicable
six-month period during which such press release is issued or such call
occurs, as specified in clause (i) above).
(iv) Any event as a result of which David S. Wetherell ceases to be
a reporting person of CMGI for purposes of Section 16 of the Securities
Exchange Act of 1934, as amended; provided that such cessation shall not
constitute a Vesting Event if David S. Wetherell is otherwise actively
involved in the business of CMGI's venture capital investing unit.
(v) Any insolvency or bankruptcy or similar case or proceeding, or
any reorganization, receivership, liquidation, dissolution or winding up of
CMGI or the Class A Member, whether voluntary or involuntary, or any
assignment for the benefit of creditors or any other marshaling of assets
and liabilities of CMGI or the Class A Member.
(vi) Any vote by the Board of Directors of CMGI or the Class A
Member to liquidate CMGI or the Class A Member, or to wind down and
terminate CMGI's venture capital operating unit.
Pursuant to and in accordance with the Retention Agreements with certain of
the Profit Members, in certain cases, following the occurrence of a Vesting
Event, such Members shall be entitled to certain severance benefits following a
termination of their employment.
ARTICLE II
GENERAL PROVISIONS
2.01 Formation of Limited Liability Company; Foreign Qualification. The
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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,
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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 100 Brickstone Square, Andover, Massachusetts 01810.
The LLC's registered office in Delaware is c/o Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware, 19810, and the LLC's registered agent for
service of process in Delaware is Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware, 19810. The Class B Members, with the approval of the
Class A Member, may at any time and from time 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.
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.
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(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 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,
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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, and only 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
(including a Follow-on 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.
(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) The LLC hereby releases each Profit Member from its capital
contribution obligations contained in Section 3.01(c) of the Original Agreement.
(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. 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
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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 Profit Member Investment Percentage
Interest of each of the Profit 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 Class A Member's share of each Investment shall be determined
in accordance with Section 4.01(b).
(c) Subject to Section 3.04, the Profit Member 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 Profit Member Investment Percentage Interest, if any, of
Charles Finnie ("Finnie") in the Investment shall be determined. If an
Investment is identified to the LLC, and developed, by Finnie (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 Finnie Letter Agreement, and Finnie 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 Finnie Letter Agreement,
Finnie's Profit Member Investment Percentage Interest in such Investment shall
be 10%; if an Investment is identified to the LLC, and developed, by Finnie
(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 Finne Letter Agreement, and Finnie will not
thereafter serve on the board of directors of the investment as the LLC's
designee, Finnie's Profit Member Investment Percentage Interest in such
Investment shall be 5%; and in all other cases Finnie's Profit Member 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 Finnie's
Profit Member Investment Percentage Interest, if any, in each Investment in
accordance with the standards enumerated in this paragraph and the Finnie Letter
Agreement. The Profit Member 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) 100% minus the Profit Member
Investment Percentage Interest, if any, of Finnie in such Investment multiplied
by (II) a fraction (x) the numerator of which shall equal such Profit Member's
Profit Member Percentage Interest as of the date on which such Investment is
made and (y) the denominator of which shall equal the aggregate Profit Member
Percentage Interests on such date of all Profit Members exclusive of those for
whom an Event of Forfeiture has occurred. The Profit Member Investment
Percentage Interest of each Profit Member (including Finnie) in each Investment
shall be subject to reduction upon the occurrence of an Event of Forfeiture. If
Finnie's Profit Member Investment Percentage Interest in a particular investment
is initially fixed at 10%, and thereafter Finnie 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 Finnie Letter Agreement), Finnie's Profit Member
Investment Percentage Interest in such Investment shall be reduced to 5%, and
the 5% 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
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Forfeiture has occurred), pro rata based on their respective Profit Member
Investment Percentage Interests in such Investment.
3.04 Event of Forfeiture.
-------------------
(a) Each Profit Member's Profit Member Percentage Interest and
Profit Member 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 Profit Member Percentage Interest in
the LLC shall, from and after the date of the Event of Forfeiture, be reduced to
zero, and the Profit Member 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
Profit Member 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 Profit Member 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 Profit Member 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 Profit Member Investment
Percentage Interest by such Profit Member's then Vested Percentage (giving
effect to the Event of Forfeiture); provided that, if the Event of Forfeiture is
not a Clause Z Event, Two-thirds in Number of the Class B Members may elect to
permit such Profit Member to retain a greater Profit Member Investment
Percentage Interest in all or certain Investments, but in no event may such
retained Profit Member Investment Percentage Interest in any such Investment
exceed such Profit Member's Profit Member 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 Profit Member
Investment Percentage Interest in each Investment in which such Profit Member
participates shall be reduced to zero; provided that, if the Event of Forfeiture
is a Clause Z Event, Two-thirds in Number of the Class B Members may elect to
permit such Profit Member to retain a greater Profit Member Investment
Percentage Interest in all or certain Investments, but in no event may such
retained Profit Member Investment Percentage Interest in any such Investment
exceed such Profit Member's Profit Member Investment Percentage Interest in such
Investment immediately prior to the occurrence of the Event of Forfeiture. The
Profit Member 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 Profit Member 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'
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respective Profit Member 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 proportion to their respective Profit Member 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. Without
limiting the foregoing, no Former Profit Member shall be entitled to vote on any
proposed amendment to this Agreement, unless such proposed amendment
specifically and disproportionately adversely affects such Former Member (as
compared to all other Former Members), provided that the consent of a Former
Member shall not be required in connection with any amendment adopted in order
to implement the provisions of Sections 8.02 and/or 8.03, or to reflect the
consequences of an Event of Forfeiture pursuant to and in accordance with this
Agreement.
(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 a Profit Member 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 or a Vesting Event, except to the extent that Two-Thirds in
Number of the Class B Members elect to permit such Profit Member to retain a
greater percentage of his or her interest pursuant to clause 3.04(b)(ii) above.
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 Profit Member Percentage Interest and Profit
Member 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 Other Cash Receipts.
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(a) Net Investment Receipts of the LLC shall be distributed on an
Investment-by-Investment basis, which shall include all partial liquidations or
partial dispositions of Investments. 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. Other Cash Receipts shall be distributed at such times and in such
amounts as the Class A Member 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:
(i) First, to the Applicable Profit Members (as hereinafter
defined), as a group, the LLC shall pay a fee (the "Bonus Incentive Fee") in an
amount equal to the Incentive Percentage (determined immediately prior to the
proposed distribution in accordance with Exhibit 1 to this Agreement) multiplied
---------
by the lower of (A) the amount of the Net Investment Receipts generated by the
portion of the Investment then being distributed reduced by the Unreimbursed
Acquisition Expense with respect to such portion of the Investment and (B) the
aggregate purchase price paid by the LLC for the portion of the Investment
generating the Net Investment Receipts then being distributed. The Bonus
Incentive Fee shall not be payable in respect of any distribution in respect of
the LLC's investment in Half.com or AnswerLogic. The Bonus Incentive Fee shall
be subject to reduction in the manner described under clause (iii) below. The
Bonus Incentive Fee shall be allocated among the Applicable Profit Members, in
proportion to the respective Investment Percentage Interests of the Applicable
Profit Members in the Investment generating the particular Net Investment
Receipts being distributed, as of the date on which the Bonus Incentive Fee is
paid (unless all Applicable Profit Members otherwise unanimously agree). Payment
of the Bonus Incentive Fee shall not be subject to the vesting and forfeiture
provisions of Sections 3.04 and/or 4.02, but shall be subject to appropriate
income and self-employment tax withholding obligations. As used herein, the
"Applicable Profit Members" means those persons who are Profit Members as of the
date of this Amended and Restated Agreement, exclusive of any of such persons
who is a Former Profit Member as of the date hereof, provided that, if an Event
of Forfeiture occurs after the date hereof with respect to any such Profit
Member, it shall not be an Applicable Profit Member unless, pursuant to the
Retention Agreement, if any, of such Profit Member, such Profit Member's Vested
Percentage is increased to 100% in connection with such Event of Forfeiture.
(ii) Second, the LLC shall distribute to the Class A Member, an
amount equal to the Unreturned Fully Loaded Investment Cost with respect to the
Investment (or portion thereof) generating the Net Investment Receipts.
(iii) The balance, if any, as follows:
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(A) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are less than or equal to $85 million, 7.5% to the
Profit Members and 92.5% to the Class A Member;
(B) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $85 million but less than or equal to
$100 million, 8% to the Profit Members and 92% to the
Class A Member;
(C) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $100 million but less than or equal to
$115 million, 9% to the Profit Members and 91% to the
Class A Member;
(D) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $115 million but less than or equal to
$130 million, 10% to the Profit Members and 90% to the
Class A Member;
(E) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $130 million but less than or equal to
$145 million, 11% to the Profit Members and 89% to the
Class A Member;
(F) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A
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Member under this clause as part of the then-current
distribution), are greater than $145 million but less
than or equal to $160 million, 12% to the Profit
Members and 88% to the Class A Member;
(G) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $160 million but less than or equal to
$175 million, 13% to the Profit Members and 87% to the
Class A Member;
(H) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $175 million but less than or equal to
$190 million, 14% to the Profit Members and 86% to the
Class A Member;
(I) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $190 million but less than or equal to
$205 million, 15% to the Profit Members and 85% to the
Class A Member;
(J) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $205 million but less than or equal to
$220 million, 16% to the Profit Members and 84% to the
Class A Member;
(K) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $220 million but less than or equal to
$235
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million, 17% to the Profit Members and 83% to the Class
A Member;
(L) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $235 million but less than or equal to
$250 million, 18% to the Profit Members and 82% to the
Class A Member;
(M) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $250 million but less than or equal to
$265 million, 19% to the Profit Members and 81% to the
Class A Member; and
(N) If and to the extent that total distributions to
the Class A Member pursuant to this Section 4.01(b)
(including any distributions in respect of the LLC's
investment in Half.com and taking into account any
amount being distributed to the Class A Member under
this clause as part of the then-current distribution),
are greater than $265 million, 20% to the Profit
Members and 80% to the Class A Member;
provided, however, that if the distributions payable to the Profit Members
pursuant to this clause (iii) in respect of any Investment (or the portion
thereof being distributed) cause the total amount distributed to the Profit
Members in respect of such Investment (or the portion thereof being
distributed), including the Bonus Incentive Fee payable in respect of such
Investment (or portion thereof), to exceed the greater of (X) the amount of the
Bonus Incentive Fee payable in respect of such Investment (or portion thereof)
and (Y) 20% of the sum of the aggregate amount of Net Investment Receipts
distributed or paid with respect to such Investment (or portion thereof)
pursuant to clauses (i) and (iii), then the aggregate amount payable to the
Profit Members in respect of such Investment (or portion thereof) shall be
reduced by the amount of any such excess, and such excess amount shall be
distributed to the Class A Member. Any such reduction shall be deemed to reduce
the amount of the Bonus Incentive Fee, provided that in no event will any such
deemed reduction of the Bonus Incentive Fee be taken into account in calculating
the amounts which are distributable under Section 4.01(b)(iii) in connection
with the particular distribution to which the reduction is applied. The amount
paid to the Class A Member as a result of the reduction of the Bonus Incentive
Fee shall be treated as a distribution to the Class A Member pursuant to Section
4.01(b) for purposes of making subsequent distributions of Net Investment
Receipts. Amounts which are distributable to the Profit Members as a group
pursuant to clause (iii) shall be allocated among the Profit Members in
proportion to their
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respective Profit Member Investment Percentage Interests in the Investment (or
portion thereof) generating the Net Investment Receipts on the date the LLC
makes such distribution (unless all Profit Members and Former Profit Members who
have an Investment Percentage Interest in such Investment otherwise unanimously
agree (the Profit Members hereby acknowledging that any such agreement shall not
limit in any way the rights of the Class B Members under Section 8.03)). The
Bonus Incentive Fee is intended to be a fee payable to the Profit Members, and
not an allocation of LLC income.
Notwithstanding the foregoing, distributions of Net Investment Receipts
from the LLC's investment in Half.com shall be made in accordance with the
provisions of Exhibit 2, but shall be subject to the provisions of Section 4.02
---------
and all other provisions of this Agreement. The Class A Member hereby
acknowledges that, through the date hereof, it has received aggregate
distributions in respect of the LLC's investment in Half.com in an amount equal
to $77,305,047 (which distributions shall be deemed to have been made under
Section 4.01(b)), and such distributions represent all of the distributions from
the LLC received to date by the Class A Member.
(c) Subject to the provisions of Section 9.02(b) below, Other Cash
Receipts 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 (including amounts
held in a Vesting Escrow for the benefit of such Member) from the inception of
the LLC, equals the product of (i) the sum of (X) 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 (Y) the Member's taxable income in respect of
all Bonus Incentive Fee amounts received by him and (ii) the Applicable Marginal
Rate (as hereinafter defined). The "Applicable Marginal Rate" shall equal the
higher of (x) the highest combined marginal rate (taking into account the nature
of any income or gain (e.g., ordinary income or capital gain)) 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 (taking into
account the nature of any income or gain (e.g., ordinary income or capital
gain)) of federal and California state income tax applicable to individuals for
any year since the inception of the LLC. Separate Tax Distribution Amounts
(which take into account the nature of any income or gain) 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.
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 (excluding payments of the Bonus
Incentive Fee, which shall not be subject to this Section 4.02) to which he is
entitled which is equal to his Vested Percentage of such
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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. 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. If and to the extent that a Member is entitled, pursuant to the
preceding sentence, to receive a disbursement of any amount held in a Vesting
Escrow for such Member, the LLC shall be deemed to be holding such amount as a
nominee for such Member (and accordingly, the tax consequences associated with
any disposition of any such amount shall be borne solely by such Member, and not
by the LLC, and the amount of taxable income or loss, if any, arising as a
result of any such disposition shall be recognized solely by such Member, and
not by the LLC).
(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 (and such
cash or property may not be invested without the prior approval of Two-Thirds in
Number of the Class B Members, and such cash shall not be deemed to be Net
Investment Receipts or Other Cash Receipts for purposes of Article IV).
(d) Upon 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, 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
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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 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.
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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 Members' respective Capital
Account balances and their respective Target Balances in proportion to such
differences.
(d) 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.
(e) 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
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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;
(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"
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(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) 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
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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 Profit Member's Profit Member Percentage Interest or Profit
Member Investment Percentage Interest for any Investment, shall be treated as if
a Member acquired or disposed of (as applicable) an interest in the LLC.
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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;
(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;
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(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 make any Investment, including a Follow-on Investment,
or to guarantee the obligations of any Portfolio Company;
(iv) to invest more than $100 million in the securities of any
one issuer;
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(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(d), 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 (other than a Former Profit 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
against the Profit Member which is the subject of the determination. At such
hearing, the Profit
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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 not otherwise been
reimbursed (collectively, "Liabilities"), whether judicial, administrative,
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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 Liability in accordance
with the provisions of Section 6.04(d) below. Except as set forth in the
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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).
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6.05 Budget; Certain Fees and Expenses.
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(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 90 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, provided that the Class A Member shall
not, in any event, be required to contribute capital to the LLC pursuant to and
in accordance with Section 3.01(b)(i) unless it has approved the Investment for
which such capital is being called. Any Budget may be amended during any year
with the approval of the Class B Members and the Class A Member.
If the Class A Member does not approve the proposed Budget for any fiscal
year of the LLC, 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 (non-Investment) 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)(ii) 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.
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(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
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Portfolio Company (or, in the case of options or similar compensation, to hold
the same as nominee for the LLC).
(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.
(d) Section 6.06(b) shall terminate upon the occurrence of either of
the Vesting Events described in clauses (v) or (vi) of the definition of the
term Vesting Event.
6.07 Commitment of Members. Each of the Profit Members hereby agrees to
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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
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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.
6.08 Conflicts of Interest. No contract or transaction between the LLC
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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.
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(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
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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 accounting principles, as from time
to time applicable to the LLC or similar entities; provided, however, that no
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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 Class B Members, with the consent of the Class A Member,
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
Class B 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
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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 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 LLC books 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.
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(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
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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;
(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,
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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 Profit Member Percentage Interest, if
applicable, 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 Profit Member Percentage Interest (if
applicable), its Vesting Commencement Date, the portion of its interest, if any,
which is vested, and any other rights and obligations of the additional Member.
In connection with any such admission of an additional Member, the Profit Member
Percentage Interest or other rights and interests of each Class C Member in the
LLC may not be diluted or otherwise modified or adjusted without the specific
written consent of such Class C Member, and the admission of an additional
Member shall in no event dilute, modify or adjust the interest of the Class A
Member, without the Class A Member's specific written consent.
(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 Profit
Member Percentage Interests of all Class B Members shall be diluted
proportionately based on their respective Profit Member Profit Member 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 Profit Member Percentage Interests.
--------------------------------------------------
(a) 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 Profit Member Percentage Interests of the Class B Members. Any such
determination to modify the Profit
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Member 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 following any such determination, and shall not have any
retroactive effect. In no event shall the Profit Member Percentage Interest of
any Class C Member be modified or adjusted as a result of this Section 8.03(a),
and in no event shall the interest of the Class A 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.
(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 Profit Member Percentage Interests of the Class C Members. Any such
determination to modify the Profit Member 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
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 Profit
Member Percentage Interests of the Class C Members increase, the aggregate
Profit Member Percentage Interests of the Class B Members shall be
proportionately reduced. If, as a result of any such adjustment, the aggregate
Profit Member Percentage Interests of the Class C Members decrease, the
aggregate Profit Member 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 purchase price for the interest of each
Profit Member shall be paid in cash, and shall equal the amount which the Profit
Member would have received if the LLC had liquidated all of the Investments then
owned by it (on a "first-in first out" basis) as of the date of the Qualifying
Change of Control for their respective fair market values (determined as
hereinafter provided) as of such date (including his or her share, if any, of
the Bonus Incentive Fee which would be payable in respect of such liquidation),
and the proceeds of such liquidation had been distributed to the Members in
accordance with Section 4.01(b) and (c) (the 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 Change of Control Purchase Price,
the fair market value of the Investments then owned by the LLC shall be
determined by an independent appraiser (the "Appraiser"), acceptable to both (i)
a majority of all the members of
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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.
(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
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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 Profit Member 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 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
David S. Wetherell) 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; provided however,
that any of the foregoing which results from (X) the conversion of any security
or class of securities issued by CMGI and outstanding as of the date of this
Amended and Restated Agreement, or any securities issued in respect of or in
exchange for any of such outstanding securities or (Y) payment of any amounts
due under any debt instruments of CMGI
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to Compaq Computer Corporation which are outstanding as of the date of this
Amended and Restated Agreement, or any securities issued in respect of or in
exchange for any of such outstanding debt instruments, shall not constitute a
Change of Control for purposes of this Agreement. 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; provided however, that any of the foregoing which results
from (X) the conversion of any security or class of securities issued by CMGI
and outstanding as of the date of this Amended and Restated Agreement, or any
securities issued in respect of or in exchange for any of such outstanding
securities or (Y) payment of any amounts due under any debt instruments of CMGI
to Compaq Computer Corporation which are outstanding as of the date of this
Amended and Restated Agreement, or any securities issued in respect of or in
exchange for any of such outstanding debt instruments, shall not constitute a
Change of Control for purposes of this definition. 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.
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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.
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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 Profit Member Percentage Interests of the Class B
Members in accordance with Section 8.03), and no amendment shall reduce the
Profit Member Percentage Interest or Vested Percentage of any Former Profit
Member without the specific approval of such Former Profit Member (except for
such a reduction upon the occurrence of an Event of Forfeiture); (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 Profit
Member 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 Profit Member 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 Profit Member 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
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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 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, together with the Severance
----------------
Agreements and the Retention Agreements, constitute 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.
10.08 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.
10.12 Arbitration.
-----------
(a) Any dispute or disagreement among the parties arising out of or
related to the LLC shall be submitted to arbitration in accordance with this
Section 10.12. Any party exercising its rights hereunder shall notify the other
parties to the dispute, in writing, of such dispute or disagreement. Within 15
days after receipt of such notice, the parties to the dispute shall designate in
writing one arbitrator to resolve the dispute; provided, that if such parties
cannot agree on an arbitrator within such 15-day period, the arbitrator shall be
selected by the Boston office of JAMS/Endispute (or, if JAMS/Endispute does not
at the time exist, by the Boston office of the American Arbitration
Association). The arbitrator so designated shall not be
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an employee, consultant, officer, director or stockholder of any party hereto or
of any affiliate of any party to this Agreement.
(b) Within 60 days after the designation of the arbitrator, the
arbitrator and the parties to the dispute shall meet, at which time they shall
be required to set forth in writing all disputed issues and a proposed ruling on
each such issue.
(c) The arbitrator shall set a date for a hearing, which shall be no
later than 120 days after the submission of written proposals pursuant to
paragraph (b) above, to address each of the issues identified by the parties.
Each such party shall have the right to be represented by counsel. The
arbitration shall be governed by the rules of the JAMS/Endispute (unless the
arbitrator is selected by the American Arbitration Association, in which case
the American Arbitration Association rules shall govern); except that the
provisions of this Section 10.12 shall govern questions related to the
scheduling of hearings and discovery.
(d) Prior to any hearing described in (c) above, (i) each Class B or
Class C Member party to the dispute shall be allowed to take not more than an
aggregate of three depositions of the Class A Member and CMGI, (ii) the Class A
Member shall be allowed to take a total number of depositions of the Class B and
Class C Members party to the dispute equal to the total number of depositions
which the Class B and Class C Members party to the dispute may take of the Class
A Member and CMGI (determined in accordance with clause (i) above); and (iii)
each Member party to the dispute shall be allowed to take not more than two
depositions of any non-party witness (including expert witnesses). The Class B
and C Members party to the dispute shall serve no more than a total of 20
separate document requests on the Class A Member and CMGI, and the Class A
Member shall serve no more than a total of 20 separate document requests on the
Class B and Class C Members party to the dispute. Any party to the dispute
receiving a document request shall respond to such request within 30 days after
receipt thereof. Except as described in this subsection (d), the parties to any
dispute agree not to conduct any discovery in connection with any dispute
submitted to arbitration pursuant to this Section 10.12.
(e) The arbitrator shall use his best efforts to rule on each
disputed issue within 30 days after the completion of the hearings described in
paragraph (c) above. The determination of the arbitrator as to the resolution of
any dispute shall be binding and conclusive upon all parties hereto. All rulings
of the arbitrator shall be in writing and shall be delivered to the parties
hereto.
(f) The prevailing party or parties in any arbitration shall be
entitled to an award of reasonable attorneys' fees incurred in connection with
the arbitration.
(g) Any arbitration pursuant to this Section 10.12 shall be conducted
in Boston, Massachusetts. Any arbitration award may be entered in and enforced
by any court having jurisdiction thereover and the parties hereby consent and
commit themselves to the jurisdiction of the courts of the Commonwealth of
Massachusetts and the United States District Court for District of Massachusetts
for purposes of the enforcement of any arbitration award.
[Signature pages follow.]
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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/ David S. Wetherell
----------------------
Name: David S. Wetherell
Title: President
CLASS B MEMBERS:
/s/ Jonathan Callaghan
----------------------
Jonathan Callaghan
________________________
John Scott Case
/s/ Gary Curtis
---------------
Gary Curtis
/s/ Josh Daniels
----------------
Josh Daniels
________________________
Brad Garlinghouse
/s/ Denise W. Marks
-------------------
Denise W. Marks
/s/ Peter H. Mills
------------------
Peter H. Mills
/s/ David J. Nerrows, Jr.
-------------------------
David J. Nerrow, Jr.
/s/ Marc Poirier
----------------
Marc Poirier
/s/ Lior E. Yahalomi
--------------------
Lior E. Yahalomi
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CMGI, INC. (solely for purposes of confirming
its obligations under Section 8.04(d) and (g) above):
By: /s/ David S. Wetherell
----------------------
Name: David S. Wetherell
Title: Chief Executive Officer
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