Limited Liability Company Agreement - @ Ventures Partners III LLC
LIMITED LIABILITY COMPANY AGREEMENT OF
@ VENTURES PARTNERS III, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT of @ Ventures Partners III,
LLC (the "LLC"), dated as of June 30, 1999, is by and among the persons named on
Schedule A attached hereto, each of whom is designated as either a Capital
Member or a Managing 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 May 27, 1998, in the Office of the Secretary of State of the State of
Delaware, of a Certificate of Formation for the LLC (the "Certificate"); and
WHEREAS, effective as of the date hereof, the persons designated on
Schedule A as Managing Members have been admitted to the LLC; and
WHEREAS, the Members desire to enter into this Agreement to set forth
the agreements among the Members with respect to the LLC, all as more fully set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the
agreements hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
The following capitalized terms used in this Agreement shall have the
respective meanings ascribed to them below:
"Act" means the Delaware Limited Liability Company Act, in effect at
the time of the initial filing of the Certificate with the Office of the
Secretary of State of the State of Delaware, and as thereafter amended from time
to time.
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"Affiliate" shall mean, with respect to any specified person or entity,
(i) any person or entity that directly or indirectly controls, is controlled by,
or is under common control with such specified person or entity; (ii) any person
or entity that directly or indirectly controls 10% or more of the outstanding
equity securities of the specified entity or of which the specified person or
entity is directly or indirectly the owner of 10% or more of any class of equity
securities; (iii) any person or entity that is an officer of, director of,
manager of, partner in, or trustee of, or serves in a similar capacity with
respect to, the specified person or entity or of which the specified person or
entity is an officer, director, partner, manager or trustee, or with respect to
which the specified person or entity serves in a similar capacity; or (iv) any
person that is a spouse, mother, father, brother, sister or lineal descendant of
the specified person.
"Agreement" means this Limited Liability Company Agreement as it may be
amended, supplemented, or restated from time to time.
"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.
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(iii) If elected by the LLC in accordance with Section 6.01(b)
hereof, at any time specified in Treasury Regulation Section
1.704-1(b)(2)(iv)(f), the Capital Account balance of each Member shall
be adjusted to the extent provided under such Treasury Regulation to
reflect the Member's allocable share (as determined under Article V) of
the items of Net Profits or Net Losses that would be realized by the
LLC if it sold all of its property at its fair market value (taking
Code Section 7701(g) into account) on the day of the adjustment.
"Capital Member" shall refer severally to any person named as a Capital
Member in this Agreement and any person who becomes an additional, substitute or
replacement Capital Member as permitted by this Agreement, in such person's
capacity as a Capital Member of the LLC. "Capital Members" shall refer
collectively to all such persons in their capacities as Capital Members.
"Carrying Value" means, with respect to any asset, the asset's adjusted
basis for federal income tax purposes; provided, however, that (i) the initial
Carrying Value of any asset contributed to the LLC shall be adjusted to equal
its gross fair market value at the time of its contribution and (ii) the
Carrying Values of all assets held by the LLC shall be adjusted to equal their
respective gross fair market values (taking Code Section 7701(g) into account)
upon an adjustment to the Capital Accounts of the Members described in paragraph
(iii) of the definition of "Capital Account." 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 Managing
Member's relationship with the Employer:
(i) 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 or embezzlement of assets of the Employer;
(iii) a material breach of any agreement between the Managing
Member and the Employer including, without limitation, any violation of
the covenants set forth in Sections 6.06 and 6.07 below;
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(iv) the willful and continued failure by the Managing Member
to substantially perform his or her duties (other than as a result of
incapacity due to physical or mental illness); or
(v) gross neglect of duties or responsibilities as an employee
of the Employer, or as a Managing Member, or dishonesty or
incompetence, or willful misconduct, which in any case adversely
affects the business of the Employer, but only if there has been a good
faith determination by a Majority in Number of the Voting Managing
Members other than the subject Managing Member that such neglect or
misconduct or dishonesty or incompetence has occurred.
"Certificate" means the Certificate of Formation creating the LLC, as
it may, from time to time, be amended in accordance with the Act.
"CMGI" means CMGI Inc., a Delaware corporation.
"CMGI Fund" means CMG @ Ventures III, LLC, a Delaware limited liability
company.
"CMGI Fund Agreement" means the Limited Liability Company Agreement of
the CMGI Fund, as from time to time amended and in effect.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Distributable Cash and Property", with respect to any particular
Investment shall mean, with respect to any fiscal period, the excess of all
receipts of cash and property of the LLC from such Investment, including
dividends or distributions in respect of such Investment, proceeds from a
capital transaction relating to such Investment, and any and all other sources
over the sum of:
(i) Any and all expenses of the LLC related directly or
indirectly to such Investment, including an allocable share of the
following types of LLC expenses:
(A) cash disbursements for all items which are
customarily considered to be "operating expenses";
(B) payments of interest, principal and premium and
points and other costs of borrowing under any indebtedness of
the LLC;
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(C) payments made to purchase inventory or capital
assets, and for capital construction, rehabilitation,
acquisitions, alterations and improvements;
(D) payments made to purchase or sell securities, and
brokerage commissions, finders fees and transaction costs; and
(E) amounts set aside as reserves for working
capital, contingent liabilities, replacements or for any of
the expenditures described in clauses (A), (B), (C) and (D)
above which are deemed by the Voting Managing Members (in
their reasonable discretion) to be necessary to meet the
current and anticipated future needs of the LLC; and
(ii) The amount of expenses described in clause (i) above that
(A) are attributable to another Investment (the "Other Investment"),
(B) are not paid from the receipts of cash and property attributable to
the Other Investment as a result of the total expenses attributable to
the Other Investment for the fiscal period exceeding the total receipts
of cash and property attributable to the Other Investment for the
fiscal period and (C) are paid from the receipts of cash and property
in respect of the Investment for which the computation of Distributable
Cash and Property is being made (the "First Investment"); provided,
however, that if Distributable Cash and Property with respect to the
First Investment is reduced as a result of this clause (ii), a
corresponding amount of the next amount of Distributable Cash and
Property with respect to the Other Investment shall be treated as a
receipt attributable to the First Investment.
For purposes of determining Distributable Cash or Property in respect of any
particular Investment, the Voting Managing Members shall allocate all LLC
expenses of the types described in clauses (i) and (ii) above among all
Investments and among Other Cash Receipts in such manner as they may reasonably
determine.
"Distributable Other Cash" means, with respect to any fiscal period,
the excess of Other Cash Receipts over the sum of the expenses (including those
described in clause (i) of the definition of "Distributable Cash and Property")
which the Voting Managing Members reasonably allocate to Other Cash Receipts.
"Domestic Fund" means @ Ventures III, L.P., a Delaware limited
partnership.
"Domestic Fund Agreement" means the Limited Partnership Agreement of
the Domestic Fund, as from time to time amended and in effect.
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"Employer" shall mean, for any Managing Member, the LLC, any Fund, CMGI
or any Affiliate of any of them that employs the Managing 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, any Fund or CMGI
(and a Managing Member shall not be deemed to be employed by an Employer if such
Managing Member is employed by a Portfolio Company), unless the Capital 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 Managing Member dies or becomes mentally or physically
disabled (as determined by a physician licensed in the Commonwealth of
Massachusetts, selected by the Voting Managing Members exclusive of any
Managing Member which is the subject of the determination) or a
conservator or guardian is appointed for the benefit of any Managing
Member or his property;
(y) the relationship of such Managing Member to all Employers
is terminated without Cause or for any reason other than the reasons
specified in clauses (x) and (z) of this definition; or
(z) a Managing Member defaults in its obligation to make
Capital Contributions to the LLC pursuant to Section 3.01 below and the
Voting Managing Members exercise the remedy in Section 3.01(e), or the
relationship of such Managing Member to the LLC is terminated with
Cause (in accordance with the procedures described below), or is
terminated by the Managing Member (each of the foregoing, a "Clause Z
Event").
An Event of Forfeiture for a Managing 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 Managing Member.
"Follow-on Investment" shall have the meaning ascribed thereto in the
Domestic Fund Agreement, the Foreign Fund Agreement and the CMGI Fund Agreement.
"Foreign Fund" means @ Ventures Foreign Fund III, L.P., a Delaware
limited partnership.
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"Foreign Fund Agreement" means the Limited Partnership Agreement of the
Foreign Fund, as from time to time amended and in effect.
"Funds" means the Domestic Fund, the Foreign Fund and the CMGI Fund,
and "Fund" means any one of the Funds.
"Investment" means an investment in a Portfolio Company made by any
Fund, including without limitation a Follow-on Investment. As and when a Fund or
Funds 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 any Fund pending investments in securities of Portfolio Companies.
"Investment Percentage Interest" means each Member's Percentage
Interest in an Investment, as specified on the Investment Schedule for such
Investment.
"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 Voting Managing Members" means, with respect
to a particular action or matter, a majority in number of the Voting Managing
Members then entitled to vote on the action.
"Managing Member" shall refer severally to any person named as a
Managing Member in this Agreement (whether a Voting Managing Member or a
Non-Voting Managing Member) and any person who becomes an additional, substitute
or replacement Managing Member as permitted by this Agreement, in such person's
capacity as a Managing Member of the LLC. "Managing Members" shall refer
collectively to all such persons in their capacities as Managing Members. Except
as expressly set forth in this Agreement, the rights, obligations and interests
of the Voting Managing Members and the Non-Voting Managing Members shall be
identical.
"Member" shall refer severally to any person named as a Capital Member
or Managing Member in this Agreement and any person who becomes an additional,
substitute or replacement Capital Member or Managing 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.
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"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 Section 5.02 shall not
be included in the computation; and
(vi) The amount of any items of Net Profits or Net Losses
deemed realized pursuant to paragraphs (ii) and (iii) of the definition
of "Capital Account" shall be included in the computation.
"Non-Voting Managing Member" shall refer severally to any Managing
Member identified as a Non-Voting Managing Member on Schedule A hereto and any
person who becomes an additional, substitute or replacement Non-Voting Managing
Member as permitted by this Agreement, in such person's capacity as a Non-Voting
Managing Member of the LLC. "Non-Voting Managing Members" shall refer
collectively to all such persons in their capacities as Non-Voting Managing
Members.
"Other Cash Receipts" means cash receipts of the LLC, exclusive of
capital contributions of the Members, which the Voting Managing Members
reasonably determine are not allocable to Investments.
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"Percentage Interest" shall be the percentage interest of a Member set
forth in Schedule B, as amended from time to time, and subject to adjustment
pursuant to Sections 3.04, 8.02 and 8.03.
"Permitted Transferee" means (A) any Member; (B) any spouse, parent,
lineal descendant, 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 any Fund
has invested, other than issuers in which the Fund has made short-term
investments pending the making of long-term investments.
"Securities Act" means the Securities Act of 1933, as amended.
"Vesting Commencement Date" means, for each Managing Member, the
Vesting Commencement Date specified on Schedule A attached hereto.
"Vesting Escrow" shall have the meaning ascribed thereto in Section
4.02.
"Vested Percentage" means, for any Managing Member, a fraction
(expressed as a percentage) the numerator of which is the number of whole
calendar quarters that have elapsed between such Managing Member's Vesting
Commencement Date and the date of determination and the denominator of which is
20; provided, however, that in no event shall a Managing Member's Vested
Percentage exceed 100%.
"Voting Managing Member" shall refer severally to any Managing Member
identified as a Voting Managing Member on Schedule A hereto and any person who
becomes an additional, substitute or replacement Voting Managing Member as
permitted by this Agreement, in such person's capacity as a Voting Managing
Member of the LLC. "Voting Managing Members" shall refer collectively to all
such persons in their capacities as Voting Managing Members.
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ARTICLE II
GENERAL PROVISIONS
2.01 Formation of Limited Liability Company; Foreign Qualification. The
Capital Member formed the LLC as a limited liability company under the Act on
May 27, 1998, by the filing on such date of the Certificate in the Office of the
Secretary of State of the State of Delaware.
Prior to the LLC's conducting business in any jurisdiction other than
the State of Delaware, 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 such jurisdiction where foreign 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 name of the LLC shall be @ Ventures Partners
III, LLC.
2.03 Business of the LLC. The general character of the business of the
LLC is to (a) serve as the general partner of each of the Domestic Fund and the
Foreign Fund, (b) serve as the Managing Member of the CMGI Fund, (c) own a
limited liability company interest in Covestco-Ateura, LLC, and (d) 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 Voting Managing Members 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.
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2.05 Duration of the LLC. The term of the LLC commenced on May 27,
1998, and the LLC shall have perpetual existence, unless earlier terminated in
accordance with Article IX hereof.
2.06 Members' Names and Addresses. The name and address of each Member
are set forth on Schedule A. Additional Members may be admitted in accordance
with the procedures specified in Article VIII. A Member may not resign from the
LLC at any time.
2.07 No Partnership. The LLC is not intended to be a general
partnership, limited partnership or joint venture, and no Member shall be
considered to be a partner or joint venturer of any other Member, for any
purposes other than foreign and domestic federal, state, provincial and local
income tax purposes, and this Agreement shall not be construed to suggest
otherwise.
2.08 Title to LLC Property. All property owned by the LLC, whether real
or personal, tangible or intangible, shall be deemed to be owned by the LLC as
an entity, and no Member, individually, shall have any ownership of such
property. The LLC may hold any of its assets in its own name or in the name of
its nominee, which nominee may be one or more trusts. Any property held by a
nominee trust for the benefit of the LLC shall, for purposes of this Agreement,
be treated as if such property were directly owned by the LLC.
2.09 Nature of Member's Interest. The interests of all of the Members
in the LLC are personal property and shall not, under any circumstances, be
considered real property.
2.10 Investment Representations. Each Member, by execution of this
Agreement or an amendment hereto reflecting such Member's admission to the LLC,
hereby represents and warrants to the LLC that:
(a) It is acquiring an interest in the LLC for its own account
for investment only, and not with a view to, or for sale in connection
with, any distribution thereof in violation of the Securities Act or
any rule or regulation thereunder.
(b) It understands that (i) the interest in the LLC it is
acquiring has not been registered under the Securities Act or
applicable state securities laws and cannot be resold unless
subsequently registered under the Securities Act and such laws or
unless an exemption from such registration is available, (ii) such
registration under the
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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.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.01 Capital Contributions.
(a) Each Member shall be required to contribute capital to the
LLC in accordance with this Section 3.01.
(b) As and when the LLC is required to contribute capital to
any Fund, each Member shall contribute to the LLC his or its
proportionate share of the amount required to be contributed by the LLC
to such Fund, determined in the manner
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hereinafter provided. Each of the Members hereby acknowledges that it
has received copies of the CMGI Fund Agreement, the Domestic Fund
Agreement and the Foreign Fund Agreement, that it has read each of
such Agreements, and understands the LLC's obligations thereunder,
including without limitation, the LLC's obligations to make capital
contributions to each of the Funds and to fund certain escrow
accounts.
(i) With respect to any routine call for capital by
any Fund (which capital calls the Members acknowledge are
generally, but not always, called for on a quarter annual
basis), each Member shall contribute a portion of the total
amount called for based on his Percentage Interest in the LLC
on the date on which such capital is required to be
contributed by the LLC to the Fund. Notwithstanding the
foregoing, the Voting Managing Members may, in respect of any
particular call for capital, determine to modify each Member's
share of the contribution to be made by such Member to the LLC
if the Voting Managing Members reasonably determine that the
amounts called for by any Fund relate in whole or in part to a
Follow-on Investment, in which case the portion of the
contributions which relate to such Follow-on Investment shall
be contributed by the Members in accordance with their
respective Investment Percentage Interests in such Follow-on
Investment. The Voting Managing Members may also make other
equitable adjustments to the portion to be contributed by each
Member to the LLC in respect of Investments to be made by the
Funds to take into account similar factors.
If any Member is admitted to the LLC during any
calendar quarter, such Member shall be required to contribute
to the LLC an amount equal to (x) the aggregate amount of the
sum of (I) any contributions made by the other Members to the
LLC during or with respect to such calendar quarter pursuant
to this Section 3.01(b)(i) plus (II) the unspent amount, if
any, of the capital contributions made by the Members to the
LLC in previous quarters multiplied by (y) such Member's
Percentage Interest in the LLC. The amount so contributed by
such Member shall be distributed to the other Members
(exclusive of Members whose Percentage Interests have been
reduced to zero), so that, following the admission of such
additional Member, all Members will have contributed a portion
of the amount described in clause (x) of the preceding
sentence equal to their respective Percentage Interests in the
LLC as in effect immediately following such admission.
(ii) With respect to any amount required to satisfy
the LLC's obligations under Section 5.2E of the Domestic Fund
Agreement [clawback obligation], or Section 5.2E of the
Foreign Fund Agreement [clawback
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obligation], each Member shall contribute a portion of the
total amount called for based on the aggregate amount of
distributions received by such Member from the LLC which are,
in the reasonable judgment of the Voting Managing Members,
attributable to the Domestic Fund and the Foreign Fund,
respectively, as compared to the aggregate amount of
distributions received by all Members from the LLC which are,
in the reasonable judgment of the Voting Managing Members,
attributable to the Domestic Fund and the Foreign Fund,
respectively. Notwithstanding the foregoing, in no event shall
any Member be obligated to contribute to the LLC any amount
pursuant to this clause (ii) in excess of the total amount of
distributions received by (or held in the Vesting Escrow for
the benefit of) such Member from the LLC. The obligation of
each Member to make contributions pursuant to this Section
3.01(b)(ii) shall survive the withdrawal, resignation or
default (as described in Section 3.01(e) below) of any Member,
and the occurrence of an Event of Forfeiture of any Member.
The LLC may contribute to the Domestic Fund or the Foreign
Fund on behalf of any Member any amounts held in a Vesting
Escrow on behalf of such Member, in respect of such Member's
obligations under this Section 3.01(b)(ii).
(iii) As and when the LLC is required to deposit
amounts into the escrow account established pursuant to
Section 5.2F of the Domestic Fund Agreement or Section 5.2F of
the Foreign Fund Agreement, the Voting Managing Members may
determine to call for contributions of cash to the LLC to
enable the LLC to satisfy any such obligation. Each Member
shall contribute a portion of the amount which the Voting
Managing Members so determine to call, based on the aggregate
amount of distributions received by such Member from the LLC
which are, in the reasonable judgment of the Voting Managing
Members, attributable to the Domestic Fund and the Foreign
Fund, respectively, as compared to the aggregate amount of
distributions received by all Members from the LLC which are,
in the reasonable judgment of the Voting Managing Members,
attributable to the Domestic Fund and the Foreign Fund,
respectively. In no event shall any Member be obligated to
contribute to the LLC any amount pursuant to this clause (iii)
in excess of the total amount of distributions received by (or
held in the Vesting Escrow for the benefit of) such Member
from the LLC. The obligation of each Member to make
contributions pursuant to this Section 3.01(b)(iii) shall
survive the withdrawal, resignation or default (as described
in Section 3.01(e) below) of any Member, and the occurrence of
an Event of Forfeiture of any Member. The LLC may contribute
to the Domestic Fund or the Foreign Fund on behalf of any
Member any amounts held in a Vesting Escrow on behalf of such
Member, in respect of such Member's obligations under this
Section 3.01(b)(iii).
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(c) The Voting Managing Members may call for capital for other
LLC purposes as they may from time to time reasonably determine, and
any capital called for pursuant to this Section 3.01(c) shall be
contributed by the Members in proportion to their respective Percentage
Interests on the date on which such capital is called for.
(d) The Voting Managing Members shall call for capital from
all Members for the purposes specified in this Section 3.01 from time
to time as needed. In connection with any such call, the Voting
Managing Members shall provide to each 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 from the
LLC, a general statement of the purposes for which such capital call is
being made, each Member's share of the total amount called for, and the
date on which the capital contribution is due (which date shall, to the
extent reasonably practicable, be not less than 10 days after the date
of the notice).
(e) Any contribution of capital which is not made when due
shall bear interest at the prime rate of interest announced from time
to time by The Wall Street Journal plus 1% per annum, until paid in
full. Without limiting the foregoing, if a Member fails to satisfy his,
her or its capital contribution obligation as required under this
Section 3.01 in a timely manner, the LLC may exercise any rights it may
have under the Act or otherwise at law or in equity, and shall also
have the rights provided in this Section 3.01(e). In any such event, a
Majority in Number of the Voting Managing Members (determined exclusive
of the Member which has defaulted in his capital contribution
obligation) may (but shall not be obligated to) cause the LLC to
deliver to such Member a notice ("Default Notice") making reference to
the Member's failure to contribute capital to the LLC, and to this
Section 3.01(e). If the defaulting Member fails to fund such capital
contribution obligation within five business days after the date of
delivery of the Default Notice, then an Event of Forfeiture shall be
deemed to have occurred with respect to such Member, with the
consequences specified in Section 3.04 below.
(f) The LLC shall maintain written records indicating the
amount of capital contributed by each Member to the LLC.
(g) The LLC may elect to withhold from any amounts which are
otherwise distributable to a Member in accordance with the terms of
this Agreement any amount which such Member may be required to
contribute to the LLC pursuant to this Section 3.01. In the event the
LLC so withholds, for all purposes of this Agreement the Member with
respect to whom the withholding occurs shall be treated as if he had
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been distributed such amount in accordance with Article IV hereof and
then recontributed such amount pursuant to this Section 3.01.
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 contributions to the capital of the
LLC, and no Member shall have the right to withdraw or to be repaid any capital
contributed 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 any Fund acquires an Investment, the Managing
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 Fund or Funds making the acquisition,
(b) the Portfolio Company issuing the securities, (c) the Acquisition
Date, (d) the number and class or series of shares of such securities,
(d) the purchase price and/or other consideration payable by each Fund,
(e) the Investment Percentage Interest of each of the Members in such
Investment (determined in the manner hereinafter provided) and (f) such
other information, if any, as the Managing Members may deem
appropriate.
(b) The Investment Percentage Interest of the Capital Member
in each Investment (including Follow-on Investments) shall at all times
equal 10%.
(c) (i) Subject to Sections 3.03(c)(ii) and (iii) and 3.04,
the Investment Percentage Interest of each Managing Member for whom an
Event of Forfeiture has not occurred shall equal 90% multiplied by a
fraction (x) the numerator of which shall equal such Managing Member's
Percentage Interest at the beginning of the calendar quarter in which
the Investment was made (the "Applicable Quarter") and the denominator
of which shall equal the aggregate Percentage Interests at the
beginning of the Applicable Quarter for all Managing Members exclusive
of those for whom an Event of Forfeiture has occurred. The Investment
Percentage Interest of each Managing Member in each Investment shall be
subject to reduction upon the occurrence of an Event of Forfeiture.
(ii) Notwithstanding Section 3.03(c)(i), if any Fund
makes a Follow-on Investment, the Investment Percentage
Interests of the Managing Members in such Follow-on Investment
shall be their Investment Percentage
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Interests then in effect for other investments in the same
Portfolio Company (except that the Investment Percentage
Interest in any Follow-on Investment for any Managing Member
for whom an Event of Forfeiture has occurred shall be zero).
(iii) Notwithstanding Section 3.03(c)(i), Brad
Garlinghouse, David J. Nerrow, Jr. and Denise W. Marks, who
were admitted to the LLC as of January 11, 1999, February 3,
1999 and March 1, 1999, respectively, shall be entitled to
participate in those Investments made by the Fund prior to the
respective dates on which they were admitted to the LLC, and
their respective Investment Percentage Interests in such
investments are reflected on the Investment Schedules with
respect to such Investments, and all of the Members hereby
consent to such participation.
3.04 Event of Forfeiture.
(a) Each Managing Member's Percentage Interest and Investment
Percentage Interest in each Investment are subject to adjustment upon
the occurrence of an Event of Forfeiture with respect to such Managing
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
Capital Member.
(b) Upon the occurrence of an Event of Forfeiture with respect
to a Managing Member:
(i) Such Managing Member's Percentage Interest in the
LLC shall, from and after the date of the Event of Forfeiture,
be reduced to zero, and the Percentage Interest in the LLC of
all other Managing Members (exclusive of any Managing Member
for whom an Event of Forfeiture has occurred) shall be
increased by an aggregate amount equal to the amount of the
Percentage Interest of the Managing Member for whom the Event
of Forfeiture has occurred (such increase to be allocated
among them in proportion to their respective Percentage
Interests immediately prior to the adjustment contemplated
hereby).
(ii) If the Event of Forfeiture is not a Clause Z
Event, such Managing Member's Investment Percentage Interest
in each Investment in which such Managing Member participates
shall be reduced to a Percentage determined by multiplying the
Managing Member's initial Investment Percentage Interest by
such Managing Member's then Vested Percentage; and, if the
Event of Forfeiture is a Clause Z Event, such Managing
Member's Investment
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Percentage Interest in each Investment in which such Managing
Member participates shall be reduced to zero. The Investment
Percentage Interest in each Investment of all other Managing
Members (exclusive of any Managing Member for whom an Event of
Forfeiture has occurred) participating in such Investment
shall be increased by an aggregate amount equal to the amount
of the reduction in the Investment Percentage Interest of the
Managing Member for whom the Event of Forfeiture has occurred
(such increase to be allocated among them in proportion to
their respective Investment Percentage Interests in such
Investment immediately prior to the adjustment contemplated
hereby).
(iii) Any amount held in any Vesting Escrow for the
benefit of such Managing Member shall be forfeited. Amounts so
forfeited shall (subject to the provisions of this Section
3.04 and Section 4.02), on an Investment by Investment basis,
be allocated to all other Managing Members (exclusive of any
Managing 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
Investment Percentage Interests in each such Investment
immediately prior to the adjustment contemplated hereby).
(iv) Such Managing Member (whether Voting or
Non-Voting) shall have no right to vote on or participate in
any decision or matter on or in which Managing Members are
entitled to vote or participate and such Managing Member shall
be disregarded for all purposes in determining the number of
Managing Members which constitute a Majority in Number of the
Voting Managing Members or the number or percentage or
Managing Members entitled to vote on any matter, as the case
may be.
(c) A Managing Member with respect to whom an Event of
Forfeiture has occurred: (i) shall not be entitled to participate in
any Investment acquired by the LLC (including without limitation, a
Follow-on Investment) made by the LLC after the date of the Event of
Forfeiture; (ii) shall not be required to make subsequent capital
contributions to the LLC from and after the date of the Event of
Forfeiture, except for capital contributions required pursuant to
Section 3.01(b)(ii) and (iii); and (iii) shall automatically and
without any action on the part of the LLC, such Managing Member or any
other Member, be deemed to have withdrawn from the LLC on the first
date on which the LLC no longer owns any Investment in which such
Managing Member has an Investment Percentage Interest.
The Voting Managing Members shall make all determinations
under this Section 3.04 (including determinations as to when and
whether an Event of Forfeiture has occurred, and the reduction in the
Percentage Interest and Investment Percentage
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Interests of the affected Managing Member in connection therewith), in
their reasonable discretion.
(d) Notwithstanding the foregoing, the interest of Denise W.
Marks shall not be subject to the provisions of this Section 3.04 and
such interest shall not be subject to forfeiture, reduction or
modification upon the occurrence of an Event of Forfeiture with respect
to Ms. Marks.
ARTICLE IV
DISTRIBUTIONS
4.01 Distribution of Distributable Cash and Property and Distributable
Other Cash.
(a) Distributable Cash and Property of the LLC shall be
distributed on an Investment by Investment basis, at such times and in
such amounts as the Voting Managing Members may in their reasonable
discretion determine. Any non-cash distributions made to the Members
shall be valued at their respective fair market values, as determined
by the Voting Managing Members in good faith and in a manner consistent
with the valuation procedures established in the Domestic Fund
Agreement and the Foreign Fund Agreement. Distributable Other Cash
shall be distributed, in such amounts as the Voting Managing Members
may determine, not less frequently than quarterly, within 30 days
following the last day of each fiscal quarter of the LLC.
(b) Subject to the provisions of Sections 4.02 and
9.02(b)below: (i) Distributable Cash and Property related to an
Investment shall be distributed to the Members in proportion to their
respective Investment Percentage Interests in such Investment on the
date the LLC makes such distribution; and (ii) Distributable Other Cash
shall be distributed to the Members in proportion to their respective
Percentage Interests on the date the LLC makes such distribution.
(c) The Voting Managing Members will use reasonable efforts to
cause the LLC to distribute to each Member in each year the Tax
Distribution Amount (as defined below), which amount shall be treated
as an advance against future distributions to such Member pursuant to
Section 4.01(b) above. The Tax Distribution Amount shall equal an
amount which, when added to all distributions previously made to the
Member pursuant to this Section 4.01 from the inception of the LLC,
equals the product of (i) the Member's allocable share of the net
taxable income of the LLC
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computed on an aggregate cumulative basis from the inception of the LLC
and (ii) the highest combined marginal rate of federal and
Massachusetts state income tax applicable to individuals for any year
since the inception of the LLC. Separate Tax Distribution Amounts shall
be computed with respect to each Investment, and, to the extent
practicable, the required distribution of the Tax Distribution Amount
attributable to a particular Investment for a particular period shall
be satisfied by a distribution of Distributable Cash and Property
attributable to such Investment. To the extent that the required
distribution of the Tax Distribution Amount attributable to a
particular Investment is satisfied by a distribution of Distributable
Cash and Property attributable to another Investment, rules similar to
those set forth in clause (ii) of the definition of "Distributable Cash
and Property" shall apply.
4.02 Vesting Escrow.
(a) Notwithstanding the provisions of Section 4.01 above, the
LLC shall distribute to each Managing Member on the date of any
distribution only that portion of any Distributable Cash and Property
to which he is entitled which is equal to his Vested Percentage of such
amount. Any portion of any distribution which is not distributed as a
result of the operation of this Section 4.02(a) shall be held in escrow
by the LLC, in accordance with this Section 4.02. Any escrow
established pursuant to this Section 4.02 is herein referred to as a
"Vesting Escrow." Subject to Section 3.04, on the last day of each
calendar quarter following the date of the distribution with respect to
any Investment, one-twentieth of the amount of the original
distribution (plus a proportionate amount of interest or other amounts
earned thereon, if any), shall be disbursed from such Vesting Escrow to
such Managing Member.
(b) The interest of the Capital 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 Distributable Cash and
Property allocable to it pursuant to and in accordance with Section
4.01.
(c) Each of the Managing Members hereby agrees and
acknowledges that, as a result of the operation of this Section 4.02,
(i) such Managing Member may be allocated Net Profits and Net Losses of
the LLC without corresponding distributions of Distributable Cash or
Property; (ii) the Managing 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 Managing Members; (iii) the LLC may hold in a Vesting Escrow
securities which would otherwise have been distributed to such Managing
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
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to their distribution to the Managing 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 Managing Member from and after
the date of any Event of Forfeiture with respect to such Managing
Member. If any property which is held in escrow pursuant to this
Section 4.02 is sold or otherwise disposed of, the proceeds of such
sale or other disposition shall be substituted in the Vesting Escrow
for such property, and released in accordance with Section 4.02(a)
above at the same time such property would have been released from such
Vesting Escrow.
(d) Upon the discontinuance of the activities of the LLC
related to the funding of additional investments after the Funds have
been fully invested, and with the approval of a Majority in Number of
the Voting Managing Members, the Vested Percentage of each Managing
Member shall be increased to one hundred percent (100%).
(e) Notwithstanding the foregoing, distributions of
Distributable Cash and Property to Denise W. Marks shall not be subject
to the provisions of this Section 4.02 and no portion thereof shall be
required to be held in a Vesting Escrow.
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 Voting Managing
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
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of the LLC and not an interest as a tenant-in-common with other Members so
entitled in any asset being distributed.
4.05 Distributions 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 Distributable Cash and Property and items thereof computed for
the portion of the year ending on the date of the acquisition shall be
distributed among the Members without regard to such acquisition, and
Distributable Cash and items thereof 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 4.04, any modifications to a Member's Percentage Interest or Investment
Percentage Interest for any Investment, shall be treated as if a Member acquired
an interest in the LLC.
4.06 Right to Set Off Certain Amounts. The LLC may withhold from any
amounts which are otherwise distributable to a Member in accordance with this
Agreement, and pay over to @Ventures Management, LLC (the "Management Company"),
any amount which such Member may owe to the Management Company pursuant to
certain promissory notes made by such Member to the Management Company, which
notes evidence loans made by the Management Company to such Member in order to
enable such Member to satisfy its capital contribution obligations to the LLC.
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ARTICLE V
ALLOCATION OF NET PROFITS AND NET LOSSES
5.01 Basic Allocations.
(a) Net Profits and Net Losses shall be computed on an
Investment by Investment basis as of the end of each fiscal year (or
other relevant period). Except as provided in Section 5.02 below (which
shall be applied first) and Section 5.01(b) below, Net Profits and Net
Losses attributable to a particular Investment shall be allocated among
the Members in proportion to their respective Investment Percentage
Interests in such Investment. Net Profits and Net Losses attributable
to Other Cash Receipts shall be allocated among the Members in
proportion to their respective Percentage Interests.
(b) 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 Managing Member to whom such Vesting Escrow
relates.
(c) For purposes of this Article V, the amount of the Net
Profits or Net Losses from any Investment (treating all sources of
Other Cash Receipts as one Investment) shall be determined by
allocating expenses incurred by the LLC among the Investments in the
same manner that expenses are allocated pursuant to the last sentence
of the definition of "Distributable Cash and Property."
(d) Allocations of Net Profits and Net Losses provided for in
this Section 5.01 shall generally be made as of the end of the fiscal
year of the LLC; provided, however, that allocations of items of Net
Profits and Net Losses described in clause (vi) 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."
(e) Upon admission of any Managing Member to the LLC following
the date of formation of the LLC, any deduction attributable to such
admission shall be allocated among the Managing Members of the LLC
(determined immediately prior to the admission of such new Managing
Member), in proportion to such Managing Members' respective Percentage
Interests as in effect immediately prior to such admission.
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5.02 Regulatory Allocations. Notwithstanding the provisions of Section
5.01 above, the following allocations of Net Profits, Net Losses and items
thereof shall be made in the following order of priority:
(a) Items of income or gain (computed with the adjustments
contained in paragraphs (i), (ii) and (iii) of the definition of "Net
Profits and Net Losses") for any taxable period shall be allocated to
the Members in the manner and to the minimum extent required by the
"minimum gain chargeback" provisions of Treasury Regulation Section
1.704-2(f) and Treasury Regulation Section 1.704-2(i)(4).
(b) All "nonrecourse deductions" (as defined in Treasury
Regulation Section 1.704-2(b)(1)) of the LLC for any year shall be
allocated to the Members in the manner in which Net Profits and Net
Losses are allocated; provided, however, that nonrecourse deductions
attributable to "partner nonrecourse debt" (as defined in Treasury
Regulation Section 1.704-2(b)(4)) shall be allocated to the Members in
accordance with the provisions of Treasury Regulation Section
1.704-2(i)(1).
(c) Items of income or gain (computed with the adjustments
contained in paragraphs (i), (ii) and (iii) of 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).
(d) 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
5.02(d) 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).
(e) Except as otherwise provided herein or as required by Code
Section 704, for tax purposes, all items of income, gain, loss,
deduction or credit shall be allocated to the Members in the same
manner as are Net Profits and Net Losses; provided, however, that if
the Carrying Value of any property of the LLC differs from its adjusted
basis for tax purposes, then items of income, gain, loss, deduction or
credit related to such property for tax purposes shall be allocated
among the Members so as to take account of the variation between the
adjusted basis of the property for tax purposes and its Carrying Value
in the manner provided for under Code Section 704(c).
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(f) In the event that Net Profits, Net Losses or items thereof
in respect of any Investment are allocated to one or more Members
pursuant to subsections (a) or (b) above, subsequent Net Profit, Net
Losses or items thereof will first be allocated (subject to the
provisions of subsections (a) and (b)) to the Members in a manner
designed to result in each Member having been allocated an amount of
Net Profits, Net Losses or items thereof attributable to each
Investment as such Member would have been allocated had Section 5.02
not been contained in this Agreement.
5.03 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 items thereof 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 items thereof 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 5.03, any
modifications to a Member's Percentage Interest or Investment Percentage
Interest for any Investment, shall be treated as if a Member acquired an
interest in the LLC.
ARTICLE VI
MANAGEMENT
6.01 Management of the LLC. (a) Subject to the provisions of this
Agreement and the Act, all powers shall be exercised by or under the authority
of, and the business and affairs of the LLC shall be controlled by the Members.
(b) Except to the extent that this Agreement specifically
provides for a higher or lower number or percentage of Members, all
decisions respecting any matter set forth herein or otherwise affecting
or arising out of the conduct of the business of the LLC shall be made
by action of a Majority in Number of the Voting Managing Members;
provided that, Voting Managing 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 Voting Managing Members and
shall be disregarded for all purposes in determining the number of
Voting Managing Members which constitute a Majority in Number of the
Voting Managing Members. Except to the extent specifically provided in
this Agreement, the Non-Voting Managing Members shall not be entitled
to vote on, consent to or approve any matter relating to the conduct of
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the LLC's business. The Voting Managing Members, by action of a
Majority in Number thereof, may at any time and from time to time
change the status of any Managing Member from Voting to Non-Voting, and
vice versa.
Subject to the foregoing, the Voting Managing 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 Voting Managing 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 Voting Managing Members, in their
discretion, deem necessary or appropriate in connection with
the organization of the LLC, and the carrying out of its
obligations and responsibilities under this or any other
Agreement;
(vi) to invest the assets of the LLC, and to lease,
sell, finance, refinance or dispose of all or any portion of
the LLC's property;
(vii) to cause the LLC to make or revoke any of the
elections referred to in Sections 108, 704, 709, 754 or 1017
of the Code or any similar provisions enacted in lieu thereof,
or in any other Section of the Code;
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(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 compromise the obligation of a Member to
make a contribution to the capital of the LLC or to return to
the LLC money or other property paid or distributed to such
Member in violation of this Agreement or the Act;
(xiii) 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 Voting Managing Members;
(xiv) to exercise all powers and authority granted by
the Act to members, except as otherwise specifically provided
in this Agreement;
(xv) to cause the LLC to take any of the foregoing
actions in the name and on behalf of the Funds, in the LLC's
respective capacity as a general partner or managing member,
as applicable, of any Fund;
(xvi) to exercise all other rights, powers,
privileges and other incidents of ownership with respect to
the interest of the LLC in each of the Funds, and to perform
the LLC's respective obligations under the Fund Agreements.
(c) Notwithstanding the foregoing, the Voting Managing Members
shall not be authorized to take any of the following actions without
the prior approval of the Capital Member:
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(i) to do any act that is in contravention of this
Agreement or that is not consistent with the purposes of the
LLC;
(ii) to do any act that would make it impossible to
carry on the ordinary business of the LLC;
(iii) to guarantee the obligations of any Portfolio
Company; or
(iv) to take any other action which requires the
consent of the Capital Member pursuant to this Agreement.
Other than as set forth in this Section 6.01(c), the Capital Member
shall not participate in the management or control of the LLC and
shall have no authority to act for or bind the LLC.
(d) Any Managing 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 Managing 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 Managing 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.
(e) Each Managing Member is authorized to use the title
"Managing Director" when acting on behalf of the LLC in the conduct of
the LLC's business.
(f) The Voting Managing Members, by action of a Majority in
Number of the Voting Managing Members exclusive of the Managing Member
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 Managing Member with the LLC. A Managing Member's
relationship with the LLC may be terminated for Cause 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
Managing Member proposed to be terminated. 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 Managing Member proposed to be
terminated. At such hearing, the Managing Member proposed to be
terminated will have an opportunity to respond to the charges
constituting Cause. None of the Members (including the Managing Member
proposed to be terminated),
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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 a Majority in Number of the Voting Managing Members
following the hearing, a Majority in Number of the Voting Managing
Members (exclusive of the Member proposed to be terminated) may
immediately relieve the Managing Member proposed to be terminated of
his or her duties and responsibilities hereunder pending a decision.
6.02 Tax Matters Partner. Andrew J. Hajducky, III shall be the tax
matters partner for the LLC pursuant to Code Sections 6221 through 6231.
6.03 Liability of the Members; Indemnification.
(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 the
belief that such act or omission is in the best interests of the LLC;
provided that such act or omission is not in violation of this
Agreement and does not constitute negligence, 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 negligence, 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.
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(b) 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, 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, 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 Capital Member or an Indemnitee claiming by
or through the Capital Member, a court of competent jurisdiction, or
(ii) in the case of any Managing Member or an Indemnitee claiming by or
through the Managing Member, by the Capital 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, did not have reasonable cause to believe that its
conduct was lawful, or (y) such Liabilities shall have arisen from a
violation of this Agreement or the negligence, misconduct, fraud or
willful violation of law by such Indemnitee, or actions of such
Indemnitee outside the scope of and unauthorized by this Agreement, and
provided further that an Indemnitee shall not be entitled to
indemnification hereunder with respect to any liability arising in
connection with its activities performed for or on behalf of any
Portfolio Company, the securities of which have been sold or have been
distributed to the Members pursuant to Article IV, if such activities
were performed after the date on which such securities were sold or
distributed. 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. The
indemnification rights provided for in this Section 6.03 shall survive
the termination of the LLC or this Agreement.
Expenses incurred by an Indemnitee in defense or settlement of
any claim that may be subject to a right of indemnification hereunder
may be advanced by the LLC prior to the final disposition thereof
provided that the following conditions are satisfied: (i) the claim
relates to the performance of duties or services by the Indemnitee on
behalf of the LLC and (ii) the Indemnitee undertakes to repay the
advanced funds to the LLC if it is ultimately determined that the
Indemnitee is not entitled to be indemnified hereunder or under
applicable law. The right of any Indemnitee to indemnification provided
herein shall be cumulative of, and in addition to, any and all
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rights to which such Indemnitee may otherwise be entitled by contract
or as a matter of law or equity and shall extend to such Indemnitee's
successors, assigns and legal representatives. The obligations of the
Members under this Section 6.03(b) 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 the Members shall have no liability to fund
any indemnification payment hereunder.
6.04 Liability of Members. The liability of the Members for the losses,
debts and obligations of the LLC shall be 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.
6.05 Certain Fees and Expenses. 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 Capital Member)
shall be paid by the LLC or reimbursed to the Member by the LLC.
6.06 Other Activities.
(a) Subject to Sections 6.06(b) and 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.
(b) Each Managing Member agrees that (I) during his or her
employment by the Employer, and (II) while he or she holds any interest
in the LLC, and (III) for a period of three (3) years following
termination of his or her employment relationship with the Employer if
such employment is terminated: (A) by the Managing Member voluntarily,
or (B) by the Employer for Cause, such Managing Member will not,
directly or indirectly:
(x) recruit, solicit or induce, or attempt to induce,
any employee or consultant 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
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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 Employer contacted or solicited during such Managing
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 Managing 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 Managing 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.
6.07 Commitment of Members. Each of the Managing Members hereby agrees
to use its best efforts in connection with the purposes and objectives of the
LLC and to devote to such purposes and objectives such of its time and resources
as shall be necessary for the management of the affairs of the LLC.
6.08 Conflicts of Interest. No contract or transaction between the LLC
and one or more of its Members or Affiliates, or between the LLC and any other
corporation, partnership association or other organization in which one or more
of its Members or Affiliates are directors, officers, members, managers or
partners or have a financial interest, shall be void or voidable solely for such
reason, or solely because the Member or Affiliate is present at or participates
in any meeting of Managing 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 Voting
Managing Members and the Voting Managing Members authorize the contract
or transaction by a vote sufficient for such purpose without counting
the vote of any interested Voting Managing Member even though the
disinterested Voting
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Managing Members may be less than a Majority in Number of the Voting
Managing 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 Voting
Managing Members entitled to vote thereon, and the contract or
transaction is specifically approved by a vote of the Voting Managing
Members; or
(iii) the contract or transaction is fair to the LLC or its
Affiliates as of the time it is authorized, approved or ratified by the
Voting Managing Members.
ARTICLE VII
BOOKS, RECORDS AND BANK ACCOUNTS
7.01 Books and Records. The Managing Members shall keep or cause to be
kept just and true books of account with respect to the operations of the LLC.
Such books shall be maintained at the LLC's principal place of business, or at
such other place as the Members shall determine, and all Members, and their duly
authorized representatives, shall at all reasonable times have access to such
books as well as any information required to be made available to the Members
under the Act. The Managing Members shall not be required to deliver or mail
copies of the LLC's Certificate of Formation or copies of certificates of
amendment thereto or cancellation thereof to the Members, although such
documents shall be available for review and/or copying by the Members at the
LLC's principal place of business.
7.02 Accounting Basis and Fiscal Year. The LLC's books shall be kept on
the accrual method of accounting, or on such other method of accounting as the
Members may from time to time determine, and shall be closed and balanced at the
end of each fiscal year of the LLC. The fiscal year of the LLC shall be the
calendar year.
7.03 Bank Accounts. The Managing 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
Managing 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 Managing Members may determine. All such amounts shall be and
remain the property of the LLC, and shall be
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received, held and disbursed by the Managing Members for the purposes specified
in this Agreement. There shall not be deposited in any of said accounts any
funds other than funds belonging to the LLC, and no other funds shall in any way
be commingled with such funds.
7.04 Reports to Members. Within 90 days after the end of each fiscal
year, the Managing 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
audited balance sheet of the LLC as of the last day of such fiscal year, and
audited 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.
(a) Subject to Section 8.01(b) below, no Managing 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 Capital Member
and (ii) a Majority in Number of the Voting Managing 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. The provisions of this Section 8.01(a) shall not be
applicable to any assignment of the interest of a Managing 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 Section 8.01(b) below, the Capital
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
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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 Capital Member and
(ii) a Majority in Number of the Voting Managing 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 Members or (v)
would require the LLC or any Fund to register as an investment company
under the Investment Company Act of 1940, as amended, or as an
investment advisor under the Investment Advisors Act of 1940, as
amended. The LLC shall not be required to recognize any assignment
until the instrument conveying such interest has been delivered to the
LLC for recordation on the books of the LLC. Unless an assignee becomes
a substituted Member in accordance with the provisions of Section
8.01(c), it shall not be entitled to any of the rights granted to a
Member hereunder, other than the right to receive all or part of the
share of the Net Profits, Net Losses, distributions of cash or property
or returns of capital to which his assignor would otherwise be
entitled.
(c) An assignee of the interest of a Member, or any portion
thereof, shall become a substituted Member entitled to all the rights
of a Member if, and only if:
(i) the assignor gives the assignee such right;
(ii) in the case of an assignee of a Managing Member,
the Capital Member and a Majority in Number of the Voting
Managing 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 Capital
Member, a Majority in Number of the Voting Managing Members
consent to such substitution, the granting or denying of which
consent shall be in the Voting Managing Members' absolute
discretion, except that, in the case of a transfer 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 Voting
Managing 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
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(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.
Unless a Majority in Number of the Voting Managing Members (exclusive
of the assignor) otherwise approve, any assignee of the interest of a
Voting Managing Member who becomes a substitute Managing Member shall
be and become a Voting Managing Member, and any assignee of the
interest of a Non-Voting Managing Member who becomes a substitute
Managing Member shall be and become a Non-Voting Managing Member.
(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 Managing Members and recorded on the books of the LLC. The Managing
Members may refuse to accept an assignment until the end of the next
successive quarterly accounting period. In no event shall any interest
in the LLC, or any portion thereof, be sold, transferred or assigned to
a minor or incompetent, and any such attempted sale, transfer or
assignment shall be void and ineffectual and shall not bind the LLC.
(e) If a Member who is an individual dies or a court of
competent jurisdiction adjudges him to be incompetent to manage his
person or his property, the Member's executor, administrator, guardian,
conservator or other legal representative may exercise all of the
Member's rights hereunder, but solely for the purpose of settling his
estate or administering his property, and in no event shall such
executor, administrator, guardian, conservator or legal representative
participate in any way in the conduct of the business of the LLC, or in
the making of any decision or the taking of any action provided for
hereunder (including without limitation, Section 6.01(a) or (b)) for
any other purpose. If a Member is a corporation, trust or other entity,
and is dissolved or terminated, the powers of that Member may be
exercised by its legal representative or successor.
8.02 Additional Members.
(a) Except as provided in Section 8.01, additional Members may
be admitted to the LLC only upon the written consent of the Capital
Member and a Majority in Number of the Voting Managing Members. Any
such consent shall specify
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(i) the capital contribution, if any, and the Percentage Interest of
the additional Member, (ii) whether such Managing Member is a Voting or
Non-Voting Managing Member and (iii) any other rights and obligations
of such additional Member. Such approval shall bind all Members. In
connection with any such admission of an additional Member, this
Agreement (including Schedules A and B) shall be amended to reflect the
additional Member, its capital contribution, if any, its Percentage
Interest, its Vesting Commencement Date, and any other rights and
obligations of the additional Member. In connection with any such
admission of an additional Member, the Percentage Interest or other
rights and interests of the Capital Member in the LLC may not be
diluted or otherwise modified or adjusted without the specific written
consent of the Capital Member.
(b) Unless all Voting Managing Members (exclusive of those
with respect to whom an Event of Forfeiture has occurred) otherwise
agree, in connection with the admission of any additional Managing
Member to the LLC, the Percentage Interests of all Managing Members
shall be diluted proportionately based on their respective Percentage
Interests immediately prior to any such admission.
(c) Each Managing Member, and each person who is hereinafter
admitted to the LLC as a Managing 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).
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
Capital Member and a Majority in Number of the Voting Managing Members,
and any such amendment shall be binding upon all of the Members.
8.03 Reallocation of Percentage Interests. The Voting Managing Members,
by action of a Majority in Number thereof, may not later than 10 business days
following the commencement of any fiscal year, elect to modify the respective
Percentage Interests of the Managing Members. Any such determination to modify
the Percentage Interests of the Managing Members shall be made based on the
respective professional and managerial contribution and anticipated contribution
to the business of the LLC of the Managing Members, and any such determination
shall take effect as of the first day of such fiscal year, and shall not
otherwise have any retroactive effect. In no event shall
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the Percentage Interest of the Capital Member be modified or adjusted as a
result of this Section 8.03. In connection with any such adjustment, Schedule B
shall be amended accordingly, and all Members shall be bound by the
determination of a Majority in Number of the Voting Managing Members.
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
Capital Member and (B) a Majority in Number of the Voting
Managing Members;
(ii) following the dissolution (following which the
business is not continued) of the last to dissolve of the
Funds, and the liquidation of all of assets of the Funds and
the winding up of their respective businesses;
(iii) upon the sale or other disposition of all of
the LLC's assets; or
(iv) 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 Voting Managing 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.
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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
(including without limitation, any liabilities or obligations to the
Funds). 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 with positive Capital Account
balances (after such balances have been adjusted to reflect all debits
and credits required by applicable Treasury Regulations under Section
704(b) of the Code for all events through and including the
distribution in liquidation of the LLC), in proportion to and to the
extent of such positive balances. 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 Capital 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 Capital
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 Capital Member and (ii) a
Majority in Number of the Voting Managing Members; provided that (x) no such
amendment shall increase the liability of, increase the obligations of or
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 Managing Member in accordance with Section 8.02 or upon the
adjustment of the Percentage Interests of the Managing Members in accordance
with Section 8.03); (y) if any provision of this Agreement provides for the
approval or consent of a greater number of Members or of Members holding a
higher percentage of the total Percentage Interests of the Members, any
amendment effectuated pursuant to such provision, and any amendment to such
provision, shall require the approval or consent of such greater number of
Members or of Members holding such higher percentage of Percentage Interests;
and (z) subject to clauses (x) and (y) above, any amendment to this Section
10.03 shall require the
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approval of (i) the Capital Member and (ii) Managing Members holding not less
than two-thirds of all Percentage Interests held by all Managing Members.
10.04 Partition. The Members hereby agree that no Member nor any
successor-in-interest to any Member, shall have the right while this Agreement
remains in effect to have the property of the LLC partitioned, or to file a
complaint or institute any proceeding at law or in equity to have the property
of the LLC partitioned, and each Member, on behalf of himself, his successors,
representatives, heirs and assigns, hereby waives any such right. It is the
intention of the Members that during the term of this Agreement, the rights of
the Members and their successors-in-interest, as among themselves, shall be
governed by the terms of this Agreement, and that the right of any Member or
successor-in-interest to assign, transfer, sell or otherwise dispose of his
interest in the LLC shall be subject to the limitations and restrictions of this
Agreement.
10.05 No Waiver. The failure of any Member to insist upon strict
performance of a covenant hereunder or of any obligation hereunder, irrespective
of the length of time for which such failure continues, shall not be a waiver of
such Member's right to demand strict compliance in the future. No consent or
waiver, express or implied, to or of any breach or default in the performance of
any obligation hereunder, shall constitute a consent or waiver to or of any
other breach or default in the performance of the same or any other obligation
hereunder.
10.06 Entire Agreement. This Agreement constitutes the full and
complete agreement of the parties hereto with respect to the subject matter
hereof.
10.07 Captions. Titles or captions of Articles or sections contained in
this Agreement are inserted only as a matter of convenience and for reference,
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision hereof.
10.08 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.
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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.
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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.
CAPITAL MEMBER:
CMG @ VENTURES CAPITAL CORP.
By /s/ Andrew J. Hajducky III
-----------------------------------
Name Andrew J. Hajducky III
---------------------------------
Title CFO
---------------------------------
MANAGING MEMBERS:
/s/ David S. Wetherell
--------------------------------------
David S. Wetherell
/s/ Guy A. Bradley
--------------------------------------
Guy A. Bradley
/s/ Jonathan Callaghan
--------------------------------------
Jonathan Callaghan
/s/ Andrew J. Hajducky, III
--------------------------------------
Andrew J. Hajducky, III
/s/ Peter H. Mills
--------------------------------------
Peter H. Mills
/s/ Marc Poirier
--------------------------------------
Marc Poirier
/s/ Brad Garlinghouse
--------------------------------------
Brad Garlinghouse
/s/ David J. Nerrow, Jr.
--------------------------------------
David J. Nerrow, Jr.
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