Most Popular

Business Contracts
Forms
Immigration
Mock Trial

General Business Contracts

Free Featured LLC Forms

CMGI Ventures LLC Agreement 07-27-2001

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT OF

CMGI @VENTURES IV, LLC

 

THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of CMGI

@Ventures IV, LLC (the "LLC"), dated as of July 27, 2001, is by and among the

persons named on Schedule A attached hereto, each of whom is designated as a

----------

Class A Member, a Class B Member or a Class C Member.

 

WHEREAS, CMG @Ventures Capital Corp. formed the LLC as a limited liability

company pursuant to the Delaware Limited Liability Company Act, by the filing,

on November 10, 1999, in the Office of the Secretary of State of the State of

Delaware, of a Certificate of Formation for the LLC (the "Certificate"); and

 

WHEREAS, effective as of June 1, 2000, certain Class B Members and Class C

Members were admitted to the LLC, and such persons, and the Class A Member,

executed and delivered a Limited Liability Company Agreement dated as of June 1,

2000, which agreement has been amended through the date hereof by nine

amendments thereto (as amended to date, the "Original Agreement");

 

WHEREAS, the Class A Member and the Class B Members desire to amend and

restate in its entirety the Original Agreement, to modify certain of the

provisions thereof.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and

sufficiency of which is hereby acknowledged, and in consideration of the

agreements hereinafter set forth, the Original Agreement is hereby amended and

restated to read in its entirety as follows:

 

ARTICLE I

DEFINITIONS

 

The following capitalized terms used in this Agreement shall have the

respective meanings ascribed to them below:

 

"Act" means the Delaware Limited Liability Company Act, in effect at the

time of the initial filing of the Certificate with the Office of the Secretary

of State of the State of Delaware, and as thereafter amended from time to time.

 

"Affiliate" shall mean, with respect to any specified person or entity, (i)

any person or entity that directly or indirectly controls, is controlled by, or

is under common control with such specified person or entity; (ii) any person or

entity that directly or indirectly controls 10% or more of the outstanding

equity securities of the specified entity or of which the specified person or

entity is directly or indirectly the owner of 10% or more of any class of equity

securities; (iii) any person or entity that is an officer of, director of,

manager of, partner in, or trustee of, or serves in a similar capacity with

respect to, the specified person or entity or of which the specified person or

entity is an officer, director, partner, manager or trustee, or with respect to

<PAGE>

 

which the specified person or entity serves in a similar capacity; or (iv) any

person that is a spouse, mother, father, brother, sister or lineal descendant of

the specified person.

 

"Agreement" means this Amended and Restated Limited Liability Company

Agreement as it may be amended, supplemented, or restated from time to time.

 

"Appraiser" shall have the meaning ascribed thereto in Section 8.04.

 

"Bonus Incentive Fee" shall have the meaning ascribed thereto in Section

4.01(b)(i).

 

"Budget" shall have the meaning ascribed thereto in Section 6.05(a).

 

"Capital Account" means a separate account maintained for each Member and

adjusted in accordance with Treasury Regulations under Section 704 of the Code.

To the extent consistent with such Treasury Regulations, the adjustments to such

accounts shall include the following:

 

(i) There shall be credited to each Member's Capital Account the

amount of any cash actually contributed by such Member to the capital of the

LLC, the fair market value of any property contributed by such Member to the

capital of the LLC, the amount of liabilities of the LLC assumed by the Member

or to which property distributed to the Member was subject and such Member's

share of the Net Profits of the LLC and of any items in the nature of income or

gain separately allocated to the Members; and there shall be charged against

each Member's Capital Account the amount of all cash distributions to such

Member, the fair market value of any property distributed to such Member by the

LLC, the amount of liabilities of the Member assumed by the LLC or to which

property contributed by the Member to the LLC was subject and such Member's

share of the Net Losses of the LLC and of any items in the nature of losses or

deductions separately allocated to the Members.

 

(ii) If the LLC at any time distributes any of its assets in-kind

to any Member, the Capital Account of each Member shall be adjusted to account

for that Member's allocable share of the Net Profits, Net Losses or items

thereof that would be realized by the LLC if it sold the assets that were

distributed at their respective fair market values (taking Code Section 7701(g)

into account) immediately prior to their distribution.

 

"Capital Contribution" means the aggregate amount of cash and the fair

market value (as determined in accordance with Section 6.09 hereof) of any

property contributed to the LLC by a Member.

 

"Class A Member" shall refer severally to any person named as a Class A

Member in this Agreement and any person who becomes an additional, substitute or

replacement Class A Member as permitted by this Agreement, in such person's

capacity as a Class A Member of the LLC. "Class A Members" shall refer

collectively to all such persons in their capacities as Class A Members.

 

"Class B Member" shall refer severally to any person named as a Class B

Member in this Agreement and any person who becomes an additional, substitute or

replacement Class B Member as permitted by this Agreement, in such person's

capacity as a Class B Member of the

 

-2-

<PAGE>

 

LLC. "Class B Members" shall refer collectively to all such persons in their

capacities as Class B Members.

 

"Class C Member" shall refer severally to any person named as a Class C

Member in this Agreement and any person who becomes an additional, substitute or

replacement Class C Member as permitted by this Agreement, in such person's

capacity as a Class C Member of the LLC. "Class C Members" shall refer

collectively to all such persons in their capacities as Class C Members.

 

"Carrying Value" means, with respect to any asset, the asset's adjusted

basis for federal income tax purposes; provided, however, that (i) the initial

-------- -------

Carrying Value of any asset contributed to the LLC shall be adjusted to equal

its gross fair market value at the time of its contribution and (ii) the

Carrying Values of all assets held by the LLC shall be adjusted to equal their

respective gross fair market values (taking Code Section 7701(g) into account)

upon an adjustment to the Capital Accounts of the Members described in Treasury

Regulation Section 1.704-1(b)(2)(iv)(f). The Carrying Value of any asset whose

Carrying Value was adjusted pursuant to the preceding sentence thereafter shall

be adjusted in accordance with the provisions of Treasury Regulation Section

1.704-1(b)(2)(iv)(g).

 

"Cause" shall mean, in connection with the termination of a Class B or

Class C Member's relationship with the Employer:

 

(i) indictment for commission, conviction of, or plea of nolo

contendere to, (A) a felony, whether or not business related, which may injure

the business or reputation of the Employer, or (B) a crime of moral turpitude;

 

(ii) theft, embezzlement of assets of, or other financial fraud

against, the Employer;

 

(iii) a material breach of any agreement between the Class B or

Class C Member and the Employer including, without limitation, any violation of

the covenants set forth in Sections 6.06 and 6.07 below, which breach is not

cured within 30 days after written notice of such breach is given to such Member

by the Employer;

 

(iv) the willful and continued failure by the Class B or Class

C Member to substantially perform his or her duties (other than as a result of

incapacity due to physical or mental illness), which failure is not cured within

30 days after written notice of such breach is given to such Member;

 

(v) misappropriation for personal use of any material asset or

business opportunity of the Employer; or

 

(vi) willful misconduct, which adversely affects the business

of the Employer, but only if there has been a good faith determination by Two-

thirds in Number of the Class B Members (excluding any Class B Member which is

the subject of the determination) that such misconduct has occurred.

 

-3-

<PAGE>

 

Notwithstanding the foregoing, with respect to Charles Finnie, Finnie shall

be deemed to have been terminated with Cause if there occurs a "Cause

Termination" under the Finnie Letter Agreement.

 

"Certificate" means the Certificate of Formation creating the LLC, as it

may, from time to time, be amended in accordance with the Act.

 

"Change of Control" shall have the meaning ascribed thereto in Section

8.04.

 

"Change of Control Purchase Price" shall have the meaning ascribed thereto

in Section 8.04.

 

"CMGI" means CMGI, Inc., a Delaware corporation.

 

"Code" means the Internal Revenue Code of 1986, as amended from time to

time.

 

"Employer" shall mean, for any Class B or Class C Member, the LLC,

@Ventures Management LLC, CMGI or any Affiliate of any of them that employs the

Class B or Class C Member on a substantially full-time basis. For purposes of

this Agreement, a Portfolio Company shall not constitute an Affiliate of any of

the LLC, or CMGI (and a Class B or Class C Member shall not be deemed to be

employed by an Employer if such Class B or Class C Member is employed by a

Portfolio Company), unless the Class A Member specifically elects in writing to

treat a Portfolio Company as an Affiliate and such Portfolio Company falls

within the definition of "Affiliate" set forth above.

 

"Event of Forfeiture" shall mean and shall be deemed to have occurred in

the event that:

 

(x) a Class B or Class C Member dies or becomes mentally or

physically disabled (as determined by a physician licensed in the

Commonwealth of Massachusetts, selected by the Class B Members exclusive of

any Class B Member which is the subject of the determination) or a

conservator or guardian is appointed for the benefit of any Class B or

Class C Member or his property;

 

(y) the relationship of such Class B or Class C Member to all

Employers is terminated by such Member or by the Employer, in either case

without Cause (subject to clause (z) below in the case of a termination by

the Member without cause), or for any reason other than the reasons

specified in clauses (x) and (z) of this definition (each of the foregoing,

a "Clause Y Event"); or

 

(z) the relationship of such Class B or Class C Member to the

LLC is (I) terminated with Cause (in accordance with the procedures

described in Section 6.01(g) below), or (II) terminated by the Class B or

Class C Member, following which termination it is determined (in accordance

with the procedures described in Section 6.01(g) below) that the LLC had

Cause to terminate such Member (each of the foregoing, a "Clause Z Event").

 

-4-

<PAGE>

 

An Event of Forfeiture for a Class B or Class C Member whose relationship with

all Employers was terminated pursuant to clause (y) may thereafter occur if any

Clause Z Event occurs with respect to such Class B or Class C Member.

 

Notwithstanding the foregoing, with respect to Charles Finnie, an Event of

Forfeiture shall be deemed to have occurred if an "Event of Termination" occurs

with respect to Finnie for purposes of the Finnie Letter Agreement.

 

A Clause Y Event has occurred with respect to certain Profit Members as of

the date of this Amended and Restated Agreement, and such Profit Members have

assumed the status of Former Profit Members as of the date hereof. Such Former

Profit Members are entitled to certain severance and benefit continuation

payments pursuant to separate written agreements, and the receipt of such

amounts shall not be deemed to constitute a continuation of the employment

relationship of such Former Profit Members with the LLC or any of its

Affiliates.

 

"Finnie Letter Agreement" means that certain letter agreement dated as of

September 14, 2000 between Charles Finnie and CMGI @Ventures, Inc.

 

"Follow-on Investment" shall mean an Investment in securities of a

Portfolio Company in which the LLC owns securities or debt instruments.

 

"Former Profit Member" shall mean any person holding an interest in the LLC

as a Profit Member as to whom an Event of Forfeiture has occurred.

 

"Friendly Change of Control" shall be deemed to have occurred when:

 

(i) there has occurred a change of control of CMGI which has been

approved by a majority of all the members of the Board of Directors of

CMGI, and which change of control is of a nature that would be required to

be reported in response to Items 6(e) or 14(i), (iv), or (v) of Schedule

14A of Regulation 14A promulgated under the Securities Exchange Act of

1934, as amended (the "Exchange Act") provided that, in the case of a

change of control reportable under Item 6(e), such change of control

involves the acquisition by any "person" (as such term is used in Sections

13(d)(3) and 14(d)(2) of the Exchange Act, but expressly excluding David S.

Wetherell) of beneficial ownership, directly or indirectly, of securities

or interests in CMGI which represent more than forty percent (40%) of the

combined voting power of CMGI's outstanding securities; provided however,

that any of the foregoing which results from (X) the conversion of any

security or class of securities issued by CMGI and outstanding as of the

date of this Amended and Restated Agreement, or any securities issued in

respect of or in exchange for any of such outstanding securities or (Y)

payment of any amounts due under any debt instruments of CMGI to Compaq

Computer Corporation which are outstanding as of the date of this Amended

and Restated Agreement, or any securities issued in respect of or in

exchange for any of such outstanding debt instruments, shall not constitute

a Friendly Change of Control for purposes of this definition; or

 

(ii) there has occurred a change of control of the Class A Member

which has been approved by a majority of all the members of the Board of

Directors of CMGI, and which change of control involves (A) the acquisition

by any "person" (as such term is used in

 

-5-

<PAGE>

 

Sections 13(d)(3) and 14(d)(2) of the Exchange Act) of beneficial

ownership, directly or indirectly, of securities or interests in the Class

A Member which represents more than fifty percent (50%) of the combined

voting power of the Class A Member's outstanding securities, or (B) a sale

of all or substantially all of the assets of the LLC or of the Class A

Member, or (C) either the merger or consolidation of the LLC or the Class A

Member with another entity which is the surviving entity of such merger or

consolidation provided that such other entity, prior to such merger or

consolidation, was not controlled directly or indirectly by CMGI; provided

however, that any of the foregoing which results from (X) the conversion of

any security or class of securities issued by CMGI and outstanding as of

the date of this Amended and Restated Agreement, or any securities issued

in respect of or in exchange for any of such outstanding securities or (Y)

payment of any amounts due under any debt instruments of CMGI to Compaq

Computer Corporation which are outstanding as of the date of this Amended

and Restated Agreement, or any securities issued in respect of or in

exchange for any of such outstanding debt instruments, shall not constitute

a Friendly Change of Control for purposes of this definition.

 

"Fully Loaded Investment Cost" means, for a particular Investment, an

amount equal to the sum of (i) the aggregate purchase price paid by the LLC for

such Investment, and (ii) the aggregate Unreimbursed Acquisition Expenses

attributable to such Investment.

 

"Incentive Percentage" shall have the meaning ascribed thereto on Exhibit

-------

1.

-

 

"Initial Election" shall have the meaning ascribed thereto in Section 8.04.

 

"Investment" means an investment in a Portfolio Company made by the LLC,

including without limitation a Follow-on Investment. As and when the LLC makes

an Investment, there shall be attached to this Agreement a Schedule for such

Investment, which shall reflect the information described in Section 3.03(a).

Each such Schedule is hereinafter referred to as an "Investment Schedule" and

all such Schedules are referred to collectively as the "Investment Schedules."

The term "Investment" shall not include Short-Term Investments made by the LLC;

provided, however, that investments funded from Net Investment Receipts

-------- -------

attributable to a particular Investment shall be considered to be the successor

of such Investment and shall be treated for all purposes of this Agreement as

the original Investment rather than as one or more Short-Term Investments.

 

"Investment Receipts" shall mean, with respect to any Investment, the

amount of any cash and the fair market value (as determined in accordance with

Section 6.09 hereof) of any property received by the LLC with respect to such

Investment. For this purpose, any Investment held by the LLC shall be

considered to give rise to a receipt at the time it is distributed to the

Members.

 

"LLC" means the limited liability company formed pursuant to the

Certificate and this Agreement, as it may from time to time be constituted and

amended.

 

"Majority in Number of the Class B Members" means, with respect to a

particular action or matter, a majority in number of the Class B Members then

entitled to vote on the action.

 

-6-

<PAGE>

 

"Marketable Securities" means securities of the LLC (i) that are freely

tradeable pursuant to a registration under the Securities Act, or an exemption

therefrom, (ii) that immediately after giving effect to their distribution will

not be subject to any contractual restriction on transfer, (iii) that will be

traded on a national securities exchange or reported on the Nasdaq Stock Market

of Securities Dealers Automated Quotation System, and (iv) that may be sold

without regard to volume limitations.

 

"Member" shall refer severally to any person named as a Class A Member,

Class B Member or Class C Member in this Agreement and any person who becomes an

additional, substitute or replacement Class A, Class B or Class C Member as

permitted by this Agreement, in such person's capacity as a Member of the LLC.

"Members" shall refer collectively to all such persons in their capacities as

Members.

 

"Net Investment Receipts" shall mean, with respect to any particular

Investment for any fiscal period, the excess of all Investment Receipts of the

LLC with respect to such Investment for such fiscal period over the aggregate

amount of the unreimbursed third party transaction costs, if any, associated

with the disposition of such Investment or realization of such Investment

Receipts, including without limitation, brokerage commissions, finders fees, and

attorneys fees, investment banking fees and accountants fees.

 

"Net Profits" and "Net Losses" mean the taxable income or loss, as the case

may be, for a period as determined in accordance with Code Section 703(a)

computed with the following adjustments:

 

(i) Items of gain, loss, and deduction shall be computed based

upon the Carrying Values of the LLC's assets (in accordance with Treasury

Regulation Sections 1.704(b)(2)(iv)(g) and/or 1.704-3(d)) rather than upon the

assets' adjusted bases for federal income tax purposes;

 

(ii) Any tax-exempt income received by the LLC shall be

included as an item of gross income;

 

(iii) The amount of any adjustments to the Carrying Values of

any assets of the LLC pursuant to Code Section 743 shall not be taken into

account;

 

(iv) Any expenditure of the LLC described in Code Section

705(a)(2)(B) (including any expenditures treated as being described in Section

705(a)(2)(B) pursuant to Treasury Regulations under Code Section 704(b)) shall

be treated as a deductible expense;

 

(v) The amount of items of income, gain, loss or deduction

specially allocated to any Members pursuant to Sections 5.02 or 5.03 shall not

be included in the computation;

 

(vi) The amount of any items of Net Profits or Net Losses

deemed realized pursuant to paragraph (ii) of the definition of "Capital

Account" shall be included in the computation;

 

-7-

<PAGE>

 

(vii) The amount of any adjustment to the Carrying Value of an

asset of the LLC pursuant to clause (ii) of the definition of "Carrying Value"

shall be included as an item of gain (if positive) or loss (if negative); and

 

(viii) The amount of any Net Profits Attributable to Other Cash

Receipts shall be excluded from the computation.

 

"Net Profits Attributable to Other Cash Receipts" means Net Profits

computed solely with respect to the activities and assets that produce Other

Cash Receipts.

 

"Other Cash Receipts" means cash receipts of the LLC, exclusive of Capital

Contributions of the Members, which the Class B Members reasonably determine are

not attributable to Investments, and shall include any receipts of the LLC from

dispositions of Short-Term Investments.

 

"Permitted Transferee" means (A) any Member; (B) any spouse, parent, lineal

descendant (including a natural or adopted child, grandchild, etc.), brother,

sister, or spouse of a brother or sister of a Member; (C) any trust, corporation

or partnership or other entity in which any Member and/or one of the persons

designated in clause (B) is a principal, beneficiary, majority stockholder,

member or limited or general partner with an aggregate interest in profits and

losses of greater than fifty percent; (D) grantors or beneficiaries of a trust

which is (or of which the trustees thereof are, in their capacities as trustees)

a Member; or (E) charitable foundations created or primarily endowed by a Member

or a member of his or her family.

 

"Portfolio Company" means the issuer of any security in which the LLC has

invested, other than issuers in which the LLC has made short-term investments

pending the making of long-term investments.

 

"Profit Member" shall refer severally to any person named as a Class B

Member or a C Member in this Agreement and any person who becomes an additional,

substitute or replacement Class B Member or Class C Member as permitted by this

Agreement, in such person's capacity as a Class B Member or Class C Member of

the LLC. "Profit Members" shall refer collectively to all such persons in their

capacities as Profit Members.

 

"Profit Member Investment Percentage Interest" means each Profit Member's

percentage of the total amount of such Investment which is allocable or

distributable to the Profit Members as a group, as specified on the Investment

Schedule for such Investment.

 

"Profit Member Percentage Interest" shall be the percentage interest of a

Profit Member set forth in Schedule B, as amended from time to time, and subject

----------

to adjustment pursuant to Sections 3.04, 8.02 and 8.03. Each Profit Member's

Profit Member Percentage Interest represents his or her share of the total of an

amount, distribution or item which is allocable or distributable to the Profit

Members as a group.

 

"Qualifying Change of Control" shall have the meaning ascribed thereto in

Section 8.04.

 

"Securities Act" means the Securities Act of 1933, as amended.

 

-8-

<PAGE>

 

"Short-Term Investment" means any investment (other than an Investment),

including any bank, money market or similar account, in which the LLC invests

pending the acquisition of one or more Investments. Such term shall not include

any investment characterized as an Investment pursuant to the proviso to the

last sentence of the definition of "Investment."

 

"Target Balance" means, for each Member at any point in time, either (i) a

positive amount equal to the net amount, if any, the Member would be entitled

to receive or (ii) a negative amount equal to the net amount the Member would be

required to pay or contribute to the LLC or to any third party, assuming, in

each case, that (A) the LLC sold all of its assets for an aggregate purchase

price equal to the aggregate Carrying Value of the LLC's assets, (B) any Member

that was obligated to contribute to the LLC pursuant to this Agreement or

otherwise (including the amount any Member was obligated to pay to any third

party pursuant to the terms of any liability of the LLC or pursuant to any

guaranty, indemnity or similar ancillary agreement or arrangement entered into

in connection with any liability of the LLC) contributed such amount to the LLC,

(C) all liabilities of the LLC (including payment of all Bonus Incentive Fees)

were paid in accordance with their terms from the amounts specified in clauses

(A) and (B) of this sentence and (D) the balance, if any, of the amounts

specified in clauses (A) and (B) of this sentence was distributed in accordance

with Section 4.01(b)(ii) and (iii) (taking into account the last sentence

thereof) and 4.01(c) hereof, as applicable.

 

"Two-thirds in Number of the Class B Members" means, with respect to a

particular action or matter, at least two-thirds in number of the Class B

Members entitled to vote on the action.

 

"Unreimbursed Acquisition Expense" means, with respect to any Investment,

the amount of any costs or expenses incurred by the LLC in connection with the

acquisition of such Investment, as reasonably determined by the Class B Members,

which costs and expenses were not reimbursed by a third party.

 

"Unreturned Fully Loaded Investment Cost" means, at any point in time, with

respect to an Investment (or portion thereof), the excess, if any, of (i) the

aggregate Fully Loaded Investment Cost of such Investment (or portion thereof)

over (ii) the aggregate cumulative amount previously distributed pursuant to

Section 4.01(b)(ii) with respect to such Investment (or portion thereof).

 

"Vested Percentage" means

 

(i) with respect to any determination made after the date of

this Amended and Restated Agreement but prior to May 15, 2002, for any

Profit Member (other than a Former Profit Member), a fraction

(expressed as a percentage) the numerator of which is the sum of (x)

12 plus (y) the number of whole calendar months that have elapsed

between such Profit Member's Vesting Commencement Date and the date of

determination and the denominator of which is 60; and

 

(ii) with respect to any determination made on or after May 15,

2002, for any Profit Member (other than a Former Profit Member), a

fraction (expressed

 

-9-

<PAGE>

 

as a percentage) the numerator of which is the sum of (x) 24 plus (y)

the number of whole calendar months that have elapsed between such

Profit Member's Vesting Commencement Date and the date of

determination and the denominator of which is 60;

 

provided, however, that

-------- -------

 

(I) upon the occurrence of a Change of Control or a Vesting

Event, each Profit Member's Vested Percentage shall equal 100%;

 

(II) if, for any reason, the Class A Member fails to fund any

operating expense included in an approved annual operating Budget in

accordance with its terms, the numerator, for purposes of the fraction

described in clause (i) or (ii) above, as applicable, shall be

increased by 12;

 

(III) if the relationship of any Profit Member to all Employers

or with the LLC is terminated for any reason (including by such

Member, the Employer, or the LLC, with or without Cause and/or with or

without Good Reason, or upon death or disability such Member), then

Two-Thirds in Number of the Class B Members (exclusive of any Class B

Member which is the subject of the determination) may elect to

increase such Profit Member's Vested Percentage (to a percentage which

is in excess of the percentage calculated in accordance with clauses

(i) and (ii) above, but not in excess of 100%);

 

(IV) if an Event of Forfeiture described in clause (x) of the

definition of the term "Event of Forfeiture" occurs with respect to a

Profit Member (but not a Former Profit Member) prior to May 15, 2002,

then for purposes of determining such Profit Member's Vested

Percentage, such Event of Forfeiture shall be deemed to have occurred

on May 15, 2002, and therefore clause (ii) above shall be applicable;

 

(V) upon the occurrence of a Friendly Change of Control, a

Profit Member's Vested Percentage shall be increased to a Percentage

equal to the greater of

 

(x) the sum of (AA) the Vested Percentage as of the date

of the Friendly Change of Control determined in accordance with

clause (i) or (ii) above, as applicable plus (BB) 50% of the

excess, if any, of 100% minus the Vested Percentage as of the

date of the Friendly Change of Control determined in accordance

with clause (i) or (ii) above, as applicable, and

 

(y) the Percentage determined as of the date of the

Friendly Change of Control in accordance with clause (i) or (ii),

as applicable, if the numerator for purposes of such clause were

increased by 12;

 

-10-

<PAGE>

 

and after giving effect to such increase, the Vested Percentage

shall continue to vest in monthly installments as contemplated by

clauses (i) and (ii) above; and

 

(VI) in no event shall a Profit Member's Vested Percentage

exceed 100%.

 

Certain of the Profit Members have entered into Retention Agreements and

General Releases with the LLC and certain affiliated entities ("Retention

Agreements") on or about the date of this Agreement. Such Retention Agreements

provide for acceleration of vesting of such Profit Members' Vested Percentages

under certain circumstances, and the terms of such agreements, as in effect on

the date hereof, are hereby incorporated by reference herein. The adoption of

this Amended and Restated Agreement shall not modify the Vested Percentage for

any Profit Member who became a Former Profit Member on or prior to the date

hereof. Certain of the Former Profit Members entered into severance agreements

with the LLC and certain other parties on or about the date hereof (the

"Severance Agreements"), and the Vested Percentages of such Former Profit

Members have been determined pursuant to and in accordance with the Severance

Agreements, and not in accordance with the foregoing definition.

 

"Vesting Commencement Date" means, for each Class B or Class C Member, the

Vesting Commencement Date specified on Schedule A attached hereto.

----------

 

"Vesting Escrow" shall have the meaning ascribed thereto in Section 4.02.

 

"Vesting Event" shall mean the occurrence of any of the following:

 

(i) The failure of the Class A Member for any reason to adopt a

budget for Follow-on Investments (x) by September 1, 2001 with respect to

the CMGI fiscal year beginning on August 1, 2001, and (y) by September 1,

2002 with respect to the CMGI fiscal year beginning on August 1, 2002;

 

(ii) The failure of the Class A Member for any reason to adopt by

September 1 of each CMGI fiscal year (which begins on the immediately

preceding August 1) an annual Budget (a draft of which is submitted to the

Class A Member by the Class B Members for approval at least 60 days prior

to the first day of the applicable CMGI fiscal year) for operating expenses

(and exclusive of amounts for Investments, including Follow-on Investments)

in an amount to be mutually agreed on by the Class B Members and the Class

A Member (provided that, if no such agreement is reached, the failure to

adopt any such budget within the specified time period shall not constitute

a Vesting Event).

 

(iii) The filing, on or before July 31, 2002, of a Report on Form 8-K

by CMGI or the issuance, on or before July 31, 2002 of any press release,

or the occurrence, on or before July 31, 2002, of any guidance call or

earnings call which call includes the Chief Executive Officer, Chief

Financial Officer and/or other executive officer of CMGI, which Form 8-K,

release or call includes a statement to the effect that CMGI or its venture

capital investing unit intends to suspend, terminate or materially reduce

its commitment to making Follow-on Investments (and for this purpose, a

"material reduction" shall

 

-11-

<PAGE>

 

mean a reduction below the respective amount budgeted for the applicable

six-month period during which such press release is issued or such call

occurs, as specified in clause (i) above).

 

(iv) Any event as a result of which David S. Wetherell ceases to be

a reporting person of CMGI for purposes of Section 16 of the Securities

Exchange Act of 1934, as amended; provided that such cessation shall not

constitute a Vesting Event if David S. Wetherell is otherwise actively

involved in the business of CMGI's venture capital investing unit.

 

(v) Any insolvency or bankruptcy or similar case or proceeding, or

any reorganization, receivership, liquidation, dissolution or winding up of

CMGI or the Class A Member, whether voluntary or involuntary, or any

assignment for the benefit of creditors or any other marshaling of assets

and liabilities of CMGI or the Class A Member.

 

(vi) Any vote by the Board of Directors of CMGI or the Class A

Member to liquidate CMGI or the Class A Member, or to wind down and

terminate CMGI's venture capital operating unit.

 

Pursuant to and in accordance with the Retention Agreements with certain of

the Profit Members, in certain cases, following the occurrence of a Vesting

Event, such Members shall be entitled to certain severance benefits following a

termination of their employment.

 

ARTICLE II

GENERAL PROVISIONS

 

2.01 Formation of Limited Liability Company; Foreign Qualification. The

-------------------------------------------------------------

Class A Member formed the LLC as a limited liability company under the Act on

November 10, 1999, by the filing on such date of the Certificate in the Office

of the Secretary of State of the State of Delaware. The Certificate was amended

by the filing of a certificate of amendment thereto, which was filed in the

Office of the Secretary of State of the State of Delaware on December 10, 1999.

 

The LLC shall comply, to the extent procedures are available, with all

requirements necessary to qualify the LLC as a foreign limited liability company

in each jurisdiction in which such qualification is either necessary or

appropriate. Each Member shall execute, acknowledge, swear to and deliver all

certificates and other instruments conforming to this Agreement that are

necessary or appropriate to qualify, or, as appropriate, to continue or

terminate the foreign qualification of, the LLC as a limited liability company

in all such jurisdictions in which the LLC may conduct business.

 

2.02 Name of the LLC. The LLC was formed under the name CMG @Ventures IV,

---------------

LLC. The name of the LLC was changed, effective December 10, 1999, to CMGI

@Ventures IV, LLC.

 

2.03 Business of the LLC. The general character of the business of the LLC

-------------------

is to (a) make equity and equity-related investments in business enterprises of

all types; (b) manage,

 

-12-

<PAGE>

 

supervise, vote, hold and dispose of such investments, and receive the profits

and losses therefrom; and (c) engage in any activities directly or indirectly

related or incidental thereto which may be lawfully conducted by a limited

liability company formed under the laws of the State of Delaware.

 

2.04 Place of Business of the LLC; Resident Agent. The address of the

--------------------------------------------

principal place of business of the LLC, and the office at which the LLC will

maintain its records is 100 Brickstone Square, Andover, Massachusetts 01810.

The LLC's registered office in Delaware is c/o Corporation Trust Company, 1209

Orange Street, Wilmington, Delaware, 19810, and the LLC's registered agent for

service of process in Delaware is Corporation Trust Company, 1209 Orange Street,

Wilmington, Delaware, 19810. The Class B Members, with the approval of the

Class A Member, may at any time and from time to time change the LLC's principal

place of business, establish additional places of business, change the LLC's

registered agent or registered office in Delaware, and in each case shall

promptly provide notice of any of such actions (identifying all such offices and

agents) to all Members.

 

2.05 Duration of the LLC. The term of the LLC commenced on November 10,

-------------------

1999, and the LLC shall have perpetual existence, unless earlier terminated in

accordance with Article IX hereof.

 

2.06 Members' Names and Addresses. The name and address of each Member are

----------------------------

set forth on Schedule A. Additional Members may be admitted in accordance with

----------

the procedures specified in Article VIII. A Member may not resign from the LLC

at any time.

 

2.07 No Partnership. The LLC is not intended to be a general partnership,

--------------

limited partnership or joint venture, and no Member shall be considered to be a

partner or joint venturer of any other Member, for any purposes other than

foreign and domestic federal, state, provincial and local income tax purposes,

and this Agreement shall not be construed to suggest otherwise.

 

2.08 Title to LLC Property. All property owned by the LLC, whether real or

---------------------

personal, tangible or intangible, shall be deemed to be owned by the LLC as an

entity, and no Member, individually, shall have any ownership of such property.

The LLC may hold any of its assets in its own name or in the name of its

nominee, which nominee may be one or more trusts. Any property held by a nominee

trust for the benefit of the LLC shall, for purposes of this Agreement, be

treated as if such property were directly owned by the LLC.

 

2.09 Nature of Member's Interest. The interests of all of the Members in

---------------------------

the LLC are personal property and shall not, under any circumstances, be

considered real property.

 

2.10 Investment Representations. Each Member, by execution of this

--------------------------

Agreement or an amendment hereto reflecting such Member's admission to the LLC,

hereby represents and warrants to the LLC that:

 

(a) It is acquiring an interest in the LLC for its own account for

investment only, and not with a view to, or for sale in connection with, any

distribution thereof in violation of the Securities Act or any rule or

regulation thereunder.

 

-13-

<PAGE>

 

(b) It understands that (i) the interest in the LLC it is acquiring

has not been registered under the Securities Act or applicable state securities

laws and cannot be resold unless subsequently registered under the Securities

Act and such laws or unless an exemption from such registration is available,

(ii) such registration under the Securities Act and such laws is unlikely at any

time in the future and neither the LLC nor the Members are obligated to file a

registration statement under the Securities Act or such laws, and (iii) the

assignment, sale, transfer, exchange, or other disposition of the interests in

the LLC is restricted in accordance with the terms of this Agreement.

 

(c) It has had such opportunity as it has deemed adequate to ask

questions of and receive answers from representatives of the LLC concerning the

LLC, and to obtain from representatives of the LLC such information which the

LLC possesses or can acquire without unreasonable effort or expense, as is

necessary to evaluate the merits and risks of an investment in the LLC.

 

(d) It has, either alone or with its professional advisers,

sufficient experience in business, financial and investment matters to be able

to evaluate the merits and risks involved in investing in the LLC and to make an

informed investment decision with respect to such investment.

 

(e) It can afford a complete loss of the value of its investment in

the LLC and is able to bear the economic risk of holding such investment for an

indefinite period.

 

(f) If it is an entity, (i) it is duly organized, validly existing

and in good standing under the laws of its jurisdiction of organization, (ii) it

has full organizational power to execute and deliver this Agreement and to

perform its obligations hereunder, (iii) its execution, delivery and performance

of this Agreement has been authorized by all requisite action on behalf of the

entity, and (iv) it has duly executed and delivered this Agreement.

 

(g) In the case of each Profit Member, its interest in the LLC is

subject to vesting and forfeiture, as provided in this Agreement.

 

ARTICLE III

CAPITAL CONTRIBUTIONS

 

3.01 Capital Contributions.

---------------------

 

(a) Each Member shall be required to make Capital Contributions to

the LLC in accordance with this Section 3.01.

 

(b) As and when the LLC requires capital, the Class A Member shall

contribute the amount required, subject to and in accordance with the provisions

of this Section 3.01(b).

 

(i) As and when the LLC requires capital to make an Investment,

the Class B Members shall provide a notice (which notice may be given in writing

or by electronic mail) to the Class A Member which describes (A) the Investment,

(B) the aggregate purchase price of such proposed Investment, (C) the

Unreimbursed Acquisition Expenses, if any,

 

-14-

<PAGE>

 

reasonably expected to be incurred in connection with the acquisition of the

Investment, and (D) the expected date on which such Investment is proposed to be

made. If, and only if, the Class A Member approves the making of such

Investment, it shall contribute to the capital of the LLC the aggregate purchase

price and Unreimbursed Acquisition Expenses specified in the notice, on or

before the date of the anticipated purchase of the Investment. The Class A

Member may approve or disapprove the making of any proposed Investment

(including a Follow-on Investment) in its sole and absolute discretion. If the

Class A Member fails to notify the Class B Members of its decision with respect

to the proposed Investment, it shall be deemed to have disapproved the proposed

Investment.

 

(ii) As and when the LLC requires funds to finance its

operations (other than amounts of the types described in Section 3.01(b)(i)

above), the Class B Members shall notify the Class A Member of the amount

required and the intended uses thereof (which notice may be given in writing or

by electronic mail). Provided that such amounts and the purposes for which they

are proposed to be used are consistent with the Budget for the LLC as then in

effect, the Class A Member shall contribute the funds requested in the notice

within 10 business days after receipt of such notice.

 

(iii) The Class B Members may call for capital from the Class A

Member for any other purpose from time to time as needed; provided that the

Class A Member shall not be obligated to contribute any such amount unless it

consents thereto, which consent may be withheld in the Class A Member's sole and

absolute discretion. In connection with any such call, the Class B Members shall

provide to the Class A Member notice of a call for capital (which notice may be

given in writing or by electronic mail), which notice shall specify the

aggregate amount called for, a general statement of the purposes for which such

capital call is being made, and the date on which the capital contribution is

due (which date shall, to the extent reasonably practicable, be not less than 10

business days after the date of the notice).

 

(c) The LLC hereby releases each Profit Member from its capital

contribution obligations contained in Section 3.01(c) of the Original Agreement.

 

(d) The LLC shall maintain written records indicating the amount of

capital contributed by the Class A Member to the LLC.

 

3.02 No Additional Capital. Except as provided in this Article III, no

---------------------

Member shall be obligated or permitted to contribute any additional capital to

the LLC. No interest shall accrue on any Capital Contributions of the LLC, and

no Member shall have the right to withdraw or to be repaid any Capital

Contribution made by it or to receive any other payment in respect of its

interest in the LLC, including without limitation as a result of the withdrawal

or resignation of such Member from the LLC, except as specifically provided in

this Agreement.

 

3.03 Anticipated Operations of the LLC.

---------------------------------

 

(a) As and when the LLC acquires an Investment, the Class B Members

shall create an Investment Schedule for such Investment, which shall be attached

to this Agreement. The Investment Schedule for each Investment shall reflect (a)

the Portfolio Company issuing the securities, (b) the Acquisition Date, (d) the

number and class or series of shares of such

 

-15-

<PAGE>

 

securities, (c) the aggregate purchase price of such Investment, (d) the

Unreimbursed Acquisition Expenses incurred by the LLC in connection with the

acquisition of such Investment, (e) the Profit Member Investment Percentage

Interest of each of the Profit Members in such Investment (determined in the

manner hereinafter provided) and (f) such other information, if any, as the

Class B Members may deem appropriate.

 

(b) The Class A Member's share of each Investment shall be determined

in accordance with Section 4.01(b).

 

(c) Subject to Section 3.04, the Profit Member Investment Percentage

Interest of each Profit Member for whom an Event of Forfeiture has not occurred

in any Investment shall be determined in the manner provided in this Section

3.03(c).

 

First, the Profit Member Investment Percentage Interest, if any, of

Charles Finnie ("Finnie") in the Investment shall be determined. If an

Investment is identified to the LLC, and developed, by Finnie (taking into

account all relevant facts and circumstances, including whether any other Member

was aware of the particular investment opportunity), in accordance with the

guidelines specified in the Finnie Letter Agreement, and Finnie will thereafter

serve on the board of directors of the Investment as the LLC's designee and

actively monitor such Investment, as specified in the Finnie Letter Agreement,

Finnie's Profit Member Investment Percentage Interest in such Investment shall

be 10%; if an Investment is identified to the LLC, and developed, by Finnie

(taking into account all relevant facts and circumstances, including whether any

other Member was aware of the particular investment opportunity), in accordance

with the guidelines specified in the Finne Letter Agreement, and Finnie will not

thereafter serve on the board of directors of the investment as the LLC's

designee, Finnie's Profit Member Investment Percentage Interest in such

Investment shall be 5%; and in all other cases Finnie's Profit Member Investment

Percentage Interest shall be zero. A Majority in Number of the Class B Members

shall, in their reasonable judgment, make all determinations as to Finnie's

Profit Member Investment Percentage Interest, if any, in each Investment in

accordance with the standards enumerated in this paragraph and the Finnie Letter

Agreement. The Profit Member Investment Percentage Interest of each other Profit

Member (exclusive of any Profit Member for whom an Event of Forfeiture has

occurred) in any Investment shall equal (I) 100% minus the Profit Member

Investment Percentage Interest, if any, of Finnie in such Investment multiplied

by (II) a fraction (x) the numerator of which shall equal such Profit Member's

Profit Member Percentage Interest as of the date on which such Investment is

made and (y) the denominator of which shall equal the aggregate Profit Member

Percentage Interests on such date of all Profit Members exclusive of those for

whom an Event of Forfeiture has occurred. The Profit Member Investment

Percentage Interest of each Profit Member (including Finnie) in each Investment

shall be subject to reduction upon the occurrence of an Event of Forfeiture. If

Finnie's Profit Member Investment Percentage Interest in a particular investment

is initially fixed at 10%, and thereafter Finnie ceases to serve on the board of

the directors of the Investment as the LLC's designee and to actively monitor

such Investment (as determined by a Majority in Number of the Class B Members

and in accordance with the Finnie Letter Agreement), Finnie's Profit Member

Investment Percentage Interest in such Investment shall be reduced to 5%, and

the 5% interest in such Investment forfeited by Finnie shall be reallocated

among the Class B Members participating in such Investment (exclusive of any

Class B Member for whom an Event of

 

-16-

<PAGE>

 

Forfeiture has occurred), pro rata based on their respective Profit Member

Investment Percentage Interests in such Investment.

 

3.04 Event of Forfeiture.

-------------------

 

(a) Each Profit Member's Profit Member Percentage Interest and

Profit Member Investment Percentage Interest in each Investment are subject to

adjustment upon the occurrence of an Event of Forfeiture with respect to such

Profit Member, as provided in this Section 3.04. In no event shall the

provisions of this Section 3.04 be applicable to the interest of the Class A

Member.

 

(b) Upon the occurrence of an Event of Forfeiture with respect to a

Profit Member:

 

(i) Such Profit Member's Profit Member Percentage Interest in

the LLC shall, from and after the date of the Event of Forfeiture, be reduced to

zero, and the Profit Member Percentage Interest in the LLC of all Class B

Members (exclusive of any Class B Member for whom an Event of Forfeiture has

occurred) shall be increased by an aggregate amount equal to the amount of the

Profit Member Percentage Interest of the Profit Member for whom the Event of

Forfeiture has occurred (such increase to be allocated among such Class B

Members in proportion to their respective Profit Member Percentage Interests

immediately prior to the adjustment contemplated hereby).

 

(ii) If the Event of Forfeiture is not a Clause Z Event, such

---

Profit Member's Profit Member Investment Percentage Interest in each Investment

in which such Profit Member participates shall be reduced to a Percentage

determined by multiplying the Profit Member's initial Profit Member Investment

Percentage Interest by such Profit Member's then Vested Percentage (giving

effect to the Event of Forfeiture); provided that, if the Event of Forfeiture is

not a Clause Z Event, Two-thirds in Number of the Class B Members may elect to

permit such Profit Member to retain a greater Profit Member Investment

Percentage Interest in all or certain Investments, but in no event may such

retained Profit Member Investment Percentage Interest in any such Investment

exceed such Profit Member's Profit Member Investment Percentage Interest in such

Investment immediately prior to the occurrence of the Event of Forfeiture. If

the Event of Forfeiture is a Clause Z Event, such Profit Member's Profit Member

Investment Percentage Interest in each Investment in which such Profit Member

participates shall be reduced to zero; provided that, if the Event of Forfeiture

is a Clause Z Event, Two-thirds in Number of the Class B Members may elect to

permit such Profit Member to retain a greater Profit Member Investment

Percentage Interest in all or certain Investments, but in no event may such

retained Profit Member Investment Percentage Interest in any such Investment

exceed such Profit Member's Profit Member Investment Percentage Interest in such

Investment immediately prior to the occurrence of the Event of Forfeiture. The

Profit Member Investment Percentage Interest in each Investment of all Class B

Members (exclusive of any Class B Member for whom an Event of Forfeiture has

occurred) participating in such Investment shall be increased by an aggregate

amount equal to the amount of the reduction in the Profit Member Investment

Percentage Interest of the Profit Member for whom the Event of Forfeiture has

occurred (such increase to be allocated among them in proportion to such Class B

Members'

 

-17-

<PAGE>

 

respective Profit Member Investment Percentage Interests in such Investment

immediately prior to the adjustment contemplated hereby).

 

(iii) Any amount held in any Vesting Escrow for the benefit of

such Profit Member, to the extent allocable to the portion of each Investment

forfeited under clause (ii) above, shall be forfeited. Amounts so forfeited

shall (subject to the provisions of this Section 3.04 and Section 4.02) be

allocated, on an Investment-by-Investment basis, to all Class B Members

(exclusive of any Class B Member for whom an Event of Forfeiture has occurred)

participating in each such Investment (such distributions to be allocated among

them in proportion to their respective Profit Member Investment Percentage

Interests in each such Investment immediately prior to the adjustment

contemplated hereby).

 

(iv) Such Profit Member shall have no right to vote on or

participate in any decision or matter on or in which Profit Members (or any

Class thereof) are entitled to vote or participate and such Profit Member shall

be disregarded for all purposes in determining the number of Class B or Class C

Members which constitute a Majority in Number of the Class B or Class C Members,

as applicable, or the number or percentage or Class B Members or Class C Members

or Profit Members entitled to vote on any matter, as the case may be. Without

limiting the foregoing, no Former Profit Member shall be entitled to vote on any

proposed amendment to this Agreement, unless such proposed amendment

specifically and disproportionately adversely affects such Former Member (as

compared to all other Former Members), provided that the consent of a Former

Member shall not be required in connection with any amendment adopted in order

to implement the provisions of Sections 8.02 and/or 8.03, or to reflect the

consequences of an Event of Forfeiture pursuant to and in accordance with this

Agreement.

 

(c) A Profit Member with respect to whom an Event of Forfeiture has

occurred: (i) shall not be entitled to participate in any Investment (including

without limitation, a Follow-on Investment) made by the LLC after the date of

the Event of Forfeiture; and (ii) automatically and without any action on the

part of the LLC, such Profit Member or any other Member, shall be deemed to have

withdrawn from the LLC on the first date on which the LLC no longer owns any

Investment in which such Profit Member has a Profit Member Investment Percentage

Interest. In no event shall any portion of the interest of a Profit Member with

respect to whom an Event of Forfeiture has occurred vest after the date of such

Event of Forfeiture, including without limitation upon the occurrence of a

Change of Control or a Vesting Event, except to the extent that Two-Thirds in

Number of the Class B Members elect to permit such Profit Member to retain a

greater percentage of his or her interest pursuant to clause 3.04(b)(ii) above.

 

The Class B Members shall make all determinations under this Section 3.04

(including determinations as to when and whether an Event of Forfeiture has

occurred, and the reduction in the Profit Member Percentage Interest and Profit

Member Investment Percentage Interests of the affected Profit Member in

connection therewith), in their reasonable discretion.

 

ARTICLE IV

DISTRIBUTIONS

 

4.01 Distribution of Net Investment Receipts and Other Cash Receipts.

---------------------------------------------------------------

 

-18-

<PAGE>

 

(a) Net Investment Receipts of the LLC shall be distributed on an

Investment-by-Investment basis, which shall include all partial liquidations or

partial dispositions of Investments. To the extent that such Net Investment

Receipts constitute (x) Marketable Securities, or (y) cash realized from the

sale or disposition of an Investment, such Net Investment Receipts shall be

distributed (i) in the case of Marketable Securities, as soon as reasonably

practicable after they become Marketable Securities, and (ii) in the case of

such cash, as soon as reasonably practicable following receipt by the LLC

thereof. Other Cash Receipts shall be distributed at such times and in such

amounts as the Class A Member may determine, but not less frequently than

quarterly, within 30 days following the last day of each fiscal quarter of the

LLC. All other Net Investment Receipts shall be distributed at such times and in

such amounts as the Class B Members may in their reasonable discretion

determine. Any non-cash distributions made to the Members shall be valued, as of

the date of distribution, at their respective fair market values, as determined

by the Class B Members in good faith and in a manner consistent with the

valuation procedures contained in Section 6.09.

 

(b) Subject to the provisions of Sections 4.02 and 9.02(b) below, Net

Investment Receipts related to an Investment shall be distributed as follows:

 

(i) First, to the Applicable Profit Members (as hereinafter

defined), as a group, the LLC shall pay a fee (the "Bonus Incentive Fee") in an

amount equal to the Incentive Percentage (determined immediately prior to the

proposed distribution in accordance with Exhibit 1 to this Agreement) multiplied

---------

by the lower of (A) the amount of the Net Investment Receipts generated by the

portion of the Investment then being distributed reduced by the Unreimbursed

Acquisition Expense with respect to such portion of the Investment and (B) the

aggregate purchase price paid by the LLC for the portion of the Investment

generating the Net Investment Receipts then being distributed. The Bonus

Incentive Fee shall not be payable in respect of any distribution in respect of

the LLC's investment in Half.com or AnswerLogic. The Bonus Incentive Fee shall

be subject to reduction in the manner described under clause (iii) below. The

Bonus Incentive Fee shall be allocated among the Applicable Profit Members, in

proportion to the respective Investment Percentage Interests of the Applicable

Profit Members in the Investment generating the particular Net Investment

Receipts being distributed, as of the date on which the Bonus Incentive Fee is

paid (unless all Applicable Profit Members otherwise unanimously agree). Payment

of the Bonus Incentive Fee shall not be subject to the vesting and forfeiture

provisions of Sections 3.04 and/or 4.02, but shall be subject to appropriate

income and self-employment tax withholding obligations. As used herein, the

"Applicable Profit Members" means those persons who are Profit Members as of the

date of this Amended and Restated Agreement, exclusive of any of such persons

who is a Former Profit Member as of the date hereof, provided that, if an Event

of Forfeiture occurs after the date hereof with respect to any such Profit

Member, it shall not be an Applicable Profit Member unless, pursuant to the

Retention Agreement, if any, of such Profit Member, such Profit Member's Vested

Percentage is increased to 100% in connection with such Event of Forfeiture.

 

(ii) Second, the LLC shall distribute to the Class A Member, an

amount equal to the Unreturned Fully Loaded Investment Cost with respect to the

Investment (or portion thereof) generating the Net Investment Receipts.

 

(iii) The balance, if any, as follows:

 

-19-

<PAGE>

 

(A) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are less than or equal to $85 million, 7.5% to the

Profit Members and 92.5% to the Class A Member;

 

(B) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $85 million but less than or equal to

$100 million, 8% to the Profit Members and 92% to the

Class A Member;

 

(C) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $100 million but less than or equal to

$115 million, 9% to the Profit Members and 91% to the

Class A Member;

 

(D) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $115 million but less than or equal to

$130 million, 10% to the Profit Members and 90% to the

Class A Member;

 

(E) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $130 million but less than or equal to

$145 million, 11% to the Profit Members and 89% to the

Class A Member;

 

(F) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A

 

-20-

<PAGE>

 

Member under this clause as part of the then-current

distribution), are greater than $145 million but less

than or equal to $160 million, 12% to the Profit

Members and 88% to the Class A Member;

 

(G) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $160 million but less than or equal to

$175 million, 13% to the Profit Members and 87% to the

Class A Member;

 

(H) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $175 million but less than or equal to

$190 million, 14% to the Profit Members and 86% to the

Class A Member;

 

(I) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $190 million but less than or equal to

$205 million, 15% to the Profit Members and 85% to the

Class A Member;

 

(J) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $205 million but less than or equal to

$220 million, 16% to the Profit Members and 84% to the

Class A Member;

 

(K) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $220 million but less than or equal to

$235

 

-21-

<PAGE>

 

million, 17% to the Profit Members and 83% to the Class

A Member;

 

(L) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $235 million but less than or equal to

$250 million, 18% to the Profit Members and 82% to the

Class A Member;

 

(M) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $250 million but less than or equal to

$265 million, 19% to the Profit Members and 81% to the

Class A Member; and

 

(N) If and to the extent that total distributions to

the Class A Member pursuant to this Section 4.01(b)

(including any distributions in respect of the LLC's

investment in Half.com and taking into account any

amount being distributed to the Class A Member under

this clause as part of the then-current distribution),

are greater than $265 million, 20% to the Profit

Members and 80% to the Class A Member;

 

provided, however, that if the distributions payable to the Profit Members

pursuant to this clause (iii) in respect of any Investment (or the portion

thereof being distributed) cause the total amount distributed to the Profit

Members in respect of such Investment (or the portion thereof being

distributed), including the Bonus Incentive Fee payable in respect of such

Investment (or portion thereof), to exceed the greater of (X) the amount of the

Bonus Incentive Fee payable in respect of such Investment (or portion thereof)

and (Y) 20% of the sum of the aggregate amount of Net Investment Receipts

distributed or paid with respect to such Investment (or portion thereof)

pursuant to clauses (i) and (iii), then the aggregate amount payable to the

Profit Members in respect of such Investment (or portion thereof) shall be

reduced by the amount of any such excess, and such excess amount shall be

distributed to the Class A Member. Any such reduction shall be deemed to reduce

the amount of the Bonus Incentive Fee, provided that in no event will any such

deemed reduction of the Bonus Incentive Fee be taken into account in calculating

the amounts which are distributable under Section 4.01(b)(iii) in connection

with the particular distribution to which the reduction is applied. The amount

paid to the Class A Member as a result of the reduction of the Bonus Incentive

Fee shall be treated as a distribution to the Class A Member pursuant to Section

4.01(b) for purposes of making subsequent distributions of Net Investment

Receipts. Amounts which are distributable to the Profit Members as a group

pursuant to clause (iii) shall be allocated among the Profit Members in

proportion to their

 

-22-

<PAGE>

 

respective Profit Member Investment Percentage Interests in the Investment (or

portion thereof) generating the Net Investment Receipts on the date the LLC

makes such distribution (unless all Profit Members and Former Profit Members who

have an Investment Percentage Interest in such Investment otherwise unanimously

agree (the Profit Members hereby acknowledging that any such agreement shall not

limit in any way the rights of the Class B Members under Section 8.03)). The

Bonus Incentive Fee is intended to be a fee payable to the Profit Members, and

not an allocation of LLC income.

 

Notwithstanding the foregoing, distributions of Net Investment Receipts

from the LLC's investment in Half.com shall be made in accordance with the

provisions of Exhibit 2, but shall be subject to the provisions of Section 4.02

---------

and all other provisions of this Agreement. The Class A Member hereby

acknowledges that, through the date hereof, it has received aggregate

distributions in respect of the LLC's investment in Half.com in an amount equal

to $77,305,047 (which distributions shall be deemed to have been made under

Section 4.01(b)), and such distributions represent all of the distributions from

the LLC received to date by the Class A Member.

 

(c) Subject to the provisions of Section 9.02(b) below, Other Cash

Receipts shall be distributed 100% to the Class A Member.

 

(d) The Class B Members will use reasonable efforts to cause the LLC

to distribute to each Member in each year the Tax Distribution Amount (as

defined below), which amount shall be treated as an advance against future

distributions to such Member pursuant to Section 4.01(b) above. The Tax

Distribution Amount shall equal an amount which, when added to all distributions

previously made to the Member pursuant to this Section 4.01 (including amounts

held in a Vesting Escrow for the benefit of such Member) from the inception of

the LLC, equals the product of (i) the sum of (X) the Member's allocable share

of the net taxable income of the LLC computed on an aggregate cumulative basis

from the inception of the LLC and (Y) the Member's taxable income in respect of

all Bonus Incentive Fee amounts received by him and (ii) the Applicable Marginal

Rate (as hereinafter defined). The "Applicable Marginal Rate" shall equal the

higher of (x) the highest combined marginal rate (taking into account the nature

of any income or gain (e.g., ordinary income or capital gain)) of federal and

Massachusetts state income tax applicable to individuals for any year since the

inception of the LLC and (y) the highest combined marginal rate (taking into

account the nature of any income or gain (e.g., ordinary income or capital

gain)) of federal and California state income tax applicable to individuals for

any year since the inception of the LLC. Separate Tax Distribution Amounts

(which take into account the nature of any income or gain) shall be computed

with respect to each Investment, and, to the extent practicable, the required

distribution of the Tax Distribution Amount attributable to a particular

Investment for a particular period shall be satisfied by a distribution of Net

Investment Receipts attributable to such Investment.

 

4.02 Vesting Escrow.

--------------

 

(a) Notwithstanding the provisions of Section 4.01 above, the LLC

shall distribute to each Profit Member on the date of any distribution only that

portion of any Net Investment Receipts (excluding payments of the Bonus

Incentive Fee, which shall not be subject to this Section 4.02) to which he is

entitled which is equal to his Vested Percentage of such

 

-23-

<PAGE>

 

amount. Any portion of any distribution which is not distributed as a result of

the operation of this Section 4.02(a) shall be held in escrow by the LLC, in

accordance with this Section 4.02. Any escrow established pursuant to this

Section 4.02 is herein referred to as a "Vesting Escrow." Subject to Section

3.04, if, on the last day of each calendar quarter following the date of the

distribution with respect to any Investment, any Profit Member's Vested

Percentage increases, then a portion of the Vesting Escrow of such Profit Member

(proportionate to the amount of the increase in the Vested Percentage of such

Profit Member) shall be disbursed from such Vesting Escrow to such Profit

Member. If and to the extent that a Member is entitled, pursuant to the

preceding sentence, to receive a disbursement of any amount held in a Vesting

Escrow for such Member, the LLC shall be deemed to be holding such amount as a

nominee for such Member (and accordingly, the tax consequences associated with

any disposition of any such amount shall be borne solely by such Member, and not

by the LLC, and the amount of taxable income or loss, if any, arising as a

result of any such disposition shall be recognized solely by such Member, and

not by the LLC).

 

(b) The interest of the Class A Member shall not be subject to the

provisions of this Section 4.02, and it shall at all times be entitled to

receive 100% of any distributions to Net Investment Receipts allocable to it

pursuant to and in accordance with Section 4.01.

 

(c) Each of the Profit Members hereby agrees and acknowledges that,

as a result of the operation of this Section 4.02, (i) such Profit Member may be

allocated Net Profits and Net Losses of the LLC without corresponding

distributions of Net Investment Receipts; (ii) the Class B Members are

authorized to and may (but shall not be required to) invest amounts that are

held in a Vesting Escrow in Short-Term Investments pending distribution of such

amounts to the Profit Members; (iii) the LLC may hold in a Vesting Escrow

securities which would otherwise have been distributed to such Profit Member,

and the LLC shall be entitled to vote, transfer, sell, assign and exercise all

rights of ownership with respect to all such securities prior to their

distribution to the Profit Members in accordance with this Section 4.02; and

(iv) amounts held in escrow pursuant to this Section 4.02 shall be irrevocably

forfeited by a Profit Member from and after the date of any Event of Forfeiture

with respect to such Profit Member. If any property which is held in escrow

pursuant to this Section 4.02 is sold or otherwise disposed of, the proceeds of

such sale or other disposition shall be substituted in the Vesting Escrow for

such property, and released in accordance with Section 4.02(a) above at the same

time such property would have been released from such Vesting Escrow (and such

cash or property may not be invested without the prior approval of Two-Thirds in

Number of the Class B Members, and such cash shall not be deemed to be Net

Investment Receipts or Other Cash Receipts for purposes of Article IV).

 

(d) Upon the discontinuance of the investing activities of the LLC,

and with the approval of the Class A Member and a Majority in Number of the

Class B Members, the Vested Percentage of each Profit Member shall be increased

to one hundred percent (100%).

 

(e) The LLC may, at the request and on behalf of any Profit Member,

engage in hedging activities with respect to securities held in the Vesting

Escrow of such Profit Member, provided that (i) Two-thirds in Number of the

Class B Members approves in advance any such hedging activities; (ii) the Profit

Member for whose benefit the hedging activities were undertaken bears all of the

costs incurred in connection with such activities and indemnifies the

 

-24-

<PAGE>

 

LLC in writing with respect to any costs or losses incurred by the LLC in

connection with any such activities; and (iii) the securities held in such

Profit Member's Vesting Escrow may not be used to settle any "hedged" position

until such time as such securities are released to such Profit Member from such

Vesting Escrow. The Class B Members, by action of Two-thirds in Number thereof,

may determine to engage in hedging activities with respect to all of the LLC's

securities of a Portfolio Company which are held in Vesting Escrows, in which

case all Profit Members for whom a Vesting Escrow which includes such Portfolio

Company security shall be bound by such hedging arrangements. The Profit Members

agree and acknowledge that, if the LLC has engaged in hedging activities with

respect to securities held in a Vesting Escrow pursuant to and in accordance

with this Section 4.02(e), and an Event of Forfeiture occurs with respect to a

Member whose Vesting Escrow includes such hedged securities, then the Class B

Members who are entitled to a share of the forfeited Vesting Escrow which

includes such "hedged" securities will receive "hedged" securities upon such

forfeiture. In no event shall the Class A Member or the LLC bear any of the

costs associated with any hedging activities permitted by this paragraph.

 

Except as permitted in this Section 4.02(e), the LLC shall not engage in

any other hedging activities except with the prior approval of the Class A

Member.

 

4.03 Certain Payments to the Internal Revenue Service Treated as

-----------------------------------------------------------

Distributions. Notwithstanding anything to the contrary herein, to the extent

-------------

that the LLC is required (as determined in the discretion of the Class B

Members), or elects, pursuant to applicable law, either (i) to pay tax

(including estimated tax) on a Member's allocable share of LLC items of income

or gain, whether or not distributed, or (ii) to withhold and pay over to the tax

authorities any portion of a distribution otherwise distributable to a Member,

the LLC may pay over such tax or such withheld amount to the tax authorities,

and such amount shall be treated as a distribution to such Member at the time it

is paid to the tax authorities. In the event that the amount paid (or paid over)

to the tax authorities on behalf of a Member exceeds the amount that would have

been distributed to such Member absent such tax obligation, such excess shall be

treated as a demand loan from the LLC to such Member, which loan shall bear

interest at the prime rate announced from time to time by The Wall Street

Journal, until paid in full.

 

4.04 Distributions in Kind. A Member, regardless of the nature of his

---------------------

contribution to the LLC, shall have no right to demand or receive any

distribution from the LLC in any form other than cash. The LLC may, at any time

and from time to time, make distributions in kind to the Members. Any Member

entitled to any interest in such assets shall, unless otherwise determined by

the Members, receive separate assets of the LLC and not an interest as a tenant-

in-common with other Members so entitled in any asset being distributed.

 

-25-

<PAGE>

 

ARTICLE V

ALLOCATION OF PROFITS AND LOSSES

 

5.01 Basic Allocations.

-----------------

 

(a) For each fiscal year (or shorter fiscal period for which an

allocation of income, loss, gain, or deduction is to be made), Net Profits

Attributable to Other Cash Receipts shall be allocated to the Class A Member.

 

(b) Net Profits and Net Losses of the LLC for any fiscal period

shall be allocated among the Members in such proportions and in such amounts as

may be necessary so that following such allocations, the Capital Account balance

of each Member equals such Member's then Target Balance.

 

(c) If the amount of Net Profits or Net Losses allocable to the

Members pursuant to Section 5.01(b) for a period is insufficient to allow the

Capital Account balance of each Member to equal such Member's Target Balance,

such Net Profits or Net Losses shall be allocated among the Members in such a

manner as to decrease the differences between the Members' respective Capital

Account balances and their respective Target Balances in proportion to such

differences.

 

(d) Notwithstanding Section 5.01(a) above, Net Profits and Net

Losses attributable to any assets held in a Vesting Escrow shall be specially

allocated to the Profit Member to whom such Vesting Escrow relates.

 

(e) Allocations of Net Profits and Net Losses provided for in this

Section 5.01 shall generally be made as of the end of the fiscal year of the

LLC; provided, however, that allocations of items of Net Profits and Net Losses

-------- -------

described in clause (vii) of the definition of "Net Profits" and "Net Losses"

shall be made at the time deemed realized as described in the definition of

"Capital Account."

 

5.02 Allocations of Nonrecourse Deductions and Minimum Gain.

------------------------------------------------------

Notwithstanding the provisions of Section 5.01, if at any time the LLC incurs

any "nonrecourse debt" (i.e. debt that is treated as nonrecourse for purposes of

Treasury Regulation Section 1.1001-2), the following provisions will apply

notwithstanding anything to the contrary expressed elsewhere in this Agreement:

 

(a) "Nonrecourse deductions" (as defined in Treasury Regulation

Sections 1.704-2(b) and (c)) other than deductions attributable to "partner

nonrecourse debt" (as defined in Treasury Regulation Section 1.704-2(b)(4))

shall be allocated in the same manner as are Net Profits or Net Losses;

 

(b) Nonrecourse deductions attributable to partner nonrecourse debt

shall be specially allocated to the Member or Members that bear the economic

risk of loss associated with the debt;

 

(c) If in any year there is a net decrease in "partnership minimum

gain" (as defined in Treasury Regulation Section 1.704-2(d)) or "partner

nonrecourse debt minimum gain"

 

-26-

<PAGE>

 

(as defined in Treasury Regulation Section 1.704-2(i)(3), Members will be

specially allocated items of income or gain for such year (and/or subsequent

years to the extent necessary) in accordance with the "minimum gain chargeback"

provisions of Treasury Regulation Section 1.704-2(f) and/or Treasury Regulation

Section 1.704-2(i)(5).

 

(d) The aggregate selling price of the assets of the LLC referenced

in clause (A) of the definition of "Target Balance" shall be increased by the

amount of any "partnership minimum gain" or "partner nonrecourse debt minimum

gain."

 

5.03 Overriding Allocations of Net Profits and Net Losses. Notwithstanding

----------------------------------------------------

the provisions of Section 5.01 above, but subject to the provisions of Section

5.02 above, the following allocations shall be made:

 

(a) Items of income or gain (computed with the adjustments contained

in the definition of "Net Profits and Net Losses") for any taxable period shall

be allocated to the Members in the manner and to the extent required by the

"qualified income offset" provisions of Treasury Regulation Section 1.704-

1(b)(2)(ii)(d).

 

(b) In no event shall Net Losses of the LLC be allocated to a Member

if such allocation would cause or increase a negative balance in such Member's

Capital Account (determined for purposes of this Section 5.03(b) only, by

increasing the Member's Capital Account balance by (i) the amount the Member is

obligated to restore to the LLC pursuant to Treasury Regulation Section 1.704-

1(b)(2)(ii)(c) and (ii) such Member's share of "minimum gain" and of "partner

nonrecourse debt minimum gain" as determined pursuant to Treasury Regulation

Sections 1.704-2(g) and 1.704-2(i)(5), respectively).

 

(c) Except as otherwise provided herein or as required by Code

Section 704, for tax purposes, all items of income, gain, loss, deduction or

credit shall be allocated to the Members in the same manner as are Net Profits

and Net Losses; provided, however, that if the Carrying Value of any property of

-------- -------

the LLC differs from its adjusted basis for tax purposes, then items of income,

gain, loss, deduction or credit related to such property for tax purposes shall

be allocated among the Members so as to take account of the variation between

the adjusted basis of the property for tax purposes and its Carrying Value in

the manner provided for under Code Section 704(c).

 

5.04 Allocations Upon Transfer or Admission. In the event that a Member

--------------------------------------

acquires an interest in the LLC either by transfer from another Member or by

acquisition from the LLC, the LLC shall close its books as of the date of the

acquisition and Net Profits, Net Losses and similar items computed for the

portion of the year ending on the date of the acquisition shall be allocated

among the Members without regard to such acquisition, and Net Profits, Net

Losses and similar items computed for the portion of the year commencing on the

day following the date of the acquisition shall be allocated among the Members

taking into account such acquisition. For purposes of this Section 5.04, any

modifications to a Profit Member's Profit Member Percentage Interest or Profit

Member Investment Percentage Interest for any Investment, shall be treated as if

a Member acquired or disposed of (as applicable) an interest in the LLC.

 

-27-

<PAGE>

 

ARTICLE VI

MANAGEMENT

 

6.01 Management of the LLC.

---------------------

 

(a) Subject to the provisions of this Agreement and the Act, all

powers shall be exercised by or under the authority of, and the business and

affairs of the LLC shall be controlled by the Members.

 

(b) Except to the extent that this Agreement specifically provides

for a higher or lower number or percentage of Members, all decisions respecting

any matter set forth herein or otherwise affecting or arising out of the conduct

of the business of the LLC, and all actions required to be taken "by the Class B

Members" hereunder, shall be made by action of a Majority in Number of the Class

B Members; provided that, Class B Members with respect to whom an Event of

Forfeiture has occurred shall have no right to vote on or participate in any

matter or decision to be made by the Class B Members and shall be disregarded

for all purposes in determining the number of Class B Members which constitute a

Majority in Number of the Class B Members. The Class C Members shall have no

right to vote on or participate in any matter or decision or to otherwise manage

the business of the LLC, except to the extent expressly provided in this

Agreement.

 

(c) Subject to the foregoing, the Class B Members shall have the

exclusive right and full authority to manage, conduct and operate the LLC

business. Specifically, but not by way of limitation, the Class B Members (by

action of such Majority in Number) shall be authorized, for and on behalf of the

LLC:

 

(i) to borrow money, to issue evidences of indebtedness and to

guarantee the debts of others for whatever purposes they may specify, and, as

security therefor, to pledge or otherwise encumber the assets of the LLC;

 

(ii) to cause to be paid on or before the due date thereof all

amounts due and payable by the LLC to any person or entity;

 

(iii) to employ such agents, employees, managers, accountants,

attorneys, consultants and other persons necessary or appropriate to carry out

the business and affairs of the LLC, whether or not any such persons so employed

are Members or are affiliated or related to any Member, and to pay such fees,

expenses, salaries, wages and other compensation to such persons as the Members

shall in their sole discretion determine;

 

(iv) to pay, extend, renew, modify, adjust, submit to

arbitration, prosecute, defend or compromise, upon such terms as they may

determine and upon such evidence as they may deem sufficient, any obligation,

suit, liability, cause of action or claim, including taxes, either in favor of

or against the LLC;

 

(v) to pay any and all fees and to make any and all

expenditures which the Class B Members, in their discretion, deem necessary or

appropriate in connection with the organization of the LLC, and the carrying out

of its obligations and responsibilities under this or any other Agreement;

 

-28-

<PAGE>

 

(vi) to invest the assets of the LLC, and to lease, sell,

finance, refinance or dispose of all or any portion of the LLC's property;

 

(vii) to cause the LLC to make or revoke any of the elections

referred to in Sections 108, 704, 709, 754 or 1017 of the Code or any similar

provisions enacted in lieu thereof, or in any other Section of the Code;

 

(viii) to establish and maintain reserves for such purposes and

in such amounts as they deem appropriate from time to time;

 

(ix) to pay all organizational expenses and general and

administrative expenses of the LLC;

 

(x) to deal with, or otherwise engage in business with, or

provide services to and receive compensation therefor from, any person who has

provided or may in the future provide any services to, lend money to, sell

property to, or purchase property from the LLC, including without limitation, a

Member;

 

(xi) to engage in any kind of activity and to perform and carry

out contracts of any kind necessary to, or in connection with, or incidental to

the accomplishment of the purposes of the LLC;

 

(xii) to cause to be paid any and all taxes, charges and

assessments that may be levied, assessed or imposed upon any of the assets of

the LLC, unless the same are contested by the Class B Members;

 

(xiii) to exercise all powers and authority granted by the Act to

members, except as otherwise specifically provided in this Agreement; and

 

(xiv) to exercise all other rights, powers, privileges and other

incidents of ownership with respect to the interest of the LLC in each Portfolio

Company.

 

(d) Notwithstanding the foregoing, the Class B Members shall not be

authorized to take any of the following actions without the prior approval of

the Class A Member:

 

(i) to do any act that is in contravention of this Agreement

or that is not consistent with the purposes of the LLC;

 

(ii) to do any act that would make it impossible to carry on

the ordinary business of the LLC;

 

(iii) to make any Investment, including a Follow-on Investment,

or to guarantee the obligations of any Portfolio Company;

 

(iv) to invest more than $100 million in the securities of any

one issuer;

 

-29-

<PAGE>

 

(v) to incur expenses in amounts or for purposes which are not

consistent with the provisions of the then applicable Budget; or

 

(vi) to take any other action which requires the consent or

approval of the Class A Member pursuant to this Agreement.

 

Other than as set forth in this Section 6.01(d), the Class A Member shall not

participate in the management or control of the LLC and shall have no authority

to act for or bind the LLC.

 

(e) Any Class B Member is authorized to execute, deliver and file on

behalf of the LLC any documents to be filed with the Secretary of State of the

State of Delaware. The signature of one Class B Member on any agreement,

contract, instrument or other document shall be sufficient to bind the LLC in

respect thereof and conclusively evidence the authority of such Class B Member

and the LLC with respect thereto, and no third party need look to any other

evidence or require the joinder or consent of any other party.

 

(f) Each Class B Member (other than a Former Profit Member) is

authorized to use the title "Managing Director" when acting on behalf of the LLC

in the conduct of the LLC's business. The Class B Members may at any time and

from time to time establish offices of the LLC, and elect officers thereto. Such

officers may have such titles as the Class B Members may designate, including

without limitation, "Managing Partner," "Partner" and "Associate." Such officers

may, but shall not be required to be, Members of the LLC. In connection with the

establishment of any office or title, the Class B Members shall determine the

authority associated with such office and title. Any officer, or person holding

any title, elected or designated in accordance with this Section 6.01(f) may be

removed from such office at any time, with or without cause, by the Class B

Members. If an Event of Forfeiture occurs with respect to any Member at any time

at which such Member is serving as an officer of the LLC, such Member shall

automatically, and without any action on the part of such Member or the LLC, be

deemed to have resigned from all offices of the LLC which such Member then

holds. If any officer or other titleholder is not a party to this Agreement, the

Class B Members may extend to such person rights to indemnification from the

LLC, on terms not more favorable than those provided to the Members in Section

6.04.

 

(g) The Class B Members, by action of Two-thirds in Number of the

Class B Members exclusive of any Class B Member (if applicable) as to whom the

determination is being made, shall determine whether or not "Cause" is present

in connection with the termination of the relationship of a Profit Member with

the LLC. Any such determination (whether in connection with a termination of

relationship by the LLC or by the Profit Member) shall be made only after a

hearing to consider the matter. Any such hearing shall be held only after

written notice has been given to all Members, including the Profit Member

proposed to be terminated or the Profit Member who has terminated the

relationship, as the case may be. (If the determination is to be made after the

-----

termination of the relationship with the LLC by the Profit Member, such hearing

must be held not later than 60 days after the later to occur of (x) the

effective date of the termination or (y) the date the LLC is notified by the

Profit Member of the termination.) Such notice must be given not less than 10

days prior to such hearing, and must specify the time and place at which the

hearing will be held, and a general statement of the nature of the charges

against the Profit Member which is the subject of the determination. At such

hearing, the Profit

 

-30-

<PAGE>

 

Member who is the subject of the hearing will have an opportunity to respond to

the charges constituting Cause. None of the Members (including the Profit Member

who is the subject of the hearing), may be represented at such hearing by

counsel or other representatives. At the time any such notice is given, or any

time thereafter, but prior to a decision of Two-thirds in Number of the Class B

Members following the hearing, Two-thirds in Number of the Class B Members

(exclusive of the Member proposed to be terminated, if a Class B Member) may

immediately relieve the Profit Member proposed to be terminated of his or her

duties and responsibilities hereunder pending a decision.

 

6.02 Tax Matters Partner. CMG @Ventures Capital Corp. shall be the tax

-------------------

matters partner for the LLC pursuant to Code Sections 6221 through 6231.

 

6.03 Liability of the Members; Exculpation.

-------------------------------------

 

(a) No Member shall be liable to the LLC or any other Member for any

act or omission taken by the Member in good faith and in a manner reasonably

believed to be within the scope of the authority conferred on the Member by this

Agreement; provided that such act or omission is not in violation of this

Agreement and does not constitute gross negligence, willful misconduct, fraud or

a willful violation of law by the Member. No Member shall be liable to the LLC

or any other Member for any action taken by any other Member, nor shall any

Member (in the absence of gross negligence, willful misconduct, fraud or a

willful violation of law by the Member) be liable to the LLC or any other Member

for any action of any employee or agent of the LLC provided that the Member

shall have exercised appropriate care in the selection and supervision of such

employee or agent.

 

(b) Except as otherwise provided by the Act, the debts, obligations

and liabilities of the LLC, whether arising in contract, tort or otherwise,

shall be solely the debts, obligations and liabilities of the LLC, and no Member

shall be obligated personally for any such debt, obligation or liability of the

LLC solely by reason of being a Member.

 

(c) The liability of the Members for the losses, debts and

obligations of the LLC shall be further limited to their capital contributions;

provided, however, that under applicable law, the Members may under certain

circumstances be liable to the LLC to the extent of previous distributions made

to them in the event that the LLC does not have sufficient assets to discharge

its liabilities.

 

(d) A Member shall be fully protected in relying in good faith upon

the records of the LLC and upon such information, opinions, reports or

statements presented to the Member by any third party professional as to matters

the Member reasonably believes are within such third party's professional or

expert competence.

 

6.04 Indemnification

---------------

 

(a) Each Member and its respective partners, agents, employees and

Affiliates (the "Indemnitees") shall be and hereby are (i) indemnified and held

harmless by the LLC and (ii) released by the other Members from and against any

and all claims, demands, liabilities, costs, expenses, damages, losses, suits,

proceedings and actions for which such Indemnitee has not otherwise been

reimbursed (collectively, "Liabilities"), whether judicial, administrative,

 

-31-

<PAGE>

 

investigative or otherwise, of any nature whatsoever, known or unknown,

liquidated or unliquidated, that may accrue to the LLC or any other Member or in

which any of the Indemnitees may become involved, as a party or otherwise,

arising out of the conduct of the business or affairs of the LLC by the

respective Indemnitee or otherwise relating to this Agreement, including without

limitation, in connection with the Indemnitee's service at the request or with

the authorization of the Class B Members as a board member, officer or employee

of any Portfolio Company, provided that an Indemnitee shall not be entitled to

indemnification or release hereunder if it shall have been determined by (i) in

the case of the Class A Member or an Indemnitee claiming by or through the Class

A Member, it has been finally adjudicated by a court of competent jurisdiction,

or (ii) in the case of any Profit Member or an Indemnitee claiming by or through

the Profit Member, by the Class A Member, that (x) such person did not act in

good faith and in a manner such person reasonably believed to be in the best

interests of the LLC and, in the case of a criminal proceeding, had reasonable

cause to believe that its conduct was unlawful, or (y) such Liabilities shall

have arisen from a violation of this Agreement or the gross negligence, willful

misconduct, fraud or willful violation of law by such Indemnitee, or actions of

such Indemnitee outside the scope of and unauthorized by this Agreement.

 

 

(b) Promptly after receipt by any Member from any third party of

notice of any demand, claim or circumstance that would reasonably be expected to

give rise to a claim or the commencement (or threatened commencement) of any

action, proceeding or investigation (an "Asserted Liability") that could

reasonably be expected to result in any loss, damage or claim with respect to

which the Member might be entitled to indemnification from the LLC under Section

6.04(a), the Member shall give notice thereof (the "Claims Notice") to the LLC;

provided, however, that a failure to give such notice shall not prejudice the

Member's right to indemnification hereunder except to the extent that the LLC is

actually prejudiced thereby. The Claims Notice shall describe the Asserted

Liability in such reasonable detail as is practicable under the circumstances,

and shall, to the extent practicable under the circumstances, indicate the

amount (estimated, if necessary) of the loss or damage that has been or may be

suffered by the Member.

 

(c) The LLC may elect to compromise or defend, at its own expense and

by its own counsel, any Asserted Liability; provided, however, that if the named

parties to any action or proceeding include (or could reasonably be expected to

include) both the LLC and a Member, or more than one Member, and the LLC is

advised by counsel that representation of both parties by the same counsel would

be inappropriate under applicable standards of professional conduct, the Member

may engage separate counsel at the expense of the LLC (subject to the Member's

obligation to reimburse the LLC if it is ultimately determined that the Member

is not entitled to indemnification in accordance with this Section 6.04). If the

LLC elects to compromise or defend such Asserted Liability, it shall within

twenty (20) business days (or sooner, if the nature of the Asserted Liability so

requires) notify the Member of its intent to do so, and the Member shall

cooperate, at the expense of the LLC, in the compromise of, or defense against,

such Asserted Liability. If the LLC elects not to compromise or defend such

Asserted Liability, fails to notify the Member of its election as herein

provided, contests its obligation to provide indemnification under this

Agreement, or fails to make or ceases making a good faith and diligent defense,

the Member may defend, compromise or pay such Asserted Liability in accordance

with the provisions of Section 6.04(d) below. Except as set forth in the

 

-32-

<PAGE>

 

preceding sentence, neither the LLC nor the Class B Members may settle or

compromise any claim against a Member over the objection of such Member;

provided, however, that consent to settlement or compromise shall not be

unreasonably withheld. In any event, the LLC and the Member may participate at

their own expense, in the defense of such Asserted Liability. If the Member

chooses to defend any claim, the Member shall make available to the LLC any

books, records or other documents within its control that are necessary or

appropriate for such defense, all at the expense of the LLC.

 

(d) If the LLC elects not to compromise or defend an Asserted

Liability, or fails to notify the Member of its election as herein provided,

contests its obligation to provide indemnification, or fails to make or ceases

making a good faith and diligent defense, then the Member shall be entitled to

assume the defense and all expenses (including legal fees) incurred by a Member

in defending any Asserted Liability shall promptly be advanced by the LLC prior

to the final disposition of such claim, demand, action, suit or proceeding

following receipt by the LLC of an undertaking by or on behalf of the Member to

repay such amount if it shall be determined that the Member is not entitled to

be indemnified as authorized in Section 6.04(a) hereof.

 

(e) The termination of any proceeding by settlement shall not, of

itself, create a presumption that the Indemnitee did not act in good faith and

in a manner that such person reasonably believed to be in the best interests of

the LLC or that the Indemnitee did not have reasonable cause to believe that its

conduct was lawful.

 

(f) The right of indemnification hereby provided shall not be

exclusive of, and shall not affect, any other rights to which a Member may be

entitled. Nothing contained in this Section 6.04 shall limit any lawful rights

to indemnification existing independently of this Section. The obligations of

the LLC under this Section 6.04 shall be satisfied only after any applicable

insurance proceeds have been exhausted and then only out of LLC assets and, to

the extent required by law, distributions made by the LLC to the Members, and,

subject to Section 6.04(h) below, the Members shall otherwise have no personal

liability to fund any indemnification payment hereunder.

 

(g) The indemnification rights provided by this Section 6.04 shall

also inure to the benefit of the heirs, executors, administrators, successors

and assigns of a Member and any officers, directors, partners, members,

shareholders, employees and Affiliates of such Member (and any former officer,

director, partner, member, shareholder or employee of such Member, if the loss,

damage or claim was incurred while such person was an officer, director,

partner, member, shareholder or employee of such Member). The Class B Members or

the LLC may extend the indemnification called for by Section 6.04 to non-

employee agents of the LLC.

 

(h) Notwithstanding any provision of this Agreement, including

Section 3.01, to the contrary, as and when the LLC requires funds to discharge

any indemnification obligation under this Section 6.04, if funds of the LLC are

not otherwise available therefor, the Class A Member shall contribute the amount

required within 10 business days after receipt of notice from the Class B

Members of the amount required and the nature of the liability (which notice may

be given in writing or by electronic mail).

 

-33-

<PAGE>

 

6.05 Budget; Certain Fees and Expenses.

---------------------------------

 

(a) On or before June 1 of each year, the Class B Members shall

prepare and submit to the Class A Member for its consideration a budget (herein

referred to as the "Budget"), setting forth the estimated expenditures (capital,

operating, and other) of the LLC for the 12-month period covered by the Budget

(which shall be the 12 months commencing on the next succeeding August 1). If

the Class A Member does not, within 90 days after receipt of the proposed

Budget, indicate that it disapproves of all or any portion of the proposed

Budget, then such budget shall be deemed to have been approved. When approved by

the Class A Member, the Class B Members shall be authorized to implement the

Budget and shall be authorized, without the need for further approval by the

Class A Member, to make the expenditures and incur the obligations provided for

in the Budget, in the name and on behalf of the LLC, and shall be authorized to

call for contributions of capital to the LLC from the Class A Member in

accordance with Section 3.01(b) in order to finance the operations of the LLC

during the period covered by the Budget, provided that the Class A Member shall

not, in any event, be required to contribute capital to the LLC pursuant to and

in accordance with Section 3.01(b)(i) unless it has approved the Investment for

which such capital is being called. Any Budget may be amended during any year

with the approval of the Class B Members and the Class A Member.

 

If the Class A Member does not approve the proposed Budget for any fiscal

year of the LLC, the Class B Members and the Class A Member shall negotiate in

good faith to resolve the disagreement. Prior to the date on which such

disagreement has been resolved, the Class B Members shall implement during such

period the operating (but not the capital) Budget adopted for the comparable

portion of the preceding fiscal year, and shall be authorized, without the need

for further approval by the Class A Member, to make the operating (but not

capital) expenditures and incur ordinary (non-Investment) obligations in the

amounts provided for in such prior year's Budget, in the name and on behalf of

the LLC, and to call for contributions of capital to the LLC from the Class A

Member in accordance with Section 3.01(b)(ii) in order to finance the operations

of the LLC in accordance with such prior year's Budget.

 

(b) All out-of-pocket expenses reasonably incurred by any Member in

connection with the LLC's business (including an allocable share of certain

overhead and similar expenses of the Class A Member) shall be paid by the LLC or

reimbursed to the Member by the LLC.

 

6.06 Other Activities.

----------------

 

(a) Subject to Sections 6.06(b) and (c) and Section 6.07 below, the

Members and their respective Affiliates may engage in and possess interests in

other business ventures and investment opportunities of every kind and

description, independently or with others, including serving as directors,

officers, stockholders, managers, members and general or limited partners of

corporations, partnerships or other limited liability companies with purposes

similar to or the same as those of the LLC. Neither the LLC nor any other Member

shall have any rights in or to such ventures or opportunities or the income or

profits therefrom. Each Profit Member shall be required to pay over to the LLC

any cash or non-cash compensation or remuneration to which such Profit Member

becomes entitled from any Portfolio Company for services rendered to such

 

-34-

<PAGE>

 

Portfolio Company (or, in the case of options or similar compensation, to hold

the same as nominee for the LLC).

 

(b) Each Profit Member agrees that (I) during his or her employment

by the Employer, and (II) for a period of 18 months following termination of his

or her employment relationship with the Employer if such employment is

terminated: (A) by the Profit Member voluntarily, or (B) by the Employer for

Cause, such Profit Member will not, directly or indirectly:

 

(x) recruit, solicit or induce, or attempt to induce, any

employee of the Employer or of any Portfolio Company or of any Affiliate of

any of them to terminate his or her employment with, or otherwise cease any

relationship with, the Employer or any Portfolio Company or any Affiliate

of any of them; or

 

(y) solicit, divert, take away, or attempt to divert or take

away, any investment opportunity with respect to any Portfolio Company or

any investment opportunity with respect to any prospective investment or

prospective portfolio company which the LLC contacted or solicited during

such Member's employment relationship with the Employer.

 

If any restriction set forth herein is found by any court to be unenforceable

because it extends for too long a period of time, or over too great a range of

activities, or over too broad a geographic area, the restriction shall be

interpreted to extend only over the maximum period of time, range of activities,

or geographic area which the court finds to be enforceable. Each Profit Member

acknowledges and agrees that the restrictions contained in this Section 6.06(b)

are necessary for the protection of the business and goodwill of the Employer,

the Portfolio Companies and the Affiliates of any of them and are considered by

such Profit Member to be reasonable for such purpose and that his or her

interest in the LLC is being received partly in consideration for the foregoing

covenant.

 

(c) Each Profit Member agrees that during his or her employment by

the Employer, he or she shall not invest in any Qualified Investment Opportunity

(as hereinafter defined) which is made available to him or her unless such

Profit Member has notified the LLC of such opportunity (which notice may be

given orally) and the LLC has elected not to undertake such Qualified Investment

Opportunity. If, within 14 days following the notice from the Profit Member to

the LLC of such opportunity, the LLC fails to notify the Profit Member that it

has determined to undertake such opportunity, the LLC shall be deemed to have

elected not to undertake such opportunity. As used herein, a "Qualified

Investment Opportunity" shall mean an investment which is suitable for the LLC,

the total offered participation of which is $100,000 or more.

 

(d) Section 6.06(b) shall terminate upon the occurrence of either of

the Vesting Events described in clauses (v) or (vi) of the definition of the

term Vesting Event.

 

6.07 Commitment of Members. Each of the Profit Members hereby agrees to

---------------------

use its best efforts in connection with the purposes and objectives of the LLC

and to devote to such purposes and objectives such of its business time and

resources as shall be necessary for the

 

-35-

<PAGE>

 

management of the affairs of the LLC. Subject to the foregoing, if any Profit

Member serves as a member of the board of directors (or in a similar capacity)

of any company other than a Portfolio Company (or a company in which the Class A

Member, CMGI or any investment vehicle affiliated with or sponsored by CMGI has

invested), then such Profit Member shall be required to provide written notice

to the LLC that the Profit Member is serving in such capacity.

 

6.08 Conflicts of Interest. No contract or transaction between the LLC

---------------------

and one or more of its Members or Affiliates, or between the LLC and any other

corporation, partnership association or other organization in which one or more

of its Members or Affiliates are directors, officers, members, managers or

partners or have a financial interest, shall be void or voidable solely for such

reason, or solely because the Member or Affiliate is present at or participates

in any meeting of Class B Members which authorizes the contract or transaction,

or solely because his, her or its votes are counted for such purpose, if:

 

(i) the material facts as to his, her or its interest as to

the contract or transaction are disclosed or are known to the Members entitled

to authorize such a contract or transaction and such Members thereafter

authorize the contract or transaction by a vote sufficient for such purpose

without counting the vote of any interested Member even though the disinterested

Members may be less than a majority in number of the Members entitled to vote

thereon; or

 

(ii) the material facts as to his, her or its interest and as

to the contract or transaction are disclosed or are known to the Members

entitled to vote thereon, and the contract or transaction is specifically

approved by a vote of such Members; and

 

(iii) in the case of (i) or (ii), the contract or transaction is

fair to the LLC or its Affiliates as of the time it is authorized, approved or

ratified by the Members entitled to vote thereon.

 

6.09 Valuation of Investments.

------------------------

 

(a) Subject to the provisions of Section 8.04, whenever valuation of

the LLC's net worth or any particular asset of the LLC is required by this

Agreement, the Class B Members shall, as of a reasonable valuation date

established by them, make a good faith determination of the "fair value" of all

noncash assets of the LLC (if net worth is to be evaluated) or of such

particular asset. Such determination of "fair value" with respect to any

investment shall be based upon all relevant factors, including, without

limitation, type of security, marketability, liquidity, restrictions on

disposition, recent purchases of the same or similar securities by other

investors, pending mergers or acquisitions, current financial position and

operating results, and risks and potential of the security.

 

(b) The fair value of any publicly-traded securities owned by the

LLC and which are not subject to any restrictions on transfer (including volume

limitations) under applicable state and federal securities laws or any

contractual arrangements to which the LLC is a party ("Liquid Securities") shall

be equal to the average of: (i) if applicable, the median of the "bid" and

"asked" prices for such securities in the market on which such securities are

regularly traded; or (ii) if applicable, the closing price on the market on

which such securities are regularly

 

-36-

<PAGE>

 

traded; in each case, on the ten trading days immediately preceding the date of

valuation of such securities.

 

(c) Subject to the foregoing and to the provisions of Section 8.04,

any determination of LLC net worth or of the value of a particular asset

required by this Agreement to be made pursuant to this Section 6.09 shall be

made in accordance with generally accepted accounting principles, as from time

to time applicable to the LLC or similar entities; provided, however, that no

-------- -------

value whatsoever shall be assigned to the LLC name and goodwill or to the office

records, files, statistical data or any similar intangible assets of the LLC not

normally reflected in the LLC's accounting records; and provided further, that

liabilities of the LLC shall be taken in the amounts at which they are carried

on the books of the LLC and reasonable provision shall be made for contingent or

other liabilities not reflected on such books and, in the case of valuation in

connection with the liquidation of the LLC, for the expenses (to be borne by the

LLC) of the liquidation and winding up of the LLC's affairs.

 

(d) It is understood by the Members that some or all of the

investments of the LLC may have no readily ascertainable market value and that,

in all cases, the Class B Members are given a wide range of discretion in

determining such values.

 

ARTICLE VII

BOOKS, RECORDS AND BANK ACCOUNTS

 

7.01 Books and Records. The Class B Members shall keep or cause to be kept

-----------------

just and true books of account with respect to the operations of the LLC. Such

books shall be maintained at the LLC's principal place of business, or at such

other place as the Class B Members, with the consent of the Class A Member,

shall determine, and all Members, and their duly authorized representatives,

shall at all reasonable times have access to such books as well as any

information required to be made available to the Members under the Act. The

Class B Members shall not be required to deliver or mail copies of the LLC's

Certificate of Formation or copies of certificates of amendment thereto or

cancellation thereof to the Members, although such documents shall be available

for review and/or copying by the Members at the LLC's principal place of

business.

 

7.02 Accounting Basis and Fiscal Year. The LLC's books shall be kept on

--------------------------------

the accrual method of accounting, or on such other method of accounting as the

Class B Members may from time to time determine, and shall be closed and

balanced at the end of each fiscal year of the LLC. The fiscal year of the LLC

shall be the 12-month period ending on July 31 of each year.

 

7.03 Bank Accounts. The Class B Members shall be responsible for causing

-------------

one or more accounts to be maintained in a bank (or banks), which accounts shall

be used for the payment of the expenditures incurred by the Class B Members in

connection with the business of the LLC, and in which shall be deposited any and

all cash receipts of the LLC. All deposits and funds not needed for the

operations of the LLC may be invested in such short-term investments as the

Class B Members may determine. All such amounts shall be and remain the property

of the LLC, and shall be received, held and disbursed by the Class B Members for

the purposes specified in this Agreement. There shall not be deposited in any of

said accounts any funds other

 

-37-

<PAGE>

 

than funds belonging to the LLC, and no other funds shall in any way be

commingled with such funds.

 

7.04 Reports to Members. Within 90 days after the end of each LLC fiscal

------------------

year, the Class B Members shall cause the LLC to furnish to each Member (i) such

information as may be needed to enable the Members to file their federal income

tax returns and any required state income tax returns, and (ii) an unaudited

balance sheet of the LLC as of the last day of such fiscal year, and unaudited

financial statements of the LLC for such fiscal year. The cost of such reporting

shall be paid by the LLC as a LLC expense. Any Member may, at any time, at its

own expense, cause an audit of the LLC books to be made by a certified public

accountant of its own selection. All expenses incurred by such accountant shall

be borne by such Member.

 

ARTICLE VIII

TRANSFERS OF INTERESTS OF MEMBERS

 

8.01 Substitution and Assignment of Member's Interest.

------------------------------------------------

 

(a) Subject to Section 8.01(b) below, no Profit Member may sell,

transfer, assign, pledge, hypothecate or otherwise dispose of all or any part of

its interest in the LLC (whether voluntarily, involuntarily or by operation of

law), unless (i) the Class A Member and (ii) Two-thirds in Number of the Class B

Members (exclusive of the transferor) shall have previously consented to such

transfer, assignment, pledge, hypothecation or disposition in writing, the

granting or denying of which consent shall be in such Members' absolute

discretion. Subject to Section 8.01(b) below, the provisions of this Section

8.01(a) shall not be applicable to any assignment of the interest of a Profit

Member to a Permitted Transferee (provided that no such Permitted Transferee may

be admitted to the LLC as a substitute Member except as provided in Section

8.01(c) below). Subject to Sections 8.01(b) and 8.04 below, the Class A Member

may sell, transfer, assign, pledge, hypothecate or otherwise dispose of all or

any part of its interest in the LLC without the consent or approval of any other

Member, provided that the transferee of any such interest may not be admitted to

the LLC as a substitute Member except as provided in Section 8.01(c) below.

 

(b) No assignment of the interest of a Member shall be made if, in

the opinion of counsel to the LLC, such assignment (i) may not be effected

without registration under the Securities Act of 1933, as amended, (ii) would

result in the violation of any applicable state securities laws, (iii) would

result in a termination of the LLC under Section 708 of the Code, unless such a

transfer is consented to by (i) the Class A Member and (ii) Two-thirds in Number

of the Class B Members, (iv) would result in the treatment of the LLC as an

association taxable as a corporation or as a "publicly-traded limited

partnership" for tax purposes, unless such a transfer is consented to by all

Class A and Class B Members or (v) would require the LLC to register as an

investment company under the Investment Company Act of 1940, as amended, or as

an investment advisor under the Investment Advisors Act of 1940, as amended. The

LLC shall not be required to recognize any assignment until the instrument

conveying such interest has been delivered to the LLC for recordation on the

books of the LLC. Unless an assignee becomes a substituted Member in accordance

with the provisions of Section 8.01(c), it shall not be entitled to any of the

rights granted to a Member hereunder, other than the right to receive all

 

-38-

<PAGE>

 

or part of the share of the Net Profits, Net Losses, distributions of cash or

property or returns of capital to which his assignor would otherwise be

entitled.

 

(c) An assignee of the interest of a Member, or any portion thereof,

shall become a substituted Member entitled to all the rights of a Member if, and

only if:

(i) the assignor gives the assignee such right;

 

(ii) in the case of an assignee of a Profit Member, the Class A

Member and Two-thirds in Number of the Class B Members (exclusive of the

assignor) consent to such substitution, the granting or denying of which consent

shall be in the other Members' absolute discretion;

 

(iii) in the case of an assignee of the Class A Member, a

Majority in Number of the Class B Members consent to such substitution, the

granting or denying of which consent shall be in the Class B Members' absolute

discretion, except that, in the case of a transfer of all or substantially all

of the business or assets of CMGI (by sale of assets, sale of stock, merger or

otherwise), including its indirect interest in the LLC, no such consent of the

Class B Members shall be required;

 

(iv) the assignee or the assignor pays to the LLC all costs and

expenses incurred in connection with such substitution, including specifically,

without limitation, costs incurred in the review and processing of the

assignment and in amending this Agreement; and

 

(v) the assignee executes and delivers such instruments, in

form and substance satisfactory to the LLC, as may be necessary or desirable to

effect such substitution and to confirm the agreement of the assignee to be

bound by all of the terms and provisions of this Agreement.

 

(d) The LLC and the Members shall be entitled to treat the record

owner of any interest in the LLC as the absolute owner thereof in all respects,

and shall incur no liability for distributions of cash or other property made in

good faith to such owner until such time as a written assignment of such

interest has been received and accepted by the Class B Members and recorded on

the books of the LLC. The Class B Members may refuse to accept an assignment

until the end of the next successive quarterly accounting period. In no event

shall any interest in the LLC, or any portion thereof, be sold, transferred or

assigned to a minor or incompetent, and any such attempted sale, transfer or

assignment shall be void and ineffectual and shall not bind the LLC.

 

(e) If a Member who is an individual dies or a court of competent

jurisdiction adjudges him to be incompetent to manage his person or his

property, the Member's executor, administrator, guardian, conservator or other

legal representative may exercise all of the Member's rights hereunder, but

solely for the purpose of settling his estate or administering his property, and

in no event shall such executor, administrator, guardian, conservator or legal

representative participate in any way in the conduct of the business of the LLC,

or in the making of any decision or the taking of any action provided for

hereunder (including without limitation, Section 6.01(a) or (b)) for any other

purpose. If a Member is a corporation, trust or other entity,

 

-39-

<PAGE>

 

and is dissolved or terminated, the powers of that Member may be exercised by

its legal representative or successor.

 

8.02 Additional Members.

------------------

 

(a) Except as provided in Section 8.01, additional Members may be

admitted to the LLC only upon the written consent of the Class A Member and Two-

thirds in Number of the Class B Members. Any such consent shall specify (i) the

capital contribution, if any, and the Profit Member Percentage Interest, if

applicable, of the additional Member, (ii) the class of membership interest to

be owned by such additional Member, and (iii) any other rights and obligations

of such additional Member. Such approval shall bind all Members. In connection

with any such admission of an additional Member, this Agreement (including

Schedules A and B) shall be amended to reflect the additional Member, its

----------- -

capital contribution, if any, its Profit Member Percentage Interest (if

applicable), its Vesting Commencement Date, the portion of its interest, if any,

which is vested, and any other rights and obligations of the additional Member.

In connection with any such admission of an additional Member, the Profit Member

Percentage Interest or other rights and interests of each Class C Member in the

LLC may not be diluted or otherwise modified or adjusted without the specific

written consent of such Class C Member, and the admission of an additional

Member shall in no event dilute, modify or adjust the interest of the Class A

Member, without the Class A Member's specific written consent.

 

(b) Unless all Class B Members (exclusive of those with respect to

whom an Event of Forfeiture has occurred) otherwise agree, in connection with

the admission of any additional Class B or Class C Member to the LLC, the Profit

Member Percentage Interests of all Class B Members shall be diluted

proportionately based on their respective Profit Member Profit Member Percentage

Interests immediately prior to any such admission.

 

(c) Each Class B Member, and each person who is hereinafter admitted

to the LLC as a Class B Member, hereby (i) consents to the admission to the LLC

of any such third party on such terms as may be approved by the Members in

accordance with this Section 8.02, and to any amendment to this Agreement which

may be necessary or appropriate to reflect the admission of any such third party

and the terms of its interest in the LLC, and (ii) acknowledges that, in

connection with any admission of any such person, such Member's interest in

allocations of Net Profits and Net Losses and distributions of cash and property

of the LLC, and net proceeds upon liquidation of the LLC, may be diluted or

otherwise altered (subject to the provisions of this Section 8.02).

 

(d) Any amendment to this Agreement which shall be made in order to

effectuate the provisions of this Section 8.02 shall be executed by the

additional Member, the Class A Member and Two-thirds in Number of the Class B

Members, and any such amendment shall be binding upon all of the Members.

 

8.03 Reallocation of Profit Member Percentage Interests.

--------------------------------------------------

 

(a) The Class B Members, by action of Two-thirds in Number of the

Class B Members, may at any time and from time to time, elect to modify the

respective Profit Member Percentage Interests of the Class B Members. Any such

determination to modify the Profit

 

-40-

<PAGE>

 

Member Percentage Interests of the Class B Members shall be made based on the

respective professional and managerial contribution and anticipated contribution

to the business of the LLC of the Class B Members, and any such determination

shall take effect following any such determination, and shall not have any

retroactive effect. In no event shall the Profit Member Percentage Interest of

any Class C Member be modified or adjusted as a result of this Section 8.03(a),

and in no event shall the interest of the Class A Member be modified or adjusted

as a result of this Section 8.03(a). In connection with any such adjustment to

the interests of the Members, Schedule B shall be amended accordingly, and all

----------

Members shall be bound by the determination of Two-thirds in Number of the Class

B Members.

 

(b) The Class B Members, by action of Two-thirds in Number of the

Class B Members, may at any time and from time to time, elect to modify the

respective Profit Member Percentage Interests of the Class C Members. Any such

determination to modify the Profit Member Percentage Interests of the Class C

Members shall be made based on the respective professional and managerial

contribution and anticipated contribution to the business of the LLC of the

Class C Members, and any such determination shall take effect following any such

determination, and shall not have any retroactive effect. In no event shall the

interest of the Class A Member be modified or adjusted as a result of this

Section 8.03(b). If, as a result of any such adjustment, the aggregate Profit

Member Percentage Interests of the Class C Members increase, the aggregate

Profit Member Percentage Interests of the Class B Members shall be

proportionately reduced. If, as a result of any such adjustment, the aggregate

Profit Member Percentage Interests of the Class C Members decrease, the

aggregate Profit Member Percentage Interests of the Class B Members (exclusive

of any Class B Members for whom an Event of Forfeiture has occurred) shall be

proportionately increased. Schedule B shall be amended to reflect any changes

----------

made in accordance with this Section 8.03(b), and all Members shall be bound by

the determination of Two-thirds in Number of the Class B Members.

 

8.04 Change of Control.

-----------------

 

(a) Upon a Qualifying Change of Control, as hereinafter defined, the

LLC shall repurchase all, and not less than all, of the interest of each Profit

Member and each Former Profit Member, at the individual election (an "Initial

Election") of each Profit Member and each Former Profit Member (such election to

be made in writing to the Class A Member within two (2) months of the date of

such Qualifying Change of Control). The purchase price for the interest of each

Profit Member shall be paid in cash, and shall equal the amount which the Profit

Member would have received if the LLC had liquidated all of the Investments then

owned by it (on a "first-in first out" basis) as of the date of the Qualifying

Change of Control for their respective fair market values (determined as

hereinafter provided) as of such date (including his or her share, if any, of

the Bonus Incentive Fee which would be payable in respect of such liquidation),

and the proceeds of such liquidation had been distributed to the Members in

accordance with Section 4.01(b) and (c) (the purchase price so determined for

each Profit Member or Former Profit Member is hereinafter referred to as such

person's "Change of Control Purchase Price").

 

(b) For purposes of determining the Change of Control Purchase Price,

the fair market value of the Investments then owned by the LLC shall be

determined by an independent appraiser (the "Appraiser"), acceptable to both (i)

a majority of all the members of

 

-41-

<PAGE>

 

the Board of Directors of the Class A Member and (ii) a Majority in Number of

the Class B Members. The Appraiser must be selected within one (1) month of the

date of the Qualifying Change of Control. If a majority of all the members of

the Board of Directors of the Class A Member and a Majority in Number of the

Class B Members fail to agree on an Appraiser, then each shall select an

independent firm of investment bankers of national reputation and those two

firms shall select an Appraiser in any case within two (2) months following the

date of the Qualifying Change of Control.

 

(c) Upon a Change of Control, as hereinafter defined, each Profit

Member's interest shall no longer be subject to the provisions of Section 3.04

(except to the extent such provisions have already been applied to adjust the

interest of a Profit Member), provided, however, that the provisions of the

-------- -------

second sentence of Section 3.04(b)(ii) and other provisions which apply upon the

occurrence of a Clause Z Event shall continue to be applicable in the case of

Profit Members and Former Profit Members (i.e., their Profit Member Investment

Percentage Interests shall be subject to complete forfeiture upon the occurrence

of a Clause Z Event).

 

(d) The LLC, the Class A Member, and CMGI shall be jointly and

severally liable to each Profit Member and Former Profit Member for the payment

of his or her Change of Control Purchase Price with respect to the LLC's

purchase of the interest of such Profit Member or Former Profit Member this

Section 8.04.

 

(e) Upon the consummation of the purchase by the LLC of any of the

interests of the Profit Members or Former Profit Members upon a Qualifying

Change of Control pursuant to this Section 8.04, the Class A Member may, in its

sole discretion, and without the approval of the Class B Members (i) treat such

interests as being redeemed by the LLC or (ii) admit additional Class B and/or

Class C Members in accordance with Section 8.02 hereof and award to the

additional Class B and/or Class C Members any or all of the repurchased

interests, and no such admission or award shall require the approval of any

other Member.

 

(f) For purposes of this Agreement, a "Change of Control" shall be

deemed to have occurred when there has occurred a change of control of CMGI (i)

which has not been approved by a majority of all the members of the Board of

Directors of CMGI, or (ii) which has been approved by a majority of all the

members of the Board of Directors of CMGI but which has not been approved by a

Majority in Number of the Class B Members and which is likely by its terms to

have a material adverse effect upon the business and prospects of the LLC as

currently, or planned to be, conducted, and which change of control in either

event is of a nature that would be required to be reported in response to Items

6(e) or 14(i), (iv), or (v) of Schedule 14A of Regulation 14A promulgated under

the Securities Exchange Act of 1934, as amended (the "Exchange Act") provided

that, in the case of a Change of Control reportable under Item 6(e), such Change

of Control involves the acquisition by any "person" (as such term is used in

Sections 13(d)(3) and 14(d)(2) of the Exchange Act, but expressly excluding

David S. Wetherell) of beneficial ownership, directly or indirectly, of

securities or interests in CMGI which represent more than forty percent (40%) of

the combined voting power of CMGI's outstanding securities; provided however,

that any of the foregoing which results from (X) the conversion of any security

or class of securities issued by CMGI and outstanding as of the date of this

Amended and Restated Agreement, or any securities issued in respect of or in