THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF COMDISCO VENTURES FUND A, LLC (A Delaware Limited Liability Company)
Exhibit
10.1
THIRD
AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT
OF
COMDISCO
VENTURES FUND A, LLC
(A
Delaware Limited Liability Company)
THIS
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”), of
Comdisco Ventures Fund A, LLC (the “Company”) dated March
16, 2009, is by and among Comdisco Inc., a Delaware corporation (“CDI”), Windspeed
Acquisition Fund GP, LLC, a Delaware limited liability company (“Windspeed”), Comdisco
Ventures Fund B, LLC, a Delaware limited liability company (“Fund B”), and any
other Persons who become parties hereto after the date of this
Agreement. Certain terms used but not otherwise defined in this
Agreement have the meanings assigned to them in Section 17.
RECITALS
A. The
Company was originally organized as a Delaware corporation, and was converted
into a Delaware limited liability company within the meaning of the Delaware
Limited Liability Company Act (6 Del. C. § 18-101,
et seq.), as amended
from time to time (the “Act”), and any
successor to such Act by filing a Certificate of Conversion with the Secretary
of the State of Delaware on February 20, 2004, and by entering into a Limited
Liability Company Agreement (the “Initial Agreement”),
and
B. CDI,
Windspeed and Fund B executed and delivered an Amended and Restated Limited
Liability Company Agreement dated as of February 20, 2004 (the “Restated
Agreement”) amending and restating the Initial Agreement to admit Windspeed and
Fund B as Members, to appoint Windspeed the Manager of the Company, pursuant to
the terms and conditions set forth therein, and to continue the Company as a
Delaware limited liability company within the meaning of the Act.,
and
C. CDI,
Windspeed and Fund B executed and delivered Amendment No. 1 to the Restated
Agreement dated December 27, 2004, amending the Restated Agreement to increase
the compensation payable to Windspeed thereunder, and correspondingly raise the
initial threshold amount distributable to CDI thereunder, and
D. CDI,
Windspeed and Fund B executed and delivered a Second Amended and Restated
Limited Liability Agreement, dated April 11, 2006, (the “Second Restated
Agreement”) amending and restating the Restated Agreement which extended the
management of the Portfolio and provided for certain
compensation arrangements, and
E.
CDI, Windspeed and Fund B desire to amend and restate the Second Restated
Agreement as hereinafter set forth, and to continue the Company as a Delaware
limited liability company within the meaning of the Act.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration the receipt and legal sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1. Organization; Certificate;
Name.
1.1 Organization. The
Company is, and shall continue as, a Delaware limited liability company in
accordance with, and subject to, the provisions of this Agreement.
1.2 Filings. The
Members ratify and confirm the authority of the Manager and any individual
authorized by the Manager, acting singly in any case, to execute, acknowledge,
deliver, file and record in the appropriate offices, as applicable, (i) the
Certificate and any amendments thereto, and (ii) such other instruments,
certificates, documents and other writings which the Manager determines to be
necessary or appropriate to secure or preserve the Company’s status as a
Delaware limited liability company or to qualify the Company to do business in
states other than Delaware.
1.3 Name. The
name of the Company shall be “Comdisco Ventures Fund A, LLC” or such other name
as the Manager determines from time to time to be appropriate.
1.4 Tax
Partnership. As of the Effective Date, the parties intend that
the Company be classified as a partnership, and that they be treated as
partners, for tax purposes.
2. Purpose. The
Company’s purpose shall be to acquire, hold, manage and maximize the value in
the liquidation of the Portfolio and to do any and all things that are ancillary
or incidental thereto. In furtherance of such purpose, the Company
shall have the authority to: (a) negotiate, execute, deliver, perform, modify,
supplement, amend and terminate contracts, agreements, instruments, documents,
notices and other writings, including but not limited to purchase and sale
agreements, subscription agreements, stockholder agreements, investor rights
agreements, voting agreements, warrant and option agreements, exchange
agreements, merger agreements, lock-up agreements, underwriting agreements,
brokerage agreements, custodial agreements, escrow agreements, management
agreements, advisory agreements, promissory notes, pledge and other security
agreements, and exercise notices, (b) plan, structure, negotiate, coordinate,
effect and participate in financings (including, without limitation, by
offerings of debt and equity securities privately or publicly),
recapitalizations, restructurings, sales, mergers, liquidations and similar
transactions of Portfolio Companies, (c) exercise all rights, powers, privileges
and other incidents of ownership or possession with respect to
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securities
held by it (including, without limitation, to vote securities as to the election
of directors and other matters and to exercise any and all rights and powers
with respect to options, warrants and convertible securities held by it), (d)
pay or otherwise provide for its expenses, debts and obligations (including,
without limitation, the Management Fee), and make temporary investments in Short
Term Investments pending the use of its available cash to pay expenses, debts
and obligations or to make distributions to the Members, (e) borrow money and
pledge assets to secure such borrowings on a short term basis, (f) hire and
compensate advisors, consultants, agents, contractors, subcontractors,
accountants, attorneys and other service providers, (g) establish and maintain
bank and other accounts and draw checks or other orders or expenditures from
such accounts, (h) purchase, acquire, finance, hold, market and sell assets, (i)
apply for and obtain insurance and (j) do any and all other things that are
ancillary or incidental to any of the foregoing.
3. Place of Business;
Registered Agent. The principal place of business of the
Company shall be at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000. The Manager shall promptly provide the Members with written
notice if the Company’s principal place of business is changed. The
Company’s registered office in the State of Delaware shall be Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000. The registered agent for service of process
on the Company in the State of Delaware shall be Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000. The Manager may at any time change the location of
the Company’s principal place of business, establish additional places of
business and designate a new agent for service of process as it shall deem
advisable.
4. Term;
Existence. The Company shall continue in full force and effect
from the Effective Date until dissolved pursuant to Section 14 (the “Term”).
5. Contributions; Interests;
Capital Accounts.
5.1 CDI. The
Company holds certain securities (and all contractual and other rights related
to such securities) and CDI is the Class A Member. The parties agree
and acknowledge that the initial aggregate fair market value of the assets
possessed by the Company was $15,000,000 as of the Effective Date (and that
CDI’s Capital Contribution to the Company, and initial capital account balance
with respect to the Company, was therefore $15,000,000). Such
aggregate fair market value was allocated, and will continue to be allocated,
among the particular securities contained in the Portfolio as of the Effective
Date as mutually agreed upon by CDI and the Manager. It is understood
and agreed that the Company shall not assume any liabilities related to the
securities and rights (other than obligations to pay the exercise prices of
options, warrants and similar securities that have not yet been exercised and
any other debts and obligations which are assumed by the Company with the
approval of the Manager). CDI shall execute such documents,
instruments of transfer and assignment and other writings, and take such further
actions, as the Manager may reasonably request from time to time to fully vest
the Company with the rights to the Portfolio.
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5.2 Windspeed. As
of the Effective Date, Windspeed was admitted to the Company as a Class B Member
in consideration of services provided and to be provided by Windspeed to the
Company.
5.3 Fund B. As
of the Effective Date, Fund B was admitted to the Company as a Class C Member
with no obligation to make any contribution to the Company. The
Manager may from time to time request cash contributions from Fund B and, (if
such request is made to, and approved by, Fund B) the Manager shall
accept any contributions of cash to the Company made by Fund B to permit the
Company to acquire Funded Securities. Any contribution by Fund B
pursuant to this Section 5.3 shall be applied only to the acquisition of the
Funded Securities for which such contribution was made (and to pay Fund B’s
share of any related expenses as determined in accordance with Section
9.4). If and to the extent that the Manager does not acquire
securities for which Fund B has made a contribution pursuant to this Section
5.3, the amount of such contribution (less any related expenses as determined in
accordance with Section 9.4) shall be promptly returned to Fund
B. Fund B’s interest in the Company shall relate only to any Funded
Securities acquired by the Company. For as long as the Company holds
any Funded Securities, the Manager shall keep appropriate books and records
describing such Funded Securities and setting forth, with respect to each such
Funded Security, the amount contributed by Fund B to permit the acquisition of
such Funded Security, the cost to the Company of acquiring such Funded Security,
the means of acquiring such Funded Security (including, if such Funded Security
was acquired by exercising an option, warrant, conversion or exchange right,
whether such Funded Security could have been acquired on a cashless basis), the
value of such Funded Security as of the date of its acquisition by the Company
and such other information regarding such Funded Security as the Manager
determines to be appropriate.
5.4 Additional
Members. The Company shall not issue any additional interests
or admit any additional Members without the approval of the Manager, the Class A
Member, and the Class B Member. Nothing in this Section 5.4, however,
shall limit the rights of Members to Transfer their interests in the Company, or
to cause Transferees of their interests to be admitted as substituted Members,
pursuant to Section 11.
5.5 No Other
Contributions. Except as provided in Section 5.1, Section 5.2,
Section 5.3 or the Act, no Member shall be required or permitted to make any
contribution of cash, property or services, to return any distributions received
in accordance with this Agreement or to make any loan, to the Company or to any
creditor of the Company (including, without limitation, to restore a deficit
balance in such Member’s capital account). No Member shall be liable
for any debts, liabilities, contracts or obligations of the Manager or any other
Member.
5.6 Capital
Accounts. The Manager shall maintain capital accounts for the
Members in accordance with Section 704(b) of the Code and the Treasury
Regulations promulgated thereunder. In that regard, the Manager may
make such adjustments to the Members’ capital accounts as it determines are
necessary and in accordance with the Treasury Regulations in connection with any
contribution to or
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distribution
by the Company of more than a de minimis amount of
money or other property in exchange for an interest in the
Company. If a Member holds interests of more than one (1) class,
separate capital accounts shall be maintained for such Member for each such
class of interests. A Transferee of an interest in the Company shall
succeed to the capital account of its Transferor to the extent allocable, based
on the terms of the Transfer, to the Transferred interest.
5.7 Company
Assets. All assets of the Company shall be owned by the
Company as an entity.
6. Allocations of Profit and
Loss; Tax Allocations.
6.1 Profit. Subject
to Sections 6.5 and 14, and after any special allocations required by Sections
6.3 and 6.4 have been made, a Profit of the Company for any fiscal year or other
accounting period shall be allocated as follows:
6.1.1 First, to the Class A
Member and the Class B Member to the extent of and in proportion to their
negative Adjusted Capital Account Balances, if any; and
6.1.2 Second, thereafter,
to the Class A Member and the Class B Member in such amounts and proportions as
are necessary for their respective Adjusted Capital Account Balances to equal
their respective Target Capital Account Balances as of the close of such fiscal
year or other accounting period (or, if such equalization is not possible, as
are necessary to reduce proportionately the differences between their respective
Adjusted Capital Account Balances and their respective Target Capital Account
Balances).
6.2 Loss. Subject
to Sections 6.5 and 14, and after any special allocations required by Sections
6.3 and 6.4 have been made, a Loss of the Company for any fiscal year or other
accounting period shall be allocated as follows:
6.2.1 First, until their
Adjusted Capital Account Balances have been reduced to zero (0), to the Class A
Member and the Class B Member in such amounts and proportions as are necessary
for their respective Adjusted Capital Account Balances to equal their respective
Target Capital Account Balances as of the close of such fiscal year or other
accounting period (or, if such equalization is not possible, as are necessary to
reduce proportionately the differences between their respective Adjusted Capital
Account Balances and their respective Target Capital Account Balances);
and
6.2.2 Second, thereafter,
to the Class A Member and the Class B Member in proportion to their respective
Capital Contributions.
6.3 Special
Allocations. Before any allocations are made pursuant to
Section 6.1, Section 6.2 or Section 14 (as such Sections may be modified by
Section 6.5), the following special allocations shall be made in the following
order:
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6.3.1 The Manager may
make such special allocations, and apply Sections 6.1 and 6.2 with such
modifications, as it determines to be appropriate (i) to comply with the rules
set forth in the Treasury Regulations under Section 704(b) of the Code governing
(a) allocations of “nonrecourse deductions,” “partner nonrecourse deductions”
and other items lacking “economic effect” and (b) “minimum gain chargebacks” and
“partner nonrecourse debt minimum gain chargebacks,” and (ii) for this Agreement
to contain a “qualified income offset” provision within the meaning of the
Treasury Regulations under Section 704(b) of the Code. In no event,
however, shall any such special allocations or modifications affect the amount
or timing of any distribution to be made to any Member hereunder.
6.3.2 To the extent
an adjustment to the adjusted tax basis of any asset of the Company pursuant to
Section 734(b) or Section 743(b) of the Code is required, pursuant to Section
1.704-l(b)(2)(iv)(m) of the Treasury Regulations, to be taken into account in
determining capital accounts, the amount of such adjustment to the capital
accounts shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases the basis of the
asset), and such gain or loss shall be specially allocated to the Members in a
manner that is consistent with the manner in which their capital accounts are
required to be adjusted pursuant to Section 1.704-l(b)(2)(iv)(m) of the Treasury
Regulations.
6.3.3 To
the extent that any portion of the Management Fee payment is determined by the
Manager to be a distribution to any Member and not a guaranteed payment within
the meaning of Section 707(c) of the Code (or a payment for services provided in
a non-Member capacity), an amount of gross income of the Company equal to the
amount of such payment (and, to the extent possible, of the same character as
the income of the Company giving rise to such payment) shall be specially
allocated to such Member.
6.3.4 There
shall be specially allocated to the Class A Member all fees and expenses of the
Company related to the Fund B Escrow Account.
6.3.5 For any fiscal
year or other accounting period of the Company, there shall be specially
allocated to the Class C Member its share of any fees and expenses related to
Funded Securities as provided in Section 9.4 and such other items of Company
income, gain, loss and deduction attributable to Funded Securities as are
necessary for its Adjusted Capital Account Balance to equal, to the extent
possible, its Target Capital Account Balance as of the close of such fiscal year
or other accounting period. The items allocated to the Class C Member
pursuant to this Section 6.3.5 shall be drawn from all of the Company’s items of
income, gain, loss and deduction attributable to Funded Securities in a manner
that is fair and equitable and consistent with the distributions to be made to,
and the expenses to be borne by, the Class C Member hereunder.
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6.4 Curative
Allocations. The Members intend that their capital account
balances as of the time immediately before the liquidating distributions are
made pursuant to Section 14 equal the amounts of such distributions to be made
to them so that they have zero (0) balances in their capital accounts after the
liquidating distributions are made. Subject to the requirements of
Sections 6.3.1 and 6.3.2 (the “Regulatory
Allocations”), the Company shall make such special allocations of items
of income, gain, loss, deduction and expenditure as the Manager determines are
required to give effect to such intent (including, without limitation, to cure
any imbalances that might otherwise be caused by the Regulatory
Allocations). The Manager may reallocate items of income, gain, loss,
deduction and expenditure for prior open taxable years to give effect to such
intent if it reasonably and in good faith determines that such items for the
current and future taxable years will be insufficient to give effect to such
intent.
6.5 Varying
Interests. If any interest in the Company is Transferred
during any accounting period, allocations of Profit or Loss and items of income,
gain, loss and deduction with respect to such interest for such period shall be
made using such method or methods (including, without limitation, an “interim
closing” method) as the Manager and the Members determine to be appropriate and
in compliance with Section 706 of the Code.
6.6 Tax
Allocations. Tax allocations shall be made consistent with the
allocations of Profit or Loss made pursuant to Sections 6.1 and 6.2 and with any
special allocations made pursuant to Sections 6.3 and 6.4, except that, solely
for tax purposes, (i) items of income, gain, loss, deduction and
expenditure with respect to Company assets reflected hereunder in the Members’
capital accounts and on the books of the Company at values that differ from the
Company’s adjusted tax bases in such assets shall be allocated among the Members
in such manner, and using such method or methods as the Manager determines to be
appropriate (it being agreed, however, that allocations made pursuant to this
Section 6.6 on account of book/tax disparities with respect to securities held
by the Company shall be made using the “traditional” method described in Section
1.704-3(b) of the Treasury Regulations except as the Manager, with the approval
of the Class A Member, determines to be appropriate), and (ii) any items of
gain recognized by the Company that are subject to the depreciation recapture
provisions of Sections 1245 and 1250 of the Code shall be allocated among the
Members in such manner as is necessary to comply with Sections 704, 1245 and
1250 of the Code and any applicable Treasury Regulations
thereunder.
6.7 Tax
Credits. Any tax credits of the Company for any fiscal year or
other accounting period shall be allocated to the Members in proportion to their
allocations of the Company’s Profit or Loss, as the case may be, for such fiscal
year or other accounting period.
6.8 Tax
Elections. The Company shall make such elections under the
Code and the Treasury Regulations (including, without limitation, those
permitted by Sections 704(b), 704(c), 709(b) and 754 of the Code), and state tax
or similar laws, as the Manager and the Fund A Advisor determine to be
appropriate.
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6.9 Tax Matters
Partner. Windspeed (or an Entity that has become Manager
pursuant to Section 8.1.3 upon the Transfer to it of Windspeed’s interest in the
Company) shall be the “Tax Matters Partner”
of the Company, as defined in Section 6231(a)(7) of the Code, for purposes of
any tax audit of the Company for as long as it is a Manager and the Class B
Member. At such time as neither Windspeed nor any such Transferee of
its interest is the Tax Matters Partner, a successor Tax Matters Partner shall
be designated by the Fund A Advisor in accordance with the Code and the Treasury
Regulations. The Tax Matters Partner shall have all of the rights,
duties, obligations and powers of a Tax Matters Partner, as so defined, under
the Code, subject to Section 8.3.10.
7. Distributions.
7.1 Net Portfolio
Receipts. Subject to Sections 7.2, 7.5, 7.6, 8.1.4, 8.3, 14, 15
and any legal or contractual restrictions on the Company’s ability to make
distributions to the Members, the Manager shall make distributions by wire
transfer of any Net Portfolio Receipts (and any other available cash, other than
amounts contributed by the Members, the Company may have) as promptly as it
determines to be appropriate (but not less frequently than quarterly) as
follows:
85% to the Class A Member and 15% to
the Class B Member.
7.2 Tax
Distributions. Notwithstanding Sections 7.1 and 7.6, the
Company shall use reasonable efforts to make advance distributions to the
Members within a reasonable period of time before taxes are due in such amounts
and proportions as are necessary for the distributions made with respect to
their interests (including to predecessor holders of such interests) for all
fiscal years and other accounting periods to equal their respective Tax
Liabilities as of the time of determination; provided, however, that advance
distributions may be made with respect to the portion of a Member’s Tax
Liability relating to Funded Securities only from cash receipts of the Company
with respect to Funded Securities. Distributions pursuant to this
Section 7.2 shall be made in advance of the dates by which the corresponding tax
amounts are due. Any advance distribution to a Member pursuant to
this Section 7.2 shall offset an equal amount of distributions that would
otherwise thereafter be made to such Member pursuant to Section 7.1 (or, in the
case of the Class C Member, pursuant to Section 7.6).
7.3 [Intentionally
Omitted]
7.4 Distributions in
Kind. Subject to Sections 8.8, 14, 15 and any legal or
contractual restrictions on the Company’s ability to make distributions to the
Members, the Manager may from time to time cause the Company to distribute
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Marketable
Securities in kind. Any in kind distribution of a Marketable Security
shall be made to the Class A Member and Class B Member in accordance with
Section 7.1 (and, in the case of Funded Securities, to the Class C Member in
accordance with Section 7.6 and to the Class A Member and the Class B Member in
accordance with Section 7.1 pursuant to Section 7.6.1(b)(ii)). Any
such in kind distribution shall be made as if such Marketable Security were an
amount of Net Portfolio Receipts (or, in the case of Funded Securities, Net
Funded Securities Receipts) equal to its value as determined pursuant to Section
7.7 (and, for purposes of thereafter applying Section 7.1, Section 7.6 or so
much of any other provision of this Agreement as relates to the applicable one
of such Sections, shall be treated as having been distributed pursuant to such
Section). For purposes of determining and allocating Profit, Loss and
other items pursuant to Section 6, any Marketable Security that is to be
distributed in kind shall be treated as having then been sold by the Company for
its value as determined for purposes of applying this Section
7.4. Notwithstanding the foregoing, for so long as CDI (or an
Affiliate of CDI that has become a Class A Member upon the Transfer to it of
CDI’s Class A interest in the Company) is the Class A Member, the Manager will
attempt to sell and convert into cash such Marketable Securities for at least
180 days after such securities have attained the status of Marketable
Securities. The Manager may, in its discretion, distribute Marketable
Securities (including Funded Securities to the extent the Class B Member is
entitled to such distribution pursuant to Section 7.6.1(b)(ii)) in kind to the
Class B Member during such 180-day period; provided that the
value of any such distribution to the Class B Member of a share of Marketable
Securities in kind shall be deemed to be the comparable per share cash value of
the cash distributions made to the Class A Member as a result of the disposition
of such in kind Marketable Securities.
7.5 Fund B
Escrow. An escrow account (the “Fund B Escrow
Account”) was established by the Company for the benefit of CDI to fund
CDI’s capital commitment to Fund B, such fund to be held in trust by the Company
for CDI until properly disbursed in accordance with the terms and conditions of
this Agreement and the Fund B Agreement; provided that the
amount to be deposited into an escrow account would and shall be reduced in
accordance with Section 5.3 of the Fund B Agreement and be adjusted as set forth
in the definition of “Capital Commitment” in the Fund B
Agreement. Any amount so deposited into escrow pursuant to this
Section 7.5 would and shall be treated, for all other purposes of this Agreement
(including, without limitation, maintaining the Members’ capital accounts and
reporting the tax results of the Company’s operations), as having been
distributed to the Class A Member as Net Portfolio Receipts pursuant to Section
7.1.. As of February 19, 2009, the amount in the Fund B Escrow was
approximately $59,000.
7.6 Funded
Securities.
7.6.1 The Manager
shall make distributions by wire transfer of any Net Funded Securities Receipts
as promptly as it determines to be appropriate (but not less frequently than
quarterly). Subject to Sections 7.2, 7.5, 7.6.2, 8.1.4, 8.3, 9, 14,
15 and any legal or contractual restrictions on the Company’s ability to make
distributions to the Members, Net Funded Securities Receipts shall be
distributed as follows:
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(a) Net Funded
Securities Receipts with respect to any Funded Security acquired by
participating in subsequent financing round(s) of a Portfolio Company shall be
distributed 100% to the Class C Member.
(b) Net Funded
Securities Receipts with respect to any Funded Security acquired by exercising
an option, warrant, conversion or exchange right that could have been but was
not exercised on a cashless basis shall be distributed as follows: (i) an amount
equal to the Class C Percentage with respect to such Funded Security to the
Class C Member and (ii) an amount equal to the Class A/B Percentage with respect
to such Funded Security as Net Portfolio Receipts pursuant to Section 7.1
(subject to the limitations set forth in such Section).
7.6.2 Notwithstanding
Section 7.6.1, the amounts distributable to the Class C Member pursuant to
Section 7.6.1 shall be reduced by expenses chargeable to the Class C Member
pursuant to Section 9.4.
7.7 Valuation of
Securities. The value of any security shall be determined as
provided in this Section 7.7.
7.7.1 Any security
that is listed on a national securities exchange shall be valued at its average
last sale price as recorded by the New York composite tape system over the ten
(10) trading days immediately preceding the date of such
valuation or, if the security is not included in such system, at its
average last sale price over such ten (10) trading days on the principal
national securities exchange on which such security is traded, as recorded by
such exchange (using instead of the last sale price, for any such day on which
no sales occurred, the mean between the closing “bid” and “asked” prices on such
day as recorded by such system or such exchange, as the case may
be).
7.7.2 Any security
that is listed on the Nasdaq National Market shall be valued at its average last
sale price over the ten (10) trading days immediately preceding the date of such
valuation as reported by Nasdaq (using instead of the last sale price, for any
day on which no sales occurred, the mean between the closing “bid” and “asked”
prices on such day as reported by Nasdaq).
7.7.3 Any security
that is not listed on a national securities exchange or on the Nasdaq National
Market but that is traded in the over-the-counter market in the United States
shall be valued at the average mean between the closing “bid” and “asked” prices
for the ten (10) trading days immediately preceding the date of such valuation
as reported by Nasdaq or, if not so reported, as reported in the
over-the-counter market in the United States.
7.7.4 Any security in
the form of an option, warrant or similar security for which no price quotation
is available shall be valued by determining the value of the underlying security
in accordance with Sections 7.7.1, 7.7.2, 7.7.3 or 7.7.5,
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as
applicable, and subtracting therefrom the exercise or conversion price of such
security; and
7.7.5 Any security
that is not subject to valuation under any of the preceding provisions of this
Section 7.7 shall be assigned the value established for such security in the
last round of financing of the issuer of such security plus or minus any
adjustments which the Manager reasonably determines to be appropriate to reflect
market, issuer or other events that have occurred subsequent to such last round
of financing, all consistently applied.
The
foregoing valuation methodologies contained in this Section 7.7 will be used by
the Manager for purposes of stating the fair value for the period stated of the
Company’s Portfolio investments in the Company’s Statement of Assets,
Liabilities and Members’ Capital as of the applicable quarterly reporting
date.
8. Management.
8.1 Manager.
8.1.1 The management
and operation of the Company, and the development and implementation of Company
policies, shall be and hereby are vested in the Manager, which shall be
Windspeed unless and until it ceases to serve as Manager pursuant to Section
8.1.3 or Section 8.1.4. Subject to Section 8.3 and any other
applicable limitations imposed by this Agreement, the Manager shall have
exclusive authority to exercise on behalf of the Company all of the powers of
the Company hereunder (including, without limitation, those specified in Section
2) and to take such other actions as it determines are necessary, advisable or
incidental to the carrying on of the Company’s business and
affairs. The parties agree that any Person serving as Manager
hereunder shall be a “manager” of the Company within the meaning of the Act
(with the rights, powers and duties in such capacity provided in this Agreement)
for as long as it so serves. In dealings with the Members, or with or
on behalf of the Company, the Manager shall act in good faith and in the manner
it believes to be, or not opposed to, the best interests of the Company and the
Members. The Manager and its individual members shall have fiduciary
responsibilities, solely with respect to the Members, as set forth under the Act
and in accordance with the terms of this Agreement in like manner and to the
same extent as if such persons served directly as individual Managers of the
Company.
8.1.2 A Manager shall
serve until its successor becomes Manager hereunder or, if earlier, until it
ceases to serve as Manager pursuant to Section 8.1.3 or Section
8.1.4. If a Manager ceases to serve as such for any reason (other
than, in the case of Windspeed, by its Transfer of its interest in the Company
to another Entity that is Controlled by any two (2) or more of the individuals
comprising the Windspeed Team and that thereupon becomes the Manager as provided
in Section 8.1.3), any vacancy thereby created may be filled by a Person
designated by the Class A Member or the Fund A Advisor. Except as
otherwise expressly provided in this Agreement, the cessation of
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any
Member-Manager’s service as Manager shall not, in and of itself, affect its
rights, or constitute its withdrawal, as a Member.
8.1.3 A Manager may
not resign without the approval of the Class A Member; provided, however, that upon
any Transfer by Windspeed pursuant to Section 11 of its interest in the Company
to an Entity Controlled by any two (2) or more of the individuals comprising the
Windspeed Team, such Entity shall become the Manager upon its admission to the
Company as a substituted Class B Member.
8.1.4 A Manager may
not be removed except (i) by vote of the Class A Member and (ii) if such Manager
is Windspeed (or an Entity that has become Manager pursuant to Section 8.1.3
upon the Transfer to it of Windspeed’s interest in the Company), (a) for Cause,
(b) if at least two (2) of the individuals comprising the Windspeed Team are no
longer actively committed to the Manager in accordance with Section 8.1.5, or
(c) upon the occurrence of a Retirement Event relating to the
Manager. If so removed as a Manager, then, (x) if so removed as a
Manager for Cause, any distributions (including distributions earned but not yet
made) which such removed Manager, or any affiliate thereof, may be entitled to
receive as a Member shall be forfeited and such removed Manager, or any
affiliate thereof, shall thereafter no longer be entitled to any further
distributions of the Company and shall have none of the rights and powers of a
Member hereunder or under the Act (including, without limitation, to vote, give
consents or approvals, or otherwise manage or participate in the affairs of the
Company), (y) if so removed as a Manager for Cause, such removed Manager shall
be obligated to return to the Company that portion of the Management Fee equal
to the Management Fee paid or payable by the Company for the twelve (12) month
period immediately preceding such removal (or if twelve months have not elapsed
since the Effective Date, such shorter period as has elapsed since the Effective
Date), divided by two (2), within thirty (30) days of such removal, and (z) if
so removed as a Manager other than for Cause, such removed Manager shall be
entitled to retain any portion of the Management Fee which has been paid as of
the date of receipt of notice of such removal, but shall no longer be entitled
to any portion of the Management Fee which has not been paid as of such
date. A removal for Cause shall be effective immediately upon receipt
of notice; a Manager’s removal without Cause shall be effective 30 days
following receipt of notice.
8.1.5 Until the
termination of the Company, Windspeed and at least two (2) of the individuals
comprising the Windspeed Team shall devote to the
Company and Fund B such time and resources and maintain such staffing as are
reasonably necessary and appropriate to administer and conduct the Company’s and
Fund B’s affairs in accordance with the terms hereof and in a manner intended to
conform to the best interest of the Company and Fund B.
8.2 Fund A
Advisor.
8.2.1 The Class A
Member will from time to time appoint an individual to act as the Fund A Advisor
hereunder (the “Fund A
Advisor”). A Fund A
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Advisor
may (i) resign upon at least thirty (30) days’ written notice to the Class A
Member (which notice will be waived by the Class A Member) and (ii) be removed
at any time, for any reason or no reason, by the Class A Member. Any
vacancy created by the resignation, removal or other event with respect to a
Fund A Advisor may be filled by the Class A Member.
8.2.2 The Manager
shall not take any action expressly requiring the approval of the Fund A Advisor
hereunder without such approval (or, if there is then no Fund A Advisor, the
approval of the Class A Member). In addition, the Manager shall
consult with the Fund A Advisor regarding potential conflicts of interest and
other matters as the Manager from time to time determines to be
appropriate. With regard to any potential conflict of interest, the
Manager shall provide the Fund A Advisor with a written proposal containing an
analysis outlining the conflict and the reasonably foreseeable economic
ramifications thereof to the Company and Fund B. The Manager shall
promptly consider in good faith (without being obligated to comply with) any
recommendations that are promptly made by the Fund A Advisor in response to any
such proposal. Because of the relative interest of CDI in the Company
and Fund B, the Manager acknowledges its fiduciary duty to CDI to maximize the
value of CDI’s interest in the Company after considering the recommendations of
the Fund A Advisor and consistent with its duties to the members of Fund
B.
8.2.3 Except in its
capacity as Manager, liquidating trustee or other authorized service provider,
no Member shall have any authority to act for or on behalf of the Company or any
other Member or to bind the Company or any other Member in any way, to pledge
the Company’s credit or to render the Company liable for any
purpose.
8.3 Actions Requiring Member
Approval. Notwithstanding Section 8.1, and in addition to any
other matters requiring the approval of some or all of the Members hereunder,
without the approval of the Fund A Advisor (or, if there is then no Fund A
Advisor, the Class A Member), the Manager shall have no authority
to:
8.3.1 liquidate more
than twenty (20) positions included in the Portfolio in a single
transaction or series of related transactions;
8.3.2 cause the
Company to engage in a transaction that would result in a Company security being
Transferred to Fund B;
8.3.3 cause the
Company to acquire any asset other than by reason of (i) any stock dividend,
stock split, stock issuance, combination, recapitalization, reclassification,
merger, consolidation, conversion or similar transaction with respect to any
security held by it, (ii) the Company’s cashless exercise of any option,
warrant, conversion or exchange right, with respect to securities held by it,
(iii) the acquisition of Funded Securities using cash contributed entirely by
Fund B in its capacity as a Class C Member pursuant to Section 5.3; or (iv) the
Company’s exercise, using cash available in the Company or, in the absence of
such cash, borrowed in accordance with Sections 8.3.9
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and
8.10, of any option, warrant, conversion or exchange right, with respect to
securities held by it, that could not have been exercised on a cashless basis
(such securities being “Cash Option
Securities”);
8.3.4 cause the
Company to incur (i) any single Non-Routine Expense exceeding $5,000, (ii) any
expense described in the definition of Routine Expense above the respective
expense caps contained therein, and (iii) in any twelve (12)-month period, an
aggregate in excess of $75,000 of single Fund Expenses which are individually
less than $5,000 each;
8.3.5 delegate
or assign any of its obligations as Manager hereunder other than as permitted by
Section 8.6;
8.3.6 cause the
Company to merge or consolidate with or into any other Entity or change its form
of organization (including, without limitation, for tax purposes);
8.3.7 cause
the Company to pay any compensation to, or engage in any transaction with, the
Manager or an Affiliate of the Manager except as provided herein;
8.3.8 cause the
distribution of any Marketable Securities in kind except in accordance with
Section 7.4;
8.3.9 except to
borrow money to acquire Cash Option Securities in accordance with Section 8.10,
cause the Company to borrow money or pledge assets to secure such borrowing;
or
8.3.10 act, elect, report
or otherwise exercise its duty or authority as the Tax Matters Partner with
respect to Company tax matters.
8.4 Administrative
Responsibilities. In addition to its other responsibilities
hereunder, the Manager shall be responsible for providing the administrative and
operating support the Company requires in connection with its business and
affairs, including, without limitation, (i) the filing of such documents,
instruments, certificates and other writings as are necessary or appropriate for
the continuation of the Company as a limited liability company under the laws of
the State of Delaware (and for the qualification of the Company to do business
in states other than Delaware where the Manager determines such qualification to
be necessary), (ii) preparing and filing any and all tax returns and other
governmental filings in connection with the Company’s affairs, (iii) maintaining
the books and records of the Company in accordance with the Act, (iv)
maintaining the documentation and records relating to the Portfolio, including
the administration and tracking of all warrant and other antidilution rights,
stock splits and other terms related to new rounds of financing by the Portfolio
Companies, (v) investigating, reviewing and effecting transactions involving the
Portfolio, (vi) leveraging its industry knowledge and relationships to identify
attractive
- 14 -
follow-on
investment opportunities, and (vii) satisfying the Company’s needs for office
space, supplies and general office support and services.
8.5 Management
Fee.
8.5.1 Subject to
Sections 8.1.3, 8.1.4, 8.5.2 and 8.5.3, the Company shall pay the Manager
management fees (the “Management Fee”) over
the period of two (2) consecutive years beginning on February 21, 2009 through
and including February 20, 2011 (the “Management Period”) in accordance with the
following schedule: $100,000 per year for the two year period for a total
Management Fee of $200,000. Unless otherwise paid out of the gross receipts of
the Company with respect to securities included in the Portfolio pursuant to
Section 8.5.2, CDI shall pay the initial two (2) quarterly installments of
$35,000 each on or before March 27, 2009 and, provided that either the Portfolio
has not been sold, transferred or liquidated, or the Company has not been
dissolved or otherwise terminated pursuant to Section 14, the next two (2)
quarterly installments on September 19 and December 19, 2009,
respectively, and the balance of $60,000 in four (4) equal quarterly
installments of $15,000 commencing on February 21, 2010. For purposes
of allocating the Management Fee over the two year period from February 21,
2009, the first four quarters shall each be tentatively assessed $35,000 per
quarter and the last four quarters $15,000 per quarter. In the event that either
the Portfolio is sold, transferred or liquidated, or the Company is dissolved or
otherwise terminated prior to February 21, 2011, then the Management Fee shall
be prorated over the applicable quarter(s) and the Manager shall refund to CDI
the difference between the prorated amounts, plus any interest earned thereon,
and the Management Fee paid by CDI to such event. The funds paid or
advanced for the Management Fee shall be placed in an interest bearing escrow
account with the interest for the benefit of CDI (the “Management Fee Escrow
Account”).The Management Fee payments due the Manager are in addition to any
amounts distributable to the Manager, in its capacity as a Member, pursuant to
Section 7.
8.5.2 Notwithstanding
Section 8.5.1, the Manager acknowledges and agrees that the Management Fee shall
be payable first from any gross receipts of the Company with respect to
securities included in the Portfolio when and as such receipts become available
(and, except as setforth in Section 8.5.1, not from the separate
assets of any Member).
8.6 Assignment. With
the approval of the Class A Member, the Manager may delegate or assign any or
all of its duties and responsibilities (and its rights to receive any or all of
the Management Fee) hereunder, including, without limitation, pursuant to a
separate management contract between the delegee and the Company. The
Class A Member shall not unreasonably withhold its approval of any such
delegation or
- 15 -
assignment
if the delegee or assignee is an Entity Controlled by any two (2) or more of the
individuals comprising the Windspeed Team.
8.7 Other Activities of
Manager. Notwithstanding any other provision of this
Agreement, and subject to Section 8.1.5, the Manager may engage in other
profit-seeking and business ventures of any kind, nature or description
(including, without limitation, making and managing investments in securities
for its own account or the account of others), independently or with others, and
the pursuit of such ventures by the Manager shall not be deemed wrongful or
improper. Neither the Company nor any Member shall have any rights or
obligations by virtue of this Agreement or the relationship established hereby
in or to any independent ventures of the Manager or the profits or losses
derived therefrom.
8.8 Approval or Direction of
Class C Member. Notwithstanding Section 8.1, if at any time
the Manager is not also the “Manager” of Fund B under the Fund B Agreement, the
Manager (i) shall not, without the consent of the Class C Member, vote, sell,
exchange, exercise or take any other action with respect to any Funded Security
or pay any single expense for which the Class C Member would bear the burden
pursuant to Section 9.4 exceeding $5,000, and (ii) subject to any applicable
contractual or other restrictions, shall take such actions with respect to any
Funded Security (including, without limitation, distributing such Funded
Security in kind) as the Class C Member shall reasonably direct.
8.9 Evidence of
Authority. Any Person dealing with the Company may rely upon a
certificate signed by the Manager as to:
8.9.1 the existence
or non-existence of any fact or facts which constitute conditions precedent to
acts by the Manager or in any other manner germane to the affairs of the
Company; and
8.9.2 the
Person or Persons who are authorized to execute and deliver any instrument or
document of the Company or to take any action on behalf of the
Company.
8.10 Borrowing. In
connection with the acquisition of any Cash Option Securities in accordance with
Sections 8.3.3 and 8.3.9, the Manager may cause the Company to borrow the
exercise price of such securities from one (1) or more lenders (which may
include the Manager, a Member or an Affiliate of the Manager or a Member), or
advance the amount of such deficiency to the Company, on such terms and
conditions (but at an interest rate not exceeding ten percent (10%) per annum)
as the Manager determines to be appropriate.
9. Fees and
Expenses.
9.1 Management
Fee. The Company shall pay the Management Fee to the Manager
as provided in Section 8.5.
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9.2 Fees and Expenses Payable by
the Manager. The Company shall not be obligated to pay (except
indirectly via the payment of the Management Fee) the routine
overhead/administrative expenses of the Company or the Manager relating to
maintaining books and records, travel, routine operational accounting (such as
tracking capital accounts, determining and distributing Net Portfolio Receipts,
routine tax return preparation costs of up to $5,000 per year, and periodic
reporting to Members), the establishment and maintenance of the Management Fee
Escrow Account, office space, supplies, salaries, general office support and the
like (it being the intent that such expenses are to be paid by the Manager out
of the Management Fee).
9.3 Fund B Escrow Account
Expenses. The burden of any fees and expenses of the Company
related to the Fund B Escrow Account shall be borne exclusively by the Class A
Member as reductions in its distributions of Net Portfolio Receipts under
7.1.
9.4 Funded Securities
Expenses. The Class C Member shall bear the burden, as
reductions in the amounts of its distributions of Net Funded Securities Receipts
it is otherwise entitled to receive as provided in Section 7.6, of (i) any fees
and expenses of the Company related to the Class C Member’s interest in the
Company but not to any particular Funded Security, (ii) any fees and expenses of
the Company related to the acquisition, holding, sale, exchange or other
disposition of Funded Securities acquired by participating in subsequent
financing rounds of Portfolio Companies (including by exercising pre-emptive
rights) and (iii) the Class C Percentage
of any fees and expenses of the Company with respect to any Funded Security
acquired by exercising an option, warrant, conversion or exchange right pursuant
to Section 7.6.1(b)(i).
9.5 Source of
Payments.
9.5.1 Except as
provided in Section 8.5.1, the Manager acknowledges and agrees that the
Management Fee shall be initially payable from the gross receipts of the Company
with respect to securities included in the Portfolio when and as such receipts
become available (net of amounts used or reserved by the Manager to pay other
expenses, debts and obligations of the Company or to exercise rights or
otherwise pursue opportunities to acquire securities for the Portfolio), and not
from the separate assets of any Member.
9.5.2 The Manager and
each Member hereby acknowledge and agree that Fund Expenses and any fees
described in Section 9.3 shall be payable solely from distributions that would
otherwise be made to the Members pursuant to Section 7.1.
9.5.3 Except as
provided in Section 8.5.1, in no event shall any Member be required to make any
contributions, or return distributions received, to the Company to enable the
Company to satisfy its obligations to pay its fees and expenses (including,
without limitation, the Management Fee);
- 17 -
10. Liability;
Indemnification. No Member or Manager shall be liable,
responsible or accountable to the Company or any Member for any loss or damage
incurred by reason of any act or omission of such Member or Manager performed or
omitted on behalf of the Company or in furtherance of the interests of the
Company without bad faith, fraud, gross negligence or willful
misconduct. To the fullest extent permitted by law, and
notwithstanding any other provision of this Agreement, the Company shall
indemnify the Members, the Managers and any officers for, and shall hold them
harmless from and against, any and all damages, losses, liabilities, fines,
penalties, amounts paid in settlement, costs and expenses (including attorneys’
fees and expenses) actually and reasonably incurred by them in connection with
any threatened, pending or completed demands, claims, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, brought
or threatened against them by reason of or in connection with actions taken or
omitted to be taken by them on behalf of the Company, provided that no Member or
Manager shall be entitled to indemnification hereunder for any damage, loss,
liability, fine, penalty, amount paid in settlement, cost or expense incurred by
such Member or Manager as a result of its bad faith, fraud, gross negligence or
willful misconduct. Expenses (including attorneys’ fees) incurred by
a Member or Manager in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Company from
available cash, if any, in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such Member or
Manager to repay such amount if it is ultimately determined that such Member or
Manager is not entitled to be indemnified by the Company pursuant to this
Section 10. The cessation of a Member’s or Manager’s status as such
shall not prevent such Member or Manager from being indemnified hereunder for
actions taken or omitted while acting in such capacity.
11. Transfers.
11.1 Restrictions on
Transfer. A Member may not Transfer any interest in the
Company without the
express written consent of the Manager and each of the other Members; provided, however, (i) that the
consent of the Manager and the other Members pursuant to this Section 11.1 shall
not be required if such Transfer (a) is made by CDI in accordance with Section
11.2, (b) will not violate or fail to comply with any federal or state
securities law or regulation, (c) will not cause the Company to be treated as a
“publicly traded partnership” as defined in Section 7704(b) of the Code, (d)
will not cause the Company to be an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, (e) will not cause the assets of
the Company or any part thereof to be treated as assets of any employee benefit
plan or trust subject to ERISA, (f) will not constitute a prohibited transaction
within the meaning of Section 406 of ERISA or Section 4975 of the Code, and (ii)
that the Manager and the other Members may not unreasonably withhold their
consents (if required) to any Transfer of an interest in the Company by an
Entity to another Entity that directly or indirectly Controls, is Controlled by
or is under common Control with the Transferring Entity if (a) in the case of a
Transfer by a Class A Member, the Manager has determined that all of the
obligations of such Class A Member to the Company and Fund B (including, without
limitation, the obligation of such Class A Member to fund its commitment to Fund
B with
- 18 -
the
escrow established pursuant to Section 7.5) will be satisfied in accordance with
their terms or (b) in the case of a Transfer by a Class B Member, the Transferee
is Controlled by any two (2) or more of the individuals comprising the Windspeed
Team. The Manager, in its sole discretion, may require any Member (or
unadmitted assignee of a Member) who proposes to make any Transfer not requiring
consents under this Section 11.1 to provide the Company with a legal opinion
reasonably satisfactory to the Manager that such Transfer will comply with
applicable securities laws. In its sole discretion, the Manager may
disregard as void any Transfer made in violation of this Section
11.1. Notwithstanding anything to the contrary contained herein, no
consent or legal opinion will be required in connection with a Transfer of an
interest in the Company by CDI to an Affiliate.
11.2
Right of First
Offer. Notwithstanding the consent requirements of Section
11.1 (but subject to the other provisions thereof), a Class A Member may
Transfer its interest (or any portion thereof) in compliance with the following
procedures:
11.2.1 If a Class A Member (a
“Selling
Member”) proposes to Transfer all or any portion of its interest in the
Company to any Person other than an Affiliate of CDI, such Selling Member shall
give notice of its intent to make such Transfer (the “Transfer Notice”) to
the Manager. The Transfer Notice shall set forth (i) the portion of
the Selling Member’s interest to be Transferred (the “Offered Interest”)
and (ii) if known to the Selling Member, the identity of the prospective
Transferee and the material terms of the proposed Transfer to the prospective
Transferee.
11.2.2 The Manager shall have the
right, but not the obligation, to deliver to the Selling Member, before the
close of the ten (10) day period after the delivery of the Transfer Notice to
the Manager (such period, the “Offer Period”), a
written offer (an “Offer”) to purchase
the Offered Interest. An Offer shall set forth all of the material
terms and conditions of the proposed purchase of the Offered
Interest. The Manager’s rights to make the Offer and to purchase the
Offered Interest pursuant thereto shall be assignable by the Manager to such one
(1) or more Persons as the Manager determines to be appropriate (subject to
compliance by the Manager with the provisions of Section 11.1 as if such rights
were an interest in the Company). During the Offer Period, the
Selling Member shall not solicit proposals or offers from, or engage in
discussions with, other parties regarding the sale of the Offered
Interest.
11.2.3 The Selling Member shall
have no obligation to accept an Offer by the Manager (or its
assignee). Any closing of the purchase of the Offered Interest by the
Manager (or its assignee), however, shall take place on such date, and at such
time and place, as the Selling Member and the Manager (or its assignee) shall
agree upon. At such closing, the Manager (or its assignee) shall make
such deliveries in payment for the Offered Interest as are contemplated by the
Offer, and the Selling Member shall deliver such executed documentation
(including, without limitation, any required consents) to the Manager (or its
assignee) as may be required to effect the Transfer of the Offered Interest to
the Manager (or its assignee) and the admission of the
- 19 -
Manager
(or its assignee) as a substituted Member with respect to the Offered
Interest. All of the foregoing deliveries shall be deemed to be made
simultaneously and none shall be deemed completed until all have been
completed.
11.2.4 If the Manager (or its
assignee) does not purchase the Offered Interest in accordance with Section
11.2.3, then, subject to Section 11.1, the Selling Member shall be entitled to
Transfer the Offered Interest to a third party Transferee at any time during the
one hundred fifty (150) day period after the delivery of the Transfer
Notice. If the Offered Interest (or any portion thereof) has not been
Transferred within such one hundred fifty (150) day period, no Transfer of any
portion of the Offered Interest shall be effective unless the Selling Member has
again complied with the provisions of this Section 11 as to the Offered
Interest. As a condition to the effectiveness of any Transfer of the
Offered Interest to a third party Transferee pursuant to this Section 11.2.4,
(i) such Transferee shall (a) execute and deliver such documents and agreements
as the Manager reasonably determines to be appropriate to effect such
Transferee’s agreement to be bound by the terms and conditions of this Agreement
and (b) take such other actions as the Manager may reasonably determine to
be necessary to effect the admission of such Transferee to the Company, to
qualify the Company to conduct business or to preserve the limited liability
status of the Members, and (ii) the Selling Member and the Transferee shall
execute and deliver such documents and agreements, and take such other actions,
as the Manager may reasonably require to ensure that all of the obligations of
the Selling Member to the Company and Fund B (including, without limitation, the
obligation of the Selling Member to fund its commitment to Fund B with the
escrow established pursuant to Section 7.5) will be satisfied in accordance with
their terms.
11.3 Assignees. Unless
and until a Person who has acquired an interest in the Company by any form of
Transfer has been admitted to the Company as a Member, such Person shall have
the status of an unadmitted assignee of such interest and, as such, shall have
none of the rights and powers of a Member hereunder or under the Act (including,
without limitation, to vote, give consents or approvals, access Company records
or otherwise manage or participate in the affairs of the Company) other than to
receive the distributions and allocations that such Person’s predecessor would
have been entitled to receive hereunder with respect to such
interest. A Member who Transfers its entire interest in the Company
shall cease to have any of the rights and powers of a
Member. Notwithstanding anything herein to the contrary, the Company
shall be entitled to treat the record holder of any interest as the absolute
owner thereof in all respects, and shall incur no liability for distributions
made in good faith to such record holder, until such time as it has received
written notice of such Transfer and all of the conditions to the effectiveness
of such Transfer hereunder have been satisfied. A Person who acquires
an interest in the Company (by any form of Transfer) but is not admitted as a
substituted Member may not Transfer all or any portion of such interest without
complying with this Section 11 in full as if such Person were a Member for such
purpose.
11.4 Substituted
Members. A Person who acquires an interest in the Company by
any form of Transfer shall be admitted to the Company as a substituted
- 20 -
Member
only (i) with the consent of the Manager and each of the other Members, (ii) by
satisfying the applicable requirements of Sections 11.1 and 11.2, (iii) by
executing and delivering such documents and agreements as the Manager reasonably
determines to be appropriate to effect such Person’s agreement to be bound by
the terms and conditions of this Agreement, and (iv) if necessary, upon an
amendment to this Agreement or such other instrument, executed by all necessary
parties and filed or recorded in the proper records of each jurisdiction in
which such recordation is necessary to preserve the limited liability status of
the Members; provided, however, that the
Manager and the other Members (a) shall have no rights to consent to the
admission pursuant to this Section 11.4 of any Transferee of an interest in the
Company if they had no rights to consent to the Transfer of such interest to
such Transferee under Section 11.1 and (b) may not unreasonably withheld their
consents to the admission pursuant to this Section 11.4 of any Transferee of an
interest in the Company if they could not unreasonably withhold their consents
to the Transfer of such interest to such Transferee under Section
11.1. The admission of a substituted Member shall not dissolve the
Company and shall be shown in the books and records of the
Company. The Manager shall promptly provide the Members with written
notice of the admission of any substituted Member.
11.5 Rights of
Representatives. Notwithstanding any other provision of this
Agreement, if an individual Member that is an Entity is dissolved or terminated,
the powers of such Member may be exercised by its personal representative to the
extent required by the Act.
11.6 Partial
Transfers. If there are two (2) or more Class A Members, Class
B Members or Class C Members, as the case may be, after any Transfer by a Class
A Member, Class B Member or Class C Member of an interest in the Company, then
(i) any subsequent allocation, distribution or payment to be made hereunder to
“the Class A Member,” “the Class B Member” or the “Class C Member,” as the case
may be (and any subsequent sale to be made pursuant to Section 14.3 by the
“Class A Member”), shall be made to or by the Class A Members, Class B Members
or Class C Members, as the case may be, in proportions corresponding their
relative interests in the Company (based on their Capital Contributions, rights
to share in distributions or other factors as the Manager determines, based on
the terms of the Transfer, to be appropriate), and (ii) any subsequent consent,
approval, vote or other action of “the Class A Member,” “the Class B Member” or
the “Class C Member” hereunder (including, without limitation, an amendment of
this Agreement pursuant to Section 18.11) shall be validly effected if given or
taken, as the case may be, by a majority in interest of the Class A Members,
Class B Members or Class C Members, as the case may be (based on their Capital
Contributions, rights to share in distributions or other factors as the Manager
determines, based on the terms of the Transfer, to be appropriate).
11.7 Costs and
Expenses. Any costs or expenses incurred by the Company in
connection with any Transfer or proposed Transferor of an interest in the
Company shall be paid or reimbursed by the Transferor of such
interest.
- 21 -
12. Withdrawals.
12.1 Withdrawals. Except
as expressly permitted by this Agreement, no Member may (i) resign or withdraw
from the Company or (ii) receive any distribution from the Company on account of
its resignation or withdrawal (whether voluntary, involuntary or by operation of
law) before the liquidation of the Company.
12.2 Retirement
Events. From and after the time a Retirement Event occurs with
respect to any Member (such Member, the “Retired Member”),
such Retired Member (and, subject to Section 11, any Transferee of any interest
of such Retired Member in the Company) shall, except as otherwise specifically
provided in this Agreement, have the status of an unadmitted assignee of its
interest in the Company and, as such, shall have none of the rights and powers
of a Member hereunder or under the Act (including, without limitation, to vote,
give consents or approvals, access Company records or otherwise manage or
participate in the affairs of the Company) other than to receive the
distributions and allocations that it otherwise would have been entitled to
receive hereunder with respect to such interest.
13. Actions of the
Members.
13.1 In
General. Except as otherwise provided in this Agreement, a
Member’s consent, approval, vote or other action as to any matter may be
effected by (i) the affirmative vote by such Member to the doing of the act or
thing under consideration at any meeting called and held pursuant to Section
13.2 to consider such act or thing or (ii) a written consent given by such
Member at, prior to or after the doing of the act or thing under consideration
pursuant to Section 13.3.
13.2 Meetings. Any
matter requiring the action of any one (1) or more of the Members hereunder may
be considered at a meeting called by the Manager or any Member and held not less
than three (3) nor
more than thirty (30) Business Days after written notice thereof shall have been
given to the Member(s) entitled to vote at the meeting. Any such
notice shall state briefly the purpose, time and place of the
meeting. A Member may waive in writing the requirements for notice of
a meeting before, during or after such meeting (and the attendance of a Member
at any meeting shall constitute such Member’s waiver). All such
meetings shall be held at such reasonable times and places as the Manager (or,
in the case of a meeting of the Class A Member(s), such Class A Member(s)) shall
determine. A Member may participate in any meeting by conference
telephone call or similar communications equipment if all the Persons
participating in such meeting can hear each other. Such participation
of a Member shall constitute the presence of such Member at such
meeting. At any meeting of one (1) or more of the Members, the
presence in person, or by conference telephone call or similar communications
equipment, of Members sufficient to approve the action under consideration shall
be required to constitute a quorum for the transaction of business at such
meeting. When a quorum is present at any meeting of one (1) or more
of the Members, the vote of Members sufficient to approve the action under
consideration shall
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decide
any matter brought before such meeting, unless the matter is one upon which by
express provision of law or this Agreement, a different vote is required, in
which case such express provision shall govern and control the decision on such
matter.
13.3 Action Without
Meeting. Any action that may be taken at a meeting of any one
(1) or more of the Members may be taken without a meeting, without prior notice
and without a vote if a consent or consents in writing, setting forth the action
so taken, are signed by one (1) or more Members (or their proxy holders) whose
votes would be sufficient to authorize or take such action at a meeting and
delivered to the Company (and, if the consent of more than one (1) Member is
required, are delivered to the Company within a period of sixty (60) consecutive
days). Any copy, facsimile or other reliable reproduction of a
consent in writing may be substituted or used in lieu of the original writing
for any and all purposes for which the original writing could be used, provided
that such copy, facsimile or other reproduction shall be a complete reproduction
of the entire original writing. Prompt notice of the taking of any
action without a meeting by fewer than all of the Members entitled to
participate in such action shall be given to those Members who have not
consented in writing.
13.4 Proxies. A
Member entitled to vote at a meeting of one (1) or more of the Members, or to
express consent or dissent to Company action in writing without a meeting, may
authorize another Person or Persons to act for it by proxy, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period.
13.5 No Other Voting
Rights. A Member shall have no rights to vote, give consents
or approvals, or otherwise manage or participate in the affairs of the Company
except as expressly provided in this Agreement or in any mandatory provision of
the Act.
14. Dissolution; Wind-up;
Liquidating Distributions.
14.1 Events Causing
Dissolution. The Company shall dissolve (i) at the time that
there are no remaining Members of the Company unless the business of the Company
is continued in accordance with the Act, (ii) on the effective date specified in
a written election to dissolve the Company adopted and approved by the Manager
and the Class A Member at any time before the fifth (5th) anniversary of the
Effective Date of this Agreement, (iii) on the effective date
specified in a written election to dissolve the Company adopted by the Class A
Member at any time on or after the fifth (5th ) anniversary of the
Effective Date of this Agreement or (iv) the time of the judicial dissolution of
the Company under the Act.
14.2 Wind-up. The
Manager (or, if one is appointed under the Act, a liquidating trustee) shall be
responsible for the winding up and liquidation of the
Company. Subject to Section 8.3 (it being agreed, however, that
Section 8.3.1 shall not apply after the Company’s dissolution), after the
dissolution of the Company, the Manager (or such liquidating trustee) shall
collect the Company’s receivables, pay the Company’s debts and obligations, and
liquidate or distribute the Company’s assets as
- 23 -
promptly
as is practicable and consistent with obtaining fair value for the Company’s
assets, having due regard to the activity and condition of the relevant markets
and general financial and economic conditions. After the Company’s
affairs have been wound up and its debts and obligations have been paid or
provided for, the Manager shall (i) make a final allocation of Profit or
Loss, as the case may be, and other items in such amounts and proportions as are
necessary (to the extent possible) for the Members’ capital account balances to
equal the amounts of any remaining assets of the Company they would be entitled
to receive if such remaining assets were to be distributed in accordance with
Section 7 (subject to the limitations set forth therein) and (ii) then
distribute such remaining assets to the Members in accordance with Section
7. Until the Company’s termination pursuant to Section 14.4, the
business of the Company and the affairs of the Manager and Members, as such,
shall continue to be governed by this Agreement, provided that the Company shall
engage in no further business other than in connection with its wind-up and
liquidation.
14.3 Bid by the
Manager. Within ninety (90) days after the Company’s election
to dissolve, the Manager shall prepare and deliver to the Class A Member, at the
Manager’s expense, a bid for the Class A Member’s interest in the Company at a
price, and on such other terms and conditions, as the Manager determines to be
appropriate in its sole discretion. If, within thirty (30) days after
the delivery of such bid, the Class A Member delivers a written notice to the
Manager approving the sale of its interest in the Company to the Manager at the
price, and on the other terms and conditions, set forth in such bid, then the
Manager shall purchase, and the Class A Member shall sell, the Class A Member’s
interest in the Company at such price and on such terms and
conditions. The Manager may assign its right to purchase the interest
of the Class A Member to one (1) or more Persons as it determines to be
appropriate. At any closing of a purchase and sale pursuant to this
Section 14.3, the Manager (or its assignee) shall make such deliveries in
payment, and the Class A Member shall make such deliveries of instruments of
assignment, as are necessary to effect such purchase and sale (with all of the
required deliveries deemed made simultaneously and none deemed completed until
all have been completed). If the Class A Member does not deliver such
notice of approval to the Manager, the Manager shall have no obligation or right
to purchase the Class A Member’s interest in the Company.
14.4 Termination. The
dissolution of the Company shall be effective on the day on which the event
occurs giving rise to the dissolution, but the Company shall not terminate until
the winding up of the business and affairs of the Company has been completed as
provided herein and a certificate of cancellation of the Company has been filed
with the Office of the Secretary of State of the State of
Delaware. The Manager (or the liquidating trustee, as the case may
be), acting singly, is authorized to execute and file a certificate of
cancellation on behalf of the Company.
14.5 Liquidating
Trust. With the approval of the Fund A Advisor, if the Company
has not been liquidated by the second anniversary of the date of its dissolution
pursuant to Section 14.1, the Manager (or liquidating trustee) may distribute
the non-cash assets of the Company (other than any Marketable Securities) to a
trust established for the
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sole
purposes of liquidating such remaining assets, collecting amounts owed to the
Company and paying any contingent or unforeseen liabilities or obligations of
the Company. The Manager (or such liquidating trustee) shall use
reasonable efforts to ensure that such trust qualifies as a liquidating trust
under Treasury Regulations Section 301.7701-4(d). The distribution to
the trust shall constitute a final, liquidating distribution of assets pursuant
to 14.2 (with any asset distributed in kind to the trust being treated as if it
were an amount of cash equal its fair market value as determined pursuant to
Section 7.7). For purposes of determining and allocating Profit, Loss
and other items pursuant to Section 6, any asset that is to be distributed in
kind to such trust shall be treated as having then been sold by the Company for
its value as determined for purposes of applying this Section 14.5 (provided
that, for such purposes, the fair market value of any asset that is distributed
subject to a nonrecourse indebtedness shall be deemed not to be less than the
amount of such indebtedness). The Members’ relative beneficial
interests in the trust shall be equal to their respective relative interests in
the assets contributed to the liquidating trust as of the time that such assets
are contributed to the liquidating trust.
15. Withholding. Notwithstanding
any other provision of this Agreement, the Company shall be entitled to withhold
and pay over, or otherwise pay, any withholding or other taxes payable by the
Company at such times and based upon such rates as the Manager determines to be
appropriate. If the Company makes a payment of tax for any accounting
period with respect to any Member or as a result of any Member’s participation
in the Company, such Member shall be deemed for all purposes of this Agreement
to have received the amount of such payment as a distribution from the Company
on the last day of the period for which the tax is withheld and paid or, if
earlier, on the last day on which such Member owned an interest in the
Company. Any deemed distribution to a Member pursuant to this Section
15 shall be treated (to the extent not repaid to the Company) as an advance of,
and shall offset, an equal amount of distributions that would otherwise
thereafter be made to such Member pursuant to the provisions of Section 7 in the
order that such distributions would otherwise have been made. To the
extent that the aggregate of such distributions to a Member for any month
exceeds the distributions to which such Member would otherwise be entitled for
such month, the amount of such excess shall be repaid by such Member to the
Company within thirty (30) days after the end of such month.
16. Books;
Reports.
16.1 Books and
Records. The books and records of the Company, including a
list of the names and business or mailing addresses of the Members, shall be
maintained at the principal office of the Company in accordance with the
Act. All of the books and records of the Company shall be available
for examination at the offices of the Company in which they are maintained by
any Member or by any Member’s duly authorized representatives at any and all
reasonable times upon reasonable notice. Each Member, or such
Member’s duly authorized representatives, upon written notice to the Manager and
upon paying the costs of collection, duplication and mailing, shall be entitled
for any purpose reasonably related to such Member’s interest as a Member in the
Company to a copy of information to which such Member is entitled under the
Act. The
- 25 -
Company
may maintain such other books and records and may provide such financial or
other statements as the Manager and the Fund A Advisor mutually agree
upon.
16.2 Accounting; Tax
Year. The Company shall report its operations for tax purposes
on such method and based upon such taxable year as the Manager determines to be
appropriate consistent with applicable federal income tax laws. The
financial statements of the Company shall be prepared in accordance with
generally accepted accounting principles.
16.3 Reports
16.3.1 Within ninety (90) days
after the end of each fiscal year of the Company, or as soon as practicable
thereafter, the Manager shall send to each Person who was a Member at any time
during such fiscal year such tax information as shall be necessary for the
preparation by such Person of its federal, state and local income tax
returns.
16.3.2 Within (45) days after the
end of each fiscal quarter of the Company, the Manager shall send to each Member
and the Fund A Advisor, in substantially the form of Exhibit A attached
hereto, (i) an unaudited Statement of Assets, Liabilities and Members’ Capital
of the Company as of the end of such quarter, (ii) unaudited statements of
operations of the Company for such quarter and for the fiscal year that includes
such quarter through the end of such quarter, (iii) a summary of any
transactions by the Company during such quarter and (iv) a summary of any
distributions made during such quarter.
17. Definitions. As used
in this Agreement, the following terms shall have the meanings assigned to them
in this Section 17:
“Act” has the meaning
set forth in the Recitals.
“Actual Fund Expense”
has the meaning set forth in Section 7.1.
“Adjusted Capital Account
Balance” means, with respect to any Member as of the close of any fiscal
year or other accounting period, the balance in such Member’s capital account
adjusted by adding to such balance such Member’s share of any “minimum gain” or
“partner nonrecourse debt minimum gain,” within the meaning of the Treasury
Regulations under Section 704(b) of the Code, of the Company as of the close of
such year or other period.
“Affiliate” means (i)
with respect to any individual, (a) any member of such individual’s Family, (b)
any Entity more than ten percent (10%) of the beneficial interests in which are
directly or indirectly owned by one (1) or more of such individual and members
of such individual’s Family or (c) any member, manager, director, partner,
shareholder, officer, trustee, beneficiary or employee of any Entity described
in (b), and (ii) with respect to any Entity, (a) any direct or indirect member,
manager, director,
- 26 -
partner,
shareholder, officer, trustee or beneficiary of or in such Entity, (b) any
member of the Family of an individual described in (a) or (c) any other Entity
directly or indirectly Controlling, Controlled by or under common Control with
such Entity.
“Business Day” means
any day that is not a Saturday, Sunday or legal holiday in the Company’s
principal place of business.
“Capital Contribution”
means, with respect to any Member as of any time of determination, the sum of
(i) the amount of money that such Member has contributed to the Company pursuant
to Section 5, (ii) the fair market value, as determined pursuant to Section 5,
of any property that such Member has contributed to the Company (net of any
liabilities that the Company has assumed or taken subject to, under Section 752
of the Code, in connection with acquiring such property from such Member), and
(iii) the amount of any Company liabilities that such Member has assumed, within
the meaning of Section 1.704-l(b)(2)(iv)(c) of the Treasury
Regulations. A loan by a Member to the Company shall not be treated
as part of such Member’s Capital Contribution. A Transferee of all or
a portion of a Member’s interest in the Company shall succeed to the Capital
Contribution of its Transferor to the extent allocable, based on the terms of
the Transfer, to the Transferred interest.
“Cash Option
Securities” has the meaning set forth in Section 8.3.3(iv).
“Cause” means, with
respect to Windspeed (or an Entity that has become Manager pursuant to Section
8.1.3 upon the Transfer to it of Windspeed’s interest in the Company), any of
the following:
(i)
the material breach of its duties as Manager under this Agreement without cure
within a reasonable period of time after written notice to it of such
breach;
(ii)
the commitment of a material act of fraud, willful misconduct or breach of
fiduciary duty under any federal or state securities laws, or fraud, gross
negligence or willful misconduct relating to its duties as Manager;
(iii)
the conviction of, or plea of nolo contendere to, a felony by
any of the individual members of the Manager; or
(iv) at
least two of the individuals comprising the Windspeed Team are no longer
actively committed to the Manager in accordance with Section 8.1.5 and such
failure is volitional on the part of at least one of such
individuals.
“CDI” has the meaning
set forth in the initial paragraph of this Agreement.
“Certificate” means
the Company’s Certificate of Formation filed with the Secretary of State of the
State of Delaware.
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“Class A Member” means
any Person who, at the time of reference, has been admitted to the Company as,
and remains, a Class A Member hereunder.
“Class A/B Percentage”
means, with respect to any Funded Security acquired by exercising an option,
warrant, conversion or exchange right, 100% minus the Class C Percentage with
respect to such Funded Security.
“Class B Member” means
any Person who, at the time of reference, has been admitted to the Company as,
and remains, a Class B Member hereunder.
“Class C Member” means
any Person who, at the time of reference, has been admitted to the Company as,
and remains, a Class C Member hereunder.
“Class C Percentage”
means, with respect to any Funded Security acquired by exercising an option,
warrant, conversion or exchange right, the percentage (which in no event shall
be greater than one hundred percent) determined by dividing (i) the sum of the
contributions that have been made to the Company pursuant to Section 5.3 to
permit the Company to acquire such Funded Security (less returns of such
contributions pursuant to Section 5.3) by (ii) the value of such Funded Security
as of the date of its acquisition by the Company.
“Code” means the
Internal Revenue Code of 1986, as amended, and, where applicable, any
predecessor or successor thereto.
“Company” means the
Delaware limited liability company governed by this Agreement named Comdisco
Ventures Fund A, LLC (or such other name as may be selected pursuant to Section
1.3).
“Control” (including
the terms “controlling,” “controlled by,” and “under common control with”) means
the direct or indirect possession of the power to direct or cause the direction
of the management and policies of an Entity, whether through the ownership of
Voting Securities, by contract, or otherwise.
“Effective Date” means
February 20, 2004.
“Entity” means any
corporation, partnership, limited liability company, trust, unincorporated
association or other organization.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.
“Event of Bankruptcy”
means, with respect to any Person (except CDI), any of the following
events:
(i)
the making by such Person of an assignment for the benefit of
creditors;
- 28 -
(ii)
the filing by such Person of a voluntary petition under
any bankruptcy, insolvency or similar law;
(iii)
the adjudication of such Person by a court of competent
jurisdiction as a bankrupt or insolvent, or the entry against such Person of an
order for relief under any bankruptcy, insolvency or similar
proceeding;
(iv) the
filing by such Person of a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any bankruptcy or insolvency statute, law or
regulation;
(v) the
filing by such Person of an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against him in any
bankruptcy or insolvency proceeding;
(vi)
such Person’s written request for, consent to or
acquiescence in the appointment of a trustee, receiver or liquidator of such
Person or of all or any substantial part of such Person’s properties;
or
(vii) the
passage of (i) one hundred twenty (120) days after the commencement of any
proceeding against such Person seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any bankruptcy or
insolvency statute, law or regulation without such proceeding having been
dismissed, (ii) ninety (90) days after the appointment, without such Person’s
consent or acquiescence, of a trustee, receiver or liquidator of such Person or
of all or any substantial portion of such Person’s properties without such
appointment having been vacated or stayed or (iii) ninety (90) days after the
expiration of any stay of an appointment referred to in the foregoing clause
(ii) without such appointment having been vacated.
“Family” means, with
respect to any individual, any of such individual’s spouse and descendants (by
blood or adoption).
“Fund A Advisor” means
the individual designated by the Class A Members from time to time pursuant to
Section 8.2.
“Fund B” has the
meaning set forth in the initial paragraph of this Agreement.
“Fund B Agreement”
means the Amended and Restated Limited Liability Company Agreement of Comdisco
Ventures Fund B, LLC, dated April 11, 2006, executed and delivered by CDI,
Windspeed and Windspeed Acquisition Fund, L.P. in connection with their
execution and delivery of this Agreement.
“Fund B Escrow
Account” has the meaning set forth in Section 7.5.
- 29 -
“Fund Expenses” means
any fees or expenses paid or incurred by the Company (whether Routine Expenses
or Non-Routine Expenses) or reserves established therefore other than (i) fees
and expenses payable by the Manager out of the Management Fee pursuant to
Section 9.2, (ii) fees and expenses related to the Fund B Escrow Account to be
borne by the Class A Member as provided in Section 9.3 and (iii) fees and
expenses to be borne by the Class C Member as provided in Sections 7.6.2 and
9.4.
“Funded Securities”
means securities acquired by the Company by (i) participating in subsequent
financing rounds of Portfolio Companies (including by exercising pre-emptive
rights) with cash contributed by Fund B pursuant to Section 5.3 in situations
where such Portfolio Company has imposed transferability restrictions with
respect to its securities or (ii) exercising option, warrant, conversion or
exchange rights that could have been exercised on a cashless basis with cash
contributed by Fund B pursuant to Section 5.3, provided that the
Company receives at least the same number of securities upon such exercise as it
would have received had it exercised such option, warrant, conversion or
exchange right on a cashless basis.
“Funded Security”
means any particular block of Funded Securities acquired in a single transaction
or series of related transactions.
“Initial Agreement”
has the meaning set forth in the Recitals.
“Management Fee” means
the management fee payable pursuant to Section 8.5.1.
“Management Fee Escrow
Account” has the meaning set forth in Section 8.5.1.
“Management Period”, unless otherwise
either extended or terminated hereunder, the two (2) year period setforth in
Section 8.5.1.
“Manager” means
Windspeed, or any successor thereto, in its capacity as manager of the Company
hereunder.
“Marketable Security”
means any security that is described in Section 7.7.1, Section 7.7.2 or Section
7.7.3, and which is not subject to any “hold back” or “lock up” required by a
managing underwriter in connection with the public offering of equity securities
of the Portfolio Company which issued such Marketable Securities, or any
restriction on the disposition thereof under the terms of any other agreement or
of any law, regulation or policy of any state, and each Member’s entire holdings
of such Marketable Securities can be sold by such Member to the general public
without the necessity of any federal, state or local government consent,
approval or filing (other than any notice filings of the type required pursuant
to Rule 144(h) under the Securities Act of 1933, as amended) and without
violation of federal or state securities laws.
- 30 -
“Member” means any
Person who is a member of the Company (whether of Class A, Class B or Class C)
as shown on the books of record of the Company at the time of reference thereto,
in such Person’s capacity as a member of the Company.
“Members’ Capital”
means, as of any date of determination, the amount that would be available for
distribution to the Members pursuant to Sections 7 and 14 if the Company were to
sell its assets at their values determined in accordance with Section 7.7 (as
applicable), satisfy its debts and obligations (including, without
limitation, any accrued but unpaid portion of the Management Fee) in accordance
with their terms, and then liquidate.
“Net Funded Securities
Receipts” means the amounts of cash received by the Company with respect
to Funded Securities net of amounts used or reserved by the Manager to pay
expenses related to the acquisition, holding, sale, exchange or other
disposition of such Funded Securities.
“Net Portfolio
Receipts” means the amounts of cash received by the Company with respect
to securities included in the Portfolio net of (i) Fund Expenses (including,
without limitation, the Management Fee), (ii) amounts used or reserved by the
Manager to acquire securities for the Portfolio, including, without limitation,
by exercising option, warrant, conversion, exchange, pre-emptive or other
purchase rights with respect to securities held by the Company and (iii) amounts
distributable to the Class C Member pursuant to Section 7.6.
“Non-Routine Expenses”
means any Fund Expenses that are not Routine Expenses.
“Offer” has the
meaning set forth in Section 11.2.2.
“Offered Interest” has
the meaning set forth in Section 11.2.1.
“Offer Period” has the
meaning set forth in Section 11.2.2.
“Person” means any
individual or Entity.
“Portfolio” means the
securities listed on the attached Schedule 1 and any other securities
that the Company directly or indirectly acquires in respect of, or in exchange
for, such securities, including, without limitation, by reason of (i) any stock
dividend, stock split, stock issuance, combination, recapitalization,
reclassification, merger, consolidation, conversion or similar transaction, (ii)
exercising option, warrant, conversion, exchange, pre-emptive or other purchase
rights, or (iii) participating in subsequent financing rounds of Portfolio
Companies.
“Portfolio Company”
means any issuer of any of the securities included in the Portfolio.
- 31 -
“Profit” or “Loss” means, for each
fiscal year or other accounting period of the Company, an amount equal to the
Company’s taxable income or loss for such period determined in accordance with
Section 703(a) of the Code (for this purpose, all items of income, gain, loss,
deduction and expenditure required to be separately stated pursuant to Section
703(a)(1) of the Code shall be included in such taxable income or loss),
including each item thereof, computed with the following
adjustments:
(i)
income of the Company that is exempt from federal income tax and that is not
otherwise taken into account in computing Profit or Loss shall be added to such
taxable income or loss;
(ii)
expenditures of the Company that are described in Section
705(a)(2)(B) of the Code (or that are treated as described in such Section
pursuant to Section 1.704-l(b)(2)(iv)(i) of the Treasury Regulations) and that
are not otherwise taken into account in computing Profit or Loss shall be
subtracted from such taxable income or loss;
(iii)
any asset that is distributed in kind shall be
treated as having been sold for its fair market value as determined by the
Manager in accordance with Sections 1.704-l(b)(2)(iv)(e) and
1.704-l(b)(2)(iv)(f) of the Treasury Regulations;
(iv)
adjustments to the book values of Company assets pursuant to Section
1.704-1(b)(2)(iv)(f) of the Treasury Regulations in connection with a
contribution to or distribution by the Company shall be treated as gains or
losses, as the case may be, from dispositions of those assets in accordance with
Section 1.704-l(b)(2)(iv)(f) of the Treasury Regulations;
(v)
gains, losses and cost recovery
deductions with respect to Company assets that are properly reflected, under
Section 1.704-l(b)(2)(iv) of the Treasury Regulations, on the Company’s books at
values that differ from the Company’s tax bases in those properties shall be
determined with reference to the book values of those assets in accordance with
Sections 1.704-l(b)(2)(iv)(f), 1.704-l(b)(2)(iv)(g) and 1.704-l(b)(4)(i) of the
Treasury Regulations; and
(vi)
items that are specially allocated pursuant to Section
6.3 or Section 6.4 shall not be taken into account in computing a Profit or Loss
for any year or other period.
“Regulatory
Allocations” has the meaning set forth in Section 6.4.
“Retired Member” has
the meaning set forth in Section 12.2.
“Retirement Event”
means, with respect to any Member, (i) an Event of Bankruptcy with respect to
such Member (except CDI), or (ii) the Transfer (or the occurrence of any event
which results or will result in the Transfer) by such Member of any interest in
the Company in violation of this Agreement.
- 32 -
“Routine Expenses”
means the following expenses:
(i)
expenses (including, without limitation,
legal, accounting, filing and other fees) incurred by the Company or the Manager
in connection with the formation, dissolution or termination of the Company in
an aggregate amount not exceeding (together with the corresponding expenses of
Fund B) $50,000;
(ii)
fees and out-of-pocket costs of evaluating, negotiating,
structuring, documenting and effecting transactions by the Company of up to
$5,000 per fee or expense, including finders, placement, brokerage, accounting,
legal, investment banking and other fees;
(iii)
taxes, fees or other governmental charges levied
against the Company or on its income or assets or in connection with its
business or operations;
(iv)
costs of litigation and similar matters of up to
$5,000 per fee or expense (including matters that are the subject of
indemnification pursuant to Section 10); and
(v)
the Management Fee.
“Selling Member” has
the meaning set forth in Section 11.2.1.
“Short Term
Investments” means commercial paper, governmental obligations, money
market instruments, money market mutual shares, certificates of deposit and
other similar obligations and securities in each case of high investment grade
quality.
“Target Capital Account
Balance” means, for any Member as of the close of any fiscal year or
other accounting period, the amount which such Member would then be entitled to
receive if the Company were to sell its non-cash assets at book value as then
determined in accordance with the Treasury Regulations under Section 704(b) of
the Code, satisfy its debts and obligations (including, without limitation, the
obligation of the Company to pay the Management Fee) in accordance with their
terms, and then liquidate in accordance with Sections 7 and 14.
“Tax Liability” means,
as to any Member as of the close of any fiscal year or other accounting period,
(i) the amount of net taxable income and gain of the Company allocated with
respect to such Member’s interest in the Company (including to predecessor
holders) pursuant to Section 6 for periods through and including the close of
such fiscal year or other accounting period, multiplied by (ii) the highest
combined federal and state rate (taking into account any federal deductibility
of state taxes and vice versa, and any applicable capital gain or other
preferences) applicable to individual residents of Massachusetts, in the case of
allocations to the Class B Member or the Class
- 33 -
C
Member, or to corporations with principal places of business in Illinois, in the
case of the Class A Member, for such fiscal year or other accounting
period.
“Tax Matters Partner”
has the meaning set forth in Section 6.9.
“Term” has
the meaning set forth in Section 4.
“Thresholds” has the
meaning set forth in Section 7.1.
“Transfer” means
(i) when used as a verb, to sell, assign, transfer, bequeath, devise,
pledge, encumber or otherwise dispose of, voluntarily, involuntarily or by
operation of law, and (ii) when used as a noun, any sale, assignment,
transfer, bequest, devise, pledge, encumbrance or other disposition, whether
voluntary, involuntary or by operation of law.
“Transfer Notice” has
the meaning set forth in Section 11.2.1.
“Treasury Regulations”
means the Income Tax Regulations promulgated from time to time under the
Code. References to specific sections of the Treasury Regulations
shall be to such sections as amended, supplemented or superseded by Treasury
Regulations currently in effect.
“Voting Securities”
means, with respect to any Entity that is a corporation (or that is managed by
one (1) or more Persons having powers similar to those of a corporate board of
directors and who are subject to periodic re-election, or removal and
replacement, similar to corporate directors), securities of such Entity having
the right to vote in an election, or for the removal and replacement, of such
Entity’s board of directors (or such Persons having similar
powers).
“Windspeed” has the
meaning set forth in the initial paragraph of this Agreement.
“Windspeed Team” means
Xxxxxx X. Xxxxxx Xx., Xxxx X. Xxxxxxx and Xxxxxx Xxxxxxx, the general partners
of Windspeed.
18. Miscellaneous.
18.1 Successors and
Assigns. The covenants and agreements contained herein shall
be binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the respective parties hereto, and no
other Person shall have any rights or benefits hereunder except to the extent
expressly provided by applicable law.
18.2 Waivers. The
failure of any Person to seek redress for violation, or to insist on strict
performance, of any covenant or condition of this Agreement shall not
(i) prevent a subsequent act which would have constituted a violation from
having the
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effect
of an original violation or (ii) excuse strict performance of such covenant
or condition in any subsequent case.
18.3 Certification. The
Manager may cause any or all of the Members’ interests in the Company to be
evidenced by certificates. Unless certificated pursuant to this
Section 18.3, interests in the Company shall not be evidenced by
certificates. As a condition to the effectiveness of any Transfer of
an interest that has been certificated, the Manager may require the submission
to the Company of the certificate(s) evidencing such interest (or an affidavit
of loss in such form as the Manager determines to be appropriate).
18.4 Governing
Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Delaware without
regard to principles of conflicts of law. In the event of a conflict
between any provision of this Agreement and any non-mandatory provision of the
Act, the provisions of this Agreement shall control and take
precedence.
18.5 Separability. Each
provision of this Agreement shall be considered separable, and if for any reason
any provision or provisions of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid or unenforceable
in any jurisdiction, such provision or provisions shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without invalidating the remaining provisions hereof, or the
application of the affected provision to Persons or circumstances other than
those to which it was held invalid or unenforceable, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18.6 Entire
Agreement. This Agreement (together with any exhibits,
schedules, subscription or other agreements (including the Fund B Agreement)
referred to herein, which are hereby incorporated herein by reference)
constitutes the entire agreement among the parties governing the relationship
established hereby. This Agreement (together with such exhibits,
schedules and agreements) supersedes any prior agreement or understanding among
the parties and may not be modified or amended in any manner other than as set
forth herein or therein.
18.7 Section
Titles. Section titles are for descriptive purposes only and
shall not control or alter the meaning of this Agreement as set forth in the
text.
18.8 Counterparts. This
Agreement may be executed in several counterparts, all of which together shall
constitute one agreement binding on all parties hereto notwithstanding that all
the parties have not signed the same counterpart.
18.9 Pronouns. When
used herein, pronouns and variations thereof shall be deemed to refer to the
masculine, feminine or neuter or to the singular or plural as the identity of
the Person or Persons referenced or the context may require.
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18.10 No
Partition. Except as expressly provided herein, no Member or
successor-in-interest to any Member shall have the right while this Agreement
remains in effect to have any property of the Company partitioned, or to file a
complaint or institute any proceeding at law or in equity to have such property
of the Company partitioned, and the Member, on behalf of itself and its
successors, representatives, heirs and assigns, hereby waives any such
right.
18.11 Amendments. In
addition to any amendments otherwise permitted by this Agreement, this Agreement
may be amended from time to time with the consent of each of the Manager, the
Class A Member and the Class B Member; provided, however, that no
amendment that would adversely modify the rights, obligations, preferences or
privileges of the Class C Member shall be adopted without the approval of the
Class C Member.
18.12 Notice
Addresses. Any notice to a Member shall be delivered in
writing at the address of such Member set forth below such Member’s name on the
signature page hereof (or instrument of adherence hereto) executed by such
Member or at such other mailing address of which such Member shall prospectively
notify the Manager and the other Members in writing (any such other mailing
address shall be duly noted by the Manager in the Company’s books and
records). Any notice to the Company or the Manager shall be at the
principal office of the Company as set forth in Section 3 or at such other
mailing address of which the Manager shall prospectively notify the Members in
writing.
18.13 Notice Deemed
Given. Any notice shall be deemed to have been duly given if
personally delivered or sent by United States mail or express mail service or by
telecopy or telegram confirmed by letter and will be deemed given, unless
earlier received, (i) if sent by certified or registered mail, return
receipt requested, or by first-class mail, five (5) calendar days after being
deposited in the United States mails, postage prepaid, (ii) if sent by
United States Express Mail or other express mail service, two (2) calendar days
(other than Sundays and federal holidays) after being deposited therein,
(iii) if sent by telegram, telecopy or other electronic transmission, on
the date sent provided confirmatory notice is sent by first-class mail, postage
prepaid, and (iv) if delivered by hand, on the date of
receipt.
18.14 Dispute
Resolution. In the event of any controversy, dispute or claim
under, arising out of or related to this Agreement (including but not limited to
claims relating to breach, termination, fraud or misrepresentation, or the
invalidity, illegality or voidness of this Agreement) whether based on contract,
tort, statute or other legal theory (collectively hereinafter, “disputes”), the
parties shall first attempt to resolve the dispute, at the written request of
any party to the dispute, through discussions between authorized senior
representatives of the parties to the dispute. If, despite the good
faith efforts of the parties, the dispute is not resolved by the foregoing
discussions within fifteen (15) days, the dispute shall be referred to binding
arbitration in Chicago, Illinois pursuant to the commercial arbitration rules
then in effect of the American Arbitration Association by a sole arbitrator
selected by the parties within fifteen (15) days after
- 36 -
written
request for arbitration by any party or, in the absence of such selection, to
arbitrator(s) selected in accordance with such rules. Any award made
pursuant to an arbitration proceeding shall be made within four (4) months of
the appointment of the arbitrator and may be entered in any court of competent
jurisdiction. The arbitrator shall determine issues of arbitrability
but may not limit, expand or otherwise modify the terms of this
Agreement. Issues of arbitrability shall be determined in accordance
with the federal substantive and procedural laws relating to
arbitration.
[Remainder
of Page Intentionally Left Blank]
- 37 -
COUNTERPART SIGNATURE
PAGE
TO
THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
By
its execution of this signature page, the undersigned does hereby agree to be
bound by the provisions of the Third Amended and Restated Limited Liability
Company Agreement to which this signature page is appended, a counterpart of
which has been furnished to the undersigned, and the undersigned hereby
authorizes the Company to append this signature page to a counterpart of the
Third Amended and Restated Limited Liability Company Agreement as evidence
thereof.
|
COMDISCO,
INC.
|
||
|
By:
|
/s/
Xxxxxxxx X. Xxxxxxxx
|
|
|
Name:
|
Xxxxxxxx
X. Xxxxxxxx
|
|
|
Title:
|
President
and Chief Executive Officer
|
|
|
Address:
|
0000
Xxxxx Xxxxx Xxxx
|
|
|
Xxxxxxxx,
Xxxxxxxx 00000
|
||
|
WINDSPEED
ACQUISITION FUND GP, LLC
|
||
|
By:
|
/s/
Xxxx Xxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
Title:
|
Managing
Partner
|
|
|
Address:
|
00
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
||
|
COMDISCO
VENTURES FUND B, LLC
|
||
|
By:
|
Windspeed
Acquisition Fund GP, LLC
|
|
|
Its
General Partner
|
||
|
By:
|
/s/
Xxxx Xxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
Title:
|
Managing
Partner
|
|
|
Address:
|
00
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
||
[Signature Page to Fund A LLC Agreement]
