EXHIBIT 10.50
AMENDMENT NO. 1 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
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@VENTURES FOREIGN FUND III, L.P.
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This Amendment No. 1, dated as of December 22, 1998 (this "Amendment"), is
by and among @Ventures Partners III, LLC (the "General Partner"), the general
partner of @Ventures Foreign Fund III, L.P., a Delaware limited partnership (the
"Partnership"), and the undersigned Limited Partners. Capitalized terms used
herein without definition have the meaning set forth in the Partnership's
Agreement of Limited Partnership, as amended to date (the "Agreement").
RECITALS:
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WHEREAS, the undersigned Partners deem it to be desirable and in the best
interests of the Partnership to amend the Agreement to clarify the terms of
CMGI's co-investment obligation with respect to investment opportunities offered
to the Partnership, in order to be consistent with the Partners' mutual
understanding.
WHEREAS, the undersigned Partners deem it to be desirable and in the best
interests of the Partnership to amend the Agreement in order waive the
requirement, set forth in Section 10.3 of the Agreement, that the General
Partner cause an audit of the Partnership for the year ended December 31, 1998.
WHEREAS, the undersigned Partners deem it to be desirable and in the best
interest of the Partnership to amend the Agreement with respect to certain other
provisions, as set forth herein.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained and intending to be legally bound hereby, the undersigned Partners
agree as follows:
A. AMENDMENTS TO THE AGREEMENT.
1. Section 3.2 of the Agreement is hereby amended by deleting the last
sentence thereof and inserting in lieu thereof the following:
"For purposes of this Article III, "Aggregate Partnership Percentage"
equals the quotient, expressed as a percentage, of the aggregate Capital
Commitments of all of the Partners of the Partnership, divided by the sum
of the aggregate Capital Commitments of all of the Partners of the
Partnership, plus the aggregate capital commitments of all of the partners
of
the Domestic Fund, plus the CMGI Co-investment Obligation, plus the
Employee Fund Co-investment Obligation."
2. Section 7.2 of the Agreement is hereby amended by inserting the
following language immediately preceding the period at the end of the first
sentence of such Section:
"(the 'Minimum Investment Amount'); provided, however, that if there shall
occur one or more Opt-Out Events (as such term is defined in Section 7.4)
then the Minimum Investment Amount shall be equal to seventy-five percent
(75%) of the following: (x) the Partnership's Capital Commitments less (y)
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the aggregate dollar amount of Capital Contributions that the Partners
would have made in respect of investments made by the Domestic Fund but for
the provisions of Section 3.3."
3. Section 7.4 of the Agreement is hereby amended and restated in its
entirety as follows:
"A. Except as provided below with respect to an Opt-Out Event (as
defined below), CMGI will co-invest with the Partnership in Portfolio
Companies an aggregate amount (the 'CMGI Co-investment Obligation') which
shall be equal to the greater of:
(i) $30 million; and
(ii) an amount (the 'CMGI Amount') as is sufficient to cause
CMGI's co-investment to equal 19.9% of the sum of (A) the
aggregate Capital Commitments to the Partnership, (B) the
aggregate Capital Commitments to the Domestic Fund, (C) the
Employee Fund Co-investment Obligation (as defined below) and (D)
the CMGI Amount. The CMGI Co-investment Obligation shall arise
with respect to all investments made by the Partnership in
Portfolio Companies (including Follow-on Investments, Committed
Investments, Bridge Financings and through the funding of
guarantees), shall be satisfied in cash and shall be made on the
same terms, same price and in securities identical to the
Portfolio Securities purchased by the Partnership.
In the case of each investment in a Portfolio Company, the percentage
of such investment made by the Partnership, the Domestic Fund, CMGI and the
Employee Fund (as defined in Section 7.5) will be computed as follows:
(w) the percentage of such investment made by the Partnership will
be:
(i) zero, in the event that a Majority in Interest of the
Limited Partners of the Partnership elect not to invest in,
or are deemed to have waived their right to participate in
the investment in a particular Portfolio
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Company, pursuant to Section 3.3 of this Agreement (an 'Opt-
Out Event'), or
(ii) the aggregate Capital Commitments to the Partnership divided
by the sum of the aggregate Capital Commitments to the
Partnership, the aggregate Capital Commitments to the
Domestic Fund, the CMGI Co-investment Obligation and the
Employee Fund Co-investment Obligation, in all other events;
(x) the percentage of such investment made by the Domestic Fund will
be:
(i) the aggregate capital commitments to the Domestic Fund
divided by the sum of the aggregate capital commitments to
the Domestic Fund, the Opt-Out CMGI Obligation (as defined
below) and the Opt-Out Employee Fund Obligation (as defined
below), in an Opt-Out Event, or
(ii) the aggregate capital commitments to the Domestic Fund
divided by the sum of the aggregate capital commitments to
the Domestic Fund, the aggregate Capital Commitments to the
Partnership, the CMGI Co-investment Obligation and the
Employee Fund Co-investment Obligation, in all other events;
(y) the percentage invested by CMGI will be:
(i) the Opt-Out CMGI Obligation divided by the sum of the
aggregate capital commitments to the Domestic Fund, the Opt-
Out CMGI Obligation and the Opt-Out Employee Fund
Obligation, in an Opt-Out Event, or
(ii) the CMGI Co-investment Obligation divided by the sum of the
aggregate Capital Commitments to the Partnership, the
aggregate capital commitments to the Domestic Fund, the CMGI
Co-investment Obligation and the Employee Fund Co-investment
Obligation, in all other events; and
(z) the percentage invested by the Employee Fund will be:
(i) the Opt-Out Employee Fund Obligation divided by the sum of
the aggregate capital commitments to the Domestic Fund, the
Opt-Out CMGI Obligation and the Opt-Out Employee Fund
Obligation, in an Opt-Out Event, or
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(ii) the Employee Fund Co-investment Obligation divided by the
sum of the aggregate Capital Commitments to the Partnership,
the aggregate capital commitments to the Domestic Fund, the
CMGI Co-investment Obligation and the Employee Fund Co-
Investment Obligation, in all other events.
The term 'Employee Fund Co-investment Obligation' shall mean a dollar
amount that is sufficient to cause the Employee Fund's co-investment to
equal 2.0% of the sum of (A) the aggregate Capital Commitments to the
Partnership, (B) the aggregate capital commitments to the Domestic Fund,
(C) the CMGI Co-investment Obligation, and (D) the Employee Fund Co-
investment Obligation.
The term 'Opt-Out CMGI Obligation' shall be equal to the greater of:
(i) $30 million; and
(ii) a dollar amount (the 'CMGI Opt-Out Amount') as is sufficient to
cause CMGI's co-investment to equal 19.9% of the sum of (A) the
aggregate capital commitments to the Domestic Fund, (B) the Opt-
Out Employee Fund Obligation and (C) the CMGI Opt-Out Amount.
The term 'Opt-Out Employee Fund Obligation' shall mean a dollar amount that
is sufficient to cause the Employee Fund's co-investment to equal 2.0% of
the sum of (A) the aggregate capital commitments to the Domestic Fund, (B)
the Opt-Out CMGI Obligation, and (C) the Opt-Out Employee Fund Obligation.
B. CMGI may assign all or any portion of its CMGI Co-investment
Obligation or Opt-Out CMGI Obligation, as the case may be, to any of its
Affiliates, including, without limitation, any CMGI Fund; provided,
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however, for purposes of this Section 7.4, the CMGI Co-investment
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Obligation and the Opt-Out CMGI Obligation, as the case may be, shall
remain an obligation of CMGI."
4. Section 6.1 of the Agreement is hereby amended and restated in its
entirety as provided below:
"@Ventures Partners III, LLC, a limited liability company initially
comprised of Xxxxx X. Xxxxxxxxx, Xxx X. Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxx
X. Xxxxxxxx III, Xxxxx X. Xxxxx and CMGI as its members, is the General
Partner of the Partnership."
5. Section 7.5 of the Agreement is hereby amended and restated in its
entirety as provided below:
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"Section 7.5 Other Co-Investment Rights.
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In the case of any investment by the Partnership, the General Partner shall
cause employees of the Management Company or other persons who perform services
to or for the benefit of the Partnership (including without limitation, the
members of the Management Company) to co-invest with the Partnership an amount
equal to the amount determined in accordance with Section 7.4; provided that the
investment by such employees and other persons shall be on the same terms, same
price and in securities identical to the Portfolio Securities purchased by the
Partnership. The obligations of the employees or other persons under this
Section 7.5 may be funded through a partnership or limited liability company,
all of the equity holders of which are employees of the Management Company or
other persons who perform services to or for the benefit of the Partnership
(herein referred to as the 'Employee Fund')."
6. Section 10.3 of the Agreement is hereby amended by deleting the
following language at the beginning of the second sentence thereof:
"After the end of each fiscal year,"
and inserting in lieu thereof the following:
"After the end of each fiscal year, other than the fiscal year ending
December 31, 1998,"
B. RATIFICATION. Except as otherwise expressly set forth herein, all
terms and conditions of the Agreement are hereby ratified and confirmed and
shall remain in full force and effect. Except as expressly set forth herein,
nothing herein shall be construed to be an amendment or a waiver of any
requirements of the Agreement.
C. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
D. EFFECT OF AMENDMENT. Subject to execution of this Amendment by the
General Partner and a Majority in Interest of the Limited Partners, the
Agreement shall be amended as set forth herein, effective as of December 22,
1998, and the undersigned Limited Partners expressly authorize the General
Partner (i) to reflect the amendments set forth herein in a First Amended and
Restated Agreement of Limited Partnership of the Partnership and (ii) to execute
and deliver such First Amended and Restated Agreement of Limited Partnership on
behalf of all Partners.
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COUNTERPART SIGNATURE PAGE
TO AMENDMENT NO. 1
TO THE AGREEMENT OF LIMITED PARTNERSHIP
of @ Ventures Foreign Fund III, L.P.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 as
of the date first above written.
GENERAL PARTNER:
@VENTURES PARTNERS III, LLC
By: /s/ Xxxxxx X. Xxxxxxxx, III
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Name:
Title:
