AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF XXXXXXXXXXXXXX.XXX LLC
THIS AMENDMENT NO. 1 (this "Amendment") amends the Second Amended
and Restated Limited Liability Company Agreement (the "Restated Agreement") of
xxxxxxxxxxxxxx.xxx llc, a Delaware limited liability company (the "Company"),
made and entered into, effective as of May 28, 1999, by and among Xxxxxx &
Xxxxx, Inc., a corporation organized and existing under the laws of Delaware,
with its principal place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("BN"), B&X.xxx Holding Corp., a corporation organized and existing under
the laws of Delaware, with its principal place of business at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("BN Holding"), xxxxxxxxxxxxxx.xxx inc., a corporation
organized and existing under the laws of Delaware, with its principal place of
business at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Public Corp."),
Bertelsmann AG, an Aktiengesellschaft organized and existing under the laws of
Germany, with its principal place of business at Xxxx-Xxxxxxxxxxx-Xxxxxxx 000,
00000 Xxxxxxxxx, Xxxxxxx ("BAG"), and XXX.XX Online, Inc., a corporation
organized and existing under the laws of Delaware, with its principal place of
business at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("USO").
WHEREAS, the Company was formed as a limited liability company
pursuant to the Delaware Limited Liability Company Law (6 Del. X.xx. 18-101, et
seq.) by the filing of a Certificate of Formation with the Office of the
Secretary of State of the State of Delaware on October 27, 1998;
WHEREAS, the parties entered into the Restated Agreement to reflect
the addition of the Public Corp. as a Member and the sole Manager of the LLC
pursuant to the terms and conditions of the Restated Agreement; and
WHEREAS, the parties hereto desire to amend the Restated Agreement,
effective as of May 28, 1999, to accurately reflect their understanding with
respect to Section 5.4(c) and Schedule I of the Restated Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Amendment to Section 5.4(c). Section 5.4(c) of the Restated
Agreement is hereby amended and restated in its entirety to read as follows:
"When the Gross Asset Value of a Company asset differs from its
basis for federal or other income tax purposes, solely for purposes of the
relevant tax and not for purposes of computing Capital Account balances, income,
gain, loss, deduction and credit with respect to such asset shall be allocated
among the Members (i) with respect to any contributions of assets to the Company
on or after May 28, 1999, under the traditional method allowed pursuant to
Treasury Regulations Section 1.704-3(b), unless otherwise determined by BN
Holding and USO, and (ii) with respect to all contributions of assets to the
Company before May 28, 1999, under the remedial allocation method under Treasury
Regulation Section 1.704-3(d). The members
agree that, as of October 31, 1998, all such differences related to goodwill,
and the corresponding remedial allocations shall be made ratably over a fifteen
(15) year period."
Amendment to Schedule I. Schedule I of the Restated Agreement is
hereby amended and replaced in its entirety by Schedule I attached hereto.
References. Any references in the Restated Agreement to "the
Agreement", "this Agreement", "hereof", "herein", "hereunder" or terms of
similar import shall mean the Restated Agreement as amended by this Amendment.
No Other Changes. Except as amended hereby, all other terms and
provisions of the Restated Agreement remain unchanged and in full force and
effect.
Counterparts. This Amendment may be executed in counterparts which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
this 14th day of January, 2000, effective and effectuating their agreement as of
May 28, 1999.
Bertelsmann AG
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Executive Officer
XXX.XX Online, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
Xxxxxx & Xxxxx, Inc.
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman
B&X.xxx Holding Corp.
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By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman
xxxxxxxxxxxxxx.xxx inc.
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman
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SCHEDULE I
MEMBERS; MEMBERSHIP UNITS; CAPITAL ACCOUNTS
Member Membership Units Capital Account
------ ---------------- ---------------
xxxxxxxxxxxxxx.xxx inc. 28,750,002 $ 517,500,000
Membership Units
B&X.xxx Holding Corp. 57,500,000 $1,035,000,000
Membership Units
XXX.XX Online, Inc. 57,500,000 $1,035,000,000
Membership Units
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