AMENDMENT TO LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF EXCELSIOR VENTURE PARTNERS III, LLC
AMENDMENT
TO LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF EXCELSIOR VENTURE PARTNERS
III, LLC
THIS AMENDMENT to the Limited
Liability Company Operating Agreement of Excelsior Venture Partners III, LLC is
made as of the 31st day of December, 2009 (the
“Amendment”). Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the LLC Agreement (as defined
below).
WHEREAS, Excelsior Venture
Partners III, LLC (the “Company”) was formed as a Delaware limited liability
company on February 18, 2000 and the Initial Member, Special Member and Members
entered into a Limited Liability Company Operating Agreement dated as of May 26,
2000 (the “LLC Agreement”);
WHEREAS, the Company’s Board
of Managers and a Majority in Interest of the Members at a Special
Meeting of Members held on December 10, 2009 (the “Special Meeting”), have
approved the withdrawal of the Company’s election to be treated as a business
development company pursuant to Section 54(c) of the Investment Company Act of
1940, as amended, and further approved the Company to continue its operations as
a registered closed-end investment company;
WHEREAS, the Company’s Board
of Managers and a Majority in Interest of the Members at the Special
Meeting approved this Amendment to the LLC Agreement in order to eliminate the
incentive carried interest payment among other such changes; and
WHEREAS, the Company’s Board of Managers and a
Majority in Interest of the Members, acting pursuant to Section 14.3 of the LLC
Agreement, wish to amend the LLC Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants herein contained, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto do hereby amend the LLC
Agreement as follows:
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1.
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Amendments.
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a)
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The
definition of “Incentive Carried Interest” in Article I is deleted in its
entirety.
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b)
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The
second sentence of Section 2.3 is deleted in its
entirety.
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c)
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Section
4.2 is deleted in its entirety and replaced
with:
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“Disinterested
Managers. Subject to the requirements of the Investment
Company Act, at least a majority of the members of the Board of Managers shall
be Disinterested Managers. If at any time the number of Disinterested
Managers is less than a majority, action shall be taken pursuant to Section 4.1
or Section 4.4 to restore the number of Disinterested Managers to at least a
majority.”
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d)
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Section
6.4 is deleted in its entirety and replaced
with:
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“Removal of a Special
Member. In the event of termination without renewal of an
Investment Advisory Agreement with respect to a Special Member, the Special
Member shall be removed and terminated as a Member.”
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e)
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Section
7.4(a) is deleted in its entirety and replaced with
“RESERVED.”
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f)
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Section
7.4(b) is deleted in its entirety and replaced
with:
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“Member
Allocations. Except as provided in this Agreement, all Net
Profit (and items thereof) and all Net Loss (and items thereof) shall be
allocated to the Members (other than the Special Member) in proportion to their
Capital Investments.”
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g)
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Section
8.2 is deleted in its entirety and replaced
with:
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“After
provision for Company Expenses and establishment of working capital and other
reserves as the Appropriate Officers shall deem appropriate, the Managers may
cause all cash and other property received by the Company in respect of its
investments in any Fiscal Period (collectively, “Investment Proceeds”)
to be distributed to the Members of record on the record date set by the
Managers with respect to such distribution, in proportion to such Member’s
Capital Investment. A Manager, in its capacity as a Manager, shall
not be entitled to any distributions.”
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h)
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Section
9.2(d) is deleted in its entirety.
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i)
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Section
13.2(b) is amended by adding the word “then” following the
semicolon.
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j)
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Section
13.2(c) is deleted in its entirety and replaced with
“RESERVED.”
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2. Except
as amended or otherwise modified herein, the LLC Agreement shall remain in full
force and effect, and all future references to the LLC Agreement shall mean the
LLC Agreement as amended herein.
3. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which shall constitute one and the same
document. This Amendment may be executed by facsimile
signatures.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment
on the day and year first above written.
EXCELSIOR
VENTURE PARTNERS III, LLC
/s/ Xxxxx X.
Bowden__________________
Name:
Xxxxx X. Xxxxxx
Title: Chief
Executive Officer
MEMBERS
By:
Attorney-in-Fact
/s/ Xxxxx X.
Bowden__________________
Name: Xxxxx
X. Xxxxxx
Title: Chief
Executive Officer
