YAHOO! MARKETPLACE, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is made and
entered into as of August 26, 1996 (the "Effective Date"), by and among
Yahoo! Inc., a California corporation ("Yahoo"), and the other persons whose
names are set forth in SCHEDULE 1 hereto. Capitalized terms not otherwise
defined herein are defined in Section 1.9.
WHEREAS, the Members desire to form a Delaware limited
liability company on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the Members hereby agree as follows:
ARTICLE I
FORMATION OF COMPANY
1.1 FORMATION. The Members hereby form the Company pursuant
to the Delaware Limited Liability Company Act (6 Del. Code Sections 18-101 ET
SEQ.) (the "Act"), which Act shall govern the rights and liabilities of the
Members except as otherwise herein expressly stated.
1.2 NAME OF THE COMPANY. The name of the Company is Yahoo!
MarketPlace, L.L.C., a Delaware limited liability company.
1.3 FILINGS, OTHER ACTIONS. Yahoo has caused to be filed a
Certificate of Formation (the "Certificate") with the office of the Secretary
of State of Delaware. The Board (as defined below) shall take all other
actions which may be necessary or appropriate from time to time to comply
with all requirements of law for the formation and operation of a limited
liability company and to ensure the limited liability of the Members in the
State of Delaware and all jurisdictions where the Company may elect to do
business.
1.4 PLACE OF BUSINESS. The principal place of business for
the Company initially shall be at 635 Vaqueros Avenue, Sunnyvale, CA 94086;
provided, however, that the Board may change the address of the principal
office by notice in writing to all the Members. In addition, the Company may
maintain such other offices and places of business as the Board may deem
advisable.
1.5 TERM. The Company shall continue in effect perpetually,
subject to earlier termination in accordance with the provisions of this
Agreement.
1.6 PURPOSES AND POWERS.
(a) Subject to the provisions of this Agreement, the
purposes of the Company shall be to provide on-line services and related
products and services targeted to individual and business consumers located
within the United States and its territories, as well as any and all
activities necessary or incidental thereto.
(b) The Company shall have all powers necessary,
suitable or convenient for the accomplishment of its purposes.
(c) Nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the
laws of the State of Delaware.
1.7 DELAWARE OFFICE; AGENT FOR SERVICE OF PROCESS. The
Company's agent for service of process in the State of Delaware shall be c/o
The Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L100,
Dover, County of Kent, Delaware. The name of the registered agent for
service of process on the Company is The Prentice-Hall Corporation System,
Inc. The Board may designate a different agent for service of process at any
time, provided, however, that the Board shall give all of the Members written
notice promptly following such change.
1.8 TITLE TO COMPANY PROPERTY. All property owned by the
Company, whether real or personal, tangible or intangible, shall be owned by
the Company as an entity, and no Member individually nor any other person,
partnership, corporation or other entity shall have any ownership interest in
such property.
1.9 DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings ascribed to them below. Capitalized
terms defined in the Operating Agreement and not otherwise defined herein
shall have the meanings ascribed to them in the Operating Agreement.
(a) "ACT" shall mean the Delaware Limited Liability
Company Act, 6 Del. Code Sections 18-101 ET SEQ.
(b) "AFFILIATES" shall mean Subsidiaries and Related
Entities and with respect to VMI, Visa International Service Association. A
"Subsidiary" shall mean a company in which on a class-by-class basis, more
than fifty percent (50%) of the stock entitled to vote for the election of
directors is owned or controlled by a party, but only so long as such
ownership or control exists. For Visa and VMI, a "Related Entity" shall mean
an entity (A) at least fifty percent (50%) of whose stock or other equity is
owned collectively by Visa Members and that has the authority to process Visa
payment transactions, but only so long as such ownership exists; (B) has an
equity interest in Visa and is owned in whole collectively by Visa Members or
financial institutions (E.G., national or regional group members); or (C) is
exclusively managed by Visa or a national or group member of Visa for the
purpose of processing Visa payment transactions, but only so long as such
exclusive management exists. Notwithstanding anything to the contrary set
forth above, however, Subsidiaries or Related Entities do not include any
individual Visa Member, bank or like financial institution. Visa Affiliates
include, for example, without limitation, Visa USA, Inc., Vital, Inc., Plus
and Interlink.
(c) "AGREEMENT" shall mean this Limited Liability
Company Agreement, as the same may be amended from time to time (including by
the addition of Counterparts).
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(d) "APPROVAL" shall mean consent by the Members to an
action by the affirmative vote of Members holding a majority of the
Percentage Interests in the Company entitled to vote with respect to such
matter, or such other Percentage Interests as may be expressly stated herein,
which vote may be obtained either at a meeting of Members duly noticed (to
the address of each Member shown on the Company's records at least ten (10)
days prior to the date set forth in such notice) or by a written consent
executed and delivered by such Members; provided, however, that if Approval
is obtained by written consent, the Company must send written notice of the
action so taken to each non-consenting Member within three (3) days after the
taking of such action. The failure of the Company to provide such written
notice to the non-consenting Members shall not invalidate the action so taken
so long as such failure was inadvertent.
(e) "BANKRUPTCY" shall mean with respect to any person,
being the subject of an order for relief under Title 11 of the United States
Code, or any successor statute in any foreign jurisdiction having like import
or effect, or that such person shall have made an assignment for the benefit
of its creditors generally or a receiver shall have been appointed for
substantially all of the property and assets of such person.
(f) "BOARD" shall mean the Board of Managers of the
Company, designated in accordance with Section 3.1.
(g) "BOOK VALUE" shall mean, as of any particular date,
the value at which the Company's assets are properly reflected on the books
of the Company as of such date in accordance with the provisions of Treasury
Regulations Section 1.704-1(b). The Book Values of all Company assets shall,
if the Board in its sole discretion deems it appropriate, be adjusted to
equal their respective gross fair market values, as determined by the Board,
at the times specified in those regulations.
(h) "CAPITAL ACCOUNT" shall mean the individual capital
account of a Member maintained in accordance with Section 2.5 hereof.
(i) "CAPITAL CONTRIBUTION" shall have the meaning set
forth in Section 2.2 hereof.
(j) "CERTIFICATE" shall have the meaning set forth in
Section 1.3 hereof.
(k) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(l) "COMPANY" shall mean Yahoo! MarketPlace, L.L.C., a
Delaware limited liability company organized pursuant to this Agreement.
(m) "COMPETITOR" shall mean, with respect to any party
to this Agreement, an entity that would reasonably be determined to be
involved in any substantial way in a business that is directly competitive in
any territory with the primary business of such party, whether directly or
indirectly, including (without limitation) as a partner, joint venturer or
owner of more than ten (10%) of the voting power of such competitive entity.
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(n) "COUNTERPART" shall mean an additional document
executed and delivered by (i) any new Member admitted to membership in the
Company after the original date of this Agreement, and (ii) such existing
Members having the right under this Agreement to approve the admission of
such new Member, which document shall set forth the new Member's Percentage
Interest, the resulting Percentage Interests of all other Members, and any
other terms and conditions as shall apply to such Members membership in the
Company. Each Counterpart shall be attached to, and shall become part of,
this Agreement.
(o) "DISTRIBUTABLE CASH" shall mean, with respect to
each fiscal year of the Company, the Company's cash flow from operations for
such fiscal year, as reflected in financial statements audited by the
Company's independent public accountants, after providing for reserves that
are determined by the Board to be required to fund ongoing development,
marketing, operations and capital expenditures of the Company in accordance
with the Operating Plan, and after deducting any amounts determined by the
Board to be subject to any contingency.
(p) "FOUNDERS" shall mean, collectively, Yahoo and each
member of the Visa Group.
(q) "MANAGEMENT POOL" shall mean the Percentage Interest
granted to executives of the Company by the Board as non-cash compensation,
which in no event shall exceed cumulatively and in the aggregate eight
percent (8%) of the Percentage Interests outstanding on the date of the first
grant of Percentage Interests to executives of the Company pursuant to
Section 7.3 hereof. The creation of the Management Pool shall reduce the
respective Percentage Interests of each of the Visa Group and Yahoo in equal
amounts. For example, if the full eight percent (8%) of the then outstanding
Percentage Interests is granted to executives of the Company, each of Yahoo's
and the Visa Group's respective Percentage Interest shall be reduced by four
percent (4%).
(r) "MANAGER" shall mean a person appointed to the Board
of Managers in accordance with Section 3.1.
(s) "MEMBER" shall mean Yahoo, each member of the Visa
Group and each other person admitted to membership in the Company whose
names, Capital Contributions and Percentage Interests are set forth on
SCHEDULE 1 hereto and all Counterparts.
(t) "OPERATING AGREEMENT" shall mean that certain
Operating Agreement dated as of even date herewith between the Company, Yahoo
and Visa.
(u) "OPERATING PLAN" shall mean the Operating Plan for
the Company which has been approved by the Board as the same may be amended
from time to time as set forth herein, which Operating Plan shall be updated
no less frequently than once each calendar year.
(v) "PERCENTAGE INTEREST" shall have the meaning set
forth in Section 2.1 hereof.
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(w) "PROFIT" OR "LOSS" shall mean for each taxable year,
the Company's taxable income or taxable loss for such taxable year, as
determined under Section 703(a) of the Code and Section 1.703-1 of the
Treasury Regulations (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Section 703(a)(1) of
the Code shall be included in taxable income or taxable loss), but with the
following adjustments: (i) any tax-exempt income or Company expenditures
described in Section 705(a)(2)(B) of the Code shall be taken into account in
computing such taxable income or taxable loss; (ii) any item of income or
gain required to be allocated specially to a Member under Section 6.2 hereof
shall not be taken into account in computing such taxable income or taxable
loss; and (iii) in lieu of the depreciation, amortization, gain or loss taken
into account in computing such taxable income or loss, the Company shall
compute such items based on the Book Value of Company property rather than
its tax basis, in accordance with Treasury Regulations Section
1.704-1(b)(2)(iv)(g)(3).
(x) "TAX DISTRIBUTIONS" shall mean an amount equal to
(a) the combined effective federal and California maximum corporate income
tax rates in effect for such fiscal year (taking into account the
deductibility of state taxes against federal taxable income, currently 41%),
multiplied by (b) the amount by which the Company Profit (other than income
and gain referred to in Section 6.6 hereof) allocated to such Member for such
fiscal year exceeds the cumulative net Company Loss (if any) allocated to
such Member since the inception of the Company.
(y) "TAX MATTERS PARTNER" has the meaning set forth in
Section 5.6.
(z) "TREASURY REGULATIONS" shall mean the Income Tax
Regulations issued by the Department of the Treasury.
(aa) "VISA" shall mean Visa International Service
Association, a Delaware corporation.
(bb) "VISA GROUP" shall mean VMI, Sterling Payot Capital,
L.P. and their permitted assignees.
(cc) "VISA OWNERSHIP PERIOD" shall mean the period
commencing with the Effective Date and ending on the later to occur of (i)
the date the Visa Group holds, in the aggregate, less than [REDACTED]* of all
then outstanding Percentage Interests; or (ii) the date on which the Visa
Brand Features are no longer used in the Service.
(dd) "VMI" shall mean Visa Marketplace, Inc., a Delaware
corporation, a wholly-owned subsidiary of Visa.
* Confidential treatment requested. Omitted portion filed
separately with the Commission.
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ARTICLE II
CAPITAL CONTRIBUTIONS
2.1 PERCENTAGE ECONOMIC INTERESTS. Each Member shall have an
undivided percentage economic interest in the Company, including, except as
may otherwise be provided in Article VI hereof, each item of income, gain,
loss, deduction, credit and distributions of the Company (a "Percentage
Interest"), equal to the percentage set forth next to such Member's name on
SCHEDULE 1 of this Agreement (or, after admission of new Members, on the most
recently adopted Counterpart).
2.2 CAPITAL CONTRIBUTIONS.
(a) Upon execution of this Agreement, the Founders have
contributed to the Company cash in the respective amounts set forth on
SCHEDULE 1. The Founders have agreed at the time of such contribution their
respective initial Capital Accounts (as defined below) were equal to the
amount of such contributions, subject to adjustment upon the events described
in this Agreement. The contributions made by the Founders under this Section
2.2, and the subsequent contributions of cash capital by Members to the
Company under Section 2.4, are hereafter referred to as "Capital
Contributions."
(b) In event that following the execution of this
Agreement the Board from time to time determines that the Company requires
additional funding (in light of the financial criteria set forth in the
Operating Plan), the Members will, within ten (10) days following notice from
the Company (which notice shall include a certified resolution of the Board
approving such funding), make additional Capital Contributions in cash in the
amount set forth in such notice, which shall be made in proportion to their
Percentage Interest; provided that the aggregate additional Capital
Contributions required by the Board shall not exceed two million dollars
($2,000,000) from all Founders, unless a higher amount receives the unanimous
approval of the Founders who hold any of the then outstanding Percentage
Interest.
2.3 MEMBER ADVANCES. In addition to the Capital
Contributions provided for under Section 2.2 and without limiting the
provisions of Section 2.4, the Members may, if the Board in its discretion
deems it appropriate, make cash advances in such amounts and upon such
commercially reasonable repayment, interest and other terms as the Board and
the Member providing such advance shall agree; provided, however, that during
the Visa Ownership Period, such advances shall not be made without Visa's
prior written consent. Any such cash advances shall be treated as loans to
the Company rather than Capital Contributions and shall therefore not affect
a Member's Capital Account.
2.4 ADDITIONAL CAPITAL CONTRIBUTIONS. The Board may admit
additional Members and accept additional Capital Contributions from such
additional Members or from existing Members from time to time and on such
commercially reasonable terms as the Board deems appropriate;
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provided, however, that during the Visa Ownership Period, the Board must
obtain Visa's written consent prior to taking any such action unless (i) Visa
has been notified of the material terms of the issuance of Percentage
Interests in such transaction, and VMI and Sterling Payot Capital, L.P. have
the right exercisable within twenty (20) days following such notice to
purchase a portion of such new Percentage Interests (on the terms set forth
in the notice) up to an amount sufficient for each of VMI and Sterling Payot
Capital, L.P. respectively to maintain the amount of its total Percentage
Interest immediately preceding such transaction, and (ii) if Yahoo or Yahoo's
Affiliates are the only purchasers of such additional Percentage Interests,
the material terms of such transaction have been determined in good faith by
an independent third party appraiser or investment bank to be fair from a
financial point of view to the Company and the Members (other than Yahoo).
No Member shall be obligated to make any other Capital Contributions, and no
Member shall make any such further Capital Contributions except as otherwise
provided in this Article II.
2.5 CAPITAL ACCOUNTS.
(a) A separate capital account (a "Capital Account")
shall be maintained for each Member strictly in accordance with the rules set
forth in Treasury Regulations Section 1.704-1(b)(2)(iv). Subject to the
preceding sentence, each Member's Capital Account shall be (i) increased by
the amount of Capital Contributions made by such Member to the Company and
allocations to such Member of Company Profits and other items of book income
and gain; and (ii) decreased by the amount of money and fair market value of
property (net of liabilities secured by such distributed property that such
Member is considered to assume or take subject to under Section 752 of the
Code) distributed to it by the Company and allocations to such Member of
Company Loss and other items of book loss and deductions; and (iii) otherwise
adjusted in accordance with the additional rules set forth in Treasury
Regulations Section 1.704-1(b)(2)(iv).
(b) In the event the Book Values of Company assets are
adjusted pursuant to Treasury Regulations Section 1.704-1(b) and Section
1.9(g), the Capital Accounts of all Members shall be adjusted simultaneously
to reflect the allocations of income, gain, loss or deduction that would be
made to the Members if there were a taxable disposition of the Company's
property for its fair market value. If any assets of the Company are to be
distributed in kind, such assets shall be distributed on the basis of their
fair market values after the Members' Capital Accounts have been adjusted to
reflect the manner in which any unrealized income gain, loss or deduction
with respect to such assets (that have not been reflected in the Capital
Accounts previously) would be allocated between the Members if there were a
taxable disposition of the property for its fair market value.
(c) If any interest in the Company is transferred in
accordance with the provisions of this Agreement, the transferee Member shall
succeed to that portion of the Capital Account of the transferring Member as
relates to such transferred interest.
(d) It is the intent of the Company that the Capital
Accounts of all Members be determined and maintained in accordance with the
principles of Treasury Regulations
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Section 1.704-1 at all times throughout the full term of the Company and the
foregoing provisions of this Section 2.5 shall be interpreted in accordance
with such intention.
2.6 RETURN OF CAPITAL; PARTITION. Except as otherwise
provided herein, no Member shall have any right to (a) withdraw from the
Company, (b) demand the return of all or any part of such Member's Capital
Account during the term of the Company or (c) receive a return of such
Member's Capital Account from any specific assets of the Company. Each
Member irrevocably waives any right which such Member may have to cause a
partition of all or any part of the Company's assets. No Member shall be
entitled to receive any interest with respect to a Capital Contribution.
2.7 LIABILITY OF MEMBERS. Notwithstanding anything to the
contrary herein contained, no Member shall be liable for any debts, expenses,
liabilities or obligations of the Company except as otherwise agreed in
writing by such Member or as provided by law.
ARTICLE III
MANAGEMENT OF COMPANY
3.1 BOARD OF MANAGERS.
(a) The Board shall consist of five (5) persons, or such
higher number of persons determined by Approval of seventy five percent (75%)
of all then outstanding Percentage Interests; provided, however, that during
the Visa Ownership Period, the number of authorized members of the Board may
not be increased without Visa's prior written consent. Each of the directors
shall be appointed, and shall serve at the pleasure of, the holders of a
majority in interest of all Percentage Interests; provided that, during the
Visa Ownership Period, the members of the Board of Directors shall be
determined as follows:
(i) Two (2) Managers shall be appointed by, and
shall serve at the pleasure of, Yahoo;
(ii) Two (2) Managers shall be appointed by Visa and
shall serve at the pleasure of Visa; provided that each director appointed by
Visa shall be a full-time employee of Visa; and
(iii) One (1) Manager shall be appointed by, and
shall serve at the pleasure of, Yahoo, subject to the approval of Visa, which
approval shall not be unreasonably withheld.
(b) Board actions shall be valid only if made (i) at a
meeting held in person or by conference telephone upon at least three (3)
business days' prior notice (by telephone, courier or electronic mail
confirmed by courier), at which at least a majority of all Managers
(including any temporary alternate for a Manager who is reasonably acceptable
to a majority of the remaining Managers) then in office are present and a
majority of those Managers present at the meeting approve the Board action;
or (ii) by a writing signed by at least four (4) Managers
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(including during the Visa Ownership Period at least one (1) Manager
appointed by Visa, if at such time Visa has an appointee on the Board). Such
actions, when evidenced in a writing certified by any person appointed to
serve as Secretary or Chairman of the Board of the Company may be relied upon
by third parties for all purposes in respect of their dealings with the
Company.
After the Visa Ownership Period and thereafter so long as
Visa or any of its Affiliates shall own any of the total outstanding
Percentage Interests, Visa shall be entitled to appoint one (1) Manager, to
serve at the pleasure of Visa.
3.2 CONTROL BY BOARD. Subject to the provisions of Section
3.3, and except as may be otherwise expressly stated in this Agreement, the
Board shall have full and exclusive responsibility and authority for the
management, supervision and conduct of the business and affairs of the
Company and the Board is hereby granted the right, power and authority to do
on behalf of the Company all things determined thereby to be necessary or
desirable to carry out such duties and responsibilities, including (without
limitation) the right, power and authority from time to time to do the
following:
(a) to borrow money in the name and on behalf of the
Company, and to secure any such loans by a mortgage, pledge or other
encumbrance upon any assets of the Company;
(b) to cause to be paid all amounts due and payable by
the Company to any person or entity;
(c) to employ such agents, employees, managers,
accountants, attorneys, consultants and other persons necessary or
appropriate to carry out the business and affairs of the Company, to delegate
by express Board action any powers of the Board enumerated herein (subject to
the provisions of Section 3.3), and to pay to such persons such fees,
expenses, salaries, wages and other compensation as it shall in its sole
discretion determine;
(d) to pay, extend, renew, modify, adjust, subject to
arbitration, prosecute, defend or compromise, upon such terms as it may
determine and upon such evidence as it may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor
of or against the Company;
(e) to pay any and all fees and to make any and all
expenditures which it deems necessary or appropriate in connection with the
organization of the Company, the management of the affairs of the Company and
the carrying out of its obligations and responsibilities under this Agreement;
(f) to the extent that funds of the Company are, in the
Board's judgment, not immediately required for the conduct of the Company's
business, temporarily to deposit the excess funds in such bank account or
accounts, or invest such funds in such interest-bearing taxable or nontaxable
investments, as the Board shall deem appropriate;
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(g) to acquire, prosecute, maintain, protect and defend
or cause to be protected and defended all patents, patent rights, trade
names, trademarks, copyrights and service marks, all applications with
respect thereto and all proprietary information which may be held by the
Company;
(h) to enter into, execute, acknowledge and deliver any
and all contracts, agreements or other instruments necessary or appropriate
to carry on the business of the Company as set forth herein;
(i) to acquire interests in such other entities as the
Board may deem appropriate to conduct the planned business activities of the
Company on such terms as the Board deems in the Company's interests;
(j) to cause to be paid any and all taxes, charges and
assessments that may be levied, assessed or imposed upon any of the assets of
the Company, unless the same are contested by the Company;
(k) to make all elections and decisions of a tax and
accounting nature required or permitted on behalf of the Company, including
without limitation the election provided for by Section 754 of the Code; and
(l) to exercise all other powers conferred by the Act or
other applicable law on, or not prohibited to, a "Manager" of the Company
from time to time (as such term in defined in the Act).
3.3 SPECIAL ACTIONS. During the Visa Ownership Period, the
following actions by the Company shall require approval of at least eighty
percent (80%) of the then number of authorized Managers and the prior written
consent of Visa:
(a) appointment of the Chief Executive Officer of the
Company (or any other officer of the Company exercising such authority);
(b) any sale or transfer of all or substantially all of
the Company's assets to any third party;
(c) any withdrawal of any Member involving the
distribution with respect to such Member's Capital Account;
(d) any dissolution or winding up of the Company;
(e) any merger of the Company with another entity (other
than in connection with any roll-up or similar transaction in which the
substantive economic rights of the Members are not materially adversely
affected and all Members are affected in the same manner);
(f) any amendment or revision to the Operating Plan
including, without limitation, any annual update of the Operating Plan; or
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(g) any amendment to this Agreement in accordance with
Section 12.8.
Without limiting the foregoing, following the Visa
Ownership Period and thereafter so long as Visa or any of its Affiliates
shall own any of the total outstanding Percentage Interests, the actions
described in (b), (d), (e), (f) and (g) shall require the prior written
consent of Visa; if such action would adversely affect Visa in any manner
materially differently than the other Members.
3.4 EXTENT OF MANAGER'S OBLIGATIONS. Each Manager shall
devote such time and attention to the activities of the Company as are
reasonably necessary and appropriate to carry out the Manager's duties
hereunder. It is expressly acknowledged and understood that the Managers may
also devote time to the affairs of other entities and to other business
activities.
3.5 STANDARD OF CARE; INDEMNIFICATION. No Manager shall be
liable, in damages or otherwise, to the Company or to any of the Members for
any act or omission performed or omitted by such Manager pursuant to the
authority granted by this Agreement, except if such act or omission results
from gross negligence, willful misconduct or bad faith. The Company shall
save, indemnify, defend and hold harmless each Manager to the fullest extent
permitted by the Act, including without limitation, from and against any and
all claims or liabilities of any nature whatsoever, including, but not
limited to, reasonable attorneys' fees, arising out of or in connection with
any action taken or omitted by such Manager pursuant to the authority granted
by this Agreement, except where attributable to the gross negligence, willful
misconduct or bad faith of such Manager or such Manager's agents. Each
Manager shall be entitled to rely on the advice of counsel, public
accountants or other independent experts experienced in the matter at issue,
and any act or omission of such Manager in reliance on such advice shall in
no event subject such Manager to liability to the Company or any Member.
Each Member expressly acknowledges and agrees that other Members (and
Managers who may be related to such Members) may engage in activities
competitive with those of the Company, and may pursue business opportunities
that may also be available to the Company; and except as otherwise provided
herein or in the Operating Agreement or any other agreement among Members,
and except for any liability relating to the misuse or improper disclosure of
the Company confidential or proprietary information, no Member shall have any
liability as a fiduciary or otherwise in connection with the pursuit of such
activities.
3.6 COMPENSATION OF MANAGERS. The Managers shall receive no
other compensation for services to the Company apart from such reimbursement
and rights with respect to Company distributions and allocations of Profits
and Losses as set forth in Article VI.
ARTICLE IV
RIGHTS OF MEMBERS
4.1 NO AUTHORITY TO MANAGE. It is expressly understood that
no Member, in such Member's capacity as such, other than the Managers, shall
take part in the management or control of the business, transact any business
for the Company, have the right to vote on any Company matter, or have the
power to sign for or bind the Company to any agreement or
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document. Notwithstanding the foregoing, Members may participate in the
management of the Company if and to the extent so contemplated by the terms
of any employment relationship with the Company.
4.2 APPROVAL RIGHTS OF MEMBERS. Notwithstanding Section 4.1
or Article III of this Agreement, the Managers shall not amend the
Certificate in any manner that, if contained in an amendment to this
Agreement or an action described in Section 3.3, would require the Approval
of Members or the separate approval of Visa without first obtaining such
approval. Except as provided in this Section 4.2 or as may be otherwise
expressly provided under this Agreement or the Act, the Members shall not
have the right to approve any other actions or decisions of the Manager with
respect to matters relating to the Company.
4.3 RECORDS OF THE COMPANY. The Company shall make available
for inspection at its principal place of business, upon reasonable request
for purposes reasonably related to the interest of a person as a Member, any
of the following records of the Company: (a) a current list of the full
name, last known business or residence address, Capital Contribution and
Percentage Interests owned by each Member; and (b) such other books and
records as may be required to be provided to the Members pursuant to the Act
or other applicable law. The Members acknowledge that the records of the
Company constitute valuable trade secrets, and any information or records so
obtained or copied shall be kept and maintained in strictest confidence and
shall in no event be disclosed to any other parties without the written
consent of the Company.
ARTICLE V
ACCOUNTING, RECORDS, REPORTS AND MEETINGS
5.1 BOOKS OF ACCOUNTS AND RECORDS. The Company's books and
records and the Certificate shall be maintained at the principal office of
the Company and the Members and their designated representatives shall each
have access thereto at all reasonable times to the extent set forth in
Section 4.3. The books and records shall be kept in accordance with
generally accepted accounting principles applied in a consistent manner by
the Company and shall reflect all transactions and be appropriate and
adequate for the business of the Company.
5.2 FINANCIAL STATEMENTS AND REPORTS. The Company will
provide to the Members financial statements of the Company annually, which
shall be audited by independent auditors of national standing (which may also
be the independent auditors to any Member). The Company also will provide
within ninety (90) days after the end of each fiscal year of the Company a
copy of the Company's federal, state and local income tax or information
returns for such fiscal year and any other information reasonably necessary
for the preparation of the Members' federal and state income tax returns.
5.3 BANK ACCOUNT. Company moneys shall be deposited in the
name of the Company in one or more financial institutions to be designated by
the Board and may be withdrawn on the signatures of such officers of the
Company as the Board may designate from time to time.
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5.4 FISCAL YEAR. The fiscal year of the Company shall be
from January 1 to December 31, or such other period as may be required by law
or determined by the Board.
5.5 TAX ELECTIONS. The Board, in its sole discretion, shall
determine the Company's accounting methods and conventions under the tax laws
of the United States, the several states and other relevant jurisdictions as
to the treatment of income, gain, loss, deduction and credit of the Company
or any other method or procedure related to the preparation of such tax
returns. The Board, in its sole discretion, may cause the Company to make or
refrain from making any and all elections permitted by such tax laws
(including, without limitation, an election under Section 754 of the Code).
5.6 TAX MATTERS PARTNER. Pursuant to Section 6231(a)(7)(A)
of the Code, the Members hereby designate Yahoo as the Company's "Tax Matters
Partner." As such, for any fiscal year in which the Company is subject to
the provisions of Section 6221, et seq. of the Code, Yahoo is authorized, at
the expense of the Company, to represent the Company and each Member in
connection with all examinations of the Company's affairs by tax authorities,
including resulting administrative and judicial proceedings, and to expend
the funds of the Company for professional services and costs in connection
therewith. The other Members hereby agree to cooperate with the Manager and
to do or refrain from doing any and all acts reasonably required by the
Manager in connection with any such proceedings. Yahoo will at all times act
in accordance with the direction of the Board with respect to decisions to be
made by the Tax Matters Partner.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 ALLOCATIONS OF COMPANY PROFITS AND LOSSES. Company
Profits and Losses for each fiscal year shall be allocated in proportion to
the Members' Percentage Interests.
6.2 SPECIAL ALLOCATIONS.
(a) If the Company ever has "partnership minimum gain"
or "partner minimum gain" (as defined by Treasury Regulations Section
1.704-2), then the rules of such Regulations regarding allocation and
chargebacks of such items shall apply.
(b) All deductions, losses, and Code Section
705(a)(2)(B) expenditures of the Company, as the case may be, that are
treated under Treasury Regulations Section 1.704-2(b) as attributable to
"partner nonrecourse debt" of the Company shall be allocated to the Members
bearing the risk of loss with respect to such liabilities in accordance with
such Treasury Regulations.
(c) If any Member unexpectedly receives an adjustment,
allocation, or distribution described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) which creates or increases a deficit in
such Member's Capital Account in excess of such Member's share of partnership
minimum gain and partner minimum gain (as determined under Treasury
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Regulations Section 1.704-2), if any, such Member shall be allocated items of
book income and gain in an amount and manner sufficient to eliminate or to
reduce, as quickly as possible, such deficit. For purposes of this Section
6.2(c), Capital Accounts shall be adjusted hypothetically as provided for in
Treasury Regulations Section 1.704-(b)(2)(ii)(d). The Members intend that
the provision set forth in this Section 6.2(c) shall constitute a "qualified
income offset" as described in such section of the Treasury Regulations and
this Section 6.2(c) shall be interpreted consistent with such intention.
6.3 TIME OF ALLOCATIONS. The Profit, Loss and other items of
the Company for each fiscal year shall be allocated to the Members' Capital
Accounts at the end of such fiscal year in accordance with the provisions of
Sections 6.1 and 6.2.
6.4 DISTRIBUTIONS.
(a) Tax Distributions shall be distributed to each
Member within ninety (90) days after the end of each fiscal year. Tax
Distributions to each Member under this subsection (a) shall be credited
against and shall reduce by a corresponding amount the next distributions to
which such Partner otherwise would be entitled under subsection (b) and
subsection (c) of this Section 6.4.
(b) To the extent that, after giving effect to Section
6.4(a), the Company has additional Distributable Cash for any fiscal year
commencing with the fiscal year ending December 31, 1996, such Distributable
Cash will be distributed to the Members in proportion to their respective
Percentage Interests within ninety (90) days following the end of such fiscal
year.
(c) Without limiting Section 6.4(a) or Section 6.4(b),
the Board, in its discretion, may, but shall not be obligated to, cause the
Company to distribute such other amounts, whether in cash or in kind, as the
Board may from time to time deem advisable. Distributions made pursuant to
this Section 6.4(c) shall be made to the Members in proportion to their
Percentage Interests at the time of such distribution.
(d) The Company shall withhold all such amounts as may
be required by law and any amounts so withheld shall be deemed to have been
distributed under this Section 6.4 to the Member with respect to whom such
withholding obligation arose and, to the extent such amounts exceed the
amount such Member would have otherwise received, shall be counted towards
and reduce by a corresponding amount, future distributions to such Member.
If any sums are withheld with respect to a Member, the Company shall remit
the sums so withheld to and file the required forms with the Internal Revenue
Service or other applicable government agency, and in the event of any
claimed over-withholding, the Member shall be limited to an action against
such government agency for refund and hereby waives any claim or right of
action against the Company on account of such withholding.
(e) Notwithstanding any other provision herein, no
distribution shall be made to the Members which would render the Company
insolvent.
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6.5 TAX RETURN. The Company shall, within ninety (90) days
after the end of each calendar year, file a federal income tax information
return and transmit to each Member a copy of such return and a schedule
(Schedule K-1 or successor schedule) showing such Member's distributive share
of the Company's income, deductions and credits.
6.6 ALLOCATION OF CERTAIN TAX ITEMS. If any property of the
Company is reflected in the Capital Accounts of the Members and on the books
of the Company at a Book Value that differs from the adjusted tax basis of
such property, then the tax items with respect to that property shall, in
accordance with Treasury Regulations Section 1.704-1(b)(4)(i), be shared
among the Members in a manner that takes account of the variation between the
adjusted tax basis of the applicable property and its Book Value in the same
manner as variations between the adjusted tax basis and fair market value of
property contributed to the Company are taken into account in determining the
Members' share of tax items under Code Section 704(c).
6.7 ALLOCATION BETWEEN TRANSFEROR AND TRANSFEREE. The
proportion of the income, gain, loss, deductions and credits of the Company
for any fiscal year of the Company during which any Percentage Interest in
the Company is transferred by a Member to another party pursuant to the terms
hereof that is allocable in respect of such Percentage Interest shall be
apportioned between the transferor and the transferee of the Percentage
Interest on the basis of the number of days during such fiscal year that each
is the owner thereof, without regard to (a) the results of the Company's
operations before or after the effective date of the transfer, or (b) any
distributions made to the Members before or after the date of the transfer.
6.8 TAX ALLOCATIONS BINDING. The Members are aware of the
income tax consequences of the allocations made by this Article VI and hereby
agree to be bound by the provisions of this Article VI in reporting their
shares of Company allocations for income tax purposes.
ARTICLE VII
TRANSFER OF INTERESTS
7.1 LIMITATIONS ON TRANSFERS. No Percentage Interest shall
be assigned or transferred by any Member, directly or indirectly, except as
follows:
(a) The members of the Visa Group may assign or transfer
all or part of their respective Percentage Interests only so long as (i) such
transfer shall be approved in advance by the holders of a majority of the
outstanding Percentage Interest (other than the member of the Visa Group
desiring to transfer its Percentage Interest) (which approval may be granted
or withheld in such approving Members' sole discretion and shall not be
required for any party that is a member of the Visa Group or an Affiliate of
Visa or an Affiliate of a member of the Visa Group so long as such
transferring Member remains liable for its obligations hereunder); (ii) in no
event shall Visa and its Affiliates at any time own less than fifty percent
(50%) of the Percentage Interests owned by all members of the Visa Group; and
(iii) such party shall assume in writing all obligations of the transferring
party under this Agreement and under the Operating Agreement.
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(b) Yahoo may assign or transfer all or part of its
Percentage Interest only so long as (i) such transfer, shall be approved in
advance by the holders of a majority of the outstanding Percentage Interests
(other than Yahoo) (which approval may be granted or withheld in such
Members' sole discretion and shall not be required for any party that is an
Affiliate of Yahoo so long as Yahoo remains liable for its obligations
hereunder); and (ii) such party shall assume in writing all obligations of
Yahoo under this Agreement and under the Operating Agreement.
(c) Any Member other than Yahoo or the members of the
Visa Group may transfer or assign all or part of their respective Percentage
Interest only so long as (i) any party to which such interest shall be
assigned or transferred shall not be a Competitor to the Company, Yahoo or
Visa; (ii) such transfer shall be approved in advance by the Board (which
approval may be granted or withheld in the Board's sole discretion); and
(iii) such party shall assume in writing all obligations of the transferring
party under this Agreement.
(d) Except as expressly set forth in the Operating
Agreement, no assignment or transfer of any Percentage Interest shall affect
any of the assigning or transferring party's obligations under the Operating
Agreement (which cannot be assigned without the written consent of the other
parties to the Operating Agreement).
7.2 RIGHTS OF FIRST REFUSAL. Without limiting the provisions
of Section 7.1:
(a) In the event of a contemplated assignment or
transfer by any member of the Visa Group to a party that is not a member of
the Visa Group or an Affiliate of Visa or an Affiliate of a member of the
Visa Group, the party proposing such transfer shall provide Yahoo with notice
of such proposed transfer, which notice shall include a description of all
terms of such transfer (including the amount to be transferred, the price to
be paid and the date of the proposed transfer), and the name, address and
telephone number of the proposed transferee. Yahoo shall have the right,
exercisable by notice within thirty (30) days following receipt of such
notice, to purchase all or part of the Percentage Interest to be transferred
upon the terms and conditions set forth in the notice. In the event that
Yahoo does not elect to purchase all or part of such Percentage Interest, the
transferring party shall be entitled to complete such transaction (on terms
no more favorable to the transferee in any respect) within thirty (30) days
following the end of such thirty (30) day period (and any transfer proposed
thereafter shall again comply with the foregoing notice and right of first
refusal provisions). Yahoo's right of first refusal may be assigned by Yahoo
to any Affiliate of Yahoo.
(b) In the event of and contemplated assignment or
transfer by Yahoo to a party that is not an Affiliate of Yahoo, the party
proposing such transfer shall provide the Visa Group with notice of such
proposed transfer, which notice shall include a description of all terms of
such transfer (including the amount to be transferred, the price to be paid
and the date of the proposed transfer), and the name, address and telephone
number of the proposed transferee. The Visa Group shall have the right,
exercisable by notice within thirty (30) days following receipt of such
notice, to purchase all or part of the Percentage Interest to be transferred
upon the terms and conditions set forth in the notice. In the event that the
Visa Group does not elect to purchase all
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or part of such Percentage Interest, the transferring party shall be entitled
to complete such transaction (on terms no more favorable to the transferee in
any respect) within thirty (30) days following the end of such thirty (30)
day period (and any transfer proposed thereafter shall again comply with the
foregoing notice and right of first refusal provisions). The Visa Group's
right of first refusal may be assigned to any Affiliate of Visa or any
Affiliate of a member of the Visa Group. The Visa Group shall be entitled to
allocate the Percentage Interest subject to the right of first refusal among
the members of the Visa Group at the Visa Group's discretion; provided that
in the absence of any other agreement the Percentage Interests subject to the
right of first refusal shall be allocated pro rata based upon the total
Percentage Interest held by all members of the Visa Group.
7.3 MANAGEMENT POOL. Notwithstanding anything to the
contrary in this Agreement, the Board, without the consent or approval of any
Member, may admit as Members executives of the Company and grant to them
portions of the Management Pool on such terms and conditions as the Board
deems appropriate. The allocation of the Management Pool among the executives
of the Company shall be subject to the approval of the Board.
7.4 SPECIAL BUY-OUT RIGHTS OF YAHOO.
(a) Yahoo shall have two options, exercisable in Yahoo's
sole discretion, to purchase Percentage Interests from the Visa Group. The
first option ("First Option") shall be exercisable by Yahoo in the period
starting on the first anniversary of the Effective Date and ending twelve
(12) months thereafter. The second option ("Second Option") shall be
exercisable by Yahoo during the period starting on the first anniversary of
the Effective Date and ending twenty-four (24) months thereafter. If Yahoo
elects to exercise either option, (i) it must do so within the appropriate
period or such option shall terminate and be of no further force and effect
and (ii) it may exercise each option only once for the amounts listed below.
(b) The First Option shall be exercised at a price of
[REDACTED]* and shall entitle Yahoo to purchase from the Visa Group
[REDACTED]* of the then outstanding Percentage Interests.
(c) The Second Option shall be exercised at a price of
[REDACTED]* and shall entitle Yahoo to purchase from the Visa Group
[REDACTED]* of the then outstanding Percentage Interest.
(d) The First Option and the Second Option shall be
reduced proportionately for any reduction in the Visa Group's Percentage
Interests below [REDACTED]* of all then outstanding Percentage Interests that
occurs at any time prior to the second anniversary of the Effective Date
except that the First Option and the Second Option shall not be reduced for
any reduction in the Visa Group's Percentage Interests that is a result of
(i) the creation of the Management Pool (such reduction in the Visa Group's
interest shall not be greater than four percent (4%) of all then outstanding
Percentage Interests) and (ii) the exercise by Yahoo of any purchase rights
granted in this Section 7.4. Any such reduction in the First Option and/or
the Second Option shall be applied equally to the First Option and to the
Second Option.
* Confidential treatment requested. Omitted portion filed
separately with the Commission.
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(e) Notwithstanding anything to the contrary contained
herein, in no event shall the exercise of the First Option or the Second
Option result in the Visa Group owning less than [REDACTED]* of the then
outstanding Percentage Interests. In such event the First Option and/or the
Second Option shall be reduced so that after exercise of the option(s) the
Visa Group shall own at least [REDACTED]* of the then outstanding
Percentage Interests. Any reduction in the First Option or the Second Option
required by this Section 7.4(e) shall be applied equally to the First Option
and the Second Option. No such reduction shall affect any prior exercise of
the First Option or the Second Option.
(f) Yahoo's purchase rights under this Section 7.4 may
be assigned in part by Yahoo to one or more third party investors none of
which is a Competitor of the Company or Visa; provided, however, that (i)
Yahoo may only assign rights to purchase Percentage Interest from the Visa
Group that represent cumulatively and in the aggregate less than a majority
of the Percentage Interests subject to such purchase rights and (ii) Yahoo
may not assign any of its non-economic rights set forth in this Agreement or
the Operating Agreement, including, without limitation, its rights to appoint
Managers to the Board or any of its rights of consent, approval or
disapproval.
(g) Yahoo shall exercise its purchase rights hereunder
through written notice within the time periods specified above to the member
of the Visa Group then holding the greatest Percentage Interest, and the Visa
Group shall be entitled to allocate the Percentage Interests to be purchased
in the Visa Group's discretion; provided that, in the absence of any other
agreement, the Percentage Interests to be purchased shall be allocated pro
rata based upon the total Percentage Interests held by all members of the
Visa Group. The date the Visa Group receives the written notice of Yahoo's
election to purchase a portion of the Visa Group's Percentage Interest shall
be the "Notice Date." Yahoo shall be deemed to have exercised any purchase
right granted in this Section 7.4 on the Notice Date related to such purchase
right. Any purchase by Yahoo under this Section 7.4 shall be completed
within thirty (30) days following the Notice Date; provided that such period
shall be extended to the extent required by applicable law (including,
without limitation, any delay required by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976). The purchase price for Percentage Interests
purchased may be paid by Yahoo either in cash, shares of Yahoo Common Stock,
or a combination of both, as determined in Yahoo's sole discretion; provided
that any shares of Yahoo Common Stock shall be registered under the
Securities Act of 1933 (and qualified or exempt under any applicable state
blue sky authorities) in a manner permitting public resale no later than
ninety (90) days following the closing of the purchase of Percentage
Interests. The value of any shares of Yahoo Common Stock for these purposes
will be determined based upon the average closing price of such shares on the
NASDAQ Stock Market (or such other principal exchange or trading system upon
which such shares are traded or sale prices are quoted) for the thirty (30)
trading days preceding the closing of the purchase of Percentage Interests.
In the event that any shares issued by Yahoo in such transaction shall not be
registered for resale at the time of issuance, the total value of the shares
issued in such transaction (based upon the closing price on the second (2nd)
trading date preceding effectiveness of the registration statement) shall be
at least equal to the
* Confidential treatment requested. Omitted portion filed
separately with the Commission.
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purchase price provided herein, or Yahoo will issue sufficient additional
registered shares or pay the difference in cash.
ARTICLE VIII
DEATH, INCOMPETENCE OR DISSOLUTION OF A MEMBER
8.1 EFFECT ON COMPANY. The death, incompetence, dissolution
or Bankruptcy of a Member shall not entitle any Member to a return of capital
other than to the extent such Member normally would be entitled to a
distribution under the provisions of this Agreement. Such event shall not
cause a dissolution of the Company except as otherwise provided in Section
10.1.
8.2 RIGHTS OF PERSONAL REPRESENTATIVE. On the death,
incompetence, dissolution or Bankruptcy of a Member his or her personal
representative, executor, administrator, guardian or conservator shall have
all the rights of a Member for the purpose of settling such Member's estate,
or administering such Member's property, including the power of assignment.
ARTICLE IX
WITHDRAWAL
9.1 WITHDRAWAL OF MEMBERS.
(a) No Member may withdraw from the Company and receive
a distribution with respect to such Member's Capital Account unless such
withdrawal has received the Approval of Members holding a majority of all
Percentage Interest (disregarding for such purpose the Percentage Interest of
the withdrawing Member) and the Board as provided in Section 3.3 hereof.
(b) In the event of a withdrawal permitted hereunder,
the Percentage Interest in the Company of such Member shall terminate as of
such date and, subject to the provisions hereof, the former Member's Capital
Account (together with such Member's allocable share of Company Profits or
less such Member's allocable share of Company Losses through the date of
effectiveness of such withdrawal) shall be paid, subject to the provisions of
this Agreement, in cash or in kind, to such former Member within thirty (30)
days after the effective date of withdrawal.
ARTICLE X
DISSOLUTION, MERGER AND LIQUIDATION
10.1 EVENTS OF DISSOLUTION. Upon the determination of the
Board, as provided in Section 3.3 hereof (without any requirement of Approval
by the other Members), the Company will be dissolved and the assets shall
either be liquidated forthwith or the property shall be distributed in kind
to the Members after payment of the debts of the Company as determined by
agreement of the Members. The Company shall also dissolve upon the death,
incompetence,
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Bankruptcy, retirement, resignation or expulsion of any Member unless
Approval is provided by the remaining Members within ninety (90) days after
such event to continue the Company.
10.2 MERGER. The Company shall be merged with another entity
under applicable provisions of the Act if (and on such terms as) the Board in
its sole discretion deems appropriate (subject to the provisions of Section
3.3 hereof).
10.3 LIQUIDATION PROCEEDS. In settling accounts after
liquidation, the moneys of the Company shall be applied in the following
manner:
(a) The liabilities of the Company to creditors,
including Members who are creditors to the extent permitted by law, shall be
paid or otherwise adequately provided for except for liabilities of the
Company for distributions to Members.
(b) The remaining assets shall be distributed to the
Members in accordance with their positive Capital Account balances. If any
assets are to be distributed in kind, each Member's Capital Account shall
first be adjusted to reflect the Profits or Losses that would have been
allocated to such Member if such assets had been sold for cash at their fair
market value at the time of the distribution.
(c) In the event that any Member withdraws from the
Company in accordance with the provisions of this Agreement, such Member
shall be distributed an amount equal to such Member's Capital Account balance
as of the date of such withdrawal (taking into account all adjustments to
such Capital Account through the date of such withdrawal).
ARTICLE XI
CERTAIN SECURITIES RELATED MATTERS
11.1 INVESTMENT INTENT. Each Member hereby represents and
warrants to the Company and to the other Members that such Member's
Percentage Interest will be acquired for such Member's own account, for
investment, and not with a view to or for sale in connection with any
distribution thereof, nor with any present intention of reselling or
distributing such Percentage Interest. Each Member fully understands that
the Company is relying upon the truth and accuracy of the foregoing
representations, and the representations that follow, to establish exemptions
from registration under the Securities Act of 1933 (the "Securities Act"),
and from registration or qualification under the California Corporate
Securities Law of 1986 and other applicable securities laws (the "Laws").
11.2 ABSENCE OF REGISTRATION. Each Member also hereby
represents that such Member understands that such Member must bear the
economic risk of such Member's investment in the Company for an indefinite
period of time because such Percentage Interest has not been registered under
the Securities Act or registered/qualified under the Laws and therefore
cannot be sold unless they are subsequently so registered and qualified or
exemptions from such registration and qualification are available, and the
Company is under no obligation to so register
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or qualify any Percentage Interest or to comply with any exemption and has no
current intention of so doing.
11.3 RESTRICTED SECURITIES; ABSENCE OF TRADING MARKET. Each
Member further hereby represents that such member understands that (a) such
member's Percentage Interest constitute "restricted securities" under the
Securities Act and that Rule 144 promulgated under the Securities Act is not
now available with respect to the transfer of such Member's Percentage
Interest and that there is no present likelihood that it will be available in
the future, (b) that there is no public market for such Percentage Interest
and there is no present likelihood that any such market will develop, and (c)
the Company is newly formed and has no earnings or operating history.
11.4 PREEXISTING RELATIONSHIP; INVESTMENT EXPERIENCE. Each
Member represents and warrants (a) that such Member has a preexisting
personal or business relationship with Yahoo and/or Visa and/or other members
of the Visa Group, as the case may be, such that such Member is aware of the
character, business acumen and general business and financial circumstances
of such parties, or (b) that either alone or with a purchaser representative,
such Member can bear the economic risk of the investment in the Company and
has such knowledge and experience in financial or business matters that such
Member is capable of evaluating the merits and risks of an investment in the
Company.
11.5 RESIDENCE. Each Member represents that such Member's
principal residence (or the location of such Member's executive office in the
case of a Member which is an entity) is located in the state of California.
11.6 ECONOMIC RISK. Each Member hereby represents that such
Member has adequate net worth and means for providing for such Member's
current needs and personal contingencies to sustain a complete loss of such
Member's investment, is able to bear such a loss, and that such Member has no
need of liquidity of such Member's investment.
11.7 RESALE. Each Member hereby represents such Member's
awareness that such Member's rights to transfer such Member's Percentage
Interest will be restricted by the Securities Act, the Laws, and this
Agreement; that any certificates or other documents evidencing such Member's
Percentage Interest may bear the legends relating to those restrictions which
are set forth herein; and that corresponding notations will be made by the
Company in its appropriate records.
11.8 CORPORATE POWER. Each Member hereby represents that it
has all requisite corporate power and authority to execute and deliver this
Agreement and the Operating Agreement.
11.9 AUTHORIZATION. Each Member hereby represents that all
corporate action on the part of such Member and its officers, directors and
stockholders, necessary for the authorization, execution and delivery of this
Agreement and the Operating Agreement, the performance of all obligations of
such Member hereunder and thereunder has been taken and this Agreement and
the Operating Agreement constitute valid and legally binding obligations of
such Member,
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enforceable in accordance with their respective terms except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
11.10 CONSENTS. Each Member hereby represents that no
consent, approval, qualification, order or authorization of, or filing with,
any local, state or federal governmental authority or other third party is
required on the part of such Member in connection with such Member's valid
execution, delivery or performance of this Agreement and the Operating
Agreement.
11.11 COMPLIANCE WITH OTHER INSTRUMENTS. Each Member
hereby represents that the execution, delivery and performance by such Member
of this Agreement and the Operating Agreement, and the consummation of the
transactions contemplated hereby and thereby will not result in any violation
or be in material conflict with or constitute, with or without the passage of
time or giving of notice, either (i) a material default under any provision
of any mortgage, indenture, agreement, instrument or contract to which it is
a party or by which it is bound or (ii) an event that results in the creation
of any material lien, charge or encumbrance upon any assets of such Member or
the suspension, revocation, impairment, forfeiture or nonrenewal of any
material permit, license, authorization or approval applicable to such
Member, its business or operations, or any of its assets or properties.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES. Except as otherwise provided herein, any notice
or other communication to be given hereunder shall be in writing and shall be
(as elected by the party giving such notice): (i) personally delivered; (ii)
transmitted by postage prepaid registered or certified airmail, return
receipt requested; (iii) transmitted by electronic mail via the Internet with
receipt being acknowledged by the recipient by return electronic mail (with a
copy of such transmission transmitted by postage prepaid registered or
certified airmail, return receipt requested); (iv) transmitted by facsimile
(with a copy of such transmission by postage paid prepaid registered or
certified airmail, return receipt requested); or (v) deposited prepaid with a
nationally recognized overnight courier service. Unless otherwise provided
herein, all notices shall be deemed to have been duly given on: (a) the date
of receipt (or if delivery is refused, the date of such refusal) if delivered
personally, by electronic mail, facsimile or by courier; or (b) three (3)
days after the date of posting if transmitted by mail. Either party may
change its address for notice purposes hereof on not less than three (3) days
prior notice to the other party. Notice hereunder shall be directed to a
Party at the address for such Party which is set forth on SCHEDULE 1 to this
Agreement.
12.2 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts with the same effect as if all parties
hereto had all signed the same document. All counterparts shall be construed
together and shall constitute one agreement.
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12.3 ASSIGNABILITY. Without limiting the restrictions upon
assignment and transfer set forth herein, each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the successors and assigns of the respective parties
hereto.
12.4 GENDER AND NUMBER. Whenever required by the context
hereof, the singular shall include the plural and the plural shall include
the singular. The masculine gender shall include the feminine and neuter
genders, and the neuter shall include the masculine and feminine.
12.5 CAPTIONS. Sections, titles or captions in no way define,
limit, extend or describe the scope of this Agreement nor the intent of any
of its provisions.
12.6 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
12.7 INTEGRATION. This Agreement, together with the Operating
Agreement and all Counterparts, contain the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all other
agreements or understandings of any kind (including, without limitation, the
Letter Agreement between Yahoo and Visa dated March 27, 1996).
12.8 AMENDMENTS.
(a) This Agreement may be amended by the Board (as
provided in Section 3.3 hereof) without the consent of any Member for the
purpose of adding provisions hereto or changing in any manner or eliminating
any of the provisions hereof or of modifying in any manner the rights and
obligations of the Members hereunder, in each case without the consent of any
other Member. Notwithstanding the foregoing, any such amendment which
materially and adversely affects any Member in a manner different from any
other Member shall require the Approval of such materially and adversely
affected Member.
(b) Each of the Members does hereby constitute and
appoint the Secretary of the Company (as directed by the Board) as such
Member's true and lawful representative and attorney-in-fact, in his name,
place and stead to make, execute, sign and file, the Certificate and any
amendments thereto in the office of the Secretary of State of the State of
Delaware which may be required because of this Agreement or the making of any
amendments or supplements thereto as provided in this Section 12.8 and to
make, execute, sign and file this Agreement and all amendments thereto and
all such other instruments, documents and certificates which, from time to
time, in the opinion of the Company's legal counsel, may be required, by the
laws of the United States of America, the State of Delaware or any other
jurisdiction in which the Company shall determine to do business, or any
political subdivision or agency thereof, or by this Agreement, or which such
legal counsel may deem necessary or appropriate to effectuate, implement and
continue the valid and subsisting existence and business of the Company.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement effective as of the date first written above.
FOUNDERS:
Yahoo! Inc., a California corporation
By: /s/ Timothy Koogle
-------------------------------------------
Title: President and CEO
----------------------------------------
Visa Marketplace, Inc., a Delaware corporation
By: /s/ Scott Randall
-------------------------------------------
Title: President
----------------------------------------
Sterling Payot Capital, L.P., a California
limited partnership
By: Sterling Payot Management, Inc., a
Delaware corporation, its general partner
By: /s/ Robert Smelick
--------------------------------------
Robert Smelick, Managing Director
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SCHEDULE 1
Member Initial Cash Percentage
- ------ Contribution Interest
------------ --------
Yahoo! Inc. $ 550,000 55.0%
635 Vaqueros Avenue
Sunnyvale, CA 94086
Attn: President
Facsimile: (408) 328-3302
e-mail: tkoogle@yahoo.com
Copy to:
James L. Brock
Venture Law Group
2800 Sand Hill Road
Menlo Park, CA 94025
Facsimile: (415) 233-8386
e-mail: jbrock@venlaw.com
Visa Marketplace, Inc. $ 300,000 30.0%
900 Metro Center Boulevard
Foster City, CA 94404
Attn: Legal Department
Facsimile: (415) 432-2145
e-mail: konsta@ix.netcom.com
Copy to:
Mark Anderson
Farella Braun & Martel
235 Montgomery Street, 30th Floor
San Francisco, CA 94104
Facsimile: (415) 954-4480
e-mail: andersom@fom.com
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Sterling Payot Capital, L.P. $ 150,000 15.0%
222 Sutter Street, 8th Floor
San Francisco, CA 94108
Facsimile: (415) 274-4545
e-mail: aversa@spcom.com
-------------- ------------
$1,000,000 100.0%
-------------- ------------
-------------- ------------
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