· Web viewHAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM SUCH REGISTRATION SET FORTH IN THE SECURITIES ACT

OPERATING AGREEMENT

OF

_______________

Dated as of _______________

ANY SECURITIES CREATED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE DELAWARE SECURITIES ACT, AS AMENDED. IN ADDITION, THE SECURITIES CREATED BY THIS AGREEMENT, IF ANY,

~#4822-8629-7866 v.1~

HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM SUCH REGISTRATION SET FORTH IN THE SECURITIES ACT OF 1933 PROVIDED BY SECTION 4(2) THEREOF, NOR HAVE THEY BEEN REGISTERED WITH THE SECURITIES COMMISSION OF CERTAIN STATES IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION. THE EQUITY INTERESTS CREATED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND IN A TRANSACTION WHICH IS EITHER EXEMPT FROM REGISTRATION UNDER SUCH ACTS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS.

~#4822-8629-7866 v.1~

TABLE OF CONTENTS

Page

ARTICLE I: GENERAL PROVISIONS.........................................................................................41.1 Formation.......................................................................................................................41.2 Name of the Company...................................................................................................41.3 Business of the Company; Powers.................................................................................11.4 Principal Office..............................................................................................................11.5 Registered Office and Registered Agent of the Company.............................................11.6 Qualification to Transact Business................................................................................11.7 Term...............................................................................................................................11.8 Tax Status.......................................................................................................................11.9 Definitions......................................................................................................................1

ARTICLE II: MEMBERS AND DESIGNATION OF UNITS.......................................................12.1 Designation of Units......................................................................................................12.2 Names and Addresses of Members................................................................................22.3 Status of Certain Units as Profits Interests; Vesting......................................................2

ARTICLE III: CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS.............................33.1 Initial Capital Contributions..........................................................................................33.2 Additional Capital Contributions...................................................................................33.3 Maintenance of Capital Accounts..................................................................................43.4 Withdrawal of Capital....................................................................................................43.5 No Interest......................................................................................................................43.6 Loans..............................................................................................................................43.7 Priority and Return of Capital........................................................................................4

ARTICLE IV: ALLOCATIONS OF PROFITS AND LOSSES.....................................................44.1 Allocation of Profits.......................................................................................................54.2 Allocation of Losses......................................................................................................54.3 Allocations Upon Liquidation........................................................................................5

ARTICLE V: DISTRIBUTIONS....................................................................................................55.1 Distributions of Available Cash.....................................................................................65.2 Tax Distributions...........................................................................................................65.3 Amounts Withheld.........................................................................................................65.4 Limitation Upon Distributions.......................................................................................7

ARTICLE VI: MANAGEMENT....................................................................................................76.1 Board of Managers.........................................................................................................76.2 Limitations on Authority. Notwithstanding anything to the contrary contained

in this Article 6, all of the following actions require the affirmative vote of the Super Majority Members:..............................................................................................7

6.3 Initial Managers; Term..................................................................................................86.4 Removal, Resignations..................................................................................................86.5 Manager Compensation.................................................................................................86.6 Voting............................................................................................................................8

i~#4822-8629-7866 v.1~

6.7 Meetings of the Board of Managers...............................................................................86.8 Action by Written Consent............................................................................................96.9 Deadlock........................................................................................................................96.10 Officers..........................................................................................................................96.11 Liability for Certain Acts.............................................................................................106.12 Outside Activities of Managers...................................................................................116.13 Compensation of Managers and Officers....................................................................11

ARTICLE VII: RIGHTS, LIABILITIES AND OBLIGATIONS OF MEMBERS.......................117.1 Management of Business.............................................................................................117.2 Meetings of Members..................................................................................................117.3 Action by Written Consent..........................................................................................127.4 Limited Liability..........................................................................................................137.5 Conflicts of Interest......................................................................................................137.6 Outside Activities of Members....................................................................................137.7 Representations and Warranties...................................................................................13

ARTICLE VIII: BANK ACCOUNTS, RECORDS, ACCOUNTING AND TAX MATTERS.....................................................................................................................................14

8.1 Bank Accounts.............................................................................................................148.2 Records and Reports....................................................................................................148.3 Accounting Method.....................................................................................................158.4 Tax Returns..................................................................................................................158.5 Tax Matters Partner......................................................................................................158.6 Tax Audit of Company................................................................................................158.7 Tax Audits of Members...............................................................................................158.8 Tax Elections...............................................................................................................15

ARTICLE IX: INDEMNIFICATION...........................................................................................169.1 Indemnification by Company......................................................................................169.2 Indemnification Not Exclusive....................................................................................179.3 No Agency...................................................................................................................179.4 Indemnification Limited by Law.................................................................................179.5 Successor Liability for Indemnification.......................................................................179.6 Amendment to Indemnification Provisions.................................................................17

ARTICLE X: TRANSFER OF INTERESTS................................................................................1710.1 Restriction on Transfer of Units..................................................................................1710.2 Drag-Along Rights.......................................................................................................1910.3 Tag-Along Rights.........................................................................................................2010.4 Assignee Rights; Effect of Transfer of Units...............................................................2010.5 Effect of Transfer of a Members Interest.....................................................................2110.6 Admission of Substitute Members...............................................................................2110.7 Admission of Additional Members..............................................................................2210.8 Pre-Emptive Right to Purchase New Equity Interests.................................................22

ARTICLE XI: DISSOLUTION AND LIQUIDATION................................................................2311.1 Dissolution...................................................................................................................24

ii~#4822-8629-7866 v.1~

11.2 Effect of Dissolution....................................................................................................2411.3 Winding Up, Liquidation and Distribution of Assets..................................................2411.4 Certificate of................................................................................................................2511.5 Cancellation.................................................................................................................2511.6 Deficit Capital Account...............................................................................................2511.7 Nonrecourse to Other Members...................................................................................25

ARTICLE XII: MISCELLANEOUS.............................................................................................2512.1 Notices.........................................................................................................................2512.2 Severability..................................................................................................................2612.3 Amendment, Modification, or Alteration of Agreement.............................................2612.4 Application of Delaware Law......................................................................................2612.5 No Contractual Appraisal Rights.................................................................................2612.6 No Partnership Intended for Nontax Purposes.............................................................2612.7 Waiver of Action for Partition.....................................................................................2612.8 Binding Effect on Successors......................................................................................2612.9 Invalidity......................................................................................................................2712.10 Execution of Additional Instruments...........................................................................2712.11 Waivers........................................................................................................................2712.12 Rights and Remedies Cumulative................................................................................2712.13 Creditors.......................................................................................................................2712.14 Specific Performance...................................................................................................2712.15 Fees and Expenses.......................................................................................................2712.16 Headings and Pronouns; Construction.........................................................................2712.17 Execution in Counterparts............................................................................................2812.18 Complete Agreement...................................................................................................28

EXHIBIT A - UNITS AND CAPITAL CONTRIBUTIONS OF MEMBERSEXHIBIT B - MANAGER COMPENSATIONAPPENDIX A - DEFINITIONSAPPENDIX B - TAX MATTERS

iii~#4822-8629-7866 v.1~

OPERATING AGREEMENTOF

_______________

This OPERATING AGREEMENT (the “Agreement”) of _______________a _______________Limited Liability Company (the “Company”) is entered into as the date set forth above (the “Effective Date”), by and among the persons listed on Exhibit A hereto and each other Person who is admitted as a member of the Company from time to time in accordance with the provisions of this Agreement (collectively, the “Members”).

1WITNESSETH:

WHEREAS, the original Members formed the Company on _______________the purposes set forth herein, pursuant to the Delaware Limited Liability Company Act, set forth in Title 6 of the Delaware Code Annotated, Section 18-101 et seq., as amended from time to time (the “Act”);

WHEREAS, the original Members entered into the original Operating Agreement of the Company as of _______________ (the “Original Agreement”) as their binding operating agreement for all purposes permitted for a limited liability company operating agreement under the Act; and

WHEREAS, the parties to the Original Agreement and all other Members of the Company have entered into this Agreement as of the date set forth above to make certain agreed upon changes.

NOW, THEREFORE, the Members by this Agreement set forth the operating agreement for the Company under the Act, upon the following terms and conditions:

ARTICLE I:GENERAL PROVISIONS

I.1 Formation.

The Company was formed on _______________the filing of the Certificate with the Delaware Secretary of State’s Office pursuant to the Act. The Members shall cause the execution, delivery and filing of, any necessary or advisable amendments or restatements to the Certificate consistent with the terms of this Agreement, and any other certificates, Notices, statements or other instruments (and any amendments or statements thereof) necessary or advisable for the operation of the Company in all jurisdictions where the Company may elect to do business.

I.2 Name of the Company .

iv~#4822-8629-7866 v.1~

The name of the Company is _______________The Company may adopt and conduct its business under such other name or names as the Board of Managers may from time to time determine.

I.3 Business of the Company; Powers.

(a) Business of the Company . The purposes of the Company shall be (____________________________________________________________ (ii) any other lawful business or activity permitted by the Act or laws of any jurisdiction in which the Company may do business as approved by the Board of Managers.

(b) Powers . The Company shall have all the powers permitted to a limited liability company under the Act and which are necessary, convenient or advisable for it to conduct its business activities.

I.4 Principal Office.

The principal office and place of business of the Company shall be at such location as the Board of Managers may determine from time to time.

I.5 Registered Office and Registered Agent of the Company.

The registered office of the Company shall be at such place as the Board of Managers may determine in accordance with the Act. The registered agent for service of process on the Company shall be appointed by the Board of Managers in accordance with the Act.

I.6 Qualification to Transact Business .

The Board of Managers shall qualify the Company to transact business in such jurisdictions as the Board of Managers determines from time to time to be necessary.

I.7 Term.

The term of the Company commenced on the filing of the Certificate and shall continue until dissolved in accordance with this Agreement.

I.8 Tax Status.

To the extent permitted by law, the Company will be treated as a partnership for federal, state and local income tax purposes, and the Members will not make an election to treat it as other than a partnership for tax purposes.

I.9 Definitions.

Definitions of terms used in this Agreement are contained in Appendix A.

v~#4822-8629-7866 v.1~

ARTICLE II:MEMBERS AND DESIGNATION OF UNITS

II.1 Designation of Units.

(a) The ownership interest in the Company shall initially be divided into a single class of Units. Except as expressly provided in this Agreement, all Units shall have identical rights, privileges, preferences and obligations. The Units need not be evidenced by any certificate or other written instrument, but shall only be evidenced by this Agreement and the holders of record of the Units shall be as is reflected on the books of the Company.

(b) Subject to the other provisions of this Agreement, the Company may authorize and issue from time to time hereafter additional classes of Units having such rights, privileges, preferences and obligations as the Majority Members may from time to time designate in an amendment to this Agreement.

II.2 Names and Addresses of Members.

(i) The names, addresses, number and class of Units owned and the Percentages of the Members are set forth in Exhibit A. The Company shall update Exhibit A from time to time, as necessary, including to reflect the admission of Members and the Transfer or issuance of Units, each in accordance with the terms of this Agreement. Any amendment or revision of Exhibit A made in accordance with this Agreement shall not be deemed to be an amendment to this Agreement requiring the consent or approval set forth in Section 12.3. Any reference in this Agreement to Exhibit A shall be deemed a reference to Exhibit A as amended and in effect from time to time. Exhibit A shall reflect whether each Unit is a “profits interest”.

II.3 Status of Certain Units as Profits Interests; Vesting.

(a) Profits Interests . The Company shall have the ability to designate certain Units as a “profits interest” in the Company within the meaning of Revenue Procedure 93-27, as clarified by Revenue Procedure 2001-43, or any successor authority thereto, for federal income tax purposes. The Company may issue Units from time to time pursuant to employment agreements, incentive plans, or otherwise, that are intended to constitute a “profits interest” as described in the foregoing sentence. As a “profits interest” in the Company, such Units shall constitute an interest in the future Profits and Losses of the Company and shall not entitle the holder thereof to any portion of the fair market value of the Company as of the date that such Units are issued, and all allocations and Distributions made pursuant to this Agreement shall be made in a manner consistent with this principle. By executing this Agreement, the Members and the Board of Managers agree to take such actions as may be required by any authority that may be issued in the future with respect to the taxation of “profits interests” transferred in connection with the performance of services to conform the tax consequences to any Member that receives such “profits interest” as closely as possible to the consequences under Revenue Procedure 93-27 and Revenue Procedure 2001-43. None of the Members who are issued such “profits interests” shall make Capital Contributions in connection with the acquisition of such Units and the Company shall treat such Members as holding “profits interests” for all purposes of this Agreement. None of the Company, the Members or the Board of Managers make any representation or warranty as to whether any of the Units issued constitutes a “profits interests” or

vi~#4822-8629-7866 v.1~

as to any of the tax consequences of the issuance or the receipt of any distribution or other amounts on account of any of the Units intended to constitute “profits interests”.

(b) Safe Harbor Election and Forfeiture Allocations. The Board of Managers is hereby authorized to cause the Company to make an election to value any Units issued to a Member as compensation for services to the Company (the “Compensatory Interest”) at liquidation value (the “Safe Harbor Election”), as the same may be permitted pursuant to or in accordance with the finally promulgated successor rules to Proposed Regulations Section 1.83-3(l) and IRS Notice 2005-43 (collectively, the “Proposed Rules”). The Board of Managers shall cause the Company to make any allocations of items of income, gain, deduction, loss or credit (including forfeiture allocations and elections as to allocation periods) necessary or appropriate to effectuate and maintain the Safe Harbor Election. The Board of Managers is hereby authorized and empowered, without further vote or action of the Members, to amend the Agreement as necessary to comply with the Proposed Rules or any rule, in order to provide for a Safe Harbor Election and the ability to maintain or revoke the same, and shall have the authority to execute any such amendment by and on behalf of each Member. Any undertakings by the Members necessary to enable or preserve a Safe Harbor Election may be reflected in such amendments and to the extent so reflected shall be binding on each Member, provided, that such amendments are not reasonably likely to have a material adverse effect on the rights and obligations of the Members. Each Member agrees to cooperate with the Board of Managers to perfect and maintain any Safe Harbor Election, and to timely execute and deliver any documentation with respect thereto reasonably requested by the Board of Managers.

(c) Vesting . Units issued to any Member may be subject to vesting terms and restrictions, which shall be set forth in writing in a grant agreement, incentive plan, employment agreement or otherwise.

(d) Voting Rights and Distributions with Respect to Unvested Units . Subject to Section 5.2, unless otherwise provided in a written agreement, any Distributions with respect to any Units that have not vested shall instead be held by the Company until such Units vest, at which time any such retained distributions shall be promptly released to the holder of such newly vested Units. Any retained distributions pursuant to the foregoing sentence which relate to unvested Units which are forfeited to or acquired by the Company or fail to vest for whatever reason shall revert to the Company and shall become available for distribution to all of the other Members in accordance with Article V. All unvested Units shall have voting rights unless otherwise set forth in a written agreement to the contrary signed by the holder of such Units.

ARTICLE III:CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS

III.1 Initial Capital Contributions.

Each Member has contributed to the Company, in one or more Capital Contributions or by an Employee Agreement, such capitol amount as is set forth in Exhibit A, and received the number of Units and Percentage set forth on Exhibit A. Any Member admitted after the Effective Date pursuant to the provisions of Section 10.7 shall make an initial Capital Contribution or provide services as agreed upon in an Employee Agreement and receive such number of Units and Percentage as may be agreed with the Company, subject to the terms and conditions of this

vii~#4822-8629-7866 v.1~

Agreement. The Company shall revise Exhibit A as needed from time to time to reflect the admission of new Members, issuances and redemptions of Units or any other event having an effect on a Member’s Units or Percentage.

III.2 Additional Capital Contributions.

No Member shall be obligated to make any additional Capital Contributions to the Company other than such Member’s initial Capital Contribution. Notwithstanding the foregoing, the Company may, upon the approval of the Majority Members, accept additional Capital Contributions from one or more Members (an “Additional Capital Contribution”).

III.3 Maintenance of Capital Accounts.

The Company shall establish and maintain Capital Accounts for each Member in such manner as shall be determined by the Company’s accountants to cause, to the extent possible, the allocations of Profits, Losses, and other items of income, gain, loss, deduction and credit pursuant to Article IV to have “substantial economic effect” as defined by the Regulations promulgated under Section 704(b) of the Code. Notwithstanding anything herein to the contrary, this Agreement does not create any Capital Account deficit restoration obligation.

III.4 Withdrawal of Capital.

No Member shall have the right to withdraw any Capital Contributions made to the Company or such Member’s Capital Account except as specifically provided in this Agreement. No Member shall have the right to receive any property other than cash as a distribution from the Company, except upon liquidation or dissolution of the Company as provided in Article XI.

III.5 No Interest.

Members shall not be paid interest on their Capital Contributions or their Capital Account except as specifically provided in this Agreement.

III.6 Loans.

(a) The Members recognize that it may be desirable from time to time to use prudent amounts of leverage through borrowings from banks or other commercial lenders to finance the operation or expansion of the Company’s business or other proper Company matters. Subject to the restrictions contained in any loan or other agreement to which the Company is a party, the Board of Managers is authorized to cause the Company to obtain such borrowings or credit facilities and use the proceeds thereof to finance the Company’s operations or expansion or other proper Company matters.

(b) In addition, the Company may obtain loans from one or more Members (each, a “Member Loan”). Each Member Loan shall be repayable on such terms as the Board of Managers and the lending Member may agree, provided that such loan shall be made on an arm’s length basis on terms and conditions not less favorable to the Company than those available from unaffiliated third parties for similar loans. Any Member Loan to the Company from a Member shall be evidenced by a promissory note in a form reasonably acceptable to the Company. A loan by a Member to the Company shall not be considered part of such Member’s Capital Contribution

viii~#4822-8629-7866 v.1~

and shall not increase such Member’s Capital Account or Percentage. Any such Member Loan shall be a debt of the Company to such Member and shall be payable or collectible only out of the Company’s Property in accordance with the terms and conditions upon which such Member Loan was made.

III.7 Priority and Return of Capital.

Except as otherwise specifically provided in this Agreement, no Member shall have priority over any other Member, whether for the return of a Capital Contribution or any portion of a Capital Account or for a distribution or an allocation of Profits or Losses except as otherwise approved by the Board of Managers.

ARTICLE IV:

ALLOCATIONS OF PROFITS AND LOSSES

IV.1 Allocation of Profits.

After giving effect to the special allocations set forth in Appendix B, members that hold an Employee Agreement shall be compensated in accordance with their specific Agreement for any Fiscal Year shall be allocated among the Members in the following order and priority, in each instance taking into account prior allocations of Profits pursuant to this Section 4.1:

(a) First, to the Members in proportion to, and to the extent of, prior allocations of Losses pursuant to Section 4.2 below in reverse order of priority, until the cumulative Profits then and previously allocated pursuant to this Section 4.1(a) equals the cumulative Losses then and previously allocated pursuant to the Members pursuant to Section 4.2; and

(b) Thereafter, to the Members in accordance with their respective Percentages.

IV.2 Allocation of Losses.

After giving effect to the special allocations set forth in Appendix B, Losses for any Fiscal Year shall be allocated among the Members in the following order and priority:

(a) First, to the Members in proportion to their respective positive Capital Account balances until such balances are reduced to zero; and

(b) Thereafter, to the Members in accordance with their respective Percentages.

IV.3 Allocations Upon Liquidation.

ix~#4822-8629-7866 v.1~

(a) If upon the dissolution and termination of the Company pursuant to Article XI, and after giving hypothetical effect to the allocations required by this Article IV, distributions pursuant to Section 11.3 would not be in accordance with the positive Capital Account balances of the Members, such failure shall not affect or alter the distributions required by Section 11.3. Rather, the Board of Managers shall have the discretion to allocate or reallocate items of income, gain, loss, deduction and credit of the Company for the period in which such dissolution takes place and then, only if necessary, for prior open periods among the Members in such manner so that, prior to giving effect to the distributions of liquidation proceeds, the Capital Account balance of each Member shall, to the maximum extent possible, be the same amount as the liquidation proceeds to be distributed to such Members pursuant to Section 11.3. The Board of Managers may, in its discretion, apply the principles of this Section 4.3 to any Fiscal Year preceding the Fiscal Year in which the Company dissolves and terminates, including upon the occurrence of a Sale of the Company, if delaying application of the principles of this Section 4.3 would likely result in distributions pursuant to Section 11.3 that would not be in accordance with the positive Capital Account balances of the Members in the Fiscal Year in which the Company dissolves and terminates.

ARTICLE V:DISTRIBUTIONS

V.1 Distributions of Available Cash.

(a) The Company shall make Distributions of Available Cash at such times and in such amounts as the Board of Managers may determine from time to time to be in the best interests of the Company and its Members. The Company shall make any such Distributions to the Members in the following order of priority:

(a) First, to the Members, in proportion to the Unreturned Capital of each such Member, until the Unreturned Capital of each Member is reduced to zero; and

(b) Thereafter, to the Members in proportion to their Percentages.

Notwithstanding the foregoing and except as provided in Section 5.2, and subject to Section 2.3, no distributions shall be made pursuant to this Section 5.1 to any Member with respect to any Units held by such Member which, at the time of distribution, are unvested. Such distributions shall instead be held by the Company until such Units vest, at which time any such retained distributions shall be promptly released to the holder of such newly vested Units. Any retained distributions pursuant to the foregoing sentence which relate to unvested Units which are forfeited to or acquired by the Company or fail to vest for whatever reason shall revert to the Company and shall become available for distribution to all of the other Members in accordance with this Article V.

V.2 Tax Distributions.

Notwithstanding the provisions of Section 5.1, to the extent that the Board of Managers determines that the Company has sufficient current and projected Available Cash to make such distributions, the Company shall make distributions of Available Cash in respect of each Fiscal Year (taking into account all distributions made in respect of the Fiscal Year) equal to the product

x~#4822-8629-7866 v.1~

of (i) the amount of taxable income allocable with respect to the Units of such Member for the preceding Fiscal Year (net of cumulative tax losses previously allocated to the Units of such Member in all prior Fiscal Years and not used in prior Fiscal Years to reduce the taxable income of such Member; provided, however, that such calculation shall be made on the assumption that taxable income or tax loss from the Company is such Member’s only taxable income or tax loss) and (ii) the Combined Marginal Rate for such preceding Fiscal Year. The Company will use its best efforts to make such distributions on a quarterly basis and, in any event, not later than ninety (90) days following the end of each Fiscal Year. Any distribution to a Member pursuant to this Section 5.2 shall be treated as an advance distribution under Section 5.1 and shall be offset against subsequent distributions that such Member would be entitled to receive pursuant to Section 5.1

V.3 Amounts Withheld.

All amounts withheld pursuant to the Code or any provision of any state or local tax law with respect to any payment, distribution or allocation to the Company or the Members shall be treated as amounts distributed to the Members pursuant to this Article V for all purposes under this Agreement. The Company is authorized to withhold from distributions, or with respect to allocations, to the Members and to pay over to any federal, state or local government any amounts required to be so withheld pursuant to the Code or any provisions of any other federal, state or local law and shall allocate any such amounts to the Members with respect to which such amount was withheld.

V.4 Limitation Upon Distributions.

No Distribution shall be paid to the extent that, at the time of the Distribution, after giving effect to the Distribution, such Distribution would violate the Act or state law

ARTICLE VI:MANAGEMENT

VI.1 Board of Managers.

The business and affairs of the Company shall be managed by the committee of Managers then serving (the “Board of Managers”). Except as otherwise expressly provided in this Agreement, the Board of Managers shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary or incident to the management of the Company’s business. The Board of Managers may delegate to officers, agents and employees of the Company the duty to supervise, manage, direct and control the business of the Company in accordance with this Article. The Company shall indemnify the Managers to the fullest extent as permitted by law and as set forth in Article IX.

VI.2 Limitations on Authority . Notwithstanding anything to the contrary contained in this Article 6, all of the following actions require the affirmative vote of the Super Majority Members:

xi~#4822-8629-7866 v.1~

(a) adopting budgets and engaging in off-budget expenditures in excess of $200,000;

(b) authorizing compensation to the Managers, Chief Executive Officer or the President of the Company;

(c) acquiring real estate or personal property with a value over $100,000;

(d) borrowing money from any person or lending money to any person in excess of $300,000;

(e) selling, exchanging, leasing, mortgaging, pledging, or transferring all or any material portion (material portion being any portion or combination thereof exceeding thirty percent (30%) of the assets of the Company) of the assets of the Company;

(f) merging or consolidating with any other entity;

(g) organizing or acquiring any affiliate or subsidiary or acquiring any material ownership or equity interest in any other entity;

(h) initiating any bankruptcy, insolvency, receivership, or any similar proceeding.

VI.3 Initial Managers; Term.

As of the date of this Agreement, the Board of Managers is set at one (1) manager: initially, _______________ (the “Manager”). Manager shall serve on the Board of Managers until such Manager’s resignation, removal or death.

VI.4 Removal, Resignations.

The Members may remove any Manager, with or without cause, by the affirmative vote or written consent of the Super Majority Members. Any Manager may resign at any time by giving written Notice to the Board of Managers. Such resignation shall take effect upon receipt of Notice thereof or at such later time as shall be specified in such Notice.

VI.5 Manager Compensation.

The managers shall be compensated in accordance with the attached “Exhibit B”

VI.6 Voting.

Each Manager shall have one vote. Unless otherwise specified in this Agreement, all actions taken by the Board of Managers must be approved by a majority of the Managers in order to be valid.

VI.7 Meetings of the Board of Managers.

xii~#4822-8629-7866 v.1~

(a) Chairman . The Board of Managers shall select one of the Managers as the chairman of the Board of Managers (the “Chairman”) to preside over meetings and to provide the Notices and information required herein.

(b) Meetings . The Chairman or a majority of the Managers may call a meeting of the Board of Managers at any time. The Managers calling a meeting of the Board of Managers shall give at least two Business Days’ Notice, setting forth the time, place and date, of the meeting, and shall include with the Notice copies of all written information to be presented at the meeting.

(c) Place of Meeting . The Board of Managers shall meet at the Company’s principal place of business or at any other place within or without the State of Delaware as designated by the Chairman.

(d) Waiver of Notice . Any Manager may waive Notice of any meeting by submitting a written waiver of Notice either before or after the meeting to the Company for inclusion in the meeting minutes. In addition, a Manager waives Notice of any meeting and all objections to the purpose, time, place or date of the meeting, or the manner in which it has been called or convened, by attending the meeting, except where a Manager states at the beginning of the meeting any such objection or objections and does not vote for or assent to any action taken at, or otherwise participate in, the meeting.

(e) Conduct of Meetings . The Chairman shall preside over meetings of the Board of Managers, or if he or she is not present, then any Manager. The person presiding at the meeting may appoint any person present to act as secretary of the meeting.

(f) Means of Communication . Any or all Managers may participate in any Board of Managers meeting by, or through the use of, any means of communication by which all Managers participating may simultaneously hear each other during the meeting, including but not limited to teleconference, internet conference, or by other means. A Manager so participating shall be deemed to be present in person at the meeting.

(g) Quorum and Voting . Each Manager shall be entitled to cast one vote. At all meetings of the Board of Managers, a majority of the number of Managers then in office shall constitute a quorum for the transaction of business. If a quorum is present when a vote is taken, then except as otherwise provided herein, the affirmative vote of a majority of the Managers in attendance shall constitute the act of the Managers.

(h) Presumption of Assent . A Manager who is present at a meeting of the Managers shall be presumed to have concurred in any action taken at the meeting, unless he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting any business at it, his dissent or abstention from the action is entered in the minutes of the meeting, or unless he submits his written dissent or abstention to the presiding officer of the meeting before adjournment or to the Company immediately after adjournment of the meeting. Such right to dissent shall not apply to a Manager who, being present at the meeting, voted for such action.

xiii~#4822-8629-7866 v.1~

VI.8 Action by Written Consent.

The Board of Managers may act without a meeting, if all of the Managers entitled to vote and approve such act sign a written consent setting forth the action taken and deliver Notice and copies of the written consent to the Company and to any Managers who did not consent to such action. The Company shall file any such Board of Managers consents with the Board of Managers minutes.

VI.9 Deadlock .

In the event the Board of Managers is deadlocked with respect to any material issue, any Manager may submit the issue to the Members, in which case the issue shall be resolved by the decision of the Majority Members.

VI.10Officers.

(a) Powers . Subject to the authority of the Board of Managers, the day-to-day management and control of the Company, and its business and affairs, may be conducted or exercised by, or under the direction and authority of, the officers appointed pursuant to this Section 6.10 (each, an “Officer”). The Company may have such Officers who hold such offices, including those set forth in this Section 6.10, as may be determined from time to time by the Board of Managers.

(b) Appointment and Term. The Board of Managers may appoint Officers as the Board of Managers may determine, who may include a Chief Executive Officer, a President and such additional officers as it deems advisable. Each Officer shall serve until his successor is appointed and qualified or until his earlier resignation or removal.

(c) Duties . Unless otherwise determined by the Board of Managers, the duties and powers of the Officers shall be as follows:

(i) President . The President: (A) shall have general and active day-to-day management of the operations of the Company; (B) shall see that all orders and resolutions of the Chief Executive Officer are carried into effect; (C) shall have authority to execute contracts for the Company; and (D) shall perform such other duties as may be prescribed by the Board of Managers or the Chief Executive Officer from time to time. Notwithstanding the foregoing, the President shall not undertake any material actions or decisions without obtaining the approval of the Board of Managers.

(ii) Vice President . The Vice President: (A) shall have general and active day-to-day management of the operations of the Company; (B) shall see that all orders and resolutions of the President are carried into effect; (C) shall have authority to execute contracts for the Company; and (D) shall perform such other duties as may be prescribed by the Board of Managers or the President from time to time. Notwithstanding the foregoing, the Vice President shall not undertake any material actions or decisions without obtaining the approval of the Board of Managers.

xiv~#4822-8629-7866 v.1~

(iii) Additional Officers . Any additional officer or assistant officer designated by the Board of Managers shall have such duties as shall be delegated to them by the Board of Managers or the Chief Executive Officer from time to time.

(d) Standard of Conduct . The standard of conduct and liability of the Officers shall be determined in accordance with the applicable provisions of the Act.

(e) Removal . Subject to compliance with any employment agreement or other contract with such Officer, all Officers serve at the will and pleasure of the Board of Managers, and the Board of Managers may remove any Officer at any time, with or without cause. In any decision or matter involving the employment or employment agreement of an Officer or employee who is also a Manager, the Officer or employee who is the subject of such deliberation or decision shall not be entitled to vote on such matter and the vote or consent of the remaining Managers shall constitute a quorum and be sufficient to take any action related thereto.

(f) Resignation . An Officer may resign at any time by delivering written Notice to the Company. A resignation is effective without acceptance when the Notice is delivered to the Company, unless the Notice specifies a later effective date.

VI.11Liability for Certain Acts.

The Managers shall act in a manner they believe in good faith to be in the best interest of the Company. The Managers shall not be liable to the Company or its Members for any action taken in managing the business or affairs of the Company if they perform the duties of their office in compliance with the standard contained in this Article. The Managers have not guaranteed nor shall the Managers have any obligation with respect to the return of a Member’s Capital Contributions or profits from the operation of the Company. The Managers shall not be liable to the Company or to any Member for any loss or damage sustained by the Company or any Member except loss or damage resulting from intentional misconduct or knowing violation of law or a knowing breach of the provisions of this Agreement. The Managers shall be entitled to rely on information, opinions, reports or statements, including financial statements or other financial data prepared or presented by Members, employees, legal counsel or public accountants of the Company.

VI.12Outside Activities of Managers.

Except as otherwise provided in an employment or other agreement, a Manager shall not be required to manage the Company as its sole and exclusive function, a Manager may have other business interests. The Managers may engage in all such other businesses and activities, and any other business of any nature or description, independently or with others, that does not interfere with the performance of the Manager’s duties to the Company. Neither the Company nor any Member shall have any right, by virtue of this Agreement, to share or participate in any outside investments or activities of the Managers or to the income or proceeds derived therefrom.

VI.13Compensation of Managers and Officers.

The Company shall reimburse each Manager and Officer for all reasonable expenses incurred in managing the Company. The Board of Managers shall set the compensation (if any) to be received by Officers. Except for the payments to the initial Managers, as set forth in Exhibit

xv~#4822-8629-7866 v.1~

B attached hereto, Managers shall not be entitled to compensation for their services as such, unless such compensation receives the approval of the Majority Members. Each such payment of compensation to a Manager or Officer who is also a Member may be treated as a payment occurring between a partnership and one who is not a partner within the meaning of Code Section 707(a) or as a guaranteed payment within the meaning of Code Section 707(c), as determined by the Board of Managers.

ARTICLE VII:RIGHTS, LIABILITIES AND OBLIGATIONS OF MEMBERS

VII.1 Management of Business.

No Member, except with respect to any matter requiring such Member’s consent, and no Assignee shall take part in the operation, management or control (within the meaning of the Act) of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company.

VII.2 Meetings of Members.

(a) Annual Meeting . No annual meeting of the Members shall be required. The Board of Managers may call an annual meeting of the Members for the purpose of filling any Manager vacancies and to transact such other business as may properly be brought before the meeting. The Board of Managers shall give the Members at least 10 Business Days’ Notice of any annual meeting of the Members, setting forth the time, place, date and purpose of the meeting, and shall include with the Notice copies of all written information to be presented at the meeting.

(b) Special Meetings . The Board of Managers or Members holding at least 25% of the Units then outstanding may call a special meeting of the Members at any time. The person or persons calling a special meeting shall give the Members at least 10 Business Days’ Notice, setting forth the time, place and date, of the special meeting, and shall include with the Notice copies of all written information to be presented at the meeting.

(c) Place of Meeting . The meetings of the Members shall be held at the Company’s principal place of business or at any other place within or without the State of Delaware as specified by the Board of Managers.

(d) Waiver of Notice . Any Member may waive Notice of any meeting by submitting a written waiver of Notice either before or after the meeting to the Company for inclusion in the meeting minutes. In addition, a Member waives Notice of any meeting and all objections to the purpose, time, place or date of the meeting, or the manner in which it has been called or convened, by attending the meeting, except where a Member states at the beginning of the meeting any such objection or objections and does not vote for or assent to any action taken at, or otherwise participate in, the meeting.

(e) Conduct of Meetings . All meetings of Members shall be presided over by the chairman of the meeting, who shall be a Manager or Officer designated by the Board of Managers. The chairman of any meeting of Members shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct

xvi~#4822-8629-7866 v.1~

of discussion as seem to him in order. The chairman shall appoint any person present to act as secretary of the meeting.

(f) Means of Communication . Any or all Members may participate in any Members’ meeting by, or through the use of, any means of communication by which all Members participating may simultaneously hear each other during the meeting. A Member so participating shall be deemed to be present in person at the meeting.

(g) Quorum and Voting . At any meeting, the presence in person or by proxy of the Majority Members shall constitute a quorum. If a quorum is present when a vote is taken, the affirmative vote of Members holding a majority of the outstanding Units represented at the meeting shall constitute the act of the Members, unless otherwise permitted or required by the Act or by this Agreement

(h) Proxies . A Member entitled to vote may appoint a proxy to vote or otherwise act for the Member pursuant to a written appointment form executed by the Member or the Member’s duly authorized attorney-in-fact. An appointment of a proxy shall be effective when received by the Company. The general proxy of a fiduciary shall be given the same effect as the general proxy of any other Member. A proxy appointment shall be valid for 11 months from the date of its receipt by the Company unless otherwise expressly stated in the appointment form.

VII.3 Action by Written Consent.

(a) The Members may act without a meeting if the Members owning the requisite number of Units then issued and outstanding required to approve such act sign a written consent or consents setting forth the action taken, and deliver Notice and copies of the written consent to the Company and to any Members who did not consent to such action. The Company shall file any such Member consents with the Member minutes.

VII.4 Limited Liability.

The liability of each Member, Manager, Officer or agent of the Company shall be limited as set forth in this Agreement, the Act and other applicable law. No Member, Manager, Officer or agent of the Company is liable for any debts, obligations or liabilities of the Company or each other, whether arising in tort, contract or otherwise, solely by reason of being a Member, Manager, Officer or agent of the Company, or acting (or omitting to act) in such capacities or participating (as an employee, consultant, contractor or otherwise) in the conduct of the business of the Company, except that a Member shall remain personally liable for the payment of such Member’s Capital Contribution and as otherwise set forth in this Agreement, the Act and other applicable law.

VII.5 Conflicts of Interest.

A Member, including any Member that serves as a Manager, does not violate a duty or obligation to the Company merely because the Member’s conduct furthers the Member’s own interest. A Member may lend money to and transact other business with the Company. The rights and obligations of a Member who lends money to or transacts business with the Company are the same as those of a person who is not a Member, subject to other applicable law. No transaction

xvii~#4822-8629-7866 v.1~

with the Company shall be voidable solely because a Member or Manager has a direct or indirect interest in the transaction if either: (a) the transaction is conducted upon commercially reasonable terms in the ordinary course of business and on an arm’s-length basis; or (b) the transaction was undertaken with the unanimous approval of the Members not having a conflicting interest in the transaction.

VII.6 Outside Activities of Members.

The parties acknowledge that the Members have other business interests and may engage in other businesses and activities that might be similar to or competitive with the business of the Company. The Members shall have the right to engage in all such other businesses and activities, and any other business of any nature or description, independently or with others. Neither the Company nor any other Member shall have any right, by virtue of this Agreement, to share or participate in any outside investments or activities of the Members or to the income or proceeds derived therefrom. No Member nor any of their respective Affiliates shall be obligated to present any particular investment or business opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company, and such Member shall continue to have the right to take for his or its own respective account or to recommend to others any such particular investment opportunity.

VII.7 Representations and Warranties.

(a) Each Member hereby represents and warrants to the Company and each other Member that: (i) if that Member is an organization, that it is duly organized, validly existing, and in good standing under the law of its state of organization and that it has full organizational power to execute and agree to this Agreement and to perform its obligations hereunder and this Agreement is a valid and binding obligation of such Member, enforceable against such Member in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to the enforcement of creditors’ rights generally and by general principles of equity; (ii) the Member is acquiring Units for the Member’s own account as an investment and without an intent to distribute the Unit in violation of applicable securities laws; and (iii) the Member acknowledges that the Units have not been registered or qualified under the Securities Act or any state securities laws and may not be resold or transferred by the Member without appropriate registration or qualification or the availability of an exemption from such requirements.

(b) Each Member hereby represents that he, she or it has been advised to consult with his or its own attorney regarding all legal matters concerning ownership of Units and the tax consequences of participating in the Company, and has done so, to the extent he, she or it considers necessary and/or desirable.

(c) Each Member hereby acknowledges that the tax consequences to his, her or its ownership of Units will depend on his, her or its particular circumstances, and neither the Company, the Managers, the Members, nor the partners, shareholders, members, managers, agents, officers, directors, employees, Affiliates or consultants of any of them will be responsible or liable for the tax consequences to him, her or it of associated with the ownership of Units.

xviii~#4822-8629-7866 v.1~

Each Member will look solely to, and rely upon, his or its own advisors with respect to the tax consequences of associated with the ownership of Units.

ARTICLE VIII:BANK ACCOUNTS, RECORDS, ACCOUNTING AND TAX MATTERS

VIII.1Bank Accounts.

All funds of the Company shall be deposited in such bank or other financial institution account(s) as shall be determined by the Board of Managers. Withdrawals from any such accounts shall be made only in connection with the business of the Company and shall be made upon such signature or signatures as the Board of Managers may designate.

VIII.2Records and Reports.

At the expense of the Company, the Board of Managers shall maintain records and accounts of all operations and expenditures of the Company. The books and records of the Company shall be maintained by such Persons as the Board of Managers may designate, and shall be kept in an accurate, complete and consistent manner, together with such supplemental books and records as may be required to properly maintain Capital Accounts or otherwise comply with applicable Regulations. All Members shall at all times have access to the books, files and records of the Company for purposes of inspection and copying. The Company shall keep at its principal place of business the following records:

(a) A current list of the full name and last known address of each Member and Manager;

(b) Copies of records to enable a Member to determine the relative voting rights, if any, of the Members;

(c) A copy of the Certificate and all amendments thereto;

(d) Copies of the Company’s federal, state, and local income tax returns and reports, if any, for the three most recent years;

(e) Copies of this Agreement, together with any amendments thereto; and

(f) Copies of any financial statements of the Company for the three most recent years.

The Board of Managers shall provide to any Member, upon written request, a copy of all or any of the foregoing documents.

VIII.3Accounting Method.

For income tax and financial accounting purposes, the Company will use the method of accounting determined by the Board of Managers.

VIII.4Tax Returns.

xix~#4822-8629-7866 v.1~

The Company will file all income tax and other returns which the Company may be required to file under the laws of any state or the United States or any other jurisdiction and will provide to each Member such information concerning the Company’s assets, Profits or Losses which may be reasonably required to prepare any returns required of such Member by any such jurisdiction. In preparing such returns or providing such information, the Company will make such adjustments to its books and records or keep supplemental books and records which are reasonably required to comply with the statutes, regulations or other requirements of any jurisdiction which are inconsistent with the requirements of the Code or Regulations.

VIII.5Tax Matters Partner.

For purposes of Sections 6221 through 6231 of the Code, ______________________ shall serve as the initial “Tax Matters Partner” and shall have responsibility for all dealings with the Internal Revenue Service or other taxing authorities. The Board of Managers may select a different Member to serve as “Tax Matters Partner” from time to time.

VIII.6Tax Audit of Company.

If any income tax return of the Company is subjected to an audit by the Internal Revenue Service or other taxing authority, the Tax Matters Partner may determine that it is necessary to contest proposed adjustments to items reported in the Company return. If such a determination is made, the contest of the proposed adjustments will be financed out of the cash flow of the Company.

VIII.7Tax Audits of Members.

If any income tax return of a Member is subject to an audit by the Internal Revenue Service or other taxing authority which involves an item reported by the Company, the Tax Matters Partner will cooperate with the Member under audit by making available to said Member, at the Member’s expense, the books and records of the Company and by taking such other actions which the Member may request and which the Tax Matters Partner, in his discretion, deems appropriate.

VIII.8Tax Elections.

The Board of Managers shall have the discretion and authority to make any and all elections for federal, state, and local tax purposes including any election, if permitted by applicable law: (a) to adjust the basis of Company property pursuant to Code Sections 754, 734(b), and 743(b), or comparable provisions of state or local law, in connection with transfers of interests in the Company and Company distributions in the manner provided in Regulations Section 1.754-1(b); (b) to extend the statute of limitations for assessment of tax deficiencies against the Members with respect to adjustments to the Company’s federal, state, or local tax returns; and (c) to the extent provided in Code Sections 6221 through 6231, to represent the Company and the Members before taxing authorities or courts of competent jurisdiction in tax matters affecting the Company and the Members, in their capacities as Members, and to file any tax returns and to execute any agreements or other documents relating to or affecting such tax matters, including agreements or other documents that bind the Members with respect to such tax matters or otherwise affect the rights of the Company and Members.

xx~#4822-8629-7866 v.1~

ARTICLE IX:INDEMNIFICATION

IX.1 Indemnification by Company.

Any Person who was or is a Member, Manager, Officer, employee, or other agent (expressly authorized by the Board of Managers) of the Company, or was or is serving at the request of the Company as a director, officer, employee, or other agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise (collectively, the “Indemnified Party”) shall, in accordance with this Article IX, be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, expenses (including reasonable legal and other professional fees and disbursements), judgments, fines, settlements, and other amounts incurred (collectively, the “Indemnification Obligations”) in connection with any and all claims, demands, actions, suits or proceedings (civil, criminal, administrative or investigative), actual or threatened, in which such Indemnified Party may be involved, as a party or otherwise, by reason of such Indemnified Party’s service to, or on behalf of, or management of the affairs of, the Company or, at the request of the Company, with respect to another limited liability company, corporation, partnership, joint venture, trust or other enterprise, or rendering of advice or consultation with respect thereto, whether or not the Indemnified Party continues to be serving in the above-described capacity at the time any such Indemnification Obligation is paid or incurred. Notwithstanding the foregoing, no indemnification shall be provided by the Company with respect to any Indemnification Obligation that resulted from action or inaction of such Indemnified Party that, in each case, constituted gross negligence, willful misconduct, a material breach of the Indemnified Party’s fiduciary duty or duty of loyalty, if any, to the Company, or an act (a) that was not in good faith, (b) that involved a knowing violation of law, or (c) from which the Indemnified Party derived an improper personal benefit, in each case as ultimately determined by a court of competent jurisdiction, which determination is no longer appealable. The termination of a proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that such Indemnification Obligation resulted from the gross negligence or willful misconduct of, breach by or failure to properly act of such Indemnified Party. Expenses (including reasonable legal and other professional fees and disbursements) incurred in any proceeding will be paid by the Company, as incurred, in advance of the final disposition of such proceeding upon receipt of an undertaking by or on behalf of such Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not entitled to be indemnified by the Company as authorized hereunder.

IX.2 Indemnification Not Exclusive.

The indemnification provided by Section 9.1 shall not be deemed to be exclusive of any other rights to which each Indemnified Party may be entitled under any agreement, or as a matter of law, or otherwise, both as to action in such Indemnified Party’s official capacity and to action in another capacity, and shall continue as to such Indemnified Party who has ceased to have an official capacity for acts or omissions during such official capacity or otherwise when acting at the request of the Company, or any Person granted authority thereby, and shall inure to the benefit of the heirs, successors and administrators of such Indemnified Party.

xxi~#4822-8629-7866 v.1~

IX.3 No Agency.

No Member acting solely in the capacity of a Member is an agent of the Company, nor can any Member acting solely in the capacity of a Member bind the Company or execute any instrument on behalf of the Company. Accordingly, each Member shall indemnify, defend, and hold harmless each other Member and the Company from and against any and all loss, cost, expense, liability or damage arising from or out of any claim based upon any action by such Member in contravention of the first sentence of this Section 9.3. The foregoing indemnification by a Member shall not be deemed to be exclusive of any other rights to which the party indemnified thereby may be entitled under any agreement, or as a matter of law, or otherwise.

IX.4 Indemnification Limited by Law.

Notwithstanding any of the foregoing to the contrary, the provisions of this Article IX shall not be construed so as to provide for any indemnification for any liability to the extent (but only to the extent) that such indemnification would be in violation of applicable law or that such liability may not be waived, modified or limited under applicable law, but shall be construed as to effectuate the provisions of this Article IX to the fullest extent permitted by law.

IX.5 Successor Liability for Indemnification.

In the event of (a) a merger or consolidation of the Company with or into another Person in a transaction in which the Company is not the surviving entity, or (b) a sale, lease, transfer or other disposition of all or substantially all of the assets of the Company to any Person, the Company shall make it a condition of such transaction that the successor(s) of the Company assume the Company’s obligations with respect to indemnification of the Board of Managers.

IX.6 Amendment to Indemnification Provisions .

Any amendment, modification or repeal of this Article IX or any provision hereof with respect to exoneration from liability or indemnification shall be prospective only and shall not in any way affect the limitations on the liability of any Indemnified Party under this Article IX as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

ARTICLE X:TRANSFER OF INTERESTS

X.1 Restriction on Transfer of Units.

No Member may Transfer its Units, except as provided in this Article X. Any Transfer (including an involuntary Transfer, Transfer upon death, or a Transfer by operation of law) effected, or purported to be effected, in violation of the terms and conditions of this Agreement shall be void ab initio and shall not bind the Company. All provisions and restrictions of this Agreement relating to transfers of Units shall apply to Transfers of any portion of a Member’s Units.

xxii~#4822-8629-7866 v.1~

(a) Subject to the conditions set forth in this Section 10.1, (i) each Member who is an individual shall be permitted to Transfer voluntarily his Units to a Family Member in connection with such Member’s bona fide estate planning purposes, and (ii) each Member which is an Organization shall be permitted to Transfer such Member’s Units to its Affiliates (the Persons referred to in subsections (i) and (ii) being referred to as “Permitted Transferees”).

(b) All other Transfers (other than (i) Transfers to Permitted Transferees described in subsection (a) and (ii) Transfers described in Sections 10.2 or 10.3) shall require the prior written approval of the Board of Managers or of the Majority Members.

(c) Notwithstanding the foregoing, any attempted Transfer of Units described in this Section 10.1 shall be null and void and of no force or effect whatever unless and until the following conditions are satisfied:

(i) The Transferor and the Permitted Transferee execute such documents and instruments of conveyance and such amendments to this Agreement as may be necessary or appropriate in the opinion of counsel to the Company to effect such Transfer, to confirm the Permitted Transferee’s agreement to be bound by the provisions of this Agreement and, if the Board of Managers consents, to reflect the admission of the Permitted Transferee as a Member. If the Board of Managers does not consent to the admission of the Permitted Transferee as a Member, such Permitted Transferee shall be an Assignee as to such Units.

(ii) The Company may require, prior to such Transfer, an opinion of counsel satisfactory to the Company confirming that such Transfer (A) is not prohibited by any agreement by which the Company or its Members are bound, (B) is not contrary to, or in violation of, any applicable securities law, (C) is permitted under this Agreement and (D) will not affect the Company’s status as a limited liability company under the applicable laws of the State of Delaware.

(iii) The Transferor and Permitted Transferee shall furnish the Company with the Permitted Transferee’s taxpayer identification number and sufficient information to determine the Permitted Transferee’s initial adjusted cost basis in the Transferred Units and any other information reasonably necessary to permit the Company to file all required federal, state and foreign tax returns and other legally required information statements or returns. Without limiting the generality of the foregoing, the Company shall not be required to make any distribution otherwise provided for in this Agreement with respect to any Transferred Units until it has received such information.

(iv) The Transferor and the Permitted Transferee thereof pay all reasonable costs and expenses (including without limitation legal and other professional fees and expenses) incurred by the Company in connection with such Transfer shall require compliance by the Transferor with the procedures described in this Article X.

(d) Notwithstanding anything to the contrary contained in this Section 10.1, no Member shall be permitted at any time to Transfer to any Person any Units that remain subject to vesting, until such Units have vested.

X.2 Drag-Along Rights.

xxiii~#4822-8629-7866 v.1~

(a) Each Member will consent to and raise no objections against any Sale of the Company approved by the Super Majority Members. If such Sale of the Company is structured as a Transfer of Units, each Remaining Member shall Transfer the Units held by such Member on terms and conditions approved by the Super Majority Members, so long as the terms and conditions applicable to the Transfer by each of the Members of each class of Units are identical in all material respects to those being applied to Transfer by all other Members of such class of Units.

(b) Each Remaining Member agrees to cooperate with the Super Majority Members and to take any and all actions reasonably requested by the Board of Managers or the Super Majority Members, and to execute any and all agreements and instruments, including, without limitation, agreements conveying their Units, in connection with a Sale of the Company approved by the Board of Managers or Super Majority Members and satisfying the conditions specified in Section 10.2(a). Without limitation of the foregoing, each Member (i) waives any appraisal rights such Member may have in connection with any Sale of the Company or under applicable law that is approved by the Super Majority Members, and (ii) hereby irrevocably appoints the Board of Managers, or any Person designated by the Board of Managers for the purpose, as its agent and proxy to vote such Member’s Units as the Board of Managers may deem necessary or appropriate in connection with a Sale of the Company satisfying the conditions set forth in Section 10.2(a) and approved by the Super Majority Members.

(c) Each Member shall bear its pro rata share of (i) non-affiliate transaction costs and expenses associated with any Sale of the Company to the extent such costs are incurred for the benefit of all Members and are not otherwise paid by the Company or the acquiring party and (ii) any indemnities required of all of the Members in connection with such Sale of the Company (other than indemnities on account of such Member’s own Units or such Member’s authority to effect the transaction, for which such Member shall be solely responsible). Costs and expenses incurred by Members on a Member’s own behalf will not be considered costs of the transaction hereunder. Notwithstanding the foregoing, each Member’s indemnity shall be limited to the net proceeds received by such Member as consideration in connection for the Units in connection with any Sale of the Company.

(d) The Super Majority Members shall have full and plenary power and authority, as agent of the Members, to cause the Company to enter into a transaction providing for a Sale of the Company and to take any and all such further action in connection therewith as the Super Majority Members may deem necessary or appropriate in order to consummate any such Sale of the Company, and shall have complete discretion over the terms and conditions of any Sale of the Company effected thereby.

X.3 Tag-Along Rights.

(a) If at any time the Majority Members desire to Transfer at least a majority of their Units to a Purchaser in an arm’s-length transaction, other than Transfers by such Member(s) pursuant to Section 10.1(b) or Section 10.2, (a “Tag-Along Sale”), the Remaining Members shall have the right, but not the obligation, to participate in the Tag-Along Sale upon the

xxiv~#4822-8629-7866 v.1~

same terms and conditions per Unit as the proposed Purchaser has offered the Majority Members, in accordance with the terms of this Section 10.3.

(b) A representative designated by the Majority Members (the “Majority Representative”) shall deliver written Notice (the “Tag-Along Notice”) to each Remaining Member at least 30 days prior to the proposed closing of the Tag-Along Sale, setting forth the opportunity to exercise such Remaining Member’s right to participate in such Tag-Along Sale, the consideration to be paid by the Purchaser and the other terms and conditions of such Tag-Along Sale. Each Remaining Member that decides to exercise its right to participate in such Tag-Along Sale shall so notify the Majority Representative by delivering a Notice within fifteen (15) days of such Remaining Member’s receipt of the Tag-Along Notice, indicating the number of Units such Remaining Member wishes to sell. If the Remaining Members exercise such right of participation in accordance with the terms and conditions set forth below, the number of Units that the Transferor may sell in the transaction shall be correspondingly reduced.

(c) Each Member may sell all or any part of that number of Units equal to the product obtained by multiplying, (i) the aggregate number of Units covered by the Tag-Along Notice by (ii) a fraction the numerator of which is the number of Units owned by the Member at the time of the Transfer and the denominator of which is the aggregate number of all outstanding Units of the Company.

(d) Each Remaining Member who elects to participate in a Tag-Along Sale shall promptly deliver to the Majority Representative designated in the Tag-Along Notice such instruments or consents as may be required to Transfer the Units to be sold by such Remaining Members to the Purchaser.

(e) Simultaneously with the consummation of the Tag-Along Sale, the Majority Members shall cause the Purchaser to remit directly to each Remaining Member participating in the Tag-Along Sale the aggregate sales price of the Units sold to the Purchaser by such Remaining Member.

(f) If within 90 days after receipt of the Tag-Along Notice, the Tag-Along Sale has not been consummated, other than as a result of any action or omission of any Remaining Members, the representative of the Majority Members shall return to each Remaining Member all consents or instruments previously delivered, and all the restrictions on Transfer contained in this Agreement shall again be in effect.

X.4 Assignee Rights; Effect of Transfer of Units.

(a) An Assignee shall be admitted as a Member only by complying with the conditions set forth in Section 10.6 hereof. The rights of an Assignee who is not admitted as a Member shall be limited to the right to receive Distributions and to be allocated the Profits and Losses attributable to such Transferred Units. The Transferor of such Units shall not be a Member with respect to such Transferred Units and, without limiting the foregoing, shall not have or exercise any rights or powers of a Member with respect to such Transferred Units.

(b) The Transfer of Units shall not cause the dissolution of the Company.xxv

~#4822-8629-7866 v.1~

(c) Upon the occurrence of a Transfer, Profits, Losses, each item of income, gain, loss, deduction and credit and all other items attributable to the Transferred Units for such Fiscal Year shall be divided and allocated between the Transferor and the Assignee by taking into account their varying interests during the Fiscal Year in accordance with Code Section 706(d), using any conventions permitted by law and selected by the Board of Managers.

(d) The Company shall make all Distributions on or before the date of the Transfer to the Transferor and all Distributions thereafter to the Assignee, unless otherwise determined by the Board of Managers. The Board of Managers and the Company shall incur no liability for making allocations and Distributions in accordance with the provisions of this Section, whether or not the Board of Managers or the Company has knowledge of any Transfer of any Units or of any contrary arrangements between the Transferor and the Assignee.

(e) The Units held by any Permitted Transferee or other Assignee who is not admitted as a Member shall continue to be subject to the restrictions and provisions of this Article X as if such Units were owned by the Transferring Member.

X.5 Effect of Transfer of a Members Interest.

Any Member that makes a Transfer of all of the Units held of record by such Member will be treated, except in the case of a Transfer to a Permitted Transferee, as resigning from any and all positions with the Company, including the Board of Managers, and shall immediately cause any and all of its designees and representatives to resign immediately from any and all positions held with the Company on the effective date of such Transfer. Any Member that makes a Transfer of part (but not all) of its Unit will continue as a Member (with respect to the interest retained), and such partial Transfer will not constitute the withdrawal of such Member.

X.6 Admission of Substitute Members.

(a) The Assignee of one or more Units shall have the right to become a Member in the Company only if:

(i) the Assignee agrees in writing to be bound by the terms of this Agreement and the Certificate, as amended to the date thereof,

(ii) the Board of Managers approves the assignment and the admission of the Assignee; and

(iii) the Assignee pays the reasonable costs (including without limitation legal and other professional fees and expenses) incurred by the Company in preparing and recording any necessary amendments to this Agreement and the Certificate.

(b) The Board of Managers may grant or withhold the approval of such admission for any reason in its sole and absolute discretion.

(c) If so admitted, the Substitute Member shall have all the rights and powers and is subject to the restrictions and liabilities of the Member originally assigning the Units.

xxvi~#4822-8629-7866 v.1~

However, the admission of a Substitute Member, without more, shall not release the Member originally assigning the Units from any liability to the Company that may have existed prior to the approval and assignment of the Units.

X.7 Admission of Additional Members.

One or more persons proposing to acquire Units from the Company may be admitted to the Company as Members only if: (a) the proposed Member agrees in writing to be bound by the terms of this Agreement and the Certificate, as amended to the date thereof, (b) the Board of Managers approves such issuance and admission, and (c) the proposed Member pays the reasonable costs (including without limitation legal and other professional fees and expenses) incurred by the Company in preparing and recording any necessary amendments to this Agreement and the Certificate.

X.8 Pre-Emptive Right to Purchase New Equity Interests.

(a) Issuance of New Equity Interests . Subject to applicable securities laws, each Member shall have a pre-emptive right to purchase its pro rata share of all Equity Interests (as defined below), that the Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Interests excluded by subsection (c). For the purposes of this Section, each Member’s pro rata share is equal to the ratio of (i) the number of Units owned by such Member plus those Units issuable or issued upon the exercise of outstanding warrants, options, or convertible securities which such Member is deemed to hold immediately prior to the issuance of such Equity Interests to (b) the total number of the Company’s Units (including all Units issued or issuable upon the exercise of any outstanding warrants, options, or convertible securities) outstanding immediately prior to the issuance of the Equity Interests.

(b) Equity Interests . The term “Equity Interests” shall mean: (a) any Unit or other security of the Company; (b) any security convertible into or exercisable or exchangeable for, with or without consideration, any Unit or other security (including any option to purchase such a convertible security); (c) any security carrying any warrant or option or right to subscribe to or purchase any Unit or other security; (d) any Profits Interests; or (e) any such warrant or right.

(c) Exclusions . The pre-emptive rights established by this Section 10.8 shall not apply to any of the following Equity Interests:

(i) Equity Interests issued after the date hereof to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to any equity purchase, option or incentive plan or other arrangements that are or have been duly approved by the Board of Managers;

(ii) Equity Interests issued or issuable pursuant to any rights or agreements, options, warrants or convertible securities outstanding as of the date of this Agreement; and Equity Interests issued pursuant to any such rights or agreements granted after the date of this Agreement, so long as the pre-emptive rights established by this Section 10.8 were complied with, waived, or were inapplicable with respect to the initial sale or grant by the Company of such rights or agreements;

xxvii~#4822-8629-7866 v.1~

(iii) any Equity Interests issued in connection with a merger, consolidation, acquisition, strategic alliance, partnering, joint venture, or similar business combination or relationship duly approved by the Board of Managers and, if required, the Members;

(iv) any Equity Interests issued in connection with any split of Units, pro-rata Unit dividend or recapitalization by the Company; duly approved by the Board of Managers and, if required, the Members;

(v) any Equity Interests issued in connection with a debt or other financing transaction duly approved by the Board of Managers and, if required, the Members; and

(vi) any Equity Interests that are issued by the Company pursuant to a registration statement filed under the Securities Act.

(d) Exercise of Rights . If the Company proposes to issue any Equity Interests, it shall give each Member written notice of its intention, describe the Equity Interests, identify the applicable purchasers, and provide the price and other terms and conditions upon which the Company proposes to issue the same. Each Member shall have fifteen (15) days from the giving of such notice to agree to purchase all or a portion of the Equity Interests for the price and upon the terms and conditions specified in the notice by giving written notice to the Company stating the quantity of Equity Interests to be purchased. Notwithstanding the foregoing, the Company shall not be required to offer or sell such Equity Interests to any Member who would cause the Company to be in violation of applicable federal securities laws by virtue of such offer or sale.

(e) Issuance of Equity Interests to Other Persons . If not all of the Members elect to purchase all of the Equity Interests or elect to purchase less than their pro rata share, then the Company shall have 120 days thereafter to sell the Equity Interests in respect of which the Member’s rights were not exercised, at a price not lower and upon general terms and conditions not materially more favorable to the purchasers thereof than specified in the Company’s notice to the Members pursuant to this Section. If the Company has not sold such Equity Interests within 120 days of the notice provided pursuant to this Section, the Company shall not thereafter issue or sell any Equity Interests, without first offering such securities to the Members in the manner provided above.

ARTICLE XI:DISSOLUTION AND LIQUIDATION

XI.1 Dissolution.

Dissolution of the Company will occur only upon the happening of any of the following events:

(a) the affirmative vote of the Board of Managers and the Super Majority Members to dissolve;

(b) the occurrence of an event resulting in cessation of membership of the last remaining Member, unless any event occurs as specified in Section 6-18-801(a)(4) which prevents dissolution; or

xxviii~#4822-8629-7866 v.1~

(c) the entry of a decree of judicial dissolution of the State of Delaware pursuant to Section 6-18-802 of the Act.

XI.2 Effect of Dissolution.

Upon dissolution of the Company, the Company shall cease to carry on its business, except as permitted by Section 6-18-803 and Section 6-18-804 of the Act.

XI.3 Winding Up, Liquidation and Distribution of Assets.

(a) Upon dissolution of the Company, the Company will immediately proceed to wind up its affairs and liquidate (a “Liquidation”). The Liquidation of the Company will be accomplished in a businesslike manner by the Board of Managers. A reasonable time will be allowed for the orderly Liquidation of the Company and the discharge of liabilities to creditors so as to enable the Company to minimize any losses attendant upon Liquidation. Any gain or loss on disposition of any Company assets in Liquidation will be allocated among the Members and credited or charged to Capital Accounts in accordance with the provisions of this Agreement. Until the filing of the certificate of termination pursuant to Section 11.4 and without affecting the liability of Members and without imposing liability on the liquidating trustee or the Board of Managers, the Board of Managers may settle and close the Company’s business, prosecute and defend suits, dispose of its property, discharge or make provision for its liabilities, and make Distributions in accordance with the priorities set forth in Section 11.3(b).

(b) Priority of Payment . The assets of the Company will be distributed in Liquidation in the following order:

(i) To creditors, including Members who are creditors, by the payment or provision for payment of the debts and liabilities of the Company and the expenses of Liquidation;

(ii) To the setting up of any reserves that the Board of Managers determines are reasonably necessary for any contingent or unforeseen liabilities or obligations of the Company; and

(iii) After determining that all known debts and liabilities of the Company in the process of winding up, including debts and liabilities to Members who are creditors of the Company, have been paid or adequately provided for, the remaining assets shall be distributed to the Members in accordance with their relative positive Capital Account balances; provided, that any such distributions shall be adjusted by the Board of Managers as necessary to ensure that the issuance of Units intended to be treated as “profits interests” for federal income tax purposes as described in Section 2.3 are so treated. Such liquidating Distributions shall be made by the end of the Company’s taxable year in which the Company is liquidated, or, if later, within ninety (90) days after the date of such liquidation.

(c) Liquidating Reports . A report will be submitted with each liquidating Distribution to the Members, showing the collections, disbursements and Distributions during the period which is subsequent to any previous report. A final report, showing cumulative

xxix~#4822-8629-7866 v.1~

collections, disbursements and Distributions, will be submitted upon completion of the liquidation process.

XI.4 Certificate of

XI.5 Cancellation.

When all debts, liabilities and obligations have been paid and discharged or adequate provision has been made therefore and all of the remaining property and assets have been distributed to the Members, the Board of Managers will execute and file a certificate of cancellation with the Secretary of State of the State of Delaware in accordance with Section 6-18-203 of the Act. At such time, the Company will also file an application for withdrawal of its certificate of authority in any jurisdiction where it is then qualified to do business.

XI.6 Deficit Capital Account.

Upon a liquidation of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, if any Member has a negative Capital Account (after giving effect to all contributions, Distributions, allocations and other adjustments for all Fiscal Years, including the Fiscal Year in which such liquidation occurs), the Member shall have no obligation to make any Capital Contribution, except as otherwise expressly required by the Act, and the negative balance of any Capital Account shall not be considered a debt owed by the Member to the Company or to any other Person for any purpose.

XI.7 Nonrecourse to Other Members.

If the assets of the Company remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return any Capital Contribution of any Member, such Member shall have no recourse against any other Member except for Distributions not made in accordance with the terms of this Agreement.

ARTICLE XII:MISCELLANEOUS

XII.1 Notices.

Except as otherwise specifically provided in this Agreement or the Act, all communications contemplated by this Agreement shall be made in writing and transmitted by hand delivery, by overnight courier, by fax or by registered or certified mail, postage prepaid. Any Notice given under this Agreement in accordance with this Section 12.1 will be deemed to have been duly given and received: (a) on the date of receipt if hand delivered, (b) one Business Day after having been sent by a recognized overnight courier service upon confirmation of delivery by such courier service, (c) the date of receipt, if sent by registered or certified mail, postage prepaid, or (d) when sent by confirmed facsimile transmission (provided a confirming copy is sent by another means described herein). Any Notices to the Company shall be sent to the Company’s principal office, to the attention of the Chief Executive Officer. Any Notices to the Members shall be sent to the addresses set forth on Exhibit A. Any Member may change its address set forth on Exhibit A by giving Notice to the Company. Upon receipt of any such Notice, the Company shall revise Exhibit A accordingly.

xxx~#4822-8629-7866 v.1~

XII.2 Severability.

If one or more provisions of this Agreement are held by a proper court or arbitral tribunal to be unenforceable under applicable law, the unenforceable portions of such provisions, or such provisions in their entirety, to the extent necessary and permitted by law, shall be severed herefrom, and the balance of this Agreement shall be enforceable in accordance with its terms.

XII.3 Amendment, Modification, or Alteration of Agreement.

This Agreement constitutes the entire understanding of the parties to this Agreement with respect to the subject matter hereof and no amendment, modification or alteration of the terms of this Agreement shall be binding unless it is in writing and duly approved and executed by the Super Majority Members. Notwithstanding the foregoing, without a Member’s consent (a) no amendment may modify such Member’s limited liability, (b) no amendment may disproportionately alter such Member’s interest in the Company’s Profits or Losses or other economic matters set forth in Article IV or Article V (with respect to other Members holding the same class or series of Unit), and (c) no amendment may increase the obligations of such Member to make Capital Contributions hereunder. Any rights granted to the Members under this Agreement may be waived on behalf of all Members by the written consent of the Super Majority Members.

XII.4 Application of Delaware Law.

This Agreement and the application or interpretation hereof shall be governed exclusively by the terms of the laws of the State of Delaware without effect to its conflicts of laws provisions.

XII.5 No Contractual Appraisal Rights.

Each Member waives his, her, or its contractual appraisal rights set forth in Section 6-18-210 of the Act.

XII.6 No Partnership Intended for Nontax Purposes.

The Members have formed the Company under the Act, and, notwithstanding the Company’s status for federal income tax purposes as provided in Section 1.8, the Members expressly do not intend to form a partnership or other relationship in which a Member has or has had any interest in the business or affairs or assets of the other Members or their Affiliates under the laws of the State of Delaware or any other laws. The Members do not intend to be partners one to another, or partners as to any third party. To the extent any Member, by word or action, represents to another person that any other Member is a partner or that the Company is a partnership, the Member making such wrongful representation shall be liable to any other Member who incurs personal liability by reason of such wrongful representation.

XII.7 Waiver of Action for Partition.

Each of the Members irrevocably waives during the term of the Company created hereunder any right that he, she or it may have to maintain any action for partition with respect to any property of the Company.

xxxi~#4822-8629-7866 v.1~

XII.8 Binding Effect on Successors.

Subject to the limits on transferability and assignment contained 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, transferees, heirs and assigns of the respective parties to this Agreement.

XII.9 Invalidity.

If any particular provision herein is construed to be in conflict with the Act, the Act shall control and such provisions shall not affect or invalidate the other provisions hereof, and this Agreement shall be construed in all respects as if such conflicting provision were omitted.

XII.10 Execution of Additional Instruments.

Each Member hereby agrees to execute such other and further statements of interest and holdings, designations, powers of attorney and other instruments necessary to comply with any laws, rules or regulations.

XII.11 Waivers.

The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.

XII.12 Rights and Remedies Cumulative.

The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Such rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise.

XII.13 Creditors.

None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company.

XII.14 Specific Performance.

The Members and the Company hereby acknowledge and agree that the failure of any party to this Agreement to perform its agreements and covenants hereunder may cause irreparable injury to the other parties to this Agreement for which monetary damages, even if available, will not be an adequate remedy. Accordingly, each of the parties to this Agreement hereby consents to the granting of equitable relief (including specific performance and injunctive relief) by any court of competent jurisdiction to enforce any Member’s obligations hereunder. The parties further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such equitable relief and that this Section 12.14 is without prejudice to any

xxxii~#4822-8629-7866 v.1~

other rights that the Members and the Company may have for any failure to perform this Agreement.

XII.15 Fees and Expenses.

Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of this Agreement.

XII.16 Headings and Pronouns; Construction.

The titles of the Sections and paragraphs of this Agreement are for convenience only and are not to be considered in construing this Agreement. All pronouns used in this Agreement shall be deemed to include masculine, feminine and neuter forms, the singular number includes the plural and the plural number includes the singular and shall not be interpreted to preclude the application of any provision of this Agreement to any individual or entity. References in this Agreement to any agreement or any particular sections of the Code, the Act or to any other provisions of Delaware law shall be deemed to refer to such agreement, sections or provisions as they may be amended after the date of this Agreement.

XII.17 Execution in Counterparts.

This Agreement and any amendments to this Agreement may be executed in any number of counterparts, with the same effect as if all parties had signed the same document. All counterparts shall be construed as and shall constitute one and the same instrument.

XII.18 Complete Agreement.

This Agreement, together with any other written agreements executed by the parties, constitutes the complete and exclusive statements of the agreement among the Members and the Company. This Agreement supersedes and replaces all prior operating agreements of the Company, and all prior written and oral statements, including any prior representation, statement, condition, or warranty.

[Signatures on Following Page]

xxxiii~#4822-8629-7866 v.1~

IN WITNESS WHEREOF, the undersigned have executed this Operating Agreement as of ______ day of ______________________, 2014

MEMBERS:

President

By:

Name:

Title:

~#4822-8629-7866 v.1~

APPENDIX A

DEFINITIONS

Without prejudice to other terms defined throughout the Agreement, capitalized words and phrases used in this Agreement and in this Appendix shall have the meanings set forth herein.

“Act” has the meaning provided in the Preamble to this Agreement.

“Additional Capital Contribution” has the meaning provided in Section 3.2.

“Adjusted Capital Account Deficit” means, with respect to a Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:

(a) Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

(b) Debit to such Capital Account items described in Sections 1.704-l(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5), and 1.704-l(b)(2)(ii)(d)(6) of the Regulations.

The foregoing definition of “Adjusted Capital Account Deficit” is intended to comply with the provisions of Section 1.704-l(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.

“Affiliate” means, with respect to a Person, (a) any other Person directly or indirectly controlling, controlled by or under common control with such Person, (b) any other Person owning or controlling fifty percent (50%) or more of the outstanding voting interests of such Person, (c) any officer, director, general partner or manager of such Person and (d) any other Person who is an officer, director, general partner, manager, trustee or holder of ten percent (10%) or more of the voting interests of any Person described in clauses (a) through (c) of this sentence. For purposes of this definition, the term “controlling,” “controlled by” or “under common control with” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Assignee” means any Person to whom Units have been Transferred who has not been admitted as a Member.

“Available Cash” shall mean at any time, that portion of the Company’s cash on hand which the Board of Managers deems available for distribution to the Members, taking into account (a) the Company’s working capital requirements, (b) the amount of cash required for the payment of all current expenses, liabilities and obligations of the Company (whether for expense items, capital expenditures, improvements, retirement of indebtedness or otherwise) and (c) the

~#4822-8629-7866 v.1~A-1

amount of cash which the Board of Managers deems necessary to establish prudent reserves for the payment of future contingencies, known or unknown, liquidated or unliquidated, including liabilities which may be incurred in litigation or with respect to obligations of indemnification; provided, however, that, with respect to tax Distributions pursuant to Section 5.2, Available Cash shall be determined without reference to the foregoing clause (c).

“Board of Managers” or “Board” means the committee of Persons serving as Managers of the Company in accordance with Section 6.1.

“Business Day” means any day other than Saturday, Sunday or any legal holiday observed in the State of Delaware.

“Capital Account” means the Capital Account maintained for any Member in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited such Member’s Capital Contributions, such Member’s distributive share of Profits, and the amount of any Company liabilities assumed by such Member or which are secured by any property distributed to such Member.

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, such Member’s distributive share of Losses and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.

(c) In determining the amount of any liability for purposes of subsections (a) and (b) of this definition, there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.

(d) In the event any Unit is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest.

(e) The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulations. In the event the Board of Managers shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto, are computed in order to comply with such Regulations, the Board of Managers may make such modification, provided that it is not likely to have a material effect on the amounts distributable to any Member pursuant to Article V of the Agreement upon the dissolution of the Company. The Board of Managers shall adjust the amounts debited or credited to the Capital Accounts with respect to (i) any property contributed to the Company or distributed to a Member, and (ii) any liabilities which are assumed by the Company or a Member, in the event the Board of Managers determines such adjustments are necessary or appropriate pursuant to Regulations Section 1.704-l(b)(2)(iv). The Board of Managers

~#4822-8629-7866 v.1~A-2

shall also make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Section 1.704-1(b).

“Capital Contribution” means, with respect to any Member, the amount of money and the Gross Asset Value of any Property (other than money), net of any liabilities, contributed by such Member to the Company pursuant to the terms of this Agreement.

“Certificate” means the Certificate of Formation of the Company, filed with the Delaware Secretary of State in accordance with the Act, as the same may be amended from time to time.

“Code” means the Internal Revenue Code of 1986 and any future internal revenue law of the United States.

“Combined Marginal Rate” shall mean for any Fiscal Year, the sum of (a) the highest marginal federal income tax rate assessable for such year on the ordinary income of individual taxpayers (based upon the rates set forth in Section 1 of the Code) and (b) the highest marginal state income tax rate assessable for such year on the ordinary income of individual taxpayers resident in Delaware after giving effect to the federal income tax benefit derived from such state taxes based upon the rate determined in the preceding clause (a) and without regard to Section 68 of the Code.

“Depreciation” means, for each taxable year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board of Managers.

“Distribution” means any money or property (net of liabilities secured by such property that the Member is deemed to assume or take pursuant to Section 752 of the Code) distributed by the Company to the Members in accordance with Article V or Article XI of this Agreement.

“Equity Interests” has the meaning provided in Section 10.8.

“Family Member” means, with respect to a Member, (a) a spouse, ancestor or lineal descendant (including any child of such Member or his or her descendant who was adopted prior to the age of majority) of a Member who is a natural person; (b) a trust for the exclusive benefit of the Member or any Persons enumerated in clause (a) above, the trustee(s) of which is the Member, an individual enumerated in clause (a) above or an institutional trustee; (c) an Organization that is exclusively owned and controlled by the Member or the Persons enumerated in clause (a) above; and (e), with respect to a deceased Member, his or her estate, but only if, by operation of law or the terms of the deceased Member’s Last Will and Testament, all of the

~#4822-8629-7866 v.1~A-3

deceased Member’s Units are distributable to one or more Permitted Transferees enumerated above.

“Fiscal Year” means (a) any 12 month period commencing on January 1 and ending on December 31, or (b) any portion of the period described in clause (a) for which the Company is required to allocate Profits, Losses, and other items of Company income, gain, loss, or deduction pursuant to the Agreement.

“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset, as determined by the contributing Member and the Board of Managers;

(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values (taking Code Section 7701(g) into account), as determined by agreement of the Board of Managers, as of the following times: (A) the acquisition of Units by any new or existing Member in exchange for more than a de minimis Capital Contribution; (B) the Distribution by the Company to a Member of more than a de minimis amount of Property as consideration for Units; (C) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); or (D) in connection with the grant of Units in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by a new or existing Member acting in a member capacity; provided, however, that adjustments pursuant to clauses (A) and (B) above shall be made only if the Board of Managers reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(c) The Gross Asset Value of any Company asset distributed to any Member (taking Code Section 7701(g) into account) shall be adjusted to equal the gross fair market value of such asset on the date of Distribution as determined by the Board of Managers; and

(d) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Sections 734(b) or 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations and Article IV.

If the Gross Asset Value of an asset has been determined or adjusted pursuant to subsection (a), (b) or (d) hereof, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses.

“Legal Representative” means the executor, administrator or personal representative of a deceased Person or the committee, trustee or guardian of the Person and property of a Person

~#4822-8629-7866 v.1~A-4

suffering incapacity or the trustee in bankruptcy, receiver or assignee for the benefit of creditors of a Member in bankruptcy.

“Majority Members” shall mean Members holding a majority of the Units then held by Members.

“Management Equity” means any Units available for issuance to employees of the Company pursuant to any employment agreement, incentive plan or otherwise.

“Manager” has the meaning provided in Section 6.2(b).

“Member” means any Person owning a Unit who has been admitted as a member of the Company in accordance with this Agreement.

“Notice” means any Notice given pursuant to the provisions of Section 12.1 hereof.

“Officer” has the meaning provided in Section 6.9(a).

“Organization” means a Person other than a natural person, trust or estate, including, without limitation, corporations (both non-profit and other corporations), partnerships (both limited and general), joint ventures, limited liability companies, and unincorporated associations.

“Percentage” means the percentage assigned to each Member as set forth on Exhibit A. The Percentage of each Member shall be determined (and Exhibit A amended accordingly) at least annually, or more often if new Members are admitted to the Company or if Additional Capital Contributions are accepted by the Company. The Percentage of any Member shall be determined by dividing the number of Units owned by each Member by the aggregate number of Units issued and outstanding.

“Person” shall mean any individual, corporation, limited liability company, partnership, trust or unincorporated organization, or governmental authority or any agency or political subdivision thereof or other entity.

“Profits” and “Losses” means, for each Fiscal Year or other period, an amount equal to the Company’s taxable income or loss for such year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(a) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss;

(b) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss;

~#4822-8629-7866 v.1~A-5

(c) In the event the Gross Asset Value of any Company asset is adjusted pursuant to subsections (b), (c) or (d) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits and Losses;

(d) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year;

(e) Gain or loss resulting from any disposition of Company property, and Depreciation with respect to such property (in lieu of any depreciation, amortization or other cost recovery deductions taken into account in computing such taxable income or loss) shall be computed with reference to the Gross Asset Value of such property notwithstanding that such Gross Asset Value differs from the adjusted tax basis of such property; and

(f) Notwithstanding any other provision of this definition, any items which are specially allocated pursuant to Appendix B shall not be taken into account in computing Profits or Losses. The amounts of the items of Company income, gain, loss or deduction available to be specially allocated pursuant to Appendix B shall be determined by applying rules analogous to those set forth in subsections (a) through (e) above.

“Property” means any property, real or personal, tangible or intangible, including money and any legal or equitable interest in property, but excluding services and promises to perform services in the future.

“Purchaser” shall mean a bona fide, third-party prospective purchaser of Units or assets of the Company in a Sale of the Company or a Tag Along Sale, as the context of use requires; provided, however, Purchaser shall not be an Affiliate of the Company or any Member or Manager.

“Regulations” means the Treasury Regulations promulgated under the Code, as such Regulations may be amended from time to time (including corresponding provisions of succeeding Regulations).

“Remaining Members” means, with respect to a Sale of the Company or a Tag-Along Sale, the Members who are not part of the Super Majority Members proposing such Sale of the Company or Tag-Along Sale, as the case may be.

“Sale of the Company” means any of the following: (a) the closing of the sale, lease or other disposition, in a single transaction or series of related transactions, of all or substantially all of the Company’s assets, (b) the consummation of the merger or consolidation of the Company with or into another entity in a transaction in which Members do not hold, in the aggregate, at least 50% (by voting power) of the outstanding equity interests of the surviving or acquiring entity, or (c) the closing of the sale, issuance or other Transfer by the Company or any Member(s), in a single transaction or series of related transactions, of the Company’s Units to

~#4822-8629-7866 v.1~A-6

any Purchaser or group of affiliated Purchasers, if after such closing, such Purchaser or group of affiliated Purchasers would hold at least 50% of the Units of the Company.

“Securities Act” shall mean the Securities Act of 1933, as amended.

“Substitute Member” means an Assignee who has been admitted as a Member pursuant to this Agreement.

“Super Majority Members” shall mean Members holding at least 60% of the Units then held by Members.

“Tag-Along Sale” is defined in Section 10.3.

“Transfer” means any voluntary or involuntary sale, assignment, exchange, foreclosure, or other disposition (including dispositions by operation of law); provided, however, that “Transfer” shall not include any grant of a security interest, pledge or other encumbrance.

“Transferor” means a Member who voluntarily or involuntarily Transfers or purports to Transfer his or its Units pursuant to Article X.

“Transferred Units” means those Units that a Transferor Transfers or proposes to Transfer pursuant to Article X.

“Units” means the ownership interests in the Company acquired by the Members pursuant to Section 3.1 hereof, whether subsequently held by Members or Assignees, including any and all rights to a distributive share of the Profits and Losses of the Company and the Company property, together with all obligations of such Person to comply with the terms and provisions of this Agreement. The Units of the Members are set forth in Exhibit A.

“Unreturned Capital” means, with respect to a Member as of any date, the excess, if any, of (a) such Member’s Capital Contributions, over (b) all Distributions made to such Member pursuant to Section 5.1(a) of this Agreement.

~#4822-8629-7866 v.1~A-7

APPENDIX B

TAX MATTERS

The provisions of this Appendix B are intended to comply with the requirements of Sections 1.704-l(b)(2) and1.704-2 of the Regulations with respect to Company allocations and maintenance of capital accounts. Capitalized terms used in this Appendix B and not otherwise defined in the Agreement are defined in Paragraph 14 below:

1. Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(f) of the Regulations, notwithstanding any other provision of Article IV, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items of the income or gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Paragraph 1 is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith.

2. Member Minimum Gain Chargeback. Except as otherwise provided in Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of Article IV, if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially allocated items of income or gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the Regulations. This Paragraph 2 is intended to comply with the minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations and shall be interpreted consistently therewith.

3. Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, income or gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Paragraph 3 shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in Article IV and this Appendix B have been tentatively made as if this Paragraph 3 were not in the Agreement.

~#4822-8629-7866 v.1~

4. Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Fiscal Year which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, each such Member shall be specially allocated gross income in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Paragraph 4 shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in Article IV and this Appendix B have been made as if Paragraph 3 above and this Paragraph 4 were not in the Agreement.

5. Loss Allocation Limitation. The Losses allocated pursuant to Section 4.2 shall not exceed the maximum amount of Losses that can be so allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Fiscal Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 4.2 hereof, the limitation set forth in this Paragraph 5 shall be applied on a Member by Member basis so as to allocate the maximum permissible Losses to each Member under Section 1.704-1(b)(2)(ii)(d) of the Regulations. All Losses in excess of the limitations set forth in this Section 4.2 shall be allocated to the Members in proportion to their respective positive Capital Account balances, if any, and thereafter to the Members in accordance with their Percentages.

6. Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year shall be allocated to the Members in proportion to their respective Percentages

7. Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i)(1) of the Regulations

8. Section 754 Adjustments. To the extent an adjustment to the adjusted cost basis of any Company asset pursuant to Code Sections 734(b) or 743(b) is required, pursuant to Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) of the Regulations, to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of its Units, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Member in accordance with their Units in the event that Section 1.704-1(b)(2)(iv)(m)(2) of the Regulations applies or to the Member to whom such distribution was made in the event that Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations applies.

9. Curative Allocations. The allocations set forth in Paragraphs 1 through 8 above (the “Regulatory Allocations”) are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Profits and Losses pursuant to this Paragraph 9. Therefore, notwithstanding any other provision of this Appendix B (other than the Regulatory Allocations), the Board of

~#4822-8629-7866 v.1~A-2

Managers shall make such offsetting special allocations of Profits and Losses in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement and all Profits and Losses were allocated pursuant to Article IV. In exercising its discretion under this Paragraph 9, the Board of Managers shall take into account future Regulatory Allocations under this Appendix B that, although not yet made, are likely to offset other Regulatory Allocations previously made.

10. Other Allocation Rules.

(a) The Members are aware of the income tax consequences of the allocations made by this Appendix B and hereby agree to be bound by the provisions of this Appendix B in reporting their shares of Company Profits and Losses for federal income tax purposes.

(b) To the extent permitted by Section 1.704-2(h)(3) of the Regulations, the Board of Managers shall endeavor to treat Distributions of Available Cash as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member.

11. Tax Allocations Under Code Section 704(c).

(a) In General . Except as otherwise provided in this Paragraph 11, taxable income and loss and all items thereof shall be allocated to the Members to the greatest extent practicable in the same manner as their corresponding book items were allocated pursuant to Sections 4.1, 4.2 and 4.3 for such Fiscal Year. Allocations pursuant to this Paragraph 11 are solely for federal income tax purposes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items or distributions pursuant to any provision of this Agreement.

(b) Section 704(c) of the Code. In accordance with Section 704(c) of the Code, income, gain, loss and deduction with respect to any property contributed to the capital of the Company shall, solely for income tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Gross Asset Value (computed in accordance with the definition of Gross Asset Value).

(c) Adjustments Under Section 704(c) of the Code. In the event the Gross Asset Value of any Company asset is adjusted pursuant to subsection (b) of the definition of “Gross Asset Value,” subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted tax basis of such asset and its Gross Asset Value in the same manner as under Section 704(c) of the Code and the Regulations promulgated thereunder.

(d) Decisions Relating to Section 704(c) of the Code. Any elections or other decisions relating to allocations under this Paragraph 11, including the selection of any allocation

~#4822-8629-7866 v.1~A-3

method permitted under Section 1.704-3 of the Regulations, shall be made by the Majority Members.

12. Distributions in Kind. Any Property distributed in kind to one or more Members shall be valued and treated as though the Property were sold at its Gross Asset Value, net of any liabilities to which such Property may be subject, and the cash proceeds were distributed. In the event of a Distribution in kind of Property in accordance with this Section, the difference between the Gross Asset Value of Property so distributed in kind and its book value shall be treated as an item of Profit or Loss on sale of the Property and shall be credited or charged to the Members’ Capital Accounts in accordance with Article IV.

13. Deemed Contribution and Distribution. In the event the Company is “liquidated” within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, but no event of dissolution has occurred pursuant to Section 11.1 of the Agreement, the provisions of Article XI of the Agreement shall not apply. Instead, solely for federal income tax purposes, the Company will be deemed (a) to have contributed the assets and liabilities to a new limited liability company in exchange for an interest in such limited liability company and, immediately thereafter, (b) to have liquidated by distributing interests in the new limited liability company to the Members.

14. Defined Terms. Capitalized terms used in this Appendix B and not otherwise defined in this Agreement shall have the following definitions:

(a) “Company Minimum Gain” has the same meaning as “partnership minimum gain” set forth in Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.

(b) “Member” includes Members, successors or Assignees of a Member, and any other Person holding Units of the Company.

(c) “Member Nonrecourse Debt” has the same meaning as “partner nonrecourse debt” set forth in Section 1.704-2(b)(4) of the Regulations.

(d) “Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) of the Regulations.

(e) “Member Nonrecourse Deductions” has the same meaning as “partner nonrecourse deductions” set forth in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.

(f) “Nonrecourse Deductions” is defined in Section 1.704-2(b)(1) of the Regulations.

(g) “Nonrecourse Liability” is defined in Section 1.704-2(b)(3) of the Regulations

~#4822-8629-7866 v.1~A-4

Documents

· Web viewHAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM SUCH REGISTRATION SET FORTH IN THE SECURITIES ACT