NASHVILLE MAC FUND I, LLC. A Delaware Limited Liability Company AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT

Transcription

1 NASHVILLE MAC FUND I, LLC A Delaware Limited Liability Company AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT Dated as of February 7, 2014 THE MEMBERSHIP INTERESTS CREATED BY AND/OR REFERENCED IN THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT ), OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE SECURITIES LAWS PURSUANT TO EFFECTIVE REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, SUCH INTERESTS MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED, IN WHOLE OR IN PART, EXCEPT AS PROVIDED IN THIS AGREEMENT. ACCORDINGLY, THE HOLDERS OF SUCH INTERESTS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE RISKS OF THEIR RESPECTIVE INVESTMENTS IN SUCH INTERESTS FOR AN INDEFINITE PERIOD OF TIME.

2 THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT of NASHVILLE MAC FUND I, LLC, a Delaware limited liability company (the Company ), effective as of February 7, 2014 (the Effective Date ), by and among the Company, and each of the Persons whose names appear under the heading Members on the signature page hereto, and such other Persons who may become Members as hereinafter provided. BACKGROUND WHEREAS, the Company was formed by the filing of a Certificate of Formation with the Secretary of the State of Delaware on September 23, 2013; and WHEREAS, the Company and the Members entered into an Operating Agreement dated February 7, 2013 (the Original Agreement ); and WHEREAS, the parties hereto wish to amend and restate the Original Agreement in its entirety as set forth herein for the purposes of, and on the terms and conditions set forth in, this Agreement. NOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE 1. DEFINITIONS Section 1.1 following meanings: Definitions. As used in this Agreement, the following terms have the Act shall mean the Delaware Limited Liability Company Act (6 Del.C , et seq.), as amended from time to time, or any successor statute thereto. Additional Members means any Person to whom the Company issues Membership Interests in the Company after the date hereof and who is admitted as an Additional Member in accordance with this Agreement. Adjusted Capital Account shall mean, with respect to the Capital Account of any Member, the balance, if any, in such Capital Account as of the end of the relevant Allocation Period, after giving effect to all allocations made with respect to such Allocation Period under Section 7.1 and to the following adjustments: (i) credit to such Capital Account any amount that such Member is obligated to restore pursuant to Treas. Reg (b)(2)(ii)(c) or is deemed to be obligated to restore pursuant to Treas. Reg (g)(1) or (i)(5); and (ii) debit to such Capital Account the items described in Treas. Reg (b)(2)(ii)(d)(4), (b)(2)(ii)(d)(5) and (b)(2)(ii)(d)(6) that are attributable to such Capital Account. 1

3 The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treas. Reg (b)(2)(ii)(d) and shall be interpreted consistently therewith. Affiliate shall mean, with respect to any specified Person, a Person that directly or indirectly controls, is controlled by or is under common control with such specified Person. For the purposes of this definition, control as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Securities, by contract or otherwise. For purposes of this definition, Affiliate shall include, with respect to any natural Person, the spouse, parents, siblings and children of such Person. Agreement shall mean this Amended and Restated Limited Liability Company Agreement, as amended, modified, supplemented or restated from time to time. This Agreement shall be deemed a limited liability company agreement within the meaning of Section (7) of the Act. Allocation Period shall mean a period commencing on the first day of the Fiscal Year or any period of shorter duration commencing upon the day following the last day of the preceding Allocation Period and terminating upon the earlier of (a) the last day of the current Fiscal Year or (b) the day preceding the effective date of any change in the relative interests of the Members, including changes resulting from a transfer by any Member of its Membership Interests or any other similar transaction or event, as determined by the Manager in its reasonable discretion. Book Property shall mean property that is properly reflected on the books of the Company at a book value that differs from the adjusted tax basis of such property, within the meaning of Treas. Reg (b)(2)(iv)(g)(1). Business Day shall mean a day other than Saturday, Sunday or any day on which banks located in the State of Tennessee are authorized or obligated to close. Capital Account shall have the meaning assigned to it in Section 6.1. Capital Contribution shall mean, with respect to any Member, the amount of money and the fair market value of any property other than money contributed to the capital of the Company by such Member (net of liabilities assumed by the Company or to which property contributed to the Company is subject, taking into account the provisions of Section 752(c) of the Code and any other applicable provisions of the Code and Treasury Regulations) in accordance with the provisions of this Agreement. Certificate shall have the meaning assigned to it in Section 2.1. Code shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. Agreement. Company shall have the meaning assigned to it in the opening paragraph of this 2

4 Contract shall mean any agreement, lease, evidence of indebtedness, mortgage, indenture, security agreement or other contract or commitment (whether written or oral). Distribution shall mean any distribution of cash, Securities or other property made by the Company to a Member pursuant to this Agreement. For purposes of this Agreement, the dollar amount of any Distribution consisting of Securities or other property shall equal the fair market value of such Securities or other property as of the date of such Distribution (as determined in good faith by the Manager after taking into account all obligations and liabilities secured by such Securities or other property or to which such Securities or other property are subject). Effective Date shall have the meaning assigned to it in the opening paragraph of this Agreement. Fair Market Value means the fair market value per Membership Interest as agreed upon by the Member whose interest is being valued and the Manager, or failing such agreement such Fair Market Value shall be determined by a qualified independent Valuation Expert selected by the Manager assuming an arms-length sale for cash of the Company, without any control premium or any discount for minority interest or lack of marketability, which determination shall be as of the date of the event requiring determination of Fair Market Value, taking into account the business of the Company. Fiscal Year of the Company shall mean the fiscal year of the Company, which shall commence on each January 1 and end on each December 31; provided, however, that (a) in the case of the Company's first fiscal year, Fiscal Year means the period from and including the date on which the Company is formed under the Act to and including the immediately following December 31 and (b) the final Fiscal Year of the Company shall end on the date on which the winding up of the Company is completed. GAAP shall mean United States generally accepted accounting principles. Indemnifying Member shall have the meaning assigned to it in Section 7.5(a). Investment Decisions shall mean have the power and authority to acquire, hold, manage, own, sell, transfer, convey, assign, exchange, pledge or otherwise dispose of the Company s interests in Securities or any other investments made or other property held by the Company. Involuntary Transfer shall mean, with respect to Restricted Securities of any Member, any involuntary Transfer or Transfer by operation of law of such Restricted Securities (other than to a Permitted Transferee of such Member, or to such Member s estate upon his death) by or in which such Member shall be deprived or divested of any right, title or interest in or to such Restricted Securities, including (a) by seizure under levy of attachment or execution, (b) by foreclosure upon a pledge, (c) in connection with any voluntary or involuntary bankruptcy or other court proceeding to a debtor in possession, trustee in bankruptcy or receiver or other officer or agency, (d) pursuant to any statute pertaining to escheat or abandoned property, (e) pursuant to a divorce or separation agreement or a final decree of a court in a divorce action and 3

5 (f) a Transfer to a legal representative of any Member occasioned by the incompetence of such Member. Joinder Agreement shall have the meaning set forth in Section Lien shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance, lien (statutory or other) or other security interest of any kind or nature whatsoever, including, without limitation, those created by, arising under or evidenced by any conditional sale or other title retention Contract, the interest of a lessor under a lease which in accordance with GAAP should be recorded as a capital lease, or any financing lease having substantially the same economic effect as any of the foregoing. Manager shall mean the Manager established pursuant to Section 5.2. If there are two (2) Managers, such Managers shall be co-managers and the reference to Manager shall include both. Member or Members shall mean the Persons signing this Agreement as Members, the Additional Members, each other Person who is hereinafter admitted as a Member after the date hereof in accordance with the terms of this Agreement and the Act, and the Persons admitted as members of a Series of the Company in accordance with the terms of this Agreement. Notwithstanding the foregoing, only the Persons signing this Agreement as Members are members of the Company within the meaning of the Act, all other Members referenced herein are Members only with respect to such Members interests in the various Series of the Company. Members Schedule shall have the meaning set forth in Section 4.1. Membership Interests shall mean the rights entitling such Member to a share of the Net Gain and Net Loss pursuant to Section 7.1, to Distributions pursuant to Section 7.4, and to a share of the assets of the Company or a Series upon liquidation in accordance with Sections 11.2 and Net Gain and Net Loss shall mean, except as specified below, for each Fiscal Year or other period, the income or loss of the Company for book or capital account purposes under Treas. Reg (b)(2)(iv). In particular, but without limitation, for each Allocation Period, Net Gain or Net Loss shall mean the Company's taxable income or loss for such Allocation Period, determined in accordance with Section 703(a) of the Code (it being understood that for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in such taxable income or loss), with the following modifications: (i) income, gain or loss from, and cost recovery, amortization or depreciation deductions with respect to, any Book Property shall be computed by reference to the value of such Book Property as set forth in the books of the Company, all in accordance with the principles of Treas. Reg (b) (2) (iv) (g), notwithstanding that the adjusted tax basis of such Book Property differs from such value; 4

6 (ii) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Gain or Net Loss pursuant to this definition shall be included in computing such Net Gain or Net Loss; (iii) any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) expenditures pursuant to Treas. Reg (b)(2)(iv)(i) and that are not otherwise taken into account in computing Net Gain or Net Loss pursuant to this definition shall be treated as items of expense in computing such Net Gain or Net Loss; (iv) in the event that the value of any Company property is adjusted pursuant to Treas. Reg (b)(2)(iv)(f), the amount of such adjustment shall be taken into account as gain or loss (as the case may be) from the disposition of such property for purposes of computing Net Gain and Net Loss; (v) to the extent (and only to the extent) that an adjustment is made to the adjusted tax basis of any Company asset pursuant to Section 732, Section 734 or Section 743 of the Code is required to be taken into account in determining Capital Accounts pursuant to Treas. Reg (b)(2)(iv)(m), the amount of such adjustment shall be treated as an item of gain or loss (as the case may be) for purposes of computing Net Gain or Net Loss; and (vi) all items of Company gross income, gain, loss, deduction or expense for such Allocation Period that are specially allocated pursuant to Section 7.1(b) shall be disregarded in computing such taxable income or loss (but the amount of such items available for allocation under Section 7.1(b) shall be determined by applying rules analogous to the modifications set forth in clauses (i) through (v) above. Officer shall mean each natural Person designated as an officer of the Company and appointed pursuant to Section 5.4. Participate means, directly or indirectly, in any capacity, to invest, engage, manage, operate, be employed by or a consultant to, control or otherwise participate, for its own account or for the account of any other Person. Percentage Interest shall mean, with respect to a Membership Interest, the percentage calculated with respect to that Membership Interest as set forth on the Members Schedule, as adjusted from time to time in accordance with this Agreement. Member. Permitted Transferee shall mean as to any Member, any Affiliate of such Person or Persons shall mean any individual, corporation, general partnership, limited partnership, limited liability company, joint venture, trust, business trust, association, unincorporated organization, country, state, city or other political subdivision, governmental agency or instrumentality, or other entity. 5

7 the Company. Portfolio Company shall mean a Person, any of whose Securities are owned by Presumed Tax Rate shall mean 39.6%. Proceeding shall have the meaning assigned to it in Section 8.2. Restricted Securities shall mean (i) the Membership Interests or any other interest in the Company or a Series held by any Member, and (ii) any securities issued with respect to, or in exchange for, the securities referred to in clause (i) above in connection with a conversion, combination, recapitalization, reclassification, reorganization, merger, consolidation or other reorganization or similar event or upon the conversion, exchange or exercise thereof. Revaluation Event shall mean (i) a Capital Contribution of more than a de minimis amount of money or property to the Company by any new or existing Member; (ii) the Distribution by the Company of more than a de minimis amount of money or property to a retiring or continuing Member, other than Distributions being made generally to Members pursuant to Section 7.4(b) or (c); (iii) the liquidation of the Company, within the meaning of Treas. Reg (b)(2)(ii)(g); or (iv) the issuance of an interest in the Company as consideration for the provision of services to or for the benefit of the Company. Securities shall have the meaning assigned to it in the Securities Act, and shall also include (to the extent not included within the meaning of Securities under the Securities Act) all capital stock, partnership interests, notes, debentures, warrants, options, rights and other forms of investment of any kind, together with any additional Securities issued with respect to an original Security by way of dividend, interest, stock split or combination, recapitalization, exchange, conversion, exercise or otherwise. time. Securities Act shall mean the Securities Act of 1933, as amended from time to Series shall mean Membership Interests issued by the Company from time to time, which Membership Interests shall be pooled and invested in one or more Portfolio Companies. Each Series shall have separate rights, powers, terms, and duties with respect to its investment portfolio and other property and obligations and the profits and losses associated with such portfolio, property and obligations. The Company will maintain separate and distinct records for each Series and shall hold and account for the assets associated with any Series separately from the assets of the Company or any other Series. "Series Member" shall have the meaning assigned to it in Section Section "Series Operating Agreement" shall have the meaning assigned to it in Section Substituted Member shall mean any Person admitted as a Member pursuant to 6

8 Tax or Taxes shall mean all federal, state, local or foreign net or gross income, gross receipts, net proceeds, real property transfer, sales, use, ad valorem, value added, franchise, unincorporated business, bank shares, withholding, payroll, employment, excise, property, alternative or add-on minimum, environmental or other taxes, assessments, duties, fees, levies or other governmental charges of any nature whatever, whether disputed or not, together with any interest, penalties, additions to tax or additional amounts with respect thereto. Tax Distribution shall have the meaning assigned to it in Section 7.4(c). Tax Matters Partner shall have the meaning assigned to it in Section 9.3. Transfer, Transferred or Transferring shall mean, with respect to any Membership Interest, any direct or indirect sale, transfer, assignment, pledge, grant of a participation in, gift, hypothecation or other disposition or encumbrance of any nature of or on such Membership Interest or any beneficial interest therein (including a transfer as a result of a merger, consolidation or sale of all or substantially all of the transferor s assets), and, in the case of an individual, whether during life or at death. Treas. Reg. or the Treasury Regulations shall mean the regulations promulgated by the United States Treasury Department under the Code, as such regulations may be amended from time to time. Valuation Expert shall mean an independent expert who is qualified by profession and/or experience to appraise and value the equity interest of corporations, partnerships, limited liability companies and other entities similar to the Company. ARTICLE 2. ORGANIZATION Section 2.1 Formation. The Company has been formed as a Delaware limited liability company by the execution and filing of a Certificate of Formation (as the same may be amended from time to time, the Certificate ) by an authorized person as required by the Act. The rights, powers, duties, obligations and liabilities of the Members (in their respective capacities as such) shall be determined pursuant to the Act and this Agreement. To the extent that the rights, powers, duties, obligations and liabilities of any Member (in its capacity as such) are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control. The rights, powers, duties, obligations and liabilities of the Series Members (in their respective capacities as such) shall be determined pursuant to the Act and the Series Operating Agreement of the Series. To the extent that the rights, powers, duties, obligations and liabilities of any Series Member (in its capacity as such) are different by reason of any provision of the Series Operating Agreement of the Series than they would be in the absence of such provision, the Series Operating Agreement of the Series shall, to the extent permitted by the Act, control. Section 2.2 Name. The name of the Company shall be NASHVILLE MAC FUND I, LLC, and all business of the Company shall be conducted in that name or in such other names that comply with applicable law as the Manager may select from time to time. 7

9 Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Manager may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Manager may designate from time to time in the manner provided by law. The principal office of the Company shall be at such place as the Manager may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain its books and records at such principal office. The Company may have such other offices as the Manager may designate from time to time. Section 2.4 Purposes. The nature of the business or purposes to be conducted or promoted by the Company and each Series is to engage in any lawful act or activity for which limited liability companies may be organized under the Act. Subject to the provisions of this Agreement, the Company and each Series shall have the power and authority to take any and all actions necessary, appropriate, advisable, desirable or incidental to or for the furtherance and accomplishment of the foregoing purposes. Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the Company or a Series to possess any purpose or power, or to do any act or thing, forbidden by law to a limited liability company organized under the laws of the State of Delaware. Section 2.5 Powers of the Company. Subject to the provisions of this Agreement, (a) the Company and each Series may, with the approval of the Manager, enter into and perform any and all documents, agreements and instruments, all without any further act, vote or approval of any Member and (b) the Manager may authorize any Person (including any Member, Manager or Officer) to enter into and perform any document on behalf of the Company or a Series. Section 2.6 Foreign Qualification. Prior to the Company s conducting business in any jurisdiction other than Delaware where qualification is necessary, the Manager shall use its reasonable efforts to cause the Company to comply (to the extent that procedures for doing so are available and such compliance is reasonably within the control of the Manager in the relevant jurisdiction) with all requirements necessary to qualify the Company as a foreign limited liability company in such jurisdiction. At the request of the Manager, each Member shall execute, acknowledge, swear to and deliver all certificates and other instruments conforming with this Agreement that are necessary or appropriate to qualify, continue or terminate the Company as a foreign limited liability company in each jurisdiction in which the Company may conduct business from time to time. Section 2.7 Term. The term of the Company commenced on the date on which the Certificate was filed with the office of the Secretary of State of Delaware. The Company shall have a perpetual existence, unless sooner dissolved as provided in Section Section 2.8 No State-Law Partnership. The Members intend that the Company shall not be a partnership (including, without limitation, a limited partnership) or joint venture, and that no Member, Manager or Officer shall be a partner or joint venturer of any other Member, Manager or Officer, for any purposes other than federal, and if applicable, state Tax purposes, 8

10 and this Agreement shall not be construed to the contrary. Notwithstanding the immediately preceding sentence, the Members intend that the Company shall be treated as a partnership for federal tax and, if applicable, state income tax and local income tax purposes, and each Member and the Company shall file all Tax returns, and otherwise take all Tax and financial reporting positions, in a manner consistent with such treatment. Notwithstanding the foregoing, the Manager shall have the authority to make any election under Treas. Reg , or any comparable provisions of state or local law, to treat the Company as an entity other than a partnership for federal tax or state or local income tax purposes. ARTICLE 3. SERIES OF MEMBERSHIP INTERESTS Section 3.1 Establishment of Series. The Manager shall have full power and authority in its sole discretion, from time to time, to establish one or more Series as contemplated by Section of the Act, the Membership Interests in each of which shall be separate and distinct from the Membership Interests in any other Series, by adopting a Series Addendum for each such Series as herein provided. The Series Addendum shall provide for a Series Operating Agreement to be entered into by the Company and the Series Members of the Series governing the assets, liabilities, capital and other relevant terms and conditions (the Series Operating Agreement ). The form of Series Addendum and Series Operating Agreement are attached hereto as Exhibit A and Exhibit B, respectively. "Series Members" own the Membership Interests of each Series. Section 3.2 Series Membership Interests (a) In connection with the establishment of a Series hereunder and subject to the foregoing, the Manager may, in its sole discretion and without obtaining the consent, vote or other approval of the Members (except as otherwise provided herein): (i) issue Membership Interests without limitation as to number to such Persons and for such amount of consideration, at such time or times and on such terms as the Manager may deem appropriate; and (ii) establish, designate and fix such classes, preferences, voting powers, rights, duties and privileges and business purpose of each Series as the Manager may from time to time determine, which preferences, voting powers, rights, duties and privileges may be senior or subordinate to (or in the case of business purpose, different from) any existing Series and may be limited to specified property or obligations of the Company or profits and losses associated with specified property or obligations of the Company. (b) Each Series Member shall be the owner of Membership Interests of a Series and, as such, shall have the right to a share of the profits and losses of the applicable Series and to receive distributions of assets of such Series, in all cases as specifically provided in this Agreement, in the relevant Series Addendum and the Series Operating Agreement. The ownership of Membership Interests shall be recorded and reflected on the books of the Company, which books shall be maintained separately for the Membership Interests of each Series. The record books of the Company as kept by the Company shall be conclusive as to the identity of the Series Members of each Series and as to the Membership Interests of each Series held from time to time by each Series Member. 9

11 ARTICLE 4. CERTAIN MATTERS INVOLVING MEMBERS AND INTERESTS Section 4.1 General (a) Names, etc. The respective names, mailing addresses, Capital Contributions, Membership Interests, and Percentage Interests of the Members shall be maintained by the Manager on a schedule of Members substantially in the form of Exhibit C (the Members Schedule ), as amended from time to time in accordance with the terms of this Agreement. A Person shall be deemed admitted as a Member of the Company (i) upon its execution of this Agreement or a Joinder Agreement (or other agreement in which such Person accepts and agrees to be bound by the terms and conditions of this Agreement) and (ii) when such Person is listed as a Member on the Members Schedule. The Manager shall amend the Members Schedule from time to time, without the consent of any other Member being required therefor, to reflect any changes in the names, Capital Contributions, Membership Interests, or Percentage Interests of the Members made in accordance with this Agreement and any changes in the mailing addresses of the Members. Any reference in this Agreement to the Members Schedule shall be deemed to be a reference to the Members Schedule, as amended and in effect from time to time. (b) Voting. Except as otherwise required by the Act or expressly required in this Agreement, the Members as such shall not be entitled to vote on any matter; provided, however, that Investment Decisions shall require the affirmative vote of Members holding at least a majority of the outstanding Membership Interests. (c) No Liability. (i) Except as required by the Act or as expressly set forth in this Agreement or the Certificate, no Member shall have any personal liability whatsoever in such Member s capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company or to any other third party, for the debts, liabilities, commitments or other obligations of the Company or for any losses of the Company. Each Member shall be liable only to make Capital Contributions to the Company as and when required by this Agreement and the other payments required to be made by such Member under the Act or this Agreement. (ii) Pursuant to Section of the Act, (A) the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series shall be enforceable against the assets of such Series only, and not against the assets of the Company generally or any other Series and (B) none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Company generally or any other Series shall be enforceable against the assets of such Series. (d) No Priority Among Series; Separate Accounting for Each Series. Each Series shall be accounted for separately in the books and records of the Company, and the Capital Accounts of each Series shall not be co-mingled. The Manager may liquidate the 10

12 investments held by any Series at any time and distribute the proceeds of such liquidation to the holders of Membership Interests of such Series, and shall have no obligation to liquidate Series in any particular order. (e) Representations and Warranties of Members. Each Member hereby represents and warrants to and acknowledges with the Company that: (i) such Member has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment in the Company and making an informed investment decision with respect thereto; (ii) such Member is able to bear the economic and financial risk of an investment in the Company for an indefinite period of time; (iii) such Member is acquiring its Membership Interests for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; (iv) the Membership Interests have not been registered under the securities laws of any jurisdiction, and cannot be Transferred unless they are subsequently registered or otherwise qualified under applicable securities laws (unless an exemption from such registration or other qualification is available) and the provisions of this Agreement governing Transfers of Membership Interests have been complied with; (v) such Member is duly authorized to execute and deliver this Agreement (or the Joinder Agreement to which it is a party) and to perform its obligations hereunder, and has duly executed and delivered this Agreement (or such Joinder Agreement, as the case may be); (vi) this Agreement (and, if applicable, such Joinder 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; (vii) the execution, delivery and performance of this Agreement (and, if applicable, Joinder Agreement) by such Member does not conflict with, result in a violation or default under or result in any Person having the right to terminate, modify or require consent under (with or without notice, lapse of time or both) any (A) Contract to which such Member is a party or by which any of such Member s properties or assets are bound or (B) any judgment, decree, order, statute, law, ordinance, regulation or rule, applicable to such Member or the properties or assets of such Member; and (viii) such Member has had a full opportunity to ask questions and receive answers concerning the Membership Interests and the Company and has had full access to such other information concerning the Company as such Member has requested. Section 4.2 Additional Members. The Company may issue additional Membership Interests solely with the approval of the Manager. In such event, the terms for the issuance and the Percentage Interests of the existing Membership Interests and the additional Membership Interests shall be determined by the Manager in his sole and absolute discretion. The Percentage Interests of the initial Members will be adjusted proportionately to reflect the Capital Contributions by the additional Members. Section 4.3 Distributions. The Members acknowledge that, pursuant to the Act, a member of a limited liability company may, under certain circumstances, be required to return amounts previously Distributed to such Member. It is the intent of the Members that no Distribution to any Member pursuant to this Agreement shall be deemed to be in violation of the Act. However, if any court of competent jurisdiction holds that, notwithstanding the provisions 11

13 of this Agreement, any Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of any other Member. Section 4.4 Certificates. The Company may in its discretion issue certificates to the Members representing the Membership Interests held by each Member. Section 4.5 Other Business Opportunities; Nondisclosure. (a) Business Opportunities. Any Member, either individually or with others, may Participate in other business ventures of any kind and no Member shall be obligated to offer to the Company or to other Members any opportunity to Participate in such other business venture, provided, however, that nothing herein shall be deemed to modify the terms of any employment, consulting or other agreement between any Member and the Company. (b) Nondisclosure of Confidential Information. Each Member agrees that, without the consent of the Manager, it will not, and will not permit any of its Affiliates to, at any time disclose any non-public information concerning the business or affairs of the Company, or any of its Affiliates, including, by way of example and without limitation, business plans, prospects, financial information, proprietary information about costs, profits, markets, information relating to the management, operation and planning of the Company and its Affiliates, and other information of a similar nature to the extent not available to the public, and plans for future development, unless required by law or the performance of such Member s duties for the Company. Section 4.6 Meetings of Members. (a) Meetings. Meetings of the Members for the purpose of taking any action required to be taken by the Members may be called by the Manager, or by Members entitled to cast not less than ten percent (10%) of the votes at the meeting. Except in special cases where other express provision is made by statute, written notice of such meetings shall be given to each Member entitled to vote not less than three (3) days nor more than sixty (60) days before the meeting. All meetings of the Members shall be held at any place within or without the State of Delaware which may be designated by the Manager or the Person(s) calling such meeting. In the absence of such designation, Members meetings shall be held at the principal executive office of the Company. (b) Quorum. The presence at any meeting in person or by proxy of Members holding a majority of Membership Interests entitled to vote at such meeting shall constitute a quorum for the transaction of business. The Members present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the votes required to constitute a quorum. (c) Required Vote. If a quorum is present, the affirmative vote of Members holding at least a majority of the Membership Interests present at the meeting shall be the act of the Members, except as to matters which the consent of a lesser or a greater proportion of the Members is otherwise required by the Act, the Certificate or this Agreement. 12

14 (d) Waiver of Notice. The actions of any meeting of Members, however called and noticed, and wherever held, shall be as valid as if taken at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, not present in person or by proxy, signs a written waiver of notice or a consent to the holding of the meeting, or an approval of the minutes thereof. The waiver of notice, consent or approval need not specify either the business to be transacted or the purpose of any regular or special meeting of the Members. All such waivers, consents or approvals shall be filed with the Company s records and made a part of the minutes of the meeting. Attendance of a Member at a meeting shall also constitute a waiver of notice of and presence at such meeting, except when the Member objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters required to be included in the notice but not so included, if such objection is expressly made at the meeting. (e) Action by Members Without a Meeting. Any action which, under any provision of this Agreement, may be taken at a meeting of the Members, may be taken without a meeting, and without notice, if a consent in writing, setting forth the action so taken, is signed by Members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Members entitled to vote thereon were present and voted. (f) Record Date. The Manager may fix a time in the future as a record date for the determination of the Members entitled to notice of and to vote at any meeting of Members or entitled to give consent to action by the Company in writing without a meeting, to receive any report, to receive any Distribution, or any allotment of rights, or to exercise rights with respect to any change, conversion or exchange of interests. If the Manager does not so fix a record date: (i) The record date for determining Members entitled to notice of or to vote at a meeting of Members shall be at the close of business on the Business Day immediately preceding the day on which notice is given or, if notice is waived, at the close of business on the Business Day immediately preceding the day on which the meeting is held; and (ii) The record date for determining Members entitled to give consent to Company action in writing without a meeting shall be the day on which the first written consent is given. (g) Members Are Not Agents. Pursuant to Section 5.1 of this Agreement, the management of the Company is vested in the Manager. The Members shall have no power to participate in the management of the Company except as expressly required by the Act, this Agreement or the Certificate. No Member, acting solely in the capacity of a Member, is an agent of the Company nor does any Member, unless expressly and duly authorized in writing to do so by the Manager, have any power or authority to bind or act on behalf of the Company in any 13

15 way, to pledge its credit, to execute any instrument on its behalf or to render it liable for any purpose. Section 4.7 Capital Contributions. Immediately upon being admitted as a Member, each Member shall make a Capital Contribution in such amount as shall be determined by the Manager in his sole and absolute discretion. Each Member may make additional Capital Contributions in such amounts as shall be determined by the Manager in his sole and absolute discretion. ARTICLE 5. MANAGEMENT OF THE COMPANY Section 5.1 Manager; Delegation of Authority and Duties. (a) Members and Manager. Subject to the terms and conditions of this Agreement, the Manager, on behalf of the Members, shall have the sole and exclusive right and authority to manage and control the business and affairs of the Company and each Series, and shall possess all rights and powers of a manager of a limited liability company as provided in the Act and otherwise by law. Except as otherwise expressly provided for herein, the Members hereby agree to the exercise by the Manager of all such powers and rights conferred on them by the Act with respect to the management and control of the Company and each Series. (b) Delegation by Manager. The Manager shall have the power and authority to delegate to one or more Persons the Manager s rights and powers to manage and control the business and affairs of the Company and each Series, including to delegate to Officers, agents and employees of the Company. The Manager may authorize any Person (including, without limitation, any Member or Officer) to enter into and perform under any document on behalf of the Company and each Series. (c) Committees Generally. The Manager may designate one or more committees, which may include Persons who are not Members. The Manager may designate one or more Persons as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. (d) Duties. This Agreement restricts and limits the fiduciary duties the Manager owes to the Company, a Series, and the Members as permitted by Section of the Act and to the greatest extent permitted by the Act and applicable law. The Manager shall not be liable to the Company, a Series, or the Members for breach of a fiduciary duty for the Manager s good faith reliance on the provisions of this Agreement. The Manager shall not be liable to the Company, a Series, or the Members for breach of contract or any duties (including fiduciary duties) except for actions or omissions that constitute a bad faith violation of any implied contractual covenant of good faith and fair dealing. The Manager shall not be bound by any duty of loyalty to the Company or a Series, may engage in business competitive with the Company or a Series, and shall have no obligation to offer any opportunities to the Company. Section 5.2 Election of Manager. 14

16 (a) Manager Election. The Manager shall be elected by the Members at an annual meeting for such purpose. The initial Manager shall be InCrowd Capital, LLC. (b) Resignation. A Manager may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Company. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. A Manager shall remain in office until his death or resignation. In the event of death or resignation of a Manager, the vacancy created thereby shall be filled in accordance with Section 5.2(a). Section 5.3 Action by Written Consent. Any action permitted or required by the Act, the Certificate or this Agreement to be taken at a meeting of the Manager may be taken without a meeting by a consent in writing, setting forth the action to be taken, if the consent is signed by the Manager. Such consent shall have the same force and effect as a vote at a meeting and may be stated as such in any document or instrument filed with the Secretary of State of Delaware, and the execution of such consent shall constitute attendance or presence in person at a meeting of the Manager. Section 5.4 Officers. (a) Designation and Appointment. The Manager may, from time to time, cause the Company to employ and retain such other Persons as may be necessary or appropriate for the conduct of the Company's business (subject to the supervision and control of the Manager), including employees, agents and other Persons who may be designated as Officers of the Company, with titles including but not limited to chief executive officer, president, one or more vice presidents, chief financial officer, treasurer, secretary and general manager, as and to the extent authorized by the Manager. Any number of offices may be held by the same person. In its discretion, the Manager may choose not to fill any office for any period, as it may deem advisable. Officers need not be residents of the State of Delaware or Members. Officers so designated shall have such authority and perform such duties as the Manager may, from time to time, delegate to them. Each Officer shall hold office until his successor shall be duly designated and qualified, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. The salaries or other compensation, if any, of the Officers of the Company shall be reasonable and fixed from time to time by the Manager. (b) Resignation/Removal. Any Officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Manager. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any Officer may be removed as such, either with or without cause, at any time by the Manager. Designation of an Officer shall not of itself create any contractual or employment rights. Nothing contained in this Section 5.4(b) shall be deemed to limit or otherwise abridge any rights or obligations to which the Company or an Officer may be subject pursuant to the terms of any employment, management or other similar agreement. 15

17 (c) Duties of Officers Generally. This Agreement restricts and limits the fiduciary duties the Officer owes to the Company and the Members as permitted by Section of the Act and to the greatest extent allowed by the Act and applicable law. The Officer shall not be liable to the Company or the Members for breach of a fiduciary duty for the Officer s good faith reliance on the provisions of this Agreement. The Officer shall not be liable to the Company or the Members for breach of contract or any duties (including fiduciary duties) except for actions or omissions that constitute a bad faith violation of any implied contractual covenant of good faith and fair dealing. Except as set forth in a separate contractual agreement, the Officer shall not be bound by any duty of loyalty to the Company and may engage in business competitive with the Company and shall have no obligation to offer any opportunities to the Company. (i) President. The President shall be the chief executive officer of the Company, shall preside at all meetings of the Members, shall have general and active management of the business of the Company and shall see that all orders and resolutions of the Manager and the Members are carried into effect. Subject to the terms of this Agreement, the President shall be empowered to execute bonds, mortgages and other Contracts on behalf of the Company, except where the signing and execution thereof shall be expressly delegated by the Manager to some other officer or agent of the Company. The President shall perform such other duties as are set forth herein, and as the Manager may from time to time prescribe. The initial President shall be Phillip Shmerling. (ii) Secretary. The Secretary shall attend all meetings of the Members, and shall be responsible for recording the minutes thereof. The Secretary shall have the responsibility of authenticating records of the Company and receiving notices required to be sent to the Secretary. The Secretary shall have charge and custody of and be responsible for all physical funds of the Company, receive and give receipts for monies due and payable to the Company from any source whatsoever, and deposit all such monies in the name of the Company in such banks, trust companies or other depositories as shall have been selected by the Manager. Subject to the terms of this Agreement, the Secretary shall be empowered to execute bonds, mortgages and other Contracts on behalf of the Company, except where the signing and execution thereof shall be expressly delegated by the Manager to some other officer or agent of the Company. The Secretary shall perform all of the duties incident to the office of Secretary and shall perform such other duties and have such other powers as are set forth herein, and as the Manager or the President may from time to time prescribe. The initial Secretary of the Company shall be Phillip Shmerling. ARTICLE 6. FINANCIAL MATTERS Section 6.1 Establishment and Determination of Capital Accounts. The Company shall establish and maintain a capital account with respect to the Company or a Series for each Member of the Company or such Series (each a Capital Account ), with the books of the Company initially reflecting an amount equal to such Member s initial Capital Contribution as his, her or its Capital Account balance. Each Member s Capital Account shall be: 16

18 (a) increased by any additional Capital Contributions made by such Member pursuant to the terms of this Agreement and such Member s share of Net Gain and other items of income and gain allocated to such Member pursuant to Article 7; (b) decreased by such Member s share of Net Loss and other items of loss, deduction and expense allocated to such Member pursuant to Article 7 and the aggregate amount of all Distributions made to such Member; and (c) maintained in all respects in accordance with section 704(b) of the Code and the Treasury Regulations issued thereunder. Any references in this Agreement to the Capital Account of a Member shall be deemed to refer to such Capital Account as the same may be increased or decreased from time to time as set forth above. Section 6.2 Negative Capital Accounts. Except as may be required by the Act or any other applicable law, no Member shall be required to pay to the Company or any other Member any deficit or negative balance which may exist from time to time in such Member s Capital Account. Section 6.3 Company Capital. No Member shall be paid interest on any Capital Contribution to the Company or on such Member s Capital Account, and no Member shall have any right (a) to demand the return of such Member s Capital Contribution or any other distribution from the Company (whether upon resignation, withdrawal or otherwise), except upon dissolution of the Company pursuant to Article 11 hereof, or (b) to cause a partition of the Company s assets. Section 6.4 Capital Account Adjustment. The Tax Matters Partner may adjust the book value of all assets of the Company so as to equal their respective fair market value, as determined by the Tax Matters Partner in its reasonable discretion, upon the occurrence of any Revaluation Event. The Capital Accounts shall be increased or decreased (as appropriate) to reflect the revaluation of the Company s assets in accordance with Treas. Reg (b)(2)(iv)(f). Section 6.5 Change in Capital Accounts Maintenance. The maintenance of Capital Accounts pursuant to Section 6.1 above is intended to comply with the requirements of Code Section 704 and the Treasury Regulations promulgated thereunder. The provisions of this Agreement relating to the maintenance of Capital Accounts shall be interpreted and applied consistently therewith. If, in the reasonable opinion of the Tax Matters Partner, the manner in which the Capital Accounts are to be maintained pursuant to Section 6.1 above should be modified in order to comply with the requirements of Code Section 704 and the Treasury Regulations promulgated thereunder, then, notwithstanding anything to the contrary in such Section 6.1, the Tax Matters Partner may, in its reasonable discretion, change the manner in which the Capital Accounts are maintained, and the Tax Matters Partner shall have the right, upon delivery of written notice to each other Member, to amend this Agreement to reflect any such change in the manner in which the Capital Accounts are maintained; provided, however, 17

19 that any such change in the manner of maintaining the Capital Accounts shall not alter materially the economic arrangement among the Members. Section 6.6 Accounting for Distribution in Kind. For purposes of maintaining Capital Accounts when Company property is distributed in kind: (a) the Company shall treat such property as if it had been sold for its fair market value on the date of distribution; (b) any difference between such fair market value and the Company s prior book value in such property for Capital Account purposes shall constitute Net Gain or Net Loss, as the case may be, for the Allocation Period ending on and including the date of such distribution and shall be allocated to the Capital Accounts of the Members pursuant to Article 7; and (c) each Member s Capital Account shall be reduced by the fair market value of the property distributed to such Member (net of any liabilities secured by such distributed property that such Member is considered to assume or take subject to under Section 752 of the Code). ARTICLE 7. ALLOCATIONS; DISTRIBUTIONS Section 7.1 Allocations. (a)(i) Except as otherwise provided in this Agreement, Net Gain of the Company (and items thereof) shall be allocated: (A) first, to the extent that an amount of Net Loss has been allocated under Section 7.1(a)(ii) for a prior Allocation Period and that allocation has not been offset by a subsequent allocation of Net Gain pursuant to this Section 7.1(a)(i)(A), to the Members in proportion to, and in an amount equal to, the unrecovered amount of Net Loss (and, if there is an unrecovered Net Loss for more than one Allocation Period or that has been allocated pursuant to Section 7.1(a)(ii)(C) or Section 7.1(a)(ii)(B), then this Section 7.1(a)(i)(A) shall be applied first to the Net Loss arising in the most recent Allocation Period until that Net Loss is recovered fully, and thereafter successively to each preceding Allocation Period for which there is an unrecovered Net Loss, ending with the first such Allocation Period, in each case offsetting Net Losses allocated pursuant to Section 7.1(a)(ii)(C) before those allocated pursuant to Section 7.1(a)(ii)(B) and pursuant to Section 7.1(a)(ii)(B) before those allocated pursuant to Section 7.1(a)(ii)(A); and (B) second, to the Members in proportion to their respective Percentage Interests at the beginning of such Allocation Period. For purposes of this Section 7.1 and for other relevant purposes hereunder, an Allocation Period shall be deemed to end either at or immediately preceding, as may be appropriate, the time of any issuance or redemption of Membership Interests or other event that results in a change in the Percentage Interests (and a new Allocation Period shall commence immediately thereafter). (ii) Except as otherwise provided in this Agreement, Net Loss of the Company (and items thereof) shall be allocated: 18

20 (A) first, to the Members in proportion to the amounts of Net Gain previously allocated pursuant to Section 7.1(a)(i)(B), until such amounts have been offset in full; (B) second, to the Members in proportion to the relative remaining Capital Accounts of such Members, until such amounts have been reduced to zero; and (C) third, to the Members in proportion to their respective Percentage Interests at the beginning of such Allocation Period. (b) Prior to the making of any allocation under Section 7.1(a), the following allocations shall be made in the following order: (i) Any non-recourse deduction (within the meaning of Treasury Regulation Section (b)(1)) for an Allocation Period of the Company shall be allocated to the Members in accordance with their respective Capital Accounts at the beginning of such period. If there is a net decrease in the Company s minimum gain (as defined in Treasury Regulations Section (d)) during an Allocation Period of the Company, then items of income and gain for such Allocation Period (and, if necessary, for subsequent periods) shall be allocated to the Members in the manner and to the extent required by Treasury Regulations Section (f). This clause is intended to constitute a minimum gain chargeback as provided by Treasury Regulations Section (f), and this clause shall be construed accordingly. (ii) Any partner nonrecourse deduction (within the meaning of Treasury Regulations Section (i)(2)) shall be allocated in the manner specified in Treasury Regulations Section (i)(1), and, subject to the exceptions set forth in Treasury Regulations Section (i)(4), if there is a net decrease in partner nonrecourse debt minimum gain (within the meaning of Treasury Regulations Sections (i)(2) and (i)(3)) during an Allocation Period attributable to a partner nonrecourse debt (within the meaning of Treasury Regulations Section (b)(4)), then each Member with a share of partner nonrecourse debt minimum gain attributable to such partner nonrecourse debt, determined in accordance with Treasury Regulations Section (i)(5), shall be specially allocated items of income and gain for such Allocation Period (and, if necessary, for subsequent periods) in an amount equal to such Member s share of the net decrease in partner nonrecourse debt minimum gain for such period attributable to such partner nonrecourse debt (which share of such net decrease shall be determined under Treasury Regulations Sections (i)(4) and (g)(2)). This clause is intended to constitute a chargeback of partner nonrecourse debt minimum gain as provided by Treasury Regulations Section (i)(4), and this clause shall be construed accordingly. (iii) In the event that a Member unexpectedly receives any adjustment, allocation or distribution described in Treasury Regulations Sections (b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain (consisting of a pro rata portion of each item of Company income, including gross income, and gain) shall be 19