exv10w1






EXHIBIT 10.1




PCTEL SECURE LLC




a Delaware Limited Liability Company




AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT



Dated as of January 5, 2011


THE MEMBERSHIP INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER
APPLICABLE FEDERAL OR STATE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR
OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR
EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFER SET FORTH HEREIN.






 




			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
Redacted portions are indicated with “[****].”




 









 










AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

PCTEL SECURE LLC

A Delaware Limited Liability Company




          THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of
PCTEL SECURE LLC (the “Company”), dated as of January 5, 2011 (the “Effective
Date”) is adopted, executed and entered into by and between PCTEL, Inc., a Delaware corporation
(“PCTEL”), and Eclipse Design Technologies, Inc., an Illinois corporation
(“Eclipse”). PCTEL and Eclipse are referred to in this Agreement as the “Members,”
and each individually, a “Member”). Anthony Vitucci is also a party to this Agreement
solely for the purposes of agreeing to the Restrictive Covenants set forth in Section 7.2.
This Agreement amends and restates in its entirety, and replaces, the Company’s Limited Liability
Company Agreement, dated as of October 20, 2010, entered into by PCTEL as the Company’s sole member
(the “Old Agreement”).




R E C I T A L S:



          A. The Members desire to form a joint venture in order to develop, manufacture, promote, sell
and otherwise exploit two primary products: (i) a secure smartphone on an Android®
platform combining the security of a military-grade communications device with the features and
functions of a commercial smartphone, and (ii) a card to be inserted in a smartphone to convert it
to a secure smartphone (together, the “Products”).




          B. On October 20, 2010 (the “Formation Date”), PCTEL formed the Company pursuant to
the Delaware Limited Liability Company Act, 6 Del. C. §18 101 et seq. (as amended from time to time
and including any successor statute of similar import, the “Act”) by the filing of the
Certificate with the Secretary of State of the State of Delaware in accordance with the Act.




          NOW, THEREFORE, in consideration of the mutual covenants and agreements herein made and
intending to be legally bound, the Members hereby agree as follows:




ARTICLE I

DEFINITIONS




     Section 1.1
Definitions



          As used in this Agreement, the following terms have the following meanings:




          “Act” has the meaning set forth in the recitals above.




          “Adjusted Capital Account Balance” shall mean, with respect to any Member, the amount
obtained by increasing the balance of such Member’s Capital Account by such Member’s





 



			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”



 









 







allocable share(s) of any Company Minimum Gain and Member Minimum Gain, both measured as of
the end of the relevant Taxable Year.




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





     (a) the deficit shall be decreased by the amounts which the Member is obligated to
restore or is deemed obligated to restore pursuant to Regulation §§1.704-2(g)(1) and (i)(5);
and




     (b) the deficit shall be increased by the items described in Regulation
§§1.704-1(b)(2)(ii)(d)(4), (5) and (6).


The foregoing definition of Adjusted Capital Account Deficit is intended to comply with Regulations
§1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.




          “Affiliate” of any particular Person means any other Person that, directly or
indirectly, (i) owns or controls fifty percent (50%) or more of the outstanding voting or equity
interests of such Person or (ii) controls, is controlled by, or is under common control with, such
Person, where “control” means the possession, directly or indirectly, of the power to direct the
management and policies of a Person whether through the ownership of voting securities, by contract
or otherwise.




          “Agreement” has the meaning set forth in the introductory paragraph.




          “Annual Operating Budget” has the meaning set forth in Section 6.7.




          “Appointing Arbitrator” has the meaning set forth in Section 11.1(A).




          “Approved Sale” has the meaning set forth in Section 9.6(B).




          “Arbitrable Dispute” means any dispute, controversy, claim, or disagreements that may
arise between the Members or between any Member and the Company, in each case, in connection with
this Agreement or the transactions contemplated hereby; provided, however, in no event shall the
meaning of “Arbitrable Dispute” include (i) a Member’s election to give or withhold its consent to
any matter for which such Member’s consent is required or (ii) a Member’s decision to direct its
designee(s) to the Board to give or withhold his/her consent to any matter for which the approval
of the Board is required).




          “Arbitrator” has the meaning set forth in Section 11.1(A).




          “Board” has the meaning set forth in Section 6.1(A).







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Book Value” means, in respect of any property owned by the Company, the Company’s
adjusted basis for federal income tax purposes, adjusted from time to time to reflect the
adjustments required or permitted by Treasury Regulation Section 1.704-1(b)(2)(iv)(d)-(g) (provided
that, in the case of permitted adjustments, the Company shall only make such adjustments that it
reasonably determines are necessary or appropriate to reflect the relative economic interests of
the Members of the Company), provided that the initial Book Value of any asset contributed
to the Company shall be equal to the fair market value of the contributed asset on the date of
contribution.




          “Business Day” means any day, other than Saturday, Sunday or a day banks are
authorized or required to be closed in Chicago, Illinois.




          “Capital Account” has the meaning set forth in Section 4.1.




          “Capital Contribution” means the total amount of cash and the fair market value of any
other assets or services actually contributed (or deemed contributed under Regulation
§1.704-1(b)(2)(iv)(d)) to the Company by a Member, net of liabilities assumed or to which the
assets are subject.




          “Cause” means (i) the commission of a felony or a crime involving moral turpitude or
the commission of any other act or omission involving dishonesty or fraud in respect of the Company
or any of its customers or suppliers or in respect of its Members, (ii) conduct tending to bring
the Company or its Members into public disgrace or disrepute, (iii) material failure to comply with
the terms of this Agreement or to perform duties of the office held by such Person as reasonably
directed in writing by the Board, which failure is not cured (if curable) within five (5) days
after such Person receives written notice thereof from the Board or, if not reasonably curable
within such period, then within forty-five (45) days so long as such Person is diligently
attempting to cure and so long as such failure does not constitute an act or conduct falling within
clause (i) or (ii) above, or (iv) negligence or willful misconduct in respect of the Company.




          “Certificate” means the Certificate of Formation of the Company as filed with the
Secretary of State of the State of Delaware.




          “Claim” has the meaning set forth in Section 7.4.




          “Code” means the Internal Revenue Code of 1986 and any successor statute, as amended
from time to time(or any corresponding provision of succeeding law).




          “Company” has the meaning set forth in the introductory paragraph.




          “Company Minimum Gain” has the meaning set forth for “partnership minimum gain” in
Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Confidential Information” means information that is not generally known to the public
and that is used, developed or obtained by the Company or any of its Affiliates in connection with
their respective businesses, including but not limited to (i) financial information and
projections, (ii) business strategies, (iii) products or services, (iv) fees, costs and pricing
structures, (v) designs, (vi) analysis, (vii) drawings, photographs and reports, (viii) computer
software, including operating systems, applications and program listings, (ix) flow charts, manuals
and documentation, (x) databases, (xi) accounting and business methods, (xii) inventions, devices,
new developments, methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (xiii) customers and clients and customer or client lists, (xiv) copyrightable
works, (xv) all technology and trade secrets, and (xvi) all similar and related information in
whatever form.




          “Contribution Agreement” means that certain Contribution Agreement dated January 5,
2011 by and among the Members effectuating, among other things, the Capital Contributions of the
Members.




          “Distribution” means a distribution made by the Company to a Member, whether in cash,
property or securities and whether by liquidating distribution or otherwise (including, without
limitation, distributions of Net Operating Cash Flow and Net Capital Proceeds); provided,
however, none of the following shall be a Distribution: (i) any redemption or repurchase by
the Company or any Member of any Membership Interests, (ii) any recapitalization or exchange of
securities of the Company, (iii) any subdivision or any combination of any outstanding Membership
Interests, or (iv) any reasonable fees or remuneration paid to any Member in such Member’s capacity
as an Officer, consultant or other provider of services to the Company.




          “Drag-Along Notice” has the meaning set forth in Section 9.6(B)(i).




          “Eclipse” has the meaning set forth in the introductory paragraph.




          “Eclipse Exit Period” has the meaning set forth in Section 9.5.




          “Eclipse Services Agreement” means (i) that certain Services Agreement dated as of
January 5, 2011 by and between Eclipse, as service provider, and the Company, as service recipient,
and (ii) the ancillary agreements and instruments contemplated thereby, all as amended or restated
from time to time.




          “Effective Date” has the meaning set forth in the introductory paragraph.




          “Enterprise Value” means the enterprise value of the Company as of any date of
determination calculated pursuant to the First Call Matrix (with respect to the First Call) or the
Second/Third Call Matrix (with respect to the Second Call or the Third Call); provided, however,
that solely for the purposes of calculating the Put Price, the Enterprise Value shall be deemed to
be $4,900,000.







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Enterprise Value Notice” has the meaning set forth in Section 9.5.




          “Eric Üner January 2011 Bonus” has the meaning set forth in Section 5.8(B).




          “ERISA” has the meaning set forth in Section 3.1(C)(xii).




          “Failed Venture” means the occurrence of the following events: (a) PCTEL’s election
not to exercise, or failure to exercise, the Second Call within the Second Call Period, and
(b) the Enterprise Value of the Company as of the end of the Second Call Period being less than or
equal to $4,900,000.




          “Failed Venture Election” has the meaning set forth in Section 10.1(D).




          “First Call” means the purchase right exercisable by PCTEL pursuant to Section
9.2(A).




          “First Call Closing Date” has the meaning set forth in Section 9.2(A).




          “First Call Matrix” means the Enterprise Value calculation matrix appearing on
Exhibit B and pertaining to the First Call.




          “First Call Period” means the period commencing on January 1, 2012 through and
including March 31, 2012.




          “First Call Price” shall mean the price for Eclipse’s Membership Interests being
purchased in the First Call obtained by multiplying the Company’s Enterprise Value as set forth in
the First Call Matrix by the Percentage Interest represented by such Membership Interests.




          “Fiscal Year” means the twelve (12)-month period beginning on January 1st of a given
year and ending on December 31st of such year unless otherwise required by the Code. Each Fiscal
Year shall commence on the day immediately following the last day of the immediately preceding
Fiscal Year; provided, however, that the first Fiscal Year shall be deemed to have commenced on the
Formation Date.




          “Flow-Through Entity” has the meaning set forth in Section 3.1(C)(ix).




          “Formation Date” means the date set forth in the recitals above.




          “GAAP” has the meaning set forth in Section 6.7.




          “Governmental Body” means the federal government or any state, local or foreign
government or other political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of, or pertaining to, such a government.







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Indebtedness” means all indebtedness of a Person for borrowed money, whether secured
or unsecured, including, without limitation, (a) indebtedness of such a Person for the deferred
purchase price of property or services represented by a note, earnout or contingent purchase
payment, (b) all indebtedness of such Person created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person, (c) all indebtedness of
such Person secured by a mortgage or other lien to secure all or part of the purchase price of the
property subject to such lien or mortgage, (d) all obligations under leases which are required to
be recorded as capital leases in respect of which such Person is liable as the lessee, (e) any
liability of such Person in respect of banker’s acceptances or letters of credit, (f) any
obligations under any interest rate swap agreements, (g) all interest, fees and other expenses owed
with respect to the indebtedness referred to above, (h) notes issued by a Person to reimburse any
landlord for or with respect to improvements to premises leased by such Person and (i) all
indebtedness referred to above which is directly or indirectly guaranteed by such Person.




          “Indemnifying Member” has the meaning set forth in Section 12.3.




          “Intellectual Property License Agreement” has the meaning set forth in Section
10.2(B)(iv).




          “Investment” as applied to any Person means (i) any direct or indirect purchase or
other acquisition by such Person of any notes, obligations, instruments, stock, securities or
ownership interest (including partnership interests, limited liability company interests and joint
venture interests) of any other Person and (ii) any capital contribution by such Person to any
other Person.




          “Investment Company Act” means the Investment Company Act of 1940, 15 U.S.C. §§80a-1
through 80a-52, as amended from time to time.




          “Marketing Period” has the meaning set forth in Section 9.5.




          “Material Contract” means any contract, agreement or understanding which involves, (a)
over the term of such contract, agreement or understanding, the expenditure of more than $10,000 or
(b) any federal, state, local, municipal or foreign governmental agency or any instrumentality
thereof as a party thereto.




          “Member” means each Person identified on Exhibit A attached hereto as of the
date hereof that has executed this Agreement, in each case so long as such Person is shown on the
Company’s books and records. The Members shall constitute the “members” (as that term is defined in
the Act) of the Company. Except as expressly provided herein, the Members shall constitute a single
class or group of members of the Company for all purposes of the Act and this Agreement.







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Member Minimum Gain” has the meaning set forth in Treasury Regulation Sections
1.704-2(i)(2) and 1.704-2(i)(3).




          “Member Nonrecourse Deductions” has the meaning set forth in Treasury Regulation
Sections 1.704-2(i).




          “Membership Interest” means a Member’s interest in the Company (including, without
limitation, capital and residual profits of the Company), and the right, if any, to participate in
the management of the business and affairs of the Company, including the right, if any, to vote on,
consent to, or otherwise participate in, any decision or action of or by the Members and the right
to receive information concerning the business and affairs of the Company, in each case to the
extent expressly provided in this Agreement or otherwise required by the Act.




          “Net Capital Proceeds” means the gross proceeds, if any, realized by the Company from
the sale, financing, refinancing or other disposition of the assets of the Company, net of the
actual costs and expenses incurred by the Company in connection with the transaction giving rise to
such proceeds, including repayment of any Indebtedness of the Company. Such amounts shall include
amounts received incident to the liquidation of the Company.




          “Net Indebtedness” means all Indebtedness of the Company (including without limitation
amounts borrowed pursuant to the PCTEL Line of Credit) net of Unrestricted Cash.




          “Net Operating Cash Flow” means, for any period (i) all cash revenues, interest and
other payments received by the Company during such period (excluding Capital Contributions and Net
Capital Proceeds) less (ii) all debt service payments and cash expenses paid by the Company during
such period, including all additions to reserves contemplated in the approved Annual Operating
Budget.




          “Net Proceeds” means, all cash proceeds and the fair market value (as determined by
PCTEL in good faith) of all non-cash proceeds of a Sale of the Company, calculated on a cash-free,
debt-free basis, net of all transaction expenses, including without limitation all legal,
investment banking, brokerage, accounting and related expenses.




          “OFAC” has the meaning set forth in Section 3.1(C)(xiii).




          “Offer Period” has the meaning set forth in Section 9.5.




          “Offer Price” has the meaning set forth in Section 9.5.




          “Officer” means each Person designated as an officer of the Company pursuant to
ARTICLE VI for so long as such Person remains an officer pursuant to the provisions of
ARTICLE VI.




          “Old Agreement” has the meaning set forth in the introductory paragraph.







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “PCTEL” has the meaning set forth in the introductory paragraph.




          “PCTEL Line of Credit” means a revolving credit facility in the amount of $4,000,000
provided to the Company by PCTEL pursuant to the PCTEL Line of Credit Documents.




          “PCTEL Line of Credit Documents” means (i) that certain Line of Credit Agreement by
and between PCTEL, as lender, and the Company, as borrower, (ii) that certain Line of Credit Note
made by the Company and payable to the order of PCTEL, with a maximum principal balance of
$4,000,000 and (iii) the ancillary agreements and instruments contemplated thereby, all as amended
or restated from time to time.




          “PCTEL Services Agreement” means (i) that certain Services Agreement dated as of
January 5, 2011 by and between PCTEL, as service provider, and the Company, as service recipient,
and (ii) the ancillary agreements and instruments contemplated thereby, all as amended or restated
from time to time.




          “Percentage Interest” means, with respect to each Member, the percentage indicated
opposite such Member’s name on Exhibit A, as amended from time to time.




          “Person” means a natural person, partnership (whether general or limited), limited
liability company, trust, estate, association, corporation, custodian, nominee or any other
individual or entity in its own or any representative capacity.




          “Plan Asset Regulations” has the meaning set forth in Section 3.1(C)(xii).




          “Prime Rate” means the most recently announced prime rate in the Money Rates section
of the Wall Street Journal as in effect from time to time (or, if more than one rate is published,
the highest of such rates).




          “Proceeding” has the meaning set forth in Section 7.4.




          “Products” has the meaning set forth in the recitals above.




          “Profits” and “Losses” means, for each Taxable Year, an amount equal to the
Company’s taxable income or loss for such Taxable Year, 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:




               (i) any item of the Company that is exempt from federal income tax shall be added to such
taxable income or loss;



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





               (ii) 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 the regulations under Code Section 704(b) shall be
subtracted from such taxable income or loss;



               (iii) if the Book Value of any property owned by the Company is adjusted pursuant to Treasury
Regulation Section 1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such property;



               (iv) gain or loss resulting from any disposition of property owned by the Company shall be
computed by reference to the Book Value of the property disposed of, notwithstanding that the
adjusted tax basis of such property differs from its Book Value;



               (v) items of depreciation, amortization and other cost recovery deductions in respect of
property owned by the Company having a Book Value that differs from its adjusted basis for tax
purposes shall be computed by reference to the property’s Book Value in accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv)(g);



               (vi) to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to
Code Sections 732(d), 734(b) or 743(b) is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such
adjustment to the 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) from the disposition of
the asset and shall be taken into account for purposes of computing Profits or Losses; and



               (vii) notwithstanding any other provision of this definition, any items which are allocated
pursuant to Section 5.6 or Section 5.8 shall not be taken into account in computing
Profits or Losses.



          “Put” means the sale right exercisable by Eclipse pursuant to Section 9.2(B).




          “Put Closing Date” has the meaning set forth in Section 9.2(B).




          “Put Notice” has the meaning set forth in Section 9.2(B).




          “Put Period” means the period commencing on April 1, 2012 through and including April
10, 2012.




          “Put Price” shall mean the price for Eclipse’s Membership Interests being sold
pursuant to the Put obtained by multiplying the Company’s Enterprise Value by the Percentage
Interest represented by such Membership Interests.




          “Qualifying Bank” means a bank or trust company that is (i) organized as a banking
association or corporation under the laws of the United States or any State thereof, or in the






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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







District of Columbia, (ii) subject to supervision or examination by federal, state or District
of Columbia banking authorities, (iii) with capital and surplus of not less than $250,000,000, and
(iv) the debt securities of which are rated at least “A” by Moody’s Investors Services, Inc. or
“A2” by Standard & Poor’s Ratings Group.




          “Qualifying Sale of the Company” means any Sale of the Company in which the Net
Proceeds received by PCTEL are greater than or equal to $40,000,000.




          “Restricted Member Affiliates” means Anthony Vitucci.




          “Restricted Period” means the period commencing as of the date of this Agreement and
ending on the earlier of (a) the dissolution of the Company in accordance with this Agreement and
(b) December 31, 2015.




          “Restrictive Covenants” has the meaning set forth in Section 7.2.




          “Sale of the Company” means any merger or consolidation of the Company with an
unaffiliated third party; any sale, lease, transfer or other conveyance of all or substantially all
of the Company’s assets to an unaffiliated third party; or any sale, lease, transfer or other
conveyance of any item of intellectual property, including any brand or trademark, which generated
seventy-five percent (75%) or more of the Company’s revenues for its then-current fiscal year or
for the fiscal year immediately prior thereto, with an unaffiliated third party; provided, however,
that any of the foregoing events, if effected in connection with a merger or consolidation of PCTEL
with an unaffiliated third party or the sale, lease, transfer or other conveyance of all or
substantially all of PCTEL’s assets to an unaffiliated third party shall not constitute a “Sale of
the Company.”




          “Second Call” means the purchase right exercisable by PCTEL pursuant to Section
9.3.




          “Second Call Closing Date” has the meaning set forth in Section 9.3.




          “Second Call Period” means the period commencing on October 1, 2013 through and
including December 31, 2013.




          “Second Call Price” shall mean the price for Eclipse’s Membership Interests obtained
by multiplying the Company’s Enterprise Value as set forth in the Second/Third Call Matrix by the
Percentage Interest represented by such Membership Interests.




          “Second/Third Call Matrix” means the Enterprise Value calculation matrix appearing on
Exhibit B and pertaining to the Second Call and the Third Call.




          “Securities Act” means the Securities Act of 1933, as amended from time to time.







10



 



			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Short-Term Investments” means U.S. Dollar-denominated, readily available instruments
consisting of one or more of:




               (i) interest bearing transaction accounts in a Qualifying Bank (including, without limitation,
money market accounts);



               (ii) time deposits, or certificates of deposit, in a Qualifying Bank, in each case having a
maturity of one year or less;



               (iii) securities that, at the date of investment, are direct obligations of, or obligations
fully guaranteed or insured by, the United States or any agency or instrumentality of the United
States having a maturity of not more than one year from the date of purchase;



               (iv) such other short-term, liquid investments having a maturity of three (3) months or less
rated at least “A” by Moody’s Investor’s Services, Inc. or “A2” by Standard & Poor’s Ratings Group;
and



               (v) money market mutual funds with assets of at least $500,000,000, substantially all of which
assets consist of obligations of the type included in clauses (i) through (iv) above.



          “Tag-Along Notice” has the meaning set forth in Section 9.6(B)(ii).




          “Taxable Year” means the Company’s taxable year ending on the last day of each
calendar year (or part thereof, in the case of the Company’s last taxable year), or such other year
as is (i) required by Section 706 of the Code or (ii) determined by the Board.




          “Tax Distribution” has the meaning set forth in Section 5.4.




          “Tax Matters Partner” has the meaning set forth in Section 8.2.




          “Third Call” means the purchase right exercisable by PCTEL pursuant to Section
9.6(A).




          “Third Call Closing Date” has the meaning set forth in Section 9.6(A).




          “Third Call Period” means July 1, 2014 and thereafter.




          “Third Call Price” shall be equal to the Second Call Price.




          “Third Party Sale Notice” has the meaning set forth in Section 9.5.




          “Third Party Purchaser” has the meaning set forth in Section 9.5.







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








          “Transfer” means, with respect to each Member, any sale, assignment, conveyance,
transfer, exchange, distribution, gift, mortgage, pledge, hypothecation or other encumbrance or
disposal of all or any portion of such Member’s Membership Interest, whether voluntarily, by
operation of law, or otherwise.




          “Transferee” has the meaning set forth in Section 9.1.




          “Transferring Member” has the meaning set forth in Section 9.7(A)(i).




          “Treasury Regulations” means the Federal income tax regulations, including any
temporary or proposed regulations, promulgated under the Code, and any successor regulations
thereto.




          “Unrestricted Cash” means all unrestricted cash and cash equivalents of the Company.




          “U.S.” means all of the States of the United States of America and the District of
Columbia.




     Section 1.2 Incorporation of Recitals.



          The above-stated recitals are hereby incorporated herein and made a part of this Agreement.




     Section 1.3 Construction



          Whenever the context requires, the gender of all words used in this Agreement includes the
masculine, feminine and neuter and the singular number includes the plural number and vice versa.
All references to Articles and Sections refer to articles and sections of this Agreement, and all
references to Exhibits are to the Exhibits attached hereto, each of which is made a part hereof for
all purposes.




     Section 1.4 Including



          Reference in this Agreement to “including,” “includes” and “include” shall be deemed to be
followed by “without limitation.”




ARTICLE II

ORGANIZATION




     Section 2.1 Formation



          The Company has been organized as a Delaware limited liability company on the Formation Date
by the execution and filing of the Certificate under and pursuant to the Act and shall be continued
in accordance with the terms of this Agreement. The rights, powers, duties, obligations and
liabilities of the Members shall be determined pursuant to the Act and this






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Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







Agreement. To the extent that the rights, powers, duties, obligations and liabilities of the
Members are different by 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.




     Section 2.2 Company Name



          The name of the Company shall be “PCTEL Secure LLC” and all Company business shall be
conducted in that name or such other names that comply with applicable law as the Board may select
from time to time. Notification of any change in the name of the Company shall be given to all
Members. The Company’s business may be conducted under its name and/or any other name or names
deemed advisable by the Board.




     Section 2.3 The Certificate, Etc.



          The Certificate was filed with the Secretary of State of the State of Delaware on the
Formation Date. The Members hereby agree to execute, file and record all such other certificates
and documents, including amendments to the Certificate and to do such other acts as may be
appropriate to comply with all requirements for the formation, continuation and operation of a
limited liability company, the ownership of property, and the conduct of business under the laws of
the State of Delaware and any other jurisdiction in which the Company may own property or conduct
business.




     Section 2.4 Term of the Company



          The term of the Company commenced on the Formation Date and shall continue in existence until
dissolution of the Company pursuant to Section 10.1.




     Section 2.5 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 Board 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 Board 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 Board may designate from time to time, which need not be
in the State of Delaware, and the Company shall maintain records there. The Company may have such
other offices as the Board may designate from time to time.




     Section 2.6 Purposes



          The nature of the business or purposes to be conducted or promoted by the Company is to
acquire, develop, own, manage, exploit, license, sublicense and dispose of the Products. The
Company may engage in any and all activities necessary, desirable or incidental to the






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Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







accomplishment of the foregoing. Notwithstanding anything herein to the contrary, nothing set
forth herein shall be construed as authorizing the Company to possess any purpose or power, or to
do any act or thing, forbidden by law to a limited liability company organized under the laws of
the State of Delaware.




     Section 2.7 Powers of the Company



          Subject to the provisions of this Agreement, the Company shall have the power and authority to
take any and all actions necessary or appropriate for the accomplishment of the purposes of the
Company set forth in Section 2.6, including, without limitation, the power, either directly
or through one or more subsidiaries or Affiliates:




               (A) to conduct its business, carry on its operations and have and exercise the powers granted
to a limited liability company by the Act in any state or district of the United States;



               (B) to acquire by purchase, lease, contribution of property or otherwise, rehabilitate, own,
hold, operate, maintain, finance, refinance, improve, lease, sell, convey, mortgage, transfer or
dispose of any real or personal property that may be necessary or appropriate for the
accomplishment of the purposes of the Company;



               (C) to enter into, perform and carry out contracts of any kind, including contracts with any
Member or any Affiliate thereof, or any agent of the Company necessary or appropriate for the
accomplishment of the purposes of the Company, including agreements for the management of the
affairs of the Company;



               (D) to purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use,
employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and
with, shares or other interests in or obligations of domestic corporations, associations, general
or limited partnerships (including the power to be admitted as a partner thereof and to exercise
the rights and perform the duties created thereby), trusts, limited liability companies (including
the power to be admitted as a member or appointed as a manager thereof and to exercise the rights
and to perform the duties created thereby) or individuals or direct or indirect obligations of the
United States or any state, governmental district or municipality or of any instrumentality of any
of them;



               (E) to lend money for any proper purpose, to invest and reinvest its funds and to take and
hold real and personal property for the payment of funds so loaned or invested;



               (F) to sue and be sued, complain and defend, and participate in administrative or other
proceedings, in its name;



               (G) to appoint agents of the Company and define their duties and fix their compensation;



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Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





               (H) to indemnify any Person in accordance with the Act (subject to Section 7.4) and to
obtain any and all types of insurance;



               (I) to cease its activities and cancel its Certificate;



               (J) to negotiate, enter into, renegotiate, extend, renew, terminate, modify, amend, waive,
execute, acknowledge or take any other action in respect of any lease, contract or security
agreement in respect of any assets of the Company;



               (K) to borrow money and issue evidences of indebtedness and guaranty indebtedness and to
secure the same by a mortgage, pledge or other lien on the assets of the Company;



               (L) to pay, collect, compromise, litigate, arbitrate or otherwise adjust or settle any and all
other claims or demands of or against the Company or to hold such proceeds against the payment of
contingent liabilities; and



               (M) to make, execute, acknowledge and file any and all documents or instruments necessary or
appropriate for the accomplishment of the purposes of the Company.



     Section 2.8 Board Authority



          Subject to the provisions of this Agreement, and in furtherance of the purposes of the Company
as set forth in Section 2.6, (i) the Company may, upon the direction of the Board, enter
into and perform any and all documents, agreements and instruments contemplated thereby, all
without any further act, vote or approval of any Member, and (ii) the Board may authorize any
Person (including any Member or Officer) to enter into and perform any and all documents,
agreements and instruments on behalf of the Company. Each Person so authorized by the Board,
whether pursuant to this Agreement or subsequent action of the Board, shall be deemed a “manager”
for purposes of the Act.




     Section 2.9 Foreign Qualification




          Prior to the Company’s conducting business in any jurisdiction other than Delaware, the Board
shall cause the Company to comply with all requirements necessary to qualify the Company as a
foreign limited liability company in that jurisdiction. At the request of the Board or any Officer,
each Member shall execute, acknowledge, swear to and deliver any or all certificates and other
instruments conforming with this Agreement that are necessary or appropriate to qualify, continue
and terminate the Company as a foreign limited liability company in all such jurisdictions in which
the Company may conduct business.




     Section 2.10 No State-Law Partnership



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accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          The Members intend that the Company shall not be a partnership (including a general or limited
partnership) or a contractual joint venture, and that no Member shall be a partner or a contractual
joint venturer of any other Member by virtue of this Agreement, for any purposes other than federal
and, if applicable, state tax purposes, and neither this Agreement nor any other document entered
into by the Company or any Member shall be construed to suggest otherwise. The Members intend that
the Company shall be treated as a partnership for federal and, if applicable, state income tax
purposes, and each Member and the Company shall file all tax returns and shall otherwise take all
tax and financial reporting positions in a manner consistent with such treatment.




ARTICLE III

MEMBERSHIP; CONTRIBUTIONS




     Section 3.1 Members



               (A) Names, etc. The names, residence, business or mailing addresses and Capital
Contributions of each Member are set forth on Exhibit A. Any reference in this Agreement to
Exhibit A shall be deemed to be a reference to Exhibit A as amended and in effect
from time to time in accordance with the terms of this Agreement. Each Person listed on Exhibit
A shall, upon its execution of this Agreement or counterpart thereto, be admitted to the
Company as a Member of the Company.



               (B) Loans by Members. No Member, as such, shall be required to lend any funds to the
Company or to make any contribution of capital to the Company, except as otherwise required by
applicable law, this Agreement, or any other written agreement between such Member and the Company
explicitly requiring the making of capital contributions, including without limitation the PCTEL
Line of Credit Documents. Any Member may, with the approval of the Board, make loans to the
Company on terms agreed upon by the Board and such Member, including without limitation pursuant to
the PCTEL Line of Credit Documents, and any loan by a Member to the Company shall not be considered
to be a Capital Contribution.



               (C) Representations and Warranties of Members. Each Member hereby represents and
warrants and acknowledges 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 has reviewed and evaluated all information necessary to assess the merits and
risks of its investment in the Company and has had answered to its satisfaction any and all
questions regarding such information;



                    (iii) such Member is able to bear the economic and financial risk of an investment in the
Company for an indefinite period of time;



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Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





                    (iv) such Member is acquiring its interest in the Company for investment only and not with a
view to, or for resale in connection with, any distribution to the public or public offering
thereof;



                    (v) the interests in the capital and residual profits of the Company have not been registered
under the securities laws of any jurisdiction and cannot be disposed of unless they are
subsequently registered and/or qualified under applicable securities laws and the provisions of
this Agreement have been complied with;



                    (vi) the execution, delivery and performance of this Agreement have been duly authorized by
such Member and do not require such Member to obtain any consent or approval that has not been
obtained and do not contravene or result in a default under any provision of any law or regulation
applicable to such Member or other governing documents or any agreement or instrument to which such
Member is a party or by which such Member is bound, and the Person executing this Agreement on
behalf of such Member has been duly authorized to do so;



                    (vii) the determination of such Member to invest in the Company has been made by such Member
independent of any other Member and independent of any statements or opinions as to the
advisability of such purchase or as to the properties, business, prospects or condition (financial
or otherwise) of the Company and its subsidiaries which may have been made or given by any other
Member or by any Affiliate or agent of any other Member;



                    (viii) this Agreement is valid, binding and enforceable against such Member in accordance with
its terms, and, such Member is not a party to any other written or verbal agreement or
understanding with respect to the subject matter of this Agreement, with the exception only of the
Contribution Agreement, the Eclipse Service Agreement and the PCTEL Service Agreement, if such
Member is a party thereto;



                    (ix) if a Member is a partnership, limited liability company or other entity classified as a
partnership for federal income tax purposes, or a grantor trust (within the meaning of Sections
671-679 of the Code) or an S corporation (within the meaning of Section 1361 of the Code) (each, a
“Flow-Through Entity”), either: (a) no Person will own, directly or indirectly through one
or more flow-through entities, an interest in such Member where more than seventy percent (70%) of
the value of the Person’s interest in such Member is attributable to such Member’s investment in
the Company; or (b) if one or more Persons will own, directly or indirectly through one or more
Flow-Through Entities, an interest in such Member where more than seventy percent (70%) of the
value of the Person’s interest in such Member is attributable to the Member’s investment in the
Company, neither the Member nor any such Person has or will have any intent or purpose of having
such Person invest in the Company indirectly through the Member in order to enable the Company to
satisfy the 100-Member limitation in Treas. Reg. §1.7704-1(h) (the private placement safe harbor
from publicly traded status);



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Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





                    (x) unless such Member has notified the Board to the contrary, such Member: (a) is a “United
States Person” within the meaning of Section 7701 of the Code (i.e., is not any of the following
(as defined in the Code): a nonresident alien individual, foreign partnership, foreign corporation,
foreign estate, foreign trust, other foreign entity or organization, or grantor trust having a
foreign person as an owner); (b) is a “U.S. Person” within the meaning of Section 120.15 of the
International Traffic in Arms Regulation (ITAR), 22 CFR Chapter I, Subchapter M, Parts 120-130; (c)
shall notify the Company within sixty (60) days of the date such Member ceases to be a “United
States Person” or a “U.S. Person,” as so defined; and (d) may be asked to recertify its non-foreign
status at periodic intervals (and that this information may be disclosed to the Internal Revenue
Service);



                    (xi) if such Member will beneficially own ten percent (10%) or more of the Membership
Interests in the Company, the Member is not an “investment company” as defined in the Investment
Company Act nor is the Member relying on Section 3(c)(1) or Section 3(c)(7) of the Investment
Company Act as an exemption from classification as an “investment company”;



                    (xii) such Member is not holding and, for the term of the Company, will not hold “plan
assets,” as that term is defined in the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), or the rules and regulations promulgated thereunder, including, without
limitation, the Department of Labor Regulations Section 2510.3-101 (the “Plan Asset
Regulations”), and, consequently, the administration and management of the Company and the
investment of the Company’s assets are not, and will not be, subject to the fiduciary duty
requirements of ERISA; and



                    (xiii) such Member (nor any Person owning an interest in such Member) is not (nor will be) a
Person with whom the Company or any other Member is restricted from doing business under
regulations of the Office of Foreign Assets Control (“OFAC”) of the Department of the
Treasury of the United States of America (including, those persons named on OFAC’s Specially
Designated Nationals and Blocked Persons list) or under any statute, executive order (including the
September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other governmental action and such Member is
not engaging in, and shall not knowingly engage in, any dealings or transactions with such Persons.



               (D) Additional Representations and Warranties of PCTEL. PCTEL hereby represents and
warrants that, at all times during the period commencing with the Formation Date and ending on the
Effective Date, PCTEL (i) has been the sole member of the Company and (ii) has not caused the
Company to engage in any activities with the exception of (a) obtaining a tax identification
number, (b) establishing a bank account, and (c) related organizational tasks. All such activities
have been conducted in accordance with the terms of the Old Agreement.



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





     Section 3.2 No Liability of Members



               (A) No Liability. Except as otherwise required by applicable law, 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 any other obligations of the Company or for any losses of the
Company. Each Member shall be liable only to make such Member’s Capital Contributions to the
Company pursuant to the terms and conditions provided expressly herein.



               (B) Distributions. In accordance with the Act and the laws of the State of Delaware, 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 ARTICLE V shall be deemed a return of money or other property
paid or distributed in violation of the Act. The payment of any such money or distribution of any
such property to a Member shall be deemed to be a compromise within the meaning of the Act, and the
Member receiving any such money or property shall not be required to return to any Person any such
money or property. However, if any court of competent jurisdiction holds that, notwithstanding the
provisions 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 3.3 Capital Contributions



               (A) Generally. Each Member, by execution of this Agreement, agrees to make Capital
Contributions in accordance with the terms of this Agreement.



               (B) Initial Capital Contributions. Concurrently with the execution and delivery of
this Agreement, each of the Members shall contribute (or cause to be contributed) to the Company
the Capital Contributions as set forth on Exhibit A, subject to the terms thereof and the
terms of the Contribution Agreement, and each of the Members’ Capital Accounts shall be credited
with an amount equal to the value thereof, as set forth therein.



               (C) Additional Capital Contributions. The Members shall not be required to make any
additional Capital Contributions to the Company.



     Section 3.4 Certification of Membership Interests



          The Company may in its discretion issue certificates to the Members representing the interest
in the capital and residual profits held by such Member.




     Section 3.5 Other Activities



          Subject to the other express provisions of this Agreement and any other agreements with the
Company, including, without limitation, any leases, services agreements, employment






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Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







agreements, independent contractor agreements to which a Member or Affiliate of a Member may
be a party, each Member, member of the Board or Officer of the Company, at any time and from time
to time, may engage in and own interests in other business ventures of any type and description,
independently or with others. In this regard, each party recognizes that (i) PCTEL and its
Affiliates are in the business of propagation and optimization solutions for the wireless industry,
design and development of software-based radios for wireless network optimization and development
and distribution of antenna solutions, and have interests therein for profit and may engage in all
activities related or incidental thereto and (ii) Eclipse and its Affiliates are in the business of
RF, analog, mixed-signal and digital integrated circuit design, signal processing circuit
implementation and embedded software development and have interests therein for profit and may
engage in all activities related or incidental thereto. None of the Company, any other Member, or
any Affiliate of any other Member shall have any right by virtue of this Agreement or the company
relationship created hereby in or to any ventures or activities of PCTEL, Eclipse or their
respective Affiliates or to the income or proceeds derived therefrom or the pursuit of such other
ventures or opportunities by PCTEL, Eclipse or their respective Affiliates. Except as set forth in
this Agreement, none of PCTEL, Eclipse or their respective Affiliates shall be obligated to present
or disclose to the Company or any Member any particular investment opportunity and PCTEL, Eclipse
or their respective Affiliates shall have the right to take for their own account any particular
investment opportunity; provided, however, that during the term of this Agreement and the
Restricted Period no Member shall be involved in any capacity in any investment opportunity that is
competitive with the purposes set forth in Section 2.6. Except as set forth in this
Agreement, the involvement by a Member or its Affiliates in an investment opportunity shall not
constitute a conflict of interest by such Person with respect to the Company, any of the Members,
or any of their respective Affiliates.




ARTICLE IV

CAPITAL ACCOUNTS




     Section 4.1 Establishment and Determination of Capital Accounts



          A capital account (“Capital Account”) shall be established for each Member on the
books of the Company. Each Member’s Capital Account shall be (i) increased by any Capital
Contributions made by such Member pursuant to the terms of this Agreement and such Member’s share
of Profits and any other items of income and gain allocated to such Member pursuant to ARTICLE
V (other than Section 5.8), (ii) decreased by such Member’s share of Losses, the amount
of cash or the fair market value of any other property (net of liabilities assumed by such Member
and liabilities to which such property is subject) distributed to such Member, and any other item
of loss or deduction allocated to such Member pursuant to ARTICLE V, and (iii) adjusted as
otherwise required by the Code and the regulations thereunder, including but not limited to, the
rules of Treasury Regulation Section 1.704-1(b)(2)(iv). 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.





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accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”












 





     Section 4.2 Negative Capital Accounts



          Except as expressly provided herein, or as required by 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 4.3 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 (i) 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 X, or
(ii) to cause a partition of the Company’s assets.



     Section 4.4 Compliance With Section 1.704-1(b)



          The provisions of this Agreement relating to the maintenance of Capital Accounts are intended
to comply with Section 1.704-1(b) of the Treasury Regulations, and shall be interpreted and applied
in a manner consistent with such Treasury Regulations. In the event the Board shall determine that
it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which are secured by
contributed or distributed property or which are assumed by the Company or any Member), are
computed in order to comply with such regulation, the Board 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 X upon the dissolution of the Company. The Board also shall (i) make any
adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of
the Members and the amount of Company capital reflected on the Company’s balance sheet, as computed
for book purposes, in accordance with Treas. Reg. §1.704-1(b)(iv)(g), and (ii) make any appropriate
modifications in the event unanticipated events might otherwise cause this Agreement not to comply
with Treas. Reg. §1.704-1(b); provided that adjustments and/or modification is not likely to have a
material effect on the amounts distributable to any Member pursuant to ARTICLE X upon the
dissolution of the Company.



     Section 4.5 Transfer of Capital Accounts



          The original Capital Account established for each substituted Member shall be in the same
amount as the Capital Account of the Member which such substituted Member succeeds, at the time
such substituted Member is admitted to the Company. The Capital Account of any Member whose
interest in the Company shall be increased or decreased by means of the transfer to it of all or
part of the Membership Interest of another Member shall be appropriately adjusted to reflect such
transfer. Any reference in this Agreement to a Capital Contribution of or distribution to a Member
that has succeeded any other Member shall include any Capital Contributions or distributions
previously made by or to the former Member on account of the Membership Interest of such former
Member transferred to such Member.



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accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
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ARTICLE V

DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES




     Section 5.1 Generally



          Subject to the provisions of Section 18-607 of the Act and to the provisions of this
ARTICLE V, the Board shall make Distributions of Net Operating Cash Flow and Net Capital
Proceeds to its Members as and when determined by the Board from time to time and subject to the
retention and establishment of or reserves of, or payment to third parties of, such funds as it
deems necessary in respect of the reasonable business needs of the Company which shall include the
payment or the making of provision for the payment when due of the Company’s obligations, including
without limitation the Company’s obligations under the PCTEL Line of Credit Documents.



     Section 5.2 Net Operating Cash Flow Distributions



          Subject to Section 5.1, all Distributions of Net Operating Cash Flow shall be made to
the Members in proportion to their respective Percentage Interests as of the date such
Distributions are made.



     Section 5.3 Net Capital Proceeds Distributions



          Subject to Section 5.1, all Distributions of Net Capital Proceeds shall be made to the
Members in proportion to their respective Percentage Interests as of the date such Distributions
are made.



     Section 5.4 Tax Distributions



          Notwithstanding Section 5.2 or Section 5.3, or any other provision of this
Agreement, the Board shall, to the maximum extent permitted by applicable law and to the extent
that distributable cash is reasonably available to the Company, cause the Company to distribute to
each Member an amount equal to such Member’s “Tax Distribution” (as defined below). With respect
to a taxable year, distributions made pursuant to Section 5.2 or Section 5.3 shall
discharge the Company’s obligations under this Section 5.4, and distributions made under
this Section 5.4 shall reduce amounts distributable pursuant to Section 5.2 or
Section 5.3, as applicable. For purposes of this Agreement, “Tax Distribution”
means, with respect to a taxable year of the Company, an amount equal to the net taxable income
reported (or that is reasonably anticipated will be reported) on the Schedule K-1 issued (or that
will be issued) by the Company to such Member for such taxable year (less any net tax losses on
Schedule K-1 for prior taxable years to the extent not previously considered pursuant to this
Section 5.4) multiplied by forty percent (40%). Any and all Tax Distributions shall be
made on a quarterly basis.



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accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





     Section 5.5 Allocation of Profits and Losses



               (A) Profits. After giving effect to the special allocations set forth in Section
5.6, Profits for any Taxable Year shall be allocated in the following order and priority:



                    (i) First, to the Members in an amount equal to the excess, if any, of (x) the cumulative
Losses allocated to each such Member pursuant to Section 5.5(B) for all prior Taxable
Years, over (y) the cumulative Profits allocated to each such Member pursuant to this Section
5.5(A)(i) for all prior Taxable Years (and between the Members based on the relative share of
the aggregate net Loss previously allocated to each);



                    (ii) Thereafter, to the Members in proportion to their Percentage Interests.



               (B) Losses. After giving effect to the special allocations set forth in Section
5.6, Losses for any Taxable Year shall be allocated as set forth in Section 5.5(B)(i),
subject to the limitations in Section 5.5(B)(ii).



                    (i) Losses for any Taxable Year shall be allocated to the Members in proportion to their
Percentage Interests to the extent permitted by Section 5.5(B)(ii). In the event that
Section 5.5(B)(ii) prevents an allocation of Losses to one or more of the Members (but less
than all of the Members), the remaining Loss shall be allocated between the remaining Members in
proportion to their Percentage Interests.



                    (ii) The Losses allocated pursuant to Section 5.5(B)(i) 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 Taxable 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 5.5(B)(i), the limitation set forth in this Section 5.5(B)(ii) shall be
applied on a Member by Member basis so as to allocate the maximum permissible Losses to each Member
under Regulations Section 1.704-1(b)(2)(ii)(d).



     Section 5.6 Regulatory and Special Allocations



          Notwithstanding the provisions of Section 5.5:



               (A) Company Minimum Gain Chargeback. Except as otherwise provided in Treasury
Regulation Section 1.704-2(f), if there is a net decrease in Company Minimum Gain during any
Taxable Year, each Member shall be specially allocated items of taxable income or gain for such
Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s
share of the net decrease in Company Minimum Gain, determined in accordance with Treasury
Regulation Section 1.704-2(g). The items to be so allocated shall be determined in accordance with
Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




5.6(A) is intended to comply with the minimum gain chargeback requirement in Treasury
Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.




               (B) Member Nonrecourse Debt Minimum Gain Chargeback. Except as otherwise provided in
Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Member Minimum Gain
attributable to a “Member Nonrecourse Debt” (as those terms are defined in Treasury Regulation
Section 1.704-2(b)(4)) during any Taxable Year, each Member that has a share of such Member Minimum
Gain shall be specially allocated items of taxable income or gain for such Taxable Year (and, if
necessary, subsequent Taxable Years) in an amount equal to that Member’s share of the net decrease
in Member Minimum Gain. Items to be allocated pursuant to this paragraph shall be determined in
accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section
5.6(B) is intended to comply with the minimum gain chargeback requirements in Treasury
Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.



               (C) Qualified Income Offset. If any Member unexpectedly receives any adjustments,
allocations or distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5)
or (6), items of taxable income and gain shall be specially allocated to such Member in an amount
and manner sufficient to eliminate the adjusted capital account deficit (determined according to
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)) created by such adjustments, allocations or
distributions as quickly as possible, provided that an allocation pursuant to this
Section 5.6(C) shall be made only if and to the extent that such Member would have a
Adjusted Capital Account Deficit after all other allocations provided for in this ARTICLE V
have been tentatively made as if this Section 5.6(C) were not in the Agreement. This
Section 5.6(C) is intended to comply with the qualified income offset requirement in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.



               (D) Gross Income Allocation. In the event any Member has a deficit Capital Account at
the end of any Taxable Year that is in excess of the sum of (i) the amount the Member is obligated
to restore pursuant to any provision of this Agreement and (ii) the amount the Member is deemed to
be obligated to restore pursuant to the penultimate sentences of the Treasury Regulations
1.704-2(g)(1) and 1.704-2(i)(5), the Member shall be specially allocated items of Company income
and gain in the amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 5.6(D) 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 this ARTICLE V have been tentatively made as if Section 5.6(C) and this
Section 5.6(D) were not in this Agreement.



               (E) Nonrecourse Deductions. Nonrecourse Deductions (as determined according to
Treasury Regulation Section 1.704-2(b)(1)) for any Taxable Year shall be allocated to the Members
in accordance with their respective Percentage Interests, and Member Nonrecourse Deductions shall
be allocated in the manner required by Treasury Regulation Section 1.704-2(i).



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





               (F) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Taxable
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 Treasury Regulation §1.704-2(i)(1).



               (G) Section 754 Adjustment. To the extent an adjustment to the adjusted tax basis of
any Company asset pursuant to Code §§734(b) or 743(b) is required, pursuant to Treasury Regulation
§§1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken
into account in determining Capital Accounts as the result of a distribution to a Member in
complete liquidation of his interest in the Company, the amount of such adjustment to the 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 Members in accordance with their interests in the Company in the event that Treasury
Regulation §1.704-1(b)(2)(iv)(m)(2) applies, or to the Members to whom such
distribution was made in the event that Treasury Regulation
§1.704-1(b)(2)(iv)(m)(4) applies.



               (H) Curative Allocations. The allocations set forth in Section 5.5(B)(ii),
and Section 5.6(A), (B), (C), (D), (E), (F), and (G) (the “Regulatory Allocations”) are
intended to comply with certain requirements of the Treasury 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 Company income, gain, loss, or
deduction pursuant to this Section 5.6(H). Therefore, notwithstanding any other provision
of this ARTICLE V (other than the Regulatory Allocations), the Board of Managers shall make
such offsetting special allocations of Company income, gain, loss, or deduction 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 Company
items were allocated pursuant to Section 5.5(A), Section 5.5(B)(i), and Section
5.8. In exercising its discretion under this Section 5.6(H), the Board of Managers
shall take into account future Regulatory Allocations under Section 5.6(A) and (B)
that, although not yet made, are likely to offset other Regulatory Allocations previously made
under Section 5.6(E) and (F).



               (I) Offsetting Allocations. If, and to the extent that, any Member is deemed to
recognize any item of income, gain, deduction or loss as a result of any transaction between such
Member and the Company pursuant to Sections 1272-1274, 7872, 483, 482 or 83 of the Code or any
similar provision now or hereafter in effect, and the Board reasonably determines that any
corresponding item of deduction, loss, income or gain recognized by the Company (net of any income
or deduction recognized by the Company in connection with such transaction) should be allocated to
such Member in order to reflect the Members’ Percentage Interest in the Company, then the Board may
so allocate such corresponding net item.



     Section 5.7 Section 754 Election



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          Upon the request of any Member, the Company shall elect, pursuant to Section 754 of the Code,
to adjust the basis of property owned by the Company as permitted and provided in Sections 734 and
743 of the Code. Such election shall be effective solely for Federal (and, if applicable, state and
local) income tax purposes and shall not result in any adjustment to the Book Value of any Company
asset or to the Member’s Capital Accounts (except as provided in Treasury Regulations Section
1.704-1(b)(2)(iv)(m)) or in the determination or allocation of Profit or Loss for purposes other
than such tax purposes.



     Section 5.8 Tax Allocations



               (A) Generally. Except as provided in Section 5.8(B) or Section 5.8(C),
for federal, state and local income tax purposes, each item of income, gain, loss or deduction
shall be allocated among the Members in the same manner and in the same proportion that the
corresponding book items have been allocated among the Members’ respective Capital Accounts.



               (B) Eric Üner January 2011 Bonus. Eclipse is paying a bonus to Eric Üner, an employee
of the Company, pursuant to a bonus letter dated as of the Effective Date (the “Eric Üner
January 2011 Bonus”). To the extent the Eric Üner January 2011 Bonus is ever deemed to be
compensation paid by the Company, then the Members agree that the resulting deduction shall be
allocated entirely to Eclipse.



               (C) Variations. In accordance with Section 704(c) of the Code and the Treasury
Regulations thereunder, income, gain, loss and deduction in respect of any property contributed to
the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to
take account of any variation between the adjusted basis of such asset for federal income tax
purposes and its initial Book Value. In the event the Book Value of any Company asset is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f), subsequent allocations of
income, gain, loss and deduction in respect of such asset shall take into account any variation
between the adjusted basis of such asset for federal income tax purposes and its Book Value in the
same manner as under Section 704(c) of the Code and the Treasury Regulations thereunder.
Allocations required or permitted by this Section 5.8(C) shall be made based on any
reasonable method specified in Treasury Regulations Section 1.704-3 as the Board reasonably
determines.



ARTICLE VI

MANAGEMENT POWER, RIGHTS AND DUTIES




     Section 6.1 Management by the Board



               (A) Board. The business and affairs of the Company shall be managed under the
direction of a board of managers (the “Board”) to the fullest extent permitted by the Act.
The Board shall consist of three (3) individuals designated as follows: PCTEL shall designate two
(2) individuals, who shall initially be John W. Schoen and Anthony Kobrinetz, and Eclipse shall



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







designate one (1) individual, who shall initially be Anthony Vitucci. An affirmative vote of
any two (2) members of the Board shall control with respect to any decision to be made by the
Board; provided, however, that the affirmative vote of all of the members of the Board shall be
required in order to approve:



                    (i) any changes to the relative rights and preferences of the Membership Interests or the
right of any Member to receive Distributions or the allocation of Profits and Losses;



                    (ii) any amendment to the First Call Matrix or the Second/Third Call Matrix;



                    (iii) any redemption, purchase or other acquisition of Membership Interests by the Company;



                    (iv) any amendment to Section 3.2 (No Liability of Members), Section 3.3
(Capital Contributions), Section 3.5 (Other Activities), ARTICLE IV (Capital
Accounts), ARTICLE V (Distributions; Allocations of Profits and Losses), Section
6.1 (Management by Board), Section 6.3 (Authority of Officers; Restrictions on Certain
Actions), Section 6.5(C) (Two-Thirds Member Approval Margin), Section 7.1 (Duties;
No Liability), Section 7.2 (Restrictive Covenants), Section 7.3 (Transactions
Between the Company and the Members), Section 7.4 (Right to Indemnification), ARTICLE
IX (Transfers and Other Events), Section 10.1 (Dissolution, Liquidation and
Termination), Section 11.1 (Arbitration Required), Section 12.3 (Indemnification
and Reimbursement for Payments on Behalf of a Member), Section 12.8 (Amendment or
Modification) or Section 12.14 (Waiver of Certain Damages);



                    (v) any amendment to Section 1.1 (Definitions) that would disproportionately and
materially adversely affect a Member;



                    (vi) any amendment to any provision of this Agreement that provides for approval of any matter
by a vote of more than a simple majority of the Members;



                    (vii) except (1) for the exercise of rights pursuant to ARTICLE IX or (2) any
migratory merger for change of domicile purposes, effecting any merger, consolidation, conversion
or similar transaction which would reasonably be expected to have a material adverse effect on
Eclipse.


PCTEL and Eclipse may remove or replace such designees at any time. In the event that Anthony
Vitucci is terminated as an employee of PCTEL or the Company for Cause (as defined herein or in an
employment agreement) or resigns, then he shall be deemed to have resigned from the Board and
Eclipse shall replace him as its designee. In the event that Eclipse (a) materially breaches its
obligations (beyond any applicable notice or cure periods) under, or (b) terminates, the Eclipse
Services Agreement, then Eclipse’s right to designate a member of the Board shall terminate, and
the size of the Board shall be reduced to two (2) members, both of






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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







whom shall be designated by PCTEL, and all decisions requiring the unanimous approval of the
members of the Board pursuant to Section 6.1(A) shall require only the approval of both of
PCTEL’s designees, subject to the restrictions set forth in Section 12.8.




               (B) General Powers. All powers of the Company shall be exercised by the Board.
Decisions of the Board within its scope of authority shall be binding upon the Company and each
Member. The Board shall have full, exclusive and complete discretion, power and authority in
furtherance of the purposes of the Company as set forth in Section 2.6 and, subject to any
other provisions of this Agreement or by non-waivable provisions of applicable law, to manage,
control, administer and operate the business and affairs of the Company and to make all decisions
affecting such business and affairs, including, without limitation, as described in Section
2.7.



               (C) Term of Office. Members of the Board shall serve until their resignation, death or
removal in accordance with Section 6.1(A) by any Person or group of Persons having the
right to designate such member of the Board.



               (D) Vacancies. Any vacancy on the Board shall be filled in accordance with Section
6.1(A).



               (E) Resignation. A member of the Board may resign as such by delivering his or her
written resignation to the Company at the Company’s principal office addressed to the Board. Such
resignation shall be effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event.



               (F) Compensation. A member of the Board shall not be paid compensation by the Company
for his or her services as such. The foregoing shall not be deemed to limit or restrict the payment
of any reasonable compensation or remuneration to any Person in such Person’s capacity as an
Officer, advisor or consultant to the Company or any agreement or arrangement with the Company
which has been approved by the Board.



               (G) Reimbursement. The members of the Board shall be entitled to be reimbursed for
reasonable out-of-pocket costs and expenses incurred in the course of their service hereunder,
including, without limitation, attendance at Board and Member meetings.



               (H) Reliance by Third Parties. Any Person dealing with the Company, other than a
Member, may rely on the authority of the Board (or any Officer or other person authorized by the
Board) in taking any action in the name of the Company without inquiry into the provisions of this
Agreement or compliance herewith, regardless of whether that action actually is taken in accordance
with the provisions of this Agreement. Every agreement, instrument or document executed by one or
more members of the Board (or any Officer authorized by the Board) in the name of the Company in
respect of any business or property of the Company shall be conclusive evidence in favor of any
Person relying thereon or claiming thereunder that (i) at the time of the execution or delivery
thereof this Agreement was in full force and effect, (ii) such agreement,



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







instrument or document was duly executed according to this Agreement and is binding upon the
Company, and (iii) the Board or such Officer was duly authorized and empowered to execute and
deliver such agreement, instrument or document for and on behalf of the Company.



               (I) Meetings of the Board; Actions. Meetings of the Board shall be held at the
principal place of business of the Company or at any other place that the Board determines;
provided, however, that either Member may call a meeting of the Board once per fiscal quarter.
Written notice of all meetings of the Board shall be sent to all Board members at least five (5)
Business Days prior to the meeting. At any meeting, any member of the Board may participate by
telephone or similar communication equipment, provided each member of the Board can hear the
others. Persons present by telephone shall be deemed to be present “in person” for purposes hereof.
The presence of two (2) members of the Board shall constitute a quorum for the transaction of
business. Meetings shall be held at least once each quarter, or more often in accordance with a
schedule established by the Board. In addition, any two (2) or more members of the Board may
convene a meeting thereof upon at least five (5) Business Days’ prior written notice to the other
members of the Board. The Board also may make decisions, without holding a meeting, by written
consent with at least five (5) Business Days prior written notice thereof to all members of the
Board not signing such consent. Minutes of each meeting and a record of each decision shall be kept
by the Secretary. Notwithstanding the foregoing provisions, each member of the Board who is
entitled to notice waives notice if before or after the meeting the member of the Board signs a
waiver of notice or appears at or participates in the meeting.



               (J) Reserves. The Board may from time to time establish such reserves as it shall
reasonably determine.



     Section 6.2 Officers



               (A) Designation and Appointment. The Board may, from time to time, appoint Officers of
the Company. Any number of offices may be held by the same person. In its discretion, the Board 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. Any Officers so designated shall have such authority
and perform such duties as are herein provided and as the Board may, from time to time, delegate to
them. The Board may assign titles to particular Officers. Each Officer shall hold office until his
or her successor shall be duly designated and shall qualify or until his or her death or until he
or she shall resign or shall have been removed in the manner hereinafter provided. The Officers of
the Company shall serve without compensation. The initial Officers of the Company shall be as are
as set forth on Schedule 6.2.



               (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 Board. 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 Board. Designation of an Officer
shall not itself create any contractual or employment rights.



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





               (C) Duties of Officers Generally. The Officers, in the performance of their duties as
such, shall owe to the Company duties of good faith and fair dealing; provided,
however, so long as any Officer, in reasonable good faith, believes he or she is acting in
the Company’s interest, such Officer shall not be held to be in breach of duties promulgated
hereunder or otherwise be liable to any Person in any respect.



               (D) President. The President shall, subject to the powers of the Board, be the chief
administrative officer of the Company and shall have general charge of the business, affairs and
property of the Company, and control over its other Officers and agents. The President shall see
that all orders and resolutions of the Board are carried into effect and shall have authority to
suspend or to remove any agent or Officer of the Company and, in the case of the suspension for
Cause of any such Officer, to recommend to the Board what further action should be taken. In the
absence of the President and with the Board’s prior approval, the duties of the President shall be
performed and his or her authority may be exercised by any other Officer of the Company. The
President shall have such other powers and perform such other duties as may be prescribed by the
Board, and shall be a “manager” for purposes of the Act.



               (E) Vice President — Finance. The Vice President — Finance shall have shall have
general charge of the financial affairs of the Company and shall perform such duties and have such
other powers as the President (within the scope of his or her authority) or the Board may from time
to time prescribe.



               (F) Vice President — Business Development. The Vice President — Business Development
shall have shall have general charge of the sales and business development activities of the
Company and shall perform such duties and have such other powers as the President (within the scope
of his or her authority) or the Board may from time to time prescribe.



               (G) Other Vice Presidents. Each of the other Vice Presidents, if any, shall perform
such duties and have such other powers as the President (within the scope of his or her authority)
or the Board may from time to time prescribe.



               (H) Secretary. The Secretary shall have the general duties, powers and
responsibilities of a secretary of a corporation. The Secretary shall attend all meetings of the
Board and of the Members and record all of the proceedings of such meetings in a book to be kept
for that purpose. The Secretary shall keep all documents as may be required under this Agreement
and the Act. The Secretary shall perform such other duties and have such other authority as may be
prescribed elsewhere in this Agreement or from time to time by the President or the Board.



               (I) Signatory Authority. All agreements and instruments to be executed on behalf of
the Company (including without limitation checks drawn on the Company’s accounts) shall be executed
by two (2) Officers of the Company, and shall not be effective without both such signatures. Where
thus authorized, such individuals shall have the authority to bind the



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







Company by signing contracts or agreements or understandings, subject, however, to Section
6.3.



     Section 6.3 Authority of Officers; Restrictions on Certain Actions



               (A) Authority. Subject to the provisions of this Agreement, the Officers, without the
prior approval of the Board, shall have the power and authority to take any and all actions on
behalf of the Company as are necessary, desirable or appropriate to or for the furtherance of the
purposes set forth in Section 2.6 as enumerated in Section 2.7.



               (B) Restrictions. Notwithstanding anything to the contrary contained herein, an
Officer may not take any of the following actions on behalf of the Company without the prior
written approval of the Board pursuant to Section 6.1:



                    (i) directly or indirectly sell or otherwise dispose of any material asset of the Company
outside the ordinary course of business;



                    (ii) commence (including the filing of a counterclaim), settle or otherwise dispose of any
claim or litigation, regulatory proceeding or arbitration (other than ordinary course employer or
commercial claims) to which the Company is, or is to be, a party or by which the Company or any of
its business, assets or properties may be affected;



                    (iii) directly or indirectly declare or make any Distributions upon any of the Company’s
equity securities;



                    (iv) enter into, materially modify or terminate any Material Contract;



                    (v) incur and/or pay for any expense or cost of the Company which is outside the scope of the
applicable item in the approved Annual Operating Budget;



                    (vi) create any liens or any other encumbrances whatsoever upon the assets of the Company;



                    (vii) enter into any joint venture or business alliance or create any subsidiary, or acquire
any capital stock of or other ownership interest in any Person;



                    (viii) amend or terminate any agreement relating to a joint venture or a business alliance of
the Company;



                    (ix) make any political or charitable contribution;



                    (x) enter into or consummate any transaction of the type contemplated or covered by
Section 7.3;



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





                    (xi) delegate authority to any Person to approve the taking of any action set forth in this
Section 6.3(B);



                    (xii) do any act which would make it impossible to carry on the ordinary business of the
Company or to alter the tax status of the Company;



                    (xiii) change the name of the Company;



                    (xiv) directly or indirectly redeem, purchase or otherwise acquire any of the Company’s equity
securities;



                    (xv) authorize, issue, sell or enter into any agreement providing for the issuance (contingent
or otherwise) of any equity securities or debt securities with equity features or securities
exercisable or convertible into equity securities or debt securities with equity features;



                    (xvi) merge or consolidate with any Person;



                    (xvii) liquidate, dissolve or effect a recapitalization or reorganization in any form of
transaction;



                    (xviii) make any loans or advances to, guarantees for the benefit of, or Investments in, any
Person, except for Short-Term Investments;



                    (xix) borrow or guarantee indebtedness, or enter into or materially modify any term of any
documentation evidencing indebtedness, other than advances requested under the PCTEL Line of
Credit;



                    (xx) register any of the Company’s securities under any securities laws;



                    (xxi) make any change in the Company’s Fiscal Year;



                    (xxii) make any amendment or terminate any constitutive or governing document of the Company,
including without limitation this Agreement or the Certificate;



                    (xxiii) engage or retain any auditor other than PCTEL’s then-current auditor;



                    (xxiv) do any act in contravention of this Agreement; or



                    (xxv) commit to do any of the foregoing.



          Section 6.4 Limitation on Authority of Members



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          No Member is an agent of the Company solely by virtue of being a Member, and no Member has
authority to act for the Company solely by virtue of being a Member. This Section 6.4
supersedes any authority granted to the Members pursuant to the Act. Any Member who takes any
action or binds the Company in violation of this Section 6.4 shall be solely responsible
for any loss and expense incurred by the Company as a result of the unauthorized action and shall
indemnify and hold the Company harmless in respect of the loss or expense.



     Section 6.5 Meetings of and Voting by Members



               (A) Notwithstanding anything to the contrary herein, no Person shall be entitled to vote in
respect of any Membership Interest unless such Person is a Member or the proxy of a Member or an
authorized representative of a Member that is not, in either case, a natural Person.



               (B) A meeting of the Members may be called at any time by the Board or by a Member. Meetings
of Members shall be held at the Company’s principal place of business or at any other place
designated by the Board. Not less than five (5) Business Days or more than sixty (60) calendar days
before each meeting, the Board shall give written notice of the meeting to each Member entitled to
vote at the meeting. The notice shall state the time, place and purpose of the meeting.
Notwithstanding the foregoing provisions, each Member who is entitled to notice waives notice if
before or after the meeting the Member signs a waiver of the notice which is filed with the records
of Members’ meetings, or is present at the meeting in person or by proxy. A Member entitled to vote
may vote either in person or by written proxy signed by the Member or by its duly authorized
attorney in fact. Persons present by telephone shall be deemed to be present “in person” for
purposes hereof.



               (C) Except as otherwise provided in this Agreement, the affirmative vote of Members holding
Membership Interests representing more than two-thirds (2/3) of the outstanding Membership
Interests entitled to vote shall be required to approve any matter coming before such Members which
is not required to be determined by the approval of the Board pursuant to the terms of this
Agreement or the Act.



               (D) In lieu of holding a meeting, the Members may vote or otherwise take action by written
consent signed Members having requisite voting power under this Agreement, subject, however, to the
limitations of the Act.



     Section 6.6 Power of Attorney



               (A) Grant of Power. Each Member constitutes and appoints the President of the Company
as the Member’s true and lawful attorney-in-fact, and in the Member’s name, place and stead, to
make, execute, sign, acknowledge, and file:



                    (i) one or more certificates of formation consistent with the terms of this Agreement;



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





                    (ii) all documents (including amendments to the Certificate) which the attorney-in-fact deems
appropriate to reflect any written amendment, change or modification of this Agreement approved in
accordance with Section 12.8;



                    (iii) upon the requisite approval, if any, required elsewhere in this Agreement, any and all
other certificates or other instruments required to be filed by the Company under the laws of the
State of Delaware or of any other state or jurisdiction, including, without limitation, any
certificate or other instruments necessary in order for the Company to continue to qualify as a
limited liability company under the laws of the State of Delaware; and



                    (iv) all documents which may be required to dissolve and terminate the Company and to cancel
its Certificate upon the requisite approval required elsewhere in this Agreement.



               (B) Irrevocability. The foregoing power of attorney is irrevocable and is coupled with
an interest, and, to the extent permitted by applicable law, shall survive the death or disability
of a Member and any change in the identity of the President. It also shall survive the Transfer of
a Membership Interest, except that if the transferee is approved for admission as a Member, this
power of attorney shall survive the delivery of the assignment for the sole purpose of enabling the
attorney-in-fact to execute, acknowledge and file any documents needed to effectuate the
substitution. Each Member shall be bound by any representations made by the attorney-in-fact acting
in good faith pursuant to this power of attorney, and each Member hereby waives any and all
defenses which may be available to contest, negate or disaffirm the action of the attorney-in-fact
taken in good faith under this power of attorney.



     Section 6.7 Annual Operating Budget and Accounting Matters



          Not later than thirty (30) days prior to the start of each Fiscal Year subsequent to 2010, the
Company’s Officers shall submit to the Board, for the Board’s review and approval, a proposed
budget for such Fiscal Year (an “Annual Operating Budget”). Each Annual Operating Budget
shall include a proposed budget and operating plan for the Company, as well as a description of
major business objectives and challenges (including, but not limited to, major capital requirements
for the Company or the refinancing or sale of the Company) for the forthcoming Fiscal Year. The
Annual Operating Budget also shall set forth the following information for the Company on a monthly
basis with annual totals, together with an explanation of all material assumptions made in
determining the same: (i) a detailed estimate of the projected gross revenues for the Company for
the forthcoming Fiscal Year; (ii) a detailed estimate of the projected operating expenses for the
Company for the forthcoming Fiscal Year, which estimate shall set forth as separate line items the
projected operating expenses with respect to each type of expense expected to be incurred for such
year; (iii) a detailed estimate of the projected reimbursable expenses with respect to each type of
expense expected to be incurred for such year; (iv) a statement as to the projected additions to or
disbursements from such reserves for the forthcoming Fiscal Year; (v) an estimate of the projected
cash flow available for Distribution from the Company; (vi) a description of the terms and
conditions proposed with respect to



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




material contracts relating to the Company for the forthcoming Fiscal Year; (vii) a
description of the minimum insurance coverage to be maintained with respect to the Company for the
forthcoming Fiscal Year; and (viii) and such other information as may be reasonably requested by
the Board. In addition, the Officers shall provide to the Board such other financial data and other
information as may be reasonably requested by the Board. If a proposed Annual Operating Budget has
not been approved by the Board by the date that is five (5) days prior to commencement of the
applicable Fiscal Year, the then most recent Annual Operating Budget shall continue to be in
effect, except as follows: (a) to the extent that specific line items of the proposed Annual
Operating Budget have been approved by the Board, then such specific line items shall be as so
approved; (b) subject to the immediately preceding clause, (I) the budget for any expenditures over
which the Company has little or no control, such as taxes, insurance premiums, utility charges,
interest and principal due to then-existing creditors of the Company and to the holders of liens on
Company property, and amounts payable pursuant to the terms of then-existing contracts by which the
Company is bound shall be the amount required to pay such items, and (II) the budget for all other
items shall be the applicable amount set forth in the then most recent Annual Operating Budget,
such amounts in (I) and (II) being adjusted for inflation as reflected in the Consumer Price Index
for All Urban Consumers published by the U.S. Department of Labor Bureau of Labor Statistics since
the date of such most recent Annual Operating Budget. All Annual Operating Budgets and other
reports prepared pursuant to this Section 6.7 shall be prepared in accordance with United
States generally accepted accounting principles (“GAAP”) consistently applied unless
otherwise requested by the Board.




     Section 6.8 Reporting Requirements



          The Officers shall prepare and deliver, or cause to be prepared and delivered, to the Board
and the Members the following financial reports and tax information:



               (A) Within forty-five (45) days of the end of the Fiscal Year, deliver to the Board and the
Members the audited financial reports of the Company for the Fiscal Year, audited by the
independent auditors of the Company engaged by the Board;



               (B) Within five (5) Business Days of the occurrence of such a default, give notice to the
Board and the Members of any default under any financing or breach of or default under any other
material agreement of which the Company is a party; and



               (C) Promptly deliver to the Board and the Members such additional information regarding the
Company as the Board and the Members may reasonably request from time to time.


All of the above reports, balance sheets or other financial statements shall be prepared in
accordance with GAAP (except for tax reporting information to the extent that such tax reporting
information is different from GAAP).







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








ARTICLE VII

EXCULPATION AND INDEMNIFICATION




     Section 7.1 Duties; No Liability



          In the event of a conflict between the interests of any Member and any other Member: (i) the
members of the Board appointed by such Member shall not be obligated to recommend or take any
action that prefers the interests of the Company or the other Members over their respective
interests or the interests of such Member, and (ii) each Member hereby waives both (A) the
fiduciary duty, including the duty of care and the duty of loyalty, if any, of the members of the
Board and the Members owed to the Company and/or its Members and (B) any claim or cause of action
against the members of the Board and the Members for any breach of fiduciary duty owed to the
Company or the Members by any such Person; provided, however, that such Persons shall act in good
faith. No Member, member of the Board, or Officer of the Company shall have any duty to the
Company or any Member of the Company except for the duties of good faith and fair dealing. Except
as otherwise provided in this Agreement, no Member, member of the Board, or Officer of the Company
shall be liable to the Company or to any Member for any loss or damage sustained by the Company or
to any Member, nor be in breach of this Agreement, unless the loss or damage shall have been the
result of gross negligence, fraud or intentional misconduct by the Member, member of the Board, or
Officer in question or, in the case of a member of the Board or an Officer, breach of such Person’s
duties pursuant to Section 6.2(C). In performing his, her or its duties, each such Person
shall be entitled to rely in good faith on the provisions of this Agreement and on information,
opinions, reports or statements (including financial statements and information, opinions, reports
or statements as to the value or amount of the assets, liabilities, profits or losses of the
Company or any facts pertinent to the existence and amount of assets from which Distributions to
Members might properly be paid) of the following other Persons or groups: one or more Officers of
the Company, any attorney, independent accountant, appraiser or other expert or professional
employed or engaged by or on behalf of the Company or the Board; or any other Person who has been
selected with reasonable care by or on behalf of the Company, or the Board in each case as to
matters which such relying Person reasonably believes to be within such other Person’s competence.
The preceding sentence shall in no way limit any Person’s right to rely on information to the
extent provided in Section 18-406 of the Act. No Member, member of the Board, or Officer of the
Company shall be personally liable under any judgment of a court, or in any other manner, for any
debt, obligation or liability of the Company, whether that liability or obligation arises in
contract, tort or otherwise, solely by reason of being a Member, member of the Board, or Officer of
the Company, or any combination of the foregoing.



     Section 7.2 Restrictive Covenants.


The following restrictive covenants (the “Restrictive Covenants”) shall apply to the
Members, the Restricted Member Affiliates, the members of the Board and the Officers:







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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








               (A) Confidentiality. Without limiting the applicability of any other agreement to
which any Person may be subject, no Member, Restricted Member Affiliate, member of the Board or
Officer shall, directly or indirectly, disclose or use at any time, whether during the Restricted
Period or thereafter, any Confidential Information of which such Person is or becomes aware. Each
such Person in possession of Confidential Information shall take all appropriate steps to safeguard
such information and to protect it against disclosure, misuse, espionage, loss and theft.
Notwithstanding the above, such a Person may disclose Confidential Information to the extent that
(i) the disclosure is necessary for him, her or it to fulfill duties to the Company pursuant to
this Agreement or any other written agreement, (ii) the disclosure is required by law or a court
order, or (iii) the disclosure is necessary to enforce rights hereunder; provided, however, that
Eclipse may not disclose or use any Confidential Information in connection with any sale of, or
attempt to sell its Membership Interest pursuant to Section 9.5, except pursuant to a
nondisclosure agreement in a form acceptable to the Board in its reasonable discretion, not to be
unreasonably withheld, delayed or conditioned.



               (B) Non-Competition. During the Restricted Period, no Member or Restricted Member
Affiliate shall, directly or indirectly, in any capacity, engage or invest in, own, manage,
operate, finance, control, be employed by, or be associated with any business venture or activity
engaged in the acquisition, development, ownership, management, exploitation, licensing,
sublicensing or disposition of any secure smartphone or related products competitive with the
Products, anywhere in the world; provided, however, that he, she or it may purchase or otherwise
acquire up to (but not more than) one percent (1%) of any class of securities of any enterprise
(without otherwise participating in the activities of such enterprise) if such securities are
listed on any national or registered security exchange or have been registered under Section 12(g)
of the Securities Exchange Act of 1934.



               (C) Non-Solicitation. During the Restricted Period, PCTEL, Eclipse, the Restricted
Member Affiliates, the members of the Board and the Officers shall not, directly or indirectly, in
any capacity, whether for his, her or its own account or the account of any other Person (i)
solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any
person who is or was an employee or independent contractor of the Company or in any manner induce
or attempt to induce any such Person to terminate his or her employment or retention with the
Company; or (ii) interfere with or attempt to divert the Company’s relationship with any Person,
including without limitation any of the Company’s (1) suppliers, (2) vendors, (3) customers, or (4)
potential customers with whom the Company has held substantive discussions regarding the Products.
Notwithstanding the foregoing, each Member shall be entitled to hire or engage any employee or
independent contractor of the Company who was employed or retained by such Member prior to the date
of this Agreement.



               (D) Non-Disparagement. During the Restricted Period and indefinitely thereafter, no
Member, Restricted Member Affiliate, member of the Board or Officer shall, directly or indirectly,
in any forum or manner, disparage the Company, its Members, the members of the Board, the Officers
or the Affiliates of the Members.



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





               (E) Additional Restricted Member Affiliates. During the term of this Agreement, each
Member shall require, as a condition of employment or retention by such Member, that each Person
employed or retained by such Member who, if affiliated with such Member as of the date of this
Agreement could reasonably be expected to have executed this Agreement as a Restricted Member
Affiliate, execute a joinder to this Agreement in a form prescribed by the Board pursuant to which
such Person shall become an additional Restricted Member Affiliate as if such Person were an
original signatory to this Agreement; provided, however, that so long as there is no transfer of
Anthony Vitucci’s ownership interest in Eclipse, Thomas Smigelski shall not be required to become
an additional Restricted Member Affiliate.



               (F) Maximum Enforceable Scope. If, at the time of enforcement of any of the
Restrictive Covenants, a court of competent jurisdiction determines that the restrictions stated
therein are unenforceable under applicable law and the circumstances then existing, then such
covenant shall extend only to the maximum enforceable duration, scope of conduct prohibited or
geographical extent as determined by such court.



               (G) Injunctive Relief. The Members and the Restricted Member Affiliates acknowledge
that any remedy at law for any breach of the Restrictive Covenants would be inadequate and,
notwithstanding any other provision of this Agreement, consent to the granting by any court of an
injunction or other equitable relief, without the necessity of actual monetary loss being proved,
in order that a breach or threatened breach of the Restrictive Covenants may be effectively
enjoined, and without the necessity of posting a bond or other security in excess of $1,000.



     Section 7.3 Transactions Between the Company and the Members



          Notwithstanding that it may constitute a conflict of interest, the Members, the members of the
Board, or their respective Affiliates may engage in any transaction (including, without limitation,
any amendment, supplement or other modification made to such transaction) with the Company
(including, without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service with the Company) so long as such transaction (including, without
limitation, any amendment, supplement or other modification made to such transaction) is at arm’s
length and approved by a majority of the disinterested members of the Board. Notwithstanding the
foregoing, however, the Eclipse Services Agreement, the PCTEL Line of Credit Documents, the PCTEL
Services Agreement, and the rights of the Members pursuant to Section 9.2, Section
9.3, Section 9.5 and Section 9.6 are hereby approved by the Members and shall
not require the approval of a majority of the disinterested members of the Board.



     Section 7.4 Right to Indemnification



          Subject to the limitations and conditions provided in this ARTICLE VII, each Person
who was or is made a party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
arbitrative (hereinafter, a “Proceeding”), or any appeal in such a Proceeding or



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that
such Person, or a Person of which such Person is the legal representative, is or was a Member, a
member of the Board, or an Officer shall be indemnified by the Company to the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to such amendment)
against judgments, penalties (including excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including, without limitation, reasonable attorneys’ and
experts’ fees) actually incurred by such Person in connection with such Proceeding, appeal, inquiry
or investigation (each, a “Claim”), unless such Claim shall have been the result of gross
negligence, fraud or intentional misconduct by such Person, in which case such indemnification
shall not cover such Claim to the extent resulting from such gross negligence, fraud or intentional
misconduct. Indemnification under this Section 7.4 shall continue as to a Person who has
ceased to serve in the capacity or retain the status which initially entitled such Person to
indemnity hereunder. The rights granted pursuant to this Section 7.4 shall be deemed
contract rights, and no amendment, modification or repeal of this Section 7.4 shall have
the effect of limiting or denying any such rights in respect of actions taken or Proceedings,
appeals, inquiries or investigations arising prior to any amendment, modification or repeal.




     Section 7.5 Nonexclusivity of Rights



          The right to indemnification and the advancement and payment of expenses conferred in
Section 7.4 shall not be exclusive of any other right that a Member, member of the Board,
Officer or other Person indemnified pursuant to Section 7.4 may have or hereafter acquire
under any law (common or statutory) or provision of this Agreement.



     Section 7.6 Insurance



          The Company shall obtain and maintain, at its expense, insurance to protect itself and any
Member, member of the Board, Officer or other agent of the Company against any expense, liability
or loss for which such Person would be entitled to indemnification from the Company pursuant to
Section 7.4.



     Section 7.7 Savings Clause



          If Section 7.4 or any portion thereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each
Person indemnified pursuant to Section 7.4 as to costs, charges and expenses (including
reasonable attorneys’ fees), judgments, fines and amounts paid in settlement in respect of any such
Proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion
of Section 7.4 that shall not have been invalidated and to the fullest extent permitted by
applicable law.



     Section 7.8 Limited Liability



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          Except as otherwise provided by the Act, the debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Member, member of the Board, or Officer of the Company shall be
obligated personally for any such debt, obligation or liability of the Company solely by reason of
being a Member, member of the Board, or Officer of the Company. Neither the Members nor any member
of the Board shall be required to lend any funds to the Company. Each of the Members shall only be
liable to make payment of required Capital Contributions as and when due hereunder and other
payments as expressly provided in this Agreement. If and to the extent a Member shall have made all
Capital Contributions in accordance with the preceding sentence, such Member shall not, except as
required by the express provisions of the Act regarding repayment of sums wrongfully distributed to
Members, be required to make any further contributions. No Member in its capacity as a Member shall
have any power to represent, act for, sign for or bind the members of the Board or the Company, and
the Members hereby consent to the exercise by the Board and Officers of the Company of the powers
conferred on them by law and this Agreement.



ARTICLE VIII

TAXES




     Section 8.1 Tax Returns



          The President shall cause to be prepared and timely filed all necessary federal, state and
local income tax returns for the Company, and shall make any elections and filings it may deem
appropriate and in the best interests of the Members as a group. The President shall further cause
all such tax returns or reports required to be filed by the Company to be sent to each Member for
its review and comment at least fifteen (15) Business Days prior to filing. Such tax returns shall
be subject to each Member’s approval, such approval not to be unreasonably withheld. Each Member
shall furnish to the Company all pertinent information in its possession relating to Company
operations that is necessary to enable the Company’s income tax returns to be prepared and filed.
The Company shall furnish all pertinent information to the Members that is necessary to determine
amounts includable on their tax returns in respect of the Company (including Schedule K-1) as soon
as reasonably practicable after the end of the Taxable Year taking into account any extension
period granted by the relevant authority having jurisdiction over such matters.



     Section 8.2 Tax Matters Partner



          The Board shall designate any Member to serve as a tax matters partner (subject to
replacement) as and when required pursuant to Section 6231(a)(7) of the Code (the “Tax Matters
Partner”), and such Tax Matters Partner shall take reasonable action to cause each other Member
to be treated as a “notice partner” within the meaning of Code Section 6231(a)(8). The Tax Matters
Partner, on and as of the Formation Date, shall be PCTEL. Each Member shall have the right to have
thirty (30) days advance written notice from the Tax Matters Partner of the time and place of, and
to participate in (i) any administrative or judicial proceeding relating to the



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




determination of Company tax items at the Company level, and (ii) any discussions with the
Internal Revenue Service relating to the allocations pursuant to ARTICLE V. Notwithstanding
anything in this Section 8.2 to the contrary, the Tax Matters Partner shall not initiate
any action or proceeding in any court, extend any statute of limitations, or take any other action
contemplated by Code Sections 6222 through 6232 that would legally bind any other Member other than
indirectly through the Company being bound by such action. The Company shall, upon the request of
any Member, confer (or cause the Company’s advisers to confer) with such Member and its advisers on
any matters relating to a Company tax return or any tax election. Promptly following the written
request of the Tax Matters Partner, the Company shall, to the fullest extent permitted by law,
reimburse and indemnify the Tax Matters Partner for all reasonable expenses, including reasonable
legal and accounting fees, claims, liabilities, losses and damages incurred by the Tax Matters
Partner in connection with any administrative or judicial proceeding (i) in respect of the tax
liability of the Company and/or (ii) in respect of the tax liability of the Members in connection
with the operations of the Company. The provisions of this Section 8.2 shall survive the
termination of the Company or the termination of any Member’s interest in the Company and shall
remain binding on the Members for as long a period of time as is necessary to resolve with the
Internal Revenue Service any and all matters regarding the Federal income taxation of the Company
or the Members.




ARTICLE IX

TRANSFERS AND OTHER EVENTS




     Section 9.1 Transfer of Membership Interest in the Company



          Except as provided in this ARTICLE IX, no Member shall Transfer, or permit or suffer
any Transfer of, all or any portion of its Membership Interests to any Person other than the
Company (as the case may be, a “Transferee”) without the prior approval of the Board, which
approval may be granted or withheld in the sole and absolute discretion of the Board.
Notwithstanding any other provision of this Agreement, no attempted Transfer to any transferee who
is not a “U.S. Person” within the meaning of Section 120.15 of the International Traffic in Arms
Regulation (ITAR), 22 CFR Chapter I, Subchapter M, Parts 120-130 shall be valid.



     Section 9.2
First Call Right; Put Right 



               (A) First Call Right. At any time during the First Call Period, PCTEL may issue a
notice to Eclipse (a “First Call Notice”) requiring it to sell to PCTEL Membership
Interests equal to 19% of the Percentage Interests at the First Call Price (the “First
Call”). The closing date for the First Call shall be specified in the First Call Notice and
shall be no earlier than twenty (20) days, and no later than sixty (60) days, following the date of
the First Call Notice (the “First Call Closing Date”). PCTEL shall pay the First Call
Price in cash to Eclipse on the First Call Closing Date. Simultaneously with the payment of the
First Call Price, Eclipse shall execute and deliver to PCTEL such assignments and other instruments
as may be reasonably required to vest in PCTEL all right, title, and interest in and to the
purchased Membership Interests, free and clear of all liens and encumbrances, together with such
additional instruments as may be required to



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




effect a Code Section 754 election, which instruments shall contain only customary
representations and warranties as to power and authority, title and liens and encumbrances.




               (B) Put Right. If PCTEL does not exercise the First Call, then at any time during the
Put Period, Eclipse may issue a notice to PCTEL (a “Put Notice”) requiring it to purchase
from Eclipse Membership Interests then held by Eclipse equal to 19% of the Percentage Interests, at
the Put Price (the “Put”). The closing date for the Put shall be specified in the Put
Notice and shall be no earlier than twenty (20) days, and no later than sixty (60) days, following
the date of the Put Notice (the “Put Closing Date”). PCTEL shall pay the Put Price in cash
to Eclipse on the Put Closing Date. Simultaneously with the payment of the Put Price, Eclipse
shall execute and deliver to PCTEL such assignments and other instruments as may be reasonably
required to vest in PCTEL all right, title, and interest in and to the purchased Membership
Interests, free and clear of all liens and encumbrances, together with such additional instruments
as may be required to effect a Code Section 754 election, which instruments shall contain only
customary representations and warranties as to power and authority, title and liens and
encumbrances.



     Section 9.3 Second Call Right



          At any time during the Second Call Period, PCTEL may issue a notice to Eclipse (a “Second
Call Notice”) requiring it to sell to PCTEL all Membership Interests then held by Eclipse, at
the Second Call Price (the “Second Call”). The closing date for the Second Call shall be
specified in the Second Call Notice and shall be no earlier than twenty (20) days, and no later
than sixty (60) days, following the date of the Second Call Notice (the “Second Call Closing
Date”). PCTEL shall pay the Second Call Price in cash to Eclipse on the Second Call Closing
Date. Simultaneously with the payment of the Second Call Price, Eclipse shall execute and deliver
to PCTEL such assignments and other instruments as may be reasonably required to vest in PCTEL all
right, title, and interest in and to the purchased Membership Interests, free and clear of all
liens and encumbrances, together with such additional instruments as may be required to effect a
Code Section 754 election, which instruments shall contain only customary representations and
warranties as to power and authority, title and liens and encumbrances.



     Section 9.4 Eclipse Participation Right



          If PCTEL exercises the Second Call, and within twelve months after the closing of the Second
Call Period effects a Qualifying Sale of the Company, then PCTEL shall pay to Eclipse, at the
closing of such Qualifying Sale of the Company, ten percent (10%) of the amount, if any, by which
(a) the Net Proceeds received by PCTEL in such Qualifying Sale of the Company exceed (b) the
Enterprise Value of the Company used to calculate the Second Call Price. If PCTEL exercises the
Second Call, and at any time during the period beginning on the thirteenth month and ending on the
twenty-fourth month following the end of the Second Call Period effects a Qualifying Sale of the
Company, then PCTEL shall pay to Eclipse, at the closing of such transaction, five percent (5%) of
the amount, if any, by which (a) the Net Proceeds received by PCTEL in such Qualifying Sale of the
Company exceed (b) the Enterprise Value of the



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




Company used to calculate the Second Call Price. In the event that any such Net Proceeds are
received by PCTEL in a form other than cash (e.g., stock of an acquirer), Eclipse shall be entitled
to ten percent (10%) or five percent (5%), as applicable, of such non-cash consideration, and shall
not be entitled to cash in lieu thereof. Notwithstanding anything contained in this Section
9.4, PCTEL shall have no obligation to effect a Sale of the Company.




     Section 9.5 Eclipse Exit Option; Right of First Refusal



          If PCTEL does not exercise the Second Call, then within ten (10) days of the expiration of the
Second Call Period, the Company shall notify PCTEL and Eclipse of the Company’s Enterprise Value as
of the end of the Second Call Period (the “Enterprise Value Notice”). If the Enterprise
Value as of the end of the Second Call Period is less than or equal to $4,900,000 (as
calculated by the Board pursuant to the Second/Third Call Matrix and the accompanying calculation
principles), then PCTEL shall have the rights set forth in Section 9.6. If the Enterprise
Value as of the end of the Second Call Period is greater than $4,900,000, then Eclipse may
solicit purchasers for its entire Membership Interest for a period of six (6) months from the end
of the Second Call Period (the “Marketing Period”). At any time during the Marketing
Period, Eclipse may issue a notice to PCTEL (a “Third Party Sale Notice”) of its receipt of
a bona fide written offer and letter of intent, term sheet or similar document to sell all, but not
less than all, of its Membership Interests to a single third party (a “Third Party
Purchaser”) for cash, which Third Party Sale Notice shall include a true and correct copy of
such letter of intent, term sheet or similar document. PCTEL shall thereafter have thirty (30) days
(such period, the “Offer Period”) from its receipt of such notice to notify Eclipse in
writing of its election to acquire Eclipse’s Membership Interests on the terms set forth therein.
Should PCTEL fail to notify Eclipse in writing of such an election within the Offer Period, it
shall be deemed to have elected not to purchase such Membership Interests and Eclipse may sell them
on the terms and subject to the conditions set forth in the Third Party Sale Notice; provided,
however, that should (i) the gross price for the sale of such Membership Interests be reduced below
ninety-five percent (95%) of the price set forth in the Third Party Sale Notice, or (ii) a period
of thirty (30) days after the date of delivery of the Third Party Sale Notice expires without a
sale of such Membership Interests, PCTEL shall have its right to purchase same reinstated in
accordance with the procedure set forth in this Section 9.5. Notwithstanding the
foregoing, no sale of Membership Interests to a Third Party Purchaser may be made pursuant to this
Section 9.5 unless (a) all of the Company’s obligations pursuant to the PCTEL Line of
Credit Documents have are paid in full in cash from the proceeds of such Third-Party Sale or from
Eclipse (and in no event out of the proceeds of any Capital Contributions of PCTEL), (b) such Third
Party Purchaser is not engaged in a business competitive with that of the Company or PCTEL (as
determined, in each case, in good faith by the Board), and (c) such sale is closed within eight (8)
months following the end of the Second Call Period (the “Eclipse Exit Period”).



     Section 9.6 PCTEL Exit Options




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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”












 





          If Eclipse does not complete a sale of its Membership Interests as contemplated by Section
9.5 within the Eclipse Exit Period, PCTEL may elect any of the following alternatives at any
time thereafter by issuing a written notice to Eclipse:




               (A) Third Call Right. PCTEL may issue a notice to Eclipse (a “Third Call
Notice”) requiring it to sell to PCTEL all Membership Interests then held by Eclipse, at the
Third Call Price (the “Third Call”). The Closing date for the Third Call shall be
specified in the Third Call Notice and shall be no earlier than twenty (20) days, and no later than
sixty (60) days, following the date of the Third Call Notice (the “Third Call Closing
Date”). PCTEL shall pay the Third Call Price in cash to Eclipse on the Third Call Closing
Date. Simultaneously with the payment of the Third Call Price, Eclipse shall execute and deliver
to PCTEL such assignments and other instruments as may be reasonably required to vest in PCTEL all
right, title, and interest in and to the purchased Membership Interests, free and clear of all
liens and encumbrances, together with such additional instruments as may be required to effect a
Code Section 754 election, which instruments shall contain only customary representations and
warranties as to power and authority, title and liens and encumbrances.



               (B) Approved Sale. PCTEL may elect to sell all, but not less than all, of its
Membership Interests to a third-party purchaser (an “Approved Sale”). In connection with
an Approved Sale, the parties shall have the following rights:



                    (i) Drag-Along Right. PCTEL may, by written notice to Eclipse (a “Drag-Along
Notice”), require Eclipse to sell all of its Membership Interests to such third-party purchaser
on terms and conditions substantially identical to those on which PCTEL will sell its Membership
Interests, and Eclipse shall vote for, consent to and raise no objections against the Approved
Sale. Not in limitation of the foregoing, in connection with an Approved Sale, Eclipse agrees to
take all steps necessary to comply, and to enable it to comply, with the provisions of this
Section 9.6(B)(i), including without limitation the execution and delivery of appropriate
instruments of transfer and such other agreements and instruments as may reasonably be required by
the purchaser or PCTEL for the closing of the Approved Sale at such date and time as PCTEL shall
specify. In connection with an Approved Sale: (1) Eclipse shall be required to make customary
representations or warranties relating to (i) its own due incorporation and execution and delivery
of the relevant agreements and instruments, (ii) the enforceability of such agreements and
instruments against it, (iii) the absence of conflicts with agreements, laws and court and
governmental orders applicable to it, (iv) its ownership of the Membership Interests being sold by
it free and clear of all liens and encumbrances except those arising under this Agreement, and (v)
such other representations or warranties as are reasonably necessary in order to effect the
transfer of Membership Interests contemplated thereby; (2) Eclipse shall not be required to provide
any indemnities except as provided in clause (3); (3) Eclipse may be required to execute and
deliver the applicable purchase and sale agreements and in the event that a portion of the purchase
price is required by the terms of such agreements to be placed in escrow or otherwise withheld to
support purchase price adjustment obligations post-closing (including as it relates to
indemnification required by the purchaser in a transaction for breaches of



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




representations or warranties relating to the Company and/or the Membership Interests or
assets sold), Eclipse will have a pro rata portion of its purchase price placed in such escrow or
otherwise withheld to be utilized to pay any such purchase price adjustment and/or indemnification
obligations; and (4) Eclipse shall not be required to agree to restrictive covenants that would
materially impair its ability to conduct its business as conducted as of the date of this Agreement
(exclusive of the activities of the Company). Eclipse hereby consents to the appointment of a
member representative by the Board for the purposes of all dealings with same and to the
indemnification of such member representative for all actions taken in good faith in relation to
same, all pursuant to a member representative agreement in a form approved by the Board in its
reasonable discretion, which Eclipse agrees to execute promptly upon receipt.




                    (ii) Tag-Along Right. Eclipse may, by written notice to PCTEL (a “Tag-Along
Notice”), require that, as a condition of such Approved Sale, such third-party purchaser
purchase all of Eclipse’s Membership Interests on terms and conditions substantially identical to
those under which PCTEL will sell its Membership Interests.



                    (iii) Conditions of Approved Sale. If the Approved Sale is structured as a merger or
consolidation, Eclipse shall waive any dissenters’ rights, appraisal rights or similar rights in
connection with such merger or consolidation. Eclipse shall take all necessary or desirable
actions in connection with the consummation of the Approved Sale as may reasonably be requested by
PCTEL. The obligations of Eclipse with respect to an Approved Sale are subject to the satisfaction
of the following conditions: (i) upon the consummation of the Approved Sale, both Members shall
receive the same form of consideration and the same amount of consideration for their Membership
Interests (subject to ratable adjustment for their relative Percentage Interests and taking into
account any differences in their Capital Accounts and the allocations and Distributions associated
with their Membership Interests); and (ii) if either Member is given an option as to the form and
amount of consideration to be received, both Members shall be given the same option. Each Member
will bear its pro rata share (subject to ratable adjustment for their relative Percentage
Interests) of the costs of any sale of Membership Interests pursuant to an Approved Sale to the
extent such costs are incurred for the benefit of both Members and are not otherwise paid by the
Company or the acquiring party. For purposes of this Section 9.6(B)(i), costs incurred in
exercising reasonable efforts to take all actions in connection with the consummation of an
Approved Sale shall be deemed to be for the benefit of all Members. Costs incurred by a Member on
its own behalf will not be considered costs of the transaction hereunder.



               (C) Failed Venture Election. If the Enterprise Value as of the end of the Second Call
Period is less than or equal to $4,900,000, PCTEL may make a Failed Venture Election
pursuant to Section 10.1(D).



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





     Section 9.7 Transfers Generally; Substituted Members; Rights and Obligations of
Transferees and Transferring Members



               (A) Requirements. Without limiting the provisions of the remainder of this ARTICLE
IX, a Transfer shall be valid hereunder only if:



                    (i) the Member proposing to make a Transfer of all or any portion of its Membership Interests
(the “Transferring Member”) and the Transferee each executes and delivers to the Company
such documents and instruments of conveyance as may be reasonably requested by the Board to effect
such Transfer and to confirm the agreement of the Transferee to be bound by the provisions of this
Agreement;



                    (ii) the Transferring Member and Transferee provide to the Board the Transferee’s taxpayer
identification number and any other information reasonably necessary to permit the Company to file
all required federal and state 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 in respect of any Membership
Interests transferred until the Board has received such information;



                    (iii) the Transferring Member furnishes to the Company (unless otherwise approved by the
Board) an opinion of counsel, which counsel and opinion shall be reasonably satisfactory to the
Board, that (a) the Transfer will not cause the Company to be deemed to be an “investment company”
under the Investment Company Act, (b) the Transfer will not cause the Company to be taxed as a
corporation pursuant to Section 7704 of the Code and will not result in a termination of the
Company within the meaning of Section 708 of the Code, and (c) either the Membership Interests
transferred have been registered under the Securities Act and any applicable state securities laws
or the Transfer is exempt from all applicable registration requirements and will not violate any
applicable laws regulating the Transfer of securities; and



                    (iv) the Transferring Member reimburses the Company for all costs and expenses that the
Company reasonably incurs in connection with the Transfer.



               (B) No Dissolution. A Transfer by a Member or other Person shall not itself dissolve
the Company or entitle the Transferee to become a Member or exercise any rights of a Member.



               (C) Voting. Except as the Board may otherwise provide in a written consent approving
the transfer of voting rights in connection with a proposed Transfer, such consent, if requested by
the Transferring Member, not to be unreasonably withheld, delayed or conditioned, a Transfer by a
Member shall eliminate the Member’s power and right to vote (in proportion to the extent of the
Membership Interests Transferred) on any matter submitted to the Members, and, for voting purposes,
such Membership Interests shall not be counted as outstanding in proportion to the extent of the
Membership Interests Transferred. A Transfer shall not otherwise



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 




eliminate the Member’s entitlement to any rights associated with the Member’s remaining
interest, including, without limitation, rights to information, and shall not cause the Member to
be released from any liability to the Company solely as a result of the Transfer.




               (D) Admission of Transferee as Member. A Transferee shall become a substituted Member
entitled to all the rights of a Member in respect of a Transferred Membership Interest if and only
if (i) the Transferring Member gives the Transferee such right (which shall be presumed in the case
of any voluntary Transfer unless the instrument of assignment expressly excludes such right), (ii)
either (a) such admission is approved by the Board or (b) such Transfer is a Permitted Transfer,
and (iii) the Transferee has agreed in writing to be bound by the provisions of this Agreement. If
the Transferee is admitted as a Member pursuant to this Section 9.7(D), (I) the voting and
other rights associated with the Membership Interest held by the Transferee shall be restored and
transferred to the Transferee and be held by the Transferee in its capacity as substituted Member
along with all other rights in respect of the Transferred Membership Interests and (II) this
Agreement shall be amended to admit such Transferee as a Member and to reflect the elimination of
the Transferring Member (or the reduction of such Membership Interest) and (if and to the extent
then required by the Act) a certificate of amendment to the Certificate reflecting such admission
and elimination (or reduction) shall be filed in accordance with the Act. The admission of any
substitute Member pursuant to this ARTICLE IX shall be deemed effective on the effective
date of such amendment to this Agreement. A Transferee that is not admitted as a Member pursuant to
this Section 9.7(D) shall be entitled only to the share in the Distributions and other
economic benefits in respect of the Transferred Membership Interests and shall have no other rights
(including, without limitation, rights to approve matters that require the unanimous approval of
all of the Members, or rights to any information or accounting of the affairs of the Company or to
inspect the books or records of the Company) in respect of the Transferred Membership Interests.
The Transferee shall have no liability as a Member solely as a result of the Transfer unless
admitted as a Member pursuant to this Section 9.7(D); provided, however, the Transferee
shall in all cases be subject to all of the Transfer restrictions and other obligations applicable
to a Member under this ARTICLE IX. The Company shall be entitled to treat the record owner
of any interest in the Company as the absolute owner thereof and shall incur no liability for
Distributions of cash or other property made in good faith to such owner until such time as a
written assignment of such Membership Interest is permitted pursuant to the terms and conditions
provided herein, and such assignment has been received and approved by the Board and has been
recorded on the books of the Company.



               (E) Release. Notwithstanding the admission of a Transferee as a Member, unless
released by the Board, the Transferring Member shall not be released from any obligations to the
Company existing as of the date of the Transfer (other than obligations of the Transferring Member
to make future Capital Contributions), but such admission shall cause the Transferring Member to
cease to be a Member in respect of the Membership Interests transferred when the Transferee becomes
a Member. In any such case, the admission of the Transferee as a Member shall constitute the
requisite consent of the Members to continue the business of the Company



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







notwithstanding that such admission will cause the termination of the membership of the
Transferring Member in respect of the Membership Interests transferred.



     Section 9.8 Distributions and Allocations Regarding Transferred Membership Interests



          Upon any Transfer during any Taxable Year of the Company made in compliance with the
provisions of this ARTICLE IX, profits, losses, each item thereof and all other items
attributable to such Membership Interests for such Taxable Year shall be divided and allocated
between the Transferring Member and the Transferee by taking into account the periods of time of
their respective Membership Interests during such Taxable Year, using any conventions permitted by
law and selected by the Board. All Distributions on or before the date of such Transfer shall be
made to the Transferring Member and all Distributions thereafter shall be made to the Transferee.
Solely for purposes of making such allocations and Distributions, the Company shall recognize such
Transfer not later than the end of the calendar month during which it is given notice of such
Transfer, provided that, if the Company is given notice of a Transfer at least ten (10)
Business Days prior to the Transfer, the Company shall recognize such Transfer as the date of such
Transfer, and provided, further, that, if the Company does not receive a notice
stating the date such Membership Interest was transferred and such other information as the Board
may reasonably require within thirty (30) days after the end of the Taxable Year during which the
Transfer occurs, then all such items shall be allocated, and all Distributions shall be made, to
the Member that, according to the books and records of the Company, was the owner of the Membership
Interests on the last day of the Taxable Year during which the Transfer occurs. Neither the Company
nor the Board shall incur any liability for making allocations and Distributions in accordance with
the provisions of this Section 9.8, whether or not the Company or the Board has knowledge
of any Transfer of any Membership Interests.




     Section 9.9 Resignation



          No Member shall have the right to resign or withdraw as a Member without the prior written
approval of all of the Members, which each Member may give or withhold in its sole and absolute
discretion. Any Member that resigns without the approval of all of the Members in contravention of
this Section 9.9 shall be liable to the Company for all damages (including all lost profits
and special, indirect and consequential damages) directly or indirectly caused by the resignation
of such Member, and such Member shall be entitled to receive the fair value of its Membership
Interest as of the date of its resignation (or, if less, the fair value of its interest as of the
winding-up of the Company), as conclusively determined by the Board, only following the occurrence
of the winding-up of the Company.




     Section 9.10 No Appraisal Rights



          No Member shall be entitled to any appraisal rights in respect of such Member’s Membership
Interest, whether individually or as part of any class or group of Members, in the






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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







event of a merger, consolidation, or other transaction involving the Company or its securities
unless such rights are expressly provided herein or by the agreement of merger, agreement of
consolidation or other document effectuating such transaction.




     Section 9.11 Void Assignment



          Any Transfer by any Member in contravention of this Agreement shall be void and ineffectual
and shall not bind or be recognized by the Company or any other Person. In the event of any
Transfer in contravention of this Agreement, the purported transferee shall have no right to any
profits, losses or Distributions of the Company or any other rights of a Member.




ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION




     Section 10.1 Dissolution



          The Company shall be dissolved and its affairs shall be wound up on the first to occur of the
following:




               (A) the unanimous approval of all of the Members as evidenced by each Member’s written
direction to its respective Board members to approve such termination;



               (B) the sale by the Company of substantially all of its business assets;



               (C) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the
Act; and



               (D) at the election of PCTEL in the event of a Failed Venture at any time within the nine (9)
month period following the end of the Second Call Period (a “Failed Venture Election”).


The death, retirement, resignation, expulsion, incapacity, bankruptcy or dissolution of a Member,
or the occurrence of any other event that terminates the continued membership of a Member in the
Company, shall not cause a dissolution of the Company, and the Company shall continue in existence
subject to the terms and conditions of this Agreement.




     Section 10.2 Liquidation and Termination



               (A) Board as Liquidator. Upon dissolution of the Company, the Board shall act as
liquidator or may appoint one or more Officers as liquidator. The liquidator shall thereafter use
commercially reasonable efforts to wind up the affairs of the Company, sell the Company’s assets at
the best price available and make final Distributions as provided herein and in the Act.



               (B) Liquidation Procedures. The costs of liquidation shall be borne as a Company
expense. Until final Distribution, the liquidator shall continue to operate the Company with all



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







of the power and authority of the Board. The steps to be accomplished by the liquidator are as
follows:



                    (i) As promptly as possible after dissolution and again after final liquidation, the
liquidator(s) shall cause a proper accounting to be made by a recognized firm of certified public
accountants of the Company’s assets, liabilities and operations through the last day of the
calendar month in which the dissolution occurs or the final liquidation is completed, as
applicable.



                    (ii) The liquidator(s) shall cause the notice described in the Act to be mailed to each known
creditor of and claimant against the Company in the manner described thereunder.



                    (iii) The liquidator(s) shall pay, satisfy or discharge from Company funds all of the debts,
liabilities and obligations of the Company (including, without limitation, all obligations then
outstanding with respect to the PCTEL Line of Credit and all expenses incurred in liquidation) or
otherwise make adequate provision for payment and discharge thereof (including, without limitation,
the establishment of a cash fund for contingent liabilities in such amount and for such term as the
liquidator may reasonably determine).



                    (iv) The balance, if any, of the Company’s remaining assets shall be distributed to the
Members in the order and priority set forth in Section 5.3; provided, however, that in
connection with a liquidation following a Failed Venture Election, (a) the Company’s intellectual
property, and all tangible personal property containing same, shall be conveyed to PCTEL, and all
Members shall execute such agreements and instruments as may reasonably be required to vest or
confirm title to same in PCTEL, without payment of additional consideration, and (b) PCTEL and
Eclipse shall enter into a license agreement substantially in the form attached as Exhibit
D, with the license fees and royalties thereunder to be determined upon liquidation by a
mutually-acceptable intellectual property appraisal service (the “Intellectual Property License
Agreement”).


Distributions pursuant to this Section 10.2(B) shall be made by the end of the Taxable Year
of the Company during which the liquidation occurs (or, if later, ninety (90) days after the date
of the liquidation). Unless the liquidation follows a Failed Venture Election, the liquidator(s)
shall cause only cash, evidences of indebtedness and other securities to be distributed in any
liquidation. The Distribution of cash and/or property to a Member in accordance with the provisions
of this Section 10.2 constitutes a complete return to such Member of its Capital
Contributions and a complete distribution to the Member of its Membership Interests in all the
property owned by the Company and constitutes a compromise to which all Members have consented
within the meaning of the Act. The Distribution of cash and/or property to a Transferee who is not
a Member in accordance with the provisions of this Section 10.2 constitutes a complete
distribution to such Transferee of its Membership Interests in all property owned by the Company
and constitutes a compromise to which all Members have consented






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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







within the meaning of the Act. To the extent that a Member returns funds to the Company, it has no
claim against any other Member for those funds.




     Section 10.3 Deemed Distribution and Reconstitution



          Notwithstanding any other provision of this ARTICLE X, in the event the Company is
“liquidated” within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g), the Company’s
assets shall not be liquidated, the Company’s liabilities shall not be paid or discharged, and the
Company’s affairs shall not be wound up. Instead, the Company shall be deemed solely for income tax
purposes, to have contributed its assets to a newly-created income tax partnership in exchange for
such company’s assumption of the Company’s liabilities and equity interests in such new income tax
partnership. Immediately thereafter, the Company shall be deemed, solely for income tax purposes,
to have distributed the interest in the new income tax partnership to the Members in accordance
with their Capital Accounts.




     Section 10.4 Deficit Capital Accounts



          Notwithstanding any custom or rule of law to the contrary, to the extent that any Member has a
deficit Capital Account balance, upon dissolution of the Company such deficit shall not be an asset
of the Company and such Members shall not be obligated to contribute such amount to the Company to
bring the balance of such Member’s Capital Account to zero.




     Section 10.5 Cancellation of Certificate



          On completion of the Distribution of Company assets as provided herein, the Company is
terminated, and shall file a certificate of cancellation with the Secretary of State of the State
of Delaware, cancel any other filings made pursuant to Section 2.1 and take such other
actions as may be necessary to terminate the Company.




ARTICLE XI

ARBITRATION




     Section 11.1 Arbitration Required



               (A) Any and all Arbitrable Disputes that cannot be resolved between the Members, or a Member
and the Company, as applicable (the “Disputing Parties”), within thirty (30) days following
delivery of a written notice from one Disputing Party to the other(s) addressing such Arbitrable
Dispute, including the determination of the scope or applicability of this agreement to arbitrate,
shall be determined by arbitration in Chicago, Illinois, before one arbitrator (the
“Arbitrator”). The arbitration shall be administered by JAMS, Inc. pursuant to its
Streamlined Arbitration Rules and Procedures. Judgment on the arbitral award may be entered in any
court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies
in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the Award,
allocate all or part of the costs of the arbitration, including the fees of the arbitrator and



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







the reasonable attorneys’ fees of the prevailing party. If more than one issue shall be
submitted to the same Arbitrator for resolution, each such issue shall be deemed a separate
arbitration for all purposes hereof, such issues shall be identified separately by the Disputing
Parties in their submission to arbitration, and each such issue shall be subject to a separate
decision by the Arbitrator. Any Arbitrator appointed hereunder shall be mutually acceptable to the
Disputing Parties; provided, however, if the Disputing Parties are unable to mutually agree upon an
Arbitrator, each of the Disputing Parties shall appoint an arbitrator (an “Appointing
Arbitrator”) and such Appointing Arbitrators shall then mutually select an Arbitrator for the
applicable Arbitrable Dispute (but such Appointing Arbitrators shall not themselves administer or
be otherwise involved in such Arbitrable Dispute).



               (B) Notwithstanding anything in this ARTICLE XI to the contrary, the Disputing Parties
shall have the right to commence litigation or other legal proceedings with respect to any claims
solely relating to: (i) preserving or protecting Confidential Information, (ii) other emergency or
injunctive relief, or (iii) enforcement of the dispute resolution provisions of this Agreement
and/or any arbitration award.



               (C) Any litigation (permitted herein) or arbitration of an Arbitrable Dispute must be
initiated within one (1) year from the date on which any Disputing Party first gave written notice
to the other Disputing Party(ies) of the existence of the Arbitrable Dispute, and any Disputing
Party who fails to commence litigation or arbitration within such one-year period shall be deemed
to have waived any of its affirmative rights and claims in connection with the Arbitrable Dispute
and shall be barred from asserting such rights and claims at any time thereafter. An arbitration
shall be deemed commenced by a Disputing Party when such Disputing Party sends a notice to the
other Disputing Party(ies), identifying the Arbitrable Dispute and requesting arbitration.
Litigation shall be deemed commenced by a Disputing Party when such Disputing Party serves a
complaint on the other Member(s) with respect to the Arbitrable Dispute.



     Section 11.2 GOVERNING LAW; DAMAGE RESTRICTIONS



          THE ARBITRATOR SHALL HAVE NO AUTHORITY TO VARY OR IGNORE THE TERMS OF THIS AGREEMENT, SHALL BE
BOUND BY SECTION 12.16 WITH RESPECT TO GOVERNING LAW, AND SHALL BE BOUND BY SECTION
12.14 WITH RESPECT TO DAMAGES. ALL PROCEEDINGS, AWARDS AND DECISIONS UNDER ANY ARBITRATION
PROCEEDING SHALL BE STRICTLY PRIVATE AND CONFIDENTIAL.




     Section 11.3 Compensation of Arbitration Tribunal



          As soon as practicable after selection of the Arbitration Tribunal, the Arbitration Tribunal
or its designated representative shall determine a reasonable estimate of the anticipated fees and
costs, and send a statement to each Disputing Party setting forth that Disputing Party’s share of
the fees and costs, which shall be proportional to their respective Percentage Interests. Within
ten






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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







(10) days after receipt of the statement, each Disputing Party shall deposit the required sum
with the Arbitration Tribunal, as applicable.




ARTICLE XII

GENERAL/MISCELLANEOUS PROVISIONS




     Section 12.1 Offset



          Whenever the Company is to pay any sum to any Member, any amounts that such Member owes to the
Company may be deducted from that sum before payment; provided, however, that the full
amount that would otherwise be distributed shall be debited from the Member’s Capital Account
pursuant to Section 4.1.




     Section 12.2 Waiver of Certain Rights



          Except as expressly provided herein, each Member irrevocably waives any right it may have to
demand any distributions or withdrawal of property from the Company or to maintain any action for
dissolution (except pursuant to Section 18-802 of the Act) of the Company or for partition of the
property of the Company.




     Section 12.3 Indemnification and Reimbursement for Payments on Behalf of a Member



          If the Company is obligated to pay any amount to a Governmental Body because of a Member’s
status or otherwise specifically attributable to a Member (including, without limitation, federal,
state or local withholding taxes imposed in respect of any issuance of Membership Interests to a
Member or any payments to a Member, federal withholding taxes in respect of foreign Persons, state
personal property taxes, state personal property replacement taxes, state unincorporated business
taxes, etc.), then such Member (the “Indemnifying Member”) shall indemnify the Company in
full for the entire amount paid. At the option of the Board, either:




               (A) promptly upon notification of an obligation to indemnify the Company, the Indemnifying
Member shall make a cash payment to the Company equal to the full amount to be indemnified
(provided that the amount paid shall not be treated as a Capital Contribution); or



               (B) the Company shall reduce Distributions that would otherwise be made to the Indemnifying
Member, until the Company has recovered the amount to be indemnified (provided that the amount of
such reduction shall be deemed to have been distributed for all purposes of this Agreement).


An Indemnifying Member’s obligation to indemnify the Company under this Section 12.3 shall
survive the termination, dissolution, liquidation and winding up of the Company and, for purposes
of this Section 12.3, the Company shall be treated as continuing in existence. The






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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 







Company may pursue and enforce all rights and remedies it may have against each Indemnifying Member
under this Section 12.3, including instituting a lawsuit to collect any amounts owed to the
Company by such Indemnifying Member pursuant to this Section 12.3 with interest calculated
at the Prime Rate plus one hundred (100) basis points per annum (but not in excess of the highest
rate per annum permitted by law).




     Section 12.4 Notices



          Except as expressly set forth to the contrary in this Agreement, all notices, demands or other
communications to be given or delivered under or by reason of the provisions of this Agreement must
be in writing and shall be deemed delivered: (i) upon delivery if delivered in person; (ii) if
mailed by deposit in the United States mail, addressed to the recipient, postage paid, and
registered or certified with return receipt requested, then upon the date indicated in such return
receipt; (iii) upon transmission if sent via telecopier, with a confirmation copy sent via a
national overnight courier for next Business Day delivery, provided that confirmation of such
overnight delivery is received; or (iv) one (1) Business Day after deposit with a national
overnight courier for next Business Day delivery, provided that confirmation of such overnight
delivery is received. All notices, requests and consents to be sent to a Member must be sent to or
made at the address (or facsimile number) given for that Member on Exhibit C, or such other
address (or facsimile number) as that Member may specify by notice to the other Members. Copies
thereof must be sent to each Member’s legal counsel, as such counsel shall have been designated by
each Member to the Company from time to time. Any notice, request or consent to the Company or the
Board must be given to the Board and, if appointed, the Secretary of the Company at the Company’s
chief executive offices. Whenever any notice is required to be given by law or this Agreement, a
written waiver thereof, signed by the Person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.




     Section 12.5 Public Announcements



          No Member shall make any public announcement or filing in respect of the transactions provided
for herein without the approval of the Board, unless such Member has been advised by counsel such
disclosure is required by applicable law. To the extent reasonably feasible, any press release or
other announcement or notice regarding the transactions contemplated by this Agreement shall be
made by the Board or any other party designated by the Board.




     Section 12.6 Entire Agreement



          This Agreement and other written agreements among the Members and their Affiliates relating to
the Company of even date herewith constitute the entire agreement among the Members relating to the
Company and supersede all prior contracts or agreements in respect of the Company, whether oral or
written.







54



 



			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








     Section 12.7 Effect of Waiver or Consent



          A waiver or consent, express or implied, of or to any breach or default by any Person in the
performance by that Person of its obligations hereunder or in respect of the Company is not a
consent or waiver of or to any other breach or default in the performance by that Person of the
same or any other obligations of that Person hereunder or in respect of the Company. Failure on the
part of a Person to complain of any act of any Person or to declare any Person in default hereunder
or in respect of the Company, irrespective of how long that failure continues, does not constitute
a waiver by that Person of its rights in respect of that default until the applicable
statute-of-limitations period has run.




     Section 12.8 Amendment or Modification



          This Agreement and any provision hereof may be amended or modified from time to time only by a
written instrument approved by the Board on the terms set forth in Section 6.1(A) or by a
Member or Members holding a majority of the Membership Interests; provided, however, that for so
long as Eclipse holds Membership Interests, any amendment of this Agreement involving (a) any
change in the relative rights and preferences of the Members, (b) the issuance of additional
Membership Interests of any class or description, or rights exercisable for same, (c) any change to
the First Call Matrix or the Second/Third Call Matrix, or (d) any change to Section 6.1(A)
shall require the unanimous approval of the Members.




     Section 12.9 Severability



          In the event that any one or more of the phrases, sentences, sections, articles or sections
contained in this Agreement shall be declared invalid or unenforceable by order, decree or judgment
of any court having jurisdiction, or shall be or become invalid or unenforceable by virtue of any
applicable law, the remainder of this Agreement shall be construed as if such phrases, sentences,
sections, articles or sections had not been inserted except when such construction (i) shall
operate as an undue hardship on any Member or (ii) shall constitute a substantial deviation from
the general intent and purposes of the Members as reflected in this Agreement. In the event of
either (i) or (ii) above, the Members shall use commercially reasonable efforts to negotiate a
mutually satisfactory amendment to this Agreement to circumvent such adverse construction. If no
such amendment has been agreed upon within sixty (60) days, the Members shall submit the matter to
arbitration in accordance with the provisions of ARTICLE XI.




     Section 12.10 Successors and Assigns



          Except as otherwise provided herein, this Agreement is binding on and shall inure to the
benefit of the parties hereto and their respective heirs, legal representatives, administrators,
executors, successors and permitted assigns.




     Section 12.11 Further Assurances



55



 



			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          In connection with this Agreement and the transactions contemplated hereby, each Member shall
execute and deliver any additional documents and instruments and perform any additional acts that
may be necessary or appropriate to effectuate and perform the provisions of this Agreement and
those transactions.




     Section 12.12 Notice to Members of Provisions



          By executing this Agreement, each Member acknowledges that it has actual notice of (i) all of
the provisions hereof (including, without limitation, the restrictions on the transfer set forth in
ARTICLE IX) and (ii) all of the provisions of the Certificate.




     Section 12.13 Prevailing Parties



          If any litigation or other court action, arbitration or similar adjudicatory proceeding is
commenced by any Member to enforce its rights under this Agreement against any other Member, all
fees, costs and expenses, including, without limitation, reasonable attorneys fees and court costs,
incurred by the prevailing Member in such litigation, action, arbitration or proceeding shall be
reimbursed by the losing Member; provided, however, that if a Member to such litigation, action,
arbitration or proceeding prevails in part, and loses in part, the court, arbitrator or other
adjudicator presiding over such litigation, action, arbitration or proceeding shall award a
reimbursement of the fees, costs and expenses incurred by such Member on an equitable basis.




     Section 12.14 WAIVER OF CERTAIN DAMAGES



          NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR UNDER APPLICABLE LAW, EACH
MEMBER (FOR ITSELF AND ITS LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS) HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES AND DISCLAIMS ALL RIGHTS TO CLAIM OR SEEK (WHETHER ON BEHALF OF IT OR THE
COMPANY) ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, STATUTORY OR TREBLE DAMAGES AND ACKNOWLEDGES AND
AGREES THAT THE RIGHTS AND REMEDIES IN THIS AGREEMENT WILL BE ADEQUATE IN ALL CIRCUMSTANCES FOR ANY
CLAIMS THE MEMBERS OR THE COMPANY MIGHT HAVE WITH RESPECT THERETO.




     Section 12.15 Third Parties



          Nothing herein expressed or implied is intended or shall be construed to confer upon or give
to any person or entity, other than the parties to this Agreement, any Persons entitled to
indemnification by the Company or a Member under an express provision of this Agreement, and each
of their respective successors and permitted assigns, any rights or remedies under or by reason of
this Agreement.




     Section 12.16 Governing Law



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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF DELAWARE EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.




     Section 12.17 Waiver of Jury Trial



          The parties to this Agreement each hereby waives, to the fullest extent permitted by law, any
right to a jury trial of any claim, demand, action, or cause of action (i) arising under this
Agreement or (ii) in any way connected with or related or incidental to the dealings of the parties
hereto in respect of this Agreement or any of the transactions related hereto, in each case whether
now existing or hereafter arising, and whether in contract, tort, equity or otherwise. The parties
to this Agreement each hereby agrees and consents that, subject to ARTICLE XI, any such
claim, demand, action, or cause of action shall be decided by court trial without a jury and that
the parties to this Agreement may file an original counterpart of a copy of this Agreement with any
court as written evidence of the consent of the parties hereto to the waiver of their right to
trial by jury.




     Section 12.18 Counterparts; Facsimile



          This Agreement may be executed in multiple counterparts with the same effect as if all signing
parties had signed the same document. All counterparts shall be construed together and constitute
the same instrument. This Agreement may be executed by the parties and transmitted by facsimile and
when it is executed and transmitted in such manner this Agreement shall be for all purposes as
effective as if the party(s) had delivered an executed original of this Agreement.




     Section 12.19 Descriptive Headings



          The descriptive headings of this Agreement are inserted for convenience only and do not
constitute a substantive part of this Agreement.




     Section 12.20 Conflicts



          In the event of a direct conflict between the provision of this Agreement and any provision of
the Certificate or any mandatory provision of the Act, the applicable provision of the Certificate
or the Act shall control. Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of any other provision of this Agreement in such jurisdiction
or affect the validity, legality or enforceability of any provision in any other jurisdiction, but
this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.







57



 



			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 








     Section 12.21 Time of the Essence; Computation of Time



          Time is of the essence for each and every provision of this Agreement. Whenever the last day
for the exercise of any privilege or the discharge or any duty hereunder shall fall upon a
Saturday, Sunday, or any date on which banks in Chicago, Illinois are authorized to be closed, the
party having such privilege or duty may exercise such privilege or discharge such duty on the next
succeeding day which is a regular Business Day.




     Section 12.22 No Strict Construction



          The parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.




     Section 12.23 Organizational Expenses



          The Company shall pay to the Person entitled to such payment all fees and expenses incurred by
the Company and PCTEL in connection with the organization and formation of the Company, including,
but not limited to, all legal, accounting, and similar fees and expenses of the Company and PCTEL
(but not including fees and expenses incurred in the negotiation and execution of this Agreement,
the Contribution Agreement or related exhibits thereto, which shall be borne exclusively by the
Person incurring them).




* * * * * *




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	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”










 





          IN WITNESS WHEREOF, this Agreement has been executed by the Members as of the Effective Date.




	 	 	 	 	 
	 	PCTEL, INC.

 	 
	 	By:  	/s/ Martin H. Singer
 	 
	 	Name:  	Martin H. Singer 	 
	 	Its:  	Chief Executive Officer 	 
	 
	 	ECLIPSE DESIGN TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Thomas Smigelski
 	 
	 	Name:  	Thomas Smigelski 	 
	 	Its:  	President 	 
	 


The undersigned is executing this Agreement as a Restricted Member Affiliate solely for the
purposes of agreeing to the Restrictive Covenants set forth in Section 7.2:




	 	 	 	 	 
	/s/ Anthony Vitucci
 	 
	ANTHONY VITUCCI 	 












 

			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”





 








 








EXHIBIT A




MEMBERS AND CAPITAL CONTRIBUTIONS



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Capital	 	 	 	 	 	Percentage
	               Member	 	Contributions/Schedule	 	Agreed Value	 	Interest
	PCTEL, Inc.
	 	 	*	 	 	$	2,500,000	 	 	 	51	%
	Eclipse Design
Technologies, Inc.
	 	 	*	 	 	$	2,400,000	 	 	 	49	%








 




			
	*	 	All Capital Contributions are being made by the Members on the terms, and subject to the
conditions, of the Contribution Agreement.













 


			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”





 








 








EXHIBIT B



FIRST CALL MATRIX



Company Value (“CV”) equals one times the sum of trailing twelve month GAAP revenue plus non
cancelable GAAP revenue backlog deliverable within three months, measured as of the First Call Date



Enterprise Value (“EV”) equals CV less Net Indebtedness, measured as of the First Call Date,
provided that the minimum EV shall be $4.9 million.




SECOND/THIRD CALL MATRIX



Company Value (“CV”) equals 1.2 times the sum of trailing twelve month GAAP revenue plus non
cancelable GAAP revenue backlog deliverable within three months, measured as of the Second/Third
Call Date



Enterprise Value (“EV”) equals CV less Net Indebtedness, measured as of the Second/Third Call Date,
provided that the minimum EV shall be $4.9 million.



PUT MATRIX



EV equals $4.9 million.








 


			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”







 









 








EXHIBIT C




MEMBER NOTICE ADDRESSES



	 	 	 
	Member	 	Notice Address              
	PCTEL, Inc.

	 	471 Brighton Dr .
	 

	 	Bloomingdale, IL 60108
	 

	 	Fax: 630-233-8076
	 

	 	Attention: General Counsel
	 
	 	 
	Eclipse Design Technologies, Inc.

	 	33 West Higgins Road
	 

	 	Suite 650
	 

	 	South Barrington, IL 60010
	 

	 	Fax: 847.844.3731
	 

	 	Attention: President










 


			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”








 









 








EXHIBIT D




FORM OF INTELLECTUAL PROPERTY LICENSE AGREEMENT



[****]






 


			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”





 









 





SCHEDULE 6.2



OFFICERS




	 	 	 
	Office	 	Designee
	President

	 	Anthony Kobrinetz
	 
	 	 
	Vice President — Finance

	 	John Schoen
	 
	 	 
	Vice President — Business Development

	 	Anthony Vitucci
	 
	 	 
	Secretary

	 	Shelley Bacastow








 


			
	*	 	Confidential portions of this exhibit have been redacted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request in
accordance with Rule 24b-2 promulgated under the Securities Exchange Act of 1934, as amended.
 Redacted portions are indicated with “[****].”