EXHIBIT "N"

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LIMITED LIABILITY COMPANY AGREEMENT

FOR

MICRON DEVICES LLC

A DELAWARE LIMITED LIABILITY COMPANY

THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN 

REGISTERED UNDER THE SECURITIES ACT OF 1933 NOR REGISTERED NOR 

QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY 

NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, 

PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER 

APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE 

OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, SUCH 

QUALIFICATION AND REGISTRATION IS NOT REQUIRED. ANY TRANSFER OF 

THE SECURITIES REPRESENTED BY THIS AGREEMENT IS FURTHER SUBJECT 

TO OTHER RESTRICTIONS, TERMS AND CONDITIONS WHICH ARE SET FORTH 

HEREIN.

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TABLE OF CONTENTS

PAGE

ARTICLE I DEFINITIONS...........................................................................................................1

1.1 Act..................................................................................................................................1

1.2 Additional Member........................................................................................................1

1.3 Adjusted Capital Account Deficit..................................................................................1

1.4 Affiliate..........................................................................................................................1

1.5 Agreement......................................................................................................................2

1.6 Board of Directors..........................................................................................................2

1.7 Capital Account .............................................................................................................2

1.8 Capital Contribution.......................................................................................................2

1.9 Certificate.......................................................................................................................2

1.10 Class A Director.............................................................................................................2

1.11 Class A Member ............................................................................................................2

1.12 Class A Unit...................................................................................................................2

1.13 Class B Director.............................................................................................................2

1.14 Class B Member.............................................................................................................2

1.15 Class B Unit...................................................................................................................2

1.16 Class C Member.............................................................................................................3

1.17 Class C Unit...................................................................................................................3

1.18 Code ...............................................................................................................................3

1.19 Company........................................................................................................................3

1.20 Company Notice ............................................................................................................3

1.21 Director ..........................................................................................................................3

1.22 Distributable Cash..........................................................................................................3

1.23 Fiscal Year .....................................................................................................................3

1.24 Industry Directors ..........................................................................................................3

1.25 Interest............................................................................................................................3

1.26 Liquidation Event...........................................................................................................3

1.27 Majority Interest.............................................................................................................4

1.28 Meetings.........................................................................................................................4

1.29 Member..........................................................................................................................4

1.30 Other Member................................................................................................................4

1.31 Other Member Notice ....................................................................................................4

1.32 Percentage Interest.........................................................................................................4

1.33 Person.............................................................................................................................4

1.34 Profits and Losses..........................................................................................................4

1.35 Proposed Transfer..........................................................................................................5

1.36 Proposed Transfer Notice ..............................................................................................5

1.37 Prospective Transferee...................................................................................................5

1.38 Proxy..............................................................................................................................5

1.39 Right of Co-Sale ............................................................................................................5

1.40 Right of First Refusal.....................................................................................................5

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1.41 Secondary Notice ...........................................................................................................5

1.42 Secondary Refusal Right................................................................................................5

1.43 Selling Member..............................................................................................................6

1.44 Service Provider.............................................................................................................6

1.45 Super Majority Interest ..................................................................................................6

1.46 Tax Matters Partner........................................................................................................6

1.47 Transfer Units ................................................................................................................6

1.48 Treasury Regulations.....................................................................................................6

1.49 Under Subscription Notice.............................................................................................6

1.50 Unit ................................................................................................................................6

1.51 WBCA............................................................................................................................6

ARTICLE II ORGANIZATIONAL MATTERS...........................................................................6

2.1 Formation.......................................................................................................................6

2.2 Name ..............................................................................................................................6

2.3 Term...............................................................................................................................6

2.4 Office and Agent............................................................................................................7

2.5 Names and Addresses of the Members and the Directors .............................................7

2.6 Purpose and Business of the Company..........................................................................7

2.7 Title to Company Property.............................................................................................7

2.8 Failure to Observe Formalities.......................................................................................7

2.9 No Partnership Intended for Nontax Purposes...............................................................7

2.10 Liability of Members and Directors to Third Parties; Reliance by Third-Party 

Creditors.....................................................................................................................................7

2.11 Relationship with Stimwave Technologies Incorporated ..............................................8

ARTICLE III CAPITAL CONTRIBUTIONS ..............................................................................8

3.1 Authorization and Issuance of Units..............................................................................8

3.2 Profits Interests ..............................................................................................................9

3.3 Initial Capital Contributions ..........................................................................................9

3.4 Additional Capital Contributions...................................................................................9

3.5 Capital Accounts............................................................................................................9

3.6 Book-Up of Company Assets......................................................................................10

3.7 Schedules .....................................................................................................................10

3.8 Rights Regarding Capital Contributions......................................................................10

3.9 Deficit Capital Accounts..............................................................................................10

ARTICLE IV MEMBERS ...........................................................................................................11

4.1 Procedures for Admission............................................................................................11

4.2 Limited Liability ..........................................................................................................11

4.3 Withdrawals or Resignations.......................................................................................11

4.4 Competing Activities...................................................................................................11

4.5 Transactions with the Company...................................................................................11

4.6 Remuneration to Members...........................................................................................11

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4.7 Members are not Agents..............................................................................................12

4.8 Voting Rights...............................................................................................................12

4.9 Certificate of Units.......................................................................................................12

4.10 Cancellation and Replacement of Certificates.............................................................12

4.11 Meetings of and Voting by Members ..........................................................................13

ARTICLE V MANAGEMENT AND CONTROL OF THE COMPANY..................................13

5.1 Management of the Company by Manager..................................................................13

5.2 Board of Directors........................................................................................................14

5.3 Election of Directors....................................................................................................15

5.4 Powers of Manager ......................................................................................................16

5.5 Performance of Duties; Liability of Directors; Fiduciary Standard.............................17

5.6 Devotion of Time.........................................................................................................17

5.7 Transactions between the Company and the Directors................................................17

5.8 Liability of Director Limited to Director’s Assets.......................................................18

5.9 Limited Liability ..........................................................................................................18

5.10 Officers ........................................................................................................................18

5.11 Tax Matters Partner......................................................................................................20

ARTICLE VI ALLOCATIONS OF PROFITS AND LOSSES AND DISTRIBUTIONS..........20

6.1 Allocations of Profits and Losses ................................................................................20

6.2 Special Allocations ......................................................................................................21

6.3 Curative Allocations ....................................................................................................21

6.4 Tax Elections ...............................................................................................................21

6.5 Transfer or Issuance of Units During Fiscal Year .......................................................21

6.6 Tax Allocations............................................................................................................22

6.7 Distributions by the Company. ....................................................................................22

ARTICLE VII TRANSFER AND ASSIGNMENT OF INTERESTS ........................................23

7.1 Transfer and Assignment of Interests..........................................................................23

7.2 Transfer in Violation of Agreement.............................................................................23

7.3 Right of First Refusal...................................................................................................24

7.4 Right of Co-Sale ..........................................................................................................25

7.5 Deadline .......................................................................................................................26

7.6 Permitted Transfers......................................................................................................26

7.7 Additional Requirement of Transferors and Transferees.............................................26

7.8 Failure to Comply ........................................................................................................27

ARTICLE VIII ACCOUNTING, RECORDS, REPORTING BY MEMBERS .........................27

8.1 Books and Records ......................................................................................................27

8.2 Reports.........................................................................................................................28

8.3 Bank Accounts.............................................................................................................28

ARTICLE IX DISSOLUTION AND WINDING UP..................................................................28

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9.1 Dissolution ...................................................................................................................28

9.2 Certificate of Dissolution.............................................................................................28

9.3 Winding Up..................................................................................................................29

9.4 Order of Payment Upon Dissolution............................................................................29

9.5 Limitations on Payments Made in Dissolution............................................................29

9.6 Distributions in Kind ...................................................................................................29

9.7 Certificate of Cancellation ...........................................................................................29

ARTICLE X INDEMNIFICATION AND INSURANCE...........................................................29

10.1 Limitation of Liability..................................................................................................29

10.2 Indemnification............................................................................................................30

10.3 Insurance ......................................................................................................................30

ARTICLE XI CONVERSION TO CORPORATION .................................................................30

11.1 Conversion to Corporation...........................................................................................30

11.2 Initial Public Offering Prior to Conversion to Corporation.........................................31

ARTICLE XII INVESTMENT REPRESENTATIONS..............................................................32

12.1 Preexisting Relationship or Experience .......................................................................32

12.2 Investment Intent .........................................................................................................32

12.3 Accredited Investor......................................................................................................32

12.4 Purpose of Entity..........................................................................................................32

12.5 Economic Risk.............................................................................................................32

12.6 No Registration of Units..............................................................................................32

12.7 Investment in Restricted Security ................................................................................32

12.8 No Obligations to Register...........................................................................................33

12.9 No Disposition in Violation of Law.............................................................................33

12.10 Investment Risk .....................................................................................................33

12.11 Investment Experience...........................................................................................33

12.12 Restrictions on Transferability...............................................................................33

12.13 Information Reviewed ...........................................................................................33

12.14 Tax Consequences .................................................................................................33

12.15 No Assurance of Tax Benefits...............................................................................33

12.16 Indemnity ...............................................................................................................34

ARTICLE XIII MISCELLANEOUS ..........................................................................................34

13.1 Counsel to the Company..............................................................................................34

13.2 Complete Agreement ...................................................................................................34

13.3 Binding Effect..............................................................................................................34

13.4 Parties in Interest..........................................................................................................35

13.5 Pronouns; Statutory References...................................................................................35

13.6 Headings ......................................................................................................................35

13.7 Interpretation................................................................................................................35

13.8 References to this Agreement ......................................................................................35

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13.9 Jurisdiction...................................................................................................................35

13.10 Exhibits..................................................................................................................35

13.11 Severability ............................................................................................................35

13.12 Additional Documents and Acts............................................................................35

13.13 Notices ...................................................................................................................36

13.14 Amendments..........................................................................................................36

13.15 Confidentiality .......................................................................................................36

13.16 Reliance on Authority of Person Signing Agreement............................................36

13.17 No Interest in Company Property; Waiver of Action for Partition........................36

13.18 Multiple Counterparts............................................................................................37

13.19 Remedies Cumulative ............................................................................................37

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CONFIDENTIAL

LIMITED LIABILITY COMPANY AGREEMENT

FOR

MICRON DEVICES LLC

A DELAWARE LIMITED LIABILITY COMPANY

This Limited Liability Company Agreement is made as of July 31st, 2013, by and among 

the parties listed on the signature pages hereof, and such other Persons that may be admitted 

from time to time to the Company and as parties to this Agreement, with reference to the 

following facts:

A. On July 12, 2013, a Certificate of Formation for Micron Devices LLC (the 

“Company”), a limited liability company organized under the laws of the State of Delaware, was 

filed with the Delaware Secretary of State.

B. The Members now desire to execute this Agreement to provide terms to govern 

the Company.

NOW, THEREFORE, the parties by this Agreement set forth the operating agreement for 

the Company under the laws of the State of Delaware upon the terms and subject to the 

conditions of this Agreement.

ARTICLE I

DEFINITIONS

When used in this Agreement, the following terms shall have the meanings set forth 

below (all terms used in this Agreement that are not defined in this Article I shall have the 

meanings set forth elsewhere in this Agreement):

1.1 Act shall mean the Delaware Limited Liability Company Act, as the same may be 

amended from time to time, and the provisions of succeeding law.

1.2 Additional Member means a Person admitted to the Company as an additional 

Member pursuant to Section 4.1 and shown as a Member on the books and records of the 

Company.

1.3 Adjusted Capital Account Deficit means, with respect to any Member, the deficit 

balance, if any, in such Member’s Capital Account as of the end of any Fiscal Year (i) crediting 

such Capital Account with any amount that such Member is obligated to restore or is deemed to 

be obligated to restore pursuant to Treasury Regulations Sections 1.704-1(b)(2)(ii)(c), 1.704-

2(g)(1) and 1.704-2(i)(5), and (ii) debiting such Capital Account with the adjustments, 

allocations and distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 

(5) and (6).

1.4 Affiliate of a Member or Director shall mean any director, officer, shareholder, 

member, partner, employer, employee or agent of such Member or Director or any Person, 

directly or indirectly, through one or more intermediaries, controlling, controlled by, or under 

common control with a Member or Director, as applicable. The term “control,” as used in the 

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immediately preceding sentence, shall mean with respect to a corporation or limited liability 

company the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting 

rights attributable to the controlled corporation or limited liability company, and, with respect to 

any individual, partnership, trust, other entity or association, the possession, directly or 

indirectly, of the power to direct or cause the direction of the management or policies of the 

controlled entity.

1.5 Agreement shall mean this Limited Liability Company Agreement, as originally 

executed and as amended from time to time.

1.6 Board of Directors shall mean the collective group of Directors designated or elected 

by the Members pursuant to Section 5.3 hereof.

1.7 Capital Account shall mean, with respect to any Member, the capital account which 

the Company establishes and maintains for such Member pursuant to Section 3.5.

1.8 Capital Contribution shall mean any contribution by a Member of cash or property inkind to the capital of the Company. If the value of any such contributed amount is ever disputed 

and/or redetermined by the IRS to be greater or less than originally documented, then the 

accounts of the Company shall be adjusted to reflect any such finally determined or agreed 

amount accordingly (the “Capital Contribution Adjustment”), provided however, that any 

adjustment under this provision shall not entitle any such contributing Member to any claim or 

claims regarding any action, distribution, redemption, and any similar acts, that occurred before 

such Capital Contribution Adjustment was determined.

1.9 Certificate shall mean the Certificate of Formation for the Company originally filed 

with the Delaware Secretary of State and as amended from time to time.

1.10 Class A Director shall have the meaning set forth in Section 5.3(a).

1.11 Class A Member shall mean each Person (i) holding a Class A Unit and (ii) 

admitted to the Company as a Member.

1.12 Class A Unit shall mean a Unit designated on the date of issuance as a “Class A 

Unit.” Class A Units are voting interests in the Company.

1.13 Class B Director shall have the meaning set forth in Section 5.3(a).

1.14 Class B Member shall mean each Person (i) holding a Class B Unit and (ii) 

admitted to the Company as a Member.

1.15 Class B Unit shall mean a Unit designated on the date of issuance as a “Class B 

Unit.” Class B Units are voting interests in the Company.

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1.16 Class C Member shall mean each Person holding a Class C Unit.

1.17 Class C Unit shall mean a Unit designated on the date of issuance as a “Class C 

Unit.” Class C Units are non-voting interests in the Company and entitle a Class C Member to 

proceeds only upon a sale of substantially all of the assets of the Company.

1.18 Code shall mean the Internal Revenue Code of 1986, as amended from time to 

time (and corresponding provisions of succeeding law).

1.19 Company shall mean Micron Devices LLC, a Delaware limited liability company.

1.20 Company Notice means written notice from the Company notifying the Selling 

Members that it intends to exercise its Right of First Refusal as to some or all of the Transfer 

Units with respect to any Proposed Transfer.

1.21 Director shall mean each of the Directors elected by the Members and the 

Industry Directors elected by the Members, in each case pursuant to Section 5.3 hereof, or any 

other individuals that succeed him or her as a Director of the Company. Notwithstanding the 

foregoing, as of the Effective Date, each Director will already have been appointed.

1.22 Distributable Cash shall mean the amount of cash which the Board of Directors 

deems available for distribution to the Members, taking into account all debts, liabilities, and 

obligations of the Company then due, and working capital and other amounts which the Board of 

Directors deems necessary for the Company’s business or to place into reserves for customary 

and usual claims with respect to such business.

1.23 Fiscal Year shall mean the Company’s fiscal year, ending on each December 31, 

or such other taxable year as shall be required under the Code.

1.24 Industry Directors shall have the meaning set forth in Section 5.3(a).

1.25 Interest means the entire ownership interest (designated as any class of Units in 

the Company) of a Member in the Company at any particular time, including the right of such 

Member to any and all benefits to which a Member may be entitled as provided in this 

Agreement, together with the obligations of such Member to comply with all the terms and 

provisions of this Agreement.

1.26 Liquidation Event shall mean:

(a) a liquidation, dissolution or winding up of the Company;

(b) a sale of all or substantially all of the assets of the Company; or

(c) a merger or consolidation of the Company into another entity in which the 

Members of the Company retain less than a majority of the voting control of the surviving entity;

provided, that (1) a consolidation with a wholly-owned subsidiary of the Company; (2) a merger 

effected exclusively to change the domicile or corporate form of the Company, or (3) an equity 

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financing in which the Company is the surviving corporation, will be deemed not to be a 

“Liquidation Event” for purposes of the foregoing.

1.27 Majority Interest shall mean, with respect to any vote, approval, consent or other 

action in respect of a particular matter, greater than fifty percent (50%) of the Percentage 

Interests of the class or classes of Units entitled to vote or act on such matter, voting as a single 

class.

1.28 Meetings shall have the meaning set forth in Section 4.12.

1.29 Member shall mean each Person who is an initial signatory to this Agreement or 

has been admitted to the Company as a Member in accordance with the Certificate or this 

Agreement.

1.30 Other Member means a Member that is not a Selling Member.

1.31 Other Member Notice means written notice from an Other Member notifying the 

Company and the Selling Member that such Other Member intends to exercise its Secondary 

Refusal Right as to a portion of the Transfer Units with respect to any Proposed Transfer.

1.32 Percentage Interest means, with respect to any Member of a particular class or 

classes of Units on a particular date, the fraction, expressed as a percentage, the numerator of 

which is the number of Units of such class or classes held by such Member and the denominator 

of which is the total number of Units of such class or classes outstanding on such date.

1.33 Person shall mean an individual, partnership, limited partnership, limited liability 

company, corporation, trust, estate, association or any other entity.

1.34 Profits and Losses shall mean for each Fiscal Year or other period, the taxable 

income or taxable loss of the Company for such period determined in accordance with Code 

Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be 

separately stated pursuant to Code Section 703(a)(1) shall be included in taxable income or 

taxable loss), with the following adjustments:

(a) any income of the Company that is exempt from federal income tax and not 

otherwise taken into account in computing Profits or Losses shall be added to such taxable 

income or taxable loss;

(b) any expenditures of the Company described in Code Section 705(a)(2)(B) or 

treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 

1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits and Losses, shall 

be subtracted from such taxable income or taxable loss;

(c) in lieu of any depreciation, amortization and other cost recovery deductions 

taken into account in computing such taxable income or taxable loss, the Company shall 

compute such deductions based on the book value of the Company property, in accordance with 

Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3);

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(d) gain or loss resulting from a taxable disposition of Company property shall be 

computed by reference to the book value of such item of Company property disposed of, 

notwithstanding that the adjusted tax basis of such item of Company property differs from its 

book value;

(e) in the event that the book value of any Company property is adjusted to equal 

the fair market value of such Company property, pursuant to Section 3.6, the amount of any 

increase or decrease in such book value attributable to such adjustment will be taken into account 

as gain or loss from the disposition of such item of Company property for purposes of computing 

Profits and Losses;

(f) in the event that any item of Company property is distributed in-kind to a 

Member, the difference between the fair market value of such item of Company property and the 

adjusted tax basis of the Company in such item of Company property will be taken into account 

as gain or loss from the disposition of such item of Company property for purposes of computing 

Profits and Losses; and

(g) any income, gain, loss, or deduction specially allocated to the Members under 

Sections 6.2 or Section 6.3 shall not be taken into account in computing Profits or Losses.

1.35 Proposed Transfer means any proposed transfer or encumbering by a Selling 

Member of all or any portion of its Interests to any Person.

1.36 Proposed Transfer Notice means written notice from a Selling Member setting 

forth the terms and conditions of a Proposed Transfer.

1.37 Prospective Transferee means any Person to whom a Member proposes to make a 

Proposed Transfer.

1.38 Proxy shall have the meaning set forth in Section 4.12.

1.39 Right of Co-Sale means the right, but not an obligation, of an Other Member 

holding Units of the same class subject to the Proposed Transfer, to participate in a Proposed 

Transfer on the terms and conditions specified in the Proposed Transfer Notice.

1.40 Right of First Refusal means the right, but not an obligation, of the Company, or 

its permitted transferees or assigns, to purchase some or all of the Transfer Units with respect to 

a Proposed Transfer, on the terms and conditions specified in the Proposed Transfer Notice.

1.41 Secondary Notice means written notice from the Company notifying the Other 

Members and the Selling Member that the Company does not intend to exercise its Right of First 

Refusal as to all of the Transfer Units with respect to any Proposed Transfer.

1.42 Secondary Refusal Right means the right, but not an obligation, of each Other 

Member to purchase up to its pro rata portion (based upon the total number of Units then held by 

all Other Members) of any Transfer Units not purchased pursuant to the Right of First Refusal, 

on the terms and conditions specified in the Proposed Transfer Notice.

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1.43 Selling Member means any Member who proposes to make a Proposed Transfer.

1.44 Service Provider means any Director, officer, employee, consultant, independent 

contractor or other Person that provides services to or for the benefit of the Company, as 

determined by the Board of Directors in their sole and absolute discretion.

1.45 Super Majority Interest shall mean, with respect to any vote, approval, consent or 

other action in respect of a particular matter, greater than sixty-six percent (66%) of the 

Percentage Interests of the of the class or classes of Units entitled to vote or act on such matter, 

voting as a single class.

1.46 Tax Matters Partner means the Person designated as the “tax matters partner” of 

the Company pursuant to Section 5.11.

1.47 Transfer Units means Units subject to a Proposed Transfer.

1.48 Treasury Regulations means the income tax regulations promulgated under the 

Code, as such income tax regulations are amended from time to time (and corresponding 

provisions of succeeding regulations).

1.49 Under Subscription Notice means written notice from an Other Member notifying 

the Company and the Selling Member that such Other Member intends to exercise its option to 

purchase a portion of the Transfer Units not purchased or subscribed for pursuant to the Right of 

First Refusal or the Secondary Refusal Right.

1.50 Unit means that undivided Interest in the Company owned by a Member, 

including, without limitation, such Member’s rights to Profits, Losses and distributions of the 

Company.

1.51 WBCA shall mean the Delaware Business Corporations Act, as amended from 

time to time, and the provisions of succeeding law.

ARTICLE II

ORGANIZATIONAL MATTERS

2.1 Formation. The Members have formed a Delaware limited liability company under 

the laws of the State of Delaware by filing the Certificate with the Delaware Secretary of State 

and entering into this Agreement. The rights and liabilities of the Members shall be determined 

pursuant to the Act and this Agreement. To the extent that the rights or obligations of any 

Member are different by reason of any provision of this Agreement than they would be in the 

absence of such provision, this Agreement shall, to the extent permitted by the Act, control.

2.2 Name. The name of the Company shall be Micron Devices LLC. The business of the 

Company may be conducted under that name or, upon compliance with applicable laws, any 

other name that the Board of Directors deems appropriate or advisable.

2.3 Term. The term of the Company shall be perpetual, unless earlier dissolved or 

terminated pursuant to law or the provisions of this Agreement.

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2.4 Office and Agent. The Company shall continuously maintain an office and registered 

agent in the State of Delaware. The principal office of the Company shall be located at such 

place as the Board of Directors may determine. The Company may also have such offices, 

anywhere within and without the State of Delaware, as the Board of Directors may determine 

from time to time, or the business of the Company may require. The registered agent shall be as 

stated in the Certificate or as otherwise determined by the Board of Directors.

2.5 Names and Addresses of the Members and the Directors. The names and addresses 

of the Class A Members are set forth on Exhibit A. The names and addresses of the Class B 

Members are set forth on Exhibit B. The names and addresses of the Class C Members, as may 

be additionally established from time to time, are and will be set forth on Exhibit C. The names 

and address of the Directors are set forth on Exhibit D. A Member or Director may change its 

address upon notice thereof to the Company.

2.6 Purpose and Business of the Company. The Company has been formed for the 

purpose of (a) developing, enhancing, modifying, and otherwise increasing the value of and 

exploiting the assets of the Company via license, sale of rights, sale of products manufactured 

based on such rights, and any such other way that the Company may derive value or revenue 

from its assets, and (b) conducting any business that may lawfully be conducted by a limited 

liability company formed under the Act. The Company shall have all of the powers granted to a 

limited liability company under the laws of the State of Delaware.

2.7 Title to Company Property. All property owned by the Company shall be deemed to 

be owned by the Company as an entity, and no Member, individually, shall have any ownership 

interest in any such property.

2.8 Failure to Observe Formalities. A failure to observe any formalities or requirements 

of this Agreement, the Certificate or the Act shall not be grounds for imposing personal liability 

on the Members or the Directors for liabilities of the Company.

2.9 No Partnership Intended for Nontax Purposes. The Members intend that for state and 

federal law purposes nothing herein is intended to suggest that the Company be treated as a 

partnership (including, without limitation, a limited partnership) or joint venture, and that no 

Member be a partner or joint venturer of any other Member, and that this Agreement not be 

construed to suggest otherwise, provided, however, that the Company shall, solely for federal 

and state tax law purposes, be considered a partnership under the Internal Revenue Code and 

similar state tax law provisions.

2.10 Liability of Members and Directors to Third Parties; Reliance by Third-Party 

Creditors.

(a) Except as otherwise provided in the Act, no Member or Director shall be 

personally liable for any debt, obligation or liability of the Company, whether arising in contract 

or otherwise, by reason of being a Member or acting as a Director of the Company.

(b) This Agreement is entered into among the Company and the Members for the 

exclusive benefit of the Company, its Members, and their successors and assigns. This 

Agreement is expressly not intended for the benefit of any creditor of the Company or any other 

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Person. Except and only to the extent provided by applicable statute, no such creditor or third 

party shall have any rights under this Agreement or any agreement between the Company and 

any Member with respect to any contributions or otherwise.

2.11 Relationship with Stimwave Technologies Incorporated.

The Company and the Members acknowledge and agree that the Stimwave holds all Spinal Cord 

Stimulation (“SCS”) rights to any and all intellectual property currently or hereafter created by 

the Company with applications to Spinal Cord Stimulation. In the event that, in connection with 

the closing of a merger, sale of all or substantially all of ownership interest or assets of Stimwave 

to a third party, the Company hereby agrees to take any actions reasonably required to effectuate 

conditions as may be agreed upon by the Company, Stimwave, and such third parties in relation 

to SCS rights.

ARTICLE III

CAPITAL CONTRIBUTIONS

3.1 Authorization and Issuance of Units.

(a) The Company shall be authorized to issue one or more classes of Units. 

Initially, the Company shall have three (3) classes of Units as follows:

Class of Units Number of Units Authorized

Class A Units 5,960,005 [80%, fully diluted]

Class B Units 1,117,500 [15%, fully-diluted]

Class C Units 372,495 [5%, fully diluted]

Total Units Authorized 7,450,000

(b) The holders of each class of Units shall be entitled to the rights, subject to the 

obligations set forth herein, ascribed to such class. Any holder of a class of Units shall be 

referred to as a Member of such class of Units (e.g., a holder of Class A Units shall be referred to 

as a Class A Member). Any holder of more than one class of Units shall have separate rights 

under this Agreement with respect to each class of Unit held by such Member. For example, a 

holder of Class A Units, Class B Units and Class C Units shall be referred to and shall be treated 

separately in his, her or its separate capacities as a Class A Member, a Class B Member and a 

Class C Member. Issuance of Class C Units shall dilute Class A and Class B Units 

proportionately.

(c) Subject to the consent of the Members authorized to vote, the Board of 

Directors, at their sole discretion, shall have the power to issue the authorized Units on the terms 

and conditions determined by the Board of Directors without the amendment of this Agreement, 

and any additional issuances of Units may be dilutive proportionately to all Members. The 

Company shall not issue additional classes of Units or issue Units in excess of the authorized 

number without the written consent of a Majority Interest of all outstanding Class A Units and 

Class B Units.

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3.2 Profits Interests. The Company may issue Units that are intended to constitute 

“profits interests” for U.S. federal income tax purposes received for the provision of services to 

or for the benefit of the Company, in a Service Provider’s capacity as a member of the Company 

or in anticipation of being a member of the Company, within the meaning of IRS Revenue 

Procedure 93-27, 1993-1 C.B. 343. A portion of the Class B Units issued to the Class B 

Members upon formation of the Company are intended to be treated as “profits interests” to the 

extent such Units are not issued in exchange for such Class B Members’ initial Capital 

Contributions to the Company as set forth on Exhibit B. The terms, conditions and other 

provisions of this Agreement and any applicable award agreement with respect to Units intended 

to be treated as “profits interests” will be interpreted in a manner that is consistent with the 

requirements of IRS Revenue Procedure 93-27, 1993-1 C.B. 343. Unless otherwise in the best 

interest of the intended recipient of such Units due to amendments to the Code or other changes 

in law, a Service Provider who is issued such Units will not be obligated or required to make any 

Capital Contribution with respect to such Units, and the initial Capital Account of a Service 

Provider with respect to such Units will be zero (0) unless cash or property of value was 

contributed in exchange for any such Units. 

3.3 Initial Capital Contributions. Each Class A Member commits to contribute such 

amount in cash as set forth on Exhibit A as its initial Capital Contribution as soon as reasonably 

practicable upon or after execution of this Agreement, and will hold the number of Class A Units 

as set forth on Exhibit A. To the extent that such Class A Member fails to make such initial 

Capital Contribution, the Company shall hold the number of Class A Units assigned to such 

Member as set forth on Exhibit A until the end of the business day on March 16, 2015, at which 

time such Class A Units shall be forfeited to the Company for no consideration, except as 

otherwise determined in the sole discretion of the Board of Directors. Each Class B Member 

shall contribute such amount of cash or property as set forth on Exhibit B as its initial Capital 

Contribution, and will hold the number of Class B Units as set forth on Exhibit B. Each Class C 

Member shall contribute such amount of cash or property as set forth on Exhibit C as its initial 

Capital Contribution, and will hold the number of Class C Units as set forth on Exhibit C. 

3.4 Additional Capital Contributions. Additional Capital Contributions shall be made 

only with the approval of the Board of Directors.

3.5 Capital Accounts. The Company shall establish and maintain an individual Capital 

Account for each Member in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv). If 

a Member transfers all or a part of its Units in accordance with this Agreement, such Member’s 

Capital Account attributable to the transferred Units shall carry over to the new owner of such 

Units pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(l).

The initial Capital Account balances of the Members (on an aggregate basis by class of 

Members) shall be as follows:

Class Aggregate Capital Account Balance 

Class A Members $59,600.05, Cash contributions by Class A Members for 

80% interest at $.01/Unit.

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Class B Members $3,725.00, Agreed-upon value of IP contributed by Class B 

Members for initial 5% vested interest; remaining 10% 

interest subject to continued IP development over a four 

year period.

Class C Member $3,724.95, Agreed-upon value of IP contributed by Class C 

Member for 5% interest.

3.6 Book-Up of Company Assets. The book value of all Company assets will be adjusted, 

in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(f), to equal their respective 

gross fair market values, as determined in good faith by the majority of the Board of Directors, 

as of the following times: (i) the acquisition of an additional interest in the Company by any new 

or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the 

issuance of any Class B Units, in compliance with the requirements of applicable IRS Revenue 

Procedure 93-27, 1993-1 C.B. 343; (iii) the distribution by the Company to a Member of more 

than a de minimis amount of money or Company property as consideration for an interest in the 

Company; and (iv) the “liquidation” of the Company within the meaning of Treasury 

Regulations Section 1.704-1(b)(2)(ii)(g).

3.7 Schedules. The Board of Directors shall be authorized, with the prior consent of a 

Majority of the Members entitled to vote, to update Exhibit A, Exhibit B, Exhibit C and Exhibit 

D to this Agreement or to add additional exhibits from time to time to reflect the issuance of 

additional Units to the Members or Additional Members or the creation of an additional class. 

However, there shall be no updates made to Exhibit A or Exhibit D before January 1, 2015 

without full consent of the Board of Directors.

3.8 Rights Regarding Capital Contributions. No Member shall be entitled to interest on 

any Capital Contribution, and no Member shall have the right to withdraw or to demand the 

return of all or any part of its Capital Contribution, except as specifically provided in this 

Agreement.

(a) Under circumstances requiring a return of any Capital Contribution, no 

Member shall have the right to receive property, other than cash, except as may be specifically 

provided herein.

(b) No Member shall have personal liability for the repayment of the Capital 

Contribution of any Member or any obligation to make loans or advances to the Company, 

including restoration of a deficit Capital Account as provided in Section 3.9.

3.9 Deficit Capital Accounts. Notwithstanding anything to the contrary contained in this 

Agreement, and notwithstanding any custom or rule of law to the contrary, to the extent that any 

Member’s Capital Account has a deficit balance upon the “liquidation” of the Company within 

the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), such deficit shall not be an 

asset of the Company and such Member shall not be obligated to contribute such amount to the 

Company to bring the balance of such Member’s Capital Account to zero.

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ARTICLE IV

MEMBERS

4.1 Procedures for Admission. To effect the admission of a Member (including any 

Additional Member) to the Company, the Board of Directors shall require the Person to be so 

admitted to the Company to execute and deliver a counterpart signature page to this Agreement 

specifying the date of admission, such Person’s name and address, such Person’s Capital 

Contribution (if any) and the number and series of Units acquired thereby. The Board of 

Directors shall attach such counterpart signature page as a signature page to this Agreement.

4.2 Limited Liability. Except as required by law, no Member shall be personally liable 

for any debt, obligation, or liability of the Company, whether that liability or obligation arises in 

contract, tort, or otherwise.

4.3 Withdrawals or Resignations. So long as a Member continues to own or hold any 

Units, such Member shall not have the ability to resign or withdrawal as a Member prior to the 

dissolution and winding up of the Company and any such resignation, withdrawal or attempted 

resignation or withdrawal by a Member prior to the dissolution or winding up of the Company 

shall be null and void. As soon as any person who is a Member ceases to own or hold any Units, 

such Person shall no longer be a Member.

4.4 Competing Activities. The Members and their Affiliates may engage or invest in, 

independently or with others, any business activity of any type or description, including without 

limitation those that might be the same as or similar to the Company’s business and that might be 

in direct or indirect competition with the Company. Neither the Company nor any other Member 

shall have any right in or to such other ventures or activities or to the income or proceeds derived 

therefrom. The Members, in their capacities as such, shall not be obligated to present any 

investment opportunity or prospective economic advantage to the Company, even if the 

opportunity is of the character that, if presented to the Company, could be taken by the 

Company. The Members shall have the right to hold any investment opportunity or prospective 

economic advantage for their own account or to recommend such opportunity to Persons other 

than the Company. Each Member acknowledges that the other Members and their Affiliates 

conduct other businesses, including businesses that may compete with the Company and for the 

Members’ time. Each Member hereby waives any and all rights and claims that they may 

otherwise have against the other Members and their Affiliates as a result of any of such 

activities. Notwithstanding the foregoing or any other provision of this agreement, each Member 

acknowledges and agrees that it shall remain bound by any non-disclosure agreement or 

confidentiality agreement entered into with the company, pursuant to the terms of such 

agreements.

4.5 Transactions with the Company. With the prior approval of the Board of Directors, a 

Member may lend money to and transact other business with the Company. Subject to applicable 

law, such Member has the same rights and obligations with respect thereto as a Person who is not 

a Member.

4.6 Remuneration to Members. No Member is entitled to remuneration for acting in the 

Company business.

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4.7 Members are not Agents. Pursuant to Section 5.1 and the Certificate, the management 

of the Company is vested in the Manager, with advice and consent of the Board of Directors as 

set forth in this Agreement. The Members shall have no power to participate in the management 

of the Company except as expressly authorized by this Agreement or the Certificate and except 

as expressly required by the Act. No Member, acting solely in the capacity of a Member, is an 

agent of the Company nor does any Member, unless expressly and duly authorized in writing to 

do so by the Manager or the Board of Directors, have any power or authority to bind or act on 

behalf of the Company in any way, to pledge its credit, to execute any instrument on its behalf or 

to render it liable for any purpose.

4.8 Voting Rights. Except as expressly provided in this Agreement, Members shall have 

no voting, approval or consent rights. Class A Units and Class B Units shall be voting, provided 

that the right to vote with respect to any particular matter or act shall only be as provided for 

herein. For purposes of determining the voting interest of a Member, a Member’s voting power 

shall be based upon the number of Units held (of the applicable class or classes entitled to vote or 

act on such matter).

4.9 Certificate of Units. Upon the issuance of Units, which shall occur solely within the 

discretion of the Company unless otherwise required herein, the Company may, and upon the 

request of any Member shall at the cost of such Member, issue one or more Certificates, in such 

form as the Board of Directors may approve from time to time, in the name of each Member 

certifying that the Member named therein is a Member, stating the number and type of Units 

owned by such Member, and endorsed, with the following legends:

(a) “NEITHER THESE UNITS NOR ANY INTEREST THEREIN MAY BE 

SOLD, ASSIGNED OR TRANSFERRED UNLESS AN EFFECTIVE REGISTRATION 

STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, SHALL BE IN 

EFFECT WITH REGARD THERETO, OR UNLESS AN OPINION COUNSEL 

ACCEPTABLE TO THE COMPANY SHALL BE RENDERED THAT SUCH DISPOSITION 

WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE 

SECURITIES LAWS.”

(b) “THIS CERTIFICATE AND THE UNITS REPRESENTED THEREBY ARE 

SUBJECT TO RESTRICTIONS ON TRANSFER, INCLUDING RIGHTS OF FIRST 

REFUSAL AND CO-SALES RIGHTS, SET FORTH IN THE LIMITED LIABILITY 

COMPANY AGREEMENT OF THE COMPANY. THE COMPANY WILL FURNISH A 

COPY OF SAID AGREEMENT TO THE HOLDER OF THIS CERTIFICATE UPON 

WRITTEN REQUEST AND WITHOUT CHARGE THEREFOR.”

4.10 Cancellation and Replacement of Certificates. Except as herein provided in this 

Section 4.10 with respect to lost, stolen, or destroyed certificates, no new certificates of 

membership shall be issued in lieu of previously issued certificates of membership until such 

previously issued certificates of membership shall have been surrendered and cancelled. All 

certificates of membership surrendered to the Company for transfer shall be cancelled.

(a) Replacement of Lost, Stolen, or Destroyed Certificate. Any Member claiming 

that its certificate of membership is lost, stolen, or destroyed may make an affidavit or 

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affirmation of that fact and request a new certificate. Upon the giving of a satisfactory indemnity 

to the Company as reasonably required by the Board of Directors, a new certificate may be 

issued at the cost of the requesting Member of the same tenor and representing the same 

membership as was represented by the certificate alleged to be lost, stolen, or destroyed.

4.11 Meetings of and Voting by Members. A meeting of the Members entitled to vote 

may be called at any time by the Board of Directors, the Manager(s) or by Members holding at 

least a Majority Interest of all outstanding Units entitled to vote. Meetings of the Members may 

be held upon three (3) days’ notice by first-class mail or 48 hours’ notice given personally or by 

telephone, telegraph, facsimile, telex, e-mail, or other similar means of communication. Any 

such notice shall be addressed or delivered to each Member entitled to vote at such Member’s 

address as it is shown upon the records of the Company. Notice by mail shall be deemed to have 

been given at the time a written notice is deposited in the United States mails, postage prepaid. 

Any other written notice shall be deemed to have been given at the time it is personally delivered 

to the recipient or is delivered to a common carrier for transmission, or actually transmitted by 

the person giving the notice by electronic means, to the recipient. Oral notice shall be deemed to 

have been given at the time it is communicated, in person or by telephone or wireless, to the 

recipient or to a person at the office of the recipient who the person giving the notice has reason 

to believe will promptly communicate it to the receiver.

(a) Members may participate in a meeting through use of conference telephone, 

electronic video screen communication, or other communications equipment, so long as all 

members participating in such meeting can hear one another.

(b) Any action required or permitted to be taken by the Members, individually or 

collectively, may be taken without a meeting by a consent in writing, if either (i) the action is 

taken by all Members entitled to vote on the action, or (ii) the action is taken by Members 

holding of record or otherwise entitled to vote in the aggregate no less than the minimum number 

of votes that would be necessary to authorize or take such action at a meeting at which all 

Members entitled to vote on the action were present and voted. Such action by written consent 

shall have the same force and effect as a vote of the Members at a meeting. A consent in writing 

may be provided by any Member to the Company by any of the methods set forth in Section 

12.13 below, including without limitation by facsimile or email, and such consent may be 

evidenced by the delivery of a signed consent or a writing via facsimile or email reflecting such 

Member’s approval of the consent or action.

ARTICLE V

MANAGEMENT AND CONTROL OF THE COMPANY

5.1 Management of the Company by Manager. The Company is a manager-managed 

limited liability company, and the business, property and affairs of the Company shall be 

managed and all powers of the Company shall be exercised by or under the direction as such, in 

and by one (1) manager (the “Manager”), and the Manager shall have full and complete 

authority, power, and discretion to manage and control the business, affairs, and properties of the 

Company, to make all decisions regarding those matters, and to perform any and all other acts or 

activities customary or incident to the management of the Company’s business. The initial 

Manager of the Company shall be Laura Perryman. The Manager’s management of the Company 

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shall be subject to the advice and consent of the Board of Directors in the case of Significant 

Matters and Decisions as set forth in Section 5.4 and further subject to the provisions of this 

Agreement relating to actions required to be approved by any Members.

5.2 Board of Directors. Meetings of the Board of Directors may be called by any Director

or by the Chairperson, Chief Executive Officer, Manager, President or the Secretary, as may be 

appointed from time to time. All meetings shall be held upon at least two (2) business days’ 

notice delivered personally or by telephone, telegraph, facsimile, telex, e-mail, or other similar 

means of communication. A notice need not specify the purpose of any meeting. Notice of a 

meeting need not be given to any Director who signs a waiver of notice or a consent to holding 

the meeting (which waiver or consent need not specify the purpose of the meeting) or an 

approval of the minutes thereof, whether before or after the meeting, or who attends the meeting 

without protesting, prior to its commencement, the lack of notice to such Director. All such 

waivers, consents and approvals shall be filed with the Company records or made a part of the 

minutes of the meeting. A majority of the Directors present, whether or not a quorum is present, 

may adjourn any meeting to another time and place with the consent of the Manager. If the 

meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment shall be 

given prior to the time of the adjourned meeting to the Directors who are not present at the time 

of the adjournment. Meetings of the Board of Directors may be held at any place within or 

without the State of Delaware which has been designated in the notice of the meeting or at such 

place as may be approved by the Board of Directors. Directors may participate in a meeting 

through use of conference telephone or similar communications equipment, so long as all 

Directors participating in such meeting can hear one another. Participation in a meeting in such 

manner constitutes a presence in person at such meeting. A majority of the Directors then 

serving on the Board of Directors constitutes a quorum of the Board of Directors for the 

transaction of business. Except to the extent that this Agreement expressly requires the approval 

of all Directors, every act or decision done or made by a majority of the Directors present at a 

meeting duly held at which a quorum is present is the act of the Board of Directors. A meeting 

at which a quorum is initially present may continue to transact business notwithstanding the 

withdrawal of Directors, if any action taken is approved by at least a majority of the required 

quorum for such meeting.

Any action required or permitted to be taken by the Board of Directors may be taken by 

the Board of Directors without a meeting, if all of the Directors individually or collectively 

consent in writing to such action. Such action by written consent shall have the same force and 

effect if taken at a meeting of the Board of Directors. A consent in writing may be provided by 

any Director to the Company by any of the methods set forth in Section 13.13 below, including 

without limitation by facsimile or email, and such consent may be evidenced by the delivery of a 

signed consent or a writing via facsimile or email reflecting such Director’s approval of the 

consent or action.

The provisions of this Section 5.2 govern meetings of the Board of Directors if the 

Directors elect, in their discretion, to hold meetings. However, nothing in this Section 5.2 or in 

this Agreement is intended to require that meetings of Board of Directors be held, it being the 

intent of the Members that meetings of Directors are not required.

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5.3 Election of Directors.

(a) Number, Term, and Qualifications. The Board of Directors of the Company 

shall be comprised of up to 5 directors, three (3) Class A Directors, one (1) Class B Director, and 

one (1) Industry Director. So long as 75% of the outstanding Class A Units as of the Effective 

Date remain outstanding, a Majority Interest of the Members holding Class A Units shall be 

entitled to elect three (3) members of the Company’s Board of Directors (the “Class A 

Directors”). So long as 75% of Class B Units as of the Effective Date shall remain outstanding, a 

Majority Interest of the Members holding Class B Units shall be entitled to elect one (1) member 

of the Company’s Board of Directors (the “Class B Director”). Members holding a Majority 

Interest of all outstanding Class A Units and Class B Units shall be entitled to elect one (1) 

member of the Company’s Board of Directors, which director shall have reasonable experience 

related to the Company’s industry as determined by the Members holding a Majority Interest of 

all outstanding Class A Units and Class B Units in their sole discretion (the “Industry Director”). 

In the event the Class A Members or Class B Members are no longer entitled to elect as a class 

the relevant Directors, respectively, such director shall be elected by a Majority Interest of all 

outstanding Class A Units and Class B Units. 

Each Director shall serve until the earlier of (i) the election of such Director’s successor, 

(ii) the removal of such Director in accordance with this Agreement, (iii) such Director’s 

resignation and (iv) such Director’s death. A Director may, but need not be, a Member.

(b) Resignation. Any Director may resign at any time by giving written notice to 

the Company. The resignation of any Director shall take effect upon receipt of that notice or at 

such later time as shall be specified in the notice. Unless otherwise specified in the notice, the 

acceptance of the resignation shall not be necessary to make it effective.

(c) Removal. So long as the Members holding Class A Units are entitled to elect 

as a class the Class A Directors, a Class A Director may only be removed by a Majority Interest 

of the Members holding Class A Units, subject to the restrictions listed in Section 5.3(a). So long 

as the Members holding Class B Units are entitled to elect as a class the Class B Director, the 

Class B Director may only be removed by a Majority Interest of the Members holding Class B 

Units. The Industry Directors may only be removed by Members holding a Majority Interest of 

all outstanding Units entitled to vote. Subject to the foregoing sentences, any Class A Director or 

Industry Director may be removed at any time, with or without cause, subject to the restrictions 

listed in Section 5.3(a). Such removal may be at a meeting expressly for that purpose or by 

written consent of a Majority Interest of the outstanding Units of applicable class or classes.

(d) Vacancies. Subject to the restrictions listed in Section 5.3(a), so long as the 

Members holding Class A Units are entitled to elect as a class the Class A Directors, any 

vacancy in the Class A Directors occurring for any reason on the Board of Directors may be 

filled by a Majority Interest of the Members holding Class A Units. So long as the Members 

holding Class B Units are entitled to elect as a class the Class B Directors, any vacancy in the 

Class B Directors occurring for any reason on the Board of Directors may be filled by a Majority 

Interest of the Members holding Class B Units. Any vacancy in an Industry Director occurring 

for any reason on the Board of Directors may be filled by a Majority Interest of all outstanding 

Class A Units and Class B Units. Any other vacancy occurring for any reason on the Board of 

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Directors shall be filled by a Majority Interest of all outstanding Class A Units and Class B 

Units, each voting separately as a Class. Any such action may be at a meeting called expressly 

for that purpose or by the written consent of a Majority Interest of the outstanding Units of 

applicable class or classes.

5.4 Powers of Manager. Without limiting the generality of Section 5.1, but subject to 

Section 5.4 and to the express limitations set forth elsewhere in this Agreement, the Manager 

shall have all necessary powers to manage and carry out the purposes, business, property, and 

affairs of the Company, including, without limitation, the power to exercise on behalf and in the 

name of the Company all of the powers described in the Act.

(a) Significant Acts and Matters. The Manager shall not perform any of the 

following acts (each a “Significant Act and Matter”) without the prior consent of the Board of 

Directors:

(i) make, or permit any subsidiary to make, any loan or advance to 

any person or entity, including, without limitation, any employee or director of the Company or 

any subsidiary, except advances and similar expenditures in the ordinary course of business or 

under the terms of an employee stock or option plan approved by the Board of Directors;

(ii) guarantee, directly or indirectly, or permit any subsidiary to 

guarantee, directly or indirectly, any indebtedness except for trade accounts of the Company or 

any subsidiary arising in the ordinary course of business;

(iii) incur any aggregate indebtedness in excess of $25,000 that is not 

already included in a budget approved by the Board of Directors, other than trade credit incurred 

in the ordinary course of business; and

(iv) enter into any corporate strategic relationship involving the 

payment, contribution, or assignment by the Company or to the Company of money or assets 

greater than $50,000.

(b) Voting Rights of the Members.

(i) Notwithstanding any other provisions of this Agreement, so long 

as at least an aggregate of 75% of the Class A Units are outstanding, neither the Manager nor the 

Board of Directors shall have the authority hereunder to cause the Company to engage in the 

following transactions without first obtaining the affirmative vote or written consent of a 

Majority Interest of the outstanding Class A Units, voting together as a separate class:

(1) To amend the Agreement in a manner that would materially 

and adversely alter or change the rights, preferences or privileges of the Members holding Class 

A Units; provided, that the amendment of the Agreement to issue additional units of a different 

class on a parity or junior basis with the Class A Units, or the approval of any matter for which a 

Majority Interest is required pursuant to clause (ii) of this Section 5.4(b), shall not be considered 

to be amendments that would materially and adversely alter or change the rights, preferences or 

privileges of the Class A Members;

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(2) To authorize the issuance of a class of units having a 

preference over the Class A Units; provided, that the granting of a distribution preference to a 

new class of units with respect to specific property or assets contributed by the holders of such 

units to the Company in connection with the issuance of such units shall not be considered to be 

the authorization of the issuance of a class of units having a preference over the Class B Units;

and

(3) To increase or decrease the number of authorized Class A 

Units (other than a decrease to eliminate authorized but unissued Class A Units).

(ii) Notwithstanding any other provisions of this Agreement, neither 

the Manager nor the Board of Directors shall have authority hereunder to cause the Company to 

engage in the following transactions without first obtaining the affirmative vote or written 

consent of a Majority Interest of the outstanding Units, voting together as a single class:

(1) To take any action that would constitute a Liquidation Event;

(2) To redeem, purchase or otherwise acquire (or pay into or set 

aside for a sinking fund for such purpose) any Unit.

(c) Creation of Committees. The Manager may create committees to assist the 

Board of Directors and the officers in the governance of areas of importance to the Company. 

Subject to the terms of this Agreement, such committees shall have such powers and perform 

such duties as may be prescribed by the resolutions creating such committees.

5.5 Performance of Duties; Liability of Directors; Fiduciary Standard. A Director shall 

not be liable in such capacity to the Company or to any Member for any loss or damage 

sustained by the Company or any Member, unless the loss or damage shall have been the result 

of fraud, deceit, gross negligence, reckless or intentional misconduct, or a knowing violation of 

law by the Director. The Directors shall perform their managerial duties in good faith, in a 

manner they reasonably believe to be in the best interests of the Company and its Members, and 

with such care as an ordinarily prudent person in a like position would use under similar 

circumstances. The Members agree that the fiduciary duties of a Director to the Company and its 

Members shall be those of a director to a corporation and its shareholders under the WBCA and 

not those of a partner to a partnership and its partners. Any Director who performs the duties of 

Director in compliance with this Section 5.5 shall not have any liability by reason of being or 

having been a Director of the Company.

5.6 Devotion of Time. Except for Directors who are full time employees of the Company, 

Directors are not obligated to devote all of their time or business efforts to the affairs of the 

Company. The Directors shall devote whatever time, effort, and skill as they deem appropriate 

for the operation of the Company.

5.7 Transactions between the Company and the Directors. Notwithstanding that it may 

constitute a conflict of interest, the Directors may, and may cause their Affiliates to, engage in 

any transaction (including, without limitation, the purchase, sale, lease, or exchange of any 

property or the rendering of any service, or the establishment of any salary, other compensation, 

or other terms of employment) with the Company so long as (i) such transaction is not expressly 

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prohibited by this Agreement and the terms and conditions of such transaction, on an overall 

basis, are fair and reasonable to the Company and are at least as favorable to the Company as 

those that are generally available from Persons capable of similarly performing them and in 

similar transactions between parties operating at arm’s length and (ii) such transaction has been 

consented to in writing by a Majority Interest of the outstanding Units.

5.8 Liability of Director Limited to Director’s Assets. Under no circumstances will any 

Affiliate of any Director have any personal responsibility for any liability or obligation of the 

Director (whether on a theory of alter ego, piercing the corporate veil, or otherwise), and any 

recourse permitted under this Agreement or otherwise of the Members, any former Member or 

the Company against a Director will be limited to the assets of the Director as they may exist 

from time to time.

5.9 Limited Liability. No entity or person who is a Director 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 Director or officer of the Company.

5.10 Officers. Except as otherwise provided in this Section 5.10, the officers of the 

Company shall be appointed by the Board of Directors and shall consist of a Chief Executive 

Officer, President and a Secretary. The Board of Directors may also appoint a Chief Financial 

Officer or Treasurer, a Chief Operating Officer, and one or more Vice Presidents or Assistant 

Secretaries. Any number of offices may be held by the same person. The Manager may appoint 

such other officers and agents as it shall deem necessary or advisable who shall hold their offices 

for such terms and shall exercise such powers and perform such duties as shall be determined 

from time to time by the Manager, with the advice and consent, such consent not to be 

unreasonably withheld, of the Board of Directors. The salaries of all officers and agents of the 

Company shall be fixed by or in the manner prescribed by the Board of Directors. The officers 

of the Company shall hold office until their successors are chosen and qualified. Except as 

otherwise provided in this Section 5.10, any officer appointed by the Board of Directors may be 

removed at any time, with or without cause, by the Board of Directors. Except as otherwise 

provided in this Section 5.10, any vacancy occurring in any office of the Company shall be filled 

by the Board of Directors.

(a) Chief Executive Officer. The Chief Executive Officer of the Company shall, 

subject to the control of the Board of Directors, have general supervision, direction and control 

of the business and affairs of the Company. The Chief Executive Officer shall preside at all 

meetings of the Members, unless the Manager shall have appointed another person to so preside 

and such person is present. The Chief Executive Officer shall perform other duties commonly 

incident to a chief executive officer of a Delaware corporation and shall also perform such other 

duties and have such other powers as the Board of Directors shall designate from time to time. 

The Chief Executive Officer is authorized to make expenditures except: (i) where required or 

permitted by law to be otherwise signed and executed, and (ii) where signing and execution 

thereof shall be expressly delegated by the Manager to some other officer or agent of the 

Company. Laura Perryman will be the initial Chief Executive Officer.

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(b) President. The President may assume and perform the duties of the Chief 

Executive Officer in the absence or disability of the Chief Executive Officer or whenever the 

office of Chief Executive Officer is vacant. The President shall perform such other duties 

commonly incident to a President of a Delaware corporation and shall perform such other duties 

and have such other powers as the Board of Directors shall designate from time to time. 

(c) Chief Operating Officer. In the absence of the President or in the event of the 

President’s inability to act, the Chief Operating Officer, if any, shall perform the duties of the 

President, and when so acting, shall have all the powers of and be subject to all the restrictions 

upon the President. The Chief Operating Officer shall perform such other duties commonly 

incident to a Chief Operating Officer of a Delaware corporation and shall perform such other 

duties and have such other powers as the Board of Directors may from time to time prescribe.

(d) Vice Presidents. In the absence of the President and the Chief Operating 

Officer or in the event of the President’s and Chief Operating Officer’s inability to act, the Vice 

President, if any (or in the event there be more than one Vice President, the Vice Presidents in 

the order designated by the Board of Directors, or in the absence of any designation, then in the 

order of their election), shall perform the duties of the President, and when so acting, shall have 

all the powers of and be subject to all the restrictions upon the President. The Vice Presidents, if 

any, shall perform such other duties commonly incident to a vice president of a Delaware 

corporation and shall perform such other duties and have such other powers as the Board of 

Directors may from time to time prescribe.

(e) Secretary and Assistant Secretary. The Secretary shall be responsible for filing 

legal documents and maintaining records for the Company. The Secretary shall attend all 

meetings of the Board of Directors and all meetings of the Members, if any, and record all the 

proceedings of the meetings of the Company and of the Board of Directors in a book to be kept 

for that purpose and shall perform like duties for the standing committees when required. The 

Secretary shall give, or cause to be given, notice of all meetings of the Members, if any, and 

special meetings of the Board of Directors, and shall perform such other duties as may be 

prescribed by the Board of Directors or the President, under whose supervision the Secretary 

shall serve. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the 

order determined by the Manager (or if there be no such determination, then in order of their 

election), shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, 

perform the duties and exercise the powers of the Secretary and shall perform such other duties 

and have such other powers as the Manager may from time to time prescribe. 

(f) Chief Financial Officer or Treasurer. The Chief Financial Officer or Treasurer 

shall be responsible for ensuring that appropriate custodial arrangements are maintained with 

respect to the corporate funds and securities of the Company. The Chief Financial Officer or 

Treasurer shall keep full and accurate accounts of receipts and disbursements in books belonging 

to the Company and shall deposit all monies and other valuable effects in the name and to the 

credit of the Company in such depositories as may be designated by the Manager. The Chief 

Financial Officer or Treasurer shall disburse the funds of the Company as may be ordered by the 

Manager, taking proper vouchers for such disbursements, and shall render to the Chief Executive 

Officer and to the Manager, at its regular meetings or when the Manager so requires, an account 

of all of the Chief Financial Officer’s and Treasurer’s transactions and of the financial condition 

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of the Company. The Chief Financial Officer or Treasurer shall perform other duties commonly 

incident to the office of Chief Financial Officer or Treasurer in a Delaware corporation and shall 

also perform such other duties and have such other powers as the Manager or Chief Executive 

Officer shall designate from time to time. 

(g) Officers as Agents. The officers, to the extent of their powers set forth in this 

Agreement or otherwise vested in them by action of the Board of Directors not inconsistent with 

this Agreement, are agents of the Company for the purpose of the Company’s business, and the 

actions of the officers taken in accordance with such powers shall bind the Company.

5.11 Tax Matters Partner. The Manager shall be the Tax Matters Partner of the 

Company as provided in the Treasury Regulations pursuant to Code Section 6231(a)(7), and 

shall be indemnified and reimbursed for all expenses, including legal and accounting fees, 

claims, liabilities, losses and damages incurred in connection with its serving in that capacity. 

Notwithstanding the preceding sentence, the Tax Matters Partner shall not be entitled to 

indemnification for such costs and expenses if such party has not acted in good faith. The Tax 

Matters Partner shall represent the Company (at the Company’s expense) in connection with all 

examinations of the Company’s affairs by tax authorities, including resulting judicial and 

administrative proceedings, and shall expend the Company’s funds for professional services and 

costs associated therewith.

ARTICLE VI

ALLOCATIONS OF PROFITS AND LOSSES AND DISTRIBUTIONS

6.1 Allocations of Profits and Losses. Subject to Section 6.2 and Section 6.3, the Profits 

and Losses of the Company for each Fiscal Year shall be allocated among the Members as 

follows:

(a) Profits shall be allocated in the following order and priority:

(i) First, to the Class A Members and the Class B Members in an 

amount equal to the excess, if any, of (x) the cumulative Losses allocated pursuant to Section 

6.1(b)(iii) for all prior Fiscal Years, over (y) the cumulative Profits allocated pursuant to this 

Section 6.1(a)(i) for all prior Fiscal Years, pro rata in proportion to their respective shares of the 

cumulative Losses allocated pursuant to Section 6.1(b)(iii); and

(ii) Thereafter, to the Class A Members and the Class B Members, pro 

rata in proportion to their respective Units held, provided, however, in the case of a sale of all or 

substantially all of the assets of the Company, to the Class A Members, the Class B Members 

and the Class C Members, pro rata in proportion to their respective Units held.

(b) Losses shall be allocated in the following order and priority:

(i) First, to the Class A Members and the Class B Members, in an 

amount equal to the excess, if any, of (x) the cumulative Profits allocated pursuant to Section 

6.1(a)(ii) for all prior Fiscal Years over (y) the cumulative Losses allocated pursuant to this 

Section 6.1(b)(i) for all prior Fiscal Years, pro rata in proportion to respective shares of the 

cumulative Profits allocated pursuant to Section 6.1(a)(ii); and

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(ii) Thereafter, to the Class A Members and the Class B Members pro 

rata in proportion to their respective Units held, provided, however, in the case of a sale of all or 

substantially all of the assets of the Company, to the Class A Members, the Class B Members 

and the Class C Members, pro rata in proportion to their respective Units held.

6.2 Special Allocations. Notwithstanding Section 6.1(b) to the contrary, no allocation of 

Loss, or item of loss or deduction, will be made to a Member for any Fiscal Year if such 

allocation would cause or increase an Adjusted Capital Account Deficit with respect to such 

Member as of the end of such Fiscal Year. Losses, and items of loss or deduction, that must be 

reallocated pursuant to the preceding sentence will be allocated (i) first, in the manner 

determined by the Board of Directors that allocates the maximum permissible Losses, and items 

of loss and deduction, to each Member, as permitted by Treasury Regulations Section 1.704-

1(b)(2)(ii)(d) ; and (ii) second, to the Members in proportion to their respective holdings of the 

Units. Notwithstanding Section 6.1 to the contrary, the allocations of Profit and Loss, and items 

of income, gain, loss and deduction, set forth in Section 6.1 will be subject to the following 

special allocations: a “qualified income offset” provision (within the meaning of Treasury 

Regulations Section 1.704-1(b)(2)(ii)(d)), a “partnership minimum gain chargeback” provision 

(within the meaning of Treasury Regulations Sections 1.704-2(f) and 1.704-2(g)(2)), a “partner 

minimum gain chargeback” provision (within the meaning of Treasury Regulations Sections 

1.704-2(i)(4) and 1.704-2(i)(5)), a provision allocating “nonrecourse deductions” (within the 

meaning of Treasury Regulations Section 1.704-2(b)(1)) to the Members in accordance with 

their respective holdings of the Units and a provision allocating “partner nonrecourse 

deductions” (within the meaning of Treasury Regulations Section 1.704-2(i)) to the Member who 

bears the economic risk of loss with respect to the related “partner nonrecourse debt”.

6.3 Curative Allocations. The allocations set forth in Section 6.2 are intended to comply 

with the requirements of Code Section 704(b) and the Treasury Regulations promulgated under 

Code Section 704(b). To the extent possible, any allocations made under Section 6.2 will be 

offset either with other allocations under Section 6.2 or with special allocations of other items of 

Company income, gain, loss and deduction pursuant to this Section 6.3. Accordingly, the Board 

of Directors will make offsetting allocations of Company income, gain, loss and deduction 

pursuant to this Section 6.4, in whatever amount and manner that the Board of Directors 

determines to be appropriate, such that after taking into account such offsetting allocations, the 

Capital Accounts of the Members are equal, to the extent possible, to the Capital Accounts that 

the Members would have had if the allocations set forth in Section 6.2 were not part of this 

Agreement and all Profit and Losses, and items of income, gain, loss and deduction, were 

allocated pursuant to Section 6.1.

6.4 Tax Elections. The Board of Directors will have the sole and absolute discretion to 

make any and all elections for U.S. federal, state and local tax purposes, including any election to 

adjust the tax basis of any Company assets pursuant to Code Section 754, or comparable 

provisions of state or local law; provided, however, that the Company will not file an election 

pursuant to Treasury Regulations Section 301.7701-3(c) to be classified as an association taxable 

as a corporation for U.S. federal income tax purposes without the consent of all of the Members.

6.5 Transfer or Issuance of Units During Fiscal Year. In the case of the transfer of a 

Member’s Units, the addition of an additional Member or the issuance of additional Units at any 

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time other than the end of a Fiscal Year, the distributive share of the various items of income, 

gain, loss, deduction, credit or allowance of the Company shall be allocated among the Members 

to take into account the varying interests of the Members during the Fiscal Year in accordance 

with Code Section 706, using such method as is determined by the Board of Directors.

6.6 Tax Allocations. In accordance with Code Section 704(c) and the Treasury 

Regulations promulgated under Code Section 704(c), income, gain, loss and deduction with 

respect to any property contributed in-kind to the Company as a Capital Contribution, and with 

respect to any property that is revalued on the books of the Company pursuant to Section 3.6, 

will be allocated, solely for U.S. federal income tax purposes, to the Members so as to take into 

account any variation between the tax basis of such contributed or revalued property and such 

contributed or revalued property’s fair market value at the time of contribution or revaluation. 

Any elections or decisions related to the method or manner in which allocations of income, gain, 

loss and deduction are made pursuant to Code Section 704(c), or the Treasury Regulations 

promulgated under Code Section 704(c), will be made by the Board of Directors. Except as 

otherwise provided in this Agreement, all items of Company income, gain, loss or deduction, and 

any other allocations not otherwise provided for shall be divided among the Members in the 

same proportions as they share Profits and Losses, as the case may be.

6.7 Distributions by the Company. 

(a) Subject to applicable law and the other provisions of this Section 6.7, the 

Board of Directors may elect from time to time to distribute Distributable Cash to the Class A 

Members and the Class B Members, pro rata in proportion to their respective Units held, 

provided, however, in the case of a sale of all or substantially all of the assets of the Company, to 

the Class A Members, the Class B Members and the Class C Members, pro rata in proportion to 

their respective Units held.

(b) Notwithstanding Section 6.7(a) to the contrary, the Company shall distribute 

cash to each Class A Member and Class B Member in an amount equal to the sum of: (i) the 

product of (A) the Company’s net taxable ordinary income and net taxable short-term capital 

gain allocated pursuant to Article VI to such Member for such ended Fiscal Year multiplied by 

(B) the highest marginal U.S. federal ordinary income tax rate applicable to individuals plus (ii) 

the product of (A) the Company’s net taxable long-term capital gain allocated pursuant to Article 

VI to such Class A Member or Class B Member for such ended Fiscal Year multiplied by (B) the 

highest U.S. federal long-term capital gains tax rate applicable to individuals; provided, however, 

that no such distribution shall be made to the extent that the Board of Directors determines, in its 

sole discretion, that funds are not reasonably available for such distribution by virtue of 

applicable law, contractual obligation or current or future needs of the Company. Such 

distribution to each Class A Member and Class B Member may occur on a pro rata quarterly 

basis, but shall be made no later than the first day of the fourth month following the end of the 

Fiscal Year of the Company with respect to which such distribution is made. Distributions made 

pursuant to this Section 6.7(b) shall be applied against amounts otherwise distributable to the 

Class A Members and Class B Members pursuant to Section 6.7(a)(i).

(c) To the extent that the Company is required by law to withhold or to make tax 

or other payments on behalf of or with respect to any Member, the Company shall withhold such 

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amounts from any distribution and make such payments as so required. For purposes of this 

Agreement, any such payments or withholdings shall be treated as a distribution to the Member 

on behalf of whom the withholding or payment was made.

(d) All distributions shall be made only to the Member who, according to the 

books and records of the Company, is the holder of record of the Units in respect of which such 

distributions are made on the actual date of distribution. Neither the Company nor any Director 

shall incur any liability for making distributions in accordance with this Section 6.7.

(e) Notwithstanding Section 6.7(a) to the contrary, distributions of proceeds of 

liquidation shall be made to the Members pursuant to Section 9.4.

ARTICLE VII

TRANSFER AND ASSIGNMENT OF INTERESTS

7.1 Transfer and Assignment of Interests. Except as expressly provided in this 

Agreement, a Member shall not transfer any part of the Member’s Interest in the Company, 

whether now owned or later acquired, unless such transfer has been approved in writing by the 

Board of Directors and, if the Board of Directors determines appropriate, the Board of Directors 

approves the transferee’s admission to the Company as a Member upon such transfer. No 

Member may encumber or permit or suffer any encumbrance of all or any part of the Member’s 

Interest in the Company unless such encumbrance has been approved in writing by the Board of 

Directors. Any such approvals may be granted or withheld in the Board of Director’s sole 

discretion. For purposes of this agreement, “transfer”, “encumber” and similar terms (whether 

used as nouns or verbs) shall be interpreted broadly and shall include, without limitation, any 

direct or indirect sale, assignment, transfer, award, confirmation, distribution, bequeath, 

donation, trust, exchange or other disposition of all or any part of an interest, whether or not for 

value and whether voluntarily, involuntarily, by operation of law or otherwise, any agreement or 

transaction through which any Person would or would reasonably be expected to acquire an 

economic or beneficial interest in the Company or all or any part of an interest, and any pledge, 

encumbrance, mortgage, or granting of a security interest, foreclosure, replevin action or other 

realization procedures.

7.2 Transfer in Violation of Agreement. Any transfer or encumbrance that is not made in 

accordance with the terms of this Agreement shall be null and void ab initio, and shall not be 

recognized by the Company. Each party hereto acknowledges and agrees that any breach of this 

Agreement would result in substantial harm to the other parties hereto for which monetary 

damages alone could not adequately compensate. Therefore, the parties hereto unconditionally 

and irrevocably agree that any non-breaching party hereto shall be entitled to seek protective 

orders, injunctive relief and other remedies available at law or in equity (including, without 

limitation, seeking specific performance or the rescission of purchases, sales and other transfers

of Interests not made in strict compliance with this Agreement). Notwithstanding the foregoing, 

if by operation of law or otherwise a transfer is effective despite this Section, then each Person 

that succeeds to any part of such Interest (a) shall be deemed to be an assignee of such Interest, 

(b) shall possess only the economic rights associated with such Interest, and (c) shall not be a 

Member or have any voting rights or other rights of a Member unless admitted as a Member in 

accordance with this Agreement.

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7.3 Right of First Refusal. Any Proposed Transfer, and the admission of the Prospective 

Transferee as a Member of the Company, must be approved by the Board of Directors in 

accordance with Section 7.1 and this Agreement. In addition, any Proposed Transfer shall be 

subject to rights of the Company and the Other members as set forth in this Section 7.3 as 

follows:

(a) Grant of Right of First Refusal to the Company. Each Member hereby 

unconditionally and irrevocably grants to the Company a Right of First Refusal to purchase all or 

any portion of Transfer Units that such Member may propose to transfer in a Proposed Transfer, 

at the same price and on the same terms and conditions as those offered to the Prospective 

Transferee.

(b) Notice. Each Member proposing to make a Proposed Transfer must deliver a 

Proposed Transfer Notice to the Company not later than sixty (60) days prior to the 

consummation of such Proposed Transfer. Such Proposed Transfer Notice shall contain the 

material terms and conditions of the Proposed Transfer (including without limitation the price, 

form of consideration and proposed closing date) and the identity of the Prospective Transferee. 

The Company must exercise its Right of First Refusal by giving a Company Notice to the Selling 

Member within ten (10) days after delivery of the Proposed Transfer Notice.

(c) Grant of Secondary Refusal Right to Other Members. Each Member hereby 

unconditionally and irrevocably grants to the Other Members a Secondary Refusal Right to 

purchase all or any portion of the Transfer Units not purchased by the Company pursuant to the 

Right of First Refusal. If the Company does not intend to exercise its Right of Refusal with 

respect to all Transfer Units subject to a Proposed Transfer, the Company must deliver a 

Secondary Notice, and a copy of the Proposed Transfer Notice delivered to the Company, to 

each Other Member to that effect no later than fifteen (15) days after the Selling Member 

delivers the Proposed Transfer Notice to the Company. To exercise its Secondary Refusal Right, 

an Other Member must deliver an Other Member Notice to the selling Member and the Company 

within ten (10) days after the deadline for delivery of the Secondary Notice.

(d) Under Subscription of Transfer Units. If options to purchase have been 

exercised by the Company and the Other Members with respect to some but not all of the 

Transfer Units by the end of the 10-day period specified in the last sentence of the preceding 

clause (the “Other Member Notice Period”), then the Company shall, immediately after the 

expiration of the Other Member Notice Period, send written notice to those Other Members who 

fully exercised their options within the Other Member Notice Period (the “Exercising Other 

Members”). Each Exercising Other Member shall have an additional option to purchase all or 

any part of the balance of any such remaining unsubscribed Transfer Units on the terms and 

conditions set forth in the Proposed Transfer Notice. To exercise such option, an Other Member 

must deliver an Under Subscription Notice to the Selling Member and the Company within ten 

(10) days after the expiration of the Other Member Notice Period specifying the additional 

amount of Units such Other members desires to purchase (the “Under Subscription Deadline”). 

In the event there are two or more such Other Members that deliver Under Subscription Notices 

for an aggregate number of Units in excess of the number available, the remaining Units 

available for purchase shall be allocated to such Other Members pro rata based on the number of 

Units such Other Members have elected to purchase. The Company shall notify all of the 

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Exercising Other Members of the amount of shares each shall be entitled to purchase within 10 

days of the Under Subscription Deadline.

(e) Consideration; Closing. If the consideration proposed to be paid for the 

Transfer Units is in property, services or other non-cash consideration, the fair market value of 

the consideration shall be determined in good faith by the Company’s Board of Directors. If the 

Company or any Other Member cannot for any reason pay for the Transfer Units in the same 

form of non-cash consideration, the Company or such Other Member may pay the cash value 

equivalent thereof, as determined by the Board of Directors. The closing of the purchase of 

Transfer Units by the Company and the Other Members shall take place, and all payments from 

the Company and the Other Members shall have been delivered to the selling Member, by the 

later of (i) the date specified in the Proposed Transfer Notice as the intended date of the 

Proposed Transfer and (ii) sixty (60) days after delivery of the Proposed Transfer Notice.

7.4 Right of Co-Sale Notice and Exercise. If any Transfer Units subject to a Proposed 

Transfer is not purchased pursuant to Section 7.3(a) above and thereafter is to be sold to a 

Prospective Transferee, each respective Other Member holding Units of the same class as the 

Units subject to the Proposed Transfer may elect to exercise its Right of Co-Sale and participate 

on a pro-rata basis in the Proposed Transfer on the same terms and conditions specified in the 

Proposed Transfer Notice. Each such Other Member who desires to exercise its Right of Co-Sale 

must give the Selling Member and the Company written notice to that effect (a “Co-Sale 

Notice”) within ten (10) days after the deadline for delivery of the Secondary Notice described 

above, and upon giving such notice such Other Member (a “Co-Selling Member”) shall be 

deemed to have effectively exercised the Right of Co-Sale. No Other Member who has exercised 

Secondary Refusal Rights pursuant to Section 7.3(c) with respect to a particular Proposed 

Transfer shall be permitted to exercise any Right of Co-Sale with respect to the same Proposed 

Transfer.

(b) Calculation. Each Co-Selling Member who timely exercises his, her or its 

Right of Co-Sale by delivering a Co-Sale Notice may include in the Proposed Transfer an 

amount of Units of the class subject to the Proposed Transfer equal to the product obtained by 

multiplying (i) the aggregate number of Units remaining subject to the Proposed Transfer (after 

subtracting the Units to be purchased by the Company or the Other Members pursuant to the 

Right of First Refusal or the Secondary Refusal Right) by (ii) a fraction, the numerator of which 

is the number of Units of the class subject to the Proposed Transfer owned by such Co-Selling 

Member immediately before consummation of the Proposed Transfer and the denominator of 

which is the total number of outstanding Units of the class subject to the Proposed Transfer 

owned by all other Co-Selling Members plus the number of Units of the class subject to the 

Proposed Transfer held by the Selling Member. To the extent one or more of the Other Members 

exercise its Right of Co-Sale, the number of Units that the Selling Member may sell in the 

Proposed Transfer shall be correspondingly reduced. The Company shall notify each Co-Selling 

Member and the Selling Member of the number of Units each shall be entitled to transfer as part 

of the Proposed Transfer within 10 days of the Under Subscription Deadline.

(c) Participation.

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(i) Each Co-Selling Member shall effect its participation in the 

Proposed Transfer by promptly delivering to the Selling Member, no later than ten (10) days 

after it has been notified of the number of Units it shall be entitled to transfer as part of its 

exercise of the Right of Co-Sale, one or more Certificates, properly endorsed for transfer to the 

Prospective Transferee, representing the number of Units that such Other Member is permitted to 

include in the Proposed Transfer. The Company agrees to cooperate to subdivide and issue new 

Certificates as necessary to effectuate the foregoing.

(ii) Each Certificate a Co-Selling Member delivers to the Selling 

Member pursuant to subparagraph (i) above will be transferred to the Prospective Transferee 

against payment therefor in consummation of the sale of the Transfer Units pursuant to the terms 

and conditions specified in the Proposed Transfer Notice and the purchase and sale agreement, 

and the Selling Member shall concurrently therewith remit to each Co-Selling Member the 

portion of the sale proceeds to which such Co-Selling Member is entitled by reason of its 

participation in such sale. If any Prospective Transferee refuse(s) to purchase securities subject 

to the Right of Co-Sale from any Co-Selling Member exercising its Right of Co-Sale hereunder, 

no Selling Member may consummate and transfer to such Prospective Transferee unless and 

until, simultaneously with such transfer, such Selling Member purchases all securities subject to 

the Right of Co-Sale from such Co-Selling Member.

7.5 Deadline. If any Proposed Transfer is not consummated within one hundred and 

twenty (120) days after receipt of the Proposed Transfer Notice by the Company, the Member 

proposing the Proposed Transfer may not transfer any Interest unless it again complies in full 

with each provision of this Article VII. The exercise or election not to exercise any right by any 

Other Member hereunder shall not adversely affect its right to participate in any other sales of 

Transfer Units subject to Section 7.3.

7.6 Permitted Transfers. Notwithstanding any other provision of this Agreement to the 

contrary, the provisions of Section 7.3 and Section 7.4 shall not apply: (i) in the case of a 

Member that is an entity, to a transfer approved by the Board of Directors by such Member to its 

stockholders, members, partners or other equity holders, (ii) to a repurchase of Units from a 

Member by the Company pursuant to an agreement containing vesting and/or repurchase 

provisions approved by the Board of Directors, or (iii) in the case of a Member that is a natural 

person, (x) to a transfer to a revocable trust created for the benefit of the Member, or any 

combination between or among the Member, the Member’s spouse, and the Member’s 

immediate family; provided that the Member retains a beneficial interest in the trust and all of 

the voting Interest included in such Interest; or (y) to a transfer of Interests by such Member, 

either during his or her lifetime with the approval of the Board of Directors or upon such 

Member’s death by will or intestacy to his or her siblings, children, grandchildren, or spouse or 

any other relatives, or any custodian or trustee for the account of a Member or a Member’s 

siblings, children, grandchildren or spouse, provided, that the transferee(s) shall possess only the 

economic rights associated with such Interest, and shall not be a Member or have any voting 

rights or other rights of a Member unless admitted as a Member in accordance with this 

Agreement. 

7.7 Additional Requirement of Transferors and Transferees. In addition to any other 

requirements set forth in this Agreement or required by law, any transfer or encumbrance of a 

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Member’s Interests shall require (a) compliance by the Member and transferee with all terms of 

this Agreement and applicable law, including applicable securities laws and blue sky laws, and 

(b) payment by the Member and transferee, jointly and severally, of all reasonable costs and 

expenses incurred by the Company in connection with the transfer or encumbrance or proposed 

transfer or encumbrance, including any legal expenses, as the Board of Directors may determine. 

If the Board concludes that a transfer or encumbrance would (i) result in a violation of applicable 

securities laws, (ii) cause the Company to become subject to registration under the Federal 

Investment Company Act of 1940, as amended, (iii) result in the “termination” of the Company 

as a partnership for U.S. federal income tax purposes pursuant to Code Section 708(b), (iv) cause 

the Company to be classified as a “publicly traded partnership” (as that term is defined in Code 

Section 7704(b)); or (v) be an event that would constitute a violation or breach (or with the 

giving of notice or passage of time would constitute a violation or breach) of the Certificate of 

Formation, this Agreement, or the Act, the Member engaging in the transfer or encumbrance 

shall be liable to the Company and each other Member for any taxes, fines, penalties, damages, 

losses, and expenses (including attorneys’ fees) that may be due from or suffered by the 

Company or any other Member to the extent of such adverse impact.

7.8 Failure to Comply. If any Member becomes obligated to sell any Units to the 

Company under this Agreement and fails to deliver such Units in accordance with the terms of 

this Agreement, the Company may, at its option, in addition to all other remedies it may have, 

send to such Member the purchase price for such Units as is herein specified and cancel on its 

books the certificate or certificates representing the Units to be sold.

ARTICLE VIII

ACCOUNTING, RECORDS, REPORTING BY MEMBERS

8.1 Books and Records. The books and records of the Company shall be kept, and the 

financial position and the results of its operations recorded, in accordance with GAAP and the 

accounting methods followed for federal income tax purposes. The books and records of the 

Company shall reflect all the Company transactions and shall be appropriate and adequate for the 

Company’s business. The Company shall maintain at its principal office in Miami Beach, 

Florida all of the following:

(a) A current list of the full name and last known business or residence address of 

each Member and set forth in alphabetical order, together with the Capital Contributions, Capital 

Account and Units held by each Member;

(b) A current list of the full names and addresses of each Director;

(c) A copy of the Certificate and any and all amendments thereto together with 

executed copies of any powers of attorney pursuant to which the Certificate or any amendments 

thereto have been executed;

(d) Copies of the Company’s federal, state, and local income tax or information 

returns and reports, if any, for the six (6) most recent Fiscal Years;

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(e) A copy of this Agreement and any and all amendments thereto together with 

executed copies of any powers of attorney pursuant to which this Agreement or any amendments 

thereto have been executed;

(f) Copies of the financial statements of the Company, if any, for the six (6) most 

recent Fiscal Years; and

(g) The Company’s books and records as they relate to the internal affairs of the 

Company for at least the current and past four (4) Fiscal Years.

8.2 Reports. The Company shall cause to be filed, in accordance with the Act, all reports 

and documents required to be filed with any governmental agency. The Company shall cause to 

be prepared at least annually information concerning the Company’s operations necessary for the 

completion of the Members’ federal and state income tax returns. The Company shall send or 

cause to be sent to each Member within ninety (90) days after the end of each Fiscal Year (A) 

such information as is necessary to complete the Members’ federal and state income tax or 

information returns and (B) a copy of the Company’s federal, state, and local income tax or 

information returns for the year. In addition, the Company shall provide all Members with 

unaudited quarterly financial statements prepared in accordance with GAAP.

8.3 Bank Accounts. The funds of the Company shall be maintained in one or more 

separate bank accounts in the name of the Company, and shall not permit the funds of the 

Company to be commingled in any fashion with the funds of any other Person.

ARTICLE IX

DISSOLUTION AND WINDING UP

9.1 Dissolution. The Company shall be dissolved, its assets shall be disposed of, and its 

affairs wound up on the first to occur of the following:

(a) The happening of any event of dissolution specified in the Certificate;

(b) The entry of a decree of judicial dissolution;

(c) The vote of a Majority Interest of the outstanding Units, voting together as a 

single class; or

(d) The sale of all or substantially all of the assets of the Company.

9.2 Certificate of Dissolution. As soon as possible following the occurrence of any of the 

events specified in Section 9.1, the Directors who have not wrongfully dissolved the Company 

or, if none, the Members, shall execute a Certificate of Dissolution in such form as shall be 

prescribed by the Delaware Secretary of State and file the Certificate as required by the Act. 

Dissolution of the Company shall be effective on the date which the event occurs giving rise to 

the dissolution, but the Company shall not terminate until the Certificate shall have been 

cancelled and the assets of the Company shall have been distributed as provided herein.

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9.3 Winding Up. Upon the dissolution of the Company, the Company’s assets shall be 

disposed of and its affairs wound up. The Company shall give written notice of the 

commencement of the dissolution to all of its known creditors.

9.4 Order of Payment Upon Dissolution. The assets and proceeds on liquidation shall be 

applied in the following order:

(a) To creditors, including Members who are creditors, to the extent permitted by 

law and in accordance with their relative rights of priority, if any; and

(b) To the Members pro rata in proportion to their respective positive Capital 

Account balances, as determined after taking into account all Capital Account adjustments for all 

periods.

9.5 Limitations on Payments Made in Dissolution. Except as otherwise specifically 

provided in this Agreement, each Member shall only be entitled to look solely at the assets of the 

Company for the return of its positive Capital Account balance and shall have no recourse for its 

Capital Contribution and/or share of income or gain of the Company (upon dissolution or 

otherwise) against the Directors or any other Member.

9.6 Distributions in Kind. The Board of Directors may make dissolution distributions to 

the Members in cash or distribute Company assets in kind, and the distribution of any such assets 

in kind shall be made on the basis of the fair market value of each such asset as of the date of

distribution, as determined by the Board of Directors in good faith.

9.7 Certificate of Cancellation. The Board of Directors or Members who filed the 

Certificate of Dissolution shall cause to be filed in the office of, and on a form prescribed by, the 

Delaware Secretary of State, a Certificate of Cancellation of the Certificate upon the completion 

of the winding up of the affairs of the Company.

ARTICLE X

INDEMNIFICATION AND INSURANCE

10.1 Limitation of Liability. No Member, Director, or officer of the Company (each, 

an “Indemnified Person”) shall have liability to the Company or the Members for monetary 

damages for conduct as a Member, Director, or officer of the Company, except for acts or 

omissions that involve a breach of this Agreement, intentional misconduct, a knowing violation 

of law, conduct violating relevant Delaware law, or for any transaction from which the 

Indemnified Person has personally received a benefit in money, property or services to which the 

Indemnified Person was not legally entitled. If the Act is hereafter amended to authorize 

Company action further limiting the Personal liability of members and Directors of limited 

liability companies, then the liability of each Indemnified Person shall be eliminated or limited to 

the full extent permitted by the Act, as so amended. No repeal or modification of the Act or this 

Section 10.1 shall adversely affect any right or protection of an Indemnified Person existing at 

the time of such repeal or modification for or with respect to an act or omission of such 

Indemnified Person occurring prior to such repeal or modification.

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10.2 Indemnification. The Company shall indemnify each Indemnified Person to the 

fullest extent allowed under relevant Delaware law. The right to indemnification and payment of 

expenses incurred in defending a proceeding in advance of its final disposition conferred in this 

Section 10.2 shall not be exclusive of any other right any Indemnified Person may have or 

hereafter acquire under any statute, this Agreement, vote of the Board of Directors or the 

Members or otherwise. No repeal or modification of the Act or this Section 10.2 shall adversely 

affect any right of an Indemnified Person to indemnification existing at the time of such repeal or 

modification for or with respect to indemnification related to an act or omission of such 

Indemnified Person occurring prior to such repeal or modification. The Board of Directors shall 

be authorized, on behalf of the Company, to enter into indemnity agreements from time to time 

with any Person entitled to be indemnified by the Company hereunder, upon such terms and 

conditions as the Board of Directors deems appropriate in their business judgment.

10.3 Insurance. The Company shall, to the extent commercially reasonable (as 

determined by the Board of Directors), purchase and maintain insurance on behalf of any 

Indemnified Person against any liability asserted against such Person and incurred by such 

Person in any such capacity, or arising out of such Person’s status as an agent, whether or not the 

Company would have the power to indemnify such Person against such liability under the 

provisions of Section 10.2 or under applicable law.

ARTICLE XI

CONVERSION TO CORPORATION

11.1 Conversion to Corporation. With the approval of a Majority Interest all Class A 

Units and Class B Units, voting together as a single class, the Board of Directors may, on at least 

ten (10) days’ prior written notice given to all Members, cause the Company to convert to one or 

more corporations (individually, a “Continuing Corporation” and collectively, the “Continuing 

Corporations”), by such means (including, without limitation, merger or consolidation or other 

business combination, transfer of all or a part of the Company’s assets and/or transfer of the 

Members’ respective Units) as the Board of Directors may reasonably select. Upon such 

conversion:

(a) All Class A Units and Class B Units shall be exchanged for, or otherwise 

converted into, shares of capital stock (which may be non-voting if the Units are non-voting) of 

the Continuing Corporation representing an equity interest therein substantially equivalent to the 

equity interest in the Company represented by such Unit (including, without limitation but only 

to the extent reasonably practicable, having the same transfer rights, co-sale rights, rights of first 

refusal and voting rights). All Class C Units shall be exchanged for, or otherwise converted into, 

options to acquire a class of shares of capital stock of the Continuing Corporation which entitle 

such holders to value only upon the occurrence of a sale, merger, liquidation, sale of 

substantially all assets, or initial public offering of the Continuing Corporation. The Board of 

Directors and the Company shall use reasonable efforts to structure such conversion so that the 

holders’ ownership of their Units (or equity interest therein, in the case of assignees who possess 

only the economic rights associated with an Interest) will be “tacked” to their ownership of the 

shares of the Continuing Corporation’s capital stock for the purposes of determining such

holders’ compliance with the requirements of Rule 144 of the Securities Act.

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(b) The stockholders of the Continuing Corporation, and the Continuing 

Corporation, in the event of such a conversion other than in connection with a public offering, 

shall enter into:

(i) a stockholders’ agreement on terms substantially equivalent to those 

contained in this Agreement, such agreement to be in a form reasonably acceptable to the Board 

of Directors, and

(ii) such other documents and instruments as are customarily entered into 

by stockholders of corporations entering into venture capital or similar transactions, in each case 

in the form customarily used for documents and instruments of similar nature in such 

transactions and otherwise reasonably acceptable to the Board of Directors.

(c) Power of Attorney. Each Person which now or hereafter is a Member or other 

holder of the economic rights associated with an Interest, or serves as a Director of the Company, 

by execution of this Agreement, an amendment hereto or an instrument acknowledging that such 

person is bound hereby, irrevocably constitutes and appoints the Board of Directors and any 

person designated by the Board of Directors to act on that Person’s behalf for the purposes of 

this Section 11.1, and each of them acting singly, such Person’s true and lawful agent and 

attorney-in-fact with full power and authority in such Person’s name, place and stead to execute, 

acknowledge, deliver, swear to, file and record at the appropriate public offices any and all 

agreements, instruments and other documents (including, without limitation, the organizational 

documents of the Continuing Corporation as contemplated by this Section 11.1, the agreements 

among the stockholders of the Continuing Corporation and/or the Continuing Corporation 

referred to in this Section 11.1, and instruments of assignment and transfer assigning the assets 

of the Company or the Members’ respective Units or the holders’ respective economic rights 

associated with an Interest, as the case may be, to the Continuing Corporation in order to 

effectuate such conversion as contemplated by Section 11.1) as are necessary or appropriate, in 

the reasonable opinion of the Board of Directors or such Person designated by it, to implement 

and effectuate the provisions of this Section 11.1, which power of attorney is hereby agreed and 

acknowledged to be irrevocable and coupled with an interest, in recognition of the fact that the 

Board of Directors will be relying upon the power of the Board of Directors or such Person 

designated by it to act as contemplated by this Section 11.1 in connection with the conversion of 

the Company into the Continuing Corporation and the other matters contemplated by this 

Section 11.1, and shall survive any death, retirement, resignation, withdrawal, expulsion, 

removal, bankruptcy, dissolution or adjudication of incompetence or insanity of any Member or 

holder of the economic rights associated with an Interest or Director until such time as the 

provisions of this Section 11.1 have been implemented and effectuated to the reasonable 

satisfaction of the Board of Directors or its relevant designee.

11.2 Initial Public Offering Prior to Conversion to Corporation. Notwithstanding the 

foregoing provisions of Section 11.1, in the event that, the Company proposes to file a 

registration statement with the SEC for an initial public offering, then prior to the closing of such 

initial public offering and immediately prior to any conversion of the Company to one or more 

corporations as outlined in Section 11.1, all then-outstanding Units and economic rights 

associated with an Interest will, as determined by the Board of Directors, be exchanged for 

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Common Stock or substantially equivalent securities in the Continuing Corporation in 

accordance with Section 11.1 as far in advance of such initial public offering as is practicable.

ARTICLE XII

INVESTMENT REPRESENTATIONS

Each Member hereby represents and warrants to, and agrees with, the Directors, the other 

Members, and the Company as follows:

12.1 Preexisting Relationship or Experience. By reason of his, her or its business or 

financial experience, or by reason of the business or financial experience of his, her or its 

financial advisor who is unaffiliated with and who is not compensated, directly or indirectly, by 

the Company or any affiliate or selling agent of the Company, he, she or it is capable of 

evaluating the risks and merits of an investment in the Units and of protecting his, her or its own 

interests in connection with this investment.

12.2 Investment Intent. He, she or it is acquiring the Units for investment purposes for 

his, her or its own account only and not with a view to or for sale in connection with any 

distribution of all or any part of the Units. No other Person will have any direct or indirect 

beneficial interest in or right to the Units.

12.3 Accredited Investor. He, she or it is an “accredited investor” as defined in Rule 

501(a) promulgated by the Securities and Exchange Commission, or is otherwise eligible for 

exemption under such rules.

12.4 Purpose of Entity. If an entity, it was not organized for the specific purpose of 

acquiring the Units.

12.5 Economic Risk. He, she or it is financially able to bear the economic risk of an 

investment in the Units, including the total loss thereof.

12.6 No Registration of Units. He, she or it acknowledges that the Units have not been 

registered under the Securities Act of 1933, as amended (the “Securities Act”), or qualified any 

applicable blue sky laws, in reliance, in part, on his, her or its representations, warranties, and 

agreements herein.

12.7 Investment in Restricted Security. He, she or it understands that the Units are 

“restricted securities” under the Securities Act in that the Units will be acquired from the 

Company in a transaction not involving a public offering, and that the Units may be resold 

without registration under the Securities Act only in certain limited circumstances and that 

otherwise the Units must be held indefinitely.

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12.8 No Obligations to Register. He, she or it represents, warrants, and agrees that the 

Company and the Board of Directors are under no obligation to register or qualify the Units 

under the Securities Act or under any state securities law, or to assist her, him or it in complying 

with any exemption from registration and qualification.

12.9 No Disposition in Violation of Law. Without limiting the representations set 

forth above, and without limiting Article VII of this Agreement, he, she or it will not make any 

disposition of all or any part of the Units which will result in the violation by her, him or it or by 

the Company of the Securities Act, the Delaware General Corporation Law, the Act, or any other 

applicable securities laws. Without limiting the foregoing, he, she or it agrees not to make any 

disposition of all or any part of the Units unless and until he, she or it has notified the Company 

of the proposed disposition and has furnished the Company with a detailed statement of the 

circumstances surrounding the proposed disposition, and if reasonably requested by the Board of 

Directors, he, she or it has furnished the Company with a written opinion of counsel, reasonably 

satisfactory to the Company, that such disposition will not require registration of any securities 

under the Securities Act or the consent of or a permit from appropriate authorities under any 

applicable state securities law.

12.10 Investment Risk. He, she or it acknowledges that the Units are speculative 

investments which involve a substantial degree of risk of loss of an entire investment in the 

Company, that he, she or it understands and takes full cognizance of the risks related to the 

purchase of the Units, and that the Company is newly organized and has no financial or 

operating history.

12.11 Investment Experience. He, she or it is an experienced investor in unregistered 

and restricted securities of limited liability companies.

12.12 Restrictions on Transferability. He, she or it acknowledges that there are 

substantial restrictions on the transferability of the Units pursuant to this Agreement, that there is 

no public market for the Units and none is expected to develop, and that, accordingly, it may not 

be possible to liquidate his, her or its investment in the Company.

12.13 Information Reviewed. He, she or it has received and reviewed this Agreement 

and the information it considers necessary or appropriate for deciding whether to purchase the 

Units. He, she or it has relied only on the information contained in this Agreement in making its 

investment decision.

12.14 Tax Consequences. He, she or it acknowledges that the tax consequences of 

investing in the Company will depend on its particular circumstances, and neither the Company, 

the Directors, the Members, nor the partners, shareholders, members, Directors, agents, officers, 

directors, employees, Affiliates, or consultants of any of them will be responsible or liable for the 

tax consequences to him, her or it of an investment in the Company. He, she or it will look 

solely to, and rely upon, his, her or its own advisers with respect to the tax consequences of this 

investment.

12.15 No Assurance of Tax Benefits. He, she or it acknowledges that there can be no 

assurance that the Code or the Treasury Regulations will not be amended or interpreted in the 

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future in such a manner so as to deprive the Company and the Members of some or all of the tax 

benefits they might now receive nor that some of the deductions claimed by the Company or the 

allocations of items of income, gain, loss, deduction, or credit among the Members may not be 

challenged by the Internal Revenue Service.

12.16 Indemnity. He, she or it shall defend, indemnify and hold harmless the Company, 

each and every Director, each and every other Member, and any officers, directors, shareholders, 

Directors, members, employees, partners, agents, attorneys, registered representatives, and 

control persons of any such entity who was or is a party or is threatened to be made a party to 

any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, 

administrative, or investigative, by reason of or arising from any misrepresentation or 

misstatement of facts or omission to represent or state facts made by him, her or it including, 

without limitation, the information in this Agreement, against losses, liabilities, and expenses of 

the company, each and every Director, each and every other Member, and any officers, directors, 

shareholders, Directors, members, employees, partners, attorneys, accountants, agents, registered 

representatives, and control persons of any such Person (including attorneys’ fees, judgments, 

fines and amounts paid in settlement, payable as incurred) incurred by such person in connection 

with such action, suit, proceeding, or the like.

ARTICLE XIII

MISCELLANEOUS

13.1 Counsel to the Company. The Company has selected Wilson Sonsini Goodrich & 

Rosati, P.C. (“Company Counsel”) as legal counsel to the Company. Each Member 

acknowledges that Company Counsel represents Stimwave Technologies Incorporated (who 

owns the originally issued Class C Units as of the Effective Date (the “Stimwave Member”)) in 

certain matters; the Company and each Member waives any potential conflict of interest in this 

regard. As such, in respect of the preparation of this Agreement, it is hereby disclosed that 

Company Counsel may advise the Stimwave Member with respect hereto, but does not represent 

any other Member in the absence of a clear and explicit written agreement to such effect between 

such Member and Company Counsel, and that in the absence of any such agreement Company 

Counsel shall owe no duties directly to any such other Member.

13.2 Complete Agreement. This Agreement and the Certificate constitute the complete 

and exclusive statement of agreement among the Members and Directors with respect to the 

subject matter herein and therein and replace and supersede all prior written and oral agreements 

or statements by and among the Members and Directors or any of them. No representation, 

statement, condition or warranty not contained in this Agreement or the Certificate will be 

binding on the Members or Directors or have any force or effect whatsoever. To the extent that 

any provision of the Certificate conflict with any provision of this Agreement, the Certificate 

shall control.

13.3 Binding Effect. Subject to the provisions of this Agreement relating to 

transferability, this Agreement will be binding upon and inure to the benefit of the Members, and 

their respective successors and assigns.

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13.4 Parties in Interest. Except as expressly provided in the Act, nothing in this 

Agreement shall confer any rights or remedies under or by reason of this Agreement on any 

Persons other than the Members and Directors and their respective successors and assigns nor 

shall anything in this Agreement relieve or discharge the obligation or liability of any third 

person to any party to this Agreement, nor shall any provision give any third person any right of 

subrogation or action over or against any party to this Agreement.

13.5 Pronouns; Statutory References. All pronouns and all variations thereof shall be 

deemed to refer to the masculine, feminine, or neuter, singular or plural, as the context in which 

they are used may require. Any reference to the Code, the Treasury Regulations, the Act, 

Delaware Act or other statutes or laws will include all amendments, modifications, or 

replacements of the specific sections and provisions concerned.

13.6 Headings. All headings herein are inserted only for convenience and ease of 

reference and are not to be considered in the construction or interpretation of any provision of 

this Agreement.

13.7 Interpretation. In the event any claim is made by any Member relating to any 

conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or 

persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the 

request of a particular Member or its counsel.

13.8 References to this Agreement. Numbered or lettered articles, sections and 

subsections herein contained refer to articles, sections and subsections of this Agreement unless 

otherwise expressly stated.

13.9 Jurisdiction. Each Member hereby consents to the exclusive jurisdiction of the 

state and federal courts sitting in Delaware in any action on a claim between or among any of the 

Company, the Directors or the Members arising out of, under or in connection with this 

Agreement or the transactions contemplated by this Agreement. Each Member further agrees 

that personal jurisdiction over it may be effected by service of process by registered or certified 

mail addressed as provided in Section 13.13 of this Agreement, and that when so made shall be 

as if served upon it personally within the State of Delaware.

13.10 Exhibits. All Exhibits attached to this Agreement are incorporated and shall be 

treated as if set forth herein.

13.11 Severability. If any provision of this Agreement or the application of such 

provision to any person or circumstance shall be held invalid, the remainder of this Agreement or 

the application of such provision to persons or circumstances other than those to which it is held 

invalid shall not be affected thereby.

13.12 Additional Documents and Acts. Each Member agrees to execute and deliver such 

additional documents and instruments and to perform such additional acts as may be necessary or 

appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of 

this Agreement and the transactions contemplated hereby.

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13.13 Notices. Any notice to be given or to be served upon the Company or any party 

hereto in connection with this Agreement must be in writing (which may include facsimile and 

email) and will be deemed to have been given and received when delivered to the address, 

facsimile number or email address specified by the party to receive the notice. Such notices will 

be given to a Member or Director at the address, facsimile number or email address specified in 

Exhibit A, Exhibit B, Exhibit C or Exhibit D hereto. Any party may, at any time by giving five 

business (5) days’ prior written notice to the other parties, designate any other address, facsimile 

number and/or email address in substitution of the foregoing address, facsimile number and/or 

email address to which such notice will be given.

13.14 Amendments. All amendments to this Agreement shall be in writing and approved 

and executed by a Majority Interest of the outstanding Units, voting together as a single class; 

provided, however, that any amendment to Section 5.4(b)(i) of this Agreement shall also require 

the consent or approval of a Majority Interest of the outstanding Class A Units. Any amendment 

executed in compliance with this Section shall be binding upon all Members whether or not such 

Member executed the amendment. Notwithstanding the foregoing, no amendment to this 

Agreement (including, but not limited to, any amendment to Sections 3.4, 3.9, or 4.2) may be 

made that (i) obligates a Member to make additional Capital Contributions, (ii) could cause any 

Member to be personally liable for any debt, obligation or liability of the Company, or (iii) could 

result in any Member incurring or becoming subject to, any personal obligation or liability with 

respect to the Company, without the prior written consent of any Member who is, or could be, 

affected thereby.

13.15 Confidentiality. Each party to this Agreement agrees that, except with the prior 

written consent of the Company, it shall at all times keep confidential and not divulge, furnish or 

make accessible to anyone any confidential information, knowledge or data concerning or 

relating to the business or financial affairs of the Company to which such party has been or shall 

become privy, including without limitation by reason of this Agreement or such party’s 

acquisition of Units, the due diligence or discussions relating to this Agreement and/or such 

party’s acquisition of Units, the performance of such party’s obligations pursuant to this 

Agreement and/or the ownership of the Units (so long as such information is not in the public 

domain or otherwise available from a third party without confidentiality restrictions). The 

provisions of this Section 13.15 shall be in addition to, and not in substitution for, the provisions 

of any separate nondisclosure agreement executed by any of the parties to this Agreement. 

Subject to the obligations under any separate nondisclosure agreement, each party to this 

Agreement may disclose such proprietary or confidential information to any director, officer, 

employee, representative, agent, partner, subsidiary or parent of such party for the sole purpose 

of evaluating its investment in the Company as long as such director, officer, employee, 

representative, agent, partner, subsidiary or parent is advised of the confidentiality provisions of 

this Section 13.15.

13.16 Reliance on Authority of Person Signing Agreement. Neither the Company nor 

any Member will be required to determine the authority of the individual signing this Agreement 

to make any commitment or undertaking on behalf of such entity or to determine any fact or 

circumstance bearing upon the existence of the authority of such individual.

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13.17 No Interest in Company Property; Waiver of Action for Partition. No Member has 

any interest in specific property of the Company. Without limiting the foregoing, each Member 

irrevocably waives during the term of the Company any right that he or she may have to 

maintain any action for partition with respect to the property of the Company.

13.18 Multiple Counterparts. This Agreement may be executed in two or more 

counterparts, each of which shall be deemed an original, but all of which shall constitute one and 

the same instrument.

13.19 Remedies Cumulative. The remedies under this Agreement are cumulative and 

shall not exclude any other remedies to which any person may be lawfully entitled.

[Remainder of this page intentionally left blank]

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IN WITNESS WHEREOF, the parties have executed or caused to be executed this 

Limited Liability Company Agreement of Micron Devices LLC, a Delaware limited liability 

company.

“MEMBERS”

For: 

By: 

Title: 

Address:

Fax:

Email:

Date:

Initial Capital Contribution:

Number and Class of Units: 

[ Class A Units]

[ Class B Units]

[ Class C Units]

Signed:_____________________________

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SPOUSAL CONSENT

The undersigned is the spouse of ______________________________ and acknowledges 

that he/she has read the foregoing Agreement dated as of July 31st, 2013, and understands its 

provisions. The undersigned hereby expressly approves of and agrees to be bound by the 

provisions of the Agreement in its entirety, including, but not limited to, those provisions relating 

to the sales and transfers of Membership Interests and the restrictions thereon. If the undersigned 

predeceases his/her spouse when his/her spouse owns any Membership Interest in the Company, 

he/she hereby agrees not to devise or bequeath whatever community property interest or quasicommunity property interest he/she may have in the Company in contravention of the 

Agreement.

Dated as of: 

By:

Name:

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EXHIBIT A: CLASS A MEMBERS

Member Address Units Capital

Laura Perryman 16699 Collins Ave Apt 3003, Sunny Isles, FL 33160 2,111,111 $21,111.11

LSA Investors VIII, LLC 1230 Bordeaux Drive, Sunnyvale, CA 94089 311,292 $3,112.92

Robert K. Anderson 8070 N. Coconino Rd., Paradise Valley, AZ 85253 243,569 $2,435.69

Emergent Medical Partners LP 205 South Drive, Suite 2, Mountain View CA 94040 211,632 $2,116.32

Yeung Family Trust 5448 East Valle Vista Road, Phoenix AZ 85018 204,837 $2,048.37

Stephen Hochschuler, MD 5239 E. Paradise Canyon Rd., Paradise Valley, AZ 85253 186,047 $1,860.47

BioAccel 445 N Fifth Street, Suite 120, Phoenix, AZ 85004 174,294 $1,742.94

Stuart Essig, PhD 311 Enterprise Drive, Plainsboro, NJ 08536 158,872 $1,588.72

Research Corporation Technologies 5210 E. Williams Circle, Suite 240, Tucson AZ 85711 152,913 $1,529.13

Taube Investment Partners, LP 1050 Ralston Ave, Belmont CA 94002 120,000 $1,200.00

Yuan Family Trust 3692 Nelson's Walk, Naples, FL 34102 111,628 $1,116.28

Wilmington Investor Network, LLC 1802 South Churchill Drive, Wilmington, NC 28403 108,333 $1,083.33

David Auth, PhD 490 S. Beach Road, Hobe Sound, FL 33455 107,712 $1,077.12

Nancy L. Auth 490 S. Beach Road, Hobe Sound, FL 33455 107,712 $1,077.12

NeuroStim LLC 100,000 $1,000.00

Tatyana Shine North 1100 Copper Hill Road, Baltimore, MD 21209 86,169 $861.69

Robert Green 11208 Greenbriar Preserve Lane, Potomac MD 20854 80,305 $803.05

Jacobson Family Trust 5525 E Lincoln Dr., #112, Paradise Valley AZ 85253 72,171 $721.71

Patrick Larson 8935 Froude Ave, Surfside FL 33154 70,000 $700.00

Ralph Rashbaum 5x5 Trust 3508 Twin Lakes Way, Dallas TX 75093 69,947 $699.47

Les Zuckerman, MD 75 Thomas Johnson Dr., Suite C, Frederick MD 21702 64,102 $641.02

Marc Loev, MD 13609 Canal Vista Court, Potomac MD 20854 64,102 $641.02

David Mohler, MD 450 Broadway St, MC 6342, Redwood City CA 94063 60,000 $600.00

Sunil Panchal, MD 4911 Van Dyke Road, Lutz FL 33558 60,000 $600.00

Emergent Medical Associates LP 205 S Drive, Suite 2, Mountain View CA 94040 57,236 $572.36

Chad Andresen 860 N Shore Dr., Miami Beach FL 33141 50,000 $500.00

Aneesh Singla, MD 5501 Lincoln St., Bethesda, MD 20817 48,868 $488.68

Richard Weiner, MD 8230 Walnut Hill Lane, Suite 220, Dallas TX 75231 45,000 $450.00

Thomas Haider, MD PO Box 8910, Rancho Santa Fe CA 92067 43,084 $430.84

Ali El-Mohandes, MD 11248 Eastwood Dr., Hagerstown MD 21742 42,735 $427.35

Mark Hungerford, MD 301 Saint Paul Street, Baltimore MD 21202 41,367 $413.67

Todd Lanman, MD 2812 Paseo Del Mar, Palos Verdes Estates CA 90274 40,000 $400.00

Mark Coleman, MD 10 Chris Eliot Court, Cockeysville MD 21030 37,000 $370.00

Akhil Jay and Roma Khanna, MD 10725 Ardnave Place, Potomac, MD 20854 31,367 $313.67

Amir H. Fayyazi, MD 234 Kristin Lane, Allentown PA 18104 29,049 $290.49

Michael Daly, MD 1600 Crain Highway, # 301, Glen Burnie, MD 21061 25,641 $256.41

Andrej Simeunovic 9850 North 73rd Street, #2059, Scottsdale AZ 85258 25,000 $250.00

Benjamin Speck 19635 N Cave Creek Rd., #370, Phoenix AZ 85024 25,000 $250.00

Gary King, PhD 1319 Hillcrest Drive NE, Fridley MN 55432-5827 25,000 $250.00

Elizabeth Greene 1502 Jefferson Ave, 301, Miami Beach, FL 33139 25,000 $250.00

Wilson Sonsini Goodrich & Rosati 650 Page Mill Road, Palo Alto CA 94304 23,256 $232.56

WS Investment Company, LLC 650 Page Mill Road, Palo Alto CA 94304 21,542 $215.42

Abdul Shaheed Soudan, MD 304 Kerneway, Baltimore MD 21212 21,094 $210.94

Richard Guyer, MD 6020 W Parker Rd, #200, Plano TX 75093 20,781 $207.81

Jack Zigler, MD 5612 Stone Cliff Court, Dallas TX 75287 20,781 $207.81

James J. Yue, MD 50 Dover Court, Guilford, CT 06437 20,605 $206.05

Ajay Panchal 101 Bridewell Street, Apt 119, Los Angeles CA 90042 20,000 $200.00

Graham Family Investments LLC 10171 N Cliff Dweller Place, Tucson AZ 85737 13,298 $132.98

Shauket Sherali 12,205 $122.05

J. Casey McGlynn 650 Page Mill Road, Palo Alto CA 94304 10,771 $107.71

Eric Boyd, MD 6309 E Baywood Avenue, Mesa AZ 85206 10,000 $100.00

Carey-Walter Closson, MD 5200 Harvey Lane, Ellicott City MD 21043 8,547 $85.47

Ali Chahlavi 4533 Swilcan Bridge Lane N, Jacksonville FL 32224 8,000 $80.00

Usha Singla 9117 Bowling Green Dr., Frederick MD 21704 5,000 $50.00

Anish Sharad Patel, MD 14548 Edgewoods Way, Glenelg MD 21737 4,273 $42.73

Unallocated 111,757

TOTAL 5,960,005 $58,482.28

Case 20-23359-LMI Doc 234-14 Filed 04/01/21 Page 47 of 50
EXHIBIT B

NAMES AND ADDRESSES OF CLASS B MEMBERS 

Member Address Units

Capital 

Contribution**

Laura Perryman 16699 Collins Ave Apt 3003, Sunny Isles Beach FL 33160 6%* 447,000 $2,235.00

Patrick Larson 8935 Froude Ave, Surfside FL 33154 5%* 372,500 $1,241.67

Chad Andersen 860 N Shore Dr., Miami Beach FL 33141 1%* 74,500 $248.33

Unallocated 3%*223,500

1,117,500 $3,725.00

Contributions

US Provisional Patent Application Serial Numbers:

(1) 61/786,069, filed March 14, 2013 and titled Wireless Implantable Power Receiver 

System and Methods

(2) 61/799,988, filed March 15, 2013 and titled Method, System and Apparatus for Remote 

Neural Modulation Brain Stimulation and Feedback Control

(3) 61/786,049, filed March 14, 2013 and titled Devices and Methods for Treating 

Inflammation, Chronic Pain and Other Disorders with Neuromodulation

(4) 61/786,098, filed March 14, 2013 and titled Miniature Implantable Lead and Methods

(5) 61/786,131, filed March 14, 2013 and titled Devices and Methods for Treating 

CranioFacial Pain

(6) 61/786,181, filed March 14, 2013 and titled Devices and Methods for Treating Urological 

Disorders

(7) 61/838,239, filed June 22, 2013 and titled Methods and Devices for the Selective 

Modulation of Excitable Tissue

*Subject to vesting requirements set forth in the applicable Employment Agreements.

**Agreed-upon value of Contributions detailed above in exchange for initial vested portion of 

Class B Units. [Laura is 2% (223,500 Units), Patrick is 1.67% (124,167 Units), Chad is .033% 

(24,833 Units)].

Case 20-23359-LMI Doc 234-14 Filed 04/01/21 Page 48 of 50
EXHIBIT C

ADDRESSES OF CLASS C MEMBERS

AS OF JULY 30th, 2013

Member Address Units

Initial Capital 

Contribution

Stimwave Technologies 

Incorporated 9375 Shea Blvd., Suite 147, Scottsdale, AZ 85260 5% 372,495 $3,724.95

Contributions

License Agreement, dated July 31st, 2013 granting non-SCS IP rights to exploit the following:

Case 1. "Neural Stimulator System" PCT/US2012/023029, USPTO US13/551/050

Case 2. "Implantable Lead" PCT/US2012/32200

Case 3. "Remote Control of Power or Polarity Selection for a Neural 

Stimulator" PCT/US2012/023029, USPTO US 13/562,221

Case 4. "Microwave Field Stimulator" PCT/US12/50633, USPTO US13/584,618

Case 5. "Relay Module for Implant" PCT/US12/55746, USPTO US13/621,530

Case 6. “Methods and Devices for Modulating Excitable Tissue of the Exiting Spinal Nerves” 

PCT/US13/897,427

Case 7. Provision Patent USPTO 61/733,867, filed December 5, 2012 and titled Direct 

Stimulator Connector Systems and Methods

Case 8. Provision Patent USPTO 61/745,952, filed December 26, 2012 and titled Wearable 

Antenna Assembly

Case 20-23359-LMI Doc 234-14 Filed 04/01/21 Page 49 of 50
EXHIBIT D

NAMES AND ADDRESSES OF DIRECTORS AS OF JULY 31st, 2013

(Class A Directors, 3 votes)

Mark Coleman

10 Chris Eliot Court

Cockeysville MD 21030

Bob Anderson

8070 N. Coconino Rd.

Paradise Valley AZ 85253

Laura Perryman

16699 Collins Ave, Apt 3003

Sunny Isles Beach, FL 33160

(Class B Directors, 1 vote)

TBD

(Industry Director, 1 vote)

TBD

Case 20-23359-LMI Doc 234-14 Filed 04/01/21 Page 50 of 50