Exhibit 10.1


Execution Counterpart


OPERATING AGREEMENT 

(as amended)


OF


ACERAS BIOMEDICAL LLC

(a Delaware limited liability company)





OPERATING AGREEMENT 

OF 

ACERAS BIOMEDICAL LLC


 (a Delaware Limited Liability Company)


          This
Operating Agreement (the “Agreement”) of ACERAS
BIOMEDICAL LLC (the “Company”) is made and entered into effective as
of May 9, 2008 by and among each of the Members (as defined below) listed on
the signature page hereto. This Agreement, as it may be amended from time to
time, shall be binding on any person who at the time is a Member (as defined
below). 


ARTICLE I - DEFINITIONS


	
  

 	
  

 
	
 1.1.

 	
 Definitions. 

 



In addition to
the terms defined in other provisions of this Agreement, including Section B.1
of Annex B, the following terms shall have the meanings set forth below:



          “Act”
means the Delaware Limited Liability Company Act 6 Del Section 18.01-et. seq;
as amended from time to time, and any successor to such statute. 


          “Affiliate”
means any person or entity which owns or controls more than fifty percent (50%)
of the voting interests of a Member, or any entity, more than fifty percent
(50%) of whose voting interests are owned or controlled by a Member or by a
person or persons who are members of a Member. 


          “Budget”
has the meaning set forth in Section 5.1(b). 


          “Capital
Account” means the individual account maintained by the Company with respect to
each Member as provided in Annex B. 


          “Capital
Contribution” means the amount of cash or the agreed value of the property
contributed by each Member to the Company as provided in Section 4.1. 


          “Cause
Event” has the meaning set forth in Section 5.3(b). 


          “Certificate”
has the meaning set forth in Section 2.1. 


          “Databases”
has the meaning set forth in Section 5.1(g). 


          “Disposition
Date” has the meaning set forth in Section 4.5(c). 


          “Distributable
Funds” means all cash flow from capital transactions of the Company, including
proceeds from the sale or other disposition of all or portions of the Company’s
assets 





including
Portfolio Company investments, proceeds from financing or refinancing, as
reduced by (i) expenses incurred in all sales or disposition transactions, and
(ii) distributions for estimated taxes pursuant to Section 4.6. 


          “Initial
Capital Contributions” means those Capital Contributions made by the Members as
set forth on Annex A. 


          “Investment
Amount” has the meaning set forth in Exhibit I hereto. 


          “Investment
Notice” has the meaning set forth in Section 4.1(a). 


          “Liquidity
Event” means (i) an “initial public offering” of the common stock or other
equity securities of any Portfolio Company, or (ii) any other transaction which
results in a class of a Portfolio Company’s securities being publicly traded. 


          “Managing
Member” means Aceras Partners, LLC, a Delaware limited liability company. 


          “Member”
means the Managing Member, the Special Member and any other Person who at the
time is the Holder of Membership Shares pursuant to Section 3.3. 


          “Membership
Interest” means the interest of a Member in the Company, including interests in
Profits and Losses, rights to distributions (liquidating or otherwise),
allocations, information, and subject to the powers and limitations as set
forth in this Agreement, to consent to or approve actions by the Company as
represented by the Membership Shares owned by such Members. 


          “Membership
Shares” mean shares representing the interest of a Member in the Company. 


          “MM
Affiliate” means Daniel DiPietro, Peter Barber, John Liatos, Jeffrey Serbin,
M.D., Matthew G. Wyckoff, M.D., in each case while such individual is a member
of the Managing Member, and any other Person who may hereafter become a member
of the Managing Member. 


          “MM
Operating Agreement” has the meaning set forth in Section 3.7. 


          “New
Budget” has the meaning set forth in Section 5.1(b). 


          “Opportunity
Notice” has the meaning set forth in Section 5.5. 


          “Percentage
Interest” means at any particular time a fraction the numerator of which is the
number of Membership Shares held by any Member and the denominator of which is
the number of Membership Shares held by all Members. 


          “Person”
means a natural person, corporation, partnership, limited liability company,
trust, unincorporated association or other entity. 


2





          “Portfolio
Company” has the meaning set forth in Section 2.4. 


          “Portfolio
Equity” has the meaning set forth in Section 4.5(b). 


          “Primary
Business” has the meaning set forth in Section 2.4. 


          “Prospective
Investee” has the meaning set forth in Section 4.1(a). 


          “Rodman
Services” means the services described on Annex C to be provided to the
Company by Rodman & Renshaw Capital Group, Inc. (“Rodman”) without charge. 


          “Special
Member” means “Rodman Principal Investments, LLC. 


          “Trademark”
has the meaning set forth in Section 5.1(f). 


          “Valuation
Report” has the meaning set forth in Section 8.2 (d). 


          “Year-end
Valuation Report” has the meaning set forth in Section 8.2 (d). 


ARTICLE II - ORGANIZATION


	
  

 	
  

 
	
 2.1.

 	
 Formation. 

 



The Company
has been organized as a Delaware limited liability company by the filing of a
Certificate of Formation dated April 3, 2008 (the “Certificate”) with the
Secretary of State of the State of Delaware under and pursuant to the Act. 


	
  

 	
  

 
	
 2.2.

 	
 Name. 

 



The name of
the Company is ACERAS BIOMEDICAL LLC and all Company business shall be
conducted under that name or such other names that comply with applicable law
as the Managing Member may select from time to time. 


	
  

 	
  

 
	
 2.3.

 	
 Registered Office; Principal Place of Business; Other Offices. 

 



The registered
office of the Company shall be 847 Walker Road, Suite C, Dover, Delaware or
such other office (which need not be a place of business of the Company) as the
Managing Member may designate from time to time in the manner provided by law.
The name and address of the Company’s registered agent for service or services
in the State of Delaware is United Corporate Services, Inc. The principal place
of business of the Company shall be at such place as the Members may jointly
agree from time to time, which need not be in the State of Delaware. The
Company may have such other offices as the Members may jointly agree from time
to time. 


3









	
  

 	
  

 
	
 2.4.

 	
 Purpose. 

 



The purpose of
the Company shall be to (i) invest in the healthcare sector by purchasing or
licensing discrete assets through (A) the creation of newly formed entities
which the Managing Member will initially manage until handing operations over
to a dedicated management team identified by the Managing Member, and (B) investments in special situations involving
biotech companies (public or private) that result in the Company having
effective control over the operations of each such biotech company
(collectively, the “Primary Business”), and (ii) engage in any other lawful
activities under the Act. The Company expects that it will own shares of the
capital stock, debt or other securities of companies in which it makes
investments. Each entity in which the Company makes an investment is herein
called a “Portfolio Company.” 


	
  

 	
  

 
	
 2.5.

 	
 Term. 

 



The existence
of the Company shall continue unless and until the Company is dissolved, wound
up and terminated in accordance with Article IX. No Member shall have the
right, and each Member hereby agrees not to, resign from the Company, nor to
dissolve, terminate or liquidate, or to petition a court for the dissolution,
termination or liquidation of the Company, in each case except as expressly
provided in this Agreement. Except with the written consent of the Members, no
Member at any time shall have the right to petition or to take any action to
subject Company assets or any part thereof to the authority of any court or
other governmental body in connection with any bankruptcy, insolvency,
receivership or similar proceeding. 


ARTICLE III - MEMBERSHIP INTERESTS


	
  

 	
  

 
	
 3.1.

 	
 Initial and Subsequent Members. 

 



The initial
Members of the Company are the Managing Member and the Special Member.
Additional Members may be admitted from time to time with the approval of both
the Managing Member and the Special Member. When any Person is admitted as a
Member, the Managing Member shall prepare a revised version of Annex A
and distribute it to all the Members. 


	
  

 	
  

 
	
 3.2.

 	
 Membership Shares. 

 



The Company
shall have the right to issue Membership Shares. The initial issuance of
Membership Shares shall be as set forth on Annex A. The Company may (but
is not required to) issue certificates to evidence ownership of Membership
Shares. Such certificates will provide no rights independent of this Agreement
and shall be transferable only to the extent the Membership Shares evidenced
thereby are transferable hereunder and may bear a legend expressing such
restrictions. Fractions of a Membership Share may be created and issued. The
rights, preferences, privileges and restrictions granted to and imposed upon
the Membership Shares are set forth in this Agreement. No additional Membership
Shares may be issued without the approval of both the Managing Member and the
Special Member. 


4









	
  

 	
  

 
	
 3.3.

 	
 Record Holders of Membership Shares. 

 



The Company
shall be entitled to treat the Person in whose name any Membership Shares of
the Company stand on the books of the Company as the absolute owner thereof.
The Company shall not be bound to recognize any equitable or other claim to, or
interest in, such Membership Shares on the part of any other Person whether or not
the Company has express or other notice of any such claim. 


	
  

 	
  

 
	
 3.4.

 	
 Transfers and Assignments of Membership Shares. 

 



          (a)
General Restriction on Transfer. Except as expressly provided for below
in this Section 3.4 and in compliance with any applicable securities laws,
Membership Shares in the Company and the Membership Interests represented
thereby shall not be transferable or assignable (a transfer, for purposes of
this Agreement, shall be deemed to include any sale, transfer, pledge, swap, creation
of a security interest or other disposition or similar transaction having the
effect of transferring economic ownership). 


          (b)
Transfer to Affiliates or Other Members. Notwithstanding any other
provision in this Agreement, a transfer by a Member of all or part of such
Member’s Membership Interest to an Affiliate of the Member or another Member
shall be permitted. The transferring Member shall provide not less than 30 days
prior written notice to the Company of such transfer. 


          (c)
Procedure. Transfers of Membership Shares shall be made on the
Membership Share register of the Company. No transfer shall be made
inconsistent with the provisions of Subchapter VII of the Act or other
applicable provisions of law. The transferor and the transferee shall have
complied with such other requirements as the Members may reasonably impose. The
transferee shall agree in writing to be bound by all the terms and provisions
of this Agreement then in effect and pay such fees as the Managing Member may
require to pay the reasonable costs of the Company in effecting such
substitution of a Member. 


          (d)
Capital Account of Transferee. Upon the transfer of a Membership
Interest, the transferee shall succeed to the Capital Account (or pro rata portion
thereof) of the transferor as provided in Section B.2(b) of Annex B. 


	
  

 	
  

 
	
 3.5.

 	
 No Right of Partition. 

 



A Member shall
not have the right to seek or obtain partition by court decree or operation of
law of any Company property, or the right to own or use particular assets of
the Company. 


	
  

 	
  

 
	
 3.6

 	
 Other Ventures. 

 
	
  

 	
  

 
	
  

 	
           (a)
 Unless otherwise approved by the Special Member, neither the Managing Member
 nor any of its Affiliates other than the MM Affiliates shall at any time
 while the Managing Member is a Member and for twelve (12) months thereafter,
 own any equity or beneficial interest in, or serve as a director, manager,
 officer, employee or agent of, or consultant to, any Person whose business
 model is substantially similar to the Primary 

 


5









	
  

 	
  

 
	
  

 	
 Business;
 provided that the foregoing shall not prohibit the Managing Member or such
 Affiliates from making any passive investment. The foregoing restriction
 shall terminate upon the dissolution of the Company. 

 
	
  

 	
  

 
	
  

 	
           (b) Unless
 otherwise approved by the Special Member, no MM Affiliate shall at any time
 while it is an MM Affiliate and for twelve (12) months thereafter, own any
 equity or beneficial interest in, or serve as a director, manager, officer,
 employee or agent of, or consultant to, any Person whose business model is
 substantially similar to the Primary Business; provided that the foregoing
 shall not prohibit such MM Affiliate from making any passive investment. The
 foregoing restriction shall terminate upon the dissolution of the Company.
 Notwithstanding the foregoing provisions of this Section 3.6(b), if any MM
 Affiliate is a party to an employment agreement with the Company containing
 restrictions comparable to those contained in this Section 3.6(b) and certain
 conditions come into existence or certain events occur that would cause the
 restrictions contained in such employment agreement not to apply to such MM
 Affiliate, then the restrictions contained in this Section 3.6(b) shall also
 not apply to such MM Affiliate.

 
	
  

 	
  

 
	
 3.7

 	
 Operating Agreement of Managing Member. 

 



          The
Managing Member has provided a copy of the Operating Agreement of the Managing
Member (the “MM Operating Agreement”) to the Special Member. The Managing
Member and each of the MM Affiliates hereby agree with the Special Member that
they will not amend any of the following provisions of the MM Operating
Agreement without the prior written consent of the Special Member: 


          (1)
Section 11.1 of the MM Operating Agreement, providing that if any member of
Managing Member wants to sell his interest he may only do so to other members
of Managing Member. 


          (2)
Section 11.6(a) of the MM Operating Agreement, providing that if any MM
Affiliate is no longer employed by the Company they must sell their membership
interest in Managing Member back to Managing Member for $1,200.00 (but they
will retain an “economic” interest in any undistributed shares of companies
which have not yet been monetized and/or distributed by the Company. 


          (3)
Section 3.2 of the MM Operating Agreement, providing that Special Member must
approve admission of any new member to Managing Member, if such admission would
result in the individuals who are MM Affiliates as of the date hereof no longer
beneficially holding more than 66 2/3 percent of the membership interests of
the Managing Member, which approval will not be unreasonably withheld. 


          (4)
Section 2.6 of the MM Operating Agreement, providing that member of Managing
Member will not own any equity or beneficial interest in, or serve as a
director, manager, officer, employee or agent of, or consultant to, any Person
whose business model is substantially similar to the Primary Business. 


6






ARTICLE IV - FINANCIAL AND TAX MATTERS


	
  

 	
  

 
	
 4.1.

 	
 Capital Contributions. 

 



          (a)
Total Capital Contributions. The Capital Contributions to the Company
shall be comprised of the Initial Capital Contributions as set forth on Annex A
and subsequent Capital Contributions of a Member, if any. 


                    (1)
Initial Capital Contributions. Upon the execution of this Agreement, the
Members shall contribute to the Company the Initial Capital Contributions. 


                    (2)
Subsequent Capital Contributions. 


                              (i)
Working Capital. The Special Member shall make additional capital
contibutions to the Company as required to fund the payment of amounts when due
and payable under the Budget for the years ended December 31, 2008, 2009, 2010,
2011, 2012 and 2013. 


                              (ii)
Portfolio Companies. 


                                        (a)
At such time as the Managing Member shall have identified a potential Portfolio
Company or an existing Portfolio Company in which it proposes the Company make
an investment (a “Prospective Investee”), the Managing Member shall notify the
Special Member in writing (an “Investment Notice”), which Investment Notice
shall contain the information set forth on Exhibit I hereto. The Special
Member shall provide such Investment Amount to the Company as an additional
capital contribution, at the times set forth in the Investment Notice. 


                                        (b)
Notwithstanding anything to the contrary which may be contained herein, in no
event shall the aggregate amount of all additional capital contributions
required to be made by the Special Member pursuant to Section 4.1(a)(2)(ii)
exceed $20,000,000. 


                              
(iii) No Additional Contribution. Except as provided in this Section
4.1(a)(2), no Member shall be required to contribute any additional capital to
the Company, and no Member shall have any personal liability for any obligation
of the Company or any other Member. Notwithstanding the foregoing, the Managing
Member shall be liable to repay to the Special Member 50% of any additional
capital contributions made by the Special Member in excess of the additional
capital contributions contemplated by Section 4.1(a)(2)(i) and 4.1(a)(2)(ii)
hereof in connection with (A) any settlement of a Proceeding (as defined in
Section 7.1 below) involving the Company agreed to by the Managing Member and
the Special Member and (B) any judgement issued or fine assessed against the
Company. 


          (b)
Interest on Capital Contributions. All of the Capital Contributions made
by the Special Member shall be held in an interest bearing bank account chosen
by the Special Member, and all interest earned thereon shall be allocated as an
item of income to the Special Member and shall be distributed to the Special
Member quarterly. Except as provided herein, no interest shall 


7





be paid by the
Company on any Member’s Capital Contribution or on the amount in any Member’s
Capital Account.


          (c)
Liability for Company Debts and Additional Capital Contributions. Except
as specifically provided in this Agreement, no Member shall be liable for any
of the debts of the Company or be required to make any additional Capital
Contributions. 


          (d)
No Change to Membership Interests. For the avoidance of doubt, there
will be no change to any Member’s Membership Interests or Membership Shares as
a result of its having made any subsequent Capital Contribution in accordance
with Section 4.1(a)(2) or otherwise. 


	
  

 	
  

 
	
 4.2.

 	
 Return of Contributions. 

 



Except as
otherwise provided in this Agreement, a Member is not entitled to the return of
any part of the Member’s Capital Contribution. An unrepaid Capital Contribution
is not a liability of the Company or of any Member. Except as specifically
provided in this Agreement, a Member is not required to contribute or to lend
any cash or property to the Company to enable the Company to return any
Member’s Capital Contributions. 


	
  

 	
  

 
	
 4.3.

 	
 Capital Accounts. 

 



A Capital
Account shall be established and maintained for each Member as provided in
Annex B. 


	
  

 	
  

 
	
 4.4.

 	
 Profits and Losses. 

 



Profits and
Losses shall be allocated to the Members as provided in Annex B. 


	
  

 	
  

 
	
 4.5.

 	
 Distributions. 

 



          (a)
Distributions of Distributable Funds. Distributions of Distributable
Funds shall be made to the Members at such time and in such amounts as either
the Managing Member or the Special Member shall request. Such distributions
shall be made to the holders of Membership Shares pro-rata in relation to their
respective Percentage Interest. 


          (b)
Portfolio Equity Distributions. Distributions of equity received by the
Company in connection with an investment in a Portfolio Company (“Portfolio
Equity”) shall not be made until a Liquidity Event has occurred with respect to
such Portfolio Equity; and thereafter a distribution of such Portfolio Equity
shall be made upon the request of either the Managing Member or the Special
Member except as otherwise prohibited by law or contractual obligations. Such
distributions shall be made to the holders of Membership Shares pro-rata in
relation to their respective Percentage Interest. 


          (c)
Prior Notice of Transfer. The Managing Member, the Special Member and
each MM Affiliate (including a former MM Affiliate who received a distribution
of Portfolio Equity) agree that they will not sell, transfer or otherwise
dispose of any Portfolio Equity without giving each other Member and each MM
Affiliate (or former MM affiliate, as the case may be) at least one


8





(1) business
day prior notice of such sale, transfer or other disposition, which notice
shall set forth the day on which such Member or MM Affiliate (or former MM
affiliate, as the case may be), as the case may be, intends to make such
disposition (a “Disposition Date”); it being agreed that each party may dispose
of any or all of such Portfolio Equity on or after such Disposition Date
without further notice. 


          (d)
Distribution of Other Property. Distributions of assets of the Company
other than Distributable Funds and Portfolio Equity shall be made to the
Members at such time and in such amounts as either the Managing Member or the
Special Member shall request. Such distributions shall be made to the holders
of Membership Shares pro-rata in relation to their respective Percentage
Interest. 


	
  

 	
  

 
	
 4.6.

 	
 Tax Distributions. 

 



The Company
will use reasonable efforts, consistent with any restrictions which may be
imposed by any creditor of the Company or applicable law, to make distributions
to each Member in amounts such that, prior to April 15 of each calendar year,
each Member has received distributions in aggregate amounts since the date such
Person became a Member of not less than the sum for the immediately preceding
Fiscal Year and for all prior Fiscal Years of (i) the amount of taxable income
allocated to such Member for such Fiscal Years, reduced by the amount of
taxable losses allocated to such Member for such Fiscal Years, multiplied by
(ii) 40%. The Company will use reasonable efforts to cause such distributions
to be made in a manner which permits such Members to use the proceeds of such
distributions to make on a timely basis all required estimated payments of
income taxes in respect of the taxable income so allocated to them. 


ARTICLE V - MANAGEMENT


	
  

 	
  

 
	
 5.1.

 	
 Management of the Company. 

 



          (a)
Exclusive Responsibility. Except as otherwise provided in this
Agreement, the management of the business and affairs of the Company shall be
the sole and complete responsibility of the Managing Member, who is authorized
and directed to execute any and all documents and bind the Company thereby
without the approval of any Member except as expressly provided for in Section
5.1(c), including (1) selecting the Prospective Investees, (2) management of the
Company’s investments in Portfolio Companies, (3) voting of the Company’s
investments in Portfolio Companies, (4) sale of the Company’s investments in
Portfolio Companies and (5) executing and delivering leases, contracts, notes,
bonds, indentures, mortgages and deeds. 


          (b)
Budget. The budget for the period from May 12, 2008 thru December 31,
2008 and the budget for the year 2009 have each been agreed to by the Members.
On or before November 30 of each year beginning on November 1, 2009, the Managing
Member and the Special Member shall by collective agreement establish a budget
for the following year (a “New Budget”) provided that if on or before the first
day of such following year the Managing Member and the Special Member do not
agree on such New Budget, all line items in such New Budget shall be


9





equal to one
hundred ten percent (110%) of the amount of such line item in the Budget for
the prior year. Each of the budgets for 2008, 2009 and each New Budget is
referred to as a “Budget.” Subject to
the aggregate expense amounts set forth in each Budget, the Managing Member
shall have authority over expenditures of the Company. 


          (c)
Action by the Company. Notwithstanding anything to the contrary which
may be contained herein, each of the following actions by the Company will at
all times require the approval of the Special Member: 


	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 any material
 modification to the line item allocations of any Budget; 

 
	
  

 	
 (2)

 	
 any
 transaction between the Company with any Members, any MM Affiliate or any of
 their respective Affiliates;

 
	
  

 	
 (3)

 	
 admission of
 new Members;

 
	
  

 	
 (4)

 	
 any material
 change in the nature and scope of the business of the Company;

 
	
  

 	
 (5)

 	
 any
 authorization or increase in the amount of Membership Interests;

 
	
  

 	
 (6)

 	
 any merger,
 consolidation, reorganization, reclassification, recapitalization, spin-off
 or similar transactions involving the Company;

 
	
  

 	
 (7)

 	
 any change
 in the Company’s legal form or change that would otherwise affect the tax
 treatment of the Company;

 
	
  

 	
 (8)

 	
 the
 liquidation, dissolution, winding up, voluntary bankruptcy, approval of
 receivers or similar events involving the Company;

 
	
  

 	
 (9)

 	
 the
 initiation of any claim or litigation involving the Company;

 
	
  

 	
 (10)

 	
 the entry
 into any consent decree, settlement or negotiation with a government
 regulatory or enforcement agency;

 
	
  

 	
 (11)

 	
 the entry
 into any consent decree or settlement as a result of legal action from a
 private party;

 
	
  

 	
 (12)

 	
 the
 commencement of any voluntary bankruptcy, insolvency or similar proceeding
 with the Company as debtor;

 
	
  

 	
 (13)

 	
 the entry
 into any non-competition or other similar agreement that directly or
 indirectly restricts or limits the actions of affiliates of the Company or
 its Members; and

 
	
  

 	
 (14)

 	
 the entry
 into any other transaction or series of related transactions out of the
 ordinary course of business. 

 



          (d)
Delegation. The Managing Member may delegate the right, power and
authority to manage the business, affairs, operations and activities of the
Company to any officer, employee or agent or affiliate of the Managing Member
or the Company, subject to the ultimate direction, control and supervision of
the Managing Member. 


          (e)
Provision of Rodman Services. The Special Member shall cause Rodman to
provide the Rodman Services to the Company to the extent and to the same level
that such services are conducted by Rodman for the benefit of itself or any of
its Affiliates. Rodman shall use commercially reasonable efforts to provide the
Rodman Services in accordance with the policies, procedures and practices then
in effect at Rodman and in a manner substantially similar to the manner in
which such services are provided by Rodman for the benefit of itself or any of
its


10





Affiliates.
The parties shall use good faith efforts to cooperate with each other in all
matters relating to the provision or receipt of the Rodman Services. 


          (f)
License of Aceras Trademark. The Managing Member hereby grants to the
Company a non-exclusive, non-transferable, worldwide, paid-up license (without
the right to grant sublicenses) to use the name “ACERAS” (the “Trademark”) in
connection with the operation of the Primary Business. Such license shall
terminate as provided in Section 9.2(c) herein. The use of the Trademark by the
Company shall be subject to the prior review and approval of the Managing
Member, which approval shall not unreasonably be withheld. Neither the Company
nor any Member shall use the Trademark in such a way as to (i) injure, damage,
or otherwise negatively affect the Managing Member’s goodwill in the Trademark
or (ii) otherwise dilute such Trademark. It is understood and acknowledged that
the Managing Member is the owner of the Trademark. Neither the Company nor any
Member shall at any time do, cause to be done, or permit any act or thing inconsistent
with, contesting or in any way impairing or tending to impair such ownership.
Neither the Company nor any Member shall challenge the title or ownership of
the Managing Member to the Trademark or attack or contest the validity of the
Trademark. 


          (g)
License of Certain Databases. The Managing Member hereby grants to the
Company a non-exclusive, non-transferable, worldwide, paid-up license (without
the right to grant sublicenses) to use certain databases of the Managing Member
that have been developed (or are to be developed) and contain proprietary
information regarding the Primary Business (the “Databases”). Such license
shall terminate as provided in Section 9.2(c) herein at which time the Company
shall, at the option of the Managing Member, return or destroy all copies of
the Databases, provided, however, that the Special Member may maintain one copy
of any such database if, in the opinion of its counsel, it is required to do so
by applicable law or regulation. Should the Special Member be so required to
maintain a copy of any such database, it shall maintain it in a secure fashion,
so that access is made available only to legal and compliance personnel.
Nothing contained herein shall be deemed to convey any title or ownership
interest in the Databases or in any intellectual property contained therein to
the Company. Neither the Company nor any Member shall take any action which
will adversely affect the Managing Member’s proprietary rights in the
Databases, including the Managing Member’s patent, copyright, trademark and
trade secret rights. Neither the Company nor any Member shall make use of the
Databases for any purpose other than to engage in the Primary Business. The
Company may copy the Databases only as needed for backup and disaster-recovery
purposes, provided that the Company reproduces all copyright notices and other
proprietary notices, regardless of form, contained in the Databases. Neither
the Company nor the Members shall reverse engineer, decompile or disassemble
the Databases or any part thereof. The Company and the Members shall keep the
Databases and all the intellectual property contained therein confidential and
take all steps reasonably necessary to prevent the unauthorized disclosure
thereof, but, in any event, such parties shall take at least such steps as
those which such party takes to protect its own proprietary information.
Neither the Company nor any Member shall disclose all or any portion of the
Databases, the intellectual property contained therein or any passwords thereto
to any third party without the prior written consent of the Managing Member. 


11









	
  

 	
  

 
	
 5.2.

 	
 Officers; Delegation and Duties. 

 



The Managing
Member may elect any Person to serve as an officer of the Company. The Managing
Member may assign titles to the officers they elect. Unless the Managing Member
decides otherwise, if the title is one commonly used for officers of a business
corporation, the assignment of such title shall constitute the delegation of
the authority and duties that are normally associated with that office, subject
to any specific delegation of authority and duties made by the Managing Member.
Any number of offices may be held by the same Person. The salaries or other
compensation, if any, of the officers and agents of the Company shall be fixed
in accordance with the Budget in effect from time to time. 


	
  

 	
  

 
	
 5.3.

 	
 Removal. 

 



          (a)
Removal. Upon the occurrence of a Cause Event the Special Member shall
thereafter have all of the power and authority designated to the Managing Member
hereunder. 


          (b)
Cause Event. A “Cause Event” shall mean fraud, gross negligence or
willful misconduct on the part of the Managing Member in the performance of its
duties hereunder. 


	
  

 	
  

 
	
 5.4.

 	
 Compensation of Managing Member. 

 



The Managing
Member shall not receive any compensation for serving as the Managing Member.
Each of the MM Affiliates shall enter into an employment agreement with the
Company in a form mutually agreeable to the parties to such agreement and the
Special Member. 


	
  

 	
  

 
	
 5.5

 	
 Conflicts of Interest. 

 



Subject to the
other express provisions of this Agreement the Special Member at any time and
from time to time may engage in and possess interests in other business
ventures of any and every type and description, independently or with others,
including, ones which are or might be deemed to be in competition with the
Company; provided, however, that with respect to any business venture that is
within the scope of the Primary Business, the Special Member and each of its
Affiliates shall first offer the Company the opportunity to undertake such
venture through the Company on the same terms and conditions as follows: (i)
the Special Member shall deliver a written notice to the Managing Member (the
“Opportunity Notice”) setting forth the terms of such business venture in
sufficient detail for the Managing Member to assess the nature of such business
venture, including, but not limited to, the parties to be involved, the
expected timing of the underlying transactions and the terms of payment; (ii)
within two (2) business days after receipt of the Opportunity Notice, the
Managing Member shall notify the Special Member in writing of the Managing
Member’s decision whether the Company will seek to undertake such business
venture; and (iii) if the Managing Member has elected to decline such business
venture, or has not replied to the Special Member in writing within such two
(2) business day period, then the Special Member or one of its Affiliates may
enter into such business venture. The Company shall have a thirty (30) day
period to enter into a term sheet in connection with each respective
opportunity it elects to pursue pursuant to this Section 5.5 (and an additional
thirty- (30-) day period if the Company has been actively engaged in
negotiations with respect to such a term 


12





sheet) and
upon the expiration of such period, if a term sheet has not been executed, the
Special Member or one of its Affiliates may freely pursue such business
venture. 


Notwithstanding
anything to the contrary contained in this Agreement, the Managing Member
acknowledges that the receipt by Rodman or its affiliates of any fees in
connection with transactions wherein Rodman has acted as an agent shall not be
“a business venture that is within the scope of the Primary Business.” 


	
  

 	
  

 
	
 5.6

 	
 Limitation of Liability. 

 



The Managing
Member shall not be liable, as such, for monetary damages for any action taken,
or any failure to take any action, unless (i) the Managing Member has breached
or failed in any material manner to perform its duties and (ii) the breach or
failure to perform constitutes fraud, willful misconduct or gross negligence. 


ARTICLE VI - MEMBERS


	
  

 	
  

 
	
 6.1.

 	
 Action by Members; Voting 

 



Except as
otherwise may be specifically provided in this Agreement or required by the Act
notwithstanding this Agreement, whenever any action is to be taken by vote of
the Members, it shall be authorized upon receiving the affirmative vote of the
Members holding more than fifty percent (50%) of the Membership Shares voting
as a single class. 


	
  

 	
  

 
	
 6.2.

 	
 Action by Written Consent or Telephone Conference. 

 



          (a)
Action by Consent. Any action required or permitted to be taken at a
meeting of Members may be taken without a meeting, without prior notice, and
without a vote, upon the unanimous written consent of all Members. The consents
shall be filed with the Managing Member. 


          (b)
Telephone Conferences. Members may participate in and hold a meeting by
means of conference telephone or similar communications equipment by means of which
all Persons participating in the meeting can hear each other. Participation in
a meeting pursuant to this subsection shall constitute presence in person at
the meeting. 


ARTICLE VII - INDEMNIFICATION OF MANAGING
MEMBER, OFFICERS AND OTHER AUTHORIZED REPRESENTATIVES


	
  

 	
  

 
	
 7.1.

 	
 Scope of Indemnification. 

 



          (a)
General Rule. The Company shall indemnify an Indemnified Person against
any liability incurred in connection with any Proceeding in which the
Indemnified Person may be involved as a party or otherwise by reason of the
fact that the Indemnified Person is or was serving in an Indemnified Capacity,
including liabilities resulting from any actual or alleged breach or neglect of
duty, error, misstatement or misleading statement, or negligence, except: 


13









	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 where the
 indemnification is expressly prohibited by applicable law; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (2)

 	
 where the
 conduct of the Indemnified Person has been finally determined by a court of
 competent jurisdiction (i) to constitute fraud, gross negligence or willful
 misconduct, or (ii) to be based upon or attributable to the receipt by the
 Indemnified Person from the Company of a personal benefit to which the
 Indemnified Person is not legally entitled, or 

 
	
  

 	
  

 	
  

 
	
  

 	
 (3)

 	
 to the
 extent the indemnification has been finally determined to be otherwise
 unlawful. 

 



          (b)
Partial Payment. If an Indemnified Person is entitled to indemnification
in respect of a portion, but not all of any liabilities to which the Person may
be subject, the Company shall indemnify the Indemnified Person to the maximum
extent for such portion of the liabilities. 


          Definitions.
For purposes of this Article: 


	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 “Indemnified
 Capacity” means any and all past, present and future service by an
 Indemnified Person (in one or more capacities as a Member, Managing Member,
 an officer, employee or agent of the Company, or, at the request of the
 Company, as a director, officer, employee, agent, fiduciary or trustee of
 another corporation, partnership, joint venture, limited liability company,
 trust, employee benefit plan or other entity or enterprise) in good faith and
 in a manner reasonably believed to be within the scope of the authority
 conferred on such Indemnified Person; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (2)

 	
 “Indemnified
 Person”, means any and all Members, employees and officers of the Company; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (3)

 	
 “Proceeding”
 means any threatened, pending or completed action, suit, appeal or other
 proceeding of any nature, whether civil, criminal, administrative or
 investigative, whether formal or informal, and whether brought by or in the
 right of the Company, its Members or otherwise; and 

 



          (c)
Covered Liabilities. The liabilities for which indemnification,
contribution and advancement of expenses are provided under this Article
include any damage, judgment amount paid in settlement, fine, penalty, punitive
damages, excise tax assessed with respect to an employee benefit plan, or cost
or expense, of any nature (including reasonable attorneys’ fees and
disbursements). 


	
  

 	
  

 
	
 7.2.

 	
 Proceedings Initiated By Indemnified Persons. 

 



Notwithstanding
any other provision of this Article, the Company shall not indemnify under this
Article an Indemnified Person for any liability incurred in a Proceeding
initiated (which shall not be deemed to include counterclaims or affirmative
defenses) or participated in as an intervenor or amicus curiae by the Person seeking indemnification unless
the initiation of or participation in 


14






the Proceeding
is authorized, either before or after its commencement, by the affirmative vote
of Members. This section shall not apply to successfully prosecuting or
defending the rights of an Indemnified Person granted by or pursuant to this
Article. 


	
  

 	
  

 
	
 7.3.

 	
 Advancing Expenses. 

 



          (a)
General Rule. The Company shall pay the expenses (including reasonable
attorneys’ fees and disbursements) incurred in good faith by an Indemnified
Person in advance of the final disposition of a Proceeding described in Section
7.1 or the initiation of or participation in which is authorized pursuant to
Section 7.2 upon receipt of an undertaking by or on behalf of the Indemnified
Person to repay the amount if it is ultimately determined by a court of
competent jurisdiction that the person is not entitled to be indemnified by the
Company pursuant to this Article. A showing of the financial ability of an
Indemnified Person to repay an advance shall not be a prerequisite to the
making of the advance. Except as provided in subsection (b), advancement of
expenses shall be automatic upon receipt of the undertaking to repay the amount
advanced and shall not require approval of the Members. Advancement of expenses
shall not of itself give the Company the right to select or participate in the
selection of, counsel for the Indemnified Person. 


          (b)
Exception. Subsection (a) shall not apply to a Proceeding in which an
Indemnified Person is a defendant if the initiation of the Proceeding is
authorized by the affirmative vote of the Members. 


	
  

 	
  

 
	
 7.4.

 	
 Securing of Indemnification Obligations. 

 



To further
effect, satisfy or secure the indemnification obligations provided herein or
otherwise, the Company may, at its sole option, maintain insurance, obtain a
letter of credit, act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification agreements,
pledge or grant a security interest in any assets or properties of the Company,
or use any other mechanism or arrangement whatsoever in such amounts, at such
costs, and upon such other terms and conditions as the Members shall approve. 


	
  

 	
  

 
	
 7.5.

 	
 Time for Payment. 

 



An Indemnified
Person shall be entitled to indemnification within 30 days after a written
request for indemnification, contribution or advancement of expenses has been
delivered to the Managing Member. 


	
  

 	
  

 
	
 7.6.

 	
 Contribution. 

 



If the
indemnification provided for in this Article or otherwise is unavailable for
any reason in respect of any liability or portion thereof, the Company in lieu
of indemnifying such Indemnified Person hereunder, shall contribute the amount
paid or payable by such Indemnified Person as a result of the Covered
Liabilities to which the Indemnified Person may be subject in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and the Indemnified Person on the other. 


15









	
  

 	
  

 
	
 7.7.

 	
 Mandatory Indemnification of Managing Member, Officers, Etc. 

 



To the extent
that an Indemnified Person has been successful on the merits or otherwise in
defense of any action or proceeding relating to the Indemnified Person’s
service as a representative of the Company or in defense of any claim, issue or
matter therein, the Indemnified Person shall be indemnified against expenses (including
attorneys’ fees and disbursements) actually and reasonably incurred by the
Indemnified Person in connection therewith. 


	
  

 	
  

 
	
 7.8.

 	
 Contract Rights; Amendment or Repeal. 

 



Each
Indemnified Person shall be a third party beneficiary of this Agreement. This
Agreement is not intended to give, and shall not be construed as giving, any
Person other than the Company, any Members, the Indemnified Persons (solely as
provided in this Article VII) and their respective successors and permitted
assigns, any interest or rights (including third party beneficiary rights) with
respect to or in connection with any agreement or provision herein or any
matter contemplated hereby. Any repeal, amendment or modification hereof shall
be prospective only and shall not affect any rights or obligations accrued or
then existing. 


	
  

 	
  

 
	
 7.9

 	
 Scope of Article. 

 



The rights
granted by this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification, contribution or advancement of expenses
may be entitled under any statute, agreement, vote of Members or otherwise both
as to action in an indemnified capacity and as to action in any other capacity.
The indemnification, contribution and advancement of expenses provided by, or
granted pursuant to, this Article shall continue as to a Person who has ceased
to be an Indemnified Person in respect of matters arising prior to such time,
and shall inure to the benefit of the heirs and personal representatives of
such a Person. 


	
  

 	
  

 
	
 7.10

 	
 Reliance on Provisions. 

 



Each Person
who shall act as an Indemnified Person of the Company shall be deemed to be
doing so in reliance upon the rights provided by this Article. 


ARTICLE VIII — BOOKS, RECORDS, REPORTS, AND
BANK ACCOUNTS


	
  

 	
  

 
	
 8.1.

 	
 Maintenance of Books. 

 



          (a)
Financial Records. The Company shall keep books and records of accounts
which shall be maintained in accordance with generally accepted accounting
principles, or such other method as the Special Member determines is required
for Federal income tax purposes, in accordance with the terms of this
Agreement, except that the Capital Accounts of the Members shall be maintained
in accordance with Annex B. 


16





          (b)
Company Records. In addition to financial records required to be
maintained under subsection (a), the Company shall keep the following records: 


	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 a list
 setting forth the full name and last known mailing address of each Member; 

 
	
  

 	
 (2)

 	
 a copy of
 the Certificate and all amendments thereto; 

 
	
  

 	
 (3)

 	
 copies of
 the Company’s Federal, state and local income tax returns and financial
 statements for the six most recent years or, if those returns and statements
 were not prepared for any reason, copies of the information and statements
 provided to the Members to enable them to prepare their federal, state and
 local state tax returns for the period; 

 
	
  

 	
 (4)

 	
 copies of
 the currently effective written Operating Agreement and all amendments
 thereto, and copies of any operating agreements no longer in effect; and 

 
	
  

 	
 (5)

 	
 minutes of
 the meetings of the Members. 

 



          (c)
Upon reasonable prior notice to the Managing Member, all Members shall have the
right to inspect the books and records of the Company referenced in subsections
(a) and (b) above. 



	
  

 	
  

 
	
 8.2.

 	
 Reports. 

 




          (a)
In General; Business Plan and Budget. The Special Member shall be
responsible for the preparation of financial reports of the Company and for the
coordination of the financial matters of the Company with the Company’s
certified public accountants. The financial statements described in subsections
(b) and (c) shall be prepared in accordance with accounting principles
generally employed when financial records are kept in accordance with United
States generally accepted accounting principles. The Company shall bear the
costs of preparing the reports required by subsections (b) and (c). 


          (b)
Annual Reports. On or before the 90th day following the end
of each fiscal year of the Company, the Special Member shall cause each Member
to be furnished with a balance sheet, an income statement, and a statement of
changes in Member’s capital of the Company for, or as of the end of, that year,
which have been audited by the Company’s certified public accountants, who
shall be selected at the sole discretion of the Special Member. Additionally,
on or before such 90th day, the Special Member shall cause each
Member to be furnished with a Schedule K-1 and any other information required
by law to be furnished to the Member for reporting the Member’s distributive
share of the annual income of the Company for federal income tax purposes. 


          (c)
Other Reports. The Special Member also may cause to be prepared or
delivered such other reports as they may deem appropriate. 


          (d)
Valuation of Portfolio Companies. 


	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 On or before
 the 15th day of each April, July and October (beginning on July
 15, 2008) the Managing Member shall prepare a report which sets forth the 

 


17









	
  

 	
  

 	
  

 
	
  

 	
  

 	
 “fair value”
 of the investment of the Company in each Portfolio Company as of the end of
 the immediately preceding month. Such report shall set forth in reasonable
 detail the methodology utilized in determining the fair value of each such
 Portfolio Company (a “Valuation Report”). Each such Valuation Report shall be
 delivered to the Special Member within two days of completion.

 
	
  

 	
  

 	
  

 
	
  

 	
 (2)

 	
 On or before
 November 30, in each year (beginning on November 30, 2008) the Managing
 Member shall engage an “expert” (which expert shall be reasonably acceptable
 to the Special Member) to prepare a Valuation Report as of the last day of
 such year (a “Year-end Valuation Report”), which Year-end Valuation Report
 shall be delivered to each Member on or prior to the 20th day of
 January following the date of such Year-end Valuation Report. 

 






	
  

 	
  

 
	
 8.3.

 	
 Financial Accounts. 

 



The Special
Member shall establish and maintain one or more separate bank and investment
accounts in the Company name with financial institutions and firms that the
Special Member determine. Company funds may be invested in a manner the same as
or similar to the Special Member’s investment of its own funds or investments
by its affiliates. The prior consent of the Members shall not be required for
the Company’s bank accounts and investment of the Company’s funds pursuant to
this Section 8.3 so long as the bank and investment accounts are federally
insured. 


ARTICLE IX - DISSOLUTION, LIQUIDATION, AND
TERMINATION


	
  

 	
  

 
	
 9.1.

 	
 Dissolution. 

 



          (a)
The Company shall dissolve and its affairs shall be wound up on the first to
occur of the following: 


	
  

 	
  

 	
  

 
	
  

 	
 (1)

 	
 a vote of
 both the Managing Member and the Special Member; 

 
	
  

 	
 (2)

 	
 entry of a
 decree of judicial dissolution of the Company under the Act; 

 
	
  

 	
 (3)

 	
 at the sole
 election in writing of the Special Member (i) at any time after June 30,
 2011, if the Company has not invested in at least two Portfolio Companies by
 June 30, 2011 and (ii) at any time after December 31, 2012, if the Company
 has not invested in at least four Portfolio Companies by December 31, 2012;

 
	
  

 	
 (4)

 	
 at the sole
 election in writing of the Special Member or the Managing Member at any time
 after December 31, 2013; or 

 
	
  

 	
 (5)

 	
 at the
 election in writing of either Member if the other Member has breached any
 material obligation of such Member under this Agreement and such breach
 remains uncured for thirty days after written notice to the breaching Member
 of such breach; and further provided that such notice under this Section is
 provided within ten (10) business days of the expiration of such thirty (30)
 day cure period. 

 


18





          (b)
For the avoidance of doubt, each obligation of the Special Member to make a
Capital Contribution pursuant to Section 4.1 is a “material obligation” for
purposes of this Section 9.1. Notwithstanding anything to the contrary
contained herein, the right set forth in Section 9.1(a)(5) is not a Member’s
exclusive remedy with respect to any such breach by the other Member. 


          (c)
The death, dissolution, retirement resignation, expulsion or bankruptcy of a
Member or the occurrence of any other event that terminates the continued
membership of a Member shall not cause a dissolution of the Company. 


	
  

 	
  

 
	
 9.2.

 	
 Liquidation and Termination. 

 



          (a)
Upon the dissolution of the Company, the Special Member shall act as liquidator
or may appoint one or more representatives or Members as liquidator. The
liquidator shall proceed diligently to wind up the affairs of the Company and
make final distributions as provided herein and in the Act. The costs of
liquidation shall be borne as a Company expense. Until final distribution, the liquidator
shall continue to operate the Company properties with all of the power and
authority of the Managing Member. The steps to be accomplished by the
liquidator are as follows: 


	
  

 	
  

 	
  

 
	
  

 	
 (1)

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

 
	
  

 	
 (2)

 	
 the
 liquidator shall first pay, satisfy or discharge from Company funds all of
 the debts, liabilities and obligations of the Company to its creditors or
 otherwise make adequate provision for payment and discharge thereof
 (including the establishment of a cash escrow fund for contingent liabilities
 in such amount and for such term as the liquidator may reasonably determine),
 all in accordance with the provisions of the Act as may be applicable; 

 
	
  

 	
 (3)

 	
 after all of
 the payments required by paragraph (2) have been made, any remaining assets
 of the Company shall be distributed to the Members as follows: 

 



                         (i)
the liquidator shall use reasonable efforts to sell, or, in the case of securities,
distribute, any or all Company property, including to Members, and any
resulting gain or loss from each sale shall be computed and allocated to the
Capital Accounts of the Members; 


                         (ii)
with respect to all Company property that has not been sold, the fair market
value of that property shall be determined and the Capital Account of the
Members shall be adjusted consistent with Section B.2. of Annex B to
reflect the manner in which the unrealized income, gain, loss, and deduction
inherent in property that has not been reflected in the Capital Accounts
previously would be allocated among the Members if there were a taxable
disposition of that property for the fair market value of that property on the
date of distribution; and 


                         (iii)
after completion of the steps in subparagraphs (i) and (ii), the remaining
assets shall be distributed to the Members in accordance with their positive
Capital Account 


19






balances and
then in accordance with respective Membership Interests consistent with the
distribution provisions of Section 4.5. 


          (b)
All distributions in kind to the Members shall be made subject to the liability
of each distributee for costs, expenses, and liabilities relating to the assets
distributed in kind theretofore incurred or for which the Company has committed
prior to the date of termination and those costs, expenses, and liabilities
shall be allocated to the distributees pursuant to this section. The
distribution of cash and/or property to a Member in accordance with the
provisions of this section constitutes a complete return to the Member of its
Capital Contributions and a complete distribution to the Member of its
Membership Interest and all the Company’s property. To the extent that a Member
returns funds to the Company, it has no claim against any other Member for
those funds. 


          (c)
Notwithstanding anything to the contrary contained herein, the license provided
by Sections 5.1(f) and 5.1(g) will terminate upon the dissolution of the
Company and the Managing Member shall retain ownership of all intellectual
property rights in and to (i) the Trademark and (ii) the Databases. In
addition, the parties acknowledge that the Managing Member shall be entitled to
report the investment results of the Company as part of its so-called “track
record” for all purposes under applicable law. 


	
  

 	
  

 
	
 9.3.

 	
 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 the deficit, if any,
in the Capital Account of any Member results from or is attributable to
deductions and losses of the Company (including non-cash items such as depreciation),
or distributions of money pursuant to this Agreement to all Members in
proportion to their respective Percentage Interests, upon dissolution of the
Company such deficit shall not be an asset of the Company and such Members
shall not be obligated to contribute such amount to the Company to bring the
balance of such Member’s Capital Account to zero. 


	
  

 	
  

 
	
 9.4.

 	
 Certificate of Dissolution. 

 



On completion
of the distribution of Company assets as provided herein, the Company is
terminated, and the Managing Member (or such other person or persons as the Act
may require or permit) shall file a Certificate of Dissolution with the
Secretary of State of the State of Delaware and take such other actions as may
be necessary to terminate the existence of the Company. 


ARTICLE X - GENERAL PROVISIONS


	
  

 	
  

 
	
 10.1

 	
 Offset. 

 



Whenever the
Company is to pay any sum to any Member, any amounts that a Member owes the
Company may be deducted from that sum before payment. 


20









	
  

 	
  

 
	
 10.2

 	
 Notices.

 



Except as
expressly set forth to the contrary in this Agreement, all notices and other
communications given under this Agreement must be in writing and must be given
either by depositing that writing in the United States mail, addressed to the
recipient postage paid, and registered or certified with return receipt
requested or by delivering that writing to the recipient in person, by courier,
by nationally recognized express mail delivery service or by facsimile
transmission. A notice or other communication given under this Agreement is effective
upon delivery or upon any refusal by an authorized representative of a Member
to accept delivery. All notices and other communications to be sent to a Member
shall be sent to the Member at the address for the Member shown on Annex A.
All notices and other communications to be sent to an MM Affiliate (or former
MM affiliate, as the case may be) shall be sent to the MM Affiliate (or former
MM affiliate, as the case may be) at the address shown on Annex A.
Whenever any notice is required to be given by law, the Certificate or this
Agreement, a written waiver thereof signed by the Person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of the notice. 


	
  

 	
  

 
	
 10.3

 	
 Entire Agreement. 

 



This Agreement
constitutes the entire agreement of the Members with respect to the Company and
supersedes all prior contracts or agreements with respect thereto, whether oral
or written. 


	
  

 	
  

 
	
 10.4

 	
 Effect of Waiver or Consent. 

 



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


	
  

 	
  

 
	
 10.5

 	
 Amendment. 

 



          (a)
This Agreement may be amended from time to time only if the amendment is
approved by both the Managing Member and the Special Member at any annual or
special meeting of the Members, or by unanimous written consent of the Members,
provided, however, that without the consent of each of the
Members to be adversely affected by an amendment, this Agreement may not be
amended so as to (i) modify the limited liability of a Member, (ii) alter the
interest of a Member in Profits and Losses or distributions of the Company or
(iii) alter any capital commitment of a Member. 


          (b)
This Agreement may be amended in the manners prescribed herein, and all rights
conferred upon Members in this Agreement are granted subject to this
reservation. 


21









	
  

 	
  

 
	
 10.6

 	
 Binding Effect.

 



This Agreement
is binding on and inures to the benefit of the Members and their respective
heirs, personal representatives, successors and assigns. 


	
  

 	
  

 
	
 10.7

 	
 Governing Law.

 



This Agreement
shall be governed by and interpreted in accordance with the substantive laws of
the State of Delaware, without reference to the principles governing the
conflict of laws applicable in that or any other jurisdiction. 


	
  

 	
  

 
	
 10.8

 	
 Severability.

 



If any
provision of this Agreement or the application thereof to any person or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision to other persons or
circumstances is not affected thereby and that provision shall be enforced to
the greatest extent permitted by law. 


	
  

 	
  

 
	
 10.9

 	
 Arbitration.

 



Except as
otherwise provided in this Agreement, all disputes arising under this Agreement
shall promptly be submitted to arbitration in New York, New York, before one
arbitrator in accordance with the rules of the American Arbitration
Association. The arbitrator may assess costs, including counsel fees, in such
manner as he deems fair and equitable. The award of the arbitrator shall be
final and binding upon all parties, and judgment upon the award may be entered
in any court of competent jurisdiction. 


	
  

 	
  

 
	
 10.10

 	
 Construction.

 



Whenever the
context requires, the gender of any word used in this Agreement includes the
masculine, feminine or neuter, and the number of any word includes the singular
or plural. The words “include”, “includes” and “including” shall be deemed to
be followed by the words “without limitation” whether or not such words are set
forth herein. References to any statute or Treasury Regulations means such
statute or regulations as amended at the time and include any successor
legislation or regulations. The headings to the articles and sections are for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement. All references to articles and sections refer to articles and
sections of this Agreement, and all references to annexes are to annexes
attached hereto, each of which is made a part hereof for all purposes. 


	
  

 	
  

 
	
 10.11

 	
 Counterpart Originals.

 



This Agreement
may be executed in counterpart originals and all executed counterparts shall,
when taken together, constitute the entire Agreement. Facsimile signatures
shall be valid and binding for all purposes. 


22









	
  

 	
  

 
	
 10.12.

 	
  Public Announcements. 

 



Except as
otherwise agreed to by the parties hereto, no party shall issue any report,
statement or press release or otherwise make public statements with respect to
this Agreement, the Company and/or the Company’s business, including the
Primary Business, and no party shall use the name, trademark, trade name or
logo of the other party, its Affiliates or their respective employee(s) except
(i) to the extent reasonably required in connection with the operation of the
business of the Company or the Special Member and in a manner consistent with
prior public press releases by the parties hereto or (ii) as in the reasonable
judgment of such party may be required by law or in connection with the
obligations of a publicly held company under applicable laws and the listing
standards of any stock exchange on which its securities are traded, in which
case the parties hereto will use commercially reasonable efforts to consult
with each other with respect to the issuance of a report, statement or press
release as to the language of such report, statement or press release. 


          IN
WITNESS WHEREOF, the Members of the Company have
caused this Operating Agreement to be executed as of the day and year first
above written. 




	
  

 	
  

 	
  

 
	
  

 	
RODMAN
PRINCIPAL INVESTMENTS, LLC  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 
	
  

 	
 ACERAS
 PARTNERS, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
    /s/

 
	
  

 	
  

 	

 


 


23






Annex A


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Member

 	
  

 	
 Capital

 Contribution

 	
  

 	
 Number of

 Membership

 Shares Owned

 	
  

 	
 Membership

 Percentage

 	
  

 
	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 	

 


 	
  

 
	
  

 
	
 Rodman Principal
 Investments, LLC

 1270 Avenue of the Americas 

 New York, NY 10020

 Attn.: Chief Executive Officer

 	
  

 	
 $              5,000

 	
  

 	
 10,000

 	
  

 	
  

 	
 50

 	
 %

 
	
 Aceras Partners, LLC

 15 Broad Street 

 Apt# 1912

 New York, NY 10005

 Attention: Managing Member

 	
  

 	
 $              5,000

 	
  

 	
 10,000

 	
  

 	
  

 	
 50

 	
 %

 



MM Affiliates’ Addresses: 


24






Annex B


FINANCIAL AND TAX MATTERS


	
  

 	
  

 
	
 B.1.

 	
 Definitions.
 

 



In addition to the terms
defined in other provisions of this Agreement, the following terms shall have
the meanings set forth below: 


          “Adjusted
Capital Account Deficit” shall mean with respect to any Member, the deficit
balance, if any, in the Member’s Capital Account as of the end of the relevant
fiscal year, after giving effect to the following adjustments (i) increasing
the Capital Account by any amounts that the Member is obligated to restore or
is deemed to be obligated to restore pursuant to Treas. Reg. Sections
1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5); and (ii) reducing the
Capital Account by the items described in Treas. Reg. Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6). The foregoing definition of Adjusted
Capital Account Deficit is intended to comply with the provisions of Treas.
Reg. Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith. 


          “Asset
Adjusted Basis” with respect to any asset shall mean the assets adjusted basis
for Federal income tax purposes, except as follows: 


                    (1)
The initial Asset Adjusted Basis of any asset contributed by a Member to the
Company shall be the gross fair market value of the asset, as determined by the
contributing Member and the Company. 


                    (2)
The Asset Adjusted Basis of all Company assets shall be adjusted to equal their
respective gross fair market values, as determined by the Special Member, 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 contribution of money or other
property; 


                              (ii)
the distribution by the Company to a Member of more than a de minimis amount of
money or other property as consideration for an interest in the Company; 


                              (iii)
the liquidation of the Company for Federal income tax purposes within the
meaning of Treas. Reg. Section 1.704-1(b)(2)(ii)(g); except that the
adjustments pursuant to clauses (i) and (ii) above shall be made only if the
Special Member reasonably determines that such adjustments are necessary or
appropriate to reflect the relative economic interests of the Members in the
Company. 


                    (3)
The Asset Adjusted Basis of any Company asset distributed to any Member shall
be the gross fair market value of such asset on the date of distribution. 


25





                    (4)
The Asset Adjusted Basis of Company assets shall be increased (or decreased) to
reflect any adjustments to the adjusted basis of those assets pursuant to Code
Section 734(b) or Code Section 743(b), but only to the extent that the
adjustments are taken into account in determining Capital Accounts pursuant to
Treas. Reg. Section 1.704-1(b)(2)(iv)(m) and Section B.2, except that Asset
Adjusted Basis shall not be adjusted pursuant to this paragraph (4) to the
extent the Special Member reasonably determines that an adjustment pursuant to
paragraph (2) is necessary or appropriate in connection with a transaction that
would otherwise result in an adjustment pursuant to this paragraph (4). 


                    (5)
If the Asset Adjusted Basis of an asset has been determined pursuant to
paragraphs (1), (2), or (4), that Asset Adjusted Basis shall thereafter be
adjusted by the Depreciation taken into account with respect to that asset for
purposes of computing Profits and Losses. 


          “Business
Day” means any day other than a Saturday, a Sunday, or a holiday or such other
day on which national banking associations in the City of New York are closed. 


          “Code”
means the Internal Revenue Code of 1986 and any successor statute, as amended
from time to time. 


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


          “Depreciation”
shall mean for each fiscal year or other period, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with
respect to an asset for such year or other period, except that if the Asset
Adjusted Basis of an asset differs from its adjusted basis for Federal income
tax purposes at the beginning of such year or other period, Depreciation shall
be an amount which bears the same ratio to such beginning Asset Adjusted Basis
as the Federal income tax depreciation, amortization, or other cost recovery
deduction for such year or other period bears to such beginning adjusted tax
basis; except that if the Federal income tax depreciation, amortization, or
other cost recovery deduction for such year is zero, Depreciation shall be
determined with reference to such beginning Asset Adjusted Basis using any
reasonable method selected by the Special Member, and if the Company uses the
“remedial allocation method” under Treas. Reg. Section 1.704-3(d) with respect
to any asset Depreciation for that asset shall be computed in accordance with
Treas. Reg. Section 1.704-3(d)(2). 


          “Member
Nonrecourse Debt” has the same meaning as “partner nonrecourse debt” set forth
in Treas. Reg. Sections 1.704-2(b)(4) and 1.704-2(i). 


          “Member
Nonrecourse Debt Minimum Gain” shall have the same meaning as “partner
nonrecourse debt minimum gain” set forth in Treas. Reg. Section 1.704-2(i) and
shall be determined in accordance with the principles of that Section. 


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


26





          “Nonrecourse
Deductions” are deductions having the meaning set forth in Treas. Reg. Sections
1.704-2(b)(1) and 1.704-2(c). 


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


                    (1)
Any income of the Company that is exempt from Federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to the
foregoing shall be added to such taxable income or loss. 


                    (2)
Any expenditures of the Company described in Code Section 705(a)(2)(B) or that
are treated as Code Section 705(a)(2)(B) expenditures pursuant to Treas. Reg. Section
1.704-1 (b)(2)(iv)(i) and not otherwise taken into account in computing Profits
or Losses pursuant to the foregoing shall be subtracted from such taxable
income or loss. 


                    (3)
In the event the Asset Adjusted Basis of any Company asset is adjusted pursuant
to paragraph (2), (3) or (4) of the definition of Asset Adjusted Basis, the
amount of the adjustment shall be taken into account as gain or loss from the
disposition of the asset for purposes of computing Profits or Losses. 


                    (4)
Gain or loss resulting from any disposition of Company property with respect to
which gain or loss is recognized for Federal income tax purposes shall be
computed by reference to the Asset Adjusted Basis of the property disposed of,
notwithstanding that the adjusted tax basis of the property differs from its
Asset Adjusted Basis. 


                    (5)
In lieu of the depreciation, amortization, and other cost recovery deduction
taken into account in computing such taxable income or loss, there shall be
taken into account Depreciation for the fiscal year or other period, computed
in accordance with the definition of Depreciation under this Agreement. 


                    (6)
Notwithstanding the above, any items that are specially allocated pursuant to
Sections B.5, B.6 or B.7 shall not be taken into account in computing Profits
and Losses. 


	
  

 	
  

 
	
 B.2.

 	
 Preparation
 and Maintenance of Capital Accounts. 

 



          (a)
The Capital Account for each Member shall: 


                    (1)
be increased by (i) the amount of money contributed by that Member to the
Company, (ii) the fair market value of property contributed by that Member to
the Company (net of liabilities secured by the contributed property that the
Company is considered to assume or take subject to under Section 752 of the
Code), and (iii) allocations to that Member of Profits and any other Company
income and gain (or items thereof), including income and gain exempt from 


27





tax and income and gain
described in Treas. Reg. Section 1.704- 1 (b) (2)(iv)(g), but excluding income and gain
described in Treas. Reg. Section 1.704-1(b)(4)(1), and


                    (2)
be decreased by (i) the amount of money distributed to that Member by the
Company, (ii) the fair market value of property distributed to that Member by
the Company (net of liabilities secured by the distributed property that the
Member is considered to assume or take subject to under Section 752 of the
Code), (iii) allocations to that Member of expenditures of the Company described
in Section 705(a)(2)(B) of the Code, and (iv) allocations of Losses and any
other Company loss and deduction (or items thereof), including loss and
deduction described in Treas. Reg. Section 1.704-1(b)(2)(iv)(g), but excluding
items described in clause (2)(iii) above and loss or deduction described in
Treas. Reg. Section 1.704-1(b)(4)(i) or Section 1.704-1(b)(4)(iii). 


          (b)
The Members’ Capital Accounts also shall be maintained and adjusted as
permitted by the provisions of Treas. Reg. Section 1.704-1(b)(2)(iv)(f) and as required by the other provisions
of Treas. Reg. Section 1.704-1(b)(2)(iv) and Section 1.704-1(b)(4), including
adjustments to reflect the allocations to the Members of depreciation,
depletion, amortization, and gain or loss as computed for book purposes rather
than the allocation of the corresponding items as computed for tax purposes, as
required by Treas. Reg. Section 1.704-1(b)(2)(iv)(g). On the transfer or all or part of a Membership Interest,
the Capital Account of the transferor that is attributable to the transferred
Membership Interest or part thereof shall carry over to the transferee Member
in accordance with the provisions of Treas. Reg. Section 1.704-1(b)(2)(iv)(1). 


	
  

 	
  

 
	
 B.3.

 	
 Profits. 

 



After giving effect to the
special allocations set forth in Sections B.5 and B.6, Profits for any fiscal
year shall be allocated to the Members in accordance with their Percentage
Interests in the Company. 


	
  

 	
  

 
	
 B.4.

 	
 Losses. 

 



All losses shall first be
allocated to the Special Member to the extent that the Special Member’s capital
account exceeds the Managing Member’s capital account. Thereafter, except as
otherwise set forth in this Section B.4, after giving effect to the special
allocations set forth in Sections B.5 and B.6, Losses for any fiscal year shall
be allocated among the Members in proportion to their respective Percentage
Interests, subject to the limitation in Section B.4(2) below. 


The Losses allocated under
this Section B.4 shall not exceed the maximum amount of Losses that may be so
allocated without causing any Member to have an Adjusted Capital Account
Deficit at the end of any fiscal year. In the event some but not all of the
Members would have Adjusted Capital Account Deficits as a consequence of an
allocation of Losses pursuant to Section B.4, the limitation set forth in this
sentence shall be applied on a Member by Member basis so as to allocate the
maximum permissible Losses to each Member under Treas. Reg. Section
1.704-1(b)(2)(ii)(d). 


28









	
  

 	
  

 
	
 B.5.

 	
 Special
 Allocations. 

 



The following special
allocations shall be made in the following order: 


                    (1)
Minimum Gain Chargeback. Notwithstanding any other provision of this
Annex B, if there is a net decrease in Company Minimum Gain during any Company
taxable year, each Member shall be specially allocated items of Company income
and gain for such year (and, if necessary, subsequent years) in accordance with
Treas. Reg. Section 1.704-2(f). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated
to each Member pursuant thereto. This Section B.5(l) is intended to comply with
the minimum gain chargeback requirement in such Section of the Treasury
Regulations and shall be interpreted consistently therewith. 


                    (2)
Member Minimum Gain Chargeback. Notwithstanding any other provision of
this Agreement except Section B.5(l), if there is a net decrease in Member
Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during
any Company fiscal year, each Member who has a share of the Member Nonrecourse
Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with Treas. Reg. Section 1.704-2(i)(5), shall be specially allocated
items of Company income and gain for such year (and, if necessary, subsequent
years) in accordance with Treas. Reg. Section 1.704-2(i)(4). Allocations
pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Member pursuant thereto. The items to
be so allocated shall be determined in accordance with Treas. Reg. Section
1.704-2(i)(4). This Section B.5(2) is intended to comply with the minimum gain
chargeback requirement in that Section of the Treasury Regulations and shall be
interpreted consistently therewith. 


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


                    (4)
Gross Income Allocation. In the event any Member has an Adjusted Capital
Account Deficit at the end of any Company fiscal year, each such Member shall
be specially allocated items of Company income and gain in the amount of such
excess as quickly as possible, provided that an allocation pursuant to this
Section B.5(4) shall be made if and only to the extent that such Member would
have an Adjusted Capital Account Deficit after all other allocations provided
for in this Agreement have been tentatively made as if Section B.5(3) and this
Section B.5(4) were not in the Agreement. 


29





                    (5)
Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year or
other period shall be allocated among the Members in proportion to their
respective Percentage Interests. 


                    (6)
Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any
fiscal year or other period shall be specially allocated to the Member who
bills the economic risk of loss with respect to the Member Nonrecourse Debt to
which such Member Nonrecourse Deductions are attributable in accordance with
Treas. Reg. Section 1.704-2(i). 


	
  

 	
  

 
	
 B.6.

 	
 Curative
 Allocations. 

 



The allocations set forth in
Section B.4 and in Section B.5 (the “Regulatory Allocations”) are intended to
comply with certain requirements of Treas. Reg. Section 1.704-1 (b).
Notwithstanding any other provisions of this Agreement (other than the
Regulatory Allocations), the Regulatory Allocations shall be taken into account
in allocating Profits, Losses, and items of income, gain, loss, and deduction
among the Members so that to the extent possible, the net amount of such
allocations of Profits, Losses and other items and the Regulatory Allocations
to each Member shall be equal to the net amount that would have been allocated
to each such Member if the Regulatory Allocations had not occurred.
Notwithstanding the preceding sentence, Regulatory Allocations relating to (i)
Nonrecourse Deductions shall not be taken into account except to the extent
that there has been a reduction in Company Minimum Gain, and (ii) Member
Nonrecourse Deductions shall not be taken into account except to the extent
that there has been a reduction in Member Minimum Gain. 


	
  

 	
  

 
	
 B.7.

 	
 Tax
 Allocations: Code Section 704(c). 

 



          (a)
In accordance with Code Section 704(c) and the Treasury Regulations thereunder,
income, gain, loss and deduction with respect to any property contributed to
the capital of the Company shall, solely for tax purposes, be allocated among
the Members so as to take account of any variation between the adjusted basis
of such property to the Company for Federal income tax purposes and its initial
Asset Adjusted Basis. 


          (b)
In the event the Asset Adjusted Basis of any Company asset is adjusted pursuant
to paragraph (2) of the definition of Asset Adjusted Basis, subsequent
allocations of income, gain, loss and deduction with respect to such asset
shall take account of any variation between the adjusted basis of such asset
for Federal income tax purposes and its Asset Adjusted Basis in the same manner
as under Code Section 704(c) and the Treasury Regulations thereunder. 


          (c)
Any elections or other decisions relating to allocations pursuant to this
Section B.7 shall be made by the Special Member in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations pursuant to
this Section B.7 are solely for purposes of Federal, state, and local taxes and
shall not affect, or in any way be taken into account in computing, any
Member’s Capital Account or share of Profits, Losses, other items or
distributions pursuant to any provision of this Agreement. 


30









	
  

 	
  

 
	
 B.8.

 	
 Miscellaneous
 Allocation Provisions. 

 



          (a)
For purposes of determining the Profits, Losses or any other items allocable to
any period, Profits, Losses and any such other items shall be determined on a
daily, monthly or other basis, as determined by the Special Member using any
permissible method under Code Section 706 and the Treasury Regulations
promulgated thereunder. 


          (b)
Except as otherwise provided in this Agreement, all items of Company income
gain, loss, deduction, and any other allocations not otherwise provided for
shall be divided among the Members in the same proportions as they share
Profits or Losses, as the case may be, for the year. 


          (c)
For the purpose of determining each Member’s share of excess nonrecourse
liabilities pursuant to Treas. Reg. Section 1.752-3(a)(3), and solely for such
purpose, each Member’s interest in Company Profits is hereby specified to be
such Member’s Percentage Interest. 


          (d)
In the event of the dissolution of the Company, Profits shall first be
allocated to Members to the extent necessary to cause their Capital Accounts to
be proportionate to their Membership Interests. 


	
  

 	
  

 
	
 B.9.

 	
 Establishment
 of Reserves. 

 



The Managing Member shall
have the right and obligation to establish reasonable reserves for maintenance,
improvements, acquisitions, capital expenditures and other contingencies, such
reserves to be funded with such portion of the operating revenues of the
Company for any fiscal year as the Managing Member may deem necessary or
appropriate for that purpose. 


	
  

 	
  

 
	
 B.10.

 	
 Tax
 Returns. 

 



The Special Member shall
cause to be prepared and filed all necessary Federal and state income tax
returns for the Company, including making the elections described in Section
B.11. Each Member shall furnish to the Special Member all pertinent information
in its possession relating to Company operations that is necessary to enable
the Company’s income tax returns to be prepared and filed. 


	
  

 	
  

 
	
 B.11.

 	
 Tax
 Elections. 

 



          (a)
To the extent permitted by applicable tax law, the Company shall make the
following elections on the appropriate tax returns, 


                    (1)
to adopt the calendar year as the Company’s fiscal year, 


                    (2)
to adopt the equity method of accounting and to keep the Company’s books and
records on the income-tax method; 


                    (3)
if a transfer of a Membership Interest as described in Section 743 of the Code occurs,
on written request of any transferee Member, or if a distribution of Company
property is 


31





made on which gain described
in Section 734(b)(1)(A) of the Code is recognized or there is an excess of
adjusted basis as described in Section 734(b)(1)(B) of the Code, to elect,
pursuant to Section 754 of the Code, to adjust the basis of Company properties;



                    (4)
to elect to amortize the organizational expenses of the Company and the
start-up expenditures of the Company ratably over a period of 60 months as
permitted by Sections 195 and 709(b) of the Code; and 


                    (5)
any other election the Special Member may deem appropriate and in the best
interests of the Members. 


          (b)
Neither the Company nor any Member may make an election for the Company to be
excluded from the application of the provisions of subchapter K of chapter I of
subtitle A of the Code or any similar provisions of applicable state law, and
no provision of this Agreement shall be construed to sanction or approve such
an election. 


	
  

 	
  

 
	
 B.12.

 	
 Tax
 Matters Partner. 

 



          (a)
Special Member is hereby designated as the “tax matters partner” of the Company
pursuant to Section 6231 (a)(7) of the Code. The tax matters partner shall take
such action as may be necessary to cause each other Member to become a “notice
partner” within the meaning of Section 6223 of the Code. The tax matters
partner shall inform each other Member of all significant matters that may come
to its attention in its capacity as tax matters partner by giving notice
thereof on or before the fifth Business Day after becoming aware thereof and,
within that time, shall forward to each other Member copies of all significant
written communications it may receive in that capacity. The tax matters partner
shall promptly furnish to each Member a copy of each tax return prepared and
filed in accordance with Section B.10, together with any schedules or other
information that the Member may require in connection with the Member’s own tax
affairs. 


          (b)
The Special Member shall cause each Member to be furnished with a Schedule K-1
and any other information required by law to be furnished to the Member for
reporting the Member’s distributive share of the annual income of the Company
for federal income tax purposes. 


32





ANNEX C


RODMAN SERVICES


Services
to be Provided to Company: 


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 1)

 	
 Basic legal support – for
 day-to-day operations (CDAs, Contracts with Vendors, consulting agreements,
 etc.) 

 
	
  

 	
 2)

 	
 IT support 

 
	
  

 	
 3)

 	
 Payroll and processing 

 
	
  

 	
 4)

 	
 Benefits 

 
	
  

 	
 5)

 	
 Office space &
 furniture 

 
	
  

 	
 6)

 	
 Office equipment – laptops
 and desktops, software subscriptions, internet, email, blackberry, copiers,
 printers, phones, etc. 

 
	
  

 	
 7)

 	
 Industry subscriptions and
 data sources to which Rodman currently subscribes or has access that would be
 useful or necessary for the Company’s business. Subscriptions could include:

 
	
  

 	
  

 	
  

 	
 a.

 	
 Thomson One or Bloomberg
 and Firstcall

 
	
  

 	
  

 	
  

 	
 b.

 	
 Thomson Pharma

 
	
  

 	
  

 	
  

 	
 c.

 	
 Clinical Advisors or
 similar service

 
	
  

 	
  

 	
  

 	
 d.

 	
 Biocentury

 
	
  

 	
  

 	
  

 	
 e.

 	
 Bioworld

 
	
  

 	
  

 	
  

 	
 f.

 	
 Other trade publications,
 databases and services to which Rodman has subscriptions

 
	
  

 	
  

 	
  

 	
 g.

 	
 Datamonitor

 
	
  

 	
  

 	
  

 	
 h.

 	
 IMS or NDC 

 
	
  

 	
 8)

 	
 Access to Rodman analysts
 and all research products 

 
	
  

 	
 9)

 	
 Ability to attend Rodman
 analyst events with consultants and advisors

 
	
  

 	
 10)

 	
 Access to all Rodman
 sponsored healthcare conferences and events

 
	
  

 	
 11)

 	
 Access to Rodman’s
 consultants or advisors 

 
	
  

 	
 12)

 	
 Record keeping and
 preparation of reports as necessary under Article VIII and required for
 Special Member’s use.

 
	
  

 	
 13)

 	
 Support necessary for
 financial and tax matters as described in Annex B 

 


33





EXHIBIT I


INVESTMENT NOTICE INFORMATION


Each Investment Notice
provided hereunder pursuant to Section 4.1(a)(ii) shall contain the following
information: 


	
  

 	
  

 	
  

 
	
  

 	
 A.

 	
 the name of the Prospective
 Investee; 

 
	
  

 	
 B.

 	
 the nature of the
 investment (i.e., stock, convertible debt, partnership interest, etc.);

 
	
  

 	
 C.

 	
 the expected timing of the
 funding of the investment (which may not provide for any amount to be
 invested in the Prospective Investee prior to the 30th day after the giving
 of the Investment Notice); and

 
	
  

 	
 D.

 	
 the expected total amount
 that the Company intends to invest in the Prospective Investee, which amount
 may not be in excess of $500,000 (the “Investment Amount”) without the
 consent of the Special Member, which consent the Special Member may withhold
 in its sole discretion.. 

 


34