BE VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE.
ARTICLE 16
ADDITIONAL AGREEMENTS
16.1.
MAINTENANCE OF PARENT ENTITY AS A PARTY. EACH INITIAL MEMBER
COVENANTS AND AGREES THAT THE PARENT ENTITY OF SUCH INITIAL MEMBER SHALL EXECUTE
A COUNTERPART OF THIS AGREEMENT AND SHALL GUARANTEE ALL OBLIGATIONS OF SUCH
INITIAL MEMBER HEREUNDER. THIS SECTION SHALL SIMILARLY APPLY TO ANY SUBSEQUENT
PARENT ENTITY.
16.2.
CERTIFICATES. MEMBERSHIP UNITS SHALL BE REPRESENTED BY A CERTIFICATE
OR CERTIFICATES, SETTING FORTH UPON THE FACE THEREOF THAT THE OPERATING COMPANY
IS A LIMITED LIABILITY COMPANY FORMED UNDER THE LAWS OF THE STATE OF DELAWARE,
THE NAME OF THE PERSON TO WHICH IT IS ISSUED, THE TYPE OF MEMBERSHIP UNIT
REPRESENTED (E.G., COMMON MEMBERSHIP UNITS OR PREFERRED MEMBERSHIP UNITS) AND
THE NUMBER OF MEMBERSHIP UNITS REPRESENTED. SUCH CERTIFICATES SHALL BE ENTERED
IN THE BOOKS OF THE OPERATING COMPANY AS THEY ARE ISSUED, AND SHALL BE SIGNED BY
THE CEO OF THE OPERATING COMPANY. UPON ANY TRANSFER OF MEMBERSHIP UNITS
PERMITTED UNDER THIS AGREEMENT (OTHER THAN A PLEDGE PERMITTED UNDER SECTION
4.1.2), THE TRANSFERRING MEMBER SHALL REQUEST THE OPERATING COMPANY TO (I) ISSUE
TO THE TRANSFEREE A CERTIFICATE REPRESENTING THE NUMBER OF MEMBERSHIP UNITS SO
TRANSFERRED AND (II) SURRENDER TO THE OPERATING COMPANY THE EXISTING CERTIFICATE
AND THE OPERATING COMPANY SHALL ISSUE TO THE TRANSFERRING MEMBER CERTIFICATES
REPRESENTING THE REMAINING MEMBERSHIP UNITS, IF ANY, HELD BY SUCH TRANSFERRING
MEMBER AFTER TAKING INTO ACCOUNT SUCH TRANSFER. ALL CERTIFICATES REPRESENTING
MEMBERSHIP UNITS (UNLESS REGISTERED UNDER THE SECURITIES ACT), SHALL BEAR THE
FOLLOWING LEGEND:
THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE, AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT
IN A TRANSACTION WHICH IS REGISTERED UNDER, EXEMPT FROM, OR OTHERWISE IN
COMPLIANCE WITH THE FEDERAL AND STATE SECURITIES LAWS, AS TO WHICH THE COMPANY
HAS RECEIVED SUCH ASSURANCES AS THE COMPANY MAY REQUEST, WHICH MAY INCLUDE, A
SATISFACTORY OPINION OF COUNSEL.
ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE LIMITED
LIABILITY COMPANY INTERESTS
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REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY, AND SUBJECT TO, THE TERMS AND
PROVISIONS OF AN AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT BETWEEN HELIO,
INC. AND THE STOCKHOLDERS SET FORTH THEREIN AND A SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT BETWEEN HELIO LLC AND THE MEMBERS NAMED
THEREIN, EACH DATED THE
DAY OF
, 2007. A COPY OF THE
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT AND THE SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT IS ON FILE WITH THE SECRETARY OF THE
COMPANY. BY ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER HEREOF AGREES TO BECOME
BOUND BY THE AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT AND THE SECOND AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT.
16.3.
SECURITY. EACH MEMBERSHIP INTEREST SHALL CONSTITUTE A "SECURITY"
WITHIN THE MEANING OF (A) ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE (INCLUDING
SECTION 8-L02(A)(15) THEREOF) AS IN EFFECT FROM TIME TO TIME IN THE