UNANIMOUS VOTE OF THE MEMBERSHIP UNITS, EXCLUDING MEMBERSHIP UNITS HELD BY THE
MANAGEMENT COMPANY. IF THE MANAGEMENT COMPANY IS THE SOLE MEMBER OF THE
OPERATING COMPANY, THEN THE MANAGEMENT COMPANY SHALL BE ENTITLED TO ELECT ANY
SUCCESSOR TO MANAGE THE OPERATING COMPANY. THE MANAGEMENT COMPANY SHALL HAVE THE
POWER ON BEHALF AND IN THE NAME OF THE OPERATING COMPANY TO CARRY OUT ANY AND
ALL OF THE OBJECTS AND PURPOSES OF THE OPERATING COMPANY AND TO PERFORM OR
AUTHORIZE ALL ACTS WHICH IT MAY DEEM NECESSARY OR ADVISABLE IN CONNECTION
THEREWITH. THE MEMBERS AGREE THAT ALL DETERMINATIONS, DECISIONS AND ACTIONS MADE
OR TAKEN BY THE MANAGEMENT COMPANY IN ACCORDANCE WITH THIS AGREEMENT AND THE
MANAGEMENT COMPANY CERTIFICATE SHALL BE CONCLUSIVE AND ABSOLUTELY BINDING UPON
THE OPERATING COMPANY, THE MEMBERS AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS AND
REPRESENTATIVES. WITHOUT LIMITING THE FOREGOING, THE BOARD OF DIRECTORS OF THE
MANAGEMENT COMPANY SHALL DELEGATE, SUBJECT TO RESCISSION AND TO THE APPROVAL
RIGHTS OF THE BOARD OF DIRECTORS SET FORTH IN SECTION 8.1 OF THE STOCKHOLDERS'
AGREEMENT, TO ITS OFFICERS THE POWERS AND RESPONSIBILITIES SET FORTH BELOW IN
THIS SECTION 6.1.1.:
(A)
THE POWER TO DEVELOP AND PREPARE THE
BUSINESS PLAN AND OPERATING BUDGET OF THE OPERATING COMPANY EACH YEAR FOR
APPROVAL BY THE MANAGEMENT COMPANY'S BOARD OF DIRECTORS, IN ACCORDANCE WITH THE
MANAGEMENT COMPANY CERTIFICATE;
(B)
THE POWER TO EXECUTE AND DELIVER CONTRACTS
AND OTHER DOCUMENTS IN THE ORDINARY COURSE OF THE OPERATING COMPANY'S BUSINESS;
(C)
THE POWER TO EMPLOY, RETAIN, CONSULT WITH
AND DISMISS PERSONNEL;
(D)
THE POWER TO ESTABLISH AND ENFORCE CORPORATE
GOVERNANCE AND FINANCIAL POLICIES INCLUDING, WITHOUT LIMITATION, LIMITS OF
AUTHORITY AND INTERNAL CONTROLS WITH RESPECT TO ALL PERSONNEL AND FUNCTIONS;
(E)
THE POWER TO ENGAGE ATTORNEYS, CONSULTANTS,
ACCOUNTANTS AND OTHER AGENTS AND REPRESENTATIVES OF THE OPERATING COMPANY;
(F)
THE POWER TO DEVELOP OR CAUSE TO BE
DEVELOPED ACCOUNTING PROCEDURES FOR THE MAINTENANCE OF THE OPERATING COMPANY'S
BOOKS OF ACCOUNT AND THE SELECTION OF APPROPRIATE FINANCIAL SYSTEMS AND
CONTROLS; AND
(G)
THE POWER TO MAKE ALL TAX ELECTIONS
PERMITTED TO BE MADE BY PARTNERSHIPS EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.1
OF THE STOCKHOLDERS' AGREEMENT.
6.1.2
OTHER POWERS. THE BOARD OF DIRECTORS OF THE MANAGEMENT
COMPANY SHALL MAINTAIN ALL OTHER POWERS AND RESPONSIBILITIES TO MANAGE THE
OPERATING COMPANY.
6.2.
COMPENSATION. THE MANAGEMENT COMPANY SHALL NOT
BE ENTITLED TO COMPENSATION FOR SERVICES RENDERED TO THE OPERATING COMPANY IN
ITS CAPACITY AS THE MANAGEMENT COMPANY, BUT SHALL BE ENTITLED TO RECEIVE FROM
THE OPERATING COMPANY REIMBURSEMENT OF ALL OF
18
ITS OUT OF POCKET COSTS AND EXPENSES (A) REQUIRED IN CONNECTION WITH MANAGING
THE BUSINESS OF THE OPERATING COMPANY BUSINESS, AND (B) INCURRED IN CONNECTION
WITH MAKING FILINGS AND REPORTS UNDER THE SECURITIES ACT AND THE EXCHANGE ACT
(INCLUDING REGISTRATION STATEMENTS).
6.3.
ISSUANCES OF MEMBERSHIP UNITS. THE OPERATING
COMPANY ISSUED MEMBERSHIP UNITS TO THE INITIAL MEMBERS IN CONNECTION WITH THE
INITIAL CONTRIBUTION CLOSING IN THE AMOUNTS SET FORTH ON SCHEDULE 9.1.1, AND IS
AUTHORIZED TO ISSUE ADDITIONAL MEMBERSHIP UNITS UPON APPROVAL OF