TeamConnect, LLC Amended and Restated Limited Liability Company Agreement, dated April 30, 2019

teamconnect, LLC
 

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT



April 30, 2019







 

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TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS2

1.1Definitions...............................................................................................................2

ARTICLE II FORMATION OF LIMITED LIABILITY COMPANY12

2.1Formation.............................................................................................................12

2.2Name and Principal Place of Business...........................................................................13

2.3Agreement.............................................................................................................13

2.4Business.................................................................................................................13

2.5Definitions.............................................................................................................13

2.6Term.....................................................................................................................13

ARTICLE III MEMBERS AND INTERESTS13

3.1Units Generally.......................................................................................................13

3.2Classes of Units.....................................................................................................14

3.3Members.............................................................................................................15

3.4Representations and Warranties...................................................................................15

3.5Additional Members.................................................................................................17

3.6Resignation or Withdrawal of a Member.........................................................................18

3.7Meetings of the Members...........................................................................................18

3.8Action by Written Consent.........................................................................................19

3.9Limited Liability of Members.......................................................................................20

3.10No Appraisal Rights.................................................................................................20

3.11General Voting Rights...............................................................................................20

3.12Conversion...........................................................................................................21

3.13No Reissuance of Preferred Units.................................................................................27

3.14No Fiduciary Duties Owed by the Members...................................................................28

3.15Related Party Transactions.........................................................................................28

3.16Guaranteed Payments...............................................................................................28

ARTICLE IV CONTRIBUTIONS TO CAPITAL; WITHDRAWALS; ADVANCES29

4.1Capital Contributions...............................................................................................29

4.2No Right of Withdrawal.............................................................................................30

4.3Advances.............................................................................................................30

4.4Right of First Offer...................................................................................................30

ARTICLE V MANAGEMENT AND RESTRICTIONS31

5.1Management by Board of Managers; Board of Managers.....................................................31

5.2Amendment of Certificate or Agreement.........................................................................33

5.3No Fiduciary Duties.................................................................................................33

5.4Observer Rights.....................................................................................................34

5.5Proprietary Information and Inventions Agreements...........................................................34

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ARTICLE VI NOTICES34

6.1Notices.................................................................................................................34

6.2Waiver of Notice.....................................................................................................35

ARTICLE VII OFFICERS35

7.1Officers.................................................................................................................35

7.2Reliance by Third Parties...........................................................................................36

7.3Actions and Determinations of the LLC.........................................................................36

ARTICLE VIII ACCOUNTING AND RECORDS36

8.1Financial and Tax Reporting.......................................................................................36

8.2Members Access to Certain Information.........................................................................36

8.3Delivery of Financial Statements...................................................................................37

8.4Supervision; Inspection of Books.................................................................................38

8.5Termination of Information and Inspection Covenants.........................................................38

8.6Tax Information.......................................................................................................38

8.7Tax Matters Partner; Partnership Representative...............................................................38

8.8Confidentiality.........................................................................................................40

ARTICLE IX CAPITAL ACCOUNTS AND  ALLOCATIONS OF NET INCOME AND NET LOSS41

9.1Capital Accounts.....................................................................................................41

9.2Allocations of Net Income and Net Loss.........................................................................42

9.3Special Allocation Provisions.......................................................................................42

9.4Curative Allocations.................................................................................................44

9.5Tax Allocations.......................................................................................................45

9.6Compliance with Section 704(b) of the Code...................................................................45

9.7Safe Harbor Election...............................................................................................45

ARTICLE X DISTRIBUTIONS45

10.1Distributions...........................................................................................................45

10.2Tax Distributions.....................................................................................................46

10.3Liquidation Event Distributions.....................................................................................47

10.4No Other Withdrawals.............................................................................................49

10.5Distribution Limitations.............................................................................................49

ARTICLE XI TRANSFER OF MEMBERSHIP49

11.1Transfer.................................................................................................................49

11.2Transfer Void.........................................................................................................49

11.3Effect of Assignment.................................................................................................49

11.4Legends.................................................................................................................49

11.5Publicly Traded Partnership Limitations...........................................................................50

11.6Effective Date.........................................................................................................50

11.7Rights of Refusal.....................................................................................................50

11.8Right of Co-Sale.....................................................................................................53

11.9Non-Exercise of Rights.............................................................................................54

11.10Limitations on Transfer Restriction.................................................................................54

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11.11Transfer Requirements; Prohibited Transfers.....................................................................55

11.12Intentionally Omitted.................................................................................................55

11.13Drag-Along Right...................................................................................................55

ARTICLE XII INDEMNIFICATION AND LIMITATION OF LIABILITY57

12.1Indemnification.......................................................................................................57

12.2Exculpation by Members...........................................................................................57

12.3Limitation of Liability.................................................................................................58

12.4Counsel to the LLC.................................................................................................58

ARTICLE XIII DISSOLUTION AND TERMINATION; CONVERSION58

13.1Dissolution.............................................................................................................58

13.2Authority to Wind Up...............................................................................................59

13.3Winding Up and Certificate of Cancellation.....................................................................59

13.4Distribution of Assets...............................................................................................59

13.5Conversion to a Corporation.......................................................................................60

ARTICLE XIV MISCELLANEOUS60

14.1Amendment...........................................................................................................60

14.2Power of Attorney...................................................................................................61

14.3Withholding...........................................................................................................62

14.4Apportionment of Amounts Withheld at the Source or Paid by the LLC...................................63

14.5Notice to and Consent of Members...............................................................................63

14.6Further Assurances...................................................................................................63

14.7Binding Effect.........................................................................................................64

14.8Governing Law.......................................................................................................64

14.9Title to LLC Property...............................................................................................64

14.10Arbitration.............................................................................................................64

14.11Entire Agreement.....................................................................................................64

14.12Counterparts.........................................................................................................64

14.13No State-law Partnership...........................................................................................65

14.14Tax Classification.....................................................................................................65

14.15Severability...........................................................................................................65

14.16No Third Party Beneficiary.........................................................................................65

14.17Interpretation.........................................................................................................66

14.18No Interest in LLC Property; Waiver of Action for Partition.................................................66

14.19Aggregation of Units.................................................................................................66



EXHIBIT AMembers; Units

EXHIBIT BBoard of Managers; Officers

 

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TEAMCONNECT, LLC
 
AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT





This Amended and Restated Limited Liability Company Agreement (the “Agreement”) of TeamConnect, LLC (the “LLC”) is entered into pursuant to the Delaware Limited Liability Company Act, Delaware Code Ann. Title 6, §§18-101, et seq. (the “Act”), effective as of April 30, 2019 (the “Effective Date”), by and among the Members set forth on Exhibit A hereto, each having duly executed this Agreement or a counterpart to this Agreement intending to be legally bound by the following terms and conditions, and such other Persons who may hereafter be admitted from time to time as members in accordance with the provisions hereof (collectively, the “Members”).

RECITALS

A.The LLC was formed as a limited liability company under the laws of the State of Delaware pursuant to (i) the filing of that certain Certificate of Formation of the Company with the Secretary of State of the State of Delaware on December 7, 2018 (as amended from time to time, the “Certificate”), and (ii) that certain limited liability company agreement (the “Original Agreement”), dated as of December 8, 2018, by and between Joseph Gottlieb (“Joseph”) and David Gottlieb (“David”).

B.Effective as of January 16, 2019, Joseph transferred his entire limited liability company interest in the LLC to JG TC Holdings, LLC, a Delaware limited liability company (“JGTC”), and David transferred his entire limited liability company interest in the LLC to DG TC Holdings, LLC, a Delaware limited liability company (“DGTC”).

C.The LLC and pdvWireless, Inc., a Delaware corporation (“PDV”) have entered into an IP Assignment, Software Support and Development Services Agreement (the “IP Assignment”), which contemplates, among other things, that PDV will contribute to the LLC the Assigned Intellectual Property (as defined in the IP Assignment) in exchange for an interest in the LLC.

D.In connection with PDV’s contribution of the Assigned Intellectual Property to the LLC, the Members desire to admit PDV as a Member of the LLC, and desire to amend and restate the Original Agreement in its entirely as hereinafter set forth to reflect the manner in which the business and operations of the LLC shall be governed from and after the date hereof.

E.In exchange for the Series A Units, Joseph and David have agreed in Section 4.1(a) of this Agreement to timely make additional Capital Contributions to the LLC in an amount required to fund all operating cash needs of the LLC through December 31, 2020, up to a maximum aggregate amount of $1,000,000.

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NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members hereby agree as follows:

Definitions

.  The following terms shall have the meanings set forth for purposes of this Agreement:

“1934 Act” shall mean the Securities Exchange Act of 1934, as amended.

“Accounting Period” shall mean for each Fiscal Year the period beginning on the 1st of January and ending on the 31st of December; provided, however, that the first Accounting Period commenced on the date of formation of the LLC and shall end on December 31 of the year of formation of the LLC; and provided,  further, that, at the election of the Board of Managers, a new Accounting Period shall commence on any date on which an Additional Member is admitted to the LLC or a Member ceases to be a Member for any reason.

“Act” shall have the meaning ascribed to it in the Preamble.

“Additional Interests” shall have the meaning ascribed to it in Section 3.5(a).

“Additional Member” shall have the meaning ascribed to it in Section 3.5(b).

“Additional Transfer Notice” shall have the meaning ascribed to it in Section 11.7(c).

“Additional Units” shall have the meaning ascribed to it in Section 4.4.

“Additional Common Units” shall have the meaning ascribed to it in Section 3.12(d)(ii).

“Affiliates” shall mean, with respect to any specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, the Person specified, including, without limitation, any venture capital fund now or hereafter existing which is controlled by or under common control with such Person or which shares the same management company with such Person.

“Agreement” shall mean this Limited Liability Company Agreement of the LLC as the same shall be amended from time to time.

“Assigned Intellectual Property” shall have the meaning ascribed to it in Section C of the Recitals.

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“Award” shall mean a grant of Common Units pursuant to the Equity Incentive Plan or the acquisition of Common Units upon exercise of an option to acquire Common Units issued pursuant to the Equity Incentive Plan.

“Awardee” shall mean the holder of an Award.

“Beneficial Owner” shall have the meaning ascribed to it in Section 3.4(g).

“Board of Managers” or “Board” shall mean the LLC’s Board of Managers, as constituted from time to time, as described more fully in Article V.

“Bonus Profit Plan” shall have the meaning ascribed to it in Section 3.2(b).

“Business Day” shall mean any day on which banks located in New York,  New York are not required or authorized by law to remain closed.

“Capital Account” shall mean, with respect to any Member, the account maintained for such Member in accordance with the provisions of Section 9.1(a) hereof.

 “Capital Contribution” shall mean, with respect to any Member, any contribution to the LLC by such Member of cash or other property, including any contributions required pursuant to Section 4.1(a) of this Agreement.  Any reference in this Agreement to the Capital Contribution of a Member shall include the Capital Contribution made by any predecessor holder of the Interest of that Member.

“Carrying Value” shall mean:

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In the case of any asset that has a Carrying Value determined pursuant to subclauses (1), (2) or (4) above, depreciation or deductions shall be computed based on the asset’s Carrying Value as so determined, and not on the asset’s adjusted tax basis, as more fully described under the definition of Net Income and Net Loss below.

 “Certificate” shall have the meaning ascribed to it in Section A of the Recitals.

“Chairman of the Board” shall have the meaning ascribed to it in Section 5.1(c).

“Class” shall mean the group of Members owning all of the outstanding Units of a particular class of Units as set forth in Section 3.2 hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Common Members” shall mean Members holding Common Units, their permitted successors and assigns and any other Person who may be admitted to the LLC as a Common Member in accordance with the terms of this Agreement.

“Common Units” shall have the meaning ascribed to it in Section 3.2(a).

“Common Units Equivalents” shall have the meaning ascribed to it in Section 3.12(d)(iii).

“Common Units Outstanding” shall have the meaning ascribed to it in Section 3.12(d)(i).

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“Compensation Amount” shall have the meaning ascribed to it in Section 3.15.

“Competitor of the LLC” shall mean any Person in the business of developing and/or offering push-to-talk software applications, devices or services.

“Contingent Consideration” shall have the meaning ascribed to it in Section 10.3(b).

“Conversion Price” shall have the meaning ascribed to it in Section 3.12(a).

“Conversion Rate” shall have the meaning ascribed to it in Section 3.12(a).

“Convertible Securities” means convertible Units or other securities convertible into or exchangeable for (i) Units or (ii) any other securities evidencing an ownership interest in the LLC, including, without limitation warrants and options.

“Corporation” shall have the meaning ascribed to it in Section 13.5(a).

“Delivery” shall mean the occurrence of an event specified in Section 6.1(i) through (iv).

“Designated Jurisdiction” shall mean the State of New York.

“DGCL” shall mean the Delaware General Corporation Law, 8 Del. Code § 101 et seq.

“Effective Date” shall have the meaning ascribed to it in the Preamble.

“Electronic Signature” shall have the meaning ascribed to it in Section 14.12.

“Equity Incentive Plan” shall have the meaning ascribed to it in Section 3.2(b).

“Equity Securities” shall mean any Units, any securities evidencing an ownership interest in the LLC, or any Convertible Securities.

“Estimated Tax Period” shall mean, for each Fiscal Year, the periods of January 1 through March 31, April 1 through May 31, June 1 through August 31, and September 1 through December 31.

“Estimated Tax Distribution” shall have the meaning ascribed to it in Section 10.2.

“Excepted Units” shall have the meaning ascribed to it in Section 3.12(d)(ii).

“Fiscal Year” shall mean the taxable year of the LLC, which shall be the period from January 1 to December 31 of each year, except as otherwise required by the Code.

“Fully-Exercising Investor” shall have the meaning ascribed to it in Section 4.4(b).

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“Fully-Participating Preferred Member” shall have the meaning ascribed to it in Section 11.7(d)(ii).

“GAAP” shall mean United States generally accepted accounting principles.

“Incorporation” shall have the meaning ascribed to it in Section 13.5(a).

“Initial Public Offering” shall mean a firm commitment underwritten public offering of the equity of the LLC (or its successor entity).

“Interest” shall mean the Units of a Member in the LLC and includes all of the respective rights and responsibilities appurtenant thereto including the right, if any, to vote, the Capital Account maintained for such Member and the right to receive allocations of Net Income and Net Losses pursuant to Article IX, and the right to receive distributions of cash or property of the LLC.

“Law” shall mean any constitutional provision, law, statute, rule, regulation (including any stock exchange rule or regulation), ordinance, treaty, order, decree, license, permit, policy, guideline, consent, approval, certificate, judgment or decision of any governmental authority or any judgment, decree, injunction, writ, order or like action of any court or other judicial or quasi-judicial tribunal.

“LLC” shall have the meaning ascribed to it in the Preamble.

“LLC Counsel” shall have the meaning ascribed to it in Section 12.4.

“Lien” shall mean any mortgage, deed of trust, pledge, hypothecation, assignment, encumbrance, lien (statutory or other) or other security interest of any kind or nature whatsoever, including, without limitation, those created by, arising under or evidenced by any conditional sale or other title retention contract, the interest of a lessor under a lease which in accordance with GAAP should be recorded as a capital lease, or any financing lease having substantially the same economic effect as any of the foregoing.

“Liquidation Event” shall mean, in one transaction or series of related transactions, (a) the closing of the sale, transfer, exclusive license, or other disposition (whether by merger, consolidation or otherwise) of all or substantially all of (1) the assets of the LLC or (2) the assets or equity securities of one or more direct or indirect subsidiaries of the LLC constituting all or substantially all of the assets of the LLC (determined on a consolidated basis with all of the LLC’s direct and indirect subsidiaries) (the foregoing an “Asset Sale”); (b) the consummation of the merger or consolidation of the LLC with or into another entity (except a merger or consolidation of the LLC in which the holders of equity securities of the LLC immediately prior to such merger or consolidation continue to hold (1) at least fifty percent (50%) of the voting power of the equity securities of the surviving entity of such merger or consolidation in substantially the same proportions (relative to all such holders) as immediately prior to the merger or consolidation and (2) securities with rights, preferences and powers that are substantially identical to the rights, preferences and powers of the securities they held immediately prior to such merger or consolidation); (c) the closing of the transfer (whether by merger, consolidation or otherwise) in one transaction or series of related transactions to a

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Person or group of affiliated Persons (other than an underwriter of the LLC’s securities) of the LLC’s securities if, after such closing, such Person or group of affiliated Persons would hold fifty percent (50%) or more of the outstanding voting securities of the LLC (or the surviving or acquiring entity); (d) the consummation of the merger or consolidation of one or more direct or indirect subsidiaries of the LLC, the assets of which subsidiary or subsidiaries (including, without limitation, the equity securities of such subsidiary or subsidiaries) constitute all or substantially all of the assets of the LLC (determined on a consolidated basis with all of the LLC’s direct and indirect subsidiaries) with or into another entity (except a merger or consolidation of such subsidiary or subsidiaries (1) in which the holders of equity securities of the LLC immediately prior to such merger or consolidation continue to hold (x) at least fifty percent (50%) of the voting power of the equity securities of the surviving entity of such merger or consolidation in substantially the same proportions (relative to all such holders) as immediately prior to the merger or consolidation, (y) securities with rights, preferences and powers that are substantially identical to the rights, preferences and powers of the securities they held immediately prior to such merger or consolidation, and (z) the surviving or acquiring entity in such merger or consolidation is a wholly owned direct or indirect subsidiary of the LLC or (2) a merger or consolidation of a wholly owned direct or indirect subsidiary of the LLC with the LLC or another such wholly owned direct or indirect subsidiary); or (e) the liquidation, dissolution or winding up of the LLC.  The treatment of any particular transaction or series of related transactions as a Liquidation Event may be waived by the vote or written consent of a Majority in Interest of the Series A-1 Members.

“Majority in Interest of the Common Members” shall mean, unless otherwise expressly set forth herein, the Common Member(s) who are entitled to vote at least a majority of the outstanding Common Units; provided that Common Units issued out of Reserved Incentive Common Units that are designated as Non-Voting Units shall not vote and shall have no voting rights.

“Majority in Interest of the Members” shall mean, unless otherwise expressly set forth herein, the Member(s) who are entitled to vote at least a majority of the outstanding Units (voting on an as converted basis with the Common Units and Preferred Units treated as a single Class); provided that Common Units issued out of Reserved Incentive Common Units that are designated as Non-Voting Units shall not vote and shall have no voting rights.

“Majority in Interest of the Series A Members” shall mean, unless otherwise expressly set forth herein, the Series A Member(s) who are entitled to vote at least a majority of the outstanding Series A Preferred Units (on an as converted basis and as a single Class).

“Majority in Interest of the Series A-1 Members” shall mean, unless otherwise expressly set forth herein, the Series A-1 Member(s) who are entitled to vote at least a majority of the outstanding Series A-1 Preferred Units (on an as converted basis and as a single Class).

“Manager” shall have the meaning ascribed to it in Section 5.1(a).

“Members” and “Member” means the Persons listed as members on Exhibit A (as may be amended from time to time) and any other Person that both acquires an Interest and is admitted to the LLC as a Member in accordance with the terms of this Agreement.

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“Net Income” and “Net Loss” shall mean, for each Accounting Period, an amount equal to the LLC’s net taxable income or loss for such Accounting Period, determined in accordance with Code Section 703(a) (it being understood that for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in such taxable income or loss) and determined in accordance with the accounting method used by the LLC for U.S. Federal income tax purposes with the following adjustments (without duplication):

“Nonrecourse Deductions” shall be as defined in Treasury Regulations Section 1.704‑2(b).  The amount of Partner Nonrecourse Deductions for a Fiscal Year equals the net increase, if any, in the amount of Partnership Minimum Gain during that Fiscal Year, determined according to the provisions of Treasury Regulations Section 1.704‑2(c).

“Non-Voting Unit” shall mean a Common Unit that does not vote, has no voting rights, and shall have no right or authority to act for the LLC or vote upon or approve any matters submitted to the Members for approval.  The Board of Managers may designate any Common Units issued out of Reserved Incentive Common Units as Non-Voting Units.

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“Notice of Additional Units” shall have the meaning ascribed to it in Section 4.4(a).

“Offered Units” shall have the meaning ascribed to it in Section 11.7(a).

“Officer” shall have the meaning ascribed to it in Section 7.1(a).

“Original Issue Price” in respect of the Series A-1 Preferred Units,  means $1.14286 per Unit, as adjusted for distributions of additional Units, Unit splits, combinations, recapitalizations or the like.

“Overallotment Notice” shall have the meaning ascribed to it in Section 11.7(d)(ii).

“Participating Preferred Member” shall have the meaning ascribed to it in Section 11.7(d)(i).

“Participating Preferred Member Notice” shall have the meaning ascribed to it in Section 11.7(d)(i).

“Participating Preferred Member Overallotment Notice” shall have the meaning ascribed to it in Section 11.7(d)(ii).

 “Partner Nonrecourse Debt Minimum Gain” shall mean an amount with respect to each partner nonrecourse debt (as defined in Treasury Regulations Section 1.704‑2(b)(4)) equal to the Partnership Minimum Gain that would result if such partner nonrecourse debt were treated as a nonrecourse liability (as defined in Treasury Regulations Section 1.752‑1(a)(2)) determined in accordance with Treasury Regulations Section 1.704‑2(i)(3).

“Partner Nonrecourse Deductions” shall be as defined in Treasury Regulations Section 1.704‑2(i)(2).

“Partnership Minimum Gain” shall be as defined in Treasury Regulations Section 1.704‑2(b)(2) and 1.704‑2(d).

“PDV” shall have the meaning ascribed to it in Section C of the Recitals.

“Permitted Disclosee” shall have the meaning ascribed to it in Section 8.8(a).

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

“Plans” shall have the meaning ascribed to it in Section 3.2(b).

“Preferred Member” shall mean a Member holding Preferred Units.

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“Preferred Payment” shall mean the amounts distributable to the Preferred Members pursuant to Sections 10.3(a)(i) and (ii).

“Preferred Units” shall have the meaning ascribed to it in Section 3.2.

“Profits Interest” shall mean a Common Unit that is issued with a Profits Interest Threshold Amount that is at least equal to the greater of zero (0) or the amount that the Board of Managers determine would, on the date of issuance of such Common Unit, be distributed in respect of a Common Unit that has no Profits Interest Threshold Amount, if, immediately after such Common Unit is issued, the LLC were to liquidate completely and in connection with such liquidation (i) sell all of its assets at their fair market values, (ii) settle all of its liabilities to the extent of the available assets of the LLC (but limited, in the case of nonrecourse liabilities as to which the creditors’ rights to repayment are limited solely to one or more assets of the LLC, to the value of such assets), and (iii) each holder of Units were to pay to the LLC at that time the amount of any obligation then unconditionally due to the LLC, and then the LLC were to distribute any remaining cash and other proceeds to the holders of Units in accordance with the distribution provisions of Section 10.3(a)(subject to adjustment as provided herein).  A Common Unit with a Profits Interest Threshold Amount that is at least equal to its Profits Interest Target Amount is intended to meet the definition of a “profits interest” in I.R.S. Revenue Procedures 93-27 and 2001-43 and the provisions of this Agreement shall be interpreted and applies consistently with such intention.  A Common Unit that is issued with a Profits Interest Threshold Amount that is at least equal to its Profits Interest Target Amount shall be treated in the same manner as any other Common Unit for all purposes of this Agreement except (i) as provided in the Equity Incentive Plan and (ii) as specifically provided in this Agreement (for example, with respect to adjustments of amounts distributable with respect to such Common Unit as provided in Article X) and with respect to voting for Common Units issued out of Reserved Incentive Common Units that are designated as Non-Voting Units).

“Profits Interest Threshold Amount” for a Common Unit shall mean, unless otherwise determined by the Board of Managers, an amount equal to the amount that would be distributed in respect of a Common Unit that has no Profits Interest Threshold Amount, if, immediately after such Common Unit is issued, the LLC were to liquidate completely and in connection with such liquidation (i) sell all of its assets at their fair market values, (ii) settle all of its liabilities to the extent of the available assets of the LLC (but limited, in the case of nonrecourse liabilities as to which the creditors’ rights to repayment are limited solely to one or more assets of the LLC, to the value of such assets), and (iii) each holder of Units were to pay to the LLC at that time the amount of any obligation then unconditionally due to the LLC, and then the LLC were to distribute any remaining cash and other proceeds to the holders of Units in accordance with the distribution provisions of Section 10.3(a); provided, however, the Profits Interest Threshold Amount shall not be less than zero dollars ($0).  The Board of Managers shall have the discretion to set any Common Unit’s Profits Interest Threshold Amount to equal an amount that is greater than or lesser than the amount determined in the prior sentence. The Profits Interest Threshold Amount of a Common Unit shall be reduced (but not below zero dollars ($0)) dollar-for-dollar by the amount by which distributions with respect to such Common Unit were previously reduced by reason of the existence of the Profits Interest

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Threshold Amount.  The Board of Managers shall have the discretion to reduce the Profits Interest Threshold Amount with respect to any Common Unit if, subsequent to the grant of such Common Unit, the fair market value (as determined by the Board of Managers in its sole discretion) of the LLC declines.

“Profits Interest Target Amount” shall mean in respect of each Common Unit that is issued, the amount specified in respect of that Common Unit in the first sentence of the definition of Profits Interest. 

“Prohibited Transfer” shall have the meaning ascribed to it in Section 11.11(c).

“Proposed Revenue Procedure” shall have the meaning ascribed to it in Section 9.3(h).

“Proprietary Information” shall have the meaning ascribed to it in Section 8.8(a).

“Qualified Public Offering” shall mean the consummation by the LLC of a firm commitment underwritten public offering of the equity of the LLC (or its successor Corporation) pursuant to the Securities Act with total proceeds of not less than $30,000,000 at a price per Unit (or share of common stock of the LLC’s successor Corporation) of not less than four (4) times the Conversion Price of the Series A Preferred Units (as adjusted for any distribution of additional Units dividends, combinations, subdivisions, recapitalizations or the like with respect to the Common Units) as of immediately before the date of the Qualified Public Offering.

“Remaining Units” shall have the meaning ascribed to it in Section 11.7(c).

“Reserved Incentive Common Units” shall have the meaning ascribed to it in Section 3.2(a).

“Rules” shall have the meaning ascribed to it in Section 12.4.

“Safe Harbor” shall have the meaning ascribed to it in Section 9.7.

“SEC” shall mean the U.S. Securities and Exchange Commission.

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time, and the rules and regulations thereunder.

“Selling Member” shall have the meaning ascribed to it in Section 11.7(a).

“Selling Preferred Member” shall have the meaning ascribed to it in Section 11.8(a).

“Series A Members” shall mean the Members holding Series A Preferred Units, their permitted successors and assigns and any other Person who may be admitted to the LLC as a Series A Member in accordance with the terms of this Agreement.

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“Series A-1 Members” shall mean the Members holding Series A-1 Preferred Units, their permitted successors and assigns and any other Person who may be admitted to the LLC as a Series A-1 Member in accordance with the terms of this Agreement.

“Series A Preferred Units” shall have the meaning ascribed to it in Section 3.2.

“Series A -1 Preferred Units” shall have the meaning ascribed to it in Section 3.2.

“Tax-Free Combination” shall have the meaning ascribed to it in Section 11.15(b).

“TMP” shall have the meaning ascribed to it in Section 8.7.

“Transfer” shall have the meaning ascribed to it in Section 11.1.

“Transfer Notice” shall have the meaning ascribed to it in Section 11.7(a).

“Treasury Regulations” shall mean regulations issued pursuant to the Code.

“Units” shall mean units of Interests held by a Member representing such Member’s membership interest in the LLC, whether held in the form of Common Units or Series A Preferred Units or other type of units or other Interests in the LLC as may be issued by the LLC.

“Unreturned Capital Contributions” means, with respect to a Series A Preferred Unit at a particular time of determination, the excess of (i) all Capital Contributions made in respect of such Series A Preferred Unit, whether made prior to or concurrently with the execution of this Agreement or pursuant to Section 4.1(a), reduced, but not below zero dollars ($0) by (ii) the aggregate amount of distributions made with respect to such Series A Preferred Unit pursuant to Section 10.3(a)(ii).

Formation

.  The LLC has been formed as a Delaware limited liability company by the execution and filing of the Certificate by an authorized person as required by the Act.  The rights, powers, duties, obligations and liabilities of the Members (in their respective capacities as such) shall be determined pursuant to the Act and this Agreement.  To the extent that the rights, powers, duties, obligations and liabilities of any Member (in its capacity as such) are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control.

Name and Principal Place of Business

.  Unless and until amended in accordance with this Agreement and the Act, the name of the LLC will be “TeamConnect, LLC.”  The principal place of business of the LLC shall initially be located at 58 N. Harrison Avenue, Congers, NY 10920, or such other location as the Board of Managers may, from time to time,

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designate.  The address of the LLC’s registered office in the State of Delaware, and the name of the registered agent for service of process, shall be The Corporation Trust Company, Corporation Trust Center,  1209 Orange Street,  Wilmington,  Delaware 19801, or such other place or person in the State of Delaware as the Board of Managers shall designate.

Agreement

.  For and in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Members executing this Agreement hereby agree to the terms and conditions of this Agreement, as it may from time to time be amended.  It is the express intention of the parties hereto that this Agreement shall be the sole statement of agreement among them, and, except to the extent a provision of this Agreement expressly incorporates federal income tax rules by reference to sections of the Code or Treasury Regulations or is expressly prohibited or ineffective under the Act, this Agreement shall govern even when inconsistent with or different from the provisions of the Act or any other law or rule.  To the extent any provision of this Agreement is prohibited or ineffective under the Act, this Agreement shall be considered amended to the smallest degree possible in order to make this Agreement effective under the Act.  In the event the Act is subsequently amended or interpreted in such a way to make valid any provision of this Agreement that was formerly invalid, such provision shall be considered to be a part of this Agreement from and after the date of such interpretation or amendment.

Business

.  The purpose of the LLC is to (i) engage in the business of the exploitation of the Assigned Intellectual Property, (ii) enter into, make, and perform all contracts and other undertakings, including the LLC’s obligations under the IP Assignment, and (iii) carry on any other business or activity relating thereto or arising therefrom and to carry on anything incidental, convenient or necessary to the foregoing.  Notwithstanding the foregoing, the LLC may engage in any lawful business permitted under the Act or the laws of any jurisdiction in which the LLC may do business.

Definitions

.  Terms not otherwise defined in this Agreement shall have the meanings set forth in Article I.

Term

.  The term of the LLC commenced on the date the Certificate was filed with the Secretary of State of the State of Delaware in accordance with the Act and shall continue unless the LLC’s existence is terminated pursuant to Article XIII of this Agreement.

Units Generally

.  The Interest of each of the Members in the LLC shall consist of a number of “Units.”  Units may be issued in one or more classes or series of classes, as approved by the Board of Managers.  Except as otherwise provided in this Agreement, the Equity Incentive Plan or the Act, each Member holding a Unit or Units shall have (a) the right to share in the Net Income and Net Loss of the LLC as provided in this Agreement, (b) a right to the Capital Account maintained for such Member according to Article IX hereof, (c) the right to receive distributions from the LLC as provided in this Agreement, (d) the right to receive information concerning the business and affairs of the LLC as provided in this Agreement or

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non-waivable provisions of the Act; and (e) the right, if any, to vote as provided in this Agreement.    The Units shall be uncertificated unless the Board of Managers determines that the Units shall be represented by certificates in such form as shall be determined by the Board of Managers from time to time.  If applicable, the LLC may issue a new certificate in place of any certificate therefore issued by it, alleged to have been lost, stolen or destroyed, and the LLC may require the owner of the lost, stolen or destroyed certificate, or his or her legal representative to give the LLC a bond sufficient to indemnify it against any claim that may be made against it on account of that alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

Classes of Units

.

Members

.  The Members of the LLC, including those Awardees who receive their Awards in accordance with the terms of the Equity Incentive Plan, are set forth on Exhibit A hereto, each of whom is admitted to the LLC as a Member as of the Effective Date.  The name and place of residence of each Member and a designation as to whether such Member is a Common Member or a Preferred Member is as set forth on Exhibit A attached hereto.  Each Member shall be entitled to review such Member’s Exhibit A.  Unless otherwise determined by the Board of Managers, no Member, other than a Preferred Member, shall be entitled to receive a copy of, review or inspect any other Member’s Exhibit A.  Each Member, other than a Preferred Member, hereby waives any rights such Member may have pursuant to the Act to receive, review or inspect, directly or indirectly, any other Member’s Exhibit A or any other books, records or documents containing substantially equivalent information.

Representations and Warranties

.  Each Member hereby represents and warrants to the LLC and each other Member as follows:

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For purposes of this subsection (g), the term “Beneficial Owner” shall have the meaning assigned to such term in Treasury Regulations Section 1.7704-1(h)(3).  In the event that a Member’s representation pursuant to this Section 3.4 shall at any time fail to be true, such Member shall promptly (and in any event within ten (10) days) notify the Board of Managers of such fact and shall promptly thereafter deliver to the Board of Managers any information regarding such Member and its beneficial owners reasonably requested by counsel to the LLC for purposes of determining the number of the LLC’s partners within the meaning of Treasury Regulations Section 1.7704-1(h).

Additional Members

.

Resignation or Withdrawal of a Member

.  Except as specifically provided herein, and subject to the provisions for Transfers contained in Article XI, no Member shall have the right to resign or withdraw from membership in the LLC or withdraw its Interest in the LLC.

Meetings of the Members

.

Action by Written Consent

.  Any action required to be taken at any annual or special meeting of Members or otherwise, or any action which may be taken at any annual or special meeting of Members or otherwise (including without limitation any consent, approval, vote or other action of the Members required or contemplated under or by this Agreement, the Act or otherwise), may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the Members required to approve such action as set forth in the last sentence of Section 3.7(h) above.  Unless the consent of all Members entitled to vote has been solicited in writing, prompt notice of the taking of action by Members without a meeting pursuant to this Section 3.8 by less than unanimous written consent shall be given to each of those Members who have not consented in writing.

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Limited Liability of Members

.

No Appraisal Rights

.  No Member shall have any right to have its Units appraised and paid out under the circumstances provided in Section 18-210 of the Act, or under any other circumstances except as set forth herein or in any applicable agreement between such Member and the LLC.

General Voting Rights

.

Conversion

.  The holders of the Preferred Units shall have conversion rights as follows: 

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The Common Units contemplated by Section (A) through (I) above and, the Preferred Units the issuance of which would result in the deemed issuance of any such Common Units, shall be collectively referred to as the “Excepted Units”.

No Reissuance of Preferred Units

.  No Preferred Units acquired by the LLC by reason of redemption, purchase, conversion or otherwise shall be reissued, and all such Preferred Units shall be canceled, retired and eliminated from the Preferred Units which the LLC shall be authorized to issue.

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No Fiduciary Duties Owed by the Members

.  To the fullest extent permitted by applicable Law (including Section 18-1101 of the Act), no Member or Affiliate of a Member acting under this Agreement shall have any fiduciary or similar duty, at law or in equity, or any liability relating thereto, to the LLC or any other Member or Affiliate of a Member, with respect to or in connection with the LLC or the LLC’s business or affairs; and, without limitation, each Member when approving or disapproving any action, shall be entitled to consider only such interests and factors as such Member desires and may consider such Member’s own interests or the interests of the other Members and shall have no other duty or obligation, fiduciary or otherwise, to give any consideration to any interest of or factors affecting the LLC or any other Member or Affiliate of any other Member; provided, however, that such other interests or other factors are known by or disclosed to the other Members, unless the failure to make such disclosure does not prejudice the interests of the LLC or such other Members or Affiliates of such other Members.  The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member or Affiliate of a Member otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Member or Affiliate of a Member.  For the sake of clarity, this Section 3.14 only applies to a Member or any of its Affiliates, solely in their capacity as Members and not if such Member or such Affiliate of such Member is also serving the LLC in a different capacity.

Related Party Transactions

.  No transaction or contract to which the Company is or may be a party shall be void, voidable or a breach of fiduciary responsibility for the reason that any Member, or any affiliate of any Member, is a party thereto, and such Member or its affiliates may receive fees, compensation and remuneration from the Company for services rendered relating to the Company business; provided, however, that such fees, compensation, other remuneration and other terms shall be approved by the Board of Managers in good faith and shall be no less favorable to the LLC than those readily obtainable from an unaffiliated person for similar services in the same or similar geographical area as the Company’s principal place of business.

Guaranteed Payments

.  In addition to the distributions provided for in Section 10.1, each Member may receive guaranteed payments (i.e., a payment in the nature of salary or bonus) within the meaning of Code Section 707(c) from the LLC (any such payments a “Compensation Amount”) in such Member’s capacity as a Manager, Officer, Employee, Consultant or other service provider to the LLC in such amount as may be determined by the Board of Managers in good faith; provided that (i) no such payments shall be made to Joseph or David for their respective services during any time that the LLC has operating cash needs that are required to be funded by the Series A Members pursuant to Section 4.1(b), (ii) any permitted payments to Joseph and David shall not exceed market value compensation for services actually rendered to the LLC and (iii) shall be approved by the Series A-1 Members, which approval shall not be unreasonably withheld, conditioned or delayed.  Each Member hereby understands and agrees that, (a) except as may be approved pursuant to the preceding sentence, he or she shall not be entitled to receive any Compensation Amount from the LLC, and (b) all amounts otherwise distributable by the LLC may be paid to the Members pursuant to the foregoing sentence and, accordingly, no amounts may be available for distribution to the Members and assignees pursuant to Section 10.1.

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Capital Contributions

.  Each Member, excluding Members who have been or are granted Common Units for no payment pursuant to an Equity Incentive Plan, has made, or concurrently with the execution of this Agreement is making or is required to make pursuant to Section 4.1(a) of this Agreement, a Capital Contribution to the LLC in the amount set forth in the records of the LLC.  No Member shall be entitled to any interest or compensation with respect to such Member’s Capital Contribution or share of the capital of the LLC, except as expressly provided herein.  No Member shall have any liability for the repayment of the Capital Contribution of any other Member and each Member shall look only to the assets of the LLC for return of such Member’s Capital Contributions to the extent permitted herein.  Each Common Member holds an Interest in the LLC represented by the Common Units set forth opposite the Member’s name on Exhibit A.  Each Series A Member holds an Interest in the LLC represented by the Series A Preferred Units set forth opposite the Member’s name on Exhibit A.  Each Series A-1 Member holds an Interest in the LLC represented by the Series A-1 Preferred Units set forth opposite the Member’s name on Exhibit A.

No Right of Withdrawal

.  No Member shall have the right to withdraw or receive any return of, or interest on, any portion of such Member’s contributions to capital of, or to receive any distributions from, the LLC, except as provided in Articles X and XIII.

Advances

.  If any Member shall advance any funds to the LLC in excess of its Capital Contributions, the amount of such advance shall neither increase its Capital Account nor entitle that Member to any increase in its share of the distributions of the LLC.  The amount of any such advance shall be a debt obligation of the LLC to such Member and shall be repaid to it by the LLC with interest at a rate and upon such other terms and conditions which the Board of Managers determines in good faith are, taken as a whole, not materially less favorable to the LLC than would be available to the LLC from an unrelated commercial lender, as shall be agreed by the LLC and such Member.  Any such advance shall be payable and collectible only out of LLC assets, and the other Members shall not be personally obligated to repay any part thereof.  No Person who makes any loan to the LLC shall have or acquire, as a result of making such loan, any direct or indirect interest in the profits, capital or property of the LLC, other than as a creditor.

Right of First Offer 

.  Subject to the terms and conditions specified in this Section 4.4, the LLC hereby grants to each Preferred Member a right of first offer with respect to future sales or issuances by the LLC of additional Units or Convertible Securities other than Excepted Units (“Additional Units”).  A Preferred Member shall be entitled to apportion the right of first offer hereby granted it among itself and its partners and Affiliates in such proportions as it deems appropriate.  Each time the LLC proposes to offer any Additional Units, the LLC shall first make an offering of such Additional Units to each Preferred Member in accordance with the following provisions:

In addition to the foregoing, the right of first offer in this Section 4.4 shall not be applicable with respect to any Preferred Member in any subsequent offering of Units if (x) at the time of such offering, the Preferred Member is not an “accredited investor,” as that term is then defined in Rule 501(a) of the Securities Act and (y) such offering of Units is otherwise being offered only to accredited investors.

Management by Board of Managers; Board of Managers

.

Amendment of Certificate or Agreement

.  Subject to the provisions of this Agreement, the Board of Managers shall have the duty and authority to amend the Certificate or this Agreement consistent with Section 14.1(a) and Section 14.1(b), respectively. 

No Fiduciary Duties

.  To the fullest extent permitted by applicable law (including Section 18-1101 of the Act), no Manager or Officer acting under this Agreement shall have any fiduciary or similar duty, at law or in equity, or any liability relating thereto, to the LLC or any other Manager, Officer, Member or Affiliate of a Member or Officer, with respect to or in connection with the LLC or the LLC’s business or affairs, including any duty of any Manager, Officer, Member, Affiliate Member to refrain, or otherwise be restricted from, any business opportunity of any type or description, including those business opportunities that might be the same or similar to the business of the LLC.  The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Manager or Officer otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Manager or Officer.

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Observer Rights

.  As long at least fifty percent (50%) of the Series A-1 Preferred Units as of the Effective Date remain outstanding Series A-1 Preferred Units (for such purpose, any Series A-1 Preferred Units held by an Affiliate of a Series A-1 Member shall be treated as owned by such Series A-1 Member) (or an equivalent amount of Common Units issued upon conversion thereof), the LLC shall invite one representative of the Members holding Series A-1 Preferred Units (the “Series A-1 Representative”) to attend all meetings of its Board of Managers in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and other materials that it provides to its Managers at the same time the LLC provides such information to its Managers;  provided, however, that such Series A-1 Representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and, provided further, that the LLC reserves the right to withhold any information and to exclude such Series A-1 Representative from any meeting or portion thereof if access to such information or attendance at such meeting (a) could adversely affect the attorney‑client privilege between the LLC and its counsel, (b) would result in disclosure of trade secrets to such Series A-1 Representative, or (c) if PDV or any of its Affiliates is a  Competitor of the LLC (provided that an Affiliate of PDV shall not be deemed to be a Competitor of the LLC if such Affiliate is a financial investment entity that, together with its Affiliated funds or entities, holds outstanding equity of any Competitor), or (d) would result in a business conflict of interest in regards to PDV and the LLC, other than as a result of PDV’s ownership of Series A-1 Preferred Units (as reasonably determined by the Board of Managers in good faith). In addition, the Series A-1 Members (or any authorized representative designated by the Series A-1 Members) shall have the right to consult with and advise the Board of Managers and the management of the LLC, upon reasonable notice at reasonable times from time to time, on all matters relating to the operation of the LCC. The LLC agrees to consider, in good faith, the recommendations of Series A-1 Members (or its authorized representative) in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the LLC.  Notwithstanding the foregoing, if PDV sells or otherwise transfers its Series A-1 Preferred Units to a Competitor of the LLC (including as a result of the competitor acquiring PDV or substantially all of the PDV’s assets), the right of the Series A-1 Members to appoint a Series A-1 Representative and its rights to consult with the Board of Managers and management of the LLC shall terminate. Any observer shall be required to enter into a confidentiality agreement containing substantially similar terms as those set forth in Section 8.8 of this Agreement with the LLC prior to the exercise of the rights contained in this Section 5.4.    

Proprietary Information and Inventions Agreements

.  The LLC shall require all employees and consultants with access to confidential information to execute and deliver a Proprietary Information and Inventions Agreement in substantially the form approved by the Board of Managers or a consulting agreement containing substantially similar proprietary rights assignment and confidentiality provisions.

Notices

.  Any notice, payment, demand or other communication required or permitted to be given by any provision of this Agreement shall be deemed to have been delivered

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and given for all purposes (i) if delivered personally to the party or to an officer of the party to whom the same is directed, when received by such party, (ii) if delivered by confirmed telecopy transmission, when received if received on a Business Day during normal business hours of the recipient, and if not, on the next Business Day, (iii) by a nationally recognized overnight courier services or (iv) whether or not the same is actually received, if sent by registered or certified mail, return receipt requested, postage and charges prepaid, addressed as follows:  If to the LLC, at its principal place of business the address of which is set forth in Section 2.2; if to a Member, at such Member’s address set forth on Exhibit A hereto, or to such other address as such Member may from time to time specify by written notice to the Members and the LLC; such notice shall be deemed to be given five (5) days after the date on which the same was deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and sent as aforesaid.  Any party may by written notice to the other parties specify a different address or facsimile number for notice purposes by sending notice thereof in the foregoing manner.

Waiver of Notice

.  Whenever any notice is required to be given under the provisions of the Act, the Certificate or this Agreement, a waiver thereof in writing, signed by the Person or Persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

Officers

.

Reliance by Third Parties

.  In dealing with the LLC and its duly appointed agents, no Person shall be required to inquire as to the LLC’s or such agents’ authority to bind the LLC.

Actions and Determinations of the LLC

.  Except as otherwise expressly provided herein, whenever this Agreement provides that a determination shall be made or an action shall be taken by the LLC, such determination or act shall be made or taken by the Board of Managers or, pursuant to this Agreement or with the authorization of the Board of Managers (which may be a general authorization and need not be specific as to any named person, Officer or particular transaction), by any Officer.

Financial and Tax Reporting

.  The LLC shall prepare its financial statements and its income tax information returns using such methods of accounting and tax year as the Board of Managers deems necessary or appropriate as permitted by the Code and Treasury Regulations.

Members Access to Certain Information

.  To the extent required by, and subject to the limitations set forth in, Section 18-305 of the Act and subject to any limitation set forth in any Plan or Unit grant agreement,  subject to Section 8.8,  the LLC shall make available,

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upon at least three (3) Business Days’ prior written notice to the LLC, for inspection at reasonable times during business hours by a Member, the most recent balance sheet and income statement of the LLC and such other information and documents required by such Section 18-305 to be made available to Members, provided, however, that a Member shall not be entitled to submit more than one (1) such written notice per month;  provided further, however,  unless otherwise provided in any Equity Incentive Plan or pursuant to a Unit grant agreement or option agreement,  a Person holding solely Common Units that are Non-Voting Units issued under the Equity Incentive Plan shall have no such information access rights.

Delivery of Financial Statements

.  The LLC shall, unless waived by the Members holding shares of Series A-1 Preferred Units, deliver to each Preferred Member:

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Supervision; Inspection of Books

.  Proper and complete books of account and records of the business of the LLC (including those books and records identified in the Act) shall be kept at the LLC’s principal office and at any other place as designated by the Board of Managers. The LLC shall permit each Preferred Member, at such Preferred Member’s expense, to visit and inspect the LLC’s properties, to examine its books of account and records and to discuss the LLC’s affairs, finances and accounts with its officers, all at such reasonable times as may be requested in writing by the Preferred Member;  provided, however, that the LLC shall not be obligated pursuant to this Section 8.4 to provide access to any information that it reasonably considers to be a trade secret or similar highly sensitive confidential information. 

Termination of Information and Inspection Covenants

.  The covenants set forth in Sections 8.3 and 8.4 shall terminate and be of no further force or effect upon the earlier to occur of (a) the consummation of an Initial Public Offering, (b) when the LLC first becomes subject to the periodic reporting requirements of Sections 12(g) or 15(d) of the 1934 Act, whichever event shall first occur or (c) the consummation of a Liquidation Event.

Tax Information

.  The LLC shall transmit to each Member, and to each person (or legal representative thereof) who was a Member during any part of the Fiscal Year in question, within a reasonable time after the end of each Fiscal Year a copy of such person’s Schedule K-1 to Form 1065 for such Fiscal Year.  In the event the LLC elects to provide additional information to Members, the LLC shall be permitted to withhold any information from a Member (other than such Member’s Schedule K-1 to Form 1065 for a Fiscal Year) if the LLC determines, in its reasonable discretion, that such Member has taken any action or entered into any transaction that a reasonable person would view, at the time of the action or transaction,  as trading against, or in any way contrary to, the best interests of the LLC or that would make it impossible to carry on the affairs of the LLC.

Tax Matters Partner; Partnership Representative

.  The Member identified on Exhibit B as the Tax Matters Member is hereby designated as the LLC’s Tax Matters Partner (“TMP”) within the meaning of Code Section 6231(a)(7), and shall be designated as a “partnership representative” for purposes of the Budget Act (as defined below), to serve until his or her resignation or removal from the Board of Managers.  If the then serving TMP ceases to be a Member, the Board of Managers shall appoint a new TMP.  The TMP shall be authorized to take any and all actions that the “partnership representative” is authorized to take with respect to taxable years of the LLC to which the provisions of the Budget Act relating to partnership audits apply.  The TMP shall use its commercially reasonable efforts to apply the rules and elections under the Budget Act in a manner that minimizes the likelihood that any Member would bear any material tax as a result of any audit or proceeding that is attributable to another Member (other

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than a predecessor in interest).  The TMP is hereby authorized to take any action required to cause the financial burden of any “imputed underpayment” (as determined under Code Section 6225) (an “Imputed Underpayment”) and associated interest, adjustments to tax and penalties arising from an LLC-level adjustment that are imposed on the LLC to be borne by the Members and former Members to whom such Imputed Underpayment relates as determined by the TMP after consulting with the LLC’s accountants or other advisers, taking into account any differences in the amount of taxes attributable to each Member because of such Member’s status, nationality or other characteristics.  By executing this Agreement or a counterpart hereof, each Member and assignee (a) expressly authorizes the TMP and the LLC to take any and all action that is reasonably necessary under applicable federal income tax law (as such law may be revised from time to time) to cause the LLC to make the election set forth in Code Section 6226(a) if the TMP decides to make such election, and (b) expressly agrees to take any action, and furnish the TMP with any information necessary, to give effect to such election.  Each Member and former Member hereby severally indemnifies and holds the LLC and the TMP harmless for such Member’s or former Member’s respective portion of the financial burden of an Imputed Underpayment as provided in the foregoing sentence.  Where appropriate, references in this Section 8.7 to the TMP shall be deemed to refer to the partnership representative.  The TMP shall employ experienced tax counsel to represent the LLC in connection with any audit or investigation of the LLC by the United States Internal Revenue Service (“IRS”) and in connection with all subsequent administrative and judicial proceedings arising out of such audit.  The fees and expenses of such, and all expenses incurred by the TMP in serving as the TMP, shall be LLC expenses and shall be paid by the LLC.  Notwithstanding the foregoing, it shall be the responsibility of each Member, at their expense, to employ tax counsel to represent their respective separate interests.  No Member shall file a notice with the IRS under Code Section 6222(b) in connection with such Member’s intention to treat an item on such Member’s Federal income tax return in a manner that is inconsistent with the treatment of such item on the LLC’s Federal income tax return unless such Member has, not less than thirty (30) days prior to the filing of such notice, provided the TMP with a copy of the notice and thereafter in a timely manner provides such other information related thereto as the TMP shall reasonably request.  If the TMP is required by law or regulation to incur fees and expenses in connection with tax matters not affecting each of the Members, then the TMP may, in its reasonable discretion, seek reimbursement from or charge such fees and expenses to the Capital Accounts of those Members on whose behalf such fees and expenses were incurred.  The TMP shall keep the Members informed of all administrative and judicial proceedings, as required by Code Section 6223(g), and shall furnish a copy of each notice or other communication received by the TMP from the IRS to each Member, except such notices or communications as are sent directly to such Member by the IRS.  The relationship of the TMP to the Members is that of a fiduciary, and the TMP has a fiduciary obligation to perform its duties as TMP in such manner as will serve the best interests of the LLC and all of the LLC’s Members.  To the fullest extent permitted by law, the LLC agrees to indemnify the TMP and its agents and save and hold them harmless, from and in respect to all (i) reasonable fees, costs and expenses in connection with or resulting from any claim, action, or demand against the TMP or the LLC that arise out of or in any way relate to the TMP’s status as TMP for the LLC, and (ii) all such claims, actions, and demands and any losses or damages therefrom, including amounts paid in settlement or compromise of any such claim, action, or demand; provided that this indemnity shall not extend to conduct by the TMP adjudged (i) not to have been undertaken in good faith to promote the best interests of the LLC or (ii) to

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have constituted recklessness or intentional wrongdoing by the TMP.  The provisions contained in this Section 8.7 shall survive the termination of the LLC and the withdrawal of any Member.  The “Budget Act” shall mean the Bipartisan Budget Act of 2015 and any Sections of the Code or Treasury Regulations promulgated thereunder and with respect thereto, each as amended from time to time.

Confidentiality

. 

Capital Accounts

.

Allocations of Net Income and Net Loss

.  Net Income, Net Loss and items thereof of the LLC for each Fiscal Year (or other Accounting Period) shall be allocated to the Members in such manner that:

Special Allocation Provisions

.  Notwithstanding any other provision in this Agreement:

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Curative Allocations

.  If the Board of Managers determines, after consultation with counsel experienced in income tax matters, that the allocation of any item of LLC income, gain, loss, deduction or credit is not specified in this Article IX (an “unallocated item”), or that the allocation of any item of LLC income, gain, loss, deduction or credit hereunder is clearly inconsistent with the Members’ economic interests in the LLC (determined by reference to the general principles of Treasury Regulation Section 1.704-1(b) and the factors set forth in Treasury Regulation Section 1.704-1(b)(3)(ii)) (a “misallocated item”), then the Board of Managers may allocate such unallocated items, or reallocate such misallocated items, to reflect such economic interests; provided that no such allocation shall have any effect on the amounts distributable to any Member (other than tax distributions), including the amounts to be distributed upon the complete liquidation of the LLC.

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Tax Allocations

.  For income tax purposes only, each item of income, gain, loss and deduction of the LLC shall be allocated in the same manner as the corresponding items of Net Income and Net Loss and specially allocated items are allocated for Capital Account purposes; provided that in the case of any LLC asset the Carrying Value of which differs from its adjusted tax basis for U.S. federal income tax purposes, income, gain, loss and deduction with respect to such asset shall be allocated solely for income tax purposes in accordance with the principles of Section 704(c) of the Code so as to take account of the difference between the Carrying Value and adjusted tax basis of such asset.  Unless otherwise agreed by the Board of Managers, for purposes of applying the principles of Section 704(c), the LLC shall use the “traditional method” of Treasury Regulation Section 1.704-3(b).

Compliance with Section 704(b) of the Code

.  The allocation provisions contained in this Article IX are intended to comply with Section 704(b) of the Code and the Treasury Regulations promulgated thereunder, and shall be interpreted and applied in a manner consistent therewith.

Safe Harbor Election

.  The Board of Managers is hereby authorized and directed to elect the safe harbor described in section 4 of the Proposed Revenue Procedure (or any substantially similar safe harbor provided for in other IRS guidance), if and when such Revenue Procedure (or other IRS guidance) is finalized (the “Safe Harbor”).  The LLC and each Member (including any Persons to whom a Profits Interest is Transferred or issued in connection with the provision of services, and any Person to whom an Interest is Transferred by another Member) agree to comply with all requirements of the Safe Harbor while such election remains in effect, including making tax filings (if any) consistent with the applicable requirements of such Safe Harbor and any relevant Treasury Regulations.  In addition, the Members agree to amend this Agreement as and if required by the finalized Revenue Procedure (or substantially similar other IRS guidance) in order to ensure that the Transfer or issuance of an Interest in connection with the provision of services to, or on behalf of, the LLC is eligible for the benefits of the Safe Harbor.  Notwithstanding the preceding sentences, no election or amendment shall be made pursuant to this Section 9.7 if the Safe Harbor, when finalized, is substantially different from the Proposed Revenue Procedure and the application of the Safe Harbor would result in materially adverse consequences to the LLC.

Distributions

.

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Tax Distributions

.  Notwithstanding Section 10.1, within ninety (90) days of the end of each Fiscal Year, the LLC shall, unless otherwise determined by all of the members of the Board of Managers, make a distribution to each holder of Units out of any available cash of the LLC (as determined by the Board of Managers) of an amount equal to the excess of (A) the sum of (i) the product of (x) the amount of net income and gain taxable at ordinary tax rates allocated with respect to such Unit (as shown on Schedule K-1 to the LLC’s IRS Form 1065) for such Fiscal Year and all prior Fiscal Years and (y) the maximum marginal rate of federal, state and local income tax applicable to an individual subject to tax in the Designated Jurisdiction with respect to such income or gain, (ii) the product of (x) the amount of net income and gain taxable at long-term capital gains rates allocated with respect to such Unit (as shown on Schedule K-1 to the LLC’s IRS Form 1065) for such Fiscal Year and all prior Fiscal Years and (y) the maximum marginal rate of federal, state and local income tax applicable to an individual subject to tax in the Designated Jurisdiction with respect to such income or gain and, (iii) in the event of allocation by the LLC of net income or gain taxable at a rate other than the ordinary or long-term capital gains rates contemplated in clauses (i) and (ii) above, the product of (x) the amount of such net income and gain taxable at such other rate allocated with respect to such Unit (as shown on Schedule K-1 to the LLC’s IRS Form 1065) for such Fiscal Year and all prior Fiscal Years and (y) the maximum marginal rate of federal, state and local income tax applicable to an individual subject to tax in the Designated Jurisdiction with respect to such income or gain, over (B) the cumulative cash distributions previously made with respect to such Unit pursuant to this Section 10.2 and Section 10.1(b) during such Fiscal Year and all prior Fiscal Years. The

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determination of the tax rates to be used for purposes of the preceding sentence shall be made by the Board of Managers in their good faith discretion after consulting with the LLC’s tax advisors, taking into account among other things changes in applicable tax rates over the relevant period, the deductibility of state and local taxes and any limitations on the ability of an individual to deduct any items of expense or loss under United States federal income tax principles.  For the avoidance of doubt, the references to “net income and gain” in clauses (A)(i)(x), (A)(ii)(x), and (A)(iii)(x) above shall mean that amount of such gross income and gain of the LLC allocated with respect to such Unit for all such Fiscal Years reduced by the gross amount of loss and deduction allocated with respect to such Unit for all such Fiscal Years that is available as an offset to such income and gain.  Without prejudice to the foregoing, the LLC may make a distribution out of any available cash of the LLC (as determined by the Board of Managers) to each holder of Units as soon as practicable following the close of each Estimated Tax Period (each an “Estimated Tax Distribution”) of each Fiscal Year in amounts equal to the estimated tax liability of each Unit holder relating to such Estimated Tax Period (as estimated by the Board of Managers in their good faith discretion after consulting with the LLC’s tax advisors and based on the results of such quarter and using the methodology and assumptions described in the preceding sentences). Estimated Tax Distributions made during a Fiscal Year shall be treated as advances and shall reduce the distributions otherwise distributable in accordance with the first sentence of this Section 10.2 for such Fiscal Year, and upon prior written notice, if the amount of Estimated Tax Distributions for a Fiscal Year exceed the amount otherwise distributable in accordance with the first sentence of this Section 10.2, the excess distributed to such Member shall be credited against and reduce distributions that would otherwise be made to such Member pursuant to this Section 10.2 with respect to subsequent Fiscal Years, and if the amount of Estimated Tax Distributions for a Fiscal Year is less than the amount otherwise distributable in accordance with the first sentence of this Section 10.2, the LLC may distribute the shortfall to the Members within sixty (60) days of the end of such Fiscal Year.  Notwithstanding the foregoing, distributions pursuant to this Section 10.2 shall not be available to a Member with respect to any guaranteed payment under Code Section 707(c) or any payment to a Member not in his, her or its capacity as a Member under Code Section 707(a).  Distributions effected pursuant to this Section 10.2 with respect to each Unit shall be applied to, treated as included in, and reduce the next succeeding distribution(s) (without double counting) to be made with respect to each such Unit pursuant to (i) Section 10.1 to the extent such amount was allocated pursuant to Section 9.2 in accordance with such 10.1 distribution, and (ii) Section 10.3 to the extent such amount was allocated pursuant to Section 9.2 in accordance with such 10.3 distribution as necessary to ensure that, over the period of time since such Unit was issued and outstanding, the aggregate amount distributed respect to each such Unit under this Agreement shall be equal to the amount which such Unit would have been distributed under this Agreement had there been no distributions pursuant to this Section 10.2 and had this Section 10.2 not been part of this Agreement, as reasonably determined in good faith by the Board of Managers.    

Liquidation Event Distributions

.

(a)Upon any Liquidation Event, funds and assets of the LLC determined by the Board of Managers to be available for distribution shall be distributed to the Members as follows, in the following order of priority:

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Notwithstanding the foregoing provisions of this Section 10.3, (A) amounts that would otherwise be distributed to any Common Unit that was issued with a Profits Interest Threshold Amount shall be reduced by an amount equal to its remaining Profits Interest Threshold Amount for such Common Unit and the amount by which the distribution to such Common Unit is reduced shall instead be distributed to the holders of Units as provided in the foregoing provisions of this Section 10.3 and (B) in the event that the Series A-1 Member or the Series A Members would receive a greater amount of distributions if such Members had converted to Common Members prior to any distribution made pursuant to this Section 10.3 and participated in such distribution as Common Member than such Members would receive pursuant to Section 10.3(a)(i) in the case of a Series A-1 Member or Section 10.3(a)(ii) in the case of the Series A Members, then all distributions shall be made to the Common Members and Preferred members pro rata in proportion to the number of Common Units held or deemed held by each (assuming full conversion of all such Preferred Units at the Conversion Rate then in effect). 

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No Other Withdrawals

.  Except as expressly provided in this Agreement, no withdrawals or distributions shall be required or permitted.

Distribution Limitations

.  Notwithstanding any provision to the contrary contained in this Agreement, the LLC shall not make a distribution to any Member on account of its Interest in the LLC if such distribution would violate the Act or other applicable law or breach any contract or agreement to which the LLC is a party.

Transfer

.  Except as expressly otherwise provided in this Agreement (including Section 11.10), no Member may transfer, sell, encumber, mortgage, pledge, assign or otherwise dispose of, either directly or indirectly, by operation of law or otherwise (herein collectively called a “Transfer”) any portion of its Interest in the LLC without the consent of the Board of Managers, and in the event the Board of Managers consents to a Transfer, such Transfer shall also be subject to the other provisions of this Article XI.

Transfer Void

.  Any Transfer or attempted Transfer of an Interest in the LLC in contravention of this Agreement shall be absolutely null and void ab initio and of no force or effect, on or against the LLC, any Member, any creditor of the LLC or any claimant against the LLC and may be enjoined, and shall not be recorded on the books and records of the LLC.  No distributions of cash or property of the LLC shall be made to any transferee of any Interest Transferred in violation hereof, nor shall any such Transfer be registered on the books of the LLC.  The Transfer or attempted Transfer of any Interest in violation hereof shall not affect the beneficial ownership of such Interest, and, notwithstanding such Transfer or attempted Transfer, the Member making such prohibited Transfer or attempted Transfer shall retain the right to vote, if any, and the right to receive liquidation proceeds with respect to such Interest.

Effect of Assignment

.  Following a Transfer of an Interest that is permitted under this Article XI, the transferee of such Interest shall be treated as having made all of the Capital Contributions in respect of, and received all of the distributions received in respect of, such Interest, shall succeed to the Capital Account associated with such Interest and shall receive allocations and distributions under Articles IX and X in respect of such Interest as if such transferee were a Member.

Legends

.

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“THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE UNITS REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN WRITTEN AGREEMENT BETWEEN THE REGISTERED HOLDERS OF THE UNITS OF THE LLC (OR THE PREDECESSOR IN INTEREST TO THE UNITS).  SUCH AGREEMENT RESTRICTS THE TRANSFER OF UNITS AND GRANTS TO THE LLC AND/OR OTHER HOLDERS OF UNITS CERTAIN RIGHTS OF FIRST REFUSAL AND/OR CO-SALE UPON AN ATTEMPTED TRANSFER OF THE UNITS.  SUCH AGREEMENT CONTAINS PROVISIONS REGARDING THE VOTING OF THE UNITS REPRESENTED BY THIS CERTIFICATE.  COPIES OF SUCH AGREEMENT MAY BE OBTAINED FROM THE ISSUER UPON WRITTEN REQUEST.  BY ACCEPTING ANY INTEREST IN SUCH UNITS THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH AGREEMENT.”

Publicly Traded Partnership Limitations

.  Notwithstanding any other provision of this Agreement, no Transfer shall be permitted if (i) the Board of Managers determines in its sole discretion that such transaction will either cause the LLC to be characterized as a “publicly traded partnership” or will materially increase the risk that the LLC will be so characterized or (ii) such Transfer would occur in a transaction registered or required to be registered under the Securities Act.  For purposes of this Section 11.5, the phrase “publicly traded partnership” shall have the meanings set forth in Section 7704(b) and 469(k) of the Code.  In particular and without limiting the foregoing, no Transfer shall be permitted, given effect or otherwise recognized, and such Transfer (or purported Transfer) shall be void ab initio, if at the time of such Transfer (or as a result of such Transfer) Units are (or would become) traded on an “established securities market” (within the meaning of Treasury Regulation Section 1.7704-1(b)) or are (or would become) “readily tradable on a secondary market or the equivalent thereof” (within the meaning of Treasury Regulation Section 1.7704‑1(c)).

Effective Date

.  Any Transfer in compliance with this Article XI shall be deemed effective on the first date as of which with the relevant requirements of this Agreement have been satisfied.

Rights of Refusal

. 

Right of Co-Sale

.  

Non-Exercise of Rights

.  To the extent that the LLC and the Preferred Members have not exercised their rights to purchase the Offered Units or the Remaining Units within the time periods specified in Section 11.7 and the Preferred Members have not exercised their rights to participate in the sale of the Remaining Units within the time periods specified in Section 11.8, the Selling Member shall have a period of thirty (30) days from the expiration of such rights in which to sell the Offered Units or the Remaining Units, as the case may be, upon terms and conditions (including the purchase price) no more favorable than those specified in the Transfer Notice, to the third-party transferee(s) identified in the Transfer Notice.  The third party transferee(s) shall acquire the Offered Units and the Remaining Units free and clear of subsequent rights of first refusal and co-sale rights under this Agreement.  In the event Selling Member does not consummate the sale or disposition of the Offered Units and Remaining Units within the thirty (30) day period from the expiration of these rights, the LLC’s first refusal rights and the Preferred Members’ first refusal rights and co-sale rights shall continue to be applicable to any subsequent disposition of the Offered Units or the Remaining Units by the Selling Member until such right lapses in accordance with the terms of this Agreement.  Furthermore, the exercise or non-exercise of the rights of the LLC and the Preferred Members under Sections 11.7 and 11.8 to purchase Equity Securities from the Selling Member or participate in sales of Equity Securities by the Selling Member shall not adversely affect their rights to make subsequent purchases from the Selling Member of Equity Securities or subsequently participate in sales of Equity Securities by the Selling Member.

Limitations on Transfer Restriction

.

(a)Notwithstanding the other provisions of Article XI of this Agreement (other than Section 11.11), the first refusal rights of the LLC and first refusal and co-sale rights of the Preferred Members the restrictions on Transfer shall not apply to (a) the Transfer of Equity Securities to any spouse or member of a Member’s immediate family, or to a custodian, trustee (including a trustee of a voting trust), executor, or other fiduciary for the account of the Member’s spouse or members of the Founder’s or Key Employee’s immediate family, or to a trust for the Founder’s or Key Employee’s own self, or a charitable remainder trust, or (b) any sale of Equity Securities to an Initial Public Offering; provided, however, that in the event of any Transfer made pursuant to one of the exemptions provided by clause(s) (a) or (b), (i) the Member, as applicable, shall inform the Series A Members of such Transfer prior to effecting it and (ii) each such transferee or assignee, prior to the completion of the Transfer, shall have executed documents assuming the obligations of the Member under this Agreement with respect to the transferred Equity Securities.  Such transferred Equity Securities shall remain “Equity Securities” hereunder, and such pledgee, transferee or donee shall be treated as the transferring Member, as applicable, for purposes of this Agreement.  The Preferred Members’ right of first

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refusal set forth in Section 11.7(d) and co-sale right set forth in Section 11.8 shall terminate and be of no further force and effect upon the earlier of (i) a Liquidation Event or (ii) Initial Public Offering.

(b)Notwithstanding the other provisions of Article XI of this Agreement (other than Section 11.11),  in the event of a Liquidating Event with respect to PDV,  PDV may Transfer its Interest in the LLC, in whole or in part, to the successor in such Liquidation Event without the consent of the Board of Managers and without complying with Sections 11.7, 11.8 and/or 11.9;  provided, however,  that (i) such successor be a Person who is a Competitor of the LLC shall not be admitted as a Series A-1 Member of the LLC, but shall only be entitled to receive the economic rights described in Section 18-702(b)(2) of the Act and this Agreement related to its ownership of Series A-1 Preferred Units, unless the Board of Managers consents to such successor entity being admitted as a Member, which consent shall not be unreasonably withheld, conditioned or delayed;  (ii) should such successor be a Person who is a Competitor of the LLC, all voting, approval and consent rights that the Series A-1 Members have under this Agreement, and all rights of the Series A-1 Members under Sections 5.4, 8.2, 8.3 and 8.4, shall automatically terminate with respect to such successor.    Upon the request of a Preferred Member making a Transfer, the Company shall make an election under Section 754 of the Code effective for the taxable year of the transfer if the LLC has not previously made such election

Transfer Requirements; Prohibited Transfers

.  Notwithstanding any other provisions of this Agreement, no Transfer of all or any fraction of a Member’s Interest may be made unless:

Drag-Along Right

.  Notwithstanding anything contained herein to the contrary, but subject the voting rights of the Members holding Series A-1 Preferred Units set forth in Section 3.11(b)(i), if a majority of the Board of Managers approves a Liquidation Event, each

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Member hereby agrees with respect to all securities of the LLC which he, she or it own(s) or otherwise exercises voting or dispositive authority:

Notwithstanding the foregoing, no Member shall be required to vote in the manner described by this Section 11.13 unless the net proceeds of such Liquidation Event are to be distributed to Members of the LLC in accordance with the Article X, hereof.

During the term of this Agreement, each of the Members agrees to vote all Units now or hereafter owned by such Member, whether beneficially or otherwise, or as to which such Member has voting power at a regular or special meeting of the Members (or by written consent) in accordance with the provisions of this Section 11.13.  Upon the failure of any Member to vote their Units in accordance with the terms of this Section 11.13, such Member hereby grants to the LLC a proxy coupled with an interest in all Units owned by such Member, which proxy shall be irrevocable until this Agreement terminates pursuant to its terms or this Section 11.13 is amended to remove such grant of proxy in accordance with Section 14.1 hereof, to vote all such Units at a regular or special meeting of the Members (or by written consent) as necessary or required to effect the transactions contemplated by this Section 11.13.  It is agreed and understood that monetary damages would not adequately compensate an injured Member for the breach of this Section 11.13 by any other Member, that this Section 11.13 shall be specifically enforceable, and that any breach or threatened breach of this Section 11.13 shall be the proper subject of a temporary or permanent injunction or restraining order.  Further, each Member waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach. 

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Indemnification

.

Exculpation by Members

.  For purposes of this Section 12.2, the term “agent” shall have the meaning assigned to such term in Section 12.1(a).  No agent shall be liable to the

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LLC or any Member or any Person who acquires any interest in the LLC for (a) honest mistakes in judgment, or for action or inaction, taken reasonably and in good faith and for a purpose that was reasonably believed to be in the best interests of the LLC or (b) losses sustained or liabilities incurred as a result of any act or omission of such agent if such act or omission did not constitute bad faith, recklessness, fraud or intentional wrongdoing on the part of the agent.  Each agent may consult with counsel, accountants and other professionals in respect of LLC affairs and shall be fully protected and justified in acting, or failing to act, if such action or failure to act is in accordance with the reasonable advice or opinion of such counsel, accountant or other professional and if such counsel, accountant or other professional shall have been selected with reasonable care.  Notwithstanding the foregoing, the provisions of this Section 12.2 shall not relieve any Person of liability arising by reason of acting in bad faith, or if such Person’s conduct in the performance of its duties hereunder, or its acts or omissions, constitute recklessness, fraud, intentional wrongdoing or gross negligence.  This Agreement shall be construed to give effect to the provisions of this Section 12.2 to the fullest extent permitted by law.

Limitation of Liability

.  Notwithstanding anything to the contrary herein contained, the debts, obligations and liabilities of the LLC shall be solely the debts, obligations and liabilities of the LLC and no Member, Manager or Officer shall be obligated personally for any such debt, obligation or liability of the LLC solely by reason of being a Member, Manager or Officer of the LLC.

Counsel to the LLC

.  Counsel to the LLC may also be counsel to a Member with respect to matters related to or unrelated to the LLC.  Any Manager may execute on behalf of the LLC and the Members any consent to the representation of the LLC that counsel may request pursuant to the applicable Rules of Professional Conduct or similar rules in any other jurisdiction (“Rules”).  The LLC has initially selected Shulman, Rogers, Gandal, Pordy & Ecker, P.A. (“LLC Counsel”) as legal counsel to the LLC.  Each Member acknowledges that LLC Counsel does not represent any Member in its capacity as a Member in the absence of a clear and explicit written agreement to such effect between the Member and LLC Counsel (and then only to the extent specifically set forth in such agreement), and that in the absence of any such agreement LLC Counsel shall owe no duties directly to a Member.  Each Member further acknowledges that, whether or not LLC Counsel has in the past represented or is currently representing such Member with respect to other matters, LLC Counsel has not represented the interests of any Member in the preparation and negotiation of this Agreement.

Dissolution

.  The LLC shall be dissolved, its assets disposed of and its affairs wound up upon the first to occur of the following:

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Except as otherwise provided herein, the death, bankruptcy, incompetency, retirement, resignation, expulsion or dissolution of a Member, or the occurrence of any other event that terminates the continued membership of a Member in the LLC, shall not dissolve or terminate the LLC.  Notwithstanding any other provision of this Agreement, the bankruptcy (as defined in Sections 18-101(1) and 18-304 of the Act) of a Member will not cause that Member to cease to be a member of the LLC, and upon the occurrence of such an event, the business of the LLC shall continue without dissolution.  Notwithstanding any other provision of this Agreement, each Member waives any right it might have under Section 18-801(b) of the Act to agree in writing to dissolve the LLC upon the occurrence of the bankruptcy (as defined in Sections 18-101(1) and 18-304 of the Act) of a Member or the occurrence of any other event that causes a Member to cease to be a member of the LLC.

Authority to Wind Up

.  Upon the dissolution of the LLC as set forth in Section 13.1, the Board of Managers shall have all necessary power and authority required to marshal the assets of the LLC, to pay the LLC’s creditors, to distribute assets and otherwise wind up the business and affairs of the LLC.  In particular, the Board of Managers shall have the authority to continue to conduct the business and affairs of the LLC insofar as such continued operation remains consistent, in the judgment of the Board of Managers, with the orderly winding up of the LLC.

Winding Up and Certificate of Cancellation

.  The winding up of the LLC shall be completed when all debts, liabilities and obligations of the LLC have been paid and discharged or reasonably adequate provision therefor has been made, and all of the remaining property and assets of the LLC have been distributed to the Members.

Distribution of Assets

.  Upon dissolution and winding up of the LLC, the affairs of the LLC shall be wound up and the LLC liquidated by the Board of Managers.  The assets of the LLC shall be distributed as follows in accordance with the Act:

The remaining assets of the LLC shall be applied and distributed among the Members in accordance with the provisions of Section 10.3.

The distribution of cash, securities and other property to a Member in accordance with the provisions of this Section 13.4 shall constitute a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its Interest and all the LLC’s

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property, and shall constitute a compromise to which all Members have consented within the meaning of the Act.  If such cash, securities and other property are insufficient to return such Member’s Capital Contributions or returns thereon, the Member shall have no recourse against the Board of Managers, other Members or Officers.

Conversion to a Corporation

.

Amendment

.



Power of Attorney

.

Withholding

.  The LLC shall at all times be entitled to make payments with respect to any Member in amounts required to discharge any obligation of the LLC to withhold or make payments to any governmental authority with respect to any federal, state, local, or other jurisdictional tax liability of such Member arising as a result of such Member’s Interest in the LLC.  To the extent each such payment satisfies an obligation of the LLC to withhold, with respect to any distribution to a Member on which the LLC did not withhold or with respect to any Member’s allocable share of the income of the LLC, each such payment shall be deemed to be a loan by the LLC to such Member (which loan shall be deemed to be immediately due and payable) and shall not be deemed a distribution to such Member.  The amount of such payments made with respect to such Member, plus interest, on each such amount from the date of each such payment until such amount is repaid to the LLC at an interest rate per annum equal to the prime rate published in the Wall Street Journal on the date of such payment by the LLC with

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respect to such Member, shall be repaid to the LLC by (a) deduction from any cash distributions made to such Member pursuant to this Agreement, or (b) earlier payment by such Member to the LLC, in each case as determined by the LLC in its discretion.  The LLC may, in its discretion, defer making distributions to any Member owing amounts to the LLC pursuant to this Section 14.3 until such amounts are paid to the LLC and shall in addition exercise any other rights of a creditor with respect to such amounts.  Each Member agrees to indemnify and hold harmless the LLC and each of the Members, from and against liability for taxes, interest, or penalties which may be asserted by reason of the failure to deduct and withhold tax on amounts distributable or allocable to said Member.  Any amount payable as indemnity hereunder by a Member shall be paid promptly to the LLC upon request for such payment from the LLC, and if not so paid, the LLC shall be entitled to claim against and deduct from the Capital Account of, or from any distribution due to, the affected Member for all such amounts.

Apportionment of Amounts Withheld at the Source or Paid by the LLC

.

Notice to and Consent of Members

.  By executing this Agreement, each Member acknowledges that it has actual notice of and consents to (a) all of the provisions hereof (including the restrictions on Transfer), and (b) all of the provisions of the Certificate.

Further Assurances

.  The parties agree to execute and deliver any further instruments or documents and perform any additional acts which are or may become necessary to effectuate and carry on the LLC created by this Agreement.

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Binding Effect

.  Subject to the restrictions on Transfer set forth in this Agreement, this Agreement shall be binding on and inure to the benefit of the Members and their respective transferees, successors, assigns and legal representatives.

Governing Law

.  This Agreement shall be governed by and construed under the laws of the State of Delaware as applied to agreements among Delaware residents entered into and to be performed entirely within Delaware.

Title to LLC Property

.  Legal title to all property of the LLC will be held and conveyed in the name of the LLC.



Entire Agreement

.  This Agreement and the Exhibits hereto constitute the entire agreement among the parties with respect to the subject matter herein.  This Agreement and the Exhibits hereto replace and supersede all prior agreements by and among the Members or any of them in respect of the LLC.  This Agreement and the Exhibits hereto supersede all prior written and oral statements; and no representation, statement, condition or warranty not contained in this Agreement or the Exhibits hereto will be binding on the Members or the LLC or have any force or effect whatsoever.

Counterparts

.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  For the avoidance of doubt, affirmation or signature of this Agreement or Unit purchase or issuance agreement by electronic means (an “Electronic Signature”) shall

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constitute the execution and delivery of a counterpart of this Agreement or a Unit purchase or issuance agreement by or on behalf of such Person intending to be bound by the terms of this Agreement.  The parties hereto agree that this Agreement, each Unit purchase or issuance agreement and any additional information incidental thereto may be maintained as electronic records.  Any Person providing an Electronic Signature further agrees to take any and all additional actions, if any, evidencing their intent to be bound by the terms of this Agreement, as may be reasonably requested by the Board of Managers.

No State-law Partnership

.  The Members intend that the LLC not be a partnership (including a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member by virtue of this Agreement, for any purposes other than for U.S. federal income tax purposes as set forth in Section 14.14, and neither this Agreement nor any other document entered into by the LLC or any Member relating to the subject matter hereof shall be construed to suggest otherwise.

Tax Classification

.  It is the intent of the Members that, prior to any conversion of the LLC to a corporate legal entity in compliance with the provisions of this Agreement, the LLC shall always be operated in a manner consistent with its treatment as a “partnership” for federal, state and local income and franchise tax purposes at all times that it has two (2) or more Members.  In accordance therewith, (a) no Member shall file any election with any taxing authority to have the LLC treated otherwise, and (b) each Member hereby represents, covenants, and warrants that it shall not maintain a position inconsistent with such treatment.  The Members agree that at all times that it has two (2) or more Members, except as otherwise required by applicable law, they (i) will not cause or permit the LLC to elect (A) to be excluded from the provisions of Subchapter K of the Code, or (B) to be treated as a corporation or an association taxable as a corporation for any tax purposes; (ii) will cause the LLC to make any election reasonably determined by the TMP to be necessary or appropriate in order to ensure the treatment of the LLC as a partnership for all tax purposes; (iii) will cause the LLC to file any required tax returns in a manner consistent with its treatment as a partnership for tax purposes; and (iv) have not taken, and will not take, any action that would be inconsistent with the treatment of the LLC as a partnership for such purposes.

Severability

.  If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future laws applicable to the LLC effective during the term of this Agreement, such provision will be fully severable; this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement; and the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement.

No Third Party Beneficiary

.  This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and permitted assigns, and no other Person will have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.  Notwithstanding the foregoing, the Series A-1 Members are express third party beneficiaries of the obligations of Joseph and David set forth in Section 4.1(a) of this Agreement.

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Interpretation

.  The titles and section headings set forth in this Agreement are for convenience only and shall not be considered as part of agreement of the parties.  When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include all other genders.  No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof.

No Interest in LLC Property; Waiver of Action for Partition

.  No Member or assignee has any interest in specific property of the LLC.  No  Member or assignee shall have the right, and each Member and assignee does hereby agree that it shall not seek, to cause a partition of the LLC’s property whether by court action or otherwise.  

Aggregation of Units

.  All Units held or acquired by Affiliates of Members shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.



(Remainder of page intentionally left blank.)

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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first indicated above.

SERIES A MEMBERS:



JG TC Holdings, LLC





By: /s/ Joseph Gottlieb
Name:    Joseph Gottlieb
Title:     Member



DG TC Holdings, LLC





By:    /s/ David Gottlieb
Name:    David Gottlieb
Title:     Member



SERIES A-1 MEMBER:



pdvWireless, Inc.





By:/s/ Brian D. McAuley
Name:    Brian D. McAuley
Title:  Chairman



COMMON MEMBERS:







_/s/ Brian Levy__________________________

Brian Levy



/s/ Joseph Gottlieb_______________________

Joseph Gottlieb, individually, solely for purposes of Section 4.1(a)





/s/ David Gottlieb_______________________

David Gottlieb, individually, solely for purposes of Section 4.1(a)

 

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EXHIBIT A

TO THE

LIMITED LIABILITY COMPANY AGREEMENT

OF

TEAMCONNECT, LLC, LLC



[*]



* CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.









 

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EXHIBIT B



Initial Managers



[*]





Officers:



[*]



Tax Matters Member:

[*]







* CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.



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