Operating Agreement Template

OPERATING AGREEMENT
OF
MMS INVESTMENTS, L.L.C.
OPERATING AGREEMENT
OF
THIS
THE COMPANY CONTENDS THAT MEMBERSHIP INTERESTS IN

LIMITED
SECURITIES;
LIABILITY
NEVERTHELESS
COMPANY
THE
DO
NOT
COMPANY
CONSTITUTE
PROVIDES
THE
FOLLOWING NOTICE APPLICABLE TO ALL SUCH MEMBERSHIP

INTERESTS IN THE EVENT OF A FINAL JUDICIAL DETERMINATION
CONCLUDING THAT SAID MEMBERSHIP INTERESTS CONSTITUTE
SECURITIES:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
GEORGIA SECURITIES ACT OF 1973, AS AMENDED, IN RELIANCE UPON

THE EXEMPTION FROM REGISTRATION SET FORTH IN SECTION 10-59(13) OF SUCH ACT.
IN ADDITION, THESE SECURITIES HAVE NOT
BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION, IN RELIANCE UPON AN EXEMPTION FROM

SUCH REGISTRATION SET FORTH IN THE SECURITIES ACT OF 1933
PROVIDED BY SECTION 4(2) THEREOF.
THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND MAY NOT
BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, OR

TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND IN A TRANSACTION WHICH IS

EITHER EXEMPT FROM REGISTRATION UNDER SUCH ACTS OR
PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACTS.
ARTICLE I
DEFINITIONS...............................................................................1
ARTICLE II
FORMATION OF COMPANY.....................................................5
2.1
2.2
2.3
2.4
2.5
2.6
2.7
Formation....................................................................................................6
Name ..........................................................................................................6
Principal Place of Business........................................................................6
Registered Office and Registered Agent...................................................6
Term ..........................................................................................................6
Permitted Businesses.................................................................................6
Members......................................................................................................7
ARTICLE III
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
Management...............................................................................................8
Number, Tenure and Qualifications..........................................................9
Meetings of the Managers..........................................................................9
Action without a Meeting...........................................................................9
Certain Express Powers of Manager.......................................................10
No Agency.................................................................................................13
Liability for Certain Acts.........................................................................13
Managers Have No Exclusive Duty to Company....................................14
Bank Accounts..........................................................................................14
Indemnity of the Managers, Employees and Other Agents...................14
Resignation...............................................................................................14
Removal.....................................................................................................15
Vacancies...................................................................................................15
Salaries......................................................................................................15
Conflict of Interest....................................................................................16
Committees...............................................................................................16
Compensation Committee........................................................................16
Audit Committee......................................................................................17
ARTICLE IV
4.1
4.2
4.3
RIGHTS AND DUTIES OF MANAGERS.................................8
RIGHTS AND OBLIGATIONS OF MEMBERS....................17
Limitation on Liability.............................................................................18
No Liability for Company Obligations.....................................................18
List of Members........................................................................................18
ii
4.4
4.5
4.6
Approval of Certain Transactions...........................................................18

Dissenters' Rights.....................................................................................18
Priority and Return of Capital................................................................18
ARTICLE V
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
5.12
Annual Meeting........................................................................................19
Special Meetings.......................................................................................19
Place of Meetings......................................................................................19
Notice of Meetings....................................................................................19
Meeting of all Members............................................................................19
Record Date...............................................................................................19
Quorum.....................................................................................................19
Manner of Acting......................................................................................20
Proxies.......................................................................................................20
Action by Members Without a Meeting..................................................20
Waiver of Notice........................................................................................20
Withdrawal and Expulsion of Members..................................................21
ARTICLE VI
6.1
6.2
6.3
6.4
6.5
ACCOUNTS..................................................................................22
DISTRIBUTIONS TO MEMBERS...........................................23
Distributions of Distributable Cash........................................................23

Limitation Upon Distributions................................................................24
Interest On and Return of Capital Contributions..................................24
Loans to Company....................................................................................24
ARTICLE VIII
8.1
8.2
8.3
CONTRIBUTIONS TO THE COMPANY AND CAPITAL
Members' Capital Contributions.............................................................22

Additional Contributions.........................................................................22
Failure to Make Capital Contributions...................................................22
Capital Contributions in Cash................................................................23
Withdrawal or Reduction of Members' Contributions to Capital.........23
ARTICLE VII
7.1
7.2
7.3
7.4
MEETINGS OF MEMBERS......................................................18
ALLOCATIONS...........................................................................25
Capital Account........................................................................................25
Distributive Share....................................................................................25
Allocation of Profits and Losses...............................................................26
ARTICLE IX
BOOKS AND RECORDS...........................................................26
iii
9.1
9.2
9.3
Accounting Period.....................................................................................26
Records and Reports................................................................................26
Tax Returns..............................................................................................27
ARTICLE X
10.1
10.2
10.3
TRANSFERABILITY.................................................................27
General......................................................................................................27
Transferee Not Member in Absence of Consent.....................................30
Additional Members.................................................................................30
ARTICLE XI
11.1
11.2
11.3
11.4
11.5
Dissolution................................................................................................31
Effect of Dissolution.................................................................................33
Winding Up, Liquidation and Distribution of Assets.............................33
Certificate of Termination.......................................................................34
Return of Contribution Nonrecourse to Other Members.......................34
ARTICLE XII
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
12.10
12.11
12.12
12.13
12.14
12.15
12.16
12.17
12.18
12.19
12.20
DISSOLUTION AND TERMINATION...................................31
MISCELLANEOUS PROVISIONS..........................................34
Books of Account and Records.................................................................35

Application of Georgia Law......................................................................35
No Action for Partition.............................................................................35
Execution of Additional Instruments......................................................35
Construction.............................................................................................35
Headings...................................................................................................35
Waivers......................................................................................................35
Rights and Remedies Cumulative...........................................................35
Severability...............................................................................................36
Heirs, Successors and Assigns.................................................................36
Creditors...................................................................................................36
Counterparts.............................................................................................36
Member Representations.........................................................................36
Federal Income Tax Elections..................................................................37
Certification of Non-Foreign Status........................................................37
Notices.......................................................................................................37
Amendments.............................................................................................38
Invalidity...................................................................................................38
Captions....................................................................................................38
Banking.....................................................................................................38
iv
12.21
12.22
12.23
12.24
12.25
Arbitration................................................................................................38
Determination of Matters Not Provided For In This Agreement..........39
Further Assurances..................................................................................39
Time ........................................................................................................39
Legal Counsel...........................................................................................39
OPERATING AGREEMENT OF
THIS OPERATING AGREEMENT ("Agreement") is entered into and effective

as of the 5th day of June, 2001, by and among the Company and its Members (as
hereinafter defined).
NOW, THEREFORE, in consideration of the provisions of this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which the
parties hereto hereby acknowledge, the parties agree as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Operating Agreement shall have the following
meanings (unless otherwise expressly provided herein):
"Agreement" - shall mean this Operating Agreement, as it may be amended or
supplemented from time to time.
"Articles of Organization" - shall mean the Articles of Organization of MMS
INVESTMENTS, L.L.C., as filed with the office of the Secretary of State of the State
of Georgia, as the same may be amended from time to time.
"Affiliate" - shall mean: (i) in the case of an individual, any relative of such
Person; (ii) any officer, director, trustee, partner, manager, employee, or holder of ten
percent (10%) or more of any class of the voting securities of or equity interest in
such Person; (iii) any corporation, partnership, limited liability company, trust or
other entity controlling, controlled by or under common control with such Person; or
(iv) any officer, director, trustee, partner, manager, employee or holder of ten percent
(10%) or more of the outstanding voting securities of any corporation, partnership,
limited liability company, trust or other entity controlling, controlled by or under
common control with such Person.
Operating Agreement of
"Bridge Financing" - shall mean (i) loans, guaranties or surety arrangements

extended by the Company to or for the benefit of Portfolio Companies in order to
facilitate an investment contemplated by the Company in Portfolio Securities of a
Portfolio Company and (ii) investments in Portfolio Securities of Portfolio
Companies that the Company intends to have repaid or to sell within one (1) year.
"Capital Account" - shall mean a capital account maintained in accordance
with the rules contained in Treas. Reg. 1.704-1(b)(2), as maintained in accordance
with applicable rules under the Code, and as set forth in Treas. Reg. 1.704-1(b)(2)
(4), as amended from time to time. The foregoing provisions and other provisions of
this Agreement relating to the maintenance of Capital Accounts are intended to
comply with Treasury Regulation Section 1.704-1(b)(2)(iv), and shall be interpreted
and applied in a manner consistent with such regulations. In the event the
Managers determine that it is prudent to modify the manner in which the Capital
Accounts are computed (including the calculation and allocation of items of income,
gain, loss or deduction among the Members) in order to comply with such
regulations, the Managers may make such modification, provided that, it will not
have a material effect on the amounts distributable to any Member under any
provision of this Agreement. The Managers shall also make any appropriate
modifications in the event unanticipated events occur (for example, the contribution
of property to the Company by a Member, the incurrence of nonrecourse debt or the
reevaluation of the Companys assets upon the occurrence of any of the events
described in Treasury Regulation Section 1.704-1(b)(2)(iv)(f)) that might otherwise
cause this Agreement not to comply with Treasury Regulation Section 1.704-1(b)(2)
(iv). In conjunction with such modifications, the Managers shall also make
appropriate adjustments to the calculation of Net Profit and Net Loss to the extent
the bases of the assets of the Company, as maintained for Capital Account purposes,
differ from the bases of such assets, as determined under federal income tax
principles.
"Capital Contribution" - shall mean any contribution, as defined in O.C.G.A.
14-11-101(4), to the capital of the Company in cash, property or services by a
Member whenever made.
"Code" - shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Company" - shall mean MMS INVESTMENTS, L.L.C.
"Distributable Cash" - shall mean all cash or cash equivalents, revenues and
funds received by the Company from Company operations (exclusive of the net
proceeds of any capital contribution by a Member), less the sum of the following to
the extent paid or set aside by the Company: (i) all principal and interest payments
on indebtedness of the Company and all other sums paid to lenders, including
without limitation, any Member or Manager; (ii) all cash expenditures incurred
incident to the normal operation of the Company's business, including but not
limited to, salaries, insurance costs, legal, accounting, investment banking fees,
auditing and tax counseling fees and other costs incurred in the ordinary course of
business; (iii) such Reserves as the Managers deem reasonably necessary to the
proper operation of the Company's business; and (iv) payments made during the
year for capital improvements and replacements to the extent not paid out of
Reserves.
"Economic Interest" - shall mean a Member's or Economic Interest Owner's
share of one or more of the Company's Net Profits, Net Losses and distributions of
the Company's assets pursuant to this Agreement and the Georgia Act, but shall not
include any right to vote on, consent to or otherwise participate in any decision of
the Members or Managers.
"Economic Interest Owner" - shall mean the owner of an Economic Interest
who is not a Member.
"Entity" - shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust, cooperative or
association or any foreign trust or foreign business organization.
"Fair Market Value" - shall have the meaning given such term in Section 5.12.5
of this Agreement.
"Fair Market Value Per Unit" - shall have the meaning given such term in
Section 5.12.4 of this Agreement.
"Fiscal Year" - shall mean the Company's fiscal year, which shall be the
calendar year ending December 31st.
"Georgia Act" - shall mean the Georgia Limited Liability Company Act at
O.C.G.A. 14-11-100, et seq.
"Initial Capital Contribution" - shall mean the initial contribution to the
capital of the Company made by a Member pursuant to this Agreement.
"Initial Manager" - shall mean JOHN SMITH, who shall serve as the Manager
of the Company until succeeded in such capacities pursuant to this Agreement.
"Majority Interest" - shall mean Ownership Interests of Members which, taken
together, exceed fifty percent (50%) of the aggregate of all Ownership Interests.
"Manager" - shall mean one (1) or more managers designated (pursuant to this
Agreement) to exercise the management responsibilities for the Company as set
forth in this Agreement. The term "Managers," as used herein, shall mean and
refer to the Initial Managers, or any other person(s) that succeed such Persons in
their capacities as Manager.
"Member" - shall mean each of the parties who executes a counterpart of this
Agreement as a Member and each of the parties who may hereafter become
Members in accordance with the terms of this Agreement. To the extent a Manager
has purchased a Membership Interest in the Company, such Person will have all the
rights of a Member with respect to such Membership Interest, and the term
"Member", as used herein, shall include a Manager to the extent such Person has
purchased such Membership Interest in the Company. If a Person is a Member
immediately prior to the purchase or other acquisition by such Person of an
Economic Interest, such Person shall have all the rights of a Member with respect to
such purchased or otherwise acquired Membership Interest or Economic Interest, as
the case may be.
"Membership Interest" - shall mean a Member's entire interest in the

Company including such Member's Economic Interest and the right to participate in
the management of the business and affairs of the Company, including the right to
vote on, consent to, or otherwise participate in any decision or action of, or by, the
Members granted pursuant to this Agreement or the Georgia Act.
"Membership Units" - shall mean and refer to the designated units of
Membership Interests in the Company beneficially owned by any Member, which
units represent its Membership Interests in the Company.
"Net Losses" - shall mean the Company's taxable loss computed pursuant to
Section 8.3 of this Agreement.
"Net Profits" - shall mean the Company's taxable income computed pursuant to
Section 8.3 of this Agreement.
"Organizer" - shall mean Holland & Knight LLP.
"Ownership Interest" - shall mean the proportion that a Member's beneficial
ownership of Membership Interests of the Company bears to the aggregate
outstanding Membership Interests owned by all Members. The initial Ownership
Interests of the Members are as follows:
Name
Jane Doe
Membership Interests
10,000
Ownership Interest (%)

33.3333%
John Smith
10,000
33.3333%
John Doe
10,000
33.3333%
"Person" - shall mean any individual or Entity, and the heirs, executors,
administrators, legal representatives, successors, and assigns of such "Person"
where the context so permits.
"Portfolio Company" - shall mean
, LLC, a Georgia limited
liability company, and any other issuer of Securities acquired by the Company,
including any Person formed by the Company to invest in Securities.
"Portfolio Company Investment" - shall mean the acquisition of Portfolio
Securities of a particular Portfolio Company by the Company in any transaction or
series of transactions pursuant to a single agreement.
"Portfolio Security" - shall mean a Security of a Portfolio Company acquired by
the Company, including without limitation, Securities acquired in connection with a
Bridge Financing.
"Reserves" - shall mean, with respect to any fiscal period, funds set aside or
amounts allocated during such period to reserves which shall be maintained in
amounts deemed sufficient by the Managers for working capital and to pay
contingencies and anticipated obligations, taxes, insurance, debt service or other
costs or expenses incident to the ownership or operation of the Company's business.
"Security" - shall mean (i) equity and equity-related securities, including
without limitation, common and preferred stock, partnership interests, profits
interests, convertible debt and debt that participates in profits, (ii) other securities,
including without limitation, all types of debt or note obligations, such as senior or
subordinated debt, senior or subordinated notes and bank debt or debt of other
financial institutions, and (iii) investment rights, including without limitation,
warrants, rights and options to acquire any of the securities described in (i) or (ii)
hereof.
"Transferring Member" - shall mean a Member or Economic Interest Owner
who sells, assigns, pledges, hypothecates or otherwise transfers (for consideration or
gratuitously) all or any portion of its Membership Interest or Economic Interest.
"Treasury Regulations" or "Regulations" - shall mean the Federal Income

Tax Regulations promulgated under the Code, as such regulations may be amended
from time to time (including corresponding provisions of succeeding regulations).
ARTICLE II
FORMATION OF COMPANY
2.1 Formation.
On
the 5th day of June, 2001, the Organizer formed the
Company as a Georgia Limited Liability Company by executing and delivering

articles of organization to the office of the Secretary of State of the State of Georgia
in accordance with the provisions of the Georgia Act. The Members hereby consent
to, approve and adopt as the action of the Company, any and all actions taken by
said Organizer to organize the Company, and the Company and its Members shall
defend, indemnify and hold harmless the Organizer from and against any and all
claims, demands, actions, causes of action, lawsuits, losses, costs, deficiencies,
liabilities, damages or expenses (including, without limitation, reasonable attorneys
fees and costs of defense or litigation) arising directly or indirectly out of Organizers
actions on behalf of the Company to organize the Company, to the fullest extent
permitted by applicable law (and the provisions of O.C.G.A. 14-11-306).
2.2Name. The name of the Company is "MMS INVESTMENTS, L.L.C."
2.3Principal Place of Business.
The principal place of business of the
Company within the State of Georgia is: 1201 W. Peachtree Street, N.E., Suite 2000,
Atlanta, Georgia 30309-3400. The Company may locate its places of business and
registered office at any other place or places as the Managers may from time to time
deem advisable.
2.4Registered Office and Registered Agent.
The Company's initial
registered office shall be at the office of its registered agent at: 1201 W. Peachtree
Street, N.E., Suite 2000, Atlanta, Georgia 30309-3400, and the name of its initial
registered agent at such address is: Holland & Knight LLP, Attn: Barack Obama.
The registered office and registered agent may be changed from time to time by
filing the address of the new registered office and/or the name of the new registered
agent with the Secretary of State of the State of Georgia pursuant to the Georgia
Act and the applicable rules promulgated thereunder.
2.5Term. The term of the Company shall commence on the date the Articles of
Organization were filed with the office of the Secretary of State of the State of
Georgia and shall continue thereafter until December 31, 2099, unless earlier
dissolved in accordance with the provisions of this Agreement or the Georgia Act.
2.6Permitted Businesses. The businesses of the Company shall be:
2.6.1 To seek out opportunities to invest in Portfolio Securities of a Portfolio
Company and to acquire, hold, manage and dispose of such Portfolio
Securities; and the Company may provide or arrange Bridge Financing
for Portfolio Companies and may also cause Portfolio Companies to
borrow or to guarantee borrowings in connection with the acquisition
of Portfolio Securities; and the Company shall have the power and
authority to do all such acts and things necessary, advisable or
expedient to further and accomplish such objectives or to accomplish
any lawful business whatsoever, including, without limitation,
acquiring, owning, holding, managing, trading, exchanging, swapping,
selling or divesting of stocks, bonds, indentures, convertible securities,
options, warrants, equity or debt instruments, and other securities or
investment instruments (and exercising all rights to vote or other
rights or privileges associated therewith), whether restricted or
publicly or privately traded, or any other business that shall at any
time appear to the Managers (or Members if submitted to a vote of the
Members) to be conducive to, or expedient for, the protection or benefit
of the Company and its assets;
2.6.2 To exercise all other powers necessary to, or reasonably connected with,
the Company's business that may be legally exercisable by limited
liability companies under the Georgia Act; and
2.6.3 To engage in all activities necessary, customary, convenient, or incident
to any of the foregoing.
2.7Members. The names and addresses of the Members are as follows:
Names
Addresses
Jane Doe
John Smith
John Doe
ARTICLE III
RIGHTS AND DUTIES OF MANAGERS

3.1 Management. The business and affairs of the Company shall be managed
by its Managers. Except for situations in which the approval of the Members is
expressly required by this Agreement or by nonwaivable provisions of applicable
law, the Managers shall have full, exclusive and complete authority, right, power
and discretion to operate, manage and control the business, affairs and properties of
the Company, to make all decisions regarding those matters and to perform any and
all other acts or activities customary or incident to the management of the
Company's business or deemed proper, convenient or advisable by the Managers to
carry on the business of the Company; provided, however, that in the event that the
Managers shall become deadlocked on any issue, such issue shall be submitted for a
vote of the Members and the affirmative vote of Members holding a Majority
Interest shall be, and constitute, the act of the Members, unless the vote of a
greater or lesser proportion or number is otherwise required by the Georgia Act, by
the Articles of Organization, or by this Agreement. If, however, the deadlock of the
Managers cannot be broken and resolved by the affirmative vote of Members holding
a Majority Interest, then any Member shall be entitled to make and deliver a
written buy-out offer (such Member being referred to herein as the Offeror
Member) to one or more other Members (such that thereafter, the deadlock may be
broken) to purchase all (but not less than all) of the Membership Units of such other
Member or Members for a specified price per Membership Unit. Any Member
receiving such a buy-out offer from the Offeror Member shall have a period of ten
(10) days to elect either to sell such Members Membership Units to the Offeror
Member or to purchase from the Offeror Member all (but not less than all) of the
Offeror Members Membership Units in the Company upon the same price and
terms offered by the Offeror Member. If any such Member fails to respond to the
buy-out offer of the Offeror Member within the prescribed period that the Member
elects to purchase all of the Offeror Members Membership Units, then such
Member shall be deemed to have accepted the Offeror Members offer to purchase all
of such Members Membership Units upon the terms set forth in the buy-out offer,
and the transaction shall be closed within ten (10) days thereafter unless the buyout offer sets forth a later closing date. After a buy-out offer is made by any
Member to another Member, the terms of the buy-out offer shall supersede and
apply to any intervening withdrawal, expulsion or other removal of a Member,
notwithstanding any other terms of this Agreement to the contrary. During any
period in which more than one (1) Manager shall have been appointed pursuant to
this Agreement, any one (1) Manager may take any action permitted to be taken by
the Managers, unless the approval of more than one (1) of the Managers is expressly
required pursuant to this Agreement, the Georgia Act, or by resolution of the
Managers from time to time.
3.2Number, Tenure and Qualifications. Initially JOHN SMITH (referred to
herein as the Initial Manager) shall serve as the Manager(s), as provided in
Article I of this Agreement. The Managers (when and as appointed) may delegate
some of their responsibilities to officers of the Company as shall be appointed from
time to time by the Managers, with such restrictions on authority and upon such
terms as shall be set forth in written resolutions approved by the Managers.
Hereafter, the number of Managers of the Company shall be fixed from time to time
by the affirmative vote of Members holding at least a Majority Interest (including
the written consent of the Initial Manager), but in no instance shall there be less
than one (1), nor more than seven (7), Manager(s). During the term of the Company,
and so long as each is able and willing to serve as Manager, JOHN SMITH shall be
and remain a Manager unless such person no longer beneficially owns any
10
Membership Interest or is removed pursuant to Section 3.12 of this Agreement. At

any time during the term of the Company that there shall be more than one (1)
Manager of the Company, each Manager shall cast one (1) vote on any issue brought
before the Manager(s) for a vote. Subject to the foregoing permanent appointments
of the Initial Manager(s), each Manager shall hold office until the next annual
meeting of the Members or until his successor shall have been elected and qualified,
and such Manager(s) shall be elected by the affirmative vote of Members holding at
least a Majority Interest. Manager(s) need not be resident(s) of the State of Georgia
or Members of the Company.
3.3Meetings of the Managers. During any period in which more than one (1)
Manager shall have been appointed, the Managers shall meet at reasonable
intervals and shall meet upon the call of any Manager, upon not less than twentyfour (24) hours' notice given in accordance with Section 12.16. Managers may
attend and participate in meetings either in person or by means of conference
telephones or similar communication equipment by means of which all persons
participating in such meeting can hear each other. Participation in a meeting by
means of such communication equipment shall constitute presence in person at any
meeting. Attendance in person at any meeting shall constitute a waiver of notice
thereof and of consideration of a particular matter, unless the Member, at the
beginning of the meeting or when the matter is presented, as the case may be,
objects to the holding of the meeting or the consideration of the matter. A majority
in number of the Managers shall constitute a quorum for the transaction of
business.
3.4Action without a Meeting. Any action required to be taken at a meeting of
the Managers may be taken without a meeting if the requisite number of Managers
shall consent in writing to such action. Any such action must be evidenced by one
(1) or more written consents describing the action taken, signed by such number of
Managers as are entitled to take such action, and delivered to the Company for
inclusion in its records. If action is taken under the foregoing sentence by less than
all of the Managers, all Managers who did not participate in taking the action shall
be given written notice of the action not more than ten (10) days after the taking of
the action without a meeting, but failure to give such notice shall not invalidate the
action so taken.
11
3.5Certain Express Powers of Manager. Without limiting the generality of

Section 3.1, the Managers shall have the full and exclusive power and authority, on
behalf of the Company and without a vote or other action of the Members, by the
affirmative Majority vote or consent of the Managers:
3.5.1 To review investment opportunities for the Company, analyze and
negotiate the terms of proposed investments, make investments in
Securities consistent with the purposes of the Company and organize
and capitalize any Person to invest in Securities on behalf of the
Company (through alternative investment vehicles as the Managers
may deem appropriate or expedient);
3.5.2 To cause the Company to provide Bridge Financing to Portfolio
Companies; to cause the Company to sell all any part of any Portfolio
Security, whether for cash, other securities or on such reasonable
terms as the Managers shall determine to be appropriate;
3.5.3 To manage the Portfolio Securities and other Company investments,
including, but not limited to, administering investments made by the
Company and the ultimate disposition of those investments, and
provide, or arrange for the provision of, managerial and other
assistance to the Portfolio Companies in which the Company holds
Portfolio Securities;
3.5.4 To oversee the operations of, and render financial advisory and
consulting services to, Portfolio Companies;
3.5.5 To cause the Company to incur all expenditures permitted by this
agreement, and pay all expenses, debts and obligations of the Company
as provided herein;
3.5.6 To employ and dismiss from employment any and all employees,
consultants, attorneys, accountants, independent contractors,
managing agents, other agents or other professionals (or their
Affiliates) to perform services for the Company, and to compensate
them from Company funds and consent to, or waive, any conflict of
interest which may arise in respect of such employment or
engagement;
12
3.5.7 To invest, pending investment in Portfolio Securities, or cash

distributions to the Members, or make temporary investments of
Company capital in cash equivalents;
3.5.8 To make any reasonable election under federal, state and local tax
laws, and act as the tax matters partner of the Company, as such
term is defined in Section 6231(a)(7) of the Code, and exercise any
authority permitted the tax matters partner under the Code;
3.5.9 To open, maintain and close accounts with brokers, which power
includes the authority to issue all instructions and authorizations to
brokers, managers of Securities and others regarding Securities and to
pay, or authorize the payment and reimbursement of, commissions that
may be in excess of the lowest rates available that are paid to brokers
who execute transactions for the account of Company so long as the
Managers determines in good faith that the amount of commissions is
reasonable in relation to the value of the research and brokerage
services provided by broker;
3.5.10 To obtain, at the expense of the Company, an insurance policy or
policies necessary to provide coverage against claims, losses or
damages incurred by the Company or by the Managers, any
management company, any Affiliates of the Managers or such
management company, and the employees, officers, directors, partners,
managers, and agents of the foregoing in connection with the
performance of duties provided in this Agreement or in connection with
matters related to the Company, a Portfolio Company or a Proposed
Investment;
3.5.11 To amend or restructure Portfolio Securities;
3.5.12 To engage a management company to perform services for the
Company as may be deemed advisable, proper or expedient by the
Managers;
3.5.13 To acquire real and/or personal property, including, without limitation,
acquiring, owning, holding, managing, trading, exchanging, swapping,
selling or divesting of stocks, bonds, notes, indentures, convertible
13
securities, options, warrants, equity or debt instruments (with or

without collateral security), and other securities or investment
instruments, whether restricted or publicly or privately traded, from
any Person as the Managers may determine. The fact that a Manager
or a Member is directly or indirectly affiliated or connected with any
such Person shall not prohibit the Managers from dealing with that
Person.
3.5.14 To open, maintain and close bank accounts and draw checks or other
orders for the payment of money, to borrow money for the Company
from banks, other lending institutions, the Managers, Members, or
affiliates of the Managers or Members on such terms as the Managers
deem appropriate, and in connection therewith, to pledge, hypothecate,
encumber and grant security interests in the assets of the Company to
secure repayment of the borrowed sums. No debt shall be contracted or
liability incurred by or on behalf of the Company except by the
Managers, or to the extent permitted under the Georgia Act, by agents
or employees of the Company expressly authorized by the Managers to
contract such debt or incur such liability on behalf of the Company;
3.5.15 To purchase liability and other insurance to protect the Company's
property and business;
3.5.16 To hold, manage, lease and own, and construct or demolish
improvements upon, any Company real and/or personal properties in
the name of the Company;
3.5.17 To invest, pending investment in Portfolio Securities, or cash
distributions to the Members, or Company funds temporarily (by way of
example but not limitation) in cash equivalents, time deposits, shortterm government obligations, commercial paper, money market
accounts, mutual funds, stocks, bonds or other investments;
3.5.18 To sell or otherwise dispose of all or substantially all of the assets of
the Company (by merger or other means) as part of a plan or a single
transaction, as long as such disposition is not in violation of, or the
cause of a default under, any other agreement to which the Company
14
may be bound; provided such action shall be approved by the

affirmative vote of the Members holding a Majority Interest. The
affirmative vote of the Members shall not be required with respect to
any sale or disposition of the Company's assets in the ordinary course
of the Company's business;
3.5.19 To enter into, execute, file, record, publish, amend, supplement,
acknowledge and deliver any and all contracts, agreements or other
instruments as the Managers shall determine to be appropriate in
furtherance of the purposes of the Company, and execute on behalf of
the Company all instruments and documents, including, without
limitation, checks; drafts; notes and other negotiable instruments;
stock powers, stock trading orders, investment letter agreements,
purchaser questionnaires, subscription agreements (or other securities
purchase or sales documents), mortgages or deeds of trust; security
agreements; financing statements; documents providing for the
acquisition, mortgage or disposition of the Company's property;
assignments; bills of sale; leases; partnership agreements, operating
agreements of other limited liability companies; and any other
contracts, instruments or documents necessary, in the opinion of the
Managers, to the business of the Company;
3.5.20 To engage, employ and discharge employees, agents, independent
contractors, accountants, legal counsel, managing agents or other
professionals to perform services for the Company, and to compensate
them from Company funds;
3.5.21 To enter into any and all other agreements on behalf of the Company,
with any other Person for any purpose, in such forms and upon such
terms as the Managers may approve.
3.5.22 To authorize, create, offer for sale, and issue series or classes of
Membership Interests (including, but not limited to non-voting
Membership Interests) of the Company, to Members of the Company
without Member action, without regard to whether such Membership
Interests are distributed pro rata and for such consideration as the
15
Managers shall deem appropriate, but issuance to and admission of a

new Member shall be approved by the Members in accordance with the
terms of this Agreement.
3.5.23 To do and perform all other acts as may be necessary or appropriate to
the conduct of the Company's business or otherwise necessary and
proper in the exercise of the authority of the Managers under this
Agreement.
3.6No Agency. Unless authorized to do so by this Agreement (including, but
not limited to, delegated duties and powers of the officers of the Company as may be
set forth in a written resolution of the Managers of the Company), no attorney-infact, employee or other agent of the Company shall have any power or authority to
bind the Company in any way, to pledge its credit or to render it liable pecuniarily
for any purpose. No Member shall have any power or authority to bind the
Company unless the Member has been authorized by the Managers to act as an
agent of the Company in accordance with the previous sentence.
3.7Liability for Certain Acts. Each Manager shall act in a manner he or she
believes in good faith to be in the best interests of the Company and with such care
as an ordinarily prudent person in a like position would use under similar
circumstances. A Manager shall under no circumstances be liable to the Company,
its Members, or other Managers for any action taken in managing the business or
affairs of the Company if he or she performs the duty of his or her office in
compliance with the standard contained in this Section. No Manager has
guaranteed, nor shall any Manager have any obligation with respect to, the return
of a Member's Capital Contributions or profits from the operations of the Company.
No Manager shall be liable to the Company or to any Member for any loss or damage
sustained by the Company or any Member except loss or damage resulting from
intentional misconduct, or a knowing violation of law, or a transaction for which
such Manager received a personal benefit in violation or breach of the provisions of
this Agreement. Each Manager shall be entitled to rely on information, opinions,
reports, or statements, including, but not limited to, financial statements or other
financial data prepared or presented in accordance with the provisions of O.C.G.A.
14-11-305.
16
3.8Managers Have No Exclusive Duty to Company. No Manager shall be

required to manage the Company as his or her sole and exclusive function, and any
Manager may have other business interests and may engage in other activities in
addition to those relating to the Company. Neither the Company nor any Member
shall have any right, by virtue of this Agreement to share or participate in such
other investments or activities of the Manager or to share in the income or proceeds
derived therefrom. No Manager shall incur any liability to the Company, or to any
of the Members, as a result of engaging in any other business or venture.
3.9Bank Accounts. The Managers may from time to time open bank accounts
in the name of the Company, and the Managers shall be the sole signatories
thereon, unless the Members determine otherwise.
3.10
Indemnity of the Managers, Employees and Other Agents. To the
fullest extent permitted under O.C.G.A. 14-11-306, the Company shall indemnify
the Organizer (including, but not limited to, the law firm of Holland & Knight LLP),
the Managers and other officers of the Company, and make advances for expenses to
them with respect to such matters, to the maximum extent permitted under
applicable law. The Company shall be authorized and empowered to indemnify its
employees and other agents who are not Managers to the fullest extent permitted by
law, provided that such indemnification in any given instance is approved by the
Managers.
3.11
Resignation. Any Manager of the Company may resign at any time by
giving written notice of such resignation to any other Manager (if more than one) or
to the Members, and the resignation shall take effect immediately upon receipt of
notice thereof, or at such later time as may be set forth in the notice. The
resignation of a Manager shall not affect the Manager's rights as a Member and
shall not constitute a withdrawal as a Member unless such Manager also resigns
from all positions of employment with the Company.
3.12
Removal. At a meeting called expressly for that purpose, any Manager
(other than Initial Managers) may be removed at any time, with or without cause,
by the affirmative vote of Members holding a Majority Interest. Initial Managers
may be removed as a Manager only if such Manager has violated the standard of
care set forth in Section 3.7 of this Agreement established by "clear and convincing
17
evidence," and all of the other Members vote affirmatively to remove such Manager
from serving as a Manager, and the Company immediately satisfies or refinances
any indebtedness for which personal assets or personal guaranties secure such
indebtedness and any outstanding loans to the Company by such Person are
immediately paid in full. The removal of a Manager who is also a Member shall not
affect the Manager's rights as a Member and shall not constitute a withdrawal or
expulsion of such Manager as a Member unless (if an individual) all positions of
employment with the Company are also terminated.
3.13
Vacancies.
Any vacancy occurring for any reason in the number of
Managers of the Company may be filled by the affirmative vote of a majority of the
remaining Managers then in office; provided that if there are no remaining
Managers, the vacancy(ies) shall be filled by the affirmative vote of Members
holding a Majority Interest. Any Manager's position to be filled by reason of an
increase in the number of Managers shall be filled by the affirmative vote of the
Members owning a Majority Interest, or by an election at an annual meeting, or at a
special meeting of Members called for that purpose, or by the Members' written
consent. A Manager elected to fill a vacancy shall be elected for the unexpired term
of his or her predecessor in office and shall hold office until the expiration of such
term and until his or her successor shall be elected and shall qualify or until his or
her earlier death, resignation or removal. A Manager chosen to fill a position
resulting from an affirmative vote of the Members to increase the number of
Managers shall hold office until the next annual meeting and until his or her
successor shall be elected and shall qualify, or until his or her earlier death,
resignation or removal.
3.14
Salaries. The salaries and other compensation of the Managers shall be
fixed from time to time by the majority vote or consent of the Managers, and no
Manager shall be prevented from receiving such salary by reason of the fact that he
or she is also a Member of the Company. If the Managers shall be unable to agree
to the salaries and other compensation of the Managers, the Managers shall
continue to be compensated at the same rate in effect prior to the disagreement
until the matter is submitted to a vote of the Members, as provided in Section 3.1 of
this Agreement, and the approval of such salaries and other compensation by the
affirmative vote of Members holding a Majority Interest shall be, and constitute, the
approval of the Managers.
18
3.15
Conflict of Interest.
The conflict-of-interest provisions found in
O.C.G.A. 14-11-307 shall not apply to the actions of the Managers, taken in
accordance with this Article III.
3.16
Committees. Unless the Articles of Organization provide otherwise, the
Managers may create one (1) or more committees and appoint Managers or
Members to serve on them. Each committee may have one (1) or more members,
who serve at the pleasure of the Managers. To the extent specified by the Managers
or in the Articles of Organization, each committee may exercise the authority
granted to it by the Managers, except that a committee may not approve, or propose
to Members, action that this Agreement requires to be approved by Members, or fill
Manager vacancies or vacancies on any committees. The Sections of this Article III
that govern meetings, action without meetings, notice and waiver of notice, and
quorum and voting requirements of the Managers, apply to committees and their
members. The Managers shall have the power at any given time to remove any
member of any committee, with or without cause, and to fill vacancies in and to
dissolve any such committee.
3.17
Compensation Committee. The Managers may, from time to time by
majority vote or consent of the Managers, elect one (1) or more Managers, Members
or employees as a Compensation Committee to serve until its authority is revoked or
its membership is changed by the request of any Manager. The members of the
Compensation Committee shall serve at the pleasure of the Managers until such
time as their successors are appointed to the Compensation Committee by the
Managers. Any action of the Compensation Committee may be taken at a meeting
by vote of a majority of the members of such Committee present (a quorum being
present) or without a meeting by written consent of all of the members of the
Committee. The members of the Compensation Committee shall be empowered to
participate in a meeting of such Committee by means of conference telephone or
similar communications equipment through which all persons participating at the
meeting can hear each other. The Compensation Committee shall keep minutes of
its meetings which minutes shall be reviewed by the Managers and inserted with
the Company's records. The Compensation Committee, if empowered by the
majority vote or consent of the Managers, shall have the power and authority to
formulate, review and recommend to the full Managers compensation proposals
19
with respect to the following matters, provided the Compensation Committee may
consult the Managers, or any of them, with regard to compensation issues:
3.17.1 All forms of compensation for Managers and employees of the
Company, including the form and amount of current salary, deferred
salary, cash and non-cash benefits, and salary plans for other
employees of the Company; and
3.17.2 Company perquisites, including special benefits to be considered within
general Company policies, establishment of categories of management
personnel to whom benefits will be provided or who will be permitted
to use benefits, and determination of special benefits on a case-by-case
basis.
3.18
Audit Committee. The Managers may, from time to time by majority
vote or consent of the Managers, elect one (1) or more Managers, Members,
employees or accountants as an Audit Committee to serve until its authority is
revoked or its membership is changed by the request of any Manager. Any action of
the Audit Committee may be taken at a meeting by vote of a majority of the
members of such Committee present (a quorum being present) or without a meeting
by written consent of all of the members of the Committee. Further, the members of
the Audit Committee shall be empowered to participate in a meeting of such
Committee by means of a conference telephone or similar communications
equipment through which all persons participating at the meeting can hear each
other. The Audit Committee shall keep minutes of its meetings, which minutes
shall be reviewed by the Managers and inserted with the Company's records. The
Managers may designate persons other than Managers to serve as non-voting
members of this Committee. The Audit Committee, if empowered by the majority
vote or consent of the Managers, shall:
3.18.1 Recommend to the full Managers the selection of the Company's
independent accountants;
3.18.2 Review the Company's financial statements and the report thereon
issued by the Company's independent accountants;
20
3.18.3 Review financial reporting procedures for the Company;

3.18.4 Evaluate internal controls of the Company;
3.18.5 Assess the performance of the Company's independent auditors; and
3.18.6 Perform such other tasks as may be designated by the majority vote or
consent of the Managers or as required by applicable state and federal
laws and regulations.
ARTICLE IV
RIGHTS AND OBLIGATIONS OF MEMBERS
4.1 Limitation on Liability. Each Member's liability shall be limited as set
forth in this Agreement, the Georgia Act and other applicable law.
4.2No Liability for Company Obligations. No Member will have personal
liability for any debts or losses of the Company beyond his or her respective Capital
Contribution, except as provided by law.
4.3List of Members. Upon written request of any Member, the Managers shall
provide a list showing the names, addresses, Membership Interest and Economic
Interest of all Members and Managers, and the other information required by
O.C.G.A. 14-11-313, maintained pursuant to Section 9.2 of this Agreement.
4.4Approval of Certain Transactions. The Members shall have the right, by
the affirmative vote of Members holding at least a Majority Interest (including the
approval of Initial Managers) to approve: (i) any proposal of the Managers to invest
in Portfolio Securities of a Portfolio Company or seek a Proposed Investment if the
aggregate investment by the Company in the Portfolio Company and its Affiliates
would exceed 20% of the total assets of the Company; (ii) to approve the sale,
exchange or other disposition of all, or substantially all, of the Company's assets
(other than in the ordinary course of the Company's business) which is to occur as
part of a single transaction or plan; or (ii) the merger of the Company with and into
another Person, after which the Company would not remain as the surviving entity.
21
4.5Dissenters' Rights.
No Member shall have dissenters' rights under
O.C.G.A. 14-11-1002.
4.6Priority and Return of Capital. Except as may be expressly provided in
Articles VII and XI of this Agreement, no Member or Economic Interest Owner
shall have priority over any other Member or Economic Interest Owner, either as to
the return of Capital Contributions or as to Net Profits, Net Losses or distributions.
This Section shall not apply to loans (as distinguished from Capital Contributions)
that a Member or Manager has made to the Company.
ARTICLE V
MEETINGS OF MEMBERS
5.1 Annual Meeting. The annual meeting of the Members shall be held on the
31st in March or at such other time as shall be determined by resolution of the
Managers, commencing with the year 2002, for the purpose of transacting such
business as may come before the meeting.
5.2Special Meetings. Special meetings of the Members, for any purpose or
purposes, unless otherwise proscribed by statute, may be called by any Manager or
by any Member or Members holding at least ten percent (10%) of the Ownership
Interests.
5.3Place of Meetings. The Managers may designate any place, either within
or outside the State of Georgia, as the place of meeting for any meeting of the
Members. If no designation is made, or if a special meeting be otherwise called, the
place of meeting shall be the principal executive office of the Company in the State
of Georgia.
5.4Notice of Meetings. Written notice stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called shall be
delivered not less than ten (10) nor more than fifty (50) days before the date of the
meeting, either personally or by mail, by or at the direction of the Managers or
Person calling the meeting, to each Member entitled to vote at such meeting. If
22
mailed, such notice shall be deemed to be delivered three (3) calendar days after
being deposited in the United States mail, addressed to the Member at the address
appearing on the books of the Company, with postage thereon prepaid.
5.5Meeting of all Members. If all the Members shall meet at any time and
place, either within or outside the State of Georgia, and consent to the holding of a
meeting at such time and place, such meeting shall be valid without call or notice,
and at such meeting any lawful action may be taken.
5.6Record Date. For the purpose of determining Members entitled to notice of
or to vote at any meeting of Members or any adjournment thereof, or Members
entitled to receive payment of any distribution, or in order to make a determination
of Members for any other purpose, the date on which notice of the meeting is mailed
or the date on which the resolution declaring such distribution is adopted, as the
case may be, shall be the record date for such determination of Members. When a
determination of Members entitled to vote at any meeting of Members has been
made as provided in this Section, such determination shall apply to any
adjournment thereof.
5.7Quorum. Members holding at least a majority of all Ownership Interests,
represented in person or by proxy, shall constitute a quorum at any meeting of
Members. In the absence of a quorum at any such meeting, a majority of the
Ownership Interests so represented may adjourn the meeting from time to time for
a period not to exceed sixty (60) days without further notice. However, if at the
adjournment a new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each Member of record entitled to vote at the
meeting. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. The Members present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal during such meeting of that number of Ownership Interests whose
absence would cause less than a quorum to be present.
5.8Manner of Acting. If a quorum is present, the affirmative vote of Members
holding a Majority Interest shall be, and constitute, the act of the Members, unless
the vote of a greater or lesser proportion or number is otherwise required by the
23
Georgia Act, by the Articles of Organization, or by this Agreement. Unless

otherwise expressly provided herein, or required under applicable law, Members
who have an interest (economic or otherwise) in the outcome of any particular
matter upon which the Members vote (or consent) may vote or consent upon any
such matter and their Ownership Interest, vote or consent, as the case may be, shall
be counted in the determination of whether the requisite matter was approved by
the Members.
5.9Proxies. At all meetings of Members, a Member may vote in person or by
proxy executed in writing by the Member or by a duly authorized attorney-in-fact.
Such proxy shall be filed with the Managers of the Company before or at the time of
the meeting. No proxy shall be valid after eleven (11) months from the date of its
execution, unless otherwise provided in the proxy.
5.10
Action by Members Without a Meeting. Action required or permitted
to be taken at a meeting of Members may be taken without a meeting if the action is

evidenced by one (1) or more written consents describing the action taken, signed by
the necessary Members entitled to vote and required to approve such action and
delivered to the Managers of the Company for inclusion in the minutes or for filing
with the Company records. Action taken under this Section is effective when the
Members required to approve such action have signed the consent, unless the
consent specifies a different effective date. The record date for determining
Members entitled to take action without a meeting shall be the date the first
Member signs a written consent.
5.11
Waiver of Notice.
When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to such notice,
whether before, at, or after the time stated therein, shall be equivalent to the giving
of such notice.
5.12
Withdrawal and Expulsion of Members. There shall be no implied
right of continuing employment with the Company (if an individual), and each
employee shall be terminable at the discretion of the Managers, except as such right
of termination may be restricted by the terms of employment set forth in a written
agreement executed by the Managers. Members may withdraw, or be expelled, from
the Company as follows:
24
5.12.1 A Member may withdraw from the Company at any time effective upon
not less than thirty (30) days' written notice to all of the other
Members.
5.12.2 A Member (other than the Initial Managers) may be expelled
involuntarily from the Company if he or she is an individual and the
employment of such Member with the Company is terminated for any
reason whatsoever, whether with or without cause. Initial Managers
may be expelled involuntarily from the Company only if such Person is
removed as a Manager in accordance with Section 3.12 of this
Agreement and the Company immediately satisfies or refinances any
indebtedness for which personal assets or personal guarantees secure
such indebtedness and any outstanding loans to the Company by such
Person are immediately paid.
5.12.3 Upon any such withdrawal or expulsion, such Member's Membership
Interest shall be redeemed by the Company and such Member shall be
paid an amount equal to the Fair Market Value (as defined below) of
such Membership Interest, as determined in subsection 5.12.4 below,
payable in five equal annual installments, without interest, the first
installment commencing within one hundred eighty (180) days after
the end of the Fiscal Year during which the effective date of such
withdrawal or expulsion occurred.
After the effective date of
withdrawal or expulsion, such Member shall not share in any
allocations of Net Income or Net Loss and shall have no further rights
under this Agreement or, with regard to the Company, under the
Georgia Act.
5.12.4 At the annual meeting of the Members, the Members may, by
unanimous vote of the Members, agree upon the "Fair Market Value
Per Unit" that shall be paid to any Member who either withdraws or is
expelled as a Member of the Company prior to the next annual
meeting; provided, however, that if the Members fail to unanimously
agree upon such Fair Market Value Per Unit for the applicable period,
it shall be equal to a fraction, the numerator of which shall equal the
25
fair market value of the business of the Company (as determined by an

independent appraiser or certified public accountant selected by the
Company in accordance with generally accepted accounting principles,
and the determination of said independent appraiser or accountants
shall be conclusive and final), and the denominator of which shall
equal the aggregate number of Membership Units outstanding.
5.12.5 "Fair Market Value" shall mean the product of the Fair Market Value
Per Unit multiplied by the number of Membership Units beneficially
owned by any Member who either withdraws or is expelled as a
Member of the Company.
ARTICLE VI
CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS
6.1 Members' Capital Contributions.
Each Member shall contribute such
amount as is set forth in Exhibit A hereto as its share of the Initial Capital
Contribution.
6.2Additional Contributions. Except as set forth in Section 6.1, no Member
shall be required to make any further Capital Contributions. To the extent
approved by majority vote or consent of the Managers, from time to time, the
Members may be permitted to make additional Capital Contributions if and to the
extent they so desire, and if the Managers determine that such additional Capital
Contributions are necessary or appropriate in connection with the conduct of the
Company's business (including without limitation, expansion or diversification). In
such event, the Members shall have the opportunity (but not the obligation) to
participate in such additional Capital Contributions on a pro rata basis in
accordance with their Ownership Interests. Capital Contributions are due and
payable on the date set forth in a written notice requesting an additional Capital
Contribution given by the Managers to each Member, which date shall not be less
than thirty (30) days from the date of the notice.
6.3Failure to Make Capital Contributions.
Should any Member make a
portion, but not all, of its initial Capital Contribution or any subsequent additional
26
Capital Contribution, or fail to pay such contributions when due, the other Members
may contribute an aggregate amount equal to the Capital Contribution declined by
the non-participating Member, thereby increasing in such proportion the
participating Members' Ownership Interests. In such event, the Ownership Interest
of a non-participating Member shall be diluted accordingly, and such Member shall
be limited in right to provide future additional capital in proportion to its adjusted
Ownership Interest as so diluted.
6.4Capital Contributions in Cash. Except as approved by the Managers of
the Company, or as set forth in this Agreement, funding of both initial and
additional Capital Contributions to the Company shall be in cash, and not services
or real or personal property.
6.5Withdrawal or Reduction of Members' Contributions to Capital.
Except in the event of withdrawal or expulsion of a Member, a Member shall not
receive out of the Company's property any part of such Member's Capital
Contribution until all liabilities of the Company, except liabilities to Members on
account of their Capital Contributions, have been paid or there remains, in the
discretion of the Managers, property of the Company sufficient to pay such
liabilities. A Member, irrespective of the nature of such Member's Capital
Contribution, has only the right to demand and receive cash in return for such
Capital Contribution.
ARTICLE VII
DISTRIBUTIONS TO MEMBERS
7.1 Distributions of Distributable Cash. All distributions of Distributable
Cash, when such Distributable Cash exists (including, but not limited to, the net
proceeds of any liquidated Portfolio Security), shall be made to the Members at such
times and in such amounts as the Managers shall reasonably determine; provided,
however, that the Company shall distribute to each Member, from Distributable
Cash, an amount sufficient to satisfy all federal, state and local income tax liability
attributable to each Member, at the greatest taxable rate applicable to any Member,
on or before a date ninety (90) days after the end of a Fiscal Year. Distributions of
Distributable Cash, to the extent thereof, shall be made in the following descending
27
order of priority, and each of the items of higher priority shall be fully satisfied and
funded prior to the satisfaction of funding of any succeeding priority:
7.1.1 First, to any Manager or Member(s), or pro rata to them in proportion
to the total obligations, in repayment of principal, interest and costs
outstanding on any loans or indebtedness from third parties (including,
but not limited to, banks or commercial lenders) paid or satisfied by
them or from assets pledged by them, including, without limitation,
personal guarantees to such banks on behalf of the Company
indebtedness. Any such indebtedness outstanding hereunder shall be
treated as a loan to the Company from the date paid or satisfied by
such Persons and shall be payable to such Person on the terms
established in the applicable instrument(s) paid by them.
7.1.2 Second, to any Manager or Member, or pro rata to the Managers or
Members, in repayment of principal, interest and costs outstanding on
any other loans by such Persons to the Company.
7.1.3 Third, the balance, if any, to the Members in accordance with their
respective Ownership Interests.
7.2 Limitation Upon Distributions.
No distribution shall be made to
Members if prohibited by O.C.G.A. 14-11-407.

7.3 Interest On and Return of Capital Contributions. No member shall be
entitled to interest on its Capital Contribution or to return of its Capital
Contribution, except as otherwise specifically provided for herein.
7.4 Loans to Company. Nothing in this Agreement shall prevent any Member
or Manager from making secured or unsecured loans to the Company by agreement
with the Company upon terms different than those set forth below, however, the
terms described below are deemed to be commercially reasonable. If, in their sole
discretion (without obligation), any Member or Manager elects to loan money to the
Company, such loan shall be evidenced by a promissory note (and such other
documentation as shall be required by such lender) issued by the Company in favor
of such lender. The terms of each loan shall be deemed commercially reasonable if
28
the following terms are included, in general (these terms are illustrative and not
exhaustive of all commercially reasonable terms):
7.4.1 The term of the loan in not less than three (3) years, with interest only
payable on a monthly basis for the first year, and principal and
interest, payable monthly in equal installments during the last two
years;
7.4.2 The interest rate on the loan shall be not more than three (3)
percentage points above the prime rate published in The Wall Street
Journal (the "Prime Rate"). If during the term of the loan the Prime
Rate published shall change, the rate of interest on the unpaid balance
of principal of the note prior to maturity shall be increased or
decreased, as the case may be, from time to time as of the anniversary
of the execution of said note so that the interest on the unpaid principal
of the note prior to maturity shall be equal to the Prime Rate of
interest then published plus three percent (3%); provided, however,
that in no event shall such interest rate exceed the maximum rate
permitted under applicable law;
7.4.3 The Company may prepay any such loan at any time without penalty;
and
7.4.4 The Member or Manager making such loan shall have a security
interest in any real and personal property of the Company, and such
security interest may be filed of record in all appropriate public records
and shall remain in effect until said loan is repaid in full.
ARTICLE VIII
ALLOCATIONS
8.1 Capital Account. A capital account shall be established and maintained in
all events for each Member in the manner provided under, and in accordance with,
the Code, and applicable Treasury Regulations, including without limitation,
Treasury Regulation 1.704-1(b)(2)(iv), as amended, and in accordance with the
29
other provisions of Treasury Regulation 1.704-1(b) that must be complied with in

order for the capital accounts to be determined and maintained in accordance with
the provisions of such Treasury Regulations. Accordingly, a Member's capital
account shall include generally, without limitation, the initial Capital Contribution
of a Member, (i) increased by the Member's allocable share of income and gain (or
items thereof) of the Company, including income and gain exempt from taxation,
and income and gain described in Treasury Regulation 1.704-1(b)(2)(iv)(g), but
excluding income and gain described in Treasury Regulation 1.704-1(b)(4)(i), and
(ii) decreased by distributions of money or property (without taking into account the
effect of Code Section 7701(g)), allocations of expenditures of the Company described
in Code Section 705(a)(2)(B), and allocations of losses and deductions (or items
thereof) of the Company, including losses and deductions described in Treasury
Regulation 1.704-1(b)(2)(iv)(g) but excluding loss deductions described in Treasury
Regulation 1.704-1(b)(4)(i) or 1.704-1(b)(4)(iii), and (iii) as otherwise adjusted in
accordance with the additional rules set forth in Treasury Regulation 1.704-1(b)(2)
(iv).
8.2Distributive Share. For purposes of Code Sections 702 and 704, or the
corresponding provisions of any future federal internal revenue law, or any similar
tax law of any state or jurisdiction, the determination of each Member's distributive
share of all items of income, gain, loss, deduction, credit or allowance of the
Company for any period or year shall be made in accordance with, and in proportion
to, such Member's Ownership Interest as it may then exist, unless otherwise
required by Treasury Regulation 1.704-1(b).
8.3Allocation of Profits and Losses.
8.3.1 Except as provided in Sections 8.1, all items of income, gain, loss,
deduction or credit of the Company shall be allocated or charged to the
Members for federal, state, and local (if any) income tax purposes
according to the Members' respective Ownership Interests in the
Company. The Company's "Net Profits" or "Net Losses" for each
Fiscal Year shall be determined as soon as practicable after the close of
that Fiscal Year (but in no event later than March 31 of the year next
succeeding) in accordance with generally accepted accounting
principles consistently applied and employed in the preparation of the
30
federal, state, and local (if any) income tax returns filed by the
Company for that year.
8.3.2 In any Fiscal Year of the Company in which one Member has received
aggregate distributions of Distributable Cash pursuant to Section 8.1
in excess of the aggregate distributions it would have received if
distributions had been in proportion to the Members' respective
Ownership Interests during that year, the Member receiving such
excess shall have its respective allocation of the Company's gross
income increased, and the Members not receiving such excess shall
have their respective allocations of the Company's gross income
reduced, by the dollar amount of such excess.
ARTICLE IX
BOOKS AND RECORDS
9.1 Accounting Period. The Company's accounting period shall be the calendar
year.
9.2Records and Reports. At the expense of the Company, the Managers shall
maintain records and accounts of all operations and expenditures of the Company.
The Company shall keep at its principal place of business the following records:
9.2.1 A current list of the full name and last known address of each Member,
Economic Interest Owner and Manager;
9.2.2 Copies of records to enable a Member to determine the relative voting
rights, if any;
9.2.3 A copy of the Articles of Organization of the Company and all
amendments thereto;
9.2.4 Copies of the Company's federal, state, and local income tax returns
and reports, if any, for the three most recent years;
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9.2.5 Copies of the Company's written Operating Agreement, together with

any amendments thereto;
9.2.6 Copies of any financial statements of the Company for the three most
recent years.
9.3Tax Returns. The Managers shall cause the preparation and timely filing of
all tax returns required to be filed by the Company pursuant to the Code and all
other tax returns deemed necessary and required in each jurisdiction in which the
Company does business.
Copies of such returns, or pertinent information
therefrom, shall be furnished upon request to the Members within a reasonable
time after the end of the Company's Fiscal Year.
ARTICLE X
TRANSFERABILITY
10.1
General.
Except as otherwise specifically provided herein, neither a
Member nor an Economic Interest Owner shall have the right, without the Majority
Vote of the Ownership Interests of the Members, and an opinion of legal counsel
acceptable to the Company (including no violations of applicable federal and state
securities laws or violations of the subscription documents) to: (i) sell, assign,
pledge, hypothecate, transfer, exchange or otherwise transfer for consideration,
(collectively, "sell" or "sale"); or (ii) gift, bequeath or otherwise transfer for no
consideration (whether or not by operation of law, except in the case of bankruptcy),
all or any part if its Membership Interest or Economic Interest; provided, however,
that transfers made without valuable consideration made to trusts or otherwise
pursuant to family planning or estate planning made after receipt by the Company
of an opinion of counsel in a form acceptable to the Company (and subject to an
irrevocable proxy to vote the Membership Interests in favor of the transferor
Member) shall be deemed permissible transfers (subject to the other restrictions
and provisions hereof). Membership Interests shall be subject to the following
additional transfer restrictions:
10.1.1 If a Member (the Selling Member) desires to sell, transfer, or assign
all or any portion of his Membership Interest (collectively "Transfer"),
32
the Selling Member shall first obtain a bona fide offer for the purchase of
the Membership Interest, or portion thereof, that the Selling Member
desires to sell, transfer, or assign. A bona fide offer for purposes of
this Agreement means a good faith offer, in writing, containing no
condition concerning the procurement of financing, entered into with a
third party unaffiliated with the Selling Member (such unaffiliated third
party hereinafter referred to as the Proposed Purchaser), with the
intent to purchase and sell, and without fraud or collusion. Prior to any
such Transfer, the Selling Member shall give written notice (the
Transfer Notice) of the proposed Transfer to both the Company and
the other Members (such other Members hereinafter referred to as the
Non-Selling Members). A copy of the bona fide offer, and all other
documents in connection with the proposed Transfer, shall be attached to
the Transfer Notice. The Transfer Notice shall set forth all the material
terms of the proposed Transfer, including, without limitation, (i) the
name and address of the Proposed Purchaser, (ii) the number of
Membership Units proposed to be transferred (the Transfer Units),
(iii) the total consideration to be paid and the consideration to be paid
per Transfer Share, and (iv) the method of payment. The Transfer
Notice shall also provide that the Company and the Non-Selling
Members shall have the right to purchase all, but not less than all, of the
Transfer Units in accordance with the terms and conditions of this
Agreement.
10.1.2 Upon receipt of the Transfer Notice, the Company shall have thirty (30)
days to elect to purchase all, but not less than all, of the Transfer Units
for the total consideration to be paid as set forth in the Transfer Notice.
If the Company elects to purchase the Transfer Units, it must do so by
giving notice of its election to purchase the Transfer Units to the
Selling Member and the Non-Selling Members within the foregoing
thirty (30) day period. The closing for the purchase of the Transfer
Units shall be held at the Companys principal place of business not
later than the first business day that is sixty (60) days following the
Companys receipt of the Transfer Notice. At the Companys option, the
price paid at closing for the Transfer Units may be in cash, or in the
33
same manner and on the same terms as specified in the Transfer

Notice.
10.1.3 If the Company elects not to purchase the Transfer Units within the
required thirty (30) day period referenced in subsection 10.1.2 above,
the Selling Member shall then notify all of the Non-Selling Members in
writing (the Member Notice) within forty-five (45) days following
the Companys receipt of the Transfer Notice that the Non-Selling
Members shall have the right to purchase all, but not less than all, of
the Transfer Units for the total consideration to be paid as set forth in
the Transfer Notice. Upon receipt of the Member Notice, each NonSelling Member shall be entitled to acquire that portion of the Transfer
Units as such Non-Selling Member's Units shall bear to the
Membership Units owned by all of the Non-Selling Members. Each
Non-Selling Member shall have fifteen (15) days after receipt of the
Member Notice in which to accept the offer to purchase his
proportionate part of the Transfer Units by delivering a written notice
to that effect to the Selling Member. If any Non-Selling Member does
not accept such offer, the remaining Non-Selling Members who accept
such offer (the Electing Non-Selling Members) shall be notified in
writing by the Selling Member, and they shall have an additional
fifteen (15) days from the date of the receipt of such notice to purchase,
in such proportions as they may agree among themselves, the unsold
portion of the Transfer Units offered by the Selling Member. If the
Electing Non-Selling Members are unable to agree among themselves
as to the proportion of such unsold Transfer Units that each of them
will acquire, each shall be entitled to purchase that portion of the
Transfer Units as such Electing Non-Selling Members Units bear to
the Membership Units of all the Electing Non-Selling Members. The
closing for the purchase shall be held within sixty (60) days following
the last receipt by a Non-Selling Member of the Member Notice. Each
Non-Selling Member who elects to purchase Membership Interest
pursuant to this subsection 10.1.3 shall have the option to pay for his
Membership Interest in cash at closing, or in the same manner and on
the same terms as specified in the Transfer Notice.
34
10.1.4 At the closing provided for in subsections 10.1.2 and 10.1.3 above, the
Company or the Electing Non-Selling Members, as the case may be,
shall purchase the Transfer Units. Upon receipt of payment of the
purchase price as provided under this Article X, the Selling Member
shall execute and deliver any and all instruments and documents
necessary to effectuate the transfer of all of the Transfer Units to the
Company or the Electing Non-Selling Members, as the case may be,
free and clear of any and all taxes, debts, claims, judgments, liens or
encumbrances.
10.1.5 If the Selling Member has received a bona fide offer for the proposed
Transfer, Transfer Units not purchased by the Company or the Electing
Non-Selling Members under the provisions of this Article X may be
transferred to the Proposed Purchaser at any time within four (4)
months from the date of the expiration of applicable notice and election
periods but only in accordance with the price and terms specified
therein, and subject to the condition that the Proposed Purchaser
agrees to be bound by the terms and conditions of this Agreement and
that the Membership Units shall continue to be subject to the terms of
this Agreement.
10.2
Transferee Not Member in Absence of Consent.
10.2.1 Notwithstanding anything contained herein to the contrary, if the

remaining Members do not approve by Majority Vote or written consent
the proposed sale or gift (not otherwise a permissible gift) of the
Transferring Member's Membership Interest or Economic Interest to a
transferee or donee which is not a Member immediately prior to the
sale or gift, then the proposed transferee or donee shall have no right
to participate in the management of the business and affairs of the
Company or to become a Member. The transferee or donee shall be
merely an Economic Interest Owner. No transfer of a Member's
interest in the Company (including any transfer of the Economic
Interest or any other transfer that has not been approved by Majority
Vote or consent of the Members) shall be effective unless and until
written notice (including the name and address of the proposed,
35
transferee or donee and the date of such transfer) has been provided to
the Company and the nontransferring Member(s).
10.2.2 Upon, and contemporaneously with, any sale or gift of a Transferring
Member's Economic Interest in the Company that does not at the same
time transfer the balance of the rights associated with the Economic
Interest transferred by the Transferring Member (including, without
limitation, the rights of the Transferring Member to participate in the
management of the business and affairs of the Company), the Company
shall purchase from the Transferring Member, and the Transferring
Member shall sell to the Company for a purchase price of $100.00, all
remaining rights and interests retained by the Transferring Member
that immediately prior to such sale or gift were associated with the
transferred Economic Interest.
10.3
Additional Members. From the date of the formation of the Company,
any Person or Entity acceptable to the Members by Majority Vote thereof may
become a Member of this Company either by the issuance by the Company of
Membership Interests for such consideration as the Members by Majority Vote shall
determine, or by Majority Vote as a transferee of a Member's Membership Interest
or any portion thereof, subject to the terms and conditions of this Agreement. No
new Members shall be entitled to any retroactive allocation of losses, income or
expense deductions incurred by the Company. The Managers may, at their option,
at the time a Member is admitted, close the Company books (as though the
Company's tax year had ended) or make pro rata allocations of loss, income and
expense deductions to a new Member for that portion of the Company's tax year in
which a Member was admitted in accordance with the provisions of 706(d) of the
Code and the Treasury Regulations promulgated thereunder.
ARTICLE XI
DISSOLUTION AND TERMINATION

11.1
Dissolution.
The Company shall be dissolved upon the occurrence of
any of the following events:
36
11.1.1 When the period fixed for the duration of the Company shall expire
pursuant to Section 2.5 hereof, or upon the distribution to the
Members of the Portfolio Securities in accordance with their respective
Ownership Interests (subject to any restrictions or prohibitions
contained in the subscription documents), or liquidation of
substantially all of the Portfolio Securities unless the Members agree
to continue the Company by the consent of all remaining Members
within thirty (30) days after the liquidation event;
11.1.2 By the written agreement of the Members holding a Majority Interest;
or
11.1.3 Upon the withdrawal, removal, bankruptcy, insolvency, death or
incompetency of a Member, the sale or redemption of a Member's entire
Membership Interest, or the occurrence of any other event that
terminates the continued membership of a Member in the Company
pursuant to O.C.G.A. 14-11-601 or any other provision of the Georgia
Act, (a "Withdrawal Event"), unless the business of the Company is
continued by the consent of all the remaining Members within ninety
(90) days after the Withdrawal Event and there are at least two (2)
remaining Members. Each of the Members hereby agrees that within
sixty (60) days after the occurrence of a Withdrawal Event other than
the withdrawal, removal, sale or redemption of the entire interest by,
bankruptcy, insolvency, death or incompetency of both of the Initial
Managers (and provided that there are then at least two (2) remaining
Members of the Company), they will promptly consent, in writing, to
continue the business of the Company. Each of the Members further
agrees promptly to consent, in writing, to continue the business of the
Company upon a sale or gift either of a Member's entire Economic
Interest to which all of the remaining Members do not consent within
forty-five (45) days after the occurrence of such a sale or gift or upon a
sale or gift of a Transferring Member's entire Membership Interest.
Such consents shall be mailed or hand delivered to the principal place
of business of the Company set forth in Section 2.3 hereof (or to such
other address designated by the Managers) no later than fifty (50) days
after each Withdrawal Event or transfer by Member of its entire
37
Economic Interest or Membership Interest). The sole remedy for

breach of a Member's obligation to consent to continue the business of
the Company under this Section shall be money damages (and not
specific performance).
11.1.4 Notwithstanding anything to the contrary in this Agreement, if a
Member or Members owning Ownership Interests that in the
aggregate constitute not less than two-thirds (2/3) of the Ownership
Interests vote to dissolve the Company at a meeting of the Company
pursuant to Article VII, then all of the Members shall agree in writing
to dissolve the Company as soon as possible, but in any event not more
than ten (10) days thereafter. The sole remedy for breach of a
Member's obligation to consent to dissolve the business of the Company
under this Section shall be money damages (and not specific
performance).
11.1.5 If a Member who is an individual dies or a court of competent
jurisdiction adjudges him or her to be incompetent to manage his or
her person or his or her property, the Member's executor,
administrator, guardian, conservator, or other legal representative may
exercise all of the Member's rights for the purpose of settling his or her
estate or administering his or her property.
11.1.6 Except as expressly permitted in this Agreement, a Member shall not
voluntarily withdraw or take any other voluntary action which directly
causes a Withdrawal Event. Unless otherwise approved by Members
owning a Majority Interest, a Member who withdraws (a
"Withdrawing Member") or whose Membership Interest is otherwise
terminated by virtue of a Withdrawal Event, regardless of whether
such Withdrawal Event was the result of a voluntary act by such
Member, shall not be entitled to receive any distributions to which such
Member would not have been entitled had such Member remained a
Member.
Except as otherwise expressly provided herein, a
Withdrawing Member shall become an Economic Interest Owner.
Damages for breach of this Section 11.1.6 shall be monetary damages
only (and no specific performance), and such damages may be offset
38
against distributions by the Company to which the Withdrawing

Member would otherwise be entitled.
11.2
Effect of Dissolution. Upon dissolution, the Company shall cease to
carry on its business, except as permitted by O.C.G.A. 14-11-406 and publish the
notice permitted by O.C.G.A. 14-11-608.
11.3
Winding Up, Liquidation and Distribution of Assets.Upon
dissolution, an accounting shall be made by the Company's independent

accountants of the accounts of the Company and of the Company's assets, liabilities
and operations, from the date of the last previous accounting until the date of
dissolution. The Manager(s) shall immediately proceed to wind up the affairs of the
Company. If the Company is dissolved and its affairs are to be wound up, the
Manager(s) shall:
11.3.1 Sell or otherwise liquidate all of the Company's assets as promptly as
practicable (except to the extent the Manager(s) may determine to
distribute any assets to the Members in kind);
11.3.2 Allocate any profit or loss resulting from such sales to the Members'
and Economic Interest Owners' in accordance with Article VIII hereof;
11.3.3 Discharge all liabilities of the Company, including liabilities to
Members and Economic Interest Owners who are creditors, to the
extent otherwise permitted by law, other than liabilities to Members
and Economic Interest Owners for distributions, and establish such
Reserves as may be reasonably necessary to provide for contingent or
liabilities of the Company;
11.3.4 Distribute the remaining assets in the following order:
11.3.4.1 If any assets of the Company are to be distributed in kind, the
net fair market value of such assets as of the date of dissolution shall
be determined by independent appraisal or by agreement of the
Members. Such assets shall be deemed to have been sold as of the date
of dissolution for their fair market value, and the Capital Accounts of
39
the Members and Economic Interest Owners shall be adjusted

pursuant to the provisions of this Operating Agreement to reflect such
deemed sale.
11.3.4.2 The positive balance (if any) of each Member's and Economic
Interest Owner's Capital Account (as determined after taking into
account all Capital Account adjustments for the Company's taxable
year during which the liquidation occurs) shall be distributed to the
Members, either in cash or in kind, as determined by the Manager(s),
with any assets distributed in kind being valued for this purpose at
their fair market value. Any such distributions to the Members in
respect to their Capital Accounts shall be made in accordance with the
time requirements set forth in Section 1.704-1(b)(2)(ii)(b)(2) of the
Treasury Regulations.
11.3.5 Notwithstanding anything to the contrary in this Agreement, upon a
liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Treasury Regulations, if any Member has a deficit Capital Account
(after giving effect to all contributions, distributions, allocations and
other Capital Account adjustments for all taxable years, including the
year during which such liquidation occurs), such Member shall have no
obligation to make any Capital Contribution, and the negative balance
of such Member's Capital Account shall not be considered a debt owed
by such Member to the Company or to any other Person for any purpose
whatsoever.
11.3.6 Upon completion of the winding up, liquidation and distribution of the
assets, the Company shall be deemed terminated.
11.3.7 The Manager(s) shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the
Company and the final distribution of its assets.
11.4
Certificate of Termination. When all debts, liabilities and obligations
have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets have been distributed to the Members, a
40
Certificate of Termination may be executed and filed with the Secretary of State of
Georgia in accordance with O.C.G.A. 14-11-610.
11.5
Return of Contribution Nonrecourse to Other Members. Except as
provided by law or as expressly provided in this Agreement, upon dissolution, each

Member shall look solely to the assets of the Company for the return of its Capital
Contribution. If the Company property remaining after the payment or discharge of
the debts and liabilities of the Company is insufficient to return the cash
contribution of one or more Members, such Member or Members shall have no
recourse against any other Member.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1
Books of Account and Records.
Proper and complete records and
books of account shall be caused to be kept by the Managers in which shall be

entered fully and accurately all transactions and other matters relating to the
Company's business in such detail and completeness as is customary and usual for
businesses of the type engaged in by the Company. The books and records will be
maintained at the principal executive office of the Company and shall be open to the
reasonable inspection and examination of the Members, Economic Interest Owners
or their duly authorized representatives during reasonable business hours in
accordance with applicable law.
12.2
Application of Georgia Law. This Agreement, and the application or
interpretation hereof, shall be governed exclusively by its terms and by the laws of
the State of Georgia, and specifically the Georgia Act.
12.3
No Action for Partition. No Member or Economic Interest Owner shall
have any right to maintain any action for partition with respect to the property of
the Company.
12.4
Execution of Additional Instruments. Each Member hereby agrees to
execute such other and further statements of interest and holdings, designations,
powers of attorney and other instruments necessary to comply with any laws, rules
or regulations.
41
12.5
Construction. Whenever the singular number is used in this Agreement
and when required by the context, the same shall include the plural and vice versa,
and the masculine gender shall include the feminine and neuter genders and vice
versa.
12.6
Headings. The headings in this Agreement are inserted for convenience
only and are in no way intended to describe, interpret, define or limit the scope,
extent or intent of this Agreement or any provision hereof.
12.7
Waivers. The failure of any party to seek redress for violation of or to
insist upon the strict performance of any covenant or condition of this Agreement
shall not prevent a subsequent act, which would have originally constituted a
violation, from having the effect of an original violation.
12.8
Rights and Remedies Cumulative. The rights and remedies provided
by this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive the right not use any or all other remedies. Such
rights and remedies are given in addition to any other rights the parties may have
by law, statute ordinance otherwise.
12.9
Severability.
If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid, illegal or unenforceable to

any extent, the remainder of this Agreement and the application thereof shall not be
affected and shall be enforceable to the fullest extent permitted by law.
12.10 Heirs, Successors and Assigns. Each and all of the covenants, terms,
provisions and agreements herein contained shall be binding upon and inure to the
benefit of the parties hereto and, to the extent permitted by this Agreement, their
respective heirs, legal representatives, successors and assigns.
12.11 Creditors. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditors of the Company.
42
12.12 Counterparts. This Agreement may be executed in counterparts, each of

which shall be deemed an original but all of which shall constitute one and the same
instrument.
12.13 Member Representations.
Each Member hereby represents and
warrants to, and for the benefit of, the Company and the other Members as follows:
12.13.1
If Member is a corporation, it is duly organized, validly existing,

and in good standing under the laws of the state of its incorporation
and has the corporate power and authority to enter into and
perform its obligations under this Agreement. If Member is a
partnership, it is a partnership duly formed, validly existing, and in
good standing under the laws of the state of its formation, and it
has the power and authority to perform its obligations as set forth
in this Agreement. If Member is an individual, he or she has the
power and authority to enter into and perform its obligations under
this Agreement. The execution, delivery, and performance of this
Agreement by Member have been duly authorized by all necessary
action, and this Agreement is a valid and binding obligation of
Member, enforceable against Member in accordance with its terms,
except to the extent enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization, or other laws affecting the
enforcement of creditors' rights generally and by general principles
of equity.
12.13.2
Neither the execution, delivery, and performance of this Agreement,

nor the consummation of the transaction contemplated hereby by
Member, will, with or without the giving of notice or the passage of
time or both, conflict with, result in default or loss of rights under,
or result in the creation of any lien pursuant to (i) the Certificate of
Incorporation or Bylaws or partnership agreement of Member (as
the case may be), (ii) any statute, ordinance, rule, order, or
regulation by which Member is bound, or (iii) any note, mortgage,
contract, agreement, lease, or other instrument to which Member is
a party.
43
12.13.3
Each Member shall indemnify and hold harmless the Company and
the other Members against and in respect of any and all damages,
deficiencies, or liabilities resulting from said Member's
misrepresentation, breach of warranty, or nonfulfillment of any
agreement, covenant, or obligation.
12.14 Federal Income Tax Elections. All elections required or permitted to

be made by the Company under the Code shall be made by the Managers as
determined in their sole discretion. For all purposes permitted or required by the
Code, the Members constitute and appoint the Organizer as Tax Matters Partner, or
any other Manager if JOHN SMITH is no longer a Manager, but if there is no other
Manager, then such other Member as shall be designated by the Members by
Majority Vote shall serve as Tax Matters Partner.
12.15 Certification of Non-Foreign Status. In order to comply with 1445 of
the Code and the applicable Treasury Regulations thereunder, in the event of the
disposition by the Company of a United States Company, an affidavit stating, under
penalties of perjury, (i) the Member's address, (ii) United States taxpayer
identification number, and (iii) that the Member is not a foreign person as that term
is defined in the Code and Treasury Regulations. Failure by a Member to provide
such affidavit by the date of such disposition shall authorize the Managers to
withhold ten percent (10%) of each such Member's distributive share of the amount
realized by the Company on the disposition.
12.16 Notices. Any and all notices, offers, demands or elections required or
permitted to be made under this Agreement ("Notices") shall be in writing, signed
by the party giving such Notice, and shall be deemed given and effective (i) when
hand-delivered (either in person by the party giving such notice, or by its designated
agent, or by commercial courier) or (ii) on the third (3rd) business day (which term
means a day when the United States Postal Service, or its legal successor ("Postal
Service") is making regular deliveries of mail on all of its regularly appointed weekday rounds in Atlanta, Georgia) following the day (as evidenced by proof of mailing)
upon which such Notice is deposited, postage pre-paid, certified mail, return receipt
requested, with the Postal Service, and addressed to the other party at such party's
respective address as set forth below, or at such other address as the other party
may hereafter designate by Notice.
44
12.17 Amendments.
Any amendment to this Agreement shall be made in
writing and signed by Members holding at least two-thirds (2/3) of the aggregate
Company Ownership Interests held by all Members, and must include the consent
of the Initial Manager.
12.18 Invalidity. The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof, and the Agreement
shall be construed in all respects as if such invalid or unenforceable provision were
omitted. If any particular provision herein is construed to be in conflict with the
provisions of the Georgia Act. The Georgia Act shall control and such invalid or
unenforceable provisions shall not affect or invalidate the other provisions hereof,
and this Agreement shall be construed in all respects as if such conflicting
provisions were omitted.
12.19 Captions. Titles and captions are inserted for convenience only and in no
way are to be construed to affect the meaning or construction of this Agreement or
any of its provisions.
12.20 Banking. All funds of the Company shall be deposited in its name in an
account or accounts as shall be designated from time to time by the Managers. All
funds of the Company shall be used solely for the business of the Company. All
withdrawals from the Company bank accounts shall be made only upon check signed
by the Managers or by such other persons as the Managers may designate from time
to time.
12.21 Arbitration.
Any dispute, controversy or claim arising out of or in
connection with, or relating to, this Agreement or any breach or alleged breach
hereof shall, upon the request of any party involved, be submitted to, and settled by,
arbitration in the City of Atlanta, State of Georgia, pursuant to the commercial
arbitration rules then in effect of the American Arbitration Association (or at any
time or at any other place or under any other form of arbitration mutually
acceptable to the parties so involved). Any award rendered shall be final and
conclusive upon the parties, and a judgment thereon may be entered in the highest
court of the forum, state or federal, having jurisdiction. The expenses of the
arbitration shall be borne equally by the parties to the arbitration, provided that
45
each party shall pay for and bear the cost of its own experts, evidence and counsel's
fees, except that in the discretion of the arbitrator, any award may include the costs
of a party's counsel and experts if the arbitrator expressly determines that the party
against whom such award is entered has caused the dispute, controversy or claim to
be submitted to arbitration as a dilatory tactic.
12.22 Determination of Matters Not Provided For In This Agreement.
The Managers shall decide any questions arising with respect to the Company and
this Agreement that are not specifically or expressly provided for in this Agreement.
12.23 Further Assurances.
The Members each agree to cooperate, and to
execute and deliver in a timely fashion any and all additional documents necessary
to effectuate the purposes of the Company and this Agreement.
12.24 Time. TIME IS OF THE ESSENCE OF THIS AGREEMENT, AND TO
ANY PAYMENTS, ALLOCATIONS AND DISTRIBUTIONS SPECIFIED UNDER
THIS AGREEMENT.
12.25 Legal Counsel. Each Member executing this Operating Agreement, and
any subsequent Member, by subscription for and receipt of a Membership Interest,
confirms and acknowledges their understanding that: prior to the formation and
organization of the Company, HOLLAND & KNIGHT LLP (H&K), or one or more
of its attorneys, has represented Apollo Waste Industries, LLC (and its affiliates)
and Jill & John Doe (Conflict Parties), in various unrelated legal matters; H&K
was engaged by Mr. Monahan on behalf of the Company to prepare this Operating
Agreement and related documents necessary to organize the Company, and H&K
has not represented the Members in connection with the organization of the
Company; each Member has been advised to obtain independent legal counsel to
represent their respective interests in connection with this Operating Agreement
and their execution hereof; after the formation and organization of the Company has
been completed, H&K shall represent the Company and shall continue to represent
other Conflict Parties, and other named persons on an ongoing basis; because of
H&K's continuing representation of both the Company and the Conflict Parties, the
Company and each Member acknowledges that a potential conflict of interest exists,
and each of the Company and its Members, hereby waives any and all such conflicts
of interest, regardless of whether in connection with the formation of the Company
46
or in connection with any legal services or matters, whether related or unrelated, to

the Company hereafter; if a dispute arises between the Conflict Parties and the
Company or any Member, then H&K shall be authorized to resign from representing
the Company, and H&K may represent the Conflict Parties (or any of them) in such
dispute, and each of the Company and its Members waives any conflict of interest
(or the right to assert a conflict of interest), and further waives any right to move
any court to disqualify said law firm from its representation of the Conflict Parties
(or any of them).
[Remainder of Page Intentionally Left Blank]
47
IN WITNESS WHEREOF, the undersigned, being all of the Members of the

Company, have caused this Agreement to be executed under seal by their duly
authorized officers, the day and year first above written.
Signed, sealed and delivered

in the presence of:
Unofficial Witness
Jane Doe
[SEAL]
Notary Public
My commission expires:
[NOTARY SEAL]

in the presence of:
Unofficial Witness
John Smith
Notary Public
[NOTARY SEAL]
48
[SEAL]
[Signatures Continued on Next Page]
49

in the presence of:
Unofficial Witness
John Doe
Notary Public
[NOTARY SEAL]
50
[SEAL]

1201 W. Peachtree Street, N.E., Suite 2000
Atlanta, Georgia 30309-3400
RE:
Subscription Agreement for

Membership Units of MMS INVESTMENTS, L.L.C.
The undersigned, JOHN SMITH, a Georgia resident ("Subscriber"), effective as

of the 5th day of June, 2001, hereby subscribes for Ten Thousand (10,000)
membership units (the "Units") of MMS INVESTMENTS, L.L.C., a limited liability
company organized under the laws of the State of Georgia (the "Company"). The
Units are issued in consideration of $1.00 per Unit, or Ten Thousand Dollars
($10,000.00) in the aggregate.
The Subscriber acknowledges that: (i) the issuance of the Units will not be
registered under the Federal Securities Act of 1933, as amended (the "1933 Act") or
the securities act of any state that absent an exemption would require registration
or issuance of the Units in reliance upon exemptions from registration contained in
those respective acts; and (ii) the Company's reliance upon such exemptions is based
in part upon the Subscriber's representations, warranties and agreements
contained in this Subscription Agreement.
The Subscriber acknowledges that the Company is in the organizational stage
and has no operating history on which to base any estimates of its future prospects.
Prior to the execution of this Subscription Agreement, Subscriber has had the
opportunity to ask questions of, and receive answers or obtain additional
information from, a representative of the Company concerning the proposed
business of the Company and the terms and conditions of the offering of units of the
Company to which this Subscription Agreement relates, and to the extent
Subscriber believes necessary, in light of Subscriber's personal knowledge of the
Company's proposed business affairs, Subscriber has asked such questions and
received satisfactory answers.
The Subscriber represents, warrants and agrees as follows:
(1) The Subscriber has carefully reviewed this Subscription Agreement, the
Company's Articles of Organization and its Operating Agreement; the Subscriber
understands that Subscriber is a founding member of the Company, and the
Company has no operating history or financial statements on which to base any
estimates of its future prospects; to the extent Subscriber believes necessary,
Subscriber has discussed the representations, warranties and agreements which
Subscriber is making by signing this Subscription Agreement, and the applicable
limitations upon Subscriber's resale of the Units with Subscriber's counsel and
counsel for the Company; the Subscriber understands that the Company is a limited
liability company and that adverse consequences may result to Subscriber
personally under applicable income taxation laws if the Company is unable or
unwilling to distribute cash from its operations to satisfy the proportionate share of
the Company's income attributable to Subscriber's interest, among other events; the
Subscriber has discussed all of the foregoing, and received satisfactory advice from,
independent legal counsel of Subscriber's own choosing regarding such matters and
has chosen to accept the Units, knowingly and voluntarily.
(2) The Subscriber is an accredited investor purchasing the Units for
Subscriber's own account, with the intention of holding the Units for investment,
with no present intention of dividing or allowing others to participate in this
investment or of reselling or otherwise participating, directly or indirectly, in a
distribution of the Units; and Subscriber shall not make any sale, transfer or other
disposition of the Units (except in compliance with the terms of the Articles of
Organization, the Operating Agreement and Georgia law) without registration
under the 1933 Act and applicable state securities law, unless an exemption from
registration is available under those acts, respectively.
(3) The Subscriber is familiar with the business in which the Company will be
engaged, and based upon the Subscriber's knowledge and experience in financial
and business matters, Subscriber is familiar with the investments of the sort which
Subscriber is undertaking herein; Subscriber is fully aware of the problems and
risks involved in making an investment of this type; and Subscriber is capable of
evaluating the merits and risks of this investment.
(4) This investment is in accord with the nature and the size of the Subscriber's
present investment and net worth, and the Subscriber is financially able to bear the
economic risk of this investment, including the ability to afford holding the Units for
an indefinite period or to afford a complete loss of this investment.
(5) The residence of the Subscriber (or principal place of business, if not an
individual) is at the address shown under the signature on the bottom of this
Subscription Agreement.
(6) The Subscriber understands that: (i) sales of the Units are restricted
pursuant to the terms of the Operating Agreement and Georgia law, and the Units
may not be sold except in compliance therewith; (ii) the provisions of Rule 144 under
the 1933 Act are not available to permit resales of these Units, and due to the
nature of the business of the Company and the conditions of Rule 144, it is unlikely
that the conditions necessary to permit routine sales of the Units under Rule 144
will ever be satisfied, and, if Rule 144 should become available, routine sales made
in reliance upon its provisions could be made only in limited amounts and in
accordance with the terms and conditions of the Rule; and (iii) in connection with
sales of Units for which Rule 144 is not available, compliance with Regulation A or
some other registration exemption will be required.
(7) The Subscriber understands that the Company is under no obligation to
register the Units or to comply with the conditions of Rule 144 or take any other
action necessary in order to make any exemption for the sale of the Units without
registration available.
(8) The Subscriber further agrees that there will be placed on any certificate
representing the Units, or any substitution therefor, a legend stating in substance
as follows, and the Subscriber understands and agrees that the Company and the
Members of the Company may refuse to permit the transfer of the Units out of
Subscriber's name and that the Units must be held indefinitely in the absence of
compliance with the terms of such legend:
THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED OR SOLD IN RELIANCE ON PARAGRAPH (13) OF CODE
SECTION 10-5-9 OF "THE GEORGIA SECURITIES ACT OF 1973;" AND
MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION
WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER SUCH ACT, AND HAVE NOT BEEN

REGISTERED UNDER ANY OTHER STATE SECURITIES LAW OR THE
SECURITIES ACT OF 1933, AS AMENDED (THE "FEDERAL ACT").
THESE UNITS HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED FOR SALE, HYPOTHECATED, SOLD, OR
TRANSFERRED, NOR WILL ANY ASSIGNEE OR TRANSFEREE
THEREOF BE RECOGNIZED BY THE COMPANY AS HAVING AN
INTEREST IN SUCH UNITS, IN THE ABSENCE OF: (i) UNANIMOUS
CONSENT OF THE MEMBERS, (ii) AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT TO THE UNITS UNDER THE FEDERAL
ACT, AND ANY OTHER APPLICABLE STATE LAW, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED AND (iii) AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THE UNITS UNDER
THE GEORGIA ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT SUCH UNITS WILL BE OFFERED FOR SALE,
HYPOTHECATED, SOLD OR TRANSFERRED ONLY IN A TRANSACTION
WHICH IS EXEMPT UNDER THE GEORGIA ACT OR WHICH IS
OTHERWISE IN COMPLIANCE WITH THE GEORGIA ACT AND THE
TERMS OF THE OPERATING AGREEMENT.
[Signatures Contained on Next Page]
IN WITNESS WHEREOF, the Subscriber has executed this Subscription

Agreement effective as of the day and year first above written.
John Smith
Atlanta, Georgia
(Employer Identification No.)
ACCEPTED, as of the
INVESTMENTS, L.L.C.
day of
, 2001, on behalf of MMS
By:
John Smith, Manager

RE:

The undersigned, JANE DOE, a Georgia resident ("Subscriber"), effective as of

the 5th day of June, 2001, hereby subscribes for Ten Thousand (10,000) membership
units (the "Units") of MMS INVESTMENTS, L.L.C., a limited liability company
organized under the laws of the State of Georgia (the "Company"). The Units are
issued in consideration of $1.00 per Unit, or Ten Thousand Dollars ($10,000.00) in
the aggregate.


Jane Doe
Atlanta, Georgia
ACCEPTED, as of the
INVESTMENTS, L.L.C.
day of
By:
John Smith, Manager

RE:

The undersigned, JOHN DOE, a Georgia resident ("Subscriber"), effective as of

the 5th day of June, 2001, hereby subscribes for Ten Thousand (10,000) membership
units (the "Units") of MMS INVESTMENTS, L.L.C., a limited liability company
organized under the laws of the State of Georgia (the "Company"). The Units are
issued in consideration of $1.00 per Unit, or Ten Thousand Dollars ($10,000.00) in
the aggregate.


John Doe
Atlanta, Georgia
ACCEPTED, as of the
INVESTMENTS, L.L.C.
day of
By:
John Smith, Manager
EXHIBIT A
Name
Membership Units
Jane Doe
Jill Doe
John Doe
10,000
10,000
Purchase Price
$10,000.00
$10,000.00
10,000
$10,000.00
ATL1 #396521 v1

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OPERATING AGREEMENT

THE COMPANY CONTENDS THAT MEMBERSHIP INTERESTS IN

FOLLOWING NOTICE APPLICABLE TO ALL SUCH MEMBERSHIP

GEORGIA SECURITIES ACT OF 1973, AS AMENDED, IN RELIANCE UPON

IN ADDITION, THESE SECURITIES HAVE NOT

BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND

EXCHANGE COMMISSION, IN RELIANCE UPON AN EXEMPTION FROM

THESE SECURITIES HAVE

BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND MAY NOT

BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, OR

CONDITIONS OF THIS AGREEMENT AND IN A TRANSACTION WHICH IS

RIGHTS AND DUTIES OF MANAGERS.................................8

RIGHTS AND OBLIGATIONS OF MEMBERS....................17

Approval of Certain Transactions...........................................................18

Distributions of Distributable Cash........................................................23

CONTRIBUTIONS TO THE COMPANY AND CAPITAL

Members' Capital Contributions.............................................................22

BOOKS AND RECORDS...........................................................26

DISSOLUTION AND TERMINATION...................................31

Books of Account and Records.................................................................35

THIS OPERATING AGREEMENT ("Agreement") is entered into and effective

"Bridge Financing" - shall mean (i) loans, guaranties or surety arrangements

"Membership Interest" - shall mean a Member's entire interest in the

Ownership Interest (%)

, LLC, a Georgia limited

"Treasury Regulations" or "Regulations" - shall mean the Federal Income

the 5th day of June, 2001, the Organizer formed the

Company as a Georgia Limited Liability Company by executing and delivering

The principal place of business of the

The Company's initial

2.7Members. The names and addresses of the Members are as follows:

RIGHTS AND DUTIES OF MANAGERS

Membership Interest or is removed pursuant to Section 3.12 of this Agreement. At

3.5Certain Express Powers of Manager. Without limiting the generality of

3.5.7 To invest, pending investment in Portfolio Securities, or cash

securities, options, warrants, equity or debt instruments (with or

may be bound; provided such action shall be approved by the

Managers shall deem appropriate, but issuance to and admission of a

3.8Managers Have No Exclusive Duty to Company. No Manager shall be

Indemnity of the Managers, Employees and Other Agents. To the

Resignation. Any Manager of the Company may resign at any time by

Removal. At a meeting called expressly for that purpose, any Manager

Any vacancy occurring for any reason in the number of

Salaries. The salaries and other compensation of the Managers shall be

The conflict-of-interest provisions found in

Committees. Unless the Articles of Organization provide otherwise, the

Compensation Committee. The Managers may, from time to time by

Audit Committee. The Managers may, from time to time by majority

3.18.3 Review financial reporting procedures for the Company;

No Member shall have dissenters' rights under

Georgia Act, by the Articles of Organization, or by this Agreement. Unless

Action by Members Without a Meeting. Action required or permitted

to be taken at a meeting of Members may be taken without a meeting if the action is

When any notice is required to be given to any

Withdrawal and Expulsion of Members. There shall be no implied

fair market value of the business of the Company (as determined by an

Each Member shall contribute such

Should any Member make a

No distribution shall be made to

Members if prohibited by O.C.G.A. 14-11-407.

other provisions of Treasury Regulation 1.704-1(b) that must be complied with in

9.2.5 Copies of the Company's written Operating Agreement, together with

Except as otherwise specifically provided herein, neither a

same manner and on the same terms as specified in the Transfer