OPERATING AGREEMENT FOR ORYX VENTURES, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This OPERATING AGREEMENT (the "Agreement") of Oryx Ventures, LLC, a
Delaware limited liability company (the "Company"), is made effective as of May
18, 2000, by and between the parties listed on the signature pages hereof, with
reference to the following facts:
A. The Certificate of Formation for the Company under the laws of the State
of Delaware was filed with the Delaware Secretary of State on May 18, 2000.
B. The parties desire to adopt and approve an operating agreement for the
Company that supersedes any prior oral or written operating agreements.
NOW, THEREFORE, the parties (hereinafter sometimes collectively referred to
as the "Members," or individually as the "Member") by this Agreement set forth
the operating agreement for the Company under the laws of the State of Delaware
upon the terms and subject to the conditions of this Agreement.
1. Except as set forth herein or as may be subsequently amended by an
amendment to this Agreement, the Company shall be governed by the default
provisions of the Delaware Limited Liability Company Act, codified in the
Delaware Corporations Law, Sections 18-101 et seq., as the same may be amended
from time to time.
2. The Company shall have one Manager. The Company's initial Manager shall
be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; who shall serve until his successor is duly elected and
qualified.
3. If, at any time, there is more than one Manager, any action required or
permitted to be taken by the Managers may be taken by the Managers without a
meeting, if a majority of the Managers individually or collectively consent to
or ratify such action in writing, unless the action requires the unanimous vote
of the Managers, in which case all Managers must consent in writing. Such action
by written consent or ratification shall have the same force and effect as a
majority vote of such Managers. Nothing in this Section 3 governing meetings of
the Managers or in this Agreement is intended to require that meetings of
Managers be held, it being the intent of the Members that meetings of Managers
are not required.
4. The Members have contributed or shall contribute to the capital of the
Company the respective contributions set forth on Exhibit A hereto. The
respective percentage interests of the Members are also set forth on Exhibit A.
5. The name of the Company shall be "Oryx Ventures, LLC." All actions
heretofore taken by the organizer of the Company on behalf of or in connection
with the Company are hereby approved and ratified in all respects by all of the
Company's Members and the Manager, and the Company is hereby authorized to
reimburse such organizer for all reasonable out of pocket expenses incurred in
connection therewith.
6. All distributions of net cash available from operations shall be made in
accordance with Members' percentage interests. All income and loss from
operations shall be allocated in accordance with Members' percentage interests;
provided, however, that any loss that would cause or increase a deficit balance
in a Member's capital account shall be reallocated to the Members to whom such
loss can be allocated without causing or increasing a deficit balance, and any
such reallocation of loss shall be taken into consideration in determining
subsequent allocations of income and loss so that the total amount of income and
loss from operations allocated to each Member is, to the extent possible, equal
to the amount that would have been allocated in the absence of such reallocation
of loss.
7. All income and loss from the sale of all or substantially all of the
assets of the Company or the liquidation of the Company shall be allocated so
that the Members' capital accounts, computed as required by the Internal Revenue
Code of 1986, as amended, and the Treasury Regulations thereunder, shall be in
proportion to the Members' percentage interests. All distributions in
liquidation of the Company shall be in accordance with the Members' positive
capital account balances, computer after taking into account all other capital
account adjustments for the year during which such liquidation occurs. Upon the
liquidation of any Member's interest in the Company, that Member shall
unconditionally contribute to the Company cash in an amount equal to the deficit
balance in its capital account.
8. In the event that the income allocated to a Member for federal income
tax purposes for any fiscal year exceeds the net cash available from operations
distributed to such Member for such fiscal year (such excess being referred to
as "Excess Net Profit"), each Member shall receive from net cash available from
operations when such cash becomes available, an amount equal to the aggregate
net amount of federal income tax and applicable state franchise and/or income
tax such Member (or, if such Member is an S corporation, partnership, limited
liability company or other "pass-through" entity for tax purposes, its
shareholders, partners or members, as the case may be) would owe on such Excess
Net Profit if such Member were subject to the maximum regular individual federal
income tax rate and the maximum individual California income tax rate then in
existence on such income (taking into account the deduction of applicable income
taxes for federal income tax purposes). Such distribution shall be made whether
or not such Member is an individual and whether or not such income would be
subject to a higher or lower tax rate. Any distributions made pursuant to this
Section 8 shall be taken into account in computing subsequent distributions so
that the net cash available from operations distributed to each member shall be
equal to the amount that would have been distributed if this Section 8 applies.
9. The Manager of the Company is hereby authorized to open one or more bank
accounts on behalf of the Company and to execute and deliver such standard from
account opening forms and resolutions reasonably necessary or desirable to open
such bank accounts.
10. The Company shall be taxed as partnership for both federal and state
income tax purposes.
IN WITNESS WHEREOF, the undersigned, constituting the initial Member and
Manager of Oryx Ventures, LLC, a Delaware limited liability company, have
executed this Agreement on the dates set forth below, to be effective as of the
date first written above.
MEMBERS:
ORYX TECHNOLOGY CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO
Date:
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MANAGER:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Date: 10/02/00
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EXHIBIT A
CAPITAL CONTRIBUTIONS OF MEMBERS AND
ADDRESSES OF MEMBERS AND MANAGERS OF
ORYX VENTURES, LLC
Member's Initial Percentage
Name(s) & Address(es) Capital Contributed Value Interest(s)
--------------------- ------------------- ----- ------------------
Oryx Technology Corp. 100%
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: CFO
Total:
Manager's Name(s) & Address(es)
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Oryx Technology Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇