OPERATIVE PROVISIONS OF OPERATING AGREEMENT OF VENTURE LENDING & LEASING VI, LLC
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EXHIBIT 6
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OF
VENTURE LENDING & LEASING VI, LLC
A Delaware Limited Liability Company
January 21, 2010
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This OPERATING AGREEMENT (“Operating Agreement” or “Agreement”) of VENTURE LENDING & LEASING
VI, LLC (the “Company”), dated as of January 1, 2010, is adopted by the Managing Member (as defined
in Schedule 1) and executed and agreed to by it and the other Members (as defined in
Schedule 1).
INTRODUCTION
The Members have caused the Company to be formed as a limited liability company under the laws
of the State of Delaware for the principal purpose of acquiring and owning all of the outstanding
shares of Venture Lending & Leasing VI, Inc., a Maryland corporation (the “Fund”), and for the
secondary purpose of acquiring and owning direct interests in companies, including in the form of
warrants that may be distributed, from time to time, by the Fund to the Company, and including
Special Situations Investments (as defined in Schedule 1) comprised of senior debt,
convertible debt, or some other combination of debt instruments and equity instruments. The Fund
is a non-diversified, closed-end management investment company which has elected business
development company status under the 1940 Act (as defined in Schedule 1) and which intends
to qualify for taxation as a regulated investment company under the Code (as defined in
Schedule 1).
The parties hereto desire to enter into this Operating Agreement in order to set forth their
understanding with respect to the management and operation of the Company and related matters.
THEREFORE, the parties hereto hereby agree as follows:
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Section 6.5 Activities Regarding the Fund. The parties agree and acknowledge that the
Company will be the sole shareholder of the Fund. Notwithstanding anything else herein to the
contrary, if any decision is required to be made, or if any action may be taken, by the Company in
its capacity as a shareholder of Fund, then the Managing Member shall solicit and/or take
instructions from each of the Members and shall then take such actions or omit from taking such
actions as would be required if the Members of the Company were the shareholders of the Fund, with
ownership interests therein identical to their respective ownership of Shares in the Company. For
example, for any Fund action requiring approval by holders of two-thirds or more of the shares of
the Fund, the Company will not take such action unless and until approved by Members holding
two-thirds of the Shares of the Company.
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Section 8.8 Voting of Interests. Each outstanding Share shall be entitled to one vote
upon each matter submitted to a vote of the Members; provided, however, that, if a Member has
assigned all or a portion of its Shares to a Person who is not admitted as a Member, neither the
transferring Member nor the Transferee/Economic Interest Holder shall have the right to vote the
Shares so transferred and such Shares shall not be deemed to be outstanding for purposes of
determining a quorum or any percentage vote required or permitted hereunder. In all elections for
members of the Advisory Board or the directors of the Fund, the Members shall not have the right to
cumulative voting.
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ARTICLE II
RESTRICTIONS ON
TRANSFER OF INTEREST
RESTRICTIONS ON
TRANSFER OF INTEREST
Section 11.1 Prohibition on Transfers.
(a) Except as otherwise specifically provided herein, no Interest Holder may sell, assign,
transfer, pledge, encumber, or otherwise dispose of (any of which is a “Transfer”) its Interest, in
whole or in part, or enter into any agreement or grant any options or rights with respect thereto,
whether by action of such Interest Holder or by operation of law or otherwise, without the prior
written consent of the Managing Member, which consent, in the Managing Member’s sole and absolute
discretion, may be withheld.
(b) Notwithstanding anything contained herein to the contrary, the Managing Member shall not
consent to any transfer if such transfer would:
(i) cause a termination of the Company for federal or, if applicable, state income tax
purposes;
(ii) in the opinion of counsel to the Company, cause the Company to cease to be classified as
a partnership for federal or state income tax purposes;
(iii) cause the Company to become a “publicly traded partnership,” as such term is defined in
Section 7704 of the Code;
(iv) require the registration of such transferred Interest pursuant to any applicable federal
or state securities laws;
(v) subject the Company to regulation under the 1940 Act;
(vi) result in a violation of applicable laws; or
(vii) be made to any Person who lacks the legal right, power or capacity to own such Interest.
Section 11.2 Admission of Transferee as Member.
(a) The Managing Member may consent to a Transfer without consenting to the admission of the
transferee under such approved Transfer (a “Transferee”) as a Member of the Company. A Transferee
may only be admitted as a Member of the Company if and when (i) the Transferee becomes a party to
this Agreement by agreeing in writing to be bound by the terms and provisions hereof, including the
Capital Commitment of the transferring Member, and (ii) the Managing Member consents to such
admission, which consent may be withheld in its sole and absolute discretion. Any Transferee shall
execute and acknowledge such other instruments as the Managing Member may deem necessary or
desirable to effectuate the admission of the Transferee as a Member of the Company.
(b) Any Transferee not admitted as a member of the Company shall be entitled to the Profits,
Loss, and distributions allocable to the assigned Shares, but shall not be entitled to vote on
Company matters or to exercise or enjoy any of the other rights of a Member of the Company unless
and
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until such Transferee is admitted as a Member of the Company. Each Transferee or any
subsequent Transferee of Interests, or any partial interests thereof, shall hold such Shares or
Economic Interests subject to all of the provisions hereof and shall make no transfers except as
permitted hereby.
Section 11.3 Void Transfers. Any purported transfer in violation of any provision
hereof shall be void ab initio and shall not operate to transfer any right, title or
interest to the purported transferee.
Section 11.4 Legend on Certificates. Each Member shall have placed on certificates
representing its Shares, if such certificates are issued, the following legend:
| THE SALE, TRANSFER, HYPOTHECATION, ENCUMBRANCE, OR DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE PROVISIONS OF THE OPERATING AGREEMENT OF VENTURE LENDING & LEASING VI, LLC. ALL RESTRICTIONS CONTAINED IN SUCH AGREEMENT ARE INCORPORATED BY REFERENCE IN THIS CERTIFICATE. A COPY OF THE AGREEMENT MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF VENTURE LENDING & LEASING VI, LLC, AT 0000 XXXXX XXXXX XXXXXX, XXX XXXX, XXXXXXXXXX 00000. |
Section 11.5 Withdrawal Prohibited. No Member may withdraw or resign from the Company
until there has been a dissolution and a full and complete winding up of the Company in accordance
with this Agreement and the Act. If such Member is permitted to withdraw pursuant to the
provisions of the Act, notwithstanding the foregoing, such Member shall be treated as an Economic
Interest Holder which has not been admitted as a Member of the Company.
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SCHEDULE 1
Definitions
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“1940 Act” shall mean the Investment Company Act of 1940, as amended.
“Act” means the Delaware Limited Liability Company Act and any successor statute, as amended
from time to time.
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“Advisory Board” shall have the meaning assigned thereto in Section 7.1.
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“Capital Commitment” with respect to a Member shall mean the amount set forth opposite such
Member’s name on Exhibit A.
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“Code” means the Internal Revenue Code of 1986 and any successor statute, as amended from time
to time.
“Company” shall mean Venture Lending & Leasing VI, LLC, a Delaware limited liability company.
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“Economic Interest” means the interest held by a Transferee of a Member or Economic Interest
Holder who has not been admitted as a Member.
“Economic Interest Holder” means any Person owning an Economic Interest.
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“Fund” shall have the meaning assigned thereto in the Introduction.
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“Interest” means Shares, an Economic Interest or the Carried Interest or Post-Termination
Interest.
“Interest Holder” means a Member, with respect to Shares, an Economic Interest Holder with
respect to an Economic Interest and a Managing Member or former Managing Member with respect to a
Carried Interest or Post-Termination Interest.
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“Managing Member” shall have the meaning assigned thereto in Section 6.1. The initial
Managing Member shall be Westech.
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“Member” means the Managing Member and each other Person who acquires Shares pursuant to this
Operating Agreement and the Subscription Agreement attached hereto as Schedule 2 and each Person
hereafter admitted to the Company as a Member as provided in this Operating Agreement. The Members
and their respective Shares are set forth on Exhibit A. Notwithstanding anything contained
herein to the contrary, whenever the term Member is used herein, it always shall include the
Managing Member, whether or not such term is preceded or followed with the phrase “including the
Managing Member” or words of like import.
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“Operating Agreement” or “Agreement” shall mean this Operating Agreement of Venture Lending &
Leasing VI, LLC, dated as of January 21, 2010.
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“Person” means any individual, corporation, governmental entity, trust, estate, partnership,
joint venture, limited liability company or other entity.
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“Profits” and “Losses” mean, for each Period, an amount equal to the taxable income or loss of
the Company for such Period, determined in accordance with Section 703(a) of the Code (including
all items required to be stated separately) with the following adjustments:
(a) Any income exempt from federal income tax shall be included;
(b) Any expenditures of the Company described in Section 705(a)(2)(B) of the Code (including
expenditures treated as such pursuant to Section 1.704-1(b)(2)(iv)(i)) of the Treasury Regulations
shall be subtracted;
(c) Any items which are specially allocated pursuant to Sections 5.2(c) or 5.3 shall
not be taken into account in computing Profits or Losses;
(d) Unrealized Gains and Unrealized Losses shall be taken into account; and
(e) Gain or loss resulting from any disposition of Property with respect to which gain or loss
is recognized for federal income tax purposes shall be computed by reference to the Carrying Value
of the Property disposed of, notwithstanding that the adjusted tax basis of such Property differs
from its Carrying Value.
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“Share” means an ownership interest in the Company representing a Capital Contribution of one
thousand dollars ($1,000) to the Company as set forth in Article 3, which shall constitute
a Non-Managing Member’s entire interest in the Company including its right to share in Profits and
Losses, distributions, capital, the right to vote and the right to receive information concerning
the business and affairs of the Company. The Managing Member’s ownership interest in the Company
shall consist of its Shares, its Carried Interest and Post-Termination Interest.
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“Special Situations Investments” means investments structured as senior debt, convertible
debt, or some combination of debt instruments and equity instruments (including, without
limitation, investments in a company undergoing a restructuring or recapitalization of its existing
debt or equity, investments in subordinated debt, and any investment consisting of a bridge loan to
a company which is in the process of raising additional private equity, planning an initial public
offering or is seeking to enter into a business combination through which it would be acquired).
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“Transfer” shall have the meaning assigned thereto in Section 11.1 hereof.
“Transferee” shall have the meaning assigned thereto in Section 11.2(a).
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