AMENDED AND RESTATED OPERATING AGREEMENT
FOR ORYX VENTURES, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This AMENDED AND RESTATED OPERATING AGREEMENT (the "Agreement") of Oryx
Ventures, LLC, a Delaware limited liability company (the "Company"), is made
effective as of November 01, 2001, 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. Oryx Technology Corp., as the initial Member, and Xxxxxx Xxxxxxxx,
as the Manager, hereto have entered into that certain Operating Agreement for
Oryx Ventures, LLC dated May 18, 2001 (the "Original Agreement").
C. The parties to the Original Agreement desire to amend and restated
the Original Agreement in its entirety to admit Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxxx and Xxxx Xxxxx as Members and to make such further changes as are set
forth below.
NOW, THEREFORE, the parties (hereinafter sometimes collectively
referred to as the "Members," or individually as a "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 Xxxxxx Xxxxxxxx; 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.
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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, to the
greatest extent possible, 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, computed 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. The percentage interests of each of Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxxx and Xxxx Xxxxx for purposes of allocating future distributions, income
and loss pursuant to paragraphs 6 and 7 shall be adjusted upon the termination
of their employment as an employee or director of or consultant to Oryx
Technology Corp. ("Oryx"). Upon termination of employment with Oryx (the
"Termination Date"), the percentage interest of Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxxx, and/or Xxxx Xxxxx, as the case may be, in allocations of Company
distributions, income or loss after such Termination Date shall be reduced to
equal the product of (A) such Member's retained percentage immediately prior to
the Termination Date, and (B) such Member's percentage interest immediately
prior to such Termination Date. For purposes of this paragraph, the "retained
percentage" for each of Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx and Xxxx Xxxxx shall
mean (i) 37.5% as of the date of this Agreement plus (ii) 2.0833% for each
consecutive full month hereafter that such Member remains an employee, director
of or consultant to Oryx (up to a maximum of thirty (30) months). After the
Termination Date for either of Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx or Xxxx Xxxxx,
the percentage interest of Members who have not terminated their employment with
Oryx (at that time or previously) shall be increased proportionately until the
percentage interests of all Members equals 100%.
9. Upon termination of employment of either Xxxxxx Xxxxxxxx, Xxxxxxx
Xxxxxxxxx or Xxxx Xxxxx as an employee or director of or consultant to Oryx,
whether by resignation or termination with or without cause, such terminated
individual shall immediately have no
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managerial authority with respect to the Company and shall, in good faith,
assist the Company in a transition of managerial authority to such person(s) as
the Company may designate.
10. 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,
Membership, limited liability company or other "pass-through" entity for tax
purposes, its shareholders, Members 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 7 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 7 applies.
11. 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.
12. The Company shall be taxed as a partnership for both federal and
state income tax purposes.
13. Upon execution of this Agreement by the parties hereto, the
Original Agreement shall be terminated in its entirety.
14. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original and, together, shall constitute one instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first written above.
MEMBERS:
ORYX TECHNOLOGY CORP.
By: /s/ Xxx X. Xxxx
----------------
Name: Xxx X. Xxxx
Title: Director
/s/ Xxxxxx Xxxxxxxx
--------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
----------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxx
---------------
Xxxx Xxxxx
MANAGER:
/s/ Xxxxxx Xxxxxxxx
--------------------
Xxxxxx Xxxxxxxx
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EXHIBIT A
CAPITAL CONTRIBUTIONS OF MEMBERS AND
ADDRESSES OF MEMBERS AND MANAGER OF
ORYX VENTURES, LLC
Member's Percentage
Names and Addresses Capital Contributed Interest(s)
------------------- ------------------- -----------
Oryx Technology Corp. $2,586,490 80%
0000 Xxxxxxx Xxxxxxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Xxxxxx Xxxxxxxx $0 9%
Oryx Technology Corp.
0000 Xxxxxxx Xxxxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxxxxxx $0 9%
Oryx Technology Corp.
0000 Xxxxxxx Xxxxxxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxx $0 2%
Oryx Technology Corp.
0000 Xxxxxxx Xxxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Total: 100%
Manager's Name & Address
Xxxxxx Xxxxxxxx
Oryx Technology Corp.
0000 Xxxxxxx Xxxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
