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EXHIBIT 3.2
EXECUTION COPY.
PSF HOLDINGS, L.L.C.
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
Dated as of April 16, 1997
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Table of Contents
Page
ARTICLE 1 DEFINITIONS............................................... 2
ARTICLE 2 FORMATION AND PURPOSE..................................... 2
2.1 Formation....................................... 2
2.2 Name............................................ 2
2.3 Registered Office/Agent......................... 2
2.4 Term............................................ 2
2.5 Purpose......................................... 2
2.6 Specific Powers................................. 3
2.7 Certificate..................................... 4
ARTICLE 3 MEMBERSHIP AND CAPITAL.................................... 4
3.1 Members......................................... 4
3.2 Return of Capital Contributions, etc............ 4
3.3 Additional Members; Classes of Members.......... 4
3.4 Units........................................... 5
3.5 Percentage Interest............................. 5
3.6 Additional Units................................ 5
3.7 Rights to Repurchase Interest of Employee Members 6
ARTICLE 4 STATUS OF MEMBERS......................................... 7
4.1 Limited Liability............................... 7
4.2 Return of Distributions of Capital.............. 7
ARTICLE 5 DESIGNATION, RIGHTS, AUTHORITIES, POWERS,
RESPONSIBILITIES AND DUTIES OF THE BOARD OF MANAGERS
AND MEMBERS............................................... 7
5.1 Management by Board of Managers...................... 7
5.1.1 Appointment of Managers......................... 7
5.1.2 Resignation of Managers......................... 8
5.1.3 Authority; Actions of the Board of Managers..... 8
5.1.4 Meetings of the Board of Managers............... 8
5.1.5 Compensation.................................... 9
5.2 Rights of Members.................................... 9
5.2.1 Voting Rights................................... 9
5.2.2 Class B Members................................. 10
5.2.3 Meetings of the Members......................... 11
5.2.4 Compensation.................................... 12
5.2.5 Representatives................................. 12
5.2.6 Restrictions on Powers.......................... 13
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5.3 Officers; Agents....................................... 13
5.3.1 Power to Appoint.................................. 13
5.3.2 Officers.......................................... 13
5.3.3 Management Option Plan Committee.................. 13
ARTICLE 6 BOOKS, RECORDS, ACCOUNTING, AND REPORTS..................... 14
6.1 Books and Records..................................... 14
6.2 Delivery to Member; Inspection; etc................... 14
6.3 Financial Statements.................................. 15
6.4 Filings............................................... 15
6.5 Non-Disclosure........................................ 15
6.6 Record holders of Interests........................... 16
ARTICLE 7 DISTRIBUTIONS AND ALLOCATIONS OF PROFIT AND LOSS............ 16
7.1 Board of Managers' Determination...................... 16
7.2 Distributions......................................... 16
7.3 Accounting for Partnership Profit and Loss............ 16
7.3.1 Capital Account.................................. 16
7.3.2 Allocation of Net Profit and Net Loss, etc. --
General Rule..................................... 16
7.3.3 Special Allocations and Capital Account Adjustments 17
7.3.4 Interpretation................................... 18
7.3.5 Withholdings..................................... 18
7.3.6 Changes in Members' Interest..................... 18
7.3.7 Property Distributions and Installment Sales..... 18
7.3.8 Adjustments to Capital Accounts.................. 19
ARTICLE 8 TAX MATTERS MEMBERS......................................... 19
8.1 Tax Matters Member.................................... 19
8.2 Indemnity of Tax Matters Member....................... 19
8.3 Information Furnished................................. 20
8.4 Notice of Proceedings, etc............................ 20
8.5 Notices to Tax Matters Member......................... 20
ARTICLE 9 TRANSFER OF INTERESTS....................................... 20
9.1 Transfer by Members................................... 20
9.2 Assignee.............................................. 21
9.3 Restriction on Foreign Ownership of Units............. 22
9.4 Other Restrictions on Transfer........................ 22
ARTICLE 10 ADMISSION AS MEMBER......................................... 23
10.1 Requirements......................................... 23
10.2 Consent.............................................. 23
10.3 No Dissolution....................................... 23
10.4 Admission upon exercise of Warrants and Options...... 24
ARTICLE 11 LIMITATIONS ON RIGHTS AND POWERS OF THE MEMBERS;
AMENDMENTS.................................................... 24
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11.1 Specific Limitations................................ 24
11.2 Amendments to Agreement............................. 24
ARTICLE 12 DISSOLUTION OF COMPANY..................................... 25
12.1 Termination of Membership........................... 25
12.2 Events of Dissolution or Liquidation................ 25
12.3 Liquidation......................................... 25
12.4 Distributions to Members............................ 25
12.5 No Action for Dissolution........................... 25
12.6 No Further Claim.................................... 26
ARTICLE 13 INDEMNIFICATION............................................ 26
13.1 General............................................. 26
13.2 Exculpation......................................... 27
13.3 Persons Entitled to Indemnity....................... 27
13.4 Procedure Agreements................................ 27
13.5 Fiduciary and Other Duties.......................... 27
ARTICLE 14 RIGHT TO CONVERT TO CORPORATE FORM......................... 28
ARTICLE 15 LIMITED LIABILITY.......................................... 28
ARTICLE 16 MISCELLANEOUS.............................................. 29
16.1 Additional Documents................................ 29
16.2 General............................................. 29
16.3 Notices............................................. 29
16.4 Execution of Papers................................. 29
16.5 Disputed Matters.................................... 30
16.6 Gender and Number................................... 30
16.7 Severability........................................ 30
16.8 Massachusetts Business Trust Legend................. 31
16.9 Headings............................................ 31
16.10 No Third Party Rights............................... 31
Exhibit A Defined Terms.............................................. 1
Exhibit B Members and Percentage Interests........................... 1
Exhibit C Officers................................................... 1
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PSF HOLDINGS, L.L.C.
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT of PSF Holdings, L.L.C. is dated
as of April 16, 1997, by and among the Persons set forth in Exhibit B hereto,
and certain other Persons from time to time admitted as Members of the Company
and becoming a party hereto, and amends and restates, in its entirety, the
Amended and Restated Limited Liability Company Agreement of PSF Holdings,
L.L.C. dated as of September 17, 1996.
WHEREAS, PSF Holdings, L.L.C. was initially organized as a limited
liability company under the laws of Delaware on September 10, 1996, pursuant to
an order of the United States Bankruptcy Court for the District of Delaware
entered September 6, 1996 (the "Confirmation Order") in the Chapter 11 cases of
PSF Finance L.P., a Delaware limited partnership organized on August 6, 1991,
and certain affiliated entities (case nos. 96-1032 (HSB) et al.), confirming
the Debtors' Second Amended Joint Plan of Reorganization under Chapter 11 of
the Bankruptcy Code (the "Plan") with the Pre-Merger Members being the members
of PSF Holdings, L.L.C.
WHEREAS, on September 17, 1996, pursuant to the Confirmation Order and
pursuant to the Plan, the former partners of PSF Finance L.P. (collectively,
the "Original Partners") caused PSF Finance L.P. to be converted to a limited
liability company under the laws of Delaware by merger with PSF Holdings,
L.L.C. (the "Merger") pursuant to the Revised Uniform Limited Partnership Act
of the State of Delaware and the Act (as so merged, the "Company"), thereby
becoming the original Members of the Company (the "original Members"), the
Pre-Merger Members having withdrawn in connection with the Merger.
WHEREAS, the Original Partners that became the original Members of this
Company and certain additional Persons admitted as Members (collectively, the
"Members") adopted the Amended and Restated Limited Liability Company
Agreement, dated as of September 17, 1996, in order to continue the business
and affairs of PSF Finance L.P. as a limited liability company and to set forth
the understanding of the Members with respect to, among other things, the
management of the business and affairs of the Company, the allocation of
profits and losses among the Members, the respective rights and obligations of
the Members to each other and to the Company, and certain other matters.
WHEREAS, the Members desire to amend and restate the Amended and Restated
Limited Liability Company Agreement.
NOW, THEREFORE, the Members agree as follows:
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ARTICLE 1
DEFINITIONS
For purposes of this Agreement, certain capitalized terms have
specifically defined meanings which are either set forth or referred to in
Exhibit A attached hereto and incorporated herein by reference.
ARTICLE 2
FORMATION AND PURPOSE
2.1 Formation. The Members hereby continue the business of PSF
Finance L.P. and the Company pursuant to and in accordance with the Act. The
rights and liabilities of the Members and Assignees of all such Members shall
be determined pursuant to the Act and this Agreement. To the extent that the
rights or obligations of any Member or Assignee are different by reason of any
provision of this Agreement than they would be in the absence of such
provision, this Agreement shall, to the extent permitted by the Act, control.
2.2 Name. The name of the Company is "PSF Holdings, L.L.C.". The
business of the Company may be conducted under that name or, upon compliance
with applicable laws, any other name that the Board of Managers deems
appropriate or advisable. The Board of Managers shall file, or shall cause to
be filed, any fictitious name certificates and similar filings, and any
amendments thereto, that the Board of Managers considers appropriate or
advisable.
2.3 Registered Office/Agent. The registered office required to be
maintained by the Company in the State of Delaware pursuant to the Act shall
initially be c/o Corporation Trust Company at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000. The name and address of the registered agent of the Company pursuant
to the Act shall initially be Corporation Trust Company at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000. The Company may, upon compliance with the applicable
provisions of the Act, change its registered office or registered agent from
time to time in the discretion of the Board of Managers.
2.4 Term. The term of the Company shall continue until December 31,
2046 or such later date as shall be designated by the Board of Managers unless
sooner terminated as hereinafter provided.
2.5 Purpose. The Company is formed for the object and purpose of,
and the nature of the business to be conducted and promoted by the Company is
owning a corporation engaged in the raising, farrowing, processing, finishing
and marketing of hogs, and all other business activities which may lawfully be
engaged in by a limited liability company pursuant to the Act which the Board
of Managers determines are necessary, advisable, convenient or incidental to
the business of the Company.
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2.6 Specific Powers. Without limiting the generality of Section 2.5
hereof, the Company shall have the power and authority to take any and all
actions necessary, appropriate, proper, advisable, incidental or convenient to
or for the furtherance of the purpose set forth in Section 2.5, including, but
not limited to, the power:
2.6.1 to conduct its business, carry on its operations and have
and exercise the powers granted to a limited liability company by the Act
in any state, territory, district or possession of the United States, or
in any foreign country that may be necessary, convenient or incidental to
the accomplishment of the purpose of the Company;
2.6.2 to acquire by purchase, lease, contribution of property or
otherwise, own, hold, operate, maintain, finance, improve, lease, sell,
convey, mortgage, transfer, demolish or dispose of any real or personal
property that may be necessary, convenient or incidental to the
accomplishment of the purpose of the Company;
2.6.3 to enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with any Member, any Affiliate
thereof, or any agent of the Company necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purpose of the
Company;
2.6.4 to purchase, take, receive, subscribe for or otherwise
acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or
otherwise dispose of, and otherwise use and deal in and with, shares or
other interests in or obligations of domestic or foreign corporations,
associations, general or limited partnerships, trusts, limited liability
companies, or individuals or direct or indirect obligations of the United
States or of any government, state, territory, governmental district or
municipality or of any instrumentality of any of them;
2.6.5 to lend money, to invest and reinvest its funds, and to take
and hold real and personal property for the payment of funds so loaned or
invested;
2.6.6 to xxx and be sued, complain and defend, and participate in
administrative or other proceedings, in its name or otherwise;
2.6.7 to appoint employees and agents of the Company, and define
their duties and fix their compensation;
2.6.8 to indemnify any Person in accordance with the Act or
otherwise to the extent not prohibited by the Act or other applicable
law;
2.6.9 to cease its activities and cancel its Certificate;
2.6.10 to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, execute, acknowledge or take any other
action with respect to any lease, contract or security agreement in
respect of any assets of the Company;
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2.6.11 to borrow money and issue evidences of indebtedness, and to
secure the same by a mortgage, pledge or other lien on any or all of the
assets of the Company;
2.6.12 to make contracts of guaranty and suretyship which are
necessary or convenient to the conduct, promotion or attainment of the
business of a corporation all or a majority of the outstanding stock of
which is owned, directly or indirectly, by the Company.
2.6.13 to pay, collect, compromise, litigate, arbitrate or
otherwise adjust or settle any and all other claims or demands of or
against the Company or to hold such proceeds against the payment of
contingent liabilities; and
2.6.14 to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
2.7 Certificate. Xxxxxxx X. Xxxxxxxxx is hereby designated as an
authorized person, within the meaning of the Act, to execute, deliver and file
any amendments or restatements of the Certificate and any other certificates
and any amendments or restatements thereof necessary for the Company to qualify
to do business in a jurisdiction in which the Company may wish to conduct
business, provided, however, that such designation is subject in all events to
the right of the Board of Managers to cancel any such designation and to
designate another such authorized person as the Board of Managers deems
necessary from time to time.
ARTICLE 3
MEMBERSHIP AND CAPITAL
3.1 Members. The Members in the Company shall be listed on Exhibit B
hereto (which may reflect nominee names of the beneficial holders), which sets
forth the agreed Capital Contribution and the agreed Capital Account (as
adjusted pursuant to Section 7.3.8) of each Member as of the date hereof, and
the number and class of Units held by such Members on the date hereof.
3.2 Return of Capital Contributions, etc. No Member shall have the
right to demand a return of all or any part of such Member's Capital
Contributions. Any return of the Capital Contributions of any Member shall be
made solely from the assets of the Company and only in accordance with the
terms of this Agreement. Interest may be paid to each Member with respect to
such Member's Capital Contributions on terms and at a rate to be determined
from time to time by the Board of Managers.
3.3 Additional Members; Classes of Members. Except for transferees
of Interests who become Members pursuant to Article 10 and Members to whom
Interests are issued pursuant to Section 3.6, no additional Members shall be
admitted to the Company without the consent of the Board of Managers and the
Required Members. For purposes of
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the Act, the Members shall constitute two classes of Members, the Class A
Members and the Class B Members, unless and to the extent that this Agreement
specifically provides for different classes or groups of Members of the Company.
3.4 Units.
3.4.1 For convenience in determining the rights and interests of
Persons that may from time to time hold warrants or options to acquire an
interest in the Company and become Members, the Interests of each Member
shall be divided into Units.
3.4.2 The Units shall be divided into two classes, Class A Units
(the "Class A Units") and Class B Units (the "Class B Units" and,
together with the Class A Units, the "Units"). Except as otherwise
provided in Section 5.2.2, the Class A Units and Class B Units shall be
identical and will entitle the holders thereof to the same rights and
privileges. Notwithstanding anything herein to the contrary (i) each
Class B Unit Transferred to a party other than a MS Member shall, upon
the election of such party, convert into one Class A Unit immediately
following such Transfer, and (ii) each Class A Unit Transferred to a MS
Member shall convert automatically, immediately following such Transfer,
without further action on the part of any party, into one Class B Unit;
provided that in the case of clauses (i) and (ii) above, in the event of
any change in the Units of the Company by reason of merger,
consolidation, recapitalization, split, division or subdivision,
combination, conversion, exchange of Units or other change in the capital
or organization structure of the Company, then the number and kind of
Units shall be appropriately and equitably adjusted so that the holders
of such Units shall receive upon conversion, purchase or Transfer of the
Units, the number of Units or other securities or property that such
holder would have received in respect of the Units had such Units been
converted, purchased or Transferred immediately prior to such event.
3.4.3 The Board of Managers may provide that the Units shall be
certificated. Unless and until such action, the Units shall be
uncertificated, and the Units and Percentage Interests of each Member
shall be evidenced by Exhibit B, as amended from time to time to reflect
the issuance or repurchase of any Units, the admission of new Members and
any other adjustments required under this Agreement, including under
Section 7.3.8.
3.5 Percentage Interest. The percentage interests of each Member in
the profits and capital of the Company (each a "Percentage Interest") shall be
determined by dividing the number of Units held by such Member by the number of
Units then held by all Members and multiplying the result by 100, and shall be
adjusted each time Units are issued or repurchased by the Company.
3.6 Additional Units. The Company may issue additional Units for
cash, property or services on such terms as the Board of Managers deems
appropriate; provided that the consent of the Required Members is obtained in
advance, in accordance with the terms of this Agreement. Upon the issuance of
any additional Units pursuant to this Section
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3.6, the Percentage Interests of the Members shall be redetermined as provided
in Section 3.5.
3.7 Rights to Repurchase Interests of Employee Members. The Company
shall acquire and shall have the right to acquire the Interest of any Employee
Member as provided below.
3.7.1 If an Employee Member ceases to be an employee of the Company
or an Affiliate of the Company and if the Employee Member was terminated
from such service or employment as a result of death or Disability, the
Company shall purchase and the Employee Member or his representative
shall sell to the Company the entire Interest of such Employee Member for
Fair Value.
3.7.2 If an Employee Member ceases to be an employee of the Company
or an Affiliate of the Company, and if such Employee Member was not
terminated from such service or employment as a result of death or
Disability, the Company shall have the right for a period of six months
following the last date on which such Employee Member was a Member or an
employee of the Company or an Affiliate of the Company to repurchase the
entire Interest of such Employee Member for Fair Value or, if such
Employee's Interest had not vested or was otherwise subject to
restrictions, at such price as may be specified in the agreement or plan
pursuant to which such unvested or restricted Interest was acquired.
3.7.3 If the Company is obligated to repurchase the Interest of an
Employee Member pursuant to Section 3.7.1 hereof, the closing date for
the repurchase shall be 90 days after the last date on which such
Employee Member was an employee of the Company or an Affiliate of the
Company. If the Company determines to purchase the Interest of an
Employee Member pursuant to Section 3.7.2, hereof, the Company shall give
written notice of its intention to so repurchase such Interest on or
before the expiration of the six month notice period provided in Section
3.7.2 which notice shall designate as the closing date for the repurchase
a date which shall not be later than 30 days after the date of such
notice. The closing date pursuant to the first or the second sentence of
this Section 3.7.3 shall be extended by the amount of time, if any,
needed to determine the Fair Value of the Interest being purchased. At
the closing, the Company shall purchase such Interest by check or wire
transfer and the Employee Member or his representative shall execute such
documents or instruments of transfer as the Company may reasonably
request in order to transfer the Interest being purchased to the Company.
If the Employee Member or his representative fails or refuses to execute
such documents or instruments of transfer, the President or any Vice
President of the Company at the time in office is hereby appointed as
attorney-in-fact for the Employee Member in order to execute such
documents or instruments of transfer and the Company may hold the
purchase price until the documents or instruments of transfer become
effective. Regardless of when the actual transfer takes place, the
Employee Member or his representative will cease to have any interest in
the profits or losses of the Company occurring after the closing date
established or designated in the manner set forth above.
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ARTICLE 4
STATUS OF MEMBERS
4.1 Limited Liability. No Member shall be bound by or personally
liable for the expenses, liabilities, or obligations of the Company as more
fully set forth in Article 15 hereof. In no event shall any Member be required
to make up any deficiency in such Member's Capital Account upon the dissolution
or termination of the Company.
4.2 Return of Distributions of Capital. Except as otherwise
expressly required by law, a Member, in its capacity as such, shall have no
liability in excess of (a) the amount of its Capital Contributions, (b) its
share of any assets and undistributed profits of the Company, (c) its
obligation to make other payments expressly provided for in this Agreement, and
(d) to the extent required by law, the amount of any Distributions wrongfully
distributed to it. Except as required by law, no Member shall be obligated by
this Agreement to return any Distribution to the Company or to pay the amount
of any Distribution for the account of the Company or to any creditor of the
Company. However, if any court of competent jurisdiction holds that,
notwithstanding the provisions of this Agreement, any Member is obligated to
return or pay any part of any Distribution, the obligation shall be that of
such Member alone and not of any other Member. The amount of any Distribution
returned to the Company by a Member or paid by a Member for the account of the
Company or to a creditor of the Company shall be added to the account or
accounts from which it was subtracted when it was distributed to the Member.
ARTICLE 5
DESIGNATION, RIGHTS, AUTHORITIES, POWERS,
RESPONSIBILITIES AND DUTIES OF THE
BOARD OF MANAGERS AND MEMBERS
5.1 Management by Board of Managers. In accordance with Section 18-402
of the Act, the management of the business and affairs of the Company shall be
vested in a Board of Managers. The Board of Managers shall have complete
authority and discretion to make any and all decisions concerning the business
and affairs of the Company and to exercise any and all powers of the Company,
except as limited by the Act, the Certificate, or as specifically reserved to
the Members pursuant to this Agreement. Each Manager shall have one (1) vote
in all matters coming before the Board of Managers. Notwithstanding the
foregoing, the Board of Managers may delegate the day to day management and the
power to execute documents to the persons holding titles such as Chief
Executive Officer, President, Executive Vice President, Vice President, Chief
Operating Officer, Chief Financial Officer, Secretary, Treasurer or Controller
or such other officers as may be appointed pursuant to Section 5.3 of this
Agreement.
5.1.1 Appointment of Managers. Upon the execution of this
Agreement, Xxxxx X. Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxx X. XxXxxx and Xxxxx X. Xxxx shall constitute the initial
Board of Managers. Except as otherwise set forth herein, the Board of
Managers shall be elected at the
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annual meeting of the Members or at a special meeting called for that
purpose or by written consent, provided, however, that such election of the
Board of Managers by the Members shall in any event occur annually at or about
the third Tuesday in May. Each of the initial Managers shall serve until the
next annual meeting of Members, or until such Managers' successors are duly
elected and qualified. Upon the resignation, death or incapacity of any
Manager, the remaining Managers shall constitute the Board of Managers.
Subject to the foregoing, if at any time any Manager then serving dies, becomes
incapacitated or resigns, and such vacancy results in there being less than
three Managers, the remaining Managers, by vote or resolution, shall appoint a
successor Manager or successor Managers so that there will be at least three
(3) Managers.
5.1.2 Resignation of Managers. Each Manager may resign as a Manager
at any time.
5.1.3 Authority; Actions of the Board of Managers.
(a) Authority. Absent express authorization by the Board of
Managers, no individual Manager will have the power or the
authority to act on behalf of, or to bind, the Company.
(b) Actions of Board of Managers. Unless otherwise
specifically set forth in this Agreement, the affirmative act of
the majority vote of a quorum of the Managers at any meeting of the
Board of Managers shall be the act of the Board of Managers.
Notwithstanding anything else contained in this Agreement, the
Board of Managers may not take any action that requires the
agreement or consent of all or a specified percentage of the
Members unless and until all or such specified percentage of the
Members have agreed or consented to such action.
5.1.4 Meetings of the Board of Managers.
(a) Regular Meetings. Regular meetings of the Board of
Managers shall be held on such dates, at such time, and at such
places, within or without the State of Delaware, as shall have been
established by the Board of Managers and publicized among all of
the Managers. Not less than seven (7) nor more than thirty (30)
days' notice of any regular meeting shall be given to each Manager.
Notice shall specify the place, day, and hour of the meeting and
shall include an agenda of the matters to be considered at such
meeting.
(b) Special Meetings. A special meeting of the Board of
Managers may be called by the President or by any two (2) of the
then Managers and shall be held on such date, at such time, and at
such place as may be established by the Managers. Not less than
three (3) nor more than thirty (30) days' notice of any special
meeting shall be given to each Manager.
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Notice shall specify the place, day, and hour of the meeting and
shall include an agenda of the matters to be considered at such
meeting.
(c) Emergency Meetings. An emergency meeting of the Board of
Managers may be called by the Managers in the event any Manager
perceives a threat to the continued viability of the Company, and
shall be held on such date, at such time, and at such place as may
be established by the Managers. Twenty-four (24) hours notice of
any emergency meeting shall be given to each Manager. The place,
day, and hour of the meeting and the purpose or purposes for which
an emergency meeting is called shall be stated in the notice.
(d) Quorum. At any meeting, a majority of the members of the
Board of Managers shall constitute a quorum for all purposes. If a
quorum fails to attend any meeting, a majority of the Managers
present may adjourn the meeting to another date, time and place
with notice to the Managers given in the same manner as for an
emergency meeting of the Board of Managers.
(e) Participation by Conference Telephone. The Managers may
participate in a meeting by means of conference telephone or other
similar communications equipment that enables all of the Managers
participating in the meeting to hear each other. Such
participation constitutes presence in person at the meeting.
(f) Written Consents. Action may be taken by the Board of
Managers without a meeting if all of the Managers consent to such
action in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board of Managers. Any consent
of the Managers may be executed in counterparts. Each counterpart
shall constitute an original, and all of the counterparts together
shall constitute a single consent of the Managers.
5.1.5 Compensation. No Manager shall receive any compensation for
service as a Manager unless approved by the Board of Managers.
5.2 Rights of Members. The Members shall be entitled to the following
rights:
5.2.1 Voting Rights. In addition to any voting rights to which the
Members are entitled under the Act, except as otherwise provided in
Section 5.2.2, the Members shall have the right to vote on all matters
which are submitted to the Members for approval by the Board of Managers
or required by this Agreement, and to vote on the following matters which
are required to be submitted to the Members for approval by the Board of
Managers:
(a) An increase in the number of Units which may be issued
under the Management Option Plan;
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(b) Amendment of this Agreement;
(c) Dissolution of the Company;
(d) Election of the Board of Managers;
(e) The merger or consolidation of the Company with any other
Person;
(f) Change of the status of the Company from one in which
management is vested in the Board as Managers to one in which
management is vested in the Members;
(g) The sale, lease, exchange or other disposition, other than
by mortgage, deed of trust, or pledge, of all, or substantially
all, of the assets and property of the Company;
(h) The authorization of any transaction, agreement or action
that otherwise contravenes this Agreement; and
(i) An amendment of the Certificate which the Board of
Managers reasonably believes may have an adverse effect on the
Members.
The foregoing actions shall require approval by the affirmative vote of the
Required Members, subject to Section 11.2.1.
5.2.2 Class B Members. Notwithstanding Section 5.2.1 or any other
provision of this Agreement, no Class B Member shall have any right,
power or authority to participate in the management of the Company in any
manner. Without limiting the generality of the immediately preceding
sentence, no Class B Member shall have the right, power or authority (i)
to initiate or participate in any vote or resolution of the Members
adopted in accordance with the procedures set forth below or otherwise
pursuant to this Agreement, (ii) to initiate or participate in the
granting of any consent or approval required to be granted by the Members
pursuant to this Agreement (except as provided in the proviso contained
in Section 11.2.1), (iii) to initiate or participate in any action
permitted to be taken in the discretion or at the direction of the
Members, as a group, or on the part of the Members by or through any
determination, designation, appointment or other action of the Members,
as a group, as provided in this Agreement, or (iv) to execute any
documents that are binding on the Company or otherwise to take any action
to bind the Company in any respect.
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5.2.3 Meetings of the Members.
(a) Regular Meetings. Regular meetings of the Members may be
held on such dates, at such times and at such places, within or
without the State of Delaware, as may be established by, and
publicized among, the Members, but in any event, on the third
Tuesday in May of each year at 10:00 a.m. at the executive offices
of the Company, or at such other date, time and place as shall be
determined by the Board of Managers. Not less than thirty (30) nor
more than sixty (60) days' notice of a regular meeting shall be
given to each Member. Notice shall specify the place, day, and
hour of the meeting and shall include an agenda of the matters to
be considered at such meeting.
(b) Special Meetings. A special meeting of the Members may be
called by the President, Board of Managers or any Member or Members
collectively holding more than forty percent (40%) of the issued
and outstanding Units entitled to vote, and shall be held on such
date, at such time, and at such place as may be established by the
President, Board of Managers or the Member(s), as the case may be,
calling the special meeting. Not less than seven (7) nor more than
fifteen (15) days' notice of any special meeting shall be given to
each Member. Notice shall specify the place, day, and hour of the
meeting and shall include an agenda of the matters to be considered
at such meeting.
(c) Emergency Meetings. An emergency meeting of the Members
may be called by the President, Board of Managers or by any Member
or Members collectively holding more than forty percent (40%) of
the issued and outstanding Units, and shall be held on such date,
at such time, and at such place as may be established by the
President, Board of Managers or the Member(s), as the case may be,
calling the emergency meeting. Forty-eight (48) hours notice of
any emergency meeting shall be given to each Member by overnight
delivery, by facsimile, or by telephone. The purpose or purposes
for which an emergency meeting is called shall be stated in the
notice.
(d) Quorum. Except as set forth in the Act or provided
otherwise in this Agreement, at any meeting of the Members, Members
holding at least a majority of the Units then owned by all Members
permitted to vote shall constitute a quorum for all purposes. If a
quorum fails to attend any meeting, the Members present may adjourn
the meeting to another date, time and place with notice to the
Members given in the same manner as for an emergency meeting of the
Members. Each Member shall have the right to determine for itself
who shall represent it at meetings of the Members.
(e) Voting by Members. Each Member entitled to vote shall be
entitled to vote in proportion to such Member's Percentage Interest
on all matters submitted to the Members. Except as otherwise
provided in this
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Agreement, when a quorum is present at any meeting, the vote of
Members present and holding a majority of the Units owned by all of
the Members present at such meeting and permitted to vote on such
matters shall be at the act of the Members.
(f) Waiver of Notice. Whenever notice is required to be given
to a Member, (i) a waiver in writing signed by a Member, whether
before or after the time stated in the notice, is equivalent to the
giving of notice, and (ii) a Member's attendance at a meeting (a)
waives objection to lack of notice or defective notice of the
meeting, unless such Member at the beginning of the meeting objects
to holding, or transacting business at, the meeting, and (b) waives
objection to consideration of a particular matter at a meeting that
is not within the purpose or purposes described in the meeting
notice, if any, unless such Member objects to considering the
matter when it is presented.
(g) Participation by Conference Telephone. The Members may
participate in a meeting by means of conference telephone or other
similar communications equipment that enables all of the Members
participating in the meeting to hear each other. Such
participation constitutes presence in person by such Member at the
meeting.
(h) Written Consents. Any action required or permitted to be
taken at any meeting of the Members may be taken without a meeting
if Members owning a majority of the Units owned by all Members
entitled to vote, consent to such action in writing, and the
writing or writings are filed with the minutes of the proceedings
of the Members. Any consent of the Members may be executed in
counterparts. Each counterpart shall constitute an original, and
all of the counterparts together shall constitute a single consent
of the Members.
5.2.4 Compensation. In the discretion of the Members permitted to
vote, Members authorized by vote or resolution to undertake specific
actions, projects or tasks for the Company may be paid such fees for such
services and be reimbursed for such Member's reasonable expenses incurred
in the performance of such duties as the Members from time to time may
determine. Nothing contained in this Section 5.2.4 shall be construed to
preclude any Member from serving as an officer of the Company or in any
other capacity in receiving reasonable compensation therefor.
5.2.5 Representatives. Each Member may designate one or more
individuals to act as its representative (a "Representative").
Representatives need not be residence of the State of Delaware. Any
Representative may be removed, with or without cause, only by the Member
which designated such Representative. Members that are affiliated may
designate the same individual to act as Representative for each of them,
but each such Member shall have the independent right to revoke such
designation and appoint a new Representative.
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5.2.6 Restrictions on Powers. No individual Member shall have the
power or the authority to act on behalf of or to bind the Company or any
other Member.
5.3 Officers; Agents.
5.3.1 Power to Appoint. In accordance with Section 5.1, the Board
of Managers by vote or resolution of the Board of Managers shall have the
power to appoint officers to act for the Company with such titles, if
any, as the Board of Managers deems appropriate and to delegate to such
officers or agents such of the powers as are granted to the Board of
Managers hereunder, including the power to execute documents on behalf of
the Company, as the Board of Managers may in its sole discretion
determine; provided, however, that all such officers shall at all times
be subject to the supervision and control of the Board of Managers. The
officers or agents so appointed may include persons holding titles such
as Chief Executive Officer, President, Executive Vice President, Vice
President, Chief Operating Officer, Chief Financial Officer, Secretary,
Treasurer or Controller. Unless the authority of the officer in question
is limited in the document appointing such officer or is otherwise
specified by the Board of Managers, any officer so appointed shall have
the same authority to act for the Company as a corresponding officer of a
Delaware corporation would have to act for a Delaware corporation in the
absence of a specific delegation of authority and as more specifically
set forth in Exhibit C hereto; provided, however, that unless such power
is specifically delegated to the officer in question either for a
specific transaction or generally, no such officer shall have the power
to lease or acquire real property, to borrow money, to issue notes,
debentures, securities, equity or other interests of or in the Company,
to make investments in (other than the investment of surplus cash in the
ordinary course of business) or to acquire securities of any Person, to
vote any securities owned by the Company, to give guarantees or
indemnities, to merge, liquidate or dissolve the Company, to cause the
Company to lose its status as a partnership for income tax purposes or to
sell or lease all or any substantial portion of the assets of the
Company. The Board of Managers, in their sole discretion, may by vote or
resolution of the Board of Managers ratify any act previously taken by an
officer or agent acting on behalf of the Company.
5.3.2 Officers. The officers of the Company shall be Xxxxxx X.
Xxxxx, President, Xxxxxx X. Xxxxxxxxxx, Vice President, Treasurer,
Assistant Secretary and Controller, Xxxxx X. Xxxxxx, Secretary and
Xxxxxxx X. Xxxxxxxxx, Vice President, which officers shall be deemed to
have delegated to them the power to take such actions from time to time
on behalf of the Company as are necessary and appropriate, subject, in
all events to the supervision of the Board of Managers. Each of such
officers shall serve in their respective capacities at the pleasure of
the Board of Managers and may be terminated by the Board of Managers at
any time.
5.3.3 Management Option Plan Committee. Subject to further action
by the Board of Managers, the compensation committee of the board of
directors of
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PSF, as such committee is constituted from time to time, is
appointed as the "Committee" under the Management Option Plan, and shall
have all of the powers and duties provided under the Management Option
Plan for such Committee, subject, in all events to the supervision of the
Board of Managers.
ARTICLE 6
BOOKS, RECORDS, ACCOUNTING, AND REPORTS
6.1 Books and Records. The Company shall maintain or cause to be
maintained all of the following:
6.1.1 A current list of the full name and last known
business or residence address of each Member, together with
information regarding the amount of cash and the agreed value
of any other property or services contributed by each Member
and which each Member has agreed to contribute in the future,
and the date on which each Member became a Member of the
Company;
6.1.2 A copy of the Certificate and this Agreement
(including Exhibit B reflecting the record holders of the
Interests, from time to time), including any and all
amendments to either thereof, together with executed copies of
any powers of attorney pursuant to which the Certificate, this
Agreement, or any amendments have been executed;
6.1.3 Copies of the Company's federal, state, and
local income tax or information returns and reports, if any,
for the six most recent taxable years;
6.1.4 The audited financial statements of the Company
for the six most recent Fiscal Years; and
6.1.5 The Company's books and records for at least the
current and past six Fiscal Years.
6.2 Delivery to Member; Inspection; etc. Upon the request of any
Member, for any purpose reasonably related to such Member's interest as a
member of the Company, but subject to such reasonable standards (including
standards governing what information and documents are to be furnished at what
time and location and at what expense) as the Members may from time to time
establish, including such standards established for the request in question,
the Board of Managers shall cause to be made available to the requesting Member
the information required to be maintained by Sections 6.1.1 through 6.1.4 and
such other information regarding the business and affairs of the
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Company as is just and reasonable; provided that any Member shall be entitled,
upon request, to receive a copy of this Agreement, including Exhibit B, as then
in effect and reflecting the Interests (including the Percentage Interests and
Units held by Members on such date), certified by the Board of Managers, the
Secretary, or any other officer of the Company authorized by the Board of
Managers, as true and correct as of such date.
6.3 Financial Statements. The Board of Managers shall cause books of
account to be maintained reflecting the operations of the Company and shall
cause to be prepared for and furnished to the Members at least quarterly, at
the Company's expense and no later than forty five days after the end of the
first three Fiscal Quarters, consolidated financial statements of the Company
and its subsidiaries prepared in accordance with generally accepted accounting
principles and, once each year, no later than ninety days following the end of
the Company's Fiscal Year, consolidated financial statements prepared on an
annual basis accompanied by a report thereon containing the opinion of an
accounting firm chosen by the Board of Managers.
6.4 Filings. At the Company's expense the Board of Managers shall
cause the income tax returns for the Company to be prepared and timely filed
with the appropriate authorities and to have prepared and to furnish to each
Member such information with respect to the Company as is necessary to enable
the Members to prepare their federal, state and local income tax returns. The
Company shall prepare and furnish Form K-1s to the members no later than
seventy-five days following the end of its Fiscal Year. The Board of Managers,
at the Company's expense, shall also cause to be prepared and timely filed,
with appropriate federal, state and local regulatory and administrative bodies,
all reports required to be filed by the Company with those entities under then
current applicable laws, rules, and regulations. The reports shall be prepared
on the accounting or reporting basis required by the regulatory bodies.
6.5 Non-Disclosure. Each Member agrees that, except as otherwise
consented to by the Members, all non-public information furnished to it
pursuant to this Agreement and identified as such will be kept confidential and
will not be disclosed by such Member, or by any of its directors, trustees,
investment advisers, agents, representatives, or employees, in any manner
whatsoever, in whole or in part, except that (i) each Member shall be permitted
to disclose such information to those of its directors, trustees, investment
advisers, agents, representatives, and employees who need to be familiar with
such information in connection with such Member's investment in the Company, so
long as such directors, trustees, investment advisers, agents, representatives
and employees agree to keep such information confidential on the terms set
forth herein, (ii) each Member shall be permitted to disclose such information
to its partners and stockholders so long as they agree to keep such information
confidential on the terms set forth herein, (iii) each Member shall be
permitted to disclose information to the extent required by law (including,
without limitation, by governmental and quasi-governmental regulators), and
(iv) each Member shall be permitted to disclose information to the extent
necessary for the enforcement of any right of such Member arising under this
Agreement.
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6.6 Record holders of Interests. Except as may be otherwise required
by law or by this Agreement, and subject to Article 9 hereof, the Company shall
be entitled to treat the record holders of the Interests as the Members
hereunder.
ARTICLE 7
DISTRIBUTIONS AND ALLOCATIONS OF PROFIT AND LOSS
7.1 Board of Managers' Determination. The Board of Managers shall
have the sole authority to determine the timing and the aggregate amount of any
Distributions to Members; provided, however, to the extent the Company has
available cash resources, the Company shall make a Tax Distribution to the
Members entitled thereto in cash unless such Tax Distribution would violate a
covenant of the Company.
7.2 Distributions. Subject to Section 7.1, Distributions from the
Company to its Members shall be made as follows:
7.2.1 First, the Company shall distribute to the Members as a Tax
Distribution on or before April 1 of each Fiscal Year an amount equal to
the Members' Estimated Tax Liability. For purposes of this paragraph,
the "Members' Estimated Tax Liability" means the product of (i) the
Taxable Income from Operations of the Company times (ii) the Tax
Distribution Rate for the immediately preceding Fiscal Year, all as
reasonably determined by the Board of Managers. Any Tax Distribution for
a Fiscal Year shall be distributed among the Members pro rata in
accordance with their respective Percentage Interests.
7.2.2 Second, to all Members pro rata in accordance with their
respective Percentage Interests.
Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not make a Distribution to any Member on account of its interest
in the Company if such Distribution would violate Section 18-607 of the Act or
other applicable law.
7.3 Accounting for Partnership Profit and Loss.
7.3.1 Capital Accounts. A separate account (each a "Capital
Account") shall be established and maintained for each Member which
shall reflect (a) the amount of cash and the fair market value of any
other property contributed by such Member to the Company as a Capital
Contribution, (b) any adjustment required pursuant to Section 7.3.8 and
(c) such Member's share of the Net Profit of the Company and shall be
charged with (d) the amount of cash and the fair market value of any
other property distributed to such Member and (e) such Member's share
of the Net Losses of the Company.
7.3.2 Allocation of Net Profit and Net Loss, etc. -- General Rule.
Except as provided in Section 7.3.3, the Net Profit and Net Loss of the
Company shall be allocated
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among the Members for tax purposes pro rata in accordance
with their respective Percentage Interests.
7.3.3 Special Allocations and Capital Account Adjustments.
(a) Adjustments for Contributions. In the event there is a
difference between the Book Value at which any property is accepted as a
contribution to the capital of the Company and the adjusted tax basis of
such property or adjustments are made to the Book Value of the Assets and
Capital Accounts pursuant to Section 7.3.8, the income, gain, loss and
deductions attributable to such differences shall solely for federal
income tax purposes, be specially allocated as and to the extent required
by section 704 of the Code and any applicable Treasury Regulations.
(b) Certain Nondeductible Expenses. Each Member's Capital Account
shall be charged for such Member's allocable share (based on such
Member's Percentage Interest) of allocable expenditures of the Company
described in section 705(a)(2)(B) of the Code (relating to expenditures
which are neither deductible nor properly chargeable to capital) and
expenditures which, pursuant to the Regulations under section 704(b) of
the Code, are characterized as section 705(a)(2)(B) expenditures.
(c) Certain Elections. In the event that the Company makes an
election under section 754 of the Code, the amounts of any adjustments to
the bases of the assets of the Company made pursuant to section 743 of
the Code shall not be reflected in the Capital Accounts of the Members,
but the amounts of any adjustments to the bases of the assets of the
Company made pursuant to section 734 of the Code as a result of the
distribution of property by the Company to a Member shall be reflected in
the Capital Accounts of the Members in the manner provided by the
Regulations under section 704(b).
(d) Qualified Income Offset, Etc. There is hereby included in this
Agreement such provisions governing the allocation of taxable income and
loss (prior to making the remaining federal income tax allocations in
conformity with Section 7.3.2 hereof) (and items thereof) as may be
necessary to provide that the Company contains a so-called "Qualified
Income Offset" and complies with all provisions relating to the
allocation of so-called "Non-recourse Deductions" and "Partner
Non-recourse Deductions" and the chargeback thereof as are required to
comply with the Treasury Regulations under section 704 of the Code,
provided, however, the incorporation of such provisions and any
appropriate curative allocations necessary to effect compliance with the
aforesaid Code provisions shall affect only the computation of taxable
net income and loss and the allocation thereof as between Members and
shall not otherwise affect the amount or timing of any distribution of
cash or property to any Member provided for in this Agreement.
(e) Interim Closing of Company Books. Upon the admission of any
Person acquiring more than a de minimis Percentage Interest on other than
the first day of the Company's fiscal year, there shall be an interim
closing of the books of the
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Company and the Net Profit or Net Loss of the Company (and any items of
income, gain, deduction or loss required to be specially allocated
pursuant to this Section 7.3.3) arising prior to such interim closing
shall be allocated exclusively to Persons who were Members prior to such
date. The Members acknowledge and agree that no Tax Distribution shall
be payable with respect to that portion of the Company's fiscal year (and
the fiscal year of its predecessor limited partnership) that precedes the
date of this Agreement.
7.3.4 Interpretation. It is the intent of the Members that the
provisions hereof relating to each Member's distributive share of income,
gain, loss, deductions, or credits (or item thereof) shall comply with
the provisions of sections 704(b) and section 704(c) of the Code and the
applicable Treasury Regulations. In furtherance of the foregoing, the
Members agree to resolve any ambiguity in the provisions of this
Agreement in a manner that will preserve, protect and further the
intention of the Members to cause this Agreement to comply with the
aforesaid Code provisions for federal income tax purposes.
Notwithstanding the foregoing, no Member shall have the right to require
or compel any distribution of cash or property not authorized or provided
for by the provisions of this Agreement or withhold any distribution of
cash or property provided for by the provisions of this Agreement on the
ground that such action is necessary to cause the provisions hereof to
conform to the provisions of the Treasury Regulations.
7.3.5 Withholdings. The Board of Managers is authorized to withhold
from Distributions, or with respect to allocations, to the Members and to
pay over to the appropriate federal, state, local or foreign government
any amounts required to be so withheld. The Board of Managers shall
allocate any such amounts to the Members in respect of whose Distribution
or allocation the tax was withheld and shall treat such amounts as
actually distributed to such Members.
7.3.6 Changes in Members' Interest. If during any Fiscal Year of
the Company there is a change in any Member's Interest in the Company,
the Net Profit or Net Loss shall be allocated to the Members so as to
take into account the varying Interests of the Members in the Company in
a manner that complies with the provisions of section 706 of the Code and
the Regulations thereunder.
7.3.7 Property Distributions and Installment Sales. If any assets
of the Company shall be distributed in kind pursuant to this Article 7,
such assets shall be distributed to the Members entitled thereto in the
same proportion as the Members would have been entitled to cash
distributions. The amount by which the fair market value of any property
to be distributed in kind to the Members exceeds or is less than the book
values of such property shall, to the extent not otherwise recognized by
the Company, be taken into account in determining Net Profit and Net Loss
and determining the Capital Accounts of the Members as if such property
had been sold at its fair market value. If any assets are sold in
transactions in which, by reason of the provisions of section 453 of the
Code or any successor thereto, gain is realized but not recognized, such
gain shall be taken into account when realized in computing gain
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or loss of the Company for purposes of allocation of Net Profit or Net
Loss under this Article 7, and, if such sales shall involve substantially
all the assets of the Company, the Company shall be deemed to have been
dissolved and terminated to the extent required by the Treasury
Regulations under section 704(b) of the Code notwithstanding any election
by the Members to continue the Company for purposes of collecting the
proceeds of such sales.
7.3.8 Adjustments to Capital Accounts. Unless the Board of Managers
shall determine otherwise, the Book Values of all the Company's assets
shall be adjusted to equal their respective gross fair market values, as
determined by the Board of Managers (and the Capital Accounts of the
Members shall be adjusted accordingly), as of the following times: (a)
the acquisition of an additional Interest from the Company by any new or
existing Member, in exchange for more than a de minimis additional
Capital Contribution (b) the distribution by the Company to a Member of
more than a de minimis amount of assets of the Company as consideration
for an Interest; and (c) the liquidation of the Company; provided,
however, that adjustments pursuant to clauses (a) and (b) above shall be
made only if the Board of Managers reasonably determines that such
adjustments are necessary or appropriate to reflect the relative economic
interests of the Members in the Company.
ARTICLE 8
TAX MATTERS MEMBER
------------------
8.1 Tax Matters Member. The Board of Managers shall, in a timely
fashion after the date hereof, and at any time thereafter when, because of the
withdrawal of such designated Member or otherwise, there is no Tax Matters
Member, designate a Member as the Tax Matters Member, and such designated
Member shall thereafter be the Tax Matters Member of the Company as provided in
the Regulations under Code section 6231 and analogous provisions of state law.
The Tax Matters Member shall represent the Company, at the Company's expense,
in connection with all examinations of the Company's affairs by tax authorities
including any resulting administrative or judicial proceedings, and shall take
actions as directed by the Company with respect to the tax matters of the
Company.
8.2 Indemnity of Tax Matters Member. The Company shall indemnify and
reimburse the Tax Matters Member for all expenses (including legal and
accounting fees) incurred as Tax Matters Member pursuant to this Article 8 in
connection with any administrative or judicial proceeding with respect to the
tax liability of the Members as long as the Tax Matters Member has determined
in good faith that its course of conduct was in, or not opposed to, the best
interest of the Company. The payment of all such expenses shall be made before
any Distributions are made to the Members. The taking of any action and the
incurring of any expense by the Tax Matters Member in connection with any such
proceeding, except to the extent provided herein or required by law, is a
matter in the sole discretion of the Tax Matters Member and the provisions on
limitations of liability of the Tax Matters Member and indemnification set
forth in Article 13 shall be fully applicable to the Tax Matters Member in his
capacity as such.
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8.3 Information Furnished. To the extent and in the manner provided
by applicable law and Regulations, the Tax Matters Member shall furnish the
name, address, Percentage Interest, and taxpayer identification number of each
Member or any Assignee to the Internal Revenue Service.
8.4 Notice of Proceedings, etc. The Tax Matters Member shall use its
best efforts to keep each Member and Assignee informed of any administrative
and judicial proceedings for the adjustment at the Company level of any item
required to be taken into account by a Member for income tax purposes or any
extension of the period of limitations for making assessments of any tax
against a Member with respect to any Company item, or of any agreement with the
Internal Revenue Service that would result in any material change either in
income or loss as previously reported.
8.5 Notices to Tax Matters Member. Any Member that receives a notice
of an administrative proceeding under Code Section 6233 relating to the Company
shall promptly notify the Tax Matters Member of the treatment of any Company
item on such Member's federal income tax return that is or may be inconsistent
with the treatment of that item on the Company's return. Any Member that
enters into a settlement agreement with the Secretary with respect to any
Company item shall notify the Tax Matters Member of such agreement and its
terms within sixty days after its date.
ARTICLE 9
TRANSFER OF INTERESTS
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9.1 Transfer by Members.
9.1.1 No Member shall sell, assign, pledge, encumber, dispose of
or otherwise transfer (each a "Transfer"), any Units or all or any part
of the economic or other rights that comprise its Interest unless ten
days' prior written notice (or such shorter time period as is agreed to
by the Company) is given to the Company; provided that the ten day period
may be increased to thirty days in the event the Company, in its sole
discretion, advises the Member seeking to Transfer Units that such
Transfer may cause a termination of the Company for tax purposes; and
provided further that no prior written notice need be given in connection
with Transfers by Xxxxxxxx Farm, Inc. or PSF Finance Holdings, Inc. to
their respective stockholders in connection with the dissolution of such
corporations.
9.1.2 No Transfer of all or any part of a Member's Interest may be
made pursuant to Section 9.1 unless and until the Company shall have
received, if requested:
(a) an opinion of responsible counsel (who may be
counsel for the Company or an in-house counsel to a Member),
satisfactory in form and substance to the Company and its
counsel to the effect that such Transfer would not violate the
Securities Act of 1933, as amended, or
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any state securities or blue sky laws applicable to the
Company or the Interest to be transferred; and
(b) the agreement in writing of the Assignee to comply with all
of the terms and provisions of this Agreement.
9.1.3 Each Member hereby severally agrees that:
(a) it will not transfer all or any part of its Interest in the
Company except as permitted by this Agreement; and
(b) in no event shall all or any part of an Interest be
transferred to a minor or an incompetent except in trust or
pursuant to the Uniform Gifts to Minors Act.
9.1.4 A transferee of an Interest shall not be admitted as a
Member of the Company, but shall remain an Assignee with respect to the
Interest transferred unless admitted as a Member pursuant to Article 10.
Unless a transferee is admitted as a Member of the Company pursuant to
Article 10, the Transfer of all of a Member's interest in the profits,
losses and capital of the Company shall not cause such Member to cease to
be a Member of the Company.
9.1.5 Any Transfer in contravention of any of the provisions of
this Article 9 shall be void and of no effect, and shall not bind nor be
recognized by the Company.
9.2 Assignee. If the provisions of this Article 9 have been
complied with, an Assignee shall be entitled to receive distributions of cash
or other property, and allocations of Net Profit and Net Loss and of items of
income, deduction, gain, loss, or credit, from the Company attributable to the
Economic Interest assigned to the Assignee from and after the effective date of
the Transfer, and shall have the right to receive a copy of the financial
statements and tax information required herein to be provided to Members, but
an Assignee shall have no other rights of a Member, including without
limitation the right to vote as a Member on matters set forth herein or in the
Act, which rights of a Member shall continue to be held by the Member making
such assignment, unless and until such Assignee is admitted as a Member
pursuant to the provisions of Article 10. The Company and the Board of
Managers shall be entitled to treat the transferor as the absolute owner of the
Economic Interest transferred to the Assignee in all respects, and shall incur
no liability for Distributions, allocations of Net Profit or Net Loss, or
transmittal of reports and notices required to be given to Members that are
made in good faith to the transferor until the effective date of the Transfer.
The effective date of Transfer shall be the first day of the calendar month
following the month in which the Board of Managers has received an executed
instrument of assignment in compliance with this Article 9 or the first day of
a later month if specified in the executed instrument of Transfer but under no
circumstances prior to the day following the expiration of the notice period
required by Section 9.1.1, provided, however, that the Board of Managers shall
have the right to establish a different effective date, as the Board of
Managers deems to be in the best interests of the Company. As
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between the Company and the Assignee, the Assignee shall be deemed an Assignee
on the effective date of the Transfer. Each Assignee will succeed to
the same portion of the balance of the Capital Account of the transferor, as of
the effective date of Transfer as the Economic Interest which was transferred
bears to the entire Interest of the transferor. For purposes of Article 7 and
Section 9.1, the Economic Interest of any Assignee shall be treated as if such
Interest were held by a Member.
9.3 Restrictions on Foreign Ownership of Units
(a) No Person whose ownership of Units would cause the Company to become
a Foreign Business shall at any time acquire or own, beneficially or of record,
any Units. Without limiting the foregoing, and as a protective measure
intended to ensure that the Company does not become a Foreign Business, no
Person who is an Alien or a Foreign Business shall at any time directly or
indirectly acquire or own in the aggregate more than 5% of the outstanding
Units of the Company without the prior written approval by the Company.
(b) If any Person acquires or owns Units of the Company in violation of
Section 9.3(a), such Person shall forthwith dispose of such number of Units as
will reduce its ownership of Units to 5% or less of the outstanding Units or
such lesser percentage as is required for the Company not to be a Foreign
Business. Such disposition shall be consummated within thirty days (or such
earlier date as the Company determines) of the date that the Company notifies
such Person that it is in violation of Section 9.3(a). If such Units are not
disposed of within such period, (i) the Company shall not be required or
permitted to pay any distribution with respect to such Units held by such
Person and (ii) such Person shall not be entitled to vote on any matter, or
otherwise participate in the management of the Company, with respect to any
Units owned by it. In addition, the Company may, at any time and in its sole
discretion, redeem such Units at their Fair Value. The redemption price for
such Units may be paid in cash, property or rights, including securities of the
Company or other Person.
(c) No Transfer of all or any part of a Member's Interest may be made to
Xxxxxx Xxxxxxx Group, Inc., or any successor thereto, or an Affiliate of Xxxxxx
Xxxxxxx Group Inc. (other than Premium Holdings Corp.) if the Company, within
ten days following receipt of the written notice delivered under Section 9.1.1,
notifies the Member (with a copy to the other party to the proposed Transfer if
such address is known by the Company) in writing that the acquisition of Units
would cause the Company to become a Foreign Business.
9.4 Other Restrictions on Transfer. No Transfer of all or any part
of a Member's Interest may be made to the Xxxxxx Xxxxxxx Group Inc., or any
successor thereto, or an Affiliate of Xxxxxx Xxxxxxx Group Inc. (other than
Premium Holdings Corp.) if the number of Class A Units held by any Member
(other than Members advised by Xxxxxx Investment Management, Inc., Xxxxxx
Advisory Company, Inc., and Xxxxxx Fiduciary Trust Company) and its Affiliates
as of September 17, 1996 would equal or exceed 25% of the Class A Units issued
and outstanding following such Transfer. The Company shall within
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ten days following receipt of the written notice delivered under Section 9.1.1
notify in writing the Member who provides the notice (with a copy to the other
party to the proposed Transfer if such address is known by the Company) if the
proposed Transfer would cause a violation of this Section 9.4.
ARTICLE 10
ADMISSION AS MEMBER
-------------------
10.1 Requirements. An Assignee shall not be admitted to the Company
as a Member unless all of the following conditions are first satisfied:
(a) A duly executed and acknowledged written
instrument of Transfer is filed with the Company, specifying
the Interests being transferred and setting forth the
intention of the Member effecting the Transfer that the
Assignee succeed to a portion or all of such Member's Interest
as a Member;
(b) If requested by the Company, the Assignee
delivers to the Company an opinion of counsel, in form and
substance reasonably satisfactory to the Company, to the
effect provided in clause (a) of Section 9.1.2 with respect to
the admission of the Assignee as a Member;
(c) The Member effecting the Transfer and Assignee
execute and acknowledge any other instruments that the Company
reasonably deems necessary or desirable for admission of the
Assignee, including the written acceptance and adoption by the
Assignee of the provisions of this Agreement and execution,
acknowledgment, and delivery to the Company of a special power
of attorney as provided in Section 16.4;
(d) The Member effecting the Transfer or the Assignee
pays to the Company a transfer fee sufficient to cover all
reasonable expenses connected with the admission; and
(e) Article 9 of this Agreement has been complied
with.
10.2 Consent. Each Member hereby agrees that upon satisfaction of
the terms and conditions of this Article 10 with respect to an Assignee, such
Assignee shall be admitted as a Member.
10.3 No Dissolution. If a Member transfers all of its interest in
the profits, losses and capital of the Company and the Assignee of such
interest is admitted as a Member pursuant to Article 10, such Assignee shall be
admitted to the Company as a Member effective on the effective date of the
Transfer or such other date as may be specified when the Member is admitted,
and, immediately following such admission, the transferor Member shall cease to
be a Member of the Company.
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10.4 Admission upon exercise of Warrants and Options
A holder of warrants or options for Units of the Company, upon exercise of
such warrants or options in accordance with the terms thereof and issuance of
Units, shall be admitted to the Company as a Member upon written acceptance and
adoption by such holder of the provisions of this Agreement and execution,
acknowledgment and delivery of a special power of attorney as provided in
Section 16.4. Each Member hereby agrees that upon satisfaction of the terms
and conditions of this Section 10.4 with respect to a holder of a warrant or
options for Units, such holder, upon issuance of Units, shall be admitted as a
Member.
ARTICLE 11
LIMITATIONS ON RIGHTS AND POWERS OF THE MEMBERS; AMENDMENTS
-----------------------------------------------------------
11.1 Specific Limitations. No Member shall have the right or power
to: (a) withdraw or reduce its Capital Contribution except as a result of the
dissolution of the Company or as otherwise provided by law or in this
Agreement, (b) make voluntary Capital Contributions or to contribute any
property to the Company other than cash, (c) bring an action for partition
against the Company or any Company assets, (d) cause the termination and
dissolution of the Company, except as set forth in this Agreement, or (e) upon
the distribution of its Capital Contribution require that property other than
cash be distributed in return for its Capital Contribution. Each Member hereby
irrevocably waives any and all rights that it may have to maintain an action
for partition of any of the Company's property. Except as otherwise set forth
in this Agreement, no Member shall have priority over any other Member either
as to the return of its Capital Contribution or as to Net Profit, Net Loss, or
Distributions. Other than upon the termination and dissolution of the Company
as provided by this Agreement, there has been no time agreed upon when the
Capital Contribution of any Member will be returned.
11.2 Amendments to Agreement.
11.2.1 This Agreement may be modified or amended, but only with
the prior written consent of the Required Members; provided, however,
that this Agreement may not be amended without the approval of any Member
being affected thereby if (i) the amendment does not treat all Members
equally based on their pro rata interests, (ii) the amendment would
reduce the allocation to any Member of any Net Profit, Net Loss, or
distribution of cash or property from that which is provided or
contemplated herein, (iii) the amendment would alter Section 5.2.2
without the consent of Xxxxxx Xxxxxxx Group Inc., or any successor
thereto, or (iv) the amendment would alter the provisions of this Section
11.2.1.
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11.2.2 The Board of Managers shall cause to be prepared and filed
any amendment to the Certificate that may be required to be filed under
the Act as a consequence of any amendment to this Agreement.
11.2.3 Any modification or amendment to this Agreement pursuant to
this Section 11.2 shall be binding on all Members.
ARTICLE 12
DISSOLUTION OF COMPANY
----------------------
12.1 Termination of Membership. No Member shall resign from the
Company except that, subject to the restrictions set forth in Articles 9 and 10
hereof, any Member may transfer its Interest in the Company to an Assignee and
an Assignee may become a Member in place of the Member which assigned its
Interest.
12.2 Events of Dissolution or Liquidation. The Company shall be
dissolved upon the happening of any of the following events: (a) December 31,
2046 unless such date is extended pursuant to Section 2.4, (b) the written
determination of the Members, (c) the death, retirement, resignation, insanity,
expulsion, bankruptcy or dissolution of the Class A Members, unless there are
at least two remaining Members and the business of the Company is continued by
the consent of remaining Members owning a majority of the Units owned by the
Remaining Members within 90 days following the occurrence of any such event, or
(d) the entry of a decree of judicial dissolution under Section 18-802 of the
Act.
12.3 Liquidation. Upon dissolution of the Company for any reason
unless the Company is continued pursuant to Section 12.2(c) hereof, the Company
shall immediately commence to wind up its affairs. A reasonable period of time
shall be allowed for the orderly termination of the Company's business,
discharge of its liabilities, and distribution or liquidation of the remaining
assets so as to enable the Company to minimize the normal losses attendant to
the liquidation process. The Company's property and assets or the proceeds
from the liquidation thereof shall be distributed so as not to contravene the
Act but in compliance with Section 12.4; provided, however, that Distributions
to Members shall be made after their Capital Accounts have been adjusted to
reflect all Net Profits and Net Losses of the Company through the date of
distribution. A full accounting of the assets and liabilities of the Company
shall be taken and a statement thereof shall be furnished to each Member within
thirty days after the distribution of all of the assets of the Company. Such
accounting and statements shall be prepared under the direction of the Board of
Managers. Upon such final accounting, the Company shall terminate and an
authorized person, appointed pursuant to Section 2.7, shall cancel the
Certificate in accordance with the Act.
12.4 Distributions to Members. All Distributions to Members
pursuant to Section 12.3 shall be made in accordance with the provisions of
Section 7.2.2.
12.5 No Action for Dissolution. The Members acknowledge that
irreparable damage would be done to the goodwill and reputation of the Company
if any
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Member should bring an action in court to dissolve the Company under
circumstances where dissolution is not required by Section 12.2. Accordingly,
except where the Board of Managers has failed to liquidate the Company as
required by Section 12.2 and except as specifically provided in Section
18-802(a) of the Act, each Member hereby waives and renounces its right to
initiate legal action to seek dissolution or to seek the appointment of a
receiver or trustee to liquidate the Company.
12.6 No Further Claim. Upon dissolution, each Member shall look
solely to the assets of the Company for the return of its capital, and if the
Company's property remaining after payment or discharge of the debts and
liabilities of the Company, including debts and liabilities owed to one or more
of the Members, is insufficient to return the aggregate Capital Contributions
of each Member, such Members shall have no recourse against the Company, the
Board of Managers, the Members or any other Member.
ARTICLE 13
INDEMNIFICATION
---------------
13.1 General. The Company shall indemnify, defend, and hold harmless
the Managers, the Members, including the Tax Matters Member, and each such
Person's officers, directors, trustees, partners, investment advisors, members,
shareholders, employees, and agents, and the employees, officers, and agents of
the Company, (all indemnified persons being referred to as "Indemnified
Persons" for purposes of this Article 13), from any liability, loss, or damage
incurred by the Indemnified Person by reason of any act performed or omitted to
be performed by the Indemnified Person in connection with the business of the
Company and from liabilities or obligations of the Company imposed on such
Person by virtue of such Person's position with the Company, including
reasonable attorneys' fees and costs and any amounts expended in the settlement
of any such claims of liability, loss, or damage; provided, however, that, if
the liability, loss, damage, or claim arises out of any action or inaction of
an Indemnified Person, indemnification under this Section 13.1 shall be
available only if (a) either (i) the Indemnified Person, at the time of such
action or inaction, determined, in good faith, that its, his or her course of
conduct was in, or not opposed to, the best interests of the Company and was
authorized hereunder, or (ii) in the case of inaction by the Indemnified
Person, the Indemnified Person did not intend its, his or her inaction to be
harmful or opposed to the best interests of the Company, and (b) the action or
inaction was not undertaken (or omitted) in bad faith nor did the action or
inaction constitute fraud or willful misconduct by the Indemnified Person, and
provided, further, that indemnification under this Section 13.1 shall be
recoverable only from the assets of the Company and not from any assets of the
Members. The Company may pay or reimburse attorneys' fees of an Indemnified
Person as incurred, if such Indemnified Person executes an undertaking to repay
the amount so paid or reimbursed if there is a final determination by a court
of competent jurisdiction that such Indemnified Person is not entitled to
indemnification under this Article 13. The Company may pay for insurance
covering liability of the Indemnified Persons for negligence in operation of
the Company's affairs.
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13.2 Exculpation. No Indemnified Person shall be liable, in
damages or otherwise, to the Company or to any Member for any loss that arises
out of any act performed or omitted to be performed by it or him pursuant to
the authority granted by this Agreement if (a) either (i) the Indemnified
Person, at the time of such action or inaction, determined, in good faith, that
such Indemnified Person's course of conduct was in, or not opposed to, the best
interests of the Company, or (ii) in the case of inaction by the Indemnified
Person, the Indemnified Person did not intend such Indemnified Person's
inaction to be harmful or opposed to the best interests of the Company, and (b)
the conduct of the Indemnified Person was not undertaken in bad faith nor did
such conduct constitute fraud or willful misconduct by such Indemnified Person.
In addition to, and not by way of limitation of, the foregoing, no Manager of
the Company shall be liable to the Company or its Members for monetary damages
for breach of fiduciary duty as a Manager, except to the extent that
exculpation from liability is not permitted under the Act as in effect at the
time such liability is determined. No amendment or repeal of this Section 13.2
shall apply to or have any effect on the liability or alleged liability of any
Manager of the Company for or with respect to any acts or omissions of such
Manager occurring prior to such amendment or repeal.
13.3 Persons Entitled to Indemnity. Any Person who is within the
definition of "Indemnified Person" at the time of any action or inaction in
connection with the business of the Company shall be entitled to the benefits
of this Article 13 as an "Indemnified Person" with respect thereto, regardless
whether such Person continues to be within the definition of "Indemnified
Person" at the time of such Indemnified Person's claim for indemnification or
exculpation hereunder.
13.4 Procedure Agreements. The Company may enter into an agreement
with any of its officers, employees and agents, Managers or Members, setting
forth procedures consistent with applicable law for implementing the
indemnities provided in this Article 13.
13.5 Fiduciary and Other Duties.
13.5.1 An Indemnified Person acting under this Agreement shall not
be liable to the Company or to any other Indemnified Person for its good
faith reliance on the provisions of this Agreement. The provisions of
this Agreement, to the extent that they restrict the duties (including
fiduciary duties) and liabilities of an Indemnified Person otherwise
existing at law or in equity, are agreed by the parties hereto to replace
such other duties and liabilities of such Indemnified Person.
13.5.2 Whenever in this Agreement an Indemnified Person is
permitted or required to make a decision (a) in its "discretion" or under
a grant of similar authority or latitude, the Indemnified Person shall be
entitled to consider only such interests and factors as it desires,
including its own interests, and shall have no duty or obligation to give
any consideration to any interest of or factors affecting the Company or
any other Person, or (b) in its "good faith" or "reasonable judgment" or
under another express standard, the Indemnified Person shall act under
such express standard and
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shall not be subject to any other or different standard imposed by this
Agreement or other applicable law.
ARTICLE 14
RIGHT TO CONVERT TO CORPORATE FORM
----------------------------------
The Board of Managers, with the approval of the Required Members, may
elect at any time to require that the Company be converted into a corporation,
which conversion may be effected by merger or by such other form of transaction
as may be available under applicable law. In such conversion, the Interests of
the Members (determined as though such Interests included Distributions to
which the Members would then be entitled under Section 7.2 if the Company were
liquidated at the value of the Company determined in connection with such
conversion), option holders and warrant holders of the Company shall be the
basis for the allocation of shares, options or warrants in the corporation. In
connection with a conversion to a corporation, MS Members shall, upon the
election of such MS Members, be allocated non-voting shares, options, or
warrants, as applicable, convertible upon transfer to a transferee at the
election of such transferee to voting shares of the class received by other
Members; provided that the MS Members shall not be allocated voting shares,
options, or warrants, as applicable, if in so doing, compliance with the
Investment Company Act of 1940 would become materially more burdensome to such
MS Members. Such non-voting shares, options or warrants, as applicable, shall
otherwise be identical and shall entitle the MS Members to the same rights and
privileges as those shares, options or warrants allocated to the non-MS Members
in any such conversion to a corporation. Upon such an election, to convert to a
corporation, the Members, option holders and warrant holders shall as soon as
practicable thereafter execute, acknowledge, and deliver, or cause to be
executed, acknowledged, and delivered, all instruments and documents that may
be reasonably requested by the Members to best effectuate the conversion of the
Company to a corporation while continuing in full force and effect, to the
extent consistent with such conversion, the terms, provisions, and conditions
of this Agreement and the rights of Persons holding options or warrants to
acquire Interests in the Company.
ARTICLE 15
LIMITED LIABILITY
-----------------
Except as otherwise provided by the Act, the debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and no
Indemnified Person shall be obligated personally for any such debt, obligation
or liability of the Company solely by reason of being an Indemnified Person.
All persons dealing with the Company shall look solely to the assets of the
Company for the payment of the debts, obligations or liabilities of the
Company.
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ARTICLE 16
MISCELLANEOUS
-------------
16.1 Additional Documents. At any time and from time to time after
the date of this Agreement, upon the request of the Board of Managers, each
Member shall do and perform, or cause to be done and performed, all such
additional acts and deeds, and shall execute, acknowledge, and deliver, or
cause to be executed, acknowledged, and delivered, all such additional
instruments and documents, as may be reasonably required to effectuate the
purposes and intent of this Agreement.
16.2 General. This Agreement: (i) shall be binding upon the
executors, administrators, estates, heirs, and legal successors of the Members;
(ii) shall be governed by and construed in accordance with the laws of the
State of Delaware; (iii) may be executed in more than one counterpart as of the
day and year first above written; and (iv) contains the entire contract among
the Members as to the subject matter hereof. The waiver of any of the
provisions, terms, or conditions contained in this Agreement shall not be
considered as a waiver of any of the other provisions, terms, or conditions
hereof.
16.3 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or receipt (which may be evidenced by a return receipt
if sent by registered mail or by signature if delivered by courier or delivery
service), addressed (a) if to any Member, at the address of such Member set
forth in the records of the Company or at such other address as such Member
shall have furnished to the Company in writing as the address to which notices
are to be sent hereunder, (b) if to the Board of Managers at 000 Xxxx 0xx
Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, or at such other address as the
Board of Managers shall have furnished to the Members in writing as the address
to which notices are to be sent hereunder, and (c) if to the Company at 000
Xxxx 0xx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, or at such other
address as the Company shall have furnished to the Members in writing as the
address to which notices are to be sent hereunder.
16.4 Execution of Papers. The Members agree to execute such
instruments, documents, and papers as the Board of Managers deems necessary or
appropriate to carry out the intent of this Agreement. Each Member, including
each new and substituted Member, by the execution of this Agreement or by
agreeing in writing to be bound by the provisions of this Agreement,
irrevocably constitutes and appoints the Board of Managers or any Person
designated by the Board of Managers to act on their behalf for purposes of this
Section 16.4 its true and lawful attorney-in-fact with full power and authority
in its name, place, and stead to execute, acknowledge, deliver, swear to, file,
and record at the appropriate public offices such documents as may be necessary
or appropriate to carry out the provisions of this Agreement, including but not
limited to:
(a) all certificates and other instruments (specifically including
counterparts of this Agreement), and any amendment thereof,
that the Board of Managers deems appropriate to qualify or
continue the Company as a
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limited liability company in any jurisdiction in which the
Company may conduct business or in which such qualification or
continuation is, in the opinion of the Board of Managers,
necessary to protect the limited liability of the Members;
(b) all amendments to this Agreement adopted in
accordance with the terms hereof and all instruments that the
Board of Managers deems appropriate to reflect a change or
modification of the Company in accordance with the terms of
this Agreement; and
(c) all conveyances and other instruments that the
Board of Managers deems appropriate to reflect the dissolution
of the Company, in accordance with the terms of this
Agreement.
The appointment by each Member of the Board of Managers as its
attorney-in-fact shall be deemed to be a power coupled with an interest, in
recognition of the fact that each of the Members under this Agreement will be
relying upon the power of the Board of Managers to act as contemplated by this
Agreement in any filing and other action by him or her on behalf of the
Company, and shall survive the bankruptcy, dissolution, death, adjudication of
incompetence or insanity of any Member giving such power and the transfer or
assignment of all or any part of such Member's Interests; provided, however,
that in the event of a Transfer by a Member of all of its Interest, the power
of attorney given by the transferor shall survive such assignment only until
such time as the Assignee shall have been admitted to the Company as a
substituted Member and all required documents and instruments shall have been
duly executed, filed, and recorded to effect such substitution.
16.5 Disputed Matters. Except as otherwise provided in this
Agreement, any controversy or dispute arising out of this Agreement, the
interpretation of any of the provisions hereof, or the action or inaction of
the Board of Managers or any Manager or Member hereunder shall be submitted to
arbitration in Wilmington, Delaware before the American Arbitration Association
under the commercial arbitration rules then obtaining of said Association. Any
award or decision obtained from any such arbitration proceeding shall be final
and binding on the parties, and judgment upon any award thus obtained may be
entered in any court having jurisdiction thereof. To the fullest extent
permitted by law, no action at law or in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by any
Member except (a) an action to compel arbitration pursuant to this Section 16.5
or (b) an action to enforce an award obtained in an arbitration proceeding in
accordance with this Section 16.5.
16.6 Gender and Number. Whenever required by the context, as used in
this Agreement the singular number shall include the plural, the plural shall
include the singular, and all words herein in any gender shall be deemed to
include the masculine, feminine and neuter genders.
16.7 Severability. If any provision of this Agreement is determined
by a court to be invalid or unenforceable, that determination shall not affect
the other provisions hereof, each of which shall be construed and enforced as
if the invalid or unenforceable portion were not contained herein. That
invalidity or unenforceability shall not affect any
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valid and enforceable application thereof, and each said provision shall be
deemed to be effective, operative, made, entered into or taken in the manner
and to the full extent permitted by law.
16.8 Massachusetts Business Trust Legend. A copy of the Agreement
and Declaration of Trust of certain Members that are Massachusetts business
trusts is on file with the Secretary of State of The Commonwealth of
Massachusetts and notice is hereby given that this Agreement is executed on
behalf of the trustees of such Trusts as trustees and not individually, and
that the obligations of or arising out of this Agreement are not binding upon
any of the trustees or the shareholders of such Trusts individually but are
binding only upon the assets and property of such trusts, or separate series
thereof.
16.9 Headings. The headings used in this Agreement are used for
administrative convenience only and do not constitute substantive matter to be
considered in construing the terms of this Agreement.
16.10 No Third Party Rights. The provisions of this Agreement are
for the benefit of the Company, the Board of Managers, the Members, Indemnified
Persons, and no other Person, including creditors of the Company shall have any
right or claim against the Company, the Board of Managers or any Manager or
Member by reason of this Agreement or any provision hereof or be entitled to
enforce any provision of this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Limited Liability
Company Agreement as of the day and year first set forth above.
XXXXXX ASSET ALLOCATION FUNDS - BALANCED
PORTFOLIO
XXXXXX ASSET ALLOCATION FUNDS - CONSERVATIVE
PORTFOLIO
XXXXXX ASSET ALLOCATION FUNDS - GROWTH
PORTFOLIO
XXXXXX BALANCED RETIREMENT FUND
XXXXXX CONVERTIBLE OPPORTUNITIES AND INCOME
TRUST
XXXXXX DIVERSIFIED INCOME TRUST
XXXXXX EQUITY INCOME FUND
THE XXXXXX XXXXXX FUND OF BOSTON
PUTNAM GLOBAL GOVERNMENTAL INCOME TRUST
XXXXXX HIGH INCOME CONVERTIBLE AND BOND FUND
XXXXXX HIGH YIELD ADVANTAGE FUND
XXXXXX HIGH YIELD TRUST
XXXXXX INCOME FUND
PUTNAM MANAGED HIGH YIELD TRUST
XXXXXX MASTER INTERMEDIATE INCOME TRUST
XXXXXX MASTER INCOME TRUST
XXXXXX CAPITAL MANAGER TRUST - PCM DIVERSIFIED
INCOME FUND
XXXXXX CAPITAL MANAGER TRUST - PCM HIGH YIELD
FUND
XXXXXX PREMIER INCOME TRUST
By /s/ Xxxx X. X'Xxxx
------------------------------
Name: Xxxx X. X'Xxxx
Title: Vice President
THE XXXXXX ADVISORY COMPANY, INC. ON BEHALF OF
AMERITECH PENSION TRUST
SOUTHERN FARM BUREAU ANNUITY INSURANCE
COMPANY
By /s/ Xxxx X. X'Xxxx
------------------------------
Name: Xxxx X. X'Xxxx
Title: Vice President
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XXXXXX FIDUCIARY TRUST COMPANY ON BEHALF OF
XXXXXX HIGH YIELD MANAGED TRUST
By /s/ Xxxx X. X'Xxxx
------------------------------
Name: Xxxx X. X'Xxxx
Title: Vice President
XXXXXX INVESTMENT MANAGEMENT, INC. ON BEHALF OF
XXXXXX DIVERSIFIED INCOME PORTFOLIO/XXXXX
XXXXXX/TRAVELERS SERIES FUND
By /s/ Xxxx X. X'Xxxx
------------------------------
Name: Xxxx X. X'Xxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, AS
INVESTMENT MANAGER FOR THE GENERAL MOTORS
RETIREMENT PROGRAM FOR SALARIED EMPLOYEES
HIGH YIELD ACCOUNT
By
------------------------------
THE PRUDENTIAL SERIES FUND, INC. HIGH YIELD
BOND PORTFOLIO
THE U.S. HIGH YIELD FUND SICAV
BY THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
AN INVESTMENT ADVISER
By
------------------------------
Name:
Title:
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39
XXXXXX XXXXXXX GROUP, INC.
By /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
OCM OPPORTUNITIES FUND, L.P.
BY OAKTREE CAPITAL MANAGEMENT, LLC,
Its General Partner
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
By /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director & General Counsel
COLUMBIA/HCA MASTER RETIREMENT TRUST
BY OAKTREE CAPITAL MANAGEMENT, LLC,
Its Investment Manager
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
By /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director & General Counsel
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PAN FIXED INCOME FUND LTD.
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
PAN INTERNATIONAL LTD.
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
XXXXXXXX FARM, INC.
By
-----------------------------------------
Name:
Title:
PSF FINANCE HOLDINGS INC.
By
-----------------------------------------
Name:
Title:
PREMIUM HOLDINGS CORP.
By /s/ Xxxxxxxx X. Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Chairman
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THE HIGH YIELD INCOME FUND, INC.
PRUDENTIAL HIGH YIELD FUND
BY THE PRUDENTIAL INVESTMENT CORPORATION,
AS INVESTMENT ADVISER
By_________________________________________
Name:
Title:
CONTINENTAL ASSURANCE COMPANY
ON BEHALF OF ITS SEPARATE ACCOUNT
CONTINENTAL ASSURANCE COMPANY
PENSION INVESTMENT FUND
By_________________________________________
Name:
Title:
GEM CAPITAL MANAGEMENT, INC.
AS INVESTMENT ADVISOR FOR:
DELTA AIRLINES RETIREMENT RUST
LOS ANGELES FIRE & POLICE PENSION PLAN
MT. SINAI SCHOOL OF MEDICINE
XEROX PROFIT SHARING
By_________________________________________
Name:
Title:
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Exhibit A
---------
DEFINED TERMS
-------------
"Accredited Investor" has the meaning assigned to such term under
Regulation D promulgated pursuant to Section 4(2) of the Securities Act.
"Act" shall mean the Delaware Limited Liability Company Act (6 Del. C.
Section 18-101, et seq.) as amended and in effect from time to time.
"Affiliate" shall mean, with respect to any specified Person, any Person
that directly or through one or more intermediaries controls or is controlled
by or is under common control with the specified Person. As used in this
definition, the term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"Agreement" shall mean the Second Amended and Restated Limited Liability
Company Agreement of the Company to which this Exhibit A is attached, as such
agreement may be amended from time to time.
"Alien" shall mean an alien as defined under Missouri Revised Statutes
Section Section 442.560-442.591 and any regulations thereunder.
"Assignee" shall mean a Person that has acquired the right from a Member
to (i) share in Net Profit and Net Loss of the Company, (ii) receive
Distributions and (iii) receive the allocation of income, gain, loss deductions
or credits (and items thereof) of the Company to which the transferor Member
was entitled in accordance with the provisions of Article 9, but has not been
admitted as a Member of the Company in accordance with the provisions of
Article 10.
"Board of Managers" means the Board of Managers as provided in Section
5.1.
"Book Gain" or "Book Loss" shall mean the gain or loss recognized by the
Company for book purposes in any Fiscal Year or other period by reason of the
sale, exchange or other disposition of any Company asset. Such Book Gain or
Book Loss shall be computed by reference to the Book Value of such asset as of
the date of such sale, exchange or other disposition, rather than by reference
to the tax basis of such asset as of such date, and each and every reference
herein to "gain" or "loss" shall be deemed to refer to Book Gain or Book Loss,
rather than to tax gain or tax loss, unless otherwise expressly provided
herein.
"Book Value" of an asset shall mean, as of any particular date, the value
at which the asset is properly reflected on the books and records of the
Company as of such date. The initial Book Value of each asset shall be its
cost, unless such asset was contributed to the Company by a Member, in which
case the initial Book Value shall be the fair market value, as agreed to by the
Members or determined by the Members, and such Book Value shall thereafter be
adjusted for Depreciation with respect to such asset rather than for the cost
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recovery deductions to which the Company is entitled for income tax purposes
with respect thereto.
"Capital Account" is defined in Section 7.3. An Assignee may acquire an
interest in a Capital Account as provided in Section 9.2.
"Capital Contribution" shall mean with respect to any Member, the amount
of money plus the fair market value of any other property contributed to the
Company (net of any liabilities assumed by the Company and any liabilities to
which contributed property is subject) with respect to the Interest held by
such Member pursuant to the terms of this Agreement.
"Certificate" shall mean the Certificate of Formation of the Company and
any and all amendments thereto and restatements thereof filed on behalf of the
Company with the office of the Secretary of State of the State of Delaware
pursuant to the Act.
"Class A Members" means Members holding Class A Units.
"Class B Members" means Members holding Class B Units.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the corresponding provisions of any future federal tax law.
"Committee" shall have the meaning provided in the Management Option Plan.
"Company" shall mean the limited liability company to which this Agreement
relates that was formed upon the merger of PSF Finance L.P. and PSF Holdings,
L.L.C., by action of the original Members.
"Depreciation" shall mean for each Fiscal Year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except if the
Book Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of any such year or other period, Depreciation shall
be an amount that bears the same relationship to the Book Value of such asset
as the depreciation, amortization, or other cost recovery deduction computed
for tax purposes with respect to such asset for the applicable period bears to
the adjusted tax basis of such asset at the beginning of such period, or if
such asset has a zero adjusted tax basis, Depreciation shall be an amount
determined under any reasonable method selected by the Members, with the advice
of the Company's independent accountants.
"Disability" shall mean a disability as a result of any illness, injury,
accident or condition of either a physical or psychological nature which
renders an individual unable to perform substantially all of such individual's
duties or responsibilities as an employee of the Company or an Affiliate of the
Company for three consecutive months or shorter periods aggregating three
months in any 12-month period. The existence of a Disability shall be
determined in accordance with any applicable employment agreement in effect
between such
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individual and the Company or an Affiliate of the Company or, in the absence
of such agreement, by the Company, whose determination shall be final and
binding.
"Distribution" shall mean cash or property distributed to a Member or a
Member's Assignee in respect of the Member's Interest in the Company.
"Economic Interest" shall mean all rights of an Assignee with respect to
an Interest.
"Employee Member" shall mean each Member who has been issued Units or has
acquired Units pursuant to options granted to such Person in connection with
such Person's employment with the Company or an Affiliate of the Company.
"Fair Value". The term "Fair Value" as applied to all or any portion of
the Interest of any Member shall mean the fair market value of the Interest in
question as determined by the Board of Managers in good faith.
"Fiscal Quarter" shall mean each quarter of the Fiscal Year.
"Fiscal Year" shall mean the taxable year of the Company, which shall be
the calendar year unless otherwise determined by the Board of Managers in
accordance with applicable laws.
"Foreign Business" shall mean a foreign business as defined under Missouri
Revised Statutes Sections 442.560-442.591 and any regulations thereunder.
"Indemnified Persons" is defined in Section 13.1.
"Interest" shall mean the entire interest of a Member in the capital and
profits of the Company, including the right of such Member to any and all
benefits to which a Member may be entitled as provided in this Agreement,
together with the obligations of such Member to comply with all the terms and
provisions of this Agreement.
"Management Option Plan" shall mean the Amended and Restated PSF Holdings,
L.L.C. 1996 Management Option Plan effective as of September 17, 1996, as
amended on March 14, 1997, and from time to time thereafter.
"Managers" means the Persons designated or elected from time to time to
the Board of Managers of the Company, acting in their capacity as Managers.
"Members" shall mean the Persons listed as members on Exhibit B hereto and
any other Person that both acquires an Interest in the Company and is admitted
to the Company as a Member.
"Members' Estimated Tax Liability" is defined in Section 7.2.1.
"MS Member" means Xxxxxx Xxxxxxx Group Inc., any successor thereto by
operation of law, or any Affiliate of Xxxxxx Xxxxxxx Group Inc. or such
successor (other than
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Premium Holdings Corp.) for so long as Xxxxxx Xxxxxxx Group Inc. or such
Affiliate or such successor is a Member.
"Net Profit" and "Net Loss" shall mean, for each Fiscal Year or other
period, an amount equal to the Company's taxable income or loss, respectively,
for such year or period, determined in accordance with section 703(a) of the
Code (taking into account all items of income, gain, loss, or deduction
required to be stated separately pursuant to section 703(a)(1) of the Code),
with the following adjustments:
(i) any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Net Profit or
Net Loss pursuant to this provision shall be added to such taxable
income or loss;
(ii) any expenditures of the Company described in section
705(a)(2)(B) of the Code (relating to expenditures which are neither
deductible nor properly chargeable to capital) or treated as Code
section 705(a)(2)(B) expenditures pursuant to section
1.704-1(b)(2)(iv)(i) of the Regulations, and not otherwise taken
into account in computing Net Profit or Net Loss pursuant to this
provision, shall be subtracted from such taxable income or loss;
(iii) Book Gain or Book Loss from the sale or other disposition of
any asset of the Company shall be taken into account in lieu of any
tax gain or tax loss recognized by the Company by reason of such
sale or other disposition; and
(iv) in lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such taxable
income or loss, there shall be taken into account Depreciation for
such fiscal year or other period, computed as provided in this
Agreement.
"Percentage Interest" is defined in Section 3.5.
"Person" shall mean an individual, partnership, joint venture,
association, corporation, trust, estate, limited liability company, limited
liability partnership, or any other legal entity, and for purposes of Section
9.3 only, shall also include a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
"PSF" shall mean Premium Standard Farms, Inc., a Delaware corporation, a
wholly owned subsidiary of the Company.
"Regulations" shall mean the Treasury regulations, including temporary
regulations, promulgated under the Code, as such regulations may be amended
from time to time (including the corresponding provisions of any future
regulations).
"Required Members" shall mean a Member or Members, other than a MS Member,
holding more than 50% of the aggregate Percentage Interests allocated to all
Members, other than MS Members.
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"Securities Act" shall mean the Securities Act of 1933, as amended.
"Tax Distribution" shall mean Distributions made from time to time
pursuant to Section 7.2.1.
"Tax Distribution Rate" shall mean the highest marginal combined federal,
state and local income tax rate applicable to any of the Members (determined
after giving effect to the deduction (if allowable) of state and local income
taxes for federal income tax purposes and the deduction for local income taxes
(if allowable) for state income tax purposes).
"Tax Matters Member" is defined in Section 8.1.
"Taxable Income from Operations" shall mean (i) the net amount of (A)
income and gains (not including income and gains exempt from federal income
tax) over (B) deductions and losses (not including any expenditures of the
Company described in Code Section 705(a)(2)(B) or any expenditures treated as
if so described pursuant to Regulations Section 1.704-1(b)(2)(iv)(i)) that was
recognized by the Company and allocated among the Members for federal income
tax purposes pursuant to Section 7.3.2 for the immediately preceding Fiscal
Year, excluding any income, gains, deductions or losses arising in such Fiscal
Year from the disposition of substantially all of the assets of the Company.
"Transfer" is defined in Section 9.1.1.
"Units" is defined in Section 3.4.
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Exhibit B
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NAME OF MEMBER NO. OF CLASS OF PERCENTAGE AGREED CAPITAL
UNITS UNITS INTEREST CONTRIBUTION
Xxxxxx Asset
Allocation Funds -
Balanced Portfolio 12,885 A 0.1289% $154,620
Xxxxxx Asset
Allocation Funds -
Conservative
Portfolio 4,186 A 0.0419% $50,232
Xxxxxx Asset
Allocation Funds -
Growth Portfolio 3,305 A 0.0331% $39,660
Xxxxxx Balanced
Retirement Fund 11,013 A 0.1101% $132,156
Xxxxxx Convertible
Opportunities and
Income Trust 22,025 A 0.2203% $264,300
Xxxxxx Diversified
Income Trust 979,968 A 9.7997% $11,759,616
Xxxxxx Equity Income
Fund 1,101 A 0.0110% $13,212
The Xxxxxx Fund of
Boston 22,025 A 0.2203% $264,300
Xxxxxx Global
Governmental Income
Trust 11,327 A 0.1133% $135,924
Xxxxxx High Income
Convertible and Bond
Fund 33,430 A 0.3343% $401,160
Xxxxxx High Yield
Advantage Fund 707,186 A 7.0719% $8,486,232
Xxxxxx High Yield Trust 1,185,708 A 11.8571% $14,228,496
Xxxxxx Income Fund 44,051 A 0.4405% $528,612
Xxxxxx Managed High
Yield Trust 57,579 A 0.5758% $690,948
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NAME OF MEMBER NO. OF CLASS OF PERCENTAGE AGREED CAPITAL
UNITS UNITS INTEREST CONTRIBUTION
Xxxxxx Master
Intermediate Income
Trust 71,533 A 0.7153% $858,396
Xxxxxx Master Income
Trust 100,386 A 1.0039% $1,204,632
Xxxxxx Capital
Management Trust - PCM
Diversified Income
Fund 52,810 A 0.5281% $633,720
Xxxxxx Capital
Management Trust - PCM
High Yield Fund 157,853 A 1.5785% $1,894,236
Xxxxxx Premier Income
Trust 250,248 A 2.5025% $3,002,976
Ameritech Pension Trust 31,938 A 0.3194% $383,256
Southern Farm Bureau
Annuity Insurance
Company 18,722 A 0.1872% $224,664
Xxxxxx High Yield
Managed Trust 35,429 A 0.3543% $425,148
Xxxxxx Diversified
Income Portfolio/Xxxxx
Xxxxxx/Travelers
Series Fund 2,203 A 0.0220% $26,436
General Motors
Retirement Program for
Salaried Employees
High Yield Account 55,064 A 0.5506% $660,768
The Prudential Series
Fund, Inc., High Yield
Bond Portfolio 22,025 A 0.2203% $264,300
The U.S. High Yield
Fund SICAV 77,873 A 0.7787% $934,476
The High Yield Income
Fund, Inc. 27,924 A 0.2792% $335,088
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NAME OF MEMBER NO. OF CLASS OF PERCENTAGE AGREED CAPITAL
UNITS UNITS INTEREST CONTRIBUTION
Prudential High Yield
Fund 951,717 A 9.5172% $11,420,604
Continental Assurance
Company Pension
Investment Fund 742,247 A 7.4225% $8,906,964
Delta Airlines
Retirement Trust 97,610 A 0.9761% $1,171,320
Los Angeles Fire &
Police Pension Plan 351,942 A 3.5194% $4,223,304
Mt. Sinai School of
Medicine 56,194 A 0.5619% $674,328
Xerox Profit Sharing 166,973 A 1.6697% $2,003,676
Pan Fixed Income Fund
Ltd. 40,945 A 0.4095% $491,340
Pan International Ltd. 12,114 A 0.1211% $145,368
Xxxxxxxx Farm, Inc. 3,000 B 0.0300% $36,000
PSF Finance Holdings
Inc. 219,000 B 2.1900% $2,628,000
Premium Holdings Corp. 78,000 A 0.7800% $936,000
Xxxxxx Xxxxxxx Group,
Inc. 2,112,664 B 21.1266% $25,351,968
OCM Opportunities
Fund, L.P. 1,212,087 A 12.1209% $13,453,007
Columbia/HCA Master
Retirement Trust 46,710 A 0.4671% $560,557
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Exhibit C
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OFFICERS
1. Officers. Officers and agents of the Company, if any, shall be
appointed by the Board of Managers in their discretion. An officer may be but
none need be a Member or Manager. Any two or more offices may be held by the
same person. Any officer may be required by the Board of Managers to secure
the faithful performance of the officer's duties to the Company by giving bond
in such amount and with sureties or otherwise as the Board of Managers may
determine.
2. Powers. Subject to the limitations set forth in Section 5.3 of the
Agreement, each officer shall have, in addition to the duties and powers herein
set forth, the duties and powers set forth in Section 5.3 of the Agreement or
delegated to such officer as provided in said Section 5.3.
3. Appointment. Officers may be appointed by the Board of Managers at
any time. At any time or from time to time the Board of Managers may delegate
to any officer its power to elect or appoint any other officer or any agents.
4. Tenure. Each officer shall hold office until the first meeting of the
Board of Managers following the beginning of the next fiscal year and until
such officer's respective successor is chosen and qualified unless a shorter
period shall have been specified by the terms of such officer's election or
appointment, or in each case until such officer sooner dies, resigns, is
removed or becomes disqualified. Each agent shall retain their authority at
the pleasure of the Board of Managers, or the officer by whom such agent was
appointed or by the officer who then holds agent appointive power.
5. Resignation; Removal; Vacancies. Any officer or agent may resign by
delivering a written letter of resignation to the President, the Secretary or
to the Board of Managers addressed to the Company, which resignation shall not
require acceptance and, unless otherwise specified in the letter of
resignation, shall be effective upon receipt. The Board of Managers or the
officer appointing the officer or agent may remove any officer or agent at any
time without giving any reason for such removal and no officer or agent or
shall be entitled to any damages by virtue of such officer's removal from
office or such position as agent. If any office becomes vacant, the position
may be filled by the Board of Managers or in such other manner as the officer
in question was appointed.
6. President and Vice President. Unless the Board of Managers shall
designate a Manager to serve as Chairman, the Chief Executive Officer, shall
preside, or designate the person who shall preside, at all meetings of the
Board of Managers.
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Unless the Board of Managers otherwise specifies, the President shall be
the chief executive officer and shall have direct charge of all business
operations of the Company and, subject to the control of the Board of Managers,
shall have general charge and supervision of the business of the Company.
Any vice presidents shall have duties as shall be designated from time to
time by the Board of Managers or the President.
7. Treasurer and Assistant Treasurers. Unless the Board of Managers
otherwise specifies, the Treasurer shall be the chief financial officer of the
Company and shall be in charge of its funds and valuable papers, and shall have
such other duties and powers as may be designated from time to time by the
Board of Managers or the President. If no Controller is elected, the Treasurer
shall, unless the Board of Managers otherwise specifies, also have the duties
and powers of the Controller.
Any Assistant Treasurers shall have such duties and powers as shall be
designated from time to time by the Board of Managers, the President or the
Treasurer.
8. Controller and Assistant Controllers. If a Controller is elected, the
Controller shall, unless the Board of Managers otherwise specifies, be the
chief accounting officer of the Company and be in charge of its books of
account and accounting records, and of its accounting procedures. The
Controller shall have such other duties and powers as may be designated from
time to time by the Board of Managers, the President or the Treasurer.
Any Assistant Controller shall have such duties and powers as shall be
designed from time to time by the Board of Managers, the President, the
Treasurer or the Controller.
9. Secretary and Assistant Secretaries. The Secretary shall record all
proceedings of the Board of Managers and the Members in a book or series of
books to be kept therefor and shall file therein all actions by written consent
of the Board of Managers and the Members. In the absence of the Secretary from
any meeting, an Assistant Secretary, or if there be one or no Assistant
Secretary is present, a temporary secretary chosen at the meeting, shall record
the proceedings thereof. The Secretary shall keep or cause to be kept records,
which shall contain the names and record addresses of all Members. The
Secretary shall have such other duties and powers as may from time to time be
designated by the Board of Managers or the President.
Any Assistant Secretaries shall have such duties and powers as shall be
designated from time to time by the Board of Managers, the President or the
Secretary.
10. Execution of Papers. Except as the Board of Managers may generally
or in particular cases authorize the execution thereof in some other manner,
and subject to the limitations set forth in Sections 5.3 of the Agreement, all
deeds, leases, transfers, contracts, bonds, notes, checks, drafts or other
obligations made, accepted or endorsed by the Company shall be signed by the
President, a Vice President or the Treasurer.
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