EXHIBIT 10.43
OPERATING AGREEMENT
OF
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC
THIS OPERATING AGREEMENT (this "Agreement") is made as of March 9, 2000
by the Members listed on Schedule A attached hereto, as such schedule may be
amended from time to time. The Members listed on Schedule A may be referred to
herein individually as a "Member," and collectively as the "Members."
WHEREAS, the Members have formed a limited liability company pursuant
to the laws of the State of Delaware; and
WHEREAS, the Members desire to set forth their respective rights and
obligations as Members of the Company and to provide for the management of the
Company and its affairs and for the conduct of the business of the Company.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Members hereby agree as
follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have the following
meanings:
1.1 "Act" means the Delaware Limited Liability Company Act and any
successor statute, as amended from time to time.
1.2 "Affiliate" means with respect to any Person, any other Person that
directly or indirectly is controlled by, such Person and, if such Person is an
individual, any member of the immediate family (including parents, spouse,
children and siblings) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such immediate family
and any Person who is controlled by any such member or trust. As used in this
definition, "control", including, its correlative meanings, "controlled by" and
"under common control with", shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise).
1.3 "Agreement" means this Operating Agreement of the Company as
originally adopted and as amended from time to time in accordance with the terms
of this Agreement.
1.4 "ATM" means ATM Service, Ltd., a New York corporation.
1.5 "ATM Contribution Agreement" means the Contribution Agreement dated
as of March 9, 2000 by and between the Company and ATM.
1.6 "Buyer" shall have the meaning for such term set forth in Section
7.4(a).
1.7 "Business Day" means any day other than a Saturday, a Sunday, or a
holiday on which national banking associations are closed in the State of
Delaware.
1.8 "Capital Account" shall have the meaning given to such term in
Section 5.4.
1.9 "Capital Contribution" means the contributions to the capital of
the Company made by a Member pursuant to the Contribution Agreement between the
company and such Member.
1.10 "Certificate of Formation" means the Certificate of Formation of
the Company as originally filed with the Secretary of State of the State
Delaware on March 9, 2000, and as amended from time to time.
1.11 "Code" means the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder.
1.12 "Company" means ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ LLC, a Delaware limited liability
company.
1.13 "Company Assets" means all assets, whether tangible or intangible
and whether real, personal or mixed, at any time owned by the Company.
1.14 "Distributable Cash" means the amount of money and the fair market
value of any property of the Company available for distribution to the Members
as determined by the Board of Managers (taking into account any reasonable
reserves necessary to fund the Company's business).
1.15 "Drag-Along Notice" shall have the meaning for such term set forth
in Section 7.3(b).
1.16 "Entrade" means Entrade Inc., a Pennsylvania corporation.
1.17 "Entrade Contribution Agreement" means the Contribution Agreement
dated March 9, 2000 by and between the Company and Entrade.
1.18 "Fiscal Year" means the Company's fiscal year, which shall be the
calendar year.
1.19 "Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as adjusted by the
following:
(i) the initial Gross Asset Value of any asset contributed by
a Member to the Company shall be the gross fair market value of such asset, as
determined by the contributing Member and the Board of Managers;
(ii) the Gross Asset Values of all Company assets shall be
adjusted to equal their respective gross fair market values, as determined by
the Board of Managers, as of the following times: (a) the acquisition of
additional Units by any new or existing Member in exchange for more than a de
minimus Capital Contribution or (b) upon liquidation of the Company, or (c) upon
the distribution by the Company of more than a de minimus amount of money or
other Company property to a retiring or continuing Member as consideration for
Units; and
(iii) if the Gross Asset Value of an asset has been determined
or adjusted pursuant to clause (i) or (ii) above, such Gross Asset Value shall
thereafter be adjusted by the depreciation, amortization or other cost recovery
deductions pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(g).
1.20 "Manager" means any Person hereafter appointed to act as a manager
of the Company as provided in this Agreement (each in the capacity as a manager
of the Company), but does not include any Person who has ceased to be a manager
of the Company. Collectively, all Persons appointed to be Managers of the
Company may be referred to herein as the "Board" or the "Board of Managers".
1.21 "Majority in Interest" means a combination of any Members who, in
the aggregate, own 50% or more of the outstanding Units.
1.22 "Member" means any Person executing this Agreement as of the date
of this Agreement as a member of the Company or any Person hereafter admitted to
the Company as a member as provided in this Agreement (each in the capacity as a
member of the Company), but does not include any Person who has ceased to be a
member of the Company. The names of the Members shall be listed on Schedule A
attached hereto, as such schedule may be amended from time to time.
1.23 "Non-Selling Members" shall have the meaning for such term set
forth in Section 7.4(a).
1.24 "Notice" shall have the meaning for such term set forth in Section
7.4(a).
1.25 "Offer" shall have the meaning for such term set forth in Section
7.4(a).
1.26 "Offered Interest" shall have the meaning for such term set forth
in Section 7.4(a).
1.27 "Person" means and includes any individual, partnership, limited
liability company, trust, estate, corporation, custodian, trustee, executor,
administrator, nominee or entity in a representative capacity.
1.28 "Profit" and "Loss" means, for each taxable year of the Company
(or other period for which Profit or Loss must be computed) the Company's
taxable income or loss determined in accordance with Code Section 703(a), with
the following adjustments:
(i) all items of income, gain, loss, deduction, or credit
required to be stated separately pursuant to Code Section 703(a)(1) shall be
included in computing taxable income or loss;
(ii) any tax-exempt income of the Company, not otherwise taken
into account in computing Profit or Loss, shall be included in computing taxable
income or loss;
(iii) any non-deductible expenditures of the Company described
in Code Section 705(a)(2)(B) (or treated as such pursuant to Regulation Section
1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Profit
or Loss, shall be subtracted from taxable income or loss;
(iv) gain or loss resulting from any taxable disposition of
Company property shall be computed by reference to the adjusted book value of
the property disposed of, notwithstanding the fact that the adjusted book value
differs from the adjusted basis of the property for federal income tax purposes;
(v) in lieu of the depreciation, amortization, or cost
recovery deductions allowable in computing taxable income or loss, there shall
be taken into account the depreciation computed based upon the adjusted book
value of the asset;
1.29 "Right of First Refusal" shall have the meaning for such term set
forth in Section 7.4(b).
1.30 "Right of Second Refusal" shall have the meaning for such term set
forth in Section 7.4(c).
1.31 "Safeguard" means Safeguard Scientifics, Inc., a Delaware
corporation.
1.32 "Safeguard Contribution Agreement" means the Contribution
Agreement dated March 9, 2000 by and between the Company and Safeguard.
1.33 "Selling Member" shall have the meaning for such term set forth in
Section 7.4(a).
1.34 "Tag-Along Notice" shall have the meaning for such term set forth
in Section 7.3(d).
1.35 "Textron" means Textron Inc., a Delaware corporation.
1.36 "TFC" means Textron Financial Corporation, a Delaware corporation.
1.37 "TFC Contribution Agreement" means the Contribution Agreement
dated March 9, 2000 by and between the Company and TFC.
1.38 "Transfer" means any sale, assignment, transfer, exchange,
mortgage, pledge, grant of a security interest, or other disposition or
encumbrance (including, without limitation, by operation of law), or the acts
thereof.
1.39 "Unit" means a unit of interest of a Member in the Company at any
particular time, including without limitation, rights to distributions
(liquidating or otherwise), allocations, information, and to vote, consent or
approve, if any.
ARTICLE II
Organization
2.1 Name and Formation. The name of the Company shall be
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC and all Company business shall be conducted in such name
or such other names that comply with applicable law as the Board of Managers may
select from time to time. The Company was formed on March 8, 2000 pursuant to
the Act.
2.2 Principal Place of Business. The principal office of the Company
shall initially be ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ or such
other place within or without the State of Delaware as may be determined from
time to time by the Board of Managers.
2.3 Registered Office and Registered Agent. The Company's initial
registered agent and office shall be c/o The Corporation Trust Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may change its registered
agent or registered office to any other in the State of Delaware as may be
determined from time to time by the Board of Managers.
2.4 Term. The existence of the Company shall be perpetual, subject to
the Company's earlier dissolution in accordance with the provisions of this
Agreement or the Act.
2.5 Purposes and Powers. The purpose and character of the business of
the Company shall be to engage in any business or activity which may be legally
permitted under the Act, as determined pursuant to this Agreement. More
specifically, the Company initially is being formed to dispose of excess assets
of Textron and its worldwide subsidiaries and divisions. In addition, the
Company will market its end-to-end, business-to-business e-commerce asset
disposition services to all United States based industrial and financial
services companies. Subject to the Certificate of Formation and the terms and
conditions of this Agreement, the Company shall have the power and authority to
do all such acts and things as may be necessary, desirable, expedient,
convenient for, or incidental to the furtherance and accomplishment of the
foregoing objectives and purposes and for the protection and benefit of the
Company.
2.6 No State Law Partnership. The Members intend that the Company shall
not be a partnership or joint venture, and that no Member or Manager shall be a
partner or joint venturer of any other Member or Manager with respect to the
business of the Company, for any purposes other than federal, state and local
tax purposes, and this Agreement shall not be construed to suggest otherwise.
2.7 Authority of Members. Except as otherwise provided in this
Agreement, no Member (other than a Manager or an officer of the Company in his
capacity as such) shall have the authority or power to act for or on behalf of
the Company, to do any act that would be binding on the Company or to incur any
expenditures, debts, liabilities or obligations on behalf of the Company. The
foregoing notwithstanding, if at any time there are no Managers, the business
and affairs of the Company shall be managed and conducted by the Members. All
decisions or actions of the Members allowed, permitted or required under this
Agreement or the Act shall be made by action of the holders of a Majority in
Interest, unless pursuant to this Agreement, the Act or other applicable law a
greater number or percentage is required.
2.8 No Personal Liability for Members, Managers, Etc. No Member of the
Company shall be subject in such capacity to any personal liability whatsoever
to any Person in connection with the assets, acts, obligations or affairs of the
Company. The Company shall have the power to indemnify any Person who was or is
a party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative (hereafter a "Proceeding"), or any
appeal in such a Proceeding or any inquiry or investigation that could lead to
such a Proceeding, by reason of the fact that such Person is or was a Member,
Manager, officer, employee or agent of the Company (each, an "Indemnified
Person") and such Indemnified Person shall be indemnified by the Company to the
fullest extent permitted by applicable law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide greater or broader indemnification
rights than such law permitted the Company to provide prior to such amendment)
against judgments, penalties (including, without limitation, excise and similar
taxes and punitive damages), fines, settlements, costs and reasonable expenses
(including, without limitation, attorneys' fees) actually incurred by such
Indemnified Person in connection with such Proceeding. It is expressly
acknowledged, however, that the indemnification provided in this Section 2.8
shall not apply to indemnify any Manager, officer, employee or agent of the
Company entitled to indemnification pursuant to this Section 2.8 arising from
acts or omissions of bad faith, willful misfeasance, gross negligence or
reckless disregard of such Indemnified Person's duty to the Company or its
Members. The rights accruing to an Indemnified Person under this Section 2.8
shall not exclude any other right to which such Indemnified Person may be
lawfully entitled nor shall anything herein contained restrict the right of the
Company to indemnify or reimburse an Indemnified Person in any appropriate
situation even though not specifically provided herein.
ARTICLE III
Management
3.1 Management by Managers. Except for situations in which the approval
of the Members is expressly required by this Agreement or by nonwaivable
provisions of applicable law, (i) the powers of the Company shall be exercised
by or under the authority of, and the business and affairs of the Company shall
be managed under the exclusive direction of, the Board of Managers, and (ii) the
Board of Managers may make all decisions (including the sale of all or
substantially all of the Company Assets) and take all actions for the Company
not otherwise provided in this Agreement. All decisions other than Major
Decisions must be approved by a majority of the Managers (each having one vote).
All Major Decisions must be approved by each of the four Managers designated by
TFC and one of the Managers designated by Entrade. The term "Major Decisions"
means:
(a) the approval of annual or long-term operational or capital
budgets or strategic plans;
(b) the approval of any expenditures in excess of $250,000
that is not contemplated by an approved capital budget, or any
divergence from an operational expense budget in excess of the
greater of 10 percent or $100,000;
(c) any call for additional Capital Contributions by the
Members;
(d) the sale, lease, exchange, mortgage, assignment, pledge or
other transfer of Company Assets other than in the ordinary
course of the Company's business except as provided in Section
7.3(c);
(e) the confession of any judgment or the settlement of any
litigation in excess of $50,000;
(f) a change in the scope of the Company's business;
(g) a determination that indemnification of an Indemnified
Person is proper under Section 2.8;
(h) the valuation of the Company for purposes of Section
5.1(f);
(i) the admission of new Members pursuant to Section 7.2;
(j) any amendment to this Agreement.
3.2 Compensation of Managers. Managers, as such, shall not receive any
stated salary or other compensation for their services, except as otherwise may
be provided by the Members from time to time. The Company may reimburse any
Manager for reasonable expenses incurred by the Manager in connection with his,
her or its performance of services for the Company upon receipt by the Company
of proper substantiation of such expenses. The foregoing notwithstanding,
nothing contained in this Agreement shall be construed to preclude any Manager
from serving the Company in any other capacity and receiving compensation for
such service.
3.3 Designation of Board of Managers. Each Member agrees to vote all of
the Units over which such Member has voting control and to take all other
necessary actions within his or its control (whether in his or its capacity as a
Member or Manager of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents or resolutions in lieu of
meetings), and the Company shall take all necessary actions and actions
reasonably requested by any other Member within its control (including, without
limitation, calling special Manager and Member meetings) so that full and
complete effect is given to the following designation and election of Managers.
The number of Managers of the Company shall initially be set at seven, which
seven Managers shall be designated in the following manner: (i) four Managers
shall be designated by TFC, (ii) two Managers shall be designated by Entrade and
(iii) one Manager shall be designated by ATM.
3.4 Term. Each Manager shall hold office until his, her or its
successor is appointed, or, if earlier, until such Manager's death, resignation
or removal as provided in this Agreement.
3.5 Vacancy. Any vacancy occurring in the Board of Managers may be
filled by the Member who designated the Manager whose absence has created the
vacancy.
3.6 Removal. Any Manager may be removed at any time, with or without
cause, by the Members who designated such Manager.
3.7 Resignation. Any Manager may resign at any time. Such resignation
shall be made in writing and shall take effect at the time specified therein or,
if no time is specified therein, at the time of its receipt by the remaining
Managers or, if none, by the Member who designated such Manager. The acceptance
of a resignation shall not be necessary to make it effective, unless so
expressly provided in the resignation.
3.8 Meetings of Managers.
(a) The Managers may hold their meetings in such place or
places in the State of Delaware or outside the State of Delaware as they shall
determine from time to time. The Company shall pay all out-of-pocket expenses
incurred by the Managers to attend the Board meetings.
(b) Regular meetings of the Managers shall be held at least
semiannually at the offices of the Company, or at such other place as the
Managers may determine.
(c) Special meetings of the Managers shall be held whenever
called by any two (2) of the then currently serving Managers. Notice of the day,
hour and place of holding of each special meeting shall be given by telegraph,
facsimile, cable or wireless at least twenty four (24) hours before the meeting
to each Manager. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at any special meeting. At any meeting at which every
currently serving Manager shall be present, even though without any notice, any
business may be transacted.
(d) Subject to Section 3.1(a), a quorum for the transaction of
business by the Board shall consist of a majority of the Managers then serving
on the Board of Managers. If at any meeting of the Board there is less than a
quorum present, a simple majority of those present may adjourn the meeting from
time to time until a quorum is present.
(e) The Managers may participate in a meeting thereof by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
(f) Any action required or permitted to be taken at any
meeting of the Board may be taken without a meeting if the members of the Board
required to take such action consent thereto in writing, and the writing is
filed with the minutes of proceedings of the Board.
3.9 Meetings of Members.
(a) The Members may hold their meetings in such place or
places in the State of Delaware or outside the State of Delaware as they shall
determine from time to time.
(b) Regular meetings of the Members shall be held at least
annually at the offices of the Company, or at such other place as the Members
may determine. Notice of the day, hour and place shall be required for any
regular meeting of the Members accompanied by an agenda, and shall be sent to
each Member by telegraph, facsimile, cable or wireless and mail at least ten
(10) days prior to the date of the meeting.
(c) Special meetings of the Members shall be held whenever
called by Members holding in the aggregate at least fifty-five percent (55%) of
the Units. Notice of the day, hour and place of holding of each special meeting
shall be given by telegraph, facsimile, cable or wireless at least seventy-two
(72) hours before the meeting to each Member. Unless otherwise indicated in the
notice thereof, any and all business may be transacted at any special meeting.
At any meeting at which every Member shall be present, even though without any
notice, any business may be transacted.
(d) Subject to Section 3.1, a quorum for the transaction of
business by the Members shall consist of a Majority in Interest. If at any
meeting of the Members there is less than a quorum present, a simple majority of
those present may adjourn the meeting from time to time until a quorum is
present.
(e) The Members may participate in a meeting thereof by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
(f) Any action required or permitted to be taken at any
meeting of the Members may be taken without a meeting if all Members required to
take such action consent thereto in writing, and the writing is filed with the
minutes of proceedings of the Company.
ARTICLE IV
Officers
4.1 Designation; Term; Qualifications. The Managers may (but shall not
be obliged to), from time to time, designate one or more natural Persons to be
officers of the Company. Any officer so designated shall have such authority and
perform such duties as the Managers may, from time to time, delegate to them.
The Managers may assign titles to particular officers, and, unless the Managers
decide otherwise, the assignment of such title shall constitute the delegation
to such officer of the authority and duties that are normally associated with
that office. Each officer shall hold office for the term for which such officer
is designated and until his or her successor shall be duly designated and shall
qualify or until his or her death, resignation or removal as provided in this
Agreement. Any Person may hold any number of offices. No officer need be a
Manager, a Member, a resident of the State of Delaware, or a United States
citizen. Designation of a Person as an officer of the Company shall not of
itself create any contract rights.
4.2 Removal and Resignation. Any officer of the Company may be removed
as such, with or without cause, by the Managers. Any officer of the Company may
resign as such at any time upon written notice to the Company. Such resignation
shall be made in writing and shall take effect at the time specified therein or,
if no time is specified therein, at the time of its receipt by a Manager or, if
none, a Member. The acceptance of a resignation shall not be necessary to make
it effective, unless expressly provided for in the resignation.
4.3 Vacancies. Any vacancy occurring in any office of the Company may
be filled by the Managers.
4.4 Compensation. The compensation, if any, of the officers of the
Company shall be fixed from time to time by the Managers.
4.5 General Manager. Notwithstanding the foregoing, TFC shall have the
right to designate a "General Manager," who shall also be one of the Managers
designated by TFC pursuant to Article III. The General Manager shall be
responsible for the day to day operations of the Company. The compensation for
the General Manager shall be determined by the Managers (excluding the General
Manager).
ARTICLE V
Contributions to Capital and Capital Accounts
5.1 Capital Contributions. On the date of this Agreement,
(a) TFC shall contribute to the Company the property set forth
in the TFC Contribution Agreement in exchange for the number of Units set forth
opposite its name on Schedule A;
(b) Entrade shall contribute to the Company the property set
forth in the Entrade License Agreement in exchange for the number of Units set
forth opposite its name on Schedule A; and
(c) ATM shall contribute to the Company the property set forth
in the ATM Contribution Agreement in exchange for the number of Units set forth
opposite its name on Schedule A.
(d) Safeguard shall contribute to the Company the property set
forth in the Safeguard Contribution Agreement in exchange for the number of
Units set forth opposite its name on Schedule A.
(e) Upon 30 days written notice from the Board of Managers,
each Member shall contribute to the Company such Member's pro rata share of the
Capital Contributions requested by the Board, which request shall not be made
unless such Capital Contributions were specifically approved by the Board in an
operating or capital budget pursuant to Section 3.1(a). Except as provided in
the previous sentence, no Member shall be obligated to make additional Capital
Contributions to the Company.
(f) If a Member (a "Defaulting Member") does not contribute by
the time required all or any portion of an additional Capital Contribution such
Defaulting Member is required to make pursuant to the first sentence of Section
5.1(e) and such failure to contribute continues for at least five (5) Business
Days after receipt by such Defaulting Member of written notice thereof from the
Company, then the Board, on behalf of the Company, may, on written notice to
such Member either (i) allow the non-Defaulting Members to make additional
Capital Contributions in lieu of the Defaulting Member (pro rata in accordance
with the number of Units owned by each or non-pro rata if any non-Defaulting
Member does not wish to contribute their share of the deficiency) and to adjust
the number of Units of the Members accordingly to reflect the dilution to the
Defaulting Member and the increased percentage interest in the Company owned by
those non-Defaulting Members making additional Capital Contributions in
accordance with this Section 5.1(f)) or (ii) waive such additional Capital
Contribution by the Defaulting Member and adjust the number of Units of the
Members accordingly to reflect the dilution to the Defaulting Member and the
increased percentage interest in the Company owned by the non-Defaulting Members
as a result of their additional Capital Contributions. Any adjustment to the
interests of the Members pursuant to this Section 5.1(f) shall be made by
valuing the Company at its then current fair market value, as determined by the
Board in its reasonable discretion.
5.2 Advances by Members. If the Company does not have sufficient cash
to pay its obligations, any Member that may agree to do so with the consent of
the Board of Managers may advance all or part of the needed funds to or on
behalf of the Company. An advance described in this Section 5.2 shall constitute
a loan from such Member to the Company, and shall be made on such terms as
agreed to by the Member making such advance and the Board of Managers.
Notwithstanding the foregoing, it is understood that TFC shall provide the
Company with a line of credit in an amount sufficient to fund the Company's
operations for the Company's fiscal year 2000; provided, however, that such line
of credit shall be on terms no less favorable than current market terms, shall
accrue interest at the prime rate and shall be repaid (including all accrued and
unpaid interest) by the end of the Fiscal Year 2000; and provided, further, that
no distributions shall be made by the Company pursuant to Section 6.2 until such
time as the line of credit has been fully repaid.
5.3 Withdrawal or Reduction of Members' Contributions to Capital. A
Member shall not receive out of the Company's Assets any part of its Capital
Contributions until all liabilities of the Company have been paid or there
remain assets sufficient to pay such liabilities. No Member shall have the right
to withdraw all or any part of its Capital Contribution or to receive any return
on any portion of its Capital Contribution, except as may be otherwise
specifically provided in this Agreement. Under circumstances involving a return
of any Capital Contribution, no Member shall have the right to receive property
other than cash except as otherwise agreed to by the Board of Managers. No
Member shall be paid interest on any of its Capital Contributions or on its
Capital Account. An unrepaid Capital Contribution shall not be a liability of
the Company or of any Member. A Member shall not be required to contribute or to
lend any cash or property to the Company to enable the Company to return any
Member's Capital Contributions.
5.4 Capital Accounts. A separate capital account (a "Capital Account")
shall be established and maintained for each Member. Each Member's Capital
Account shall be increased by (i) the amount of money contributed by such Member
to the Company, (ii) the fair market value of property contributed by such
Member to the Company (net of liabilities secured by the contributed property
that the Company is considered to assume or take subject to under Section 752 of
the Code), and (iii) allocations to such Member of Company income and gain (or
items thereof), including without limitation income and gain exempt from tax and
income and gain described in Treasury Regulation Section 1.704-1(b)(2)(iv)(g).
Each Member's Capital Account shall be decreased by (A) the amount of money
distributed to such Member by the Company, (B) the fair market value of property
distributed to such Member by the Company (net of liabilities secured by the
distributed property that the Member is considered to assume or take subject to
under Section 752 of the Code), (C) allocations to such Member of expenditures
of the Company described in Section 705(a)(3)(B) of the Code, and (D)
allocations of Company loss and deduction (or items thereof), including without
limitation loss and deduction described in Treasury Regulation Section
1.704-1(b)(2)(iv)(g), but excluding items described in clause (C) above. The
Capital Accounts also shall be maintained and adjusted as permitted by the
provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(f) and as required
by the other provisions of Treasury Regulation Sections 1.704-1(b)(2)(iv) and
1.704-1(b)(4), including without limitation adjustments to reflect the
allocations to the Members of depreciation, depletion, amortization, and gain or
loss as computed for book purposes rather than the allocation of the
corresponding items as computed for tax purposes, as required by Treasury
Regulation Section 1.704-1(b)(2)(iv)(g). On the Transfer of a Unit, the Capital
Account of the transferor that is attributable to the Transferred Unit shall
carry over to the transferee Member in accordance with the provisions of
Treasury Regulation Section 1.704-1(b)(2)(iv)(1).
ARTICLE VI
Allocations; Distributions; Taxes; Books;
Records; and Bank Accounts
6.1 Allocations.
(a) Allocations of Profit and Loss. Except as required by the
Code, the Treasury Regulations promulgated thereunder and this Section 6.1,
Profit and Loss of the Company for each Fiscal Year shall be allocated among the
Members, pro rata, based upon the number of Units owned by each Member.
(b) Adjusted Capital Account Deficits. Notwithstanding
anything to the contrary in Section 6.1(a), in no event shall any Losses be
allocated to a Member to the extent that such allocation would reduce the
Capital Account of such Member below zero. In such event, such Member shall be
allocated the amount of Losses which would reduce its Capital Account to zero,
and any excess Losses shall be allocated among the remaining Members in
accordance with their positive Capital Account balances. Any Member who receives
an allocation of Losses pursuant to this Section 6.1(b) shall receive a priority
allocation of Profit (in an amount to make-up the allocation of such Losses)
prior to any allocations of Profit pursuant to Section 6.1(a).
(c) Tax Allocations. Except as otherwise required by the Code,
all items of income, gain, deduction, loss and credit shall be allocated for tax
purposes among the Members in the same manner as such items are allocated for
purposes of determining Capital Accounts.
(d) Allocations Relating to Transferred Units. All items of
income, gain, loss, deduction, and credit allocable to a Unit Transferred during
the Fiscal Year shall be allocated between the transferor and the transferee
based on the portion of the Fiscal Year during which each was recognized as
owning that Unit, without regard to the results of Company operations during any
particular portion of such Fiscal Year and without regard to whether cash
distributions were made to the transferor or the transferee during such Fiscal
Year, provided, however, that such allocation shall be made in accordance with a
method permissible under Section 706 of the Code and the Treasury Regulations
promulgated thereunder.
(e) Qualified Income Offset. Any Member who unexpectedly
receives an adjustment, allocation or distribution described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) shall be allocated items
of income and gain in an amount and manner sufficient to eliminate, to the
extent required by the Treasury Regulations, a deficit in such Member's Capital
Account balance as quickly as possible. This Section 6.1(e) is intended to
comply with the alternate test for economic effect set forth in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in
a manner consistent therewith.
6.2 Distributions. Except as agreed to by Board of Managers, the
Company shall distribute all Distributable Cash to the Members. Except as
otherwise agreed to by all of the Members, all distributions made to the Members
shall be made pro rata in accordance with the number of Units owned by each such
Member; provided, however, that no distributions may be made to the Members
until such time as the Company has repaid all amounts advanced (including
accrued and unpaid interest) pursuant to Section 5.2. All amounts withheld
pursuant to the Code or any provision of state or local tax laws with respect to
any payment or distribution to the Members from the Company shall be treated as
amounts distributed to the relevant Member or Members pursuant to this Section
6.2. No distribution shall be declared and paid unless, after the distribution
is made, the fair market value of the Company's Assets is in excess of all of
the liabilities of the Company.
6.3 Tax Returns. On or before the 90th calendar day following the end
of each Fiscal Year, the Board of Managers shall cause to be prepared and filed
all necessary federal and state income tax returns for the Company. Each Member
shall furnish to the Company all pertinent information in his, her or its
possession relating to Company operations that is necessary to enable the
Company's income tax returns to be prepared and filed. The Company shall provide
to each Member within 60 days following the end of such Fiscal Year all
applicable tax information required by any Member to file his, her or its tax
returns for such year.
6.4 Tax Matters Partner. TFC shall be the "tax matters partner" of the
Company pursuant to Section 6231(a)(7) of the Code. The tax matters partner
shall have the authority to make any tax elections which the Company is entitled
to make pursuant to the Code. The Board of Managers may, at any time, elect a
different tax matters partner.
6.5 Maintenance of Books and Fiscal Year. The Company shall keep and
maintain accurate and complete books and records of accounts and shall keep
minutes of the proceedings of the Members and the Board of Managers. The books
of account for the Company shall be maintained in accordance with generally
accepted accounting principles consistently applied, except that the Capital
Accounts shall be maintained in accordance with Section 5.4 of this Agreement.
6.6 Reports/Information Rights. Each Member shall be furnished by the
Company with (i) unaudited annual financial statements within 90 days after the
end of the Fiscal Year, which statements shall be certified by the chief
financial officer of the Company, (ii) unaudited quarterly financial statements
within 30 days after the end of each quarter and (iii) any other information
which any Member may reasonably request. Any Member may request that the Company
provide audited financial statements, the cost and expense of which shall be
borne by the Company or, if the Company has determined that such audited
financial statements are not necessary, by the Member which requested such
audited statements. In addition, within 90 days following the end of each Fiscal
Year during the term of the Company, each Member shall be furnished with a
statement of changes in Members' Capital Accounts for, or as of the end of, that
Fiscal Year. These financial statements must be prepared in accordance with
generally accepted accounting principles consistently applied (except as therein
noted). The Managers also may cause to be prepared or delivered such other
records as they may deem appropriate. The Company shall bear the costs of all
such financial statements and reports.
6.7 Bank and Investment Accounts. The Managers shall establish and
maintain one or more separate bank and investment accounts and arrangements for
Company funds in the Company name with financial institutions and firms that the
Managers determine. The Managers shall not commingle the Company's funds with
the funds of any Member.
ARTICLE VII
Transferability
7.1 Restrictions on Disposition of Interests.
(a) Except as specifically provided in this Article VII,
no Member may Transfer any Units:
(i) prior to March 9, 2005, without the consent of
all of the other Members; and
(ii) on and after March 9, 2005, without complying
with the requirements of Sections 7.3 and 7.4.
Notwithstanding the foregoing, any Member may
Transfer Units without complying with this Article
VII if the Transfer is made to an Affiliate of such
Member.
(b) The Company shall not recognize for any purpose any
purported Transfer unless and until the other applicable provisions of this
Article VII have been satisfied and the Board of Managers has received, on
behalf of the Company, a document (i) executed by both the Member effecting the
Transfer (or, if the Transfer is on account of the death, incapacity, or
liquidation of the transferor, its representative) and the Person to which the
Units are Transferred, (ii) including the notice address of any Person to be
admitted to the Company as a Member and its agreement to be bound by this
Agreement, (iii) setting forth the number of Units Transferred and the number of
Units being retained (which together shall total the number of Units of the
Member effecting the Transfer before the Transfer), and (iv) containing a
representation and warranty that the Transfer was made in accordance with all
applicable laws and regulations. The Member effecting a Transfer shall pay, or
reimburse the Company for, all costs and expenses incurred by the Company in
connection with the Transfer (including, without limitation, any costs or
expenses for legal fees incurred by the Company in connection with the Transfer)
on or before the tenth day after the receipt by that Person of the Company's
invoice for the amount due.
7.2 Additional Members. Additional Persons may be admitted to the
Company as Members and additional Units may be created and issued to such
Persons and to existing Members only with the consent of the Board of Managers.
Any additional Units offered pursuant to this Section 7.2 shall be offered on
such terms and conditions as the Board of Managers may determine at the time of
admission and/or issuance. The terms of admission or issuance shall specify the
number of Units issued and may provide for the creation of different classes or
groups of Members having different rights, power, and duties. Any admission
pursuant to this Article VII shall be effective only after the new Member has
executed and delivered to the Managers a document including the new Member's
notice address and its agreement to be bound by the terms of this Agreement.
7.3 Drag-Along Rights.
(a) At any time on or after March 9, 2005, in the event that
TFC wishes to accept a bona fide third party offer for the acquisition of Units
(whether by purchase, merger, consolidation or otherwise), TFC shall give
written notice thereof to each other Member, which notice shall describe the
material terms and conditions of such offer.
(b) TFC may by written notice (a "Drag-Along Notice") to each
Member require each other Member to sell the same proportionate percentage of
the Units which such Member owns, as TFC proposes to sell, for the same
consideration per Unit and otherwise on the same terms and conditions obtained
by TFC. Members participating in such a sale shall bear their pro rata share of
transaction costs incurred in connection with such sale to the extent such costs
would otherwise be borne by TFC. In such case, each Member shall take all
actions necessary in order to cause such sale of Units, including, without
limitation, the execution and delivery of documents and instruments requested by
TFC, and the Company shall bear all costs and expenses relating thereto.
(c) In addition to the foregoing, in the event that at any
time after March 9, 2005 TFC wishes to require the Company to sell, transfer,
assign or otherwise dispose of all or substantially all of the Company's Assets
in a transaction or in a series of transactions, TFC and the Company may require
the holders of all other Units to participate in such sale, transfer, assignment
or other disposition. In such case, each Member shall take all actions necessary
in order to cause such sale, transfer, assignment or other disposition of the
Company's Assets, including, without limitation, the execution and delivery of
documents and instruments requested by TFC, and the Company shall bear all costs
and expenses relating thereto.
(d) If TFC shall not have delivered a Drag-Along Notice with
respect to such proposed Transfer of Units, any other Member, at his option, may
by written notice (a "Tag-Along Notice") to TFC given within fifteen (15) days
of receipt of notice of such bona fide third party offer, require TFC to cause
such third party to acquire the same proportionate percentage of the Units which
such Member owns, as TFC proposes to sell, for the same consideration per Unit
and otherwise on the same terms and conditions obtained by TFC.
7.4 Right of First Refusal.
(a) At any time on or after March 9, 2005, if at any time a
Member (a "Selling Member") receives a bona fide offer (an "Offer") from a third
party (the "Buyer") to purchase some or all of its Units (the "Offered
Interest") that the Selling Member desires to accept, the Selling Member shall
deliver to the Company and the other Members (the "Non-Selling Members") a
written notice (the "First Refusal Notice") informing the Company and the
Non-Selling Members of such Offer and including (i) the name of the Buyer, (ii)
the size of the Offered Interest, (iii) the price, terms and all other material
conditions of such Offer and (iv) any other information relevant to the Company
and the Non-Selling Members necessary to evaluate the terms and the genuineness
of such Offer.
(b) The Company shall have fifteen (15) days from the date on
which it receives the First Refusal Notice to inform the Selling Member that it
wishes to purchase all, but not less than all, of the Offered Interest from the
Selling Member for the price stated in the First Refusal Notice (a "Right of
First Refusal"). The Company, in exercising its Right of First Refusal, shall
have the option of purchasing such Offered Interest for cash or for the same
consideration offered by the Buyer in the Offer; provided, however, that if the
Buyer offers a Selling Member the Buyer's own equity securities, the Company
will be required to exercise its right of first Refusal by purchasing the
Offered Interest for cash.
(c) If the Company elects not to exercise its Right of First
Refusal, the Company shall notify the Selling Member and the Non-Selling Members
within the same 15 day period that it will not exercise such right and each
Non-Selling Member shall have an additional fifteen (15) days to notify the
Selling Member that they wish to purchase all, but not less than all, of their
Offered Interests Percentage (as defined below) from the Selling Member for the
same price and on the same terms and conditions as stated in the Offer (the
"Right of Second Refusal"). Non-Selling Members wishing to exercise their Right
of Second Refusal shall have the right to purchase the portion of the Offered
Interest equal to the fraction obtained by dividing their percentage interest in
the Company by the total percentage interests of all the Members wishing to
exercise such right (each Non-Selling Member's "Offered Interests Percentage").
In the event that any Non-Selling Member elects not to exercise its Right of
Second Refusal, under this Section 7.4(c), for all of such Non-Selling Member's
Offered Interests Percentage, each Non-Selling Member which so exercised its
right shall have the right to purchase, on a pro rata basis, the remainder of
the Offered Interest. Each Non-Selling Member who or which exercises his or its
Right of Second Refusal shall have ninety (90) days to purchase the portion of
the Offered Interests with respect to which he or it has exercised such Right of
Second Refusal.
(d) To the extent that neither the Right of First Refusal or
the Right of Second Refusal are exercised in the required time period, the
Selling Member shall have ninety (90) days to sell the Offered Interest to the
Buyer on the terms and conditions set forth in the Offer. If the Offered
Interest is not sold within such 90 day period, such Selling Member must deliver
a new Notice to the Company and the Non-Selling Members and the Right of First
Refusal and the Right of Second Refusal are again exercisable.
ARTICLE VIII
Dissolution, Liquidation and Termination
8.1 Dissolution. The Company shall be dissolved and its affairs shall
be wound up upon the earlier of (i) the election to dissolve the Company by an
affirmative vote the Board of Managers or (ii) the entry of a decree of judicial
dissolution of the Company under the Act. Dissolution of the Company shall be
effective as of the day on which the event occurs giving rise to the
dissolution, but the Company shall not terminate until there has been a winding
up of the Company's business and affairs, and the Company Assets have been
distributed as provided in Section 8.2 of this Agreement and in the Act.
8.2 Liquidation and Termination. Upon dissolution of the Company, the
Managers shall act as liquidators or may appoint one or more Managers or Members
(with its or their consent) as liquidators. The liquidators shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided in this Section 8.2 and in the Act. The costs and expenses of
liquidation shall be borne as a Company expense. Until final distribution, the
liquidators shall continue to manage the Company's Assets and the Company's
affairs with all the power and authority of the Managers. After payment,
satisfaction or discharge of the Company's debts, liabilities and obligations
(or adequate provision therefor) has been made, all remaining Company Assets
shall be distributed to the Members, pro rata, in accordance with their positive
Capital Account balances. The distribution of the Company Assets to the Members
in accordance with the provisions of this Section 8.2 shall constitute a
complete return to the Members of their Capital Contributions and a complete
distribution to the Members of their Membership Interests and of all of the
Company Assets. To the extent that a Member returns funds to the Company, such
Member shall have no claim against any other Member for such funds.
8.3 Deficit Capital Accounts. Notwithstanding anything to the contrary
contained in this Agreement and notwithstanding any custom or rule of law to the
contrary, to the extent that the deficit, if any, in the Capital Account of any
Member results from or is attributable to deductions and losses of the Company
(including, without limitation, non-cash items such as depreciation), or
distributions of money or other assets pursuant to this Agreement to all Members
in proportion to their respective Units, upon dissolution of the Company such
deficit shall not be a Company Asset and such Member shall not be obligated to
contribute such amount to the Company to bring the balance of such Member's
Capital Account to zero.
8.4 Certificate of Dissolution. When all liabilities and obligations of
the Company have been paid or discharged, or adequate provision has been made
therefor, and all of the remaining Company Assets have been distributed to the
Members according to their respective rights and interests as provided in
Section 8.2 of this Agreement, the Company is terminated and the Managers (or
such other Person or Persons as the Act may require or permit) shall take such
actions, and shall execute, acknowledge and file any and all instruments, as may
be necessary or appropriate to reflect the dissolution and termination of the
Company.
8.5 Rights Following Dissolution.
(a) For five (5) years following the dissolution of the
Company, Textron shall retain a license to use (for use by Textron and its
Affiliates in the conduct of their respective businesses), at no cost, the
software and other communications and technology of the Company and Entrade. For
such five year period, Textron, TFC and their subsidiaries shall be entitled to
all generally available upgrades made to such technology, as well as routine
technical support.
(b) Following the Company's dissolution, TFC shall have the
right to continue the Company's pre-existing relationship with any of the
Company's "Fulfillment Partners," including service pricing equal to the lesser
of (i) the favored pricing offered by the Company prior to its dissolution and
(ii) the pricing offered to the Fulfillment Partners' best or largest customers.
The terms of this Section 8.5(b) shall continue for two (2) years from the date
of the Company's dissolution; provided, however, that if the Company is
dissolved by mutual agreement of the parties, this Section 8.5(b) shall continue
for a period of five (5) years from the date of the Company's dissolution.
ARTICLE IX
Conversion into Corporate Form
9.1 General. The parties to this Agreement have considered various
financial and other strategic initiatives relating to the Company and have
determined that the Company may ultimately wish to raise capital through the
public markets. Accordingly, the parties hereby agree to give the Board the
power and authority to convert the Company into corporate form at any time.
9.2 Conversion Mechanism.
(a) The Board shall have the power and authority to effect (i)
the conversion of the Company's business form from a limited liability company
to a Delaware corporation, (ii) the merger of the Company with or into a new or
previously-established but dormant Delaware corporation having no assets or
liabilities, debts or other obligations of any kind whatsoever other than those
associated with its formation and initial capitalization or (iii) the
liquidation of the Company and the distribution to the Members of the equity
securities of a corporate subsidiary which owns all of the assets and
liabilities of the Company (such a conversion, merger or liquidation is referred
to as a "Conversion" and such Delaware corporation is referred to as the "Public
Vehicle").
(b) Upon the consummation of a Conversion, the Units held by
each holder thereof shall thereupon be converted into a number of shares of the
Public Vehicle's common stock which would, as nearly as practicable, provide
each holder with the same economic benefit that such holder would receive if,
immediately prior to the Conversion, (i) the Company distributed all of its
assets to its Members in accordance with Section 8.2 or (ii) all of the
Company's assets were sold for their fair market value (which value shall be
determined in good faith by the Board) and the Company were liquidated and all
of its assets were distributed in accordance with Section 8.2. The Board's
determination of the number of shares of the Public Vehicle's common stock that
each Member receives upon a Conversion shall be final and binding on the holders
of Units absent manifest arithmetic error.
9.3 Member Action. In connection with a Conversion of Units into the
Public Vehicle's common stock effected by the Board pursuant to this Article IX,
each Member hereby covenants and agrees to take any and all such action and
execute and deliver any and all such instruments and other documents as the
Board may reasonably request in order to effect or evidence such conversion of
Units. Without limiting the generality of the foregoing, no Member shall have or
be entitled to exercise any dissenter's rights, appraisal rights or other
similar rights in connection with such Conversion.
9.4 Friends and Family Securities. In connection with the initial
public offering of the common stock of the Public Vehicle, the parties will use
commercially reasonable efforts to provide a mechanism for the shareholders of
each of the Members to participate in such offering at the initial offering
price so long as such participation does not violate federal or state securities
laws or regulations.
ARTICLE X
Miscellaneous Provisions
10.1 Financial Services. TFC shall have the exclusive right of first
refusal to provide financial services to the Company and its customers;
provided, however, that with respect to any financial services provided to the
Company, TFC shall not charge the Company an amount in excess of the amount
which TFC would charge its best or largest customers for the same services.
10.2 Offset. Whenever the Company is to pay any sum to any Member, any
amounts such Member owes the Company may be deducted from such sum before
payment.
10.3 Notices. Except as expressly set forth to the contrary in this
Agreement, all notices, requests, or consents provided for or permitted to be
given under this Agreement shall be in writing and shall be given either by
depositing such writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering such writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request, or consent given under this Agreement shall
be effective on receipt by the Person to whom sent. All notices, requests, and
consents to be sent to a Member shall be sent to or made at the address given
for such Member on Schedule A hereto or such other address as such Member may
specify by notice to the Company, the Managers or and the other Members. Any
notice, request, or consent to the Company or the Managers must be given to the
Managers at the address provided in Section 2.2 of this Agreement. Whenever any
notice is required to be given by law, the Certificate of Formation or this
Agreement, a written waiver thereof, signed by the Person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
10.4 Entire Agreement. This Agreement constitutes the entire agreement
of the Members relating to the Company and supersedes all prior contracts or
agreements with respect to the Company, whether oral or written.
10.5 Effect of Waiver or Consent. A waiver or consent, express or
implied, to or of any breach or default by any Person in the performance by such
Person of its obligations with respect to the Company shall not be a consent or
waiver to or of any other breach or default in the performance by such Person of
the same or any other obligations of such Person with respect to the Company.
Failure on the part of a Person to complain of any act or omission of any Person
or to declare any Person in default with respect to the Company, irrespective of
how long that failure continues, shall not constitute a waiver by such Person of
its rights with respect to that default until the applicable statute of
limitations period has run.
10.6 Governing Law Severability. This Agreement shall be governed by
and shall be construed in accordance with the laws of the State of Delaware,
excluding any conflict of laws rule or principle that might refer the governance
or the construction of this Agreement to the laws of another jurisdiction. In
the event of a direct conflict between the provisions of this Agreement and (i)
any provision of the Certificate of Formation, or (ii) any mandatory provision
of the Act, then the applicable provision of the Certificate of Formation or the
Act shall control. If any provision of this Agreement or the application thereof
to any Person or circumstance is held invalid or unenforceable to any extent,
the remainder of this Agreement and the application of that provision to other
Persons or circumstances shall not be affected thereby and such provision shall
be enforced to the fullest extent permitted by law.
10.7 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
10.8 Headings and Sections. The headings in this Agreement are inserted
for convenience only and are in no way intended to describe, interpret, define
or limit the scope, extent or intent of this Agreement or any provision hereof.
Unless the context requires otherwise, all references in this Agreement to
Sections or Articles shall be deemed to mean and refer to Sections or Articles
of this Agreement.
10.9 Numbers and Gender. Where the context so indicates, the masculine
shall include feminine and neuter, and the neuter shall include the masculine
and feminine, and the singular shall include the plural.
10.10 Binding Effect. Except as otherwise provided in this Agreement to
the contrary, this Agreement shall be binding upon and inure to the benefit of
the Members, their distributees, heirs, legal representatives, executors,
administrators, successors and assigns.
10.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and shall be
binding upon the Member who executed the same, but all of such counterparts
shall constitute the same Agreement.
10.12 Conflicts of Interest. Subject to the other express provisions of
this Agreement or except as otherwise expressly agreed in writing, each Manager,
Member and officer of the Company at any time and from time to time may engage
in and possess interests in other business ventures of any and every type and
description, independently or with others, including ones in competition with
the Company, with no obligation to offer to the Company or any other Member,
Manager or officer the right to participate therein.
10.13 Amendment or Modification of Agreement. The amendment or
modification of this Agreement is a Major Decision and, accordingly, this
Agreement may be amended or modified only by a written instrument executed and
agreed to by the Managers in accordance with Section 3.1; provided, however,
that any changes to Schedule A made by the Managers to reflect the admission of
a new Member or a change in the interest of a Member shall not be deemed to be
an amendment or modification requiring the consent of the Managers.
IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
date first written above by the undersigned and the undersigned, being all of
the Members, do hereby agree to be bound by the terms and provisions set forth
in this Agreement.
TEXTRON FINANCIAL CORPORATION
By:____________________________
ENTRADE INC.
By:____________________________
ATM SERVICE, LTD.
By:____________________________
SAFEGUARD SCIENTIFICS, INC.
By:____________________________
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, LLC
SCHEDULE A
Name and Address
and
Units of the Members
----------------------------------------- ---------------------------
Name and Addresses of Members Number of Units
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
Textron Financial Corporation 475
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
Entrade Inc. 380
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
ATM Service, Ltd. 95
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
Safeguard Scientifics, Inc. 50
800 The Safeguard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------- ---------------------------
----------------------------------------- ---------------------------
TOTAL 1,000
----------------------------------------- ---------------------------
