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EXHIBIT 3.7
XXXXXXXXXXXXXXX.XXX INCENTIVE PLAN LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
This Limited Liability Company Operating Agreement (the "Agreement"),
effective as of the 13th day of April, 2000, is entered into by and among the
Persons identified as Members in Schedule A annexed hereto, made a part hereof
and hereby incorporated herein, each (for such period of time as it shall remain
a Member hereunder) referred to individually as a "Member" and collectively as
the "Members."
WHEREAS, XxxxxxxxXxxxxxx.xxx Incentive Plan LLC (the "LLC") has been
formed pursuant to the Delaware Limited Liability Company Act (the "Act") by the
filing on March 15, 2000 of a Certificate of Formation (as such Certificate may
be amended from time to time, the "Certificate of Formation") in the office of
the Secretary of State of the State of Delaware; and
WHEREAS, capitalized terms used herein, and not otherwise defined herein,
have the meanings ascribed to them in Appendix I annexed hereto, made a part
hereof and hereby incorporated herein;
NOW, THEREFORE, in consideration of the mutual covenants herein expressed,
the parties hereto hereby agree as follows:
1. Principal Office; Registered Office and Registered Agent. The principal
office of the LLC shall initially be 00 Xxxxx Xxxxx Xxxxxx, Xxxx, XX 00000. The
name and address of the registered agent of the LLC for service of process
pursuant to the Act shall initially be The Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the LLC's registered office in
the State of Delaware shall be c/o The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Manager may, upon compliance with the
applicable provisions of the Act, change the LLC's principal office, its
registered office or registered agent from time to time, all as determined by
the Manager.
2. Purpose. The LLC was formed for the purpose of engaging in any lawful act or
activity for which limited liability companies may be formed under the Act,
including, without limitation, holding membership interests in
XxxxxxxxXxxxxxx.xxx LLC, a Delaware limited liability company, and engaging in
any and all activities necessary, advisable, convenient or incidental thereto.
The LLC shall have all the powers necessary or convenient to carry out the
purposes for which it is formed, including the powers granted by the Act. Except
as otherwise required by the Act or other applicable law, in connection
therewith, the Manager shall have the authority to (i) exercise all the powers
and privileges granted to an LLC by the Act or any other law or this Agreement,
together with any powers incidental thereto, so far as such powers are necessary
or convenient to the conduct, promotion or attainment of the business, trade,
purposes or activities of the LLC in the State of Delaware or in any other
jurisdiction in which the LLC shall conduct business and (ii) take any other
action not prohibited under the Act or other applicable
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law; and, except as provided in Sections 3(a) and 13(b) hereof, no Member acting
in its capacity as a Member shall have any authority, power or privilege to act
on behalf of or to bind the LLC.
3. Management.
(a) Designation of Manager. The sole manager (the "Manager") of the LLC
shall be XxxxxxxxXxxxxxx.xxx Holdings LLC, a Delaware limited liability company.
If at any time there is no Manager, the number of Managers may be determined and
one or more Managers may be designated by approval of a Majority in Interest of
the Common Members. The Manager may resign from, retire from, abandon or
otherwise terminate its status as a Manager upon prior notice to the LLC.
(b) Transactions with Affiliates. The Manager may cause the LLC to enter
into one or more agreements, leases, contracts or other arrangements for the
furnishing to or by the LLC of goods, services or space with any Member, Manager
or an Affiliate thereof, and may pay compensation thereunder for such goods,
services or space, provided in each case the Manager has determined in good
faith that the terms of any such arrangements are in, or not opposed to, the
best interests of the LLC.
(c) Power of Manager to Bind the LLC. The signature of the Manager acting
alone on any agreement, contract, instrument or other document shall be
sufficient to bind the LLC in respect thereof and conclusively evidence the
authority of the Manager and the LLC with respect thereto, and no third party
need look to any other evidence or require joinder or consent of any other party
to bind the LLC or to evidence such authority.
(d) Appointment of Officers and Other Agents. The Manager may appoint one
or more individuals as agents of the LLC with, in each case, such title and
duties and power and authority as the Manager shall determine from time to time,
and such agents may be referred to as officers of the LLC; provided, however,
that no such appointment by the Manager shall by itself cause the Manager to
cease to be a "manager" of the LLC within the meaning of the Act or this
Agreement or restrict the ability of the Manager to exercise the powers so
delegated. Unless the authority of the agent designated as the officer in
question is limited in the document appointing such officer or is otherwise
specified by the Manager, any officer so appointed shall have the same authority
to act for the LLC 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.
(e) Standard of Care for Manager. The Manager shall perform its duties
hereunder in good faith and with that degree of care that an ordinarily prudent
Person in a like position would use under similar circumstances. The Manager
shall be entitled to rely, in the performance of such duties, on information,
opinions, reports or statements, including financial statements, in each case
prepared by one or more agents or employees, counsel, public accountants or
other Persons employed by the LLC, as to matters that the Manager believes to be
within such Persons' special competence.
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4. Capital Contributions; Capital Accounts; and Liability of Members.
(a) Capital of Members. The capital contributions that each Member has
made to the LLC on or before the date of this Agreement are set forth on
Schedule A, and the number of Shares owned by such Member is also set forth on
such Schedule A. The Manager shall amend Schedule A from time to time to
properly reflect any changes in the capital contributions made by, or the number
of Shares owned by, the Members.
(b) Additional Capital. No Member shall be obligated to contribute any
additional capital to the LLC.
(c) Capital Accounts. A separate capital account (each, a "Capital
Account") shall be established for each Member and shall be maintained in
accordance with applicable regulations ("Treasury Regulations") under the
Internal Revenue Code of 1986, as amended (the "Code").
(d) Liability of Members. The liability of a Member for the losses, debts
and obligations of the LLC shall be limited to its capital contributions
theretofore made to the LLC by such Member (or its predecessor in interest)
which have not been repaid to or withdrawn by such Member (or its predecessor in
interest) in accordance with the terms of this Agreement. No Member, in its
capacity as a Member, shall have any liability to restore any negative balance
in its Capital Account.
(e) Admission of Additional Members. Subject to any restrictions or other
applicable procedures imposed by this Agreement, additional members may be
admitted to the LLC on such terms and conditions as may be specified by the
Manager. In connection with any such admission, including any admission due to a
Transfer of all or part of an interest under Section 8 hereof, Schedule A shall
be amended by the Manager to reflect the inclusion of the additional Member(s).
The Manager is hereby authorized to amend this Agreement, without the consent of
any Member, to provide for additional classes or groups of members of the LLC
having such relative rights, powers and duties as the Manager shall determine in
its sole discretion, including but not limited to rights, power and duties
senior to existing classes or groups of members.
5. Return of Contributions. No Member shall have the right to withdraw or to be
repaid any capital contributed by it or to receive any other payment in respect
of such Member's interest in the LLC, including without limitation as a result
of the withdrawal or resignation of such Member from the LLC, except as
specifically provided in this Agreement.
6. Distributions.
(a) Distributions Other Than in Liquidation of the LLC. Except as
otherwise provided by Section 6(b), all distributions shall be made to the
Members in the following order of priority:
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(i) First, to each Common Member, such Common Member's Pro Rata
Share of the aggregate amount of any distribution made to the LLC by
XxxxxxxxXxxxxxx.xxx LLC (and not previously taken into account under
this Section 6(a)(i); and
(ii) Thereafter, to the Residual Member.
(b) Distributions upon Liquidation. All distributions upon liquidation and
dissolution of the LLC shall be made in the following order of priority:
(i) First, to each Common Member, an amount equal to the excess of
(A) such Member's Pro Rata Share of the aggregate amount available
for distribution by the LLC minus (B) the aggregate Reserve Amounts
with respect to all Shares held by such Member; and
(ii) Thereafter, to the Residual Member.
(c) Distributions of Cash and Other Property. Except as the Manager may
otherwise determine, all distributions to Members shall be made in cash. If any
assets of the LLC are distributed in kind, such assets shall be distributed on
the basis of their fair market value as determined by the Manager. Any amounts
not distributed upon liquidation of the LLC pursuant to Section 6(b) hereof on
account of expenses and reserves shall serve to reduce the distributions made to
each Member pursuant to Section 6(b) hereof in a manner reasonably determined by
the Manager. Any such reserves as remain after payment of contingent liabilities
shall be distributed to the Members in the manner in which they served to reduce
the distributions thereto.
(d) Tax Distributions. The Manager shall, to the extent of the cash then
available to the LLC, make a distribution (a "Tax Distribution") to the Members
entitled thereto not later than the date specified below. The LLC shall make a
Tax Distribution prior to the tenth day of April, June, September and January of
each fiscal year in an amount equal to one quarter (1/4) of the Members'
Estimated Tax Liability. For purposes of this Section 6(d), the "Members'
Estimated Tax Liability" means the product of (i) the taxable income of the LLC
for the then current fiscal year (except that the January distribution shall be
for the previous calendar quarter), as projected from time to time in good faith
by the Manager multiplied by (ii) the Tax Distribution Rate, which amount shall
be distributed among the Members pro rata in proportion to their respective
estimated allocable shares of such taxable income for such year, as so
projected; provided, however, that the Tax Distribution payable to the Members
for a fiscal year (or portion thereof) shall be reduced to reflect net losses
and deductions (i.e., the excess of losses and deductions over income and gains)
and credits allocated by the LLC to the Members generally for federal income tax
purposes in any and all earlier periods (except to the extent previously applied
to reduce a Tax Distribution or to the extent the carryforward period for such
losses or credits has expired). For purposes of this Section 6(d), the "Tax
Distribution Rate" shall
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initially mean 45% or such other percentage as may be approved by the Manager
from time to time as the approximate highest current marginal combined federal
and state income tax rate applicable to an individual resident in Massachusetts
(determined after giving effect to the deduction (if allowable) of state income
taxes for federal income tax purposes). All amounts distributed to Members
pursuant to this Section 6(d) shall be advances of amounts otherwise
distributable to Members under the provisions of Section 6 hereof.
(e) Withholding of Taxes. Each Member hereby authorizes the LLC to
withhold and pay over any withholding or other taxes payable by the LLC as a
result of such Member's status as a Member. Such Member shall be deemed for all
purposes of this Agreement to have received a distribution from the LLC in the
amount and as of the time each such withholding is paid by the LLC.
7. Allocations and Certain Tax Matters.
(a) Allocations of Income, Gain, Deduction and Loss. All items of income,
gain, deduction and loss of the LLC as determined for federal income tax
purposes shall be allocated among the Members, and shall be credited or debited
to their respective Capital Accounts in accordance with Treasury Regulation
Section 1.704-1(b)(2)(iv), so as to ensure to the maximum extent possible that
such allocations satisfy the economic effect equivalence test of Treasury
Regulation Section 1.704-1(b)(2)(ii)(i). In accordance therewith, all items that
can have economic effect shall be allocated in such a manner that the balance of
each Member's Capital Account at the end of any taxable year of the LLC
(increased by the sum of (1) such Member's "share of partnership minimum gain"
as defined in Treasury Regulation Section 1.704-2(g)(1) plus (2) such Member's
"share of partner nonrecourse debt minimum gain" as defined in Treasury
Regulation Section 1.704-2(i)(5)) would be positive in the amount of cash that
such Member would receive if the LLC sold all of its assets for an amount of
cash equal to the book value (as determined pursuant Treasury Regulation Section
1.704-1(b)(2)(iv)(g)) of such assets (reduced, but not below zero, by the amount
of nonrecourse debt to which such property is subject) and all of the cash of
the LLC remaining after payment of all liabilities (other than nonrecourse
liabilities) of the LLC were distributed in liquidation of the LLC immediately
following the end of such taxable year pursuant to Section 6(b) hereof. All
items of income, gain, deduction and loss that cannot have economic effect
(including nonrecourse deductions) shall be allocated in accordance with the
Members' interests in the LLC, which, unless otherwise required by Code Section
704(b) and the Treasury Regulations thereunder, shall be (A) to each Common
Member, such Common Member's Pro Rata Share of the aggregate amount of such
allocation and (B) the remainder of the aggregate amount of such allocation to
the Residual Member.
(b) Tax Allocations. Items of income, gain, deduction and loss for
purposes of determining the Members' Capital Accounts (that is, for "book
purposes") shall be determined in accordance with the same principles as such
items are determined for reporting such items on the LLC's federal income tax
return. All items of income, gain, deduction, loss or credit for tax purposes
shall be determined in accordance with the
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Code and, except to the extent otherwise required by the Code, allocated to and
among the Members in the same percentages in which the Members share in such
items for book purposes. Notwithstanding the foregoing, if the book value of
property differs from its tax basis, then for the purposes of this Agreement,
all determinations of income, gain, deduction and loss for tax purposes shall be
determined with respect to such book value in accordance with the rules of
Treasury Regulation Section 1.704-1(b)(2)(iv)(g).
(c) Certain Allocations with Respect to Contributed Property. In
accordance with Code Section 704(c) and the Treasury Regulations thereunder,
items of depreciation, amortization, gain, loss, and deduction with respect to
any property contributed to the capital of the LLC shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the LLC for federal income tax
purposes and its initial book value, such allocation to be made by the Manager
in accordance with the so-called "traditional method with curative allocations
solely in the case of a sale of property" as provided under Treasury Regulation
Section 1.704-3(c)(iii)(B).
(d) Tax Elections. Any elections or other decisions relating to
allocations of income, gain, deduction, loss or credit hereunder or any other
tax elections (including elections under Code Section 754) that must be made at
the LLC level (as opposed to by the LLC's Members) shall be made (or not made)
by the Manager in its sole discretion.
(e) Shares Held During Portion of Taxable Year. For purposes of
determining the income, gain, loss, deduction or credit, or any other items
allocable to any period, such items shall be determined on a daily, monthly, or
other basis, as determined by the Manager using any permissible method under
Code Section 706 and the Treasury Regulations thereunder.
(f) Consistent Reporting. The Members are aware of the income tax
consequences of the allocations made by this Section 7 and hereby agree to be
bound by the provisions of this Section 7 in reporting their distributive shares
of LLC income and loss for income tax purposes.
(g) Section 83(b) Elections. Each Person who receives a Share shall timely
file an election with respect to such Share under section 83(b) of the Code on a
form to be provided to such Person by the Manager.
8. Restrictions on Transfers of Shares.
(a) Restrictions in General. No Member may Transfer such Member's interest
in the LLC or any part thereof, or in all or any part of the assets of the LLC,
and no Member may withdraw from, resign from, retire from, abandon or otherwise
terminate its status as a Member, without the prior written consent of the
Manager. Notwithstanding anything to the contrary herein, no Member shall
transfer its interest in the LLC to the extent that such transfer would violate
the Securities Act of 1933, as amended, or any other federal or state securities
or blue sky laws.
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(b) Issuance of Shares. During the term of this Agreement, the LLC shall
not issue any Shares to any Person (other than a Person which is already a
Member hereunder) unless such Person agrees in writing to be bound by all of the
provisions of this Agreement.
9. Priorities. No Member shall have any rights or priority over any other
Members as to contributions or as to distributions or compensation by way of
income, except as specifically provided in this Agreement.
10. Term; Dissolution of the LLC.
(a) Term. The term of the LLC shall be perpetual, unless sooner terminated
as hereinafter provided.
(b) Events of Dissolution or Liquidation. The LLC shall be dissolved upon
the happening of any of the following events:
(1) the consent of the Manager;
(2) the sale of all or substantially all of the assets of the LLC or
of XxxxxxxxXxxxxxx.xxx LLC;
(3) the liquidation and dissolution of XxxxxxxxXxxxxxx.xxx LLC;
(4) a public offering of equity securities of a corporate successor
to XxxxxxxxXxxxxxx.xxx LLC; or
(5) the entry of a decree of judicial dissolution under the Act.
Following any of the foregoing events, the Manager shall proceed diligently to
liquidate the assets of the LLC in a manner consistent with commercially
reasonable business practices.
(c) Distributions upon Liquidation. In connection with the liquidation of
the LLC, the assets of the LLC shall be applied and distributed in the following
order of priority:
(1) to creditors of the LLC, including Members, in the order of
priority provided by law, and the creation of a reserve of cash or other
assets of the LLC for contingent liabilities in an amount, if any,
determined by the Manager to be appropriate for such purposes; and
(2) to the Members in accordance with the provisions of Section 6.
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11. Financial and Accounting Matters.
(a) Books and Records. The Manager shall keep or cause to be kept complete
and accurate books and records of the LLC, using the same methods of accounting
that are used in preparing the federal income tax returns of the LLC to the
extent applicable and otherwise in accordance with generally accepted accounting
principles consistently applied. Such books and records shall be maintained and
available, in addition to any documents and information required to be furnished
to the Members under the Act, at the principal business office of the LLC for
examination and copying by any Member or Manager, or its duly authorized
representative, at its reasonable request and at its expense during ordinary
business hours. A current list of the full name and last known address of each
Member and Manager, a copy of this Agreement, any amendments thereto and the
Certificate of Formation, executed copies of all powers of attorney, if any,
pursuant to which this Agreement, any amendment, or the Certificate of Formation
has been executed, copies of the LLC's financial statements and federal, state
and local income tax returns and reports, if any, for each of the last 6 fiscal
years, shall be maintained at the principal business office of the LLC along
with such other information, if any, as may be required to be made available to
Members pursuant to Section 18-305 of the Act. On or before the due date
(including extensions) of the federal income tax return of the LLC for each
fiscal year of the LLC, each Member shall be furnished with copies of the LLC's
federal income tax return for the fiscal year then ended and any other tax
information reasonably required for state or local tax purposes.
(b) Bank Accounts. Bank accounts and/or other accounts of the LLC shall be
maintained in such banking and/or other financial institution(s) as shall be
selected by the Manager, and withdrawals shall be made and other activity
conducted on such signature or signatures as shall be designated by the Manager.
(c) Fiscal Year. Except as otherwise required by the Code, the fiscal year
(and taxable year) of the LLC shall end on December 31 of each year.
(d) Tax Matters Partner. XxxxxxxxXxxxxxx.xxx Holdings LLC shall be the
"tax matters partner" of the LLC for purposes of the Code, until its bankruptcy,
insolvency, resignation or the designation of its successor, whichever occurs
sooner. Any subsequent "tax matters partner" shall be designated from time to
time by the Manager.
12. Indemnity; Other Business.
(a) Indemnity. Each Member, the Manager and any other entity or individual
authorized to act on behalf of the LLC shall be entitled to indemnity from the
LLC for any liability incurred and/or for any act performed within the scope of
the authority conferred, and/or for any act omitted to be performed, which
indemnification shall include all reasonable expenses incurred, including
reasonable legal and other professional fees and expenses; provided, however,
that such Person acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the LLC.
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(b) Outside Interests. The Members, the Manager, and any Affiliates of any
of them may engage in and possess interests in other business ventures and
investment opportunities of every kind and description, independently or with
others, including serving as manager and general partner of other limited
liability companies and partnerships; provided, however, that no such other
business venture or investment opportunity shall be in direct competition with
the business and activities of the LLC. Neither the LLC nor any other Member or
Manager shall have any rights in or to such ventures or opportunities or the
income or profits therefrom.
13. Miscellaneous.
(a) Binding Effect. Subject to the restrictions on Transfers set forth
herein, the terms of this Agreement shall be binding upon and shall inure to the
benefit of the Members, their respective successors, successors-in-title, heirs
and assigns; and each and every successor-in-interest to any Member, whether
such successor acquires a Share by way of inheritance, gift, purchase,
foreclosure or any other method, shall hold such Share subject to all of the
terms and provisions of this Agreement. None of the provisions of this Agreement
shall be for the benefit of or enforceable by any Person not a party hereto,
including without limitation any creditor of any Member (including any Member
acting in its capacity as a creditor of the LLC).
(b) Amendment. No change, modification or amendment of this Agreement
shall be valid or binding unless such change, modification or amendment is made
with the consent of the Manager and the consent of a Majority in Interest of the
Common Members.
(c) Liquidation upon IPO of XxxxxxxxXxxxxxx.xxx LLC or any Affiliate. Each
Member hereby acknowledges and agrees that, unless determined otherwise by the
Manager, effective upon determination of the Manager in connection with
completion of an initial public offering of equity securities by a corporate
successor to XxxxxxxxXxxxxxx.xxx LLC or any of its Affiliates, the LLC will be
liquidated, without further consent or agreement of any Member, and the Members
will receive shares of capital stock of the corporate successor to
XxxxxxxxXxxxxxx.xxx LLC or such Affiliate having substantially similar
preferences, rights, qualifications and restrictions as pertain to their
interests in the LLC immediately prior to such liquidation.
(d) Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted and enforced in
accordance with the laws of the State of Delaware, notwithstanding any choice of
law rules to the contrary.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall for all purposes constitute one
Agreement, binding on all the Members notwithstanding that all Members have not
signed the same counterpart.
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(f) Notices. Any and all notices under this Agreement shall be effective
(i) on the fifth business day after being sent by certified mail, return receipt
requested, postage prepaid, or (ii) on the first business day after being sent
by express mail, telecopy, or commercial expedited delivery service providing a
receipt for delivery. All such notices in order to be effective shall be
addressed, if to the LLC at its registered office under the Act, if to a Member
at the last address of record on the LLC's books, and copies of such notices
shall also be sent to the last address for the recipient which is known to the
sender, if different from the address so specified. Copies of such notices shall
also be sent to Goulston & Storrs, P.C., 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Xxxx Xxxxxxxx, Esquire.
(g) Interpretation. As used herein, the singular shall include the plural
and the masculine gender shall include the feminine and neuter, and vice-versa,
unless the context otherwise requires.
(h) Entire Agreement. This Agreement, including all Schedules and
Appendices attached hereto and the Certificate of Formation, which are hereby
incorporated herein, embodies the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter.
(i) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of this
Agreement shall be interpreted as if such provision were so excluded, and (c)
the balance of this Agreement shall be enforceable in accordance with its terms.
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IN WITNESS WHEREOF, the Manager and Members have executed this Agreement
as of the date first above written.
MANAGER:
XXXXXXXXXXXXXXX.XXX HOLDINGS LLC
By:/s/
--------------------------------
Its Manager
MEMBERS:
COMMON MEMBERS:
RESIDUAL MEMBER:
XXXXXXXXXXXXXXX.XXX HOLDINGS LLC
By: /s/
--------------------------------
Its Manager
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SCHEDULE A
TO
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
XXXXXXXXXXXXXXX.XXX INCENTIVE PLAN LLC
------------------------------------------------------------------------------
MEMBER CAPITAL CLASS OF SHARES NUMBER OF
CONTRIBUTION SHARES
------------------------------------------------------------------------------
XxxxxxxxXxxxxxx.xxx $ 0 Residual 1
Holdings LLC
------------------------------------------------------------------------------
[Employees] $ 0 Common [Up to 2,000,000]
------------------------------------------------------------------------------
TOTAL COMMON SHARES $ 0 [UP TO 2,000,000]
------------------------------------------------------------------------------
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APPENDIX I
DEFINED TERMS
The following capitalized terms shall have the meanings specified in this
Appendix I.
"Act" shall have the meaning set forth in the first recital to this
Agreement.
"Affiliate" means, with respect to a specified Person, any other Person
that directly or indirectly controls, is under common control with, or is
controlled by the specified Person. As used herein, the term "control" means the
possession by a Person, directly or indirectly, of the power to direct or cause
the direction of the management and policies of another Person, whether through
ownership of voting securities, by contract or otherwise.
"Agreement" shall have the meaning set forth in the Preamble to this
Agreement.
"Capital Account" shall have the meaning set forth in Section 4(c).
"Certificate of Formation" shall have the meaning set forth in the first
recital to this Agreement.
"Code" shall have the meaning set forth in Section 4(c).
"Common Member" means any Member other than the Residual Member.
"LLC" shall have the meaning set forth in the first recital to this
Agreement.
"Majority in Interest of the Common Members" means more than fifty percent
(50%) of the number of Shares owned by all Common Members in the aggregate.
"Manager" shall have the meaning set forth in Section 3(a).
"Member" and "Members" shall have the meanings set forth in the Preamble
to this Agreement.
"Members' Estimated Tax Liability" shall have the meaning set forth in
Section 6(d).
"Person" means any natural person or any general partnership, limited
partnership, limited liability partnership, corporation, joint venture, trust,
business trust, cooperative, association, or limited liability company, and
shall include the heirs, executors, administrators, legal representatives,
successors and assigns of such Person where the context so admits.
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"Pro Rata Share" means, for any Common Member with respect to any amount
to be allocated or distributed by the LLC, the product of (A) the aggregate
amount to be allocated or distributed by the LLC, as the case may be, multiplied
by (B) a fraction, the numerator of which is the aggregate number of Shares held
by such Member and the denominator of which is the aggregate number of Common
Shares of XxxxxxxxXxxxxxx.xxx LLC held by the LLC.
"Reserve Amount" means, with respect to any Share, an amount equal to the
fair market value of such Share, as determined in good faith by the Manager, at
the time such Share is transferred by the LLC to a Member (but prior to taking
into account the Reserve Amount with respect to such Share).
"Residual Member" means XxxxxxxxXxxxxxx.xxx Holdings LLC and its
successors and assigns.
"Residual Share" means, with respect to any distribution made by the LLC
at a particular time, an amount equal to the excess of (i) the total amount
available for distribution at such time over (ii) the aggregate amount of
distributions made to the Common Members at such time.
"Shares" means all units of membership interest in the LLC held by each
Common Member, whether now owned or hereafter acquired. Except as provided in
Section 6(b)(ii) with respect to Reserve Amounts, each Share shall entitle the
Common Member holding such Share to an amount of distributions from the LLC at
least equal to the amount of any distributions made to the LLC on one Common
Share of XxxxxxxxXxxxxxx.xxx LLC.
"Tax Distribution" shall have the meaning set forth in Section 6(d).
"Tax Distribution Rate" shall have the meaning set forth in Section 6(d).
"Transfer" means, when used as a noun, any disposition of Shares or any
interest therein, for value or otherwise, including, without limitation, any
sale, gift, bequest, assignment, pledge or encumbrance, and whether effected by
contract, by operation of law or otherwise. "Transfer," when used as a verb,
shall have a correlative meaning.
"Treasury Regulations" shall have the meaning set forth in Section 4(c).
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