WS TECHNOLOGIES LLC OPERATING AGREEMENT
Exhibit
10.15
WS
TECHNOLOGIES LLC
This Operating Agreement is made and
entered into as of the Effective Date by microHelix, Inc., an Oregon
corporation, Aequitas Capital Management, Inc., an Oregon corporation, and
CarePayment, LLC, an Oregon limited liability company, as the initial Members of
the Company pursuant to the Act.
Section
1
THE
COMPANY
1.1 Definitions. Unless
otherwise indicated, capitalized words and phrases used in this Agreement have
the meanings set forth on Exhibit A attached to this
Agreement.
1.2 Formation. The
Company was formed upon the execution and filing of the Articles in accordance
with the Act.
1.3 Purpose. The
Company's purpose is to engage in any lawful business permitted under the
Act.
1.4 Principal Place of
Business. The Company's principal place of business will
initially be at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxx
00000. The Manager may relocate the principal office or establish
additional offices from time to time.
1.5 Term. The Company's
term commenced on the Effective Date and will continue until the winding up and
liquidation of the Company and its business is completed following a Liquidating
Event.
1.6 Defects as to
Formalities. A failure to observe any formalities or
requirements of this Agreement, the Articles or the Act will not be grounds for
imposing personal liability on the Members for the Company's
liabilities.
1.7 Title to
Property. The Company will own and hold title to all Property
in the Company's name, or in the name of a nominee of the Company, as an entity
and no Member will have any interest in Property.
Section
2
CAPITAL
CONTRIBUTIONS
2.1 Members and Initial Capital
Contributions. The names and initial Capital Contributions of
the initial Members and the number of Units acquired by each are as
follows:
|
Name
|
Initial Capital
Contribution
|
Units
|
||
|
microHelix,
Inc.
|
1,000,000
shares of the Series D Preferred Stock of microHelix, Inc. and warrants to
purchase up to 65,100,917 shares of microHelix, Inc. Class B Common
Stock at an exercise price of $0.001 per share, as described and defined
in the Contribution Agreement between microHelix, Inc. and the Company
dated December 30, 2009.
|
99
|
||
|
Aequitas
Capital Management, Inc.
|
All
of the Assets described and defined in the Contribution Agreement between
Aequitas Capital Management, Inc. and the Company dated December 30,
2009.
|
56
|
||
|
CarePayment,
LLC
|
|
All
of the Assets described and defined in the Contribution Agreement between
CarePayment, LLC and the Company dated December 30,
2009.
|
|
44
|
The
Members will make their initial Capital Contributions upon the Manager's
request.
2.2 Maintenance of Capital
Accounts. The Company will establish and maintain Capital
Accounts with respect to each Unit Holder all in accordance with the capital
accounting rules of Regulations Section 1.704-1(b)(2)(iv). The
Manager may increase or decrease Capital Accounts to reflect revaluations of
Property in accordance with Regulations
Section 1.704-1(b)(2)(iv)(f). The Manager may modify the manner
in which the Capital Accounts are computed to comply with the Regulations,
provided that it is not likely to materially affect the amounts distributed to
any Person under Section 12 upon the dissolution of the Company. The
Manager will also make any adjustments that are necessary or appropriate to
maintain proportionality between the Capital Accounts of the Unit Holder and the
amount of Company capital reflected on the Company's books, in accordance with
Regulations Section 1.704-1(b)(2)(iv)(q).
2.3 Other Matters. No
Unit Holder will:
(a) Demand
or receive a return of any Capital Contributions without the consent of all
Members. Under circumstances requiring a return of any Capital
Contributions, no Unit Holder will have the right to receive property other than
cash except as may be specifically provided in this Agreement.
(b) Receive
any interest or drawing with respect to any Capital Contributions or any Capital
Account, except as otherwise provided in this Agreement.
(c) Have
any personal liability for the repayment of any Capital Contributions of any
other Unit Holder.
2.4 Other Business of
Members. Except as otherwise agreed in writing, each Member
may engage independently or with others in any other business, including the
acquisition and disposition of properties that are competitive with the Company,
and otherwise invest in ventures of every nature and description with no
obligation to account to the Company for competitive businesses or investments
or for business or investment opportunities or to offer the Company or any
Member the opportunity to participate in the acquisition of other property or in
any other business venture.
2.5 Issuance of Additional Units to
Existing Members. If approved by all the Members, the Company
may issue additional Units to one or more existing Members. A Member
who receives newly-issued Units will automatically be a Member with respect to
the newly-issued Units.
2.6 Issuance of Units to Persons Who Are
Not Members. If approved by all the Members, the Company may
issue Units to any Person who is not then a Member. The Person
receiving the Units will not become a Member unless and until all the conditions
described in Sections 10.3(b) and 10.5(c) through 10.5(f) are satisfied, as if
the issuance is a Transfer and the Person being issued Units is a
transferee.
Section
3
ALLOCATIONS
3.1 Profits. After
giving effect to the special allocations set forth in Exhibit B, Profits
for any Fiscal Year, if any, will be allocated to the Unit Holders in the
following order and priority:
(a) First,
to the Unit Holders until the cumulative Profits allocated under this
Section 3.1(a) offset the cumulative losses allocated to the Unit Holders
under Section 3.2(b) for all prior Fiscal Years; and
(b) The
balance, if any, to the Unit Holders in proportion to the number of Units held
by each.
3.2 Losses. After
giving effect to the special allocations set forth in Exhibit B, Losses for
any Fiscal Year will be allocated as set forth in Section 3.2(a), subject
to the limitation in Section 3.2(b) below.
(a) Losses,
if any, for any Fiscal Year will be allocated to the Unit Holders in proportion
to the number of Units held by each.
(b) The
Losses allocated to a Unit Holder under Section 3.2(a) will not exceed the
maximum amount that can be allocated to the Unit Holder without causing the Unit
Holder to have an Adjusted Deficit at the end of any Fiscal Year. If
some but not all of the Unit Holders would have Adjusted Deficits as a
consequence of an allocation of Losses pursuant to Section 3.2(a), the
limitation set forth in this Section 3.2(b) will be applied on a Unit
Holder-by-Unit Holder basis so as to allocate the maximum permissible Loss to
each Unit Holder under Section 1.704-1(b)(2)(ii)(d) of the
Regulations.
3.3 Other Allocation
Rules. The Unit Holders will share "excess nonrecourse
liabilities" of the Company within the meaning of Regulations
Section 1.752-3(a)(3) in proportion to the number of Units held by
each.
3.4 Tax Allocations: Code
Section 704(c). In accordance with Code
Section 704(c) and the related Regulations, income, gain, loss, and
deduction with respect to any Property contributed to the capital of the Company
or carried on its books for Capital Account purposes will, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of the Property to the Company for federal income tax
purposes and its initial fair market value for Capital Account
purposes. If the value of any Company asset is adjusted pursuant to
Section 2.2, subsequent allocations of income, gain, loss, and deduction
with respect to the asset will take account of any variation between the
adjusted basis of the asset for federal income tax purposes and its value for
Capital Account purposes in the same manner as under Code Section 704(c)
and the related Regulations. The Company will make any elections or
other decisions relating to such allocations in any manner that reasonably
reflects this Agreement's purpose and intention. Allocations pursuant
to this Section 3.4 are solely for purposes of federal, state, and local
taxes and will not affect, or in any way be taken into account in computing, any
Person's Capital Account or share of Profits, Losses, other items, or
distributions pursuant to any provision of this Agreement.
Section
4
DISTRIBUTIONS
4.1 Mandatory Tax
Distributions. Each Fiscal Year, the Company will distribute
Net Cash, if any, to each Unit Holder in an amount equal to the sum of
(a) the product of the ordinary income (net of any tax benefits resulting
from losses, deductions and credits) that passes through the Company to such
Unit Holder under Section 702 of the Code, multiplied by the highest combined
federal, state and local ordinary income tax rate that may apply to any Unit
Holder, plus (b) the product of the net capital gains that passed through
the Company to such Unit Holder under Section 702 of the Code, multiplied by the
highest combined federal, state and local long-term capital gains tax rate that
that applies to any Unit Holder, minus (c) the cumulative amount of all
prior distributions to such Unit Holder under Section 4.2 for the
applicable Fiscal Year. The Company will endeavor to make such
distributions in a timely manner to allow the Unit Holders to pay the estimated
and regular tax attributable to such income.
4.2 Discretionary
Distributions. Except as otherwise provided in
Section 4.1 and Section 12, the Company will distribute Net Cash, if any,
at the time and in the amounts as the Manager determines in its sole discretion,
to the Unit Holders in proportion to the number of Units held by each on the
date designated for the distribution. There may be extended periods
in which Net Cash is retained by the Company and there are limited or no
distributions.
Section
5
MEMBER
MEETINGS
5.1 Meetings. A meeting
of Members will be held (a) if it is called by the Manager, or (b) if
Members owning more than 25% of the outstanding Units sign, date, and deliver to
the Company's principal office a written demand for the meeting, describing the
purpose or purposes for which it is to be held. Meetings of Members
will be held at the principal office of the Company or any other place specified
in the notice of meeting.
5.2 Notice of
Meeting. Notice of the date, time, and place of each meeting
of Members will be given to each Member not earlier than 60 days nor fewer than
10 days before the meeting date. The notice must include a
description of the purpose or purposes for which the meeting is
called.
5.3 Record Date. The
persons entitled to notice of and to vote at a meeting of Members, and their
respective number of Units held, will be determined as of the record date for
the meeting. The record date will be a date, not earlier than 70 days
nor fewer than 10 days before the meeting, selected by the
Manager. If the Manager does not specify a record date, the record
date will be the date on which notice of the meeting was first mailed or
otherwise delivered.
5.4 Proxies. A Member
may be represented at a meeting in person or by written proxy.
5.5 Voting. On each
matter requiring action by the Members, each Member will be entitled to vote the
number of Units held by the Member. Except as otherwise stated in the
Articles, this Agreement, or applicable law, a matter submitted to a vote of the
Members will be deemed approved if it receives the affirmative vote of a
Majority of the Units then held by all Members.
5.6 Meeting of all
Members. Notwithstanding any other provision of this
Agreement, if all of the Members hold a meeting at any time and place, the
meeting will be valid without call or notice, and any lawful action taken at the
meeting will be the action of the Members.
5.7 Action Without
Meeting. Any action required or permitted to be taken by the
Members at a meeting may be taken without a meeting if a consent in writing,
describing the action taken, is signed by the Members owning a Majority of the
outstanding Units and is included in the minutes or filed with the Company's
records of meetings. If action by less than unanimous consent is
taken, the Company will promptly notify the non-consenting Members that such
action was taken.
5.8 Meetings by
Telephone. Meetings of the Members may be held by any means of
communication by which all participants can hear each other simultaneously
during the meeting. A Member so participating in a meeting is deemed
to be present in person at the meeting.
Section
6
MANAGEMENT
6.1 The Manager. There
will be one Manager until the number is increased or decreased by the
Members. A Manager may be an individual or an Entity, and need not be
a Member. The Manager will manage the affairs of the Company as
provided in this Agreement. Each Manager will serve until his or her
resignation, removal, disability or death as provided in this
Agreement. microHelix, Inc. will be the Company's initial
Manager. If microHelix, Inc. is not willing or able to serve as
Manager, then the Members will appoint the Manager.
6.2 Resignation;
Removal.
(a) A
Manager may resign at any time by written notice to all the
Members. A Manager's resignation will take effect upon delivery of
the notice or at the time specified in the notice if a time is
specified.
(b) Members
owning at least 65% of all Units owned by Members may remove any Manager at any
time.
6.3 Authority of the
Manager. Subject to Section 6.4 and Section 9 and unless
otherwise prohibited by the Act or otherwise provided in the Articles or this
Agreement, the Manager will have the exclusive right, power and authority to
manage the Company's business and will have all of the rights and powers that
may be possessed by a manager under the Act and the Articles, including without
limitation the right and power, on behalf and in the name of the Company,
to:
(a) Institute,
prosecute, and complain and defend in all courts in the Company's
name;
(b) Purchase,
take, receive, lease or otherwise acquire, own, hold, improve, use and otherwise
deal in or with real or personal property or any interest in real or personal
property, wherever situated, improve any Property, and make capital expenditures
for the purchase or improvement of real or personal property;
(c) Sell,
convey, lease, exchange, transfer and otherwise dispose of any part of the
Property;
(d) Purchase,
take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ,
sell, otherwise dispose of and otherwise use or deal in or with other interests
in or obligations of any other Entity;
(e) Make
contracts in the name and on behalf of the Company;
(f) Invest
or reinvest Company funds;
(g) Be
a promoter, incorporator, general partner, limited partner, member, associate or
manager of any Entity;
(h) Conduct
the Company's business, locate its offices and exercise the powers granted by
the Act and the Articles within or without Oregon;
(i)
Appoint officers, employees or agents of the Company,
define their duties, and fix their compensation; and
(j)
Change the name of the Company; adopt one or more
assumed business names for the Company; and take all appropriate action required
to affect the same.
The
Manager hereby appoints R. Xxxxxxx Xxxxxx as President and Secretary of the
Company, to serve at the pleasure of the Manager.
6.4 Restrictions on Authority of the
Manager. As long as there are any shares of Series D
Preferred Stock of microHelix, Inc. issued and outstanding, the Manager may not
do any of the following acts on the Company's behalf without the unanimous
consent of Members. After there are no shares of Series D
Preferred Stock of microHelix, Inc. issued and outstanding, the Manager may not
do any of the following acts on the Company's behalf without the consent of
Members owning at least 65% of all Units owned by Members:
(a) Purchase,
lease (as lessee) or otherwise acquire any asset not in the ordinary course of
the Company's business;
(b) Sell,
transfer, lease (as lessor) or otherwise dispose of, or enter into a contract to
sell, transfer or otherwise dispose of any Property not in the ordinary course
of the Company's business, provided that the Manager will have authority,
without the Members' consent, to transfer any Real Property to a wholly-owned
subsidiary of the Company;
(c) Borrow
money (other than trade debt incurred in the ordinary course of business), make
any guarantee or mortgage, pledge or create a security interest in any Real
Property;
(d) Loan
money (other than extending trade credit in the ordinary course of the Company's
business);
(e) Indemnify
a Member or Manager or any other person to an extent inconsistent with the
provisions of the Act or the Articles;
(f) Merge
the Company with another Entity;
(g) Dissolve
the Company;
(h) Knowingly
do any act in contravention of this Agreement or without the consent of the
Members when the consent of the Members is specifically required by this
Agreement;
(i)
Possess the
Property, or assign rights in specific Property, for other than a Company
purpose; or
(j)
Knowingly and
willfully perform any act that would subject any Member to personal liability in
any jurisdiction.
6.5 Other Activities. A
Manager may engage independently or with others in any other business, including
acquisition and disposition of properties that are competitive with the Company,
and otherwise invest in ventures of every nature and description with no
obligation to account to the Company for competitive businesses or investments
or for business or investment opportunities. In addition, a Manager
may, on behalf of the Company, enter into transactions, agreements and other
relationships with any affiliate or any entity directly or indirectly,
controlled by the Manager or in which the Manager owns a substantial interest
and no such transaction or agreement will be deemed to constitute a conflict of
interest to the Manager. This Section does not change a Manager's
duty to act in a manner that the Manager reasonably believes to be in the best
interests of the Company.
6.6 Other Agents. The
Manager may authorize any agent to enter into any lawful contract or to
otherwise act on behalf of the Company. This authority may be general
or be confined to specific instances.
6.7 Compensation. The
Manager will not receive a salary or other compensation for services rendered to
the Company unless the Members approve the Manager's salary or other
compensation.
6.8 Multiple
Managers. If there is more than one Manager, the following
provisions will be interpreted in conjunction with the preceding subsections of
this Section 6 and will supersede such provisions in the event of
conflict.
(a) Authority of Individual Manager.
Unless prohibited by the Act, the Articles or this Agreement, each
Manager will have and exercise the rights and powers specified in
Section 6.3.
(b) Meetings;
Quorum. Manager meetings, for any purpose or purposes, unless
otherwise prescribed by statute, may be held, in or out of Oregon, on call by
any Manager or, if the Managers are all present, may be held without prior
call. Written or oral notice stating the place, day and hour of the
meeting will be given to each Manager not less than one day before the date of
the meeting. The Managers may participate in a meeting by, or conduct
a meeting through, use of any means of communication by which all Managers
participating can hear each other simultaneously. A Manager so
participating in a meeting is deemed to be present in person at the
meeting.
(c) Manner of
Acting. The act of a Majority of the Managers will be the act
of the Managers, unless the vote of a greater or lesser proportion or number is
otherwise required by the Act, the Articles, or this
Agreement. Unless otherwise expressly provided in this Agreement or
required under applicable law, Managers who have an interest in the outcome of
any particular matter may vote or consent upon the matter.
(d) Action by the Managers Without a
Meeting. Action required or permitted to be taken at a meeting
of the Managers may be taken without a meeting if the action is evidenced by
written consent describing the action taken, signed by all
Managers.
Section
7
REPRESENTATIONS
AND WARRANTIES
Each Member represents and warrants
that: (a) it is acquiring its Units based upon its own
investigation; (b) the exercise of its rights and the performance of its
obligations under this Agreement will be based upon its own investigation,
analysis and expertise; (c) its acquisition of Units is being made for its
own account for investment, and not with a view to the sale or distribution of
the Units; and (d) it is a sophisticated investor possessing an expertise
in analyzing the benefits and risks associated with acquiring investments that
are similar to the acquisition of his or her interest in the
Company.
Section
8
BOOKS
AND RECORDS
8.1 Books and
Records. The Company will maintain at its principal place of
business separate books of accounts for the Company which will accurately
reflect its income, costs and expenses. The Company will also
maintain at its principal place of business the following
records: (a) each Member's and each Manager's full name and
last-known business or mailing address; (b) a copy of the Articles and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed; (c) copies of the
Company's federal, state and local income tax returns and reports, if any, for
the three most recent years; (d) copies of this Agreement and all
amendments thereto; (e) copies of all Member or Manager actions by written
consent or minutes of all Member or Manager meetings; and (f) copies of the
Company's financial statements for the three most recent years. Any
Member or the Member's designated representative will have the right, at any
reasonable time, to have access to and inspect and copy the contents of the
books or records.
8.2 Reports. The
Manager will be responsible for preparing the Company's financial reports and
coordinating the Company's financial matters with the Company's
accountants.
8.3 Tax Information; Tax Matters
Partner. The Company will prepare and deliver the necessary
tax information to each Member after the end of each Fiscal Year of the
Company. microHelix, Inc. is the "tax matters partner" under the Code
and will serve in any similar capacity under state or local law and has the sole
authority to make all decisions with respect to tax elections and tax matters
affecting the Company.
WS
Technologies LLC
Operating
Agreement
Page
9
Section
9
AMENDMENTS
Any Member may propose an amendment to
this Agreement or the Articles at any time. A proposed amendment will
be adopted and effective if it is approved by Members owning a Majority of the
outstanding Units.
Section
10
TRANSFERS
OF AND OTHER RESTRICTIONS ON UNITS
10.1 Restriction on
Transfers. Except as otherwise permitted by this Agreement, no
Unit Holder will Transfer any Units.
10.2 Permitted
Transfers. Subject to Section 10.3, a Unit Holder may
transfer Units to (a) any other Unit Holder, (b) any affiliate of the Unit
Holder (c) any Person approved by all the Members. Subject to
Section 10.3, a Transfer described in this Section 10.2 is a
"Permitted Transfer."
10.3 Conditions to Permitted
Transfers. A Transfer will not be treated as a Permitted
Transfer under Section 10.2 unless and until the following conditions are
satisfied:
(a) The
transferor and transferee each executes and delivers to the Company the
documents and instruments of conveyance necessary to effect the Transfer and to
confirm the transferee's agreement to be bound by this Agreement. The
transferor and/or transferee will reimburse the Company for all costs and
expenses that the Company reasonably incurs in connection with the
Transfer.
(b) The
transferor and transferee furnish the Company with the transferee's taxpayer
identification number, sufficient information to determine the transferee's
initial tax basis in the Units transferred, and any other information reasonably
necessary to permit the Company to file all required federal and state tax
returns and other legally required information statements or
returns.
(c) The
transferor, if the Company requests, furnishes opinions of counsel, which
counsel and opinions will be satisfactory to the Company, for each of the
following items, to the effect that:
(i) The
Transfer will not cause the Company to terminate for federal income tax purposes
and the Transfer will not cause the application of the rules of Code Sections
168(g)(1)(B) and 168(h) (generally referred to as the "tax exempt entity leasing
rules") or similar rules to apply to the Company, Property, or the Members and
Unit Holders;
(ii) Either
(A) the Units will be registered under the Securities Act of 1933, as
amended, and any applicable state securities laws, or (B) the Transfer is
exempt from all applicable registration requirements and the Transfer will not
violate any applicable laws regulating the Transfer of securities;
and
WS
Technologies LLC
Operating
Agreement
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(iii) The
Transfer will not cause the Company to be deemed to be an "investment company"
under the Investment Company Act of 1940.
10.4 Prohibited
Transfers.
(a) Any
purported Transfer that is not a Permitted Transfer will be void and of no
effect. If a court or authority of competent jurisdiction requires
the Company to recognize a Transfer that is not a Permitted Transfer (or if the
Company, in its sole discretion, elects to recognize a Transfer that is not a
Permitted Transfer), the interest transferred will be limited in accordance with
Section 10.6 and the Company may apply allocations and distributions with
respect to the Units (without limiting any other legal or equitable rights of
the Company) to satisfy any debts, obligations, or liabilities for damages
(including without limitation incremental tax liability and attorney fees and
expenses incurred in negotiations, trial preparation, at trial, on appeal or in
bankruptcy) that the transferor or transferee of the Units may have to the
Company.
(b) If
a Transfer or attempted Transfer is not a Permitted Transfer, the parties
engaging or attempting to engage in the Transfer will be liable to indemnify and
hold harmless the Company and the other Members from all costs, liabilities, and
damages that any of the indemnified Persons may incur (including without
limitation incremental tax liability and attorney fees and expenses incurred in
negotiations, trial preparation, at trial, on appeal or in bankruptcy) as a
result of the Transfer or attempted Transfer and efforts to enforce this
indemnity.
(c) Furthermore,
if a Unit Holder withdraws in violation of this Agreement and a court or other
authority of competent jurisdiction requires the Company to distribute to the
withdrawing Unit Holder the fair value of the Unit Holder's Units, the fair
value of the Units will equal their Adjusted Fair Market Value. The
Adjusted Fair Market Value of the Units will be the fair market value of the
Units as of the withdrawal date, as determined by an appraiser or appraisers
selected by the Members and reasonably acceptable to the withdrawing Unit
Holder. The determination will be made under the assumption that the
withdrawing Unit Holder has no withdrawal rights other than as provided in this
Agreement, and will apply appropriate discounts for marketability, minority
ownership and other factors relevant to the Units. The distribution
will consist of such property as the Company, in its sole discretion,
determines, and will be made in a reasonable time. No such Unit
Holder may participate in any determination or decision in connection with the
withdrawal.
10.5 Admission of Unit Holders as
Members. If Units are Transferred to a Person who is already a
Member, the transferee will be a Member with respect to the Transferred Units
without further action. Subject to the other provisions of this
Section 10, a transferee of Units who is not already a Member may be admitted to
the Company as a Substitute Member only upon satisfaction of all the following
conditions:
(a) The
Members unanimously consent to the admission, which consent may be withheld for
any reason;
WS
Technologies LLC
Operating
Agreement
Page 11
(b) The
Units with respect to which the transferee is being admitted were acquired by
means of a Permitted Transfer;
(c) The
transferee becomes a party to this Agreement as a Member and executes such
documents as the Members may reasonably request to admit the transferee as a
Member and confirm the transferee's agreement to be bound by this
Agreement;
(d) The
transferee pays or reimburses the Company for all reasonable legal, filing, and
publication costs that the Company incurs in connection with the admission of
the transferee as a Member;
(e) The
transferee makes each of the representations and warranties under Section 7;
and
(f) If
the transferee is not an individual of legal majority, the transferee provides
evidence satisfactory to the Company of transferee's authority to become a
Member and to be bound by this Agreement.
10.6 Rights of Unadmitted
Assignees. A Person who acquires one or more Units but who is
not admitted as a Substitute Member pursuant to Section 10.5 will be
entitled only to the Economic Rights with respect to the Units, and will have no
right to Company information of any kind and will have no rights of a Member
under the Act or this Agreement.
10.7 Transfer of Units by Last Remaining
Unit Holder. Notwithstanding any other provision of this
Agreement, if at any time there is only one Unit Holder and all the Units of the
last Unit Holder are Transferred, the transferee will automatically become a
Substitute Member and the Company will be continued.
10.8 Outstanding Indebtedness of Unit
Holders of the Company. Any debt due to the Company by a Unit
Holder who sells his Units to the Company will be payable according to its
terms, provided that any payment due under this Agreement by the Company to
purchase that Unit Holder's Units may (at the Company's option) be applied to
discharge the Unit Holder's indebtedness to the Company until the indebtedness
is fully discharged. Any amount applied to discharge a Unit Holder's
indebtedness to the Company will be deemed payment to the Unit
Holder.
10.9 Other
Restrictions. No Unit Holder may pledge or grant any security
interest in or otherwise encumber its Units without the prior written consent of
the other Unit Holders.
Section
11
CESSATION
OF A MEMBER
11.1 A
Person will cease to be a Member upon the happening of any of the following
events with respect to the Person:
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Technologies LLC
Operating
Agreement
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(a) expulsion
pursuant to Section 11.3;
(b) Bankruptcy;
(c) if
the Member is a natural person, death or the entry of an order by a court of
competent jurisdiction adjudicating the Member incompetent to manage the
Member's personal estate;
(d) if
the Member is a trust, the termination of the trust (but not merely the
substitution of a new trustee);
(e) if
the Member is an Entity other than a corporation or a trust, the dissolution and
commencement of winding up of the Entity;
(f) if
the Member is a corporation, the filing of articles of dissolution or its
equivalent, for the corporation or the revocation of its charter;
(g) if
the Member is an estate, the distribution by the fiduciary of the estate's
entire interest in the Company; or
(h) transfer
of all of the Member's Units together with an acceptance of the transferee as a
Substitute Member.
11.2 Withdrawal. A
Member has no power to withdraw from the Company.
11.3 Expulsion. A Member
may be expelled from the Company upon a determination by a court of competent
jurisdiction that the Member has been guilty of wrongful conduct that adversely
and materially affects the business or affairs of the Company, or has willfully
and persistently committed a material breach of the Articles or this Agreement,
or otherwise breached a duty owed to the Company or the other Members, to the
extent that it is not reasonably practicable to carry on the business or affairs
of the Company with the Member. An expelled Member will be treated as
having withdrawn voluntarily from the Company in breach of this Agreement on the
date of the non-expelled Members' determination.
11.4 Rights upon
Cessation. If any Person ceases to be a Member and a Permitted
Transfer does not occur in connection therewith, the following will
apply:
(a) The
Person will be treated as a mere creditor of the Company from the date of
Cessation until such time as the Person has received all distributions to which
the Person is or may be due under this Agreement.
(b) The
Person will be entitled to an amount equal to the Adjusted Fair Market Value of
his or her Units as of the date of Cessation, which amount will be reduced by
any damages sustained by the Company as a result of a violation of the terms of
this Agreement. The Adjusted Fair Market Value will be paid over a
period not to exceed five years (plus interest at the lowest rate that will not
result in the imputation of interest under Code Sections 483 or
1274).
WS
Technologies LLC
Operating
Agreement
Page
13
Section
12
DISSOLUTION
AND WINDING UP
12.1 Liquidating
Events. The Company will dissolve and commence winding up and
liquidating upon the first to occur of any of the following Liquidating
Events:
(a) The
vote of the Members to dissolve, wind up, and liquidate the Company;
or
(b) The
happening of any other event that makes it unlawful or impossible to carry on
the business of the Company.
Notwithstanding
any provision of the Act, the Company will not dissolve prior to the occurrence
of a Liquidating Event.
12.2 Winding Up. Upon
the occurrence of a Liquidating Event, the Company will continue solely for the
purposes of winding up its affairs in an orderly manner, liquidating its assets,
and satisfying the claims of its creditors and Members, and no Member or Manager
will take any action that is inconsistent with, or not necessary to or
appropriate for, the winding up of the Company's business and
affairs. To the extent not inconsistent with the foregoing, all
covenants and obligations in this Agreement will continue in full force and
effect until such time as the Property has been distributed pursuant to this
Section 12.2. The Manager will be responsible for overseeing the
winding up and dissolution of the Company, will take full account of the
Company's liabilities and Property, will cause the Property to be liquidated as
promptly as is consistent with obtaining its fair value, and will cause the
proceeds, to the extent sufficient, to be applied and distributed in the
following order:
(a) First,
to the payment and discharge of all of the Company's debts and liabilities to
creditors (including Members to the extent allowed by law);
(b) Second,
to the payment and discharge of all of the Company's remaining debts and
liabilities to Members; and
(c) Third,
the balance, if any, to the Unit Holders in accordance with their Capital
Accounts, after giving effect to all contributions, distributions, and
allocations for all periods.
12.3 Compliance With Certain Requirements
of Regulations; Deficit Capital Accounts. If the Company is
"liquidated" within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g), distributions will be made pursuant to this
Section 12 to the Unit Holders who have positive Capital Accounts in compliance
with Regulations Section 1.704-1(b)(2)(ii)(b)(2). If any Unit
Holder has a deficit balance in his Capital Account (after giving effect to all
contributions, distributions and allocations for all Fiscal Years), the Unit
Holder will have no obligation to make any contribution to the capital of the
Company with respect to the deficit, and the deficit will not be considered a
debt owed to the Company or to any other Person for any purpose
whatsoever.
WS
Technologies LLC
Operating
Agreement
Page
14
12.4 Rights of Unit
Holders. Except as otherwise provided in this Agreement, each
Unit Holder will look solely to the assets of the Company for the return of the
Unit Holder's Capital Contribution and will have no right or power to demand or
receive property other than cash from the Company.
Section
13
INDEMNIFICATION;
LIMITATION ON LIABILITY
13.1 Indemnification of Managers and
Officers. The Company will, to the fullest extent permitted by
law, indemnify its managers and officers, and each of them (individually and
collectively referred to as, an "Indemnified Person"), for all costs and
expenses (including attorney fees and disbursements), claims, losses,
liabilities, and damages (separately and collectively referred to as a "Claim"
or "Claims") incurred by an Indemnified Person by reason of any act or omission
performed or omitted which an Indemnified Person believed to be in the interest
of the Company. The Company may advance to or pay on behalf of an
Indemnified Person expenses (including attorney fees and disbursements) incurred
or to be incurred by the Indemnified Person in defending a Claim; provided,
however, that the Company may recover from an Indemnified Person any advance or
payment if it is subsequently determined by a court decision from which no
appeal may be taken that the Indemnified Person was not entitled to be
indemnified with respect to the Claim. Any indemnification provided
pursuant to this Section 13.1 will not be exclusive of any rights to which an
Indemnified Person may otherwise be entitled under any provision of these
Articles of Organization, the Company's operating agreement, any other
agreement, statute, policy of insurance, vote of members, or
otherwise. The Company may indemnify its members and
employees.
13.2 Limitation on Liability of
Managers. To the fullest extent permitted by law, no Manager
of the Company will be personally liable to the Company or its Members for
damages by reason of any act or omission performed or omitted which the Manager
believed to be in the interest of the Company.
13.3 Employees and
Agents. The Company may, if the Managers so determine,
indemnify any employee or agent of the Company for any Claim incurred by the
employee or agent in connection with the performance of his duties as the
Company's employee or agent.
Section
14
MISCELLANEOUS
14.1 Notices. All
notices and communications will be in writing and (a) personally delivered,
(b) sent by certified or registered mail, return receipt requested, or
overnight courier, or (c) delivery by facsimile if the facsimile is
followed by a hard copy of the facsimile personally delivered or sent by
certified or registered mail, return receipt requested, or overnight
courier. In each case charges will be prepaid and the notice will be
addressed as follows, or to such other address as the Person may from time to
time specify by notice to the Members:
WS
Technologies LLC
Operating
Agreement
Page
15
(a) If
to the Company, to the address set forth in Section 1.4; and
(b) If
to a Member or Manager, to the last applicable address set forth in the
Company's records.
A notice
will be deemed to be delivered and received for all purposes as of the date so
delivered.
14.2 Binding
Effect. Except as otherwise provided in this Agreement, each
provision of this Agreement will be binding upon and inure to the benefit of the
Members and their respective heirs, legatees, legal representatives, successors,
transferees, and assigns.
14.3 Time. Time is of
the essence with respect to this Agreement.
14.4 Headings. Section and
other headings contained in this Agreement are for reference purposes
only.
14.5 Severability. Every
provision of this Agreement is intended to be severable. If any term
or provision of this Agreement is illegal or invalid for any reason whatsoever,
the illegality or invalidity will not affect the validity or legality of the
remainder of this Agreement.
14.6 Incorporation by
Reference. Each exhibit that is attached to this Agreement and
that this Agreement refers to is incorporated in this Agreement by reference
unless this Agreement expressly otherwise provides.
14.7 Further
Action. Each Member, upon the request of the Manager or any
Member, agrees to perform all further acts and execute, acknowledge, and deliver
any documents which may be reasonably necessary, appropriate, or desirable to
carry out the provisions of this Agreement.
14.8 Variation of
Pronouns. All pronouns will be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the identity of the
person or persons may require.
14.9 Governing
Law. Oregon law will govern the validity of this Agreement,
the construction of its terms, and the interpretation of the rights and duties
of the Members.
14.10 Waiver of Action for Partition; No
Action for Company Accounting. Each Member irrevocably waives
any right that the Member may have to maintain any action for partition with
respect to any of the Property. To the fullest extent permitted by
law, each Member covenants that it will not (except with the consent of the
Members) file an action for Company accounting.
WS
Technologies LLC
Operating
Agreement
Page
16
14.11 Payments. Unless
otherwise agreed in writing, each payment described in this Agreement may be
paid by check drawn on the payor's bank account. The payor may
deliver the checks in person or to the address provided for notices to the
payee.
14.12 Specific
Performance. The Members would be irreparably damaged if any
of the provisions of this Agreement are not performed in accordance with their
specific terms. Monetary damages would provide an inadequate
remedy. Accordingly, in addition to any other remedy at law or in
equity, the nonbreaching Members will be entitled to injunctive relief to
prevent breaches of this Agreement and specifically to enforce this
Agreement.
IN WITNESS WHEREOF, this Agreement is
executed as of the Effective Date.
[Signatures
on following page]
WS
Technologies LLC
Operating
Agreement
Page 17
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WS
TECHNOLOGIES LLC
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By
microHelix, Inc., its Manager
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By
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/s/ Xxxxx X. Xxxxxx
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Name Xxxxx
X. Xxxxxx
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Its Secretary
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MICROHELIX,
INC.
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By
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/s/ Xxxxx X. Xxxxxx
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Name Xxxxx
X. Xxxxxx
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Its Secretary
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AEQUITAS
CAPITAL MANAGEMENT, INC.
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By
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/s/ Xxxxxx X. Jesenik
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Xxxxxx
X. Jesenik, President
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CAREPAYMENT,
LLC
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By
Aequitas Capital Management, Inc., its Manager
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By
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/s/ Xxxxxx X. Jesenik
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Xxxxxx
X. Jesenik,
President
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Signature
Page to WS Technologies, LLC Operating Agreement
WS
TECHNOLOGIES LLC
EXHIBIT
A
DEFINITIONS
A1. Definitions. Words
and phrases used in the Agreement have the meanings set forth
below.
A1.1 "Act" means the Oregon Limited
Liability Company Act, as set forth in Chapter 63, Oregon Revised Statutes, as
amended from time to time (or any corresponding provisions of succeeding
law).
A1.2 "Adjusted Deficit" means, with
respect to any Unit Holder, the deficit balance, if any, in the Unit Holder's
Capital Account as of the end of the relevant Fiscal Year, after giving effect
to the following adjustments:
(a) Credit
to the Capital Account any amounts which the Unit Holder is obligated to restore
pursuant to any provision of this Agreement or is deemed to be obligated to
restore pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit
to the Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4),
(5) and (6) of the Regulations.
The
foregoing definition of Adjusted Deficit is intended to comply with the
provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and will be
so interpreted.
A1.3 "Adjusted Fair Market Value"
has the meaning set forth in Section 10.4.
A1.4 "Agreement" or "Operating Agreement" means
this WS Technologies LLC Operating Agreement, as amended from time to
time.
A1.5 "Articles" means the Articles
of Organization of the Company as filed with the Secretary of State of Oregon,
as amended from time to time.
A1.6 "Bankruptcy" means, with
respect to any Person, a Voluntary Bankruptcy or an Involuntary
Bankruptcy.
A1.7 "Capital Account" means the
account maintained with respect to a Unit Holder determined in accordance with
Section 2.2.
A1.8 "Capital Contributions" means,
with respect to any Member, the amount of money and the gross fair market value
of any Property (other than money) or services contributed or to be contributed
to the Company with respect to the interest in the Company held by the
Person.
Exhibit
A
page 1
A1.9 "Cessation" means any action
which causes a Person to cease to be a Member as described in Section
11.
A.1.10 "Claim or Claims" has the
meaning set forth in Section 13.1.
A1.11 "Code" means the Internal
Revenue Code of 1986, as amended from time to time (or any corresponding
provisions of succeeding law).
A1.12 "Company" means the limited
liability company formed pursuant to the Articles, this Agreement and the Act
and the limited liability company continuing the business of this Company in the
event of dissolution as provided in this Agreement.
A1.13 "Company Minimum Gain" means
"partnership minimum gain" as defined in Sections 1.704-2(b)(2) and 1.704-2(d)
of the Regulations.
A1.14 "Debt" means (i) any
indebtedness for borrowed money or deferred purchase price of property or
evidenced by a note, bonds, or other instruments, (ii) obligations as
lessee under capital leases, (iii) obligations secured by any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind existing on
any asset owned or held by the Company whether or not the Company has assumed or
become liable for the obligations secured by the property or
(iv) obligations under direct or indirect guarantees of (including
obligations (contingent or otherwise) to assure a creditor against loss in
respect of) indebtedness or obligations of the kinds referred to in clauses (i),
(ii) or (iii) above, provided that Debt will not include obligations in respect
of any accounts payable that are incurred in the ordinary course of the
Company's business and are not delinquent or are being contested in good faith
by appropriate proceedings.
A1.15 "Depreciation" means, for each
Fiscal Year, an amount equal to the depreciation, amortization, or other cost
recovery deduction allowable for federal income tax purposes with respect to an
asset for the Fiscal Year, except that if the value of an asset for Capital
Account purposes differs from its adjusted basis for federal income tax purposes
at the beginning of the Fiscal Year, Depreciation will be an amount which bears
the same ratio to such beginning value as the federal income tax depreciation,
amortization, or other cost recovery deduction for the Fiscal Year bears to the
beginning adjusted tax basis; provided, however, that if the
adjusted basis for federal income tax purposes of an asset at the beginning of
the Fiscal Year is zero, Depreciation will be determined with reference to the
beginning value using any reasonable method selected by the
Members.
A1.16 "Economic Rights" means a Unit
Holder's share of the Profits, Losses and distributions of Property pursuant to
the Act and this Agreement, but does not include the right to participate in the
management of the Company or any other rights reserved to Members under the Act
or this Agreement.
Exhibit
A
page 2
A1.17 "Effective Date" means the
date on which the Articles were initially filed with the Oregon Secretary of
State in accordance with the Act.
A1.18 "Entity" means any general
partnership, limited partnership, limited liability company, corporation, joint
venture, trust, business trust, cooperative or association or any foreign trust
or foreign business organization.
A1.19 "Fiscal Year" means
(i) the period commencing on the Effective Date of this Agreement and
ending on December 31, (ii) any subsequent 12-month period commencing on
January 1st and ending on December 31st or (iii) any portion of the period
described in clause (ii) for which the Company is required to allocate
Profits, Losses and other items of Company income, gain, loss or deduction
pursuant to Section 3.
A1.20 "Indemnified Person" has the
meaning set forth in Section 13.1.
A1.21 "Involuntary Bankruptcy"
means, with respect to any Person, without the consent or acquiescence of
the Person, the entering of an order for relief or approving a petition for
relief or reorganization or any other petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or other
similar relief under any present or future bankruptcy, insolvency or similar
statute, law or regulation, or the filing of such a petition against the Person,
which petition will not be dismissed within 90 days, or, without the
consent or acquiescence of the Person, the entering of an order appointing a
trustee, custodian, receiver, or liquidator of the Person, or of all or any
substantial part of the property of the Person, which order will not be
dismissed within 60 days.
A1.22 "Liquidating Event" has the
meaning set forth in Section 12.1.
A1.23 "Majority" means more than
50%.
A1.24 "Manager" means the Person or
each of the Persons appointed or elected to manage the affairs of the Company as
provided in Section 6.1. "Managers" means all such
Persons.
A1.25 "Member" means any Person who
(i) owns at least one Unit, (ii) is referred to as such in the first
paragraph of this Agreement or has become a Member pursuant to the terms of this
Agreement, and (iii) has not ceased to be a Member pursuant to the terms of
this Agreement. "Members" means all such Persons.
A1.26 "Member Nonrecourse Debt"
means "partner nonrecourse debt" as defined in Section 1.704-2(b)(4) of the
Regulations.
A1.27 "Member Nonrecourse Debt Minimum
Gain" means an amount, with respect to each Member Nonrecourse Debt,
equal to the Company Minimum Gain that would result if the Member Nonrecourse
Debt were treated as a Nonrecourse Liability, determined in accordance with
Section 1.704-2(i)(3) of the Regulations.
Exhibit
A
page 3
A1.28 "Member Nonrecourse
Deductions" means "partner nonrecourse deductions" as defined in Sections
1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.
A1.28 "Net Cash" means the gross
cash proceeds from Company operations (including sales and dispositions of
Property in the ordinary course of business) and from all sales and other
dispositions (other than in the ordinary course of business) and all
refinancings of Property, less the portion used to pay all Company expenses or
establish reserves for Company expenses, Debt payments, capital improvements,
replacements, and contingencies, all as determined by the
Members. Net Cash will not be reduced by depreciation, amortization,
cost recovery deductions, or similar allowances, but will be increased by any
reductions of reserves previously established pursuant to the first sentence of
this Section A1.28. Net Cash will include all principal and
interest payments with respect to any note or other obligation received by the
Company in connection with sales and other dispositions (other than in the
ordinary course of business) of Property.
A1.30 "Nonrecourse Deductions" has
the meaning set forth in Section 1.704-2(b)(1) of the
Regulations.
A1.31 "Nonrecourse Liability" has
the meaning set forth in Section 1.704-2(b)(3) of the
Regulations.
A1.32 "Permitted Transfer" has the
meaning set forth in Section 10.2.
A1.33 "Person" means any individual
or Entity.
A1.34 "Profits" and "Losses" means, for each
Fiscal Year, an amount equal to the Company's taxable income or loss for the
Fiscal Year, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss, or deduction required to be stated
separately pursuant to Code Section 703(a)(1) will be included in taxable
income or loss), with the following adjustments:
(a) Add
Company income that is exempt from federal income tax and not otherwise taken
into account in computing Profits or Losses;
(b) Subtract
any Company expenditures described in Code Section 705(a)(2)(B) or treated
as Code Section 705(a)(2)(B) expenditures pursuant to Regulations
Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses;
(c) If
any Company asset is revalued pursuant to Section 2.2, the amount of the
adjustment will be taken into account as gain or loss from the disposition of
the asset for purposes of computing Profits or Losses;
(d) Gain
or loss resulting from any disposition of Property with respect to which gain or
loss is recognized for federal income tax purposes will be computed by reference
to the value of the Property for Capital Account purposes, notwithstanding that
the adjusted tax basis of the Property differs from the value;
Exhibit
A
page 4
(e) In
lieu of the depreciation, amortization, and other cost recovery deductions taken
into account in computing the taxable income or loss, there will be taken into
account Depreciation for the Fiscal Year, computed in accordance with
Section A1.15;
(f) To
the extent an adjustment to the adjusted tax basis of any Company asset pursuant
to Code Section 734(b) or Code Section 743(b) is required pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in
determining Capital Accounts as a result of a distribution other than in
complete liquidation of a Member's Economic Rights, the amount of the adjustment
will be treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases the basis of the asset) from the
disposition of the asset and will be taken into account for purposes of
computing Profits or Losses; and
(g) Notwithstanding
any other provision of this Section A1.40, any items which are specially
allocated pursuant to Sections B1 or B2 of Exhibit B will not be taken
into account in computing Profits or Losses.
The
amounts of the items of Company income, gain, loss or deduction available to be
specially allocated pursuant to Sections B1 and B2 will be determined by
applying rules analogous to those set forth in Sections A1.34(a) through
A1.34(g).
A1.35 "Property" means all real and
personal property acquired by the Company and any improvements to the property,
and includes both tangible and intangible property.
A1.36 "Regulations" means the income
tax regulations, including temporary regulations, promulgated under the Code, as
those regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
A1.37 "Regulatory Allocations" has
the meaning set forth in Section B2 of Exhibit B.
A1.38 "Substitute Member" means a
transferee of Units who has been admitted as a Member in accordance with
Section 10.5.
A1.39 "Term" has the meaning set
forth in Section 1.5.
A1.40 "Transfer," when used as a
noun, means any sale, assignment, exchange, gift, devise, hypothecation, pledge,
encumbrance, attachment, levy, foreclosure, sale by legal process under
execution, attachment or receivership, sale or retention of any Units or
interest in Units by a secured party after a default, change in the beneficial
ownership or the trustee of any trust which is a Unit Holder, change of
ownership ordered by any court pursuant to dissolution of marriage, withdrawal
in violation of this Agreement or otherwise, or other change in ownership of any
Units, voluntary or involuntary. "Transfer," when used as a
verb, means transferring any Units or interests in Units by any means as set
forth in the previous sentence.
Exhibit
A
page 5
A1.41 "Unit" means an ownership
interest in the Company.
A1.42 "Unit Holder" means any Person
who owns at least one Unit, regardless of whether the Person has been admitted
to the Company as a Member. "Unit Holders" means all such
Persons.
A1.43 "Voluntary Bankruptcy" means,
with respect to any Person, the inability of the Person generally to pay its
debts as they become due, or an admission in writing by the Person of its
inability to pay its debts generally or a general assignment by the Person for
the benefit of creditors; the filing of any petition or answer by the Person
seeking to adjudicate itself as bankrupt or insolvent, or seeking for itself any
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of the Person or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking,
consenting to, or acquiescing in the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for the
Person or for any substantial part of its property; or corporate action taken by
the Person to authorize any of the actions set forth above.
Exhibit
A
page 6
WS
TECHNOLOGIES LLC
EXHIBIT
B
SPECIAL
ALLOCATIONS
B1. Special
Allocations. The following special allocations will be made in
the following order:
B1.1 Minimum Gain
Chargeback. Notwithstanding any other provision of Section 3
of the Agreement, items of Company income and gain will be specially allocated
to one or more Unit Holders in the amount and manner required to satisfy the
Company Minimum Gain Chargeback rules of Regulations Section 1.704-2(f) and
the Member Minimum Gain Chargeback rules of Regulations
Section 1.704-2(i)(4).
B1.2 Qualified Income
Offset. If any Unit Holder unexpectedly receives any
adjustments, allocations, or distributions described in Regulation Sections
1.704-1(b)(2)(ii)(d)(4), (5) or (6) and the Unit Holder would have an Adjusted
Deficit after all other allocations provided for in Section 3 of the Agreement
were made without regard to this Section B1.2, items of Company income and
gain will be specially allocated to each such Unit Holder in the manner and
minimum amount necessary to eliminate the Adjusted Deficit of the Unit Holder as
quickly as possible.
B1.3 Nonrecourse
Deductions. Nonrecourse Deductions for any Fiscal Year will be
specially allocated to the Unit Holders in proportion to the number of Units
held by each.
B1.4 Member Nonrecourse
Deductions. Any Member Nonrecourse Deductions for any Fiscal
Year will be specially allocated to the Unit Holder who bears the economic risk
of loss with respect to the Member Nonrecourse Debt to which the Member
Nonrecourse Deductions are attributable in accordance with Regulations
Section 1.704-2(i)(1).
B1.5 Section 754
Adjustments. To the extent an adjustment to the adjusted tax
basis of any Company asset pursuant to Code Sections 734(b) or 743(b) is
required, pursuant to Regulations Sections 1.704-1(b)(2)(iv)(m)(2) or (4), to be
taken into account in determining Capital Accounts as the result of a
distribution to a Unit Holder in complete liquidation of his interest in the
Company, the amount of the adjustment to Capital Accounts will be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases the basis) and the gain or loss will be specially
allocated to the Members and the Unit Holders in accordance with their interests
in the Company if Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or
to the Unit Holder to whom the distribution was made if Regulations
Section 1.704-1(b)(2)(iv)(m)(4) applies.
Exhibit
B
page
1
B2. Curative
Allocations. The allocations set forth in Section 3.2(b)
of the Agreement and Sections B1.1 through B1.5 of this Exhibit B (the
"Regulatory Allocations") are intended to comply with certain requirements of
the Regulations. To the extent possible, all Regulatory Allocations
will be offset either with other Regulatory Allocations or with special
allocations of other items of Company income, gain, loss or deduction pursuant
to this Section B2. Therefore, notwithstanding any allocation
provision other than the Regulatory Allocations, the Manager will make the
offsetting special allocations of Company income, gain, loss or deduction in
whatever manner he determines appropriate so that each Unit Holder's Capital
Account balance is, to the extent possible, equal to the Capital Account balance
that the party would have had if the Regulatory Allocations were not part of the
Agreement and all Company items were allocated pursuant to Sections 3.1 and
3.2(a) of the Agreement. In exercising his discretion under this
Section B2, the Manager will consider future Regulatory Allocations under
Section B1.1 that, although not yet made, are likely to offset other
Regulatory Allocations previously made under Sections B1.3 and
B1.4.
Exhibit
B
page 2
