Exhibit B-116
OPERATING AGREEMENT
OF
COPIER SOLUTIONS, LLC
JUNE 2, 1998
TABLE OF CONTENTS
Page
ARTICLE I THE LIMITED LIABILITY COMPANY 1
1.1 Formation of Limited Liability Company 1
1.2 Registered Office and Agent 1
1.3 Purpose 1
1.4 Principal Place of Business 1
1.5 Property 1
1.6 Payment of Individual Obligations 2
ARTICLE 2 DEFINITIONS 2
2.1 Definitions 2
(a) "Capital Account" 2
(b) "Capital Contribution" 2
(c) "Code" 2
(d) "Economic Interest" 2
(e) "Manager" 2
(f) "Net Cash Flow" 2
(g) "Net Profits" and "Net Losses" 2
(h) "Operating Costs" 2
(i) "Percentage Interest" 3
(j) "Person" 3
(k) "Proceeds" 3
(l) "Regulations" 3
ARTICLE 3 MANAGEMENT 3
3.1 Manager 3
3.2 Vice-Presidents and Other Officers 3
3.3 Limitation on Powers of the Manager 3
3.4 Removal or Resignation of Manager 4
3.5 Compensation of Manager 4
ARTICLE 4 RIGHTS AND OBLIGATIONS OF MEMBERS.. 4
4.1 Limitation of Liability 4
4.2 Company Liabilities 4
4.3 Liability of a Member to the Company 4
4.4 Independent Activities 4
ARTICLE 5 MEETINGS OF MEMBERS 5
5.1 Action by Member without a Meeting 5
ARTICLE6 CAPITAL CONTRIBUTIONS 5
6.1 Initial Capital Contribution 5
6.2 Increase in Company Capital 5
6.3 Capital Accounts of the Member 5
6.4 Interest and Other Amounts 5
6.5 Loans of Member 5
ARTICLE 7 ALLOCATIONS 6
7.1 Net Profits and Net Losses 6
ARTICLE 8 ACCOUNTING,DISTRIBUTIONS AND TAXES 6
8.1 Distribution of Net Cash Flow 6
8.2 Accounting 6
8.3 Tax Matters Member 6
ARTICLE 9 ADMISSION OF SUCCESSOR MEMBERS OR NEW MEMBERS 7
9.1 Admission New Members 7
9.2 Financial Adjustments 7
ARTICLE 10 TERM.TERMINATION AND DISTRIBUTION UPON
LIQUIDATION 7
10.1 Term 7
10.2 Withdrawal of the Member 7
10.3 Events of Dissolution 7
10.4 Cessation of Business 8
10.5 Winding Up. Liquidation. and Distribution of
Assets 8
10.6 Articles of Termination 8
10.7 Return of Contribution Nonrecourse to Other
Members 9
ARTICLE 11 9
11.1 Notices 9
11.2 Governing Law 9
11.3 Entire Agreement 9
11.4 Binding Agreement 9
11.5 Interpretation 9
11.6 Severability 9
11.7 Saving Clause 10
11.8 Further Documentation 10
11.9 Indemnification 10
OPERATING AGREEMENT
OF
COPIER SOLUTIONS, LLC
THIS OPERATING AGREEMENT ("Operating Agreement"), is made
and entered into to be effective as of the 2nd day of June 1998,
by and between Copier Solutions, LLC, a Missouri limited
liability company (the "Company"), Municipal Solutions, LLC, a
Delaware limited liability company as the sole member of the
Company (the "Member") and Xxxxx Xxxxxx as the manager of the
Company (the "Manager").
WHEREAS, the Member has organized the Company as a limited
liability company governed by the Missouri Limited Liability
Company Act (the "Missouri Act") and the Manager has agreed to
act as the Manager of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
benefits set forth below, other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
THE LIMITED LIABILITY COMPANY
1.1 Formation of Limited Liability Company. The Articles of
Organization of the Company were filed in the office of the
Secretary of State of Missouri pursuant to the Missouri Act on
May 12, 1998 and are hereby ratified by the Member.
1.2 Registered Office and Agent. The address of the
Company's registered office in the State of Missouri is located
at 000 X. 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, and the
registered agent at such office is STK Registered Agent, Inc. In
the event the registered agent ceases to act as such for any
reason or the registered office shall change, the Manager shall
promptly designate a replacement registered agent or registered
office as the case may be, and make the appropriate filings with
the secretary of state.
1.3 Purpose. The purpose and business of the Company shall
be to invest in and conduct business ventures as selected by the
Member from time to time, to do all other things which are
reasonably incidental to the foregoing, and to transact any or
all other lawful business for which a limited liability company
may be organized under the Missouri Act.
1.4 Principal Place of Business. The principal place of
business of the Company shall be 0000 Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, or at such other place or places within or
without the State of Missouri as the Manager may designate from
time to time.
1.5 Property. All assets, including real and personal
property owned and held by the Company shall be owned by the
Company in the name of the Company. The Member's interest in the
Company shall be personal property for all purposes. Any deed,
xxxx of sale, mortgage, lease, contract of sale or other
instrument purporting to convey or encumber any interest in the
property of the Company shall be signed only as authorized by the
Member.
1.6 Payment of Individual obligations. The Company's credit
and assets shall be used solely for the benefit of the Company,
and no asset of the Company shall be transferred or encumbered
for or in payment of any individual obligation of the Member.
ARTICLE 2
DEFINITIONS
2.1 Definitions. As used in this Operating Agreement:
(a) "Capital Account" means the Capital Account determined
and maintained for the Member in accordance with Section 1.704-
1(b)(2)(iv) of the Regulations.
(b) "Capital Contribution" means, with respect to any
Member or Economic Interest Owner, the amount of money and the
fair market value of any property (other than money) contributed
to the Company by the Member. The initial Capital Contribution of
the Member is set forth on Exhibit A hereto, which is
incorporated herein by this reference.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time (or any corresponding provisions of
succeeding law).
(d) "Economic Interest" shall mean the interest of the
Member in the Company's Net Profits, Net Losses and the
distribution of Net Cash Flow and/or the Company's assets
pursuant to this Operating Agreement and the Missouri Act, but
shall not include any right to vote on, consent to or otherwise
participate in any decision of the Member in the management of
the Company.
(e) "Manager" shall mean Xxxxx Xxxxxx, or any replacement
Manager appointed by the Member pursuant to Section 3.4 hereof
(f) "Net Cash Flow" shall mean, with respect to any period,
the amount (if any) which the Proceeds for such period exceed the
Operating Costs for such period, all principal and interest
payments on indebtedness of the Company, and all other sums paid
to lenders.
(g) "Net Profits" and "Net Losses" means, for each fiscal
year, an amount equal to the Company's taxable income or loss for
such fiscal year.
(h) "Operating Costs" shall mean, with respect to any
period, all cash expenditures incurred incident to the normal
operation of the Company's business and any amounts determined by
the Manager, from time to time, to be reasonably necessary to
provide a reserve for the operations, expenses, debt payments,
capital improvements, and contingencies of the Company.
(i) "Percentage Interest" shall mean, with respect to the
Member its percentage interest of the Economic Interests in the
Company. The initial Percentage Interests of the Member is as
designated in Section 6.1 of this Operating Agreement.
(j) "Person" shall include any individual, trust, estate,
corporation, partnership, limited liability company, association
or other entity.
(k) "Proceeds" shall mean, with respect to any period,
gross receipts received by the Company from all sources during
such period, including, without limitation, all sales, other
dispositions, and refinancings of the Company's property, but
does not include Capital Contributions as provided for in Article
6 of this Operating Agreement.
(l) "Regulations" means the Treasury Regulations, including
Temporary Regulations, promulgated under the Code, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding Regulations).
ARTICLE 3
MANAGEMENT
3.1 Manager. The business and affairs of the Company shall
be managed by a Manager who, subject to the provisions of this
Operating Agreement, shall have the responsibility for the
management of the day to day business and affairs of the Company
and shall have the power and authority to take, or cause to be
taken, any and all actions necessary as advisable to carry out
his duties as described in this Operating Agreement. The initial
Manager is Xxxxx Xxxxxx.
3.2 Vice-Presidents and Other Officers. The Manager may
appoint one or more Vice-Presidents and such other officers of
the Company from time to time as the Manager deems necessary or
desirable. The officers as so appointed by the Manager shall
serve at the pleasure of the Manager and shall have such duties
and responsibilities as may be assigned by the Manager from time
to time.
3.3 Limitation on Powers of the Manager. Notwithstanding
any other provisions of this Operating Agreement, the affirmative
approval of the Member shall be required to:
(a) Amend this Operating Agreement or the Articles of
Organization of the Company;
(b) Take any action or fail to take any action in contravention
of this Operating Agreement;
(c) Admit any additional Members;
(d) Modify the Member's obligation to make a Capital
Contribution;
(e) Merge or consolidate or agree to merge or consolidate
the Company with or into any other entity;
(f) Sell, exchange, lease, mortgage, pledge or otherwise
dispose of all or substantially all of the property of the
Company in a single transaction or series of related
transactions;
(g) Approve any expenditure in an amount in excess of one
hundred thousand dollars ($100,000);
(h) Assume, incur or guarantee or become liable for any
indebtedness or borrowed money on behalf of the Company in excess
of one hundred thousand dollars ($100,000) in the aggregate
outstanding at any time;
(i) Make or cause the Company to become a party to any
contract or commitment or renew, extend or amend or modify any
contract or commitment, unless such contract or commitment is
entered into in the ordinary course of business; or
(j) Invest in or acquire any interest in any business
enterprise or venture.
3.4 Removal or Resignation of Manager. The Member shall
have the right to remove the Manager from time to time. Also, the
Manager of the Company may resign at any time by giving thirty
(30) days advance written notice to the Member. Unless otherwise
specified in the notice, the acceptance of the resignation shall
not be necessary to make it effective. Any vacancy created in the
Manager position by the removal or resignation of the Manager
shall be filled by the Member.
3.5 Compensation of Manager. The compensation of the
Manager, if any, shall be fixed from time to time by the Member.
ARTICLE 4
RIGHTS AND OBLIGATIONS OF MEMBERS
4.1 Limitation of Liability. The Member's liability shall
be limited as set forth in this Operating Agreement, the Missouri
Act and other applicable law.
4.2 Company Liabilities. The Member will not be personally
liable for any debts or losses of the Company beyond the Member's
Capital Contributions, except as required by law.
4.3 Liability of a Member to the Company. If the Member
rightfully receives a return in whole or in part of its Capital
Contribution, it shall be liable to the Company only to the
extent now or hereafter provided by the Missouri Act.
4.4 Independent Activities. Except as may otherwise be
agreed upon in writing between the Company and the Member, the
Member shall be required to devote only such time to the affairs
of the Company the Member determines in its sole discretion, and
the Member shall be free to serve any other Person in any
capacity that it may deem appropriate in its discretion.
ARTICLE 5
MEETINGS OF MEMBERS
5.1 Action by Member without a Meeting. Any action required
or permitted to be taken by the Member shall be evidenced by a
written consent describing the action taken and signed by the
Member, which consent shall be included in the minutes or filed
with the Company records. Any action taken under this Section is
effective when the Member has signed the consent, unless the
consent specifies a different effective date.
ARTICLE 6
CAPITAL CONTRIBUTIONS
6.1 Initial Capital Contribution. A Capital Account shall
be maintained for the Member as provided in Section 2.1(a) above,
which shall include the initial Capital Contribution of the
Member as set forth on Exhibit A. The initial Percentage Interest
of the Member shall be as also set forth in Exhibit A.
6.2 Increase in Company Capital. The Member, in its
discretion, may make contributions of additional capital to the
Company from time to time.
6.3 Capital Accounts of the Member. The amount of any
additional Capital Contribution made by the Member shall be added
to the Member's Capital Account as of the date of such
contribution.
6.4 Interest and Other Amounts. The Member shall not
receive any interest, salary or draw with respect to its Capital
Contributions or its Capital Account or for services rendered to
or on behalf of the Company or otherwise in its capacity as a
Member, except as otherwise provided in this Operating Agreement
or other agreement between the Company and the Member.
6.5 Loans of Member. The Member may loan cash or other
property to the Company, should additional funds be required upon
such terms and conditions as the Member may determine. Loans by
the Member to the Company shall not be considered as
contributions to the capital of the Company. The Member, however,
shall not be obligated to make any loan or advance to the
Company.
ARTICLE 7
ALLOCATIONS
7.1 Net Profits and Net Losses. All Net Profits and Net
Losses for each fiscal year shall be allocated to the Member.
ARTICLE 8
ACCOUNTING. DISTRIBUTIONS AND TAXES
8.1 Distribution of Net Cash Flow. Upon the approval of the
Member, the Manager shall distribute the Net Cash Flow of the
Company to the Member in such amounts as so determined by the
Member.
Notwithstanding the foregoing, no distributions shall be
made unless, after distribution is made, the assets of the
Company are in excess of its liabilities, except amounts payable
to the Member on account of its Capital Contributions.
8.2 Accounting. The fiscal and tax year of the Company
shall be the calendar year. For tax purposes, the records of the
Company shall be maintained on an accrual method of accounting.
The books of account of the Company shall be kept and maintained
at all times at the principal place of business of the Company.
The Member shall have the right at all reasonable times during
usual business hours to audit, examine and make copies of or
extracts from the books of account of the Company.
As soon as reasonably practicable after the end of each
calendar quarter, the Manager shall furnish the Member with an
interim balance sheet, statement of profit and loss, and
statement of cash receipts and disbursements of the Company, each
prepared in accordance with generally accepted accounting
principles and reviewed by the Company's independent certified
public accountants. As soon as reasonably practicable after the
end of each fiscal and tax year, the Manager shall furnish the
Member with: (i) a balance sheet of the Company as of the last
day of such fiscal or tax year, a statement of profit or loss of
the Company for such year, and a statement of cash receipts and
disbursements, each prepared in accordance with generally
accepted accounting principles and reviewed by the Company's
independent certified public accountants; (ii) a statement
showing the amounts allocated to or allocated against the Member
pursuant to Article 7 of this Operating Agreement during or in
respect of such year, and any items of income, deduction, credit,
or loss allocated to it; and (iii) a copy of the federal income
tax return of the Company.
8.3 Tax Matters Member. The Member is designated as the Tax
Matters Member of the Company and may, within its discretion,
make any tax election for the Company allowed under the Internal
Revenue Code of 1986.
ARTICLE 9
ADMISSION OF SUCCESSOR MEMBERS OR NEW MEMBERS
9.1 Admission New Members. A person shall be deemed
admitted as a Member of the Company only upon the satisfactory
completion of the following:
(a) The Member shall have consented to the admission of the
Person as a Member of the Company and the amount and character of
the proposed Capital Contribution of such new Member.
(b) The Person shall have accepted and executed and agreed
to be bound by the terms and provisions of this Operating
Agreement, with such amendments as deemed necessary or desirable
by the Member and such other documents or instruments as the
Manager may require.
9.2 Financial Adjustments. No new Member shall be entitled
to any retroactive allocation of losses, income, or expense
deductions incurred by the Company. The Company may, at its
option, at the time a new Member is admitted, close the Company's
books (as though the Company's tax year had ended) or make pro
rata allocations of loss, income, and expense deductions to a new
Member for that portion of the Company's tax year in which a
Member was admitted in accordance with the provisions of Section
706 of the Code and the Regulations promulgated thereunder.
ARTICLE 10
TERM. TERMINATION AND DISTRIBUTION UPON LIQUIDATION
10.1 Term. The term of the Company shall commence on the
date the Articles of Organization for the Company are filed in
the Office of the Missouri Secretary of State in accordance with
the Missouri Act and shall continue until December 31, 2098,
unless earlier dissolved by the Member, or the provisions of the
Articles of Organization, this Operating Agreement or the
Missouri Act.
10.2 Withdrawal of the Member. The Member may withdraw,
retire or resign from the Company at any time upon giving thirty
(30) days prior written notice to the Company.
Subject to the remaining provisions of this Operating
Agreement, upon the withdrawal of the Member, the Member shall be
entitled to the fair market value of its Economic Interest, which
amount shall be equal to the sum of the withdrawing Member's
Percentage Interest of both (i) the Company's Net Profits or Net
Losses for the year in which the withdrawal occurs through the
date of the withdrawal (less any distributions of Net Cash Flow
made to the withdrawing Member through the date of such
withdrawal); and (ii) the value of the Company's assets, net of
the Company's debts, and obligations; less any deficit balance in
the Member's Capital Account.
10.3 Events of Dissolution. The Company shall immediately
dissolve upon an event of withdrawal shall include:
(a) The withdrawal, resignation, dissolution or termination
of the Member;
(b) December 31, 2098; or
(c) The happening of any event that makes it unlawful or
impossible to carry on the business of the Company.
10.4 Cessation of Business. In the event of the occurrence
of any event effecting the dissolution of the Company, the
Manager shall execute a notice of winding up in such form as
shall be prescribed by the Missouri Secretary of State and file
the same with the Missouri Secretary of State's office. Upon the
filing of the notice of winding up, the Company shall cease to
carry on its business, except insofar as may be necessary for the
winding up of its business, but its separate existence shall
continue until the Manager has filed articles of termination in
the office of Missouri Secretary of State or until a decree
terminating the Company has been entered by a court of competent
jurisdiction.
10.5 Winding Up. Liquidation. and Distribution of Assets.
Upon dissolution, an accounting shall be made of the accounts of
the Company and of the Company's assets, liabilities and
operations, from the date of the last previous accounting until
the date of dissolution and the Manager shall immediately proceed
to wind up the affairs of the Company. If the Company is
dissolved and its affairs are to be wound up, the Manager shall:
(a) Collect and sell or otherwise liquidate all of the
Company's assets as promptly as practicable (except to the extent
the Member may determine to distribute any assets to the Member
in kind);
(b) Allocate any Net Profits or Net Losses resulting from
such sale or other disposition of the Company's assets to the
Member's Capital Account;
(c) Discharge all debts, liabilities and obligations of the
Company, including those to the Member as creditor of the
Company, to the extent otherwise permitted by law, other than
debts, liabilities and obligations to the Member for
distributions, and establish such reserves as the Manager may
deem reasonably necessary to provide for contingencies or
liabilities of the Company (for purposes of determining the
Member's Capital Account, the amounts of such reserves shall be
deemed to be an expense of the Company);
(e) Upon completion of the winding up, liquidation and
distribution of the assets, the Company shall be deemed
terminated; and
(f) The Manager shall comply with any applicable
requirements of the Missouri Act pertaining to the winding up of
the affairs of the Company and the final distribution of its
assets.
10.6 Articles of Termination. When all debts, liabilities,
and obligations have been paid and discharged or adequate
provisions have been made therefor and all of the remaining
assets have been distributed to the Member, the Manager shall
execute and deliver to the Missouri Secretary of State articles
of termination setting forth the information required by the
Missouri Act.
10.7 Return of Contribution Nonrecourse to Other Members.
Except as provided by law or as expressly provided in this
Operating Agreement, upon dissolution, the Member shall look
solely to the assets of the Company for the return of its Capital
Contributions.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 Notices. Except as otherwise provided in this Operating
Agreement, any notice required or permitted herein shall be in
writing and shall be deemed to have been delivered, whether
actually received or not, two (2) calendar days after being
deposited in the United States mail, by registered mail, return
receipt requested, postage prepaid, addressed to the party
entitled thereto at the last address of such party provided by
such party to the Company. Any notice to the Company shall be
sent to the Company's principal place of business.
11.2 Governing Law. This Operating Agreement has been made
and executed in accordance with the Missouri Act and is to be
construed, enforced, and governed in accordance therewith and
with the laws of the State of Missouri. All actions or
proceedings arising directly or indirectly from this Operating
Agreement shall be commenced and litigated only in the Circuit
Court of Xxxxxxx County, Missouri, or the United States District
Court of Missouri, Western District, located in Kansas City,
Missouri. The parties hereby consent to the jurisdiction over
them of the Circuit Court of Xxxxxxx County, Missouri, and the
United States District Court of Missouri, in all actions or
proceedings arising directly or indirectly from this Operating
Agreement.
11.3 Entire Agreement. Except as otherwise provided herein,
this Operating Agreement together with the preamble, recitals and
Exhibits hereto, each of which are incorporated herein,
constitutes the entire agreement on the subject matter hereof and
may not be changed, modified, amended, or supplemented except in
writing, signed by the Member. All other oral or written
agreements, promises, and arrangements in relation to the subject
matter of this Operating Agreement are hereby rescinded.
11.4 Binding Agreement. Subject to the restrictions and
encumbrances set forth herein, the terms and provisions of this
Operating Agreement shall be binding upon, be enforceable by and
inure to the benefit of the Member, and its successors and
assigns.
11.5 Interpretation. The descriptive headings contained in
this Operating Agreement are for convenience only and are not
intended to define the subject matter of the provisions of this
Operating Agreement and shall not be resorted to for
interpretation thereof.
11.6 Severability, If any provision of this Operating
Agreement or the application thereof to any individual or entity
or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Operating Agreement and the application of
such provisions to other individuals or entities or circumstances
shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
11.7 Saving Clause. In the event any provision of this
Operating Agreement shall be, or shall be found to be, contrary
to the Missouri Act, such provision shall be deemed amended so as
to conform with such Act.
11.8 Further Documentation. Each of the parties hereto
agrees in good faith to execute such further or additional
documents as may be necessary or appropriate to fully carry out
the intent and purpose of this Operating Agreement.
11.9 Indemnification. The Company shall indemnify any Member
or Manager of the Company who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, arbitration, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action by or in
the right of the Company, by reason of the fact that such Member
or Manager is or was a Member or Manager of the Company or is or
was serving at the request of the Company as a director or
officer of another corporation, partnership, joint venture,
trust, or other enterprise, against liability incurred in
connection with such action, arbitration, suit or proceeding,
including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such Member or
Manager in connection with such action, arbitration, suit or
proceeding, including any appeal thereof, if such Member or
Manager acted in good faith and in a manner such Member or
Manager reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such Member's
or Manager's conduct was unlawful, except that no indemnification
shall be made in respect of any claim, issue or matter as to
which such Member or Manager shall have been adjudged to be
liable for gross negligence or gross misconduct in the
performance of such Member's or Manager's duty to the Company
unless and only to the extent that the court or arbitration in
which the action, arbitration or suit was brought determines upon
application that, despite the adjudication of liability and in
view of all the circumstances of the case, such Member or Manager
is fairly and reasonably entitled to indemnity for such expenses
which the court or arbitration shall deem proper. The termination
of any action, arbitration, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption
that the Member or Manager did not act in good faith and in a
manner which such Member or Manager reasonably believed to be in
or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that such Member's or Manager's conduct was
unlawful.
IN WITNESS WHEREOF, the parties hereto have signed this
Operating Agreement to be effective on the date first above
written.
COPIER SOLUTIONS, LLC,
a Missouri limited liability company
By:/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Manager
MUNICIPAL SOLUTIONS, LLC,
a Delaware limited liability company
By:/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Manager
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Manager of Copier
Solutions, LLC
