LIMITED LIABILITY COMPANY AGREEMENT OF THE INTELLIGENT PROJECT, LLC
Exhibit 10.7
OF
THE
INTELLIGENT PROJECT, LLC
THE
INTERESTS REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
THE DELAWARE SECURITIES ACT, OR ANY SIMILAR STATE STATUTE IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION AS PROVIDED IN THOSE STATUTES.
THE SALE
OR OTHER DISPOSITION OF THE INTERESTS IS RESTRICTED, AS SET FORTH IN THIS
AGREEMENT, AND THE EFFECTIVENESS OF ANY SUCH SALE OR OTHER DISPOSITION MAY BE
CONDITIONED UPON THE RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH SALE OR OTHER DISPOSITION
CAN BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND ANY APPLICABLE STATE STATUTES.
BY
ACQUIRING INTERESTS REPRESENTED BY THIS AGREEMENT, A MEMBER REPRESENTS THAT HE
WILL NOT SELL OR OTHERWISE DISPOSE OF THE INTERESTS WITHOUT REGISTRATION OR
OTHER COMPLIANCE WITH THE AFORESAID STATUTES AND THE RULES AND REGULATIONS
THEREUNDER.
THE
MEMBER HAS CAREFULLY READ AND UNDERSTANDS THE AGREEMENT.
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of
THE
INTELLIGENT PROJECT, LLC
(a
Delaware Limited Liability Company)
THIS
LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is entered into by
and among those persons executing this Agreement (collectively, the “Members”) and THE INTELLIGENT
PROJECT, LLC, a Delaware limited liability company (the “Company”), effective as of the
22nd day of May, 2009.
RECITAL
WHEREAS,
the Company and the undersigned Members wish to enter into a Limited Liability
Company Agreement for the purpose of forming a limited liability company
pursuant to the provisions of the Delaware Limited Liability Act (the “Act”);
NOW,
THEREFORE, the Members and the Company, intending to be legally bound by this
Agreement, hereby agree that the limited liability company agreement of the
Company shall be as follows:
1 Organization. The
Members have organized the Company as a Delaware limited liability company
pursuant to the provisions of the Act.
2 Purpose;
Powers. The purpose of the Company shall be to shall be to
engage in any lawful activities that the Managers deem appropriate and to do all
things necessary or convenient to accomplish its purpose and operate its
business as described in this Section 2. The Company shall have
all powers of a limited liability company under the Act and the power to do all
things necessary or convenient to accomplish its purpose and operate its
business as described in this Section 2.
3 Capital.
3.1 Contributions. Each
Member has made a contribution of cash or other property in an amount opposite
its name on Schedule A,
attached hereto and incorporated by reference herein (the “Capital
Contributions”). The Members shall have no obligation to make
any additional capital contributions to the Company except as may be provided in
a separate agreement between the Company and any of its Members. The
Managers, in their sole discretion, may permit any or all of the Members to make
additional Capital Contributions from time to time for Company expenses;
however, no Member shall have the right to make additional Capital
Contributions.
3.2 Capital
Account. A Capital Account shall be established for each
Member and shall be maintained as provided by the capital account maintenance
rules set forth in Treasury Regulation
Section 1.704-1(b)(2)(iv).
3.3 Limited
Liability. Except as otherwise expressly required by law, a
Member, in its capacity as a member of the Company, shall have no liability in
excess of (a) the amount of its capital contributions, (b) its share
of any assets and undistributed profits of the Company and (c) the amount
of any distributions wrongfully distributed to it.
3.4 Election of Profit
Interests. By executing this Agreement, each Member authorizes
and directs the Company to elect to have the “Safe Harbor” described in the
proposed Revenue Procedure set forth in Internal Revenue Service Notice 2005-43
(the “IRS Notice”) apply to any interest in the Company transferred to a service
provider by the Company on or after the effective date of such Revenue Procedure
in connection with services provided to the Company. For purposes of
making such Safe Harbor election, the Tax Matters Member is hereby designated as
the “partner who has responsibility for U.S. federal income tax reporting” by
the Company and, accordingly, execution of such Safe Harbor election by the Tax
Matters Member constitutes execution of a “Safe Harbor Election” in accordance
with Section 3.03(1) of the IRS Notice. The Company and each Member
hereby agree to comply with all requirements of the Safe Harbor described in the
IRS Notice, including, without limitation, the requirement that each Member
shall prepare and file any U.S. federal income tax returns such Member is
required to file reporting the income tax effects of each “Safe Harbor
Partnership Interest” issued by the Company in a manner consistent with the
requirements of the IRS Notice. A Member's obligations to comply with
the requirements of this Section 3.3 shall survive such Member's ceasing to be a
Member of the Company and/or the termination, dissolution, liquidation and
winding up of the Company, and, for purposes of this Section 3.3, the Company
shall be treated as continuing in existence. Each Member authorizes
the Tax Matters Member to amend this Section 3.3 to the extent necessary to
achieve similar tax treatment with respect to any interest in the Company
transferred to a service provider by the Company in connection with services
provided to the Company as set forth in Section 4 of the IRS Notice (e.g., to
reflect changes from the rules set forth in the IRS Notice in subsequent U.S.
Department of Treasury or Internal Revenue Service guidance).
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4 Allocations.
4.1 Profits or
Losses. "Profits" or "Losses" means, for each fiscal
year, an amount equal to the Company’s taxable income or loss for such fiscal
year, determined in accordance with Section 703(a) of the Code (but
including in taxable income or loss, for this purpose, all items of income,
gain, loss or deduction required to be stated separately pursuant to
Section 703(a)(1) of the Code), with the following
adjustments:
(a) any
income of the Company exempt from federal income tax and not otherwise taken
into account in computing Profits or Losses pursuant to this definition shall be
added to such taxable income or loss;
(b) any
expenditures of the Company described in Section 705(a)(2)(B) of the Code
(or treated as expenditures described in Section 705(a)(2)(B) of the Code
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i)) and not
otherwise taken into account in computing Profits or Losses pursuant to this
definition shall be subtracted from such taxable income or loss;
(c) in the
event the book basis of any Company asset is adjusted in accordance with the
Treasury Regulations, the amount of such adjustment shall be taken into account
as gain or loss from the disposition of such asset for purposes of computing
Profits or Losses;
(d) gain or
loss resulting from any disposition of any asset of the Company with respect to
which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the book basis of the asset disposed of,
notwithstanding that the adjusted tax basis of such asset differs from its book
basis;
(e) in lieu
of the depreciation, amortization and other cost recovery deductions taken into
account in computing such taxable income or loss, there shall be taken into
account depreciation for such fiscal year or other period, computed in
accordance with the book basis; and
(f) notwithstanding
any other provisions of this Section, any items that are specially allocated
pursuant to Section 4.3 hereof shall not be taken into account in computing
Profits or Losses.
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4.2 Allocations. For
each fiscal year of the Company, after adjusting each Member’s Capital Account
for Total Capital Contributions and distributions during such fiscal year and
all special allocations pursuant to Section 4.3 with respect to such fiscal
year, all Profits and Losses (other than Profits and Losses specially allocated
pursuant to Section 4.3) shall be allocated to the Members’ Capital
Accounts in a manner such that, as of the end of such fiscal year, the Capital
Account of each Member (which may be either a positive or negative balance)
shall be equal to (a) the amount that would be distributed to such Member,
determined as if the Company were to liquidate all of its assets for the book
value thereof and distribute the proceeds thereof pursuant to Section 7.1
hereof, minus (b) such Member’s share of Company Minimum Gain (as determined
according to Treasury Regulation Section 1.704-2(d) and (g)(3)), if any,
and Member Non Recourse Debt Minimum Gain (as determined according to Treasury
Regulation Section 1.704- 2(i)), if any. Notwithstanding the
foregoing, no Member shall be allocated Losses in excess of the amount of the
"economic risk of loss" it bears for the Company’s indebtedness, as determined
under Treasury Regulation Section 1.752-2 (in which case, the excess Loss
not so allocated shall be reallocated to those Members who bear such economic
risk of loss for the indebtedness, in proportion to and to the extent of the
respective amounts of such economic risk of loss they bear).
4.3 Compliance with Treasury
Regulations. Allocations of income and losses among the
Members shall be made in a manner so that such allocations have substantial
economic effect in accordance with the tests therefor set forth in the Treasury
Regulations promulgated under Section 704(b) of the
Code. Accordingly, allocations not specifically provided for in this
Agreement shall be made in such a manner as shall conform to the allocation
rules and principals as set forth in such Treasury Regulations as in effect from
time to time, and the Capital Accounts of the Members shall be maintained in
accordance with the provisions hereof construed and interpreted in light of such
Treasury Regulations. The Managers may amend the provisions of this
Agreement if such amendment would not have a materially adverse effect on the
Members and if, in the opinion of counsel for the Company, such amendment is
advisable for purposes of complying with Section 1.704-1(b) or
Section 1.704-2 of the Treasury Regulations, as may be amended or
supplemented from time to time.
4.4 Tax
Allocations. For income tax purposes only, each item of
taxable income, gain, loss, deduction and credit shall be allocated among the
Members in the same manner as the corresponding items of Profits and Losses and
specially allocated items are allocated for Capital Account purposes; provided,
that, in the case of any Company asset the book basis of which differs from its
adjusted tax basis for U.S. federal income tax purposes, income, gain, loss and
deduction with respect to such asset shall be allocated solely for income tax
purposes in accordance with the principles of Sections 704(b) and (c) of the
Code (using the “traditional method with curative allocations”, unless otherwise
agreed by the Members) so as to take account of the difference between book
basis and adjusted tax basis of such asset.
5 Distributions.
5.1 Generally. The
Managers shall distribute Net Cash Flow at such times and in such amounts as
determined by the Managers, in their sole discretion. Except as
otherwise provided in this Article 5 and Article 7 hereof (relating to the
dissolution of the Company), distributions of the funds during any fiscal year
shall be made to the Members as follows:
(a) First,
pro rata to the Members in accordance with their Capital Contribution
Percentage, until each Member has received its Capital Contribution amount set
forth on Schedule
A (Minimum Distributions shall not constitute distributions for purposes
of this Section 5.1(a)); and
(b) Second,
to the Members pro rata in accordance with their respective Percentage
Interests.
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5.2 Special Distribution
Rules. Notwithstanding the foregoing, to the extent Net Cash
Flow is available, the total distributions to a Member for each fiscal year (and
the ninety (90) day period following such fiscal year) shall not be less than an
amount equal to the product of: (x) the Company’s net taxable income allocated
to such Member for such fiscal year and all prior fiscal years for federal
income tax purposes, multiplied by (y) the highest marginal combined federal,
state and local income tax rate applicable to the Member having the highest
combined income tax bracket (or the owners of the Members if the Members are tax
transparent for U.S. federal income tax purposes), after taking into account the
federal income tax deduction for such taxes, reduced by all prior distributions
pursuant to Section 5.2, regardless of the actual federal tax rates
applicable to the Members (“Minimum
Distributions”). To the extent that such Minimum Distributions
requirement increases the amount of distributed Net Cash Flow beyond the amount
to which a Member would be entitled in the absence thereof, the excess portion
shall be considered a prepayment of future distributions of Net Cash Flow
allocable to such Member; provided that adjustments to any such future
distributions to that Member shall not decrease its aggregate Net Cash Flow
distributions below an amount necessary to meet the Minimum Distribution
requirement for such Member for subsequent fiscal years. All amounts
withheld pursuant to the Code or any provision of any foreign, state or local
tax law or treaty with respect to any payment, distribution or allocation to the
Company or the Members shall be treated as amounts distributed to the Members
pursuant to this Article 5 for all purposes of this
Agreement. The Managers are authorized to withhold from distributions
to the Members and to pay over to any federal, foreign, state or local
government any amounts required to be so withheld pursuant to the Code or any
provision of any other federal, foreign, state or local law or treaty and shall
allocate such amounts to those Members with respect to which such amounts were
withheld.
6 Rights, Power and Authority
of the Members and Managers.
6.1 Members. The
Members shall have no power or authority to manage the affairs of the
Company. In addition:
(a) No annual
meeting of Members is required to be held. Any action required or
permitted to be taken at any meeting of Members may be taken without a meeting
if one or more written consents to such action shall be signed by the Members
holding the amount of Percentage Interests required to approve the action being
taken. Such written consents shall be delivered to the Managers and,
unless otherwise specified, shall be effective on the date when the first
consent is so delivered. The Managers shall give prompt notice to all
Members who did not consent to any action taken by written consent of Members
without a meeting.
(b) Except as
set forth in Article 9 with respect to transfers of Company Interests, no Member
shall have any right to resign or withdraw from the Company without the consent
of the other Members.
(d) Within
ninety (90) days after the end of each fiscal year, the Managers shall furnish
to all Members such information as may be needed to permit Members to file their
federal income tax returns and any required state income tax
returns. The cost of such reports shall be an expense of the
Company.
6.2 Managers.
(a) The
Company shall be managed by a Management Committee. The initial
members of the Management Committee shall be Xxxx Xxxxxxx, Xxxxxxx Kachidza, Xxx
Xxxxxxxxx and Xxxxx Xxxxxx (each a “Manager”, and together the
“Managers”). Each of
the Managers shall serve until he dies, resigns, is removed by a majority of the
other Managers or until a disposition of all of the Company Interest owned by
such Member or his Affiliates to other than a Permitted
Transferee. Upon the death, resignation, disability or removal of a
Manager, the remaining Managers may, in their sole discretion, elect a
substitute member of the Management Committee. If
there are no Managers, the Members shall select substitute members of the
Management Committee. The
resignation or removal of a Manager shall not affect such Manager’s rights,
duties and obligations as a Member.
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(b) The
Management Committee may, from time to time, elect to increase the number of
Managers. Such additional Managers shall be selected by the
Management Committee.
(c) The
Managers shall have the exclusive right, power and authority to manage the
Company’s business and affairs, and the decisions and acts of the Managers shall
bind the Company. The Managers shall have all powers necessary to
exercise their responsibilities under this Agreement. In the event
that a Manager is other than an individual, such Manager shall act through its
duly authorized representatives.
(d) The
Management Committee shall meet as often as may be reasonably necessary, as
determined in the reasonable discretion of the Managers. The vote of
a majority of the members of the Management Committee in attendance at a meeting
or taken by written consent shall constitute action by the Company.
(e) The
Company shall reimburse the Managers for all of the costs and expenses incurred
by the Managers on behalf of the Company, including, without limitation, all of
the expenses, costs and fees incurred to organize the Company. The
Managers shall ensure that all such costs and expenses incurred hereunder are
reasonable.
6.3 Officers. The
Management Committee may, from time to time, designate one or more natural
persons to be officers of the Company. No officer need be a resident
of the State of Delaware, a Member or a Manager. Any officers so
designated shall have such authority and perform such duties as the Management
Committee may, from time to time, delegate to such officer. The
Managers may assign titles to particular officers. Unless the
Management Committee otherwise decides, if the title is one commonly used for
officers of a business corporation, the assignment of such title shall
constitute the delegation to such officer of the authority and duties that are
normally associated with that office, subject to any specific delegation of
authority and duties made to such officer by the Management Committee pursuant
to the third sentence of this Section 6.3. Each officer shall hold
office until his or her successor shall be duly designated and shall qualify or
until his or her death or until he or she shall resign or shall have been
removed in the manner hereinafter provided. Any number of offices may
be held by the same individual. The salaries or other compensation,
if any, of the officers and agents of the Company shall be fixed from time to
time by the Management Committee.
6.4 Liability of the Member and
Managers. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Members and the Managers shall not be obligated personally for
any such debt, obligation or liability of the Company solely by reason of being
a Member or Manager.
6.5 Exculpation. The
Managers, their agents, affiliates, employees, attorneys and all others acting
on a Manager’s behalf shall not be liable, responsible or accountable in damages
or otherwise to the Company or to any of the Members for any act or omission
performed or omitted by the Managers or such other Persons enumerated herein, in
good faith pursuant to the authority granted to the Managers by this Agreement
in a manner reasonably believed by them to be within the scope of the authority
granted to them by this Agreement as in (or not opposed to) the best interest of
the Company or the Members; provided, however, that the Managers shall not be
relieved of any liability in respect of any claim, issue or matter as to which
such Manager or any such Person shall have been adjudged to be liable for gross
negligence or willful misconduct.
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6.6 Indemnification. The
Company shall indemnify the Members, Managers, officers and any of the Members’
or Managers’ managers, directors, shareholders, officers, agents and Affiliates,
and their respective successors or assigns (individually, an “Indemnified Party”), against
any and all judgments, costs, losses, liabilities and damages (including
attorneys’ fees and expenses) paid or incurred by the Indemnified Party in
connection with the activities of the Company or in dealing with third parties
on behalf of the Company, to the fullest extent provided or allowed by
law.
6.7 Tax Matters
Member. KLI IP Holding Inc., and if and after the acquisition
of a majority of the Company Interests by Utilipoint International, Inc. (“Utilipoint”), Utilipoint, is
hereby designated as the tax matters partner within the meaning of
Section 6231(a)(7) of the Code (the “Tax Matters Member”) for all
purposes of the Code, and shall be responsible for performing the duties of the
Tax Matters Member on behalf of the Company. By execution of this
Agreement, each of the Members specifically consents to such
designation. The Tax Matters Member shall keep the Members informed
as to the status of any material audit of the Company’s tax affairs and shall
not, with respect to Company tax matters, enter into a settlement agreement that
proposes to bind any Member or otherwise compromise material assertions of the
auditing agent that may be adverse to a Member, in each case without the prior
written consent of such Member. Each Member shall have the right to
participate in any proceedings related to the determination of Company items at
the Company level. Each Member that elects to participate in such
proceedings shall be responsible for any expenses incurred by such Member in
connection with such participation.
6.8 Other Activities of Members
and Managers. Each Member and Manager, in its, her or his
individual capacity or otherwise, shall be free to engage in, to conduct, or to
participate in any business or activity whatsoever, without any accountability,
liability, or obligation whatsoever to the Company or to any Member, even if
such business or activity competes with or is enhanced by the business of the
Company; provided, however, that this Section 6.8 is subject to the terms of
Section 11.15 hereof and any agreement, other than this Agreement, to which any
Member or Manager is a party or by which they are bound.
7 Dissolution.
7.1 Upon
Dissolution. The Company shall dissolve upon the earliest to
occur of: (i) the determination of the Managers, (ii) the sale by the
Company of all of its assets and the collection of amounts derived from any such
sale or sales, or (iii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act. Upon its dissolution, the Company shall
terminate and immediately commence to wind up its affairs. The
proceeds of liquidation shall be distributed in the following order and
priority:
(a) First, to
creditors of the Company consistent with the subordination or other terms and
conditions therein pertaining to priority of satisfaction of such indebtedness,
in full satisfaction of the liabilities of the Company (whether by payment or
the making of reasonable provision for payment thereof);
(b) Second,
to a reserve account as determined by the Managers in their reasonable
discretion, to be used in connection with administrative expenses;
and
(c) Third, to
the Members in accordance with Section 5.1.
7.2 Winding
Up. The winding up of the Company's affairs and the
liquidation and distribution of its assets shall be conducted by the Managers,
who are hereby authorized to do any and all acts and things authorized by the
Act in order to effect such liquidation and distribution.
7.3 Distributions in
Kind. Distributions to the Members in liquidation may be made
in cash or in kind, or partly in cash and partly in kind, as determined by the
Managers. Distributions in kind shall be valued at Fair Market Value
on the day immediately prior to such distribution and shall be subject to such
conditions and restrictions as may be necessary or advisable in the reasonable
discretion of the Managers to preserve the value of the property so distributed
or to comply with applicable law.
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8.1 Books and
Records.
(a) The
Company's books and records will be kept on a consistently applied method of
accounting that will reflect all Company transactions and be appropriate and
adequate for all Company business.
(b) The
Company’s books will be kept on a fiscal year ending December 31. As
required by the Act, the Company’s books, together with all correspondence,
papers and other documents, shall be kept at the principal office of the Company
and shall be, at all reasonable times, open to the examination of any of the
Members or their duly authorized representatives.
(c) The Tax
Matters Member shall supply the Members with the Company information necessary
to enable each Member to prepare in a timely manner its income tax
returns.
8.2 Holding of
Property. Any assets or property interests owned by the
Company shall be held in the name of the Company.
8.3 Ownership of Company
Property. Each Member expressly waives the right to require
partition of any property of the Company.
8.4 Restrictions of
Members. Except as expressly permitted or required by this
Agreement, no Member shall have the right to receive a return of any of his, her
or its contributions to the Company until the Company is terminated and its
affairs completed in accordance with the Act and this Agreement.
9 Transfer Of Company
Interests; Admission Of New Members.
9.1 Restrictions on
Transfers.
(a) Except
for Permitted Transfers as set forth in Section 9.4 hereof, neither record title
nor beneficial ownership of a Company Interest of any Member may be transferred
or encumbered, in whole or in part, without the consent of the
Managers.
(b) Any
attempted transfer of any Company Interest by a Member not in accordance with
the terms of this Agreement shall be null and void, and shall not be reflected
on the Company’s books.
(c) Each
Member hereby acknowledges the reasonableness of the restrictions on transfers
imposed by this Agreement in view of the Company’s purpose and the relationship
of the Members. Accordingly, the restrictions on transfer contained
herein shall be specifically enforceable. Each Member hereby further
agrees to hold the Company and each Member (and each Member’s successors and
assigns) wholly and completely harmless from any costs, liability or damage
(including without limitation, liabilities for income taxes and costs of
enforcing this indemnity) incurred by any of such Persons indemnified hereunder
as a result of a transfer or an attempted transfer in violation of this
Agreement and efforts to enforce the indemnity granted hereby.
(d) Until the
effective date of an assignment of a Company Interest, both the Company and the
Members shall be entitled to treat the assignor of the Company Interest as the
absolute owner thereof in all respects.
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9.2 Acquisition of an Interest
Conveyed to Another Without Authority or Involuntary Sale of Company
Interest. If any Person acquires a Company Interest as a
result of an order of a court, or if a Member’s interest in the Company is
subjected to a lawful “charging order,” or if a Member makes an unauthorized
transfer or assignment of a Company Interest, which the Company is required by
law to recognize, the Company shall treat the transferee or acquirer of such
Company Interest as an Assignee, who shall have only the rights of an Assignee
as provided by the Act.
9.3 Condition Precedent to
Admission of a Member. Except as otherwise provided, no Person
to whom a Company Interest is properly transferred pursuant to any section of
this Agreement shall be admitted as a new Member until:
(a) The
transferee has, in form satisfactory to the Managers, accepted and agreed to be
bound by all of the terms and provisions of this Agreement;
(b) The
transferee has provided, in the case of a corporate assignee, a certified copy
of a resolution of its board of directors authorizing it to become a Member
under the terms and provisions of this Agreement; and
(c) The
Managers consent to such transfer.
Unless
and until a transferee is admitted as a Member said transferee shall have only
the rights of an Assignee.
9.4 Permitted
Transfers. The restrictions on transfers set forth in this
Article 9, except for the restrictions contained in Sections 9.3 (a) and
(b) hereof, shall not apply to the transfer of any Company Interest to a
Permitted Transferee. A Permitted Transferee shall initially become
an Assignee and shall have the right to become a substitute Member only when and
if the provisions of Sections 9.3 (a) and (b) of this Article are
satisfied. The subsequent Transfer of any Company Interest by a
Permitted Assignee shall be subject to the same restrictions of this
Article 9 in the same manner as if the Company Interest to be Transferred
was still owned by the Member from whom such Permitted Assignee acquired such
Interest; and for this purpose references herein to a Transfer by a Member (or a
specific Member), shall include any Transfer by the Permitted Assignee(s) that
acquired such Member’s Interest.
9.5 Alternative Treatment of
Unauthorized Transfers. With respect to any unauthorized
transfer of a Company Interest, the Managers shall, in their discretion, have
the authority to choose among the following alternatives:
(a) To admit
the transferee as a Member, providing the requirements of Section 9.3 are
complied with; or
(b) To treat
the transferee as an Assignee.
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9.6 Approved Sale
Cooperation.
(a) At any
time that the Members holding at least a majority of the Percentage
Interests propose a Sale of the Company (“Initiating Members”), such
Initiating Members shall be entitled to deliver notice to the Company and the
other Members that such Initiating Members desire the Company and/or the other
Members to enter into agreements with one or more Persons that would result in a
Sale of the Company, whereupon all Members and the Company shall consent to and
raise no objections against the Sale of the Company, and if the Sale of the
Company is structured as: (i) a merger or consolidation of the Company, each
Member shall, and hereby agrees to, waive any dissenter’s rights, appraisal
rights or similar rights in connection with such merger or consolidation and
instruct the Managers to vote in favor of such Sale of the Company or (ii) a
sale of Company Interests, each Member shall, and hereby agrees to, agree to
sell their Company Interests on the same terms and conditions. All
Members and the Company shall take all necessary and desirable actions in
connection with the consummation of the Sale of the Company, including the
execution of such agreements and such instruments and other actions reasonably
necessary to: (1) provide the representations, warranties, indemnities,
covenants, conditions, escrow agreements and other provisions and agreements
relating to such Sale of the Company and (2) to effectuate the allocation and
distribution of the aggregate consideration upon the Sale of the Company as set
forth below. The Members shall not be required to comply with, and
shall have no rights under, Section 9.1 through 9.5 hereof in connection with
any Sale of the Company. Each Member and the Company hereby grants an
irrevocable proxy (which shall be coupled with an interest) and power of
attorney to any nominee of the Members holding a majority of the Percentage
Interests (which may be a Member) (the “Member Nominee”) to take all
necessary actions and execute and deliver all documents deemed necessary and
appropriate by such Member Nominee to effectuate the consummation of any such
Sale of the Company. The Members (other than the Member Nominee and
its Affiliates) hereby indemnify, defend and hold the Member Nominee harmless
(severally and in accordance with their pro rata share of the consideration
received in any such Sale of the Company (and not jointly or severally)) against
all liability, loss or damage, together with all reasonable costs and expenses
(including reasonable legal fees and expenses), relating to or arising from its
exercise of the proxy and power of attorney granted hereby.
(b) Notwithstanding
anything herein to the contrary, in connection with any Sale of the Company: (i)
such Member shall only be required to make such representations and warranties
as made by the Initiating Members, and (ii) such Member may be required to join
any indemnification obligation that all of the other Members have agreed to in
connection with such Sale of the Company, but only severally on a pro rata basis
and not with respect to any such obligation that relates specifically to a
particular Member; provided, further, that such Member shall not be obligated in
connection with any Sale of the Company to indemnify the prospective transferee
or its or their Affiliates with respect to an amount in excess of the net cash
proceeds paid to such Member in connection with such Sale of the
Company.
(c) The
Company shall provide the Members with written notice of any Sale of the Company
at least ten (10) days before the consummation thereof. Upon the
consummation of the Sale of the Company, each Member shall receive the same
portion of the aggregate consideration from such Sale of the Company that such
Member would have received if such aggregate consideration (in the case of an
asset sale, after payment or provision for all liabilities) had been distributed
by the Company pursuant to Article 5 hereof.
10 Definitions.
(a) “Affiliate” of any Person means
a Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with the first mentioned
person. A Person shall be deemed to control another Person if such
first Person possesses directly or indirectly the power to direct, or cause the
direction of, the management and policies of the second Person, whether through
the ownership of voting securities, by contract or otherwise.
(b) “Assignee” means a Person who
has acquired all or a portion of a Company Interest by assignment as of the date
the assignment of the Company Interest has become “effective.” An
Assignee has only the rights granted under the Act. An Assignee does not have
the right to become a Member, except as provided in this Agreement and in the
Act.
(c) “Capital Account” means the
account described in Section 3.2 of this Agreement.
(d) “Capital Contribution” means
the cash or other property, to be contributed pursuant to Section 3.1 of
this Agreement in the respective amounts and types set forth on Schedule A.
10
(e) “Capital Contribution
Percentage” means, with respect to each Member, such Member’s
proportionate share of the Capital Contributions, as provided in Schedule A.
(f) “Code” means the Internal
Revenue Code of 1986, as amended from time to time.
(g) “Company” means The Intelligent
Project, LLC.
(h) “Company Interest” means the
interest of a Member in the Company and the right to receive
distributions.
(i) “Fair Market Value” means: (A)
with respect to securities listed on a national (or other) securities exchange
or admitted to unlisted trading privileges on such exchange or listed for
trading on The NASDAQ National market, the last reported sale price of the
security on such exchange or market for the trading day immediately prior to the
date of determination (or the trading day on which the last sale took place);
(B) with respect to securities not so listed or admitted to unlisted trading
privileges, the average of the last reported bid and asked prices reported by
the National Quotation Bureau, Inc. (or other quotation service), for the
trading day immediately prior to the date of determination; (C) if the
securities are not so listed or admitted to unlisted trading privileges and bid
and asked prices are not so reported, the most recent valuation based on a
transaction between the Company and a third party in respect of such securities;
or (D) in the event no such transaction has occurred, an amount determined in
such reasonable manner as may be prescribed in good faith by the
Managers.
(j) “Indemnified Party” means those
Persons described in Section 6.6 of this Agreement.
(k) “Managers” means those members
of the Management Committee as set forth in Section 6.2.
(l) “Members” means, collectively,
the persons admitted as members of the Company, initially as set forth on Schedule A, and as
otherwise permitted under this Agreement.
(m) "Net Cash Flow" means, for each
calendar month, fiscal year or other period of the Company for which it must be
determined, the gross cash receipts of the Company from all sources other than
Capital Contributions and loans, less all expenses, expenditures, fees, taxes,
guaranteed payments, and other amounts paid by or for the account of the Company
during the same period, including without limitation, payments of principal and
interest on any Company borrowings from third parties and from Members, and
further reduced by reserves reasonably established by the Managers for
contingencies of the Company’s business and for the Company’s continued
operations. Net Cash Flow shall not be reduced by depreciation,
amortization, cost recovery deductions, depletion, similar allowances or other
noncash items, but shall be increased by any reduction of any reserves
previously established.
(n) “Percentage Interest” means,
with respect to each Member, such Member’s proportionate share of the Company
Interests, as provided in Schedule A.
(o) “Permitted Transferee” means
with respect to a particular Member, a Person that is (i) a spouse, natural or
adoptive lineal ancestor or descendant of such Member (a "Family Member"); (ii) a
trust, estate, guardianship or custodianship, including those established under
any of the Uniform Gifts to Minors Act of any state, established for such
Member, or one or more Family Members or other Permitted Transferees of such
Member; and (iii) an Affiliate of such Member.
(p) “Person” means any individual,
corporation, limited liability company, partnership, trust, estate,
custodianship or other entity that has a legal existence.
11
(r) “Sale of the Company" means the
sale of the business of the Company to a third party through the Transfer of all
or substantially all of the Company's assets or greater than 50% of the limited
liability company interests of the Company (determined on an as converted and
fully diluted basis), in a single transaction or series of related transactions,
whether effected through a merger, consolidation, sale of assets or securities
or otherwise.
(s) “Securities Act” means the
Securities Act of 1933, as amended from time to time.
(t) “Total Capital Contributions”
means the aggregate amount which all Members have contributed to the capital of
the Company, as provided in Schedule A.
11 Miscellaneous
Provisions.
11.1 Notices. Any
notice, payment, demand or communication required or permitted to be given by
any provision of this Agreement shall be in writing and shall be deemed to have
been delivered and given for all purposes: (a) when delivered personally to
the party or to an officer of the party to whom the same is directed,
(b) when received by facsimile or other electronic means, (c) when
delivered by overnight courier, or (d) five (5) days after being
deposited in the United States mail registered or certified mail, postage and
charges prepaid, addressed to the addresses as any Member may from time to time
specify by written notice to the Company. Any notice may at any time
be waived by the person entitled to receive the notice.
11.2 Section
Captions. Section and other captions contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of any part of
this Agreement.
11.3 Severability. Every
provision of this Agreement is intended to be severable. If any term
or provision hereof is illegal or invalid for any reason whatsoever, the
illegality or invalidity shall not affect the validity of the remainder of this
Agreement.
11.4 Amendments. This
Agreement shall be amended only by the vote of the Members holding at least
seventy-five percent (75%) of the Percentage Interests, provided that in no
event shall the consent of any Member be required to amend Schedule A hereto to
reflect changes in the Member’s respective Capital Contributions, Capital
Contribution Percentages and Percentage Interests.
11.5 Governing Law;
Jurisdiction. This Agreement and the rights of the Members
shall be governed by and construed and enforced in accordance with the laws of
the State of New York, and the Act as now in effect shall govern and supersede
any provision of this Agreement which would otherwise be in violation of the
Act. Each Member hereby consents to the exclusive jurisdiction of the
state and federal courts sitting in New York in any action on a claim arising
out of, under or in connection with this Agreement or the transactions
contemplated by this Agreement. Each Member further agrees that
personal jurisdiction over him or it may be effected by service of process by
registered or certified mail addressed to him or it at the addresses set forth
on the signature page hereto, and that when so made will be as if served upon
him or it personally within his or its state of residence. EACH OF
THE MEMBERS HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY
DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
RELATING TO THE COMPANY OR ITS OPERATIONS.
11.6 Waiver of Action for
Partition. Each of the Members irrevocably waives, during the
term of the Company and during the period of its liquidation following any
dissolution, any right which the Member may have to maintain an action for
partition with respect to any assets of the Company.
12
11.7 Counterpart
Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all parties had signed the same
document. All counterparts shall be construed together and shall
constitute one Agreement.
11.8 Parties in
Interest. Every covenant, term, provision and agreement
contained in this Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties.
11.9 Integrated
Agreement. This Agreement constitutes the entire understanding
and agreement of the parties with respect to its subject matter, and there are
no agreements, understandings, restrictions, representations or warranties among
the parties other than those set forth in this Agreement.
11.10 No Oral
Modification. No modification or waiver of this Agreement or
any part of it shall be valid or effective unless in writing and signed by the
party or parties sought to be charged; and no waiver of any breach or condition
of this Agreement shall be deemed to be a waiver of any other breach or
condition.
11.11 Consent, Approval or
Ratification. Any provision of this Agreement requiring the
consent, approval or ratification of the Members shall, unless expressly stated
to the contrary, require the written consent, approval or ratification of a the
Members owning a majority of the Percentage Interests.
11.12 Number and
Gender. Where the context so indicates, the masculine shall
include the feminine and neuter, the singular shall include the plural and
person shall include a corporation or other entity.
11.13 Waiver of Appraisal
Rights. Each of the Members hereby acknowledges and agrees
that no Member shall have any appraisal rights, as described in Section 18-210
of the Act.
11.14 Further Documents and
Acts. Each Member agrees to cooperate fully with the other
Members and the Company, to execute and deliver such additional documents and
instruments, to give such further written assurances and to perform such
additional acts as may be reasonably necessary or appropriate to effectuate,
carry out and perform all of the terms, provisions, and conditions of this
Agreement and the transactions contemplated hereby.
11.15 Confidentiality. The
Members will not, and will use their good faith efforts to cause their
Affiliates to not, use or disclose to any Person (other than a Member) any trade
secrets, technical information, processes, know-how, financial or business data
or other proprietary information relating to or in the possession of the Company
(collectively, “Proprietary
Information”) for any purpose which does not relate to the Company;
provided, however, that a Member may disclose any such Proprietary Information:
(a) that has become generally available to the public (other than disclosure by
the Member in violation of this Section 11.15); (b) to its employees and
professional advisers who need to know such information and agree to keep it
confidential in accordance with the terms of this Section 11.15; (c) to the
extent required in order to comply with contractual reporting obligations to its
members who have agreed to keep it confidential in accordance with the terms of
this Section 11.15; (d) to the extent necessary in order to comply with any law,
order, regulation or ruling applicable to such Member; and (e) as may be
required in response to any summons, subpoena or discovery request in connection
with any litigation or proceeding, it being agreed that, unless such Proprietary
Information has become generally available to the public: (x) the Member will
give the Company prompt notice of such summons, subpoena or discovery request
and will use reasonable efforts to cooperate with the Company at the Company’s
reasonable request so that the Company may, in its discretion, seek a protective
order or other appropriate remedy, if available and (y) in the event that such
protective order is not obtained (or sought by the Company after notice), the
Member: (i) will furnish only that portion of the Proprietary Information which,
in accordance with the advice of counsel, is legally required to be furnished
and (ii) will exercise its reasonable efforts to obtain assurances that
confidential treatment will be accorded such Proprietary
Information. Notwithstanding the foregoing, in no event shall any
Member be required to pay any sum of money in connection with its cooperation
hereunder.
13
11.16 Withdrawal of
Members. The Members shall not be permitted to withdraw from
the Company except as permitted in Section 7 or Section 9. A
withdrawing Member is not entitled to receive any amount from the Company in
connection with such withdrawal except to the extent specifically provided in
this Agreement.
12 Investment by
Members.
12.1 Subscription of Company
Interest. Each Member hereby subscribes for the Company
Interest set forth on Schedule
A. Each Member will execute such subscription agreements as
may be reasonably required by the Managers.
12.2 Subscription of Company
Interest. Each Member hereby represents and warrants that the
Company Interest being subscribed for and purchased by the Member is being
acquired: (a) with the intent of holding the Company Interest for investment
only and not with the intent of participating directly or indirectly in any
distribution thereof and (b) with the understanding that the Company Interest
may not be sold or transferred except as permitted by this Agreement and
applicable federal and state securities laws.
12.3 Ability to Bear
Risk. Each Member represents and warrants to the Company that
with respect to such Member’s investment in the Company:
(a) The
execution and delivery of this Agreement by such Member (if such Member is not a
natural person) has been duly authorized;
(b) Such
Member has such knowledge and expertise in financial and business matters that
he or it is capable of utilizing the information made available to the
undersigned, to evaluate the merits and risks of an investment in the Company
and to make an informed investment decision with respect thereto;
(c) Such
Member is aware that his or its investment in the Company is highly speculative
and the financial situation of the Member is such that the Member can afford to
bear the economic risk of holding the Company Interest purchased by the Member
hereunder for an indefinite period;
(d) Such
Member can afford to suffer the complete loss of the Member’s investment in such
Company Interest;
(e) Such
Member has adequate means of providing for the Member’s and the Member’s
dependents’ current needs and possible personal contingencies;
(f) Such
Member has no need for liquidity in this investment;
(g) Such
Member is, and was at the time of such Member’s investment in the Company, an
“accredited investor” as defined in Rule 501 of Regulation D promulgated under
the Securities Act; and
(h) Such
Member recognizes that an investment in the Company involves certain risks and
has taken full cognizance of, and understands all of, the risk factors related
to the investment in the Company. Such Member has consulted with his
or its professional, tax and legal advisors with respect to the federal, state,
local and foreign income tax consequences of such Member’s participation as a
Member of the Company.
14
12.4 Unregistered
Securities. Each Member is fully aware that: (i) the offering
and sale of Company Interests have not been and will not be registered under the
Securities Act and are being made in reliance upon federal and state exemptions
for transactions not involving a public offering, (ii) the Company will not be
registered as an investment company under the Investment Company Act in reliance
upon an exemption therefrom and (iii) the Company Interests cannot be offered
for sale or sold by such Member or by anyone acting for the Member’s account or
on the Member’s behalf without compliance with the terms of this Agreement and
the registration of the interests and/or the fulfillment of other regulatory
requirements.
13 Power of
Attorney.
13.1 Grant of
Power. Each of the Members does hereby irrevocably constitute
and appoint each of the Managers as such Member’s true and lawful
attorney-in-fact, in such Member’s name, place, and stead, to make, execute,
consent to, swear to, acknowledge, record, and file:
(a) any
amendments to the Certificate of Formation under the applicable laws of the
State of Delaware and under the applicable laws of any other jurisdiction in
which the Managers deems such filing to be necessary or desirable;
(b) any
certificate or other instrument which may be required to be filed by the Company
or the Members under the laws of the State of Delaware and/or under the
applicable laws of any other jurisdiction to the extent the Managers deem such
filing to be necessary or desirable;
(c) any and
all amendments or modifications to this Agreement or to said Certificate of
Formation or any other instrument described above pursuant to the provisions of
this Agreement to reflect the transfers of Company Interests, or adjustments to
the Percentage Interests; and
(d) all
certificates and other instruments which may be required to effectuate the
dissolution, liquidation, and termination of the Company pursuant to the
provisions of this Agreement.
13.2 Grant of
Power. The grant of a power of attorney to the Managers
pursuant to this Agreement is coupled with an interest, is irrevocable, and
shall survive the death or legal incompetence of any of the Members or the
assignment of such Member’s Company Interests. The Members (other than the
Managers and their Affiliates) hereby indemnify, defend and hold the Managers
harmless (severally in accordance with their pro rata share of the Percentage
Interests (and not jointly and severally)) against all liability, loss or
damage, together with all reasonable costs and expenses (including reasonable
legal fees and expenses), relating to or arising from its exercise of the power
of attorney granted hereby.
[Remainder
of Page Intentionally Left Blank]
15
IN
WITNESS WHEREOF, this Agreement has been made and executed by the Members and
the Company effective as of the date first written above.
Company:
The
Intelligent Project, LLC, a Delaware limited liability company.
|
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | |||
| Title: Sr. Managing Director | |||
Members:
KLI IP
Holding Inc., a Delaware corporation
|
|
By:
|
/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | |||
| Title: President | |||
|
Address:
c/o
Xxxx Xxxxxxxx International, LLC
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
|||
|
|
By:
|
/s/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | |||
|
Address:
00
Xxx Xxxx
Xxxxxx
Xxxxxxx, XX 00000
|
|||
| Company Name | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
|
Address:
0000
Xxxxxxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
|
|||
16
SCHEDULE
A
Updated as of July 1,
2009
|
Member
|
Capital
Contribution
|
Capital
Contribution Percentage
|
Percentage
Interest
|
|
KLI
IP Holding Inc.
|
$107,968.89
|
100%
|
31.5%
|
|
Xxxxx
Xxxxxx
|
$0
|
0%
|
6.0%
|
|
Xxxxx
Xxxx
|
$0
|
0%
|
2.5%
|
|
UtiliPoint
International, Inc.
|
$0
|
0%
|
60.0%
|
|
TOTAL
|
$107,968.89
|
100.00%
|
100.00%
|
