EXHIBIT 10.6
AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT
OF
RA AEROSPACE HOLDING LLC
This Amended and Restated Limited Liability Company Agreement (this
"AGREEMENT") of RA Aerospace Holding LLC (the "COMPANY"), a limited liability
company organized pursuant to the Delaware Limited Liability Company Act (6
DEL. C. - 18-101, ET SEQ.), as amended from time to time (the "ACT"), is entered
into and shall be effective as of June 27, 2001, by and among The Veritas
Capital Fund, L.P. ("VERITAS") and the persons listed as Additional Member on
the signature page of this Agreement (each an "ADDITIONAL MEMBER" and,
collectively with Veritas, the "MEMBERS").
WHEREAS, the Company was originally formed pursuant to the Limited
Liability Company Agreement, dated as of April 5, 2001 (the "EXISTING OPERATING
AGREEMENT") entered into by Veritas; and
WHEREAS, Veritas desires to admit the Additional Members to the
Company upon the terms and conditions set forth herein:
NOW THEREFORE, in consideration of the mutual terms, covenants and
conditions herein, the parties hereby agree that the Existing Operating
Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
FORMATION AND TERM
1.1 NAME. The name of the Company is RA Aerospace Holding LLC.
1.2 PURPOSE. The Company is formed for the following purposes:
(a) To purchase Senior Common Units (as hereinafter defined) in
RAAH I, LLC, a Delaware limited liability company ("RAAH"), pursuant to that
certain Combination Agreement, dated as of April 5, 2001, as amended (the
"COMBINATION AGREEMENT"), by and among the Company, RAAH, Raytheon Aircraft
Holdings, Inc., ("RAYTHEON"), Raytheon Aerospace Company ("RAYTHEON AEROSPACE")
and Wing Corp. For purposes of this Agreement, the term "SENIOR COMMON UNITS"
shall have the meaning ascribed to such term in the Combination Agreement.
(b) To engage in any lawful act or activity for which limited
liability companies may be formed under the Act and engaging in any and all
activities necessary or incidental to the foregoing.
1.3 REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. At any time, the Manager (as
hereinafter defined) may designate another registered office.
1.4 REGISTERED AGENT. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware is
The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
At any time, the Manager may designate another registered agent.
1.5 TERM. The term of the Company will commence on the date that the
original certificate of formation of the Company is filed in the office of the
Secretary of State of the State of Delaware (the "SECRETARY OF STATE") and shall
continue until dissolved in accordance with the provisions of this Agreement and
the Act.
1.6 QUALIFICATION IN OTHER JURISDICTIONS. The Manager shall cause
the Company to be qualified, formed or registered if necessary under assumed or
fictitious name statutes or similar laws in any jurisdiction in which the
Company transacts business. The Manager, as authorized person, within the
meaning of the Act, shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in a jurisdiction in which the Company may wish to conduct business.
ARTICLE II
POWERS AND MANAGERS
2.1 THE COMPANY. The Company shall have the power and authority to
take any and all actions that are necessary, appropriate, proper, advisable,
incidental or convenient to or for the furtherance of the purposes described
herein.
2.2 THE MANAGER. Pursuant to Section 18-402 of the Act, the business
and affairs of the Company shall be under the direction of a manager (the
"MANAGER"). By signing this Agreement, all of the Members of the Company hereby
designate Veritas (and any successor to or designee of Veritas) as the Manager.
Except as otherwise expressly provided in this Agreement, the Manager shall have
the complete right, power and discretion, on behalf of the Company and without a
vote of the Members, to operate, manage and control the affairs of the Company
and to make all decisions affecting the Company's affairs, and the Manager shall
have all rights, powers and obligations of a manager of a limited liability
company under the Act. The Manager, at any time in office, shall have the power
and authority to bind the Company and otherwise to act for and on behalf of the
Company. The Manager's duty of care in the performance of its duties to the
Company and the other Members is limited to the performance of such duties in
good faith and with that degree of care that an ordinarily prudent person in a
like position would use under similar circumstances in managing its own affairs.
2.3 CERTIFICATES. The Manager is hereby designated as an authorized
person, within the meaning of the Act, to execute, deliver and file all
certificates required or permitted by the Act to be filed in the office of the
Secretary of State. The filing of the original certificate of
2
formation of the Company in the office of the Secretary of State on March 30,
2001 is hereby ratified.
ARTICLE III
CAPITAL CONTRIBUTIONS, UNITS,
CAPITAL ACCOUNTS AND ALLOCATIONS OF PROFITS AND LOSSES
3.1 MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS. The names,
addresses and initial capital contributions of the Members are set forth on
SCHEDULE I attached hereto.
3.2 ADDITIONAL CONTRIBUTIONS. No Member will be required to make any
additional capital contribution to the Company.
3.3 CAPITAL ACCOUNTS. A capital account (a "CAPITAL ACCOUNT") shall
be maintained for the Members in accordance with the provisions of Section
704(b) of the Internal Revenue Code of 1986, as amended, and any successor
thereto (the "CODE") and the Treasury Regulations promulgated thereunder. Each
Member shall have an initial Capital Account balance equal to such Member's
initial capital contribution to the Company.
3.4 WITHDRAWALS. No Member shall be entitled to withdraw any part of
such Member's capital contribution from the Company without the consent of the
Manager which may be given or withheld in its sole discretion; PROVIDED,
HOWEVER, that nothing contained herein shall prohibit a Member from resigning as
a Member and abandoning its interest in the Company. No Member shall be entitled
to receive any distributions from the Company except as expressly provided in
this Agreement.
3.5 NO LIABILITY FOR CAPITAL CONTRIBUTIONS. No Member shall be
personally liable for the return of any portion of the capital contributions of
the Members. The return of Members' capital contributions, if applicable, shall
be made solely from the Company's assets.
3.6 NO INTEREST. No Member shall receive any interest on its capital
contribution.
3.7 ALLOCATION OF PROFITS AND LOSSES. Income and loss in each
taxable year shall be allocated among the Members in accordance with their
respective Percentage Interests. For purposes of this Agreement, the "PERCENTAGE
INTEREST" of any Member means the proportion which a Member's capital
contribution bears to the capital contributions of all Members at the time the
Percentage Interest is computed.
3.8 DISTRIBUTIONS. Distributions of net cash flow and net capital
proceeds shall be made as follows:
(i) Net cash flow and net capital proceeds for the Company in
any taxable year shall be distributed to the Members in accordance
with their respective Percentage Interests;
3
(ii) To the extent that the Company receives distributions of
marketable securities or other property, such property, to the extent
determined to be feasible by the Manager in its sole discretion, shall
not be sold or otherwise liquidated, but shall be distributed to the
Members in kind in lieu of cash.
Except as provided in Article V, distributions of net cash flow and net capital
proceeds shall be made to the Members within sixty (60) days after the sale of
the underlying investments or as soon as is practicable after the end of each
fiscal year of the Company, as the case may be, and distributions of marketable
securities shall be made to the Members as soon as is practicable after the
expiration of any applicable contractual lock-up agreement.
3.9 RESERVES. Notwithstanding anything in Section 3.8 to the
contrary, the Manager may establish and maintain such reserves from the cash or
other property otherwise distributable to the Members, as it may from time to
time, in its reasonable discretion, deem necessary or advisable.
ARTICLE IV
ADMINISTRATIVE PROVISIONS
4.1 FISCAL YEAR. The Company's fiscal year shall be the calendar
year.
4.2 ACCOUNTING METHOD. The Company shall report its income for
United States federal income tax purposes on the cash method of accounting,
unless under applicable tax law the accrual method is required. The accounting
for Company purposes shall be in accordance with generally accepted accounting
principles consistently applied.
4.3 BOOKS OF ACCOUNT. Complete and accurate books of account shall
be kept by the Company at the principal office of the Company (or at such other
office as the Manager may designate). The determinations of the Manager with
respect to the treatment of any item or its allocation for foreign, federal,
state or local income tax purposes shall be binding upon the Members so long as
that determination is not inconsistent with any express provision of this
Agreement. Each Member shall have the right, at its own expense, to examine,
copy and audit the books and records of the Company (and its successors and
assigns) during normal business hours.
4.4 K-1 REPORTS. Each Member shall be furnished a copy of Schedule
K-1 in respect of the Company's federal income tax return for each fiscal year
of the Company.
4.5 NO SALARY TO MANAGER. No salary shall be paid to the Manager for
services to the Company.
4.6 TAX MATTERS MEMBER. The Manager shall be the "Tax Matters
Member" pursuant to Section 6231(a)(7) of the Code.
4.7 CONSISTENCY. No Member shall treat a Company item on its
respective federal, state or local income tax returns in a manner inconsistent
with the treatment of the Company item on the Company's federal, state or local
income tax return.
4
4.8 REPORTS. Within ninety (90) days after the end of each fiscal
year and within sixty (60) days after the end of any fiscal quarter, the Company
shall cause each Member to be furnished with a copy of the balance sheet of the
Company as of last day of the applicable period, a statement of income or loss
of the Company for such period, and a statement of the Company's cash flow for
such period. Annual statements shall also include a statement of the Members'
Capital Accounts and changes therein for such fiscal year. Annual statements
shall be reviewed by a nationally recognized accounting firm. The Company also
shall cause to be delivered to each Member a copy of all financial statements of
RAAH and Raytheon Aerospace LLC as soon as reasonably practicable after receipt
thereof by the Company.
ARTICLE V
DISSOLUTION AND TERMINATION
5.1 DISSOLUTION. The Company shall dissolve, and its affairs shall
be wound up only upon the first to occur of the following: (i) the written
consent of the Manager or (ii) the entry of a decree of judicial dissolution
under Section 18-802 of the Act. The Members shall continue to share profit and
loss, in the manner set forth in Section 3.7 during the liquidation. The
proceeds from liquidation of Company assets shall be applied as follows:
(1) to payments of debts of the Company other than to the
Members;
(2) to payment of amounts owed to the Members for amounts
borrowed from and not repaid to the Members; and
(3) to the Members PRO RATA in accordance with the positive
balances in their Capital Accounts.
5.2 GAINS OR LOSSES IN WINDING-UP. Any gain or loss on disposition
of Company properties in the process of liquidation shall be credited or charged
to the Member in the manner set forth in Section 3.7. Any property distributed
in kind in the liquidation of the Company shall be valued and treated as though
the property were sold and the cash proceeds were distributed. The difference
between the value of the property distributed in kind and its book value shall
be treated as a gain or loss on sale of the property and shall be credited or
charged to the Members in the manner set forth in Section 3.7.
5.3 TERMINATION. The Company shall terminate when all of the assets
of the Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to the Members in the
manner provided for in this Article V, and the certificate of formation of the
Company in effect as of the date thereof shall have been canceled in the manner
required by the Act.
5
ARTICLE VI
ADMISSION OF A MEMBER
6.1 ADMISSION OF A MEMBER. No person may be admitted as a Member of
the Company unless the Manager consents in writing which may be given or
withheld in its sole discretion.
ARTICLE VII
GOVERNING LAW
7.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware.
ARTICLE VIII
LIABILITY, EXCULPATION AND INDEMNIFICATION
8.1 LIABILITY. 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 no Covered Person (as defined herein) shall be obligated personally
for any such debt, obligation or liability of the Company solely by reason of
being a Covered Person.
8.2 EXCULPATION. No Covered Person shall be liable to the Company or
any other Covered Person for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Covered Person in connection with
the conduct of the business of the Company so long as such Covered Person acted
in the good faith belief that such action or failure to act was in the best
interests, or not opposed to the best interests, of the Company and such action
or failure to act was not in violation of this Agreement and does not constitute
willful misconduct or gross negligence. A Covered Person shall be fully
protected in relying in good faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the Company by any
person as to matters the Covered Person reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses or net cash flow or any other facts pertinent to the existence
and amount of assets from which distributions to Members might properly be paid.
8.3 INDEMNIFICATION. To the fullest extent permitted by applicable
law, a Covered Person shall be entitled to indemnification from the Company for
any loss, damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person on behalf of the
Company; PROVIDED, HOWEVER, that this indemnity shall not extend to any conduct
which constitutes willful misconduct, gross negligence or breach of a Covered
Person's fiduciary duties to the Company and the Members; PROVIDED, FURTHER,
that any
6
indemnity under this Section 8.3 shall be provided out of and to the extent of
Company assets only, and no Covered Person shall have any personal liability on
account thereof.
8.4 EXPENSES. To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by a Covered Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Company prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or on behalf
of the Covered Person to repay such amount if it shall be ultimately determined
by a final non-appealable judgment of a court of competent jurisdiction that the
Covered Person is not entitled to be indemnified as authorized in Section 8.3.
8.5 OUTSIDE BUSINESSES. Any Covered Person may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Company, and the Company and the Covered Persons shall have no rights by virtue
of this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Company, shall not be deemed wrongful or improper. No
Covered Persons shall be obligated to present any particular investment
opportunity to the Company, even if such opportunity is of a character that, if
presented to the Company, could be taken by the Company, and any Covered Person
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment
opportunity. Any contract approved by the Manager between the Company and/or any
of its affiliates and the Manager and/or any of its affiliates must be on
reasonable terms comparable to those which could be obtained from an
unaffiliated third party in arms-length negotiations.
8.6 COVERED PERSON. For purposes of this Article VIII, "COVERED
PERSON" shall mean the Manager, a Member, any affiliate of the Manager or a
Member, any officers, directors, shareholders, partners, members, employees,
representatives or agents of the Manager or a Member, or their respective
affiliates, or any employee or agent of the Company or its affiliates.
ARTICLE IX
SECURITIES LAWS AND SPECIAL LIMITATIONS
ON TRANSFER
9.1 MATTERS RELATING TO SECURITIES LAWS. Each Member acknowledges,
represents and warrants to the Company: (i) that the Member has such knowledge
and experience in financial and business matters that the Member is capable of
evaluating the merits and risks of the investment involved of a Membership
Interest and has so evaluated same; (ii) that the Member is aware that this
investment is speculative and represents a substantial risk of loss; (iii) that
the Member is able to bear the economic risk of such investment, even if this
results in a complete loss of this investment; (iv) that, in connection with the
Member's acquisition of a Membership Interest, the Member has been fully
informed as to the circumstances under which the Member is required to take and
hold such Membership Interest pursuant to the Securities Act of 1933, as
amended, and the applicable state securities laws ("BLUE SKY LAWS"); and (v)
that the Member understands that its or his Membership Interest is not
registered under the Securities Act of 1933, as amended, or any Blue Sky Law and
may not be transferred, as amended, unless such
7
Membership Interest is subsequently registered under the Securities Act of 1933,
as amended, and any applicable Blue Sky Laws or exemptions from such
registration requirement are then available.
9.2 NO OBLIGATION TO REGISTER INTERESTS. Each Member understands
that the Company and the Manager are under no obligation to register such
Membership Interest under the Securities Act of 1933, as amended, or any Blue
Sky Laws or to comply with any applicable exemption under the Securities Act of
1933, as amended, or any Blue Sky Laws.
9.3 SPECIAL INDEMNITY. Each Member, at his or its expense, shall
indemnify and hold harmless the Company and the Manager from and in respect of
all loss, damage or liability arising or resulting from or attributable to any
breach by such Member of the representations and warranties set forth in Section
9.1 that are untrue or without adequate factual basis to be considered true and
not misleading.
9.4 SPECIAL TRANSFER LIMITATIONS. A Member may not sell, exchange,
transfer, assign, encumber or otherwise dispose of his or its interest in the
Company, or any part thereof, except by will or intestacy, without the written
consent of the Manager which may be given or withheld in its sole discretion;
PROVIDED, HOWEVER, that the Manager shall not unreasonably withhold its consent
with respect to an assignment by a Member of its interest in the Company to an
affiliate of such Member. No assignee of any Member's interest shall have the
right to become, or to exercise any of the rights or powers of, a Member, and no
assignee of a Member's interest may become a Member without the written consent
of the Manager which may be given or withheld in its sole discretion and the
execution of such instruments and the taking of such other actions as the
Manager may reasonably request. Notwithstanding any other provision in this
Agreement, a Membership Interest may not be transferred unless (i) such transfer
is exempt from registration under the Securities Act of 1933, as amended, and
any Blue Sky Law, which, in the opinion of the counsel to the Company, is then
applicable, and, if the Manager so requests, an opinion (the cost of which shall
be paid by the transferor) satisfactory to the Manager to such effect has been
rendered by counsel satisfactory to the Manager, or (ii) a registration
statement is effective under the Securities Act of 1933, as amended, and any
Blue Sky law which in the opinion of counsel to the Company is the applicable to
such transfer.
ARTICLE X
TAG-ALONG; DRAG-ALONG; OTHER RIGHTS
10.1 TAG-ALONG RIGHTS. In the event of a proposed Sale Transaction,
Veritas shall not transfer any portion of its interest in the Company until each
other Member shall have been given the opportunity, at his or its option,
exercisable within 10 days after the date of Veritas' written notice of the
proposed Sale Transaction, to sell to the proposed transferee at the same price
and upon the same terms and conditions offered to Veritas, up to his or its PRO
RATA share of the interests in the Company proposed to be transferred by Veritas
in such Sale Transaction based on such Member's Percentage Interest divided by
the Percentage Interests of all Members (including Veritas) who elect to
exercise this option. In order to be entitled to exercise his or its right to
sell interests in the Company pursuant to this Section 10.1, such other Member
must agree to make to the Transferee substantially the same representations,
warranties,
8
covenants, indemnities and agreements as Veritas agrees to make in connection
with the proposed Sale Transaction.
As used herein, "SALE TRANSACTION" means the transfer by Veritas
and/or any of its transferees, in one transaction or a series of transactions
(other than pursuant to a public offering under the Securities Act of 1933, as
amended or pursuant to Rule 144 ), of all or any portion of its or their
interests in the Company to one or more persons or group of persons (other than
an affiliate) and, as a result of which, such person or group of persons would
own a majority of the outstanding Percentage Interests of the Company.
10.2 DRAG-ALONG RIGHTS. In the event of a proposed Sale Transaction,
Veritas and/or its transferees may require that each other Member transfer his
or its interest in the Company in the Sale Transaction. Each Member will receive
in the Sale Transaction in respect of his or its interest in the Company his or
its PRO RATA portion of the entire consideration at the same time and in the
same form as the consideration to be received by all the Members in or following
the Sale Transaction. Veritas and/or its transferees shall notify the other
Members at least 20 days in advance of entering into a definitive agreement in
connection with a proposed Sale Transaction. In any such agreement, the other
Members will be required to make the same representations, warranties,
covenants, indemnities and agreements Veritas and/or its transferees agree to
make in connection with the proposed Sale Transaction except that the potential
liability of the other Members in connection with such representations,
warranties, covenants, indemnities and agreements shall be limited to an amount
no greater than the proceeds of such Sale Transaction received by such other
Members.
10.3 RIGHT OF FIRST OFFER.
(a) In the event that any interests in the Company (the "PREEMPTIVE
INTERESTS") are proposed to be issued (a "PREEMPTIVE OFFER") by the Company to
any person (a "PROPOSED NEW INVESTOR"), the Company shall deliver to the Members
a written notice (which notice shall state the amount of the Preemptive
Interests proposed to be issued, the purchase price therefor and any other terms
or conditions of the proposed issuance) of such issuance at least 20 days prior
to the date of the proposed issuance (the "PREEMPTIVE OFFER PERIOD").
(b) Each Member shall have the option, exercisable at any time
during the Preemptive Offer Period by delivering written notice to the Company
(a "PREEMPTIVE OFFER ACCEPTANCE NOTICE"), to subscribe for the amount of such
Preemptive Interests determined by multiplying the Preemptive Interests by such
Member's Percentage Interest.
(c) If a Preemptive Offer Acceptance Notice is not given by a Member
for all such Member's Preemptive Interests, the Company may issue all or any
part of such Member's Preemptive Interests as to which a Preemptive Offer
Acceptance Notice has not been given by such Member (the "REFUSED INTERESTS") to
the Proposed New Investor within 90 days of the expiration of the Preemptive
Offer Period and otherwise in accordance with the terms set forth in the
Preemptive Offer. Upon the closing, which shall include full payment to the
Company, of the sale to the Proposed New Investor of all the Refused Interests,
each Member who delivered a timely Preemptive Offer Acceptance Notice shall
purchase from the Company, and the Company
9
shall sell to such Member, pursuant to the terms specified in the Preemptive
Offer Acceptance Notice such Member's Percentage Interest of the Preemptive
Interests.
ARTICLE XI
PROVISIONS REGARDING ADDITIONAL MEMBERS
11.1 NON-RELIANCE ON RAYTHEON. Each Additional Member acknowledges it
may not rely on any representation and warranty (oral or written) of Raytheon,
whether or not contained in the Combination Agreement, made in any presentation
to the Additional Member and in connection with Raytheon's involvement in the
sales process. For the avoidance of doubt, nothing herein shall be construed as
diminishing in any way the rights the Company has or may have under the
Combination Agreement or any indirect rights each Additional Member has or may
have as a Member of the Company.
11.2 INDEMNIFICATION OF THE COMPANY. Each Additional Member shall, to
the fullest extent permitted by law, indemnify and hold harmless the Company
from and against any losses, including any attorneys' and other professional
fees, resulting from or arising out of, any action, claim, suit, litigation,
proceeding brought by such Additional Member related to its investment in the
Company for which the Company is obligated to indemnify Raytheon, Raytheon
Aerospace, or any of their respective affiliates, officers, directors,
employees, consultants and representatives or any of the heirs, executors,
successors and assigns of any of the foregoing, pursuant to that certain
Indemnification Agreement dated as of June 7, 2001 between Raytheon and the
Company.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES. All notices or other communications given or made under
this Agreement shall be in writing. Notices or other communications shall be
mailed by regular mail, postage prepaid, to the Members at the addresses listed
on Schedule I attached hereto, or at such other address as a Member may specify
to the Company in a written notice pursuant to this Section 12.1.
12.2 ENTIRE AGREEMENT. This document constitutes the entire Agreement
and understanding by the Members and supercedes all prior agreements and
undertakings, if any, with respect hereto.
12.3 AMENDMENT. This Agreement may be amended only upon the written
consent of (i) the Manager and (iii) of the Members owning at least 51% of the
Percentage Interests; PROVIDED, HOWEVER, that no amendment to this Agreement
that would decrease the Percentage Interest of any Member, increase or extend
any financial obligation or liability of a Member beyond that set forth herein
or otherwise have a material adverse effect solely or
10
disproportionally on such Member's rights hereunder shall be effected without
the written consent of such Member; PROVIDED, FURTHER, that no amendment to this
Agreement that would materially adversely affect the rights or obligations of
any Member hereunder shall be effective without the consent of the Members
owning at least 85% of the Percentage Interests; and PROVIDED, FURTHER, that the
Manager without the consent of any Member may amend Schedule I hereto to reflect
the admission or withdrawal of any Member, or the transfer by any Member of part
or all of its Membership Interest, in each case made in accordance with the
terms of this Agreement.
12.4 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. (a) All
issues and questions concerning the application, construction, validity,
interpretation and enforcement of this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, including the
Act, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
(b) Each party hereto irrevocably submits to the jurisdiction of any
Delaware state or federal court in any action arising out of or relating to this
Agreement, and hereby irrevocably agrees that all claims in respect of such
action may be heard and determined in such Delaware state or federal court. Each
party hereto hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of any inconvenient forum to the maintenance of such action
or proceeding. The parties further agree, to the extent permitted by law, that
final and unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and amount of
such judgment.
(c) Each party hereto waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
action, suit or proceeding arising out of or relating to this Agreement.
12.5 CAPTIONS. The titles and captions contained herein are for
convenience only and shall not be deemed part of this Agreement.
12.6 NUMBERS AND GENDER. Where the context so indicates, the
masculine shall include the feminine and neuter, the singular shall include the
plural and the plural shall include the singular, and person shall include
corporation, firm or any other entity. Without limiting the forgoing, if at any
time there shall be only one Manager acting hereunder, references to the
Managers shall be deemed to be references to the sole Manager then acting.
12.7 COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts. Each counterpart shall be deemed to be an original,
and all such counterparts shall constitute one and the same instrument.
12.8 DEFINITION. "MEMBERSHIP INTEREST" means, with respect to a
Member, the Member's entire interest in the Company, and the property, assets,
business and capital thereof, including (i) the share of the profits, losses and
distributions of the Company allocable to a
11
Member under the provisions of the Agreement and (ii) the Member's right to vote
or consent hereunder, any rights to information provided hereunder or under the
Act and any and all other rights provided hereunder or under the Act.
* * *
12
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Agreement as of the date first above written.
THE VERITAS CAPITAL FUND, L.P.
By: /s/ Xxxxxx X. XxXxxx
---------------------
Xxxxxx X. XxXxxx
Authorized Signatory
13
CMS PEP XIV CO-INVESTMENT SUBPARTNERSHIP
a Delaware general partnership
By: CMS Private Equity Partners XIV, L.P., a Delaware
limited partnership
By: CMS PEP XIV Associates, L.P., a Delaware
limited partnership
By: MSPS PEP XIV, Inc., a Delaware
corporation
By: /s/
--------------------
Its: VP
By: CMS 1999 Investment Partners, L.P., a
Delaware limited partnership
By: CMS 1999, Inc., a Delaware corporation
By: /s/
--------------------
Its: VP
By: CMS Private Equity Partners XIV-Q, L.P., a
Delaware limited partnership
By: CMS PEP XIV Associates, L.P., a Delaware
limited partnership
By: MSPS PEP XIV, Inc., a Delaware
corporation
By:
------------------------
Its:
By: CMS 1999 Investment Partners, L.P., a
Delaware limited partnership
By: CMS 1999, Inc., a Delaware
corporation
By: /s/
-----------------------
Its: VP
/s/ Xxxxx Xxxxxxx /s/ Xxx Xxxxx
-------------------------- -------------------------
Xxxxx Xxxxxxx Xxx Xxxxx
By: Xxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
Attorney-in-fact Attorney-in-fact
14
NOTICE ADDRESSES FOR CMS PEP XIV CO-INVESTMENT SUBPARTNERSHIP
MAIN MAILING ADDRESS:
c/o CMS Affiliated Partnerships
Xxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
FOR FINANCIAL REPORTS, CAPITAL CALLS AND DISTRIBUTION NOTICES:
c/o CMS Companies
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FOR LEGAL NOTICES AND REQUIRED CONSENT:
c/o CMS Companies
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx or Xxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000 or (000) 000-0000
Facsimile: (000) 000-0000
FOR OTHER MATTERS AND GENERAL CORRESPONDENCE:
c/o CMS Companies
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx or Xxxx Xxxxxxxxx
Telephone: (000) 000-0000 or (000) 000-0000
Facsimile: (000) 000-0000
TAX PAYER IDENTIFICATION NUMBER:
00-0000000
00
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx and C.G. Grenfenstette
Trustees of the Xxxxx X. Xxxxxxx Trust U/A
Dated November 18, 1985
By: /s/ C.G. Grenfenstette
---------------------------
C.G. Grenfenstette, Trustee
CAPITAL COMMITMENT: $900,000
NOTICE ADDRESS:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
WITH A COPY TO:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx Xxxxx
Fax: 000-000-0000
00
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T Dated 12/30/76 for the Children of
Xxxxxx Xxxxxxx Xxxxxx
By: /s/ X.X. Xxxxxxxxxxxx
--------------------------
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx, Trustee
CAPITAL COMMITMENT: $300,000
NOTICE ADDRESS:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
WITH A COPY TO:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx Xxxxx
Fax: 000-000-0000
00
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T Dated 12/30/76 for the Children of
Juliet Xxx Xxxxxxx Xxxxxxx
By: /s/ X.X. Xxxxxxxxxxxx
--------------------------
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx, Trustee
CAPITAL COMMITMENT: $300,000
NOTICE ADDRESS:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
WITH A COPY TO:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx Xxxxx
Fax: 000-000-0000
00
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T Dated 12/30/76 for the Children of
Xxxxx Xxx Xxxxxxx, Xx.
By: /s/ C.G. Grefensette
--------------------------
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx, Trustee
CAPITAL COMMITMENT: $300,000
NOTICE ADDRESS:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
WITH A COPY TO:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx Xxxxx
Fax: 000-000-0000
00
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T Dated 12/30/76 for the Children of
Xxxxxxx Xxxxxxx Xxxxxxx
By: /s/ C.G. Grefensette
--------------------------
X.X. Xxxxxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx, Trustee
CAPITAL COMMITMENT: $300,000
NOTICE ADDRESS:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 000-000-0000
WITH A COPY TO:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X.Xxxxxx Xxxxx
Fax: 000-000-0000
20
Wilmington Interstate Corporation
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------------
Xxxxxx X. XxXxxxxxx, Vice President
CAPITAL COMMITMENT: $3,000,000
NOTICE ADDRESS:
Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxxx
Fax: 000-000-0000
WITH A COPY TO:
The Xxxxxxx Company
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx Xxxxx
Fax: 000-000-0000
21
DBH Sec IV, LP
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, General Partner
CAPITAL COMMITMENT: $450,000
NOTICE ADDRESS:
Xxxxx & Associates P.C.
One Glenhardie Corporate Center
Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
WITH A COPY TO:
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: 000-000-0000
22
Xxxxxx X. Xxxxxxx, Tatnall X. Xxxxxxx and
Xxxxxx X. Xxxx, Trustee U/A/T/ Xxxx X. Xxxxxxx
Dated 8/25/68 FBO Xxxxxx X. Xxxxxxx, Xx.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx, Trustee
By: /s/ Tatnall X. Xxxxxxx, Xxxxxx X. Xxxx Attorney-in-fact
-------------------------------------------------------
Xxxxxxx X Xxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
--------------------------
Xxxxxx X. Xxxx, Trustee
CAPITAL COMMITMENT: $225,000
NOTICE ADDRESS:
Xxxxxx Xxxxxxx
Suite 500
Six Tower Bridge
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Fax: 000-000-0000
WITH A COPY TO:
Xxxxx & Associates P.C.
One Glenhardie Corporate Center
Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
23
Xxxxxx X. Xxxxxxx, Tatnall X. Xxxxxxx and
Xxxxxx X. Xxxx, Trustee U/A/T/ Xxxx X. Xxxxxxx
Dated 8/25/68 FBO Xxxxx Xxxxxxx Green
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx, Trustee
By: /s/ Tatnall X. Xxxxxxx, Xxxxxx X. Xxxx Attorney-in-fact
-------------------------------------------------------
Xxxxxxx X Xxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxx
---------------------------
Xxxxxx X. Xxxx, Trustee
CAPITAL COMMITMENT: $225,000
NOTICE ADDRESS:
Xxxxxx Xxxxxxx
Suite 500
Six Tower Bridge
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Fax: 000-000-0000
WITH A COPY TO:
Xxxxx & Associates P.C.
One Glenhardie Corporate Center
Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
24
Xxxxxx Financial, Inc.
By: /s/ Xxxxx Xxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
25
AA-RAAH I, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
26
