Exhibit 10.1
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FORM OF
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BIOFUEL ENERGY, LLC
THE LLC INTERESTS REPRESENTED BY THIS SECOND AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES
LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF
AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.
CERTAIN OF THE LLC INTERESTS REPRESENTED BY THIS SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT ARE SUBJECT TO CONDITIONS AND RESTRICTIONS
ON TRANSFER SET FORTH HEREIN, AND THE LLC RESERVES THE RIGHT TO REFUSE THE
TRANSFER OF SUCH INTERESTS UNLESS AND UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED
WITH RESPECT TO THE REQUESTED TRANSFER.
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Usage
SECTION 1.01. Definitions....................................................1
SECTION 1.02. Usage Generally; Interpretation................................9
ARTICLE II
Organizational and Other Matters
SECTION 2.01. Formation and Continuation of LLC; Effective Time.............10
SECTION 2.02. Limited Liability Company Agreement...........................10
SECTION 2.03. Name..........................................................10
SECTION 2.04. Purpose.......................................................10
SECTION 2.05. Principal Office; Registered Office...........................11
SECTION 2.06. Term..........................................................11
SECTION 2.07. Foreign Qualification.........................................11
SECTION 2.08. Tax Classification of LLC.....................................11
ARTICLE III
Management
SECTION 3.01. Sole Manager..................................................11
SECTION 3.02. Authority of the Sole Manager.................................12
SECTION 3.03. Authority of Members..........................................12
SECTION 3.04. Removal and Replacement of Manager............................12
SECTION 3.05. Reliance by Third Parties.....................................12
SECTION 3.06. Officers......................................................12
ARTICLE IV
Distributions and Allocations
SECTION 4.01. Distributions.................................................13
SECTION 4.02. Liquidation Distribution......................................17
SECTION 4.03. Limitations on Distribution...................................17
SECTION 4.04. Allocations...................................................17
SECTION 4.05. Special Allocations...........................................18
SECTION 4.06. Tax Withholding; Withholding Advances.........................19
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ARTICLE V
Capital Contributions; Capital Accounts; Tax Matters
SECTION 5.01. Capital Contributions.........................................20
SECTION 5.02. No Additional Capital Contributions...........................20
SECTION 5.03. Capital Accounts..............................................20
SECTION 5.04. Negative Capital Accounts.....................................21
SECTION 5.05. Loans From Members............................................21
SECTION 5.06. Preparation of Tax Returns....................................21
SECTION 5.07. Tax Elections.................................................21
SECTION 5.08. Tax Matters Member............................................21
ARTICLE VI
Books, Records, Accounting and Reports
SECTION 6.01. Records and Accounting........................................22
SECTION 6.02. Fiscal Year...................................................22
ARTICLE VII
LLC Units
SECTION 7.01. Units.........................................................22
SECTION 7.02. Register......................................................22
SECTION 7.03. Splits, Distributions and Reclassifications...................22
SECTION 7.04. Cancellation of Common Stock and Units........................23
SECTION 7.05. Incentive Plans...............................................23
SECTION 7.06. Offerings of Common Stock.....................................23
SECTION 7.07. Registered Members............................................23
SECTION 7.08. Certification of Units........................................24
ARTICLE VIII
Transfer of LLC Interests
SECTION 8.01. Restrictions on Transfer......................................25
SECTION 8.02. Permitted Transfers...........................................25
SECTION 8.03. Permitted Exchanges...........................................26
SECTION 8.04. Further Restrictions..........................................27
SECTION 8.05. Transferee's Rights...........................................27
SECTION 8.06. Transferor's Rights and Obligations...........................28
SECTION 8.07. Substituted Members...........................................28
SECTION 8.08. Additional Members............................................28
SECTION 8.09. Attempted Transfer Void.......................................28
SECTION 8.10. Withdrawal....................................................29
SECTION 8.11. Required Amendments; Continuation.............................29
SECTION 8.12. Resignation...................................................29
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ARTICLE IX
Dissolution and Liquidation
SECTION 9.01. Dissolution...................................................29
SECTION 9.02. Liquidation and Termination...................................30
SECTION 9.03. Certificate of Cancellation...................................31
SECTION 9.04. Reasonable Time for Winding Up................................31
SECTION 9.05. Return of Capital.............................................31
ARTICLE X
Rights and Obligations of Members
SECTION 10.01. Limitation of Liability.......................................31
SECTION 10.02. Exculpation...................................................32
SECTION 10.03. Lack of Authority.............................................32
SECTION 10.04. No Right of Partition.........................................32
SECTION 10.05. Indemnification...............................................32
ARTICLE XI
General Provisions
SECTION 11.01. Power of Attorney.............................................33
SECTION 11.02. Further Action................................................34
SECTION 11.03. Amendments....................................................34
SECTION 11.04. Title to LLC Assets...........................................34
SECTION 11.05. Remedies......................................................35
SECTION 11.06. Successors and Assigns........................................35
SECTION 11.07. Severability..................................................35
SECTION 11.08. Counterparts..................................................35
SECTION 11.09. Applicable Law................................................35
SECTION 11.10. Addresses and Notices.........................................35
SECTION 11.11. Creditors; Third Party Beneficiaries..........................36
SECTION 11.12. Waiver........................................................36
SECTION 11.13. Entire Agreement..............................................36
SECTION 11.14. Delivery by Facsimile.........................................36
SECTION 11.15. Waiver of Certain Rights......................................36
SECTION 11.16. Survival......................................................36
Schedule A - Unit Ownership
Schedule B - Management Members
Schedule C - Form of LLC Certificate
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Exhibit 10.1
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT (this "Agreement") of BioFuel Energy, LLC
(the "LLC" or the "Company"), is made as of _________, 2007,
among the Members (as defined below).
WHEREAS the LLC was formed by the filing of a Certificate of
Formation with the Secretary of State of Delaware on January 25, 2006; and
WHEREAS the Members desire that this Agreement amend and restate in
its entirety the First Amended and Restated Limited Liability Company Agreement
of the Company, dated as of September 25, 2006 (the "Existing LLC Agreement").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
ARTICLE I
Definitions and Usage
SECTION 1.01. Definitions. Capitalized terms used but not otherwise
defined herein shall have the following meanings:
"Accounting Firm" has the meaning set forth in Section 4.01(d).
"Additional Credit Amount" has the meaning set forth in Section
4.01(f).
"Adjusted Capital Account Deficit" means with respect to any Capital
Account as of the end of any Fiscal Year, the amount by which the balance in
such Capital Account is less than zero. For this purpose, a Member's Capital
Account balance shall be:
(i) reduced for any items described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), and (6); and
(ii) increased for any amount such Member is obligated to contribute
or is treated as being obligated to contribute to the LLC pursuant to the
penultimate sentences of Treasury Regulation Sections 1.704-2(g)(1) and
1.704-2(i)(5).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d)
and shall be interpreted consistently therewith.
"Admission Date" has the meaning set forth in Section 8.06.
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"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" has the meaning set forth in the preamble.
"Amended Tax Amount" has the meaning set forth in Section 4.01(f).
"Assumed Tax Rate" means the highest effective marginal combined
U.S. federal, state and local income tax rate for a Fiscal Year for an
individual or corporate resident in New York, New York (taking into account (a)
the nondeductibility of expenses subject to the limitation described in Section
67(a) of the Code and (b) the character (e.g., long-term or short-term capital
gain or ordinary or tax-exempt income) of the applicable income). For the
avoidance of doubt, the Assumed Tax Rate will be the same for all Members.
"Available Cash" means cash of the LLC which the Manager determines
is available for distribution to the Members.
"Book Value" means, with respect to any LLC property, the LLC's
adjusted basis for federal income tax purposes, adjusted from time to time to
reflect the adjustments required or permitted by Treasury Regulation Section
1.704-1(b)(2)(iv)(d)-(g) (including the issuance of new Units).
"Business Day" means any day other than Saturday, Sunday and any day
that is a legal holiday in New York, New York or a day on which banking
institutions in New York, New York are authorized by law or other governmental
action to close.
"Capital Account" has the meaning set forth in Section 5.03.
"Capital Contributions" means, with respect to any Member, any
contribution, whether in cash or other property, made by such Member to the LLC
pursuant to the terms of this Agreement.
"Cargill" means Cargill Biofuels Investments, LLC, a Delaware
limited liability company, and any of its Affiliates, so long as such Affiliate
is also an Affiliate of Xxxxxxx, Xxxxxxxxxxxx, a Delaware corporation.
"Certificate" means the LLC's Certificate of Formation as filed with
the Secretary of State of Delaware, as amended to the date hereof.
"Certificate of Incorporation" means the certificate of
incorporation, as may be amended from time to time, of the Corporation.
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"Class B Stock" means the Class B Common Stock, par value $0.01 per
share, of the Corporation authorized and issued under Section 4.01(b) of the
Certificate of Incorporation or any applicable successor provision.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, or any successor statute.
"Common Stock" means the Common Stock, par value $0.01 per share, of
the Corporation authorized and issued under Section 4.01(a) of the Certificate
of Incorporation or any applicable successor provision.
"Corporation" means BioFuel Energy Corp., a Delaware corporation.
"Covered Person" has the meaning set forth in Section 10.01.
"Credit Amount" has the meaning set forth in Section 4.01(f).
"Delaware Act" means the Delaware Limited Liability Company Act, 6
Del. L. Section 18-101, et seq., as it may be amended from time to time, and any
successor to the Delaware Act.
"Disabling Event" means the Manager ceasing to be the managing
member of the LLC.
"Distribution" means each distribution made by the LLC to a Member,
whether in cash, property or securities of the LLC and whether by distribution,
redemption, repurchase or otherwise.
"Edelman" means Xxxxxx X. Xxxxxxx.
"Effective Time" has the meaning set forth in Section 2.01.
"Effective Time Units" means, with respect to any Member, the number
of Units held by such Member as of the Effective Time as set forth on Schedule
A.
"Effective Time Units Percentage" means, with respect to any Member,
a fraction (expressed as a percentage), the numerator of which is the number of
such Member's Effective Time Units divided by the total amount of Effective Time
Units, as set forth on Schedule A.
"Escrow Agent" means [ ] in its capacity as escrow agent under
the Escrow Agreement.
"Escrow Agreement" means the escrow agreement dated the date hereof
among the Management Members (other than Edelman), the other Members party
thereto and the Escrow Agent.
"Escrowed Securities" has the meaning set forth in Section 4.01(b).
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"Excess Amount" has the meaning set forth in Section 4.01(e).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Exchange Rate" has the meaning set forth in Section 8.03(b).
"Existing LLC Agreement" has the meaning set forth in the preamble
to this Agreement.
"Fair Market Value" has the meaning set forth in Section 9.02(c).
"Family Members" has the meaning set forth in Section 8.02(a).
"Final Tax Amount" has the meaning set forth in Section 4.01(f).
"Fiscal Period" means any interim accounting period within a Fiscal
Year established by the Manager and which is permitted or required by Section
706 of the Code.
"Fiscal Year" means the LLC's annual accounting period established
pursuant to Section 6.02.
"Greenlight" means, collectively, Greenlight Capital, L.P.,
Greenlight Capital Qualified, L.P., Greenlight Capital Offshore, Ltd. and
Greenlight Reinsurance, Ltd.
"Greenlight/Third Point Sale" means a sale by Greenlight or Third
Point of shares of Common Stock that occurs after the Effective Time and prior
to the True-Up Date.
"Greenlight/Third Point Specified A Unit Percentage" shall mean a
percentage that is determined by adding together the respective Specified A Unit
Percentages of Greenlight and Third Point.
"Incapacity" means, with respect to any Person, the bankruptcy,
dissolution, termination, entry of an order of incompetence, or the insanity,
permanent disability or death of such Person.
"Incentive Plan" means any equity incentive or similar plan pursuant
to which the Corporation may issue shares of its Common Stock from time to time.
"Indebtedness" means at a particular time, without duplication, (i)
any indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade payables
and other current liabilities incurred in the
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ordinary course of business which are not more than six months past due), (iv)
any commitment by which a Person assures a creditor against loss (including,
without limitation, contingent reimbursement obligations with respect to letters
of credit), (v) any indebtedness guaranteed in any manner by a Person (including
guarantees in the form of an agreement to repurchase or reimburse), (vi) any
obligations under capitalized or synthetic leases with respect to which a Person
is liable, contingently or otherwise, as obligor, guarantor or otherwise, or
with respect to which obligations a Person assures a creditor against loss,
(vii) any indebtedness secured by a Lien on a Person's assets and (viii) any
fees, penalties or accrued and unpaid interest with respect to the foregoing.
"Indemnified Person" has the meaning set forth in Section 10.05(a).
"Individual Sale Company Valuation" shall be determined upon the
occurrence of each Greenlight/Third Point Sale and shall be the product of (i)
the price per share of Common Stock sold by Greenlight or Third Point in
connection with such Greenlight/Third Point Sale, (ii) the number of shares of
Common Stock and Class B Stock issued and outstanding at the time of such
Greenlight/Third Point Sale and (iii) the quotient obtained by dividing (A) the
number of shares sold by Greenlight or Third Point in connection with such
Greenlight/Third Point Sale by (B) the aggregate number of Effective Time Units
issued to Greenlight and Third Point.
"IPO" means the initial public offering of Common Stock, pursuant to
a Registration Statement on Form S-1 (Registration No. 333-139203).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock and equity-related preferences),
including those created by, arising under or evidenced by any conditional sale
or other title retention agreement, the interest of a lessor under a capital
lease obligation, or any financing lease having substantially the same economic
effect as any of the foregoing.
"Liquidation Assets" has the meaning set forth in Section 9.02(b).
"Liquidation FMV" has the meaning set forth in Section 9.02(b).
"Liquidator" has the meaning set forth in Section 9.02.
"LLC" or "Company" has the meaning set forth in the preamble to this
Agreement.
"LLC Certificate" has the meaning set forth in Section 7.08.
"LLC Interest" means the membership interest of a Member in Net
Income, Net Losses and Distributions.
"Losses" has the meaning set forth in Section 10.05(a).
"Management Member" means each Member designated as a Management
Member in Schedule B hereto, as updated from time to time, and any
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Permitted Transferee thereof to whom Units are transferred in accordance with
this Agreement.
"Manager" means the Corporation or any successor manager admitted to
the LLC pursuant to this Agreement.
"Member" means any Person admitted to the LLC as a Member pursuant
to the terms of this Agreement; but only so long as such Person is shown on the
LLC's books and records as the owner of one or more Units. The Persons listed on
Schedule A hereto are all of the Members as of the Effective Time.
"Member True-Up Value" means, with respect to any Member, the dollar
amount obtained by multiplying the True-Up Value by such Member's Effective Time
Units Percentage.
"Minimum Gain" means Company minimum gain determined pursuant to
Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).
"Net Income" and "Net Loss" means, for each Fiscal Year or Fiscal
Period, the taxable income or loss of the LLC determined in accordance with
Section 703(a) of the Code (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 shall be included in taxable income or loss) and with the accounting method
used by the LLC for federal income tax purposes with the following adjustments:
(a) all items of income, gain, loss, or deduction allocated pursuant to Section
4.05 (relating to Special Allocations) shall not be taken into account in
computing such taxable income or loss; (b) any income of the LLC that is exempt
from federal income taxation and not otherwise taken into account in computing
Net Income and Net Loss shall be added to such taxable income or loss; (c) if
the Book Value of any asset differs from its adjusted tax basis for federal
income tax purposes, any gain or loss resulting from a disposition of such asset
shall be calculated with reference to such Book Value; (d) if the Book Value of
any asset differs from its adjusted tax basis for federal income tax purposes,
the amount of depreciation, amortization or cost recovery deductions with
respect to such asset shall for purposes of determining Net Income and Net Loss
be an amount which bears the same ratio to such Book Value as the federal income
tax depreciation, amortization or other cost recovery deductions bears to such
adjusted tax basis (provided that if the federal income tax depreciation,
amortization or other cost recovery deduction is zero, the Manager may use any
reasonable method for purposes of determining depreciation, amortization or
other cost recovery deductions in calculating Net Income and Net Loss); (e) any
expenditures of the LLC that are described in Section 705(a)(2)(B) of the Code
or are treated as described in Section 705(a)(2)(B) of the Code pursuant to
Regulation Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in
computing Net Income and Net Loss shall be treated as deductible items; and (f)
in the event the Book Value of any LLC asset is adjusted in accordance with the
definition of Book Value and Section 5.03, the amount of such adjustment shall
be taken into account as gain or loss from the disposition of such asset for
purposes of computing Net Income or Net Loss.
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"Net Taxable Income" has the meaning set forth in Section 4.01(f).
"Nonrecourse Debt Minimum Gain" means the partnership nonrecourse
debt minimum gain determined pursuant to Treasury Regulation Section 1.704-2(i).
"Notice of Disagreement" has the meaning set forth in Section
4.01(d).
"Officer" means any officer of the LLC appointed pursuant to Section
3.06.
"Permitted Transferee" has the meaning set forth in Section 8.02(a).
"Person" means an individual or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Shortfall Amount" has the meaning set forth in Section 4.01(e).
"Specified A Unit Member" means any Member that has a Specified A
Unit Percentage greater than zero.
"Specified A Unit Percentage" means, with respect to any Member, the
percentage set forth on Schedule A as such Member's Specified A Unit
Percentage.(1)
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof or (ii) if a limited
liability company, partnership, association or other business entity (other than
a corporation), a majority of partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association
or other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
_____________________
(1) This percentage will correspond to the A Unit Percentage in the
existing LLC Agreement through the Effective Time.
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association or other business entity. For purposes hereof, references to a
"Subsidiary" of any Person shall be given effect only at such times that such
Person has one or more Subsidiaries, and, unless otherwise indicated, the term
"Subsidiary" refers to a Subsidiary of the LLC.
"Substituted Member" means any Person becoming a Member pursuant to
Section 8.07.
"Tax Amount" has the meaning set forth in Section 4.01(f).
"Tax Benefit Sharing Agreement" means the Tax Benefit Sharing
Agreement by and among the Corporation and the Members, dated as of [ ], 2007.
"Tax Distributions" has the meaning set forth in Section 4.01(f).
"Tax Matters Member" has the meaning set forth in Section 5.08.
"Third Point" means, collectively, Third Point Partners, L.P., Third
Point Partners Qualified, L.P., Xxxxxx X. Xxxx, Xxxxxxxx X. Xxxxxxxxx and Xxxx
X. Xxxxxxx.
"Trading Price" means the price per share of the Common Stock
determined as follows:
(a) if traded on a securities exchange (including the Nasdaq Global
Market), the Trading Price shall be deemed to be the average of the closing
prices of the Common Stock on such exchange on the applicable date, or, if there
have been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on such exchange as of 4:00 p.m., New York time, or,
if on any day the Common Stock is not traded on an exchange, the average of the
highest bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated or any similar
successor organization, in each such case averaged over a period of thirty (30)
days consisting of the Business Day as of which the Trading Price is being
determined and the twenty-nine (29) consecutive Business Days prior to such day;
or
(b) if at any time the Common Stock is not traded on a securities
exchange or quoted in the domestic over-the-counter market, the Trading Price
shall be the fair value thereof, as determined by the Manager.
"Transfer" has the meaning set forth in Section 8.01.
"Treasury Regulations" means the income tax regulations promulgated
under the Code as amended from time to time or any successor regulations.
"True-Up Certificate" has the meaning set forth in Section 4.01(d)
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"True-Up Date" means the earlier of (i) the date on which Greenlight
and Third Point no longer own or hold any Units or shares of Common Stock and
(ii) the expiration of five years from the Effective Time.
"True-Up Value" means a dollar amount equal to the aggregate
Individual Sale Company Valuations, with any Units or shares of Common Stock
still held by Greenlight or Third Point on the True-Up Date being deemed to have
been sold by Greenlight and the Third Point at the then-current Trading Price of
the Common Stock.
"True-Up Value Per Share" means the dollar amount obtained by
dividing the True-Up Value by the number of shares of Common Stock and Class B
Stock then outstanding on a fully diluted basis.
"Trued-Up Units" means the number of Units, determined for each
Member, obtained by dividing such Member's Member True-Up Value by the True-Up
Value Per Share.
"Unit" means an LLC Interest of a Member in the LLC representing a
fractional part of the LLC Interests of all Members and shall consist of only
one class or group of Units; provided that any Units issued shall have rights,
powers and duties set forth in this Agreement.
"Unit Percentage" means, with respect to any Member, a fraction
(expressed as a percentage) established at the time of determination by dividing
(i) the number of Units held by such Member at such time by (ii) the total
number of Units held by all Members at such time.
"Withholding Advances" has the meaning set forth in Section 4.06(b).
SECTION 1.02. Usage Generally; Interpretation. Whenever the context
may require, any pronoun includes the corresponding masculine, feminine and
neuter forms. Words in the singular or the plural include the plural or the
singular, as the case may be. The use of the word "or" is not exclusive. All
references herein to the preamble, Articles, Sections, Subsections, paragraphs,
Exhibits and Schedules shall be deemed to be references to the preamble,
Articles, Sections, Subsections, paragraphs, Exhibits and Schedules of this
Agreement unless the context otherwise requires. The words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation." The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Unless otherwise expressly provided
herein, any statute or law defined or referred to herein means such statute or
law as from time to time amended, modified or supplemented, including by
succession of comparable successor statutes. Except to the extent a provision of
this Agreement expressly incorporates federal income tax rules by reference to
sections of the Code or Treasury Regulations or is expressly prohibited or
ineffective under the Delaware Act, this Agreement shall govern, even when
inconsistent with, or different from, the provisions of the Delaware Act or any
other law or rule.
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ARTICLE II
Organizational and Other Matters
SECTION 2.01. Formation and Continuation of LLC; Effective Time.
The LLC was formed on January 25, 2006, pursuant to the provisions of the
Delaware Act, and the Members hereby agree to continue the Company as a limited
liability company pursuant to the Delaware Act, upon the terms and subject to
the conditions set forth in this Agreement. Upon consummation of the IPO, (a)
this Agreement shall become effective (the "Effective Time") immediately and
without any further action on the part of any party hereto and (b) the terms,
rights and obligations under the Existing LLC Agreement shall cease. Without
limiting the generality of the foregoing, as of the Effective Time, and in
accordance with the Existing LLC Agreement, the A Units, the B Units, the C
Units, the D Units and the M Units under the Existing LLC Agreement shall be
converted into the Units and as a result thereof shall cease to exist and be of
no further value and the LLC Interests represented by the Units under this
Agreement shall be the only equity interests in the LLC. An authorized officer
or representative of the Company shall file and record any amendments and/or
restatements to the Certificate and such other documents as may be required or
appropriate under the laws of the State of Delaware and of any other
jurisdiction in which the Company may conduct business. The LLC shall, upon
request, provide any Member with copies of each such document as filed and
recorded.
SECTION 2.02. Limited Liability Company Agreement. The Members
agree that this Agreement serves the purpose of establishing the affairs of the
LLC and the conduct of its business in accordance with the provisions of the
Delaware Act. The Members hereby agree that during the term of the LLC set forth
in Section 2.06 the rights and obligations of the Members with respect to the
LLC will be determined in accordance with the terms and conditions of this
Agreement and, except where the Delaware Act provides that such rights and
obligations specified in the Delaware Act shall apply "unless otherwise provided
in a limited liability company agreement" or words of similar effect and such
rights and obligations are set forth in this Agreement, the Delaware Act;
provided that notwithstanding the foregoing, Section 18-210 of the Delaware Act
(entitled "Contractual Appraisal Rights") shall not apply to or be incorporated
into this Agreement.
SECTION 2.03. Name. The name of the LLC shall be "BioFuel Energy,
LLC." The Manager in its sole discretion may change the name of the LLC at any
time and from time to time. Notification of any such change shall be given to
all Members. The LLC's business may be conducted under its name and/or any other
name or names deemed advisable by the Manager.
SECTION 2.04. Purpose. The purpose and the business of the LLC
shall be to engage in any lawful business for which a limited liability company
may be organized under the Delaware Act. The LLC shall have any and all powers
necessary or desirable to carry out the purposes and business of the LLC, to the
extent that the same may be lawfully exercised by limited liability companies
under the Delaware Act.
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SECTION 2.05. Principal Office; Registered Office. The principal
office of the LLC shall be located at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, XX
00000, or at such other place as the Manager may from time to time designate,
and all business and activities of the LLC shall be deemed to have occurred at
its principal office. The LLC may maintain offices at such other place or places
as the Manager deems advisable. The address of the registered office of the LLC
in the State of Delaware shall be as set forth in the Certificate and the
registered agent for service of process on the LLC in the State of Delaware at
such registered office shall be Corporation Service Company.
SECTION 2.06. Term. The term of the LLC shall continue in existence
until termination and dissolution thereof in accordance with the provisions of
Article IX.
SECTION 2.07. Foreign Qualification. Prior to the LLC's conducting
business in any jurisdiction other than Delaware, the Manager shall cause the
LLC to comply, to the extent procedures are available and those matters are
reasonably within the control of the Officers, with all requirements necessary
to qualify the LLC as a foreign limited liability company in that jurisdiction.
At the request of the Manager or any Officer, each Member shall execute,
acknowledge, swear to and deliver any or all certificates and other instruments
conforming with this Agreement that are necessary or appropriate to qualify,
continue and terminate the LLC as a foreign limited liability company in all
such jurisdictions in which the LLC may conduct business.
SECTION 2.08. Tax Classification of LLC. The Members intend that
the LLC shall be treated as a partnership for federal and state or local income
tax purposes, and that each Member and the LLC shall file all tax returns and
shall otherwise take all tax and financial reporting positions in a manner
consistent with such treatment.
ARTICLE III
Management
SECTION 3.01. Sole Manager. The Members shall not manage and
control the business and affairs of the LLC, except for situations in which the
approval of the Members is required by this Agreement or by non-waivable
provisions of applicable law. The Manager shall exclusively manage and control
the LLC's business, affairs and day-to-day operations and, in such capacity,
shall be the "manager" of the LLC within the meaning of the Delaware Act.
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SECTION 3.02. Authority of the Sole Manager. Except for situations
in which the approval of the Members is otherwise required by this Agreement, or
by non-waivable provisions of applicable law, (i) the powers of the LLC shall be
exercised by or under the sole, absolute and exclusive direction of the Manager,
(ii) the Manager may make all decisions and take all actions for the LLC not
otherwise provided for in this Agreement, and (iii) the Manager shall possess
all powers necessary, convenient or appropriate to carry out the business of the
LLC, including doing all things and taking all actions necessary to carry out
the terms and provisions of this Agreement (and is hereby authorized and
directed, on behalf of the LLC and in accordance with Section 18-404(c) of the
Delaware Act, to do all such things and to take all such actions without any
further act, vote, consent or approval of any Member or the Board, unless
otherwise specifically required by this Agreement).
SECTION 3.03. Authority of Members. In all matters relating to or
arising out of the conduct of the operation of the LLC, the decision of the
Manager shall be the decision of the LLC. Except as required or permitted by
applicable law, or expressly provided in the ultimate sentence of this Section
3.03 or by separate agreement with the LLC, no Member who is not also the
Manager (and acting in such capacity) shall take any part in the management or
control of the operation or business of the LLC in its capacity as a Member, nor
shall any Member who is not also the Manager (and acting in such capacity) have
any right, authority or power to act for or on behalf of or bind the LLC in his
or its capacity as a Member in any respect or assume any obligation or
responsibility of the LLC or of any other Member. Notwithstanding the foregoing,
the LLC may employ one or more Officers from time to time, and such Officers, in
their capacity as employees of the LLC, may take part in the control and
management of the business of the LLC to the extent such authority and power to
act for or on behalf of the LLC has been delegated to them by the Manager.
SECTION 3.04. Removal and Replacement of Manager. The Manager may
not be removed or replaced at any time with or without the consent of the
Manager.
SECTION 3.05. Reliance by Third Parties. Any Person dealing with
the LLC, other than a Member, may rely on the authority of the Manager (or any
Officer authorized by the Manager) in taking any action in the name of the LLC
without inquiry into the provisions of this Agreement or compliance herewith,
regardless of whether that action actually is taken in accordance with the
provisions of this Agreement. Every agreement, instrument or document executed
by the Manager (or any Officer authorized by the Manager) in the name of the LLC
with respect to any business or property of the LLC shall be conclusive evidence
in favor of any Person relying thereon or claiming thereunder that (i) at the
time of the execution or delivery thereof, this Agreement was in full force and
effect, (ii) such agreement, instrument or document was duly executed according
to this Agreement and is binding upon the LLC and (iii) the Manager or such
Officer was duly authorized and empowered to execute and deliver such agreement,
instrument or document for and on behalf of the LLC.
SECTION 3.06. Officers. (a) Designation and Appointment. The
officers of the Corporation shall automatically be designated and appointed as
Officers of
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the LLC, with titles, duties and authority corresponding to the titles, duties
and authority held by such Officers in their capacity as officers of the
Corporation, and with no specific action required by the Manager in order to
appoint such persons. In addition, the Manager may (but need not), from time to
time, designate and appoint one or more persons as additional Officers of the
LLC. No Officer need be a resident of the State of Delaware or a Member. Any
additional Officers so designated shall have such authority and perform such
duties as the Manager may, from time to time, delegate to them, and no Officer
shall be deemed to be a Manager as a result of his or her status as an Officer.
The Manager may assign titles to particular Officers and create officer
positions in its discretion. Unless the Manager 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 Corporation or by
the Manager pursuant to this Section 3.06(a). Each Officer shall hold office
until such Officer's successor shall be duly designated and shall qualify or
until such Officer's death or until such Officer 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 LLC shall be fixed from time to time by the Corporation or the
Manager, as applicable.
(b) Resignation/Removal. Any Officer (subject to any contract
rights available to the LLC, if applicable) may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the Manager.
The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation. Any Officer may be removed as
such, either with or without cause, by the Manager in its discretion at any
time; provided, however, that such removal shall be without prejudice to the
contract rights, if any, of the individual so removed. Designation of an Officer
shall not of itself create contract rights. Any vacancy occurring in any office
of the LLC may be filled by the Manager.
ARTICLE IV
Distributions and Allocations
SECTION 4.01. Distributions. (a) The Manager, in its discretion,
may authorize distributions by the LLC to the Members (including in the event of
an extraordinary dividend, refinancing, recapitalization, merger or other
restructuring transaction), which distributions shall be made pro rata in
accordance with the Members' respective Unit Percentages.
(b) Upon the Effective Time, each Management Member (other than
Edelman) shall deposit with the Escrow Agent one-half of the number of Effective
Time Units issued to such Management Member in respect of the C Units and/or D
Units held by such Management Member under the Existing LLC Agreement, together
with an equal number of shares of Class B Stock (collectively, the "Escrowed
Securities"). The
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Escrowed Securities shall be held by the Escrow Agent pursuant to the terms of
the Escrow Agreement.
(c) Greenlight and Third Point shall provide to the Manager within
five Business Days of the True-Up Date a certificate setting forth (i) the date
of each Greenlight/Third Point Sale, (ii) the price per share of Common Stock
sold by Greenlight and/or Third Point in connection with such Greenlight/Third
Point Sale, (iii) the number of shares of Common Stock sold by Greenlight and/or
Third Point in connection with such Greenlight/Third Point Sale, (iv) the number
of Units and number of shares of Common Stock held by each of Greenlight and
Third Point as of the True-Up Date, if any, and (v) the Trading Price as of the
date of the certificate (which shall be updated on the True-Up Date to reflect
the Trading Price on such date).
(d) Within ten Business Days after the True-Up Date, Greenlight
shall prepare, in consultation with the Manager, Third Point and the Management
Members, and deliver to each of the Manager, Third Point and each Management
Member a certificate (the "True-Up Certificate") setting forth the True-Up Value
and each Management Member's Effective Time Units, Trued-Up Units and the
related Excess Amount or Shortfall Amount, as applicable. The True-Up
Certificate shall set forth computations and other information in reasonable
detail sufficient to demonstrate the calculation of such amounts. Each of the
Manager, Third Point and each Management Member shall assist Greenlight in the
preparation of the True-Up Certificate as reasonably requested by Greenlight.
(i) The True-Up Certificate shall become final and binding upon the
parties upon the tenth Business Day following the receipt by the Manager,
Third Point and the Management Members of the True-Up Certificate, unless
the Manager, Third Point or a Management Member gives written notice of
its disagreement with the True-Up Certificate (a "Notice of Disagreement")
to Greenlight, with a copy to the Manager, prior to such date. Any Notice
of Disagreement shall specify in reasonable detail the nature of any
disagreement so asserted. If a Notice of Disagreement is received by
Greenlight and the Manager in a timely manner, then the True-Up
Certificate shall become final and binding upon the parties upon the
earlier of (A) the date that the Manager, Greenlight, Third Point and the
Management Members resolve in writing any differences they have with
respect to the matters specified in the Notice of Disagreement or (B) the
date any disputed matters are finally resolved in writing by the
Accounting Firm.
(ii) During the ten Business-Day period following the delivery of a
Notice of Disagreement, the Manager, Greenlight, Third Point and the
Management Members shall seek in good faith to resolve in writing any
differences that they may have with respect to the matters specified in
the Notice of Disagreement. At the end of such ten Business-Day period,
Greenlight and the Manager shall submit to an independent accounting firm
(the "Accounting Firm") for arbitration any and all matters that remain in
dispute and were included in the Notice of Disagreement. The Accounting
Firm shall be such nationally recognized independent public accounting
firm as shall be agreed upon by the Manager,
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Greenlight, Third Point and the Management Members in writing. Judgment
may be entered upon the determination of the Accounting Firm in any court
having jurisdiction over the party or parties against which such
determination is to be enforced.
(e) In the event that:
(i) a Management Member's Effective Time Units are greater
than such Management Member's Trued-Up Units (the excess being the
"Excess Amount"), then
(A) with respect to such Management Member (other than
Edelman), a number of Units equal to the product of (A) the
Greenlight/Third Point Specified A Unit Percentage and (B) the
lesser of (x) the Excess Amount, and (y) the number of such
Management Member's Escrowed Securities, shall be released and
distributed in accordance with the Escrow Agreement to Greenlight
and Third Point pro rata based on their respective Specified A Unit
Percentages, and all of such Management Member's Escrowed Securities
that are not required to be distributed to Greenlight or Third Point
shall be released and distributed to such Management Member in
accordance with the Escrow Agreement; and
(B) with respect to Edelman, he shall either (x) distribute a
number of Edelman's Effective Time Units equal to Edelman's Excess
Amount to the Specified A Unit Members pro rata based on their
respective Specified A Unit Percentages, or (y) pay an amount in
cash equal to the product of (i) Edelman's Excess Amount, multiplied
by (ii) the Trading Price as of the date of payment, to Greenlight
and Third Point pro rata based on their respective Specified A Unit
Percentages; and
(ii) a Management Member's Effective Time Units are less than
such Management Member's Trued-Up Units (the shortfall being the
"Shortfall Amount"), then both:
(A) Greenlight and Third Point shall deliver to such
Management Member either:
(x) a number of Units equal to the product of (I) such
Management Member's Shortfall Amount, multiplied by (II) such
Member's respective Specified A Unit Percentage; or
(y) an amount in cash equal to the product of (I) such
Management Member's Shortfall Amount, multiplied by (II) the
Trading Price as of the date of payment, multiplied by (III)
such Member's Specified A Unit Percentage; and
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(B) all of such Management Member's Escrowed Securities shall
be released and delivered to such Management Member in accordance
with the Escrow Agreement; and
(iii) to the extent a Member is obligated to deliver, or cause to be
delivered, Units pursuant to this Section 4.01(e), such Member (I) may
deliver, or cause to be delivered, a number of shares of Common Stock
equal to the number of Units required to be delivered in lieu of
delivering such Units and (II) if such Member does not deliver shares of
Common Stock in accordance with clause (I) above (and does not deliver
cash in lieu of Units, if permitted), shall also deliver with such Units a
number of shares of Class B Stock equal to the number of Units required to
be delivered.
(iv) In furtherance of the foregoing, promptly upon the True-Up
Certificate becoming final and binding upon the parties, as provided in
this Section 4.01, the Manager, in consultation with Greenlight and Third
Point, shall prepare the release certificate contemplated by the Escrow
Agreement and deliver such release certificate to the Escrow Agent.
(f) (i) In addition to the foregoing, if the Manager reasonably
determines that the operations of the LLC for a Fiscal Year will give rise to
net taxable income for any of the Members ("Net Taxable Income"), the Manager
shall cause the LLC to distribute Available Cash for purposes of allowing each
of the Members to fund their respective income tax liabilities attributable to
the LLC (the "Tax Distributions"). The Tax Distributions payable to a Member
with respect to any Fiscal Year shall be computed based upon the Manager's
estimate of the Net Taxable Income allocable to such Member for such Fiscal Year
in accordance with this Article IV (taking into account the effect of Section
4.04(b)), multiplied by the Assumed Tax Rate (the "Tax Amount"). For purposes of
computing the Tax Amount, the effect of any benefit to a Member under Section
743(b) of the Code will be ignored but any tax credits allocated to a Member for
such Fiscal Year shall be taken into account.
(ii) Tax Distributions shall be calculated and paid no later than
one day prior to each quarterly due date for the payment by corporations of
estimated taxes under the Code in the following manner: (A) for the first
quarterly period, 25% of the Tax Amount, (B) for the second quarterly period,
50% of the Tax Amount, less the prior Tax Distributions for the Fiscal Year, (C)
for the third quarterly period, 75% of the Tax Amount, less the prior Tax
Distributions for the Fiscal Year and (D) for the fourth quarterly period, 100%
of the Tax Amount, less the prior Tax Distributions for the Fiscal Year.
Following each Fiscal Year, and no later than one day prior to the due date for
the payment by corporations of income taxes for such Fiscal Year, the Manager
shall make an amended calculation of the Tax Amount for such Fiscal Year (the
"Amended Tax Amount"), and shall cause the LLC to distribute a Tax Distribution,
out of Available Cash, to the extent that the Amended Tax Amount so calculated
exceeds the cumulative Tax Distributions previously made by the LLC in respect
of such Fiscal Year. If the Amended Tax Amount is less than the cumulative Tax
Distributions previously made by the LLC in respect of the relevant Fiscal Year,
then the difference (the "Credit Amount")
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shall be applied against, and shall reduce, the amount of Tax Distributions made
to the Members for subsequent Fiscal Years. Within 30 days following the date on
which the LLC files a tax return on IRS Form 1065 (or any successor form), the
Manager shall make a final calculation of the Tax Amount of such Fiscal Year
(the "Final Tax Amount") and shall cause the LLC to distribute a Tax
Distribution, out of Available Cash, to the extent that the Final Tax Amount so
calculated exceeds the Amended Tax Amount. If the Final Tax Amount is less than
the Amended Tax Amount in respect of the relevant Fiscal Year, then the
difference ("Additional Credit Amount") shall be applied against, and shall
reduce, the amount of Tax Distributions made to the Members for subsequent
Fiscal Years. Any Credit Amount and Additional Credit Amount applied against
future Tax Distributions shall be treated as an amount actually distributed
pursuant to this Section for purposes of the computations herein. In the event
that the Tax Distributions made to a Member for any Fiscal Year shall be less
than the Final Tax Amount for such Member due to an insufficiency of Available
Cash, then such Member shall receive additional Tax Distributions out of the
first Available Cash in subsequent Fiscal Years to make up for such shortfall.
(iii) For the avoidance of doubt, any Tax Distributions distributed
to a Member pursuant to this Section 4.01(f) shall not affect the amount of
distributions that may be made to such Member pursuant to Section 4.01(a).
SECTION 4.02. Liquidation Distribution. Distributions made upon
liquidation of the LLC shall be made as provided in Section 9.02.
SECTION 4.03. Limitations on Distribution. Notwithstanding any
provision to the contrary contained in this Agreement, the Manager shall not
authorize a distribution to any Member if such distribution would violate
Section 18-607 of the Delaware Act or other applicable law.
SECTION 4.04. Allocations. (a) Net Income and Net Loss. Except as
otherwise provided in this Agreement, Net Income and Net Loss (and, to the
extent necessary, individual items of income, gain, loss, deduction or credit)
of the LLC shall be allocated among the Members in a manner such that, after
giving effect to the special allocations set forth in Section 4.05, the Capital
Accounts of all Members, immediately after making such allocation, are, as
nearly as possible, equal on a per Unit basis.
(b) Tax Allocations. For federal, state and local income tax
purposes, items of income, gain, loss, deduction and credit shall be allocated
to the Members in accordance with the allocations of the corresponding items for
Capital Account purposes under Sections 4.01(a) and 4.05, except that tax items
attributable to each asset with respect to which there is a difference between
tax basis and Book Value will be allocated in accordance with Section 704(c) of
the Code and the Regulations thereunder. Such allocations shall be made using
any reasonable method specified in Regulation Section 1.704-3 as the Tax Matters
Member determines reasonably and in good faith; provided that with respect to
the assets contributed by Cargill the Tax Matters Member shall use either (i)
the traditional method with curative allocations or (ii) the remedial method.
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SECTION 4.05. Special Allocations. (a) Minimum Gain Chargeback.
Notwithstanding any other provision of Section 4.04, if there is a net decrease
in Minimum Gain or Nonrecourse Debt Minimum Gain (determined in accordance with
the principles of Regulation Sections 1.704-2(d) and 1.704-2(i)) during any
Taxable Year, the Members shall be specially allocated items of Net Income for
such year (and, if necessary, subsequent years) in an amount equal to their
respective shares of such net decrease during such year, determined pursuant to
Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5). The items to be so
allocated shall be determined in accordance with Treasury Regulation Sections
1.704-2(f), 1.704-2(i)(4), 1.704-2(j)(2). This Section 4.05(a) is intended to
comply with the minimum gain chargeback requirements in such Treasury Regulation
Sections and shall be interpreted consistently therewith; including that no
chargeback shall be required to the extent of the exceptions provided in
Treasury Regulation Sections 1.704-2(f) and 1.704-2(i)(4).
(b) Qualified Income Offset. In the event any Member unexpectedly
receives any adjustments, allocations, or distributions described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Net Income
shall be specially allocated to such Member in an amount and manner sufficient
to eliminate the Adjusted Capital Account Deficit created by such adjustments,
allocations or distributions as promptly as possible; provided that an
allocation pursuant to this Section 4.05(b) shall be made if and only to the
extent that such Member would have an Adjusted Capital Account Deficit after all
other allocations provided for in Section 4.01 and this Section 4.05 have been
tentatively made as if this Section 4.05(b) were not in the Agreement. This
Section 4.05(b) is intended to comply with the "qualified income offset"
requirement in such Regulation Section and shall be interpreted consistently
therewith.
(c) Nonrecourse Liabilities. For purposes of Treasury Regulation
Section 1.752-3(a), any Member's interests in LLC profits shall be in proportion
with the respective Unit Percentage.
(d) Nonrecourse Deductions. Any Member nonrecourse deductions (as
defined in Treasury Regulation Section 1.704-2(i)(1) and (2)) for any Fiscal
Period shall be allocated to the Member who bears the economic risk of loss with
respect to the liability to which such Member nonrecourse deductions are
attributable in accordance with Regulation Section 1.704-2(i)(1). Nonrecourse
Deductions (as such term is defined in Treasury Regulation Sections
1.704-2(b)(1) and 1.704-2(c)) of the LLC shall be allocated to the Members in
proportion with the respective Unit Percentage.
(e) Section 754 Adjustment. To the extent an adjustment to the
adjusted tax basis of any Company asset pursuant to Sections 734(b) or 743(b) of
the Code is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining the Capital
Accounts, the amount of such adjustment to the Capital Accounts shall be treated
as an item of gain (if the adjustment increases the basis of the asset) or loss
(if the adjustment decreases such basis), and such gain or loss shall be
specially allocated to the Members in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such
regulation.
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(f) Ordering Rules. Notwithstanding anything to the contrary in this
Agreement, allocations for any Fiscal Year or other period of nonrecourse
deductions or of items required to be allocated pursuant to the minimum gain
chargeback requirements contained in Section 4.05 shall be made before any other
allocations hereunder.
SECTION 4.06. Tax Withholding; Withholding Advances. (a) Tax
Withholding. If requested by the Manager, each Member shall deliver to the LLC:
(i) documentation in form reasonably satisfactory to the Manager that the
applicable Member is not subject to withholding under the provisions of any
federal, state, local, foreign or other law; and/or (ii) any other form or
instrument reasonably requested by the Manager relating to any Member's status
under such law. In the event that a Member fails or is unable to deliver to the
Manager the documentation described in subclause (i) of this clause (a), the
Manager will withhold amounts from such Member in accordance with Section
4.06(b) (relating to Withholding Advances).
(b) Withholding Advances - General. To the extent the LLC is
required by law to withhold or to make tax payments on behalf of or with respect
to any Member (e.g., backup withholding) ("Withholding Advances"), the Manager
may withhold such amounts and make such tax payments as so required; provided
that, unless such withholding or payment is required by law or regulation to be
made in a lesser amount of time, the Manager shall provide not less than ten
(10) Business Days' notice to the applicable Member prior to making such
withholding or payment.
(c) Repayment of Withholding Advances. Any Withholding Advances made
on behalf of a Member that are not satisfied by withholding from cash
distributable to such Member, plus interest thereon at a rate equal to the prime
rate announced by Citibank, N.A. as of the date of such Withholding Advances
plus two percent (2%) per annum, shall (i) be paid by the Member on whose behalf
such Withholding Advances were made on demand by the LLC or (ii) with the
consent of the Manager in its sole discretion be repaid by reducing the amount
of the current or next succeeding Distribution or Distributions which would
otherwise have been made to such Member or, if such Distributions are not
sufficient for that purpose, by so reducing the proceeds of liquidation
otherwise payable to such Member. Whenever repayment of a Withholding Advance by
a Member is made as described in clause (ii) above, for all other purposes of
this Agreement such Member shall be treated as having received all the
applicable Distributions unreduced by the amount of such Withholding Advance and
interest thereon.
(d) Withholding Advances - Reimbursement of Liabilities. Each Member
hereby agrees to reimburse the LLC for any liability with respect to Withholding
Advances (including interest thereon) required or made on behalf of or with
respect to such Member (including penalties imposed with respect thereto).
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ARTICLE V
Capital Contributions; Capital Accounts; Tax Matters
SECTION 5.01. Capital Contributions. The Members have made, on or
prior to the date hereof, Capital Contributions and have acquired the number of
Units pursuant to the conversion referred to in Section 2.01 as specified
opposite their respective names on Schedule A, which shall be updated by the
Manager from time to time as appropriate.
SECTION 5.02. No Additional Capital Contributions. No Member (x)
shall be required to make additional Capital Contributions to the LLC without
the prior written consent of such Member or (y) shall, except as otherwise
provided in this Article, be permitted to make additional Capital Contributions
to the LLC without the consent of the Manager.
SECTION 5.03. Capital Accounts. (a) The LLC shall maintain on its
books and records a separate capital account for each Member according to the
rules of Treasury Regulation Section 1.704-1(b) (each such account, a "Capital
Account"). The amount in the Capital Account of any Member at any time shall be
equal to the sum of:
(i) the amount of such Member's Capital Contributions, plus
(ii) the amount of Net Income allocated to such Member pursuant to
Section 4.01 or any items in the nature of income or gain which are
specially allocated pursuant to Section 4.05; plus
(iii) the amount of any LLC liabilities that are assumed by such
Member (other than liabilities that are secured by any LLC property
distributed to such Member that the Member is considered to assume or take
subject to Section 752 of the Code)
and the sum of subsections (i) through (iii) shall be reduced by the sum of:
(iv) the amount of Net Losses allocated to such Member pursuant to
Section 4.01 or any items in the nature of expenses or losses which are
specially allocated pursuant to Section 4.05; plus
(v) the amount of cash and the Book Value of property, if any,
distributed to such Member by the LLC (net of liabilities secured by such
distributed property that such Member is considered to assume or take
subject to Section 752 of the Code); plus
(vi) the amount of any liabilities of such Member that are assumed
by the LLC (other than liabilities that are secured by any property
contributed by such Member to the LLC).
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(b) (i) The Manager shall adjust the Book Values and Capital Account
balances as of the Effective Time in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f)-(g) based upon the price of the Common Stock in the IPO and
(ii) the Manager may adjust the Book Values and Capital Account balances in
connection with any subsequent event described in Treasury Regulation Section
1.704-1(b)(2)(iv)(f); provided, however, that the Manager shall so adjust the
Book Values and Capital Account balances if the aggregate amount of such an
adjustment would be material.
(c) In the event that any Person is transferred Units of a Member in
accordance with the provisions of Article VIII, such Person shall succeed to the
Capital Account of the transferor Member to the extent the Capital Account
relates to the transferred interest (or a portion thereof).
SECTION 5.04. Negative Capital Accounts. No Member shall be
required to pay to any other Member or the LLC the amount of any deficit or
negative balance that may exist from time to time in such Member's Capital
Account (including upon the dissolution of the LLC).
SECTION 5.05. Loans From Members. Loans by Members to the LLC shall
not be considered Capital Contributions. If any Member shall loan funds to the
LLC in excess of the amounts required hereunder to be contributed by such Member
to the capital of the LLC, the making of such loans shall not result in any
increase in the amount of the Capital Account of such Member. The amount of any
such loans shall be a debt of the LLC to such Member and shall be payable or
collectible in accordance with the terms and conditions upon which such loans
are made.
SECTION 5.06. Preparation of Tax Returns. The Manager shall cause
the LLC to accurately prepare and timely file all tax returns required to be
filed by the LLC and its Subsidiaries. In furtherance of the foregoing, the
Company shall provide the Members with estimated Schedule K-1s by March 15 of
each calendar year, which shall address the immediately preceding year.
SECTION 5.07. Tax Elections. The Manager shall cause the LLC and
any Subsidiary that is a partnership for tax purposes to make an election
pursuant to Section 754 of the Code (and any comparable elections under the
applicable state and local tax laws) to adjust the tax basis of its assets in
connection with transfers of Units, which elections shall be made on the tax
returns of such entities for the taxable year that includes the Effective Time.
Except as otherwise expressly provided herein, the Manager shall, in its sole
discretion, determine whether to make or revoke any available election pursuant
to the Code (or any state or local tax laws). Each Member will upon request
supply any information reasonably necessary to give proper effect to any
election.
SECTION 5.08. Tax Matters Member. The Manager is hereby designated
the "Tax Matters Member" and is authorized and required to represent the LLC (at
the LLC's expense) in connection with all examinations of the LLC's affairs by
tax authorities, including resulting administrative and judicial proceedings,
and to expend LLC funds for professional services reasonably incurred in
connection therewith. Each
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Member agrees to cooperate with the LLC and the Tax Matters Member, and to do or
refrain from doing any or all things reasonably requested by the LLC with
respect to the conduct of such proceedings, including providing the Tax Matters
Member with such information as the Tax Matters Member may reasonably request.
The Tax Matters Member shall keep all Members fully informed of the progress of
any examinations, audits or other proceedings. Each Member may, at its own
expense, participate in any meetings with the relevant tax authorities.
ARTICLE VI
Books, Records, Accounting and Reports
SECTION 6.01. Records and Accounting. The LLC shall keep, or cause
to be kept, appropriate books and records with respect to the LLC's business,
including all books and records necessary to provide any information, lists and
copies of documents required to be provided pursuant to applicable laws. All
matters concerning (i) the determination of the relative amount of allocations
and distributions among the Members pursuant to Article IV and (ii) accounting
procedures and determinations, and other determinations not specifically and
expressly provided for by the terms of this Agreement, shall be determined by
the Manager, whose determination shall be final and conclusive as to all of the
Members absent manifest clerical error.
SECTION 6.02. Fiscal Year. The fiscal year (the "Fiscal Year") of
the LLC for financial statement and federal income tax purposes shall be the
same and shall, except as otherwise required in accordance with the Code, end on
December 31.
ARTICLE VII
LLC Units
SECTION 7.01. Units. LLC Interests shall be represented by Units.
The authorized Units which the LLC has authority to issue consist of [_____]
Units. The Units will consist of a single class. The Manager may establish other
classes from time to time in accordance with such procedures and subject to such
conditions and restrictions as the Manager shall determine from time to time.
Except as expressly provided in this Agreement to the contrary, any reference to
"Units" shall include any other classes that may be established in accordance
with this Agreement. All Units of a particular class shall have identical rights
in all respects as all other Units of such class, except in each case as
otherwise specified in this Agreement.
SECTION 7.02. Register. The register of the LLC shall be the
definitive record of ownership of each Unit and all relevant information with
respect to each Member. Unless the Manager shall determine otherwise, Units
shall be certificated as provided in Section 7.08 and recorded in the books and
records of the LLC.
SECTION 7.03. Splits, Distributions and Reclassifications. The LLC
shall not in any manner subdivide (by any Unit split, Unit distribution,
reclassification,
23
recapitalization or otherwise) or combine (by reverse Unit split,
reclassification, recapitalization or otherwise) the outstanding Units unless an
identical event is occurring with respect to the Common Stock. In the event of
any such subdivision or combination of the Common Stock, the Units shall
automatically be subdivided or combined concurrently with and in the same manner
as the Common Stock. The register of the LLC shall be adjusted accordingly and
on a timely basis.
SECTION 7.04. Cancellation of Common Stock and Units. At any time a
share of Common Stock is redeemed, repurchased, acquired, cancelled or
terminated by the Corporation, one Unit registered in the name of the Manager
will hereby automatically be cancelled for no consideration by the LLC so that
the number of Units held by the Corporation at all times equals the number of
shares of Common Stock outstanding. The register of the LLC shall be adjusted
accordingly and on a timely basis.
SECTION 7.05. Incentive Plans. At any time the Corporation issues a
share of Common Stock pursuant to an Incentive Plan (whether pursuant to the
exercise of a stock option or the grant of a restricted share award or
otherwise), the following shall occur: (a) the Corporation shall be deemed to
contribute to the capital of the LLC an amount of cash equal to the current per
share market price of a share of Common Stock on the date such share is issued
(or, if earlier, the date the related option is exercised) and the Capital
Account of the Corporation shall be adjusted accordingly; (b) the LLC shall be
deemed to purchase from the Corporation a share of Common Stock for an amount of
cash equal to the amount of cash deemed contributed by the Corporation to the
LLC in clause (a) above (and such share is deemed delivered to its owner under
the Incentive Plan); (c) the net proceeds (including the amount of any payments
made on a loan with respect to a stock purchase award) received by the
Corporation with respect to such share, if any, shall be concurrently
transferred and paid to the LLC (and such net proceeds so transferred shall not
constitute a Capital Contribution); and (d) the LLC shall issue to the
Corporation one Unit registered in the name of the Corporation. The LLC shall
retain any net proceeds that are paid directly to the LLC.
SECTION 7.06. Offerings of Common Stock. At any time the
Corporation issues a share of Common Stock other than pursuant to an Incentive
Plan, the net proceeds received by the Corporation with respect to such share,
if any, shall be concurrently transferred to the LLC and the LLC shall issue to
the Corporation one Unit registered in the name of the Corporation.
SECTION 7.07. Registered Members. The LLC shall be entitled to
recognize the exclusive right of a Person registered on its records as the owner
of Units for all purposes and shall not be bound to recognize any equitable or
other claim to or interest in Units on the part of any other Person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the Delaware Act.
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SECTION 7.08. Certification of Units. Each Unit shall be
represented by a certificate in the form attached hereto as Schedule C (an "LLC
Certificate") and shall be imprinted with a legend in substantially the
following form, in addition to any applicable legends required under the Escrow
Agreement:
"THE UNITS REPRESENTED BY THIS LLC CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR APPLICABLE STATE SECURITIES LAWS ("STATE ACTS") AND
MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR OTHERWISE
DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT OR
STATE ACTS OR AN EXEMPTION THEREFROM. THE TRANSFER OF THE
UNITS REPRESENTED BY THIS LLC CERTIFICATE IS SUBJECT TO THE
CONDITIONS SPECIFIED IN THE SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF [__________],
AS AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE
ISSUER (THE "COMPANY") AND BY AND AMONG CERTAIN INVESTORS. A
COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO
THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
(a) Upon the conversion of each Member's X Xxxxx, X Xxxxx, X Xxxxx,
X Units and M Units referred to in Section 2.01, and upon each subsequent
issuance of Units to any Member in accordance with the provisions of this
Agreement, the LLC shall issue one or more LLC Certificates in the name of such
Member. Each such LLC Certificate shall be denominated in terms of the number of
Units evidenced by such LLC Certificate and shall be signed by the Manager on
behalf of the LLC.
(b) The LLC shall issue a new LLC Certificate in place of any LLC
Certificate previously issued if the holder of the Units represented by such LLC
Certificate, as reflected on the books and records of the LLC:
(i) makes proof by affidavit, in form and substance satisfactory to
the Manager, that such previously issued LLC Certificate has been lost,
stolen or destroyed;
(ii) requests the issuance of a new LLC Certificate before the
Manager has notice that such previously issued LLC Certificate has been
acquired by a purchaser for value in good faith and without notice of an
adverse claim;
(iii) if requested by the Manager, delivers to the LLC a bond, in
form and substance satisfactory to the Manager, with such surety or
sureties as the Manager may direct, to indemnify the LLC and the Manager
against any claim that may be
25
made on account of the alleged loss, destruction or theft of the
previously issued LLC Certificate; and
(iv) satisfies any other reasonable requirements imposed by the
Manager and any applicable requirements under the Escrow Agreement.
(c) Upon a Member's Transfer of any or all of the Units represented
by an LLC Certificate in compliance with Article VIII hereof, the transferee of
such Units shall deliver such LLC Certificate to the Manager for cancellation,
and the Manager shall thereupon issue a new LLC Certificate to such transferee
for the Units being transferred and, if applicable, cause to be issued to such
transferor a new LLC Certificate for that number of Units represented by the
canceled LLC Certificate which are not being transferred.
ARTICLE VIII
Transfer of LLC Interests
SECTION 8.01. Restrictions on Transfer. No Member may sell, assign,
pledge, transfer or otherwise dispose of all or any portion of such Member's
Units (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law) (a "Transfer"), unless (i) the prior
written consent of the Manager is obtained, which consent may be given or
withheld, or made subject to such conditions (including the receipt of such
legal opinions and other documents that the Manager may require) as are
determined by the Manager, in each case in the Manager's sole discretion (ii)
such Transfer complies with the provisions of this Article VIII and the relevant
provisions of any agreements to which the LLC and such Member are parties and
(iii) such transfer is accompanied by the delivery of an endorsed LLC
Certificate. In the event that a Member transfers any Units pursuant to this
Section 8.01, in connection with such transfer it shall also transfer a pro rata
portion of its (i) Capital Account and (ii) credits for Capital Contributions to
such transferee.
SECTION 8.02. Permitted Transfers. (a) Notwithstanding anything to
the contrary in this Agreement, (i) each Member who is an individual may
transfer all or a portion of his Units without consideration to (A) a member of
such Member's immediate family, which shall include his spouse, siblings,
children or grandchildren ("Family Members") or (B) a trust (including any
grantor retained annuity trust), corporation, partnership or limited liability
company, all of the beneficial interests in which shall be held by such Member
and/or one or more Family Members of such Member; provided, however, that during
the period that any such trust, corporation, partnership or limited liability
company holds any Units, no Person other than such Member or one or more Family
Members of such Member may be or may become beneficiaries, stockholders, limited
or general partners or members thereof, (ii) each Member that is an entity may
transfer all or a portion of its Units to any of its Affiliates (it being
understood, in furtherance of and not in limitation of the foregoing, that
Greenlight and Third Point may transfer Units held by them to an entity in which
both Greenlight and Third Point hold equity interests that is an Affiliate of
either Greenlight or
00
Xxxxx Xxxxx) and (iii) each Member that is a party to the Escrow Agreement may
transfer all or a portion of its Units to any other party to the Escrow
Agreement in connection with the true-up contemplated by Section 4.01(e) (the
Persons referred to in the preceding clauses (i), (ii) and (iii) are each
referred to hereinafter as a "Permitted Transferee"). A Permitted Transferee of
Units pursuant to this Section 8.02 may transfer its Units pursuant to this
Section 8.02 only to the transferor Member or to a Person that is a Permitted
Transferee of such transferor Member (and in the case of a transfer by a Member
who is an individual, only without consideration), provided, however, that all
Permitted Transferees shall be subject to this Agreement and, if applicable, the
Escrow Agreement and the Tax Benefit Sharing Agreement, in the same manner as
the transferor. Transfers pursuant to this Section 8.02 shall not require the
consent of the Manager.
SECTION 8.03. Permitted Exchanges. (a) Notwithstanding Section
8.01, each Member (other than the Corporation) shall be entitled to exchange, at
any time and from time to time, any or all of such Member's Units, on a
one-for-one basis, for the same number of shares of Common Stock (the number of
shares of Common Stock for which a Unit is entitled to be exchanged referred to
herein as the "Exchange Rate") by delivering a written notice to the Manager
(and to the Corporation, if the Corporation is not the Manager) stating that
such Member desires to exchange a number of Units specified in such notice into
an equal number of shares of Common Stock, accompanied by instruments of
transfer to the Corporation, duly executed by such Member or such Member's duly
authorized attorney, and transfer tax stamps or funds therefor, if required
pursuant to this Article VIII, in respect of the Units to be exchanged, in each
case delivered during normal business hours at the principal executive offices
of the Manager (and the Corporation, if the Corporation is not the Manager). The
Manager shall use commercially reasonable efforts to effect any such exchange
within one Business Day of receiving the requisite notice, instruments of
transfer and transfer tax stamps or funds therefor, if required, as set forth in
the preceding sentence. Notwithstanding the foregoing, no holder of a Unit shall
be entitled to exchange such Unit for a share of Common Stock if such exchange
would be prohibited under applicable federal or state securities laws or
regulations.
(b) Upon the date any such Units are surrendered for exchange
pursuant to this Section 8.03, all rights of the holder of such Units as such
holder shall cease.
(c) The Exchange Rate shall be adjusted accordingly if there is: (1)
any subdivision (by any unit split, unit distribution, reclassification,
recapitalization or otherwise) or combination (by reverse unit split,
reclassification, recapitalization or otherwise) of the Units that is not
accompanied by an identical subdivision or combination of the Common Stock; or
(2) any subdivision (by any stock split, stock dividend, reclassification,
recapitalization or otherwise) or combination (by reverse stock split,
reclassification, recapitalization or otherwise) of the Common Stock that is not
accompanied by an identical subdivision or combination of the Units. In the
event of a reclassification or other similar transaction as a result of which
the shares of Common Stock are converted into another security, then a Member
shall be entitled to receive upon exchange the amount of such security that such
Member would have received if such
27
exchange had occurred immediately prior to the effective date of such
reclassification or other similar transaction.
SECTION 8.04. Further Restrictions. Notwithstanding any contrary
provision in this Agreement, in no event may any Transfer of a Unit be made by
any Member or transferee if:
(a) such Transfer is made to any Person who lacks the legal right,
power or capacity to own such Unit;
(b) such Transfer would require the registration of such transferred
Unit or of any class of Unit pursuant to any applicable United States
federal or state securities laws (including, without limitation, the
Securities Act or the Exchange Act) or other foreign securities laws or
would constitute a nonexempt distribution pursuant to applicable state
securities laws;
(c) such Transfer would cause any portion of the assets of the LLC
to constitute assets of any employee benefit plan pursuant to the
regulations issued by the U.S. Department of Labor at Section 2510.3-101
of Part 2510 of Chapter XXV, Title 29 of the Code of Federal Regulations,
or any successor regulations;
(d) such Transfer would cause any portion of the assets of the LLC
to become "plan assets" of any benefit plan investor within the meaning of
regulations issued by the U.S. Department of Labor at Section 2510.3-101
of Part 2510 of Chapter XXV, Title 29 of the Code of Federal Regulations,
or any successor regulations, or to be regulated under the Employee
Retirement Income Security Act of 1974, as amended from time to time; or
(e) to the extent requested by the Manager (except in the case of a
Transfer contemplated by Section 4.01(e) or Section 8.02), the LLC does
not receive such legal and/or tax opinions and written instruments
(including copies of any instruments of Transfer and such transferee's
consent to be bound by this Agreement as a transferee) that are in a form
satisfactory to the Manager, as determined in the Manager's sole
discretion.
SECTION 8.05. Transferee's Rights. (a) A transfer of an LLC
Interest permitted hereunder shall be effective as of the date of assignment and
compliance with the conditions to such transfer and such transfer shall be shown
on the books and records of the LLC. Net Income, Net Losses and other LLC items
shall be allocated between the transferor and the transferee according to
Section 706 of the Code. Distributions made before the effective date of such
transfer shall be paid to the transferor, and Distributions made after such date
shall be paid to the transferee.
(b) Unless and until a transferee becomes a Substituted Member
pursuant to Section 8.07, the transferee shall not be entitled to any of the
rights granted to a Member hereunder or under applicable law, other than the
rights granted specifically to
28
transferees pursuant to this Agreement and to have the other rights granted to
transferees pursuant to the Delaware Act.
SECTION 8.06. Transferor's Rights and Obligations. Any Member who
shall transfer any Units or other interest in the LLC shall cease to be a Member
with respect to such Units or other interest and shall no longer have any rights
or privileges of a Member with respect to such Units or other interest except
that unless and until the transferee is admitted as a Substituted Member in
accordance with the provisions of Section 8.07 (the "Admission Date"), (i) such
assigning Member shall retain all of the duties, liabilities and obligations of
a Member with respect to such Units or other interest and (ii) the Manager may,
in its sole discretion, reinstate all or any portion of the rights and
privileges of such Member with respect to such Units or other interest for any
period of time prior to the Admission Date.
SECTION 8.07. Substituted Members. In connection with the transfer
of a Unit of a Member permitted under the terms of this Agreement, and the other
agreements contemplated hereby and thereby, the transferee shall become a
Substituted Member on the later of (i) the effective date of such transfer and
(ii) the date on which the Manager approves such transferee as a Substituted
Member, and such admission shall be shown on the books and records of the LLC
and the Substituted Member signs a letter of acceptance, in form satisfactory to
the Manager, of all the terms and conditions of this Agreement, including, if
applicable, the Escrow Agreement and the Tax Benefit Sharing Agreement, and
signs such other documents and instruments as may be necessary or appropriate to
effect such Person's admission as a Substituted Member.
SECTION 8.08. Additional Members. A Person may be admitted to the
LLC as an additional Member only in connection with a transfer of Units
permitted under this Article VIII and only upon such Person furnishing to the
Company (a) a letter of acceptance, in form satisfactory to the Manager, of all
the terms and conditions of this Agreement, and (b) such other documents or
instruments as may be necessary or appropriate to effect such Person's admission
as a Member. A Person may be admitted to the LLC as an additional Member through
the issuance of new Units or other securities of the LLC with the prior written
consent of the Manager and only upon such Person furnishing to the Company (a) a
letter of acceptance, in form satisfactory to the Manager, of all the terms and
conditions of this Agreement, including, if applicable, the Tax Benefit Sharing
Agreement, and (b) such other documents or instruments as may be necessary or
appropriate to effect such Person's admission as a Member. Any admission of an
additional Member pursuant to this Agreement shall become effective on the date
on which the Manager determines in its sole discretion that such conditions have
been satisfied and when any such admission is shown on the books and records of
the LLC.
SECTION 8.09. Attempted Transfer Void. Any attempted Transfer which
violates the provisions of this Agreement shall be void and the purported buyer,
transferee, pledgee, mortgagee or other recipient shall have no interest in or
rights to LLC assets, profits, losses or distributions, and neither the Members
nor the LLC shall be required to recognize any such interest or rights.
29
SECTION 8.10. Withdrawal. No Member may, or may be required to,
withdraw from the LLC, except upon a Transfer of such Member's Units in
accordance with the provisions of this Agreement or upon a permitted repurchase
or redemption of such Member's Units pursuant to the provisions of this
Agreement or any other agreement to which the LLC and such Member are parties.
SECTION 8.11. Required Amendments; Continuation. If and to the
extent any transferee is admitted as a Member pursuant to Section 8.07, this
Agreement shall be amended to admit such transferee as a Member and to reflect
the elimination of the transferor (or the reduction of such Member's interest)
and (if and to the extent then required by the Delaware Act) a certificate of
amendment to the Certificate reflecting such admission and elimination (or
reduction) shall be filed in accordance with the Act.
SECTION 8.12. Resignation. No Member shall have the right to resign
or withdraw as a Member without the prior written consent of the Manager, which
may be given or withheld in its sole discretion except to the extent that such
resignation or withdrawal is effectuated in connection with a transfer,
permitted under this Article VIII, by such Member of all Units held by it. Any
Member that resigns without any required consent of the Manager in contravention
of this Section 8.12 shall be liable to the LLC for all damages (including all
lost profits and special, indirect and consequential damages) directly or
indirectly caused by the resignation of such Member, and such Member shall be
entitled to receive the fair value of his, her or its interest in the LLC as of
the date of his, her or its resignation (or, if less, the fair value of his, her
or its interest as of the date of the occurrence of a liquidation or other
winding-up of the LLC), as conclusively determined by the Manager, only promptly
following the occurrence of a liquidation or other winding-up of the LLC.
ARTICLE IX
Dissolution and Liquidation
SECTION 9.01. Dissolution. The LLC shall not be dissolved by the
admission of additional Members or Substituted Members. The LLC shall dissolve,
and its affairs shall be wound up, upon the first to occur of the following:
(a) the entry of a decree of judicial dissolution of the LLC under
Section 35-5 of the Delaware Act or an administrative dissolution under
Section 18-802 of the Delaware Act;
(b) any other event not inconsistent with any provision hereof
causing a dissolution of the LLC under the Delaware Act; or
(c) the Incapacity or removal of the Manager or the occurrence of a
Disabling Event with respect to the Manager; provided that the LLC will
not be dissolved or required to be wound up in connection with any of the
events specified in this Section 9.01 if: (i) at the time of the
occurrence of such event there is at least one other Member who is hereby
authorized to, and elects to,
30
carry on the business of the LLC; or (ii) all remaining Members consent to
or ratify the continuation of the business of the LLC and the appointment
of another managing member of the LLC within 90 days following the
occurrence of any such Incapacity or removal, which consent shall be
deemed (and if requested each Member shall provide a written consent for
ratification) to have been given for all Members if the holders of more
than two-thirds of the Units then outstanding agree in writing to so
continue the business of the LLC.
Except as otherwise set forth in this Article IX, the LLC is
intended to have perpetual existence. A withdrawal by a Member shall not cause a
dissolution of the LLC, and the LLC shall continue in existence subject to the
terms and conditions of this Agreement.
SECTION 9.02. Liquidation and Termination. On dissolution of the
LLC, the Manager, or any other Person or Persons designated by the Manager,
shall act as liquidator (the "Liquidator"). The Liquidator shall proceed
diligently to wind up the affairs of the LLC and make final distributions as
provided herein and in the Delaware Act. The costs of liquidation shall be
expenses of the LLC. Until final distribution, the Liquidator shall continue to
operate the LLC properties with all of the power and authority of the Manager.
The steps to be accomplished by the Liquidator are as follows:
(a) The Liquidator shall pay, satisfy or discharge from LLC funds
all of the debts, liabilities and obligations of the LLC (including all
expenses incurred in liquidation) or otherwise make adequate provision for
payment and discharge thereof (including the establishment of a cash fund
for contingent liabilities in such amount and for such term as the
Liquidator may reasonably determine).
(b) In the event that the LLC holds assets other than cash at the
time of its dissolution, then as promptly as practicable after
dissolution, the Liquidator shall (i) determine the Fair Market Value (the
"Liquidation FMV") of such assets (the "Liquidation Assets") in accordance
with this Article IX, and (ii) deliver to each Member a statement setting
forth the Liquidation FMV and the amounts and recipients of such
Distributions.
(c) The "Fair Market Value" of any Liquidation Assets shall be
conclusively determined by the Liquidator, and shall be determined with
the consultation of an independent appraiser and with good faith and fair
dealing.
(d) As soon as the Liquidation FMV and the proper amounts of
Distributions have been determined in accordance with Sections 9.02(b) and
(c) above, the Liquidator shall promptly distribute the LLC's Liquidation
Assets to the holders of Units in accordance with Sections 4.01(a) and
4.01(f). Any non-cash Liquidation Assets will first be written up or down
to their Fair Market Value, thus creating Net Income or Net Loss (if any),
which shall be allocated in accordance with Section 4.04. In making such
distributions, the Liquidator shall allocate each type of Liquidation
Assets (i.e., cash or cash equivalents, stock or securities, etc.) among
the Members ratably based upon the aggregate amounts to
31
be distributed with respect to the Units held by each such holder.
The distribution of cash and/or property to a Member in accordance
with the provisions of this Section 9.02 constitutes a complete return to the
Member of its Capital Contributions and a complete distribution to the Member of
its interest in the LLC and all the LLC's property and constitutes a compromise
to which all Members have consented within the meaning of the Delaware Act. To
the extent that a Member returns funds to the LLC, it has no claim against any
other Member for those funds.
SECTION 9.03. Certificate of Cancellation. On completion of the
distribution of LLC assets as provided herein, the LLC is terminated (and the
LLC shall not be terminated prior to such time), and the Manager (or such other
Person or Persons as the Delaware Act may require or permit) shall file a
certificate of cancellation with the Secretary of State of Delaware, cancel any
other filings made pursuant to this Agreement that are or should be canceled and
take such other actions as may be necessary to terminate the LLC. The LLC shall
be deemed to continue in existence for all purposes of this Agreement until it
is terminated pursuant to this Section 9.03.
SECTION 9.04. Reasonable Time for Winding Up. A reasonable time
shall be allowed for the orderly winding up of the business and affairs of the
LLC and the liquidation of its assets pursuant to Section 9.02 in order to
minimize any losses otherwise attendant upon such winding up.
SECTION 9.05. Return of Capital. The Liquidator shall not be
personally liable for the return of Capital Contributions or any portion thereof
to the Members (it being understood that any such return shall be made solely
from LLC assets).
ARTICLE X
Rights and Obligations of Members
SECTION 10.01. Limitation of Liability. Except as otherwise provided
by applicable law, the debts, obligations and liabilities of the LLC, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the LLC, and no Member shall be obligated personally for any
such debt, obligation or liability of the LLC solely by reason of being a Member
or acting as a Member of the LLC; provided that a Member shall be required to
return to the LLC any Distribution made to it in clear and manifest accounting
or similar error. The immediately preceding sentence shall constitute a
compromise to which all Members have consented within the meaning of the
Delaware Act. Notwithstanding anything contained herein to the contrary, the
failure of the LLC to observe any formalities or requirements relating to the
exercise of its powers or management of its business and affairs under this
Agreement or the Delaware Act shall not be grounds for imposing personal
liability on the Members for liabilities of the LLC. Each Member's and the
Manager's liability shall be limited as set forth in this Agreement, the
Delaware Act and other applicable law. The Manager shall have no liability for
taking or failing to take any action required to be taken by it under this
Agreement to the extent the Manager or the Members have agreed that such action
shall
32
be taken or not be taken, as the case may be. To the fullest extent permitted
under the Delaware Act, no Member, the Manager or any officer of the LLC (each,
a "Covered Person") shall be liable to the LLC or to any of the Members for any
losses, claims, damages or liabilities arising (i) by reason of being or having
been a Covered Person or (ii) from any act or omission performed or omitted by
the Covered Person in connection with this Agreement or the LLC's business or
affairs (including any error in judgment in making any investment decisions),
including losses due to the negligence of other agents of the LLC, except for
any losses, claims, damages or liabilities primarily attributable to such
Covered Person's willful misconduct, recklessness, or gross negligence, as
finally determined by a court of competent jurisdiction, or as otherwise
required by law.
SECTION 10.02. Exculpation. (a) No Covered Person shall be liable,
including under any legal or equitable theory of fiduciary duty or other theory
of liability, to the Company or to any other Covered Person for any losses,
claims, damages or liabilities incurred by reason of any act or omission
performed or omitted by such Covered Person on behalf of the Company unless such
act or omission was performed or omitted by such Covered Person in bad faith.
Whenever in this Agreement a Covered Person is permitted or required to make
decisions in good faith, the Covered Person shall act under such standard and
shall not be subject to any other or different standard (including any legal or
equitable standard of fiduciary or other duty) imposed by this Agreement or any
relevant provisions of law or in equity or otherwise.
(b) 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 Person's professional or
expert competence.
SECTION 10.03. Lack of Authority. No Member in its capacity as such
has the authority or power to act for or on behalf of the LLC in any manner, to
do any act that would be (or could be construed as) binding on the LLC or to
make any expenditures on behalf of the LLC, and the Members hereby consent to
the exercise by the Manager of the powers conferred on it by law and this
Agreement.
SECTION 10.04. No Right of Partition. No Member shall have the right
to seek or obtain partition by court decree or operation of law of any LLC
property, or the right to own or use particular or individual assets of the LLC.
SECTION 10.05. Indemnification. (a) The LLC hereby agrees to
indemnify and hold harmless any Person (each an "Indemnified Person") to the
fullest extent permitted under the Delaware Act, as the same now exists or may
hereafter be amended, substituted or replaced (but, in the case of any such
amendment, substitution or replacement only to the extent that such amendment,
substitution or replacement permits the LLC to provide broader indemnification
rights than the LLC is providing immediately prior to such amendment), against
all expenses, liabilities and losses (including attorney fees, judgments, fines,
excise taxes or penalties) (collectively "Losses") reasonably incurred or
suffered by such Person (or one or more of such Person's Affiliates) by reason
of the fact that such Person is or was a Member or Manager. The LLC may, as
33
determined by the Manager, also indemnify and hold harmless any Indemnified
Person to the fullest extent permitted under the Delaware Act who is or was
serving as an officer, employee or agent of the LLC or is or was serving at the
request of the LLC as a managing member, officer, director, principal, member,
employee or agent of another corporation, partnership, joint venture, limited
liability company, trust or other enterprise (including any of the LLC's
Subsidiaries). Expenses, including attorney fees, incurred by any such
Indemnified Person in defending a proceeding otherwise indemnifiable hereunder
shall be paid by the LLC in advance of the final disposition of such proceeding,
including any appeal therefrom, upon receipt of an undertaking by or on behalf
of such Indemnified Person to repay such amount if it shall ultimately be
determined that such Indemnified Person is not entitled to be indemnified by the
LLC. Notwithstanding the foregoing, no indemnification shall be provided by the
LLC with respect to any Losses that resulted from action or inaction of such
Indemnified Person that, in each case, constituted gross negligence, willful
misconduct, a breach of the Indemnified Party's fiduciary duty to the LLC or an
act that was not in good faith, that involved a knowing violation of law or from
which the Indemnified Person derived an improper personal benefit.
(b) The right to indemnification and the advancement of expenses
conferred in this Section 10.05 shall not be exclusive of any other right which
any Person may have or hereafter acquire under any statute, agreement, by-law or
otherwise.
(c) The LLC may maintain insurance, at its expense, to protect any
Indemnified Person against any expense, liability or loss described in Section
10.05(a) above whether or not the LLC would have the power to indemnify such
Indemnified Person against such expense, liability or loss under the provisions
of this Section 10.05.
(d) Notwithstanding anything contained herein to the contrary
(including in this Section 10.05), any indemnity by the LLC relating to the
matters covered in this Section 10.05 shall be provided out of and to the extent
of LLC assets only and no Member (unless such Member otherwise agrees in writing
or is found in a final decision by a court of competent jurisdiction to have
personal liability on account thereof) shall have personal liability on account
thereof or shall be required to make additional Capital Contributions to help
satisfy such indemnity of the LLC.
(e) If this Section 10.05 or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the LLC shall
nevertheless indemnify and hold harmless each Indemnified Person pursuant to
this Section 10.05 to the fullest extent permitted by any applicable portion of
this Section 10.05 that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE XI
General Provisions
SECTION 11.01. Power of Attorney. (a) Each Member hereby constitutes
and appoints the Manager and the Liquidator, with full power of substitution,
34
as his true and lawful agent and attorney-in-fact, with full power and authority
in his or its name, place and stead, to execute, swear to, acknowledge, deliver,
file and record in the appropriate public offices: (i) this Agreement, all
certificates and other instruments and all amendments thereof which are in
accordance with the terms of this Agreement and which the Manager deems
appropriate or necessary to form, qualify, or continue the qualification of, the
LLC as a limited liability company in the State of Delaware and in all other
jurisdictions in which the LLC may conduct business or own property, (ii) all
instruments which the Manager deems appropriate or necessary to reflect any
amendment, change, modification or restatement of this Agreement which is in
accordance with its terms, (iii) all conveyances and other instruments or
documents which the Liquidator deems appropriate or necessary to reflect the
dissolution and liquidation of the LLC pursuant to the terms of this Agreement,
including a certificate of cancellation and (iv) all instruments relating to the
admission, withdrawal or substitution of any Member pursuant to this Agreement.
(b) The foregoing power of attorney is irrevocable and coupled with
an interest, and shall survive the death, disability, incapacity, dissolution,
bankruptcy, insolvency or termination of any Member and the transfer of all or
any portion of his or its LLC Interest and shall extend to such Member's heirs,
successors, assigns and personal representatives.
SECTION 11.02. Further Action. The parties shall execute and deliver
all documents, instruments, and certificates, provide all information, and take
or refrain from taking all such further actions as may be necessary or
appropriate to achieve the purposes of this Agreement and effect the provisions
hereof, as determined by the Manager.
SECTION 11.03. Amendments. This Agreement may not be amended except
in writing and with the consent of the Manager, which may be withheld in its
sole discretion; provided, however, that any amendment or modification that
adversely affects the rights of one or more Members under this Agreement, in
their capacity as such, in a manner that is materially different from the manner
in which such amendment or modification affects the rights of other Members
under this Agreement, in their capacity as such, shall require the consent of
each such adversely affected Member; provided, further, however, that any
amendment to Sections 4.01(b), (c), (d) or (e), 5.02, 8.03 and this 11.03, and
any defined terms that are used in those sections, shall require the consent of
each of Greenlight, Third Point and each Management Member.
SECTION 11.04. Title to LLC Assets. LLC assets shall be deemed to be
owned by the LLC as an entity, and no Member, individually or collectively,
shall have any ownership interest in such LLC assets or any portion thereof.
Legal title to any or all LLC assets may be held in the name of the LLC, the
Manager or one or more nominees, as the Manager may determine. The Manager
hereby declares and warrants that any LLC assets for which legal title is held
in its name or the name of any nominee shall be held in trust by the Manager or
such nominee for the use and benefit of the LLC in accordance with the
provisions of this Agreement. All LLC assets shall be recorded as the property
35
of the LLC on its books and records, irrespective of the name in which legal
title to any such LLC asset is held.
SECTION 11.05. Remedies. Each Member shall have all rights and
remedies set forth in this Agreement and all rights and remedies which such
Person has been granted at any time under any other agreement or contract and
all of the rights which such Person has under any law. Any Person having any
rights under any provision of this Agreement or any other agreements
contemplated hereby shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law.
SECTION 11.06. Successors and Assigns. All covenants and agreements
contained in this Agreement shall bind and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors, legal
representatives and permitted assigns, whether so expressed or not.
SECTION 11.07. Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or the effectiveness or validity of any provision
in any other jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
SECTION 11.08. Counterparts. This Agreement may be executed
simultaneously in two or more separate counterparts, any one of which need not
contain the signatures of more than one party, but each of which will be an
original and all of which together shall constitute one and the same agreement
binding on all the parties hereto.
SECTION 11.09. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
giving effect to any choice of law or conflict of law rules or provisions
(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.
SECTION 11.10. Addresses and Notices. All notices, demands or other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and shall be deemed to have been given or
made when (a) delivered personally to the recipient, (b) telecopied to the
recipient (with hard copy sent to the recipient by reputable overnight courier
service (charges prepaid) that same day) if telecopied before 5:00 p.m. New York
time on a Business Day, and otherwise on the next Business Day, or (c) one (1)
Business Day after being sent to the recipient by reputable overnight courier
service (charges prepaid). Such notices, demands and other communications shall
be sent to the address for such recipient set forth on the signature
36
pages or Schedules hereto, and/or to such other address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Any notice to the Manager or the LLC shall be deemed given
if received by the Manager at the principal office of the LLC, designated
pursuant to Section 2.05.
SECTION 11.11. Creditors; Third Party Beneficiaries. None of the
provisions of this Agreement shall be for the benefit of or enforceable by any
creditors of the LLC or any of its Affiliates, and no creditor who makes a loan
to the LLC or any of its Affiliates may have or acquire (except pursuant to the
terms of a separate agreement executed by the LLC in favor of such creditor) at
any time as a result of making the loan any direct or indirect interest in Net
Income, Net Losses, Distributions, capital or property other than as a secured
creditor. Except to the extent contemplated by Section 10.05, there are no third
party beneficiaries having rights under or with respect to this Agreement.
SECTION 11.12. Waiver. No failure by any party to insist upon the
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute a waiver of any such breach or any other covenant, duty,
agreement or condition.
SECTION 11.13. Entire Agreement. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
SECTION 11.14. Delivery by Facsimile. This Agreement, the agreements
referred to herein, and each other agreement or instrument entered into in
connection herewith or therewith or contemplated hereby or thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall reexecute original forms thereof and deliver
them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
SECTION 11.15. Waiver of Certain Rights. Each Member irrevocably
waives any right it may have to demand any Distributions or withdrawal of
property from the LLC or to maintain any action for dissolution (except pursuant
to Section 18-802 of the Delaware Act) of the LLC or for partition of the
property of the LLC.
SECTION 11.16. Survival. Section 10.01 (Limitation of Liability) and
Section 10.05 (Indemnification) shall survive and continue in full force in
accordance
37
with its terms notwithstanding any termination of this Agreement or the
dissolution of the LLC.
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
BIOFUEL ENERGY CORP.,
by
___________________________________
Name:
Title:
Address for Notices:
BioFuel Energy Corp.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention of Xxxxxxx X. Xxxxxxxxxxxxx
Fax: (000) 000-0000
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
GREENLIGHT CAPITAL, L.P.,
by GREENLIGHT CAPITAL, LLC, its
general partner,
by
___________________________________
Name:
Title:
GREENLIGHT CAPITAL QUALIFIED, L.P.,
by GREENLIGHT CAPITAL, LLC, its
general partner,
by
_______________________________
Name:
Title:
Address for Notices:
c/o GREENLIGHT CAPITAL, INC.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention of Chief Operating Officer
With a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention of Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
THIRD POINT PARTNERS L.P.,
by THIRD POINT ADVISORS L.L.C.,
its general partner,
by
_________________________________
Name:
Title:
THIRD POINT PARTNERS QUALIFIED, L.P.,
by THIRD POINT ADVISORS L.L.C.,
its general partner,
by
_________________________________
Name:
Title:
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of Xxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
Name: Xxxxxx X. Xxxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
SFI L.P.,
by
___________________________________
Name:
Title: General Partner
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
XXXXX AND XXXX XXXXXX FOUNDATION,
by
___________________________________
Name:
Title:
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxxx X. Xxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxx X. Xxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxxx Xxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxx X. Xxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxx X. Xxxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxxx X. Xxxxx
Address for Notices:
00000 XXX 00
Xxxxxxxxx Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxxxx X. Xxxxxxx, Xx.
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxxxx X. Xxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
JonAlan C. Page
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxx X. Xxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxxxxx X. Xxxxxxxxxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
IN WITNESS WHEREOF, the undersigned has executed or caused to be
executed on his behalf this Second Amended and Restated Limited Liability
Company Agreement as of the date first above written.
_______________________________________
Xxxx X. Xxxxxxxxx
Address for Notices:
_______________________________________
_______________________________________
_______________________________________
SCHEDULE A
UNIT OWNERSHIP
EFFECTIVE TIME SPECIFIED A UNIT
INVESTOR UNITS UNITS PERCENTAGE PERCENTAGE
Capital, L.P.
Capital Qualified, L.P.
BioFuel Energy Corp. (formerly BFE Holdings, Inc.)
Third Point Partners L.P.
Third Point Partners Qualified L.P.
Xxxxxx X. Xxxx
Xxxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
WCIOSAQ Corp.
SFI L.P.
Xxxxx and Xxxx Xxxxxx Foundation
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxx
BioFuel Partners, LLC
Xxxx X. Xxxxxxxxx
JonAlan C. Page
Ethanol Business Group, LLC
A-1
EFFECTIVE TIME SPECIFIED A UNIT
INVESTOR UNITS UNITS PERCENTAGE PERCENTAGE
Xxxxxxx X. Xxxxxxxxxxxxx
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx Biofuels Investments, LLC
Reserved Units
TOTAL
A-2
SCHEDULE B
MANAGEMENT MEMBERS
INVESTOR UNITS
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
XxxXxxx X. Page
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxxxxxx
Xxxx X. Xxxxxxxxx
B-1
SCHEDULE C
BIOFUEL ENERGY, LLC
THE UNITS REPRESENTED BY THIS LLC CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES
LAWS ("STATE ACTS") AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR TRANSFERRED OR
OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION UNDER THE ACT OR STATE
ACTS OR AN EXEMPTION THEREFROM. THE TRANSFER OF THE UNITS REPRESENTED BY THIS
LLC CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE SECOND AMENDED AND
RESTATED LIMITED LIABILITY COMPANY AGREEMENT, DATED AS OF [__________], AS
AMENDED AND MODIFIED FROM TIME TO TIME, GOVERNING THE ISSUER (THE "COMPANY") AND
BY AND AMONG CERTAIN INVESTORS. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY
THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
LLC Certificate Number ____ ____ of Units
BIOFUEL ENERGY, LLC, a Delaware limited liability company (the "Company"),
hereby certifies that ______________________________(the "Holder") is the
registered owner of _____ Units in the Company (the "Units"). THE RIGHTS,
POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND
LIMITATIONS OF THE UNITS ARE SET FORTH IN, AND THIS LLC CERTIFICATE AND THE
UNITS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE
TERMS AND PROVISIONS OF, THE SECOND AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT, DATED AS OF [__________], AS AMENDED AND MODIFIED FROM TIME
TO TIME, (THE "AGREEMENT"). THE TRANSFER OF THIS LLC CERTIFICATE AND THE UNITS
REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of
this LLC Certificate, and as a condition to being entitled to any rights and/or
benefits with respect to the Units evidenced hereby, the Holder is deemed to
have agreed to comply with and be bound by all the terms and conditions of the
Agreement. The Company will furnish a copy of the Agreement to the Holder
without charge upon written request to the Company at its principal place of
business. The Company maintains books for the purpose of registering the
transfer of Units.
C-1
This LLC Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to principles of conflicts of
laws.
IN WITNESS WHEREOF, the Company has caused this LLC Certificate to be
executed by the Manager on behalf of the Company as of the date set forth below.
Dated: _____________________
BIOFUEL ENERGY, LLC, a Delaware limited liability
company,
by: BioFuel Energy Corp., its Manager,
by:
____________________________________
Name:
Title:
C-2
(REVERSE SIDE OF CERTIFICATE
FOR UNITS OF BIOFUEL ENERGY, LLC)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________________________________ (print or typewrite
name of Transferee), __________________ (insert Social Security or other
taxpayer identification number of Transferee), the following number of Units:
______________ (identify the number of Units being transferred), and irrevocably
constitutes and appoints __________________________, as attorney-in-fact, to
transfer the same on the books and records of the Company, with full power of
substitution in the premises.
Dated: ______________________ Signature:______________________________
(Transferor)
Addresses:
C-3
