OPERATING AGREEMENT
OF
EGLOBE/OASIS RESERVATIONS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
OPERATING AGREEMENT
OF
EGLOBE/OASIS RESERVATIONS LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
THIS OPERATING AGREEMENT is made and entered into as of this _____ day
of September, 1999 (the "Agreement"), by and between EGLOBE/OASIS, INC., a
Delaware corporation ("EOI"), and OUTSOURCED AUTOMATED RESERVATIONS AND
INTEGRATED SOLUTIONS INC., a Delaware corporation ("OASIS").
RECITALS:
A. EOI and OASIS desire to form a limited liability company (the
"Company") pursuant to the terms of this Agreement.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Capitalized Terms. The following capitalized terms used in this
Agreement have the meanings set forth below:
"Act" means the Delaware Limited Liability Company Act, as the same
may be amended from time to time.
"Affiliate" means any Person who directly or indirectly controls,
is controlled by, or is under common control with, another Person.
"Agreement" means this Agreement as it may be amended from time to
time.
"Bankruptcy" or "Bankrupt" means, with respect to any Person, a
Person making an assignment for the benefit of creditors, becoming a party in
any manner to any liquidation or dissolution action or proceeding with respect
to such Person or any bankruptcy, reorganization, insolvency or other proceeding
for the relief of financially distressed debtors with respect to such Person, or
a receiver, liquidator, custodian or trustee being appointed for such Person or
a substantial part of such Person's assets and, if any of the same occur
involuntarily, the same not being dismissed,
stayed or discharged within 20 days; or the entry of an order for relief against
such Person under Title 11 of the United States Code or any state bankruptcy or
insolvency proceeding. A Person shall be deemed Bankrupt if the Bankruptcy of
such Person shall have occurred.
"Board of Directors," "Board" or "Directors" means those
individuals elected to serve as Directors by the Members pursuant to the term of
this Agreement. Directors need not be Members.
"Capital Account" means, as to any Member, the capital account
maintained for each Member in accordance with Section 6.1 of this Agreement.
"Capital Cash Flow from ORS" means all cash or other property
received by the Company from (i) any sale or disposition of the ORS Shares; (ii)
any sale or other disposition of the assets of ORS (other than sales or
dispositions in the ordinary course of business) to the extent the proceeds are
not applied to the reduction of the liabilities of ORS; (iii) any damage,
condemnation and insurance recoveries of ORS to the extent not used to restore
or replace the applicable property or applied to the reduction of liabilities of
ORS; and (iv) any financing or refinancing by ORS not applied to the reduction
of the liabilities of ORS or to improving or expanding the business of ORS.
"Cash Flow from the EGLOBE Securities" means all cash or other
property received by the Company from any sale or other disposition of the
EGLOBE Securities (other than the exchange of the EGLOBE Securities under
Sections 11.6 or 11.7).
"Capital Contribution" means, as to each Member, the amount of
capital contributed by such Member in accordance with Article 4 of this
Agreement. Any reference in this Agreement to the Capital Contribution of a
Member shall include the Capital Contributions made by any predecessor in
interest of such Member in respect of the Interests of such Member.
"Certificate of Formation" means the Certificate of Formation
of the Company filed with the Delaware Secretary of State in accordance with the
Act, as the same may be amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contribution Agreement" means that certain Contribution
Agreement dated as of September __, 1999 by and among the Company, EGLOBE, EOI,
OASIS and ORS.
"EBITDA" means, for any period, consolidated earnings from
continuing operations before interest, taxes and depreciation and amortization,
determined in accordance with generally accepted accounting principles,
consistently applied.
"EGLOBE" means EGLOBE, INC., a Delaware corporation.
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"EOI" means EGLOBE/OASIS, INC., a Delaware corporation.
"EGLOBE Common Stock" means the shares of Common Stock, par
value $.001 per share, of EGLOBE to be contributed to the Company by EGLOBE
under the Contribution Agreement. Any references in this Agreement to shares of
EGLOBE Common Stock shall include any securities or other property into which
such shares may be converted.
"EGLOBE Securities" means the shares of EGLOBE Common Stock
and EGLOBE Warrants to be contributed to the Company by EGLOBE under the
Contribution Agreement (including any shares of EGLOBE Common Stock issuable
under the EGLOBE Warrants).
"EGLOBE Warrants" means the warrants of EGLOBE to be
contributed to the Company under the Contribution Agreement.
"Entity" means a Person other than a natural person and
includes, without limitation, corporations (both non-profit and other
corporations), partnerships (both limited, limited liability, general), trusts,
joint ventures, limited liability companies, and unincorporated associations.
"Fiscal Year" has the meaning set forth in Section 9.4 of this
Agreement.
"Interests" means the limited liability company interests of a
Member in the Company at any particular time, including the right of such Member
to any and all benefits to which a Member may be entitled under this Agreement,
together with the obligations of such Member to comply with all of terms and
provisions of this Agreement.
"Members" means EOI and OASIS, and all other Persons admitted
as additional or substituted Members pursuant to this Agreement, so long as they
remain Members.
"Member Nonrecourse Debt" as used herein shall have the same
meaning as the term Apartner nonrecourse debt" in Regulations Section
1.704-2(b)(4).
"Member Nonrecourse Debt Minimum Gain" as used herein shall
have the same meaning as the term "partner nonrecourse debt minimum gain" in
Regulations Section 1.704-2(i)(2) and shall be determined in the manner set
forth in Regulations Section 1.704-2(i)(3).
"Minimum Gain" as used herein shall have the same meaning as
the term "partnership minimum gain" in Regulations Section 1.704-2(b)(2) and
(d).
"Net Profits" or "Net Losses" as used herein shall mean for
each fiscal year the Company's taxable income or loss determined under Code
Section 703(a) and adjusted as follows:
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(a) Tax exempt income of the Company shall increase Net
Profits and shall decrease Net Losses.
(b) Expenditures described in Regulations Section
1.704-1(b)(2)(iv)(i) shall decrease Net Profits and increase Net Losses.
(c) If the value of property of the Company reflected in the
Members' Capital Accounts is adjusted in accordance with Sections 6.1(c)(i) or
(ii) or 6.1(d) hereof, the amount of such adjustment shall be treated as a gain
or loss in determining Net Profits or Net Losses.
(d) If the value of property of the Company reflected in the
Members' Capital Accounts is adjusted pursuant to Section 6.1(c) or (d), the
Company disposes of such property, and such disposition results in a gain or
loss that is recognized for federal income tax purposes, then such gain or loss
shall be computed by using the value of such property as it is reflected in the
Members' Capital Accounts in lieu of the tax basis of such property.
(e) If the value of property of the Company as reflected in
the Members' Capital Accounts is adjusted in accordance with Section 6.1(c), the
amount of depreciation, depletion, or amortization for such property shall be
the Revised Depreciation.
(f) If an adjustment of the Members' Capital Accounts is
required by Treasury Regulations Section 1.704-1(b)(2)(iv)(m) because of a
distribution to a Member other than a distribution in liquidation of such
Member's Interest, the amount of such adjustment shall be treated for purposes
of determining Net Profits or Net Losses as gain, if it increases the tax basis
of property of the Company, or as a loss, if decreases the tax basis of such
property of the Company.
(g) None of the allocations set forth in Sections 6.3 through
6.9 shall be taken into account in determining Net Profits and Net Losses.
"Nonrecourse Deductions" has the meaning set forth in Treasury
Regulation Section 1.704-2(c).
"OASIS" means Outsourced Automated Reservations and Integrated
Solutions, Inc., a Delaware corporation.
"OASIS Loan" means that certain loan of $451,400 to be made by
OASIS to ORS pursuant to the terms of the Contribution Agreement.
"Officers" are those persons appointed as officers of the
Company and ORS under the terms of this Agreement.
"Operating Cash Flow From ORS" means all cash or other
property received by the Company from any source (excluding Capital Cash Flow
from ORS and Cash Flow from the
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EGLOBE Securities), reduced by cash applied: (i) to pay all of the expenses of
the Company, including debt service, operating expenses and capital
expenditures; and (ii) to establish a working capital reserve for future
expenses of the Company, including debt service, operating expenses and capital
expenditures, which reserve shall be in a reasonable amount to be determined by
the Directors.
"ORS" means Oasis Reservations Services, Inc., a Delaware
corporation.
"ORS Shares" means the shares of the capital stock of ORS to
be contributed to the Company by OASIS under the Contribution Agreement.
"Residual Interest" means that part of the Interest of OASIS
in the Company which has the rights set forth in Sections 7.1(d) and 8.4( c).
"Treasury Regulations" means the regulations of the U.S.
Department of the Treasury promulgated under the Code, as such Treasury
Regulations may be amended from time to time (including corresponding provisions
of succeeding regulations).
"Transfer" has the meaning given to such term in Section 11.1
of this Agreement.
ARTICLE 2
ORGANIZATIONAL MATTERS
2.1 Formation. Subject to the terms and conditions of this Agreement,
the parties hereby form the Company as a limited liability company pursuant to
the provisions of the Act. The rights and duties of the Members, and the affairs
of the Company, shall be governed by the provisions of this Agreement and the
Act.
2.2 Certificate of Formation and Related Documents. As soon as possible
after the execution of this Agreement, the Members shall cause an Amended and
Restated Certificate of Formation (the "Amended Certificate") to be filed in the
Secretary of State of the State of Delaware in accordance with the requirements
of the Act. The Amended Certificate shall reiterate the provisions of Sections
8.1, 8.2 and 8.4 of this Agreement. From time to time, the Members shall execute
such certificates, qualifications to do business, fictitious name certificates,
or similar filings in such jurisdictions as the Board of Directors may determine
from time to time to be necessary or appropriate in connection with the conduct
of the business of the Company or to provide notification of the limitation of
liability of Members under applicable law.
2.3 Name. The name of the Company shall be "eGlobe/Oasis Reservations
LLC."
2.4 Principal Office. The principal office of the Company shall be
located at 0000 00xx Xxxxxx, X.X. , Xxxxx 000, Xxxxxxxxxx, X.X. 00000, or such
other location as the Board of Directors
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may from time to time determine. The Company shall promptly notify the Members
of any change in the Company's principal office.
2.5 Other Offices. The Company may have such other offices as the Board
of Directors may from time to time determine.
2.6 Term. The existence of the Company shall continue until the Company
is dissolved in accordance with the terms of this Agreement or the Act.
2.7 Registered Agent and Registered Office. The initial registered
agent and registered office of the Company is The Corporation Trust Company, 000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
2.8 Change of Registered Agent or Registered Office. The registered
agent and the registered office may be changed from time to time at the
direction of the Board of Directors.
ARTICLE 3
PURPOSE AND POWERS
3.1 Purpose of the Company. The Company is organized for the following
purposes:
(a) To acquire the ORS Shares pursuant to the terms of the
Contribution Agreement; and
(b) To acquire the EGLOBE Securities pursuant to the Contribution
Agreement; and
(c) To conduct, exclusively through ORS, the business currently
conducted and proposed to be conducted by ORS, and any activity incidental
thereto.
3.2 Powers. The Company shall have all powers of a limited liability
company under the Act and the power to do all things necessary or convenient to
accomplish its purposes as set forth in Section 3.1.
ARTICLE 4
CAPITAL CONTRIBUTIONS
4.1 Required Capital Contributions.
(a) Upon the execution of this Agreement, OASIS shall contribute to
the Company all of the outstanding capital stock of ORS, pursuant to the terms
of the Contribution Agreement.
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(b) Upon the execution of this Agreement, EOI shall contribute to
the Company shares of EGLOBE Common Stock, and the EGLOBE Warrants, pursuant to
the terms of the Contribution Agreement.
4.2 Additional Capital Contributions. The Members shall not be required
or permitted to make any additional Capital Contributions without the prior
approval of all of the Members.
ARTICLE 5
INTERESTS IN THE COMPANY
5.1 Interests in the Company. In exchange for the Capital Contributions
to be made by the Members under Section 4.1, OASIS and EOI shall receive the
Interests described in this Agreement.
ARTICLE 6
CAPITAL ACCOUNTS AND ALLOCATIONS
6.1 Capital Accounts; Maintenance Generally. A Capital Account shall be
maintained for each Member in accordance with the following provisions:
(a) Upon the Company's receipt of the Capital Contributions
required by Section 4.1, the Capital Account of OASIS shall be credited with an
initial balance equal to its stockholder's equity as of the date of this
Agreement, and the Capital Account of EOI shall be credited with an initial
balance of $3,000,000. Thereafter, each Member's Capital Account shall be
increased by (i) the amount of money contributed by such Member to the Company;
(ii) the fair market value of property contributed by such Member to the Company
(net of liabilities secured by such contributed property that the Company is
considered to assume or take subject to under Code Section 752), and (iii) the
allocations to such Member of Net Profits and the amount of any items of income
and gain allocated to such Members under Section 6.2 through 6.9 hereof.
(b) Each Member's Capital Account shall be decreased by (i) the
amount of money distributed to such Member by the Company, (ii) the fair market
value of property distributed to such Member by the Company (net of liabilities
secured by such distributed property that such a Member is considered to assume
or take subject to under Code Section 752), and (iii) such Member's distributive
share of Net Losses and the amount of any items of deduction or loss allocated
to such Member under Sections 6.2 through 6.9.
(c) The value of all items of property reflected in the Capital
Accounts of the Members shall be adjusted to their fair market values and such
adjustment shall be reflected in the Capital Accounts of the Members as part of
Net Profits or Net Losses or under Section 6.9 hereof, as the case may be, as of
the following times:
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(i) in connection with a contribution of money or other
property (other than a de minimis amount) to the Company by a new or existing
Member as consideration for an Interest in the Company; and
(ii) in connection with a liquidation of the Company within the
meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g) or a distribution
of money or other property (other than a de minimis amount) by the Company to a
retiring or continuing Member as consideration for an interest in the Company;
(iii) in connection with adjustments to the basis of property
of the Company pursuant to Code Section 734(b) or 743(b), but only to the extent
that the Capital Accounts of the Members are adjusted as required in Treasury
Regulations Section 1.704-1(b)(2)(iv)(m).
(d) The value in the Capital Accounts of the Members of an item of
property of the Company that is distributed to a Member shall, immediately prior
to such distribution, be adjusted to its fair market value and such adjustment
shall be reflected in the Capital Accounts of the Members as part of Net Profits
or Net Losses.
(e) Any Member who shall acquire Interests in the Company by means
of a transfer to such Member of all or a part of the Interests of another
Member, shall have a Capital Account which reflects the Capital Account of the
transferred Interests.
(f) Notwithstanding any provision in this Agreement to the
contrary, the Members intend that each Member's Capital Account shall be
maintained and adjusted in accordance with the Code and the Treasury
Regulations, including, without limitation, (i) the adjustments permitted or
required by Code Section 704(b) and, to the extent applicable, the principles
expressed in Code Section 704(c); and (ii) the adjustments required to maintain
Capital Accounts in accordance with the "substantial economic effect test" set
forth in the Treasury Regulations under Code Section 704(b).
6.2 Allocations of Net Profits and Net Losses. After the allocations
required by Sections 6.3 through 6.9 hereof have been made, Net Profits and Net
Losses shall be allocated among the Members as follows:
(a) Net Profits shall be allocated to the Members (i) first, to
each Member, in proportion to, and to the extent of, the amounts by which the
aggregate amount distributed to each Member pursuant to Section 7.1 exceeds the
aggregate amount of Net Income allocated to such Member pursuant to this Section
6.2(a)(i); (ii) second, to the extent of, and in proportion to, the amount by
which the aggregate amount of Net Losses allocated to each Member pursuant to
Section 6.2(b) exceeds the aggregate amount of Net Income allocated to each
Member pursuant to this Section 6.2(a)(ii), until each Member has been allocated
sufficient Net Profit to reverse the prior Net Losses allocated to such Member;
and (iii) thereafter, 90% to EOI and 10% to OASIS, unless distributions are then
being made pursuant to Section 7.1(c), in which case all further allocations of
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Net Income pursuant to this Section 6.2(a)(iii) shall be made 99% to OASIS and
1% to EOI, or unless distributions are then being made pursuant to Section
7.1(d), in which case all further allocations of Net Income pursuant to this
Section 6.2(a)(iii) shall be made to EOI.
(b) Net Losses shall be allocated to the Members (i) first, to the
extent of, and in proportion to, the amounts (if any) by which the aggregate
amount of Net Income allocated to each Member pursuant to Section 6.2(a)(iii)
exceeds the aggregate amount of Net Loss allocated to each Member pursuant to
this Section 6.2(b)(i); and (ii) thereafter, 90% to EOI and 10% to OASIS, unless
distributions are then being made pursuant to Section 7.1(c), in which case all
further allocations of Net Losses pursuant to this Section 6.2(b)(ii) shall be
made 99% to OASIS and 1% to EOI, or unless distributions are then being made
pursuant to Section 7.1(d), in which case all further allocations of Net Losses
pursuant to this Section 6.2(b)(ii) shall be made to EGLOBE.
6.3 Minimum Gain Chargeback. If there is a net decrease in Minimum Gain
for a fiscal year, to the extent required in Treasury Regulations Section
1.704-2(f), each Member shall be allocated items of income and gain for such
fiscal year, and if necessary, for subsequent fiscal years in accordance with
Treasury Regulations Section 1.704-2(j)2(iii), equal to the Member's share of
the net decrease in Minimum Gain within the meaning of Treasury Regulations
Section 1.701-2(g)(2). The items of income and gain to be allocated pursuant to
this Section 6.3 are intended to constitute a "minimum gain chargeback" within
the meaning of Treasury Regulations Section 1.704-2(f).
6.4 Member Nonrecourse Debt Minimum Gain Chargeback. If there is a net
decrease in Member Nonrecourse Debt Minimum Gain for a fiscal year, to the
extent required in Treasury Regulations Section 1.704-2(i)(4), each Member with
a share of that Member Nonrecourse Debt Minimum Gain, determined in accordance
with Treasury Regulations Section 1.704-2(i)(5), as of the beginning of such
fiscal year shall be allocated items of income and gain for such fiscal year,
and if necessary for subsequent fiscal years in accordance with Treasury
Regulations Section 1.704-2(j)2(iii), equal to the Member's share of the net
decrease in Member Nonrecourse Debt Minimum Gain, determined in accordance with
Treasury Regulations Section 1.704-2(i)(4). The items of income and gain to be
allocated pursuant to this Section shall be those items described in Treasury
Regulations Section 1.704-2(i)(4) and (j)(2). This Section 6.4 is intended to
constitute a "partner nonrecourse debt minimum gain chargeback" within the
meanings of Treasury Regulations Section 1.704-2(i)(4).
6.5 Qualified Income Offset. If a Member unexpectedly receives an
adjustment, allocation, or distribution described in Treasury Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), such Member shall be allocated
items of income and gain (consisting of a pro rata portion of each item of the
income, including gross income, and gain of the Company for such fiscal year) in
an amount and manner sufficient to eliminate as quickly as possible and to the
extent required by the Treasury Regulations, the deficit Capital Account balance
of such Member in excess of the amounts that such Member is deemed obligated to
restore pursuant to Treasury Regulations Section 1.704-2(g)(1) and (Section)
1.704-2(i)(5). The allocations made pursuant to this Section 6.5 shall be made
after all other allocations pursuant to Sections 6.2 through 6.4 and 6.7 through
6.9 have been made.
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This Section 6.5 constitutes a "qualified income offset" within the meaning of
Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
6.6 Gross Income Allocation. In the event that any Member has a deficit
Capital Account at the end of any fiscal year in excess of the amount that such
Member is deemed obligated to restore pursuant to Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be allocated items of
income and gain in the amount of such excess. The allocations made pursuant to
this Section 6.6 shall be made after all other allocations pursuant to Sections
6.2 through 6.5 and 6.7 through 6.9 have been made.
6.7 Allocations of Nonrecourse Deductions. Nonrecourse Deductions for
each taxable year shall be allocated among the Members as follows: (i) 90% to
EGLOBE and (ii) 10% to OASIS.
6.8 Allocations of Treasury Regulations Section 1.704-1(b)(2)(iv)(m)
Adjustments. If an adjustment to the Capital Accounts of the Members is required
by Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) or (4) because of a
distribution in complete liquidation of a Member's Interest, the amount of such
adjustment shall be treated as an item of gain, if it increases the tax basis of
property of the Company, or as an item of loss, it if decreases the tax basis of
property of the Company. If Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2)
applies to the adjustment to the Capital Accounts, such items of gain or loss
shall be allocated to the Members in accordance with their Percentage Interests.
If Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies to the
adjustment to the Capital Accounts, such items of gain or loss shall be
allocated to the Member receiving the distributions.
6.9 Code Section 704(c) Tax Allocations. Solely for tax purposes, and
in accordance with Code Section 704(c), income, gain, loss, and deductions with
respect to property contributed to the Company by a Member shall be shared among
the Members so as to take account of the variation between the basis of the
property to the Company for federal income tax purposes and its fair market
value at the time of its contribution. If the value of any property of the
Company reflected in the Members' Capital Accounts is adjusted pursuant to
Section 6.2(c)(i) or (ii), thereafter, allocations of depreciation, depletion,
amortization, and gain or loss with respect to such property shall be determined
so as to take into account the variation between the adjusted tax basis and the
adjusted value of such property as reflected in the Members' Capital Accounts in
the same manner as under Code Section 704(c).
ARTICLE 7
DISTRIBUTION TO MEMBERS
7.1 Distributions.
(a) The Company shall make distributions to the Members at such
times and in such amounts as may be approved by the Directors, except that: (i)
prior to any Bankruptcy of any
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Member, the Company or EGLOBE, the Company shall promptly distribute to the
Members any Capital Cash Flow from ORS under Section 7.1(b)(iii), and (ii) after
any Bankruptcy of any Member, the Company or EGLOBE, the Company shall promptly
distribute to the Members all cash flow under Section 7.1(c).
(b) Subject to Section 7.1(c) and 7.1(d), distributions shall be
divided among the Members as follows:
(i) The Operating Cash Flow of the Company shall be divided as
follows: 90% to EOI and 10% to OASIS.
(ii) The Cash Flow from the EGLOBE Securities shall be divided
as follows: 90% to EOI and 10% to OASIS.
(iii) The Capital Cash Flow from ORS shall be divided as
follows: (aa) first, 100% to OASIS until OASIS shall have received aggregate
distributions on or after the date of this Agreement in an amount equal to
$9,000,000; and (bb) then, 90% to OASIS and 10% to EGLOBE.
(c) In the event of any Bankruptcy of any Member, the Company or
EGLOBE, the Operating Cash Flow from ORS, the Capital Cash Flow from ORS and
Cash Flow from the EGLOBE Securities shall be divided as follows: 100% to OASIS
until OASIS shall have received aggregate distributions on or after the date of
this Agreement in an amount equal to $15,000,000; and then (i) 99% to OASIS and
(ii) 1% to EGLOBE.
(d) After the exchange of the Interest of OASIS ( other than the
Residual Interest) under Sections 11.6, 11.7 or 11.8, OASIS shall have the right
to receive, with respect to its Residual Interest, annual distributions from the
Company equal to $1,000 per calendar year.
7.2 Return of Capital. Except as herein provided with respect to
distributions during the term of the Company or following dissolution, no Member
has the right to demand a return of such Member's Capital Contribution (or the
balance of such Member's Capital Account). Further, no Member has the right (i)
to demand and receive any distribution from the Company in any form other than
cash or (ii) to bring an action of partition against the Company or its
property.
7.3 Limitations on Distributions. Notwithstanding any other provisions
of this Article 7, the Company shall not make any distributions of money or
property unless: (i) after such distribution is made, the fair market value of
the Company's assets exceeds its total liabilities; and (ii) such distribution
does not otherwise contravene any provision of law applicable to the Company.
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ARTICLE 8
MANAGEMENT OF THE COMPANY AND ORS
8.1 Control of Business. Subject to the limitations contained in
Section 8.4, and the provisions of the Act, (i) the business and affairs of the
Company and ORS shall be managed or under the direction of the Board of
Directors, and (ii) the power to act for and bind the Company and ORS shall be
vested exclusively in the Board of Directors, subject to the authority of the
Board of Directors to delegate powers and duties to the Officers as set forth in
this Agreement.
8.2 Directors.
(a) Subject to the provisions of Section 8.2(b) and Section 8.2
(d), the Company and ORS shall have three (3) Directors. EOI shall have the
right to appoint two (2) of these Directors, and OASIS shall have the right to
appoint one (1) of these Directors.
(b) Subject to Section 8.2(d), on and after any bankruptcy of
EGLOBE or EOI, the Company and ORS shall have five (5) Directors. EOI shall have
the right to appoint two (2) of these Directors and OASIS shall have the right
to appoint three (3) of these Directors.
(c) Each Director may be removed at any time by the Member who
appointed such Director. Upon the death, resignation or removal of a Director,
the Member that appointed him or her shall promptly appoint his or her
successor.
(d) In the event that the Interest of OASIS in the Company (other
than the Residual Interest) is exchanged pursuant to Sections 11.6, 11.7 or
11.8, then EOI shall be entitled to appoint all of the Directors of the Company.
8.3 Officers.
(a) Authority and Duties. The Officers shall have the authority to
manage and control the day to day operations of the business and affairs of the
Company and ORS and to do all things necessary or convenient to carry out the
business and affairs of the Company and ORS, subject in all cases to the
authority of the Board of Directors and the limitations set forth in Section 8.4
of this Agreement. The Officers shall have the duties set forth in this Section
8.3 and such other duties as may be assigned to them from time to time by the
Board of Directors.
(b) President. The President shall have the powers and duties of
supervision and management usually vested in the office of the chief executive
officer and shall have and perform
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such other duties as may from time to time be assigned by the Board of
Directors. The President shall preside at all meetings of the Members and the
Board of Directors.
(c) Vice Presidents. The Vice Presidents, when appointed by
the Board of Directors, shall have such powers and perform such duties as the
Board of Directors and the President may from time to time assign to them. In
the absence of the President, the Vice Presidents, in the order of their rank as
established by the Board of Directors, shall perform the duties of the President
and, when so acting, shall have all the powers of, and be subject to all the
limitations imposed upon, the President.
(d) Secretary. The Secretary shall attend all meetings of the
Members and the Board of Directors and shall keep true and accurate records of
such meetings. The Secretary shall give notice of all meetings of the Members or
the Board of Directors. The Secretary shall have such other powers and perform
such other duties as the Board of Directors or President may from time to time
assign to the Secretary.
(e) Treasurer. The Treasurer shall keep and maintain or cause
to be kept and maintained accurate and complete books and records of accounts
for the Company and ORS. Subject to the authority of the Board of Directors and
the President, the Treasurer shall manage and oversee all monetary assets of the
Company including cash, short-term investments and money market funds.
8.4 Limitation of Authority of the Board of Directors and Officers.
(a) Subject to Section 8.4(c), notwithstanding the general
authority of the Board of Directors under Section 8.1 and the limited authority
of the Officers under Section 8.3, the following matters shall require the prior
written consent of all Directors and Members:
(i) the merger or consolidation of the Company or ORS with or
into any other entity;
(ii) the sale, exchange or other transfer of all or any
substantial part of the assets of the Company or ORS;
(iii) any sale, exchange or other transfer of the EGLOBE
Shares, other than pursuant to Sections 11.6 or 11.7.
(iv) any sale, exchange or other transfer of the ORS Shares,
other than pursuant to Sections 11.8 or 12.3;
(v) the incurrence or assumption by the Company or ORS,
directly or indirectly, as principal or guarantor, of any indebtedness of any
kind, except for (i) indebtedness of ORS existing as of the date of this
Agreement; (ii) the OASIS Loan; or (iii) any additional
13
indebtedness incurred by ORS on or after the date of this Agreement, provided
that the proceeds of such additional indebtedness is utilized exclusively for
the benefit of ORS and further provided, that the aggregate amount of such
additional indebtedness which is outstanding does not exceed an amount equal to
120% of the gross revenues of ORS during the most recently computed calendar
month (the additional indebtedness which may be incurred by ORS under this
subsection (iii) shall not include any indebtedness with respect to the OASIS
Loan);
(vi) the grant of any lien on any of the assets of the Company
or ORS, except for liens on the assets of ORS which encumber indebtedness
permitted by Section 8.4(a)(v);
(vii) any transactions between the Company or ORS, and any
Member, Director or Officer or any of their Affiliates, including but not
limited to any loans, guarantees, advances, payments or transfers of any kind;
except for the following transactions which do not require the prior approval of
all Directors and Members: (aa) transactions expressly authorized by the other
provisions of this Agreement or (bb) the provision of telecommunication services
by EGLOBE or its Affiliates on terms and conditions (including price) which are
at least as favorable as those available to the Company from unaffiliated third
parties;
(viii) the making of any distributions, loans or advances by
the Company to the Members (except as required by Section 7.1);
(ix) the making of any distributions, loans or advances by ORS
to the Company (except as required by Section 7.1); or
(x) any material change in the nature of the business proposed
to be conducted by the Company or ORS as of the date of this Agreement;
(b) Subject to Section 8.4(c), notwithstanding the general
authority of the Board of Directors under Section 8.1 and the limited authority
of the Officers under Section 8.3, neither the Company nor ORS (while a
subsidiary of the Company) shall take any of the actions listed below without
the prior written consent of all Members:
(i) the commencement of any case, proceeding or other action
on behalf of the Company or ORS under any existing or future law of any
jurisdiction relating to bankruptcy, insolvency, reorganization or relief of
debtors; the institution of any proceedings that have the Company or ORS
adjudicated as bankrupt or insolvent or result in the entry of an order for
relief; the consenting to the institution of bankruptcy or insolvency
proceedings against the Company or ORS; the filing of a petition or consenting
to a petition seeking reorganization, arrangement, adjustment, winding-up,
dissolution, composition, liquidation or other similar relief on behalf of the
Company or ORS of its debts under any federal or state law relating to
bankruptcy; seeking or consenting to the appointment of a receiver, conservator,
liquidator, assignee, trustee, sequestrator, custodian or any similar official
for the Company or ORS or any portion of its properties or assets; the making of
any assignment for the benefit of the creditors of the Company or ORS; or the
14
admission in writing by the Company or ORS of its inability to pay its debts
generally as they become due or the declaration of a moratorium on the payment
of its debts.
(c) In the event that the Interest of OASIS in the Company (other
than the Residual Interest) is exchanged pursuant to Sections 11.6, 11.7 or 11.8
of this Agreement, OASIS shall not have any rights granted to Members under
Section 8.4(a), but, until the repurchase of the Residual Interest, OASIS shall
continue to have the rights granted to Members under Section 8.4(b); including
the right to prohibit any of the actions listed in Section 8.4(b).
(d) The provisions of this Section 8.4, to the extent they purport
to restrict the activities of ORS, shall only apply to ORS while a majority of
the common stock of ORS is owned by the Company.
8.5 OASIS Loan. OASIS shall loan the amount of $481,400 to the Company
pursuant to the terms of the Contribution Agreement.
8.6 Other Loans from Members. Subject to the limitations of Section
8.4, the Company may borrow additional amounts from the Members on the following
terms: (i) each loan shall bear interest at the rate of 7% per annum, payable
quarterly; (ii) the principal amount of each loan shall be due and payable 36
months after the date of the loan (except that the due date may be accelerated
in the event of the sale of ORS); and (iii) each loan will be unsecured.
8.7 Performance of Duties by Directors and Officers.
(a) The Directors and Officers shall perform their duties in good
faith, in a manner reasonably believed by them to be in the best interests of
the Company, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances. In performing their duties, the
Directors and Officers shall be entitled to rely upon information, opinions,
reports, or statements including financial statements and other financial data,
in each case prepared or presented by:
(i) one or more Officers or agents of the Company whom they
reasonably believes to be reliable and competent in the matters presented; or
(ii) counsel, public accountants or other persons as to matters
which they reasonably believes to be within such person's professional or expert
competence.
(b) The Directors and Officers shall not be considered to be acting
in good faith if they have knowledge concerning the matter in question that
would cause such reliance described in the preceding paragraph to be
unwarranted.
8.8 Limitations on Liability of Members, Directors and Officers. No
Members, Directors and Officers of the Company shall have any liability to the
Company or the Members for any losses
15
sustained or liabilities incurred as a result of any act or omission of such
person if (i) the person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the interests of the Company
and (ii) the conduct of the person did not constitute actual fraud, gross
negligence, or willful misconduct.
8.9 Liability to Third Parties. The debts, obligations, and liabilities
of the Company, whether arising in contract, tort, or otherwise, shall be solely
the debts, obligations, and liabilities of the Company, and the Members,
Directors and Officers shall not be obligated personally for any such debt,
obligation, or liability by reason of acting as a Member, Director of Officer of
the Company.
8.10 Indemnification.
(a) To the maximum extent permitted by law, the Company shall
defend, indemnify and hold harmless the Directors and Officers and the employees
and agents of the Company (each, an "Indemnitee") from and against any and all
losses, claims, demands, costs, damages, liabilities, and expenses of any nature
(including attorney's fees and disbursements), judgments, fines, settlements,
penalties and other expenses actually and reasonably incurred by the Indemnitee,
by reason of the fact that the Indemnitee is or was a Director or Officer of the
Company or is or was an employee or agent of the Company, arising out of or
incidental to the business of the Company provided that (i) the Indemnitee's
conduct did not constitute willful misconduct; (ii) the action is not based on a
breach of this Agreement; (iii) the Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in, or not opposed to, the best
interests of the Company; and (iv) such Indemnitee's conduct was not unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere, or its equivalent,
shall not, in and of itself, create a presumption that the Indemnitee acted in a
manner contrary to that specified above.
(b) Expenses incurred by an Indemnitee in defending any claim,
demand, action, suit or proceeding subject to this Section shall be advanced by
the Company prior to the final disposition of such claim, demand, action, suit
or proceeding upon receipt by the Company upon an undertaking by or on behalf of
the Indemnitee to repay such amount(s) if it shall ultimately be determined that
such Person is not entitled to be indemnified as authorized in this Section.
(c) The indemnification provided by this Section shall be in
addition to any other rights to which the Indemnitee may be entitled under any
agreement, as a matter of law or equity, or otherwise, and shall inure to the
benefit of the successors, assigns, heirs, personal representatives, and
administrators of the Indemnitee.
16
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
9.1 Funds of the Company and ORS. The funds of the Company and ORS
shall be deposited in such bank accounts, or invested in such interest-bearing
or non-interest-bearing investments, including, without limitation, federally
insured checking and savings accounts, certificates of deposit, government
issued or backed securities, or mutual funds investing primarily in such types
of securities, as shall be designated by the Board of Directors. Such funds
shall not be commingled with the funds of any other person.
9.2 Checks, Drafts, Orders for Payment. All checks, drafts, or orders
for the payment of money, notes, or other evidences of indebtedness issued in
the name of the Company and ORS shall be signed by such Officers or other agents
of the Company and in such manner as the Board of Directors shall from time to
time determine.
9.3 Financial Reports. The Company shall prepare and distribute to the
Members as soon as practicable (and in no event later than 45 days) after the
end of each calender month and each Fiscal Year of the Company, an unaudited
balance sheet as at the end of such period, and an unaudited profit and loss
statement for the period ended, each prepared, in accordance with generally
accepted accounting principles, consistently applied.
9.4 Fiscal Year. The Fiscal Year of the Company shall end on December
31.
9.5 Tax Matters Member. EOI shall be the "tax matters" member within
the meaning of Section 6231 of the Code.
9.6 Tax Returns. The Directors shall cause all tax returns for the
Company and ORS to be prepared and timely filed with the appropriate authorities
and, within 60 days after the end of each fiscal year, shall provide to the
Members such information as shall be necessary for the preparation by the
Members of their federal income tax returns.
9.7 Books and Records. The Company shall maintain, and shall cause ORS
to maintain, appropriate books and records with respect to their business. The
books and records shall include (i) books of account; (ii) a current and past
list of the full name and last known mailing address of each Member and each
Officer and Director not a Member of the Company (all Officers and Directors
shall be identified as such on the records); (iii) a copy of the Articles of
Organization and all amendments thereto, together with executed copies of any
powers of attorney pursuant to which any articles of amendment have been
executed; (iv) copies of federal, state and local income tax returns and reports
of the Company and ORS; (v) an executed copy of this Agreement as in effect and
all amendments thereto; (vi) recent financial statements of the Company and ORS
for the three most recent years; and (vii) copies of such other material
instruments and documents as the Officers may executed on behalf of the Company
and ORS. Such books and records shall be kept at the
17
principal office of the Company and ORS, respectively. Each Member shall have
the right, during ordinary business hours, to inspect and copy any of such
records at the requesting Member's expense.
9.8 Accounting. The books of the Company and ORS for financial
reporting purposes shall be maintained on an accrual basis of accounting in
accordance with generally accepted accounting principles, consistently applied.
The Company's books for purposes of maintaining and determining Capital Accounts
shall be maintained in accordance with the provisions of this Agreement, Section
704 of the Code and, to the extent not inconsistent therewith, the principles
described above for financial reporting purposes.
ARTICLE 10
CERTAIN RIGHTS AND OBLIGATIONS OF MEMBERS
10.1 Limited Liability. No Member shall be personally liable for any
debts, liabilities, or obligations of the Company; provided that each Member
shall be responsible (i) for the making of any Capital Contribution required to
be made to the Company by such Member pursuant to the terms of this Agreement;
and (ii) for the amount of any distributions made to such Member that must be
returned to the Company pursuant to the Act.
10.2 Participation in Management. No Member, as such, shall take any
part in the management and control of the business of the Company nor shall any
Member, by reason of its status as such, have any right to transact any business
for the Company or any authority or power to sign for or bind the Company.
Notwithstanding the foregoing, Members shall have the right to approve or
disapprove or otherwise consent or withhold consent with respect to such matters
as are specified in this Agreement or the Act; and provided that Members may
take such actions on behalf of the Company and execute documents or otherwise
bind the Company to the extent, if any, that such powers are delegated to any
such Member by the Directors from time to time.
18
ARTICLE 11
TRANSFER OF INTERESTS
11.1 Restrictions on Transfer.
(a) EOI shall not sell, assign, transfer, pledge, hypothecate,
mortgage, encumber or dispose of (a "Transfer") all or any portion of its
Interest without: (i) the prior written consent of OASIS; and (ii) compliance
with the other terms of this Article 11. Any attempted Transfer by EOI in
violation of this Article 11 shall be null and void.
(b) On or before March 15, 2000, OASIS shall not Transfer all or
any portion of its Interest without: (i) the prior written consent of OASIS, and
(ii) compliance with the other provisions of this Article 11. Any attempted
Transfer in violation of this Section 11.1(b) shall be null and void. The
provisions of this Section 11.1(b) shall not apply to an exchange under sections
11.6, 11.7 or 11.8. After March 31, 2000, OASIS may Transfer its Interest upon
compliance with the provisions of Section 11.5.
(c) Any Member other than EOI and OASIS may Transfer its Interest
in the Company upon compliance with the provisions of Section 11.5.
11.2 Bankruptcy, Dissolution or Death of a Member. The Bankruptcy,
dissolution or death of a Member will not terminate the Company. In the event of
the Bankruptcy, dissolution or death of a Member, its successors in interest
will succeed to its Interest and shall be responsible for all of the liabilities
and obligations of such Member under this Agreement, provided, however, that
such successor in interest shall have no right to participate in the management
of the Company, including any right to elect Directors or to vote in any matters
to be voted on by the Members, unless such successor in interest shall receive
the prior written consent of all of the remaining Members.
11.3 Member Ceasing to be a Member. A Member shall cease to be a Member
only upon the occurrence of one or more of the following events:
(a) A Transfer of the Member's Interest in accordance with the
provisions of this Article 11; or
(b) Withdrawal of a Member from the Company, but only with the
prior written consent of all of the remaining Members.
11.4 Withdrawal. No Member may withdraw or retire except with the prior
written consent of all of the remaining Members, which consent the Members may
withhold for any or no reason whatsoever. In the event that consent is granted,
such consent shall be considered granted only within its limited scope and may
contain any and all conditions which the Members, in their sole discretion,
deems appropriate under the circumstances.
19
11.5 Substituted Members. Any transferee acquiring the Interest of a
Member as permitted under this Article shall be deemed admitted as a substituted
Member with respect to the Interest transferred concurrently with the
effectiveness of the Transfer (provided that such transferee, unless already a
Member, shall, as a condition to such admission, execute a counterpart of this
Agreement, agreeing thereby to be bound by all of the terms and conditions
hereof), and such substituted Member shall be entitled to all of the rights and
benefits under this Agreement of the transferor of such Interest, subject to the
limitations of Section 11.2. Each transferee shall reimburse the Company for all
reasonable expenses incurred by the Company in connection with such Transfer. No
purported Transfer of any Interest, or any portion thereof or interest therein,
in violation of the terms of this Agreement (including any Transfer occurring by
operation of law) shall vest the purported transferee with any rights, powers,
or privileges hereunder, and no such purported transferee shall be deemed for
any purposes as a Member hereunder or have any right to inspect Company records
to maintain derivative proceedings, to maintain any action for an accounting or
to exercise any other rights of a Member hereunder or under the Act. Any
Transfer in contravention of any of the provisions of this Article 11 shall be
void ab initio and of no effect and shall not bind or be recognized by the
Company.
11.6 Mandatory Exchange of OASIS Interest for EGLOBE Securities.
(a) The Interest held by OASIS in the Company (including the
Residual Interest) shall be exchanged for the EGLOBE Securities upon the
fulfillment of the following conditions:
(i) the registration under the Securities Act of 1933, as
amended, of the resale by OASIS of at least $3,000,000 in value of EGLOBE Common
Stock in accordance with the terms and conditions of the Side Letter under the
Contribution Agreement; and
(ii) either (A) the receipt by EGLOBE of at least $10,000,000
in cash proceeds from the sale of equity interests in EGLOBE on or after the
date of this Agreement; or (B) the reporting by EGLOBE of positive EBITDA for
three consecutive calendar months; and
(iii) the absence of any Bankruptcy of EGLOBE.
(b) The consummation of the exchange under this Section shall not
entitle either party to any distribution of Operating Cash Flow from ORS, Cash
Flow from the EGLOBE Securities or Capital Cash Flow from ORS, even if the
Company has generated such cash flow prior to the date of the exchange.
(c) The exchange shall occur at the offices of the Company, five
business days after written notice of the fulfillment of the conditions is
delivered to OASIS. At the closing, the Company and OASIS shall execute and
deliver such documents as each of the parties shall reasonably request in order
to consummate the exchange of the OASIS Interests in the manner provided by this
Section 11.6.
20
11.7 Optional Exchange of OASIS Interest for EGLOBE Securities.
(a) OASIS shall have the right to exchange its Interest in the
Company (including the Residual Interest) at any time into the EGLOBE
Securities, subject to the terms and conditions of this Section 11.7.
(b) The consummation of the exchange under this Section shall not
entitle either party to any distribution of Operating Cash Flow from ORS, Cash
Flow from the EGLOBE Securities or Capital Cash Flow from ORS, even if the
Company has generated such cash flow prior to the date of the exchange.
(c) To exercise its rights under this Section, OASIS must provide
written notice of its exercise of its exchange rights to the Company and EOI.
The closing of the exchange shall occur at the offices of the Company, five
business days after the notice of exercise is delivered to the Company. At the
closing, the Company and OASIS shall execute and deliver such documents as each
of the parties shall reasonably request in order to consummate the exchange in
the manner provided by this Section 11.7.
11.8 Optional Exchange of OASIS Interest for ORS Shares.
(a) OASIS shall have the right to exchange its Interest in the
Company (other than the Residual Interest) for the ORS Shares at any time on or
after the Bankruptcy of EGLOBE.
(b) The consummation of the exchange under this Section shall not
entitle either party to any distribution of Operating Cash Flow from ORS, Cash
Flow from the EGLOBE Securities or Capital Cash Flow from ORS, even if the
Company has generated such cash flow prior to the date of the exchange.
(c) To exercise its rights under this Section, OASIS must provide
written notice of its exercise of its exchange rights to the Company and EOI.
The closing of the exchange shall occur at the offices of the Company, five
business days after the notice of exercise is delivered to the Company. At the
closing, the Company and OASIS shall execute and deliver such documents as each
of the parties shall reasonably request in order to consummate the exchange in
the manner provided by this Section 11.8.
21
11.9 Repurchase of Residual Interest.
The Company may repurchase the Residual Interest of OASIS for
a payment of $1,000, at any time commencing four years after the closing of any
exchange of the Interest of OASIS in the Company (other than the Residual
Interest) under Sections 11.6, 11.7 or 11.8.
ARTICLE 12
DISSOLUTION
12.1 Events of Dissolution. Each of the following shall be an "Event of
Dissolution" causing the Company to dissolve:
(a) The unanimous vote of the Members to dissolve the Company; or
(b) The election of OASIS, following the Bankruptcy of EGLOBE;
(c) The election of either Member to cause the dissolution of the
Company, provided that such election may not be made prior to March 31, 2001.
12.2 Effect of Death, Withdrawal, Bankruptcy of Dissolution of Member.
Notwithstanding anything to the contrary contained in the Act, the Company shall
not dissolve upon the death, withdrawal, Bankruptcy or dissolution of a Member.
12.3 Liquidation.
(a) Upon dissolution of the Company, the President, or if there is
no President, such person as is designated by a majority of the Directors (the
President or such other person being herein referred to as the "Liquidating
Agent") shall proceed to wind up the business and affairs of the Company in
accordance with the terms hereof and the requirements of the Act. The
Liquidating Agent shall have all of the rights in connection with the
liquidation and termination of the Company that the Board of Directors and the
Officers would have had with respect to the assets and liabilities of the
Company during the term of the Company, and the Liquidating Agent is hereby
expressly authorized and empowered to effectuate the liquidation and termination
of the Company and the transfer of any assets and liabilities of the Company.
The Liquidating Agent shall have the right from time to time, by revocable
powers of attorney, to delegate to one or more persons any or all of such rights
and powers and the authority and power to execute documents in connection
therewith, and to fix the reasonable compensation of each such person, which
compensation shall be charged as an expense of liquidation. The Liquidating
Agent is also expressly authorized to distribute the Company's property to the
Members, subject to satisfaction of any liens. This Agreement shall remain in
full force and effect during the period of winding up, except that the Members
shall not
22
have the right to make withdrawals of capital or additional Capital
Contributions or to retire from the Company.
(b) Upon the dissolution of the Company, the Liquidator shall
promptly distribute the ORS Shares to OASIS and the EGLOBE Securities to EOI.
The distribution of the ORS Shares and EGLOBE Securities under this Section
shall not entitle either party to any distribution of Operating Cash Flow from
ORS, Cash Flow from the EGLOBE Securities or Capital Cash Flow from ORS, even if
the Company has generated such cash flow prior to the date of the exchange.
(c) If distributions are insufficient to return any Member the
full amount of such Member's Capital Contributions, such Members shall have no
recourse against any other Member or any Director. No Member shall have any
obligation to restore, or otherwise pay to the Company, any other Member, or any
third party, the amount of any deficit balance in such Member's Capital Account
upon dissolution and liquidation. Following the completion of the winding up of
the affairs of the Company and the distribution of its assets, the Company shall
be deemed terminated and the Liquidator shall file a certificate of cancellation
in the Secretary of State of the State of Florida as required by the Act.
(d) Each Member shall be furnished with a statement prepared by
the Liquidating Agent which shall set forth the assets and liabilities of the
Company as at the date of complete liquidation, and each Member's share thereof.
Upon completion of the liquidation, each Member shall cease to be a Member of
the Company, and the Liquidating Agent shall execute, acknowledge and cause to
be filed articles of dissolution of the Company, pursuant to the Act.
ARTICLE 13
MEETINGS OF DIRECTORS AND MEMBERS
13.1 Meetings of Directors. Meetings of Directors may be held whenever
called by any Director or the President.
13.2 Meetings of Members. Meetings of the Members may be held whenever
called by the Board of Directors or by the written demand of any Member. Any
written demand by a Member shall state the purpose or purposes of the proposed
meeting, and business to be transacted at any such meeting shall be confined to
the purposes stated in the notice thereof, and to such additional matters as the
Board of Directors may determine to be germane to such purposes. The President
shall serve as the chairman of any meetings of Members.
13.3 Place of Meetings. Meetings of the Directors or the Members shall
be held at the principal office of the Company, or such other place as the Board
of Directors shall determine.
13.4 Notice of Meetings. Written notice stating the place, day, and
hour of any meeting of the Directors or the Members and the purpose or purposes
for which the meeting is called shall
23
be delivered not less than five (5) nor more than fifty (50) days before the
date of the meeting, either personally, by facsimile, or by mail, by or at the
direction of the person calling the meeting, to each Director and each Member.
Any party may waive notice of any meeting. The attendance of a party at any
meeting shall constitute a waiver of notice of such meeting except where a party
attends a meeting for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully called or convened.
13.5 Quorum.
(a) At any meeting of the Directors, the presence in person or by
proxy of a majority of the Directors shall constitute a quorum.
(b) At any meeting of Members, the presence in person or by proxy
of both Members shall constitute a quorum.
13.6 Voting.
(a) If a quorum is present at a meeting of Directors, the
affirmative vote of a majority of the Directors shall constitute the approval of
the Directors.
(b) If a quorum is present at a meeting of Members, the
affirmative vote of both Members shall be the act of the Members.
13.7 Proxies. At meetings of the Members and any adjournments thereof,
a Member may vote in person or by proxy executed in writing by the Member or by
its duly authorized attorney-in-fact. Such proxy shall be filed with the Board
before or at the time of the meeting. No proxy shall be valid after sixty (60)
days from the date of its execution, unless otherwise provided in the proxy. The
burden of proving the validity of any undated, irrevocable, or otherwise
contested proxy will rest with the person seeking to exercise the same.
13.8 Meetings by Telephone. Any Director or Member may participate in
any meeting of Directors or Members, as the case may be, by means of a
conference telephone or similar communication equipment whereby all Directors or
Members participating in such meeting can hear one another. Such participation
shall constitute attendance in person.
24
13.9 Record of Meetings. The Company shall prepare minutes for each
meeting of Directors or Members.
13.10 Action Without a Meeting.
(a) Any action by the Directors which may be taken at any meeting
of the Directors, may be taken without a meeting, without prior notice, and
without a vote, if a consent in writing, setting forth the action to be taken,
shall be signed by all the Directors.
(b) Any action required to be taken at any meeting of Members or
any action which may be taken at any meeting of Members, may be taken without a
meeting, without prior notice, and without a vote if a consent in writing,
setting forth the action so taken, shall be signed by the Members having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all Interests entitled to vote thereon
were present and voted.
(c) Any consents under this Section 13.10 may: (i) be signed in
counterparts; and (ii) may have faxed signatures, copies of which shall be
effective when received by the Company. Within 10 days after first obtaining
such authorization by written consent, notice must be given to all Directors and
Members.
ARTICLE 14
GENERAL PROVISIONS
14.1 Notices. Any notice, demand, request or report required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed given or made when delivered in person or five (5) days after the date
when sent by certified or registered mail to: (i) a Member, when addressed to
such Member at the address set forth on the signature pages hereto or such other
address as the Member may hereafter provide to Company in writing; and (ii) the
Company, when addressed to the Company at its principal office.
14.2 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Delaware, without reference to its
principles of conflicts of laws.
14.3 Headings. The Article and Section headings of this Agreement are
for convenience only, do not form a part of this Agreement, and shall not in any
way affect the interpretation hereof.
14.4 Power of Attorney.
(a) Subject to the terms and conditions hereof, each Member hereby
irrevocably constitutes and appoints each of the Directors his true and lawful
attorney-in-fact and agent with full power and authority to act in his name,
place and xxxxx to execute, acknowledge, swear to, deliver, file, record and
publish any document requisite to carrying out the intention and purposes
enumerated below, including, but not limited to, the execution, acknowledgment,
swearing to,
25
delivery, filing, recording and publication of this Agreement and amendments
thereto, documents, conveyances, leases, contracts, loan documents and/or
counterparts thereof, and all other documents which such person reasonably deems
necessary or appropriate:
(i) To qualify or continue the Company as a limited liability
company;
(ii) To effect the dissolution and termination of the Company;
or
(iii) To effect transfers, admissions, withdrawals and
substitutions of Members as specifically provided under the terms of this
Agreement.
(b) No person shall take any action as an attorney-in-fact of any
Member which would in any way increase the liability of such Member beyond the
liability expressly set forth in this Agreement or increase the term of the
Company nor is any Member bound by such action taken. This power of attorney
shall be irrevocable.
14.5 Parties in Interest. Nothing herein shall be construed to be to
the benefit of or enforceable by any Person not a party to this Agreement,
including, but not limited to, any creditor of the Company, other than the
Persons entitled to indemnification under Section 8.12.
14.6 Further Assurances. The Members will execute and deliver such
further instruments and do such further acts and things as may reasonably be
required to carry out the intent and purposes of this Agreement.
14.7 Remedies Cumulative. No remedy conferred upon or reserved to the
Company or any Member by this Agreement is intended to be exclusive of any other
remedy. Each and every such remedy shall be cumulative and shall be in addition
to any other remedy given to the Company or any Member hereunder or now or
hereafter existing at law or in equity or by statute.
14.8 Successors and Assigns. Subject to the restrictions on Transfer
set forth in Article 11, this Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns.
14.9 Dispute Resolution. Prior to any Bankruptcy of any Member, the
Company or EGLOBE, any dispute by and among the Members and the Company with
respect to their rights and duties under this Agreement shall be determined by
arbitration in Miami, Florida pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. In the event of any Bankruptcy of any
Member, the Company or EGLOBE, any dispute by and among the Members and the
Company with respect to their rights and duties under this Agreement shall
therefore be determined by the U.S. District Court for the Southern District of
New York pursuant to, and as part of, the jurisdiction of such court over the
Estate of Eastern Airlines, Inc.
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14.10 Legal Fees. In the event that any party should commence legal
proceedings with respect to the rights and duties of the parties to this
Agreement, the prevailing party in such legal proceedings shall be entitled to
reimbursement from the non-prevailing party of all legal fees and expenses
incurred in such proceedings.
14.11 Amendment. This Agreement may not be amended except with the
prior written consent of all Members.
14.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
14.13 Entire Agreement. The terms and conditions of this Agreement
constitutes the entire agreement between the Members concerning the subject
matter hereof, and shall supersede all previous communications, either oral or
written, between the parties hereto, and no agreement or understanding modifying
this Agreement shall be binding upon any Member unless such modification is in
writing and signed by such Member.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first-above written.
ADDRESSES: MEMBERS:
EOI:
EGLOBE/OASIS, INC.
_________________________ By:_______________________________
_________________________ Its: _____________________________
_________________________ Name:_____________________________
OASIS:
OUTSOURCED AUTOMATED
RESERVATIONS AND INTEGRATED
SOLUTIONS, INC.
_________________________ By:_______________________________
_________________________ Its: _____________________________
_________________________ Name:_____________________________
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E X H I B I T S
Exhibits
A - Certificate of Formation
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