EXHIBIT 3.7
OPERATING AGREEMENT
OF
XXXXXXX & XXXXXXXXX LLC
THIS OPERATING AGREEMENT (as amended from time to time, this
"AGREEMENT") of XXXXXXX & XXXXXXXXX LLC (the "COMPANY") is dated as of January
23, 2006. The parties set forth on Schedule A attached hereto (as the same may
be from time to time amended) are each a "MEMBER" or collectively "MEMBERS" and,
as such, are subject to the terms and conditions of this Agreement.
ARTICLE 1. ORGANIZATIONAL MATTERS
1.1 FORMATION OF THE COMPANY; TERM. The Company is a limited liability
company under the limited liability company law set forth in Chapter 18 of the
Delaware Corporation Laws (as amended from time to time, the "ACT") governed by
this Agreement and formed by the execution and filing with the Secretary of
State of Delaware of the Certificate of Formation of the Company. Unless sooner
dissolved under the Act, the Company is to continue in perpetuity.
1.2 NAME. The name of the Company is: "XXXXXXX & XXXXXXXXX LLC".
1.3 PURPOSE OF THE COMPANY; BUSINESS. This Company is being formed to
engage in and carry on any lawful business, purpose or activity for which
limited liability companies may be formed under the Act.
1.4 PRINCIPAL PLACE OF BUSINESS, OFFICE AND AGENT. The principal place
of business and mailing address of the Company and office where the records are
kept is 0000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or such other location
or locations as may be specified from time to time by the Chairman. The
registered office of the Company in the State of Delaware is at the offices of
the statutory agent of the Company in Delaware. The statutory agent of the
Company in Delaware is Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000. The Chairman, from time to time,
may change the statutory agent in Delaware or the principal place of business of
the Company. The Company also may establish additional places of business as the
Chairman determines are necessary or appropriate. This Section of the Agreement
shall be amended by the Chairman to reflect each change in the identity or
address of the registered agent in Delaware.
1.5 FICTITIOUS BUSINESS NAME STATEMENT; OTHER CERTIFICATES. The
Chairman or Chief Executive Officer will, from time to time, register the
Company or cause the Company to be registered as a foreign limited liability
company and file or cause to be filed fictitious or trade name statements or
certificates in those jurisdictions and offices as the Chairman or Chief
Executive Officer considers necessary or appropriate. The Company may do
business under any fictitious business names selected by the Chairman or Chief
Executive Officer. The Chairman or Chief Executive Officer shall, from time to
time, file or cause to be filed certificates of amendment, certificates of
cancellation, or other certificates as the Chairman
or Chief Executive Officer reasonably considers necessary or appropriate under
the Act or under the laws of any jurisdiction in which the Company is doing
business to establish and continue the Company as a limited liability company or
to protect the limited liability of the Members.
ARTICLE 2. CAPITALIZATION; DISTRIBUTIONS
2.1 MEMBERSHIP INTERESTS. Each Member will own that number and class
(or classes) of "MEMBERSHIP INTERESTS" as reflected on the books and records of
the Company, which books and records shall be amended from time to time to
account for the admission or withdrawal of Members or changes in their capital
contributions. Subject to the approval, by majority vote of the Membership
Interests entitled to vote, the Board may from time to time create separate
classes of Membership Interests with separate or no voting rights, distribution,
liquidation, conversion, allocation, transfer, and other rights and preferences.
2.2 INITIAL CAPITAL. Each Member has made the capital contribution(s)
set forth on the books and records of the Company.
2.3 ADDITIONAL CONTRIBUTIONS. Except as the Members may subsequently
agree in writing, the Members are not obligated to make any additional capital
contribution(s) to the Company.
2.4 INTEREST. The Members will not be paid interest on capital
contribution(s) to the Company.
2.5 WITHDRAWAL. Subject to any rights or preferences that may benefit
any class or classes of Membership Interests, a Member is not entitled to
withdraw any portion of its paid-in capital contribution(s), and is not entitled
to a return of its paid-in capital contribution(s) except through distributions
as provided in SECTION 2.8.
2.6 DISTRIBUTIONS. The Company will make or pay distributions as may
be approved from time to time by the Board.
2.7 PROFITS AND LOSSES. Subject to any rights or preferences that may
benefit any class or classes of Membership Interests, profits and losses of the
Company will be allocated to each Member in accordance with each Member's
percentage ownership of all Membership Interests.
2.8 DISTRIBUTIONS UPON LIQUIDATION AND WINDING-UP. During the
winding-up period of the Company and its subsidiaries and through the final
liquidation of its assets, the cash and other assets of the Company (including
the assets, cash and other assets of the Company's subsidiaries) shall be
distributed in the following order:
(a) first, to the creditors of the Company and its subsidiaries (other
than the Members) to repay their debts and liabilities and the expenses of
liquidation;
(b) second, to each Member in proportion to the Membership Interests
held by such Member, to repay any loans or advances by the Members to the
Company or any of its subsidiaries and all accrued interest thereon; and
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(c) third, subject to any liquidation rights or preferences that may
benefit any class or classes of Membership Interests, to each Member in
proportion to the Membership Interests held by such Member, any remaining assets
of the Company and its subsidiaries.
2.9 LEGEND IF MEMBERSHIP INTERESTS NOT REGISTERED. Unless and until
Membership Interests are registered with the Securities and Exchange Commission,
any document evidencing Membership Interests shall bear a legend stating:
THE MEMBERSHIP INTERESTS EVIDENCED BY THIS DOCUMENT ARE SUBJECT TO
RESTRICTIONS ON ASSIGNMENT AND TRANSFER SET FORTH HEREIN. THE INTERESTS
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAW AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNTIL
REGISTERED OR UNTIL THE BOARD HAS RECEIVED AN OPINION OF LEGAL COUNSEL, OR
OTHER ASSURANCES SATISFACTORY TO THE BOARD, THAT AN INTEREST MAY LEGALLY BE
SOLD OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION.
ARTICLE 3. BOARD OF DIRECTORS
3.1 GENERAL POWERS. Subject to Section 4.1, the business and affairs
of the Company and its subsidiaries shall be managed by or under the direction
of directors who shall collectively constitute a Board of Directors (each, a
"DIRECTOR" and collectively, the "BOARD"). All consents, decisions and
determinations to be made pursuant to this Agreement by the Board shall require
a majority of all the Directors. Except where specifically authorized by the
Board or the Members, no Director acting alone, or with any other Director,
shall have the power to act for, or on behalf of, or to bind the Company.
3.2 COMPOSITION. The Board may be comprised of any number of
Directors, provided that there shall be at least one Director, such number to be
established by majority vote of Membership Interests entitled to vote. The
initial Directors are set forth on Schedule B. Each Director is to serve until
the earlier of his or her death or written resignation, at which time the
Members may elect his or her successor.
3.3 MEETINGS OF THE BOARD AND CHAIRMAN. Meetings of the Board shall be
presided over by the Chairman and shall be held at the principal place of
business of the Company or at any other place that the Chairman determines. The
Chairman is to serve until his removal by the Members voting a majority of the
Membership Interests entitled to vote, his death or his written resignation, at
which time the Board may elect his successor. Regular meetings of the Board
shall be held at such times as may from time to time be fixed by the Chairman,
but at least quarterly, and special meetings may be held at any time upon the
call of any Director, by oral, facsimile or written notice, given 24 hours prior
to the meeting or mailed to each Director not less than three business days
before such meeting. The presence in person of a majority of the Directors then
holding office shall constitute a quorum for the transaction of business, but if
at any meeting of the Board there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time until a
quorum shall have been obtained. At any meeting, any Director may participate by
telephone or similar communication equipment.
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Persons present by telephone shall be deemed to be present "in person" for
purposes hereof. Minutes of each meeting and a record of each decision shall be
kept by the Secretary of the Company, or, if none, a designee of the Board and
shall be delivered to the Directors promptly after the meeting. Notwithstanding
the foregoing provisions, each Director who is entitled to notice waives notice
if before or after the meeting such Director signs a waiver of the notice which
is filed with the records of the Board's meetings or is present at the meeting
in person without objection.
3.4 WRITTEN ACTIONS OF THE BOARD. Any action required or permitted to
be taken at any meeting of the Board may be taken without a meeting if all
Directors consent thereto in writing.
3.5 BOARD COMPENSATION; PAYMENT OF EXPENSES. No compensation shall be
paid to any Director in connection with the fulfillment of such Director's
responsibilities unless such compensation shall have been approved by a majority
vote of Membership Interests entitled to vote. The Company shall reimburse all
Directors for all reasonable out-of-pocket expenses incurred in connection with
such Director's obligations in this Agreement or the Act.
3.6 COMMITTEES OF THE BOARD. The Chairman may from time to time
propose the formation of one or more committees to the Board for the Board's
approval. Each committee is to be composed of such number of Directors, not
fewer than two, as the Chairman may propose and the Board approve. Any
committee, to the extent proposed by the Chairman and approved by the Board, may
have and may exercise all of the power and authority of the Board. All the
provisions of this Agreement apply to committees of the Board. A vote of at
least a majority of the members of a committee is approval by, or the
authorization of, any committee.
3.7 OFFICERS. The Board may from time to time appoint any number of
officers of the Company and its subsidiaries, and may delegate to such officers
such power, authority and responsibilities, as it deems appropriate. Such
officers may include a chairman, chief executive officer, a president, one or
more executive or senior vice presidents or vice presidents, a secretary, a
treasurer, an assistant secretary and an assistant treasurer, each with the
power, authority and responsibilities as determined by the Board. Any number of
offices may be held by the same person. Any officer, other than the Chairman,
may be removed, with or without cause, by the Board.
3.8 GOOD FAITH RELIANCE.
(a) The Chairman, any Director, any officer or any employee of the
Company or any of its subsidiaries in the performance of his, her, or its
duties, is entitled to rely in good faith on information, opinions, reports, or
other statements, including financial statements, books of account, and other
financial data, if prepared or presented by: (i) one or more employees of the
Company or of any of its subsidiaries if the person relying on the statements
reasonably believes that the person preparing or presenting the material is
reliable and competent in that matter; or (ii) legal counsel, public
accountants, or other persons as to matters that the person relying on the
statements reasonably believes are within such person's professional or expert
competence.
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(b) A Director is to perform his or her duties as a Director in good
faith, in a manner reasonably believed to be in or not opposed to the best
interests of the Company or any of its subsidiaries (and with respect to any
criminal action or proceeding, having no reasonable cause to believe his or her
conduct was unlawful), and with the care that an ordinarily prudent person in a
similar position would use under similar circumstances.
(c) A Director cannot be found to have violated SECTION 3.8(B) unless
it is proved, by clear and convincing evidence, in an action brought against
such Director, that he or she has not met the standard of SECTION 3.8(B).
(d) The Directors will be liable in damages for any action that he or
she takes or fails to take as a Director only if it is proved, by clear and
convincing evidence, that such action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the Company or any
of its subsidiaries or undertaken with reckless disregard for the best interests
of the Company or any of its subsidiaries.
ARTICLE 4. MEMBERS
4.1 RIGHTS OF THE MEMBERS. Except as provided herein or as otherwise
delegated to the Board, the Members entitled to vote shall have full, exclusive,
and complete discretion, power, and authority to manage the business and affairs
of the Company, and to make all decisions affecting such business and affairs.
Decisions of the Members entitled to vote shall be binding upon the Company and
its subsidiaries.
4.2 LIMITED LIABILITY OF THE MEMBERS. Except for the contribution
contemplated under SECTION 2.2 or agreed to by the Members as contemplated by
SECTION 2.3, the Members do not have any obligation to contribute to the Company
(or any of its subsidiaries) or any liability for any Company obligations (or
any obligations of its subsidiaries). Any liability to return distributions made
by the Company is limited to mandatory requirements of the Act or of any other
applicable law.
4.3 MEETINGS OF THE MEMBERS.
(a) The Members entitled to vote shall meet each calendar year on a
date fixed by the Chairman, to elect the Directors of the Board and to address
any other matter which is appropriate for consideration thereat.
(b) Record owners of Membership Interests representing a majority vote
of the Membership Interests entitled to vote may call Members meetings from time
to time for any matter which is appropriate for consideration thereat.
(c) Members meetings shall be held at the principal office of the
Company, or at such other place as the Chairman shall specify or as the record
owners of Membership Interests representing a majority vote of the Membership
Interests entitled to vote shall mutually agree. Members meetings may be held
through the use of conference telephone or similar communications equipment so
long as all persons or entities participating in such meeting can hear one
another at the time of such meeting. Members meetings shall be chaired by the
Chairman.
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(d) Written notice of each Members meeting shall state the place, date
and hour of such Members meeting, and the general nature of the business to be
transacted. Notice shall be given not fewer than ten (10) days nor more than
sixty (60) days before the date thereof to each Member entitled to vote thereat.
Notice of a Members meeting need not be given to any Member who signs a waiver
of notice, in person or by proxy, whether before or after the Members meeting.
The attendance of any Member at a Members meeting, in person or by proxy,
without protesting prior to the conclusion of such Members meeting the lack of
notice of such Members meeting, shall constitute a waiver of notice by such
Member, provided that such Member has been given an adequate opportunity at the
meeting to protest such lack of notice.
(e) Record owners of Membership Interests representing a majority vote
of the Membership Interests entitled to vote shall constitute a quorum at a
Members meeting for the transaction of any business; provided, however, that in
order to constitute a quorum, each of such Members must be represented in person
or by proxy. Record owners of Membership Interests representing a majority vote
of the Membership Interests present at the meeting and entitled to vote may
adjourn the meeting, whether or not a quorum is present. An adjournment may
include notice of the date, hour and place that the Members shall reconvene.
Notice of the adjournment (with the new date, time and place) shall be given to
all Members entitled to vote who were absent at the time of the adjournment and,
unless such date, hour and place are announced at the Members meeting, to the
other Members.
(f) Every Member entitled to vote at a Members meeting may authorize
another party to act for it by proxy. Every proxy must be signed by the Member
or his, her or its attorney-in-fact. No proxy shall be valid after the
expiration of eleven (11) months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable in writing at the pleasure of the
Member executing it.
(g) Any action required or permitted to be taken at any Member meeting
may be taken without a meeting if record owners of Membership Interests
representing a majority vote of the Membership Interests entitled to vote
thereat consent in writing. Any such written consents shall be filed with the
minutes of the proceedings.
(h) Except as contemplated by Sections 3.2, 3.5, 4.3(b), 4.3(c),
4.3(g) and 7.4 or as otherwise provided herein, the approval of any matter at a
Members meeting shall require an affirmative vote of the Members voting a
majority of the Membership Interests present at the meeting and entitled to
vote.
ARTICLE 5. CAPITAL ACCOUNTS
5.1 DEFINITIONS. For the purpose of this Article 5:
(a) "NET INCOME" Means, for any period, the excess, if any, of the
Company's items of income and gain for such period over the Company's items of
loss and deduction for such period, as computed for book purposes.
(b) "NET LOSS" means, for any period, the excess, if any, of the
Company's items or loss and deduction for such period over the Company's items
of income and gain for such period, as computed for book purposes.
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5.2 CAPITAL ACCOUNTS. A "CAPITAL ACCOUNT" shall be established and
maintained for each Member. Each Member's Capital Account shall be increased by
(i) the amount of money contributed by that Member to the Company, (ii) the fair
market value of property contributed by that Member to the Company (net of
liabilities secured by such contributed property that the Company is considered
to assume or take), and (iii) allocations to that Member of Net Income and Net
Loss (or items thereof), and shall be decreased by (i) the amount of money
distributed to that Member by the Company, (ii) the fair market value of
property distributed property that such Member is considered to assume or take,
and (iii) allocations to that Member of expenditures of the Company.
5.3 ALLOCATIONS.
(a) For purposes of maintaining the Members' Capital Accounts, the Net
Income or Net Loss for each year shall be allocated, subject to any rights or
preferences that may benefit any class or classes of Membership Interests, among
the Members in accordance with their respective Membership Interests.
(b) For federal and state tax purposes each item of income, gain,
loss, deduction and credit shall be allocated among the Members in the same
manner as each correlative item of Net Income or Net Loss is allocated to the
Members for purposes of maintaining their respective Capital Accounts.
(c) All Net Income and Net Loss (and any item of income, gain, loss,
deduction or credit) shall be allocated, and all distributions shall be made, to
the persons or entities shown on the records of the Company to have been Members
as of the last day of the period for which the allocation or distribution is to
be made. Notwithstanding the foregoing, if a Membership Interest is transferred
during a taxable year, Net Income and Net Loss (and any item of income, gain,
loss, deduction or credit) for such taxable year allocable to the transferred
Membership Interest shall be prorated between the transferor and the transferee
based upon that portion of such taxable year during which each was recognized as
owning such Membership Interest, without regard to the results of Company
operations during particular portions of such taxable year and without regard to
distributions made to the transferor and the transferee during such taxable
year, as permitted by applicable law.
ARTICLE 6. INDEMNIFICATION
6.1 INDEMNIFICATION.
(a) To the fullest extent permitted under the Act, the Company will
indemnify any person or entity who was or is a party or is threatened to be made
a party to any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, by reason of the fact
that he, she, or it is or was (i) a Member, officer or Director of the Company
or any of its subsidiaries, or (ii) is or was an officer or director of a
Member, or (iii) is or was serving at the request of the Company or any of its
subsidiaries as a member, manager, director, officer, trustee, partner,
employee, or agent of another limited liability company, corporation,
partnership, joint venture, trust, or other enterprise, against expenses
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(including attorneys' fees), judgments, fines, and amounts paid in settlement,
actually and reasonably incurred by him, her, or it in connection with such
action, suit, or proceeding.
(b) To the extent that an employee or agent of a Company has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding referred to in SECTION 6.1(A), or in defense of any claim, issue, or
a matter therein, he, she, or it will be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith.
6.2 ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred defending any civil, criminal, administrative, or investigative action,
suit or proceeding may be paid by the Company in advance of the final
disposition of any action, suit, or proceeding upon receipt of an undertaking by
or on behalf of the indemnitee to repay such amount if it is ultimately
determined that he, she, or it is not entitled to be indemnified by the Company
and upon such other terms and conditions, if any, as the Board deems
appropriate.
6.3 OTHER RIGHTS TO INDEMNITY OR REIMBURSEMENT; SURVIVAL.
Indemnification under this Article 6 will be provided only with respect to such
losses, costs, expenses, judgments, and amounts which otherwise are not
compensated for by insurance carried for the benefit of the Company and/or any
of its subsidiaries. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Agreement is not exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any agreement or otherwise, both as to action in his, her, or its
official capacity and as to action in another capacity while holding such
office.
6.4 ADDITIONAL INDEMNIFICATION OF EMPLOYEES AND AGENTS. In addition to
the right to indemnity set forth in SECTION 6.1(B), the Company may indemnify
any employee or agent of the Company (or any of its subsidiaries) and any
employee or affiliate of any Member serving on behalf of the Company upon such
terms and conditions, if any, as the Members, by a majority vote of the
Membership Interests entitled to vote, consider appropriate.
6.5 INSURANCE. The Company has power to purchase and maintain
insurance on behalf of any person or entity who is or was a Member, Director,
officer, employee, or agent of the Company or any of its subsidiaries, or is or
was serving at the request of the Company or any of its subsidiaries as a
member, manager, trustee, director, officer, partner, employee, or agent of
another limited liability company, partnership joint venture, trust or other
enterprise against any liability asserted against him and incurred by him, her,
or it in any such capacity, or arising out of his, her, or its status as such,
whether or not the Company would have the power to indemnify him, her, or it
against such liability under this Section.
6.6 RULES OF CONSTRUCTION.
(a) For purposes of this Article 6, references to "the Company"
include, in addition to the resulting entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify, so that any person or entity stands in the same position
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under this Article with respect to the resulting or surviving entity as he would
have with respect to such constituent entity if its separate existence had
continued.
(b) For purposes of this Article 6, references to "other enterprises"
includes employee benefit plans; references to "fines" includes any excise taxes
assessed on a person or entity with respect to any employee benefit plan; and
references to "serving at the request of the Company or any of its subsidiaries"
include any service as a member, manager, officer, employee, or agent of the
Company or any of its subsidiaries which imposes duties on, or involves services
by, such member, manager, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a person or
entity who acted in good faith and in a manner he, she, or it reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the Company or any of its subsidiaries" as referred to in
this Section.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 6, unless otherwise provided when authorized
or ratified, continues as to a person or entity who has ceased to hold a
position and inures to the benefit of the heirs, executors, and administrators
of such a person or entity.
6.7 SAVINGS CLAUSE. If this Article 6 or any portion of this Article
is invalidated on any ground by any court of competent jurisdiction, then the
Company is nevertheless to indemnify each indemnitee as to costs, charges and
expenses (including attorneys' fees), judgments, fines, and amounts paid in
settlement with respect to any action, suit, proceeding, or investigation,
whether civil, criminal, administrative, or investigative, including any action
by or in the right of the Company or any of its subsidiaries, to the full extent
permitted by any applicable portion of this Article that has not been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE 7. GENERAL PROVISIONS
7.1 TRANSFER OF MEMBERSHIP INTERESTS. No transfer of a Membership
Interest shall be deemed effective until approved in writing by a majority vote
of Membership Interests entitled to vote. No transfer shall relieve the
transferor Member of any of the obligations or liabilities of the transferor
Member under this Agreement arising prior to the closing of the consummation of
such Transfer.
7.2 ADMISSION OF MEMBERS. New Members may only be admitted upon the
affirmative vote of a majority of the Membership Interests entitled to vote.
7.3 WITHDRAWAL OF MEMBERS. Except with the affirmative vote of the
Board, the Members do not have any right to withdraw from the Company. No event
that would constitute withdrawal of the Members under the Act is a withdrawal
under this Agreement or will cause a dissolution of the Company.
7.4 AMENDMENTS. This Agreement may only be amended or modified by a
majority vote of Membership Interests entitled to vote; provided, however that
subject to Sections 3.2, 7.2 and 7.3, the Chairman or his or her designee may
amend or modify (a) Schedule
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A hereto to reflect newly-admitted Members or the withdrawal of a person or
entity as a Member or (b) Schedule B hereto to reflect newly-admitted Directors,
a newly-appointed Chairman or the withdrawal of a person as a Director.
7.5 NO DISSOLUTION. No event that would cause a dissolution under the
Act causes a dissolution of the Company.
7.6 FURTHER ASSURANCES. The Members are required to execute all
documents and instruments necessary to evidence its approval of all actions
taken or authorized by the Members as provided in this Agreement.
7.7 NOTICES. All notices to the Company are to be sent registered or
certified mail, return receipt requested, or by recognized overnight courier or
facsimile addressed to the Chairman at the Company's principal place of business
All notices to the Members are to be sent addressed to such Members at the
address as may be specified by the Members from time to time in a notice to the
Company. All notices are effective the next day, if sent by recognized overnight
courier or facsimile, or five days after deposit in the United States mail,
postage prepaid, properly addressed and return receipt requested.
7.8 GOVERNING LAW. This Agreement is governed by and is to be
construed in accordance with the laws of the State of Delaware without giving
effect to its rules concerning conflicts of laws.
7.9 WAIVER. Each Member that is not entitled to vote its Membership
Interests hereby irrevocably waives any and all rights, duties, obligations, and
benefits with respect to any action for partition of Company property or to
compel any sale or appraisal thereof. Further, all rights, duties, benefits, and
obligations, including inventory and appraisal of the Company's assets and/or
the assets of any of its subsidiaries, provided in the laws of Delaware, or the
operation of any other rule or law of any other jurisdiction to compel any sale
or appraisal of Company assets and/or the assets of any of its subsidiaries, are
hereby waived and dispensed with by each Member that is not entitled to vote its
Membership Interests.
7.10 WHOLE AGREEMENT. This Agreement and any other agreements
referenced herein contain the entire understanding of the Members and the
Company and supersede any prior understandings and agreements between them
respecting the subject matter hereof.
7.11 GOVERNING LAW. This Agreement is governed by and is to be
construed in accordance with the laws of the State of Delaware without giving
effect to its rules concerning conflicts of laws.
7.12 BINDING NATURE. Except as otherwise provided in this Agreement,
this Agreement is binding upon and inures to the benefit of the Members and
their successors, personal representatives, heirs, devisees, guardians, and
assigns.
7.13 INVALIDITY. In the event that any provision of this Agreement is
invalid, the validity of the remaining provisions of the Agreement are not in
any way to be affected thereby.
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7.14 CONSTRUCTION. The headings contained in this Agreement are for
reference purposes only and do not affect the meaning or interpretation of this
Agreement. All personal pronouns used in this Agreement, whether used in the
masculine, feminine, or neuter gender, include all other genders; the singular
includes the plural and vice versa. Unless otherwise specifically stated,
references to Sections or Articles refer to the Sections or Articles of this
Agreement.
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SCHEDULE A
MEMBERS
NAME MEMBERSHIP INTEREST
---- -------------------
Xxxxxx Capital Group LLC 100% of the Common Interests
Banco di Caribe Investments B.V. 100% of the Preferred Interests
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SCHEDULE B
DIRECTORS
Xxxxxxx Xxxxxx, Chairman
Xxxx Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxx Xxxx
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
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