Exhibit 10.38
EXECUTION COPY
CONFIDENTIAL
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
WWWX-JENCOM, LLC
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ARTICLE I FORMATION OF LIMITED LIABILITY COMPANY GENERAL
PROVISIONS............................................................................1
Section 1.1 Formation.............................................................................1
Section 1.2 Name..................................................................................1
Section 1.3 Purpose...............................................................................1
Section 1.4 Offices...............................................................................2
Section 1.5 Nature of Partners' Interests, Non-Partition..........................................2
Section 1.6 Duration of Company...................................................................2
Section 1.7 Further Assurances....................................................................2
Section 1.8 Classification for Tax Purposes.......................................................2
ARTICLE II MEMBERS, MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS; LOANS........................3
Section 2.1 Membership and Participation Percentages..............................................3
Section 2.2 WWWX Assignment.......................................................................3
Section 2.3 Capital Accounts......................................................................3
Section 2.4 Use of Capital Contributions and Loans................................................3
Section 2.5 Additional Capital Contributions / Members' Loans.....................................3
Section 2.6 Operating Deficits....................................................................4
Section 2.7 Permitted Outside Activities..........................................................4
Section 2.8 Liability of Members..................................................................4
ARTICLE III MEETINGS OF MEMBERS...................................................................5
Section 3.1 Annual Meetings; Special Meetings.....................................................5
Section 3.2 Place of Meetings.....................................................................5
Section 3.3 Notice of Meetings....................................................................5
Section 3.4 Quorum of and Action by Members.......................................................5
Section 3.5 Voting by Members.....................................................................6
Section 3.6 Action Without a Meeting; Telephone Meetings..........................................6
ARTICLE IV MANAGEMENT............................................................................6
Section 4.1 Management............................................................................6
Section 4.2 Liability: Indemnification of the Manager.............................................8
Section 4.3 Interested Manager and Officers.......................................................8
Section 4.4 Manager's Compensation and Reimbursement..............................................9
Section 4.5 Time Devoted to Company...............................................................9
Section 4.6 Records and Reports...................................................................9
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Section 4.7 Fiscal Year...........................................................................9
Section 4.8 Reports..............................................................................10
Section 4.9 Required Filings.....................................................................10
Section 4.10 Inspection of Records................................................................10
Section 4.11 Annual Budget........................................................................11
Section 4.12 Liability of Manager.................................................................11
ARTICLE V OFFICERS.............................................................................11
Section 5.1 Officers.............................................................................11
Section 5.2 Compensation.........................................................................11
Section 5.3 Term of Office; Removal; Filling of Vacancies........................................11
Section 5.4 Chairman.............................................................................12
Section 5.5 President............................................................................12
Section 5.6 Vice Presidents......................................................................12
Section 5.7 Secretary............................................................................12
Section 5.8 Assistant Secretary..................................................................12
Section 5.9 Treasurer............................................................................12
Section 5.10 Additional Powers and Duties.........................................................12
ARTICLE VI ACCOUNTING AND TAX MATTERS; REPORTS; BANKING.........................................13
Section 6.1 Books and Records; Capital Accounts..................................................13
Section 6.2 Returns Tax..........................................................................13
Section 6.3 Tax Matters Person...................................................................13
Section 6.4 Tax Elections........................................................................13
Section 6.5 Bank Accounts; Investment of Company Funds...........................................13
ARTICLE VII TRANSFER OF COMPANY INTERESTS, WITHDRAWAL OF
MEMBERS, BUY/SELL PROVISIONS.........................................................14
Section 7.1 Assignment and Transfer..............................................................14
Section 7.2 Expenses.............................................................................15
Section 7.3 Withdrawal of Members................................................................15
Section 7.4 Death, Legal Incapacity, Dissolution or Bankruptcy of a Member.......................15
Section 7.5 Status of Interests Transferred......................................................16
ARTICLE VIII DISSOLUTION AND TERMINATION..........................................................16
Section 8.1 Dissolution..........................................................................16
Section 8.2 Appointment of Liquidating Member....................................................17
Section 8.3 Distributions and Other Matters......................................................17
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Section 8.4 Distributions of Property............................................................17
Section 8.5 Action During Liquidation: Statements of Account.....................................18
ARTICLE IX REPRESENTATIONS, WARRANTIES AND COVENANTS............................................18
Section 9.1 Representations and Warranties.......................................................18
ARTICLE X AMENDMENTS...........................................................................22
Section 10.1 Amendments...........................................................................22
ARTICLE XI MISCELLANEOUS........................................................................22
Section 11.1 Manner of Giving Notice..............................................................22
Section 11.2 Waiver of Notice.....................................................................22
Section 11.3 No Company Seal......................................................................22
Section 11.4 Public Announcements.................................................................22
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AMENDED AND RESTATED
OPERATING AGREEMENT OF
WWWX-JENCOM, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
This Amended and Restated Limited Liability Company Agreement (this
"AGREEMENT") of WWWX-JENCOM, L.L.C. (the "COMPANY"), a limited liability company
organized pursuant to the Delaware Limited Liability Company Law of 1994 (as
amended, the "ACT"), made as of the 7th day of January, 2000, is entered into by
and between WorldWide Web NetworX Corporation ("WWWX"), a Delaware corporation,
and JenCom Digital Technologies, LLC ("JENCOM"), a Delaware limited liability
company and amends and restates in its entirety the Limited Liability Company
Agreement of WWWX - JenCom, L.L.C. dated as of April 28, 1999 (the "PRIOR
AGREEMENT").
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY GENERAL PROVISIONS
SECTION 1.1 FORMATION
WWWX and JENCOM have heretofore formed and shall operate a limited
liability company under the Act and in accordance with the terms of this
Agreement and the Company's Articles of Organization. The Company shall exist
under and be governed by, and this Agreement shall be construed in accordance
with, the laws of the State of Delaware. WWWX and JENCOM have caused to be filed
with the Secretary of State of Delaware the Certificate of Formation of the
Company.
SECTION 1.2 NAME
The name of the Company shall be WWWX-Jencom, L.L.C., and all business of
the Company shall be conducted in such name or in such operational names as
determined, from time to time by the Manager.
SECTION 1.3 PURPOSE
WWWX and JENCOM desire to form and operate the Company pursuant to this
Agreement and other related documents and instruments, as a limited liability
company under Delaware law (hereinafter the "Company"). The purpose and
character of the business of the Company shall be to develop products and
services utilizing modern technology and to carry on any other lawful business,
purpose or activity which the Members may unanimously from time to
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time determine. The Company shall have all of the powers provided for a limited
liability company under the Act.
SECTION 1.4 OFFICES
The principal place of business of the Company shall be 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX, 00000, or such other principal place of business as the
Manager may from time to time determine. The Company may have, in addition to
such office, such other offices and places of business at such locations, both
within and without the State of Delaware, as the Manager may from time to time
determine or the business and affairs of the Company may require.
SECTION 1.5 NATURE OF PARTNERS' INTERESTS, NON-PARTITION
The interests of the Members in the Company shall be personal property for
all purposes. All property owned by the Company, whether real or personal,
tangible or intangible, shall be owned by the Company as an entity, and no
Member individually shall have any ownership of such property. Except as
otherwise stated and provided herein, no Member shall be entitled to seek
partition of any Company property.
SECTION 1.6 DURATION OF COMPANY
The term of the Company commenced upon the filing of the Certificate of
Formation with the Secretary of State of the State of Delaware and shall
continue in existence and be perpetual unless terminated pursuant to any
provisions of this Agreement or as otherwise provided by law.
SECTION 1.7 FURTHER ASSURANCES
The parties hereto will execute whatever certificates and documents, and
will file, record and publish such certificates and documents, which are
required to form and operate a limited liability company under the Act.
SECTION 1.8 CLASSIFICATION FOR TAX PURPOSES
The Members hereby acknowledge their intention that the Company be
classified, for federal and state income tax purposes, as a partnership and not
as an association taxable as a corporation, pursuant to Section 7701(a)(2) of
the Code, and agree that the provisions of this Agreement shall be construed in
a manner to give full effect to such intent.
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ARTICLE II
MEMBERS, MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS; LOANS
SECTION 2.1 MEMBERSHIP AND PARTICIPATION PERCENTAGES
The names, addresses and membership interest of each of the Members is as
follows:
NAMES AND ADDRESSES PARTICIPATION PERCENTAGE
WorldWide Web NetworX Corporation 50%
000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xx. Xxxxxx, XX 00000
JenCom Digital Technologies, LLC 50%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
SECTION 2.2 WWWX ASSIGNMENT
Simultaneously with the execution and delivery of the Prior Agreement, WWWX
assigned, transferred, delivered and conveyed to the Company all of its right,
title and interest in and to the "Purchased Assets" purchased by WWWX from
JenCom on the date of the execution and delivery of the Prior Agreement.
SECTION 2.3 CAPITAL ACCOUNTS
The Company shall establish and maintain a Capital Account for each Member
in accordance with GAAP.
SECTION 2.4 USE OF CAPITAL CONTRIBUTIONS AND LOANS
The Capital Contributions of the Members, all proceeds of Company
borrowings, and any Additional Capital Contributions and Members' Loans made
pursuant to this Agreement shall be used and applied for any Company purpose as
determined by the Members.
SECTION 2.5 ADDITIONAL CAPITAL CONTRIBUTIONS / MEMBERS' LOANS
(A) Unless agreed to by all the Members, no Member shall be required to
make any Capital Contributions or Members' Loans to the Company. It is
understood that WWWX had loaned to JenCom in connection with the Purchased
Assets a $900,000.00 ten-year interest free loan and that said loan has been
transferred to the Company. The loan is to be repaid at the earliest of the
following: (1) ten years from March 15, 1999, or (2) an investment into the
Company of a minimum of $10,000,000, or (3) the sale of any asset by the Company
exceeding $5,000,000. The $900,000 will be recorded as an interest free members'
loan which will be
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further used by the Manager in connection with the operations and development of
the Company as a member loan.
(B) At any time and from time to time after the date hereof, any Member may
(but shall not be obligated to) make Additional Capital Contributions or
Members' Loans to the Company, if the Members unanimously approve in advance
each such Additional Capital Contribution and Members' Loans.
(C) If any Member advances any funds to the Company after the date of this
Agreement (except in the case of Additional Capital Contributions) with the
approval of all the Members, such advances will be treated as Members' Loans,
will not increase such Members membership interest, and the amount thereof will
be a debt due from the Company to such Member, to be repaid with interest
thereon accruing at the fluctuating prime rate of interest published from time
to time by The Wall Street Journal (or, if The Wall Street Journal is no longer
published, the prime rate published in a publication of national circulation
selected by the Manager) plus two percent (2%), or as otherwise unanimously
approved by the Members.
SECTION 2.6 OPERATING DEFICITS
In the event that the Manager determines that the Company requires
additional funds to meet operating expenses or required capital improvements, or
for any other proper Company purpose (in any such case, an "Operating Deficit'),
the Manager may, with the prior unanimous consent of the Members, either (1)
request that the Members, pro rata in accordance with their then respective
Participation Percentages, advance funds in the amount so required, but in no
event will the Members be obligated to make such an advance or (2) obtain loans
on such terms as the Members approve unanimously, (3) if loans are not available
on terms satisfactory to the Members, unanimously, obtain additional equity
participation in the Company by the admission of additional Members and the pro
rata reduction of the existing Members' membership interests, or (4) take such
other actions, and explore and pursue such other financing options as the
Members may unanimously deem appropriate under the circumstances.
SECTION 2.7 PERMITTED OUTSIDE ACTIVITIES.
JENCOM and WWWX acknowledge that (a) the business of the Company may
involve business dealings with other businesses in which JENCOM, WWWX or their
affiliates have an interest, (b) JENCOM and WWWX and their affiliates may
maintain such other interests and activities, and (c) the Company, JENCOM and
WWWX each waives any rights it might otherwise have to share or participate in
such other interests or activities of JENCOM and WWWX or their affiliates.
SECTION 2.8 LIABILITY OF MEMBERS
No Member shall be liable for the debts, liabilities, contracts or other
obligations of the Company except to the extent of any unpaid capital
contributions it has agreed to make to the Company and its share of the assets
(including undistributed revenues) of the Company; no Member shall be required
to make any loans or capital contributions to the Company, except as
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may be agreed between a Member and the Company, with approval of all of the
Members. The Company shall indemnify and hold harmless each Member in the event
and Member (a) becomes liable, notwithstanding the preceding sentence, for any
debt, liability, contract or other obligation of the Company except to the
extent expressly provided in the preceding sentence or (b) is directly or
indirectly required to make any payments with respect thereto.
ARTICLE III
MEETINGS OF MEMBERS
SECTION 3.1 ANNUAL MEETINGS; SPECIAL MEETINGS
An annual meeting of the Members, commencing with the year 1999, shall be
held within four months following the end of the fiscal year of the Company. At
such meeting, the Members shall transact such business as may properly be
brought before the meeting. Special meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Member.
Only business within the purpose or purposes described in the notice of special
meeting of Members may be conducted at the meeting unless the Members otherwise
agree.
SECTION 3.2 PLACE OF MEETINGS
Meetings of Members shall be held at such places, within or without the
State of Delaware, as may from time to time be fixed by the Manager or as shall
be specified or fixed in the respective notices or waivers of notice thereof.
SECTION 3.3 NOTICE OF MEETINGS
Written or printed notice stating the place, day and hour of each meeting
of the Members and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than five nor more than
45 days before the date of the meeting, either personally or by mail, telegram,
express courier or telefax or similar communication, by or at the direction of
the person(s) calling the meeting, to each Member entitled to vote at the
meeting.
SECTION 3.4 QUORUM OF AND ACTION BY MEMBERS
A majority of the membership interests of the Members, represented in
person or by proxy, shall be requisite to and shall constitute a quorum at each
meeting of Members for the transaction of business, except as otherwise provided
by the Act. With respect to any matter, the majority vote of the Members shall
be required to constitute the act of the Members except as otherwise required
under the terms of this Agreement. The Members represented in person or by proxy
at a meeting of Members at which a quorum is not present may adjourn the meeting
until such time and to such place as may be determined by a majority vote of the
Members represented in person or by proxy at that meeting. At any such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted that might have been transacted at the meeting as originally
convened.
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SECTION 3.5 VOTING BY MEMBERS
A Member shall be entitled to a number of votes equal to the product of
such Member's membership interest (expressed as a percentage of 1.0) multiplied
times 100, on each matter submitted to a vote at a meeting of Members or
otherwise. For example, a 33.33% membership interest is entitled to 33.33 votes.
At any meeting of the Members, every Member having the right to vote shall be
entitled to vote either in person or by proxy executed in writing by such
Member. A telegram, telex, cablegram or similar transmission by the Member, or a
photographic, photostatic, facsimile or similar reproduction of a writing
executed by the Member, shall be treated as an execution in writing for purposes
of this Section 3.5. No proxy shall be valid after eleven months from the date
of its execution unless otherwise provided in the proxy. Each proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest. Each proxy shall be
delivered to the Manager prior to or at the time of the meeting.
SECTION 3.6 ACTION WITHOUT A MEETING; TELEPHONE MEETINGS
Any action required by the Act to be taken at any annual or special meeting
of Members, or any action which may be taken at any annual or special meeting of
Members, may be taken without a meeting, without prior notice, and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by all of the Members. A telegram, telex, cablegram or similar
transmission by a Member, or a photographic, photostatic, facsimile or similar
reproduction of a writing signed by a Member, shall be regarded as signed by the
Member for purposes of this Section 3.6. Subject to the provisions of applicable
law and this Agreement regarding notice of meetings, Members may participate in
and hold a meeting by using conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a telephone meeting pursuant to this Section
3.6 shall constitute presence in person at such meeting, except when a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting was not lawfully
called or convened.
ARTICLE IV
MANAGEMENT
SECTION 4.1 MANAGEMENT
The day to day business and affairs of the Company shall be managed,
subject to the terms and conditions set forth herein, by jointly by a designee
of WWWX, initially Xxxxxx Xxxxxxxxx and a designee of JENCOM, initially Xxxxx
Xxxxxxxxx (collectively, the "Manager"); provided that the Manager shall have no
authority, without the prior approval of all Members to make the following major
decisions (each being a "Major Decision"):
(a) amendment of the Certificate of Formation of the Company;
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(b) amendment of this Agreement;
(c) amendment of the Annual Work Plan and Budget of the Company to be
submitted for the Members' approval;
(d) approval of a transfer of a Members interest or admission of a
Member;
(e) agreement to continue the business of the Company after an event
of dissolution specified in Section VIII;
(f) creation, incurrence, assumption, or guarantee of any
indebtedness for money borrowed, or an increase of the amount of
any indebtedness outstanding under any loan agreement, mortgage,
or other borrowing arrangement, in either case in excess of the
amounts approved in the Annual work Plan and Budget;
(g) assigning, transferring, pledging, compromising or releasing of
any of the claims of or debts due the Company except upon payment
in full, or arbitrating or consenting to the arbitration of any
of the disputes or controversies of the Company;
(h) any action which would cause the Company to become a surety,
guarantor or accommodation party to any obligation;
(i) any action which would cause the Company to grant a security
interest to any third party in any of the Company's assets;
(j) making, executing, or delivering any assignment for the benefit
of creditors or taking any action on behalf of the Company with
respect to any bankruptcy decisions, including, without
limitation, initiating any bankruptcy or insolvency proceedings,
or liquidating, dissolving or winding up the Company;
(k) acquiring or agreeing to acquire any equity interest in any
entity or any of such entity's assets or approval of a merger,
consolidation or other reorganization of the Company, including,
without limitation, entering into an operating agreement to form
an separate legal entity in which the Company will have an equity
interest and whose other equity participants may include
providers of various systems of Electronic Business, product data
base management, other information technology and investment
recovery operations;
(l) making of, or entry into, any obligation on behalf of the Company
for a commitment, or making of any capital expenditure, in excess
of the amounts approved in the Annual Work Plan and Budget;
(m) lending funds belonging to the Company to any Member or any third
party or extend to any person, firm or corporation, credit on
behalf of the Company, except for the extension of credit in the
ordinary course of the Company's business to
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trade debtors in excess of the amounts approved in the Annual
Work Plan and Budget;
(n) making, execution or delivery of any contract or other
transaction with the officers of the Company or other related
party of the Company, including compensation of management;
(o) authorizing or approving a fundamental change in the business of
the Company, including a sale of all or substantially all of its
assets;
(p) approving any other matter in which the approval of the Members
is expressly required by this Agreement or by the Act; or
(q) entering into an agreement to do or effect any of the foregoing.
SECTION 4.2 LIABILITY: INDEMNIFICATION OF THE MANAGER
The Company shall indemnify, defend and hold harmless each Member, each of
their officers, directors, employee and agents, the Manager and each of its
officers, directors, employees and agents and such other officers appointed by
the Manager, and any other Person acting as an agent of the Company to whom the
Manager shall specifically and in writing have conferred rights hereunder (each,
an "Indemnified Person"), against any loss, expense, damage, claim, liability,
obligation, judgment or injury suffered or sustained by such Indemnified Person
by reason of any act, omission or alleged act or omission by such Indemnified
Person, arising out of such Indemnified Person's activities on behalf of the
Company or in furtherance of the interests of the Company, including, without
limitation, any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any actual or
threatened actions, proceedings or claims, all costs of which shall be charged
to and paid by the Company as incurred; provided, however, that the acts,
omissions or alleged acts or omissions upon which such actual or threatened
actions, proceedings or claims are based were performed or omitted in good faith
and within the scope of such Person's authority hereunder, and were not
fraudulent, in bad faith or a result of wanton and willful misconduct or gross
negligence by such Indemnified Person.
SECTION 4.3 INTERESTED MANAGER AND OFFICERS
No transaction between the Company and one or more of its Members, the
Manager or officers, or between the Company and any other business entity in
which one or more of its Members, the Manager or officers have an interest shall
be void or voidable solely for this reason, or solely because the Manager or
officer is present at or participates in the meeting of the Manager which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if (a) the material facts as to the transaction are
disclosed or are known to the Members entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote of the
disinterested Members; and (b) the transaction is fair as to the Company as of
the time it is authorized, approved or ratified by the Manager or the Members.
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SECTION 4.4 MANAGER'S COMPENSATION AND REIMBURSEMENT
The compensation, if any, of the Manager shall be fixed from time to time
by all of the Members. The reimbursement, if any, of the Manager for reasonable
expenses incurred in managing the Company may be allowed from time to time by
the Manager.
SECTION 4.5 TIME DEVOTED TO COMPANY
The Manager shall devote such time to Company business as the Manager deems
necessary to manage and supervise Company business and affairs in an efficient
manner; but nothing in this Agreement shall preclude the employment of any
agent, third party or affiliate to manage or provide other services with respect
to the Company's assets or business as the Members shall determine.
SECTION 4.6 RECORDS AND REPORTS.
The Manager, at the expense of the Company, shall keep or cause to be kept
adequate books of account and records (which books and records are to be the
property of the Company), setting forth a true and accurate account of the
business and affairs of the Company. The books of account of the Company will be
kept on the accrual basis method of accounting for financial accounting
reporting and federal income tax purposes and maintained in accordance with
GAAP. Such books and records are to be kept at the principal place of business
of the Company and are to include:
(a) Information regarding the status of the business and financial
condition of the Company.
(b) A copy of the Company's federal, state and local income tax
returns for each year.
(c) A current list of the name and last known business, residence or
mailing address of each Member and its Members interests.
(d) A copy of this Agreement and the Certificate of Formation and all
amendments to both.
(e) Information regarding the amount of cash and a description and
statement of the agreed value of any other property or services contributed
by each Member and which each Member has agreed to contribute in the
future, and the date on which each became a Member.
SECTION 4.7 FISCAL YEAR
The fiscal year of the Company will be the calendar year for financial
reporting and federal income tax purposes.
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SECTION 4.8 REPORTS
Unless other determined by the Members, the Manager shall cause to be
prepared and delivered to the Members:
(a) Within 30 days after the end of each quarterly period of each
fiscal year of the Company, an operating report for such quarterly period;
(b) Within 30 days after the end of each of the first three quarterly
periods of each fiscal year of the Company, an unaudited balance sheet and
related unaudited statement of income and retained earnings (or changes in
Member capital) and of cash flow for such quarterly period and for the
portion of the fiscal year through the end of such fiscal quarter, setting
forth in each case in comparative form the figures for the previous period;
(c) Within 60 days after the end of each fiscal year of the Company, a
regular annual audit of the Company's financial records by the Company's
independent auditors, including an audited balance sheet of the Company as
of the end of such fiscal year and a related audited statement of income,
retained earnings (or changes in member capital) and of cash flow (and
capital proceeds, if any) for such fiscal year, putting forth in each case
in comparative form the figures for the previous fiscal year; and
(d) At such time or times requested, such other or additional reports
as may be reasonably requested by a Member.
SECTION 4.9 REQUIRED FILINGS
The Manager shall cause the Company to file, at the Company's expense, on
or before the dates the same may be due, giving effect to extensions obtained,
all reports, returns and applications which may be required under the Act or any
other governmental or quasi-governmental body having jurisdiction. The Manager
shall furnish copies of all such reports, returns and applications to the
Members, such furnishing to occur not less than three business days prior to
filing except in the case of reports that are routine and non-substantive. All
reports, returns and applications which may be required by any taxing authority
will be handled by the Manager, pursuant to the provisions of Section 6.2.
Copies of all accounts, reports and other filings pertaining to the Company
furnished by a Member or the Company to any regulatory authority are to be
available to all Members upon request. Copies of all reports and notices
pertaining to the Company furnished by the accountants for the Company are to
also be available to all Members upon request.
SECTION 4.10 INSPECTION OF RECORDS
The books and records of the Company will be open to inspection,
examination and audit and available for copying by each Member at all reasonable
times with reasonable prior notice. Any Member exercising its right to inspect,
examine, audit or copy all or any portion of such books and records will bear
all direct out-of-pocket expenses incurred by both that Member and the Company
in connection with the same.
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SECTION 4.11 ANNUAL BUDGET
By not later than October 31 of each year, the Manager will prepare and
present to the Members an Annual Workplan and Budget for the succeeding fiscal
year for the Member's review and unanimous approval. If such Annual Workplan and
Budget is not approved, the Annual Workplan and Budget then in effect shall
continue in effect, adjusted by the percentage change in the Consumer Price
Index from the previous year, until a new Annual Workplan and Budget is
approved.
SECTION 4.12 LIABILITY OF MANAGER
The Manager shall not be liable for the debts, liabilities, contracts or
other obligations of the Company; provided, however, that the Manager shall be
liable for any debts, liabilities, contracts or other obligations of the Company
incurred or agreed to by such Manager without authorization and in violation of
Section 4.1 of this Agreement.
ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS
The Manager may designate one or more individuals (who may or may not be
the Manager) to serve as officers of the Company. The Company shall have such
officers as the Manager may from time to time determine, which officers may (but
need not) include a Chairman, a President, one or more Vice Presidents (and in
case of each such Vice President, with such descriptive title, if any, as the
Manager shall deem appropriate), a Secretary, an Assistant Secretary and a
Treasurer. Any two or more offices may be held by the same person.
SECTION 5.2 COMPENSATION
The compensation, if any, of all officers of the Company shall be fixed
from time to time by the Members acting unanimously.
SECTION 5.3 TERM OF OFFICE; REMOVAL; FILLING OF VACANCIES
Each officer of the Company shall hold office until his successor is chosen
and qualified in his stead or until his earlier death, resignation, retirement
disqualification or removal from office. Any officer designated by the Manager
may be removed at any time by the Manager whenever in his judgment the best
interests of the Company will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Designation of an officer shall not of itself create contract rights. If the
office of any officer becomes vacant for any reason, the vacancy may be filled
by the Manager.
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SECTION 5.4 CHAIRMAN
The Chairman, if one is designated by the Manager, shall preside at
meetings of the Manager and the Members. He shall assist the Manager in the
formulation of policies of the Company, and shall be available to other officers
for consultation and advice.
SECTION 5.5 PRESIDENT
The President, if one is designated by the Manager, shall be the chief
executive officer of the Company and shall have general supervision of the
affairs of the Company.
SECTION 5.6 VICE PRESIDENTS
Each Vice President that is designated by the Manager shall generally
assist the President and shall have such powers and perform such duties and
services as shall from time to time be prescribed or delegated to him by the
President or the Manager.
SECTION 5.7 SECRETARY
The Secretary, if one is designated by the Manager, shall keep and account
for the records of the Company.
SECTION 5.8 ASSISTANT SECRETARY
The Assistant Secretary, if one is designated by the Manager, shall
generally assist the Secretary.
SECTION 5.9 TREASURER
The Treasurer, if one is designated by the Manager, shall be the chief
accounting and financial officer of the Company and shall have active control of
and shall be responsible for all matters pertaining to the accounts and finances
of the Company.
SECTION 5.10 ADDITIONAL POWERS AND DUTIES
In addition to the foregoing especially enumerated duties, services and
powers, the several officers of the Company shall perform such other duties and
services and exercise such further powers as may be provided by statute, the
Certificate of Formation or this Agreement, or as the Manager may from time to
time determine or as may be assigned to them by any competent superior officer.
In addition to the designation of officers and the enumeration of their
respective duties, services and powers, the Manager may xxxxx xxxxxx of
attorneys to individuals to act as agent for or on behalf of the Company, to do
any act which would be binding on the Company, to incur any expenditures on
behalf of or for the Company, or to execute, deliver and perform any agreements,
acts, transactions or other matters on behalf of the Company. Such powers of
attorney may be revoked or modified as deemed necessary by the Manager.
Page 12 of 28
ARTICLE VI
ACCOUNTING AND TAX MATTERS; REPORTS; BANKING
SECTION 6.1 BOOKS AND RECORDS; CAPITAL ACCOUNTS
An individual capital account shall be established and maintained by the
Company for each Member in accordance with the applicable provisions of the Code
and the Treasury Regulations, including Section 1.704-1(b)(2)(iv). The Manager,
after notice to the Members, is authorized to modify the manner in which the
capital accounts are maintained if the Manager determines that such
modification (a) is required or prudent to comply with the Treasury
Regulations and (b) is not likely to have a material effect on the amounts
distributable to any Member upon the dissolution of the Company.
SECTION 6.2 RETURNS TAX
The Manager shall prepare or cause to be prepared and timely file all
federal, state and local income and other tax returns and reports as may be
required as a result of the business of the Company.
SECTION 6.3 TAX MATTERS PERSON
JENCOM shall be the initial tax matters person ("TMP") under Section 6231
of the Code. A TMP may be removed, and a successor TMP be selected, by the
majority vote of the Members. The TMP shall not take any actions (including
without limitation extending the statute of limitations, filing a request for
administrative adjustment filing suit concerning any Company tax matter, or
entering into a settlement agreement relating to any Company tax matter), or
execute or file any statements or forms, on behalf of the Company unless and
until the TMP is authorized to do so by the majority vote of the Members.
SECTION 6.4 TAX ELECTIONS
The manager shall make or cause to be made such accounting and tax
elections as directed by the unanimous vote of the Members.
SECTION 6.5 BANK ACCOUNTS; INVESTMENT OF COMPANY FUNDS
The Manager shall cause one or more accounts to be maintained in the name
of the Company in one or more banks, which accounts shall be used for the
payment of expenditures incurred in connection with the business of the Company
and in which shall be deposited any and all receipts of the Company. All such
accounts shall be and remain the property of the Company and shall be received,
held and disbursed for the purposes specified in this Agreement. There shall not
be deposited in any of such accounts any funds other than funds belonging to the
Company, and no other funds shall in any way be commingled with such funds. The
Manager
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may invest the Company funds in accordance with written investment guidelines
established from time to time by the Manager approved by all the Members.
ARTICLE VII
TRANSFER OF COMPANY INTERESTS, WITHDRAWAL OF MEMBERS, BUY/SELL PROVISIONS
SECTION 7.1 ASSIGNMENT AND TRANSFER
A. No membership interest or other interest of a Member in the Company may
be transferred or assigned (including any collateral assignment or pledge of any
interest in the Company), in whole or in part, by such Member, and no transferee
or assignee thereof may be admitted as a substituted Member of the Company,
unless and until, in each instance:
1. A duly executed and acknowledged instrument of assignment, setting
forth the intention of the assignor that the assignee become a
substituted Member in its place, is delivered to the remaining Member,
2. The assignor and assignee execute and acknowledge such other
instruments (if any) as the remaining Member reasonably may deem
necessary or desirable to effect such admission, which shall include
the written acceptance and adoption by the assignee of the provisions
of this Agreement and may include the assumption of any unperformed
obligation of the assignor provided that such assignor shall not
thereby be released from any of its unperformed obligations that arose
on or prior to the date of the assignment, specifically including,
without limitation, its obligations hereunder to make Capital
Contributions required prior to the date of the assignment on the
terms herein provided;
3. The written consent of the other Member of the Company, which consent
may not be unreasonably witheld, shall have been obtained;
4. Such interest shall first be offered to the remaining Member for a
period of thirty (30) days at a price (the "OFFER PURCHASE PRICE")
equal to that intended to be offered by the selling Member to third
parties. If the remaining Member elects to exercise the right of first
offer granted hereby, it must make an offer on the entire interest
intended to be offered by the selling Member. If the selling Member
has not received a written offer from the remaining Member on terms
satisfactory to it within such thirty (30) day period, it shall then
be free, subject to the provisions of this Article VII, to sell the
interest offered to the remaining Member on the terms of the offer. If
the selling Member fails to so dispose of its interest within one
hundred eighty (180) days from its right to do so, the first offer
procedure established by this Section 7.1 shall be reinstated. In the
event a Member elects to exercise the right of first offer granted
hereby, the price shall be payable in the manner and on the terms of
the third party offer;
Page 14 of 28
B. Notwithstanding anything to the contrary contained in this Article VII,
JENCOM may from time to time transfer its interest in the Company, or any part
thereof, to an Affiliate or from such Affiliate back to JENCOM without the
consent of any other Member that might otherwise be required; provided, however,
that no such transferee shall be admitted as substitute Member in the Company
unless and until JENCOM complies with the notice and documentation requirements
of Section 7.1 A (1,2,3). Notwithstanding any such transfer, JENCOM shall remain
obligated for all of its obligations hereunder arising both before and after
such transfer, and shall, as a condition of the transfer, expressly confirm its
obligations to the remaining Members at the time of the transfer.
C. Notwithstanding anything to the contrary contained in this Article VII,
WWWX may from time to time transfer its interest in the Company, or any part
thereof, to any entity which is owned or controlled by it or from such entity
back to WWWX without the consent of any other Member that might otherwise be
required; provided, however, that no such transferee shall be admitted as
substitute Member in the Company unless and until WWWX complies with the notice
and documentation requirements of Section 7.1 A(1,2,3), and the consent required
is obtained. Notwithstanding any such transfer, WWWX shall remain obligated for
all of its obligations hereunder arising both before and after such transfer,
and shall, as a condition of the transfer, expressly confirm its obligations to
the remaining Member at the time of the transfer.
SECTION 7.2 EXPENSES
Expenses of the Company or of any non-transferring Member occasioned by
transfers of interests held by Members shall be reimbursed to the Company or
such Member, as the case may be, by the transferring Member. Expenses of the
transferring Member and taxes incurred by any non-transferring Member are not
included within the foregoing reimbursement.
SECTION 7.3 WITHDRAWAL OF MEMBERS
No Member may voluntarily withdraw or retire from the Company except upon
the assignment of its entire interest in the Company (if and as permitted by
this Article VII) or upon the surrender, abandonment or other voiding of its
interest pursuant to the next succeeding sentence hereof. Any Member may, by at
least thirty (30) days prior written notice delivered to the remaining Member,
renounce its interest in all current and future profits, losses and
distributions of the Company, and abandon to the Company its capital
contributions; provided, however, that any such surrender, abandonment or other
voiding shall not in any case affect the withdrawing Members obligations
hereunder, including specifically, but without limitation, each Members
respective obligations under Article III hereof to continue to make Additional
Capital Contributions or Members' Loans as and to the extent called for or
otherwise required thereunder.
SECTION 7.4 DEATH, LEGAL INCAPACITY, DISSOLUTION OR BANKRUPTCY OF A MEMBER
Upon the death, legal incapacity, dissolution or bankruptcy of a Member,
subject to the terms, conditions and rights provided for under Section VI I
hereof, its successor or assign will have all the rights of the Member for the
purpose of settling or managing its estate, and such
Page 15 of 28
power as the deceased, incapacitated, dissolved or bankrupt Member possessed to
constitute a successor as an assignee of its interest in the Company and to join
with such assignee in making application to substitute such assignee as a
substituted member.
SECTION 7.5 STATUS OF INTERESTS TRANSFERRED
In any transfer, assignment or conveyance (or retransfer, reassignment or
reconveyance) of any Participation Percentage herein by a Member to the other
Member or other Person in a manner specifically permitted by the express terms
of this Agreement or by operation of law, the transferee or assignee shall
succeed to the same share of profits and losses of the Company and the same
Participation Percentages, distribution priorities and ownership rights as were
incident to the interest so transferred, assigned or conveyed.
ARTICLE VIII
DISSOLUTION AND TERMINATION
SECTION 8.1 DISSOLUTION
A. The Company will be dissolved:
1. upon the withdrawal, removal, bankruptcy or dissolution of a
Member, as provided herein or otherwise by the Act, unless the
remaining Member(s) unanimously agree to continue the business of
the Company (if more than one Member remains) within ninety (90)
days after the occurrence of such event or if otherwise agreed to
by the Members;
2. provided however, that the Company shall not terminate until its
affairs have been wound up and its assets distributed as provided
herein or as otherwise provided herein.
B. As used in Section VIII hereof, the term bankruptcy shall mean (i) the
commencement of a Member of a voluntary case under any Chapter of the Bankruptcy
Code (Title 11 of the United States Code), as now or hereafter in effect, or the
taking by a Member of any equivalent or similar action by the filing of a
petition or otherwise under any other federal or state law in effect at the time
relating to bankruptcy or insolvency, (ii) the filing of a petition against a
Member under any Chapter of the Bankruptcy Code (Title 11 of the United States
Code), as now or hereafter in effect, or the filing of a petition seeking any
equivalent or similar relief against a Member under any other federal or state
law in effect as of the time relating to bankruptcy or insolvency, and in either
case the failure by such Member to secure the discharge of any other such
petition within sixty (60) consecutive days from the date of filing, (iii) the
making by a Member of a general assignment for the benefit of his, its or any of
their creditors, (iv) the appointment of a receiver, trustee, custodian or
similar officer for a Member or for the property of a Member and the failure by
such Member to secure the discharge of such receiver, trustee, custodian or
similar officer within sixty (60) consecutive days from the date of
Page 16 of 28
appointment, or (v) the admission in writing by a Member of any inability to pay
debts generally as they become due.
SECTION 8.2 APPOINTMENT OF LIQUIDATING MEMBER
Upon the dissolution of the Company, if the Company's business is not
continued pursuant to this Section VIII, subject in any event top the rights of
any Member under Section VII hereof, the Manager or its designee shall liquidate
the assets and wind up the affairs of the Company on the terms hereinafter set
forth.
SECTION 8.3 DISTRIBUTIONS AND OTHER MATTERS
Promptly upon the dissolution of the Company, if the Company's business is
not continued pursuant to Section VIl hereof, and in any event subject to the
rights of any Member under Section VII hereof, the Manager will cause the assets
of the Company to be liquidated. After proper adjustment to the Capital Accounts
pursuant to Section III (giving effect to all contributions, distributions, and
allocations for all taxable years, including the taxable year during which such
liquidation occurs), the proceeds of the liquidation of the Company shall be
applied and distributed in the following order: (i) to the discharge of all of
the Company's debts and liabilities (whether by payment or the making of
reasonable provision for payment thereto, other than those to any of the
Members, including expenses of liquidation, (ii) to the setting up of any
reserves which the liquidator may deem reasonably necessary for any contingent
liabilities or obligations of the Company, (iii) to the payment and discharge of
any debts and liabilities of the Company to any of the Members, and (iv) to the
Members to the extent of their positive Capital Accounts.
SECTION 8.4 DISTRIBUTIONS OF PROPERTY
A. Upon liquidation, the Members may demand or receive property other than
cash in return for their respective contributions, loans or advances or upon
dissolution as provided herein, but only upon the written approval of the
Manager.
B. In the event that property is distributed (or deemed distributed
pursuant to the provisions of Code Section 708) by the Company to a Member, the
following special rules shall apply:
1. the Capital Accounts of the Members shall be adjusted as provided in
Treasury Regulations Section 1.704-1(b)(2)(iv)(e) to reflect the
manner in which the unrealized income, gain, loss and deduction
inherent in such property (that has not already been reflected in the
Members' Capital Accounts) would be allocated to such Member if there
were a taxable disposition of such property for its fair market value
on the date of distribution; and
2. the Capital Account of the Member who is receiving the distribution of
property from the Company shall be charged with the fair market value
of the property at the time of distribution (net of liabilities
secured by such distributed property that
Page 17 of 28
such Member is considered to assume or take subject to under Code
section 752).
SECTION 8.5 ACTION DURING LIQUIDATION: STATEMENTS OF ACCOUNT
A. A reasonable time shall be allowed for the winding up of the affairs of
the Company in order to minimize any losses otherwise attendant upon such a
winding up. The Manager shall make final distributions in liquidation of the
Company in the manner set forth above before the later of (1) the end of the
taxable year in which the date of the liquidation of the Company occurs, or (ii)
90 days after the date of the liquidation of the Company. For this purpose, the
date of the liquidation of the company shall be the date on which the Company
has ceased to be a going concern (within the meaning of Treasury Regulation
Section 1.704-1 (b)(2)(ii)(g).
B. During the period of liquidation, the Manager, as trustee for the
benefit of all Members as tenants in common, will take any and all action
necessary or appropriate to complete such liquidation and distribution as
provided in this Article, having for such purpose all of the powers enumerated
in Article IV of this Agreement necessary or appropriate to accomplish the same.
C. The Manager will prepare or cause to be prepared a final statement of
the accounts of the Company as of the date of termination, and, as promptly as
possible thereafter, a copy thereof will be furnished to each Member. Such
statement will set forth the actual or contemplated application and distribution
of the assets of the Company. Upon completion of distribution as required
hereby, a further statement for the period of liquidation will be so prepared by
the Manager and furnished to each Member.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 9.1 REPRESENTATIONS AND WARRANTIES.
A. WWWX represents and warrants to JENCOM, and its successors and assigns
as follows:
1. WWWX is a publicly traded (OTC:BB) company, duly organized, validity
existing and in good standing under the laws of the State of Delaware.
2. This Agreement has been duly and validly executed and delivered by
WWWX and constitutes its legal, valid and binding obligation,
enforceable in accordance with the terms hereof, and no authorization,
consent, approval, license, exemption or other action by, and no
registration, qualification, designation, declaration or filing with,
any governmental body or agency is or will be necessary or advisable
in connection with the execution and delivery by WWWX of this
Agreement.
Page 18 of 28
3. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor the
performance of or compliance with the terms and conditions hereof,
will conflict with or result in a breach of or default under any
agreement or instrument to which WWWX, is a party or by which it or
its properties (now owned or hereafter acquired) may be subject or
bound.
4. There is no pending or (to their knowledge after due inquiry)
threatened proceeding by or before any court or governmental agency
against or affecting WWWX or any of its stockholders which, if
adversely decided, would have an adverse affect on the business,
operations or conditions, financial or otherwise, of the Company, or
on the ability of WWWX to perform its obligations hereunder or
otherwise contemplated hereby, and no proceeding is pending or
threatened against WWWX under any Federal or State bankruptcy or
insolvency law.
5. WWWX has filed all federal, state, local and foreign income,
franchise, real and personal property, and other tax returns,
estimates and statements which were required to be filed, has paid all
taxes (whether income, sales, use, property, unemployment, social
security, import duties, export duties and/or other) as shown on said
returns, estimates and statements, and has made appropriate provision
for the payment of all such taxes where returns, estimates and
statements are not yet required to be filed. All said tax returns and
statements correctly set forth and report the entire liability of WWWX
for such taxes.
6. WWWX has no knowledge of any intention of any of its key employees to
sever employment arrangements with WWWX, and has no knowledge of any
plan or intention of any of its principal customers to cancel
presently existing contracts or other material business arrangements
or relationship with WWWX, or to take any other action which would
adversely affect the business, operation or anticipated earnings of
WWWX.
7. There are no controversies pending or threatened between WWWX and any
of its employees and WWWX has not taken or failed to take any action,
which would provide a reasonable basis for any such controversy. WWWX
has complied with all laws relating to the employment of labor,
including any provisions thereof relating to wages, hours, collective
bargaining and the payment of social security and similar taxes, and
WWWX is not liable for any arrears of wages or any taxes or penalties
for failure to comply with any of the foregoing. WWWX has no knowledge
of any organizational efforts presently being made or threatened by or
on behalf of any labor union in respect of WWWX or its employees.
8. The JenCom Assets contributed by WWWX to the Company include and
constitute the identified assets in the acquisition agreement.
Page 19 of 28
9. WWWX has and expects to continue to have the authority and resources
to fully consummate in a timely fashion the transactions contemplated
by this Agreement and the other documents, instruments and agreements
to be executed by and between WWWX and the Company concurrent with the
execution and delivery of this Agreement.
10. None of the information and documents furnished by WWWX or its
representatives to the Company or any other Member of the Company in
connection with the execution and delivery of this Agreement is false
or misleading in any material respect or contains any material
misstatement of fact or omits to state a material fact required to be
stated to make the statements therein not misleading. WWWX has
disclosed to the Company and each of the other Members of the Company
all information known to WWWX which is material and relevant to the
execution and delivery of this Agreement and the formation of the
Company as contemplated hereby.
B. JENCOM represents and warrants to WWWX, and its successors and assigns
as follows:
1. JENCOM is a Company, duly organized, validity existing and in good
standing under the laws of the State of Delaware.
2. This Agreement has been duly and validly executed and delivered by
JENCOM and constitutes its legal, valid and binding obligation,
enforceable in accordance with the terms hereof, and no authorization,
consent, approval, license, exemption or other action by, and no
registration, qualification, designation, declaration or filing with,
any governmental body or agency is or will be necessary or advisable
in connection with the execution and delivery by JENCOM of this
Agreement.
3. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor the
performance of or compliance with the terms and conditions hereof,
will conflict with or result in a breach of or default under any
agreement or instrument to which JENCOM, is a party or by which it or
its properties (now owned or hereafter acquired) may be subject or
bound.
4. There is no pending or (to their knowledge after due inquiry)
threatened proceeding by or before any court or governmental agency
against or affecting JENCOM or any of its stockholders which, if
adversely decided, would have an adverse affect on the business,
operations or conditions, financial or otherwise, of JENCOM, or on the
ability of JENCOM to perform its obligations hereunder or otherwise
contemplated hereby, and no proceeding is pending or threatened
against JENCOM under any Federal or State bankruptcy or insolvency
law.
5. JENCOM has filed all federal, state, local and foreign income,
franchise, real and personal property, and other tax returns,
estimates and statements which were
Page 20 of 28
required to be filed, has paid all taxes (whether income, sales, use,
property, unemployment, social security, import duties, export duties
and/or other) as shown on said returns, estimates and statements, and
has made appropriate provision for the payment of all such taxes where
returns, estimates and statements are not yet required to be filed.
All said tax returns and statements correctly set forth and report the
entire liability of JENCOM for such taxes.
6. JENCOM has no knowledge of any intention of any of its key employees
to sever employment arrangements with JENCOM, and has no knowledge of
any plan or intention of any of its principal customers to cancel
presently existing contracts or other material business arrangements
or relationship with JENCOM, or to take any other action which would
adversely affect the business, operation or anticipated earnings of
JENCOM.
7. There are no controversies pending or threatened between JENCOM and
any of its employees and JENCOM has not taken or failed to take any
action, which would provide a reasonable basis for any such
controversy. JENCOM has complied with all laws relating to the
employment of labor, including any provisions thereof relating to
wages, hours, collective bargaining and the payment of social security
and similar taxes, and JENCOM is not liable for any arrears of wages
or any taxes or penalties for failure to comply with any of the
foregoing. JENCOM has no knowledge of any organizational efforts
presently being made or threatened by or on behalf of any labor union
in respect of JENCOM or its employees.
8. The JenCom Assets contributed by WWWX to the Company include and
constitute the identified assets in the acquisition agreement.
9. JENCOM has and expects to continue to have the authority and resources
to fully consummate in a timely fashion the transactions contemplated
by this Agreement and the other documents, instruments and agreements
to be executed by and between JENCOM and the Company concurrent with
the execution and delivery of this Agreement.
10. None of the information and documents furnished by JENCOM or its
representatives to the Company or any other Member of the Company in
connection with the execution and delivery of this Agreement is false
or misleading in any material respect or contains any material
misstatement of fact or omits to state a material fact required to be
stated to make the statements therein not misleading. JENCOM has
disclosed to the Company and each of the other Members of the Company
all information known to JENCOM which is material and relevant to the
execution and delivery of this Agreement and the formation of the
Company as contemplated hereby.
Page 21 of 28
ARTICLE X
AMENDMENTS
SECTION 10.1 AMENDMENTS
The power to adopt, alter, amend or repeal this Agreement is vested solely
in the Members. This Agreement may be altered, amended or repealed, or a new
limited liability company agreement may be adopted, only by the unanimous vote
or consent of the Members. The Manager may not adopt, alter, amend or repeal any
provision of this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 MANNER OF GIVING NOTICE
Except as otherwise expressly provided in this Agreement, all notices,
demands, requests, or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be given either (a) in
person upon an executive officer, (b) by mail, certified or registered, return
receipt requested, postage prepaid, (c) by prepaid telegram, telex, cable,
telecopy, or similar means (with signed confirmed copy to follow by mail in the
same manner as prescribed by clause (b) above) or (d) by expedited delivery
service (charges prepaid) with proof of delivery. For purposes of the foregoing,
any notice required or permitted to be given shall be deemed to be delivered and
given on the date actually delivered to the address specified in this Article
II.
SECTION 11.2 WAIVER OF NOTICE
Whenever any notice is required to be given to any Member or the Manager of
the Company under the provisions of the Act, the Certificate of Organization or
this Agreement, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
SECTION 11.3 NO COMPANY SEAL
The Company shall not have a Company seal, and no agreement, instrument or
other document executed on behalf of the Company that would otherwise be valid
and binding on the Company shall be invalid or not binding on the Company solely
because no Company seal is affixed thereto.
SECTION 11.4 PUBLIC ANNOUNCEMENTS.
Except as otherwise required by law, each Member shall consult with the
other Members prior to issuing any public announcement, statement or other
disclosure with respect to the Company, such Member's participation therein and
the transactions contemplated by this
Page 22 of 28
Agreement and shall not issue any such announcement, statement or disclosure
without the consent of all Members.
Page 23 of 28
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
day and year first above written.
WORLDWIDE WEB NETWORX CORPORATION
BY: //s// XXXXXX XXXXXXXXX
------------------------------
TITLE: Chairman
---------------------------
JENCOM DIGITAL TECHNOLOGIES, LLC
BY: //s// XXXXX XXXXXXXXX
------------------------------
TITLE: Manager
---------------------------
