LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF BARCOM ASIA HOLDINGS, LLC
Exhibit 3.6
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (herein “Agreement”) is made and entered
into as of this first day of January, 2005, by and among Barcom Asia Holdings, LLC, a Kentucky
limited liability company (“Company”), and Xxxxx X. Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxx Xxxxxx. The
parties hereto, intending to be legally bound, agree as follows:
amount set forth opposite such Member’s name on Schedule 1 attached hereto. In exchange for
such capital contribution, each Member shall receive the number of Units set forth opposite such
Member’s name on Schedule 1.
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(a) Except as otherwise provided in Section 8.2, distributions to Unit Holders shall be made
in such amounts and at such times as the Manager(s) shall determine. For purposes of this Section
3.2, neither a reimbursement to a Manager or a Member for expenditures properly considered as costs
or expense of Company, nor the payment by Company of any fee to a Manager or Member, nor the
repayment of any principal or interest on any loan by a Unit Holder or Manager to Company, shall be
considered a distribution of cash flow to a Manager or Unit Holder, and Company may make any such
reimbursement, payment, or repayment prior to any distribution of cash flow to any Unit Holder
under this Section 3.2.
(b) Except as otherwise provided in Section 8.2, in the event a distribution is to be made,
such distribution shall be allocated among the Unit Holders in proportion to their respective
Units.
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authorize the borrowing of funds by the Company from a Member upon terms determined by the
Manager(s), and any action taken by the Manager(s) shall constitute the act of and serve to bind
Company. In dealing with the Manager(s), all persons are entitled to rely conclusively on the
authority of the Manager(s) to bind Company.
(a) The initial number of Manager(s) of Company shall be one (1) and Xxxxx X. Xxxxxx shall
serve as the initial Manager(s) of Company. Such number may be changed from time to time upon the
affirmative vote of Members holding a majority of the Units held by all Members. Each Manager shall
hold office until such Manager’s successor shall have been elected by the affirmative vote of
Members holding a majority of the Units held by all Members.
(b) No Manager may be removed from office by the Members.
(c) A Manager may resign at any time upon prior written notice to Company. In the event of a
vacancy in the position of Manager by reason of resignation, removal, or withdrawal, a successor
shall be appointed by the affirmative vote of the Members holding a majority of the Units held by
all Members.
(d) A Manager shall not be required to be a Member of Company or a resident
of the State.
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Participation in such meeting shall constitute attendance and presence in person at the meeting of
the Persons so participating.
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(a) No Transfer of Units shall be made by any Unit Holder except Transfers which are permitted
by and made in compliance with this Section 6.1 and either Section 6.2, 6.3, 6.4, or 6.5. No Units
shall be Transferred (i) without compliance with any and all state and federal securities laws and
regulations; and (ii) unless the transferee otherwise complies with this Agreement. Any attempted
Transfer of Units in violation of this Article shall be null, void and of no effect and shall
confer no rights on the transferee as against Company or any Member. The transferor Member shall not retain any Membership Rights with respect to the Transferred Units,
whether or not the transferee is admitted as a Member. Unless otherwise provided in the instrument
of Transfer and subject to Section 6.2 below, a Transfer of Units shall include all of the
transferor’s rights (including Membership Rights) with respect to the Transferred Units.
(b) The effective date of a Transfer made in accordance with the terms of this Article shall
be the date the conditions set forth and the written instruments described in this Article 6 are
satisfied and received. Company shall be entitled to treat the transferor as the absolute owner of
the Transferred Units in all respects and shall incur no liability for
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distributions or allocations made in good faith to such transferor until such time as
these conditions are satisfied.
(c) The costs incurred by Company associated with the Transfer of Units and the admission (if
any) of a Member contemplated by this Article (including reasonable attorneys’ fees) shall be borne
by the transferee.
(d) The Transfer of Units to a Permitted Transferee shall constitute a permitted
Transfer hereunder.
(a) Except as provided in this Section 6.2, the transferee shall not be entitled to become a
Member or have any Membership Rights with respect to the transferred Units, other than the right to
receive, to the extent assigned, the distributions of cash and other property and the allocations
of income, gains, losses, deductions and credits to which the transferor Member would otherwise be
entitled with respect to the transferred Units.
(b) A transferee of Units who is not already a Member shall be admitted as a Member and shall
be entitled to all Membership Rights with respect to the transferred Units only with the prior
written consent of the Members (excluding the transferor Member and Affiliates of such Member)
holding a majority of the Units held by all such Members, unless in the instrument of transfer the
transferor withholds the Membership Rights with respect to the transferred Units. If admitted, the
transferee Member shall have, to the extent assigned, all of the Membership Rights and is subject
to all of the restrictions and liabilities of the transferor Member with respect to the transferred
Units; provided however, no transferee shall be obligated for liabilities that cannot be
ascertained from this Agreement and were otherwise unknown by the transferee at the time such
transferee became a Member. In addition, in order for the transferee to be admitted as a Member,
the following conditions must be satisfied: (i) the transfer shall be made by a written instrument,
signed by the transferor Member and accepted in writing by the transferee, and a duplicate original
of such instrument shall be delivered to Company; and (ii) the transferee shall execute and deliver
to Company a written instrument, in form reasonably satisfactory to Company, pursuant to which the
transferee agrees to be bound by this Agreement.
(c) A transferee of Units who is already a Member shall be entitled to all Membership Rights
with respect to the transferred Units except to the extent in the instrument of transfer the
transferor withholds Membership Rights with respect to the transferred Units.
(a) In the event of the Withdrawal of any Member and if Company does not dissolve as a result
of such Withdrawal under Section 8.1 below, the withdrawing Member shall cease to be a Member,
shall be treated for all purposes as an unadmitted transferee with respect to the Units held by the
withdrawing Member and shall have no right to receive the fair value of such Units as a result of
the Withdrawal.
(b) Each Member agrees not to voluntarily withdraw from the Company by providing written
notice to the other Members pursuant to Section 275.280 of the Act (a
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“Voluntary Withdrawal”); provided that, if any Member breaches such agreement, the Voluntary
Withdrawal of such Member shall be effective thirty (30) days following written notice thereof to
each of the other Members. In the event of a Voluntary Withdrawal of a Member and if Company
dissolves as a result of the Withdrawal under Section 8.1 below, such withdrawing Member shall be
liable to Company and to the other Unit Holders for any damages caused by such Withdrawal, which
damages Company may offset against the amounts otherwise distributable to such Member as a result
of such Withdrawal. Such damages shall include, without limitation, the federal, state and local
tax liabilities of the other Unit Holders incurred in any liquidation of any or all of the
Property.
(a) In addition to the other limitations upon transfer set forth in this Article 6, a Unit
Holder may not sell any Units except upon compliance with this Section 6.4. A Unit Holder (the
“Seller”) who enters into a contract to sell any Units (the “Contract”), may sell such Units only
upon compliance with this Section 6.4.
(b) The Contract must be bona fide, be conditioned only on compliance with this Agreement, be
in writing, and be the entire agreement of the parties thereto. The Contract must identify and set
forth the Units subject to the Contract (the “Contract Units”), the purchase price for such
Contract Units, which must be stated in United States dollars (the “Contract Price”), and the terms
of payment of the Contract Price and the closing date, which shall be not earlier than ninety (90)
days nor later than one hundred twenty (120) days after the date notice of the Contract is given to
Company and to all Members (collectively the “Contract Terms”), and the name, address, and
telephone number of the purchaser and if the purchaser is not to be the beneficial owner of the
Contract Units, the name, address, and telephone number of such beneficial owner (collectively the
“Purchaser”). The Contract must be executed by and be binding on the Seller and Purchaser subject
only to compliance with this Agreement.
(c) Immediately upon execution of the Contract, the Seller shall give notice of the Contract
to Company and to all Members. Such notice must contain a copy of the Contract.
(d) Effective upon the date such notice is given (the “Effective Date”), each of the Members
(excluding however, any Member who has provided notice of voluntary withdrawal in violation of this
Agreement) except the Seller (the “Option Member(s)”) shall have the option to purchase, upon the
Contract Terms and at the Contract Price, the number of Contract Units multiplied by a fraction in
which the numerator is the number of Units he owns and the denominator is the aggregate number of
Units owned by all Option Members. In order to exercise such option, an Option Member must give
notice of such exercise to the Seller and all Members within twenty-one (21) days after the
Effective Date. If no Option Members exercise such option, the Seller shall proceed in accordance
with Paragraph (f) below. If less than all Option Members exercise such option: (i) each of the
Option Members exercising such option (collectively the “Exercising Members”) shall be obligated to
purchase the number of Contract Units as to which the Option Members are not exercising such
option, if any (the “Remaining Contract Units”) multiplied by a fraction in which the numerator is
the number of Units he owns and the denominator is the aggregate number of Units owned by all
Option Members; and (ii) in addition, any Exercising Member who, in its notice of exercise, offers
to purchase additional Remaining Contract Units (which become available if less than all Option
Members exercise
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such option), shall be obligated to purchase the number of Remaining Contract Units not obligated
to be purchased under clause (i) above multiplied by a fraction in which the numerator is the
number of Units he owns and the denominator is the aggregate number of Units owned by all
Exercising Members making an offer described in this clause (ii). If no Exercising Members so make
such an offer, the Seller shall proceed in accordance with Paragraph (f) below.
(e) If the Option Members do not exercise their options or exercise such options with respect
to less than all of the Contract Units, effective twenty-one (21) days after the Effective Date,
Company shall have the option to purchase the Remaining Contract Units upon the Contract Terms and
at the Contract Price. The Members (excluding the Seller and the Purchaser, if a Member) holding a
majority of the Units held by all such Members shall determine whether and as to how many of the
Remaining Contract Units Company shall exercise such option. In order to exercise such option, the
Company must give notice of such exercise to the Seller and all Members within forty-one (41) days
after the Effective Date. If Company exercises such option with respect to less than all of the
Contract Units, the Seller shall proceed in accordance with Paragraph (h) below.
(f) The closing of all purchases under this Section 6.4 shall take place on the later of (i)
ninety (90) days after the Effective Date or (ii) the closing date, if any, under the Contract
Terms. If any purchaser (or its representative) fails to appear at the closing or appears and fails
to purchase the Contract Units which he is obligated to purchase, the closing shall be adjourned
two (2) business days and at such adjourned closing Company or any Exercising Member may purchase
such Contract Units and they may allocate such Contract Units between them in any manner to which
they may agree.
(g) If Company and the Members do not exercise their respective options to purchase all of the
Contract Units, or if they exercise such options but fail, to purchase all of the Contract Units in
accordance with Paragraph (g) above, the Seller shall sell the Contract Units only to the Purchaser
and only in accordance with the Contract Terms, but not later than one hundred eighty (180) days
after the Effective Date. If the Purchaser does not purchase all of the Contract Units from the
Seller within such period, or if they make or wish to make any change, whether or not such change
is material, in the Contract Terms, the Seller’s right to sell to the Purchaser under this Section
6.4 shall terminate, and the Seller shall not sell the Contract Units without again complying with
this Section 6.
(a) In the event of the death of a Member who is an individual, Company shall have the option
(but not the obligation) to purchase, and such Member’s estate shall sell, all of such Member’s
Units in accordance with the following paragraphs of this Section 6.5. In order to exercise such
option, Company must give notice of such exercise to the deceased Member’s estate within sixty (60)
days after the date of death.
(b) The purchase price per Unit for such Units shall be an amount equal to the Appraised Value
thereof. For purposes of this Agreement, “Appraised Value” shall be equal to the “Fair Market
Value” as hereinafter defined, of Units as determined by a qualified independent appraiser, to be
selected by Company, as of the “Valuation Date” (as defined below). For purposes of this Agreement,
the “Valuation Date” shall be the end of Company’s
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fiscal year coinciding with or preceding the date of death (the “Event”). If Company has not then
had any fiscal year end, the Valuation Date shall be the end of the calendar month coinciding with
or preceding the date of the Event. The “fair market value” as so determined shall be final,
binding and conclusive on all parties.
(c) In the event of the death of a Member, all debts of Company to such Member and all debts
of such Member to Company, whether due or to become due, shall become immediately due and payable.
The amount of all debts of Company to such Member less the amount of all debts of such Member to
Company, whether positive or negative, is referred to in this Article as the “Net Debts.”
Settlement on the Net Debts shall occur regardless of whether Company exercises its option under
Section 6.5(b).
(d) The purchase and sale of all Units and settlement of debts under Section 6.5(b) through
(d) shall take place not less than ninety (90) or more than one hundred twenty (120) days after the
date of the deceased Member’s death. Company shall pay the deceased Member’s
estate in full by cash or certified or cashier’s check the sum of the amount of the purchase
price for such Units and the amount of the Net Debts. Notwithstanding the foregoing, Company and
the deceased Member’s representative may mutually agree to other times and methods of payment.
(a) Company shall maintain at its principal office each of the following: (i) a current
list of the full names, in alphabetical order, and last known business or residence addresses of
the Members; (ii) a copy of the Articles, all amendments to the Articles and executed copies of any
powers of attorney pursuant to which the Articles or amendments thereto have been executed; (iii) a
copy of this Agreement and any amendments hereto and executed copies of any written powers of
attorney pursuant to which this Agreement and any amendments hereto have been executed; (iv) copies
of all federal, state and local income tax returns and reports of Company for its three (3) most
recent fiscal years; and (v) copies of any financial statements of Company for the three (3) most
recent fiscal years. Company books and records may be kept under such permissible method of
accounting as the Manager(s) may determine. As provided pursuant to Section 275.185 of the Act, the
foregoing books and records, together with such other information as a Member shall be entitled to
review pursuant to Section 275.185 of the Act, shall be available for inspection and copying by any
Member, at its cost and expense, or its duly authorized representative, during ordinary business
hours of Company.
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(b) The Manager(s) shall cause Company to prepare and file income tax returns with the
appropriate authorities. Within ninety (90) days after the close of each fiscal year of Company,
the Manager(s) shall send to each person who was a Unit Holder at any time during such fiscal year
such information as will be sufficient to prepare documents which may be required to be filed by
such Unit Holders under applicable federal, state and local income tax laws.
(a) the written agreement of the Members holding a majority of the
Units held by all Members; or
(b) the written consent of all of the Manager(s); or
(c) the sale of all or substantially all of the Property or other
conversion of all or substantially all of the Property to cash.
Notwithstanding anything to the contrary contained herein or in the Act, the Withdrawal of any
Member shall not cause Company to be dissolved.
(a) Upon dissolution of Company, the Manager(s) shall serve as liquidator of Company (the
“Liquidator”). The Liquidator shall, with reasonable speed, wind up the affairs of Company and
liquidate the Property. The Liquidator shall have unlimited discretion to determine the time,
manner and terms of any sale of Property having due regard to the activity and condition of the
relevant market and general financial and economic conditions and shall be authorized to continue
the business of Company in order to maximize its value as a going concern for eventual sale.
(b) Upon completion of the winding up of the affairs and business of Company, the assets of
Company shall be distributed by the Liquidator in the following manner and order of priority:
(i) | first, such assets shall be applied to the payment of debts and liabilities of Company (including any loans from a Manager or |
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Unit Holder to Company) and the payment of expenses of the winding up of the affairs and business of Company; | |||
(ii) | second, such assets shall be applied to the setting up of any reserves (to be held by the Liquidator) which the Liquidator may deem necessary or appropriate for any contingent or unforeseen liabilities or obligations of Company; and | ||
(iii) | finally, the remainder, if any, of such assets shall be distributed to the Unit Holders in proportion to their respective number of Units at the time of such distribution. |
(c) If any Unit Holder shall be indebted to Company, then until payment of such indebtedness
by such Unit Holder, the Liquidator shall retain such Unit Holder’s distributive share of Property
and apply the same to the payment of such indebtedness.
(d) The Liquidator shall comply with all requirements of the Act and other applicable law
pertaining to the dissolution, winding up and liquidation of a limited liability company.
“Act” shall mean Chapter 275 of the Kentucky Revised Statutes, as now in effect or as
hereafter amended or revised, and any references to sections of the Act shall include any successor
provisions of similar tenor or effect.
“Affiliates” of a Person shall mean any Person directly or indirectly controlling, controlled
by or under common control with such Person; provided however, a spouse or lineal descendant of
such Person shall not be deemed to be an Affiliate of such Person.
“Agreement” shall mean this Operating Agreement, as the same may be amended or supplemented
from time to time in accordance with the provisions hereof.
“Code” shall mean the Internal Revenue Code of 1986, as now in effect or as hereafter amended.
“Member” shall mean each Person set forth on Schedule 1 attached hereto, and each Person
admitted as an additional or substitute Member in accordance with Article VI, in
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such Person’s capacity as a Member, for so long as such Person owns Units and otherwise remains a
Member.
“Membership Rights” shall mean all of the rights of a Member in Company, including a Member’s:
(a) Units; (b) right to inspect Company’s books and records; (c) right to vote on matters coming
before the Members.
“Permitted Transferee” shall mean the following Persons: (a) a Unit Holder’s spouse, lineal
descendent, or any spouse of such lineal descendent or trust for the primary benefit of any of such
Persons; (b) a transferee to which the Members holding a majority of the Units held by all Members
consent in writing; (c) any Member or Company; and (d) in the event of the death of a Unit Holder,
any Person under the terms of such deceased Unit Holder’s will or the laws of succession if such
Unit Holder dies intestate.
“Person” shall mean and include an individual, corporation, partnership, association, limited
liability company, trust, estate, or other entity.
“Property” shall mean, at any time, all property, whether real or personal, interests, assets
or rights owned or held by or on behalf of Company at such time.
“State” shall mean the Commonwealth of Kentucky.
“Transfer” shall mean any sale, assignment, transfer, conveyance, pledge, encumbrance, grant
or other disposition, direct or indirect, voluntary, involuntary, or by operation of law, and with
or without consideration, by a Unit Holder.
“Unit Holder” means any Person who holds a Unit, whether as a Member or as an unadmitted
assignee of a Member.
“Units” shall mean units of ownership interest in Company, initially as set forth opposite
each Member’s name on Schedule 1, and thereafter the Units held by a Member or a Unit Holder as
reflected in the Unit Journal.
“Withdrawal” with respect to any Manager or Member shall mean the occurrence of any of the
following events:
(a) | the Manager or Member makes an assignment for the benefit of creditors; | ||
(b) | the Manager or Member files a voluntary petition in bankruptcy; | ||
(c) | the Manager or Member is adjudicated a bankrupt or insolvent; | ||
(d) | the Manager or Member files a petition or answer in any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief proceeding under any law or rule that seeks for the Manager or Member any of those types of relief; |
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(e) | the Manager or Member files an answer or other pleading omitting or failing to contest a material allegations of a petition filed against the Manager or Member in any proceeding seeking relief described in clause (d) above; | ||
(f) | the Manager or Member has commenced against the Manager or Member any proceeding seeking relief described in clause (d) above and one hundred twenty (120) days has elapsed after commencement without dismissal; | ||
(g) | the Manager or Member has appointed a trustee, receiver or liquidator for the Manager or Member or all or any substantial part of its properties without the Manager’s or Member’s consent and the appointment is not vacated or stayed within a period of ninety (90) days after such appointment; or a period of ninety (90) days has elapsed after the expiration of any such stay and the appointment has not been vacated; | ||
(h) | the Manager or Member, if an individual, dies or is adjudicated incompetent; | ||
(i) | if the Manager or Member is a trust, the trust terminates; | ||
(j) | if the Manager or Member is a partnership, the dissolution and commencement of winding up of the partnership; | ||
(k) | if the Manager or Member is a limited liability company, the dissolution and commencement of winding up of the limited liability company; | ||
(l) | if the Manager or Member is a corporation, a certificate of dissolution or its equivalent is filed for the corporation or its charter is revoked and is not reinstated within ninety (90) days after Company provides or gives the corporation written notice of such revocation; | ||
(m) | if the Manager or Member is an estate, the distribution of the Units by such estate; and | ||
(n) | the Manager or Member Transfers all of such Manager’s or Member’s Units. |
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addressed to such Member or Manager at such Manager’s or Member’s address in the records of
Company.
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IN WITNESS WHEREOF, the undersigned have signed this Agreement as of the date set forth above.
MEMBERS: | COMPANY: | |||||||
BARCOM HOLDINGS, LLC, | ||||||||
XXXXX X. XXXXXX | a Kentucky limited liability company | |||||||
By: | ||||||||
XXXXXXX XXXXXX
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XXXXX X. XXXXXX, Manager | |||||||
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