AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
DANSKIN INVESTORS, LLC
a Delaware Limited Liability Company
dated as of September 17, 1997
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
DANSKIN INVESTORS, LLC
a Delaware Limited Liability Company
This Amended and Restated Limited Liability Company Operating
Agreement (the "Agreement") of Danskin Investors, LLC (the "Company") dated as
of September 17, 1997 is adopted and agreed to by the parties identified in
Section 2.1(b) hereof and amends and restates the Limited Liability Company
Operating Agreement of the Company dated May 28, 1997.
ARTICLE I
PURPOSE AND POWERS
1.1 Purpose. The Company has been organized to invest in the equity,
debt, and/or rights to acquire such interests (collectively, the "Securities"),
in Danskin, Inc., a Delaware corporation ("Danskin"), as described in the letter
dated May 19, 1997, from Onyx Partners, Inc. to the Company, as modified by the
summary of terms dated August 27, 1997, and the outline of proposed treatment of
First Union National Bank of North Carolina's and First Union Commercial
Corporation's revolving loan and term loan, copies of which are attached hereto
(collectively, the "Investment Proposal Letter"), and to engage in any other
lawful business activity related or incident thereto.
1.2 Powers. The Company shall have the power and authority to enter
into, make and perform all contracts, agreements and undertakings, and to do any
and all acts and things necessary, appropriate, incidental or convenient to the
accomplishment of its purposes and for the protection and benefit of the
Company.
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ARTICLE II
MEMBERS AND INTERESTS
2.1 Members; Voting Rights.
(a) There shall be two classes of Members: the Class A Members
and the Class B Members. Except as provided by Sections 3.5(c), 3.5(d),
4.5(b)(i)(A) and 6.2 hereof, on any matter requiring a vote, consent or approval
of the Members, the Class A Members shall be the only persons to whom the matter
is required to be submitted, and each shall have one vote when voting only with
the Class A Members. Except as otherwise provided herein, or as required by
applicable law, the vote, consent or approval of a majority of the Class A
Members shall constitute the act of the Company. No Class B Member shall have a
voice or vote in any matter, except as specifically provided herein.
(b) The initial Members of the Company are Onyx Partners, Inc.
("Onyx"), which shall be a Class A Member, and each of the other persons who has
delivered a duly executed subscription agreement to Onyx (which agreement has
been accepted by Onyx) in substantially the form attached hereto as Exhibit A
(the "Subscription Agreement") together with a duly executed signature page to
this Agreement, who shall be Class B Members. Other persons may hereafter be
admitted as transferees of Members in accordance herewith. Each Member shall
execute a counterpart of this Agreement indicating his, her or its agreement to
the terms and provisions hereof.
(c) Schedule 1 attached hereto lists the name, address,
telephone number, telefax number and Capital Commitments of each Member. The
Company shall amend Schedule 1 to reflect the admission and withdrawal of
members.
2.2 Membership Interests. Each Member's ownership interest in the
Company is herein referred to generally as a "Membership Interest." The
respective rights of each Member to share in the capital of the Company, either
by way of distributions or on liquidation, will be determined by reference to
the Capital Account (as defined herein) of such Member; and each Member's
interest in the profits and losses of the Company shall be established as
provided herein. Each Member shall have the rights and powers set forth in this
Agreement.
2.3 Meetings.
(a) The Members shall have a regular annual meeting each year
beginning in 1998, on a date established by the Managers (as defined below) for
the purpose of electing Managers and conducting such other business as may
properly come before the meeting. Special meetings of the Members may be called
by the Managers.
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(b) Written notice stating the place, day and hour of each
meeting of Members and the general purpose or purposes for which the meeting is
called shall be given not less than seven (7) nor more than thirty (30) days
before the date of the meeting to each Member.
(c) A Member may waive any notice required by law or this
Agreement, before or after the date and time of the meeting that is the subject
of such notice. Except as provided in the next sentence, the waiver shall be in
writing, signed by the Member entitled to the notice and delivered to the
Managers for inclusion in the Company's minutes or records. A Member's
attendance at or participation in a meeting waives any required notice to such
Member of the meeting unless the Member, at the beginning of the meeting or
promptly upon such Member's arrival, objects to the transaction of any business
at such meeting on the ground that such meeting is not lawfully called or
convened. A Member may participate in a meeting in person or by proxy.
(d) Any vote, consent or approval of the Members may be
accomplished by written consent in lieu of a meeting signed by Members
constituting the required vote for the action so taken.
(e) Members may participate in a regular or special meeting
by, or conduct the meeting through, the use of any means of communication by
which all Members participating may simultaneously hear each other during the
meeting. Any Member who participates in a meeting in this manner is deemed to be
present in person at the meeting, except where a Member participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
ARTICLE III
MANAGEMENT OF THE COMPANY
3.1 Managers. Except as otherwise limited by this Agreement or
applicable law, all powers of the Company shall be exercised by or under the
authority of, and the business and affairs of the Company shall be managed under
the direction of, the Company's Managers (the "Managers").
3.2 Number, Term and Election. Unless otherwise agreed by a unanimous
vote of the Members, there shall be one Manager of the Company. The initial
Manager shall be Onyx. Each Manager shall hold office until his or her death,
resignation or retirement or until his successor is elected and assumes office.
A Manager need not be a Member of the Company.
3.3 Officers. The Managers may appoint such officers who shall have
such power and authority as may be specified in a resolution of the Managers.
Officers shall serve at the pleasure of the Managers.
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3.4 Meetings.
(a) An annual meeting of the Managers shall be held
immediately following each annual meeting of Members for the purpose of
appointing officers, if any, and carrying on such other business as may properly
come before the meeting.
(b) Special meetings of the Managers may be called by any
Manager.
(c) Notices of meetings of the Managers shall be given to each
Manager not less than twenty-four (24) hours before the meeting. Any such notice
shall set forth the time and place of the meeting.
(d) A Manager may waive any notice required by law or this
Agreement before or after the date and time stated in the notice and such waiver
shall be equivalent to the giving of such notice. The waiver shall be in
writing, signed by the Managers entitled to the notice and filed with the
Company's minutes or records; provided that a Manager's attendance at or
participation in a meeting waives any required notice to him, her or it of the
meeting.
(e) A quorum for the transaction of business at a meeting of
the Managers shall consist of all of the Managers.
(f) Any or all Managers may participate in a regular or
special meeting by, or conduct the meeting through, the use of any means of
communication by which all Managers participating may simultaneously hear each
other during the meeting. A Manager participating in a meeting in this manner is
deemed to be present in person at the meeting.
(g) Any action of the Company that may be authorized by the
Managers at a meeting may be authorized by written consent in lieu of meeting of
the Managers signed by Managers constituting the required vote for the action so
taken, and any such consent shall be filed with the Company's minutes or
records.
3.5 Management Decisions.
(a) Except to the extent that the Managers agree to delegate
the authority with respect to specified matters, all decisions shall be made by
a unanimous vote of the Managers.
(b) Any disbursement of funds of the Company will require such
signatures as may be determined by the Managers; provided, however, the Managers
shall obtain, with respect to (x) any distributions of funds pursuant to Section
4.5, a confirmation of the calculation of such distributions from a nationally
recognized public accounting firm prior to such distribution and (y) any other
disbursement of funds, a confirmation of the calculation of such disbursements
from a nationally recognized public accounting firm in connection with the
preparation of the Company's annual financial statements.
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(c) The following actions require the approval of Members
(including Class B Members) representing a majority of the Capital
Contributions:
(i) any acquisition of tangible or intangible assets
other than the Securities or other assets described
in or consistent with the Investment Proposal Letter;
(ii) any change in the business organization of the
Company, however effected;
(iii) the admission of any Class A Member;
(iv) any decisions of the Company to obtain additional
funding through borrowing;
(v) selecting members of the board of directors of
Danskin;
(vi) any decision of the Company as to how the Securities
are to be voted on any action to be taken by Danskin
permitting the Securities to be voted thereon; and
(vii) any decision as to whether the Company should accept
an offer made to purchase the Securities from the
Company at a price equal to or greater than the
applicable Target Price (as defined in Section
4.5(b)(i) below).
(d) Any decision as to whether the Company should accept an
offer made to purchase the Securities from the Company at a price less than the
applicable Target Price (as defined in Section 4.5(b)(i) below) will require the
unanimous approval of all Members (including Class B Members).
3.6 Management Compensation. The Managers shall not receive
compensation for their services to the Company. In all events, the Managers
shall be entitled to reimbursement for all reasonable expenses incurred on the
Company's behalf, including all reasonable expenses incurred in connection with
consummating the Closing of the Investment under the Investment Proposal Letter
(as such capitalized terms are defined in the Investment Proposal Letter).
ARTICLE IV
FINANCIAL INTERESTS OF MEMBERS
4.1 General. The Company has been organized with the intention that it
qualify for taxation as a partnership for U.S. federal income tax purposes. The
Members acknowledge that
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the provisions of Subchapter K of the Internal Revenue Code of 1986, as amended
(the "Code") and the Treasury Regulations (the "Regulations") promulgated
thereunder will apply to the Company, and intend that the allocations of taxable
income and loss, distributions to the Members and maintenance of capital
accounts all conform to the requirements of the Code and the applicable
Regulations.
4.2 Capital Contributions.
(a) The Company has received Capital Commitments in an
aggregate amount of $15,000,000 in order to finance the investments intended to
be made by the Company in Danskin. Each Member shall make capital contributions
to the Company in an amount equal to such Member's pro rata portion (based on
the Capital Commitments of all Members) of $15,000,000 ("Capital Contributions")
in order to finance the investments intended to be made by the Company in
Danskin equity and debt.
(b) In the event that any Member fails to make a required
portion of its Capital Commitment available to the Company when called by the
Managers, in addition to pursuing specific performance, the Company, in its sole
discretion, may cause the Capital Contribution of such Member to be forfeited
(in which event the amount of such Capital Contribution and such Member's
Capital Account (as defined below) shall continue to form part of the capital of
the Company and shall be reallocated to the non-defaulting Members in proportion
to their respective Capital Commitments but without prejudice to their existing
commitments) and such Members shall cease to be a Member for all purposes.
4.3 Capital Accounts.
(a) The economic arrangement of the Members is reflected in
the provisions of Section 4.5 hereof with respect to distributions; and
allocations of net profits and net losses shall be made in a manner consistent
with such provisions. The Capital Accounts (as hereinafter defined) shall be
maintained in accordance with this Section 4.3.
(b) The Company shall establish and maintain a separate
capital account (a "Capital Account") on its books for each Member in accordance
with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv).
Accordingly, there shall be credited to each Member's Capital Account the amount
of all Capital Contributions to the Company made by such Member and such
Member's share of the Company's net profits, and there shall be charged against
each Member's Capital Account, the amount of all distributions from the Company
to such Member and such Member's share of the Company's net losses, all in
accordance with the provisions of Section 4.4. In addition, such other
adjustments to each Member's Capital Account shall be made as required under the
provisions of Treasury Regulations Section 1.704-1(b)(2)(iv).
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(c) The Capital Account of each Member at the beginning of any
period shall be such Member's Capital Account at the beginning of the
immediately preceding period, adjusted to give effect to the computations
required pursuant to this Section 4.3.
(d) The provisions of this Section 4.3 and Section 4.4 are for
the purpose of determining the respective interest of the Members in the net
profits and net losses of the Company, which shall be reflective of the
provisions regarding distributions by the Company in Section 4.5. The financial
statements of the Company, however, shall be prepared in accordance with
generally accepted accounting principles.
(e) No Member shall be entitled to receive interest on his,
her or its Capital Contributions.
(f) No Member shall be entitled to withdraw all or any part of
his, her or its Capital Account except as otherwise provided herein.
(g) Loans or advances by any Member to the Company shall not
be considered Capital Contributions and shall not increase the Capital Account
of the lending or advancing Member.
(h) Except as provided in this Agreement, no Member shall be
required under any circumstances to contribute or lend any additional money or
property to the Company.
4.4 Allocations of Profits and Losses.
(a) For each fiscal year or other period, net profits shall be
allocated among the members in a manner which reflects the distributions
provided in Section 4.5 hereof; and net losses in excess of net profits shall be
allocated among the Members in proportion to their Capital Contributions.
(b) No Member shall be allocated net losses in excess of the
positive balance in such Member's Capital Account; however, in the event net
losses exceed Company capital, allocations shall be made among the Members, if
any, who bear such losses as provided in the Regulations. In the event any
Member unexpectedly receives any adjustments, allocations, or distributions
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), Regulations
Section 1.704-1(b)(2)(ii)(d)(5), or Regulations Section 1.704-1(b)(2)(ii)(d)(6),
items of income and gain shall be specially allocated to each such Member in an
amount and manner sufficient to eliminate, to the extent required by the
Regulations, the deficit in his Capital Account as quickly as possible, provided
that an allocation pursuant to this Section 4.4(b) shall be made if and only to
the extent that such Member would have deficit in his Capital Account after all
other allocations provided for in this Section 4.4 have been tentatively made as
if this Section 4.4(b) were not in the Agreement.
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(c) Items of income, gain, loss, deduction and credit that are
recognized by the Company for tax purposes shall be allocated among the Members
in such manner as equitably reflects amounts credited or debited to the Members'
Capital Accounts pursuant hereto. In accordance with Code Section 704(c) and the
Regulations thereunder, income, gain, loss and with respect to any property
(other than cash) contributed to the capital of the Company shall, solely for
tax purposes, be allocated among the Members so as to take account of any
variation between the adjusted basis of such property to the Company for federal
income tax purposes and its value on the date of contribution. To the extent
profits or losses have been reflected in Capital Accounts prior to their
recognition for tax purposes, allocations shall be made consistent with the
principles of Code Section 704(c). In the event the value of any Company asset
is adjusted pursuant to Regulations Section 1.704-1(b)(2)(iv)(f), subsequent
allocations of income, gain, loss, and deduction with respect to such asset
shall take into account any variation between the adjusted basis of such asset
for federal income tax purposes and its value in the same manner as under Code
Section 704(c) and the Regulations thereunder.
4.5 Distributions.
(a) Subject to Sections 4.5(b), (c), (d) and (e) hereof,
distributions (in cash or in kind) shall be made to or among the Members from
time to time as the Managers determine in proportion to their Capital
Contributions.
(b) At such time that the fair market value of the common
stock of Danskin (the "Common Stock") equals or exceeds the Target Price,
defined below, and continues to equal or exceed the Target Price for five
consecutive trading days (such fifth trading day being referred to as the
"Repayment Date"), all assets of the Company not necessary for the payment of
debts and liabilities of the Company, expenses of winding up the Company and for
reserves as provided in and subject to the limitation in Section 6.4 for
contingent or unforseen liabilities or obligations of the Company ("Assets
Available For Repayment") shall be distributed 10% to the Class A Member and 90%
to all Members in proportion to their Capital Contributions.
(i) The "Target Price" shall mean:
(A) On or prior to the first anniversary of the
closing of the purchase of the Securities as set forth in the Investment
Proposal Letter (the "Acquisition"), $.60 per share of Common Stock, provided,
however, that the Repayment Date will not be considered to have occurred (and
the assets of the Company, other than excess cash which the Managers determine
to distribute, shall not be distributed) unless Members (including Class B
Members) representing at least 85% of the Capital Contributions so consent;
(B) After the first anniversary of the Acquisition
and on or prior to the second anniversary of the Acquisition, $.60 per share of
Common Stock;
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(C) After the second anniversary of the Acquisition
and on or prior to the third anniversary of the Acquisition, $.74 per share of
Common Stock;
(D) After the third anniversary of the Acquisition
and on or prior to the fourth anniversary of the Acquisition, $.98 per share of
Common Stock;
(E) After the fourth anniversary of the Acquisition
and on or prior to the fifth anniversary of the Acquisition, $1.31 per share of
Common Stock;
(c) If as of the fifth anniversary of the Acquisition, the
Repayment Date has not occurred, the Assets Available For Repayment shall be
distributed 1% to the Class A Member and 99% to all Members in accordance with
their Capital Contributions.
(d) Subject to Section 6.4, the reimbursement of expenses by
Danskin pursuant to the Investment Proposal Letter shall be distributed to the
party that has borne such expenses.
4.6 Valuation of Securities. Except as specifically provided in the
case of a valuation of securities pursuant to Section 4.5 (b), for purposes of
valuing securities in connection with the business of the Company, (i)
securities listed on national securities exchanges shall be valued at (a) their
last sales prices on the relevant date, or (b) if no sales occurred on such
date, at the mean of the "bid" and "asked" prices on such date; (ii) securities
not listed on a national securities exchange shall be valued at their last
closing "bid" price on the date of the determination, and (iii) all other
securities shall be valued by the Managers in good faith and in their sole and
absolute discretion pursuant to this Section 4.6 which valuation shall be final
and conclusive as to all of the Members; provided, however, in each such case,
the Manager shall obtain a confirmation of the calculation of valuation from a
nationally recognized public accounting firm.
4.7 Expenses. Each Member agrees to pay additional funds to the Company
as required by the Managers in order to pay day-to-day operating and
administrative expenses, such as legal and accounting fees; provided, however,
the annual aggregate amount of such expenses and fees shall not exceed $10,000.
ARTICLE V
TRANSFERS AND THE ADMISSION OF ADDITIONAL MEMBERS
5.1 Transfers Generally. Membership Interests may be assigned, in whole
or in part, (each such assignment, a "Transfer") only in accordance with this
Article V.
5.2 Effect of Transfers.
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(a) Except as provided in paragraph (b) below, any Transfer of
a Membership Interest by a person (the "Transferor") shall be effective only to
give the transferee (the "Transferee") the right to the share of allocations and
distributions to which the Transferor would otherwise be entitled, and no
Transferee of a Membership Interest shall be admitted as a Member, (ii) the
Transferee shall have no right to vote on or consent to any matter submitted to
the Members or otherwise participate in the management of the business and
affairs of the Company, and (iii) subject to Section 5.3(c) below, the
Transferor, if he, she or it retains a Membership Interest, shall retain such
rights and shall have the power to exercise any rights of a Member, except the
right to receive allocations and distributions to the extent those rights are
assigned.
(b) A Transferee of a Membership Interest shall, upon such
Transfer, be admitted as a Member with all the rights and powers of his, her or
its Transferor if, prior to such Transfer, all of the Managers consent to the
admission of the Transferee as a Member.
(c) Any expenses incurred by the Company in connection with or
as a consequence of the Transfer of all or part of a Membership Interest shall
be reimbursed to the Manager by the Transferor.
(d) The Company, the Managers, each Member and any other
person or persons having business with the Company, need deal only with holders
of Membership Interests who are admitted as Members of the Company, and shall
not be required to deal with any Transferee who has not been admitted as a
Member.
5.3 Admission of Transferees as Members. The Managers may from time to
time admit Transferees as Members to the Company on such terms and conditions as
the Managers shall determine. Any such Members shall join in and agree to be
bound by the terms of this Agreement.
ARTICLE VI
TERM AND TERMINATION OF THE COMPANY
6.1 Term of the Company. The term of the Company commenced upon the
filing of the certificate of formation with the Secretary of State of Delaware
on May 12, 1997 (the "Filing Date"). The Company shall terminate and be
dissolved on the fifth anniversary of the Acquisition unless the Company is
earlier dissolved and terminated as provided in this Agreement.
6.2 Events of Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events:
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(a) The death, retirement, resignation, expulsion, bankruptcy
(which shall mean being the subject of an order for relief under Title 11 of the
United States Code), or dissolution of any Member-Manager or the occurrence of
any other event which terminates the continued Membership of any Member-Manager
unless, within ninety (90) days following the occurrence of any such event, the
business of the Company is continued by the consent of a majority-in-interest of
the remaining Members;
(b) The sale of all or substantially all of the business and
assets of the Company;
(c) On the Repayment Date, as defined in Section 4.5(b)
hereof;
(d) As otherwise required by the Delaware Limited Liability
Company Act.
As used herein, consent of a majority-in-interest means consent of Members
(including for this purpose Class A and Class B Members) representing a majority
of the Capital Contributions and owning Capital Accounts representing a majority
of Company capital.
6.3 Conclusion of Affairs. In the event of dissolution of the Company
for any reason, the Managers, or if no Managers remain, the Members, by majority
vote, shall appoint a person (the "Liquidator"), who may but need not be a
Manager and/or Member, and the Liquidator shall proceed, as soon as reasonably
practicable, to wind up the affairs of the Company. The Members (and their
successors in interest) shall continue to share in allocations of income and
loss and distributions during the period of winding up in the same manner as
before the dissolution. The Liquidator shall have reasonable discretion to
determine the time, manner and terms of any sale or sales of Company property
pursuant to such winding up, having due regard to the activity and the condition
of the Company and relevant market and financial and economic conditions, and
consistent with his, her or its obligations to the Members.
6.4 Liquidating Distributions. After paying or providing for the
payment of all debts and liabilities of the Company and all expenses of winding
up, and subject to the right of the Liquidator to set up such reserves as it may
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Company (such reserves not to exceed $25,000), the proceeds
of the liquidation, and any other remaining assets of the Company, shall be
distributed to or for the benefit of the Members (and their successors in
interest) in accordance with the provisions of Section 4.5 hereof. Upon
liquidation of the Company, the Company shall distribute to each Member such
Member's pro rata share of the Company's cash and Securities as provided in
Section 4.5 of this Agreement as a liquidating distribution to the Members (and
their successors in interest).
6.5 Termination. Within a reasonable time following the completion of
the winding up of the Company, the Liquidator shall supply to each Member a
statement which shall set forth the assets and the liabilities of the Company as
of the date of complete winding up and each Member's portion of the
distributions pursuant to this Agreement. Upon completion of the winding up of
the Company and the distribution of all Company assets, the Company shall
terminate, and the
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Liquidator shall execute and file a certificate of cancellation of the Company
with the Secretary of State of Delaware, and shall take all other action
necessary to effectuate the dissolution and termination of the Company. Each
Member remains obligated on a pro rata basis (based on the amount of
distributions received from the Company) for subsequent liabilities of the
Company after winding up and liquidation of the Company; provided, however, such
obligations shall not exceed the amount of distributions received by such member
from the Company.
ARTICLE VII
GENERAL AND ADMINISTRATIVE PROVISIONS
7.1 Principal Office. The principal office of the Company shall be at
such location or locations as may be determined by the Managers from time to
time.
7.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless, and may advance expenses to, any
Member or Manager (collectively, the "Indemnitees"), from and against any and
all claims and demands whatsoever arising out of the business and affairs of the
Company; provided, however, that no indemnification may be made to or on behalf
of any Indemnitee if a judgment or other final adjudication adverse to such
Indemnitee establishes (a) that his, her or its acts were committed in bad faith
or were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated or (b) that he, she or it personally gained in
fact a financial profit or other advantage to which he, she or it was not
legally entitled. The provision of this section shall continue to afford
protection to each Indemnitee regardless of whether such Indemnitee remains a
Member, Manager, employee or agent of the Company.
7.3 Fiscal Year. The fiscal year of the Company shall end on the
thirty-first of December.
7.4 Books and Records. At all times during the term of the Company, the
Managers shall keep, or cause to be kept at the Company's principal office, the
books and records of the Company.
7.5 Reports. As soon as practicable following the end of each fiscal
year, the Company shall provide each Member a financial report of the results of
operations, including audited or unaudited financial statements, as determined
by the Managers.
7.6 Withholding. Except as may be required by a change in applicable
law (including any judicial or administrative interpretation thereof), the
Company will not withhold any U.S. federal taxes with respect to the
distributive share of interest income (other than interest income which fails to
qualify either as "portfolio interest" within the meaning of Code Section 871(h)
or interest on deposits within the meaning of Code Section 871(i)(3)) and
capital gain or distributions by the Company of securities or other property
held by the Company (other than dispositions of,
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and proceeds relating to, U.S. real property interests within the meaning of
Code Section 897(c)) with respect to Members who are not U.S. persons within the
meaning of Code Section 7701(a)(30), so long as such Member provides the Company
with an effective Form W-8.
7.7 Notices. Any notice to be given under this Agreement may be given
either personally or by mail, telephone, telegraph, teletype, telecopy or other
form of wire or wireless communication, or by overnight courier. If mailed,
notice shall be deemed to be effective three (3) days after deposited in
registered or certified mail with postage thereon prepaid addressed if to a
Member at its address as it appears on the signature page to this Agreement (or
at such other address for any party as such party shall notify the other
parties), and if to the Company at its principal office. If given in any other
manner, such notice shall be deemed to be effective (i) when given personally,
(ii) when given by telephone, teletype, telecopy or other form of wire or
wireless communication (if followed by a copy delivered by registered or
certified mail) or (iii) one (1) day after given to an overnight courier to be
delivered.
7.8 Headings. The headings of the sections hereof are inserted for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
7.9 Gender; Number. Where the context so requires, the masculine gender
shall be construed to include the female, a corporation, a trust or other
entity, and the singular shall be construed to include the plural and the plural
the singular.
7.10 Amendments. This Agreement may be modified or amended by unanimous
written agreement of the Class A Members; provided, that, except as otherwise
specifically provided herein, no amendment may modify the economic interest of a
Member without such Member's consent. Notwithstanding the foregoing, the
Managers may amend the Agreement as necessary to effect the admission of
Transferees of Members.
7.11 Entire Agreement. This Agreement sets forth the entire
understanding of the parties hereto.
7.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned has affixed its signature
signifying its adoption of this Limited Liability Company Operating Agreement:
ONYX PARTNERS, INC.
By:________________________________
Name:
Title:
MAYFIRST ASSOCIATES LTD.
By:________________________________
Name:
Title:
ALPINE ASSOCIATES
By:________________________________
Name:
Title:
REGENT CAPITAL EQUITY PARTNERS,
L.P.
By:________________________________
Name:
Title:
---------------------------------
Xxxxx X. Xxxxxx
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XXXXXX X. XXXXXX FAMILY TRUST
By:________________________________
Name:
Title:
XXXXX FAMILY TRUST
By:________________________________
Name:
Title:
DIMSTON PARTNERSHIP
By:________________________________
Name:
Title:
XXXXX XXXXXXX LIVING TRUST
By:_________________________________
Name:
Title:
ISLAND CUTLERY ASSOCIATES LIMITED
PARTNERSHIP
By:________________________________
Name:
Title:
15
---------------------------------
Xxxxx Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
---------------------------------
Xxxx Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
SGM PORTFOLIO L.L.C.
By:________________________________
Name:
Title:
---------------------------------
Jordan X. Xxxxxxx
ARCHSTONE PARTNERS, L.P.
By:________________________________
Name:
Title:
---------------------------------
Xxxxxxx X. Xxxxxxxx
16
---------------------------------
Xxxx X. Xxxxxxxx
---------------------------------
Xxxx Xxxxxx
---------------------------------
Xxxxx Xxxxx
---------------------------------
Xxx Xxxxx
VERTEX INDUSTRIES, INC.
By:________________________________
Name:
Title:
TEXAS CAPITAL INVESTORS G.P.
By:________________________________
Name:
Title:
ASTER INDUSTRIES
By:________________________________
Name:
Title:
17
BRIGHTON BEACH INVESTMENT GROUP
LIMITED PARTNERSHIP
By:________________________________
Name:
Title:
GOLDEN HORN (II) L.P.
By:________________________________
Name:
Title:
-----------------------------------
Xxxxx Xxx
ANVIL INVESTMENT PARTNERS
By:________________________________
Name:
Title:
-----------------------------------
Xxxx Xxxxxxx
-----------------------------------
Xxxx XxXxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxx
18
-----------------------------------
Xxxxx Xxxxx
-----------------------------------
Xxxx Xxxxxx
REGENT CAPITAL PARTNERS, L.P.
By:________________________________
Name:
Title:
19
