EXHIBIT 3.5
OPERATING AGREEMENT
OF
LOUISIANA UNWIRED, LLC
OPERATING AGREEMENT
OF
LOUISIANA UNWIRED, LLC
ARTICLE I NAME
ARTICLE II COMMENCEMENT
ARTICLE III PURPOSE
ARTICLE IV. OFFICES
1.1 Principal Office
1.2 Registered Office
ARTICLE V. MEETINGS
5.1 Annual Meeting
5.2 Regular Meetings
5.3 Special Meetings
5.4 Notice of Meeting
5.5 Quorum
5.6 Proxies
5.7 Voting by Certain Members
5.8 Formal action by Members.
5.9 Procedure
5.10 Presumption of Assent
5.11 Informal Action of Members
5.12 Order of Business
5.13 Telephonic Meeting
ARTICLE VI FISCAL MATTERS
6.1 Fiscal Year
6.2 Deposits
6.3 Checks, Drafts, Etc.
6.4 Loans
6.5 Contracts
6.6 Accountant
6.7 Legal Counsel
ARTICLE VII MANAGEMENT AND BOARD OF MEMBERS
7.1 Management
7.2 Appointment of Managers/Officers
7.3 Manager/President
7.4 Assistant Manager/Secretary
7.5 Election and Tenure
7.6 Resignations and Removal
7.7 Vacancies
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7.8 Salaries
ARTICLE VIII. MEMBERSHIP CERTIFICATES AND THEIR TRANSFER
ARTICLE IX TRANSFER OF MEMBER'S INTEREST
9.1 Right of First Refusal
9.2 Securities Restrictions
9.3 Assignment of Membership Interest
9.4 Powers of Estate of a Bankrupt Member
9.5 Admission into Membership
9.6 Financial Apportionment upon Transfer
ARTICLE X WITHDRAWAL OR EXPULSION OF MEMBERS
ARTICLE XI DISSOLUTION
ARTICLE XII BOOKS AND RECORDS
12.1 Books and Records
12.2 Right of Inspection
12.3 Financial Records
ARTICLE XIII CAPITAL CONTRIBUTIONS
ARTICLE XIV PROFITS, GAINS AND LOSSES
ARTICLE XV INVESTMENT REPRESENTATIONS
15.1 Investment Purpose
15.2 Representations and Warranties
ARTICLE XVI LIABILITY AND INDEMNIFICATION
16.1 No Personal Liability
16.2 Indemnification by Company
16.3 Indemnification Funding
ARTICLE XVII MISCELLANEOUS
17.1 Notice
17.2 Waiver of Notice
17.3 Arbitration
17.4 Agent for Tax Matters
17.5 Duality of Interest Transactions
17.6 Anticipated Transactions
17.7 Gender and Number
17.8 Articles and other Headings
17.9 Reimbursement of Managers/Officers and Members
17.10 Severability
17.11 Counterparts
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17.12 Entire Agreement
ARTICLE XVIII AMENDMENTS
RATIFICATION and EXECUTION
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OPERATING AGREEMENT
OF
LOUISIANA UNWIRED, LLC
This Operating Agreement ("Operating Agreement") is entered into as of this
23rd day of February, 1998, by, between and among Cameron Communications
Corporation, a Louisiana Corporation, represented herein by its President, Xxxx
X. Xxxxxxx, duly authorized and US Unwired Inc., a Louisiana Corporation,
represented herein by its President, Xxxxxx Xxxxx, duly authorized as
"Members."
WHEREAS, simultaneously herewith, the Members formed a limited liability
company by executing its Articles of Organization for filing with the Secretary
of State pursuant to the Louisiana Limited Liability Company Law (Act No. 780 of
1992), R.S. 12:1301 et seq., as amended.
WHEREAS, the Members desire to adopt this Operating Agreement; and
WHEREAS, each Member represents that it has sufficient right and authority,
without breaching any provision of law or contract to execute this Operating
Agreement and is not acting on behalf of any undisclosed or partially disclosed
principal by such actions;
NOW, THEREFORE in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Members hereby agree as
follows:
ARTICLE I
NAME
The name of the limited liability company ("Company") shall be "Louisiana
Unwired, LLC" as of the effective date of this Operating Agreement. The business
of the Company shall be conducted under that name and the Members shall file the
Articles of Organization in the public records of any parish or county where the
Company owns immovable property and shall register to do business in
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every state where the Company's minimum contacts so require.
ARTICLE II
COMMENCEMENT
The Company shall commence as of the time of execution of the Articles of
Organization. The Company shall continue until dissolved as hereafter provided
in Article XI.
ARTICLE III
PURPOSE
As stated in the Articles of Organization, the purpose of the Company is to
acquire, hold and operate Federal Communications Commission ("FCC") licenses for
personal communication services; contract with the Members to build out and
operate a Narrowband and Broadband Personal Communications Service ("PCS")
system; and to engage in any lawful activity for which limited liability
companies may be formed under the Limited Liability Company Law of Louisiana.
ARTICLE IV
OFFICES
4.1 Principal Office. The principal office of the Company in the State of
Louisiana is Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxxxxx, Xxxxxxxxx 00000. The
Company may have other offices, either within or without the state of Louisiana,
as the Members may designate or as the business of the Company may from time to
time require.
4.2 Registered Office. The registered office of the Company is Xxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxxxxx, Xxxxxxxxx 00000, and the initial
registered agent at that address is Xxxxxx X. Xxxxxxx. The registered office and
the registered agent may be changed from time to time by action of the Members
and by filing the prescribed form with the Louisiana Secretary of State.
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ARTICLE V
MEETINGS
5.1 Annual Meeting. The annual meeting of the Members shall be held at the
principal place of business of the Company on the 3rd Monday of January of each
year, commencing in the year 1998 for the purpose of appointing
managers/officers of the Company and to conduct any other business properly
before the Members. If the day fixed for the annual meeting shall be a legal
holiday, such meeting shall be held on the next succeeding business day. Special
meetings of the Members, for any purpose or purposes described in the meeting
notice, may be called by any Member. Unless waived, as herein provided and
allowed, written or telephonic notice stating the place, day, and hour of the
meeting, and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered to each Member not less than three or
more than sixty days before the date of the meeting. Members may participate in
meetings by telephone. Any action which may be taken at a meeting of Members may
be taken without a meeting by written action signed by all Members.
5.2 Regular Meetings. The Members may prescribe the time and place for the
holding of regular monthly meetings and may provide notice of such regular
meetings by adoption of a resolution at the annual meeting.
5.3 Special Meetings. Special meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by the
Manager/President or by any two Members.
5.4 Notice of Meeting. Written or telephonic notice stating the place, day
and hour of the meeting and, in case of a special meeting, the purposes for
which the meeting is called, must be delivered not less than three (3) days
before the date of the meeting, either personally or by mail, to each Member of
record entitled to vote at the meeting. If mailed, the notice will be deemed to
be
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delivered when deposited in the United States mail, addressed to the Member at
his address as it appears on the books of the Company, with postage prepaid.
When all the Members of the Company are present at any meeting, or if those not
present sign in writing a waiver of notice of the meeting, or subsequently
ratify all the proceedings of the meeting, the transactions of the meeting are
as valid as if a meeting were formally called and notice had been given.
5.5 Quorum. At any meeting of the Members, a majority of the equity
interests, as determined from the capital contribution of each Member as
reflected by the books of the Company, represented in person or by proxy, will
constitute a quorum at a meeting of Members. If less than a majority of the
equity interests are represented at a meeting, a majority of the interests so
represented may adjourn the meeting from time to time without further notice. At
an adjourned meeting at which a quorum is present or represented, any business
may be transacted which might have been transacted at the meeting as originally
notified. The Members present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Members to leave less than a quorum.
5.6 Proxies. At all meetings of Members, a Member may vote by proxy
executed in writing by the Member or by his duly authorized attorney-in-fact.
The proxy must be filed with the Assistant Manager/Secretary of the Company
before or at the time of the meeting. No proxy may be valid after three months
from date of execution, unless otherwise provided in the proxy.
5.7 Voting by Certain Members. The equity interest of a member that is a
corporation, partnership or company may be voted by the officer, partner, agent
or proxy as the Bylaws of the entity may prescribe or, in the absence of such
provision, as the Board of Directors of the entity may determine. Voting rights
of a member held by a trustee, personal representative, administrator, executor,
guardian or conservator may be voted by him, either in person or by proxy,
without a transfer
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of those rights into his name.
5.8 Formal action by Members. The act of a majority in equity interest of
the Members present at a meeting at which a quorum is present will be the act of
the Members. The percentage of equity interest of each Member shall be equal to
the percentage set forth in Section 13.2 below.
5.9 Presumption of Assent. A Member of the Company who is present at a
meeting of the Members at which action on any matter is taken will be presumed
to have assented to the action taken, unless his dissent is entered in the
minutes of the meeting or unless he files his written dissent to the action with
the person acting as the secretary of the meeting before the adjournment of the
meeting or forwards his/her dissent by certified mail to the secretary of the
meeting immediately after the adjournment of the meeting. The right to dissent
will not apply to a Member who voted in favor of the action.
5.10 Informal Action of Members. Unless otherwise provided by law, any
action required to be taken at a meeting of the Members, or any other action
which may be taken at a meeting of the Members, may be taken without a meeting
if a consent in writing, setting forth the action so taken, is signed by a
majority in equity interest of the members entitled to vote on such action.
5.11 Telephonic Meeting. Members of the Company may participate in any
meeting of the Members by means of conference telephone or similar communication
if all persons participating in the meeting can hear one another for the entire
discussion of the matter(s) to be voted on. Participating in a meeting pursuant
to this Section will constitute presence in person at the meeting.
ARTICLE VI
FISCAL MATTERS
6.1 Fiscal Year. The fiscal year of the Company will begin on the first
day of January and end on the last day of December each year, unless otherwise
determined by resolution of the Board of Members.
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6.2 Deposits. All funds of the Company will be deposited from time to
time to the credit of the Company in the banks, trust companies or other
depositories as the Board of Members or a manager/officer may select.
6.3 Checks, Drafts, Etc. All checks, drafts or other orders for the payment
of money, and all notes or other evidences of indebtedness issued in the name of
the Company will be signed by a manager/officer of the Company.
6.4 Loans. No loans may be contracted on behalf of the Company or no
evidences of indebtedness may be issued in its name unless authorized by a
resolution of the Board of Members. The authority may be general or confined to
specific instances.
6.5 Contracts. The Members or manager(s)/officer(s) may authorize any
Member, manager/officer or agent of the Company to enter into any contract or
execute any instrument in the name of and on behalf of the Company, and such
authority may be general or confined to specific instances.
6.6 Accountant. An Accountant may be selected from time to time by the
Members or a manager/officer to perform such tax and accounting services as may
be required from time to time. The accountant may be removed by the Members or a
manager/officer without assigning any cause.
6.7 Legal Counsel. One or more Attorney(s) at Law may be selected from
time to time by the Members or a manager/officer to review the legal affairs of
the Company and to perform other services as may be required and to report to
the Members or a manager/officer with respect to those services. The Legal
Counsel may be removed by the Members or a manager/officer without assigning any
cause.
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ARTICLE VII
MANAGEMENT AND BOARD OF MEMBERS
7.1 Management. All of the Members shall constitute the Board of Members.
Control and management of the business of the Company shall be vested in a
Manager/President and Assistant Manager/Secretary appointed by vote of a
majority in equity interest of the Board of Members. The manager/officers shall
be authorized to carry out any act on behalf of the Company, including, without
limitation, the execution of documents on behalf of and binding upon the
Company.
7.2 Appointment of Managers/Officers. Each year the Board of Members shall
appoint a person or entity to be a Manager/President and Assistant
Manager/Secretary at the annual meeting of Members referred to in Section 5.1
above.
7.3 Manager/President. The Manager/President will be the principal
executive manager of the Company and, subject to the control of the Board of
Members, will, in general, supervise and control all of the business and affairs
of the Company. He will, when present, preside at all meetings of the Board of
Members. He may sign, with the Assistant Manager/Secretary or any other
certifying official as set forth in the Articles of Organization or any
amendment thereto, or any other representative of the Company authorized by the
Board of Members, certificates for shares of the Company, any deeds, mortgages,
bonds, contracts or other instruments except those which are required by law, by
this Operating Agreement or by the Board of Members to be otherwise signed or
executed; and, in general, will perform all duties as may be prescribed by the
Board of Members from time to time.
7.4 Assistant Manager/Secretary. The Assistant Manager/Secretary will: (1)
prepare and keep the minutes of the Board of Members meetings in one or more
books provided for that purpose; (2) see that all notices are duly given in
accordance with the provisions of the Operating Agreement or as required by law;
(3) be custodian of the Company records and of the seal of the Company and see
to it
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that the Company seal is affixed to all documents the execution of which on
behalf of the Company under its seal is duly authorized; (4) keep a register of
the address of each member; (5) sign with the Manager/President certificates for
the shares of the Company, the issuance of which has been authorized by
resolution of the Board of Members; (6) have general charge of the share
transfer books of the Company; (7) authenticate records of the Company; and, in
general, (8) perform all duties incident to the office of Assistant
Manager/Secretary and other duties as from time to time may be assigned by the
Manager/President or by the Board of Members.
7.5 Election and Tenure. The managers/officers of the Company will be
elected annually by the Members at the annual meeting. Each manager/officer will
hold office from the date of his election until the next annual meeting and
until his successor has been elected, unless he sooner resigns or is removed.
7.6 Resignations and Removal. Any manager/officer may resign at any time by
giving written notice to the Board of Members and, unless otherwise specified
therein, the acceptance of the resignation will not be necessary to make it
effective. Any manager/officer may be removed at any time by the Board of
Members with or without cause.
7.7 Vacancies. A vacancy in any office may be filled for the unexpired
portion of the term by the Members.
7.8 Salaries. The salaries of the managers/officers will be fixed from time
to time by the Board of Members and no manager/officer may be prevented from
receiving such salary by reason of the fact that he is also a Member of the
Company.
ARTICLE VIII
MEMBERSHIP CERTIFICATES
Membership Certificates representing equity interest in the Company will be
in the form
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determined by the Members. Membership Certificates must be signed by the
Assistant Manager/Secretary and Manager/President of the Company. All Membership
Certificates must be consecutively numbered or otherwise identified. The name
and address of the person to whom the Membership Certificates are issued, and
the date of issue, must be entered in the Certificate Register of the Company.
In case of a lost, destroyed or mutilated Membership Certificate, a new one may
be issued on the terms and indemnity to the Company as the Members may
prescribe.
ARTICLE IX
TRANSFER OF MEMBER'S INTEREST
9.1 Right of First Refusal.
(1) Prior to any sale, exchange or other transfer of all or any portion of
an interest in the LCC, the transferring Member shall first offer in writing to
each of the other Members ("Offeree Members") such interest in the proportion
that such Offeree Member's then interest in the Company bears to the then
interest in the Company of all Offeree Members under Section 6.2 (each Member's
share of the offered interest being referred to herein as his "proportionate
share"), at a price which bears the same ratio to the offered price as his
proportionate share bears to all proportionate shares, and on the offered terms.
Said Offeree Members shall have a period of twenty (20) days after receipt of
said written offer to accept said offer to the extent of each Offeree Member's
proportionate share, or to reject said offer. In the event any Offeree Member
fails to accept the transferring Member's offer within said twenty (20) day
period, the portion of the offered interest then remaining shall, within ten
(10) days thereafter, be divided among and sold to the Offeree Members who
accepted said offer in proportion that each such Offeree Member's then share of
the Membership interest bears to all such Offeree Members' then interest in the
Company under Section 6.2, at a price which bears the same ratio to the offered
price as the interest sold to such Offeree Member bears to the offered interest.
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(2) In the event the Offeree Members do not purchase the offered interest
after said thirty (30) day period of time, the transferring Member may then
transfer the offered interest (but no more and no less than the offered
interest) at a price no more favorable to the purchaser than the offered price
and on terms no more favorable to the purchaser than the offered terms, for a
period of sixty (60) days following the expiration of the last applicable period
of time during which any Offeree Member may have purchased said interest. Under
no circumstances can the offered interest be sold, exchanged, or otherwise
transferred after expiration of said sixty (60) day period unless and until it
has first been referred to the Offeree Members in the complete manner
hereinabove provided.
9.2 Securities Restrictions. After complying with the provisions of Section
9.1(2), no Member may sell, donate, convey, or otherwise transfer his interest
in the Company without first obtaining: the issuance of a favorable opinion of
counsel for the Company and/or submission to the Company of such other evidence
as may be satisfactory to counsel for the Company to the effect that (a) the
transfer will not be in violation of the Securities Act of 1933 (or any rule or
regulation promulgated thereunder) and applicable state securities laws and (b)
the transfer will not cause a termination of the Company for Federal income tax
purposes under Section 708 of the Internal Revenue Code or any successor
provision of any subsequent Federal revenue code. Any transfer made in violation
of this Section 9.2 shall not be recognized and no such transferee shall be
deemed to have any interest in the Company.
9.3 Assignment of Membership Interest. An assignment of a Membership
interest shall not entitle the assignee to become or to exercise any rights or
powers of a Member unless and until such time as he is admitted in accordance
with Section 9.5. An assignment shall entitle the assignee only to receive such
distributions to which the assignor was entitled to the extent assigned. The
pledge of
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or granting of a security interest, lien, or other encumbrance in or against any
or all of the membership interest of a Member shall not cause a Member to cease
to be a Member nor shall it cause any such secured creditor to have the power to
exercise any rights or powers of a Member:
9.4 Powers of Estate of a Bankrupt Member. If a Member files for bankruptcy
or for any other reason a trustee is appointed to manage the business affairs of
the Member, the Member's membership ceases and the Member's trustee,
administrator, conservator or other legal representative shall be treated as an
assignee.
9.5 Admission Into Membership. In the event of a sale, assignment,
donation, or other transfer of a Company interest to a party who is not a
Member, said transferee shall not be recognized as a substituted Member and
shall not participate in the management of the Company unless and until he is
approved by a majority in interest of the remaining Members and an amendment to
this Operating Agreement is executed by the new Member and by all remaining
Members and any other appropriate documents are executed and recorded in the
proper records of the State of Louisiana and other appropriate states. Any and
all changes in Members must be formalized by filing notice of the same with the
Secretary of State by amendment of the Articles of Organization. If any Member
sells or exchanges his interest in the Company, in violation of the provisions
of this Section, and the effect of such sale or exchange is to cause a
termination of the Company under Section 708 of the Internal Revenue Code, said
selling or exchanging Member shall be liable in damages to the other Members for
their losses sustained thereby.
9.6 Financial Apportionment Upon Transfer. If a Membership interest is
transferred or an additional Member is admitted into the Company at any time
other than on the first day of a fiscal year of the Company, the Company's books
shall not be closed to determine the shares of profits,
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gains, depreciation deductions, losses and net cash flow of the transferor and
the transferee or the original Members and all of the Members, but the profits,
gains, depreciation deductions, losses and net cash flow shall be prorated on a
daily basis between the portion of the Company's fiscal year preceding the date
of transfer or admission and the portion of the Company's fiscal year following
the date of transfer or admission, unless a majority in interest of the original
Members elect to close the Company's books as of the close of business on the
day immediately preceding the date of transfer or admission to determine the
transferor's or new Member's share of pre-transfer or pre-admission and the
transferee's or new Member's share of post-transfer or post-admission profits,
gains, depreciation deductions, losses and net cash flow.
ARTICLE X
WITHDRAWAL OR EXPULSION OF MEMBERS
If a Member is expelled, or voluntarily withdraws from the Company, the
former Member shall be entitled to a distribution equal to eighty percent of the
total capital contribution.
ARTICLE XI
DISSOLUTION
The Company shall be dissolved upon the occurrence of any of the following
events:
(a) By consent of a majority in interest of the Members; or
(b) Upon the withdrawal, expulsion, bankruptcy, or the occurrence of any
other event that terminates the continued membership of a Member in the
Company, unless within ninety (90) days after such event, a majority in
interest of the remaining members elect to continue the Company, or, if
membership is reduced to one, one or more additional Members are
admitted into the Company.
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ARTICLE XII
BOOKS AND RECORDS
12.1 Books and Records. The books and records of the company must be kept
at the principal office of the company or at other places, within or without the
state of Louisiana, as the Members from time to time determine.
12.2 Right of Inspection. Any Member of record will have the right to
examine and make copies, at any reasonable time or times for all purposes,
minutes and records of the Company. On the written request of any Member, the
Company must mail to such Member its most recent financial statements, showing
in reasonable detail its assets and liabilities and the results of its
operations.
12.3 Financial Records. All financial records will be maintained and
reported based on generally acceptable accounting practices.
ARTICLE XIII
CAPITAL CONTRIBUTIONS
13.1 Initial Contribution. The initial contribution of each member to the
capital of the Company shall be $_______.
The Members shall properly execute the appropriate transfer documents to
convey their interest in the property to the Company immediately following its
formation.
13.2 Fair Market Value. The Members hereby acknowledge that their equity
ownership interest in the Company based on their capital contributions is as
follows:
MEMBERS PERCENTAGE
------- ----------
Cameron Communications Corporation 50%
US Unwired Inc. 50
Total: 100
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13.3 Additional Contributions. No Member shall be required to make any
additional contributions to the capital of the Company other than that amount,
initially agreed to by the Members and no Member shall have the right to
withdraw any portion of his capital contribution except as otherwise provided
herein. If any additional capital contribution is made by any Member, this
Operating Agreement shall be amended to reflect said contribution. Each Member's
capital account balance shall be increased by any additional contribution made
by him to the Company. No Member shall be paid interest on any capital
contributed by him to the Company.
13.4 Capital Accounts. Each Member's initial capital account balance shall
be the fair market value of the capital contribution set forth above.
ARTICLE XIV
PROFITS. GAINS AND LOSSES
14.1 PROFITS. Gains and Losses.
(a) As used herein, "Profits," "Gains" and "Losses" mean ordinary taxable
income; capital or (S) 1231 gains; and ordinary, (S) 1231 and capital losses,
respectively, as determined for federal income tax purposes increased by tax-
exempt income and decreased by nondeductible expenses (including nondeductible
and nonamortizable syndication costs described in (S)709 of the Internal Revenue
Code), but computed by calculating depreciation expense ("Depreciation") for
book purposes on the basis of its gross book value on the Company books using
the depreciation method and useful life used by the Members for federal income
tax purposes.
(b)(1) The Company's depreciation deductions as calculated for federal
income tax purposes shall be allocated among the Members in proportion to the
allocation among them of depreciation expenses as calculated pursuant to Section
6.1 (a) for book purposes; provided, however, that depreciation deductions
allowed for federal income tax purposes (i) with respect to any asset
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contributed by a Member to the Company, or (ii) with respect to any asset having
a different gross book value than its gross basis for federal income tax
purposes, shall be allocated among the Member in accordance with the principles
of Section 704(c) of the Internal Revenue Code and the regulations thereunder
(without affecting book capital accounts) so as to take into account the
difference between adjusted basis and book value (net of accumulated
depreciation) in the manner provided therein.
(2) Gains and losses on the sale or other disposition of Company assets (as
calculated for federal income tax purposes) shall be allocated among the Member
so as to take into account all differences between the adjusted basis of assets
sold or disposed of and their book values (net of accumulated depreciation) but
without crediting or debiting capital accounts for said differences, all in
accordance with the principles of Section 704(c) of the Internal Revenue Code
and the regulations thereunder.
14.2 Allocations. Except as otherwise provided in Section 14.1, Company
profits, gains and losses as defined above shall be divided and shared among the
Members in the following percentages:
MEMBERS PERCENTAGE
------- ----------
Cameron Communications Corporation 50%
US Unwired Inc. 50%
Total: 100%
In the event that any Member's capital account is reduced below zero, such
Member shall be required to restore the deficit balance before ceasing to be a
Member of the COMPANY.
14.3 vital Accounts. Each Member's share of COMPANY profits and gains
allocated pursuant to Section 14.2 shall be credited to his capital account.
Each Member's share of losses allocated pursuant Section 14.2 shall be charged
against his capital account.
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ARTICLE XV
INVESTMENT REPRESENTATIONS
15.1 Investment Purpose. Each Member hereby represents and warrants to the
other Members and to the Company that his acquisition of an interest in the
Company is made as principal for its own account for investment purposes only
and not with a view to the resale or distribution of such interest.
15.2 Representations and Warranties. Each Member represents and warrants
that:
(a) It has been represented in the formation of the Company by counsel or
has received the consultation of other professionals sufficiently familiar with
matters of federal and state income taxation to be able to advise as to the
possible tax risks of an investment in the Company;
(b) It has such knowledge and experience in financial matters that it is
capable of evaluating the merits and risks of an investment in the Company;
(c) It understands that investment in the Company is an illiquid
investment. In particular, it recognizes that:
(1) It must bear the economic risk of investment in the Company for an
indefinite period of time, since interests in the Company have not been
registered under the Securities Act of 1933, and, therefore, cannot be sold
unless either they are subsequently registered under said Act or an exemption
form such registration is available and a favorable opinion of counsel for the
Company to that effect is obtained;
(2) It will have no right to require registration of the interest in
the Company under the Securities Act of 1933 and will not be entitled to the
benefits of Rule 144 under said Act;
(3) There will be no established market for interests in the Company
and it is extremely unlikely that any public market for said interest will
develop; and
(4) Its right to transfer its interest will be restricted, as
provided herein.
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(d) It has been furnished all materials relating to the Company and its
proposed activities which it has requested and has been afforded the opportunity
to obtain any additional information necessary to verify the accuracy of any
representations or information furnished to him;
(e) It has adequate means of providing for his current needs and personal
contingencies and has no need for liquidity in his investments.
ARTICLE XVI
LIABILITY AND INDEMNIFICATION
16.1 No Member or manager/officer shall be personally liable for monetary
damage for breach of any duty set forth in L.S.A.-R.S. 12:1314.
16.2 Indemnification By Company. As authorized by L.S.A.-R.S. 12:1315
A.(2), the Company shall indemnify any person who was or is a party defendant or
is threatened to be made a party defendant to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the Company) by
reason of the fact that he is or was a Member, manager/officer, employee or
agent of the Company, or is or was serving at the request of the Company,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with the
action, suit or proceeding if the Members determine that he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the Company, and with respect to any criminal action or proceeding,
has no reasonable cause to believe his conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, conviction, or
on a plea of nolo contendere or its equivalent, will not in itself create a
presumption that the person did or did not act in good faith and in a manner
which he reasonably believed to be in the best interest of the Company, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that
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his conduct was unlawful.
16.3 Indemnification Funding. The Company will fiend the indemnification
obligations provided by Section 16.2 in the manner and to the extent the Members
may from time to time deem proper.
ARTICLE XVII
MISCELLANEOUS
17.1 Notice. Any notice required or permitted to be given pursuant to the
provisions of any law, the Articles of Organization of the Company or this
Operating Agreement will be effective as of the date personally delivered, or if
sent by mail, on the date deposited with United States Postal Service, prepaid
and addressed to the intended receiver at his last known address as shown in the
records of the Company.
17.2 Waiver of Notice. Whenever any notice is required to be given pursuant
to the provisions of any law, the Articles of Organization of the Company or
this Operating Agreement, a waiver of the notice, in writing, signed by the
persons entitled to the notice, whether before or after the time stated therein,
will be deemed equivalent to the giving of the notice.
17.3 Arbitration. In case of a dispute arising between the Members
concerning the operation, management or buy-out of the interest of the Company,
the Members shall submit the same to arbitration. The Members shall each be
entitled to appoint one nominee who will then collectively meet and by majority
agreement shall appoint one arbitrator who shall be a licensed attorney at law.
The arbitrator, when duly appointed, shall have access to all books and
records of the Company and shall have the right to examine all of its accounts,
notes, securities, books, inventories, assets and equipment and to hear evidence
of the Members and other witnesses and to make any accounting necessary and to
do all things fully and completely to enable him to make a fair and full
22
settlement of all matters in arbitration. When the arbitrator has passed upon
matters in dispute between the Members, he shall notify each Member in writing
of his decision and his decision shall be final and binding upon the parties
subject to the rights pursuant to the Louisiana Arbitration Law as set forth in
LSA-R.S. 9:4201-4217, as amended.
17.4 Agent for Tax Matters. The Members will appoint an agent who will be
responsible for the handling of all required tax documents and who will respond
to all inquiries from tax authorities.
17.5 Duality of Interest Transactions. Members of this Company have a duty
of undivided loyalty to this Company in all matters affecting this Company's
interests.
17.6 Anticipated Transactions. Notwithstanding the provision of Section
17.5, it is anticipated that the Members and managers/officers will have other
legal and financial relationships. Representatives of this Company, along with
representatives of other entities, from time to time may participate in the
joint development of contracts and transactions designed to be fair and
reasonable to each participant and to afford an aggregate benefit to all
participants. Therefore, it is anticipated that this Company will desire to
participate in these contracts and transactions and, after ordinary review for
reasonableness, that the participation of the Company in these contracts and
transactions may be authorized by the Members.
17.7 Gender and Number. Whenever the context requires, the gender of all
words used in this Agreement will include the masculine, feminine and neuter,
and the number of all words will include the singular and plural.
17.8 Articles and other Headings. The Articles and other headings
contained in this Operating Agreement are for reference purposes only and will
not affect the meaning or interpretation.
17.9 Reimbursement of Managers/Officers and Members. Managers/officers and
Members will receive reimbursement for expenses reasonably incurred in the
performance of their duties.
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17.10 Severability. Should a court of competent jurisdiction determine that
any provision contained herein is not enforceable under the laws of the State of
Louisiana or the United States, such a determination shall not affect the
enforceability and validity of any other provision contained herein.
17.11 Counterparts. This Agreement may be executed in several counterparts
and as so executed shall constitute one agreement binding on all parties
hereto, notwithstanding that all the parties have not signed the original or the
same counterpart.
17.12 Entire Agreement. This Agreement contains the entire understanding
between the Members and supersedes any prior understanding and/or written or
oral agreements between them respecting the subject matter hereof.
ARTICLE XVIII
AMENDMENTS
This Operating Agreement may be altered, amended, restated, or repealed and
a new Operating Agreement may be adopted by consent of a majority in equity
interest of all of the Members, after notice and opportunity for discussion of
the proposed alteration, amendment, restatement, or repeal.
CERTIFICATION
THE UNDERSIGNED, being all of the Members of LOUISIANA UNWIRED, LLC, A
Louisiana Limited Liability Company, evidence their adoption and ratification of
the foregoing Operating Agreement of the Company.
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THUS DONE AND PASSED by Xxxx X. Xxxxxxx, President of Cameron
Communications Corporation, at ________, Louisiana, on the 23rd day of February,
1998, in the presence of the undersigned, competent witnesses, who hereunto sign
their names with the said appearers and me, Notary Public, after a due reading
of the whole.
WITNESSES: CAMERON COMMUNICATIONS CORPORATION
/s/ Xxx Xxxxx /s/ Xxxx X. Xxxxxxx
-------------------------- ----------------------------------
BY: XXXX X. XXXXXXX
/s/ Xxxxxx Xxxxx TITLE: PRESIDENT
--------------------------
/s/ Xxxxxx Xxxx
----------------
NOTARY PUBLIC
THUS DONE AND PASSED by Xxxxxx Xxxxx, President of US Unwired Inc., at Lake
Charles, Louisiana, on the 23rd day of February, 1998, in the presence of the
undersigned, competent witnesses, who hereunto sign their names with the said
appearers and me, Notary Public, after a due reading of the whole.
WITNESSES: US UNWIRED INC.
/s/ Xxx Xxxxx /s/ Xxxxxx Xxxxx
-------------------------- ----------------------------------
BY: XXXXXX XXXXX
TITLE: PRESIDENT
/s/ Xxxxxx Xxxxx
--------------------------
/s/ Xxxxxx Xxxx
----------------
NOTARY PUBLIC
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