ANDLINGER CAPITAL XXVI LLC
LIMITED LIABILITY COMPANY AGREEMENT
LIMITED LIABILITY COMPANY AGREEMENT dated as of February 17, 2000 among
the persons whose names appear on Schedule A hereto, as members (the "Members").
W I T N E S S E T H:
WHEREAS the Members have formed a limited liability company (the "LLC")
under the Delaware Limited Liability Company Act (the "Act") pursuant to the
Certificate of Formation (the "Certificate of Formation") filed with the Office
of the Secretary of State of Delaware (the "Secretary of State"); and
WHEREAS the Members wish to set forth the terms pursuant to which the
LLC will be formed, managed and operated.
NOW, THEREFORE, in consideration of the mutual promises and agreements
made herein, the parties, intending to be legally bound hereby, agree as
follows:
ARTICLE I
GENERAL
1.01. Offices. The principal office of the LLC shall be at 000 Xxxxxx
Xxxxx, Xxxxxxxx, XX 00000. The LLC may operate at such additional offices as it
shall deem advisable.
1.02. Purpose. The LLC (i) is organized to engage in any business, (ii)
has all powers provided by law and (iii) may use those powers to any lawful
purpose.
1.03. Term. The LLC shall continue in full force and effect until
December 31, 2025 unless earlier terminated.
1.04. Name. The name of the LLC shall be "ANDLINGER CAPITAL XXVI LLC".
1.05. Registered Agent and Office. The registered agent for service of
process and the registered office shall be that person and location stated in
the Certificate of Formation. In the event the registered agent ceases to act as
such for any reason, the Members shall promptly appoint a substitute registered
agent or file notice of a change in address, as the case may be.
1.06. Additional Members. The Members in their sole discretion shall be
entitled to admit any person as a new Member by a vote of a majority in interest
of the Members voting in accordance with their voting Units (as described in
Section 3.02 hereof).
ARTICLE II
MANAGEMENT
2.01. Management Rights. (a) Except as otherwise expressly provided
herein, all management rights of the LLC shall be vested in the Manager. The
initial Manager shall be Xxxxxxx X. Xxxxxx. The Manager shall have complete
discretion to exercise any voting rights with respect to any securities owned by
the LLC and to sell or otherwise dispose of such securities for adequate
consideration and to exercise any other rights with respect to such securities;
provided, however, that upon notice to the Manager, the Members, by the vote of
a majority in interest of the Members voting in accordance with their voting
Units, may direct the Manager as to the manner in which such voting rights shall
be exercised and whether and to what extent such securities shall be sold or
otherwise disposed of.
(b) A Manager may resign at any time by an instrument in writing
delivered to the Members, but such resignation shall not be effective until the
effective election of a successor Manager by the vote of a majority in interest
of the Members voting in accordance with their voting Units.
(c) Upon a Manager becoming domiciled in Florida, or otherwise having a
Florida tax situs for Florida intangible tax purposes, that Manager shall be
automatically removed and a successor Manager shall be elected as provided
above.
2.02. Members' Rights. Actions required or permitted to be taken by the
Members hereunder shall be taken with the consent of a majority in interest of
the Members, voting in proportion to the number of voting Units set forth
opposite such Member's name on Schedule A hereto, as the same may be updated
from time to time.
2.03. No Liability of Member or Manager; Reimbursement of Expenses. (a)
No Member and no Manager shall be liable for any obligation or liability of the
LLC.
(b) The Manager shall be reimbursed for all reasonable expenses
incurred in the management of the LLC. A Manager may also serve as legal counsel
to the LLC and shall be compensated for his or her services in accordance with
his or her schedule of fees in effect from time to time or such other amount as
may be agreed upon.
2.04. Liability and Indemnification. (a) Neither a Member nor the
Manager shall be liable, responsible or accountable, in damages or otherwise, to
any other Member or to the LLC for any act performed by the Member or Manager
with respect to LLC matters, except for fraud, gross negligence or willful
misconduct.
(b) The LLC shall indemnify each Member and the Manager for any act
performed by the Member or the Manager with respect to LLC matters, except for
fraud, gross negligence or willful misconduct. The LLC shall also indemnify each
Member and the Manager for any liability incurred by such person in the course
of serving as an officer or director of any corporation or other entity, the
securities of which are held by the LLC or in which the LLC has
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invested, except for fraud, gross negligence or willful misconduct. The
provisions of this Section 2.04 shall continue to afford protection to each
person who is or was a Member or Manager regardless of whether such person
remains a Member or Manager of the LLC.
ARTICLE III
ACCOUNTING, ALLOCATIONS AND DISTRIBUTIONS
3.01. Accounting. The Manager shall maintain a "Capital Account" for
each of the Members. "Capital Account" shall mean with respect to any Member,
such Member's initial or subsequent capital contributions to the LLC, increased
by such Member's share of any income (which shall include capital gains),
reduced by such Member's share of any loss (which shall include capital losses)
of the LLC and the amount of any distributions of cash or the fair market value
of assets distributed by such LLC to such Member. The Members' initial capital
contributions shall be set forth on Schedule A hereto.
3.02. Units and Special Allocations of Profits and Losses. (a) Upon
becoming a Member of the LLC, a Member shall be credited with Units which
represent such Member's interests in the underlying assets of the LLC. Units may
be designated as Common Stock Units (representing the common stock held by the
LLC) which are voting Units, or as Warrant Units (representing the warrants held
by the LLC) which are nonvoting Units, or such other designation as the Manager
shall determine. The Manager shall keep an up to date schedule of all of the
Units allocated to each Member and the designation of such Units.
Notwithstanding the foregoing, each Member shall have and own interests in the
LLC (but not the LLC property itself).
(b) Income (which shall include capital gains) and loss (which shall
include capital losses) shall be specially allocated to the Members in
accordance with the income and loss attributable to the Units credited to each
Member.
3.03. Distributions. The LLC may distribute to the Members cash or
property; such distributions shall be to such persons, at such times and in such
amounts as may be determined by the Manager from time to time; provided,
however, that distributions to any Member shall not exceed such Member's Capital
Account and upon a dissolution of the LLC, distributions to Members shall be
governed by Article VII hereof. Such distributions may be made by the Manager
even if such distribution would cause the LLC to cease to have any assets.
ARTICLE IV
PROHIBITED CONDUCT
4.01. Transactions with the LLC. Except as expressly permitted
hereunder, no Member other than the Manager may act on behalf of the LLC for any
purpose; no Member including the Manager may use the LLC's name, credit, or
property for other than LLC purposes. If a Member enters into a transaction
involving the LLC that is not within the scope of its authority, such
transaction shall be voidable at the election of the LLC.
4.02. Prohibited Acts. Except as expressly permitted hereunder, without
the prior approval of the Members, by the vote of a majority in interest of the
Members voting in
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accordance with their voting Units, the Manager may not:
(a) Do any act in contravention of this Agreement;
(b) Execute any bond, guaranty, or confession of judgment relating to
any part of the LLC's assets or any interest therein; or
(c) Enter into any agreement, contract or commitment of the LLC not in
the ordinary course of business of managing the LLC or which requires payments
by the LLC in excess of $50,000 over the term of such agreement, contract or
commitment.
4.03. Permitted Acts. Notwithstanding the foregoing, the Manager may:
(a) Borrow any funds or lend any money in the name or on behalf of the
LLC;
(b) Pledge, mortgage, hypothecate, or encumber any assets of the LLC or
any interest in the LLC; and
(c) Make, execute or deliver any assignment of LLC assets, including
any assignment of assets for the benefit of creditors.
ARTICLE V
BOOKS, RECORDS, ACCOUNTING AND REPORTS
5.01. Books and Records. The LLC's books and records, together with all
of the documents and papers pertaining to the business of the LLC, shall be kept
at the principal office of the LLC or at 000 Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxx Xxxx
00000xxx at all reasonable times shall be open to the inspection of and may be
copied and excerpts taken therefrom by any Member or such Member's duly
authorized representative, provided that such inspection is made in good faith
and without any intent to damage the LLC or any of the Members.
5.02. Accounting Year. The fiscal and tax year of the LLC shall be a
calendar year.
5.03. Tax Returns. The Manager shall cause income tax returns for the
LLC to be prepared and timely filed with the appropriate authorities. Each
Member of the LLC shall cooperate with and assist in the preparation of such tax
returns.
5.04. Bank Accounts. All funds of the LLC shall be deposited in the
name of the LLC in such bank account or accounts as shall be deemed appropriate
by the Manager. All withdrawals therefrom shall be made upon checks signed on
behalf of the Manager by any person or persons approved by the Manager to sign
such checks.
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ARTICLE VI
TRANSFERABILITY OF A MEMBER'S INTEREST
6.01. Restrictions on Transfers of Interest. No sale, exchange,
transfer or assignment of a Member's interest in the LLC may be made (other than
by operation of law) without the consent of the Members by the vote of a
majority in interest of the Members voting in accordance with their voting
Units. Any attempted transfer of a Member's interest in the LLC in contravention
of this Section 6.01 shall be void.
ARTICLE VII
DISSOLUTION
7.01. Dissolution of LLC. The LLC will dissolve upon the earlier of
December 31, 2025 or the written consent of the majority in interest of the
Members voting in accordance with their voting Units. In settling accounts after
dissolution, the assets of the LLC shall be paid out in the following order:
(1) first, to creditors other than Members (whether by payment or
establishment of reserves), in the order or priority as provided by law;
(2) second, to the Members for liabilities other than with respect to
Capital Accounts; and
(3) third, to the Members in proportion to the balances in their
Capital Accounts.
No Member shall be obligated to contribute to the LLC any amount with respect to
the negative amount, if any, of such Member's Capital Account.
ARTICLE VIII
AMENDMENTS
8.01. Adoption of Amendments. The vote of the majority in interest of
the Members voting in accordance with their voting Units shall be required to
amend this Agreement or to grant waivers from any provision of this Agreement or
to take any other action permitted to be taken by Members under the Act.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01. Intent of the Members. It is the express intention of the Members
that this Agreement and the Certificate of Formation shall be the sole sources
of agreement of the parties and, except to the extent (a) provisions of the Code
or regulations of the Department of the Treasury under the Code, as lawfully
changed from time to time, are incorporated herein by reference, or (b) any
provision of this Agreement is expressly prohibited or ineffective under the
Act, this Agreement shall govern, even if inconsistent with, or different than,
the provisions of the Act or any other law or rule. To the extent any provision
of this Agreement is prohibited or ineffective under the Act, it shall be
considered amended to the extent necessary to be effective
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under the Act.
9.02. Number and Gender. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in the masculine, feminine and
neuter gender shall include the masculine, feminine and neuter.
9.03. Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning and
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement unless
otherwise specified.
9.04. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without reference
to its conflict of laws provisions and the obligations, rights, and remedies of
the parties hereunder shall be determined in accordance with such laws.
9.05. Notices. All notices under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return receipt requested.
9.06. Counterparts. This Agreement may be executed in two or more
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF the undersigned have executed and delivered this
Limited Liability Company Agreement as of the date first above written.
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, as Member
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, as Member and as
Manager
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Andlinger Capital XXVI LLC
Schedule A
Voting Units
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Xxxxxxx X. Xxxxxxxxx 1
Xxxxxxx X. Xxxxxx 1
