Exhibit 10.39
EXECUTION COPY
CONFIDENTIAL
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AMENDED AND RESTATED
OPERATING AGREEMENT
OF
INTERCOMMERCE CHINA, LLC
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TABLE OF CONTENTS
PAGE
ARTICLE I FORMATION OF LIMITED LIABILITY COMPANY
GENERAL PROVISIONS....................................................................1
Section 1.1 Formation.............................................................................1
Section 1.2 Name..................................................................................1
Section 1.3 Purpose...............................................................................1
Section 1.4 Offices...............................................................................2
Section 1.5 Nature of Partners' Interests, Non-Partition..........................................2
Section 1.6 Duration of Company...................................................................2
Section 1.7 Further Assurances....................................................................2
Section 1.8 Classification for Tax Purposes.......................................................2
ARTICLE II MEMBERS, MEMBERSHIP INTERESTS AND CAPITAL .............................................
CONTRIBUTIONS; LOANS..................................................................3
Section 2.1 Membership and Participation Percentages..............................................3
Section 2.2 Capital Accounts......................................................................4
Section 2.3 Use of Capital Contributions and Loans................................................4
Section 2.4 Additional Capital Contributions / Members' Loans.....................................4
Section 2.5 Operating Deficits....................................................................4
Section 2.6 Permitted Outside Activities..........................................................5
Section 2.7 Liability of Members..................................................................5
Section 2.8 Option to Acquire Membership Interests................................................5
ARTICLE III MEETINGS OF MEMBERS...................................................................6
Section 3.1 Annual Meetings; Special Meetings.....................................................6
Section 3.2 Place of Meetings.....................................................................6
Section 3.3 Notice of Meetings....................................................................6
Section 3.4 Quorum of and Action by Members.......................................................6
Section 3.5 Voting by Members.....................................................................6
Section 3.6 Action Without a Meeting; Telephone Meetings..........................................7
ARTICLE IV MANAGEMENT............................................................................7
Section 4.1 Management............................................................................7
Section 4.2 Liability: Indemnification of the Manager.............................................9
Section 4.3 Interested Manager and Officers.......................................................9
Section 4.4 Manager's Compensation and Reimbursement..............................................9
Section 4.5 Time Devoted to Company...............................................................9
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 4.6 Records and Reports..................................................................10
Section 4.7 Fiscal Year..........................................................................10
Section 4.8 Reports..............................................................................10
Section 4.9 Required Filings.....................................................................11
Section 4.10 Inspection of Records................................................................11
Section 4.11 Annual Budget........................................................................11
Section 4.12 Liability of Manager.................................................................12
Section 4.13 Distribution and Operating Agreement.................................................12
Section 4.14 Consulting Agreement.................................................................12
ARTICLE V OFFICERS.............................................................................13
Section 5.1 Officers.............................................................................13
Section 5.2 Compensation.........................................................................13
Section 5.3 Term of Office; Removal; Filling of Vacancies........................................13
Section 5.4 Chairman.............................................................................13
Section 5.5 President............................................................................13
Section 5.6 Vice Presidents......................................................................13
Section 5.7 Secretary............................................................................14
Section 5.8 Assistant Secretary..................................................................14
Section 5.9 Treasurer............................................................................14
Section 5.10 Additional Powers and Duties.........................................................14
ARTICLE VI ACCOUNTING AND TAX MATTERS; REPORTS; BANKING.........................................14
Section 6.1 Books and Records; Capital Accounts..................................................14
Section 6.2 Returns Tax..........................................................................15
Section 6.3 Tax Matters Person...................................................................15
Section 6.4 Tax Elections........................................................................15
Section 6.5 Bank Accounts; Investment of Company Funds...........................................15
ARTICLE VII TRANSFER OF COMPANY INTERESTS, WITHDRAWAL OF
MEMBERS, BUY/SELL PROVISIONS.........................................................15
Section 7.1 Assignment and Transfer..............................................................15
Section 7.2 Expenses.............................................................................16
Section 7.3 Withdrawal of Members................................................................17
Section 7.4 Death, Legal Incapacity, Dissolution or Bankruptcy of a Member.......................17
Section 7.5 Status of Interests Transferred......................................................17
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TABLE OF CONTENTS
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ARTICLE VIII DISSOLUTION AND TERMINATION..........................................................17
Section 8.1 Dissolution..........................................................................17
Section 8.2 Appointment of Liquidating Member....................................................18
Section 8.3 Distributions and Other Matters......................................................18
Section 8.4 Distributions of Property............................................................19
Section 8.5 Action During Liquidation: Statements of Account.....................................19
ARTICLE IX REPRESENTATIONS, WARRANTIES AND COVENANTS............................................20
Section 9.1 Representations and Warranties.......................................................20
ARTICLE X NON-COMPETITION......................................................................21
Section 10.1 Non-Competition......................................................................21
ARTICLE XI AMENDMENTS...........................................................................21
Section 11.1 Amendments...........................................................................21
ARTICLE XII MISCELLANEOUS........................................................................21
Section 12.1 Manner of Giving Notice..............................................................21
Section 12.2 Waiver of Notice.....................................................................21
Section 12.3 No Company Seal......................................................................22
Section 12.4 Public Announcements.................................................................22
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AMENDED AND RESTATED
OPERATING AGREEMENT OF
INTERCOMMERCE CHINA, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Amended and Restated Limited Liability Company Agreement (this
"AGREEMENT") of InterCommerce China, LLC (the "COMPANY"), a limited liability
company organized pursuant to the Delaware Limited Liability Company Law of 1994
(as amended, the "ACT"), made as of the 7th day of January, 2000, is entered
into by and between WorldWide Web NetworX Corporation ("WWWX"), a Delaware
corporation, International Commerce Exchange Systems, Inc. ("ICES") a Delaware
corporation, Xxxxxx Xxxxx International Investment, Ltd. ("LWI"), a New York
corporation, Xxxxx Xxxxxxxxx ("HK"), Xxxxx Xxxxxxxxx Xx ("PZL") and Uncas
Holdings Limited Partnership ("UNCAS") a Nevada limited partnership, and amends
and restates in its entirety the Limited Liability Company Agreement of the
Company dated as of February 9, 1999 (the "PRIOR AGREEMENT").
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY GENERAL PROVISIONS
SECTION 1.1 FORMATION
ICES, LWI and HK have heretofore formed and now together with WWWX, PZL
and UNCAS shall operate a limited liability company under the Act and in
accordance with the terms of this Agreement and the Company's Articles of
Organization. The Company shall exist under and be governed by, and this
Agreement shall be construed in accordance with, the laws of the State of
Delaware. The parties have caused to be filed with the Secretary of State of
Delaware the Certificate of Formation of the Company.
SECTION 1.2 NAME
The name of the Company shall be Inter Commerce China, LLC, and all
business of the Company shall be conducted in such name or in such operational
names as determined, from time to time by the Manager.
SECTION 1.3 PURPOSE
The parties desire to form and operate the Company pursuant to this
Agreement and other related documents and instruments, as a limited liability
company under Delaware law. The purpose and character of the business of the
Company shall be to develop products and services utilizing modern technology
and to carry on any other lawful business, purpose or activity which the
Required Members may from time to time determine. "Required Members" shall mean,
as of any date, Members which, in the aggregate, are entitled to cast not less
than 70 votes as
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determined in accordance with Section 3.5 hereof. The Company shall have all of
the powers provided for a limited liability company under the Act.
SECTION 1.4 OFFICES
The principal place of business of the Company shall be 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX, 00000, or such other principal place of business as the
Manager may from time to time determine. The Company may have, in addition to
such office, such other offices and places of business at such locations, both
within and without the State of Delaware, as the Manager may from time to time
determine or the business and affairs of the Company may require.
SECTION 1.5 NATURE OF PARTNERS' INTERESTS, NON-PARTITION
The interests of the Members in the Company shall be personal property
for all purposes. All property owned by the Company, whether real or personal,
tangible or intangible, shall be owned by the Company as an entity, and no
Member individually shall have any ownership of such property. Except as
otherwise stated and provided herein, no Member shall be entitled to seek
partition of any Company property.
SECTION 1.6 DURATION OF COMPANY
The term of the Company commenced upon the filing of the Certificate of
Formation with the Secretary of State of the State of Delaware and shall
continue in existence and be perpetual unless terminated pursuant to any
provisions of this Agreement or as otherwise provided by law.
SECTION 1.7 FURTHER ASSURANCES
The parties hereto will execute whatever certificates and documents,
and will file, record and publish such certificates and documents, which are
required to form and operate a limited liability company under the Act.
SECTION 1.8 CLASSIFICATION FOR TAX PURPOSES
The Members hereby acknowledge their intention that the Company be
classified, for federal and state income tax purposes, as a partnership and not
as an association taxable as a corporation, pursuant to Section 7701(a)(2) of
the Code, and agree that the provisions of this Agreement shall be construed in
a manner to give full effect to such intent.
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ARTICLE II
MEMBERS, MEMBERSHIP INTERESTS AND CAPITAL CONTRIBUTIONS; LOANS
SECTION 2.1 MEMBERSHIP AND PARTICIPATION PERCENTAGES
The names, addresses and membership interest of each of the Members is
as follows:
Names and Addresses Participation Percentage
------------------- ------------------------
International Commerce Exchange Systems, Inc. 31.61%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
WorldWide Web NetworX Corporation 33.33%
000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xx. Xxxxxx, XX 00000
Xxxxxx Xxxxx International Investment, Ltd. 24.17%
0 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Xxxxx Xxxxxxxxx 5.89%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxxx Xx 4.50%
c/o American Nature International Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Uncas Holding Limited Partnership 0.50%
c/o Xxxxx X. Xxxxxx, General Partner
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
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SECTION 2.2 CAPITAL ACCOUNTS
The Company shall establish and maintain a Capital Account for each
Member in accordance with GAAP.
SECTION 2.3 USE OF CAPITAL CONTRIBUTIONS AND LOANS
The Capital Contributions of the Members, all proceeds of Company
borrowings, and any Additional Capital Contributions and Members' Loans made
pursuant to this Agreement shall be used and applied for any Company purpose as
determined by the Required Members.
SECTION 2.4 ADDITIONAL CAPITAL CONTRIBUTIONS / MEMBERS' LOANS
(A) Unless agreed to by all the Members, no Member shall be required to
make any Capital Contributions or Members' Loans to the Company.
(B) At any time and from time to time after the date hereof, any Member
may (but shall not be obligated to) make Additional Capital Contributions or
Members' Loans to the Company, if the Required Members approve in advance each
such Additional Capital Contribution and Members' Loans.
(C) If any Member advances any funds to the Company after the date of
this Agreement (except in the case of Additional Capital Contributions) with the
approval of the Required Members, such advances will be treated as Members'
Loans, will not increase such Members membership interest, and the amount
thereof will be a debt due from the Company to such Member, to be repaid with
interest thereon accruing at the fluctuating prime rate of interest published
from time to time by The Wall Street Journal (or, if The Wall Street Journal is
no longer published, the prime rate published in a publication of national
circulation selected by the Manager) plus two percent (2%), or as otherwise
unanimously approved by the Members.
SECTION 2.5 OPERATING DEFICITS
In the event that the Manager determines that the Company requires
additional funds to meet operating expenses or required capital improvements, or
for any other proper Company purpose (in any such case, an "OPERATING DEFICIT"),
the Manager may either (1) request that the Members, pro rata in accordance with
their then respective Participation Percentages, advance funds in the amount so
required, but in no event will the Members be obligated to make such an advance,
(2) with the prior consent of the Required Members, obtain loans on such terms
as the Members approve, (3) if loans are not available on terms satisfactory to
the Required Members, obtain additional equity participation in the Company by
the admission of additional Members and the pro rata reduction of the existing
Members' membership interests, or (4) take such other actions, and explore and
pursue such other financing options as the Required Members may deem appropriate
under the circumstances.
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SECTION 2.6 PERMITTED OUTSIDE ACTIVITIES.
The parties acknowledge that (a) the business of the Company may
involve business dealings with other businesses in which the parties or their
affiliates have an interest, (b) such parties and their affiliates may maintain
such other interests and activities, and (c) the Company, each party each waives
any rights it might otherwise have to share or participate in such other
interests or activities of each other party or their affiliates. For the
purposes of this Agreement, "affiliate" has the meaning set forth in Rule 12b-2
of the General Rule & Regulations under the Securities Exchange Act of 1934, as
amended.
SECTION 2.7 LIABILITY OF MEMBERS
No Member shall be liable for the debts, liabilities, contracts or
other obligations of the Company except to the extent of any unpaid capital
contributions it has agreed to make to the Company and its share of the assets
(including undistributed revenues) of the Company; no Member shall be required
to make any loans or capital contributions to the Company, except as may be
agreed between a Member and the Company, with approval of the Members as herein
required. The Company shall indemnify and hold harmless each Member in the event
such Member (a) becomes liable, notwithstanding the preceding sentence, for any
debt, liability, contract or other obligation of the Company except to the
extent expressly provided in the preceding sentence or (b) is directly or
indirectly required to make any payments with respect thereto.
SECTION 2.8 OPTION TO ACQUIRE MEMBERSHIP INTERESTS.
Each of the following persons has the right to purchase (the "OPTION")
a 0.625% interest in the Company (the "OPTION INTEREST"):
Xxxxxxx Xxxxxx
Xxxxx Xxxx
Xxxx Xxxxxxx
Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
Xxxxx X. Xxxxx
Xxxx Xxxx
Xxxx Xxxxxxx
The Option may be exercised upon 30 days' prior written notice on or after the
first date of any filing by the Company, or any successor with the Securities
and Exchange Commission in connection with the public issuance of any class of
securities of the Company or any successor. The purchase price of each Option
Interest shall be thirty percent (30%) of the fair market value of the Option
Interest, as determined by the Required Members in their reasonable judgment, as
of the date of this Agreement, payable upon issuance of the Option Interest and
the issuance of the Option Interest shall be subject to the execution and
delivery of such documents or instruments as the Required Members may reasonably
request. The Option shall expire January 1, 2003.
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ARTICLE III
MEETINGS OF MEMBERS
SECTION 3.1 ANNUAL MEETINGS; SPECIAL MEETINGS
An annual meeting of the Members, commencing with the year 1999, shall
be held within four months following the end of the fiscal year of the Company.
At such meeting, the Members shall transact such business as may properly be
brought before the meeting. Special meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Member.
Only business within the purpose or purposes described in the notice of special
meeting of Members may be conducted at the meeting unless the Members otherwise
agree.
SECTION 3.2 PLACE OF MEETINGS
Meetings of Members shall be held at such places, within or without the
State of Delaware, as may from time to time be fixed by the Manager or as shall
be specified or fixed in the respective notices or waivers of notice thereof.
SECTION 3.3 NOTICE OF MEETINGS
Written or printed notice stating the place, day and hour of each
meeting of the Members and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than five
nor more than 45 days before the date of the meeting, either personally or by
mail, telegram, express courier or telefax or similar communication, by or at
the direction of the person(s) calling the meeting, to each Member entitled to
vote at the meeting.
SECTION 3.4 QUORUM OF AND ACTION BY MEMBERS
Seventy percent of the membership interests of the Members, represented
in person or by proxy, shall be requisite to and shall constitute a quorum at
each meeting of Members for the transaction of business, except as otherwise
provided by the Act. With respect to any matter, the vote of the Required
Members shall be required to constitute the act of the Members except as
otherwise required under the terms of this Agreement. The Members represented in
person or by proxy at a meeting of Members at which a quorum is not present may
adjourn the meeting until such time and to such place as may be determined by a
vote of the Required Members represented in person or by proxy at that meeting.
At any such adjourned meeting at which a quorum shall be present or represented,
any business may be transacted that might have been transacted at the meeting as
originally convened.
SECTION 3.5 VOTING BY MEMBERS
A Member shall be entitled to a number of votes equal to the product of
such Member's membership interest (expressed as a percentage of 1.0) multiplied
times 100, on each matter
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submitted to a vote at a meeting of Members or otherwise. For example, a 33.33%
membership interest is entitled to 33.33 votes. At any meeting of the Members,
every Member having the right to vote shall be entitled to vote either in person
or by proxy executed in writing by such Member. A telegram, telex, cablegram or
similar transmission by the Member, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the Member, shall be treated as an
execution in writing for purposes of this Section 3.5. No proxy shall be valid
after eleven months from the date of its execution unless otherwise provided in
the proxy. Each proxy shall be revocable unless the proxy form conspicuously
states that the proxy is irrevocable and the proxy is coupled with an interest.
Each proxy shall be delivered to the Manager prior to or at the time of the
meeting.
SECTION 3.6 ACTION WITHOUT A MEETING; TELEPHONE MEETINGS
Any action required by the Act to be taken at any annual or special
meeting of Members, or any action which may be taken at any annual or special
meeting of Members, may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by all of the Members. A telegram, telex, cablegram or
similar transmission by a Member, or a photographic, photostatic, facsimile or
similar reproduction of a writing signed by a Member, shall be regarded as
signed by the Member for purposes of this Section 3.6. Subject to the provisions
of applicable law and this Agreement regarding notice of meetings, Members may
participate in and hold a meeting by using conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a telephone meeting pursuant
to this Section 3.6 shall constitute presence in person at such meeting, except
when a person participates in the meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting was not
lawfully called or convened.
ARTICLE IV
MANAGEMENT
SECTION 4.1 MANAGEMENT
The day to day business and affairs of the Company shall be managed,
subject to the terms and conditions set forth herein, by Xxxxx Xxxxxxxxx (the
"MANAGER"); provided that the Manager shall have no authority, without the prior
approval of the Required Members to make the following major decisions (each
being a "MAJOR DECISION"):
(a) amendment of the Certificate of Formation of the Company;
(b) amendment of this Agreement;
(c) amendment of the Annual Work Plan and Budget of the Company to
be submitted for the Members' approval;
(d) approval of a transfer of a Members interest or admission of a
Member;
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(e) agreement to continue the business of the Company after an
event of dissolution specified in Section VIII;
(f) creation, incurrence, assumption, or guarantee of any
indebtedness for money borrowed, or an increase of the amount
of any indebtedness outstanding under any loan agreement,
mortgage, or other borrowing arrangement, in either case in
excess of the amounts approved in the Annual Work Plan and
Budget;
(g) assigning, transferring, pledging, compromising or releasing
of any of the claims of or debts due the Company except upon
payment in full, or arbitrating or consenting to the
arbitration of any of the disputes or controversies of the
Company;
(h) any action which would cause the Company to become a surety,
guarantor or accommodation party to any obligation;
(i) any action which would cause the Company to grant a security
interest to any third party in any of the Company's assets;
(j) making, executing, or delivering any assignment for the
benefit of creditors or taking any action on behalf of the
Company with respect to any bankruptcy decisions, including,
without limitation, initiating any bankruptcy or insolvency
proceedings, or liquidating, dissolving or winding up the
Company;
(k) acquiring or agreeing to acquire any equity interest in any
entity or any of such entity's assets or approval of a merger,
consolidation or other reorganization of the Company;
(l) making of, or entry into, any obligation on behalf of the
Company for a commitment, or making of any capital
expenditure, in excess of the amounts approved in the Annual
Work Plan and Budget;
(m) lending funds belonging to the Company to any Member or any
third party or extend to any person, firm or corporation,
credit on behalf of the Company, except for the extension of
credit in the ordinary course of the Company's business to
trade debtors in excess of the amounts approved in the Annual
Work Plan and Budget;
(n) making, execution or delivery of any contract or other
transaction with the officers of the Company or other related
party of the Company, including compensation of management;
(o) authorizing or approving a fundamental change in the business
of the Company, including a sale of all or substantially all
of its assets;
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(p) approving any other matter in which the approval of the
Members is expressly required by this Agreement or by the Act;
or
(q) entering into an agreement to do or effect any of the
foregoing.
SECTION 4.2 LIABILITY: INDEMNIFICATION OF THE MANAGER
The Company shall indemnify, defend and hold harmless each Member, each
of their officers, directors, employee and agents, the Manager and each of its
officers, directors, employees and agents and such other officers appointed by
the Manager, and any other Person acting as an agent of the Company to whom the
Manager shall specifically and in writing have conferred rights hereunder (each,
an "INDEMNIFIED PERSON"), against any loss, expense, damage, claim, liability,
obligation, judgment or injury suffered or sustained by such Indemnified Person
by reason of any act, omission or alleged act or omission by such Indemnified
Person, arising out of such Indemnified Person's activities on behalf of the
Company or in furtherance of the interests of the Company, including, without
limitation, any judgment, award, settlement, reasonable attorneys' fees and
other costs or expenses incurred in connection with the defense of any actual or
threatened actions, proceedings or claims, all costs of which shall be charged
to and paid by the Company as incurred; provided, however, that the acts,
omissions or alleged acts or omissions upon which such actual or threatened
actions, proceedings or claims are based were performed or omitted in good faith
and within the scope of such Person's authority hereunder, and were not
fraudulent, in bad faith or a result of wanton and willful misconduct or gross
negligence by such Indemnified Person.
SECTION 4.3 INTERESTED MANAGER AND OFFICERS
No transaction between the Company and one or more of its Members, the
Manager or officers, or between the Company and any other business entity in
which one or more of its Members, the Manager or officers have an interest shall
be void or voidable solely for this reason, or solely because the Manager or
officer is present at or participates in the meeting of the Manager which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if (a) the material facts as to the transaction are
disclosed or are known to the Members entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by vote of the
disinterested Members; and (b) the transaction is fair as to the Company as of
the time it is authorized, approved or ratified by the Manager or the Members.
SECTION 4.4 MANAGER'S COMPENSATION AND REIMBURSEMENT
The compensation, if any, of the Manager shall be fixed from time to
time by the Required Members. The reimbursement, if any, of the Manager for
reasonable expenses incurred in managing the Company may be allowed from time to
time by the Manager.
SECTION 4.5 TIME DEVOTED TO COMPANY
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The Manager shall devote such time to Company business as the Manager
deems necessary to manage and supervise Company business and affairs in an
efficient manner; but nothing in this Agreement shall preclude the employment of
any agent, third party or affiliate to manage or provide other services with
respect to the Company's assets or business as the Members shall determine.
SECTION 4.6 RECORDS AND REPORTS.
The Manager, at the expense of the Company, shall keep or cause to be
kept adequate books of account and records (which books and records are to be
the property of the Company), setting forth a true and accurate account of the
business and affairs of the Company. The books of account of the Company will be
kept on the accrual basis method of accounting for financial accounting
reporting and federal income tax purposes and maintained in accordance with
GAAP. Such books and records are to be kept at the principal place of business
of the Company and are to include:
(a) Information regarding the status of the business and
financial condition of the Company.
(b) A copy of the Company's federal, state and local income
tax returns for each year.
(c) A current list of the name and last known business,
residence or mailing address of each Member and its Members interests.
(d) A copy of this Agreement and the Certificate of Formation
and all amendments to both.
(e) Information regarding the amount of cash and a description
and statement of the agreed value of any other property or services contributed
by each Member and which each Member has agreed to contribute in the future, and
the date on which each became a Member.
SECTION 4.7 FISCAL YEAR
The fiscal year of the Company will be the calendar year for financial
reporting and federal income tax purposes.
SECTION 4.8 REPORTS
Unless other determined by the Required Members, the Manager shall
cause to be prepared and delivered to the Members:
(a) Within 30 days after the end of each quarterly period of
each fiscal year of the Company, an operating report for such quarterly period;
(b) Within 30 days after the end of each of the first three
quarterly periods of each fiscal year of the Company, an unaudited balance sheet
and related unaudited statement of
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income and retained earnings (or changes in Member capital) and of cash flow for
such quarterly period and for the portion of the fiscal year through the end of
such fiscal quarter, setting forth in each case in comparative form the figures
for the previous period;
(c) Within 60 days after the end of each fiscal year of the
Company, a regular annual audit of the Company's financial records by the
Company's independent auditors, including an audited balance sheet of the
Company as of the end of such fiscal year and a related audited statement of
income, retained earnings (or changes in member capital) and of cash flow (and
capital proceeds, if any) for such fiscal year, putting forth in each case in
comparative form the figures for the previous fiscal year; and
(d) At such time or times requested, such other or additional
reports as may be reasonably requested by a Member.
SECTION 4.9 REQUIRED FILINGS
The Manager shall cause the Company to file, at the Company's
expense, on or before the dates the same may be due, giving effect to extensions
obtained, all reports, returns and applications which may be required under the
Act or any other governmental or quasi-governmental body having jurisdiction.
The Manager shall furnish copies of all such reports, returns and applications
to the Members, such furnishing to occur not less than three business days prior
to filing except in the case of reports that are routine and non-substantive.
All reports, returns and applications which may be required by any taxing
authority will be handled by the Manager, pursuant to the provisions of Section
6.2. Copies of all accounts, reports and other filings pertaining to the Company
furnished by a Member or the Company to any regulatory authority are to be
available to all Members upon request. Copies of all reports and notices
pertaining to the Company furnished by the accountants for the Company are to
also be available to all Members upon request.
SECTION 4.10 INSPECTION OF RECORDS
The books and records of the Company will be open to
inspection, examination and audit and available for copying by each Member at
all reasonable times with reasonable prior notice. Any Member exercising its
right to inspect, examine, audit or copy all or any portion of such books and
records will bear all direct out-of-pocket expenses incurred by both that Member
and the Company in connection with the same.
SECTION 4.11 ANNUAL BUDGET
By not later than October 31 of each year, the Manager will
prepare and present to the Members an Annual Workplan and Budget for the
succeeding fiscal year for the Member's review and unanimous approval. If such
Annual Workplan and Budget is not approved, the Annual Workplan and Budget then
in effect shall continue in effect, adjusted by the percentage change in the
Consumer Price Index from the previous year, until a new Annual Workplan and
Budget is approved.
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SECTION 4.12 LIABILITY OF MANAGER
The Manager shall not be liable for the debts, liabilities, contracts
or other obligations of the Company; provided, however, that the Manager shall
be liable for any debts, liabilities, contracts or other obligations of the
Company incurred or agreed to by such Manager without authorization and in
violation of Section 4.1 of this Agreement.
SECTION 4.13 DISTRIBUTION AND OPERATING AGREEMENT
Contemporaneously with the execution and delivery of this Agreement,
the Company shall execute and deliver the Distribution and Operating Agreement
(the "OPERATING Agreement") with ATM in the form set forth in Exhibit A hereto.
The Company shall not exercise any right to terminate the Operating Agreement,
under the terms thereof or otherwise, without written approval of the Required
Members.
SECTION 4.14 OTHER AGREEMENTS.
Contemporaneously with the execution and delivery of this
Agreement, the Company shall execute and deliver the Consulting Agreement with
LWI or its designee, substantially in the form of Exhibit B hereto. The parties
hereto acknowledge and agree to the terms and conditions of the agreement
between the Company and PZL set forth as Exhibit C hereto as modified by the
letter agreement between the Company and PZL also set forth in Exhibit C hereto.
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ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS
The Manager may designate one or more individuals (who may or may not
be the Manager) to serve as officers of the Company. The Company shall have such
officers as the Manager may from time to time determine, which officers may (but
need not) include a Chairman, a President, one or more Vice Presidents (and in
case of each such Vice President, with such descriptive title, if any, as the
Manager shall deem appropriate), a Secretary, an Assistant Secretary and a
Treasurer. Any two or more offices may be held by the same person.
SECTION 5.2 COMPENSATION
The compensation, if any, of all officers of the Company shall be fixed
from time to time by the Required Members.
SECTION 5.3 TERM OF OFFICE; REMOVAL; FILLING OF VACANCIES
Each officer of the Company shall hold office until his successor is
chosen and qualified in his stead or until his earlier death, resignation,
retirement disqualification or removal from office. Any officer designated by
the Manager may be removed at any time by the Manager whenever in his judgment
the best interests of the Company will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Designation of an officer shall not of itself create contract rights.
If the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Manager.
SECTION 5.4 CHAIRMAN
The Chairman, if one is designated by the Manager, shall preside at
meetings of the Manager and the Members. He shall assist the Manager in the
formulation of policies of the Company, and shall be available to other officers
for consultation and advice.
SECTION 5.5 PRESIDENT
The President, if one is designated by the Manager, shall be the chief
executive officer of the Company and shall have general supervision of the
affairs of the Company.
SECTION 5.6 VICE PRESIDENTS
Each Vice President that is designated by the Manager shall generally
assist the President and shall have such powers and perform such duties and
services as shall from time to time be prescribed or delegated to him by the
President or the Manager.
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SECTION 5.7 SECRETARY
The Secretary, if one is designated by the Manager, shall keep and
account for the records of the Company.
SECTION 5.8 ASSISTANT SECRETARY
The Assistant Secretary, if one is designated by the Manager, shall
generally assist the Secretary.
SECTION 5.9 TREASURER
The Treasurer, if one is designated by the Manager, shall be the chief
accounting and financial officer of the Company and shall have active control of
and shall be responsible for all matters pertaining to the accounts and finances
of the Company.
SECTION 5.10 ADDITIONAL POWERS AND DUTIES
In addition to the foregoing especially enumerated duties, services and
powers, the several officers of the Company shall perform such other duties and
services and exercise such further powers as may be provided by statute, the
Certificate of Formation or this Agreement, or as the Manager may from time to
time determine or as may be assigned to them by any competent superior officer.
In addition to the designation of officers and the enumeration of their
respective duties, services and powers, the Manager may xxxxx xxxxxx of
attorneys to individuals to act as agent for or on behalf of the Company, to do
any act which would be binding on the Company, to incur any expenditures on
behalf of or for the Company, or to execute, deliver and perform any agreements,
acts, transactions or other matters on behalf of the Company. Such powers of
attorney may be revoked or modified as deemed necessary by the Manager.
ARTICLE VI
ACCOUNTING AND TAX MATTERS; REPORTS; BANKING
SECTION 6.1 BOOKS AND RECORDS; CAPITAL ACCOUNTS
An individual capital account shall be established and maintained by
the Company for each Member in accordance with the applicable provisions of the
Code and the Treasury Regulations, including ? 1.704-1(b)(2)(iv). The Manager,
after notice to the Members, is authorized to modify the manner in which the
capital accounts are maintained if the Manager determines that such modification
(a) is required or prudent to comply with the Treasury Regulations and (b) is
not likely to have a material effect on the amounts distributable to any Member
upon the dissolution of the Company.
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SECTION 6.2 RETURNS TAX
The Manager shall prepare or cause to be prepared and timely file all
federal, state and local income and other tax returns and reports as may be
required as a result of the business of the Company.
SECTION 6.3 TAX MATTERS PERSON
HK shall be the initial tax matters person ("TMP") under Section 6231
of the Code. A TMP may be removed, and a successor TMP be selected, by the vote
of the Required Members. The TMP shall not take any actions (including without
limitation extending the statute of limitations, filing a request for
administrative adjustment filing suit concerning any Company tax matter, or
entering into a settlement agreement relating to any Company tax matter), or
execute or file any statements or forms, on behalf of the Company unless and
until the TMP is authorized to do so by the vote of the Required Members.
SECTION 6.4 TAX ELECTIONS
The Manager shall make or cause to be made such accounting and tax
elections as directed by the vote of the Required Members.
SECTION 6.5 BANK ACCOUNTS; INVESTMENT OF COMPANY FUNDS
The Manager shall cause one or more accounts to be maintained in the
name of the Company in one or more banks, which accounts shall be used for the
payment of expenditures incurred in connection with the business of the Company
and in which shall be deposited any and all receipts of the Company. All such
accounts shall be and remain the property of the Company and shall be received,
held and disbursed for the purposes specified in this Agreement. There shall not
be deposited in any of such accounts any funds other than funds belonging to the
Company, and no other funds shall in any way be commingled with such funds. The
Manager may invest the Company funds in accordance with written investment
guidelines established from time to time by the Manager approved by the Required
Members. Pursuant to the Operating Agreement, ATM will control such accounts of
the Company as ATM determines are necessary to manage the transactions
contemplated by the Operating Agreement.
ARTICLE VII
TRANSFER OF COMPANY INTERESTS, WITHDRAWAL OF MEMBERS, BUY/SELL PROVISIONS
SECTION 7.1 ASSIGNMENT AND TRANSFER
A. No membership interest or other interest of a Member in the Company
may be transferred or assigned (including any collateral assignment or pledge of
any interest in the
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Company), in whole or in part, by such Member, and no transferee or assignee
thereof may be admitted as a substituted Member of the Company, unless and
until, in each instance:
1. A duly executed and acknowledged instrument of assignment,
setting forth the intention of the assignor that the assignee
become a substituted Member in its place, is delivered to the
remaining Members,
2. The assignor and assignee execute and acknowledge such other
instruments (if any) as the remaining Members reasonably may
deem necessary or desirable to effect such admission, which
shall include the written acceptance and adoption by the
assignee of the provisions of this Agreement and may include
the assumption of any unperformed obligation of the assignor
provided that such assignor shall not thereby be released from
any of its unperformed obligations that arose on or prior to
the date of the assignment, specifically including, without
limitation, its obligations hereunder to make Capital
Contributions required prior to the date of the assignment on
the terms herein provided;
3. The written consent of the other Members of the Company, which
consent may not be unreasonably withheld, shall have been
obtained;
4. Such interest shall first be offered to the remaining Members
for a period of thirty (30) days at a price (the "OFFER
PURCHASE PRICE") equal to that intended to be offered by the
selling Member to third parties. If any of the remaining
Members elects to exercise the right of first offer granted
hereby, it must make an offer on the entire interest intended
to be offered by the selling Member. If the selling Member has
not received a written offer from the remaining Members on
terms satisfactory to it within such thirty (30) day period,
it shall then be free, subject to the provisions of this
Article VII, to sell the interest offered to the remaining
Members on the terms of the offer. If the selling Member fails
to so dispose of its interest within one hundred eighty (180)
days from its right to do so, the first offer procedure
established by this Section 7.1 shall be reinstated. In the
event a Member elects to exercise the right of first offer
granted hereby, the price shall be payable in the manner and
on the terms of the third party offer;
B. Notwithstanding anything to the contrary contained in this Article
VII, any party may from time to time transfer its interest in the Company, or
any part thereof, to an Affiliate or from such Affiliate back to such party
without the consent of any other Member that might otherwise be required;
provided, however, that no such transferee shall be admitted as substitute
Member in the Company unless and until such party complies with the notice and
documentation requirements of Section 7.1 A (1,2,3). Notwithstanding any such
transfer, the transferring party shall remain obligated for all of its
obligations hereunder arising both before and after such transfer, and shall, as
a condition of the transfer, expressly confirm its obligations to the remaining
Members at the time of the transfer.
SECTION 7.2 EXPENSES
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Expenses of the Company or of any non-transferring Member occasioned by
transfers of interests held by Members shall be reimbursed to the Company or
such Member, as the case may be, by the transferring Member. Expenses of the
transferring Member and taxes incurred by any non-transferring Member are not
included within the foregoing reimbursement.
SECTION 7.3 WITHDRAWAL OF MEMBERS
No Member may voluntarily withdraw or retire from the Company except
upon the assignment of its entire interest in the Company (if and as permitted
by this Article VII) or upon the surrender, abandonment or other voiding of its
interest pursuant to the next succeeding sentence hereof. Any Member may, by at
least thirty (30) days prior written notice delivered to the remaining Member,
renounce its interest in all current and future profits, losses and
distributions of the Company, and abandon to the Company its capital
contributions; provided, however, that any such surrender, abandonment or other
voiding shall not in any case affect the withdrawing Members obligations
hereunder, including specifically, but without limitation, each Members
respective obligations under Article III hereof to continue to make Additional
Capital Contributions or Members' Loans as and to the extent called for or
otherwise required thereunder.
SECTION 7.4 DEATH, LEGAL INCAPACITY, DISSOLUTION OR BANKRUPTCY OF A MEMBER
Upon the death, legal incapacity, dissolution or bankruptcy of a
Member, subject to the terms, conditions and rights provided for under Section
VI I hereof, its successor or assign will have all the rights of the Member for
the purpose of settling or managing its estate, and such power as the deceased,
incapacitated, dissolved or bankrupt Member possessed to constitute a successor
as an assignee of its interest in the Company and to join with such assignee in
making application to substitute such assignee as a substituted member.
SECTION 7.5 STATUS OF INTERESTS TRANSFERRED
In any transfer, assignment or conveyance (or retransfer, reassignment
or reconveyance) of any Participation Percentage herein by a Member to the other
Member or other Person in a manner specifically permitted by the express terms
of this Agreement or by operation of law, the transferee or assignee shall
succeed to the same share of profits and losses of the Company and the same
Participation Percentages, distribution priorities and ownership rights as were
incident to the interest so transferred, assigned or conveyed.
ARTICLE VIII
DISSOLUTION AND TERMINATION
SECTION 8.1 DISSOLUTION
A. The Company will be dissolved:
Page 17 of 28
1. upon the withdrawal, removal, bankruptcy or dissolution of a
Member, as provided herein or otherwise by the Act, unless the
remaining Member(s) unanimously agree to continue the business
of the Company (if more than one Member remains) within ninety
(90) days after the occurrence of such event or if otherwise
agreed to by the Members;
2. provided however, that the Company shall not terminate until
its affairs have been wound up and its assets distributed as
provided herein or as otherwise provided herein.
B. As used in Section VIII hereof, the term bankruptcy shall mean (i)
the commencement of a Member of a voluntary case under any Chapter of the
Bankruptcy Code (Title 11 of the United States Code), as now or hereafter in
effect, or the taking by a Member of any equivalent or similar action by the
filing of a petition or otherwise under any other federal or state law in effect
at the time relating to bankruptcy or insolvency, (ii) the filing of a petition
against a Member under any Chapter of the Bankruptcy Code (Title 11 of the
United States Code), as now or hereafter in effect, or the filing of a petition
seeking any equivalent or similar relief against a Member under any other
federal or state law in effect as of the time relating to bankruptcy or
insolvency, and in either case the failure by such Member to secure the
discharge of any other such petition within sixty (60) consecutive days from the
date of filing, (iii) the making by a Member of a general assignment for the
benefit of his, its or any of their creditors, (iv) the appointment of a
receiver, trustee, custodian or similar officer for a Member or for the property
of a Member and the failure by such Member to secure the discharge of such
receiver, trustee, custodian or similar officer within sixty (60) consecutive
days from the date of appointment, or (v) the admission in writing by a Member
of any inability to pay debts generally as they become due.
SECTION 8.2 APPOINTMENT OF LIQUIDATING MEMBER
Upon the dissolution of the Company, if the Company's business is not
continued pursuant to this Section VIII, subject in any event top the rights of
any Member under Section VII hereof, the Manager or its designee shall liquidate
the assets and wind up the affairs of the Company on the terms hereinafter set
forth.
SECTION 8.3 DISTRIBUTIONS AND OTHER MATTERS
Promptly upon the dissolution of the Company, if the Company's business
is not continued pursuant to Section VII hereof, and in any event subject to the
rights of any Member under Section VII hereof, the Manager will cause the assets
of the Company to be liquidated. After proper adjustment to the Capital Accounts
pursuant to Section III (giving effect to all contributions, distributions, and
allocations for all taxable years, including the taxable year during which such
liquidation occurs), the proceeds of the liquidation of the Company shall be
applied and distributed in the following order: (i) to the discharge of all of
the Company's debts and liabilities (whether by payment or the making of
reasonable provision for payment thereto, other than those to any of the
Members, including expenses of liquidation, (ii) to the setting up of any
reserves which the liquidator may deem reasonably necessary for any contingent
liabilities or
Page 18 of 28
obligations of the Company, (iii) to the payment and discharge of any debts and
liabilities of the Company to any of the Members, and (iv) to the Members to the
extent of their positive Capital Accounts.
SECTION 8.4 DISTRIBUTIONS OF PROPERTY
A. Upon liquidation, the Members may demand or receive property other
than cash in return for their respective contributions, loans or advances or
upon dissolution as provided herein, but only upon the written approval of the
Manager.
B. In the event that property is distributed (or deemed distributed
pursuant to the provisions of Code Section 708) by the Company to a Member, the
following special rules shall apply:
1. the Capital Accounts of the Members shall be adjusted as
provided in Treasury Regulations Section 1.704-1(b)(2)(iv)(e)
to reflect the manner in which the unrealized income, gain,
loss and deduction inherent in such property (that has not
already been reflected in the Members' Capital Accounts) would
be allocated to such Member if there were a taxable
disposition of such property for its fair market value on the
date of distribution; and
2. the Capital Account of the Member who is receiving the
distribution of property from the Company shall be charged
with the fair market value of the property at the time of
distribution (net of liabilities secured by such distributed
property that such Member is considered to assume or take
subject to under Code section 752).
SECTION 8.5 ACTION DURING LIQUIDATION: STATEMENTS OF ACCOUNT
A. A reasonable time shall be allowed for the winding up of the affairs
of the Company in order to minimize any losses otherwise attendant upon such a
winding up. The Manager shall make final distributions in liquidation of the
Company in the manner set forth above before the later of (1) the end of the
taxable year in which the date of the liquidation of the Company occurs, or (ii)
90 days after the date of the liquidation of the Company. For this purpose, the
date of the liquidation of the company shall be the date on which the Company
has ceased to be a going concern (within the meaning of Treasury Regulation
Section 1.704-1 (b)(2)(ii)(g).
B. During the period of liquidation, the Manager, as trustee for the
benefit of all Members as tenants in common, will take any and all action
necessary or appropriate to complete such liquidation and distribution as
provided in this Article, having for such purpose all of the powers enumerated
in Article IV of this Agreement necessary or appropriate to accomplish the same.
C. The Manager will prepare or cause to be prepared a final statement
of the accounts of the Company as of the date of termination, and, as promptly
as possible thereafter, a copy thereof will be furnished to each Member. Such
statement will set forth the actual or
Page 19 of 28
contemplated application and distribution of the assets of the Company. Upon
completion of distribution as required hereby, a further statement for the
period of liquidation will be so prepared by the Manager and furnished to each
Member.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 9.1 REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants to each other party, and its
successors and assigns as follows:
1. This Agreement has been duly and validly executed and delivered by it
and constitutes its legal, valid and binding obligation, enforceable in
accordance with the terms hereof, and no authorization, consent,
approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing with, any
governmental body or agency is or will be necessary or advisable in
connection with the execution and delivery by it of this Agreement.
2. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor the
performance of or compliance with the terms and conditions hereof, will
conflict with or result in a breach of or default under any agreement
or instrument to which it is a party or by which it or its properties
(now owned or hereafter acquired) may be subject or bound.
3. There is no pending or (to their knowledge after due inquiry)
threatened proceeding by or before any court or governmental agency
against or affecting it or any of its stockholders or partners (if
applicable) which, if adversely decided, would have an adverse affect
on the business, operations or conditions, financial or otherwise, of
the Company, or on the ability of it to perform its obligations
hereunder or otherwise contemplated hereby, and no proceeding is
pending or threatened against it under any Federal or State bankruptcy
or insolvency law.
4. It has and expects to continue to have the authority and resources to
fully consummate in a timely fashion the transactions contemplated by
this Agreement and the other documents, instruments and agreements to
be executed by and between it and the Company concurrent with the
execution and delivery of this Agreement.
5. None of the information and documents furnished by it or its
representatives to the Company or any other Member of the Company in
connection with the execution and delivery of this Agreement is false
or misleading in any material respect or contains any material
misstatement of fact or omits to state a material fact required to be
stated to make the statements therein not misleading. It has disclosed
to the Company and each of the other Members of the Company all
information known to it which is material and
Page 20 of 28
relevant to the execution and delivery of this Agreement and the
formation of the Company as contemplated hereby.
ARTICLE X
NON-COMPETITION
SECTION 10.1 NON-COMPETITION
Notwithstanding any provision of this Agreement to the contrary, no
Member shall be prohibited or otherwise limited by its membership in the
Company, or participation in the transactions contemplated hereby, from
competing, or participating in any entity that may compete, with, directly or
indirectly, the business of the Company; provided, however, that no Member will
compete for the Company's business with the China Product TradeNet Center or its
successors.
ARTICLE XI
AMENDMENTS
SECTION 11.1 AMENDMENTS
The power to adopt, alter, amend or repeal this Agreement is vested
solely in the Members. This Agreement may be altered, amended or repealed, or a
new limited liability company agreement may be adopted, only by the unanimous
vote or consent of the Members. The Manager may not adopt, alter, amend or
repeal any provision of this Agreement.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 MANNER OF GIVING NOTICE
Except as otherwise expressly provided in this Agreement, all notices,
demands, requests, or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be given either (a) in
person upon an executive officer, (b) by mail, certified or registered, return
receipt requested, postage prepaid, (c) by prepaid telegram, telex, cable,
telecopy, or similar means (with signed confirmed copy to follow by mail in the
same manner as prescribed by clause (b) above) or (d) by expedited delivery
service (charges prepaid) with proof of delivery. For purposes of the foregoing,
any notice required or permitted to be given shall be deemed to be delivered and
given on the date actually delivered to the address specified in this
Article II.
SECTION 12.2 WAIVER OF NOTICE
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Whenever any notice is required to be given to any Member or the
Manager of the Company under the provisions of the Act, the Certificate of
Organization or this Agreement, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
SECTION 12.3 NO COMPANY SEAL
The Company shall not have a Company seal, and no agreement, instrument
or other document executed on behalf of the Company that would otherwise be
valid and binding on the Company shall be invalid or not binding on the Company
solely because no Company seal is affixed thereto.
SECTION 12.4 PUBLIC ANNOUNCEMENTS.
Except as otherwise required by law, each Member shall consult with the
other Members prior to issuing any public announcement, statement or other
disclosure with respect to the Company, such Member's participation therein and
the transactions contemplated by this Agreement and shall not issue any such
announcement, statement or disclosure without the consent of the Required
Members.
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IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the day and year first above written.
WORLDWIDE WEB NETWORX CORPORATION
BY: //s// Xxxxxx Xxxxxxxxx
-------------------------------
TITLE: Chairman
----------------------------
INTERNATIONAL COMMERCE EXCHANGE SYSTEMS, INC.
BY: //s// Xxxxx Xxxxxxxxx
-------------------------------
TITLE: Chairman
----------------------------
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XXXXXX XXXXX INTERNATIONAL INVESTMENT, LTD.
BY: //s// Xxxxxx X. Xxxxx
-------------------------------
TITLE: Pres
----------------------------
//s// Xxxxx Xxxxxxxxx
----------------------------------
XXXXX XXXXXXXXX
//S// Xxxxx Xx Zhenxiang
----------------------------------
XXXXX XXXXXXXXX XX
UNCAS HOLDINGS LIMITED PARTNERSHIP
BY: //S// XXXXX X. XXXXXX
-------------------------------
TITLE: //S// GENERAL PARTNER
----------------------------
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