THIRD AMENDED AND RESTATED OPERATING AGREEMENT OF NEDAK ETHANOL, LLC Effective March 4, 2009
THIRD
AMENDED AND RESTATED
OF
Effective
March 4, 2009
THIRD
AMENDED AND RESTATED
OF
TABLE
OF CONTENTS
Page
ARTICLE
I. THE COMPANY
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1
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1.1
Formation
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1
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1.2
Name
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1
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1.3
Purpose; Powers
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1
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1.4
Principal Place of Business
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1
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1.5
Term
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2
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1.6
Registered Agent
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2
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1.7
Title to Property
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2
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1.8
Payment of Individual Obligations
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2
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1.9
Independent Activities; Transactions With Affiliates
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2
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1.10
Definitions
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3
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ARTICLE
II. CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
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10
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2.1
Initial Capital Contributions
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10
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2.2
Additional Capital Contributions; Additional Units
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10
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2.3
Capital Accounts
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10
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ARTICLE
III. ALLOCATIONS
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11
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3.1
Profits
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11
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3.2
Losses
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11
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3.3
Special Allocations
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12
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3.4
Regulatory Allocations
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14
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3.5
Loss Limitation
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14
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3.6
Other Allocation Rules
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14
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3.7 Tax
Allocations: Code Section 704(c)
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15
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3.8 Tax
Credit Allocations
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15
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ARTICLE
IV. DISTRIBUTIONS
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15
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4.1 Net
Cash Flow
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15
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4.2
Amounts Withheld
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16
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4.3
Limitations on Distributions
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16
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ARTICLE
V. MANAGEMENT
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16
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5.1
Directors
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16
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5.2
Number of Directors
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17
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5.3
Election of Directors
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17
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5.4
Authority of Directors
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18
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5.5
Director as Agent
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19
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i
5.6
Restriction on Authority of Directors
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19
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5.7
Meetings
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20
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5.8
Notice
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20
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5.9
Conduct of Meeting
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21
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5.10
Quorum
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21
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5.11
Manner of Acting; Informal Action
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21
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5.12
Presumption of Assent
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21
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5.13
Removal of Directors
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21
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5.14
Vacancies
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21
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5.15
Compensation
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21
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5.16
Committees; Authority
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22
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5.17
Voting; Potential Financial Interest
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22
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5.18
Duties and Obligations of Directors
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22
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5.19
Chairman and Vice Chairman
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22
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5.20
President and General Manager
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23
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5.21
Chief Financial Officer
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23
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5.22
Secretary; Assistant Secretary
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23
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5.23
Vice President
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23
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5.24
Delegation
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23
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5.25
Execution of Instruments
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23
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5.26
Limitation of Liability; Indemnification
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24
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ARTICLE
VI. MEMBERSHIP UNITS; MEMBERS
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24
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6.1
Membership Units
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24
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6.2
Certificates; Surrender for Transfer
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25
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6.3
Members
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25
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6.4
Additional Members
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25
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6.5
Members’ Voting Rights
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25
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6.6
Member Meetings
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26
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6.7
Place of Meeting
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26
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6.8
Conduct of Meetings
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26
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6.9
Notice
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26
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6.10
Contents of Notice
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26
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6.11
Adjourned Meetings
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27
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6.12
Waiver of Notice
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27
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6.13
Fixing of Record Date
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27
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6.14
Quorum and Proxies
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27
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6.15
Voting; Action by Members
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28
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6.16
Continuation of the Company
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28
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6.17
Redemption of Class A Preferred Units
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28
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6.18 No
Other Member Right of Redemption or Return of Capital
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30
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6.19
Waiver of Dissenters Rights
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30
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6.20
Loans
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30
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6.21
Actions Without a Meeting by Members
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30
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ARTICLE
VII. ACCOUNTING, BOOKS AND RECORDS
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30
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7.1
Accounting, Books and Records
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30
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ii
7.2
Delivery to Members and Inspection
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31
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7.3
Reports
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31
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7.4 Tax
Matters
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31
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7.5
Withholding
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32
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ARTICLE
VIII. AMENDMENTS
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32
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8.1
Amendments
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32
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ARTICLE
IX. TRANSFERS
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33
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9.1
General Restrictions
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33
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9.2 Not
Binding Until Entered in Company Books
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33
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9.3
Pledge of Units Allowed
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33
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9.4
Prohibited Transfers
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33
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9.5
Indemnification
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33
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9.6 Transferee
Subject to Transfer Restrictions
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33
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9.7
Unit Transfer Policy
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33
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9.8 No
Dissolution or Termination
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34
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9.9
Rights of Unadmitted Assignees
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34
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9.10
Admission of Substitute Members
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34
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ARTICLE
X. DISSOLUTION AND WINDING UP
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35
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10.1
Dissolution
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35
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10.2
Winding Up
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35
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10.3
Compliance with Certain Requirements of Regulations; Deficit Capital
Accounts
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36
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10.4
Deemed Distribution and Recontribution
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36
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10.5
Rights of Unit Holders
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36
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10.6
Allocations During Period of Liquidation
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37
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10.7
Character of Liquidating Distributions
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37
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10.8
The Liquidator
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37
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10.9
Forms of Liquidating Distributions
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37
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ARTICLE
XI. MISCELLANEOUS
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37
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11.1
Notices
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37
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11.2
Binding Effect
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38
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11.3
Construction
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38
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11.4
Headings
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38
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11.5
Severability
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38
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11.6
Incorporation By Reference
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38
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11.7
Variation of Terms
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38
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11.8
Governing Law
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38
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11.9
Waiver of Jury Trial
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38
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11.10
Counterpart Execution
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38
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11.11
Specific Performance
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38
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11.12
No Third Party Rights
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39
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iii
THIRD
AMENDED AND RESTATED
OF
THIS THIRD AMENDED AND RESTATED
OPERATING AGREEMENT (the “Agreement”) is entered into effective as of the
4th day of March, 2009, by NEDAK Ethanol, LLC, a Nebraska limited liability
company (the “Company”). Capitalized terms used but not otherwise
defined herein shall have the meaning set forth in Section 1.10.
WHEREAS,
the Members adopted an Operating Agreement on December 23, 2003, which was
subsequently amended and restated on December 15, 2005, further amended on April
16, 2006, and further amended on July 18, 2007 (the “Second Amended and Restated
Operating Agreement”); and
WHEREAS,
the Board desires to amend the Second Amended and Restated Operating Agreement
pursuant to Section 8.1 of the Second Amended and Restated Operating
Agreement.
NOW THEREFORE, in consideration of the
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE
I. THE COMPANY
1.1 Formation. The
Company was formed as a Nebraska limited liability company by filing Articles of
Organization with the Nebraska Secretary of State on December 15,
2003. This Agreement amends and replaces in its entirety the Amended
and Restated Operating Agreement.
1.2 Name. The
name of the Company is “NEDAK Ethanol, LLC,” and all business of the Company
shall be conducted in such name.
1.3 Purposes;
Powers. The nature of the business and purposes of the Company
are to: (i) own, construct, operate, lease, finance, contract with,
and/or invest in ethanol production and by-product production facilities; (ii)
process feedstock into ethanol and related by-products, and market such ethanol
and by-products; and (iii) engage in any other business and investment activity
in which a Nebraska limited liability company may lawfully be engaged, as
determined by the Board. The Company has the power to do any and all
acts necessary, appropriate, proper, advisable, incidental or convenient to, and
in furtherance of, the purposes of the Company as set forth in this Section
1.3.
1.4 Principal Place of
Business. The Company shall continuously maintain a principal
place of business in the State of Nebraska, at such location as the Board may
determine. Any documents required by the Act to be maintained by the
Company shall be maintained at the Company’s principal place of
business.
1
1.5 Term. The
term of the Company commenced on the date the Articles were filed with the
Nebraska Secretary of State, and shall continue until the winding up and
liquidation of the Company and its business is completed following a Dissolution
Event as provided in Article X of this Agreement.
1.6 Registered
Agent. The Company shall continuously maintain a registered
office and a registered agent for service of process in the State of Nebraska
and in any other state in which it is required by law to do so. The
name and address of the Company’s initial Registered Agent in Nebraska shall be
Xxxxxx Xxxxxxxxx at the Company’s principal place of business. Such
Registered Agent may be changed and designated by the Board from time to time by
resolution of the Board.
1.7 Title to
Property. All Property owned by the Company shall be owned by
the Company as an entity and not in the name of any Member, and no Member shall
have any ownership interest in such Property, except as a Member of the
Company. Each Member’s interest in the Company shall be personal
property for all purposes, as specified in the Act.
1.8 Payment of Individual
Obligations. The Company’s credit and assets shall be used
solely for the benefit of the Company, and no asset of the Company shall be
Transferred or encumbered for, or in payment of, any individual obligation of
any Member.
1.9 Independent Activities;
Transactions With Affiliates.
(a) The
Directors shall be required to devote such time to the business and affairs of
the Company as may be necessary to manage and operate the Company, and shall be
free to serve any other Person or enterprise in any capacity that they deem
appropriate in their discretion.
(b) Neither
this Agreement nor any activity undertaken pursuant hereto shall: (i)
prevent any Member or Director or their Affiliates from engaging in whatever
activities they choose, whether the same are competitive with the Company or
otherwise, and any such activities may be undertaken without having or incurring
any obligation to offer any interest in such activities to the Company or any
other Member; or (ii) require any Member or Director to permit the Company or
any other Director or Member or their Affiliates to participate in any such
activities. Except as expressly provided in this Section 1.9(b), as a
material part of the consideration for the execution of this Agreement by each
Member, each Member hereby waives, relinquishes and renounces any such right or
claim of participation.
(c) No
contract or transaction between the Company and one or more of its Members, or
between the Company and any other Person in which one or more of the Members is
a director, manager or officer, or in which such Member has a financial
interest, shall be void or voidable (i) solely because of such relationship,
(ii) solely because a Director appointed or elected by such Member is present
at, or participates in, the meeting of the Directors at which
2
such
contract or transaction is authorized, or (iii) solely because a Director
appointed or elected by such Member votes are counted for such authorization;
provided, however, the material facts as to the relationship are disclosed to
the Directors and a majority of the disinterested Directors authorize such
contract or transaction, regardless of whether the disinterested Directors
constitute a quorum.
1.10 Definitions. Capitalized
words and phrases used in this Agreement have the following
meanings:
(a) “Act”
means the Nebraska Limited Liability Company Act, as amended from time to time,
or any corresponding provisions of any succeeding law.
(b) “Adjusted
Capital Account” means the Capital Account balance of a Class A Unit Holder
attributable to such Class A Unit Holder’s Class A Preferred Unit increased by
such Class A Unit Holder’s share of Company Minimum Gain attributable to such
Class A Unit Holder’s Preferred Unit.
(c) “Adjusted
Capital Account Deficit” means, with respect to any Unit Holder, the deficit
balance, if any, in such Unit Holder’s Capital Account as of the end of the
relevant Fiscal Year, after giving effect to the following
adjustments: (i) crediting to such Capital Account any amounts which
such Unit Holder is deemed to be obligated to restore pursuant to the next to
the last sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations; and (ii) debiting to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6) of the Regulations. The foregoing definition
is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.
(d) “Adjusted Capital Contribution” means
the amount of Capital
Contributions listed on Exhibit A for each Class A Unit Holder attributable to
such Class A Unit Holder’s Class A Preferred Units minus (i) the Capital
Contributions attributable to such Class A Unit Holder’s Class A Preferred Units
redeemed pursuant to Section 6.17, and (ii) all distributions to such Class A
Unit Holder pursuant to Section 10.2(c).
(e) “Affiliate”
means, with respect to any Person or entity: (i) any Person directly
or indirectly controlling, controlled by or under common control with such
Person or entity; (ii) any officer, director, general partner, member or trustee
of any such Person or entity; or (iii) any Person or entity who is an officer,
director, general partner, member or trustee of any Person described in clauses
(i) or (ii) of this sentence. For purposes of this definition, the
terms “controlling,” “controlled by” or “under common control with” shall mean
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person or entity, whether through
the ownership of voting securities, by contract or otherwise, or the power to
elect a majority of the directors, managers, or persons exercising similar
authority with respect to such Person or entities.
(f) “Agreement”
means the Company’s Third Amended and Restated Operating Agreement dated March
4, 2009, as amended from time to time.
3
(g) “Articles”
means the Company’s Amended and Restated Articles of Organization on file with
the Nebraska Secretary of State’s Office, as amended from time to
time.
(h) “Assignee”
means a transferee of a Unit who is not admitted as a Substitute Member pursuant
to Section 9.10 of this Agreement.
(i) “Board”
means collectively the Directors of the Company then serving in
office.
(j) “Capital
Account” means the separate capital account maintained for each Unit Holder in
accordance with Section 2.3 of this Agreement.
(k) “Capital
Contributions” means, with respect to any Member, the amount of money (US
Dollars), and the initial Gross Asset Value of any assets or property other than
money, contributed by the Member or such Member’s predecessors in interest to
the Company, (net of liabilities secured by such contributed property that the
Company is considered to assume or take subject to under Code Section 752) with
respect to the Unit(s) held or purchased by such Member, including additional
Capital Contributions.
(l) “Class
A Unit Holder” means any holder of at least one Class A Preferred
Unit.
(m) “Class
A Preferred Unit” means Units designated as such on Exhibit A and having the
rights and privileges provided in this Agreement for such class.
(n) “Code”
means the United States Internal Revenue Code of 1986, as amended from time to
time.
(o) “Common
Unit” means the Units designated as such on Exhibit A and having the rights and
privileges provided in this Agreement for such class.
(p) “Company”
means NEDAK Ethanol, LLC, a Nebraska limited liability company.
(q) “Company
Minimum Gain” has the meaning given the term “partnership minimum gain” in
Sections 1.704-2(b)(2) and 1.704-2(d) of the Regulations.
(r) “Debt”
means: (i) any indebtedness for borrowed money or the deferred
purchase price of property as evidenced by notes, bonds or other instruments;
(ii) obligations as lessee under capital leases; (iii) obligations secured by
any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
existing on any asset owned or held by the Company, whether or not the Company
has assumed or become liable for the obligations secured thereby; (iv) any
obligation under any interest rate swap agreement or other derivative; (v)
accounts payable; and (vi) obligations, contingent or otherwise, under direct or
indirect guarantees of indebtedness or obligations of the kinds referred to in
clauses (i), (ii), (iii), (iv) and (v), above. Notwithstanding the
foregoing, however, Debt shall not include obligations in respect of any
accounts payable that are incurred in the ordinary course of the Company’s
business and are not delinquent or are being contested in good faith by
appropriate proceedings.
4
(s) “Depreciation”
means, for each Fiscal Year, an amount equal to the depreciation, amortization,
or other cost recovery deduction allowable with respect to an asset for such
Fiscal Year, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such Fiscal
Year, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such Fiscal Year bears to
such beginning adjusted tax basis; provided, however, that if the adjusted basis
for federal income tax purposes of an asset at the beginning of such Fiscal Year
is zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the Directors.
(t) “Director”
means any Person who: (i) is elected as a Director pursuant to
Article V of this Agreement or who has otherwise become a Director pursuant to
the terms of this Agreement; and (ii) has not ceased to be a Director pursuant
to the terms of this Agreement. “Directors” mean all such
Persons. For purposes of the Act, the Directors shall be deemed to be
the “managers” (as such term is defined and used in the Act) of the
Company.
(u) “Dissolution
Event” shall have the meaning set forth in Section 10.1 of this
Agreement.
(v) “Effective
Date” means July 18, 2007.
(w) “Facilities”
means the ethanol and by-product production facilities to be constructed and
operated by the Company in or around Atkinson, Nebraska and O’Neill, Nebraska,
and any other such facilities used by the Company.
(x)
“Fiscal Year” means: (i) any twelve-month period commencing on
January 1 and ending on December 31; and (ii) the period commencing on the
immediately preceding January 1 and ending on the date on which all Property is
distributed to the Unit Holders pursuant to Article X of this Agreement, or, if
the context requires, any portion of a Fiscal Year for which an allocation of
Profits or Losses or a distribution is to be made.
(y) “GAAP”
means generally accepted accounting principles in effect in the United States of
America from time to time.
(z) “Gross
Asset Value” means with respect to any asset, the asset’s adjusted basis for
federal income tax purposes, except as follows: (i) The initial Gross
Asset Value of any asset contributed by a Member to the Company shall be the
gross fair market value of such asset, as determined by the Directors; (ii) The
Gross Asset Values of all Company assets may, in the discretion of the
Directors, be adjusted to equal their respective gross fair market values
(taking Code Section 7701(g) into account), as determined by the Directors as of
the following times: (A) upon the acquisition of an additional interest in the
Company by any new or existing Member in exchange for more than a de minimis
Capital Contribution; (B) upon the distribution by the Company to a Member of
more than a de minimis amount of Company Property as consideration for an
interest in the Company; and (C) upon the liquidation of the Company within the
meaning of Regulations Section 1.704-1(b)(2)(ii)(g); (iii) The Gross Asset Value
of any item
of Company assets distributed to any Member shall be adjusted to equal the gross
fair market value (taking Code Section 7701(g) into account) of such asset on
the date of distribution as determined by the Directors; and (iv) The Gross
Asset Values of Company assets shall be increased or decreased, as applicable,
to reflect any adjustments to the adjusted basis of such assets pursuant to Code
Section 734(b) or Code Section 743(b), but only to the extent that such
adjustments are taken into account in determining Capital Accounts pursuant to
Regulations Section 1.704-1(b)(2)(iv)(m) and subparagraph (vi) of the definition
of “Profits” and “Losses” or Section 3.3(g) of this Agreement; provided,
however, that Gross Asset Values shall not be adjusted pursuant to this
subparagraph (iv) to the extent that an adjustment pursuant to subparagraph (ii)
is required in connection with a transaction that would otherwise result in an
adjustment pursuant to this subparagraph (iv). If the Gross Asset
Value of an asset has been determined or adjusted pursuant to subparagraph (i),
(ii), or (iv) of this paragraph, such Gross Asset Value shall thereafter be
adjusted by the Depreciation taken into account with respect to such asset, for
purposes of computing Profits and Losses.
5
(aa) “Initial
Redemption Notice” has the meaning set forth in Section 6.17(b) of this
Agreement.
(bb) “Issuance
Items” has the meaning set forth in Section 3.3(h) of this
Agreement.
(cc) “Lending
Agreement” shall mean any and all agreements pursuant to which a party has
loaned the Company money.
(dd) “Liquidation
Period” has the meaning set forth in Section 10.6 of this
Agreement.
(ee) “Liquidator”
has the meaning set forth in Section 10.8 of this Agreement.
(ff) “Mandatory
Redemption Notice” has the meaning set forth in Section 6.17(b) of this
Agreement.
(gg) “Mandatory
Units” has the meaning set forth in Section 6.17(b) of this
Agreement.
(hh) “Member”
means any Person: (i) whose name is set forth as such on Exhibit “A”
attached hereto or as it may be amended from time to time, or who has become a
Member pursuant to the terms of this Agreement; and (ii) who is the owner
of one or more Units and has not ceased to be a Member pursuant to the terms of
this Agreement. “Members” means all such Persons.
(ii) “Membership
Economic Interest” means collectively, a Member’s share of “Profits” and
“Losses,” the right to receive distributions of the Company’s assets, and the
right to information concerning the business and affairs of the Company as
required by the Act. The Membership Economic Interest of a Member is
quantified by the unit of measurement referred to herein as “Class A Preferred
Units” and “Common Units” and any other units the Company may properly authorize
and issue in accordance with this Agreement.
6
(jj) “Membership
Interest” means collectively, the Membership Economic Interest and the
Membership Voting Interest.
(kk) “Membership
Voting Interest” means collectively, a Member’s right to vote as set forth in
this Agreement or as required by the Act.
(ll) “Net
Cash Flow” means the gross cash proceeds of the Company less the portion thereof
used to pay or establish reserves for Company expenses, debt payments, capital
improvements, replacements and contingencies, all as reasonably determined by
the Directors, plus any reduction in the amount of reserves, all as may be
reasonably determined by the Directors. “Net Cash Flow” shall not be
reduced by Depreciation, amortization, cost recovery deductions or similar
allowances, but shall be increased by any reductions of reserves previously
established.
(mm) “New
Securities” means Units of the Company, and rights, options or warrants to
purchase Units of the Company, and securities of any type whatsoever that are,
or may become, convertible or exchangeable into Units
(nn) “Non-Preferred
Units” means all Units other than the Class A Preferred Units or any other class
of Units that receives distributions prior to the holders of Common Units
receiving distributions.
(oo) “Nonrecourse
Deductions” has the meaning set forth in Section 1.704-2(b)(1) of the
Regulations.
(pp) “Nonrecourse
Liability” has the meaning set forth in Section 1.704-2(b)(3) of the
Regulations.
(qq) “Officer”
has the meaning set forth in Section 5.24 of this Agreement.
(rr) “Percentage
Interest” means, as to each Unit Holder, a fraction, the numerator of which is
the number of Units held by such Unit Holder and the denominator of which is the
number of Units held by all Unit Holders, as set forth on Exhibit A hereto, as
may be amended from time to time pursuant to the terms hereof.
(ss) “Permitted
Transfer” has the meaning set forth in Section 9.1 of this
Agreement.
(tt) “Person”
means any individual, general or limited partnership, joint venture, limited
liability company, corporation, trust, estate, association, nominee or other
entity.
(uu) “Preferred
Return” means, with respect to a Class A Unit Holder with Adjusted Capital
Contributions, a per annum return equal to the product of (x) such Class A Unit
Holder’s from time to time Adjusted Capital Contribution multiplied by (y) ten
percent (10%). Such return will accrue on a daily
basis.
7
(vv) “Profits
and Losses” mean, for each Fiscal Year, an amount equal to the Company’s taxable
income or loss for such Fiscal Year, determined in accordance with Code Section
703(a) (for this purpose, all items of income, gain, loss, or deduction required
to be stated separately pursuant to Code Section 703(a)(1) shall be included in
taxable income or loss), with the following adjustments (without duplication):
(i) Any income of the Company that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to this
definition of “Profits” and “Losses” shall be added to such taxable income or
loss; (ii) Any expenditures of the Company described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account
in computing Profits or Losses pursuant to this definition of “Profits” and
“Losses” shall be subtracted from such taxable income or loss; (iii) In the
event the Gross Asset Value of any Company asset is adjusted pursuant to
subparagraphs (ii) or (iii) of the definition of Gross Asset Value above, the
amount of such adjustment shall be treated as an item of gain (if the adjustment
increases the Gross Asset Value of the asset) or an item of loss (if the
adjustment decreases the Gross Asset Value of the asset) from the disposition of
such asset and shall be taken into account for purposes of computing Profits or
Losses; (iv) Gain or loss resulting from any disposition of Property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the Property disposed
of, notwithstanding that the adjusted tax basis of such Property differs from
its Gross Asset Value; (v) In lieu of the depreciation, amortization, and other
cost recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such Fiscal Year,
computed in accordance with the definition of Depreciation; (vi) To the extent
an adjustment to the adjusted tax basis of any Company asset pursuant to Code
Section 734(b) is required, pursuant to Regulations Section
1.704-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts
as a result of a distribution other than in liquidation of a Unit Holder’s
interest in the Company, the amount of such adjustment shall be treated as an
item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) from the disposition of such asset and
shall be taken into account for purposes of computing Profits or Losses; and
(vii) Notwithstanding any other provision of this definition, any items which
are specially allocated pursuant to Sections 3.3, 3.4 and 3.5 of this Agreement
shall not be taken into account in computing Profits or Losses. The
amounts of the items of Company income, gain, loss or deduction available to be
specially allocated pursuant to Sections 3.3, 3.4 and 3.5 of this Agreement
shall be determined by applying rules analogous to those set forth in
subparagraphs (i) through (vi) above.
(ww) “Property”
means all real and personal property owned or acquired by the Company (including
cash), and any improvements thereto, and shall include both tangible and
intangible property.
(xx) “Redemption
Date” has the meaning set forth in Section 6.17(b) of this
Agreement.
(yy) “Redemption
Period” has the meaning set forth in Section 6.17(a) of this
Agreement.
8
(zz) “Redemption
Price has the meaning set forth in Section 6.17(a) of this
Agreement.
(aaa)
“Redemption Units” has the meaning set forth in Section 6.17(a) of
this Agreement.
(bb) “Regulations”
means the Income Tax Regulations, including Temporary Regulations, promulgated
under the Code, as such regulations are amended from time to time.
(ccc) “Regulatory
Allocations” has the meaning set forth in Section 3.4 of this
Agreement.
(ddd) “Securities
Act” means the Securities Act of 1933, as amended, or any applicable federal or
state laws.
(eee) “Tax
Matters Member” has the meaning set forth in Section 7.4 of this
Agreement.
(fff) “Tendered
Units” has the meaning set forth in Section 6.17(b) of this
Agreement.
(ggg)
“Tendering Holding” has the meaning set forth in Section
6.17(b) of this Agreement.
(hhh)
“Transfer” means, as a noun, any voluntary or involuntary transfer,
sale, pledge or hypothecation or other disposition and, as a verb, to
voluntarily or involuntarily transfer, give, sell, exchange, assign, pledge,
bequest, hypothecate or otherwise dispose of.
(iii)
“Transfer Restrictions” means the restrictions on Transfer of Units in Article
IX and the Unit Transfer Policy attached as Exhibit “C.”
(jjj)
“Unit” means a unit evidencing a Member’s Membership Interest in the
Company.
(kkk) “Unit
Holder” means any Person who is the owner of one or more Common Units or Class A
Preferred Units. “Unit Holders” means all such Persons. The names of
all Unit Holders shall be set forth as such on Exhibit “A” attached hereto or as
it may be amended from time to time.
(lll) “Unit
Holder Nonrecourse Debt” has the same meaning as the term “partner nonrecourse
debt” in Section 1.704-2(b)(4) of the Regulations.
(mmm) “Unit
Holder Nonrecourse Debt Minimum Gain” means an amount, with respect to each Unit
Holder Nonrecourse Debt, equal to the Company Minimum Gain that would result if
such Unit Holder Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Section 1.704-2(i)(3) of the
Regulations.
9
(nnn) “Unit
Holder Nonrecourse Deductions” has the same meaning as the term “partner
nonrecourse deductions” in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the
Regulations.
(ooo) “Unit
Holder Register” means the register maintained by the Company at its principal
office or by the Company’s duly appointed agent, setting forth the name, address
and Capital Contributions of each Unit Holder (or such Unit Holder’s
predecessors in interest), and the number of Units, certificate number(s) and
date of issuance of Units issued to each Unit Holder, which register shall be
modified from time to time as additional Units are issued and as Units are
Transferred pursuant to this Agreement.
(ppp) “Unit
Transfer Policy” is the policy governing the Transfer of Units and attached as
Exhibit “C.”
ARTICLE
II. CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
2.1 Initial Capital
Contributions. The name, address, Capital Contribution and
Units quantifying the Membership Interest of each of the Members are set forth
on Exhibit “A” attached hereto, and shall also be set forth on the Unit Holder
Register.
2.2 Additional Capital
Contributions; Additional Units. No Unit Holder shall be
obligated to make any additional Capital Contributions to the Company or to pay
any assessment to the Company, other than any unpaid amounts on such Unit
Holder’s original Capital Contributions, and no Units shall be subject to any
calls, requests or demands for capital. Subject to Section 5.6,
additional Units may be issued in consideration of Capital Contributions as
agreed to between the Directors and the Persons acquiring such
Units.
2.3 Capital
Accounts. A Capital Account shall be maintained for each Unit
Holder in accordance with the following provisions:
(a) To each
Unit Holder’s Capital Account there shall be credited: (i) such Unit
Holder’s Capital Contributions; (ii) such Unit Holder’s distributive share of
Profits and any items in the nature of income or gain which are specially
allocated pursuant to Sections 3.3, 3.4 and 3.5 of this Agreement; and (iii) the
amount of any Company liabilities assumed by such Unit Holder or which are
secured by any Property distributed to such Unit Holder;
(b) To each
Unit Holder’s Capital Account there shall be debited: (i) the amount
of money and the Gross Asset Value of any Property distributed to such Unit
Holder pursuant to any provision of this Agreement; (ii) such Unit Holder’s
distributive share of Losses and any items in the nature of expenses or losses
which are specially allocated pursuant to Sections 3.3, 3.4 and 3.5 of this
Agreement; and (iii) the amount of any liabilities of such Unit Holder assumed
by the Company or which are secured by any Property contributed by such Unit
Holder to the Company;
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(c)
In the event Units are Transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the transferor
to the extent it relates to the Transferred Units; and
(d) In
determining the amount of any liability for purposes of subparagraphs (a) and
(b) above, Code Section 752(c) and any other applicable provisions of the Code
and Regulations shall be taken into account.
The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulations Section
1.704-1(b), and shall be interpreted and applied in a manner consistent
therewith. In the event the Board determines that it is
prudent to modify the manner in which Capital Accounts, or any debits or credits
thereto (including, without limitation, debits or credits relating to
liabilities which are secured by contributed or distributed property or which
are assumed by the Company or any Unit Holders), are computed in order to comply
with such Regulations, the Board may make such modification, provided that it is
not likely to have a material effect on the amounts distributed to any Person
pursuant to Article X of this Agreement upon the dissolution of the
Company. The Board also shall make any appropriate modifications in
the event unanticipated events might otherwise cause this Agreement not to
comply with Regulations Section 1.704-1(b).
ARTICLE
III. ALLOCATIONS
3.1 Profits. After
giving effect to the special allocations in Sections 3.3, 3.4 and 3.5 of this
Agreement, the Profits of the Company for any Fiscal Year shall be allocated as
follows:
(a) First,
to the Unit Holders who were allocated Losses pursuant to Section 3.2(d) to the
extent of and in proportion to the Losses allocated pursuant to Section 3.2(d)
until all such Losses have been recovered;
(b) Second,
to the Class A Unit Holders in proportion to the amounts by which each such
Class A Unit Holder’s Capital Account attributable to such Class A Unit Holder’s
Class A Preferred Unit is less than such Class A Unit Holder’s Adjusted Capital
Contributions until each such Class A Unit Holder’s Capital Account attributable
to such Class A Unit Holder’s Class A Preferred Unit equals such Class A Unit
Holder’s Adjusted Capital Contributions;
(c) Third,
to the Class A Unit Holders to the extent of and in proportion to the amounts
equal to (i) the amount of each such Class A Unit Holder’s accrued Preferred
Return as of the end of the period for which the allocation is being made, minus
(ii) any previous allocations made to such Class A Unit Holder pursuant to this
Section 3.1(c), plus (iii) any allocations made to such Class A Unit Holder
pursuant to Section 3.2(b);
(d) Fourth,
to the Unit Holders who were allocated Losses in excess of each such Unit
Holder’s Percentage Interest pursuant to Section 3.2(a) to the extent of and in
proportion to the Losses allocated to such Unit Holders in excess of each such
Unit Holder’s Percentage Interest, until all such Losses have been recovered;
and
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(e) Fifth,
to the Unit Holders pro rata in
proportion to each such Unit Holder’s Percentage Interest as of the end of the
period for which the allocation is being made.
3.2 Losses. After
giving effect to the special allocations in Sections 3.3, 3.4 and 3.5 of this
Agreement, Losses of the Company for any Fiscal Year shall be allocated as
follows:
(a) First,
to the Unit Holders pro rata in
proportion to each such Unit Holder’s Percentage Interest; provided, however, no
Losses shall be allocated under this Section 3.2(a) to any Class A Unit Holder
which would cause or increase the amount of such Class A Unit Holder’s Adjusted
Capital Account to be less than the sum of such Class A Unit Holder’s Adjusted
Capital Contributions plus such Member’s accrued unpaid Preferred
Return;
(b) Second,
to the Class A Unit Holders pro rata in
proportion to the amount of each such Class A Unit Holder’s accrued unpaid
Preferred Return until each such Class A Unit Holder’s Adjusted Capital Account
equals such Class A Unit Holder’s Adjusted Capital Contributions;
(c) Third,
to the Class A Unit Holders pro rata in
proportion to their positive Adjusted Capital Account balance until each Class A
Unit Holder’s Adjusted Capital Account is reduced to zero; and
(d) Fourth,
to the Unit Holders who bear the economic risk of loss in accordance with the
applicable Treasury Regulations.
3.3 Special
Allocations. The following special allocations shall be made
in the following order:
(a) Minimum
Gain Chargeback. Except as otherwise provided in Section 1.704-2(f)
of the Regulations, notwithstanding any other provision of this Article III, if
there is a net decrease in Company Minimum Gain during any Fiscal Year, each
Unit Holder shall be specially allocated items of Company income and gain for
such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal
to such Unit Holder’s share of the net decrease in Company Minimum Gain,
determined in accordance with Regulations Section
1.704-2(g). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Unit Holder pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the
Regulations. This Section 3.3(a) is intended to comply with the
minimum gain chargeback requirement in Section 1.704-2(f) of the Regulations and
shall be interpreted consistently therewith.
(b) Unit
Holder Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(i)(4) of the Regulations, notwithstanding any other provision of
this Article III, if there is a net decrease in Unit Holder Nonrecourse Debt
Minimum Gain attributable to a Unit Holder Nonrecourse Debt during any Fiscal
Year, each Unit Holder who has a share of the Unit Holder Nonrecourse Debt
Minimum Gain attributable to such Unit Holder Nonrecourse Debt, determined
in accordance with Section 1.704-2(i)(5) of the Regulations, shall be specially
allocated items of Company income and gain for such Fiscal Year (and, if
necessary, subsequent Fiscal Years) in an amount equal to such Unit Holder’s
share of the net decrease in Unit Holder Nonrecourse Debt Minimum Gain,
determined in accordance with Regulations Section
1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Unit Holder pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the
Regulations. This Section 3.3(b) is intended to comply with the
minimum gain chargeback requirement in Section 1.704-2(i)(4) of the Regulations
and shall be interpreted consistently therewith.
12
(c) Qualified
Income Offset. In the event any Unit Holder unexpectedly receives any
adjustments, allocations, or distributions described in Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of
the Regulations, items of Company income and gain shall be specially allocated
to such Unit Holder in an amount and manner sufficient to eliminate, to the
extent required by the Regulations, the Adjusted Capital Account Deficit as soon
as practicable, provided that an allocation pursuant to this Section 3.3(c)
shall be made only if and to the extent that the Unit Holder would have an
Adjusted Capital Account Deficit after all other allocations provided for in
this Article III have been tentatively made as if this Section 3.3(c) were not
in the Agreement.
(d) Gross
Income Allocation. In the event any Member has an Adjusted Capital
Account Deficit at the end of any Fiscal Year which is in excess of the sum
of: (i) the amount such Member is obligated to restore pursuant to
any provision of this Agreement; and (ii) the amount such Member is deemed to be
obligated to restore pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, then in such circumstance
each such Member shall be specially allocated items of Company income and gain
in the amount of such excess as quickly as possible, provided that an allocation
pursuant to this Section 3.3(d) shall be made only if and to the extent that
such Member would have an Adjusted Capital Account Deficit in excess of such sum
after all other allocations provided for in this Article III have been made as
if Sections 3.3(c) and 3.3(d) were not in this Agreement.
(e) Nonrecourse
Deductions. Nonrecourse Deductions for any Fiscal Year or other
period shall be specially allocated among the Members in proportion to Units
held.
(f) Unit
Holder Nonrecourse Deductions. Any Unit Holder Nonrecourse Deductions
for any Fiscal Year shall be specially allocated to the Unit Holder who bears
the economic risk of loss with respect to the Unit Holder Nonrecourse Debt to
which such Unit Holder Nonrecourse Deductions are attributable in accordance
with Regulations Section 1.704-2(i)(1).
(g) Section
754 Adjustments. To the extent an adjustment to the adjusted tax
basis of any Company asset, pursuant to Code Section 734(b) or Code Section
743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or
1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital
Accounts as the result of a distribution to a Unit Holder in complete
liquidation of such Unit Holder’s interest in the Company, the amount of such
adjustment to Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of
the asset) or loss (if the adjustment decreases such basis) and such gain or
loss shall be specially allocated to the Unit Holders in accordance with their
interests in the Company in the event Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Unit Holder to whom such distribution
was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4)
applies.
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(h) Allocations
Relating to Taxable Issuance of Company Units. Any income, gain, loss
or deduction realized as a direct or indirect result of the issuance of Units by
the Company to a Unit Holder (the “Issuance Items”) shall be allocated among the
Unit Holders so that, to the extent possible, the net amount of such Issuance
Items, together with all other allocations under this Agreement to each Unit
Holder shall be equal to the net amount that would have been allocated to each
such Unit Holder if the Issuance Items had not been realized.
3.4 Regulatory
Allocations. The allocations set forth in Sections 3.3(a),
3.3(b), 3.3(c), 3.3(d), 3.3(e), 3.3(f), 3.3(g) and 3.5 (the “Regulatory
Allocations”) are intended to comply with certain requirements of the
Regulations. It is the intent of the Unit Holders that, to the extent
possible, all Regulatory Allocations shall be offset either with other
Regulatory Allocations or with special allocations of other items of Company
income, gain, loss or deduction pursuant to this Section
3.4. Therefore, notwithstanding any other provision of this Article
III (other than the Regulatory Allocations), the Board shall make such
offsetting special allocations of Company income, gain, loss or deduction in
whatever manner it determines appropriate so that, after such offsetting
allocations are made, each Unit Holder’s Capital Account balance is, to the
extent possible, equal to the Capital Account balance such Unit Holder would
have had if the Regulatory Allocations were not part of the Agreement and all
Company items were allocated pursuant to Sections 3.1, 3.2, and
3.3(h).
3.5 Loss
Limitation. Losses allocated pursuant to Section 3.2 of this
Agreement shall not exceed the maximum amount of Losses that can be allocated
without causing any Unit Holder to have an Adjusted Capital Account Deficit at
the end of any Fiscal Year. In the event some but not all of the Unit
Holders would have Adjusted Capital Account Deficits as a consequence of an
allocation of Losses pursuant to Section 3.2 of this Agreement, the limitation
set forth in this Section 3.5 shall be applied on a Unit Holder by Unit Holder
basis and Losses not allocable to any Unit Holder as a result of such limitation
shall be allocated to the other Unit Holders in accordance with the positive
balances in such Unit Holder’s Capital Accounts so as to allocate the maximum
permissible Losses to each Unit Holder under Section 1.704-1(b)(2)(ii)(d) of the
Regulations.
3.6 Other Allocation
Rules.
(a) For
purposes of determining Profits, Losses and any other items allocable to any
period, Profits, Losses and any such other items shall be determined on a daily,
monthly or other basis, as determined by the Board using any permissible method
under Code Section 706 and the Regulations thereunder.
(b) The
Unit Holders are aware of the income tax consequences of the allocations made by
this Article III and hereby agree to be bound by the provisions of this Article
III in reporting their shares of Company income and loss for income tax
purposes.
14
(c) Solely
for purposes of determining a Unit Holder’s proportionate share of the “excess
nonrecourse liabilities” of the Company within the meaning of Regulations
Section 1.752-3(a)(3), the Unit Holders’ aggregate interests in Company Profits
shall be deemed to be as provided in the Capital Accounts. To the
extent permitted by Section 1.704-2(h)(3) of the Regulations, the Board shall
endeavor to treat distributions of Net Cash Flow as having been made from the
proceeds of a Nonrecourse Liability or a Unit Holder Nonrecourse Debt only to
the extent that such distributions would cause or increase an Adjusted Capital
Account Deficit for any Unit Holder.
3.7 Tax Allocations; Code
Section 704(c). In accordance with Code Section 704(c) and the
Regulations thereunder, income, gain, loss, and deduction with respect to any
Property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Unit Holders so as to take account of any
variation between the adjusted basis of such Property to the Company for federal
income tax purposes and its initial Gross Asset Value. In the event
the Gross Asset Value of any Company asset is determined or adjusted pursuant to
subparagraph (i), (ii), or (iv) of the definition of Gross Asset Value in
Section 1.10(z) of this Agreement, subsequent allocations of income, gain, loss
and deduction with respect to such asset shall take account of any variation
between the adjusted basis of such asset for federal income tax purposes and its
Gross Asset Value in the same manner as under Code Section 704(c) and the
Regulations thereunder. Any elections or other decisions relating to
such allocations shall be made by the Board in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations
pursuant to this Section 3.7 are solely for purposes of federal, state and local
taxes and shall not affect, or in any way be taken into account in computing,
any Unit Holder’s Capital Account or share of Profits, Losses, other items or
distributions pursuant to any provision of this Agreement.
3.8 Tax Credit
Allocations. All income tax credits with respect to the
Company’s property or operations shall be allocated among the Unit Holders in
accordance with their respective Percentage Interests for the Fiscal Year during
which the expenditure, production, sale or other event giving rise to such
credits occurs. This Section 3.8 is intended to comply with the
applicable tax credit allocation principles of Regulations Section
1.704-1(b)(4)(ii) and shall be interpreted consistently therewith.
ARTICLE
IV. DISTRIBUTIONS
4.1 Net Cash
Flow. Subject to the terms and conditions of any applicable
loan covenants and restrictions, the Board, in its sole discretion, shall make
distributions of Net Cash Flow, if any, to the Unit Holders as
follows:
(a) First,
to the Unit Holders an amount sufficient for the Unit Holders to satisfy their
respective income tax liabilities arising by virtue of the allocations in
Section 3.1 hereof, assuming each Unit Holder is subject to tax at the highest
marginal federal income tax bracket for married individuals filing jointly and
at the highest such marginal rate applicable to Nebraska
residents. Any Net Cash Flow of the Company to be distributed
pursuant to this Section 4.1(a) shall be distributed among the Unit Holders, pro
rata in proportion to the taxable income
15
allocated
to each such Unit Holder from the Company with respect to the taxable year for
which the distribution is being made. Distributions made pursuant to this
Section 4.1(a) may not be in proportion to the Unit Holders’ Percentage
Interests. Any distributions made pursuant to this Section 4.1(a) shall be
treated as a prepayment of the distributions such Unit Holder is to receive
pursuant to Sections 4.1(b) and 4.1(c);
(b) Second,
to the Class A Unit Holders in proportion to their respective accrued unpaid
Preferred Return as of the date of such distribution until such time as each
Class A Unit Holder has received in the aggregate cumulative distributions
pursuant to Section 4.1(a) (to the extent such distribution is treated as a
prepayment of a distribution pursuant to this Section 4.1(b)) and this Section
4.1(b) in an amount equal to such Unit Holder’s accrued unpaid Preferred Return
as of the date of such distribution; and
(c) Third,
to the Unit Holders in proportion to their respective Percentage Interest;
provided, however, that a Unit Holder shall not receive a distribution pursuant
to this Section 4.1(c) until the amount of the distributions that such Unit
Holder would have received pursuant to this Section 4.1(c) is equal to the
amount of distributions such Unit Holder received pursuant to Section 4.1(a)
which were treated as a prepayment of the distributions pursuant to this Section
4.1(c).
4.2 Amounts
Withheld. All amounts withheld pursuant to the Code or any
provision of any state, local or foreign tax law with respect to any payment,
distribution or allocation to the Company or the Unit Holders shall be treated
as amounts paid or distributed, as the case may be, to the Unit Holders with
respect to which such amount was withheld pursuant to this Section 4.2 for all
purposes under this Agreement. The Company is authorized to withhold
from payments and distributions, or with respect to allocations, to the Unit
Holders and to pay over to any federal, state, local or foreign government, any
amounts required to be so withheld, and shall allocate any such amounts to the
Unit Holders with respect to which such amount was withheld.
4.3 Limitations on
Distributions. The Company shall make no distributions to the
Unit Holders except as provided in this Article IV and in Article X of this
Agreement. Notwithstanding any other provision of this Agreement, no
distribution shall be made (i) unless permitted under the Lending Agreements, or
such restriction is waived by the proper lender or (ii) unless permitted to be
made under the Act.
4.4 Guaranteed
Payment. In the event the Company is liquidated or the Company
exercises its redemption option pursuant to Section 6.17 hereof and, as of such
date, (A) the cumulative Preferred Return as to a Class A Unit Holder
exceeds (B) the amount by which the cumulative Profits allocated to such
Class A Unit Holder pursuant to Section 3.1(c) exceeds the cumulative Losses
allocated to such Class A Unit Holder pursuant to Section 3.2(b), then the
portion of the Redemption Price payable pursuant to Section 6.17 or the portion
of the liquidation amount payable pursuant to Section 10.2(b) equal to the
difference of (A) over (B) shall be paid to such Class A Unit Holder as a
payment for the use of such Class A Unit Holder’s capital. Amounts
paid pursuant to this Section 4.4 are intended to constitute guaranteed payments
within the meaning of Section 707(c) of the Code.
16
ARTICLE
V. MANAGEMENT
5.1 Directors. Except
as otherwise provided in this Agreement or required by law, the Board shall
direct the business and affairs and exercise all of the powers of the Company,
and shall adopt such policies, rules, regulations and actions as they deem
advisable. Subject to Section 5.6 of this Agreement and any other
express provisions of this Agreement to the contrary, the business and affairs
of the Company shall be managed by and under the direction of the Directors and
not by the Members.
5.2 Number of
Directors. The number of Directors shall be not less than
twelve (12) nor more than eighteen (18) Members, the number of which shall be
set by resolution of the Board, and elected by the Members in accordance with
Section 5.3.
5.3 Election of
Directors.
(a) Members
shall have the right to elect Directors. At each election for
Directors, every Member entitled to vote at such election shall have the right
to vote in person or by proxy, the number of Units owned by him or her for as
many persons as there are Directors to be elected and for whose election he or
she has a right to vote, or to cumulate his or her votes by giving one candidate
as many votes as the number of such Directors to be elected multiplied by the
number of his or her Units, or by distributing such votes on the same principle
among any number of candidates. Five directors shall be elected for a term
expiring in 2007; four directors shall be elected for a term expiring in 2008
and five Directors shall be elected for a term expiring in
2009. Beginning in 2007, Directors shall be elected to fill the terms
then expiring for a term of three (3) years and shall serve until his or her
successor is duly or elected or, if earlier, until such Director’s death,
resignation or removal. In the event the size of the Board is
modified pursuant to Section 5.2, it is the intent that the Board is authorized
to address the transition to such new number of directors and shall take
reasonable efforts to maintain proportionately staggered terms for the Directors
thereafter.
(b) Nominees
for a Director position up for election shall be named by the then-current
Directors or by a nominating committee established by the
Directors. Nominations may also be made by any Member entitled to
vote in the election of Directors. Any Member that intends to
nominate a Person for election as a Director may do so only if written notice of
such Member’s intent to make such nomination is given one hundred twenty (120)
calendar days prior to the one year anniversary of the date on which the Company
delivered the prior year’s proxy statement or notice of annual meeting to such
Members. Each such notice shall set forth: (i) the name
and address of the Member who intends to make the nomination; (ii) a
representation that the Member is a holder of record of Units entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the Person specified in the notice; (iii) the name, age, address and
principal occupation/employment of each nominee; (iv) a description of all
arrangements or understandings between the Member and each nominee and any other
Person(s) pursuant to which such nominations are to be made; (v) such other
information regarding each nominee as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; (vi) the consent of each nominee
17
to serve
as a Director if so elected; and (vii) a nominating petition signed and dated by
the holders of at least five percent (5%) of the then outstanding Units and
clearly setting forth the proposed nominee as a candidate for the Director’s
seat to be filled. The Company may require any proposed nominee to
furnish such other information as may reasonably be required by the Company to
determine the eligibility of such proposed nominee to serve as a
Director. The presiding Officer of the meeting may, if the facts
warrant, determine that a nomination was not made in accordance with the
foregoing procedures, and if so determined, the defective nomination shall be
disregarded.
5.4 Authority of
Directors. Subject to the limitations and restrictions set
forth in this Agreement and the Act, the Board shall direct the management of
the business and affairs of the Company and shall have all of the rights and
powers which may be possessed by a “manager” under the Act including, without
limitation, the right and power to do or perform, and the further right and
power by resolution to delegate to the Officers or such other Persons as the
Board deem appropriate, the right and power to do or perform, the
following:
(a) Conduct
the business and carry on the operations of the Company, and have and exercise
the powers granted by the Act in any state, territory, district or possession of
the United States, or in any foreign country, which may be necessary or
convenient to effect any or all of the purposes for which the Company is
organized;
(b) Acquire
by purchase, lease or otherwise any real or personal property which may be
necessary, convenient, or incidental to the accomplishment of the purposes of
the Company;
(c) Operate,
maintain, finance, improve, construct, own, operate, sell, convey, assign,
mortgage and lease any real estate and any personal property necessary,
convenient, or incidental to the accomplishment of the purposes of the
Company;
(d) Execute
any and all agreements, contracts, documents, certifications and instruments
necessary or convenient in connection with the management, maintenance and
operation of the business and affairs of the Company, including executing
amendments to this Agreement and the Articles in accordance with the terms of
this Agreement, both as Directors and where permitted, as attorney-in-fact for
the Members pursuant to any power of attorney granted by the Members to the
Directors;
(e) Borrow
money and issue evidences of indebtedness necessary, convenient, or incidental
to the accomplishment of the purposes of the Company, and secure the same by
mortgage, pledge or other lien on any Company assets;
(f) Execute,
in furtherance of any or all of the purposes of the Company, any deed, lease,
mortgage, deed of trust, mortgage note, promissory note, xxxx of sale, contract
or other instrument purporting to convey or encumber any or all of the Company
assets;
18
(g)
Prepay in whole or in part, refinance, increase, modify or extend any
liabilities affecting the assets of the Company and in connection therewith,
execute any extensions or renewals of encumbrances on any or all of such
assets;
(h) Care for
and distribute funds to the Members by way of cash income, return of capital or
otherwise, all in accordance with the provisions of this Agreement, and perform
all matters in furtherance of the objectives of the Company and this
Agreement;
(i) Contract
on behalf of the Company for the employment and services of employees and
independent contractors, and delegate to such Persons the duty to manage or
supervise any of the assets or operations of the Company;
(j) Engage in
any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of
the Company, as may be lawfully carried on or performed by a limited liability
company under the laws of each state in which the Company is then formed or
qualified;
(k) Take, or
refrain from taking, all actions, not expressly proscribed or limited by this
Agreement or the Articles, as may be necessary or appropriate to accomplish the
purposes of the Company;
(l) Institute,
prosecute, defend, settle, compromise and dismiss lawsuits or other judicial or
administrative proceedings brought on or in behalf of, or against, the Company,
the Members or the Directors or Officers in connection with activities arising
out of, connected with, or incidental to this Agreement, and engage counsel or
others in connection therewith;
(m) Purchase,
take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ,
sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and
deal in and with, shares or other interests in or obligations of domestic or
foreign corporations, associations, general or limited partnerships, other
limited liability companies, or individuals or direct or indirect obligations of
the United States or of any government, state, territory, government district or
municipality or of any instrumentality of any of them;
(n) Agree
with any Person as to the form and other terms and conditions of such Person’s
Capital Contribution to the Company and cause the Company to issue Membership
Interests and Units in consideration for such Capital Contribution as provided
in Section 6.1; and
(o) Indemnify
Members, Directors or Officers, or former Members, Directors or Officers, and to
make any other indemnification that is authorized by this Agreement in
accordance with, and to the fullest extent permitted by, the Act.
5.5 Director as
Agent. Notwithstanding the power and authority of the Board to
manage the business and affairs of the Company, no Director shall have authority
to act as agent for the Company for the purposes of its business (including
the
19
execution
of any instrument on behalf of the Company) unless the Board has authorized the
Director to take such action.
5.6 Restrictions on Authority of
Directors.
(a) Notwithstanding
any provision in this Agreement to the contrary, the Directors shall not have
authority to, and they covenant and agree that they shall not, do any of the
following acts without the unanimous consent of the Members:
(i)
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Cause
or permit the Company to engage in any activity that is not consistent
with the purposes of the Company as set forth in Section 1.3 of this
Agreement;
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(ii)
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Knowingly
engage in any act in contravention of this Agreement or which would make
it impossible to carry on the ordinary business of the Company, except as
otherwise provided in this Agreement;
or
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(iii)
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Possess
Company Property, or assign rights in specific Company Property, for other
than a Company purpose.
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(b) The
Directors shall not have authority to, and they covenant and agree that they
shall not cause the Company to, without the consent of the Members holding
sixty-six and two-thirds percent (66 2/3%) of the Membership Voting
Interests:
(i)
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Merge,
consolidate, exchange, sell or otherwise dispose of all or substantially
all of the Property;
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(ii)
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Make
an election for the Company to be classified for income tax purposes as an
association taxable as a
corporation;
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(iii)
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Merge or consolidate the Company with any
other entity; or
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(iv)
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Take
any action to cause a Dissolution Event as defined in Section 10.1, to the
extent permitted by the Act (other than seeking approval of Members as
provided in this Section).
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The
actions specified herein as requiring the consent of the Members shall be in
addition to any actions by the Board that are specified in the Act as requiring
the consent or approval of the Members. Unless otherwise required by
this Agreement or the Act, any such required consent or approval may be given by
a vote of a majority of the Membership Voting Interests.
5.7 Meetings. A
regular meeting of the Board shall be held, without other notice than this
Section, immediately after, and at the same place as, the annual meeting of the
Members. Additionally, the Board may, by resolution, prescribe the
time and place for holding regular meetings and may provide that such resolution
constitutes notice
20
thereof. If
the Board does not prescribe the time and place for the holding of regular
meetings, such regular meetings shall be held at the time and place specified in
the notice of each such regular meeting. Unless otherwise prescribed
by statute, special meetings may be called by, or at the request of, the
Chairman or any two (2) or more Directors. The Board may designate
any location as the place of any regular or special meeting. If no
designation is made, the place of meeting shall be the principal office of the
Company.
5.8 Notice. Notice
shall be given to each Director with respect to any special meeting of the
Board, stating the date, time and place of the
meeting. Such notice shall be given at least one (1) day prior
thereto and shall be in writing, unless oral notice is reasonable under the
circumstances. If mailed, such notice shall be deemed to be delivered
on the earlier of five (5) days after deposit in the U.S. mail addressed to the
Director’s address as shown on the Company’s records with postage prepaid, or
upon receipt. Any Director may waive notice of any
meeting. Except as provided in the next sentence, the waiver must be
in writing, signed by the Director entitled to notice, and filed with the
minutes relating to the action taken. A Director’s attendance at a
meeting shall constitute a waiver of notice of such meeting, except where such
Director attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting was not lawfully called or
convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board need be specified in the
notice or waiver of notice of such meeting.
5.9 Conduct of
Meeting. All Directors, to the extent possible, shall
personally attend all Board meetings. However, any Director may
participate in any regular or special meeting by any means of communication by
which all Directors participating may simultaneously hear each other during the
meeting. A Director participating in a meeting by this means is
deemed to be present in person.
5.10 Quorum. A
majority of the duly elected and qualified Directors shall constitute a quorum
for the transaction of business at a meeting of the Board. If less
than a quorum is represented at a meeting, the Directors represented may adjourn
the meeting and reschedule it for a later date without further
notice. At such adjourned and rescheduled meeting at which a quorum
is present or represented, any business may be transacted which might have been
transacted at the original meeting. Directors present at a duly
organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of Directors to leave less than a
quorum.
5.11 Manner of Acting; Informal
Action. Except as otherwise provided in this Agreement, the
act of a majority of the Directors at a meeting at which a quorum is present
shall be the act of the Board. Unless otherwise provided by law, any
action required or permitted to be taken at a meeting of the Board may be taken
without a meeting if a consent in writing setting forth the action so taken is
signed by all Directors entitled to vote with respect the subject matter
thereof.
5.12 Presumption of
Assent. A Director present at a meeting shall be presumed to
have assented to action taken, unless the dissent of such Director is entered in
the minutes of the meeting or unless such Director files a written dissent to
such action
21
with the
other Directors before the adjournment thereof or forwards such dissent by
mail to the other Directors immediately after the adjournment
thereof. Such right to dissent shall not apply to a Director who
voted in favor of an action.
5.13 Removal of
Directors. Members may remove a Director, with or
without cause, at a meeting called for that purpose, if notice has been given
that a purpose of the meeting is such removal and an affirmative vote of Members
holding eighty percent (80%) or more of the Member Voting
Interests.
5.14 Vacancies. Any
vacancy occurring in the Directors may be filled by the affirmative vote of a
majority of the remaining Directors. A Director elected to fill a
vacancy shall be elected for the unexpired term of such Director’s predecessor
in office.
5.15 Compensation. The
Board, by a two-thirds (2/3) affirmative vote of the Directors, shall
have authority to establish reasonable compensation of all Directors for
services to the Company as Directors, officers or otherwise, and to provide for
reimbursement to Directors of their reasonable expenses.
5.16 Committees;
Authority. The Board may create such committees, and appoint
such Directors to serve on them, as the Board deems appropriate. Each
committee must have two (2) or more Directors, who serve at the pleasure of the
Board. The creation of a committee, and the appointment of Directors
to serve on it, must be approved by a majority of the Directors. The
procedural requirements for Board meetings under this Article V shall also apply
to committee meetings. Committees of the Board may exercise only
those aspects of the Board’s authority which are expressly conferred by the
Board by express resolution. Notwithstanding the foregoing, however,
a committee may not, under any circumstances: (i) apportion or
authorize distributions; (ii) approve or propose any action for which the Act
requires Member approval; (iii) elect Officers; (iv) fill vacancies of Directors
or on any of its committees; (v) adopt, amend, or repeal the Articles or this
Agreement; (vi) approve a plan of merger; (vii) authorize or approve the
reacquisition of Units, except according to a formula or method prescribed by
the Directors; or (ix) authorize or approve the issuance or sale or contract for
sale of Units or determine the designation and relative rights, preferences, and
limitations of a class or series of Units.
5.17 Voting; Potential Financial
Interest. Unless otherwise provided by the Board, no Director
shall be disqualified from voting on any matter solely by reason of such
Director’s (or his/her Affiliate’s) potential financial interest in the outcome
of such vote, provided that the nature of such potential financial interest was
reasonably disclosed at the time of such vote.
5.18 Duties and Obligations of
Directors. The Board shall take all actions which may be
necessary or appropriate: (i) for the continuation of the Company’s
valid existence as a limited liability company under the laws of the State of
Nebraska and each other jurisdiction in which such existence is necessary to
protect the limited liability of Members or to enable the Company to conduct the
business in which it is engaged; and (ii) for the accomplishment of the
Company’s purposes, including the acquisition,
22
development,
maintenance, preservation, and operation of Company Property in accordance with
the provisions of this Agreement and applicable laws and
regulations. Each Director shall have the duty to discharge the
foregoing duties in good faith and with the care an ordinarily prudent person in
a like position would exercise under similar circumstances. The
Directors shall be under no other fiduciary duty to the Company or the Members
to conduct the affairs of the Company in a particular manner.
5.19 Chairman and Vice
Chairman. Unless provided otherwise by a resolution adopted by
the Board, the Chairman shall be elected by the Board to serve as an Officer of
the Board and preside at meetings of the Members and the Board; shall see that
all orders and resolutions of the Board are carried into effect; may maintain
records of and certify proceedings of the Board and Members; and shall perform
such other duties as may from time to time be prescribed by the
Board. The Vice Chairman shall, in the absence or disability of the
Chairman, perform the duties and exercise the powers of the Chairman and shall
perform such other duties as the Board or the Chairman may from time to time
prescribe. The Board may designate more than one Vice Chairmen, in
which case the Vice Chairmen shall be designated by the Board so as to denote
which is most senior in office. Each Chairman or Vice Chairman shall
be chosen from individuals serving as Directors.
5.20 President. Unless
provided otherwise by a resolution adopted by the Board, the President shall
perform such duties as the Board may from time to time prescribe, including
without limitation, the overall management of the day-to-day operations of the
Company.
5.21 Chief Financial
Officer. Unless provided otherwise by a resolution adopted by
the Board, the Board shall appoint a Chief Financial Officer of the
Company who shall be the Treasurer of the Company or such other person as
appointed by the Board from time to time and shall keep accurate financial
records for the Company; shall deposit all monies, drafts, and checks in the
name of and to the credit of the Company in such banks and depositories as the
Board shall designate from time to time; shall endorse for deposit all notes,
checks, and drafts received by the Company as ordered by the Board, making
proper vouchers therefore; shall disburse Company funds and issue checks and
drafts in the name of the Company as ordered by the Board, shall render to the
President and the Board, whenever requested, an account of all such transactions
as Chief Financial Officer and of the financial condition of the Company, and
shall perform such other duties as may be prescribed by the Board or the
President from time to time.
5.22 Secretary; Assistant
Secretary. The Board shall appoint a Secretary. The Secretary
shall attend all meetings of the Board and of the Members and shall maintain
records of, and whenever necessary, certify all proceedings of the Board and of
the Members. The Secretary shall keep the required records of the
Company, when so directed by the Board or other person(s) authorized to call
such meetings, shall give or cause to be given notice of meetings of the Members
and of meetings of the Board, and shall also perform such other duties and have
such other powers as the Chairman or the Board may prescribe from time to
time. An Assistant Secretary, if any, shall perform the duties of the
Secretary during the absence or disability of the Secretary.
23
5.23 Vice
President. The Board may appoint one or more Vice Presidents
having duties as the Board may provide. If more than one, the
Directors shall designate which is most senior. The most senior Vice
President shall perform the duties of the President in the absence of the
President.
5.24 Delegation. Unless
prohibited by a resolution of the Board, any Officer appointed by the Board
(individually, an “Officer” and collectively, “Officers”) may delegate in
writing some or all of the duties and powers of such Officer’s management
position to other Persons. An Officer who delegates the duties or
powers of an office remains subject to the standard of conduct for such Officer
as set forth in the Act with respect to the discharge of all duties and powers
so delegated.
5.25
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Execution of Instruments. All
deeds, mortgages, bonds, checks, contracts and other instruments
pertaining to the business and affairs of the Company shall be signed on
behalf of the Company by (i) the Chairman; or (ii) the President; or (iii)
by such other person or persons as may be designated from time to time by
the Board.
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5.26 Limitation of Liability;
Indemnification. To the maximum extent permitted under the Act
and other applicable law, no Member, Director or Officer shall be personally
liable for any debt, obligation or liability of the Company merely by reason of
being a Member, Director or Officer. Furthermore, to the maximum
extent permitted under the Act, the liability of Directors and Officers shall be
eliminated, and no Director or Officer shall be personally liable to the Company
or its Members for monetary damages for, any action taken, or any failure to
take action, as a Director or Officer, except for liability for any of the
following, to the extent determined by final adjudication on the merits by a
court of competent jurisdiction:
a. The
amount of a financial benefit received by the Director or Officer to which the
Director or Officer is not entitled;
b. An
intentional infliction of harm on the Company or its Members;
c. An
intentional violation of criminal law.
To the
maximum extent permitted under the Act and other applicable law, the Company,
the Liquidator, its receiver, or its trustee (in the case of its receiver or
trustee, to the extent of Company Property) shall indemnify, save and hold
harmless, and pay all judgments and claims against each Director or Officer
relating to any liability or damage incurred by reason of any act performed or
omitted to be performed by such Director or Officer, in connection with the
business of the Company, including reasonable attorneys’ fees incurred by such
Director in connection with the defense of any action based on any such act or
omission, which attorneys’ fees may be paid as incurred, including all such
liabilities under federal and state securities laws as permitted by
law. To the maximum extent permitted under the Act and other
applicable law, in the event of any action by a Unit Holder against any Director
or Officer, including a derivative
24
suit, the
Company shall indemnify, save and hold harmless, and pay all costs, liabilities,
damages and expenses of such Director or Officer, including reasonable
attorneys’ fees incurred in the defense of such
action. Notwithstanding the foregoing provisions, no Director or
Officer shall be indemnified by the Company to the extent prohibited or limited
by the Act. The Company may purchase and maintain insurance on behalf
of any Director or Officer in his or her official capacity against any liability
described in this Section, whether or not the Company would otherwise be
required to indemnify such Director or Officer against such
liability.
ARTICLE
VI. MEMBERSHIP UNITS; MEMBERS
6.1 Membership
Units. The authorized capital of the Company shall consist
solely of Units, having the rights, powers and preferences herein
described:
(a) The
Company may issue Units in such amounts, at such times, to such Persons and on
such other terms and conditions as the Board may determine. Ownership
of one or more Units shall entitle a Member to the Membership Voting Interest,
Membership Economic Interest and other rights and obligation expressly set forth
in this Agreement.
(b) Additional
and different classes of Membership Interests represented by different Units may
be created and issued to new or existing Members on such terms and conditions as
the Directors may determine. Such additional and different classes
may have different rights, powers and preferences (including, without
limitation, voting rights and distribution preferences), which may be superior
to those of existing Members. In the event of creation of additional Membership
Interests, Exhibit A shall be updated as necessary by the Board to reflect such
Membership Interests and the Board shall amend this Agreement, and the Members
hereby consent to the amendment hereof, to reflect (a) the sale of additional
Membership Interests with such terms as the Board shall deem appropriate, (b)
the admission of additional Members. Except as expressly set forth in this
Agreement, Members shall have no preemptive rights to acquire additional or
newly created Units.
(c) No
Member together with its Affiliates shall own in excess of forty percent (40%)
of the Units of the Company.
(d) As
of the date of this Agreement, the Company shall have the following classes of
Units: (i) Common Units and (ii) Class A Preferred Units. Except as
set forth in this Agreement, the rights and preferences of Common Units and
Class A Preferred Units are identical.
6.2 Certificates; Surrender for
Transfer. Certificates representing Units shall be in such
form as shall be determined by the Board, in its discretion. If a
certificate is lost, destroyed or mutilated, a new one may be issued upon such
terms and indemnity to the Company as the Board may prescribe. No new
certificate shall be issued until the former certificate for a like number of
Units has been surrendered and canceled.
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6.3 Members. Each
Person who desires to become a Member must complete and execute a signature page
to this Agreement in the form of Exhibit “B” attached hereto and such other
documents as may be required by the Board. Membership Interests and
Units of the Members shall be set forth on Exhibit “A” to this Agreement, as
amended from time to time.
6.4 Additional
Members. Subject to the provisions of 9.10, no Person shall
become a Member without the approval of the Board. The Board may
refuse to admit any Person as a Member in their sole discretion. Any
such admission must comply with the requirements described in this Agreement and
will be effective only after such Person has executed and delivered to the
Company such documentation as determined by the Directors to be necessary and
appropriate to effect such admission. All Members acknowledge that
the admission of additional Members may result in a dilution of a Member’s
Membership Interest. Prior to admission as a Member, a prospective
Member shall agree in writing to be bound by this Agreement and shall execute
and deliver to the Company an Addendum to this Agreement in the form of Exhibit
“B” attached hereto. Upon the execution of such Addendum, such
additional Member shall be deemed to be a party to this Agreement as if such
additional Member had executed this Agreement on the original date hereof, and
shall be bound by all of the provisions set forth herein.
6.5 Members’ Voting
Rights. Each Member holding Units shall be entitled to one (1)
vote for each Unit (regardless of class) registered in the name of such Member
(as shown in the Unit Holder Register) as to any matter for which a Member
holding Units is entitled to vote under this Agreement or the
Act. Unless a matter is expressly reserved in this Agreement
for the vote or approval of a particular class of Units, each Member holding
Units (regardless of class) shall be entitled to vote thereon, with each Member
entitled to one (1) vote for each Unit registered in the name of such Member (as
shown in the Unit Holder Register). Members shall have cumulative
voting rights for the election of Directors as described in Section
5.3. Except as otherwise expressly provided for in this Agreement,
Members shall not have any right or power to take part in the management or
control of the Company or its business and affairs or to act for or bind the
Company in any way.
6.6 Member
Meetings. Meetings of the Members shall be called by the
Board, and shall be held at the principal office of the Company or at such other
place as shall be designated by the Board. Members representing an
aggregate of not less than thirty percent (30%) of the Membership Voting
Interests may also in writing demand that the Board call a meeting of the
Members. Regular meetings of the Members shall be held not less than
once per Fiscal Year.
6.7 Place of
Meeting. The Board, or in the absence of action by the Board,
the Chairman, may designate any place as the place for any meeting of the
Members, unless by written consents, a majority of all Members entitled to vote
at the meeting designate a different place for the holding of such
meeting. If no designation is made by the Board, the Chairman or by
unanimous action of the Members, the place of meetings shall be at the principal
office of the Company.
26
6.8 Conduct of
Meetings. Subject to the discretion of the Board, the Members
may participate in any Member meeting by means of telephone conference or
similar means of communication by which all participants in the meeting can hear
and be heard by all other participants.
6.9 Notice. Written
notice stating the place and time of any annual or special Member meeting shall
be delivered or mailed not less than five (5) nor more than sixty (60) days
prior to the meeting date, to each Member of record entitled to vote at such
meeting as of the close of business on the day before said notice is delivered
or mailed. Such notices shall be deemed to be effective upon the
earlier of: (i) deposit postage-prepaid in the U.S. mail, addressed
to the Member at the Member’s address as it appears on the Unit Holder Register,
or such other address as may have been provided in writing to the Company by a
Member; (ii) the date shown on the return receipt if sent by registered or
certified mail, return receipt requested; or (iii) actual receipt.
6.10 Contents of
Notice. The notice of each Member meeting shall include a
description of the purpose(s) for which the meeting is called. If a
purpose of any Member meeting is to consider: (i) a proposed
amendment to or restatement of the Articles or this Agreement requiring Member
approval; (ii) a plan of merger or Unit exchange; (iii) the sale, lease,
exchange or other disposition of all, or substantially all of the Company’s
Property; (iv) the dissolution of the Company; or (v) removal of a Director,
then the notice
must so state and must be accompanied, as applicable, by a copy or summary of
the (1) amendment(s) to the Articles or Operating Agreement, (2) plan of merger
or Unit exchange, (3) documents relating to the transaction for the disposition
of all the Company’s Property, and/or (4) documents relating to any plan for
dissolution.
6.11 Adjourned Meetings.
If any Member meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place, if the new date, time and
place is announced at the meeting before adjournment; provided that, if a
new record date for the adjourned meeting is or must be fixed, then notice must
be given to new Members as of the new record date.
6.12 Waiver of
Notice. Whenever any notice is required to be given to any
Member under the Act, the Articles or this Agreement, a waiver in writing,
signed by such Member shall be deemed equivalent to the giving of such
notice. Furthermore, a Member’s attendance at a meeting waives any
objection that the Member might otherwise raise based on lack of notice or
defective notice, unless the Member: (i) objects at the outset of the
meeting; or (ii) in the case of an objection claiming that consideration of a
particular matter is not within the purposes described in the meeting notice,
objects at the time such matter is presented, and in either case, thereafter
does not participate in the meeting.
6.13 Fixing of Record
Date. For purposes of determining the Members entitled to
notice of, or to vote at, any Member meeting or any adjournment thereof, or for
purposes of determining the Members entitled to receive payment of any
distribution, or in order to make a determination of the Members for any other
purpose, the Board may provide that the Unit Holder Register shall be closed for
a stated period, not to
27
exceed
sixty (60) days. If the Unit Holder Register shall be closed for such
purpose, such books shall be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the Unit Holder Register,
the Board may fix in advance a date as the record date for any such
determination of Members, such date in any case to be not more than sixty (60)
days, and in case of a meeting of Members not less than ten (10) days, prior to
the date on which the particular action requiring such determination is to be
taken. If the Unit Holder Register is not closed and no record date
is fixed for the determination, the date on which notice of the meeting is
mailed or the date on which the resolution of the Board declaring a dividend is
adopted, as the case may be, shall be the record date for such
determination. When a determination of Members entitled to vote at
any meeting of the Members has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board fixes a
new record date, which it must do if the meeting is adjourned to a date more
than one hundred twenty (120) days after the date fixed for the original
meeting.
6.14 Quorum and
Proxies. The presence (in person or by proxy or mail ballot)
of Members holding at least twenty five percent (25%) of the Membership Voting
Interests is required for the transaction of business at a meeting of the
Members. Voting by proxy or by mail ballot shall be permitted on any
matter if authorized by the Board. A proxy shall not be
effective for purposes of determining a quorum under this Section or for
purposes of voting at the annual meeting unless and until it is received by the
Secretary of the Company and is duly executed as provided in such
proxy. In each case where a Member appropriately specifies how a
proxy is to be voted, it will be voted in accordance with such
specification. As to any matter or business which may be brought
before an annual meeting which is note discussed in the Company’s proxy
statement, a vote may be cast pursuant to a proxy in accordance with the
judgment of the Company’s proxies name in the proxy voting the
same. Any Member may revoke his or her proxy at any time insofar as
it is then not exercised by giving notice of such revocation, either personally
at the annual meeting or in writing, to the Secretary of the Company or by the
execution and delivery to the Company of a new proxy dated subsequent to the
original proxy.
6.15 Voting; Action by
Members. If a quorum is present, the affirmative vote of a
majority of the Membership Voting Interests represented at the meeting and
entitled to vote on the matter (including Units represented in person, by proxy
or by mail ballot when authorized by the Board) shall constitute the act of the
Members, unless the vote of a greater or lesser proportion or numbers is
otherwise required by this Agreement or the Act.
6.16 Continuation of the
Company. The Company shall not be dissolved upon the
occurrence of any event that is deemed to terminate the continued membership of
a Member, but rather the Company shall continue without dissolution, and its
affairs shall not be required to be wound up.
6.17 Redemption of Class A
Preferred Units.
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(a) Any time
and from time to time after the third anniversary of the date (the “Issue Date”)
a Class A Preferred Unit was issued by the Company (the “Redemption Period”),
the Company may, to the extent it may lawfully do so, redeem any and all Class A
Preferred Units which were issued by the Company on the Issue Date (the
“Redemption Units”) by paying in cash therefor an amount (such amount being
referred to herein as the “Redemption Price”) per Class A Preferred Unit equal
to the greater of (i) the Capital Account of such holder of such Class A
Preferred Unit with respect to such Unit, or (ii) the sum of (x) the Capital
Contributions of such holder of such Class A Preferred Unit with respect to such
Unit, plus (y) an amount equal to all accrued and unpaid Preferred Return, if
any, payable with respect to such Unit.
(b) Mechanics of
Redemption. Sixty (60) days prior to the date the Company elects to
exercise its redemption of the Redemption Units (the “Redemption Date”) as
provided in Section 6.17(a) hereof, written notice shall be mailed, postage
prepaid, by the Company to each holder of record (at the close of business on
the business day next preceding the day on which notice is given) of the
Redemption Units, at the address last shown on the Company’s records for such
holder (or at the address given by the holder to the Company for the purpose of
notice or if no such address appears or is given at the place where the
principal executive office of the Company is located), notifying such holder of
the redemption to be effected and specifying the Redemption Date, the Redemption
Price, the place at which payment may be obtained, the manner and place
designated by the Company for the surrender of such Redemption Units and the
applicable procedures set forth in this section (the “Initial Redemption
Notice”). E`ach holder of a Redemption Unit shall have the option to
elect to have all or any of such holder’s Class A Preferred Units which were
issued by the Company on the Issue Date redeemed by the Company at the
Redemption Date. Each such holder who so elects (a “Tendering
Holder”) shall provide written notice, postage prepaid, to the Company, at least
thirty (30) days prior to the applicable Redemption Date, specifying the number
of Class A Preferred Units that such holder is electing to tender for redemption
(the “Tendered Units”), the certificate or certificates representing such
Tendered Units and indicating that such holder is surrendering to the Company,
in the manner and at the place designated in the Initial Redemption Notice, the
holder’s certificate or certificates representing the Tendered
Units. If the total number of Tendered Units being so tendered by all
such holders represents an amount of Units that is greater than the number of
Redemption Units for such redemption, then the Company will redeem the Tendered
Units ratably among the Tendering Holders in proportion to the respective number
of Tendered Units being tendered by each Tendering Holder. If the
total number of Tendered Units being so tendered by all such holders represents
an amount of Units that is less than the number of Redemption Units for such
redemption, then the Company, in addition to redeeming all of the Tendered
Units, will redeem an additional number of Class A Preferred Units from the
remaining Redemption Units that have not been, or are not being, tendered equal
to the difference between the number of Redemption Units and the number of
Tendered Units (the “Mandatory Units”). The specific certificate or
certificates constituting the Mandatory Units shall be determined by the Company
through a blind and random selection process. Any holder of a
Mandatory Unit will receive written notice (the “Mandatory Redemption Notice”)
from the Company at least fifteen (15) days prior to the applicable Redemption
Date notifying such holder of the redemption of such Mandatory Unit and
specifying the Redemption Date, the Redemption Price, and the place at which
payment may be obtained. This notice shall call upon such holder to
surrender to the Company, in the manner and at the place designated, the
holder’s certificate
29
or
certificates representing the Mandatory Units. Except as provided in
Section 6.17(c) below, on or after the close of business on the Redemption Date,
each holder of Redemption Units (whether Tendered Units or Mandatory Units)
shall surrender to the Company the certificate or certificates representing such
Redemption Units, in the manner and at the place designated in the Initial
Redemption Notice or the Mandatory Redemption Notice, as applicable. Thereupon,
the Redemption Price of such Redemption Units shall be payable to the order of
the Person whose name appears on such certificate or certificates as the owner
thereof, and each surrendered certificate shall be cancelled. If less than all
the Units represented by any such certificate are redeemed, then a new
certificate shall be issued representing the unredeemed Units.
(c) Cessation of Rights.
From and after a Redemption Date, unless there has been a default in payment of
the Redemption Price, all distributions on the Redemption Units shall cease to
accrue, all rights of the holders of such Redemption Units (except the right to
receive the Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to such Redemption Units,
and such Redemption Units shall not thereafter be transferred on the Company’s
books or be deemed to be outstanding for any purpose whatsoever. If the funds of
the Company legally available for redemption of Class A Preferred Units
(including being in compliance with Lender Agreements) on the Redemption Date
are insufficient to redeem the total number of Redemption Units, then those
funds that are legally available shall be used to redeem the maximum possible
number of the Redemption Units ratably among the holders of the Redemption
Units. The Class A Preferred Units not redeemed shall remain outstanding and
entitled to all the rights and preferences provided herein. At any time
thereafter when additional funds of the Company are legally available for the
redemption of Class A Preferred Units (lawfully includes being in compliance
with Lender Agreements), such funds shall immediately be set aside for the
redemption of the balance of the Redemption Units that the Company has become
obligated to redeem on such Redemption Date.
(d) Deposit of Redemption
Price. Three days prior to a Redemption Date, the Company
shall deposit the Redemption Price of all Redemption Units with a bank or trust
company having aggregate capital and surplus in excess of $50,000,000 as a trust
fund for the benefit of the respective holders of such Redemption Units.
Simultaneously, the Company shall deposit irrevocable instructions and authority
to such bank or trust company to pay, on and after such Redemption Date, the
Redemption Price of the Redemption Units to the holders thereof upon surrender
of their certificates. The Company shall pay the administrative costs
for the trust fund.
6.18 No Other Right of Redemption
or Return of Capital. Except as otherwise provided in this
Agreement or the Act, no Unit Holder or transferee of any Unit Holder shall have
any right to demand or receive a return of his Capital Contribution or to
require the redemption of his Units.
6.19 Waiver of Dissenters
Rights. To the fullest extent permitted by the Act, each Unit
Holder hereby disclaims, waives and agrees not to assert: (i) any
dissenters’ or similar rights under the Act; (ii) any right to require partition
or appraisal of the Company or of any of its assets, or to cause the sale of any
Company Property; or (iii) any
30
right to
maintain any action for partition or to compel any sale with respect to such
Unit Holder’s Units, or with respect to any Company Property.
6.20 Loans. Any
Member or Affiliate may, with the consent of the Board, lend or advance money to
the Company, in which case the amount of any such loan or advance shall not be
treated as a contribution to the capital of the Company but rather shall be a
debt due from the Company, repayable out of the Company’s cash, and shall have
such other terms as approved by the Board. None of the Members or
their Affiliates shall be obligated to make any loan or advance to the
Company.
6.21 Actions Without a Meeting by
Members Any action required or permitted to be taken at a
meeting of the Members may be taken without a meeting, without notice and
without a vote, if a consent in writing, setting forth the action so taken, is
signed by Members required to approve such action. Such consent will
have the same force and effect as a vote of such Members. The signed
consent will be placed by the Secretary of the Company in the Company’s
corporate records.
ARTICLE
VII. ACCOUNTING, BOOKS AND RECORDS
7.1 Accounting, Books and
Records; Audit Rights. The books and records of the Company
shall be kept, and the financial position and the results of its operations
recorded, in accordance with GAAP. The books and records shall
reflect all Company transactions and shall be appropriate and adequate for the
Company’s business. The Company shall maintain at its principal place
of business: (i) a current list of the full name and last known
address of each Member and Assignee set forth in alphabetical order, together
with the Capital Contributions, Capital Account and Units of each Member and
Assignee; (ii) the full name and address of each Director; (iii) a
copy of the Articles and any and all amendments thereto, together with executed
copies of any powers of attorney pursuant to which the Articles or any
amendments thereto have been executed; (iv) copies of the Company’s federal,
state and local income tax and information returns and reports, if any, for the
six (6) most recent taxable years; (v) a copy of this Agreement and any and all
amendments hereto, together with executed copies of any powers of attorney
pursuant to which this Agreement or any amendments hereto have been executed;
and (vi) copies of the financial statements of the Company, if any, for the six
(6) most recent Fiscal Years. The Company shall use the accrual
method of accounting in the preparation of its financial reports and for tax
purposes and shall keep its books and records accordingly.
7.2 Delivery to Members and
Inspection. Any Member or such Member’s designated
representative shall have reasonable access during normal business hours to the
information and documents kept by the Company pursuant to Section 7.1 of this
Agreement. The rights granted to a Member pursuant to this Section
7.2 are expressly subject to compliance by such Member with the safety, security
and confidentiality procedures and guidelines of the Company, as such procedures
and guidelines may be amended from time to time. Upon the request of
any Member for purposes reasonably related to such Member’s interest as a
Member, the Board shall promptly deliver to the requesting Member,
at
31
the
expense of the requesting Member, a copy of the information required to be
maintained under Section 7.1 of this Agreement. Each Member has the
right, upon reasonable request for purposes reasonably related to such Member’s
interest as a Member and for proper purposes, to: (i) inspect and
copy during normal business hours any of the Company records described in
Section 7.1 of this Agreement; and (ii) obtain from the Board, promptly after
their becoming available, copies of the Company’s federal, state and local
income tax and information returns for each Fiscal Year. Each
Assignee shall have the right to information regarding the Company only to the
extent required by the Act.
7.3 Reports. The
Chief Financial Officer of the Company shall be responsible for causing the
preparation of financial reports of the Company and the coordination of
financial matters of the Company with the Company’s accountants. The
Company shall cause to be delivered to each Member financial reports, prepared,
in each case (other than with respect to Member’s Capital Accounts, which shall
be prepared in accordance with this Agreement) in accordance with GAAP
consistently applied. Delivery of the financial reports shall occur
as soon as practicable following the end of each Fiscal Year and the first three
fiscal quarters of each such Fiscal Year, and at such time as distributions are
made to the Unit Holders pursuant to Article X of this Agreement following the
occurrence of a Dissolution Event. The Company’s financial statements for each
Fiscal Year shall be audited and certified by the Company’s accountants, and in
each case setting forth in comparative form the corresponding figures for the
immediately preceding Fiscal Year end (in the case of the balance sheet) and the
two (2) immediately preceding Fiscal Years (in the case of the
statements). Public access to the financial statements through either
the Company’s website or the Securities and Exchange Commission’s website of the
Company’s filings shall constitute delivery pursuant to this Section
7.3.
7.4 Tax
Matters. The Board shall, without any further consent of the
Unit Holders being required (except as specifically required herein), make any
and all elections for federal, state, local and foreign tax purposes as the
Board shall determine appropriate and shall have the right and authority to
represent the Company and the Unit Holders before taxing authorities or courts
of competent jurisdiction in tax matters affecting the Company or the Unit
Holders in their capacities as Unit Holders, and to file any tax returns and
execute any agreements or other documents relating to or affecting such tax
matters, including agreements or other documents that bind the Unit Holders with
respect to such tax matters or otherwise affect the rights of the Company and
the Unit Holders. The Board shall designate a Person to be
specifically authorized to act as the “Tax Matters Member” under the Code and in
any similar capacity under state or local law; provided, however, that the Board
shall have the authority to designate, remove and replace the Tax Matters Member
who shall act as the tax matters partner within the meaning of and pursuant to
Regulations Sections 301.6231(a)(7)-1 and -2 or any similar provision under
state or local law. The Tax Matters Member shall receive no
compensation for its services. All third-party costs and expenses
incurred by the Tax Matters Member in performing its duties as such (including
legal and accounting fees and expenses) shall be borne by the
Company. Nothing herein shall be construed to restrict the Company
from engaging an accounting firm to assist the Tax Matters Member in discharging
its duties hereunder. Necessary tax information shall be delivered to
each Unit Holder as soon as practicable after the end of each Fiscal
Year.
32
7.5 Withholding. Each
Unit Holder hereby authorizes the Company to withhold from or pay on behalf of
or with respect to such Unit Holder any amount of federal, state, local or
foreign taxes that the Directors determine that the Company is required to
withhold or pay with respect to any amount distributable or allocable to such
Unit Holder pursuant to this Agreement, including, without limitation, any taxes
required to be withheld or paid by the Company pursuant to Code Section 1441,
Code Section 1442, Code Section 1445 or Code Section 1446. Any amount
paid on behalf of or with respect to a Unit Holder shall constitute a loan by
the Company to such Unit Holder, which loan shall be repaid by such Unit Holder
within fifteen (15) days after notice from the Company that such payment must be
made unless (i) the Company withholds such payment from a distribution that
would otherwise be made to the Unit Holder or (ii) the Board determines, in its
sole and absolute discretion, that such payment may be satisfied out of the
available funds of the Company that would, but for such payment, be distributed
to the Unit Holder. Each Unit Holder hereby unconditionally and
irrevocably grants to the Company a security interest in such Unit Holder’s
Units to secure such Unit Holder’s obligation to pay to the Company any amounts
owed to the Company pursuant to this Section 7.5. In the event that a
Unit Holder fails to pay any amounts owed to the Company when due, the Board
may, in its sole and absolute discretion, elect to make the payment to the
Company on behalf of such defaulting Unit Holder, and in such event shall be
deemed to have loaned such amount to such defaulting Unit Holder and shall
succeed to all rights and remedies of the Company as against such defaulting
Unit Holder (including, without limitation, the right to receive
distributions). Any amounts payable by a Unit Holder hereunder shall
bear interest at the prime rate as reported in The Wall Street Journal (but not
higher than the maximum lawful rate) from the date such amount is due (i.e., fifteen (15)
days after demand) until such amount is paid in full. Each Unit
Holder shall take such action as the Company or the Board shall request in order
to perfect or enforce the security interest created hereunder.
ARTICLE
VIII. AMENDMENTS
8.1 Amendments. Amendments
to this Agreement may be made upon an affirmative vote of two-thirds (2/3) of
the Board or upon an affirmative vote of two-thirds (2/3) of the Units
represented in person or proxy at a meeting called for such
purpose. Upon the modification or amendment of this Agreement, the
Board shall promptly execute such amendments or other documents as the Company
deems appropriate to reflect such amendments under Act or other applicable laws
of the State of Nebraska. In the event the Board materially modifies
or amends this Agreement pursuant to this section, the Board shall send notice
to the Members of the material modification or amendment within a reasonable
period of time after the effective date of such modification or
amendment.
ARTICLE
IX. TRANSFERS
9.1 General Restrictions.
The Directors shall not approve, and the Company shall not recognize for any
purpose, any purported Transfer of Units unless and until the Transfer
Restrictions, consisting of the provisions of this Article and the Unit Transfer
Policy, have been satisfied or the Board has by resolution specifically waived
any unsatisfied provision, condition or restriction. A Transfer of Units
approved by the Board that satisfies, in the sole discretion of the Board, the
provisions and conditions of the Transfer
33
Restrictions
(or if any unsatisfied condition is waived), shall be referred to in this
Agreement as a “Permitted Transfer.”
9.2 Not Binding Until Entered in
Company Books. A Transfer of Units is not binding on the Company without
the approval of the Board and direction by the Board to enter the Transfer in
the Unit Holder Register.
9.3 Pledge of Units
Allowed. Notwithstanding the Transfer Restrictions, a Unit Holder may
pledge, xxxxx x Xxxx on all or any portion of its Units as security for the
payment of debt, provided that a subsequent foreclosure or transfer to the
secured party in lieu of foreclosure or otherwise shall be considered a Transfer
and thereby subject to the terms of this Agreement.
9.4 Prohibited
Transfers. Any purported Transfer of Units that is not a
Permitted Transfer shall be null and void and of no force or effect whatsoever;
provided that,
if the Company is required by law to recognize a Transfer that is not a
Permitted Transfer (or if the Board, in its sole discretion, elect to recognize
a Transfer that is not a Permitted Transfer): (i) the transferee’s
rights shall be strictly limited to the transferor’s Membership Economic
Interests associated with such Units; and (ii) the Company may offset against
such Membership Economic Interests (without limiting any other legal or
equitable rights of the Company) any debts, obligations or liabilities for
damages that the transferor or transferee may have to the Company.
9.5 Indemnification. If
a Transfer or attempted Transfer of Units is not a Permitted Transfer, the Unit
Holder and the prospective transferee engaging or attempting to engage in the
Transfer is liable to and shall indemnify and hold harmless the Company and the
other Unit Holders from all cost, liability, and damage that the Company and any
of the other Unit Holders may incur (including incremental tax liabilities,
lawyers’ fees and expenses) as a result of the Transfer or attempted Transfer
and efforts to prohibit the transfer or enforce the indemnity.
9.6 Transferee Subject to
Transfer Restrictions. Units held by a transferee are subject to the
Transfer Restrictions subsequent to a transfer permitted under this
Article.
9.7 Unit Transfer Policy.
The Unit Transfer Policy shall be developed by the Board and impose conditions
and restrictions on Transfers to: (1) preserve the tax status of the Company;
(2) comply with state or federal securities laws; (3) require appropriate
information from the transferor and transferee regarding the transfer; (4)
require appropriate representations from the transferor and/or transferee
regarding the Transfer; and (5) allow the Board to determine whether or not the
transferee is a competitor of the Company or the Company’s Affiliates. The Unit
Transfer Policy also shall state the permitted method and conventions that shall
be used in allocating each item of Profits, and Losses and all other items
attributable between the transferor and the transferee. The Unit Transfer Policy
is
34
attached
as Exhibit “C,” and incorporated as part of this Agreement. The Unit Transfer
Policy may be amended by the Board without Member approval.
9.8 No Dissolution or
Termination. The Transfer of Units pursuant to the terms of
this Article IX shall not dissolve or terminate the Company. No
Member shall have the right to have the Company dissolved or to have such
Member’s Capital Contribution returned except as provided in this
Agreement.
9.9 Rights of Unadmitted
Assignees. A Person who acquires Units but who is not admitted
as a Substitute Member pursuant to Section 9.10 of this Agreement shall be
entitled only to the Membership Economic Interests with respect to such Units in
accordance with this Agreement, and shall not be entitled to the Membership
Voting Interests with respect to such Units. In addition, such Person
shall have no right to any information or accounting of the affairs of the
Company except as affirmatively required by the Act, shall not be entitled to
inspect the books or records of the Company, and shall not have any of the other
rights of a Member under the Act or this Agreement.
9.10 Admission of Substitute
Members. A transferee of Units, pursuant to a Permitted
Transfer, shall be admitted as a substitute Member provided that such
transferee has complied with the following provisions:
(a) The
transferee shall, by written instrument in form and substance reasonably
satisfactory to the Board, agree to be bound by all of the terms and provisions
of this Agreement, and assume the obligations of the transferor Member hereunder
with respect to the Transferred Units.
(b) The
transferee shall pay for or reimburse the Company for all reasonable legal,
filing and publication costs incurred in connection with the admission of the
transferee as a Member.
(c) Except
in the case of a Transfer involuntarily by operation of law, if required by the
Board, the transferee shall deliver to the Company evidence of his/her/its
authority to become a Member.
(d) The
transferee and transferor shall each execute and deliver such other instruments
as the Board reasonably deems necessary or appropriate in connection with such
Transfer.
ARTICLE
X. DISSOLUTION AND WINDING UP
10.1 Dissolution. The
Company shall dissolve and shall commence winding up and liquidating upon the
first to occur of any of the following (each a “Dissolution
Event”): (i) the affirmative vote of the Members as required by
Section 5.6(b) to dissolve, wind up and liquidate the Company; or (ii) the entry
of a decree of judicial dissolution
35
pursuant
to the Act. The Members hereby agree that, notwithstanding any
provision of the Act, the Company shall not dissolve prior to the occurrence of
a Dissolution Event. Unless otherwise agreed to by the Members
holding sixty-six and two-thirds percent (66 2/3%) of the Membership Voting
Interests, a merger or acquisition involving the Company in which the Unit
Holders do not own a majority of the outstanding equity interest in the
surviving entity or sale of substantially all of the assets of the Company shall
be deemed a “Dissolution Event” for purposes of the rights of Class A Unit
Holders to receive payment pursuant to Sections 10.2(b) and (c) and such an
occurrence shall trigger the Company’s obligations to pay the Class A Unit
Holders the amounts set forth in Sections 10.2(b) and (c) in exchange for the
Class A Preferred Units.
10.2 Winding
Up. Upon the occurrence of a Dissolution Event, the Company
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets and satisfying the claims of its creditors and
Unit Holders; and no Unit Holder shall take any action that is inconsistent
with, or not necessary to or appropriate for, winding up of the Company’s
business and affairs. Notwithstanding any provision in this Agreement
to the contrary, the Unit Holders acknowledge and agree that all covenants and
obligations set forth this Agreement shall continue to be fully binding upon the
Unit Holders until such time as the Property has been distributed pursuant to
this Section 10.2 and any articles of dissolution or similar document have been
filed pursuant to the Act. The Liquidator shall be responsible for
overseeing the prompt and orderly winding up and dissolution of the
Company. The Liquidator shall take full account of the Company’s
liabilities and Property and shall cause the Property or the proceeds from the
sale thereof (as determined pursuant to Section 10.8 of this Agreement), to the
extent sufficient therefor, to be applied and distributed, to the maximum extent
permitted by law, in the following order:
(a) First,
to creditors (including Unit Holders and Directors who are creditors, to the
extent otherwise permitted by law) in satisfaction of all of the Company’s Debts
and other liabilities (whether by payment or the making of reasonable provision
for payment thereof), other than liabilities for which reasonable provision for
payment has been made;
(b) Second,
to the Class A Unit Holders to the extent of and in proportion to the amount for
each such Class A Unit Holder which, when combined with the aggregate prior
distributions to such Class A Unit Holder made pursuant to Section 4.1(a) (to
the extent such distributions are treated as prepayments of distributions
pursuant to Section 4.1(b)) and Section 4.1(b) of this Agreement, equals such
Class A Unit Holder’s aggregate accrued and unpaid Preferred Return through the
date of such liquidation;
(c) Third,
to the Class A Unit Holders an amount equal to the Class A Unit Holders’
aggregate Adjusted Capital Contributions in proportion to the Adjusted Capital
Contribution of each Class A Unit Holder. If the Company’s assets and
funds are insufficient to permit the payment to the Class A Unit Holders of the
full amounts set forth in Sections 10.2(b) and 10.2(c), then the entire assets
and funds of the Company legally available for distribution after payment of
creditors pursuant to Section 10.2(a) shall be distributed ratably among the
holders of Class A Preferred Units in proportion to the amounts that each Class
A Unit Holder would have
36
received
if the Company’s assets and funds were sufficient to fully satisfy all amounts
payable with respect to the Class A Preferred Units pursuant to Sections 10.2(b)
and 10.2(c);
(d) Fourth,
the balance, if any, to the Unit Holders in accordance with the positive balance
in their Capital Accounts calculated after making the required adjustments set
forth in clause (ii)(C) of the definition of Gross Asset Value in Section 1.10
of this Agreement, after giving effect to all contributions, distributions and
allocations for all periods; and
(e) Thereafter,
to the Unit Holders pro rata in
proportion to each such Unit Holder’s Percentage Interest.
10.3 Compliance with Certain
Requirements of Regulations; Deficit Capital Accounts. In the
event the Company is “liquidated” within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), distributions shall be made pursuant to this Article X to
the Unit Holders who have positive Capital Accounts in compliance with
Regulations Section 1.704-1(b)(2)(ii)(b)(2). If any Unit Holder has a
deficit balance in such Member’s Capital Account (after giving effect to all
contributions, distributions and allocations for all Fiscal Years, including the
Fiscal Year during which such liquidation occurs), such Unit Holder shall have
no obligation to make any contribution to the capital of the Company with
respect to such deficit, and such deficit shall not be considered a debt owed to
the Company or to any other Person for any purpose whatsoever. In the
discretion of the Liquidator, a pro rata portion of the distributions that would
otherwise be made to the Unit Holders pursuant to this Article X may
be: (i) distributed to a trust established for the benefit of the
Unit Holders for the purposes of liquidating Company assets, collecting amounts
owed to the Company, and paying any contingent or unforeseen liabilities or
obligations of the Company, in which case the assets of any such trust shall be
distributed to the Unit Holders from time to time, in the reasonable discretion
of the Liquidator, in the same proportions as the amount distributed to such
trust by the Company would otherwise have been distributed to the Unit Holders
pursuant to Section 10.2 of this Agreement; or (b) withheld to provide a
reasonable reserve for Company liabilities (contingent or otherwise) and to
reflect the unrealized portion of any installment obligations owed to the
Company, provided that such withheld amounts shall be distributed to the Unit
Holders as soon as practicable.
10.4 Deemed Distribution and
Recontribution. Notwithstanding any other provision of this
Article X (except Section 10.4(a)), in the event the Company is liquidated
within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no
Dissolution Event has occurred, the Property shall not be liquidated, the
Company’s Debts and other liabilities shall not be paid or discharged, and the
Company’s affairs shall not be wound up.
10.5 Rights of Unit
Holders. Except as otherwise provided in this Agreement, each
Unit Holder shall look solely to the Property of the Company for the return of
such Unit Holder’s Capital Contribution and shall have no right or power to
demand or receive Property other than cash from the Company. If the
assets of the Company remaining after payment or discharge of the debts or
liabilities of the Company are insufficient to
37
return
such Capital Contribution, the Unit Holders shall have no recourse against the
Company or any other Unit Holder or Directors.
10.6 Allocations During Period of
Liquidation. During the period commencing on the first day of
the Fiscal Year during which a Dissolution Event occurs and ending on the date
on which all of the assets of the Company have been distributed to the Unit
Holders pursuant to Section 10.2 of this Agreement (the “Liquidation Period”),
the Unit Holders shall continue to share Profits, Losses, gain, loss and other
items of Company income, gain, loss or deduction in the manner provided in
Article III of this Agreement.
10.7 Character of Liquidating
Distributions. All payments made in liquidation of the
interest of a Unit Holder shall be made in exchange for the interest of such
Unit Holder in Property pursuant to Section 736(b)(1) of the Code, including the
interest of such Unit Holder in Company goodwill.
10.8 The
Liquidator. The “Liquidator” shall mean a Person appointed by
the Board to oversee the liquidation of the Company. Upon the consent
of a majority of the Membership Voting Interests, the Liquidator may be the
Board. The Company is authorized to pay a reasonable fee to the
Liquidator for its services performed pursuant to this Article X and to
reimburse the Liquidator for its reasonable costs and expenses incurred in
performing those services. The Company shall indemnify, save
harmless, and pay all judgments and claims against such Liquidator and any
officers, directors, agents and employees of the Liquidator relating to any
liability or damage incurred by reason of any act performed or omitted to be
performed by the Liquidator, or any officers, directors, agents or employees of
the Liquidator in connection with the liquidation of the Company, including
reasonable attorneys’ fees incurred in connection with the defense of any action
based on any such act or omission, which attorneys’ fees may be paid as
incurred, except to the extent such liability or damage is caused by fraud,
intentional misconduct, or a knowing violation of the laws which was material to
the cause of action.
10.9 Forms of Liquidating
Distributions. For purposes of making distributions required
by Section 10.2 of this Agreement, the Liquidator may determine whether to
distribute all or any portion of the Property in-kind or to sell all or any
portion of the Property and distribute the proceeds therefrom.
ARTICLE
XI. MISCELLANEOUS
11.1 Notices. Any
notice, payment, demand, or communication required or permitted to be given by
any provision of this Agreement shall be in writing and shall be deemed to have
been delivered, given, and received for all purposes (i) if delivered personally
to the Person or to an officer of the Person to whom the same is directed, or
(ii) when the same is sent, if sent by regular or certified mail, postage
prepaid, or by facsimile, if such facsimile is followed by a hard copy of the
facsimile communication sent promptly thereafter by regular or certified mail,
postage prepaid, addressed as follows, or to such other address as such Person
may from time to time specify by notice to the Company: (a) If to the
Company, to the address
38
determined
pursuant to Section 1.4 of this Agreement; (b) If to the Board, to the address
set forth on record with the Company or as otherwise set forth in a
communications policy established by the Board; (c) If to a Unit Holder, either
to the address set forth in the Unit Holder Register or to such other address
that has been provided in writing to the Company.
11.2 Binding
Effect. Except as otherwise provided in this Agreement, every
covenant, term and provision of this Agreement shall be binding upon, and shall
inure to the benefit of, the Company and the Members, and their respective
heirs, representatives, successors, transferees, and assigns.
11.3 Construction. Every
covenant, term, and provision of this Agreement shall be construed simply
according to its fair meaning and not strictly for or against the Company or any
Member.
11.4 Headings. Article,
Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision of this
Agreement.
11.5 Severability. Except
as otherwise provided in the succeeding sentence, every provision of this
Agreement is intended to be severable, and if any term or provision of this
Agreement is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this
Agreement. The preceding sentence of this Section 11.5 shall be of no
force or effect if the consequence of enforcing the remainder of this Agreement
without such illegal or invalid term or provision would be to cause any Member
to lose the material benefit of its economic bargain.
11.6 Incorporation By
Reference. Every recital, exhibit, schedule and appendix
attached to this Agreement and referred to herein is hereby incorporated into
this Agreement by reference unless this Agreement expressly provides
otherwise.
11.7 Variation of
Terms. All terms and variations thereof used in this Agreement
shall be deemed to refer to masculine, feminine, or neuter, singular or plural,
as the context may require.
11.8 Governing
Law. The laws of the State of Nebraska shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties arising hereunder.
11.9 Waiver of Jury
Trial. Each of the Members irrevocably waives, to the fullest
extent permitted by law, all rights to trial by jury in any action, proceeding
or counterclaim arising out of or relating to this Agreement or the business and
affairs of the Company.
11.10 Counterpart
Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had
signed
39
the same
document. All counterparts shall be construed together and shall
constitute one agreement.
11.11 Specific
Performance. Each Member acknowledges and agrees that the
Company and the other Members would be irreparably damaged if any of the
provisions of this Agreement are not performed in accordance with their specific
terms, and that monetary damages would not provide an adequate remedy in such
event. Accordingly, it is agreed that, in addition to any other
remedy to which the Company and the non-breaching Members may be entitled
hereunder, at law or in equity, the Company and the non-breaching Members shall
be entitled to injunctive relief to prevent breaches of the provisions of this
Agreement and to specifically to enforce the terms and provisions of this
Agreement.
11.12 No Third Party
Rights. None of the provisions contained in this Agreement
shall be deemed to be for the benefit of or enforceable by any third parties,
including without limitation, any creditors of any Member or the
Company.
DULY ADOPTED by the Board
pursuant to Section 8.1 of the Second Amended and Restated Operating Agreement,
as of this 4th day of
March, 2009.
I,
Xxxxxxx Xxxxx, Chairman of the Board of Directors of NEDAK Ethanol, LLC, hereby
certify that the Third Amended and Restated Operating Agreement of NEDAK
Ethanol, LLC, was adopted at a meeting of the Board of Directors duly called,
and for which there was a quorum present, on March 4, 2009.
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, Chairman of the Board
40
EXHIBIT
“A”
List
of Members and Unit Holders
Name and Address of Members and Unit
Holders
|
Common Units
|
Class A Preferred Units
|
TOTAL:
|
1
EXHIBIT
“B”
MEMBER
SIGNATURE PAGE
ADDENDUM
TO THE
THIRD
AMENDED AND RESTATED OPERATING AGREEMENT
The undersigned does hereby warrant,
represent, covenant and agree that: (i) the undersigned, as a
condition to becoming a Member in NEDAK Ethanol, LLC, has received a copy of the
Third Amended and Restated Operating Agreement dated March 4, 2009, and, if
applicable, all amendments and modifications thereto; (ii) the undersigned shall
be subject to and comply with all terms and conditions of such Third Amended and
Restated Operating Agreement in all respects, as if the undersigned had executed
said Third Amended and Restated Operating Agreement on the original date
thereof; and (iii) the undersigned is and shall be bound by all of the
provisions of said Third Amended and Restated Operating Agreement from and after
the date of execution of this Addendum.
Individuals: | Entities: | ||||
|
|
|
|||
Name
of Individual Member (Please Print)
|
Name of Entity (Please Print) | ||||
|
|
|
|||
Signature
of Individual
|
Print Name and Title of Officer | ||||
|
|
|
|||
Name of Joint Individual Member (Please
Print)
|
Signature of Officer | ||||
Signature of Joint Individual Member | |||||
Agreed
to and Accepted on Behalf of the
Company
and its Members:
|
|||||
NEDAK ETHANOL, LLC | |||||
By: | |||||
Its: |
2
Exhibit
C
Unit
Transfer Policy
Effective
March 4, 2009
1. Introduction. This
Unit Transfer Policy (“Policy”) of NEDAK
Ethanol, LLC (the “Company”) is adopted
on this 20th day of
February, 2008, by the Board of Directors of the Company pursuant to Section 9.7
of the Company’s Third Amended and Restated Operating Agreement dated March 4,
2009 (the “Operating
Agreement”). All terms not otherwise defined herein shall have
the meaning ascribed to them in the Operating Agreement.
2. Procedures. Unit
Holders wishing to Transfer one or more Units must do the
following:
● Send a
written request to the Company which contains all of the following:
|
(a)
|
The
name, address, phone number or other convenient method of communications,
of the Member(s1) who wishes to
Transfer.
|
|
(b)
|
The
name, address, phone number or other convenient method of communications,
of the proposed transferee(s2).
|
|
(c)
|
A
fully completed and executed Transfer and Assignment of Units agreement
(“Assignment”) in
the form attached to this Policy as Attachment A.3
|
|
(d)
|
At
the discretion of the Company, it reserves the right to request a
non-refundable check in the amount determined by Company made out to
“NEDAK Ethanol, LLC” to cover the costs incurred by the Company respecting
the request, which may include administrative expenses and professional
fees.4
|
The
foregoing should be sent to the Company at the following address:
NEDAK
Ethanol, LLC
Attention:
Transfers
00000
Xxxxxxxxx Xxxx
X.X. Xxx
000
Xxxxxxxx,
Xxxxxxxx 00000
● The
Company may request additional information respecting the request, including an
opinion of the transferor’s counsel, as discussed below.
1 In the
case of a jointly owned Unit, all joint owners must submit such
information.
2 In the
case of a Unit which is to be Transferred as joint ownership, such information
is to be submitted for all such proposed transferees.
3 The
Board reserves the right to require the parties to execute other appropriate
instruments or agreements respecting the Transfer, as the circumstances dictate,
in the Board’s determination.
4 The
Board reserves the right to require the transferor Member to reimburse the
Company for any additional reasonable costs incurred in connection with
responding to and effecting a requested Transfer.
3
● All
Transfer requests will be aggregated and submitted for Board action once every
three months.
● The
transferor Member will be notified whether the Board has approved the request
following the Board meeting in which the request is considered. In
the event a Transfer request is denied, the materials submitted by the Member
will be returned, excepting the check.
● If the
request for Transfer is granted by the Board, the Transfer will become effective
as to the transfer of ownership and as to allocation matters as provided in this
Policy.
3. General
Limitations. The Board has discretion to approve any requested
Transfer. In addition to the information required elsewhere in this
Policy, the Board, in connection with its approval of a Transfer, may require
the transferor Member to provide an opinion of counsel reasonably acceptable to
the Board that: (i) the proposed Transfer, alone or when combined with other
transactions, would not result in: (A) a termination of the Company within the
meaning of Code Section 708 (or, if so, that no material adverse tax
consequences would result to the Company or the Members by reason of such
termination), (B) the Company’s losing its status as a partnership for income
tax purposes, or (C) the taxation of the Company as a publicly-traded
partnership for income tax purposes; and (ii) the Unit(s) may be Transferred
without registration under any applicable Securities Act.
4. Publicly
Traded Partnership Limitations. Generally speaking, the Code
provides that an organization which is a publicly traded partnership (“PTP”) will be treated
as a corporation for tax purposes. Therefore, the Board will not
permit a Transfer if the Transfer would cause the Company to be treated as a
PTP. The Code and the Regulations provide that if a specified number
of Units are Transferred in any Fiscal Year, the Company will be treated as a
PTP (the “PTP
Limitations”). The Code and the Regulations, however, do
provide that certain types of Transfers which are not counted toward the PTP
Limitations. Those exemptions are generally the following
(collectively, the “Exemptions”):
● A
Transfer in which the basis of the Units in the hands of the transferee is
determined, in whole or in part, by reference to its basis in the hands of the
transferor or is determined under Code Section 732.
● A
Transfer at death, including transfers from an estate or testamentary
trust.
● A
Transfer between members of a family, with family defined to include brothers
and sisters, whether by the whole or half blood, spouse, ancestors (parents and
grandparents only), and lineal descendants. Note that uncles, aunts
and relatives through marriage are not included in this definition of
“family.” Therefore, a proposed Transfer where the transferees are
joint tenants will not fit within this Exemption, unless both joint tenants are
related by family as defined in the Regulation.
● A
Transfer involving the issuance of Units by (or on behalf of) the Company in
exchange for cash, property, or services.
● A
Transfer involving distributions from a retirement plan qualified under Code
Section 401(a) or an individual retirement account.
● One or
more Transfers by a Member and any related persons (within the meaning of Code
Sections 267(b) or 707(b)(1)) during any thirty calendar day period of Units
aggregating more than 2 % of the total outstanding Units.
4
● A
Transfer pursuant to a redemption or repurchase agreement exercisable only on
(i) the Member’s death, disability or mental incompetence, or (ii) the
retirement or termination of the performance of services by an individual who
had actively participated in the Company’s management or performed services on a
full-time basis for the Company.
● A
Transfer pursuant to a closed end redemption plan (a plan in which (i) the
Company only issues Units with the initial offering, and (ii) no Member or
person related to any Member provides contemporaneous opportunities to acquire
interests in similar or related partnerships which represent substantially
identical investments).
● A
Transfer by one or more Members of Units representing in aggregate 50 percent or
more of the total Units in one transaction or a series of related
transactions.
Generally
speaking, the Board will not permit a Transfer if it does not meet one of the
Exemptions. Since the PTP Limitations apply on a Fiscal Year basis,
there may be instances where the Board may permit a Transfer even if it does not
meet one of the Exemptions, to the extent the Company otherwise falls within the
PTP Limitations for that Fiscal Year. The Board reserves the right to
make its own determination as to whether (i) a proposed Transfer meets an
Exemption, (ii) the Company will stay within the PTP Limitations for a Fiscal
Year, and (iii) it should not permit a Transfer in any event.
5. Conventions
Respecting Unit Transfers.
● Ownership: For
purposes of effecting the transfer of ownership in a Unit, any Transfer of a
Unit shall be deemed effective (the “Transfer Date”) as of
the date: (i) which the Transfer occurs (as reflected by the form of
Assignment), (ii) the transferee’s name and address and the nature and extent of
the Transfer are reflected in the records of the Company, including the Unit
Holder Register, and (iii) all other requirements imposed by the Board
respecting such Transfer have been satisfied.
● Allocations:
For purposes of the allocation of items of Company profit, gain, loss,
deductions and distributions (collectively, along with all Company-related
allocations under the Operating Agreement, the “Allocations”), the
effective date of a Transfer will be determined by reference to quarterly (on
the basis of the Company’s Fiscal Year) interim periods (“Interim
Periods”). On the first day of an Interim Period immediately
succeeding the Interim Period in which a Transfer Date occurs (the “Allocation Date”),
the Allocations will apply to such Unit(s) Transferred as follows: (i) on the
Allocation Date, all Allocations respecting the Transferred Unit(s) applicable
on or after the Allocation Date will apply to the transferee, and (ii) prior to
the Allocation Date, regardless of the Transfer Date, all Allocations respecting
the transferred Unit(s) will be allocated or distributed, as applicable, to the
transferor.
5
Attachment
A to Unit Transfer Policy
TRANSFER,
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP UNITS
THIS
TRANSFER AND ASSIGNMENT OF MEMBERSHIP UNITS is made and entered into as of the
date set forth on the signature page hereto by and among NEDAK Ethanol, LLC, a
Nebraska limited liability company (the “Company”), the party
set forth on the signature page hereto as the “Assignor” (“Assignor”), and the
party set forth on the signature page hereto as the “Assignee” (“Assignee,” together
with Assignor, the “Transfer
Parties”). Unless otherwise provided herein, all capitalized
terms shall have the meanings ascribed to them in the Third Amended and Restated
Operating Agreement of the Company dated March 4, 2009 (the “Operating
Agreement”).
* *
*
FOR GOOD
AND VALUABLE CONSIDERATION paid by Assignee to Assignor, the receipt and
sufficiency of which are hereby acknowledged by the Transfer Parties, Assignor
hereby sells, transfers and assigns to Assignee, all of Assignor’s right, title
and interest in and to that number of membership units (the “Assigned Membership
Units”) of the Company set forth on the signature page hereto and
represented by the certificates referenced on the signature page
hereto.
The
Assigned Membership Units so transferred shall include, without limitation, the
following:
(a)
|
That
portion of Assignor’s capital account reflected on the books of the
Company that is attributable to the Assigned Membership
Units,
|
(b)
|
Assignor’s
right, title and interest in and to the assets of the Company and the
Profits, Losses and Distributions, if any, of the Company attributable to
the Assigned Membership Units; and
|
(c)
|
The
right to vote as a Member of the Company as provided in the Operating
Agreement with attributable to the Assigned Membership
Units.
|
Hereafter,
Assignee shall be entitled to exercise all of the rights, powers and privileges,
and shall be obligated to perform all of the duties and obligations, of Assignor
which may presently or hereafter exist with respect to the Assigned Membership
Units. This Assignment of Membership Units shall be binding on and
inure to the benefit of the successors, legal representatives, and assigns of
Assignee and Assignor forever.
Assignee
hereby acknowledges, represents and warrants to, and agrees with, the Assignor
and the Company as follows:
|
(a)
|
Assignee
has reached the age of majority in the state in which Assignee
resides;
|
6
(b) Assignee is not relying on any information provided
by the Company to the Assignee with respect to Assignee’s acquisition of the
Assigned Membership Units;
|
(c)
|
Assignee
acknowledges that the Assigned Membership Units are subject to various
restrictions on transfer set forth in the Operating Agreement and agrees
that all such restrictions shall apply to the Assigned Membership
Units.
|
|
(d)
|
Within
five days after receipt of a request from the Company, Assignee hereby
agrees to provide such information and to execute and deliver such
documents as may reasonably be necessary to comply with any and all
provisions of the Operating Agreement and laws, regulations and ordinances
to which the Company is subject.
|
|
(e)
|
The
foregoing representations, warranties and agreements, together with all
other representations and warranties made or given by Assignee to the
Assignor and the Company in any other written statement or document
delivered in connection with the transactions contemplated hereby, shall
be true and correct in all respects on and as of the date of the closing
of the assignment of the Assigned Membership Units as if made on and as of
such date and shall survive such
date.
|
Assignor
hereby covenants that it will, at any time, and from time to time, upon written
request therefor, execute and deliver to Assignee any new or confirmatory
instruments, and do and perform any and all other acts, which Assignee may
reasonably request in order to fully assign, transfer and vest the Assigned
Membership Units in Assignee.
Assignee
hereby accepts the foregoing assignment, and by signing this document expressly
agrees to be bound by all of the terms, covenants, conditions and obligations
imposed on or applicable to the Assigned Membership Units, agrees to be bound by
the terms and conditions set forth in the Operating Agreement, and assumes and
agrees to pay and perform any and all duties, obligations and liabilities which
may hereafter arise with respect to the Assigned Membership Units.
ASSIGNEE
ACKNOWLEDGES AND UNDERSTANDS THAT THE ASSIGNMENT OF THE ASSIGNED MEMBERSHIP
UNITS CONTEMPLATED IN THIS TRANSFER AND ASSIGNMENT OF MEMBERSHIP UNITS WILL BE
OF NO FORCE OR EFFECT UNTIL SUCH TIME AS THE COMPANY HAS DETERMINED, IN ITS SOLE
AND ABSOLUTE DISCRETION, THAT: (a) SUCH TRANSFER WOULD NOT (i) RESULT IN THE
TERMINATION OF THE COMPANY UNDER SECTION 708 OF THE INTERNAL REVENUE CODE, (ii)
CAUSE THE COMPANY TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION FOR
TAX PURPOSES, OR (iii) CAUSE THE COMPANY TO BE A “PUBLICLY TRADED PARTNERSHIP”
UNDER THE INTERNAL REVENUE CODE; (b) THE ASSIGNEE HAS PAID THE COMPANY ANY AND
ALL COSTS AND EXPENSES INCURRED BY THE COMPANY IN CONNECTION WITH SUCH TRANSFER;
AND (c) THE ASSIGNEE HAS COMPLIED WITH ALL OTHER REQUIREMENTS NECESSARY TO
CREATE AN EFFECTIVE TRANSFER OF THE ASSIGNED MEMBERSHIP UNITS.
7
Upon the
satisfaction of all of the conditions set forth in this Transfer and Assignment
of Membership Units and the Operating Agreement, and upon the Company’s
acceptance of the transfer pursuant to the immediately preceding paragraph, the
Company will issue a new certificate to Assignee representing the Assigned
Membership Units, and will make a proper notation of such transfer in the
Company’s records.
This
Assignment of Membership Units may be executed in multiple counterparts, each of
which shall be deemed an original instrument, but all of which together
constitute one and the same instrument.
[Remainder
of page intentionally left blank]
8
INDIVIDUAL
ASSIGNOR SIGNATURE PAGE
Dated
this ____ day of ______________, 20___.
ASSIGNOR:
Signature:
________________________________________________
Printed
Name: _____________________________________________
Social
Security Number or other identification acceptable to
Company:
_____________________________________
Number of
Assigned Membership Units:
Class of
Assigned Membership Units (circle one):
Class
A Preferred
Units Common
Units
Certificate
No(s). of Assigned Membership Units: ___________________
INDIVIDUAL
ASSIGNOR ACKNOWLEDGMENT:
STATE OF
_________ )
ss.
COUNTY OF
_________
)
The
foregoing instrument was acknowledged before me this ____ day of ________, by
_________________________.
________________________________________
Notary
Public
My
Commission Expires:
9
ENTITY
ASSIGNOR SIGNATURE PAGE
Dated
this ____ day of ______________, 20___.
ASSIGNOR:
_______________________________________________
(Assignor
name)
By: ____________________________________________
Name: __________________________________________
Federal
EIN or other identification acceptable to Company:
_____________________________________
Number of
Assigned Membership Units:
Class of
Assigned Membership Units (circle one):
Class
A Preferred
Units Common
Units
Certificate
No(s). of Assigned Membership Units:
ENTITY
ACKNOWLEDGMENT
State of
____________________)
County of
__________________) ss.
On this
_____ day of ______________, 200__ before me ___________ the undersigned
officer, personally appeared ________________ known personally to me to be the
________________ of the above named __________________________ and acknowledged
that he/she, as an officer being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
_____________________ by himself/herself as the _________________ of such
________________________-.
IN
WITNESS WHEREOF I have hereunto set my hand and official seal.
__________________________________________
Notary
Public/Commissioner of Oath
My
Commission Expires_________________
10
INDIVIDUAL
ASSIGNEE SIGNATURE PAGE
ASSIGNEE:
Signature:________________________________________________
Printed
Name: ____________________________________________
Social
Security Number or other identification acceptable to
Company:
_____________________________________
INDIVIDUAL
ASSIGNEE ACKNOWLEDGMENT:
STATE OF
_________ )
)
ss.
COUNTY OF
_________ )
The
foregoing instrument was acknowledged before me this ____ day of _____________,
by _________________________.
________________________________________
Notary
Public
My
Commission Expires:
___________________________________
11
ENTITY
ASSIGNEE SIGNATURE PAGE
Dated
this ____ day of ______________, 20___.
ASSIGNEE:
_______________________________________________
(Assignee
name)
By: _____________________________________________
Name: ___________________________________________
Federal
EIN or other identification acceptable to
Company:
_____________________________________
Number of
Assigned Membership Units:
Class of
Assigned Membership Units (circle one):
Class
A Preferred
Units Common
Units
Certificate
No(s). of Assigned Membership Units:
ENTITY
ACKNOWLEDGMENT
State of
____________________)
County of
__________________) ss.
On this
_____ day of ______________, 200__ before me ___________ the undersigned
officer, personally appeared ________________ known personally to me to be the
________________ of the above named __________________________ and acknowledged
that he/she, as an officer being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
_____________________ by himself/herself as the _________________ of such
________________________-.
IN
WITNESS WHEREOF I have hereunto set my hand and official seal.
__________________________________________
Notary
Public/Commissioner of Oath
My
Commission Expires_________________
12
Consent
to the Transfer and Assignment of Membership Units:
THE COMPANY:
NEDAK
Ethanol, LLC,
a
Nebraska limited liability company
Signature:________________________________________
Printed
Name:_____________________________________
Title:
___________________________________________
Date:
___________________________________________
13