OPERATING AGREEMENT
OF
TETON FORMATION L.L.C.
AN IOWA LIMITED LIABILITY COMPANY
OPERATING AGREEMENT of Teton Formation L.L.C., an Iowa limited
liability company (the "COMPANY"), dated as of October 14, 1999 by and among the
persons and entities listed on EXHIBIT A hereto (the "MEMBERS").
W I T N E S S E T H:
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WHEREAS, the Members desire to form a limited liability company
pursuant to the provisions of the Limited Liability Company Act of the State of
Iowa, as amended from time to time (the "ACT");
WHEREAS, the Members hereby constitute themselves a limited liability
company for the purposes and on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
INTRODUCTORY PROVISIONS
SECTION 1.1. CERTAIN DEFINITIONS. As used herein:
"ACT" shall have the meaning specified in the recitals hereto.
"AFFILIATE" shall mean, with respect to any Person, any other Person
who controls, is controlled by or is under common control with such Person.
"ARTICLES" shall mean the Articles of Organization of the Company as
filed with the Secretary of State of Iowa, as they shall be amended from time to
time.
"BOOK VALUE" shall have the meaning specified in SECTION 2.2.
"CAPITAL ACCOUNT" shall have the meaning specified in SECTION 4.1.
"CAPITAL CONTRIBUTION" shall mean a contribution by a Member to the
capital of the Company pursuant to this Agreement.
"CONFIDENTIALITY AGREEMENT" shall mean that certain Confidentiality
Agreement, dated as of October 1, 1999, by and between Xxxxx X. Xxxxx and
MidAmerican.
"CODE" shall mean the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code shall include a reference to any amendatory
or successor provision thereto.
"CONTRIBUTION PERCENTAGE" shall mean the percentage that is equal to
the Capital Contribution made by a Member expressed as a percentage of all the
Capital Contributions made by the Members, or such percentages as specified in
EXHIBIT A hereto, as such Exhibit may be amended from time to time.
"DISSOLUTION EVENT" shall have the meaning specified in SECTION 7.1.
"EXPENSES" shall have the meaning specified in SECTION 2.1.
"FISCAL YEAR" shall have the meaning specified in SECTION 4.4.
"INDEMNIFIED PERSONS" shall have the meaning specified in SECTION 3.3.
"INTEREST" shall mean the proportionate interest of a Member in the
Company based on such Member's Capital Account relative to the Capital Accounts
of all Members.
"MANAGING MEMBER" shall mean a Member of the Company who is also the
manager of the Company which shall initially be Xxxxx X. Xxxxx, and when Xxxxx
X. Xxxxx is no longer the Managing Member, a successor appointed by a
Majority-in-Interest of the Members.
"MAJORITY-IN-INTEREST OF THE MEMBERS" shall mean any one or more
Members having more than fifty percent (50%) in the aggregate of the Interests
of all Members.
"MEMBER EXPENSES" shall mean personal expenses incurred by the Members
in connection with the formation of the Company or the consummation of the
MidAmerican Merger.
"MERGER AGREEMENT" shall mean the merger agreement to be entered into
among MidAmerican, the Company and Merger Sub relating to the MidAmerican
Merger.
"MIDAMERICAN" shall mean MidAmerican Energy Holdings Company.
"MIDAMERICAN MERGER" shall have the meaning specified in SECTION 1.4.
"MERGER SUB" shall mean Teton Acquisition Corp., an Iowa corporation
and a wholly owned subsidiary of the Company.
"NET PROFITS" and "NET LOSSES" shall mean the income and loss of the
Company as determined in accordance with the accounting methods followed by the
Company for
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Federal income tax purposes including income exempt from tax and described in
Code Section 705(a)(1)(B), treating as deductions items of expenditure described
in, or under Treasury Regulations deemed described in, Code Section 705(a)(2)(B)
and treating as an item of gain (or loss) the excess (deficit), if any, of the
fair market value of distributed property over (under) its Book Value.
Depreciation, depletion, amortization, income and gain (or loss) with respect to
Company assets shall be computed with reference to their Book Value rather than
to their adjusted bases.
"NOTICES" shall have the meaning specified in SECTION 8.2(A).
"PERSON" shall mean an individual, corporation, association, limited
liability company, limited liability partnership, partnership, estate, trust,
unincorporated organization or a government or any agency or political
subdivision thereof.
"SUBSCRIPTION AGREEMENTS" shall mean those certain subscription
agreements by and between the Company and each of the Members and certain other
parties.
"TRANSFER" shall mean any direct or indirect sale, assignment, gift,
hypothecation, pledge or other disposition, whether voluntary or by operation of
law, by sale of stock or partnership interests, or otherwise, of an Interest or
of any entity which directly or indirectly through one or more intermediaries
holds an Interest.
"TREASURY REGULATIONS" shall mean the regulations promulgated by the
U.S. Department of the Treasury under the Code.
SECTION 1.2. NAME. The name of the Company shall be "Teton Formation
L.L.C."
SECTION 1.3. PRINCIPAL PLACE OF BUSINESS. The Company's principal
place of business shall be at such place as the Managing Member shall designate
from time to time.
SECTION 1.4. PURPOSES. The purpose of the Company is to consummate a
transaction with MidAmerican by forming Merger Sub, which shall be merged with
and into MidAmerican (the "MIDAMERICAN MERGER") pursuant to the Merger
Agreement. The Company shall not engage in any act or activity requiring the
consent or approval of any state official, department, board, agency or other
body, without such consent or approval first being obtained. The Company shall
have the power to do any and all acts and things necessary, appropriate, proper,
advisable, incidental to or convenient for the furtherance and accomplishment of
such purposes, including, without limitation, relating to the financing of the
MidAmerican Merger.
SECTION 1.5. DURATION. The Company shall be formed upon the filing of
the Articles with the Office of the Secretary of State of Iowa pursuant to the
Act and shall continue until dissolved pursuant to SECTION 7.1.
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SECTION 1.6. LIMITATION OF LIABILITY. The liability of each Member and
each employee of the Company to third parties for obligations of the Company
shall be limited to the fullest extent provided in the Act and other applicable
law.
ARTICLE II.
CAPITAL CONTRIBUTIONS; OTHER FINANCING;
INTERESTS IN THE COMPANY
SECTION 2.1. CAPITAL CONTRIBUTIONS. Each Member has made an initial
Capital Contribution in cash as of the date hereof in the respective amount
specified opposite its name on EXHIBIT A and shall have Contribution Percentages
as set forth on such EXHIBIT A, which Contribution Percentages shall be adjusted
on EXHIBIT A from time to time to properly reflect the admission of new Members
or any other event having an effect on a Member's Contribution Percentage. At
the request of the Managing Member, subsequent contributions shall be made in
cash within five (5) business days to the Company by the Members for the payment
of (A) out-of-pocket expenses (the "EXPENSES") incurred by the Company (and not
Member Expenses) in connection with (i) obtaining insurance for the Company;
(ii) leasing office space for the Managing Member, and reasonable overhead
expenses in connection therewith; (iii) advisory fees, including, without
limitation, fees and expenses of counsel to the Company and its financial
advisor; and (iv) governmental and regulatory fees and filings; and (B)
obligations of the Company under the Merger Agreement, including, without
limitation, termination or "break-up" fees, but excluding payments of the
aggregate merger consideration payable thereunder. Unless each of the Members
have consented in writing, such subsequent contributions shall be made in
accordance with the Members' Contribution Percentages and the aggregate amount
of such subsequent contributions for Expenses shall not exceed $9,999,999.
SECTION 2.2. DETERMINATION OF BOOK VALUE OF COMPANY ASSETS.
(a) Book Value. Except as set forth below, Book Value of any Company
asset is its adjusted basis for federal income tax purposes.
(b) Initial Book Value. The initial Book Value of any assets
contributed by a Member to the Company shall be the gross fair market value
of such assets at the time of such contribution.
(c) Adjustments. The Book Values of all of the Company's assets may be
adjusted by the Company to equal their respective gross fair market values,
as determined by the Members, as of the following times: (a) the admission
of a new Member to the Company or the acquisition by an existing Member of
an additional interest in the Company from the Company; (b) the
distribution by the Company of money or property to a retiring or
continuing Member in consideration for the retirement of all or a portion
of such Member's interest in the Company; (c) the termination of the
Company for Federal income tax purposes pursuant to Section 708(b)(1)(B) of
the Code; and (d) such other times as determined by the Members.
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(d) Depreciation and Amortization. The Book Value of a Company asset
shall be adjusted for the depreciation and amortization of such asset taken
into account in computing Net Profits and Net Losses and for Company
expenditures and transactions that increase or decrease the asset's Federal
income tax basis.
SECTION 2.3. WITHDRAWAL OF CAPITAL; LIMITATION ON DISTRIBUTIONS. No
Member shall be entitled to withdraw any part of its Capital Contributions to,
or to receive any distributions from, the Company except as provided in SECTION
6.1 and SECTION 7.2. No Member shall be entitled to demand or receive (i)
interest on its Capital Contributions or (ii) any property from the Company
other than cash except as provided in SECTION 7.2(A).
SECTION 2.4. ALLOCATION OF NET PROFITS AND NET LOSSES.
(a) (i) Net Profits shall be allocated in proportion to, and to the
extent of, the excess of prior allocations of Net Losses under SECTION
2.4(B)(II) below over prior allocations of Net Profits under this SECTION
2.4(A)(I) and, then, (ii) among the Members in proportion to their
Contribution Percentages.
(b) (i) Net Losses shall first be allocated among the Members in
proportion to their Contribution Percentages until the Capital Account of
any Member is reduced to zero, then (ii) among the Members in proportion
to, and to the extent of, their positive Capital Account balances and,
finally, (iii) to the Members in proportion to their Contribution
Percentages.
(c) Tax credits shall be allocated among the Members in proportion to
their Contribution Percentages.
(d) When the Book Value of a Company asset differs from its basis for
Federal or other income tax purposes, solely for purposes of the relevant
tax and not for purposes of computing Capital Account balances, income,
gain, loss, deduction and credit shall be allocated among the Members under
the traditional method with curative allocations under Treasury Regulation
Section 1.704-3(c).
SECTION 2.5. RESTRICTIONS ON TRANSFERS.
(a) Required Consent. No Member may Transfer any Interest without the
prior written consent of all Members (excluding the proposed transferor and
transferee). Upon any approved Transfer, EXHIBIT A hereto shall be amended
accordingly.
(b) Compliance with Securities Laws. No Interest has been registered
under the Securities Act of 1933, as amended, or under any applicable state
securities laws. No Member may Transfer all or any portion of its Interest,
except upon compliance with the applicable federal and state securities
laws. The Company shall have no obligation to register any Member's
Interests under the Securities Act of 1933, as amended, or under any
applicable state securities laws, or to make any exemption therefrom
available to any Member.
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ARTICLE III.
RIGHTS AND DUTIES OF MEMBERS AND MANAGING MEMBER
SECTION 3.1. MANAGEMENT RIGHTS. Management of the Company shall be
vested in the Managing Member, who shall manage the Company subject to the terms
of this Agreement. The following actions shall require the consent of the
Managing Member and each of the other Members:
(i) an amendment to this Agreement or to the Articles (including an
amendment to add an additional Member);
(ii) any amendment to the Merger Agreement that adversely affects the
interests of the Company or any of the Members;
(iii) the waiver by the Company or Merger Sub of any material term or
condition of the Merger Agreement;
(iv) the merger or consolidation of the Company with any other Person;
and
(v) the continuation of the Company after a Dissolution Event.
The termination of the Merger Agreement shall require the consent of
one or more Members having at least ninety percent (90%) in the aggregate of the
Interests of all Members.
SECTION 3.2. LIABILITY OF MEMBERS. No Member shall be liable as such
for the liabilities of the Company.
SECTION 3.3. INDEMNIFICATION. Each Member shall indemnify the Company
and each other Member for any costs or damages incurred by the Company or each
other Member as a result of any unauthorized action or a failure to take a
required action by such Member, or by its Affiliates, under this Agreement or
such Member's Subscription Agreement and or as a result of breaches by Xxxxx X.
Xxxxx under the Confidentiality Agreement resulting from any action or a failure
to take a required action by such Member or its representatives, provided,
however, the aggregate amount for which Xxxxx X. Xxxxx shall have to indemnify
the Company, the other Members, or any Person shall not exceed the fair market
value of Xxxxx X. Xxxxx'x equity ownership (including options) in MidAmerican on
the date that such indemnity amounts become due and payable and the proceeds of
any sales of equity securities held immediately subsequent to the Merger by the
undersigned.
SECTION 3.4. REPRESENTATIONS AND WARRANTIES. Each Member, and in the
case of a trust or other entity, the Person(s) executing this Agreement on
behalf of the entity, hereby represents and warrants to the Company and each
other Member that: (a) if that
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Member is an entity, it has power to enter into this Agreement and to perform
its obligations hereunder and that the Person(s) executing this Agreement on
behalf of the entity has the power to do so; and (b) the Member is acquiring its
interest in the Company for the Member's own account as an investment and
without an intent to distribute the interest. The Members acknowledge that their
interests in the Company have not been registered under the Securities Act of
1933, as amended, or any state securities laws, and may not be resold or
transferred without appropriate registration or the availability of an exemption
from such requirements.
SECTION 3.5. MANAGING MEMBER'S STANDARD OF CARE. The Managing Member
shall discharge its duties to the Company and the Members in good faith and with
that degree of care that an ordinarily prudent person in a similar position
would use under similar circumstances. In discharging its duties, the Managing
Member and its officers, directors and employees shall be fully protected in
relying in good faith upon the records required to be maintained under Article
IV and upon such information, opinions, reports or statements by any Person as
to matters the recipient reasonably believes to be within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits or
losses of the Company or any other facts pertinent to the existence and amount
of assets from which Distributions to Members might properly be paid. The
Company shall indemnify and hold harmless each Member against any loss, damage
or expense (including attorneys' fees) incurred by the Member as a result of any
act performed or omitted on behalf of the Company or in furtherance of the
Company's interests without, however, relieving the Member of liability for
failure to perform his duties in accordance with the standards set forth herein.
The satisfaction of any indemnification and any holding harmless shall be from
and limited to Company property and the other Members shall not have any
personal liability on account thereof.
ARTICLE IV.
BOOKS; ADJUSTMENT OF CAPITAL ACCOUNTS; TAXES; FISCAL YEAR
SECTION 4.1. ADMINISTRATIVE SERVICES, BOOKS, RECORDS AND REPORTS. The
Managing Member shall cause to be performed all general and administrative
services on behalf of the Company in order to assure that complete and accurate
books and records of the Company are maintained at the Company's principal place
of business, including a copy of the Articles and all amendments thereto, and
this Agreement and all amendments thereto and showing the names, addresses and
Interests of each of the Members, all receipts and expenditures, assets and
liabilities, profits and losses, and all other records necessary for recording
the Company's business and affairs, including a capital account for each Member
(a "CAPITAL ACCOUNT").
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SECTION 4.2. ADJUSTMENT OF CAPITAL ACCOUNTS.
(a) Increases. Each Member's Capital Account shall be increased by:
(i) the amount of any money contributed by the Member to the
Company;
(ii) the fair market value of any property contributed by the
Member to the Company;
(iii) the amount of Net Profits allocated to the Member; and
(iv) the amount of any Company liabilities assumed by such Member
(or taken subject to) if property is distributed to the Member by the
Company.
(b) Decreases. Each Member's Capital Account shall be decreased by:
(i) the amount of any money distributed to the Member by the
Company;
(ii) the fair market value of any property distributed to the
Member by the Company;
(iii) the amount of Net Losses allocated to the Member; and
(iv) the amount of any Member liabilities assumed by the Company
(or taken subject to) if property is contributed to the Company by the
Member.
(c) Section 704(b). The foregoing provisions and the other provisions
of this Agreement relating to the maintenance of Capital Accounts are
intended to comply with Treasury Regulations under Section 704(b) of the
Code and, to the extent not inconsistent with the provisions of this
Agreement, shall be interpreted and applied in a manner consistent with
such Treasury Regulations.
(d) No Obligation to Restore Deficit Balance. No Member shall be
required to restore any deficit balance in its Capital Account.
(e) No Personal Liability. No Member shall have any personal liability
for the repayment of the Capital Contribution of any Member.
SECTION 4.3. TAXES.
(a) Tax Matters Partner. Xxxxx X. Xxxxx shall be the Tax Matters
Partner of the Company pursuant to Section 6231(a)(7) of the Code. Such
Member shall not resign as the Tax Matters Partner unless, on the effective
date of such resignation, the Company has designated another Member as Tax
Matters Partner and such Member has given its consent in writing to its
appointment as Tax Matters Partner. The Tax
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Matters Partner shall receive no additional compensation from the Company
for its services in that capacity, but all expenses incurred by the Tax
Matters Partner in such capacity shall be borne by the Company. The Tax
Matters Partner is authorized to employ such accountants, attorneys and
agents as it, in its sole discretion, determines is necessary to or useful
in the performance of its duties. In addition, such Member shall serve in a
similar capacity with respect to any similar tax related or other election
provided by state or local laws.
(b) Section 754 Election. Upon a Transfer by a Member of an interest
in the Company, which Transfer is permitted by the terms of this Agreement,
or upon the death of a Member or the distribution of any Company property
to one or more Members, the Manager, upon the request of one or more of the
transferees or distributees, may, in its sole discretion cause the Company
to file an election on behalf of the Company, pursuant to Section 754 of
the Code, to cause the basis of the Company's property to be adjusted for
federal income tax purposes in the manner prescribed in Section 734 or
Section 743 of the Code, as the case may be. The cost of preparing such
election, and any additional accounting expenses of the Company occasioned
by such election, shall be borne by any such transferees.
SECTION 4.4. FISCAL YEAR. The fiscal year of the Company (the "FISCAL
YEAR") shall end on December 31.
ARTICLE V.
INDEMNIFICATION
SECTION 5.1. INDEMNIFICATION. Any Person made, or threatened to be
made, a party to any action or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such Person is or
was (i) a Member, or (ii) an employee, officer, director, shareholder or partner
of a Member, or (iii) such other Persons (including employees of the Company) as
the Managing Member may designate from time to time (collectively, the
"INDEMNIFIED PERSONS"), shall be indemnified by the Company for any losses or
damage sustained with respect to such action or proceeding, and the Company
shall advance such Indemnified Person's reasonable related expenses to the
fullest extent permitted by law. The Company shall have the power to purchase
and maintain insurance on behalf of the Indemnified Persons against any
liability asserted against or incurred by them. The duty of the Company to
indemnify the Indemnified Persons under this SECTION 5.1 shall not extend to
actions or omissions of any Indemnified Person which are grossly negligent or
which involve fraud, misrepresentation, bad faith, or other willful misconduct
by such Indemnified Person or which are in material breach or violation by such
Indemnified Person of this Agreement or which are in derogation of the fiduciary
duties owed by such Indemnified Person to the Company and the Members, in each
case as determined by a court of competent jurisdiction. No Indemnified Person
shall be liable to the Company or any other Member for actions taken in good
faith. The duty of the Company to indemnify the Indemnified Persons under this
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SECTION 5.1 shall be limited to the assets of the Company, and no recourse shall
be available against any Member for satisfaction of such indemnification
obligations of the Company.
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS. Distributions resulting from the payment
of any amounts to the Company under the Merger Agreement, including, without
limitation, termination or "break-up" fees, shall be made at such time and in
such amounts as determined by the Managing Member and shall be made among the
Members in cash, first, in amounts to reimburse each Member for its Member
Expenses, and, second, in proportion to their Contribution Percentages;
provided, however, that no distribution will be made to any Member that has
failed to make all contributions required of it by SECTION 2.1.
SECTION 6.2. RESTORATION OF FUNDS. Except as otherwise provided by
law, no Member shall be required to restore to the Company any funds properly
distributed to it pursuant to SECTION 6.1.
ARTICLE VII.
DISSOLUTION AND LIQUIDATION
SECTION 7.1. DISSOLUTION. The Company shall be dissolved upon the
occurrence of any of the following (each, a "DISSOLUTION EVENT"):
(a) the unanimous decision of the Members to dissolve the Company;
(b) the effective time of the MidAmerican Merger;
(c) if the Merger Agreement is not executed and delivered by the
parties thereto on or before 11:59 p.m. on October 24, 1999;
(d) the bankruptcy, death, dissolution, expulsion, incapacity, or
withdrawal of any Member, unless within ninety (90) days after such event
the Company is continued by the vote or written consent of each of the
other Members; or
(e) the entry of a decree of judicial dissolution under Section
490A.1302 of the Act.
SECTION 7.2. WINDING UP AFFAIRS AND DISTRIBUTION OF ASSETS.
(a) Upon dissolution of the Company, and in the absence of an election
to continue the business of the Company pursuant to SECTION 7.1(B), Xxxxx
X. Xxxxx shall be the liquidating Member (the "LIQUIDATING MEMBER") and
shall proceed to wind up
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the affairs of the Company, liquidate the remaining property and assets of
the Company and wind-up and terminate the business of the Company. The
Liquidating Member shall cause a full accounting of the assets and
liabilities of the Company to be taken and shall cause the assets to be
liquidated and the business to be wound up as promptly as possible by
either or both of the following methods: (1) selling the Company assets and
distributing the net proceeds therefrom (after the payment of Company
liabilities) to each Member in satisfaction of its Capital Account; or (2)
if all Members shall agree, distributing the Company assets to the Members
in kind and debiting the Capital Account of each Member with the fair
market value of such assets, each Member accepting an undivided interest in
the Company assets (subject to their liabilities) in proportion to and to
the extent of each Member's positive Capital Account balance after
allocating and crediting to the Capital Accounts the unrealized gain or
loss to the Members as if such gain or loss had been recognized and
allocated pursuant to SECTION 2.4.
(b) If the Company shall employ method (1) as set forth in SECTION
7.2(A) in whole or part as a means of liquidation, then the proceeds of
such liquidation shall be applied in the following order of priority: (i)
first, to the expenses of such liquidation; (ii) second, to the debts and
liabilities of the Company (including debts of the Company to the Members
or their Affiliates and any fees and reimbursements payable under this
Agreement), in the order of priority provided by law; (iii) third, a
reasonable reserve shall be set up to provide for any contingent or
unforeseen liabilities or obligations of the Company to third parties (to
be held and disbursed, at the discretion of the Liquidating Member or
Members, by an escrow agent selected by the Liquidating Member or Members)
and at the expiration of such period as the Liquidating Member or Members
may deem advisable, the balance remaining in such reserve shall be
distributed as provided herein; (iv) fourth, to the Members in accordance
with and in proportion to their Capital Accounts.
(c) In connection with the liquidation of the Company, the Members
severally, jointly, or in any combination upon which they may agree, shall
have the first opportunity to make bids or tenders for all or any portion
of the assets of the Company, and such assets shall not be sold to an
outsider except only for a price higher than the highest and best bid of a
single Member, the Members jointly, or a combination of Members.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. ARTICLES REQUIREMENTS. From time to time the Members
shall sign and acknowledge all such writings as are required to amend the
Articles or for the carrying out of the terms of this Agreement or, upon
dissolution of the Company, to cancel such Articles. Each Member is hereby
designated as an authorized person to sign the
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Company's Articles and any other documents that are appropriate and
necessary to effectuate the purpose of this Agreement.
SECTION 8.2. NOTICES.
(a) All Notices, consents, approvals, reports, designations, requests,
waivers, elections and other communications (collectively, "NOTICES")
authorized or required to be given pursuant to this Agreement shall be
given in writing and either personally delivered to the Member to whom it
is given or delivered by an established delivery service by which receipts
are given or mailed by registered or certified mail, postage prepaid, or
sent by telex or telegram or electronic telecopier, addressed to the Member
at its address listed on EXHIBIT A hereto.
(b) All Notices shall be deemed given (i) when delivered personally to
the recipient, (ii) when sent to the recipient (with receipt confirmed by
sender's machine) by telecopy if during normal business hours of the
recipient, otherwise on the next business day, or (iii) one (1) business
day after the date sent to the recipient (three (3) business days in the
case of international delivery) by reputable express courier service
(charges prepaid). Any Member may change its address for the receipt of
Notices at any time by giving Notice thereof to all of the other Members,
in which event EXHIBIT A hereto shall be amended accordingly.
Notwithstanding the requirement in SECTION 8.2(a) as to the use of
registered or certified mail, any routine reports required by this
Agreement to be submitted to Members at specified times may be sent by
first-class mail.
SECTION 8.3. PARTIES IN INTEREST; THIRD-PARTY BENEFICIARIES.
(a) Neither this Agreement nor any of the rights, duties, or
obligations of any party hereunder may be transferred or assigned by a
party hereto, except in connection with a Transfer of Interests as
specified in SECTION 2.5. Subject to the foregoing, this Agreement shall be
binding upon, and inure to the benefit of the parties hereto and their
respective successors and assigns.
(b) This Agreement shall not confer any rights or remedies upon any
person or entity other than the parties hereto, the Indemnified Persons,
and their respective permitted successors and assigns.
SECTION 8.4. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements and understandings among the Members with
respect to the subject matter hereof.
SECTION 8.5. MODIFICATION. No change or modification of this Agreement
shall be of any force unless such change or modification is in writing and has
been signed by all of the Members. No waiver of any breach of any of the terms
of this Agreement shall be effective unless such waiver is in writing and signed
by the Member against whom such waiver
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is claimed. No waiver of any breach shall be deemed to be a waiver of any other
or subsequent breach.
SECTION 8.6. SEVERABILITY. If any provision of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. Furthermore, in lieu of any such invalid, illegal or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid, illegal or unenforceable provision as may be possible and be valid,
legal and enforceable.
SECTION 8.7. FURTHER ASSURANCES. Each Member shall execute such deeds,
assignments, endorsements, evidences of Transfer and other instruments and
documents and shall give such further assurances as shall be necessary to
perform its obligations hereunder.
SECTION 8.8. GOVERNING LAW. This Agreement shall be governed by and be
construed in accordance with the laws of the State of Iowa.
SECTION 8.9. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
SECTION 8.10. WAIVER OF PARTITION. Each Member hereby waives its right
to bring an action for partition of any of the property owned by the Company.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the day and date first set forth above.
/s/ Xxxxx X. Xxxxx
-----------------------------
XXXXX X. XXXXX
/s/ Xxxxxx Xxxxx, Xx.
-----------------------------
XXXXXX XXXXX, XX.
BERKSHIRE HATHAWAY INC.
By: /s/ Xxxxxx X. Buffet
--------------------------
Name: Xxxxxx X. Buffet
Title: Chairman
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