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EXHIBIT 3.20
OPERATING AGREEMENT
OF
EXPERIENCE MANAGEMENT LLC
ARTICLE A
POWERS
Sec. A.1 Subject to the Company's Articles of Organization, the Company
shall have all powers necessary or convenient to effect any purpose for which
the Company is formed, including all powers granted to corporations in section
261 of the business corporation act, Act No. 284 of the Public Acts of 1972,
being section 450.1261 of the Michigan Compiled Laws.
ARTICLE B
MANAGEMENT
Sec. B.1 The general management of the Company shall be by all of the
members unless and until officers and/or directors are appointed by the members.
Individual members may also be selected to implement the general policies and
decisions of the members.
Sec. B.2 (1) Selection, if any, of any officers, directors or
individual members to implement the general policies and decisions of the
members shall be by majority vote of the members voting in proportion to their
shares of membership interest in the Company.
(2) The members may remove 1 or more officers, directors or members who
have been selected, with or without cause. Removal shall be by majority vote of
the shares of membership interest voting.
Sec. B.3 (1) An officer, director or member shall discharge his or her
decision making and implementation duties in good faith, with the care an
ordinarily prudent person in a like position would exercise under similar
circumstances, and in a manner he or she reasonably believes to be in the best
interests of the Company.
(2) In discharging his or her duties, an officer, director or member
may rely on information, opinions, reports or statements, including, but not
limited to, financial statements or other financial data, if prepared or
presented by any of the following:
(a) One or more members or employees of the Company whom the officer,
director or member reasonably believes to be reliable and
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competent in the matter presented.
(b) Legal counsel, public accountants, engineers, or other persons as
to matters the officer, director or member reasonably believes are within the
person's professional or expert competence.
(3) An officer, director or member is not entitled to rely on the
information described in subsection (2) if he or she has knowledge concerning
the matter in question that makes reliance otherwise permitted by subsection (2)
unwarranted.
(4) An officer, director or member is not liable for any action taken
or any failure to take any action if his or her duties are performed in
compliance with this section.
(5) An officer, director or member shall account to the Company and
hold as trustee for it any profit or benefit derived without the informed
consent of the members by the officer, director or member from any transaction
connected with the conduct or winding up of the Company or from any personal use
by him or her of its property.
(6) An action against an officer, director or member for failure to
perform the duties imposed by the Act shall be commenced within 3 years after
the cause of action has accrued, or within 2 years after the time when the cause
of action is discovered or should reasonably have been discovered by the
complainant, whichever occurs first.
Sec. B.4 (1) The Company shall indemnify and hold harmless an officer,
director or member selected to implement the general policies and decisions of
the members from and against any and all losses, expenses, claims, and demands
sustained by reason of any acts or omissions or alleged acts or omissions in
such capacity, including judgments, settlements, penalties, fines, or expenses
incurred in a proceeding to which the person is a party or threatened to be made
a party because he or she is or was an officer, director or member making or
implementing policies and decisions, except that the Company may not indemnify
any person for conduct described in section 407(a), (b), or (c) of the Michigan
Limited Liability Company Act (the "Act").
(2) The members shall have the right to purchase insurance on behalf of
an officer, director or member against any liability or expense asserted against
or incurred in any such capacity or arising out of his or her status as an
officer, director or member making or implementing decisions, whether or not the
Company could otherwise indemnify against liability.
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ARTICLE C
CAPITAL ACCOUNTS/MEMBERSHIP INTERESTS
Sec. C.1 (1) Each member has contributed to the initial capital of the
Company the following property with the following agreed upon values (which
shall be the initial capital account of each of the members):
Member Property Value
Venture Holdings Trust Cash $990.
Venture Service Company Cash $ 10.
(2) The initial shares of membership interest in the Company of each
member (membership interests being based on the capital accounts), shall be as
follows:
Member Interest Shares
Venture Holdings Trust 99% 99
Venture Service Company 1% 1
(3) (a) All items of income, distribution, loss, credit and deduction
shall be allocated according to the then capital accounts of the members.
(b) Capital accounts shall be maintained in accordance with Internal
Revenue Code Regulations ("IRC Reg.") '1.704-1(b)(2)(iv) and liquidating
distributions shall be made in accordance with positive capital account
balances.
(c) A member to whom an allocation is made is not obligated
unconditionally to restore a deficit balance in such member's capital account at
the time of liquidation of such member's interest, but rather, the alternate
test for economic effect under IRC Reg. '1.704-1(b)(2)(ii)(d) shall apply so
that a member who unexpectedly receives an adjustment, allocation or
distribution described in (4), (5) or (6) thereof, shall be allocated items of
income and gain (consisting of a pro rata portion of each item of partnership
income, including gross income, and gain for such year) in an amount and manner
sufficient to eliminate such deficit balance as quickly as possible.
(d) If there is a net decrease in Company minimum gain for a
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taxable year of the Company, each member must be allocated items of Company
income and gain for that year equal to that member's share of the net decrease
in Company minimum gain pursuant to IRC Reg.
'1.704-2(f).
Sec. C.2 (1) A person may become a member of the Company by
making a contribution accepted by the Company.
(2) A person who is a member of the Company is not liable for the acts,
debts, or obligations of the Company.
Sec. C.3 A membership interest in the Company shall not be
assignable or transferable.
ARTICLE D
RECORDS
Sec. D.1 The Company shall keep at its registered office all
of the following:
(1) A current list of the full name and last known address of each
member.
(2) A copy of the Articles or restated Articles of Organization,
together with any amendments to the Articles.
(3) Copies of the Company's federal, state, and local tax returns and
reports, if any, for the 3 most recent years.
(4) Copies of any financial statements of the Company for the 3 most
recent years.
(5) Copies of this Operating Agreement.
(6) Copies of records that would enable a member to determine the
members' relative shares of the Company's distributions and their relative
voting rights.
Sec. D.2 (1) Upon written request of a member, the Company shall mail
to the member a copy of its most recent annual financial statement and its most
recent federal, state, and local income tax returns and reports. Upon reasonable
request, a member may obtain true and full information regarding the current
state of business and financial condition of the Company.
(2) Upon reasonable written request and during ordinary business hours,
a member or his or her designated representative may inspect and copy, at the
member's expense, any of the records
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required to be maintained under this Article.
(3) Upon reasonable written request, a member may obtain such other
information regarding the affairs of the Company or inspect, personally or
through a representative and during ordinary business hours, such other books
and records of the Company, as is just and reasonable.
(4) A member may have a formal accounting of the Company's affairs
whenever circumstances render it just and reasonable.
ARTICLE E
CONTRIBUTIONS
Sec. E.1 (1) Subject to the Company's Articles of Organization, the
contribution of a member to the Company may consist of any tangible or
intangible property or benefit to the Company, including cash, property,
services performed, promissory notes, contracts for services to be performed, or
other binding obligation to contribute cash or property or to perform services.
(2) A contribution of an obligation to contribute cash or property or
services to be performed may be in exchange for a present membership interest or
for a future membership interest, including a future profits interest.
ARTICLE F
DISTRIBUTIONS
Sec. F.1 Subject to the Company's Articles of Organization,
distributions of cash or other assets of the Company shall be allocated among
the members and among classes of members in accordance with their capital
accounts maintained pursuant to Article C hereof.
Sec. F.2 A member may receive distributions from the Company before the
withdrawal of the member from the Company and before the dissolution and winding
up of the Company to the extent and at the times or upon the direction of the
members, provided that:
(1) A distribution shall not be made if, after giving it effect, the
Company would not be able to pay its debts as they become due in the usual
course of business or the Company's total assets would be less than the sum of
its total liabilities plus the amount that would be needed, if the Company were
to be dissolved at the time of the distribution, to satisfy the preferential
rights of other members upon dissolution that are superior to the rights of
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the member or members receiving the distribution.
(2) The Company may base a determination that a distribution is not
prohibited under subsection (1) either on financial statements prepared on the
basis of accounting practices and principles that are reasonable under the
circumstances or on a fair valuation or other method that is reasonable under
the circumstances.
(3) The effect of a distribution under subsection (1) is measured at
the following times:
(a) In the case of a distribution of indebtedness,
as of the date the indebtedness is authorized if distribution occurs within 120
days after the date of authorization or the date the indebtedness is distributed
if it occurs more than 120 days after the date of authorization.
(b) In all other cases, as of the date the
distribution is authorized if the payment occurs within 120 days after the date
of authorization or the date the payment is made if it occurs more than 120 days
after the date of authorization.
(4) At the time a member becomes entitled to receive a distribution,
the member shall have the status of, and is entitled to all remedies available
to, a creditor of the Company with respect to the distribution. The Company's
indebtedness to a member incurred by reason of a distribution made in accordance
with this section shall be at parity with the Company's indebtedness to its
general, unsecured creditors except as otherwise agreed.
(5) The enforceability of a guaranty or other undertaking by a third
party relating to a distribution shall not be affected by the prohibition of the
distribution under subsection (1).
(6) If any claim is made to recover a distribution made contrary to
subsection (1) or if a violation of subsection (1) is raised as a defense to a
claim based upon a distribution, this section shall not prevent the person
receiving the distribution from asserting a right of rescission or other legal
or equitable rights.
Sec. F.3 A withdrawing member, within 180 days after withdrawal, shall
have the right to demand in writing a distribution of the fair value of his or
her interest. The remaining members shall have 90 days after such demand to
determine whether such distribution is to be in-kind (including an undivided
fractional share in one or more assets of the Company), in cash, or partly
in-kind and partly cash and an additional 180 days to arrange any necessary
financing and make such distribution,
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provided, in any case:
(1) A distribution shall not be made to the extent that, after giving
it effect, the Company would not be able to pay its debts as they become due in
the usual course of business or the Company's total assets would be less than
the sum of its total liabilities plus the amount that would be needed, if the
Company were to be dissolved at the time of the distribution, to satisfy the
preferential rights of other members upon dissolution that are superior to the
rights of the member or members receiving the distribution.
(2) The Company may base a determination that a distribution is not
prohibited under subsection (1) either on financial statements prepared on the
basis of accounting practices and principles that are reasonable under the
circumstances or on a fair valuation or other method that is reasonable under
the circumstances.
(3) The effect of a distribution under subsection (1) is measured,
except as provided in subsection (5), in the case of a distribution of a the
fair value of a withdrawing member's interest, as of the earlier of the date
money or other property is transferred or debt incurred by the Company, or the
date the member ceases to be a member.
(4) At the time a member becomes entitled to receive a distribution,
the member shall have the status of, and is entitled to all remedies available
to, a creditor of the Company with respect to the distribution. The Company's
indebtedness to a member incurred by reason of a distribution made in accordance
with this section shall be at parity with the Company's indebtedness to its
general, unsecured creditors except as otherwise agreed.
(5) If the Company distributes an obligation to make future payments as
payment of the fair value of a withdrawing member's interest, and distribution
of the obligation would otherwise be prohibited under subsection (1) at the time
it is made, the Company may issue the obligation and the following apply:
(a) At any time prior to the due date of the
obligation, payments of principal and interest may be made as a distribution to
the extent that a distribution may then be made under this section.
(b) At any time on or after the due date, the
obligation to pay principal and interest is considered distributed and treated
as indebtedness described in subsection (4) to the extent that a distribution
may then be made under this section.
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(c) The obligation is not considered a liability or
debt for purposes of determinations under subsection (1) except to the extent
that it is considered distributed and treated as indebtedness under this
subsection.
(6) The enforceability of a guaranty or other undertaking by a third
party relating to a distribution is not affected by the prohibition of the
distribution under subsection (1).
(7) If any claim is made to recover a distribution made contrary to
subsection (1) or if a violation of subsection (1) is raised as a defense to a
claim based upon a distribution, this section shall not prevent the person
receiving the distribution from asserting a right of rescission or other legal
or equitable rights.
Sec. F.4 A member, regardless of the nature of the member's
contribution, has no right to demand and receive a distribution from the Company
in any form other than cash, and a member may not be compelled to accept from
the Company a distribution of an asset in kind to the extent that the percentage
of the asset distributed to the member exceeds a percentage of that asset that
is equal to the percentage of the shares of membership interests held by him or
her in the Company.
ARTICLE G
VOTING
G.1 (1) The members of the Company shall vote in proportion to their
shares of membership interest in the Company.
(2) As used in this Agreement, a "majority in interest", or a similar
phrase, shall refer to a majority of the outstanding shares of membership
interests in capital and profits.
(3) Meetings may be conducted:
(a) Without notice, by actual meeting or telephonic communications, at
any time or place within the State of Michigan, at which time there need be
present or represented only a majority in interest of the outstanding shares and
a vote of a majority of those voting shall be necessary to take any action;
provided, that if such meeting is held without notice, then the vote of a
majority in interest of the outstanding shares shall be required to take any
action and the members not present shall be notified in writing within 10 days
of such meeting of any resolutions passed at such meeting.
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(b) With three (3) days notice given by any member, by actual meeting
or telephonic communications, at any time or place within the State of Michigan,
at which time there need be present or represented only forty percent (40%) of
the membership interests outstanding and a vote of a majority of those voting
shall be necessary to take any action.
The foregoing shall not modify any provision in this Agreement or the
Articles of Organization requiring a specific number of shares of membership
interests to pass a measure, including, but not limited to, the requirements for
continuing the Company after a dissolution event or for admitting a new member.
(4) All of the members shall at all times have the right to vote on the
following:
(a) The dissolution of the Company pursuant to section 801(c) of the
Act.
(b) Merger of the Company pursuant to sections 701 through 706 of the
Act.
(c) A transaction involving an actual or potential conflict of interest
between a member and the Company.
(d) An amendment to the Articles of Organization.
(e) The sale, exchange, lease, or other transfer of all or
substantially all of the assets of the Company other than in the ordinary course
of business.
Sec. G.2 Each Member shall be entitled to one vote in person or by
proxy for each share of membership interest having voting power held by such
Member, but no proxy shall be voted on after three (3) months from its date,
unless the proxy provides for a longer period. If the Articles of Organization
provide for more or less than one vote for any share of membership interest, on
any matter, every reference in this Article to a majority or other proportion of
interests shall refer to such majority or other proportion of the total votes of
all shares of membership interests.
ARTICLE H
SHARES
Sec. H.1. Every holder of a share of membership interest in the Company
shall be entitled to have a certificate signed by, or in the name of the Company
by two or more members certifying the
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number of shares of membership interest owned by him/her in the Company. All
certificates shall note that there are restrictions on assignment which are
fully set forth in the Articles of Organization and the Operating Agreement.
Certificates may be issued for partly paid shares and in such case upon the face
or back of the certificates issued to represent any such partly paid shares, the
total amount paid thereon shall be specified.
If the Company shall be authorized to issue more than one class of interests or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
interest or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights shall be set forth in full or summarized on
the face or back of the certificate which the Company shall issue to represent
such class or series of shares, provided that, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificates
which the Company shall issue to represent such class or series of shares, a
statement that the Company will furnish without charge to each member who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of interests or series thereof
and the qualifications, limitations or restrictions of such preferences and/or
rights.
Sec. H.2. Where a certificate is countersigned (1) by a transfer agent
other than the Company or its employee, or, (2) by a registrar, other than the
Company or its employee, any other signature on the certificate may be a
facsimile. In case any member, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such member, transfer agent or registrar before such certificate is
issued, it may be issued, by the Company with the same effect as if he/she were
such member, transfer agent or registrar at the date of issue.
Sec. H.3. The members may direct a new certificate or certificates to
be issued in place of any certificate or certificates theretofore issued by the
Company alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate or shares to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the members may, in their discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his/her legal representative, to advertise the
same in such manner as it shall require and/or to give the Company a bond in
such sum as it may direct as indemnity against any claim
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that may be made against the Company with respect to the certificate alleged to
have been lost, stolen, or destroyed.
Sec. H.4. In order that the Company may determine the members entitled
to notice of or to vote at any meeting of members or any adjournment thereof, or
to express consent to Company action in writing without a meeting, or entitled
to receive payment of any distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
interests orE for the purpose of any other lawful action, the members may fix,
in advance, a record date, which shall not be more than sixty (60) days nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action. A determination of members of record entitled to
notice of or to vote at a meeting of members shall apply to any adjournment of
the meeting; provided, however, that the members may fix a new record date for
the adjourned meeting. Absent member action, the record date shall be ten (10)
days before the date of such meeting.
Sec. H.5. The Company shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares of membership
interest to receive distributions, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares of membership interest, and shall not be bound to recognize any equitable
or other claim interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of organization.
Sec. H.6. Distributions upon the shares of membership interests of the
Company, subject to the provisions of the Articles of Organization, if any, may
be declared by the members at any regular or special meeting, pursuant to the
law.E Distributions may be paid in cash, in property, or in shares of membership
interests (such shares only to be distributed pro rata) subject to the
provisions of the Articles of Organization, this Operating Agreement and the
Act.
Sec. H.7. Before payment of any distribution, there may be set aside
out of any funds of the Company available for distributions such sum or sums as
the members from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing distributions, or
for repairing or maintaining any property of the Company, or for such other
purpose as the members shall think conducive to the interest of the Company, and
the members may modify or abolish any such reserve in the manner in which it was
created.
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This Operating Agreement executed to be effective as of December 1, 1997.
VENTURE HOLDINGS TRUST
BY: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
ITS:
VENTURE SERVICE COMPANY
BY: /s/ Xxxxx X. Xxxxxx, Xx.
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ITS:
