LIMITED LIABILITY COMPANY AGREEMENT OF RGGPLS, LLC
Exhibit 4
OF
THIS LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is entered into this 27th day of
August, 2004, by and between the Persons set forth on the signature page hereto (together with all
other Persons who later become members pursuant to this Agreement, individually a “Member” and
collectively the “Members”).
ARTICLE 1
FORMATION
1.1 Formation and Structure. The Members have caused the Company to be formed as a
limited liability company under the Act, for the purposes and upon the terms, covenants and
conditions set forth in this Agreement.
1.2 Name. The name of the Company shall be RGGPLS, LLC, or such other name as
determined by the Management Board.
1.3 Purpose. The sole and exclusive purpose of the Company shall any lawful activity
for which limited liability companies may be organized under the Act.
1.4 Principal Office. The principal office of the Company may be fixed by the
Management Board at any place within the United States, whether within or without the state of
Delaware.
1.5 Term. The term of the Company commenced upon filing of the certificate of
formation with the Secretary of State of the State of Delaware and will terminate at such time as
described in this Agreement or required under the Act.
ARTICLE 2
DEFINITIONS
The following terms shall have the meanings set forth below:
Act means the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as
amended, or any successor statute.
Agreement means this Limited Liability Company Agreement (including all Exhibits hereto), as
it may be amended, supplemented or restated from time to time.
Indemnitee has the meaning ascribed such term in Section 7.5.
Management Board has the meaning ascribed such term in Section 6.1.
Manager has the meaning ascribed such term in Section 6.1.
Members as of the date hereof has the meaning ascribed such term in the preamble to this
Agreement. A Member shall remain a member of the Company until it ceases to be a member in
accordance with the Act, the Certificate of Formation of the Company, or this Agreement.
Membership Interest means the entire ownership interest of a Member in the Company at any
particular time. Such interest includes, without limitation, the right to receive distributions,
the right to receive allocations of income, gain, loss, deduction or credit of the Company, if and
solely to the extent provided herein, and any and all benefits to which any such Member may be
entitled as provided in this Agreement or the Act, together with the obligations of any such Member
to comply with the terms and provisions of this Agreement.
Percentage Interest means with respect to each Member, the percentage relating to such
Member’s Membership Interest as set forth on Exhibit A hereto.
Person means an individual or a corporation, partnership, trust, limited liability company,
unincorporated organization, association or other entity.
Transfer means (i) any disposition, directly or indirectly, by operation of law or otherwise,
voluntarily or involuntarily, by intestacy, will, trust or estate distribution, or inter vivos
action, including any sale, gift, pledge, encumbrance or other creation of a security interest or
attachment, (ii) any event that results in a holder of a Membership Interest ceasing to be a Family
Member, including a change in family relationship due to adoption, a change in beneficiaries (in
the case of a fiduciary arrangement), and a change in ownership or control (in the case of a
business organization), and (iii) a Member ceasing to be trustee or co-trustee of the Member’s
Revocable Declaration of Trust, unless the trustee of such trust has been admitted as a Member.
“Transfer” shall not include (i) the creation or acquisition of a community or marital property
interest in a Membership Interest by a spouse of a Membership Interest holder as long as the spouse
is not a registered owner and exercises no management, dominion, or control over such Membership
Interest, (ii) a transfer to (but not from) the executor, administrator, or other legal
representative of the estate of a deceased Membership Interest holder, or (iii) a transfer to the
guardian or conservator for a legally adjudicated incompetent Membership Interest holder.
"Transferred”, “Transferee”, and “Transferor” shall have correlative meanings.
Treasury Regulations means the income tax regulations promulgated under the Code and in
effect, as amended, supplemented or modified from time to time.
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ARTICLE 3
CAPITALIZATION OF THE COMPANY
3.1 Capital Contributions. No capital contributions shall be required or permitted
unless approved by all the Members.
3.2 Capital Accounts. A Capital Account shall be maintained for each Member in
accordance with Treasury Regulation § 1.704-1(b)(2)(iv).
ARTICLE 4
DISTRIBUTIONS AND WITHDRAWALS
4.1 Distributions Generally. Distributions shall be made, in the discretion of the
Management Board, to the Members in accordance with the Members’ respective Percentage Interests.
4.2 Liquidation Distributions. Distributions in liquidation of the Company shall be
made as provided in Section 9.2.
ARTICLE 5
ALLOCATIONS AND ACCOUNTING
5.1 Allocations. Profits and losses of the Company (and items of taxable income,
gain, loss, and deduction) for each Fiscal Year or other period shall be allocated as follows to
the Members in accordance with their relative Percentage Interests.
5.2 Bank Accounts. The bank accounts of the Company shall be maintained in such
banking institutions as the Management Board shall determine. The funds of the Company shall not
be commingled with the funds of any other Person.
5.3 Fiscal Year. The fiscal year of the Company for tax and accounting purposes (the
“Fiscal Year”) shall be the calendar year.
ARTICLE 6
MANAGEMENT/DECISIONS/MEMBERS
6.1 Management Generally. The day-to-day business and affairs of the Company shall be
managed by and under the authority of a Management Board (the “Management Board”), and each member
of the Management Board (“Manager”) shall be a “manager” as that term is used in the Act. The
Management Board shall initially consist of three (3) Managers who may be removed and replaced by
the Members acting unanimously. The decisions of the
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Management Board must be unanimous. The Management Board shall perform the duties prescribed
to it hereunder, including without limitation conducting the ordinary and usual business affairs of
the Company. Except as otherwise provided in this Agreement or under the Act, no Member shall have
either the obligation or the right to take part, directly or indirectly, in the active management
or control of the business of the Company, and no Member shall have the right or authority to act
for or bind the Company. The initial managers are:
Xxxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx
6.2 Compensation. Absent a unanimous consent of the Members, no member of the
Management Board, as such, shall be entitled to any compensation from the Company for the
performance of the duties on its part to be performed in such managing capacity; however, each
member of the Management Board shall be entitled to reimbursement for its reasonable out-of-pocket
costs incurred in carrying out its duties in connection with the Company.
ARTICLE 7
MEMBERS / INDEMNITY
7.1 New Members. A new Member may be admitted only upon the unanimous consent of the
Members.
7.2 Withdrawal or Resignation. No Member may withdraw or resign from the Company.
7.3 Tax Matters Partner. The “Tax Matters Partner” shall have the meaning of Code §
6231(a)(7) and shall be Xxxxxx Xxxxx.
7.4 Indemnity. Subject to the last sentence of this Section 7.5, no current or former
Member or Manager (in such capacity, an “Indemnitee”) shall have any liability, responsibility or
accountability in damages or otherwise to any Members or the Company for any loss suffered by the
Company, except to the extent such loss was caused by the fraud, bad faith, gross negligence or
willful misconduct of such Indemnitee. Each Indemnitee shall be indemnified by the Company and the
Company hereby agrees to indemnify, pay, protect and hold harmless each Indemnitee (on the demand
of and to the satisfaction of such Indemnitee) from and against any and all liabilities,
obligations, losses, damages, actions, judgments, suits, proceedings, costs, expenses and
disbursements of any kind or nature, provided that the same were not the result of (as determined
by a final adjudication) fraud, bad faith, gross negligence or willful misconduct on the part of
the Indemnitee. The foregoing includes, without limitation, all reasonable legal fees, costs and
expenses of defense, appeal and settlement of any and all suits, actions or proceedings instituted
against such Indemnitee or the Company and all costs of investigation in connection therewith
(collectively referred to as “Liabilities” for the remainder of this Section)
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that may be imposed on, incurred by or asserted against an Indemnitee or the Company in any
way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction
on the part of the Company, or on the part of an Indemnitee. If any action, suit or proceeding
shall be pending against the Company or an Indemnitee relating to or arising out of, or alleged to
relate to or arise out of, any action or inaction on either of their parts, the Company shall have
the right to employ, at the expense of the Company, separate counsel of its choice in such action,
suit or proceeding. The satisfaction of the obligations of the Company under this Section 7.4
shall be from and limited to the assets of the Company and no Member shall have any liability on
account thereof. Nothing in this Section 7.4 shall limit the rights of any Member against any
other Member for breach of this Agreement.
ARTICLE 8
TRANSFERS
8.1 Transfers of Membership Interests. Except as specifically provided herein, no
holder of a Membership Interest may Transfer all or any portion of such interest other than with
the unanimous consent of the Members, such consent being in the sole discretion of each Member.
Any purported Transfer in violation of the foregoing shall be null and void to the fullest extent
permitted by law.
ARTICLE 9
TERMINATION AND DISSOLUTION
9.1 Dissolution. The Company shall be dissolved solely upon the occurrence of any one
of the following events:
| 9.1.1 | The written determination of all Managers to dissolve; or | ||
| 9.1.2 | The entry of a decree of judicial dissolution under law. |
9.2 Dissolution Procedure.
9.2.1
Winding Up, Liquidation, and Distribution of
Assets. Upon dissolution of the
Company, unless it is reconstituted and continued, the Manager, or, if no Manager is then serving,
the person appointed by the Members acting unanimously (the
“Liquidator”) shall immediately proceed
to wind up the affairs of the Company. Upon liquidation of the Company, the assets of the Company
shall be applied in the following manner and order of priority:
(a)
First, to the payment and discharge of all debts and liabilities of the
Company to creditors (including Members that are creditors) in the order of
priority as provided by law, and of the costs and expenses of
liquidation;
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(b) Second, to establish such reserves as the Liquidator deems reasonably
necessary or advisable, or as required by the Act, to provide for the contingent
liabilities of the Company in connection with the liquidation of the Company;
and
(c) Third, to the Members proportion to their Percentage Interests.
9.2.2 Complete Distribution. The distribution of cash or property to a Member in
accordance with the provisions of this Section 9.2 shall constitute a complete return to the Member
of its Capital Contributions and a complete distribution to the Member of its interest in the
Company and the Company’s property.
9.2.3 Dissolution. Upon completion of the winding up, liquidation and distribution of
the assets as described above, the Company shall be deemed terminated. Upon the issuance of the
certificate of cancellation, the existence of the Company shall cease, except for any purposes as
provided for in the Act.
ARTICLE 10
GENERAL PROVISIONS
10.1 Rights of Creditors and Third Parties Under Agreement. This Agreement is entered
into among the Company and the Members for the exclusive benefit of the Company, the Members, and
their successors and assignees. This Agreement is expressly not intended for the benefit of any
creditor of the Company or any other Person. Except and only to the extent provided by applicable
statute, no such creditor or third party shall have any rights under this Agreement or any
agreement between the Company and the Members with respect to any Capital Contribution or
otherwise.
10.2 Integration. This Agreement embodies the entire agreement and understanding
among the Members and supersedes all prior agreements and understandings, if any, among and between
the Members relating to the subject matter hereof.
10.3 Applicable Law. THIS AGREEMENT AND THE RIGHTS OF THE MEMBERS SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO THE CONFLICT OF LAWS RULES THEREOF.
10.4 Counterparts. This Agreement may be executed in several counterparts and all
counterparts so executed shall constitute one Agreement binding on all parties hereto,
notwithstanding that all the parties are not signatories to the original or the same counterpart.
10.5 Headings. Headings are used merely for reference purposes and do not affect
content in any manner.
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10.6 Gender. Wherever applicable, the pronouns designating the masculine or neuter
shall equally apply to the feminine, neuter and masculine genders. Furthermore, wherever
applicable within this Agreement, the singular shall include the plural.
10.7 Exhibits. Exhibits, if any, referred to in this Agreement are incorporated by
reference into this Agreement.
10.8 Amendments. Except as otherwise specifically provided for herein, any amendment
of this Agreement must be in writing and approved by the unanimous consent of the Members.
10.9 Authorized Person. The Members agree that any partner of XxXxxxxxx, Will & Xxxxx
is authorized to file and execute such certificates, and to take such actions, that are necessary
or helpful to form the Company in the state of Delaware and to qualify the Company in any other
jurisdiction in which it conducts business, and that any such actions heretofore taken are hereby
confirmed, ratified, and adopted.
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IN WITNESS WHEREOF, the undersigned Members have executed this Limited Liability Company
Agreement as of the day and year first above written.
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, not individually but as trustee of that certain unrecorded trust agreement known as the Xxxxxx Xxxxx Revocable Trust dated December 18, 2000
Xxxxxx Xxxxx, not individually but as trustee of that certain unrecorded trust agreement known as the Xxxxxx Xxxxx Revocable Trust dated December 18, 2000
/s/ Xxxxxx Xxx Xxxxx /s/ Xxxxxxx X. Xxxxxx
Xxxxxx Xxx Xxxxx and Xxxxxxx X. Xxxxxx as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Xxxxxx Xxxxx 2004 Multigenerational Trust
Xxxxxx Xxx Xxxxx and Xxxxxxx X. Xxxxxx as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Xxxxxx Xxxxx 2004 Multigenerational Trust
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx Xxxxx
Xxxxx X. Xxxxxx and Xxxxxx Xxxxx as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Xxxxx X. Xxxxxx 2004 Multigenerational Trust
Xxxxx X. Xxxxxx and Xxxxxx Xxxxx as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Xxxxx X. Xxxxxx 2004 Multigenerational Trust
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Xxxxx X. Xxxxx 2004 Multigenerational Trust
Xxxxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx as trustees of the Exempt Descendants Trust established under that certain unrecorded trust agreement known as the Xxxxx X. Xxxxx 2004 Multigenerational Trust
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EXHIBIT A
MEMBERS AND PERCENTAGE INTERESTS
| Percentage | ||||
| Member | Interest | |||
Xxxxxx Xxxxx, not individually but as trustee of that
certain unrecorded trust agreement known as the
Xxxxxx Xxxxx Revocable Trust dated December 18, 2000
|
10 | % | ||
Xxxxxx Xxx Xxxxx and Xxxxxxx X. Xxxxxx as trustees of
the Exempt Descendants Trust established under that
certain unrecorded trust agreement known as the
Xxxxxx Xxxxx 2004 Multigenerational Trust
|
23 and 1/3% | |||
Xxxxx X. Xxxxxx
|
11 and 2/3% | |||
Xxxxx X. Xxxxxx and Xxxxxx Xxxxx as trustees of the
Exempt Descendants Trust established under that
certain unrecorded trust agreement known as the Xxxxx
X. Xxxxxx 2004 Multigenerational Trust
|
21 and 2/3% | |||
Xxxxx X. Xxxxx
|
6 and 2/3% | |||
Xxxxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx as trustees
of the Exempt Descendants Trust established under
that certain unrecorded trust agreement known as the
Xxxxx X. Xxxxx 2004 Multigenerational Trust
|
26 and 2/3% | |||
Totals
|
100 | % | ||
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