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EXHIBIT 3.14
LIMITED LIABILITY COMPANY
AGREEMENT OF
XXXXXXX ELECTRONICS, LLC
LIMITED LIABILITY COMPANY AGREEMENT of XXXXXXX ELECTRONICS, LLC,
dated as of August 30, 1999 (this "Agreement"), is adopted, executed and agreed
to, for good and valuable consideration, by the sole Initial Member. Certain
terms used herein are defined in Section 1.6.
ARTICLE I
GENERAL PROVISIONS; CAPITAL CONTRIBUTIONS; DEFINITIONS
Section 1.1 Formation. The formation of Xxxxxxx Electronics, LLC
(the "LLC") pursuant to and in accordance with the Delaware Limited Liability
Company Act, 6 Del. C. ss. 18-101. et seq., as amended from time to time (the
"Act"), occurred on August 27, 1999. An authorized person within the meaning of
the Act executed, delivered and filed the certificate of formation of the LLC on
August 27, 1999 (the "Certificate"). Upon the Initial Member's (i) execution of
this Agreement or a counterpart hereof and (ii) the making of the capital
contribution required by Section 1.5, such Initial Member shall be admitted to
the LLC as its sole Member.
Section 1.2 Name. The name of the LLC will be "Xxxxxxx Electronics,
LLC" or such other name or names as the Board may from time to time designate.
Section 1.3 Purpose. The LLC's purpose shall be to carry on any
lawful business, purpose or activity which may be lawfully carried on by a
limited liability company organized pursuant to the Act, including, without
limiting the foregoing, possessing and exercising all of the powers that are
exercisable under Sections 121, 122 and 123 of the Delaware General Corporation
Law by a Delaware corporation.
Section 1.4 Registered Office; Registered Agent; Place of Business.
The registered office of the LLC required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate or such other office (which need not be a place of business of
the LLC) as the Board may designate from time to time in the manner provided by
law. The registered agent of the LLC in the State of Delaware shall be the
initial registered agent named in the Certificate or such other person or
persons as the Board may designate from time to time in the manner provided by
law. The LLC will maintain an office and principal place of business at such
place or places inside or outside the State of Delaware as the Board may
designate from time to time.
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Section 1.5 Capital Contributions; Liability.
(a) The Initial Member shall, promptly following the execution
of this Agreement, contribute to the capital of the LLC the assets
specified on Schedule I attached hereto. The Board shall amend Schedule I
from time to time to reflect any future capital contribution made by any
Participant. Persons hereafter admitted as Members of the LLC shall make
such contributions of cash (or promissory obligations), property or
services to the LLC as shall be determined by the Board and the Member
making the contribution in their sole discretion at the time of each such
admission.
(b) No Participant shall have any responsibility to restore
any negative balance in his, her or its Capital Account or return
distributions made by the LLC except as required by the Act or other
applicable law. Except as required by the Act, the debts, obligations and
liabilities of the LLC, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the LLC and no
Participant or officer of the LLC shall be obligated personally for any
such debt, obligation or liability of the LLC solely by reason of being a
Participant or acting as an officer of the LLC. The failure of the LLC to
observe any formalities or requirements relating to the exercise of its
powers or management of its business or affairs under this Agreement or
the Act shall not be grounds for imposing personal liability on the
Participants for liabilities of the LLC.
(c) No interest shall be paid by the LLC on capital
contributions or on balances in Capital Accounts.
(d) A Participant shall not be entitled to withdraw any part
of his, her or its Capital Account or to receive any distributions from
the LLC except as provided in Articles III and V; nor shall a Participant
be entitled to make any capital contribution to the LLC other than as
expressly provided herein. Any Participant may, with the approval of the
Board, make loans to the LLC, and any loan by a Participant to the LLC
shall not be considered to be a capital contribution for any purpose and
shall not result in an increase in the amount of the Capital Account of
such Participant.
Section 1.6 Definitions. For purposes of this Agreement:
"Act" has the meaning set forth in Section 1.1.
"Board" has the meaning set forth in Section 4.1(a) hereof.
"Book Value" means, with respect to any LLC property, the LLC's
adjusted basis for federal income tax purposes, except that the initial Book
Value of any property contributed to the LLC shall be the value of such property
on the date of such contribution, as agreed by the Board and the Member
contributing the property, and the Book Value of any LLC property shall be
adjusted pursuant to Treasury Regulation Section 1.704-1 (b)(2)(iv)(c) (in
connection with a distribution of such properly) or (f) (in connection with a
revaluation of Capital Accounts).
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"Capital Account" has the meaning set forth in Section 2.1.
"Certificate" has the meaning set forth in Section 1.1.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated thereunder.
"Event of Withdrawal" means the death, expulsion, bankruptcy,
dissolution or withdrawal of a Member.
"Initial Member" means Xxxxxxx Electronics, Inc., a Delaware
corporation.
"Majority in Interest" means the Member(s) holding a majority of the
Percentage Interests of all Members.
"Member" means any of the parties identified on Schedule I as a
member or admitted as a member after the date of this Agreement in accordance
with the terms hereof, in each case for so long as such person continues to be a
member hereunder.
"Participant" means a Member or a Terminated Member.
"Percentage Interest" means, in respect of each Participant, such
Participant's interest in the income, gains, losses, deductions and expenses of
the LLC as set forth on Schedule I.
"Profits and Losses" means items of income, gain, loss and
expenditure as determined for federal income tax purposes, modified by taking
into account the additional items of income and expenditure listed in Treas.
Reg. ss. 1.704-1(b)(2)(iv)(b).
"Tax Matters Partner" has the meaning set forth in Section 8.3(d).
"Terminated Member" means a person or entity who has ceased to be a
Member pursuant to Section 4.6.
"Transfer" has the meaning set forth in Section 4.3(a).
"Treasury Regulation" means the United States Treasury Regulations
promulgated under the Code, and any reference to any particular Treasury
Regulation section shall be interpreted to include any final or temporary
revision of or successor to that section regardless of how numbered or
classified
Section 1.7 Term. The LLC shall continue until dissolved and
terminated in accordance with Article V of this Agreement.
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Section 1.8 No State-Law Partnership. The Participant(s) intend that
the LLC not be a partnership (including, without limitation, a limited
partnership) or joint venture, and that no Participant be a partner or joint
venturer of any other Participant, for any purposes other than federal and, if
applicable, state income tax purposes, and neither this Agreement nor any other
document entered into by the LLC or any Participant shall be construed to
suggest otherwise. The Participant(s) intend that (i) for so long as the LLC has
only one Member, the LLC shall elect to be disregarded as a separate entity for
federal and, if applicable, state income tax purposes and (ii) if and when the
LLC has more than one Member, the LLC shall be treated as a partnership for
federal and, if applicable, state income tax purposes, and that each Participant
and the LLC shall file all tax returns and shall otherwise take all tax and
financial reporting positions in a manner consistent with such treatment.
ARTICLE II
CAPITAL ACCOUNTS
Section 2.1 Capital Accounts. A capital account will be established
for each Participant on the books of the LLC (each, a "Capital Account") and
will be adjusted as follows
(a) Such Participant's contributions to the capital of the LLC
will credited to his, her or its Capital Account when received by the LLC.
(b) At the end of each fiscal year of the LLC and upon
dissolution and winding up of the LLC pursuant to Article V, Profits for
such period allocated to such Participant pursuant to Section 3.2 shall be
credited and Losses for such period allocated to such Participant pursuant
to Section 3.2 shall be debited, as the case may be, to such Participant's
Capital Account.
(c) Any amounts distributed to such Participant will be
debited against his, her or its Capital Account,
(d) Such Participant's Capital Account will otherwise be
adjusted in accordance with Treasury Regulation Section 1.704-l(b)(2)(iv).
Notwithstanding the foregoing, for so long as the Initial Member remains the
sole Member of the LLC, the LLC shall not maintain a Capital Account for such
Member.
Section 22 Distribution in Kind. If property is to be distributed in
kind to the Participants pursuant to this Agreement, (i) the value of such
property shall first be adjusted pursuant to its value (as determined pursuant
to Article VI as of the date of such distribution), (ii) the Capital Accounts of
the Participant(s) shall be adjusted immediately prior to the distribution as if
such property were sold at its value (as so determined) and (iii) the value of
such property (as so
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determined) received by each Participant shall be debited against his, her or
its respective Capital Account at the time of distribution.
ARTICLE III
DISTRIBUTIONS AND ALLOCATIONS
Section 3.1 Distributions. Distributions of cash or other assets of
the LLC shall be made at such times and in such amounts as the Board may
determine. Unless the Board determines otherwise, distributions shall be made to
Participants pro rata based on the Percentage Interests held by each
Participant. Notwithstanding any provision to the contrary contained in this
Agreement, the LLC shall not make a distribution to any Participant on account
of his, her or its interest in the LLC if such distribution would violate
Section 18-607 of the Act or other applicable law.
Section 3.2 Allocation of Profits and Losses. Except as may be
required by the Code, Profits and Losses shall be allocated among the
Participant(s) in such a manner that, as of the end of such Fiscal Year the
Capital Account of each Participant shall be equal to the respective net
amounts, positive or negative, which would be distributed to them or for which
they would be liable to the LLC under this Agreement, determined as if the LLC
were to (a) liquidate the assets of the LLC for an amount equal to their Book
Value and (b) distribute the proceeds of liquidation pursuant to Section 5.3.
ARTICLE IV
MANAGEMENT AND MEMBER RIGHTS
Section 4.1 Management Authority,
(a) Except as otherwise provided in this Agreement, the business and
affairs of the LLC shall be managed under the direction of the Board of
Managers (the "Board"). The Board, or its authorized representative(s),
shall have the sole right to manage the business of the LLC and shall have
all of the powers and rights necessary, appropriate or advisable to
effectuate and carry out the purposes and business of the LLC, including
the authority to act for and bind the LLC. Each member of the Board shall
be referred to herein as a "Manager" and shall be designated as a "Class A
Manager" or a "Class B Manager."
(b) The Board shall initially consist of four (4) individuals. The
authorized number of each class of Managers shall be two (2) Class A
Managers and two (2) Class B Managers. The Class A Managers shall each
have four (4) votes on any matter submitted to the Board for a decision
and the Class B Managers shall each have one (1) vote on any matter
submitted to the Board for a decision. A Manager may vote or be present at
a meeting either
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in person or by proxy. The initial Managers and their class status are set
forth on Schedule II hereto, as the same may be amended from time to time
hereafter to reflect the appointment of successor Managers. Managers shall
be elected by the Members holding a Majority in Interest and shall be
elected to serve for one year and until his successor shall be elected.
The Members holding a Majority in Interest shall have the power from time
to time, and at any time, to increase or decrease the number of Managers
by an amendment to this Agreement. If the number of Managers be increased,
the additional Managers shall be elected by the Members holding a Majority
in Interest. If one or more vacancies shall occur in the Board by reason
of death, resignation or otherwise, the Members holding a Majority in
Interest may elect a successor or successors for the unexpired term or
terms.
(c) A majority of the total number of Managers fixed by, or in the
manner provided in, this Agreement shall constitute a quorum for the
transaction of business by the Board. All decisions of the Board will be
by majority vote of the Managers present at a meeting at which a quorum is
present. Meetings of the Board may be called by any Class A Manager or the
Chief Executive Officer of the LLC upon at least two days' prior written
notice to all Managers. Meetings may also be held at any time without
notice if all the Managers of the Board are present, or if at any time
before or after the meeting those not present waive notice of the meeting
in writing. In addition, the Board may act by written consent without a
meeting as long as the Managers holding the votes necessary to constitute
a majority of the total votes to be cast by all Managers have executed the
written consent.
(d) The Board may appoint such officers, to such terms and to
perform such functions as the Board shall determine in its sole
discretion. The Board may appoint, employ or otherwise contract with such
other persons or entities for the transaction of the business of the LLC
or the performance of services for or on behalf of the LLC as it shall
determine in its sole discretion. The Board may delegate to any such
officer, person or entity such authority to act on behalf of the LLC as
the Board may from time to time deem appropriate in its sole discretion.
(e) When the taking of such action has been authorized by the Board,
any officer of the LLC or any other person or entity specifically
authorized by the Board, may execute any contract or other agreement or
document on behalf of the LLC and may execute and file on behalf of the
LLC with the Secretary of State of the State of Delaware any certificates
of amendment to the LLC's Certificate, one or more restated certificates
of formation and certificates of merger or consolidation and, upon the
dissolution and completion of winding up of the LLC, at any time when
there are no Members, or as otherwise provided in the Act, a certificate
of cancellation canceling the LLC's Certificate.
Section 4.2 Indemnification. Except as limited by law and subject to
the provisions of this Section 4.2. each person and entity shall be entitled to
be indemnified and held harmless on an as incurred basis by the LLC (but only
after first making a claim for indemnification available from any other source
and only to the extent indemnification is not provided by that source) to the
fullest extent permitted under the Act (including indemnification for
negligence, gross
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negligence and breach of fiduciary duty to the extent so authorized) as amended
from time to time (but, in the case of any such amendment, only to the extent
that such amendment permits the LLC to provide broader indemnification rights
than such law permitted the LLC to provide prior to such amendment) against all
losses, liabilities and expenses, including attorneys' fees and expenses arising
from claims, actions and proceedings in which such person or entity may be
involved, as a party or otherwise, by reason of his, her or it being or having
been a member of the Board, Participant or officer of the LLC, or by reason of
his, her or it serving at the request of the LLC as a director, officer, Board,
member, partner, employee or agent of another limited liability company or of a
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan whether or not such person or
entity continues to be such or serve in such capacity at the time any such loss,
liability or expense is paid or incurred. The rights of indemnification provided
in this Section 4.2 will be in addition to any rights to which such person or
entity may otherwise be entitled by contract or as a matter of law and shall
extend to his, her or its successors and assigns. In particular, and without
limitation of the foregoing, such person or entity shall be entitled to
indemnification by the LLC against expenses (as incurred), including attorneys'
fees and expenses, incurred by such person or entity upon the delivery by such
person or entity to the LLC of a written undertaking (reasonably acceptable to
the Board) to repay all amounts so advanced if it shall ultimately be determined
that such person or entity is not entitled to be indemnified under this Section
4.2. The LLC may, to the extent authorized from time to time by the Board, grant
rights to indemnification and to advancement of expenses to any employee or
agent of the LLC to the fullest extent of the provisions of this Section 4.2
with respect to the indemnification and advancement of expenses of the members
of the Board, Participants and officers of the LLC
Section 4.3 Transfer of LLC Interest.
(a) No Participant shall sell, assign, transfer or otherwise
dispose of whether voluntarily or involuntarily or by operation of law (a
"Transfer"), all or any portion of his, her or its interest in the LLC
without the prior written consent of the Board, which consent may be given
or withheld in its sole discretion. No Participant shall pledge or
otherwise encumber all or any portion of his, her or its interest in the
LLC, without the prior written consent of the Board, which consent may be
given or withheld in its sole and absolute discretion. As of the date
hereof, the Board has approved the pledge of the Initial Member's interest
in the LLC to Chase pursuant to Section 7.3 hereof.
(b) Notwithstanding any other provision of this Agreement, any
Transfer by the Participants in contravention of any of the provisions of
this Section 4.3 shall be void and ineffective, and shall not bind, or be
recognized by, the LLC.
(c) If and to the extent any Transfer of an interest in the
LLC is made pursuant to and in accordance with the terms of this
Agreement, this Agreement (including the Schedules hereto) shall be
amended by the Board to reflect the Transfer of the LLC interest to the
transferee, to admit the transferee as a Member and to reflect the
elimination of the transferring Participant (or the reduction of such
transferring Participant's interest in the LLC) and (if and to the extent
then required by the Act) a certificate of amendment to the
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Certificate reflecting such admission and elimination (or reduction) shall
be filed in accordance with the Act. The effectiveness of the Transfer of
an interest in the LLC permitted hereunder and the admission of any
substitute Member pursuant to this Section 4.3 shall be deemed effective
upon the later to occur of the time of Transfer of an interest in the LLC
to such transferee or the first date that the Board receives evidence of
such Transfer, including the terms thereof. If the transferring
Participant has transferred all or any of its interest in the LLC pursuant
to this Section 4.3, then, upon the later to occur of the time of such
Transfer or the first date that the Board receives evidence of such
Transfer, including the terms thereof, the transferring Participant shall
cease to be a Participant with respect to such interest.
(d) Any person or entity who acquires in any manner whatsoever
any interest in the LLC, irrespective of whether such person or entity has
accepted and adopted in writing the terms and provisions of this
Agreement, shall be deemed by the acceptance of the benefits of the
acquisition thereof to have (i) made all of the capital contributions,
(ii) received all of the distributions, and (iii) agreed to be subject to
and bound by all of the terms and conditions of this Agreement, that any
predecessor in such interest in the LLC made, received and was subject to
or bound.
Section 4.4 Member Rights: Meetings.
(a) No Member shall have any right, power or duty, including the
right to approve or vote on any matter, except as expressly required by
the Act or other applicable law or unless such Member is also a Manager on
the Board acting pursuant to Article IV hereof.
(b) Unless a greater vote is required by the Act or as expressly
provided for hereunder, the affirmative vote of a Majority in Interest of
the Member(s) entitled to vote shall be required to approve any proposed
action, if such a vote is required by the Act or other applicable law.
(c) Meetings of the Member(s) for the transaction of such business
as may properly come before such Member(s) shall be held at such place, on
such date and at such time as the Board shall determine. Special meetings
of Member(s) for any proper purpose or purposes may be called at any time
by the Board or the Member(s) holding a Majority in Interest. The LLC
shall deliver oral or written notice (written notice may be delivered by
mail) stating the date, time, place and purposes of any meeting to each
Member entitled to vote at the meeting. Such notice shall be given not
less than five (5) and no more than thirty (30) days before the date of
the meeting.
(d) Any action required or permitted to be taken at an annual or
special meeting of the Member(s) may be taken without a meeting, without
prior notice, and without a vote; provided that written consents, setting
forth all proposed actions to be taken at such meeting, are signed by the
Member(s) holding at least the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
Member(s) entitled to
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vote on such action were present and voted. Every written consent shall
bear the date and signature of each Member who signs such consent. Prompt
notice of the taking of action without a meeting by less than unanimous
written consent shall be given to all Members who have not consented in
writing to such action.
(e) Members may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Agreement shall constitute
presence in person at such meeting. All resolutions adopted at any such
meeting shall be reduced to writing and included in the minutes of such
meeting.
(f) Any meeting of Members may be adjourned from time to time, to
reconvene at the same or some other place, and notice need not be given of
any such adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting
the LLC may transact any business which might have been transacted at the
original meeting.
(g) Each Member shall be entitled to one vote for each outstanding
Percentage Interest held by such Member.
(h) Whenever notice is required to be given by law or under any
provision of this Agreement, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Members need be specified in any written notice or waiver of notice of
meeting
(i) In order that the LLC may determine the Members entitled to
notice of or to vote at any meeting of Members or any adjournment thereof
or to consent to action in writing without a meeting, the Members or any
officer of the LLC may fix a record date, whereon record date shall not be
more than 60 nor less than 10 days before the date of such meeting or
consent, as applicable. If no record date is set, the record date for
determining Members entitled to notice of or to vote at a meeting shall be
at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. If no record date is
set the record date for determining Members entitled to consent to action
in writing without a meeting shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the LLC. A determination of Members of record entitled to
notice of or to vote at a meeting shall apply to any adjournment of the
meeting provided that a new record date for the adjourned meeting may be
established.
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Section 4.5 Additional Members. The Board shall have the sole right
to admit additional Members upon such terms and conditions and at such time or
times as the Board shall in its sole discretion determine. In connection with
any such admission, the Board shall amend Schedule I to reflect the name,
address and capital contribution of the additional Member and the new Percentage
Interests of all Participants and such additional Member shall execute a
supplement or amendment to this Agreement or a restatement of this Agreement
whereby such additional Member agrees to be bound by the provisions of this
Agreement.
Section 4.6 Termination of a Member. A person or entity will no
longer be a Member for purposes of this Agreement upon an Event of Withdrawal.
The Terminated Member shall only be entitled to continue to receive allocations
of Profits and Losses and distributions of the LLC, including distributions
pursuant to Article V hereof, as and when paid by the LLC, to the same extent
such Terminated Member was entitled to such distributions as a Member. Except as
provided in Section 9.1, such Terminated Member will not be entitled to
participate in any LLC decision or determination, and his, her or its successors
and assigns will acquire only his, her or its right to receive allocations of
Profits and Losses and to share in LLC distributions.
Section 4.7 Outside Businesses. Any Participant may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the LLC,
and the LLC and the Participants shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or gains derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the LLC, shall not be deemed wrongful or improper. No Participant
shall be obligated to present any particular investment opportunity to the LLC
even if such opportunity is of a character that if presented to the LLC, could
be taken by the LLC, and any Participant shall have the right to take for his,
her or its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment opportunity.
ARTICLE V
DURATION
Section 5.1 Duration. Subject to the provisions of Section 5.2 of
this Agreement, the LLC shall be dissolved and its affairs wound up and
terminated upon the first to occur of following:
(a) The determination of the Board to dissolve, wind up and
terminate
(b) The occurrence of an Event of Withdrawal with respect to
the Initial Member; or
(c) The entry of a decree of judicial dissolution under
Section 18-802 of the Act.
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Except as otherwise set forth in this Article V, the Member(s) intend for the
LLC to have perpetual existence.
Section 5.2 Continuation of the LLC. Notwithstanding the provisions
of Section 5.1(b) hereof, the occurrence of an Event of Withdrawal with respect
to the Initial Member shall not dissolve the LLC if within ninety (90) days
after the occurrence of such Event of Withdrawal, the business of the LLC is
continued by the agreement of remaining Member(s) holding not less than a
majority in interest (as defined in Revenue Procedure 94-46 or any successor
hereto) of the remaining Member(s).
Section 5.3 Winding Up.
Upon dissolution of the LLC, the LLC shall be liquidated in an
orderly manner. The Board (or person or entity appointed by the Board) shall be
the liquidator pursuant to this Agreement and shall proceed diligently to wind
up the affairs of the LLC and make final distributions as provided herein and in
the Act. The costs of liquidation shall be borne as a LLC expense. The steps to
be accomplished by the liquidator are as follows:
(a) First, the liquidator shall satisfy all of the LLC's
debts, liabilities and obligations to creditors, including Participants
(whether by payment or the reasonable provision for payment thereof),
other than liabilities and obligations for distributions to Participants
pursuant to Section 18-601 or 18-604 of the Act; and
(b) Second, all remaining assets shall be distributed in the
following manner: (i) if the Initial Member remains the sole Member of the
LLC, to such Initial Member and (ii) otherwise to the Participants in
accordance with their respective Capital Account balances relative to the
sum of all Capital Account balances (after taking into account any
adjustments to the Book Values of assets distributed in kind pursuant to
this Agreement).
Section 5.4 Termination. The LLC shall terminate when all of the
assets of the LLC, after payment of or due provision for all debts, liabilities
and obligations of the LLC, shall have been distributed to the Participants in
the manner provided for in this Article V, and the Certificate of the LLC shall
have been canceled in the manner required by the Act.
ARTICLE VI
VALUATION
Section 6.1 Valuation. For purposes of this Agreement, the value of
any property contributed by or distributed to any Participant shall be valued as
determined by the Board in its reasonable judgment.
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ARTICLE VII
CERTIFICATION OF MEMBERSHIP INTERESTS
Section 7.1 Membership Interests. Every holder of a membership
interest in the LLC shall be entitled to a certificate, signed by, or in the
name of the LLC by a member of the Board, or any officer of the LLC provided
with such authority pursuant to Section 4.1(d) above, certifying such Member's
Percentage Interest in the LLC. All certificates for membership interests shall
be consecutively numbered or otherwise identified. The name of the person or
entity to whom the membership interests thereby are issued, with the Percentage
Interest and date of issue, shall be entered on the books of the LLC. Membership
interests of the LLC shall only be transferred on the books of the LLC by the
holder of record thereof or by such holder's attorney duly authorized in
writing, upon surrender to the LLC of the certificate for such membership
interests endorsed by the appropriate person or persons, with such evidence of
the authenticity of such endorsement, transfer, authorization, and other matters
as the LLC may require. In that event, it shall be the duty of the LLC to issue
a new certificate to the person or entity entitled thereto, cancel the old
certificate, and record the transaction on its books. The Board may appoint a
bank or trust company organized under the laws of the United States or any state
thereof to act as its transfer agent or registrar, or both in connection with
the transfer of any membership interests of the LLC. For purposes of Article 8
of the Uniform Commercial Code, each interest in the Company as evidenced by a
certificate shall be deemed to be a "security," as such term is defined in any
applicable Uniform Commercial Code.
Section 7.2 Lost Certificates. The Board may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the LLC alleged to have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person or entity
claiming the certificate to be lost, stolen, or destroyed. When authorizing such
issuance of a new certificate or certificates, the Board may, in its sole
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 or its legal representative, to give the LLC a bond sufficient to indemnify
the LLC against any claim that may be made against the LLC on account of the
loss, theft or destruction of any such certificate or the issuance of such new
certificate.
Section 7.3 Agreement to Pledge Membership Interests.
Notwithstanding any provision herein to the contrary, the initial Member shall
pledge such Member's Percentage Interest in the LLC to secure the indebtedness
of the Member and its subsidiaries. The initial Member hereby agrees to take any
and all actions and execute such instruments, agreements and other documents to
effect the pledge of such Member's Percentage Interest.
Section 7.4 Pledge of Membership Interests. To secure, among other
things, the payment and performance of the obligations of the initial Member to
The Chase Manhattan Bank as administrative agent ("Chase") for itself and
certain other financial institutions (the "Lenders") from time to time party to
that certain Credit Agreement, dated as of June 28, 1999, among Chase, the
Lenders and the Member (as amended from time to time, the "Credit Agreement"),
the Member will pledge 100% of its Percentage Interest in the LLC to Chase, for
the benefit of itself and the
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Lenders. Said pledge is hereby authorized by the initial Member and the LLC. The
books and records of the LLC shall be marked to reflect the pledge of the
Percentage Interest to Chase, for the benefit of itself and the Lenders. For so
long as any Loans (as defined in the Credit Agreement) remain outstanding, no
Percentage Interest or any rights relating thereto will be transferred or
further encumbered and no new Members will be admitted without the written
consent of Chase and, if the Company is advised by Chase that an event of
default has occurred under the Credit Agreement, the LLC will comply with the
provisions of the Pledge Agreement (as defined in the Credit Agreement), dated
as of June 28, 1999. No exercise by Chase of its rights under such Pledge
Agreement shall constitute a violation of or be prohibited by this Agreement and
Chase shall become a member upon such exercise.
ARTICLE VIII
BOOKS OF ACCOUNT
Section 8.1 Books. The Board or an officer appointed by the Board
will maintain on behalf of the LLC complete and accurate books of account of the
LLC's affairs at the LLC's principal office, which books will be open to
inspection by any Member (or his authorized representative) at any time during
ordinary business hours and shall be maintained in accordance with the Act.
Section 8.2 Fiscal Year. The fiscal year of the LLC shall end on
December 31 of each year.
Section 8.3 Tax Allocation and Reports.
(a) The income, gains, losses, deductions and credits of the
LLC will be allocated, for federal, state and local income tax purposes,
among the Participants in accordance with the allocation of such income,
gains, losses, deductions and credits among the Participants for computing
their Capital Accounts, except as otherwise provided in the Code or other
applicable law. In addition, for so long as the Initial Member remains the
sole Member of the LLC, all taxable items of income, gain, loss, deduction
or credit of the LLC shall be calculated and allocated to such Member as
if the LLC were a division of such Member.
(b) In accordance with Code Section 704(c) and the Treasury
Regulations thereunder, income, gain, loss, deduction and expense with
respect to any property contributed to the capital of the LLC shall,
solely for tax purposes, be allocated among the Participants so as to take
account of any variation between the adjusted basis of such property to
the LLC for federal income tax purposes and its fair market value at the
time of contribution.
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(c) Within 75 days after the end of each fiscal year, the Tax
Matters Partner (as defined below) shall cause the LLC to furnish each
Participant with a copy of the LLC's tax return and Schedule K-1 for such
fiscal year.
(d) The LLC hereby designates the Chief Executive Officer of
the Company or if there is no such officer then a person selected by the
Board to act as the "Tax Matters Partner" (as defined in Section 6231
(a)(7) of the Code) in accordance with Sections 6221 through 6233 of the
Code.
(e) For so long as the LLC has only one Member, the LLC shall
make an election on IRS Form 8832 to be treated as a domestic entity with
a single owner electing to be disregarded as a separate entity.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments. This Agreement may be amended or modified
and any provision hereof may be waived by the Board or Members holding a
Majority in Interest; provided that any amendment or modification reducing
disproportionately a Participant's Percentage Interest or other interest in the
Profits, Losses or distributions or increasing such persons or entity's capital
contribution shall be effective only with that person's or entity's consent.
Section 9.2 Successors. Except as otherwise provided herein, this
Agreement will inure to the benefit of and be binding upon the Participants and
their respective legal representatives, heirs, successors and permitted assigns.
Section 9.3 Governing Law; Severability. The Agreement will be
construed in accordance with the laws of the State of Delaware, and, to the
maximum extent possible, in such manner as to comply with all of the terms and
conditions of the Act. If it is determined by a court of competent jurisdiction
that any provision of this Agreement is invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
Section 9.4 Notices. All notices, demands and other communications
to be given and delivered under or by reason of provisions under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered, mailed by first class mail (postage prepaid and return receipt
requested), sent by telecopy or sent by reputable overnight courier service
(charges prepaid) to the addresses or telecopy numbers set forth in Schedule I
or to such other addresses or telecopy numbers as have been supplied in writing
to the LLC.
Section 9.5 Complete Agreement: Headings, Counterparts. This
Agreement terminates and supersedes all other agreements concerning the subject
matter hereof previously entered into among any of the parties. Descriptive
headings are for convenience only and will not
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control or affect the meaning or construction of any provision of this
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or the plural shall include the singular and the plural, and
pronouns stated in either the masculine, feminine or the neuter gender shall
include the masculine, the feminine and the neuter. This Agreement may be
executed in any number of counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts together will
constitute one agreement.
Section 9.6 Waivers. Each Participant waives, until termination of
the LLC, any and all rights that he, she or it may have to maintain an action
for partition of the LLC's property and all rights he, she or it may have under
Section 18-604 of the Act with respect to being paid the fair value of such
Participant's membership interest in the LLC upon resignation from the LLC.
Section 9.7 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
Section 9.8 Fiduciary Duties. To the extent that, at law or in
equity, any Member or officer of the LLC has duties (including fiduciary duties)
and liabilities relating thereto to the LLC or to another Member or officer of
the LLC, (a) such person or entity acting under this Agreement shall not be
liable to the LLC or to any other person or entity as a consequence of such
person's or entity's good faith reliance on the provisions of this Agreement and
(b) such person's or entity's duties and liabilities are restricted by the
provisions of this Agreement to the extent that such provisions restrict the
duties and liabilities of such persons or entities otherwise existing at law or
in equity.
Section 9.9 Liabilities. No Member shall be liable for any debts,
obligations and liabilities, whether arising in contract, tort or otherwise, of
any other Member or officer of the LLC, and no officer of the LLC shall be
liable for any debts, obligations and liabilities, whether arising in contract,
tort or otherwise, of any Member or other officer of the LLC.
* * * * *
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16
IN WITNESS WHEREOF, the party hereto has caused this Agreement to be
signed as of the date first above written.
XXXXXXX ELECTRONICS, INC.
By: /s/ Reg Garratt
------------------------------
Its: Chairman and CEO
------------------------------
17
IN WITNESS WHEREOF, the party hereto has caused this Agreement to be
signed as of the date first above written.
XXXXXXX ELECTRONICS, INC.
By: /s/ Reg Garratt
------------------------------
Its: Chairman and CEO
------------------------------
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SCHEDULE I
--------------------------------------------------------------------------------
PERCENTAGE
MEMBER(S) CAPITAL CONTRIBUTION INTEREST
--------------------------------------------------------------------------------
Xxxxxxx Electronics, Inc. All of the assets and a portion 100%
0000 Xxxxxxxxx Xxxxx of the liabilities of the Member
Xxxxxx, Xxxxxxxx 00000 as specified in the Contribution
Attention: Xxxxxxx Xxxxx Agreement, dated as of the date
Telephone: (000) 000-0000 hereof, by and between Xxxxxxx
Fax: (000) 000-0000 Electronics, Inc. and Xxxxxxx
Electronics, LLC.
--------------------------------------------------------------------------------
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SCHEDULE II
Class A Managers
Xxx Xxxxx
Xxxxx Xxxxx
Class B Managers
Reg Xxxxxxx
Xxxxx X. Xxxxxxx
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20
FIRST AMENDMENT TO
THE LIMITED LIABILITY COMPANY AGREEMENT OF
XXXXXXX ELECTRONICS, LLC
This FIRST AMENDMENT TO THE LIMITED LIABILITY COMPANY AGREEMENT OF
XXXXXXX ELECTRONICS, LLC, effective March 14, 2000 (the "First Amendment") is
hereby adopted, executed, and agreed to by XXXXXXX ELECTRONICS HOLDINGS, INC., a
Delaware corporation (the "Sole Member") and accepted by the BOARD OF MANAGERS
OF XXXXXXX ELECTRONICS, LLC (the "Board").
W I T N E S S E T H:
WHEREAS, the Sole Member adopted, executed and agreed to the Limited
Liability Company Agreement of Xxxxxxx Electronics, LLC, dated August 30, 199
(the "Agreement").
WHEREAS, pursuant to Section 9.1 of the Agreement, the Agreement may be
amended or modified and any provision thereof may be waived by the Board or the
Sole Member;
WHEREAS, the Sole Member desires to amend Sections 4.1(a), 4.1(b) and
4.1(c) of the Agreement .
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Sections 4.1(a), 4.1(b) and 4.1(c), are hereby removed in their
entirety and shall be replaced with the following:
(a) Except as otherwise provided in this Agreement, the
business and affairs of the LLC shall be managed under the direction of
the Board of Managers (the "Board"). The Board, or its authorized
representative(s), shall have the sole right to manage the business of
the LLC and shall have all of the powers and rights necessary,
appropriate or advisable to effectuate and carry out the purposes and
business of the LLC, including the authority to act for and bind the
LLC. Each member of the Board shall be referred to herein as a
"Manager".
(b) The Board shall consist of two (2) individuals. Each
Manager shall have one (1) vote on any matter submitted to the Board
for a decision. A Manager may vote or be present at a meeting either in
person or by proxy. The names of the Managers are set forth on Schedule
II hereto, as the same may be amended from time to time hereafter to
reflect the appointment of successor Managers. Managers shall be
elected by the Members holding a Majority in Interest and shall be
elected to serve
21
for one year and until his successor shall be elected. The Members
holding a Majority in Interest shall have the power from time to time,
and at any time, to increase or decrease the number of Managers by an
amendment to this Agreement. If the number of Managers be increased,
the additional Managers shall be elected by the Members holding a
Majority in Interest. If one or more vacancies shall occur in the Board
by reason of death, resignation or otherwise, the Members holding a
Majority in Interest may elect a successor or successors for the
unexpired term or terms.
(c) A majority of the total number of Managers fixed by or in
the manner provided in, this Agreement shall constitute a quorum for
the transaction of business by the Board. All decisions of the Board
will be by majority vote of the Managers present at a meeting at which
a quorum is present. Meetings of the Board may be called by any Manager
or the Chief Executive Officer of the LLC upon at least two days' prior
written notice to all Managers. Meetings may also be held at any time
without notice if all the Managers of the Board are present, or if at
any time before or after the meeting those not present waive notice of
the meeting in writing. In addition, the Board may act by written
consent without a meeting as long as the Managers holding the votes
necessary to constitute a majority of the total votes to be cast by all
Managers have executed the written consent.
2. The remainder the terms and provisions of the Agreement shall remain
in their entirety.
In Witness Whereof, the parties hereto have caused this First Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
SOLE MEMBER:
Xxxxxxx Electronics Holdings, Inc.,
a Delaware corporation
By: /s/ Xxxx X. Xxx
-------------------------------
Xxxx X. Xxx
CEO & President
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxx
ACCEPTED BY:
XXXXXXX ELECTRONICS, LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxx
----------------------------
Xxxx X. Xxx, CEO
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SCHEDULE II
Xxxx X. Xxx
Xxxxx X. Xxxxx