EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
IOS CAPITAL, LLC
THE UNDERSIGNED is executing this Limited Liability Company Agreement
(this "Agreement") for the purpose of forming a limited liability company (the
"Company") pursuant to the provisions of the Delaware Limited Liability
Company Act, 6 Del. C. xx.xx. 18-101 et seq., as amended from time to time,
(the "Delaware Act"), and does hereby certify as follows:
WHEREAS, IOS Capital, Inc. (the "Corporation"), was formed as a Delaware
corporation on December 15, 1987;
WHEREAS, by unanimous written consent, the Board of Directors of the
Corporation adopted a resolution adopting and approving the conversion of the
Corporation to a Delaware limited liability company and the adoption of this
Agreement, and recommending the adoption of such conversion and this Agreement
to IKON Office Solutions, Inc., an Ohio corporation and the sole stockholder
of the Corporation (the "Stockholder"), pursuant to Section 266 of the General
Corporation Law of the State of Delaware (the "DGCL");
WHEREAS, by written consent, the Stockholder adopted and approved the
conversion of the Corporation to a limited liability company and the adoption
of this Agreement pursuant to Section 266 of the DGCL;
WHEREAS, on the date hereof, the Corporation was converted to a limited
liability company pursuant to Section 18-214 of the Delaware Act and Section
266 of the DGCL by the filing with the Secretary of State of the State of
Delaware, and the effectiveness, of a Certificate of Conversion to Limited
Liability Company (the "Certificate of Conversion") and a Certificate of
Formation of the Company (the "Certificate of Formation") (together, the
"Conversion"); and
WHEREAS, pursuant to this Agreement and the Conversion, the Stockholder
is admitted as a member of the Company, initially owning all of the limited
liability company interests in the Company.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and intending to be legally
bound, the undersigned hereby agrees as follows:
1. Name; Formation. The name of the Company shall be IOS Capital,
LLC, or such other name as the Board of Managers may from time to time
hereafter designate. Effective as of the time of the Conversion, (i) the
Certificate of Incorporation of the Corporation, dated December 15, 1987 and
the Bylaws of the Corporation are replaced and superseded in their entirety by
this Agreement in respect of all periods beginning on or after the Conversion,
(ii) the Stockholder is hereby automatically admitted as a member of the
Company initially owning all of the limited liability company interests in the
Company, (iii) the Initial Member is continuing the business of the
Corporation without dissolution in the form of a Delaware limited liability
company governed by this Agreement, and (iv) in accordance with Section
18-214(g) of the
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Delaware Act, the Company shall constitute a continuation of the existence of
the Corporation in the form of a Delaware limited liability company and, for
all purposes of the laws of the State of Delaware, shall be deemed to be the
same entity as the Corporation. Xxxx Xxxxx is hereby designated as an
"authorized person" within the meaning of the Delaware Act, and has executed,
delivered and filed the Certificate of Formation and the Certificate of
Conversion with the Secretary of State of the State of Delaware. Upon the
filing of the Certificate of Formation and the Certificate of Conversion with
the Secretary of State of the State of Delaware, his powers as an "authorized
person" ceased, and any Manager or Member and any other person designated by
the Board of Managers, each acting alone, thereupon each became a designated
"authorized person" to execute, deliver and file any amendments and/or
restatements of the Certificate of Formation and any other certificates (and
any amendments and/or restatements thereof) permitted or required to be filed
with the Secretary of State of the State of Delaware, and shall each continue
as a designated "authorized person" within the meaning of the Act. A Manager
or Member or another person designated and authorized by the Board of
Managers, each acting alone to the extent permitted by law, may execute,
deliver and file any other certificates, affidavits and other documentation
(and any amendments and/or restatements thereof) necessary to qualify the
Company as a foreign limited liability company in any state or other
jurisdiction in which such qualification is required by law.
2. Definitions; Rules of Construction. In addition to terms
otherwise defined herein, the following terms are used herein as defined
below:
"Board of Managers" means the board of managers referenced in
Section 7 hereof.
"Bylaws" shall mean the Bylaws of the Company as amended from
time to time which Bylaws are expressly incorporated herein by
reference as part of this Agreement. The initial Bylaws of the
Company are attached hereto as Exhibit A and are hereby adopted and
approved by the Members.
"Capital Contribution" means, with respect to any Member, the
amount or value of cash (or promissory obligations), property or
services contributed by such Member to the Company in accordance
with Section 8 hereof.
"Certificate" means a certificate substantially in the form of
Exhibit B to this Agreement issued by the Company that evidences an
Interest.
"Initial Member" means IKON Office Solutions, Inc., an Ohio
Corporation.
"Interest" means the ownership interest (including the limited
liability company interest) of a Member in the Company (which shall
be considered personal property for all purposes), consisting of (i)
such Member's Percentage Interest in profits, losses, allocations
and distributions, (ii) such Member's right to vote or grant or
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withhold consents with respect to Company matters as provided herein
or in the Delaware Act and (iii) such Member's other rights and
privileges as provided herein or in the Delaware Act.
"Manager" means a member of the Board of Managers as designated
in, or selected pursuant to, Section 7 hereof. A Manager is hereby
designated as a "manager" of the Company within the meaning of the
Delaware Act.
"Members" means the Initial member and all other persons or
entities admitted as additional or substituted members of the
Company pursuant to this Agreement, so long as they remain Members,
in each such person's of entity's capacity as a member of the
Company. Reference to a "Member" means any one of the Members.
"Majority in Interest of the Members" means Members whose
Percentage Interests aggregate to greater than fifty percent of the
Percentage Interests of all Members.
"Percentage Interest" means a Member's share of the profits and
losses of the Company and the Member's percentage right to receive
distributions of the Company's assets. The Percentage Interest of
each Member shall initially be the percentage set forth opposite
such Member's name on Schedule I hereto, as such Schedule shall be
amended from time to time in accordance with the provisions hereof.
The combined Percentage Interest of all Members shall at all times
equal 100%.
Words used herein, regardless of the number and gender used, shall
be deemed and construed to include any other number, singular or plural, and
any other gender, masculine, feminine or neuter, as the context requires, and,
as used herein, unless the context clearly requires otherwise, the words
"hereof," "herein," and "hereunder" and words of similar import shall refer to
this Agreement as a whole and not to any particular provisions hereof.
3. Purpose. The purposes and powers of the Company shall be to
engage in any lawful business or activity that may be engaged in by a limited
liability company formed under the Delaware Act, as such businesses or other
activities may be determined by the Board of Managers from time to time. The
Company, and the Initial Member or any Manager, each acting alone, on behalf
of the Company, may enter into and perform any and all documents, agreements,
certificates, or financing statements contemplated thereby or related thereto,
all without any further act, vote or approval of any Member, Manager or other
person or entity notwithstanding any other provision of this Agreement or the
Delaware Act. The foregoing authorization shall not be deemed a restriction on
the powers of the Initial Member or any Manager to enter into other agreements
on behalf of the Company.
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4. Offices.
(a) The principal office of the Company, and such additional
offices as the Board of Managers may determine to establish, shall be located
at such place or places inside or outside the State of Delaware as the Board
of Managers may designate from time to time.
(b) The registered agent and registered office of the Company
for service of process on the Company in the State of Delaware at such address
is The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. Such registered office or registered agent
may be changed by the Board of Managers from time to time.
5. Members. The name and business, mailing or residence address of
each Member of the Company are as set forth on Schedule I attached hereto, as
the same may be amended from time to time. Subject to the terms of this
Agreement, a Member shall be deemed admitted to the Company as a member of the
Company upon its execution of a counterpart of this Agreement or other
document wherein it agrees to be bound by the terms and conditions of this
Agreement.
6. Term. The term of the Company shall be perpetual unless the
Company is earlier dissolved in accordance with Section 14 of this Agreement.
7. Management of the Company.
(a) Subject to the delegation of rights and powers as provided
for herein and in the Bylaws, the Board of Managers shall have the sole right
to manage the business of the Company and shall have all powers and rights
necessary, appropriate or advisable to effectuate and carry out the purposes
and business of the Company. Except as expressly provided herein, no member,
by reason of its status as such, shall have any authority to act for or bind
the Company but shall have only the right to vote on or approve the actions
specified herein or in the Delaware Act to be voted on or approved by the
Members. At any time that there is only one Member, any and all action
provided for herein or in the Bylaws to be taken or approved by the "Members"
shall be taken or approved by the sole Member.
(b) The Company shall have such officers as are provided for in
the Bylaws, and such officers shall be elected, removed and perform such
functions as are provided in the Bylaws. The Board of Managers may appoint,
employ, or otherwise contract with such other persons or entities for the
transaction of the business of the Company or the performance of services for
or on behalf of the Company as it shall determine in its sole discretion. The
Board of Managers may delegate to any officer of the Company or to any such
other person or entity such authority to act on behalf of the Company as the
Board of Managers may from time to time deem appropriate in its sole
discretion. The salaries or other compensation, if any, of the officers and
agents of the Company shall be fixed from time to time by the Board of
Managers.
(c) Except as otherwise provided by the Board of Managers or in
the Bylaws, when the taking of such action has been authorized by the Board of
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Managers, any Manager or officer of the Company, or any other person
specifically authorized by the Board of Managers, may execute any contract or
other agreement or document on behalf of the Company and may execute on behalf
of the Company and file with the Secretary of State of the State of Delaware
any certificates or filings provided for in the Delaware Act.
(d) The Board of Managers shall consist of one (1) Manager or
such other number as the Board of Managers shall determine. The Board of
Managers shall initially be composed of the following individuals:
Xxxxxxx X. Xxxxxx
Vacancies on the Board of Managers from whatever cause shall be filled by the
remaining Managers, or, if there be none, by a vote of a Majority in Interest
of the Members. Managers shall serve for a term of one (1) year and thereafter
until their respective successors are duly elected by the Members or until
their earlier death, retirement, incapacity or removal. Managers can be
removed with or without cause by a vote of a Majority in Interest of the
Members. Determinations to be made by the Managers in connection with the
conduct of the business of the Company shall be made in the manner provided in
the Bylaws, unless otherwise specifically provided herein.
8. Capital Contributions; Capital Accounts; Administrative Matters;
Certificates.
(a) Except as otherwise agreed by all Members, the Initial
Member shall have no right or obligation to make any capital contributions to
the Company. Persons or entities hereafter admitted as members of the Company
shall make such contributions of cash (or promissory obligations), property or
services to the Company as shall be determined by the Members, acting
unanimously, at the time of each such admission.
(b) At any time that the Company has more than one Member, it
is the intention of the Members that the Company shall be taxed as a
"partnership" for federal, state, local and foreign income tax purposes, and
the following provisions shall apply:
(i) A single, separate capital account shall be maintained
for each Member. Each Member's capital account shall be credited with the
amount of money and the fair market value of property (net of any liabilities
secured by such contributed property that the Company assumes or takes subject
to) contributed by that Member to the Company; the amount of any Company
liabilities assumed by such Member (other than in connection with a
distribution of Company property), and such Member's distributive share of
Company profits (including tax exempt income). Each Member's capital account
shall be debited with the amount of money and the fair market value of
property (net of any liabilities that such Member assumes or takes subject to)
distributed to such Member; the amount of any liabilities of such Member
assumed by the Company (other than in connection with a contribution); and
such Member's distributive share of Company losses (including items that may
be neither deducted nor capitalized for federal income tax purposes).
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(ii) Notwithstanding any provision of this Agreement to
the contrary, each Member's capital account shall be maintained and adjusted
in accordance with the Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"), and the regulations thereunder (the "Regulations"),
including, without limitation, (x) the adjustments permitted or required by
Internal Revenue Code Sections 704(b) and, to the extent applicable, the
principles expressed in Internal Revenue Code Section 704(c) and (y)
adjustments required to maintain capital accounts in accordance with the
"substantial economic effect test" set forth in the Regulations under Internal
Revenue Code Section 704(b).
(iii) Any Member, including any substitute Member, who
shall receive an Interest (or whose Interest shall be increased) by means of a
transfer to him of all or a part of the Interest of another Member, shall have
a capital account that reflects the capital account associated with the
transferred Interest (or the applicable percentage thereof in case of a
transfer of a part of an Interest).
(iv) The end of fiscal year of the Company shall be
September 30. The books and records of the Company shall be maintained in
accordance with generally accepted accounting principles and Section 704(b) of
the Internal Revenue Code and the Regulations.
(v) All items of Company income, gain, loss, deduction,
credit or the like shall be allocated among the Members in accordance with
their respective Percentage Interests as set forth in Schedule I.
(c) At any time that the Company has only one Member, it is the
intention of the Member that the Company shall be disregarded for federal,
state, local and foreign income tax purposes and that all items of income,
gain, loss, deduction, credit or the like of the Company shall be treated as
items of income, gain, loss, deduction, credit or the like of the Member.
(d) (i) Each Member's Interest in the Company shall be
evidenced by a Certificate issued by the Company. Each Certificate shall be
executed by the President or any Vice President and attested to by the
Secretary or any Assistant Secretary (or other persons designated by the Board
of Managers or in the Bylaws).
(ii) The Company shall keep or cause to be kept a register
in which, subject to such regulations as the Board of Managers may adopt, the
Company will provide for the registration of Interests and the registration of
transfers of Interests. The Board of Managers shall maintain such register and
provide for such registration. Upon surrender for registration of transfer of
any Certificate, and subject to the further provisions of this Section 8(d)
and the limitations on transfer contained elsewhere in this Agreement or in
the Bylaws, the Company will cause the issuance and execution, in the name of
the registered holder or the designated transferee, of one or more new
Certificates, evidencing the same aggregate Percentage Interest as did the
Certificate surrendered (which Certificate shall at such time be deemed
canceled). Every Certificate surrendered for registration of transfer shall be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Board
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of Managers (which may be the reverse side of the Certificate) duly executed,
by the registered holder thereof or such holder's authorized attorney.
(iii) The Company shall issue a new Certificate in place
of any Certificate previously issued if the record holder of the Certificate
(A) makes proof by affidavit, in form and substance satisfactory to the Board
of Managers, that a previously issued Certificate has been lost, destroyed or
stolen, (B) requests the issuance of a new Certificate before the Company has
received notice that the Certificate has been acquired by a purchaser for
value in good faith and without notice of an adverse claim, (C) if requested
by the Board of Managers, delivers to the Company a bond, in form and
substance satisfactory to the Board of Managers, with such surety or sureties
and with fixed or open liability as the Board of Managers may direct, to
indemnify the Company, as registrar, against any claim that may be made on
account of the alleged loss, destruction or theft of the Certificate, and (D)
satisfies any other reasonable requirements imposed by the Board of Managers.
(iv) An Interest evidenced by a Certificate shall
constitute a "security" within the meaning and for all purposes of Article 8
of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in
effect from time to time in the State of Delaware and (ii) the Uniform
Commercial Code of any other applicable jurisdiction that now or hereafter
includes the 1994 revisions to Article 8 thereof as adopted by the American
Law Institute and the National Conference of Commissioners on Uniform State
Laws and approved by the American Bar Association on February 14, 1995.
Delaware law shall constitute the local law of the Company's jurisdiction in
its capacity as the issuer of Interests.
9. Assignments of Interests.
(a) No Member may sell, assign, pledge or otherwise transfer or
encumber (collectively "transfer") all or any part of its Interest, and no
transferee of all or any part of the Interest of a Member shall be admitted as
a substituted Member, without, in either event, having obtained the prior
written consent of all other Members, and without the transferring Member
surrendering the Certificate evidencing such Interest and the Company issuing
one or more new Certificates evidencing such Interest in accordance with
Section 8(d) hereof (unless such transfer is a pledge or hypothesation).
(b) The Board of Managers shall amend Schedule I hereto from
time to time to reflect transfers made in accordance with, and as permitted
under, this Section 9. Any purported transfer in violation of this Section 9
shall be null and void and shall not be recognized by the Company.
10. Resignation. No Member shall have the right to resign from the
Company except with the consent of all of the other Members and upon such
terms and conditions as may be specifically agreed upon between such other
Members and the resigning Member. The provisions hereof with respect to
distributions upon resignation are exclusive and no Member shall be entitled
to claim any further or different distribution upon resignation under Section
18-604 of the Delaware Act or otherwise.
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11. Additional Members. The Members, acting unanimously, shall have
the right to admit additional Members upon such terms and conditions, at such
time or times, and for such Capital Contributions as shall be determined by
all of the Members; and in connection with any such admission, the Board of
Managers shall amend Schedule I hereof to reflect the name, address and
Capital Contribution of the additional Member and any agreed upon changes in
Percentage Interests, and shall issue one or more new and/or replacement
Certificates necessary as a result of any such admission.
12. Distributions. Distributions of cash or other assets of the
Company shall be made at such times and in such amounts as the Board of
Managers may determine. Distributions shall be made to (and profits and losses
shall be allocated among) Members pro rata in accordance with their respective
Percentage Interests. Notwithstanding any provision to the contrary contained
in this Agreement, the Company, and the Board of Managers on behalf of the
Company, shall not be required to make a distribution to a Member on account
of its interest in the Company if such distribution would violate Section
18-607 of the Delaware Act or any other applicable law.
13. Return of Capital. No Member or Manager shall have any liability
for the return of any Member's Capital Contribution which Capital Contribution
shall be payable solely from the assets of the Company at the absolute
discretion of the Board of Managers, subject to the requirements of the
Delaware Act.
14. Dissolution. The Company shall be dissolved and its affairs
wound up upon the first to occur of the following:
(a) The determination of all of the Members to dissolve the
Company;
(b) The sale or other disposition of all or substantially all
of the assets of the Company in one transaction or a series of related
transactions; or
(c) The occurrence of any event causing a dissolution of the
Company under Section 18-801 of the Delaware Act, unless the Company is
continued if and as permitted under the Delaware Act.
15. Winding Up of the Company. If the Company is dissolved pursuant
to Section 14 hereof, the Managers, or if there is no remaining Manager, such
person as is designated by a Majority in Interest of the Members (the
remaining Managers or such person being herein referred to as the
"Liquidator"), shall proceed to wind up the business and affairs of the
Company upon such terms, price and conditions as are determined by the
Liquidator in accordance with the terms hereof and the requirements of the
Delaware Act. A reasonable amount of time shall be allowed for the period of
winding up in light of prevailing market conditions and so as to avoid undue
loss in connection with any sale of Company assets. This Agreement shall
remain in full force and effect and continue to govern the rights and
obligations of the Members and Managers and the conduct of the Company during
the period of winding up the Company's affairs. The Liquidator, if other than
a Manager, shall have and may exercise, without further authorization or
consent of Members, all of the powers conferred upon the
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Managers under the terms of this Agreement to the extent necessary or
desirable in the good faith judgment of the Liquidator to carry out the duties
and functions of the Liquidator hereunder for and during such period of time
as shall be reasonably required in the good faith judgment of the Liquidator
to complete the winding up and liquidation of the Company. The Liquidator
shall liquidate the assets of the Company, and apply and distribute the
proceeds of such liquidation in the following order of priority, unless
otherwise required by mandatory provisions of applicable law:
(a) To creditors, including Members who are creditors, to the extent
otherwise permitted by law, in satisfaction of the liabilities of the Company
(whether by payment or by the establishment of reserves of cash or other
assets of the Company for contingent, conditional or unmatured liabilities in
amounts, if any, determined by the Liquidator to be appropriate for such
purposes), other than liabilities for distributions to Members and former
Members under Sections 18-601 or 18-604 of the Delaware Act;
(b) To Members and former Members in satisfaction of liabilities for
distributions under 18-601 or 18-604 of the Delaware Act; and
(c) Thereafter to the Member or, if the Company has more than one
Member, to Members in proportion to the positive balances of their respective
capital accounts (determined after allocating all income, gain, deduction,
loss and other like items arising in connection with the liquidation of
Company assets and otherwise making all capital account adjustments required
by Section 8(b)).
(d) Notwithstanding the provisions of this Section 15 which require
the liquidation of the assets of the Company, if on dissolution of the
Company, the Liquidator determines that a prompt sale of part or all of the
Company's assets would be impractical or would cause undue loss to the value
of Company assets, the Liquidator may defer for a reasonable time (up to three
(3) years) the liquidation of any assets, except those necessary to timely
satisfy liabilities of the Company (other than those to Members), and/or may
distribute to the Members, in lieu of cash, as tenants in common undivided
interests in such Company assets as the Liquidator deems not suitable for
liquidation. Any such in-kind distributions shall be made in accordance with
the priorities referenced in this Section 15 as if cash equal to the fair
market value of the distributed assets were being distributed. Any such
distributions in kind shall be subject to such conditions relating to the
disposition and management of such properties as the Liquidator deems
reasonable and equitable and to any joint operating agreements or other
agreements governing the operation of such properties at such time. The
Liquidator shall determine the fair market value of any property distributed
in kind using such reasonable methods of valuation as it may adopt. The
Company shall terminate when (i) all of the assets of the Company, after
payment of or due provision for all debts, liabilities and obligations of the
Company, shall have been distributed to the Members in the manner provided for
in this Agreement and (ii) the Certificate of Formation shall have been
canceled in the manner required by the Delaware Act.
16. Limitation on Liability. Except as otherwise required by the
Delaware Act, the debts, obligations and liabilities of the Company, whether
arising in contract, tort or
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otherwise, shall be solely the debts, obligations and liabilities of the
Company, and no Member, Manager or officer of the Company shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member, Manager and/or officer.
17. Standard of Care; Indemnification of Managers, Officers,
Employees and Agents.
(a) No Manager or officer of the Company shall have any
personal liability whatsoever to the Company or any Member on account of such
Manager's or officer's status as a Manager or officer or by reason of such
Manager's or officer's acts or omissions in connection with the conduct of the
business of the Company; provided, however, that nothing contained herein
shall protect any Manager or officer against any liability to the Company or
the Members to which such Manager or officer would otherwise be subject by
reason of (i) any act or omission of such Manager or officer that involves
actual fraud or wilful misconduct or (ii) any transaction from which such
Manager or officer derived improper personal benefit.
(b) To the fullest extent permitted by applicable law, the
Company shall indemnify and hold harmless each Manager and officer and the
affiliates of any Manager or officer (each an "Indemnified Person") against
any and all losses, claims, damages, expenses and liabilities (including, but
not limited to, any investigation, legal and other reasonable expenses
incurred in connection with, and any amounts paid in settlement of, any
action, suit, proceeding or claim) of any kind or nature whatsoever that such
Indemnified Person may at any time become subject to or liable for by reason
of the formation, operation or termination of the Company, or the Indemnified
Person's acting as a Manager or officer under this Agreement, or the
authorized actions of such Indemnified Person in connection with the conduct
of the affairs of the Company (including, without limitation, indemnification
against negligence, gross negligence or breach of duty); provided, however,
that no Indemnified Person shall be entitled to indemnification if and to the
extent that the liability otherwise to be indemnified for results from (i) any
act or omission of such Indemnified Person that involves actual fraud or
wilful misconduct or (ii) any transaction from which such Indemnified Person
derived improper personal benefit. The indemnities hereunder shall survive
termination of the Company. Each Indemnified Person shall have a claim against
the property and assets of the Company for payment of any indemnity amounts
from time to time due hereunder, which amounts shall be paid or properly
reserved for prior to the making of distributions by the Company to Members.
Costs and expenses that are subject to indemnification hereunder shall, at the
request of any Indemnified Person, be advanced by the Company to or on behalf
of such Indemnified Person prior to final resolution of a matter, so long as
such Indemnified Person shall have provided the Company with a written
undertaking to reimburse the Company for all amounts so advanced if it is
ultimately determined that the Indemnified Person is not entitled to
indemnification hereunder.
(c) The contract rights to indemnification and to the
advancement of expenses conferred in this Section 17 shall not be exclusive of
any other right that any person may have or hereafter acquire under any
statute, agreement, vote of the Managers, Members or otherwise.
(d) The Company may maintain insurance, at its expense, to
protect itself and any Manager, officer, employee or agent of the Company or
another limited liability
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company, corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss
under the Delaware Act or other applicable law.
(e) The Company may, to the extent authorized from time to time
by the Board of Managers, grant rights to indemnification and to advancement
of expenses to any employee or agent of the Company to the fullest extent of
the provisions of this Section 17 with respect to the indemnification and
advancement of expenses of Managers and officers of the Company.
(f) Notwithstanding the foregoing provisions of this Section
17, the Company shall indemnify an Indemnified Person in connection with a
proceeding (or part thereof) initiated by such Indemnified Person only if such
proceeding (or part thereof) was authorized by the Board of Managers of the
Company; provided, however, that an Indemnified Person shall be entitled to
reimbursement of his or her reasonable counsel fees with respect to a
proceeding (or part thereof) initiated by such Indemnified Person to enforce
his or her right to indemnity or advancement of expenses under the provisions
of this Section 17 to the extent the Indemnified Person is successful on the
merits in such proceeding (or part thereof).
18. Amendments. This Agreement may be amended only upon the written
consent of all Members.
19. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
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IN WITNESS WHEREOF, the undersigned has duly executed this Agreement
as of January 11, 2002.
MEMBER
IKON Office Solutions, Inc.
By: /s/ XXXX XXXXX
-------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
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SCHEDULE I
Member
Percentage
Name & Address Interest
-------------- -----------
IKON Office Solutions, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000 100%
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CERTIFICATE FOR INTEREST IN
IOS Capital, LLC
A Delaware Limited Liability Company
No. 1
IOS Capital, LLC, a Delaware limited liability company (the "Company"),
hereby certifies that
IKON Office Solutions, Inc. (the "Holder") is the registered owner of an
interest in the Company ("Interest"), constituting the Percentage Interest (as
such term is defined the below referenced Company Agreement) in the Company
set forth on Schedule I to the Company Agreement as such Schedule is amended
from time to time. THE RIGHTS, POWERS, PRIVILEGES, RESTRICTIONS AND
LIMITATIONS ASSOCIATED WITH THE INTEREST ARE SET FORTH IN THE LIMITED
LIABILITY COMPANY AGREEMENT OF THE COMPANY DATED AS OF JANUARY 11, 2002 (THE
"COMPANY AGREEMENT"), AS THE SAME MAY, FROM TIME TO TIME, BE AMENDED OR
AMENDED AND RESTATED, UNDER WHICH THE COMPANY IS EXISTING, COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY IN MALVERN, PENNSYLVANIA. THE
TERMS OF THE COMPANY AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE.
The Holder, by accepting this Certificate, is deemed to have agreed to
become a member of the Company, if admitted as such in accordance with the
terms of the Company Agreement, and to comply with and be bound by all the
terms and conditions of, and to have executed, the Company Agreement.
THIS CERTIFICATE AND THE INTEREST EVIDENCED HEREBY ARE TRANSFERABLE IN
ACCORDANCE WITH THE TERMS OF THE COMPANY AGREEMENT (SUBJECT TO THE LIMITATIONS
ON TRANSFER THEREIN CONTAINED). NO INTEREST MAY BE TRANSFERRED UNLESS AND
UNTIL THIS CERTIFICATE, OR A WRITTEN INSTRUMENT OF TRANSFER SATISFACTORY TO
THE COMPANY (WHICH MAY BE THE REVERSE SIDE OF THIS CERTIFICATE), IS DULY
ENDORSED OR EXECUTED FOR TRANSFER BY THE HOLDER OR THE HOLDER'S DULY
AUTHORIZED ATTORNEY, AND THIS CERTIFICATE (TOGETHER WITH ANY SEPARATE WRITTEN
INSTRUMENT OF TRANSFER) IS DELIVERED TO THE COMPANY FOR REGISTRATION OF
TRANSFER.
The Interest evidenced by this Certificate shall constitute a "security"
within the meaning of and for all purposes of (i) Article 8 of the Uniform
Commercial Code (including Section 8-102(a)(15) thereof) as in effect from
time to time in the State of Delaware and (ii) the Uniform Commercial Code of
any other applicable jurisdiction that now or hereafter substantially includes
the 1994 revisions to Article 8 thereof as adopted by the American Law
Institute and the National Conference of Commissioners on Uniform State Laws
and approved by the American Bar Association on February 14, 1995. This
Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to principles of conflicts of laws
Dated: January 11, 2002 IOS Capital, LLC
ATTEST:
By: __________________________________
Secretary President
[FORM OF REVERSE SIDE OF CERTIFICATE]
15
ASSIGNMENT OF INTEREST
FOR VALUE RECEIVED, the undersigned (the "Assignor"), hereby assigns, conveys,
sells and transfers unto:
[Insert name of Assignee]
Please print or typewrite Name and Address of Assignee
[Insert Social Security Number/Taxpayer Identification Number of Assignee]
Please insert Social Security or other Taxpayer Identification Number of
Assignee
_____% Percentage Interest of the Interest evidenced by this Certificate.
Assignor irrevocably constitutes and appoints the Company as its
attorney-in-fact with full power of substitution to transfer the Interest, or
any lesser designated Percentage Interest of the Interest as referenced
herein, on the books of the Company.
Date: _____________________ ___________________________________________
Signature
16
===============================================================================
LIMITED LIABILITY COMPANY AGREEMENT
OF
IOS CAPITAL, LLC
A Delaware Limited Liability Company
DATED AS OF:
January 11, 2002
================================================================================
17
TABLE OF CONTENTS
Section Page No
1. Name; Formation.......................................................1
2. Definitions; Rules of Construction....................................2
3. Purpose...............................................................3
4. Offices...............................................................4
5. Members...............................................................4
6. Term..................................................................4
7. Management of the Company.............................................4
8. Capital Contributions; Capital Accounts; Administrative Matters; .....5
Certificates
9. Assignments of Interests..............................................7
10. Resignation...........................................................7
11. Additional Members....................................................8
12. Distributions.........................................................8
13. Return of Capital.....................................................8
14. Dissolution...........................................................8
15. Winding Up of the Company.............................................8
16. Limitation on Liability...............................................9
17. Standard of Care; Indemnification of Managers, Officers, Employees...10
and Agents
18. Amendments...........................................................11
19. Governing Law........................................................11
Schedule I - Identification of Members and Addresses
Exhibit A - Bylaws
Exhibit B - Form of Certificate
