Manager Managed Limited Liability Company Operating
Agreement with Classes of Members
Operating Agreement made this _____________________ (date),
between _____________________ (Name of Limited Liability Company) , a limited
liability company, herein a fter referred to herein as the Company , pursuant to
the _____________________ (name of state’s limited liability company act),
_____________________ (Name of First Member) ,
of _________________________________________ (street address, city, county,
state, zip code) , _____________________ (Name of Second Member) ,
of _________________________________________ (street address, city, county,
state, zip code) , and _____________________ (Name of Third Member) ,
of _________________________________________ (street address, city, county,
state, zip code) , hereinafter called the Members.
Whereas, the parties have formed a limited liability company under
the _____________________ (name of state’s limited liability company act), hereinafter
referred to as the Act, and upon the terms and conditions of this Agreement; and
Whereas, the Members wish to set forth their agreement as to how the business and
affairs of the Company shall be managed and their rights and obligations with respect to
the Company;
NOW, THEREFORE, for and in consideration of the mutual covenants contained in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the undersigned Members agree as follows:
I. Formation and Business of the Company
A. Formation. The Company was organized on (date) , in accordance with and
pursuant to the Act.
B. Name. The name of the Company is _____________________ (Name of
Limited Liability Company) . The Company may do business under that name and, as
permitted by applicable law, under any other name determined from time to time by
the Members.
C. Purpose of the Company. The purpose of the Company shall be to conduct any
lawful business or activity whatsoever, as permitted by applicable law and as
determined from time to time by the Members. The Company may exercise all powers
necessary to or reasonably connected with the Company's business from time to time,
and may engage in all activities necessary, customary, related or incidental to any of the
foregoing.
D. Principal Office. The Company's principal place of business shall be located
at _________________________________________ (street address, city, county,
state, zip code) , or such other place determined from time to time by the Members or
Manager(s). The Company may have such other business offices within or
without _____________________ (name of state) as determined from time to time by
the the Members or Manager(s).
E. Registered Agent. The name and address of the Company's registered agent in
the State of _____________________ (name of state) is _____________________
( name of agent) of _________________________________________ (street address,
city, county, state, zip code). The registered agent may be changed from time to time by
the Members or Manager(s) upon the filing of the name and address of the new
registered agent with the _____________________ ( name of state) Secretary of State
pursuant to the Act.
F. The term of the Company shall commence on the date of this Agreement and
continue until _____________________ (date), unless the Company is earlier dissolved
in accordance with this Agreement and with the Act.
G. Members. The names, addresses, facsimile numbers, taxpayer identification
numbers and Percentage Interests of the Members are set forth in the attached
Exhibit A as amended from time to time.
Article II. Definitions
The following terms, as used in this Agreement, shall have the following meanings
(unless otherwise expressly provided):
A. Act shall mean the _____________________ (name of state’s limited liability
company act).
B. Affiliate of a Person shall mean any relative of such Person, or any Person that
controls, is controlled by or is under common control with, such Person, or an officer,
director, partner or trustee (or relative of any of the same) of such Person. For purposes
of this definition: control shall mean the right or ability to elect the majority of the
directors of a corporation or otherwise direct the management of a Person; and relative
shall mean any other individual to whom the individual in question is related by blood,
marriage or adoption, not more remotely than as a first cousin.
C. Agreement shall mean this Operating Agreement, as originally executed and as
amended from time to time in accordance with this Agreement and with the Act.
D. Annual Budget shall have the meaning set forth in Section V-U.
E. Appraised Value shall have the meaning set forth in Section VIII-D-2.
F. Articles of Organization shall mean the Articles of Organization of the
Company, as filed with the _____________________ (name of state) Secretary of
State, as amended from time to time in accordance with this Agreement and with the
Act.
G. Assignee shall mean the holder of an Economic Interest who is not a Member.
H. Bankruptcy of a Member shall mean: (i) the entry of an order for relief with
respect to that Member in a proceeding under the United States Bankruptcy Code, as
amended from time to time; or (ii) the Member's initiation, whether by filing a petition,
beginning a proceeding or in answer to a proceeding commenced by another Person, of
any action for liquidation, dissolution, receivership or other similar relief, or the
Member's application for, or consent to the appointment of, a trustee, receiver or
custodian for its assets. For purposes of this definition, a Member's consent shall be
deemed to have been given if an order appointing a trustee, receiver or custodian is
entered by a court of competent jurisdiction and is not dismissed within (number) days
after its entry.
I. Book Value shall have the meaning set forth in Section VIII-D-2.
J. Capital Account of an Interest Holder, as of any date, shall mean the account
maintained for such Interest Holder pursuant to Section III-D, as adjusted through such
date.
K. Capital Contribution of, or attributed to, an Interest Holder shall mean the total
contributions to the capital of the Company, whether in cash, property (net of liabilities)
or services, made, performed or to be performed by, or attributed to, such Interest
Holder, to the extent actually performed, valued on the date of contribution or
commitment to contribute as set forth (in this Agreement) .
L. Capital Interest of a Member, as of any date, shall be expressed as a
percentage determined by dividing (i) the amount of the balance of the positive Capital
Account associated with the Member's Membership Interest (whether or not such
Member retains all of the Economic Interest related to such Membership Interest) by (ii)
the aggregate balances of the Capital Accounts of all Members (or such class, classes
or group of Members as may be entitled to vote on, consent to, or otherwise participate
in, any decision or action) whose Capital Accounts have positive balances (whether or
not all such Members retain all of the Economic Interests related to such Membership
Interests), as adjusted through such date in accordance with this Agreement.
M. Capital Transaction shall mean any transaction not in the ordinary course of the
Company's business, in respect of which the Company receives cash or other
consideration (but not Capital Contributions), including, but not limited to, proceeds from
sales or exchanges not in the ordinary course, financings and refinancings,
condemnations or insurance policies.
N. Cash Available for Distribution, as of any date, shall mean the excess of (i) all
revenues received by the Company from its operations and investments over (ii) total
current operating expenses and reasonable reserves for future such expenses,
including payments in respect of indebtedness of the Company, capital improvements
and contingencies, as determined from time to time by the Members.
O . Code shall mean the Internal Revenue Code of 1986, as amended, in effect as
of the date of this Agreement and as amended from time to time in the future.
P. Company shall have the meaning set forth in the preamble to this Agreement.
Q. Company Minimum Gain shall mean the amount determined under 26 C.F.R.
§§ 1.704-2(i)(3) and 1.704-2(d), and shall be computed separately for each Interest
Holder in a manner consistent with 26 U.S.C.A. § 704(b) and the Treasury Regulations
under that Section.
R. Company Nonrecourse Deductions shall mean the deductions of the Company
determined under 26 C.F.R. § 1.704-2(c).
S. Controlled Subsidiary” shall have the meaning set forth in Section V-C.
T. Contributing Member” shall have the meaning set forth in Section III-C-1.
U. Default Amount shall have the meaning set forth in Section III-C-1.
V. Defaulting Member shall have the meaning set forth in Section III-C-1.
W. Economic Interest shall mean the right to share in the allocation of one or more
of the Company's allocable items, including, but not limited to, Net Profits and Net
Losses, or in distributions of the Company's assets, in each case pursuant to this
Agreement or the Act, but shall not include any Management Interest.
X. Fiscal Year shall mean the Company's accounting, tax and fiscal year, which
shall be _____________________ (date) to _____________________ (date).
Y. Initial Capital Contribution of a Member shall mean its initial contribution to the
capital of the Company pursuant to this Agreement.
Z. Interest shall mean any of an Economic Interest, Management Interest or
Membership Interest.
AA. Interest Holder shall mean a Member or Assignee, as applicable.
BB. Involuntary Withdrawal of a Member shall mean the Member's withdrawal as a
Member as a result of an event described in this Section II-DDD(i), (ii), (iii), (iv), or (v).
CC. Liquidator shall have the meaning set forth in Section IX-C-1.
DD. Majority in Interest shall mean the Members holding more than 50% of the
aggregate Percentage Interests held by all Members (or such class, classes or group of
Members as may be entitled to vote on, consent to, or otherwise participate in, any
decision or action under this Agreement or under the Act).
EE. Manager or Manager shall mean those charged with the management of the
Company as set forth in Article V. (Specifically, Manager shall mean (name of
manager) , or any other Person or Persons that succeed him in that capacity.
GG. Management Interest of a Member shall mean the Member's right to participate
in the management of the business and affairs of the Company, including the right to
vote on, consent to, or otherwise participate in, any decision or action of or by the
Members under this Agreement or under the Act.
HH. Member shall mean each Person who: (i) executes a counterpart of this
Agreement as a Member as of the date of this Agreement; or (ii) is admitted as a
Member after the date of this Agreement in accordance with this Agreement, provided
that, in each case, a Member shall always have a Management Interest.
II. Membership Interest shall mean a Member's entire interest in the Company,
including the Member's Economic Interest (to the extent not Transferred) and
Management Interest.
JJ. Member-Manager shall mean a Manager who is also a Member.
KK. Member Nonrecourse Debt shall mean nonrecourse debt of the Company
under 26 C.F.R. § 1.704-2(b)(4).
LL. Member Nonrecourse Deductions shall mean the losses, deductions and
expenditures attributable to Member Nonrecourse Debt under 26 C.F.R. § 1.704-2(i)(2).
MM. Negative Capital Account shall mean a Capital Account with a balance less
than zero and, where the context requires, the negative balance of the Capital Account,
in each case as of the end of a Fiscal Year, after giving effect to the following:
1. A credit for any amount required to be restored under 26 C.F.R. § 1.704-
1(b)(2)(ii)(c), as well as any additional amounts pursuant to 26 C.F.R. § 1.704-
2(g)(1), (i)(5), after taking into account any changes during such Fiscal Year in
Company Minimum Gain and Member Nonrecourse Debt Minimum Gain; and
2. A debit of the items described in 26 C.F.R. § 1.704-l(b)(2)(ii) (d)(4), (5)
and (6).
NN. Net Profits and Net Losses shall mean, for each Fiscal Year (or other period for
which they are determined), income and gain, and the losses, deductions and credits of
the Company, respectively, in the aggregate or separately stated, as appropriate,
determined in accordance with generally accepted accounting principles consistently
applied.
OO. Offer shall have the meaning set forth in Section VII-B-1.
PP. Officer shall mean any of the officers of the Company elected or designated
pursuant to Section VI-C.
QQ. Percentage Interest of an Interest Holder shall mean the Interest Holder's
percentage share of the Net Profits, Net Losses, other regularly allocable items and
distributions of the Company as set forth in the attached Exhibit A, as amended from
time to time.
RR. Person shall mean any individual, partnership, limited liability company,
corporation, joint venture, trust, association or any other entity, domestic or foreign, and
its respective heirs, executors, administrators, legal representatives, successors and
assigns where the context of this Agreement so permits.
SS. Prime Rate shall mean the reference rate announced
by _____________________ (name of bank) in the _____________________ (name
of newspaper or publication) from time to time.
TT. Purchase Price shall have the meaning set forth in Section VIII-D-1.
UU. Purchaser shall have the meaning set forth in Section VII-B-1.
VV. Regulatory Allocations shall have the meaning set forth in Section IV.G.
WW. Special Contribution shall have the meaning set forth in Section III-C-1.
XX. Transfer shall mean any sale, assignment, transfer, gift, exchange, bequest or
other disposition of an Interest, in any manner, voluntary or involuntary, by operation of
law or otherwise.
YY. Transferor shall mean any Member which Transfers, or proposes to Transfer, an
Interest.
ZZ. Treasury Regulations or Treas. Reg. shall mean regulations promulgated
under the Code in effect as of the date of this Agreement or amended or adopted in the
future.
AAA. Two-thirds in Interest shall mean the Members holding sixty-six and two-thirds
percent (66-2/3%) or more of the aggregate Percentage Interests held by all Members
or such class, classes or group of Members as may be entitled to vote on, consent to, or
otherwise participate in, any decision or action under this Agreement or under the Act .
BBB. Unreturned Capital Contribution of a Member shall mean the amount,
determined from time to time, equal to the excess of such Member's aggregate Capital
Contribution over the cumulative aggregate amount distributed to such Member.
CCC. Voluntary Withdrawal of a Member shall mean the Member's withdrawal as a
Member as a result of an event described in Section II-DDD (vi), (vii) or (viii).
DDD. Withdrawal Event, with respect to any Member, shall mean the Member's:
(i) Death, revocation of its certificate of incorporation, dissolution, expulsion
as a Member or adjudication of incompetency, as applicable;
(ii) Bankruptcy;
(iii) Making of a general assignment for the benefit of creditors;
(iv) Failure to pay the Member's debts as they become due, or admission of
inability to pay the Member's debts as they become due;
(v) Interest becoming subject to the enforcement of rights of any of the
Member's creditors, unless such rights are released
within _____________________ [number of days] days after the Member
receives notice of the creditor's action;
(vi) Voluntary retirement or withdrawal from the Company;
(vii) Except as otherwise provided in this Agreement, breach of any of the
Member's material obligations under this Agreement; or
(viii) Any other event that terminates a Member's membership in the Company
or otherwise causes the dissolution of the Company under the Act.
Article III Capital Contributions and Capital Accounts.
A. Initial Capital Contributions. On the date of this Agreement, each Member shall
contribute to the Company as its Initial Capital Contribution cash in the amount set forth
in the attached Exhibit A .
B. Additional Contributions.
1. The Members may, from time to time, in their discretion, determine that
additional Capital Contributions from the Members in proportion to their
Percentage Interests.
2. Within _____________________ (number) days following their receipt of
notice of a determination under Section III-B-1, stating the total amount of
additional capital sought, the Members' shares of the same and the purpose for
which such capital will be used, each Member shall contribute its share of the
total amount required to the Company.
C. Defaults in Contribution.
1. If any Member (a Defaulting Member) fails to make all or any portion of
any Capital Contribution as required under Section III-B, such failure shall
constitute a breach of this Agreement and the Defaulting Member shall be liable
for any and all damages incurred by the other Members and the Company as a
result of such breach. Any fees or payments owed by the Company to the
Defaulting Member, or to any Affiliate of the Defaulting Member, may be retained
by the Company and applied towards the amount of the unpaid Capital
Contribution of the Defaulting Member. In addition, any non-Defaulting Member
shall have the option to make a Capital Contribution (a Special Contribution ) to
the Company in any amount up to the amount of the Capital Contribution (the
Default Amount ) not made by the Defaulting Member (a Member making such a
contribution is referred to as a Contributing Member ). If more than one Member
desires to make a Special Contribution, and the aggregate amount of the
proposed Special Contributions exceeds the Default Amount, the Special
Contributions shall be made, up to the Default Amount, by the Contributing
Members in proportion to their relative Percentage Interests.
2. Any Special Contribution made with respect to a Defaulting Member shall
be treated as a Capital Contribution by, and credited to the Capital Account of,
such Defaulting Member, and any distribution to a Contributing Member under
Section IV-J shall be debited against the Capital Account of the Defaulting
Member.
3. Upon making an additional Capital Contribution under Section III-B , the
Membership Interest of each Member shall be recalculated, based on a fraction,
the numerator of which shall be the total Capital Contribution of that Member,
and the denominator of which shall be the aggregate Capital Contributions
actually made by all Members, after increasing the Capital Contributions of each
Contributing Member by the amount of the additional Capital Contribution made
by it.
4. Each Defaulting Member irrevocably constitutes and appoints, with full
power of substitution, the non-Defaulting Members, and each of them, its true
and lawful attorney-in-fact, with full power and authority in its name, place and
stead, to execute and deliver any documents necessary or appropriate to
effectuate the intent of this Section III-C. The appointment of the non-Defaulting
Members as the Defaulting Member's attorneys-in-fact shall be deemed to be a
power coupled with an interest and shall survive the incompetency, Bankruptcy
or dissolution of the Member giving that power.
5. The remedies provided in this Section III-C shall be the sole and
exclusive remedies for a Member's failure to comply with the requirements of
Section III-B, all other remedies being waived.
D. Capital Accounts.
1. The Company shall establish and maintain a Capital Account for each
Interest Holder. The initial Capital Accounts shall be in amounts equal to the
Members' Initial Capital Contributions. Subject to Section III-C-2, an Interest
Holder's Capital Account shall be increased by the amount of any additional
Capital Contributions made by, and the income and gain allocated to, such
Interest Holder, and shall be decreased by any losses and deductions allocated,
or distributions made, to such Interest Holder pursuant to the terms of this
Agreement. It is the intention of the Members that Capital Accounts be
maintained strictly in accordance with 26 C.F.R. § 1.704-1(b)(2)(iv).
2. Notwithstanding anything contained in this Agreement to the contrary, the
manner in which Capital Accounts are maintained shall be modified, if necessary,
in the opinion of the Company's accountants, attorneys or Manager, to comply
with applicable law, provided that no such change shall materially alter the
economic agreement between or among the Interest Holders.
3. Except as otherwise required by the Act, and subject to Sections III-A and
III-B of this Agreement, no Interest Holder shall have any liability to restore all or
any portion of any Negative Capital Account.
4. No Interest Holder shall be paid interest on the balance of its Capital
Account from time to time. The balance of each Capital Account from time to time
shall accrue interest at an annual rate equal to the Prime Rate and shall be paid
only upon the dissolution of the Company. Interest payable shall be treated as a
guaranteed payment pursuant to Code Section 707(c) and not a distribution of
Company income or capital.
E. Adjustments to Capital Accounts.
1. The Manager may, in his, her or their discretion, adjust the Capital
Accounts to reflect a revaluation of the Company's assets upon the occurrence of
any of the following events:
a. A Capital Contribution by a new or existing Member as
consideration for the issuance of an Interest;
b. The distribution of cash or other property by the Company to a
retiring or continuing Member as consideration for the repurchase or
redemption of an Interest; or
c. Events described in 26 C.F.R. § 1.704-1(b)(2)(iv)(f).
2. Any adjustment pursuant to Section III-E-1 shall be based on the fair
market value of Company property on the date of adjustment, and shall reflect
the manner in which the unrealized income, gain, loss or deduction inherent in
the property, not previously reflected in Capital Accounts, would be allocated
among the Interest Holders if there were a taxable disposition of the property for
fair market value on that date.
3. If the book value of a Company asset differs from the adjusted tax basis of
that asset, the Capital Accounts shall be adjusted in accordance with 26 C.F.R. §
1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization and
gain or loss computed for book purposes rather than tax purposes.
4. If there is any basis adjustment pursuant to an election under 26 U.S.C.A.
§ 754 , the Capital Accounts shall be adjusted to the extent required by 26 C.F.R.
§ 1.704-1(b)(2)(iv)(m).
E. Return of Capital Contributions. Except as otherwise provided in this
Agreement, no Member shall have any right to demand or receive: (i) any cash or
property of the Company in return of its Capital Contribution or in respect of its
Membership Interest until the dissolution of the Company; or (ii) any distribution from
the Company in any form other than cash.
F. Transfer of Interest. If an Interest is Transferred as permitted by this
Agreement, the transferee shall succeed to the Capital Account of the Transferor to the
extent the Capital Account relates to the Transferred Interest in accordance with 26
C.F.R. § 1.704-1(b)(2)(iv)(l).
IV. Allocations and Distributions.
A. Distributions. Cash Available for Distribution shall be
distributed _____________________ (e.g., quarterly) at such time as may be
determined by the Members to each Interest Holder in accordance with its Percentage
Interest.
B. Limitation on Distributions. No distribution shall be declared and paid unless,
after giving effect to the distribution, the assets of the Company exceed the Company's
liabilities.
C. Allocations of Net Profits and Net Losses. Except as otherwise required by
the Code or as provided in this Agreement, the Net Profits and Net Losses for each
Fiscal Year shall be determined in accordance with the accounting methods followed by
the Company for federal income tax purposes and shall be allocated among
the Members as follows:
1. Net Losses shall be allocated:
a. First, to each Member, up to an amount of loss equal to the excess
of (i) the aggregate amount of income allocated to such Member in prior
years under Section IV-C-2-c, over (ii) the aggregate amount of loss
allocated to such Member in prior years under this Section IV-C-1-a , pro
rata in proportion to the amount of such excess allocable to each Member;
and
b. Then, to the Members in proportion to their Percentage Interests.
2. Net Profits shall be allocated:
a. First, to each Member, up to an amount of income equal to the
excess of (i) the aggregate amount of loss allocated to such Member in
prior years under Section IV-C-1-b, over (ii) the aggregate amount of
income allocated to such Member in prior years under this Section IV-C-
2-a, pro rata in proportion to the respective amounts of such excess;
b. Then, to each Member, up to an amount of income equal to the
excess of (i) the cumulative aggregate amount of loss allocated to such
Member in prior years under Section IV-C-1-b, over (ii) the cumulative
aggregate amount of income allocated to such Member in prior years
under this Section IV-C-2-b Section, pro rata in proportion to the
respective amounts of such excess; and
Then, to the Members in proportion to their Percentage Interests.
3. Notwithstanding any other provision of this Agreement to the contrary, for
Federal income tax purposes only, any item of income, deduction, gain or loss
realized by the Company with respect to property contributed by a Member to the
Company shall be allocated to the Members (or their Assignees) as required
by 26 U.S.C.A. § 704(c) and such tax allocations shall not be reflected in the
Capital Accounts.
4. Consistent with Section IV-G of this Agreement, all allocations of income
and loss for any Fiscal Year under Section IV-C shall be made after the
allocation of any item of gain under Section IV-E or IV-D that may arise in such
year.
D. Allocation of Gain or Loss on Liquidation. Net gain or loss realized by the
Company upon the sale of all or substantially all of its assets or otherwise in connection
with the dissolution and liquidation of the Company shall be allocated to the Members
(after allocating to them: (i) all other Net Profits or Net Losses for the then current Fiscal
Year in accordance with Section IV-C; and (ii) any items allocable under Section IV-E
or IV-F (including items in connection with such sale)), in such amounts that, to the
extent possible, the respective balances of their Capital Accounts shall equal the
amounts to be distributed to them under Sections IX-C and IV-C. If such balances do
not equal the amounts to be distributed as provided in Sections IX-C and IV-C, then,
notwithstanding anything contained in this Agreement to the contrary, any shortfall or
excess shall be allocated to the Members in proportion to their Percentage Interests and
all distributions shall be made in proportion to the positive Capital Account balances
after taking into account all allocations of Net Profits or Net Losses pursuant to this
Section IV-D.
E. Qualified Income Offset. Notwithstanding anything in this Article IV to the
contrary, if any Member unexpectedly receives any adjustments, allocations, or
distributions described in 26 C.F.R. § 1.704-1(b)(2)(ii) (d)(4), (5) or (6) which cause a
deficit or increase the deficit in the Member's Capital Account, items of Company gross
income and gain shall be allocated to the Member in an amount and manner sufficient
to eliminate the deficit in its Capital Account as quickly as possible; provided, however,
that for this purpose, a Capital Account shall be increased by the Member's share of
Company Minimum Gain as of the end of the Fiscal Year. It is the intention of the
Members that this Section IV-E be treated as a qualified income offset within the
meaning of 26 C.F.R. § 1.704-1(b)(2)(ii)(d).
F. Minimum Gain.
1. Nonrecourse Deductions. Company Nonrecourse Deductions shall be
allocated to the Capital Accounts as set forth in Section IV-C. Member
Nonrecourse Deductions shall be allocated to the Member that bears the
economic risk of loss with respect to the debt to which such Member
Nonrecourse Deduction is attributable.
2. Distributions of Nonrecourse Financing Proceeds. If the Company
makes a distribution to the Members that is allocable to the proceeds of any
nonrecourse liability of the Company, or of any other entity in which the Company
has an interest, such distribution shall be allocable to an increase in Company
Minimum Gain as provided in 26 C.F.R. § 1.704-2(h), (i)(6).
3. Company Minimum Gain. Each Member's share of Company Minimum
Gain shall be determined as provided in 26 C.F.R. § 1.704-2(g), (i)(5).
4. Minimum Gain Chargeback. If there is a net decrease in Company
Minimum Gain for a Fiscal Year, items of Company income and gain shall be
allocated to the Capital Accounts as provided in 26 C.F.R. § 1.704-2(f).
Notwithstanding the foregoing, to the extent such net decrease is attributable to a
Member Nonrecourse Debt, then any Member with a share of the minimum gain
attributable to such debt shall be allocated items of income and gain as provided
in 26 C.F.R. § 1.704-2(i)(4).
G. Regulatory Allocations. The allocations set forth in Sections IV-E and IV-F (the
Regulatory Allocations ) are intended to comply with certain requirements of 26 C.F.R.
§§ 1.704-1(b) and 1.704-2. The Regulatory Allocations might not be consistent with the
manner in which the Members intend to divide Company distributions. Accordingly,
the Manager are authorized to allocate other items of income, gain, loss, and deduction
among the Members so as, to the extent possible, to prevent the Regulatory Allocations
from causing the manner in which Company distributions will be divided between the
Members pursuant to this Agreement to be different from the division intended by the
Members. In general, the Members anticipate that this will be accomplished by specially
allocating other items of Company income, gain, loss and deduction among the
Members so that, to the extent possible, the net amount of the Regulatory Allocations
and such other items to each Member shall be equal to the net amount that would have
been allocated to each such Member if the Regulatory Allocations had not been
required.
H. Allocation of Nonrecourse Liabilities. For purposes of 26 C.F.R. § 1.752-3(a),
the Members' interests in Net Profits shall be their respective Percentage Interests.
I. Distributions In Kind. All distributions of Company property in kind shall be
valued at their fair market value as of the date of distribution, and the amount of any
gain or loss that would be realized by the Company if it were to sell such property at
such fair market value shall be allocated to the Members in accordance with Section
IV-C.
J. Distributions with Respect to Special Contributions. If any Contributing
Member has made a Special Contribution, all amounts otherwise distributable under
Section IV-A to the Defaulting Member shall instead be distributed to the Contributing
Member or Members until they have received distributions pursuant to this Section IV-J
equal to (i) two times the amount of such Special Contribution, plus (ii) interest at the
Prime Rate on the amount undistributed under clause (i), calculated from the date the
Special Contribution was made. For purposes of the preceding sentence, distributions
shall be applied first against amounts described in clause (ii) and then to amounts
described in clause (i).
K. Tax Returns and Other Elections. The Manager shall cause the preparation
and timely filing of all tax returns required to be filed by the Company pursuant to the
Code and all applicable laws of each jurisdiction in which the Company does business.
Copies of all such returns, or summaries of the returns, shall be furnished to the
Members within a reasonable time after the end of each Fiscal Year. All elections
permitted to be made by the Company under federal or state laws shall be made by
the Members , in their sole discretion, provided that the Manager shall make any tax
election requested by the Members.
L. Mid-Year Transfers. If an Interest is Transferred during the Fiscal Year as
permitted by this Agreement, unless otherwise agreed by the parties:
1. All Net Profits and Net Losses allocable to such Interest shall be allocated
between the Transferor and the transferee in the ratio of the number of days in
the year before and after the effective date of the Transfer, without reference to
the dates during the year on which income was earned, losses were incurred or
distributions were made, and distributions shall be made to the Interest Holders
as determined on the date such distribution is declared; and
2. Tax credits, if any, shall be allocated among the Interest Holders as
determine d at the time the property with respect to which the credit is claimed is
placed in service.
V. Manager.
A. The property, business and affairs of the Company shall be managed by its
Manager. Except where the Members' approval is expressly required by this Agreement
or by the Act, the Manager shall have full authority, power and discretion to make all
decisions with respect to the Company's business and to perform such other services
and activities as set forth in this Agreement. Every Manager shall be an agent of the
Company for its business purposes and each Manager may bind the Company in the
ordinary course, provided that: (i) the Manager shall have approved such action in
accordance with this Agreement or the Act; and (ii) the Person with whom such
Manager is dealing has no knowledge that the action has not been so approved. Unless
otherwise expressly authorized by this Agreement or the Members as set forth in this
Agreement, the act of a Manager that is not apparently for carrying on the Company's
business in the ordinary course shall not bind the Company.
Except as otherwise expressly provided in this Agreement or the Act, the Members shall
have no right to control or manage, nor shall they take any part in the control or
management of, the property, business or affairs of the Company, but they may
exercise the rights and powers of Members under this Agreement, including, but not
limited to, the right to approve certain matters as provided in this Agreement.
B. Number, Tenure and Qualifications. The Company shall initially have Class A
and Class B Manager who shall be elected by the Class A and Class B Members,
respectively, in accordance with Article VI. The number of Manager in each class shall
be fixed from time to time by the Members entitled to vote for such class of Manager,
but in no event shall there be fewer than one Manager in each class. Each Manager
shall serve until the next annual meeting of Members or until its successor shall have
been elected and qualified, provided that each Member-Manager shall serve until a
Withdrawal Event occurs with respect to the Member-Manager. Manager need not be
individuals, residents of (name of state) or Members. Manager shall be individuals at
least 21 years of age, and at least one Manager shall be a resident
of _____________________ (name of state) . Each Manager shall be a Member or an
Affiliate of a Member, and shall automatically cease to be a Manager if it ceases to be a
Member or an Affiliate of a Member. The Members may from time to time create or
designate additional classes of Manager having such relative rights, powers, duties,
preferences and limitations as the Members may determine, subject to the limitations
set forth in this Agreement, provided that the Members shall elect Manager to fill any
vacancies created by such change.
C Certain Powers of Manager. Without limiting the generality of Section V-A, but
subject to Sections V-D, V-E, V-F and V-M, the Manager shall have the power and
authority, on behalf of the Company and any other entity represented by the Company
and in which the Company exercises significant management control (a Controlled
Subsidiary ), to:
1. Acquire property in the ordinary course of the Company's business from
any Person (including Members, Manager or Affiliates of any of the same);
2. Purchase life, liability and other insurance to protect the Company's
property and business;
3. Establish bank accounts in the name of the Company and establish the
identity of all signatories entitled to draw against such accounts for the benefit of
the Company;
4. Employ, and fix the terms of employment and termination of employment
of, employees of the Company (including Members or Affiliates of Members or
Manager), and accountants, legal counsel and other consultants for the
Company (but not including Manager in their capacity as such);
5. Invest Company funds in time deposits, short-term governmental
obligations, commercial paper or other similar investments or in any other capital
asset or investment in the ordinary course of business;
6. Execute on behalf of the Company all instruments and documents,
including, but not limited to, checks, drafts, notes and other negotiable
instruments, mortgages or deeds of trust, security agreements, financing
statements, documents providing for the acquisition or disposition of the
Company's property, assignments, bills of sale, leases, partnership agreements,
and any other instruments or documents necessary, in the opinion of the
Manager, to the business of the Company and relating to transactions that have
been approved in accordance with this Agreement;
7. Borrow money for the Company in the ordinary course, on a secured or
unsecured basis, from banks or any other Person (including Members, Manager
or Affiliates of any of the same);
8. Enter into any and all other agreements on behalf of the Company with
any other Person (including Members, Manager or Affiliates of any of the same),
for any purpose in the ordinary course, in such forms as the Manager may
approve;
9. Institute, prosecute and defend legal, administrative or other suits or
proceedings in the Company's name;
10. Establish pension, benefit and incentive plans for any or all current or
former Members, Manager, employees and agents of the Company, on such
terms and conditions as the Manager may approve, and make payments
pursuant to such plans; and
11. Do and perform any and all other lawful acts as may be necessary or
appropriate to conduct the Company's business.
D. Decisions Requiring Approval of Members. The approval of the Members
entitled to vote shall be necessary to authorize any of the following acts or transactions
by the Manager on behalf of the Company or any Controlled Subsidiary:
1. The purchase, construction or other acquisition of real property, or the
acquisition of any significant equity interest in another Person that would be, after
giving effect to such acquisition, a Controlled Subsidiary;
2. The purchase, construction or other acquisition of any capital asset or
investment, the purchase price or value of which will exceed
$ _____________________ , and which is not specifically described in Section V-
C-5, including the repurchase of an Interest under Section VIII-D;
3. The sale, exchange or other disposition of any real property, capital asset
or investment not specifically described in Section V-C-5;
4. Other than in the ordinary course of business, the entry into any
agreement or series of related agreements, including any agreement to borrow
money, that, either individually or collectively: (i) creates a monetary obligation
greater than $ _____________________ ; (ii) grants a mortgage on, a security
interest in, a pledge or otherwise encumbers, any material asset of the Company
or a Controlled Subsidiary; or (iii) has a term in excess of one year;
5. The fixing of the terms of employment and termination of employment of
any Manager, to the extent such terms are not governed by this Agreement;
6. Any assignment for the benefit of creditors of the Company or a Controlled
Subsidiary, the filing of a voluntary petition in bankruptcy, or the appointment of a
receiver for the Company or a Controlled Subsidiary;
7. The issuance of a Membership Interest by the Company to any Person or
the admission of any Assignee as a Member; and
8. Any other transaction not in the ordinary course of business and not
otherwise requiring approval under Section V-E.
E. Decisions Requiring Unanimous Approval of Members. The unanimous
approval of the Members entitled to vote on such matter shall be necessary to authorize
any of the following acts or transactions by the Manager on behalf of the Company or
any Controlled Subsidiary:
1. Any act that is unrelated to the purpose of the Company or the Controlled
Subsidiary or that otherwise contravenes any provision of this Agreement;
2. Payment (or causing any Controlled Subsidiary to pay) to any Member,
Manager or Affiliate of any of the same any commissions, fees or remuneration,
other than reasonable compensation for services rendered, unless expressly
permitted under the terms of this Agreement;
3. The loan of Company funds to, or the guaranty of any obligation or liability
of, any Member, Manager or any Affiliate of any of the same, or the grant of a
security interest in substantially all of the assets of the Company or of any
Controlled Subsidiary (including any insurance policy or the proceeds of such
insurance policy) as collateral for any such loan;
4. The sale, exchange or other disposition of all or substantially all of the
Company's or a Controlled Subsidiary's assets, whether in a single transaction or
series of related transactions, or the merger or consolidation of the Company
with or into another Person;
5. The adoption of any Annual Budget, as described in Section V-U; and
6. The amendment of the Articles of Organization or this Agreement in any
respect.
F. Liability for Certain Acts. The Manager shall perform their duties in good faith
and with that degree of care that an ordinarily prudent person in a like position would
use under similar circumstances. A Manager who so performs the Manager's duties
shall not have any liability by reason of being or having been a Manager. A Manager
shall not be liable to the Company or to any Member for any loss or damage unless it
shall have been the result of fraud, gross negligence, willful misconduct, bad faith or a
wrongful taking by the Manager.
G. Reliance on Information. In performing its duties, a Manager shall be entitled to
rely on information, opinions, reports or statements, including financial statements, in
each case prepared or presented by:
1. One or more agents or employees of the Company;
2. Counsel, public accountants or other persons, as to matters that the
Manager believes to be within their respective professional or expert
competence; or
3. A class of Manager of which such Manager is not a member, and which
other class such Manager believes to merit confidence, as to matters within the
designated authority of such other class, as long as the Manager relies on such
information, opinions, reports or statements in good faith and has no knowledge
that would cause such reliance to be unwarranted.
H. No Exclusive Duty; Non-Competition.
1. Subject to Section V-H-2, the Manager may have other business interests
and may engage in other activities in addition to those relating to the Company.
Neither the Company nor any Member shall have any right, by virtue of this
Agreement, to share or participate in such other investments or activities of the
Manager or in any income or revenues derived from such investments or
activities.
2. Notwithstanding anything contained in this Agreement to the contrary,
no Manager or any of its Affiliates shall, during the term of the Company (as it
may be extended in accordance with this Agreement), anywhere in (description
of geographic area) (or for such smaller area as may be determined by a court of
competent jurisdiction to be a reasonable limitation on such Person's competitive
activity), directly or indirectly:
a. Engage in any activity competitive with the Company's business as
conducted at any time during the term of the Company; for or on behalf of
itself or any other Person engaged in a line of business which competes or
has competed with the Company;
b. Solicit or attempt to solicit business of any customers of the
Company for products or services the same or similar to those offered,
sold or produced at any time by the Company;
c. Otherwise divert or attempt to divert from the Company any
business whatsoever;
d. Solicit or attempt to solicit for any business endeavor any employee
or prior employee of the Company; or
e. (e) Interfere with any business relationship between the Company
and any other Person.
3. At all times after the date of this Agreement, no Manager or any Affiliate of
any Manager shall disclose or use any confidential information of or with respect
to the Company or its business, provided that such obligation shall not apply to
any information: (i) to the extent that it legally is or becomes part of public or
industry knowledge from authorized sources other than a Manager or any of its
Affiliates; or (ii) which the Manager or its Affiliate is required by law to disclose
(but only to the extent required to be so disclosed).
4. Because the Company and the Members do not have an adequate
remedy at law to protect the Company's business from any breach of the
obligations in this Section 5.8, each of them shall be entitled to injunctive relief, in
addition to such other remedies and relief that, in such event, would be available
to it or them.
I. Execution of Documents.
1. Except as otherwise determined by the Manager or the Members or as set
forth in this Agreement or in the Act, any document or instrument may be
executed and delivered on behalf of the Company by any Manager, including, but
not limited to, any deed, mortgage, note or other evidence of indebtedness,
lease, security agreement, financing statement, contract of sale or other
instrument purporting to convey or encumber, in whole or in part, any or all of the
assets of the Company at any time held in its name, or any compromise or
settlement with respect to accounts receivable or claims of the Company; and,
subject to the authorization requirements set forth in this Agreement or in the Act,
no other signature shall be required for any such instrument to bind the
Company.
2. Any third Person dealing with the Company, its Manager or Members may
rely upon a certificate signed by a Manager as to:
a. The identity of the Members or Manager;
b. Acts by the Members or Manager;
c. Any act or failure to act by the Company; or
d. Any other matter involving the Company or any Member.
J. Powers of Manager in Bankruptcy. Subject to Sections V-D, V-E, V-F and V-
P, the Manager (and each of them) shall have the power and authority, on behalf of the
Company and any Controlled Subsidiary, to:
1. Represent the Company or a Controlled Subsidiary in any Bankruptcy or
insolvency proceedings to which it is a party, in whatever capacity;
2. Determine whether the Company or a Controlled Subsidiary shall file any
petition under the United States Bankruptcy Code or other applicable insolvency
law; and
3. Execute and deliver, in the name of the Company or otherwise, any and
all documents and instruments, including, but not limited to, petitions and
requests for relief, necessary or desirable in connection with actions under
Section 5.10(i) or (ii), as determined by the Manager.
K. Resignation or Removal.
1. Any Manager may resign at any time by giving notice to the Members,
effective upon receipt of the notice or at such later time specified in the notice.
Unless otherwise specified in the notice, acceptance of a resignation shall not be
necessary to make it effective. The resignation of a Member-Manager shall not
affect its rights as a Member and shall not constitute a Withdrawal Event.
2. At a meeting of Members called expressly for that purpose, any or all
Manager may be removed at any time, with or without cause, by vote of in
Interest of the Members entitled to vote for the election of such Manager(s). The
removal of a Manager shall not affect its rights as a Member and shall not
constitute a Withdrawal Event. In no event shall any Manager be removed other
than for good cause. All Manager shall be automatically removed, without any
required vote of the Members, as of the end of each fiscal year if distributions to
the Members since the date of this Agreement have not, in the aggregate,
exceeded $ _____________________ .
L. Meetings of Manager.
1. The Manager shall meet for the purposes of organization, the election of
officers and the transaction of other business as soon as practicable after each
annual meeting of the Members, on the same day and at the same place where
such annual meeting is held.
2. In addition to the annual meetings required by Section V-L-1, regular
monthly meetings of the Manager shall be held at such times and places within
or without _____________________ (name of state) as the Manager may from
time to time determine.
3. Special meetings of the Manager may be called at any time by
any Manager and shall be held at such times and places within or
without _____________________ (name of state) as the Manager may from time
to time determine.
4. Notice of the time and place of each special meeting of the Manager, and
of the first regular meeting under Section V-L-2, shall be delivered to each
Manager, either personally (including by courier) or by telephone, telegraph or
facsimile, at least _____________________ (number) hours before the time at
which such meeting is to be held, or shall be mailed to each Manager by first-
class mail, postage prepaid, addressed to it at its mailing address set forth in the
records of the Company, at least _____________________ (number) days
before the day on which such meeting is to be held. Notice of the annual meeting
or other regular meetings of the Manager need not be given unless such meeting
is held at a time or place other than that set forth in Section V-L-1 or in the initial
notice of such regular meeting, in which case notice of the meeting shall be given
as set forth in this paragraph. Notice of a meeting need not be given to any
Manager who, either before or after the meeting, executes a waiver of notice, or
who attends such meeting without objecting, at its beginning, to the transaction of
any business because the meeting is not lawfully called or convened.
5. Except as otherwise provided in this Agreement, a majority in number of
each class of Manager entitled to vote on, or take action with respect to, any
matter, present in person at any meeting of Manager, shall constitute a quorum
for the transaction of business at such meeting. In the absence of a quorum, a
majority in number of the Manager present may adjourn any meeting to another
time and place, or such meeting, unless it is the annual meeting of the Manager,
need not be held. At any adjourned meeting at which a quorum is present, any
business that might have been transacted at the meeting as originally called may
be transacted.
6. Except as otherwise expressly required by the Act, if a quorum is present,
the affirmative vote of a majority in number of each class of Manager present at
any meeting and entitled to vote on, or take action with respect to, any matter
shall be the act of the Manager.
M. Action without Meeting. Any action required or permitted to be taken at any
meeting of Manager may be taken without a meeting, without prior notice and without a
vote, if all Manager entitled to vote on any matter authorize such action at a meeting at
which all Manager entitled to vote on the matter were present and consent in writing,
and such consents are filed with the minutes of proceedings of the Manager.
N. Participation in Meetings by Telephone and Other Equipment. Manager may
participate in a meeting by conference telephone or similar communications equipment,
by means of which all persons participating in the meeting can hear each other, and
such participation shall constitute presence in person at such meeting.
O. Vacancies.
1. Except as otherwise provided in this Agreement, any vacancy occurring
for any reason among the Manager, whether resulting from an increase in the
number of Manager (but not the creation of new classes of Manager) or the
death, resignation or removal of one or more Manager or otherwise, may be filled
by vote of a majority of the remaining Manager then in office, provided that, if
there are no remaining Manager, the vacancy(ies) shall be filled by vote of the
Members.
2. A Manager elected to fill a vacancy shall serve for the unexpired term of
its predecessor and until its successor shall be elected and qualify, or until the
Manager's earlier death, dissolution, resignation or removal.
3. A Manager chosen by the other Manager to fill a position resulting from an
increase in the number of Manager (or the creation of new classes of Manager)
shall serve until the next annual meeting of Members and until its successor shall
be elected and qualify, or until the Manager's earlier death, dissolution,
resignation or removal, in each case in accordance with this Agreement.
P. Interested Manager.
1. Notwithstanding anything contained in this Agreement to the contrary, a
contract or other transaction between the Company and a Manager, an Affiliate
of a Manager or a Person in which a Manager has a substantial financial interest
shall not be void or voidable for such reason alone or because such Manager
was present at the meeting approving such contract or transaction and its vote
counted for such purpose, if the material facts with respect to the Manager's
interest in such contract or transaction are disclosed in good faith or known to:
b. The other Manager entitled to vote, and such other Manager
approve the contract or transaction by a vote sufficient for such purpose
without counting the vote of the interested Manager, or, if the vote of the
disinterested Manager is insufficient for approval, by unanimous vote of
the disinterested Manager; or
c. The Members entitled to vote, and the Members approve the
contract or transaction.
2. If the requirements of Section V-P-1 are not met, the Company may avoid
a contract or transaction unless the parties to the contract or transaction
establish that it was fair and reasonable to the Company at the time of its
approval.
Q. Compensation and Expenses. The compensation of the Manager shall be fixed
from time to time by the Members. No Member-Manager shall be prevented from
receiving compensation for the performance of his or her duties as a Manager because
it is a Member.
R. Delegation to Agents and Officers. The Manager may delegate functions
relating to the day-to-day operations of the Company to such officers, agents,
consultants or employees as the Members may from time to time designate. Such
officers, agents, consultants and employees need not be Members or Manager, and
shall have such duties, powers, responsibilities and authority as may from time to time
be prescribed by the Members , and may be removed at any time, with or without cause,
by the Members .
S. Reports. In addition to the tax returns, or summaries of the returns, required to
be provided under Section IV-K, the Manager shall furnish to the Members:
1. Within _____________________ (number) days after the end of each
calendar quarter during the term of the Company, reports of operations of the
Company for the quarter and year-to-date then ended, which may be reviewed at
the request of the Members by the Company's independent accountants, and
which shall compare the results for such period with the Annual Budget for that
period and give explanations of any significant variances; and
2. Within _____________________ (number) days after the end of each
Fiscal Year during the term of the Company, an annual report containing: (i) a
balance sheet as of the end of such Fiscal Year, statements of income,
Members' equity, and changes in financial position, and a cash flow statement,
on a Federal income tax basis; and (ii) a report of distributions to each Member
for the period covered by the report. If requested by any Member, the Manager
shall furnish the Company and the Members with a report, certified by the
Company's independent accountants, containing the information described in the
preceding sentence.
T. Other Duties of Manager. In addition to their other duties set forth in this
Agreement, the Manager:
1. Shall determine, from time to time, the method of accounting and the
independent accountants for the Company;
2. May make, on behalf of the Company, the election permitted by 26
U.S.C.A. § 754 with respect to adjustments to the basis of Company property;
3. Shall give notice to the Members of any proposed audit or adjustments of
any Company tax returns, promptly following receipt of the same; and
4. Shall designate a Member-Manager to act as the tax matters partner for
purposes of the Code.
U. Annual Budget. Not less than _____________________ (number) days before
the end of each Fiscal Year during the term of the Company, the Manager shall furnish
to the Members for their approval in accordance with Section V-E, a budget in
reasonable detail for the following Fiscal Year (the Annual Budget). If the Annual Budget
has not been approved by the beginning of the next Fiscal Year, the Manager shall
operate the Company on the basis of the Annual Budget for the prior Fiscal Year until a
new Annual Budget has been adopted.
VI. Rights and Obligations of Members and Meetings.
A. Liability for Company Debt. No Member shall be personally liable for any
debts, losses or obligations of the Company by reason of its being a Member, except to
the extent of its Capital Contribution and any obligation to make a Capital Contribution.
B. Rights of Approval. The Members shall elect the Manager annually in
accordance with this Agreement, but shall have only such other rights with respect to
the management of the property, business and affairs of the Company, and such other
powers, as are specified in this Agreement or under the Act.
C. Officers and Agents. The Members may from time to time designate such
officers and agents as they may deem necessary to carry out the day-to-day operations
of the Company. Such officers and agents need not be Members, and shall have such
duties, powers, responsibilities and authority as may from time to time be prescribed by
the Members, and may be removed at any time, with or without cause, by the Members.
D. Liability for Wrongful Distributions. A Member who receives a distribution
from the Company which the Member knows to be in violation of this Agreement or the
Act shall be liable to the Company for the amount of such distribution for a period
of (number) years after it was made.
E. Dealings with the Company; Other Business Activity. Subject to the
requirements of this Agreement, any Member or any Affiliate of any of the same may
make loans to, borrow from, and transact such other business with the Company as
may be approved by the Members or Manager in accordance with this Agreement.
Nothing contained in this Agreement shall be deemed to restrict or limit in any way any
right of any Member, or any Affiliate of any of the same, to pursue, conduct or
participate in, directly or indirectly, any other business or activity whatsoever, including,
but not limited to, any business that competes with the Company's business from time
to time.
F. Meetings of Members.
1. The Members shall meet annually for the purpose of transacting such
business as may come before the meeting, including, but not limited to, the
election of Manager, on the first day of the month of each fiscal year at the
principal office of the Company, or at such other time or place within or without
(name of state) as shall be determined by the Members.
2. In addition to the annual meetings required by Section VI-F-1, regular
quarterly meetings of the Members shall be held at such times and places within
or without (name of state) as the Members may from time to time determine.
3. Special meetings of the Members may be called by
_____________________ (number) of Manager or by any Member or Members
holding at least _____________________ % of all Percentage Interests, for any
purpose or purposes, unless otherwise prescribed by the Act, and shall be held
at such times and places within or without _____________________ (name of
state) as the Persons calling such meeting may from time to time determine.
4. Notice of the time, place and purpose or purposes of each meeting of the
Members and of the first regular meeting under Section VI-F-2 shall be delivered
to each Member entitled to vote at the meeting either personally (including by
courier) or by telephone, telegraph, facsimile or first class mail, postage prepaid,
addressed to it at its mailing address set forth in the records of the Company, at
least _____________________ (number) but not more
than _____________________ (number) days before the date of the meeting.
An affidavit of a Manager or other Person giving such notice shall, absent fraud,
be prima facie evidence that notice of a meeting has been given. Notice of a
meeting need not be given to any Member who, either before or after the
meeting, executes a waiver of notice, or who attends such meeting without
objecting, at its beginning, to the transaction of any business because the
meeting is not lawfully called or convened.
5. Except as otherwise provided in this Agreement, a majority of each class
of Members entitled to vote on, or take action with respect to, any matter, present
in person at any meeting, shall constitute a quorum for the transaction of
business at such meeting. In the absence of a quorum, a Majority in Interest of
each class of Members present and entitled to vote at the meeting may adjourn
any meeting from time to time for a period not to
exceed _____________________ (number) days without further notice. If the
adjournment is for more than _____________________ (number) days, or if after
the adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given to each Member of record entitled to vote
on, or take action with respect to, any matter at such meeting. At any adjourned
meeting at which a quorum is present, any business that might have been
transacted at the meeting as originally noticed may be transacted. The Members
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal during the meeting of that number
of Members whose absence would result in less than a quorum being present.
6. Except as otherwise expressly required by the Act, the Articles of
Organization or this Agreement, if a quorum is present, the affirmative vote of a
Majority in Interest of each class of Members present and entitled to vote on, or
take action with respect to, any matter shall be the act of such class of the
Members.
G. Proxies and Voting Arrangements. At all meetings of Members, a Member
may vote in person or by proxy executed in writing by the Member or by a duly
authorized attorney-in-fact. The proxy shall be filed with the Manager before or at the
time of the meeting. No proxy shall be valid after _____________________
(number) months from the date of its execution, unless otherwise provided in the proxy.
Any proxy, or other arrangement, by contract or otherwise, by which a Member grants to
a non-Member any right to exercise any Management Interest, shall be null and void.
H. Action without Meeting. Any action required or permitted to be taken at any
meeting of the Members may be taken without a meeting, without prior notice and
without a vote, if Members holding voting interests sufficient to authorize such action at
a meeti
