NEDAK ETHANOL, LLC
AMENDED
and
RESTATED
OPERATING AGREEMENT
THIS RESTATED OPERATING AGREEMENT (this "Agreement") is made and entered into as
of April 16, 2006 by NEDAK Ethanol, LLC (the "Company"), a Nebraska limited
liability company.
In consideration of the mutual covenants contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 "Act" shall mean the Nebraska Limited Liability Company Act, as amended from
time to time.
1.2 "Affiliate" shall mean, in the case of any Person (the "Specified--Person"),
any other Person (a) that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with the
Specified Person, or (b) that is an officer, Director, Director, employee or
agent of, partner or Member in, or trustee of, or serves in a similar capacity
with respect to, the Specified Person or an Affiliate of the Specified Person,
or (c) of which the Specified Person is an officer, Director, Director employee,
agent, partner, Member or trustee, or serves in a similar capacity.
1.3 "Agreement" shall mean this Operating Agreement, as originally executed or
as amended, modified, supplemented or restated from time to time
1.4 "Capital Account Balance" shall have the meaning set forth in Section 5.1.
1.5 "Capital Contribution" shall mean, in the case of any Member as of any date
of determination, the aggregate amount of cash, property, or services rendered,
or a promissory note or other binding obligation to contribute cash or property
or to perform services that such Member shall have contributed to the Company on
or prior to such date and a Member's share of any of the Company's liabilities
as determined in accordance with the Code and Treasury Regulations (or, if such
Member is not the original holder of the Interest of such Member, the Capital
Contribution with respect to the Interest). In the event that any capital is
returned to a Member, such Member's Capital Contribution shall be adjusted to
reflect such return.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time and any successor statute or subsequent codification or recodification of
the federal income tax laws of the United States.
1.7 "Company" shall mean NEDAK Ethanol, LLC, a Nebraska limited liability
company, as such limited liability company may from time to time be constituted,
or any successor in interest for such limited liability company.
1.8 "Distribution" shall mean any distribution pursuant to Section 5.4 by the
Company of cash to the Members or any Distribution in Kind.
1.9 "Distribution in Kind" shall have the meaning set forth in paragraph(b) of
Section 5.4.
1.10 "Interest" shall mean, in the case of any Member at any time, such Member's
share of the Profits and Losses of the Company at such time and the right of
such Member to receive distributions of Company assets to
1
which such Member may be entitled as provided in this Agreement and applicable
law, and the right of such Member to vote and participate in the management of
the Company as provided in this Agreement.
1.11 "Losses" shall mean the net losses and deductions of the Company determined
in accordance with accounting principles consistently applied from year to year
employed under the method of accounting adopted by the Company and as reported
separately or in the aggregate, as appropriate, on the tax return of the Company
filed for federal income tax purposes.
1.12 "Director" shall mean one or more Persons designated by the Members to be
Members of the Board of Directors. The "Board of Directors" or "Board" shall
manage the Company as provided in Article 6.
1.13 "Majority in Interest" shall mean the affirmative vote of those Members
holding more than 50 percent of the Percentage Interests. With respect to the
Board, "Majority of the Board" shall mean the affirmative vote of more than
fifty percent (50 percent) of the Directors.
1.14 "Member" shall mean any Person who, at the time referenced, owns an
Interest in the Company.
1.15 "Officer" shall mean a Member or other Person designated by the Board or
Members as provided in Section 6.11.
1.16 "Person" shall mean an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an estate, an unincorporated
organization or any other entity or a government or any department or agency
thereof.
1.17 "Percentage Interest" means the percentage figure calculated by dividing a
Member's Capital Account Balance at any given time by the total sum of the
Capital Account Balances of all Members.
1.18 "Pro Rata" means the ratio computed by dividing the Units of each Member to
whom a particular provision of this Agreement is stated to apply by the
aggregate of the Units of all Members to whom that provision is stated to apply.
1.19 "Profits" shall mean the net income and gains of the Company determined in
accordance with accounting principles consistently applied from year to year
employed under the method of accounting adopted by the Company and as reported
separately or in the aggregate, as appropriate, on the tax return of the Company
filed for federal income tax purposes. Profits includes taxable income, capital
gain, and income exempt from taxation.
1.20 "Publicly Traded Partnership" shall mean a partnership whose interests are
traded on an established securities market, or are readily tradable on a
secondary market (or the substantial equivalent thereof).
1.21 "Qualified Matching Service Program" shall mean a matching service that
satisfies the requirements of a qualified matching service within the meaning of
Treasury Regulation Section 1.7704-l(g)(2), as amended from time to time, during
limited time periods specified and approved by Board from time to time, in its
sole discretion.
1.22 "Super-Majority Vote" or "Two-Thirds Majority" shall mean the affirmative
vote of those Members holding more than Two-Thirds (2/3) of the Percentage
Interests. With respect to the Board, "Super- Majority Vote" or "Two-Thirds
Majority" shall mean the affirmative vote of more than two-thirds (2/3) of the
Directors.
1.23 "Transfer" or derivations thereof, of a Unit or Interest means, as a noun,
the sale, assignment, exchange, pledge, hypothecation or other disposition of a
Unit or Interest, or any part thereof, directly or indirectly, or the sale,
assignment, exchange, pledge, hypothecation, or other disposition of a
controlling interest in the equity securities of a Member, and as a verb,
voluntarily to transfer, sell, assign, exchange, pledge, hypothecate or
otherwise dispose of.
1.24 "Treasury Regulations" shall mean the regulations of the United States
Department of the Treasury pertaining to the income tax, as from time to time in
force.
2
1.25 "Units" means equal Units of the entire ownership interest of all Members
of the Company, and all rights and liabilities associated therewith, at any
particular time, including, without limitation, rights to distributions
(liquidating or otherwise), allocations, information, and consent or approve.
1.26 "Value" shall mean, with respect to any Distributions, if cash, the amount
of such cash, or if not cash, the value of such Distribution calculated pursuant
to paragraph (e) of Section 5.4.
ARTICLE II
STRUCTURE OF THE COMPANY
2.1 Formation. The parties to this Agreement have organized a limited liability
company under the provisions of the Act by delivering Articles of Organization
to the Secretary of State of the State of Nebraska for filing. The Board may
take such further actions as it deems necessary or advisable to permit the
Company to conduct business as a limited liability company in any jurisdiction.
The rights and liabilities of the Members under this Agreement shall be as
provided by Nebraska law.
2.2 Name. The name of the Company shall be NEDAK Ethanol, LLC, or any other name
permitted by the Act as the Members shall afterwards designate by appropriate
amendment to the Company's Articles of Organization.
2.3 Principal Office. The principal office of the Company shall be at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such place as the Members may, from
time to time, designate by appropriate amendment to the Company's Articles of
Organization. The Board may establish additional places of business for the
Company when and where required by the business of the Company.
2.4 Names and Addresses of Members. The names, addresses, Capital Contributions
and number of Units held by each Member are set forth on Appendix A to this
Agreement which shall be modified from time to time as Transfers occur or as
additional Units are issued pursuant to the provisions of this Agreement.
2.5 Member Units and Register. Ownership rights in the Company are evidenced by
Units. The Company shall maintain a Membership register (the "Membership
Register") at its principal office or by a duly appointed agent of the Company
setting forth the name, address, Capital Contributions and number of Units held
by each Member which shall be modified from time to time as Transfers occur or
as additional Units are issued pursuant to the provisions of this Agreement.
2.6 Fiscal Year. The fiscal year of the Company shall begin on January l and end
on December 31 of each year. The fiscal year in which the Company shall
terminate shall end on the date of termination of the Company.
2.7 No Partnership. The Directors and the Members intend that as a result of
this Agreement: (i) the Company not be a partnership (including, without
limitation, a limited partnership) or joint venture for any purposes other than
federal and state tax purposes, (ii) no Member or Director be a partner or joint
venturer of any other Member, for any purposes other than federal and state tax
purposes, and (iii) this Agreement may not be construed to suggest otherwise.
This Section 2.7 does not prohibit any Member or Director, in his individual or
independent capacity, from being associated with another Member or another
Person.
2.8 Intent of this Agreement.
(a) The parties to this Agreement have reached an understanding concerning
various aspects of (i) their business relationship with each other and (ii) the
organization and operation of the Company and its business. They wish to use
rights created by statute to record and bind themselves to that understanding.
(b) The parties intend for this Agreement to control, to the extent stated
or fairly implied, the business and affairs of the Company, including the
Company's governance structure and the Company's dissolution and winding up, as
well as the relations among the Company's Members.
3
2.9 Advice of Counsel. Each Person signing this Agreement: (a) understands that
this Agreement contains legally binding provisions; (b) has had the opportunity
to consult with that Person's own lawyer; and (c) has either consulted that
lawyer or consciously decided not to consult a lawyer.
ARTICLE III
BUSINESS OF THE COMPANY
The Company may engage in any lawful business, other than banking or
insurance. The Agreement shall be construed in light of such purpose.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Initial Paid-In Capital. The Members listed on Appendix A to this Agreement
shall have contributed the cash to the capital of the Company as set forth on
Appendix A. The Capital Contributions set forth on Appendix A shall be made by
each of such Members within thirty (30) calendar days after the last date of
execution of this Agreement by the Members listed on Appendix A.
4.2 Additional Capital Contributions. No Member shall be required to make any
additional contributions to the capital of the Company. No Member shall be
obligated to satisfy any negative Capital Account Balance, except to the extent
expressly set forth herein or in the Articles of Organization. No Member shall
be paid interest on any Capital Contribution.
4.3 Maximum Ownership. No Member together with its Affiliates shall own
Percentage Interests in the Company in excess of forty percent (40%).
4.4 Withdrawal or Reduction of Members' Capital Contributions. The withdrawal or
reduction of Members' contributions to the capital of the Company shall be
governed by Section 21-2619 of the Act, as amended from time to time; provided,
however:
(a) No Member has the right to withdraw all or any part of his Capital
Contribution or to receive any return on any portion of his Capital
Contribution, except as may be otherwise specifically provided in this
Agreement. Under circumstances involving a return of any Capital Contribution,
no Member has the right to receive property other than cash.
(b) No Member shall have priority over any other Members, either as to the
return of Capital Contributions or as to Losses and Profits, or distributions,
except as otherwise provided herein.
4.5 Loans from Directors and Members. The Company may borrow money from and
enter into other transactions with any Director or Member. Borrowing from or
engaging in other transactions with one or more Directors or Members does not
obligate the Company to provide comparable opportunities to other Directors or
Members. Any loan made by a Director or Member to the Company shall be evidenced
by a promissory note made payable from the Company to such Director or Member.
Loans by a Director or Member to the Company shall not be considered Capital
Contributions and shall be repaid pursuant to Section 5.4(a) below.
4.6 Loans by Company to Members. Unless otherwise approved by the Board of
Directors, the Company will not make any loans to Members.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
4
5.1 Capital Accounts. A "Capital Account" shall be established for each Member
on the books of the Company and maintained in accordance with Section
1.704-1(b)(2) of the Treasury Regulations, as amended from time to time.
(a) To each Member's Capital Account there shall be credited:
(i) the cash and the Value of any property other than cash
contributed by such Member to the capital of the Company;
(ii) such Member's allocable share of Profits, and any items of income
or gain which are specially allocated to the Member; and
(iii) the amount of any Company liabilities assumed by such Member of
which are secured by any property of the Company distributed to
such Member.
The principal amount of a promissory note which is not readily traded on an
established securities market and which is contributed to the Company by the
maker of the note shall not be credited to the Capital Account of any Member
until the Company makes a taxable disposition of the note or until (and only to
the extent) principal payments are made on the note.
(b) To each Member's Capital Account there shall be debited:
(i) the amount of cash and the Value of any property other than cash
distributed to such Member pursuant to Section 5.4;
(ii) such Member's allocable share of Losses and any items of expense
or loss which are specially allocated to the Member; and
(iii) the amount of any liabilities of such Member assumed by the
Company or which are secured by any property contributed by such
Member to the Company.
Provided; however, all of the foregoing to be determined in accordance with the
rules set forth in Section 1.704-1(b)(2)(iv) of the Treasury Regulations, as
amended from time to time.
5.2 Allocation of Profits. Profits of the Company shall be allocated to the
Members according to their Percentage Interests.
5.3 Allocation of Losses. Losses of the Company shall be allocated to the
Members according to their Percentage Interests.
5.4 Distributions.
(a) The Board of Directors shall determine, in its sole discretion, whether
to distribute or retain all or any portion of the Profits. The Directors may
distribute cash to the Members irrespective of Profits. All cash distributions
shall be made to the Members in accordance with paragraph (c) of this Section
5.4. Provided, however, no Member has a right to any distribution prior to the
dissolution of the Company without the approval of the Board; provided, further,
notwithstanding any other language herein no distributions in dissolution will
be made until all loans from all Members, including all principal and interest,
are repaid in full. Such repayments shall be made on a Pro Rata basis. Nothing
herein shall be construed as requiring the making of distributions prior to the
repayment of loans from unrelated parties.
(b) The Board may agree to distribute to the Members in kind any property
held by the Company. Any such distribution of property shall be referred to
herein as a "Distribution in Kind." The value of any such Distribution in Kind
at the time of such distribution shall be determined in accordance with
paragraph (d) of this Section 5.4 and such distribution shall be made to the
Members in accordance with paragraph (c) of this Section 5.4.
5
Distributions in Kind, made pursuant to this paragraph (b), shall be subject to
such restrictions and conditions as the Board shall have determined are
necessary or appropriate in order for such distributions to be made in
accordance with applicable law.
(c) Any distribution of Profits in accordance with this Section 5.4, and
any distribution, other than Profits, of cash pursuant to paragraph (a) of this
Section 5.4 or Distribution in Kind pursuant to paragraph (b) of Section 5.4,
shall be made to the Members according to their Percentage Interests.
(d) The Value of any Distribution in Kind as of any date of determination
(or in the event such date is a holiday or other day that is not a business day,
as of the next preceding business day) shall be the estimated fair market value
of any property distributed.
(e) All distributions are subject to set-off by the Company for any past
due obligation of the Members to the Company.
5.5 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or any other items
allocable to any period, Profits, Losses and any such other items shall be
determined on a daily, monthly, or other basis, as determined by the Board,
using any permissible method under Section 706 of the Code and the Treasury
Regulations thereunder.
(b) Notwithstanding any other provision in this Agreement, if a Member
unexpectedly receives an adjustment, allocation, or distribution described in
Treasury Regulation ▇▇.▇▇. 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), and the unexpected adjustment, allocation, or
distribution results in a deficit balance in the Capital Account for the Member,
the Member will be allocated items of income and gain in an amount and manner
sufficient to eliminate the deficit balance or the increase in the deficit
balance as quickly as possible. It is intended that this subdivision will meet
the requirements of a "qualified income offset" as defined in Treasury
Regulation ss. 1.704-1(b)(2)(ii)(d), and this subdivision is to be interpreted
and applied consistent with that intention.
(c) If a Member's Capital Account has a deficit balance at any time and the
deficit or increase in deficit was caused by the allocation of "nonrecourse
deductions," as defined in Treasury Regulation ss. 1.704-2(b), then beginning in
the first taxable year of the Company in which there are nonrecourse deductions
or in which the Company makes a distribution of proceeds of a nonrecourse
liability that are allocable to an increase in "minimum gain," as defined in
Treasury Regulation ss. 1.704-2(d), and thereafter throughout the full term of
the Company, the following rules shall apply:
(i) Nonrecourse deductions shall be allocated to the Members in a
manner that is reasonably consistent with the allocations that
have "substantial economic effect," as defined in Treasury
Regulation ss. 1.704-1, or some other significant item
attributable to the property securing the nonrecourse
liabilities, if applicable, and;
(ii) If there is a net decrease in minimum gain for a taxable year,
each Member will be allocated items of Company Profit for that
year equal to that Member's share of the net decrease in minimum
gain as defined in Treasury Regulation ss. 1.704-2(g)(2).
(d) The Members are aware of the income tax consequences of the allocations
made by this Article 5 and hereby agree to be bound by the provisions of this
Article 5 in reporting their shares of Company income and loss for income tax
purposes.
5.6 Transfer of Capital Accounts. In the event all or a portion of an Interest
in the Company is Transferred in accordance with the terms of the Articles of
Organization and this Agreement, the transferee shall succeed to that portion of
the Capital Account of the transferor which is allocable to the transferred
Interest.
6
ARTICLE VI
MANAGEMENT OF THE COMPANY
6.1 Management.
(a) The Company shall be managed by a Board of Directors if not less than
twelve (12) nor more than eighteen (18) Members, appointed by the Members (in
accordance with Section 6.1 (c)). Each Director shall be a Member of the
Company. All powers of the Company shall be exercised by or under the authority
of, and the business affairs of the Company managed under the direction of the
Board of Directors in accordance with this Agreement. Individual Directors or
Officers designated by the Board from time to time may act for or on behalf of
the Company and execute all agreements on behalf of the Company and otherwise
bind the Company as to third parties without the consent of the Members or
remainder of the Board of Directors; provided, however, that with respect to
those issues requiring approval of the Members under the Act, such approval must
first be obtained.
(b) The salaries and other compensation, if any, of the Directors for
management services shall be fixed annually by a Super Majority Vote of the
Board. A Board decision on this matter may be changed by a Super Majority Vote
of the Members at any duly-called annual or special meeting.
(c) The initial Board of Directors is comprised of fifteen (15) Members.
Commencing on September 15, 2005, and until modified by the Board, the Board of
Directors shall be comprised of fourteen (14) Members who shall be elected at a
meeting of the Members by the affirmative vote of a Majority in Interest of the
Members in accordance with Section 8.2 of this Agreement. Five Directors shall
be elected for a term expiring in 2007; four Directors shall be elected for a
term expiring in 2008; and five Directors shall be elected for a term expiring
in 2009. Beginning in 2007, Directors shall be elected to fill the terms then
expiring for a term of three (3) years and shall serve until his or her
successor is duly elected or, if earlier, until such Director's death,
resignation or removal.
6.2 Authority of the Board of Directors. In addition to and not in limitation of
any rights and powers conferred by law or other provisions of this Agreement,
and except as limited, restricted or prohibited by the express provisions of
this Agreement, the Board of Directors shall have and may exercise on behalf of
the Company, all powers and rights necessary, proper, convenient or advisable to
effectuate and carry out the purposes, business and objectives of the Company.
Such powers shall include, without limitation, the power to:
(a) expend Company funds in connection with the operation of the Company's
business or otherwise pursuant to this Agreement;
(b) employ and dismiss from employment any and all employees, agents,
independent contractors, attorneys and accountants;
(c) prosecute, settle or compromise all claims against third parties,
compromise, settle or accept judgment on, claims against the Company and execute
all documents and make all representations, admissions and waivers in connection
therewith;
(d) borrow money on behalf of the Company from any Person, issue promissory
notes; drafts and other negotiable and nonnegotiable instruments and evidences
of indebtedness, secure payment of the principal of any such indebtedness and
the interest thereon by mortgage, pledge, property of the Company, whether at
the time owned or thereafter acquired;
(e) hold, receive, mortgage, pledge, lease, transfer, exchange, otherwise
dispose of, grant options with respect to, and otherwise deal in the exercise
all rights, powers, privileges and other incidents of ownership or possession
with respect to all property of whatever nature held or owned by, or licensed
to, the Company;
(f) lend any of the Company property with or without security;
(g) have and maintain one or more offices within or without the State of
Nebraska;
7
(h) open, maintain and close bank accounts and money market mutual funds
accounts, and draw checks and other orders for the payment of monies;
(i) engage accountants, custodians, consultants and attorneys and any and
all other agents and assistants (professional and nonprofessional) and pay such
compensation in connection with such engagement that the Board of Directors
determines is appropriate;
(j) enter into, execute, make, amend, supplement, acknowledge, deliver and
perform any and all contracts, agreements, licenses, and other instruments,
undertakings and understandings that the Board determines is necessary,
appropriate or incidental to carrying out the business of the Company;
(k) file a petition in bankruptcy on behalf of the Company; and
(l) delegate to the Chairman, President and other Officers or to committees
of Directors appointed by the Board, such responsibility and authority as the
Board deems necessary or appropriate from time to time.
In exercising its powers, the Board of Directors may (i) rely upon and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, or document believed by him
or her to be genuine and to lave been signed or presented by the proper party or
parties; (ii) consult with counsel, accountants, and other experts selected by
him or her and any opinion of an independent counsel, accountant or expert shall
be full and complete authorization and protection in respect of any action taken
or suffered or omitted by the Board of Directors in good faith and in accordance
with such opinion; and (iii) execute any of his or her powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
6.3 Obligations of the Board of Directors. The Board of Directors shall:
(a) devote to the Company and apply to the accomplishment of Company
purposes so much of the Board of Directors' time and attention as they determine
to be necessary or advisable to manage properly the affairs of the Company;
(b) maintain accounting records from which a Company Capital Account
Balance can be determined for each Member;
(c) execute, file, record or publish all certificates, statements and other
documents and do all things appropriate for the formation, qualification and
operation of the Company and for the conduct of its business in all appropriate
jurisdictions;
(d) employ attorneys to represent the Company when necessary or
appropriate;
(e) use their best efforts to maintain the status of the Company as a
"limited liability company" for state law purposes, and as a "partnership" for
federal income tax purposes;
(f) have fiduciary responsibility for the safekeeping and use of all funds
and assets of the Company, and not employ or permit others to employ such funds
or assets (including any interest earned thereon) in any manner except for the
benefit of the Company; and
(g) maintain a current list of the names, last known addresses and
Percentage Interest of each Member at the Company's principal office.
6.4 Resignation of Director. Any Director may resign as Director of the Company
upon written notice to the Board of Directors.
6.5 Removal of a Director. Any Director may be removed from time to time with or
without cause by the affirmative vote of Members holding 80 percent or more of
the Percentage Interests.
8
6.6 Vacancies. Any vacancy occurring in the position of Director may be filled
by the affirmative vote of a Majority of the Board based on the remaining
Directors.
6.7 Meetings of the Board. Meetings of the Board may be called by the Chairman
of the Board or any two (2) Directors and shall be held at the principal place
of business of the Company, or elsewhere as the notice of such meeting shall
direct. Except as otherwise expressly provided in this Agreement, the Articles,
or the Act, the affirmative vote of a majority of the Directors present at a
duly convened meeting of the Board at which a quorum is present shall constitute
the act of the Board.
6.8 Place of Meeting. The Board may designate any place, either in or out of the
State of Nebraska, as the place of meeting for any meeting. If no designation is
made, the place of meeting shall be the Company's principal office. Directors
may attend any such meeting in person or by telephonic or video conference call.
6.9 Notice of Meetings. Written or oral notice of every meeting of the Board,
stating the place, date and hour of the meeting, and the purpose or purposes for
which the meeting is called, shall be given by the Secretary of the Company to
each other Director at least twenty-four (24) hours prior to the meeting, unless
such notice is waived in accordance with Article 9 hereof.
6.10 Quorum. The presence of a Majority in Interest of the Directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting, a majority of the Directors represented may adjourn the meeting
from time to time without further notice.
6.11 Officers.
(a) The Board may elect a Chairman or Vice Chairman from among its
Directors and may elect a President, one or more Vice Presidents, a Treasurer, a
Secretary and such additional officers or assistant officers as the Board shall
deem desirable. Any two (2) or more offices may be held by the same person.
(b) The Officers of the Company shall be elected annually by the Board at
the first meeting of the Board held after each annual meeting of Members. If the
election of Officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the Board. Each Officer shall hold
office until his or her successor shall have been duly elected and qualified or
until his or her death, or until he or she shall resign or shall have been
removed in the manner hereinafter provided. Election or appointment of an
Officer or agent shall not of itself create contract rights.
(c) Any Officer or agent may be removed by the Board at any time with or
without cause, but such removal does not affect the contract rights, if any,
with the Company of the person so removed.
(d) A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board for the unexpired
portion of the term. An Officer may resign at any time by delivering notice to
the Company. A resignation is effective when the notice is delivered unless the
notice specifies a later effective date. If a resignation is made effective at a
later date and the Company accepts the future effective date, the Board may fill
the pending vacancy before the effective date if the Board provides that the
successor does not take office until the effective date.
6.12 Liabilities of Directors. In carrying out their duties hereunder, the
Directors shall not be liable to the Company or to any Member for any actions
taken in good faith and reasonably believed by them to be in the best interest
of the Company or in reliance on the provisions of this Agreement or the
Articles, or for good faith errors of judgment, but shall only be liable for
misconduct or negligence in the performance of their duties as Directors. The
Directors shall not be expected to devote their full time and attention to the
affairs of the Company, but shall devote such amounts of time and attention as
are reasonable and appropriate in their good faith judgment under the
circumstances prevailing from time to time.
9
6.13 Indemnification of the Directors, their Affiliates and Control Persons.
(a) Neither the Directors nor any Officer shall be liable to the Company or
any Member for any act or omission based upon errors of judgment or other fault
in connection with the business or affairs of the Company if the Board
determines that such course of conduct was in the best interest of the Company
and did not result from the negligence or misconduct of such Director or
Officer.
(b) To the fullest extent permitted by law, the Directors and Officers
(each such person being referred to herein as an "Indemnitee"), shall be
indemnified and held harmless by the Company from and against any and all
losses, claims, damages, settlements and other amounts arising from any and all
claims (including attorneys' fees and expenses, as such fees and expenses are
incurred), demands, actions, suits or proceedings (civil, criminal,
administrative or investigative), in which they may be involved, as a party or
otherwise, by reason of their management of the affairs of the Company, whether
or not they continue to be such at the time any such liability or expense is
paid or incurred; provided that Indemnitee shall not be entitled to the
foregoing indemnification if a court of competent jurisdiction shall have
determined that such losses, claims, damages, liabilities, expenses or such
other amounts resulted primarily from the gross negligence or misconduct of such
Indemnitee. The termination of a proceeding by judgment, order, settlement or
conviction upon a plea of nolo contenders, or its equivalent, shall not, of
itself, create any presumption that such losses, claims, damages, liabilities,
expenses or such other amounts resulted primarily from the negligence or
misconduct of any Indemnitee or that the conduct giving rise to such liability,
was not in the best interest of the Company. The Company shall also indemnify
any Indemnitee who was or is a party or is threatened to be made a party to any
threatened, pending or completed action by or in the right of the Company to
procure a judgment in its favor by reason of the fact that such Indemnitee is or
was an agent of the Company, against any losses, claims, damages, liabilities,
expenses or any other amounts incurred by such Indemnitee in connection with the
defense or settlement of such action; provided that no Indemnitee shall be
entitled to the foregoing indemnification if a court of competent jurisdiction
shall have determined that any such losses, claims, damages, liabilities,
expenses or such other amounts resulted from the negligence or misconduct of
such Indemnitee. The Company may advance any Indemnitee any expenses (including,
without limitation, attorneys' fees and expenses) incurred as a result of any
demand, action, suit or proceeding referred to in this paragraph (b) provided
that (i) the legal action relates to the performance of duties or services by
the Indemnitee on behalf of the Company; and (ii) the Indemnitee gives a full
recourse promissory note to the Company for the amounts of such advances payable
in the event that the Indemnitee is determined to be not entitled to
indemnification hereunder.
(c) The indemnification provided by paragraph (b) of this Section 6.13
shall not be deemed to be exclusive of any other rights to which any Indemnitee
may be entitled under any agreement, as a matter of law, in equity or otherwise,
and shall continue as to an Indemnitee who has ceased to have an official
capacity and shall inure to the benefit of the heirs, successors and
administrators of such Indemnitee.
(d) Any indemnification pursuant to this section will be payable only from
the Company's assets.
6.14 Transactions with the Directors or their Affiliates. The Board, on behalf
of the Company, may enter into contracts with the Directors, Officers or Members
(or their Affiliates), provided that any such transactions shall be on terms no
more favorable to the Directors, Officers, Members (or their Affiliates) than
generally afforded to non-affiliated parties in a similar transaction.
6.15 Conflicts of Interest. Subject to the other express provisions of this
Agreement, the Directors at any time and from time to time may engage in and
possess interests in other business ventures of any and every type and
description, independently or with others, including ones in competition with
the Company, with no obligation to offer to the Company or any other Member the
right to participate therein.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF MEMBERS
7.1 Limitation of Liability. Each Member's liability shall be limited as set
forth in this Agreement, the Act and other applicable law.
10
7.2 Company Debt Liability. A Member will not be personally liable for any debts
or losses of the Company beyond his or her respective Capital Contributions
except as provided in Section 7.6 or as otherwise required by law.
7.3 Liability to Third Parties. No Member or Director is liable for the debts,
obligations or liabilities of the Company, whether arising in contract, tort or
otherwise, including under a judgment, decree or order of a court.
7.4 Lack of Authority. No Member (other than a Director or an Officer as
provided under Article VI) has the authority or power to act for or on behalf of
the Company, to do any act that would be binding on the Company or to incur any
expenditures on behalf of the Company.
7.5 List of Members. Upon written request of any Member, the Board shall provide
a list showing the names, addresses and Interests of all Members. Such Member
shall pay any reasonable expense associated with such request.
7.6 Member Liability to the Company.
(a) A Member who rightfully receives the return in whole or in part of its
Capital Contribution is nevertheless liable to the Company to the extent now or
hereafter provided by the Act.
(b) A Member who receives a Distribution made by the Company: (i) which is
either in violation of this Agreement, or (ii) when the Company's liabilities
exceed its assets (after giving effect to the Distribution), is liable to the
Company for a period of six (6) years after such Distribution for the amount of
the Distribution.
7.7 Representations and Warranties. Each Member hereby represents and warrants
to the Company that: (i) the Member has full power and authority to execute and
agree to this Agreement and to perform its obligations hereunder, and that all
actions necessary for the due authorization, execution, delivery and performance
of this Agreement by that Member have been duly taken; (ii) the Member has duly
executed and delivered this Agreement; and (iii) the Member's authorization,
execution, delivery, and performance of this Agreement do not conflict with any
other agreement or arrangement to which the Member is a party or by which the
Member is bound.
7.8 Member Information.
(a) In addition to the other rights specifically set forth in this
Agreement, each Member is entitled to the information to which that Member is
entitled to have access pursuant to the Act, under the circumstances therein
stated.
(b) The Members acknowledge that, from time to time, they may receive
information from or concerning the Company in the nature of trade secrets or
that otherwise is confidential, the release of which may damage the Company or
Persons with which it does business. Each Member shall hold in strict confidence
any information that it receives concerning the Company that is identified as
being confidential (and if that information is provided in writing, that is so
marked) and may not disclose it to any Person other than another Member or the
Director, except for disclosures (i) compelled by law (but the Member must
notify the Director promptly of any request for that information, before
disclosing it, if legal and practicable); (ii) to Persons to whom that Member's
Interest may be transferred as permitted by this Agreement, but only if the
recipients have agreed to be bound by the provisions of this Section 7.8; or
(iii) of information that the Member also has received from a source independent
of the Company and the Member reasonably believes that source obtained the
information without breach of any obligation of confidentiality. The Members
acknowledge that breach of the provisions of this Section 7.8 may cause
irreparable injury to the Company for which monetary damages are inadequate,
difficult to compute, or both. Accordingly, the Members agree that the
provisions of this Section 7.8 may be enforced by specific performance.
7.9 Membership Certificates. "Membership Certificates" in the form determined by
the ▇▇▇▇▇ may be delivered representing all Interests to which Members are
entitled. If issued, such Membership Certificates shall be consecutively
numbered, and shall be entered in the books of the Company and on the Membership
Register, as they are issued. Each Membership Certificate shall state on the
face thereof the holder's name, the Interests and such other matters as may be
required by applicable laws. Each such Membership Certificate shall be signed by
a
11
Director of the Company and may be sealed with the seal of the Company or a
facsimile thereof if adopted. The signature of the Director upon the Membership
Certificates may be facsimile. Subject to Article 10, upon surrender to the
Company of a Membership Certificate for Interests duly endorsed or accompanied
by proper evidence of succession, assignment or authority to Transfer, it shall
be the duty of the Company to issue a new Membership Certificate to the person
entitled thereto, cancel the old Membership Certificate and record the
transaction upon its books and records and the Membership Register. Each Member
hereby agrees that the following legend, as the same may be amended by the Board
in its sole discretion, may be placed upon any counterpart of this Agreement,
the Articles, or any other document or instrument evidencing ownership of Units:
The sale, pledge, hypothecation, assignment or transfer of the
ownership interest represented by this CERTIFICATE OF OWNERSHIP
is subject to the terms and conditions of the Operating Agreement
of NEDAK Ethanol, LLC, as amended from time to time. Copies of
the Operating Agreement may be obtained upon written request to
the Board of Directors of NEDAK Ethanol, LLC.
ARTICLE VIII
MEETINGS OF MEMBERS
8.1 Voting Power. The affirmative vote of Members holding a Majority in Interest
at a meeting at which there is a quorum present shall be the act of the Members;
provided, however, that the dissolution and winding up of the Company requires
the approval of Members required under Section 21-2622 of the Act, as amended
from time to time; provided, however, in the event that the statute referred to
above is amended to require approval of Members holding less than 66 2/3
percent, the dissolution and winding up of the Company shall require the
affirmative vote of Members holding 80 percent of the Percentage Interests.
Provided, further, that a Super-Majority Vote of the Members shall be required
for approval of the following actions: (a) the sale, exchange, lease, mortgage,
pledge or other transfer of all or substantially all of the assets of the
Company other than in the ordinary course of business; and (b) the merger or
consolidation of the Company with another entity.
8.2 Cumulative Voting. At each election for Directors, every Member entitled to
vote at such election shall have the right to vote, in person or by proxy, the
number of Units owned by him or her for as many persons as there are Directors
to be elected and for whose election he or she has a right to vote, or to
cumulate his or her votes by giving one candidate as many votes as the number of
such Directors multiplied by the number of his or her Units, or by distributing
such votes on the same principle among any number of candidates.
8.3 Meetings of Members. The annual meeting of Members shall be held on such
date as the Board shall by resolution specify within a period commencing on
January 1 and ending on June 30 in each year, beginning with 2007. At each
annual meeting, Members shall conduct such business as may be properly presented
to such meeting. If the day fixed for the annual meeting shall be a legal
holiday, such meeting shall be held on the next succeeding business day. Special
meetings of Members of the Company may be called by the Chairman of the Board,
by any three (3) Directors, or by the affirmative vote of Members holding at
least a 10 percent Percentage Interest and shall be held at the principal place
of business of the Company, or elsewhere as the notice of such meeting shall
direct. Members may attend any such meeting in person or by proxy.
8.4 Place of Meeting. The Board of Directors may designate any place, either in
or out of the State of Nebraska, as the place of meeting for any meeting. If no
designation is made, the place of meeting shall be the Company's principal
office.
8.5 Notice of Meetings. Written notice stating the date time and place of the
meeting and a description of the purpose or purposes for which the meeting is
called, shall be mailed, unless oral notice is reasonable under the
circumstances, not fewer than ten (10) nor more than sixty (60) calendar days
before the date of the meeting, by or at the direction of the Board of Directors
to each Member of record entitled to vote at the meeting. If mailed, such notice
is effective when mailed addressed to the Member's address shown in the
Company's current record of Members, with postage prepaid.
12
8.6 Quorum. The presence of Members holding a majority of the Percentage
Interests in person or by proxy shall constitute a quorum for the transaction of
business. If a quorum is not present at a meeting, a majority of the Percentage
Interests represented may adjourn the meeting from time to time without further
notice.
ARTICLE IX
WAIVER AND CONSENT
9.1 Written Waiver. Whenever any notice whatsoever is required to be given under
the provisions of this Agreement or under the provisions of the Articles or the
Act, waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
9.2 Waiver by Attendance. A Member's or Director's attendance at a meeting of
the Members or Directors, respectively: (i) waives objection to lack of notice
or defective notice of the meeting, unless the Member or Director at the
beginning of the meeting or promptly upon the Member's or Director's arrival
objects to holding the meeting or transacting business at the meeting, and (ii)
waives objection to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
Member or Director objects to considering the matter when it is presented.
9.3 Consent to Action Without Meeting. Any action required or permitted to be
taken by the Members or Mangers by vote may be taken without a meeting on
written consent. The consent shall set forth the actions so taken and be signed
by a Two-Third's Majority of the Members or Directors.
ARTICLE X
TRANSFER OF MEMBERSHIP INTERESTS
10.1 Restrictions on Transfer. No Member shall Transfer all or any portion of an
Interest without the prior written consent of the Board of Directors which
consent may be withheld in the sole discretion of the Board. Notwithstanding
anything contained herein to the contrary, no Member shall Transfer any Unit if,
in the determination of the Board, such Transfer would cause the Company to be
treated as a Publicly Traded Partnership, and any Transfer of Unit(s) not
approved by the Board of Directors or that would result in a violation of the
restrictions in this Agreement or applicable law shall be null and void with no
force or effect whatsoever, and the intended transferee shall acquire no rights
in such Unit.
10.2 Permitted Transfers. Subject to Section 10.1 above and the limits on total
maximum ownership set forth in Section 4.3 of this Agreement, any Transfer of
Units made in accordance with the following provisions will constitute a
"Permitted Transfer" for purposes of this Agreement:
(a) A Transfer by a Member and any related persons (as defined in the Code)
in one or more transactions during any thirty (30) calendar day period of
Interests representing in the aggregate more than 2 percent of the total
Interests in Company;
(b) A Transfer or series of related Transfers by one or more Members
(acting together) which involves the Transfer of fifty percent (50 percent) or
more of the outstanding Units; or
(c) Transfers of Units effected through a Qualified Matching Services
Program; or
(d) A Transfer by gift or bequest only to a spouse or child of such
transferring Member, or to a trust established for the benefit of such spouse or
child, or to an existing Member of the Company upon ten (10) days' prior written
notice to the Company of such gift or bequest; or
(e) Other Transfers during the tax year that, in the aggregate, do not
exceed 2 percent of the total Interests outstanding.
13
10.3 Conditions Precedent to Transfers. The Board of Directors, in its sole
discretion, may elect not to recognize any Transfer of Units unless and until
the Company has received:
(a) an opinion of counsel (whose fees and expenses shall be borne by the
transferor) satisfactory in form and substance to the Board that such Transfer
may be lawfully made without registration or qualification under applicable
state and federal securities laws, or such Transfer is properly registered or
qualified under applicable state and federal securities laws and if, requested
by the Company that such Transfer will not cause the Company to be treated as a
Publicly Traded Partnership;
(b) such documents and instruments of conveyance executed by the transferor
and transferee as may be necessary or appropriate in the opinion of counsel to
the Company to effect such Transfer, except that in the case of a Transfer of
Units involuntarily by operation of law, the Transfer shall be confirmed by
presentation of legal evidence of such Transfer, in form and substance
satisfactory to the Company;
(c) the transferor's Membership Certificate;
(d) the transferee's taxpayer identification number and sufficient
information to determine the transferee's initial tax basis in the interest
transferred, and any other information reasonably necessary to permit the
Company to file all required federal and state tax returns and other legally
required information statements or returns;
(e) evidence satisfactory in form and substance to the Board that the
transferee meets the maximum Unit ownership limitation set forth in Section 4.3
of this Agreement; and
(f) other conditions on the Transfer of Units adopted by the Board from
time to time as it deems appropriate, in its sole discretion.
10.4 Death of Member.
(a) Upon the death of any Member, the estate or personal representative of
the deceased Member shall have the right and option to request the Company
repurchase the deceased Member's Interest subject to and in accordance with the
applicable Code and Treasury Regulations regarding Publicly Traded Partnerships.
If the estate or personal, representative exercises such right and option the
Company shall, subject to Section 10.4(b) below, purchase the deceased Member's
Interest at the Fair Market Value of such Interest in effect at the date of
death as determined in accordance with Section 10.10 below, and on the terms and
conditions set forth in Section 10.5 and Section 10.6 below. This right and
option may be exercised by the deceased Member's estate or personal
representative by providing written notice to the Company within one hundred
twenty (120) days after the date of your death; provided, however, the Company
will not repurchase such interest earlier than sixty (60) days after receipt of
the written notice from the estate or personal representative requesting the
purchase.
(b) Any Transfer pursuant to this Section 10.4 shall be subject to a
determination by the Board that such Transfer shall not cause the Company to be
deemed a Publicly Traded Partnership, and such Transfer shall be affected in
accordance with this Agreement, the Code and applicable Treasury Regulations,
and shall be further subject to the prior approval of the Board which may be
withheld in its sole discretion.
10.5 Payment Terms. If the purchase price for an Interest transferred pursuant
to Section 10.4 above exceeds thirty thousand dollars ($30,000.00), the Company
shall have the option to pay for the Interest purchased by paying ten thousand
dollars ($10,000) at Closing (as defined below) and executing a promissory note
for the balance of the purchase price. The promissory note shall be paid in five
(5) equal annual installments due on the anniversary date of the Closing and
shall accrue interest per annum at a rate determined by the Board which shall
not be less than the then current prime rate established by any major bank
selected by the Board for loans to the bank's most creditworthy commercial
borrowers. The Company may prepay the promissory note, in whole or in part, at
any time without penalty or premium.
10.6 Events in Connection with the Sale of Interests.
14
(a) If there is a sale of Interest under Section 10.4 of this Agreement to
the Company, the closing ("Closing") shall occur at a time mutually agreeable to
the parties and in accordance with the time periods set forth in the applicable
provision of this Agreement; provided however, the Closing shall not occur until
at least sixty (60) days after the Company's receipt of notice from the estate
or personal representative requesting the Company repurchase the deceased
Member's Interest, but in no event later than one hundred twenty (120) days
after the date of the Company's receipt of such notice.
(b) In the event of a sale of Interest under Section 10.4 of this Agreement
to the Company, the purchase price shall be increased or decreased, as the case
may be, by an amount equal to any indebtedness owed the deceased Member by the
Company, or the deduction of any indebtedness owed the Company by the deceased
Member, or both.
(c) In the event of the sale of Interests under this Agreement by a Member,
all rights of the Member with respect to the Interest, including the right to
vote such Interest and to receive distributions, shall terminate at Closing,
except for the Member's right to receive payment therefor.
10.7 Redemption of Interests.
(a) A Member (the "Requesting Member") may request redemption of his or her
Interest upon not less than sixty (60) calendar days' prior written notice to
the Board of Directors. The Board, in its sole discretion, shall determine
whether to redeem such Interest and the Board is under no obligation to redeem
any Interest of any Requesting Member.
(b) Notwithstanding anything contained herein to the contrary, any
redemption pursuant to this Section 10.7 shall be subject to a determination by
the Board, in its sole discretion, that such redemption shall not cause the
Company to be deemed a Publicly Traded Partnership, and such redemption shall be
affected in accordance with this Agreement, the Code and applicable Treasury
Regulations, and shall be further subject to the prior approval of the Board
which may be withheld in its sole discretion.
10.8 Redemption Payment.
(a) Upon the redemption of a Member under Section 10.7, the Requesting
Member shall be entitled to a payment equal to the Fair Market Value of such
Member's Interest in the Company as of the effective date of the (the
"Redemption Payment"); provided, however, if the remaining Members of the
Company agree to dissolve the Company in accordance with Section 13.1 of this
Agreement, then in no event shall such Member be entitled to a Redemption
Payment, but such Member will be entitled to such Member's share of the assets
of the Company pursuant to Section l 3.3 below.
(b) The Redemption Payment shall not be paid until at least sixty (60) days
after the Company's receipt of the notice from the Requesting Member required
under Section 10.7(a) above. The Redemption Payment shall be paid in cash, or if
the Redemption Payment exceeds five thousand dollars ($5,000), the Company shall
have the option to pay the Redemption Payment by paying five thousand dollars
($5,000) upon the effective date of the redemption and executing a promissory
note for the balance of the Redemption Payment. Such note shall be dated and
delivered on the effective date of the withdrawal and shall be paid in five (5)
equal annual installments due on the anniversary date of the withdrawal and
shall accrue interest per annum at a rate determined by the Board which shall
not be less than the then current prime rate established by any major bank
selected by the Board for loans to the bank's most creditworthy commercial
borrowers. The Company may prepay the promissory note, in whole or in part, at
any time without penalty or premium.
(c) The Redemption Payment shall be increased or decreased, as the case may
be, by an amount equal to any indebtedness owed the Requesting Member by the
Company, or the deduction of any indebtedness owed the Company by the Requesting
Member, or both. All rights of the Member with respect to the Interest,
including the right to vote such Interest and to receive distributions, shall
terminate at Closing, except for the Member's right to receive payment therefor
upon the effective date of the redemption which shall be determined in
accordance with Section 10.9 below.
15
10.9 Effective Date of Transfer.
(a) Any Transfer of a Unit shall be deemed effective as of the day of the
month and year: (i) which the Transfer occurs (as reflected by the form of
assignment); and (ii) the transferee's name and address and the nature and
extent of the Transfer are reflected in the records of the Company; provided,
however, the effective date of a Transfer for purposes of allocation of Profits
and Losses and for Distributions shall be determined pursuant to Section 10.9(b)
below. Any transferee of a Unit shall take subject to the restrictions on
Transfer imposed by this Agreement.
(b) The Board, in its sole discretion, may establish interim periods in
which Transfers may occur (the "Interim Transfer Periods"); provided, however,
the Board shall provide Members reasonable notice of the Interim Transfer
Periods and advance notice of any change to the Interim Transfer Periods. For
purposes of making allocations of Profits and Losses, and Distributions, the
Company will use the interim closing of the books method (rather than a daily
proration of profit or loss for the entire period) and recognize the Transfer as
of the first day following the close of Interim Transfer Period in which the
Member complied with the notice, documentation and information requirements of
Article 10. All Distributions on or before the end of the applicable Interim
Transfer Period in which such requirements have been substantially complied with
shall be made to the transferor and all Distributions thereafter shall be made
to the transferee. The Board the authority to adopt other reasonable methods
and/or conventions.
(c) The Board shall have the power and authority to adopt another
reasonable method and/or convention with respect to such allocations and
distributions; provided, neither the Company, the Board, any Director nor any
Member shall incur any liability for making allocations and distributions in
accordance with the provisions of this Section 10.9 (other than tax liabilities
which may be incurred by Members), whether or not the Board or any Director or
the Company or any Member has knowledge of any Transfer of ownership of any
Interest in the Company.
10.10 Fair Market Value. Upon the Transfer of any Interest pursuant to Section
10.4, or the redemption of an Interest pursuant to Section 10.7, the purchase
price or Redemption Payment shall be equal to the Fair Market Value of the
Interest. "Fair Market Value" of an Interest on any date shall, unless otherwise
specifically provided in this Agreement, be equal to the most recent fair market
valuation determination of the per Unit value of the Company by the Board in
good faith; provided, that such valuation shall be calculated on a basis as
consistent as practicable from period to period. The Board may, in its sole
discretion, employ the advice of independent and qualified professionals in the
determination of the Fair Market Value, but is not under any obligation to do
so. The Fair Market Value of the Company shall be determined at least annually.
Valuations shall generally be performed, at the discretion of the Board, as of
the end of each fiscal year of the Company's operations at the annual meeting of
the Board; however, the Board, in its sole discretion, may have fair market
valuations of the Company performed at any time or from time to time during any
year and, except as otherwise specifically provided in this Agreement, shall
utilize the results of the most recent valuation in determining the Fair Market
Value of an Interest for purposes of this Agreement. No Member or any party
other than the Board shall have the right to require or request that a new or
more recent valuation be performed for purposes of determining the Fair Market
Value of the Company or an Interest hereunder. The Company shall not establish
the Fair Market Value more than four (4) times during the Company's taxable
year.
10.11 Expenses. Except as otherwise expressly provided herein, all expenses of
the Company incident to the admission of the transferee to the Company as a
Member shall be charged to and paid by the transferring Member.
ARTICLE XI
RECORDS, FINANCIAL AND TAX REPORTING
11.1 Records and Accounting. The books of account and other records of the
Company shall be maintained at the Company's principal place of business. The
Company shall prepare its financial statements using generally accepted
accounting principles, consistently applied.
11.2 Tax Information. The Board will use its best efforts to cause to be
delivered, as soon as practical after the end of each fiscal year of the
Company, to the Members and Persons who were Members during such fiscal year all
16
information concerning the Company necessary to enable such Member or Person to
prepare such Member's (or Person's) Federal and state income tax returns for
such fiscal year, including a statement indicating such Member's (or Person's)
share of Profits, Losses, deductions and credits for such fiscal year for
Federal and state income tax purposes, and the amount of any Distribution made
to or for the account of such Member or Person during such fiscal year pursuant
to this Agreement.
11.3 Tax Returns. The Board shall cause income tax returns for the Company to be
prepared and timely filed in accordance with applicable law.
11.4 Tax Matter Member. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is hereby appointed and authorized to
perform all duties imposed by Sections 6221 and 6232 of the Code as "tax matter
partner" of the Company. The Company shall indemnify, to the full extent
permitted by law, the tax matter partner from and against any damages and losses
(including attorneys' fees) arising out of or incurred in connection with any
action taken or omitted to be taken by in carrying out responsibilities as tax
matter partner, provided such action taken or omitted to be taken does not
constitute fraud, negligence or misconduct.
11.5 Access to Books and Records.
(a) A Member of the Company shall be entitled to inspect and copy during
regular business hours at the Company's principal office the following records
if he or she gives the Company written notice of his or her demand at least five
business days before the date on which he or she wishes to inspect and copy:
(i) Articles or Restated Articles of Organization and all amendments
thereto currently in effect;
(ii) Operating Agreement and all restatements and amendments thereto
currently in effect;
(iii) Minutes of all Member meetings and records of all action taken
by Members without a meeting for the past three years;
(iv) All written communications to the Members generally within the
past three years;
(v) Annual financial statements that include a balance sheet as of
the end of the fiscal year, an income statement for that year and
a statement of changes in Members' equity for that year unless
such information appears elsewhere in the financial statements,
along with the accountant's report if the annual financial
statements are reported upon by a public accountant;
(vi) A list of the names and business addresses of the Company's
current Directors and officers; and
(vii) The most recent annual report delivered by the Company to the
Nebraska Secretary of State.
(b) A Member shall be entitled to inspect and copy during regular business
hours at a reasonable location specified by the Company any of the following
records of the Company if the Member meets the requirements of Section 11.5(c)
below and gives the Company written notice of his or her demand at least five
business days before the date on which he or she wishes to inspect and copy:
(i) Excerpts from minutes of any meeting of the Board of Directors,
records of any action of a committee of the Board of Directors
while acting in place of the Board of Directors on behalf of the
Company, minutes of any meeting of the Members, and records of
action taken by the Members or Board of Directors without a
meeting, to the extent not subject to inspection under subsection
(1) of this section;
17
(ii) Accounting records of the Company; and
(iii) The Membership Register.
(c) A Member may inspect and copy the records described in Section 11.5(b)
above only if: (i) the Member's demand is made in good faith and for a proper
purpose; (ii) the Member describes with reasonable particularity his or her
purpose and the records he or she desires to inspect; and (iii) the records are
directly connected with the Member's purpose.
ARTICLE XII
FISCAL AFFAIRS
12.1 Elections.
(a) The Board of Directors may elect to adjust the basis of the assets of
the Company for federal income tax purposes in accordance with Section 754 of
the Code in the event of a distribution of Company property as described in
Section 734 of the Code or a transfer by any Member of the Interest of such
Member in the Company as described in Section 743 of the Code.
(b) The Board of Directors, at any time and from time to time, may also
make such other tax elections as it deems necessary or desirable, in its
discretion.
12.2 Interim Closing of the Books. There shall be an interim closing of the
books of account of the Company (i) at any time a taxable year of the Company
shall end pursuant to the Code, and (ii) at any other time determined by the
Board of Directors to be required for good accounting practice or otherwise
appropriate under the circumstances.
ARTICLE XIII
TERMINATION AND DISSOLUTION
13.1 Events Requiring Termination and Dissolution. The Company shall be
dissolved upon the occurrence of any event which would make unlawful the
continuing existence of the Company or in accordance with Section 21-2622 of the
Act, as amended from time to time; provided, however, in the event that the
statute referred to above is amended to require approval of Members holding less
than 66 2/3 percent of the Percentage Interests, the Company shall only be
dissolved upon the approval of Members holding 66 2/3 percent of the Percentage
Interests (each a "Liquidating Event").
13.2 Winding Up Period Upon the occurrence of a Liquidating Event, the Company
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Members. No Member shall take any action that is inconsistent with, or not
necessary to or appropriate for, the winding up the Company's business and
affairs. To the extent not inconsistent with the foregoing, all covenants and
obligations in this Agreement shall continue in full force and effect until such
time as the assets of the Company have been distributed pursuant to this Section
and the Company has terminated. The Board shall be responsible for overseeing
the winding up and liquidation of the Company, shall take full account of the
Company's liabilities and assets, shall cause the assets to be liquidated as
promptly as is consistent with obtaining the Value thereof, and shall cause the
proceeds therefrom, to the extent sufficient therefor, to be applied and
distributed in the manner required by the Act. Without limiting the generality
of the foregoing, the Board of Directors, in carrying out such winding up and
distribution, shall have full power and authority to sell the Company's assets,
or any part thereof, or to distribute the same in kind to the Members.
13.3 Distribution.
(a) Upon the occurrence of a Liquidating Event and the dissolution of the
Company, the affairs of the Company shall be wound up in accordance with Section
13.2 above. The fair market value of the assets of the Company shall be
determined, with the Value of any real or personal property held by the Company
being determined in accordance with paragraph (e) of Section 5.4 and the fair
market value of any other assets held by the
18
Company (other than cash) being determined by an independent appraiser selected
by the Board. Thereupon, the assets of the Company shall be distributed in the
following manner and order: (i) to the claims of all creditors of the Company,
including Members who are creditors, to the extent permitted by law, in
satisfaction of liabilities of the Company, other than liabilities for
distributions to Members; (ii) to Members and former Members in satisfaction of
liabilities for distribution, pursuant to Section 21-2625(1)(b) of the Act, and
(iii) to the Members with positive Capital Account Balances in accordance with
their Percentage Interests. Each such Member entitled to a distribution of any
assets of the Company, pursuant to clause (iii) of this paragraph (a), shall
receive such Member's share of such assets in cash or in kind, and the portion
of such share that is received in cash may vary from Member to Member, all as
the Board of Directors in their discretion may decide. If distributions to any
Member upon termination of the Company are insufficient to return to such Member
the full amount of such Member's Capital Contribution, such Member shall have no
recourse against the Board of Directors, the Company or against any other
Member.
(b) In the discretion of the Board, a Pro Rata portion of the distributions
that would otherwise be made to the Members pursuant to Section 13.3(a) hereof
may be:
(i) distributed to a trust established for the benefit of the Members
for the purposes of liquidating Company assets, collecting
amounts owed to the Company, and paying any contingent or
unforeseen liabilities or obligations of the Company or of the
Members arising out of or in connection with the Company. The
assets of any such trust shall be distributed to the Members from
time to time, in the reasonable discretion of the Board, in the
same proportions as the amount distributed to such trust by the
Company would otherwise have been distributed to the Members
pursuant to Section 13.3(a) hereof; or
(ii) or withheld to provide a reasonable reserve for Company
liabilities (contingent or otherwise) and to reflect the
unrealized portion of any installment obligations owed to the
Company, provided that such withheld amounts shall be distributed
to the Members as soon a practicable.
13.4 Deficit Capital Account Balance. The Members shall have no liability to the
Company, to the other Members, or to the creditors of the Company on account of
any deficit balance in such Member's Capital Account Balance except to the
extent such deficit arises from the failure of the Member to contribute the full
amount of its Capital Contribution. The Company shall be solely responsible for
payment of liabilities to its creditors.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices. All Notices or other communications under this Agreement shall be
in writing (unless otherwise expressly provided herein) and shall be considered
properly given if delivered by hand or mailed by first class United States Mail,
postage prepaid, addressed in care of the respective Members or Directors at
their last-known address. Notice may also be delivered by means of a confirmed
telecopy, provided the original of the notice is also promptly deposited in the
United States Mail, first class postage prepaid, addressed to the Members or
Director's at such address. Notice of change of address shall be given to the
Company by hand or first class United States Mail, after the date of receipt of
which notice, the change of address shall be effective. Unless actual receipt of
a notice is required by an express provision hereof, any such notice shall be
deemed to be effective as of the earliest of (a) the date of delivery or
confirmed telecopy, or (b) the third business day following the date of deposit
with the United States Post Office or in a regularly maintained receptacle for
the deposit of United States Mail. Any refusal to accept delivery of any such
communication shall be considered successful delivery thereof.
14.2 Insurance. The Company may purchase and maintain insurance on behalf of any
person who is or was a Director, Member, employee or agent of the Company or is
or was serving at the request of the Company as a Director, Member, officer,
Director, employee or agent of another limited liability company, corporation,
partnership, joint venture, trust, or other enterprise, against any liability
asserted against such person and incurred in any such capacity or arising out of
his or her status as such.
19
14.3 Successors. This Agreement and all of the terms and provisions thereof
shall be binding upon the Directors and all Members and their respective legal
representatives, heirs, successors and permitted assigns.
14.4 Applicable Law. This Agreement and the rights and obligations of the
Members thereunder shall be construed and interpreted under the laws of the
State of Nebraska without regard to its conflict of law principals.
14.5 Amendments. This Agreement may not be modified or amended except upon the
Super-Majority Vote of the Board or upon an affirmative vote of Two-Thirds (2/3)
Majority of the Members. Upon the modification or amendment of this Agreement,
the Board shall promptly execute such amendments or other documents as the
Company deems appropriate to reflect such amendments under the law of the State
of Nebraska. In the event the Board materially modifies or amends this Agreement
pursuant to this Section 14.5, the Board shall send notice to the Members of the
material modification or amendment within a reasonable period of time after the
effective date of such modification or amendment.
14.6 Waiver of Partition. Each of the Members of the Company irrevocably waives
any right to maintain any action for partition with respect to the property of
the Company.
14.7 Company Property. The legal title to any real or personal property or
interest therein now or hereafter acquired by the Company shall be owned, held
or operated in the name of the Company, and no Member, individually, shall have
any ownership interest in such property.
14.8 Acceptance of Prior Acts by New Members. Each Person becoming a Member, by
becoming a Member, ratifies all action duly taken by the Company, pursuant to
the terms of this Agreement, prior to the date such person becomes a Member.
14.9 Section Headings. The division of this Agreement into sections, subsections
and exhibits is for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
14.10 Severability. In the event that one or more of the provisions contained in
this Agreement or any portions thereof are unenforceable or are declared invalid
for any reason whatsoever, such enforceability or invalidity shall not affect
the enforceability or validity of the remaining terms or portions of this
Agreement, and each such unenforceable or invalid portion hereof shall be
severable from the remainder of this Agreement and the remainder of this
Agreement shall be interpreted as if such unenforceable or invalid provision or
portion thereof had not been included as a part thereof.
14.11 Agreement for Further Execution. At any time or times, upon the request of
the Board, the Members agree to sign and swear to any certificate required by
the Act, to sign and swear to any amendment to or cancellation of such
certificate whenever such amendment or cancellation is required by law or by
this Agreement, and to cause the filing of any of the same of record wherever
such filing is required by law.
14.12 Time. Time is an essential element to the performance of this Agreement by
each Member.
14.13 Copies Reliable and Admissible. This Agreement shall be considered to have
been executed by a person if there exists a photocopy, facsimile copy, or a
photocopy of a facsimile copy of an original hereof or of a counterpart hereof
which has been signed by such person. Any photocopy, facsimile copy, or
photocopy of facsimile copy of this Agreement or a counterpart hereof shall be
admissible into evidence in any proceeding as though the same were an original.
14.14 Entire Agreement. This Agreement is the sole operating agreement of the
Company and constitutes the entire agreement among the parties; it supersedes
any prior agreements or understandings among the parties, oral or written, all
of which are hereby canceled.
14.15 Gender. Whenever the context shall require, each term stated in either the
singular or plural shall include the singular and the plural, and masculine or
neuter pronouns shall include the masculine, the feminine and the neuter.
20
14.16 No Waiver. No failure or delay on the part of any Member in exercising any
rights under this Agreement, or in insisting on strict performance of any
covenant or condition contained in this Agreement, shall operate as a waiver of
any of such Member's rights hereunder.
14.17 Submission to Jurisdiction. Each of the parties to this Agreement hereby
submits to the jurisdiction of and agrees that suit will only be brought in the
state or federal court sitting in Omaha, Nebraska (the "Nebraska Court") in any
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. Each party also agrees not to bring any action
or proceeding arising out of or relating to this Agreement or the transactions
contemplated thereby in any other court except as may be necessary to enforce
any judgment or order of the Nebraska Court. Each of the parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety or other security that might be required of
any other party with respect thereto.
14.18 Specific Performance. Each of the parties acknowledges and agrees that the
other party would be damaged irreparably in the event any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the parties agrees that the other
parties shall be entitled, without posting a bond or other collateral, to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in the Nebraska Court, in addition to
any other remedy to which it may be entitled, at law or in equity.
14.19 Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same instrument.
14.20 Creditors. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditors of the Company.
IN WITNESS WHEREOF, all of the Members of the Board of Directors of NEDAK
Ethanol, LLC have adopted this Agreement effective as of the 16th day of April,
2006.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------------
/s/ ▇▇▇▇▇▇ Winnings /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ Dick Bilstein
-------------------------------- --------------------------------
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------------