EXHIBIT 3.10
OPERATING AGREEMENT
OF
COGNITIVE, L.L.C.
This Limited Liability Company Operating Agreement (this "Agreement") for
Cognitive, L.L.C., a Delaware limited liability company (the "Company"), is
adopted as of the 24th day of October, 1997, by Axiohm Transactional Solutions,
Inc. (the "Member").
AGREEMENT
1. FORMATION OF COMPANY
The Member has formed a limited liability company pursuant to the Delaware
Limited Liability Company Act (the "Act") by filing a Certificate of Formation
with the Delaware Secretary of State in accordance with the Act and the rights
and liabilities of the Member as provided in the Act, except as herein otherwise
provided.
2. NAME
The Company shall be conducted under the name Cognitive, L.L.C. or such other
name as the Member may select.
3. PRINCIPAL PLACE OF BUSINESS
The office of the Company shall be at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The business of the Company also may be conducted at such
other or additional place or places as may be designated by the Member.
4. PURPOSES AND POWERS OF THE COMPANY
The purpose of the Company shall be (a) to hold interest in Axiohm
Investissements Sarl; and (b) to transact any or all other lawful business
for which limited liability companies may be organized under the Act. The
Company shall have all powers necessary or desirable to accomplish the
aforesaid purposes.
5. QUALIFICATION AND REGISTRATION
The Company and its Member shall, as soon as practicable, take all action
necessary to qualify the Company to do business and to execute all
certificates or other documents, and perform all filings and recordings, as
are required by the laws of the State of Delaware and the other jurisdictions
in which the Company does business.
6. CAPITALIZATION OF THE COMPANY
6.1 INITIAL CONTRIBUTIONS. The initial capital contribution of the Member
shall be $100.
6.2 INITIAL PERCENTAGE INTERESTS. The initial percentage interests
("Percentage Interests") of each Member shall be as follows:
PERCENTAGE INTEREST
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Axiohm Transactional Solutions, Inc. 100%
6.3 ADDITIONAL CAPITAL CONTRIBUTIONS. The Member is not obligated to make
additional capital contributions to the Company beyond the contributions
agreed to in Section 6.1.
7. DISTRIBUTIONS AND ALLOCATIONS
7.1 ALLOCATIONS. All of the Company's taxable income and loss shall be
allocated for each fiscal year or other relevant period to the Member.
7.2 DISTRIBUTIONS. Distributions of cash or other assets shall be made in
the amounts and at the times determined by the Member.
8. ACCOUNTING AND TAX MATTERS
8.1 BOOKS OF ACCOUNT. The Company shall maintain or cause to be maintained
at all times true and proper books, records, reports and accounts in
accordance with generally accepted accounting principles consistently
applied, in which shall be entered fully and accurately all transactions of
the Company and the Member shall have access thereto at all reasonable times.
The Company shall keep vouchers, statements, receipted bills and invoices
and all other records in connection with the Company's business.
8.2 ACCOUNTING AND REPORTS. The books of account shall be closed promptly
after the end of each fiscal year and an audit shall be performed at the
expense of the Company, if requested by the Member, by an independent public
accounting firm. Promptly thereafter, the Company shall make a
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written report to the Member, which shall include a balance sheet of the
Company as of the end of such year, a statement of income and expenses for
such year, a statement of the Member's capital account as of the end of such
year, and such other statements with respect to the status of the Company and
distribution of the profits and losses therefrom as are considered necessary
by the Member to advise the Member properly about its investment in the
Company for Federal and state income tax reporting purposes. Not later than
30 days prior to the date on which the Company intends to file its tax
return, the Company shall submit to the Member for review and approval a copy
of all such tax returns as proposed to be submitted.
8.3 FISCAL YEAR. The fiscal year of the Company shall end on the 31st Day
of December in each year.
8.4 BANKING. An account or accounts in the name of the Company shall be
maintained in such bank or banks as the Member may from time to time select.
All monies and funds of the Company, and all instruments for the payment of
money to the Company, shall, when received, be deposited in said bank account
or accounts, or prudently invested in marketable securities or other
negotiable instruments. All checks, drafts and orders upon said account or
accounts shall be signed in the Company name by such persons in such manner
as the Member may from time to time determine.
9. MANAGEMENT; CERTAIN OBLIGATIONS
9.1 MANAGEMENT BY MEMBER. The Member shall have full, exclusive and complete
discretion in the management and control of the business and affairs of the
Company for the purpose herein stated, and shall make all decisions affecting
the Company's business and affairs, except as otherwise expressly limited
herein. The Member shall have full authority to bind the Company by
execution of documents, instruments, agreements, contracts or otherwise to
any obligation not inconsistent with the provisions of this Agreement.
9.2 EXPENDITURES BY COMPANY. The Company shall, upon the direction of the
Member, pay compensation for accounting, administrative, legal, technical and
management services rendered to the Company. The Member shall be entitled to
reimbursement by the Company for any expenditures necessarily and reasonably
incurred by them on behalf of the Company, which shall be made out of the
funds of the Company.
9.3 ADVANCES AND LOANS BY MEMBER. The Member may lend money to and
transact other business with the Company and such Member shall have the same
rights and obligations with respect thereto as a person who is not a Member.
Loans by the Member to the Company, or guarantees by any Member of Company
indebtedness shall not be considered capital contributions to the Company.
Any such advance shall be treated as a debt owing from the Company, payable
at such times and with such rate of interest as shall be agreed upon by the
Company and the Member making such advance or loan. Undistributed earnings
and profits of the Company shall not be considered an advance of money to the
Company.
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9.4 POTENTIAL CONFLICTS. The Member may engage in business ventures of any
nature and description independently or with others and the Company shall not
have any rights in and to such independent ventures or the income or profits
derived therefrom.
9.5 RIGHTS AND OBLIGATIONS OF THE MEMBER. The Member shall not be
personally liable for any of the debts of the Company or any of the losses
thereof beyond the amounts contributed by them to the capital of the Company.
The Member shall not be entitled to the return of their capital contribution
except to the extent provided for in this Agreement.
9.6 LIABILITY OF MEMBER. The Member shall not be liable, responsible or
accountable in damages or otherwise to the Company for any good faith act or
omission on behalf of the Company within the scope of the authority conferred
on the Member(s) by this Agreement or by law unless such action or omission
was performed or omitted in bad faith or constituted gross negligence or
willful misconduct.
10. CHANGES IN MEMBERSHIP OR INTERESTS
10.1 TRANSFER OF INTERESTS. The Member shall be able to sell, transfer,
assign, give, pledge, or otherwise dispose of or encumber any part or all of
his interest in the Company now owned or hereafter acquired, whether
voluntarily, by operation of law, or otherwise.
10.2 ADMISSION OF NEW MEMBERS. New members may not be admitted to the
Company without the prior written consent of and upon terms approved by the
Member, among which shall be all amendments to this Agreement which are
required or desirable in connection with such admission.
10.3 RESIGNATION OF MEMBER. The Member may resign from the Company at any
time.
11. DISSOLUTION OF THE COMPANY
11.1 EVENTS RESULTING IN DISSOLUTION. The Company shall be dissolved upon the
first to occur of the following:
(a) Upon the written consent of the member;
(b) The entry of a decree of judicial dissolution under Section 18-802
of the Delaware Limited Liability Company Act.
The death, resignation, dissolution, expulsion, retirement or bankruptcy of a
Member or a court declaration of incompetence with respect to the Member or
the occurrence of any other event which terminates the continued membership
of the Member in the Company shall not cause dissolution of
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the Company and unless either Section 11.1(a) or 11.1(b) applies, the Company
shall have a perpetual existence.
11.2 LIQUIDATION AND DISTRIBUTION OF LIQUIDATION PROCEEDS. In the event of
the dissolution of the Company for any reason, the Member shall commence to
wind up the affairs of the Company and to liquidate its assets. The Member
shall select a liquidating trustee who shall have full power to sell, assign
and encumber Company assets. The Member shall continue to share profits and
losses during the period of liquidation. Any property distributed in kind in
liquidation shall be valued and treated as though the property were sold and
the cash proceeds were distributed. Upon liquidation, the assets of the
Company shall be used and distributed in the following order: (a) to pay or
provide for the payment of all debts and liabilities of the Company to
creditors, including the Member, to the extent permitted by law, in
satisfaction of liabilities of the Company other than liabilities for
distributions to the Member; (b) to the Member.
11.3 TERMINATION. Upon the completion of liquidation of the Company and the
distribution of all Company assets, the Company shall terminate.
12. AMENDMENTS TO AGREEMENT
This Agreement may be altered, amended or repealed at any time and from time
to time with the approval of the Member.
13. INDEMNIFICATION
The Company shall have the power to indemnify any person who was or is a
manager, employee, or agent of the Company, or who is or was serving at the
request of the Company as a director, manager, employee, or agent of another
limited liability company, corporation, partnership, joint venture, trust or
other enterprise and to purchase and maintain insurance for those persons as,
and to the extent permitted by the Act.
14. MISCELLANEOUS
14.1 NOTICES. All notices, offers or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as properly given or made, if mailed, five business days
after mailing from within the United States by first class United States
mail, postage prepaid, return receipt requested, or by personal delivery to
the address of the principal place of business set forth in Section 3. The
Member may change its address. Commencing on the tenth day after the giving
of such notice, such newly designated address shall be such Member's address
for purposes of all notices or other communications required or permitted to
be given pursuant to this Agreement.
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14.2 COMPANY PROPERTY. All property, whether real, personal or mixed,
tangible or intangible, and wherever located, contributed by the Member(s) to
the Company or acquired by the Company shall be the property of the Company.
All files, documents, and records shall be the property of the Company and
shall remain in the possession of the Company.
14.3 SUCCESSORS. This Agreement and all the terms and provisions hereof
shall be binding upon and shall inure to the benefit of the Member and their
respective legal representatives, heirs, successors and assigns, except as
expressly herein otherwise provided.
14.4 GOVERNING LAW. This Agreement shall be governed, construed and
enforced in conformity with the laws of the State of Delaware.
14.5 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one and the
same instrument.
14.6 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
the Member and supersedes any prior understandings and/or written or oral
agreements among them respecting the within subject matter. There are no
representations, agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject matter of this
Agreement which are not fully expressed herein.
IN WITNESS WHEREOF, the Member(s) have adopted this Agreement as of the day and
year first above written.
AXIOHM TRANSACTION SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
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