Exhibit 10.19
OPERATING AGREEMENT
THIS OPERATING AGREEMENT ("Agreement") made and entered into
this ___ day of October, 2004, among A&C Capital USA, Inc., a New
York corporation ("A&C"); PEM, LLC, a New York limited liability
company ("PEM", and together with A&C collectively referred to
as the "Members" and individually referred to as a "Member") and
DCI Management, LLC, a New York limited liability company (the
"Company").
WITNESSETH
WHEREAS, on October 19, 2004, the Company was formed as a
New York limited liability company pursuant to the Law (as
defined below); and
WHEREAS, the Company has been formed to act as the manager
of Direct Capital Investments, Ltd., an Israeli public company
("DCI") and its assets, including without limitation, Gavella
Corp., a Delaware company listed in the Over the Counter Bulletin
Board; and
WHEREAS, the Members and the Company desire to enter into
this Agreement in order to state the terms and conditions of the
operation and management of the Company.
NOW, THEREFORE, for and in consideration of the various
covenants, promises, stipulations and conditions stated herein,
the parties agree to form a limited liability company to be
operated and managed as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Unless otherwise specified herein to the
contrary, the following terms should have the following meanings
in and for the purposes of this Agreement:
"Capital Accounts" means the account to be maintained by the
Company for each Member in accordance with the following
provisions:
(i) a Member's Capital Account shall be
credited with the Member's Capital Contributions, the amount of
any Company liabilities assumed by the Member (or which are
secured by Company property distributed to the Member), the
Member's distributive share of Net Profit and any item in the
nature of income or gain specially allocated to the Member
pursuant to the provisions of this Agreement; and
(ii) a Member's Capital Account shall be
debited with the amount of money and the fair market value of any
Company property distributed to the Member, the amount of any
liabilities of the Member assumed by the Company (or which are
secured by property contributed by the Member to the Company),
the Member's distributive share of Loss and any item in the
nature of expenses or losses specially allocated to the Member.
"Capital Contribution" means the total amount of cash and
the fair market value of any other assets contributed (or deemed
contributed under Regulation Section 1.704-01(b) (2) (iv) (d) to
the Company by a Member, net of liabilities assumed or to which
the assets are subject.
"Disabling Conduct" shall mean conduct that constitutes
fraud, a breach of fiduciary duty, willful misfeasance or
misconduct, deliberate dishonesty, bad faith or gross negligence
in the conduct of the duties of the Person referred to or
pecuniary gain or other advantage to which such Person was not
legally entitled to and was not undertaken in good faith and in a
manner reasonably believed to be in, or not opposed to the
interests of the Company.
"Encumbrance" means any security, interest, pledge,
mortgage, lien, charge, encumbrance, adverse claim, option,
warrant, proxy, preferential arrangement or restriction of any
kind, including, without limitation, any restriction on the use,
voting, transfer, receipt of income or other exercise of any
attributes of ownership.
"Fiscal Year" means (i) any twelve (12) month period
commencing on January 1 and ending on December 31, or (ii) any
portion of the period described in (i) of this sentence in which
the Company is required to allocate Net Profits, Net Losses and
other items of Company income, gain, loss or deduction pursuant
to this Agreement.
"Hereof", "herein", "Agreement" and words of similar import
have reference to this Agreement as a whole and to not any
particular section, subsection or clause.
"Law" means the Limited Liability Company Law of New York.
"Management Agreement" shall mean the Management Agreement
between the Company and DCI.
"Membership Interest" or "Interest" means a Member's limited
liability company interest in the Company which represents such
Member's share of the Net Profits and Net Losses and such
Member's right to receive distributions of the Company's assets
in accordance with the provisions of this Agreement and the Law.
"Monthly Management Fee" shall have the meaning given to
such term in the Management Agreement.
"Net Cash Flow" means all cash receipts of the Company and
the fair market value of any property received in connection
therewith, in any Fiscal Year from whatever source derived, plus
any cash which the Members decide to, or is required to, release
from reserves, less (A) payment of any debt obligations which
might be then due and payable by the Company; (B) payment of
unincorporated business taxes and any other taxes due and payable
by the Company and (C) the amount determined by the Members to be
maintained as reserves.
"Net Profits and "Net Losses" mean, for each Fiscal Year,
an amount equal to the Company's taxable income or loss for such
period for "book" or "capital account" purposes under Regulations
Section 1.704-1(b)(2)(iv).
"New Securities" means any Membership Interests or other
securities or other rights convertible or exchangeable into or
exercisable for Membership Interests.
"Person" means any individual, corporation, partnership,
limited liability company, trust, joint venture, association,
unincorporated organization or government or other agency or
political subdivision thereof.
"Transfer" means any direct or indirect sale, transfer,
gift, assignment or other disposition, voluntary or involuntary.
1.2 Interpretation. All article and sections headings
herein are included for convenience of reference only and shall
not be considered part of this Agreement, nor shall they effect
the interpretation of this Agreement. The singular shall, when
used herein, include the plural, the plural the singular and any
gender, all other genders.
ARTICLE II
THE COMPANY AND ITS BUSINESS
2.1 Formation; Purpose. The Company was formed on October
19, 2004 pursuant to the Law under the name "DCI Management,
LLC". The business office of the Company shall be at such other
place or places as the Members may from time to time designate.
The sole and exclusive purpose of the Company shall be to be the
manager of DCI and its interests, including without limitation,
Gavella Corp., pursuant to the terms and provisions of this
Agreement.
2.2. Organization; Duration. The registered office and the
resident agent of the Company shall be as designated in the
Articles of Organization of the Company or any amendment thereof.
The registered office and the resident agent may be changed from
time to time by the Members. If the resident agent shall ever
resign, then the Members shall promptly appoint a successor
resident agent and shall file an appropriate amendment to the
Articles of Organization. The Company shall not have a specific
date of dissolution, and shall, subject to the terms and
provisions of this Agreement and the Law, have a perpetual
existence.
2.3. Principal Office. The Company shall maintain its
principal office at NY or such other location as the Members may
determine.
2.4 Title to Company Property. All property of the Company
shall be deemed to be owned by the Company as an entity, and no
Member individually, shall have any direct ownership in such
property.
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS
3.1 Members. Effective as of the date hereof, the
Membership Interest of each Member in the Company and their
respective percentage interest in the total capital of the
Company is as set forth in the Schedule of Members attached
hereto.
3.2 Capital Contributions. As of the date hereof, the
Members shall have contributed their respective Capital
Contribution as reflected on the Schedule of Members attached
hereto.
3.3 Capital Calls. If the Members determine that
additional funds are required by the Company, then each Member
shall purchase the New Securities, pro rata in accordance with
their Membership Interests at the same price and on the same
terms proposed to be issued or sold by the Company so that each
of the Members would, after the issuance or sale of all such New
Securities, hold the same percentage interest in the Company as
it had immediately prior to the issuance or sale of the New
Securities. Alternatively, the Members shall loan the Company the
required funding. Each Member shall be required to deposit with
the Company the additional capital contribution required or the
requested loan, as the case may be, by the date specified in the
notice. If a Member does not exercise its right to purchase such
additional New Securities, or lend the Company the requested
funds, as the case may be, the other Member exercising its full
right to purchase the additional capital or lend the Company the
money, shall have the right to lend the Company the requested
amount as a loan and not as additional Capital Contribution. Such
loans will be at an interest rate equal to the prime interest
rate as set forth in the Wall Street Journal plus one percent
(1%) and upon such other terms as are commercially reasonable.
3.4 Limitation of Liability. Except as otherwise may be
required by Law, the liability of each Member is limited to its
respective Capital Contribution and the amount of its Capital
Account. Although no Member will be (i) liable for any debt,
liability or obligation of the Company, (ii) required to return
any distribution made to a Member of the Company or (iii) or
required to contribute any additional capital to the Company,
each Member agrees that its Capital Account is an asset of the
Company and, as such, is subject to all of the debts and
obligations of the Company.
ARTICLE IV
MEMBER-MANAGED
4.1 Management. The Members shall jointly manage the
business and operations of the Company. Neither Member shall have
the right to bind the Company or the other Member without the
express written authorization of the other Member. Each Member
shall owe the Company and the other Member duties of loyalty and
due care of the type owed by directors of a corporation to the
shareholders of a corporation.
Although no action shall be taken by the Company without the
prior written authorization of both Members, the Member who
initially introduces a financing opportunity to DCI or any of its
assets, subsidiaries or interests, shall have the right to
determine the allocation of 60% of such allocation, and the other
Member shall have the right to determine the allocation of the
balance.
4.2 Bank Account. Without limiting the foregoing, the
Members shall establish and maintain a bank account in the name
of the Company. All expenditures made by or on behalf of the
Company shall be paid by check drawn on that account, and all
income received by the Company shall be deposited in that
account. Withdrawals and disbursements from said account may be
signed by an authorized representative of both the Members.
4.3 Delegation to Agents and Officers. The Members may
delegate functions relating to the day-to-day operations of the
Company to such officers, agents, consultants or employees as it
may from time to time designate. Such officers, agents,
consultants and employees need not be Members, and shall have
such duties, powers, responsibilities and authority as may from
time to time be prescribed by the Members, and may be removed at
any time, with or without cause, by the Members.
As of the date hereof, the following shall be appointed as
officers of the Company:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chairman
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Managing Partner Legal and IP
▇▇▇▇ ▇▇▇▇ Managing Partner Corporate Finance and M&A
▇▇▇▇▇▇▇ ▇▇▇▇▇ Managing Partner Corporate Finance and M&A
▇▇▇ ▇▇▇▇▇▇▇▇ VP Finance and Secretary US
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ VP Finance IL
4.4 Liability for Certain Acts. The liability of the Members
for the debts, obligations or liabilities of the Company, in
its capacity as such, shall be limited to the fullest extent
permitted by the Law. Each Member shall not be liable to the
Company or to the other Member for any loss or damage unless
such Member's acts or omissions were the result of fraud,
gross negligence, or willful misconduct in the course of its
duties.
ARTICLE V
MEMBERS
5.1 Confidentiality. Each Member has furnished and is
furnishing certain Information to the other Member and the
Company. The term "Information" shall mean all Information that
either Member has furnished or is furnishing to the other which
is not generally available to the public, including, but not
limited to, contacts, data, know-how, specifications, models,
prototypes and all other technical, operational and economic
information, whether furnished before or after the date of this
Agreement, whether tangible or intangible and in whatever form or
medium provided, as well as all information generated by the
parties or by their representatives, that contains, reflects, or
is derived from the furnished Information.
In consideration of a Member's disclosure to it of the
Information, the other Member and the Company agree that they
will keep the Information confidential and that the Information
will not, without the prior written consent of the party
providing the information, be disclosed by the party receiving
the information or by their representatives, in any manner
whatsoever, in whole or in part, and shall not be used by the
party receiving the information or by its representatives other
than in connection with the Company in accordance with the terms
of this Agreement. Moreover, the party receiving the information
agrees to transmit the Information only to such of its
representatives who need to know the Information for the sole
purpose of assisting the party in connection with its obligations
hereunder, who are informed of this Agreement, and who in writing
agree to be bound by the terms hereof as if a party hereto. In
any event, the party receiving the information shall be fully
liable for any breach of this Agreement by its representatives
and agree, at its sole expense, to take all reasonable measures
(including, but not limited to, court proceedings) to restrain
its representatives from prohibited or unauthorized disclosure or
use of the Information.
The restrictions herein provided shall not apply with
respect to Information which (i) Is known by the receiving party
at the time of receipt; (ii) is or becomes a part of the public
domain without breach of this Agreement by the receiving party;
(iii) is legitimately obtained by the receiving party without a
commitment of confidentiality from a third party; (iv) is
disclosed by the disclosing party to a third party without a
commitment of confidentiality by the third party; (v) Is
independently developed by the receiving party; or (vi) is
disclosed pursuant to judicial action or government regulations,
provided the receiving party notifies the disclosing party prior
to such disclosure and cooperates with the disclosing party in
the event the disclosing party elects to legally contest and
avoid such disclosure.
5.2 Representations and Warranties. Each Member represents
and warrants that::
(a) Legal, Valid, and Binding. This Agreement constitutes the
legal, valid, and binding obligations of such Member.
(b) Investment Intent. The Member is acquiring or has acquired
its interest in the Company for the Member's own account as an
investment and without intent to distribute the interest. The
Investor is aware that there is no market for the Membership
Interests, that no such market will ever develop and that it may
not be possible to liquidate the Member's investment, and, in any
event, that there are substantial restrictions on the
transferability of thereof. The Member's overall commitment to
the Company and other investments which are not readily
marketable, is not disproportionate to the Member's net worth and
the Member has no need for immediate liquidity in the Member's
investment in the Company.
(c) Non-registration. The Member acknowledges that the
Membership Interests have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws, and may not be resold or Transferred by
the Member without appropriate registration or the availability
of an exemption from such registration requirements. Each of the
Members agrees that it is an "accredited investor", within the
meaning the meaning of Rule 501 promulgated under the Securities
Act.
5.3 Meetings. Any Member may request that a meeting of the
Members be held. All meetings shall be held at the principal
place of business of the Company or at such other place as shall
be specified or fixed in the notices thereof, provided that any
Member may participate in any such meeting by means of conference
telephone or similar communications equipment. A quorum shall be
present at a meeting if both Members are represented at the
meeting. Any action required or permitted to be taken at meeting
of the Members may be taken without a meeting, without prior
notice, and without a vote, if consents in writing, setting forth
the action so taken, are signed by both Members.
5.4 Non-Exclusive. Each Member understands and
acknowledges that the other Member and its affiliates are
actively engaged in other business enterprises in addition to the
Company. The Members further understand and acknowledge the
potential conflict of interest arising from such other
enterprises and business activities. Furthermore, each Member
will have business interests and engage in business activities in
addition to those relating to the Company. Neither the Company
nor the other Member shall have any rights by virtue of this
Agreement in any business interests or activities of the Member.
However, no Information gained from a member will be used to the
detriment of the Company or in violation of the confidentiality
provisions set forth in Section 5.1 of this Agreement.
Notwithstanding the foregoing, each of A&C and PEM agree to
offer to the other Member the right to co-invest in other
business transactions proposed to be undertaken by A&C and PEM ,
alone or with other parties, upon the same terms and conditions
as available to the offering party. The Member shall have ten
(10) days to agree to exercise this right of co-investment.
5.6 Transfer Restrictions. No Member may, directly or
indirectly, Transfer, or permit, voluntarily or involuntarily,
any Encumbrance upon all or any portion of such Member's
Membership Interest or any interest therein.
ARTICLE VI
ACCOUNTING PROVISIONS
6.1 Fiscal and Taxable Year. The Fiscal Year and taxable
year of the Company shall be the calendar year, unless the
Members shall designate a different Fiscal Year or taxable year.
6.2 Books and Accounts. The Members shall cause the
Company to keep and maintain complete and accurate books and
accounts for the Company at the Company's principal place of
business or at such other place or places as the Members shall
determine. Each Member or such Member's representative shall at
all reasonable times have access to, and may inspect and make
copies of, such books and accounts and any other records of the
Company.
ARTICLE VII
DISTRIBUTIONS AND ALLOCATIONS
7.1 Distributions. Except as otherwise required by
this Agreement or by Law, distributions of Net Cash Flow
shall be distributed at such times as the Members shall
determine. Notwithstanding the foregoing, (i) the Monthly
Management Fee shall be distributed equally to each Member
and (ii) the Option and Bonus Option (as such terms are
defined in the Management Agreement), which shall belong to
the Company, shall be allocated 60% to the Member who has
created the upside in DCI and 40% to the other Member.
7.2 Allocation of Net Profits and Net Losses.
(a) Net Profits shall be allocated between the Members
as follows:
A. First, to the Members to the extent of and in proportion to
the Net Losses previously allocated to each Member pursuant to
Section 8.3(b)(ii), minus the aggregate amount of Net Profits
previously allocated to each Member pursuant to this subparagraph
(a)(i);
B. Next, to the Members to the extent of and in proportion to
the Net Losses previously allocated to each Member pursuant to
Section 8.3(b)(i), minus the aggregate amount of Net Profits
previously allocated to each Member pursuant to this clause (ii);
and
(iii) The balance, if any, to the Members in
accordance with their then respective Membership
Interest.
(b) Net Losses shall be allocated between the
Members as follows:
(i) First, to the Members having positive Capital
Account balances up to an amount necessary to reduce
such positive Capital Account balances to zero, pro
rata, in accordance with the ratio that each such
Member's positive balance in its Capital Account bears
to the aggregate positive balances in all Members'
Capital Accounts; and
(ii) The balance, if any, to the Members in
accordance with their then respective Membership
Interests.
7.3 No Return of Distributions. No Member shall have any
obligation to refund to the Company any amount that shall have
been properly distributed to such Member pursuant to this
Agreement, subject, however, to the rights of any third party
creditor under law.
ARTICLE VIII
ARBITRATION
8.1 Arbitration. Should any controversy arise between any
of the parties hereto concerning this Agreement or the Company,
the controversy shall be settled by arbitration in the following
manner: the parties shall agree upon an arbitrator, or if the
parties cannot agree upon an arbitrator, each party shall select
and appoint one arbitrator. The two arbitrators so appointed
shall select and appoint a third arbitrator. The decision in
writing of the arbitrator, or a majority if more than one, so
appointed shall be binding on all parties to this Agreement.
Should any party fail to appoint an arbitrator within ten (10)
business days after receiving written notice to so do, the
arbitrator appointed by the other party shall act for all parties
and his decision in writing shall be binding and conclusive on
all parties. The cost, expenses, and fees of the arbitrator shall
be borne as determined by the arbitrator(s). All matters
relating to the enforceability of this arbitration provision and
any award rendered under this provision shall be governed by the
Commercial Arbitration Rules of American Arbitration Association.
The arbitrator shall apply the substantive law of the State of
New York, exclusive of any conflict of law rules. Arbitration
shall be conducted in New York City within twenty (20) days of
appointment of the arbitrator(s). The award rendered by the
arbitrator shall be final and binding, and judgment upon the
award may be entered by any court having jurisdiction thereof.
Each party is required to continue to perform its obligations
under this Agreement pending final resolution of any dispute
arising out of or relating to this Agreement, unless to do so
would be impossible or impracticable under the circumstances.
The decision reached through arbitration shall be final and
binding on the parties.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
9.1 Events Causing Dissolution and Winding-up. The Company
shall be dissolved and wound up upon the first to occur of the
following events:
(a) the mutual agreement of the Members; or
(b) the entry of a decree of judicial dissolution
under any applicable law.
9.2 Liquidation. If the Company is terminated, the Company
shall be liquidated in accordance with this Article IX and the
Law. The liquidation shall be conducted by the Members, or by a
Person so designated by the Members (the "Liquidating Agent").
The Liquidating Agent shall have all of the rights and powers as
to the assets and liabilities of the Company in connection with
the liquidation and termination of the Company that the Members
would have as to the assets and liabilities of the Company
including, without limitation, and notwithstanding any provision
contained herein to the contrary, the ability to liquidate and/or
sell any or all of the Company's assets without the necessity to
obtain any Member's consent. Without limiting the foregoing, the
Liquidating Agent is expressly authorized and empowered to
execute and deliver any and all documents necessary or desirable
to effectuate the liquidation and termination of the Company and
the transfer of any asset or liability of the Company. The
Liquidating Agent shall have the right from time to time, by
revocable powers of attorney, to delegate to one or more Persons
any or all of such rights and powers and such authority and power
to execute and deliver documents, and, in connection therewith,
to fix the reasonable compensation of each such person, which
compensation shall be charged as an expense of liquidation. The
Liquidating Agent is also expressly authorized to sell the
Company's assets and/or to distribute the Company's property to
the Members or other third parties subject to liens.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification. The Company shall, to the fullest
extent permitted by Law, indemnify and hold harmless each Member
and its respective members, managers, officers, directors,
shareholders, employees, agents, affiliates, trustees, legal
representatives and heirs and successors and assigns (any of the
foregoing, an "Indemnified Person"), against all losses, damages,
claims, liabilities and expenses of whatever nature, known or
unknown, liquidated or unliquidated ("Claims") relating to or
arising from activities undertaken in connection with the Company
or otherwise relating to this Agreement, including, but not
limited to, costs of investigation, case preparation, discovery,
judgments or causes of action, assessments, settlement costs or
other costs or expenses, amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel,
accountant and investigative fees and expenses (all of such
amounts are referred to as "Damages") reasonably incurred in
connection with the defense or disposition of any action, suit or
other proceeding (a "Proceeding"), whether civil or criminal,
before any court, administrative body, arbitrator or otherwise in
which such Indemnified Person may be or may have been involved as
a party or otherwise or with which such Indemnified Person may be
or may have been threatened, except with respect to any matter as
to which it shall be determined that such Indemnified Person
engaged in Disabling Conduct.
10.2 Expenses. Damages incurred by an Indemnified Person
in defense or settlement of any Claim that may be subject to a
right of indemnification hereunder may be advanced by the Company
prior to the final disposition thereof upon receipt of an
undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined ultimately that the
Indemnified Person is not entitled to be indemnified hereunder.
The right of any Indemnified Person to the indemnification
provided herein shall be cumulative with, and in addition to, any
and all rights to which such Indemnified Person may otherwise be
entitled by contract or as a matter of law or equity and shall
extend to such Indemnified Person's successors, assigns and legal
representatives.
10.3 Notices of Claims. Promptly after receipt by a
Indemnified Person of notice of the commencement of any
Proceeding involving a Claim, such Indemnified Person will, if a
claim for indemnification in respect thereof is to be made
against the Company, give written notice to the Company of the
commencement of such Proceeding, provided that the failure of any
Indemnified Person to give notice as provided herein shall not
relieve the Company of its obligations under this Article, except
to the extent that the Company is actually prejudiced by such
failure to give notice. In case any such action is brought
against an Indemnified Person (other than a derivative suit in
right of the Company), the Company will be entitled to
participate in and to assume the defense thereof to the extent
that the Company may wish, with counsel reasonably satisfactory
to such Indemnified Person. After notice from the Company to
such Indemnified Person of the Company's election to assume the
defense thereof, the Company will not be liable for Damages
subsequently incurred by such Indemnified Person in connection
with the defense thereof. The Company will not consent to entry
of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Person of a release
from all liability in respect to such claim or litigation.
ARTICLE XI
MISCELLANEOUS
11.1 Notice. Any notices, requests, elections or other
communications required or permitted to be given hereunder shall
be in writing and shall be delivered by hand or courier
(including Federal Express and other such courier services) or
deposited with the United States Postal Service for delivery by
registered or certified mail, return receipt requested, postage
fully prepaid and properly addressed to the Party to whom the
communication is directed at its address set forth on the
Schedule of Members. Any such notice, request, election or
other communication shall be considered given on the date of such
hand or courier delivery or deposit with the United States Postal
Service, if properly addressed and stamped, and shall be
considered received on the date of hand delivery, on the second
business day after deposit by courier delivery or on the third
(3rd) day following deposit with the United States Postal Service
in the manner provided above. Rejection or other refusal to
accept or inability to deliver because of a changed address as to
which no notice was given shall nevertheless be deemed to have
been received by the addressee. Either party may by like notice
at any time, and from time to time, designate a different address
to which communications shall be sent.
11.2 Terms Binding on Heirs. The provisions of this
Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and assigns.
11.3 Sole Agreement of Parties. This Agreement constitutes
the sole and complete agreement of the parties with respect to
the subject matter hereof, and correctly sets forth the rights,
duties, and obligations of the Parties in connection herewith.
Any prior representations, promises, or agreements in connection
herewith not expressly set forth in this Agreement are of no
force or effect.
11.4 General. No waiver of any default hereunder shall
be implied from any omission to take any action on account
of such default if such default persists or is repeated, and
no express waiver shall affect any default other than the
default specified in the express waiver and that only for
the time and to the extent therein stated. One or more
waivers of any covenant, term or condition of this Agreement
shall not be construed as a waiver of a subsequent breach of
the same covenant, term or condition. The invalidity or
unenforceability of any provision hereof shall not affect or
impair any other provisions. The necessary grammatical
changes required to make the provisions of this Agreement
apply in the plural sense and to either corporations,
associations, partnerships or individuals, males or females,
shall in all instances be assumed as though in each case
fully expressed. The laws of the state of New York shall
govern the validity, performance and enforcement of this
Agreement. The headings of the several sections contained
herein are for convenience only and do not define, limit or
construe the contents of such sections. THIS PROVISION, AND
EACH AND EVERY OTHER PROVISION OF THIS AGREEMENT, MAY NOT
UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR
PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE
MODIFIED, CHANGED, AMENDED OR WAIVED BY AN AGREEMENT IN
WRITING EXECUTED BY ALL PARTIES HERETO.
11.5 Execution. This Agreement may be executed by
facsimile and in one or more counterparts, each of which
shall be deemed an original and each of which shall
constitute one and the same Agreement.
11.6 Independent Counsel. The parties hereto agree
that this Agreement is the product of negotiation between
sophisticated individuals, each of whom were either
represented by counsel or had an opportunity to be so
represented, and each of whom had an opportunity to
participate in and did participate in, the drafting of each
provision hereof.
11.7 Further Assurances. Each of the Members agrees
that it will execute and deliver such further instruments
and documents and do such further acts and things as may be
required to carry out the intent and purposes hereof.
11.8 No Third Party Beneficiaries. Except as is
otherwise specifically provided for herein or as may
otherwise be specifically agreed in writing by the Members,
the provisions hereof are not intended to be for the benefit
of any creditor or other person to whom any debts,
liabilities, or obligations are owed by (or who otherwise
has any claim against) the Company or any of the Members;
and no such creditor or other person shall obtain any
benefit from such provisions or shall, by reason of any such
foregoing provision, make any claim in respect of any debt,
liability, or obligation against the Company or any of the
Members.
IN WITNESS WHEREOF, the parties have executed and
delivered this Operating Agreement as of the date first
written above.
MEMBERS:
A&C CAPITAL USA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
Name:▇▇▇▇ ▇▇▇▇
Title: President
PEM, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member