EXHIBIT 3.8
TSI TELECOMMUNICATION HOLDINGS, LLC
--------------------------
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of February 14, 2002
THE COMPANY INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE
SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE
REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH
THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
THE COMPANY INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT
ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE
SECURITYHOLDERS AGREEMENT, DATED AS OF FEBRUARY 14, 2002 AS AMENDED OR MODIFIED
FROM TIME TO TIME, AMONG THE ISSUER (THE "LLC") AND CERTAIN INVESTORS, AND THE
LLC RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH INTERESTS UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO ANY TRANSFER. A COPY OF SUCH
CONDITIONS SHALL BE FURNISHED BY THE LLC TO THE HOLDER HEREOF UPON WRITTEN
REQUEST AND WITHOUT CHARGE.
TABLE OF CONTENTS
ARTICLE I CERTAIN DEFINITIONS.........................................................................1
ARTICLE II ORGANIZATIONAL MATTERS.....................................................................9
2.1 Formation..............................................................................9
2.2 The Certificate, Etc...................................................................9
2.3 Name...................................................................................9
2.4 Purpose................................................................................9
2.5 Powers of the LLC.....................................................................10
2.6 Foreign Qualification.................................................................11
2.7 Principal Office; Registered Office...................................................11
2.8 Term..................................................................................12
2.9 No State-Law Partnership..............................................................12
2.10 No UBTI; Effectively Connected Income.................................................12
ARTICLE III UNITS; CAPITAL ACCOUNTS..................................................................12
3.1 Unitholders...........................................................................12
3.2 Unitholder Meetings...................................................................14
3.3 Action of Unitholders by Written Consent or Telephone Conference......................16
3.4 Issuance of Additional Units and Interests............................................17
3.5 Capital Accounts......................................................................17
3.6 Negative Capital Accounts.............................................................18
3.7 No Withdrawal.........................................................................18
3.8 Loans From Unitholders................................................................18
ARTICLE IV DISTRIBUTIONS; REDEMPTIONS AND ALLOCATIONS................................................19
4.1 Distributions.........................................................................19
4.2 Allocations...........................................................................20
4.3 Special Allocations...................................................................21
4.4 Tax Allocations.......................................................................22
4.5 Indemnification and Reimbursement for Payments on Behalf of a Unitholder..............22
ARTICLE V BOARD OF MANAGERS; OFFICERS................................................................23
5.1 Management by the Board of Managers...................................................23
5.2 Composition and Election of the Board of Managers.....................................24
5.3 Board Meetings and Actions by Written Consent.........................................25
5.4 Committees; Delegation of Authority and Duties........................................27
5.5 Officers..............................................................................27
ARTICLE VI GENERAL RIGHTS AND OBLIGATIONS OF UNITHOLDERS.............................................29
6.1 Limitation of Liability...............................................................29
6.2 Lack of Authority.....................................................................30
6.3 No Right of Partition.................................................................30
6.4 Unitholders Right to Act..............................................................30
6.5 Conflicts of Interest.................................................................30
6.6 Transactions Between the LLC and the Unitholders......................................30
ARTICLE VII EXCULPATION AND INDEMNIFICATION..........................................................30
7.1 Exculpation...........................................................................30
7.2 Right to Indemnification..............................................................31
7.3 Advance Payment.......................................................................31
7.4 Indemnification of Employees and Agents...............................................31
7.5 Appearance as a Witness...............................................................32
7.6 Nonexclusivity of Rights..............................................................32
7.7 Insurance.............................................................................32
7.8 Savings Clause........................................................................32
ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS..................................................32
8.1 Records and Accounting................................................................32
8.2 Fiscal Year...........................................................................33
8.3 Reports...............................................................................33
8.4 Transmission of Communications........................................................33
8.5 LLC Funds.............................................................................33
ARTICLE IX TAXES.....................................................................................33
9.1 Tax Returns...........................................................................33
9.2 Tax Elections.........................................................................33
9.3 Tax Matters Partner...................................................................33
ARTICLE X TRANSFER OF LLC INTERESTS..................................................................33
10.1 Transfers by Unitholders..............................................................33
10.2 Effect of Assignment..................................................................34
10.3 Restriction on Transfer...............................................................34
10.4 Transfer Fees and Expenses............................................................34
10.5 Void Transfers........................................................................34
ARTICLE XI ADMISSION OF UNITHOLDERS..................................................................35
11.1 Substituted Unitholders...............................................................35
11.2 Additional Unitholders................................................................35
11.3 Optionholders.........................................................................35
ARTICLE XII WITHDRAWAL AND RESIGNATION OF UNITHOLDERS................................................35
12.1 Withdrawal and Resignation of Unitholders.............................................35
12.2 Withdrawal of a Unitholder............................................................35
ARTICLE XIII DISSOLUTION AND LIQUIDATION.............................................................36
13.1 Dissolution...........................................................................36
13.2 Liquidation and Termination...........................................................36
13.3 Cancellation of Certificate...........................................................37
13.4 Reasonable Time for Winding Up........................................................37
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13.5 Return of Capital.....................................................................37
13.6 Reserves Against Distributions........................................................37
ARTICLE XIV VALUATION................................................................................37
14.1 Determination.........................................................................37
14.2 Fair Market Value.....................................................................37
ARTICLE XV GENERAL PROVISIONS........................................................................38
15.1 Power of Attorney.....................................................................38
15.2 Amendments............................................................................38
15.3 Title to LLC Assets...................................................................39
15.4 Remedies..............................................................................39
15.5 Successors and Assigns................................................................39
15.6 Severability..........................................................................39
15.7 Incorporation of the LLC..............................................................39
15.8 Opt-in to Article 8 of the Uniform Commercial Code....................................40
15.9 Notice to Unitholder of Provisions....................................................40
15.10 Counterparts..........................................................................40
15.11 Consent to Jurisdiction...............................................................40
15.12 Descriptive Headings; Interpretation..................................................40
15.13 Applicable Law........................................................................41
15.14 Addresses and Notices.................................................................41
15.15 Creditors.............................................................................41
15.16 Waiver of Certain Rights..............................................................41
15.17 Further Action........................................................................42
15.18 Offset................................................................................42
15.19 Entire Agreement......................................................................42
15.20 Delivery by Facsimile.................................................................42
15.21 Survival..............................................................................42
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TSI TELECOMMUNICATION HOLDINGS, LLC
LIMITED LIABILITY COMPANY AGREEMENT
This
LIMITED LIABILITY COMPANY AGREEMENT, dated as of February 14,
2002, is entered into by and among TSI Telecommunication Holdings, LLC (the
"LLC") and the Unitholders.
NOW, THEREFORE, 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, intending to be legally
bound, hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
following meanings:
"ADDITIONAL UNITHOLDER" means a Person admitted to the LLC as a
Unitholder pursuant to SECTION 11.2.
"Additional Securities" shall have the meaning set forth in
Section 3.4.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means with respect to any Capital
Account as of the end of any Taxable Year, the amount by which the balance in
such Capital Account is less than zero. For this purpose, such Person's Capital
Account balance shall be:
(i) reduced for any items described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6), and
(ii) increased for any amount such Person is obligated to
contribute or is treated as being obligated to contribute to the LLC pursuant to
Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (relating to partner
liabilities to a partnership) or 1.704-2(g)(1) and 1.704-2(i) (relating to
Minimum Gain).
"AFFILIATE" of any particular Person means (i) any other Person
controlling, controlled by, or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, by contract, or otherwise, (ii) if such Person is a
partnership, any partner thereof and (iii) without limiting the foregoing and
with respect only to GTCR, any investment fund controlled by GTCR LLC.
"AGREEMENT" means this
Limited Liability Company Agreement, as amended
or modified from time to time in accordance with the terms hereof.
"ASSIGNEE" means a Person to whom an LLC Interest has been transferred
in accordance with the terms of this Agreement and the other agreements
contemplated hereby, but who has not become a Unitholder pursuant to Article X.
"BOARD" means the Board of Managers established pursuant to
SECTION 5.2.
"BOOK VALUE" means, with respect to any LLC property, the LLC's
adjusted basis for federal income tax purposes, adjusted from time to time to
reflect the adjustments required or permitted by Treasury Regulation
Section 1.704-1(b)(2)(iv)(d)-(g).
"CAPITAL ACCOUNT" means the capital account maintained for a
Unitholder pursuant to SECTION 3.5.
"CAPITAL CONTRIBUTIONS" means any cash, cash equivalents, promissory
obligations, or the Fair Market Value of other property which a Unitholder
contributes or is deemed to have contributed to the LLC with respect to any Unit
pursuant to SECTIONS 3.1 or 3.4 or, with respect to Class A Preferred Units,
pursuant to any Senior Management Agreement.
"CERTIFICATE" means the LLC's Certificate of Formation as filed with
the Secretary of State of
Delaware.
"CLASS A PREFERRED UNIT" means a Unit representing a fractional part
of the interest of a Unitholder in Profits, Losses and Distributions and having
the rights and obligations specified with respect to the Class A Preferred Units
in this Agreement.
"CLASS A UNPAID YIELD" of any Class A Preferred Unit means, as of any
date, an amount equal to the excess, if any, of (a) the aggregate Class A Yield
accrued on such Class A Preferred Unit for all periods prior to such date
(including partial periods), over (b) the aggregate amount of prior
Distributions made by the LLC that constitute payment of Class A Yield on such
Class A Preferred Unit.
"CLASS A UNRETURNED CAPITAL" of any Class A Preferred Unit means, as
of any date, the aggregate Capital Contributions made or deemed to be made in
exchange for such Class A Preferred Unit reduced by all Distributions made by
the LLC that constitute a return of Class A Unreturned Capital under SECTION
4.1(a)(ii).
"CLASS A YIELD" means, with respect to each Class A Preferred Unit,
the amount accruing on such Class A Preferred Unit on a daily basis, at the rate
of 10% per annum, compounded on the last day of each calendar quarter, on (a)
the Class A Unreturned Capital of such Class A Preferred Unit plus (b) as the
case may be, the Class A Unpaid Yield thereon for all prior quarterly periods.
In calculating the amount of any Distribution to be made during a period, the
portion of the Class A Yield with respect to such Class A Preferred Unit for the
portion of the quarterly period elapsing before such Distribution is made shall
be taken into account in determining the amount of such Distribution.
"CLASS B PREFERRED UNIT" means a Unit representing a fractional part
of the interest of a Unitholder in Profits, Losses and Distributions and having
the rights and obligations specified with respect to the Class B Preferred Units
in this Agreement.
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"CLASS B UNPAID YIELD" of any Class B Preferred Unit means, as of any
date, an amount equal to the excess, if any, of (a) the aggregate Class B Yield
accrued on such Class B Preferred Unit for all periods prior to such date
(including partial periods), over (b) the aggregate amount of prior
Distributions made by the LLC that constitute payment of Class B Yield on such
Class B Preferred Unit.
"CLASS B UNRETURNED CAPITAL" of any Class B Preferred Unit means, as
of any date, the aggregate Capital Contributions made or deemed to be made in
exchange for such Class B Preferred Unit reduced by all Distributions made by
the LLC that constitute a return of Class B Unreturned Capital under
SECTION 4.1(a)(iv).
"CLASS B YIELD" means, with respect to each Class B Preferred Unit,
the amount accruing on such Class B Preferred Unit on a daily basis, at the rate
of 10% per annum, compounded on the last day of each calendar quarter, on (a)
the Class B Unreturned Capital of such Class B Preferred Unit plus (b) as the
case may be, the Class B Unpaid Yield thereon for all prior quarterly periods.
In calculating the amount of any Distribution to be made during a period, the
portion of the Class B Yield with respect to such Class B Preferred Unit for the
portion of the quarterly period elapsing before such Distribution is made shall
be taken into account in determining the amount of such Distribution.
"CODE" means the United States Internal Revenue Code of 1986, as
amended. Such term shall, at the Board's sole discretion, be deemed to include
any future amendments to the Code and any corresponding provisions of succeeding
Code provisions (whether or not such amendments and corresponding provisions are
mandatory or discretionary; PROVIDED, however, that if they are discretionary,
the term "Code" shall not include them if including them would have a material
adverse effect on any Unitholder).
"COMMON UNIT" means a Unit representing a fractional part of the
interest of a Unitholder in Profits, Losses and Distributions and having the
rights and obligations specified with respect to the Common Units in this
Agreement; PROVIDED THAT a "Common Unit" shall be entitled to vote but shall not
have any other rights hereunder (including the right to receive Distributions
hereunder) until such time as such Unit is fully vested in accordance with the
terms and conditions set forth in any Senior Management Agreement or other
agreement pursuant to which such Unit was issued (to the extent such agreement
provides for vesting), and all such unvested Common Units shall be deemed to be
outstanding and shall be subject to the obligations and restrictions applicable
to the Common Units hereunder.
"COMMON UNITHOLDER" means a holder of Common Units.
"
DELAWARE ACT" means the
Delaware Limited Liability Company Act, 6
Del. L. Section 18-101, et seq., as it may be amended from time to time,
and any successor to the
Delaware Act.
"DISTRIBUTION" means each distribution made by the LLC to a
Unitholder, whether in cash, property or securities of the LLC and whether by
liquidating distribution, redemption, repurchase, or otherwise; PROVIDED THAT
any recapitalization or exchange or conversion of securities of the LLC
(including any exchange of Units for Class A Preferred Units), redemption of
securities of the LLC pursuant to any Senior Management Agreement and any
subdivision (by
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Unit split or otherwise) or any combination (by reverse Unit split or otherwise)
of any outstanding Units shall not be deemed a Distribution.
"EQUITY SECURITIES" means (i) Units or other equity interests in the
LLC or a corporate successor (including other classes or groups thereof having
such relative rights, powers, and duties as may from time to time be established
by the Board, including rights, powers, and/or duties senior to existing classes
and groups of Units and other equity interests in the LLC), (ii) obligations,
evidences of indebtedness, or other securities or interests convertible or
exchangeable into Units or other equity interests in the LLC or a corporate
successor, and (iii) warrants, options, or other rights to purchase or otherwise
acquire Units or other equity interests in the LLC or a corporate successor.
"EVENT OF WITHDRAWAL" means the death, retirement, resignation,
expulsion, bankruptcy or dissolution of a Unitholder or the occurrence of any
other event that terminates the continued membership of a Unitholder in the LLC.
"FAMILY GROUP" means, with respect to a Unitholder who is an
individual, such Unitholder's spouse and descendants (whether natural or
adopted) and any trust, family limited partnership, limited liability company or
other entity wholly owned, directly or indirectly, by such Unitholder or such
Unitholder's spouse and/or descendants that is and remains solely for the
benefit of such Unitholder and/or such Unitholder's spouse and/or descendants
and any retirement plan for such Unitholder.
"FAIR MARKET VALUE" means, with respect to any asset or equity
interest, its fair market value determined according to Article XIV.
"FISCAL QUARTER" means each calendar quarter ending March 31, June 30,
September 30, and December 31.
"FISCAL YEAR" means the LLC's annual accounting period established
pursuant to SECTION 8.2.
"GOVERNMENTAL ENTITY" means the United States of America or any other
nation, any state or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government or any agency or department or subdivision of any
governmental authority, including the United States federal government or any
state or local government.
"GTCR" means (i) GTCR Fund VII, L.P., a
Delaware limited partnership,
(ii) GTCR Fund VII/A, L.P., a
Delaware limited partnership (iii) GTCR Co-Invest,
L.P., a
Delaware limited partnership and (iv) any investment fund managed by
GTCR LLC which purchases Units pursuant to the GTCR Purchase Agreement and which
becomes an Additional Unitholder pursuant to SECTION 11.2.
"GTCR LLC" means GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C., a
Delaware limited
liability company.
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"GTCR PURCHASE AGREEMENT" means that certain Unit Purchase Agreement,
dated as of February 14, 2002 among GTCR and the LLC, as the same may be amended
from time to time pursuant to the terms thereof.
"INDEBTEDNESS" means at a particular time, without duplication, (i)
any indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade payables
and other current liabilities incurred in the ordinary course of business which
are not more than one hundred twenty (120) days past due), and (iv) any
commitment by which a Person assures a creditor against loss (including
contingent reimbursement obligations with respect to letters of credit).
"LIENS" means any mortgage, pledge, security interest, encumbrance,
lien, or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against the LLC, any Subsidiary or any Affiliate
thereof, any filing or agreement to file a financing statement as debtor under
the Uniform Commercial Code or any similar statute other than to reflect
owner-ship by a third party of property leased to the LLC, any Subsidiary or any
Affiliate under a lease which is not in the nature of a conditional sale or
title retention agreement, or any subordination arrangement in favor of another
Person (other than any subordination arising in the ordinary course of
business).
"LLC" means TSI Telecommunication Holdings, LLC, a
Delaware limited
liability company.
"LLC INTEREST" means the interest of a Unitholder in Profits, Losses,
and Distributions.
"LOSSES" means items of LLC loss and deduction determined according to
SECTION 3.5.
"MANAGER" means a current manager on the Board, who, for purposes of
the
Delaware Act, will be deemed a "manager" ( as defined in the Delaware Act)
but will be subject to the rights, obligations, limitations and duties set forth
in this Agreement.
"MARKET PRICE" of any security or any other asset, right or interest
means the average of the closing prices of such security's sales on all
securities exchanges on which such security may at the time be listed, or, if
there has been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ System as of 4:00 P.M.,
New York time, or, if on any day such security is not quoted in the NASDAQ
System, the average of the highest bid and lowest asked prices on such day in
the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization, in each such case
averaged over a period of 21 days consisting of the day as of which "Market
Price" is being
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determined and the 20 consecutive business days prior to such day. If at any
time such security or any other asset, right or interest is not listed on any
securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the "Market Price" shall be the fair value thereof determined jointly by
the LLC and the holders of a majority of the Class B Preferred Units. If such
parties are unable to reach agreement within a reasonable period of time, such
fair value shall be determined by an independent appraiser experienced in
valuing securities jointly selected by the LLC and the holders of a majority of
the Class B Preferred Units. The determination of such appraiser shall be final
and binding upon the parties, and the LLC shall pay the fees and expenses of
such appraiser.
"MINIMUM GAIN" means the partnership minimum gain determined pursuant
to Treasury Regulation Section 1.704-2(d).
"OFFICERS" means each person designated as an officer of the LLC to
whom authority and duties have been delegated pursuant to SECTION 5.5, subject
to any resolution of the Board appointing such person as an officer or relating
to such appointment.
"OPTIONHOLDER" shall have the meaning set forth in SECTION 11.3.
"PERMITTED TRANSFEREE" means (i) with respect to any Unitholder who is
a natural person, a member of such Unitholder's Family Group, and (ii) with
respect to any Unitholder, which is an entity, any of such Unitholder's
Affiliates.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, any other business entity or a
Governmental Entity.
"PROCEEDING" has the meaning set forth in SECTION 7.2.
"PROFITS" means items of LLC income and gain determined according to
SECTION 3.5.
"PUBLIC OFFERING" means any sale of the common equity securities of
the LLC (or a successor thereto) pursuant to an effective registration statement
under the Securities Act filed with the Securities and Exchange Commission;
provided that the following shall not be considered a Public Offering: (i) any
issuance of common equity securities as consideration for a merger or
acquisition, and (ii) any issuance of common equity securities or rights to
acquire common equity securities to employees of the LLC or its Subsidiaries as
part of an incentive or compensation plan.
"PUBLIC SALE" means any sale of Equity Securities to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
(or any similar provision then in effect) adopted under the Securities Act
(other than Rule 144(k) prior to a Public Offering).
"REGISTRATION AGREEMENT" means the Registration Agreement, dated as of
the date hereof, by and among the LLC, GTCR (or an Affiliate thereof), G. ▇▇▇▇▇▇
▇▇▇▇▇ and the other
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Persons party thereto from time to time, as the same may be amended from time to
time pursuant to the terms thereof.
"REQUIRED INTEREST" means a majority of the Common Units.
"REGULATORY ALLOCATIONS" has the meaning set forth in SECTION 4.3(e).
"SALE OF THE LLC" means any transaction or series of transactions
pursuant to which any Person or group of related Persons (other than GTCR and
its Affiliates) in the aggregate acquire(s) (i) equity securities of the LLC
possessing the voting power (other than voting rights accruing only in the event
of a default or breach) to elect a majority of the LLC's Board (whether by
merger, consolidation, reorganization, combination, sale or transfer of the
LLC's equity securities, securityholder or voting agreement, proxy, power of
attorney or otherwise) or (ii) all or substantially all of the LLC's assets
determined on a consolidated basis; provided that a Public Offering shall not
constitute a Sale of the LLC.
"SECURITIES" means notes, stocks, bonds, debentures, evidences of
indebtedness, certificates of interest or participation in any profit-sharing
agreement, partnership interests, beneficial interests in trusts,
collateral-trust certificates, pre-organization certificates or subscriptions,
transferable shares, investment contracts, voting-trust certificates,
certificates of deposit for securities, certificates of equity interests,
notional principal contracts and certificates of interest or participation in,
temporary or interim certificates for, receipts for or warrants or rights or
options to subscribe to or purchase or sell any of the foregoing, and any other
items commonly referred to as securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
applicable rules and regulations thereunder, and any successor to such statute,
rules, or regulations. Any reference herein to a specific section, rule, or
regulation of the Securities Act shall be deemed to include any corresponding
provisions of future law.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and applicable rules and regulations thereunder, and any successor
to such statute, rules, or regulations. Any reference herein to a specific
section, rule, or regulation of the Securities Exchange Act shall be deemed to
include any corresponding provisions of future law.
"SECURITYHOLDERS AGREEMENT" means the Securityholders Agreement, dated
as of the date hereof, by and among the LLC, GTCR (or an Affiliate thereof) and
the other Persons party thereto from time to time, as the same may be amended
from time to time.
"SENIOR MANAGEMENT AGREEMENT" means any Senior Management Agreement
entered into from time to time among the LLC, TSI Telecommunication Holdings,
Inc. (or any other Subsidiaries of the LLC) and its executives, as the same may
be amended from time to time pursuant to the terms thereof.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time
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owned or controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person or a combination thereof, or (ii) if a
limited liability company, partnership, association, or other business entity
(other than a corporation), a majority of partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association, or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association,
or other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a
"SUBSIDIARY" of any Person shall be given effect only at such times that such
Person has one or more Subsidiaries, and, unless otherwise indicated, the term
"SUBSIDIARY" refers to a Subsidiary of the LLC.
"SUBSTITUTED UNITHOLDER" means a Person that is admitted as a
Unitholder to the LLC pursuant to SECTION 11.1.
"TAX" or "TAXES" means any federal, state, local, or foreign income,
gross receipts, franchise, estimated, alternative minimum, add-on minimum,
sales, use, transfer, registration, value added, excise, natural resources,
severance, stamp, occupation, premium, windfall profit, environmental, customs,
duties, real property, personal property, capital stock, social security,
unemployment, disability, payroll, license, employee, or other withholding, or
other tax, of any kind whatsoever, including any interest, penalties, or
additions to tax or additional amounts in respect of the foregoing.
"TAX DISTRIBUTION" has the meaning set forth in SECTION 4.1(b).
"TAX MATTERS PARTNER" has the meaning set forth in SECTION 9.3.
"TAXABLE YEAR" means the LLC's Fiscal Year unless the Board determines
otherwise in compliance with applicable laws.
"TRANSACTION DOCUMENTS" means this Agreement, and all other
agreements, instruments, certificates, and other documents to be entered into or
delivered by any Unitholder in connection with the transactions contemplated to
be consummated pursuant to this Agreement, the GTCR Purchase Agreement, and any
side agreements related to the foregoing.
"TRANSFER" means any sale, transfer, assignment, pledge, mortgage,
exchange, hypothecation, grant of a security interest or other direct or
indirect disposition or encumbrance of an interest (including, without
limitation, by operation of law) or the acts thereof, but explicitly excluding
conversions or exchanges of one class of Unit to or for another class of Unit.
The terms "TRANSFEREE," "TRANSFERRED," and other forms of the word "TRANSFER"
shall have correlative meanings.
"TREASURY REGULATIONS" means the income tax regulations promulgated
under the Code and effective as of the date hereof. Such term shall, at the
Board's sole discretion, be deemed to include any future amendments to such
regulations and any corresponding provisions of succeeding regulations (whether
or not such amendments and corresponding provisions are
8
mandatory or discretionary; PROVIDED, however, that if they are discretionary,
the term "Treasury Regulations" shall not include them if including them would
have a material adverse effect on any Unitholder).
"UNIT" means an LLC Interest of a Unitholder or an Assignee in the LLC
representing a fractional part of the LLC Interests of all Unitholders and
Assignees and shall include Class A Preferred Units, Class B Preferred Units and
Common Units; provided that any class or group of Units issued shall have
relative rights, powers, and duties set forth in this Agreement and the LLC
Interest represented by such class or group of Units shall be determined in
accordance with such relative rights, powers, and duties set forth in this
Agreement.
"UNITHOLDER" means any owner of one or more Units as reflected on the
LLC's books and records, and any person admitted to the LLC as an Additional
Unitholder or Substituted Unitholder; but only for so long as such person is
shown on the LLC's books and records as the owner of one or more Units.
"UNITHOLDER GROUP" has the meaning set forth in SECTION 6.5.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 FORMATION. The LLC has been organized as a Delaware limited
liability company by the filing with the Secretary of State of the State of
Delaware of the Certificate under and pursuant to the Delaware Act and shall be
continued in accordance with this Agreement.
2.2 THE CERTIFICATE, ETC. The Certificate was filed with the
Secretary of State of the State of Delaware on November 9, 2001. The Unitholders
hereby agree to execute, file and record all such other certificates and
documents, including amendments to the Certificate, and to do such other acts as
may be appropriate to comply with all requirements for the formation,
continuation and operation of a limited liability company, the ownership of
property, and the conduct of business under the laws of the State of Delaware
and any other jurisdiction in which the LLC may own property or conduct
business.
2.3 NAME. The name of the LLC shall be "TSI Telecommunication
Holdings, LLC" The Board in its sole discretion may change the name of the LLC
at any time and from time to time. Notification of any such change shall be
given to all Unitholders. The LLC's business may be conducted under its name
and/or any other name or names deemed advisable by the Board.
2.4 PURPOSE. The purpose and business of the LLC shall be to
engage in any lawful act or activity which may be conducted by a limited
liability company formed pursuant to the Delaware Act and engaging in all
activities necessary or incidental to the foregoing. Notwithstanding anything
herein to the contrary, nothing set forth herein shall be construed as
authorizing the LLC to possess any purpose or power, or to do any act or thing,
forbidden by law to a limited liability company organized under the laws of the
State of Delaware.
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(a) BOARD OF MANAGERS. Subject to the provisions of this
Agreement, the GTCR Purchase Agreement, the Securityholders Agreement, the
Registration Agreement and the other agreements contemplated hereby and thereby,
(i) the LLC may, with the approval of the Board, enter into and perform under
any and all documents, agreements and instruments, all without any further act,
vote or approval of any Unitholder, and (ii) the Board may authorize any Person
(including any Unitholder or Officer) to enter into and perform under any
document, agreement or instrument on behalf of the LLC.
(b) MERGER. Subject to the provisions of this Agreement, the LLC
may, with the approval of the Board and GTCR Fund VII, L.P. and without the need
for any further act, vote or approval of any Unitholder, merge with, or
consolidate into, another limited liability company (organized under the laws of
Delaware or any other state), a corporation (organized under the laws of
Delaware or any other state) or other business entity (as defined in Section
18-209(a) of the Delaware Act), regardless of whether the LLC or such other
entity is the survivor.
2.5 POWERS OF THE LLC. Subject to the provisions of this Agreement
and the agreements contemplated hereby, the LLC shall have the power and
authority to take any and all actions necessary, appropriate, proper, advisable,
convenient or incidental to or for the furtherance of the purposes set forth in
SECTION 2.4, including the power:
(a) to conduct its business, carry on its operations and have and
exercise the powers granted to a limited liability company by the Delaware Act
in any state, territory, district or possession of the United States, or in any
foreign country that may be necessary, convenient or incidental to the
accomplishment of the purpose of the LLC;
(b) to acquire by purchase, lease, contribution of property or
otherwise, own, hold, operate, maintain, finance, refinance, improve, lease,
sell, convey, mortgage, transfer, demolish or dispose of any real or personal
property that may be necessary, convenient or incidental to the accomplishment
of the purpose of the LLC;
(c) to enter into, perform and carry out contracts of any kind,
including contracts with any Unitholder or any Affiliate thereof, or any agent
of the LLC necessary to, in connection with, convenient to or incidental to the
accomplishment of the purpose of the LLC;
(d) to purchase, take, receive, subscribe for or otherwise
acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or
otherwise dispose of, and otherwise use and deal in and with, shares or other
interests in or obligations of domestic or foreign corporations, associations,
general or limited partnerships (including the power to be admitted as a partner
thereof and to exercise the rights and perform the duties created thereby),
trusts, limited liability companies (including the power to be admitted as a
Unitholder or appointed as a manager thereof and to exercise the rights and
perform the duties created thereby) or individuals or direct or indirect
obligations of the United States or of any government, state, territory,
governmental district or municipality or of any instrumentality of any of them;
(e) to lend money for any proper purpose, to invest and reinvest
its funds and to take and hold real and personal property for the payment of
funds so loaned or invested;
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(f) to ▇▇▇ and be sued, complain and defend, and participate in
administrative or other proceedings in its name;
(g) to appoint employees and agents of the LLC and define their
duties and fix their compensation;
(h) to indemnify any Person in accordance with the Delaware Act
and to obtain any and all types of insurance;
(i) to cease its activities and cancel its Certificate;
(j) to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, execute, acknowledge or take any other action
with respect to any lease, contract or security agreement in respect of any
assets of the LLC;
(k) to borrow money and issue evidences of indebtedness and
guaranty indebtedness (whether of the LLC or any of its Subsidiaries), and to
secure the same by a mortgage, pledge or other lien on the assets of the LLC;
(l) to pay, collect, compromise, litigate, arbitrate or otherwise
adjust or settle any and all other claims or demands of or against the LLC or to
hold such proceeds against the payment of contingent liabilities; and
(m) to make, execute, acknowledge and file any and all documents
or instruments necessary, convenient or incidental to the accomplishment of the
purpose of the LLC.
2.6 FOREIGN QUALIFICATION. Prior to the LLC's conducting business
in any jurisdiction other than Delaware, the Board shall cause the LLC to
comply, to the extent procedures are available and those matters are reasonably
within the control of the Board, with all requirements necessary to qualify the
LLC as a foreign limited liability company in that jurisdiction. At the request
of the Board or any Officer, each Unitholder shall execute, acknowledge, swear
to and deliver all certificates and other instruments conforming with this
Agreement that are necessary or appropriate to qualify, continue and terminate
the LLC as a foreign limited liability company in all such jurisdictions in
which the LLC may conduct business.
2.7 PRINCIPAL OFFICE; REGISTERED OFFICE. The principal office of
the LLC shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
at such other place as the Board may from time to time designate, and all
business and activities of the LLC shall be deemed to have occurred at its
principal office. The LLC may maintain offices at such other place or places as
the Board deems advisable. Notification of any such change shall be given to all
Unitholders. The registered office of the LLC required by the Delaware Act to be
maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the LLC) as the Board may designate from time to time
in the manner provided by law. The registered agent of the LLC in the State of
Delaware shall be the initial registered agent named in the Certificate or such
other Person or Persons as the Board may designate from time to time in the
manner provided by law.
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2.8 TERM. The term of the LLC commenced upon the filing of the
Certificate in accordance with the Delaware Act and shall continue in existence
until termination and dissolution thereof in accordance with the provisions of
ARTICLE XIII.
2.9 NO STATE-LAW PARTNERSHIP. The Unitholders intend that the LLC
not be a partnership (including, without limitation, a limited partnership) or
joint venture, and that no Unitholder be a partner or joint venturer of any
other Unitholder by virtue of this Agreement (except for tax purposes as set
forth in the next succeeding sentence of this SECTION 2.9), and neither this
Agreement nor any other document entered into by the LLC or any Unitholder
relating to the subject matter hereof shall be construed to suggest otherwise.
The Unitholders intend that the LLC shall be treated as a partnership for
federal and, if applicable, state or local income tax purposes, and that each
Unitholder and the LLC shall file all tax returns and shall otherwise take all
tax and financial reporting positions in a manner consistent with such
treatment. Without the consent of the holders of the Required Interest, the LLC
shall not make an election to be treated as a corporation for federal income tax
purposes pursuant to Treasury Regulation 301.7701-3 (or any successor regulation
or provision) and, if applicable, state and local income tax purposes.
2.10 NO UBTI; EFFECTIVELY CONNECTED INCOME. The Company shall not
engage in any transaction which is reasonably likely to cause GTCR or any of its
limited partners which are exempt from income taxation under Section 501(a) of
the Code to recognize unrelated business taxable income as defined in Section
512 and Section 514 of the Code. The Company will use reasonable best efforts
not to engage in, or invest in any entity that is treated as a flow-through
entity for U.S. federal income tax purposes that engages in, (a) any "commercial
activity" as defined in Section 892(a)(2)(i) of the IRC or (b) transactions
which will cause the Company to incur income that is effectively connected with
a "trade or business within the United States" as defined in Section 864(b) of
the IRC.
ARTICLE III
UNITS; CAPITAL ACCOUNTS
3.1 UNITHOLDERS
(a) Each Person named on Schedule A attached hereto has made
Capital Contributions to the LLC as set forth on Schedule A in exchange for the
Units specified thereon, and each Unitholder's initial Capital Account
established pursuant to such Capital Contributions is set forth on Schedule A.
Any reference in this Agreement to Schedule A shall be deemed to be a reference
to Schedule A as amended and in effect from time to time. The LLC and each
Unitholder shall file all tax returns, including any schedules thereto, in a
manner consistent with such initial Capital Accounts. Each Person listed on
Schedule A upon (i) his, her or its execution of this Agreement or a counterpart
thereto and (ii) receipt (or deemed receipt) by the LLC of such Person's Capital
Contribution as set forth on Schedule A, is hereby admitted to the LLC as a
Unitholder of the LLC. Each Unitholder's interest in the LLC, including such
Unitholder's interest in Profits, Losses and Distributions of the LLC and the
right to vote on certain matters as provided in this Agreement, shall be
represented by the Units owned by such Unitholder. The ownership of Units shall
entitle each Unitholder to allocations of Profits and Losses and other
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items and distributions of cash and other property as set forth in Article IV
hereof. The Board may in its discretion issue certificates to the Unitholders
representing the Units held by each Unitholder.
(b) REPRESENTATIONS AND WARRANTIES OF UNITHOLDERS. Each Unitholder
hereby represents and warrants to the LLC and acknowledges that: (i) such
Unitholder has knowledge and experience in financial and business matters and is
capable of evaluating the merits and risks of an investment in the LLC and
making an informed investment decision with respect thereto; (ii) such
Unitholder has reviewed and evaluated all information necessary to assess the
merits and risks of his, her or its investment in the LLC and has had answered
to such Unitholder's satisfaction any and all questions regarding such
information; (iii) such Unitholder is able to bear the economic and financial
risk of an investment in the LLC for an indefinite period of time; (iv) such
Unitholder is acquiring interests in the LLC for investment only and not with a
view to, or for resale in connection with, any distribution to the public or
public offering thereof; (v) the interests in the LLC have not been registered
under the securities laws of any jurisdiction and cannot be disposed of unless
they are subsequently registered and/or qualified under applicable securities
laws and the provisions of this Agreement have been complied with; (vi) to the
extent applicable, the execution, delivery and performance of this Agreement
have been duly authorized by such Unitholder and do not require such Unitholder
to obtain any consent or approval that has not been obtained and do not
contravene or result in a default under any provision of any law or regulation
applicable to such Unitholder or other governing documents or any agreement or
instrument to which such Unitholder is a party or by which such Unitholder is
bound; (vii) the determination of such Unitholder to purchase interests in the
LLC has been made by such Unitholder independent of any other Unitholder and
independent of any statements or opinions as to the advisability of such
purchase, which may have been made or given by any other Unitholder or by any
agent or employee of any other Unitholder; and (viii) this Agreement is valid,
binding and enforceable against such Unitholder in accordance with its terms.
(c) NO LIABILITY OF UNITHOLDERS.
(i) NO LIABILITY. Except as otherwise required by
applicable law and as expressly set forth in this Agreement, no Unitholder shall
have any personal liability whatsoever in such Unitholder's capacity as a
Unitholder, whether to the LLC, to any of the other Unitholders, to the
creditors of the LLC or to any other third party, for the debts, liabilities,
commitments or any other obligations of the LLC or for any losses of the LLC.
Each Unitholder shall be liable only to make such Unitholder's Capital
Contribution to the LLC and the other payments provided expressly herein.
(ii) DISTRIBUTION. In accordance with the Delaware Act and
the laws of the State of Delaware, a Unitholder of a limited liability company
may, under certain circumstances, be required to return amounts previously
distributed to such Unitholder. It is the intent of the Unitholders that no
distribution to any Unitholder pursuant to Article IV hereof shall be deemed a
return of money or other property paid or distributed in violation of the
Delaware Act. The payment of any such money or distribution of any such property
to a Unitholder shall be deemed to be a compromise within the meaning of the
Delaware Act, and the Unitholder receiving any such money or property shall not
be required to return to any Person any such money or property. However, if any
court of competent jurisdiction holds that, notwithstanding
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the provisions of this Agreement, any Unitholder is obligated to make any such
payment, such obligation shall be the obligation of such Unitholder and not of
any other Unitholder.
3.2 UNITHOLDER MEETINGS
(a) VOTING OF UNITHOLDERS. A quorum shall be present at a meeting
of Unitholders if the Unitholders holding the Required Interest are represented
at the meeting in person or by proxy. With respect to any matter, other than a
matter for which the affirmative vote of the holders of a specified portion of
all Unitholders entitled to vote is required by the Delaware Act or by this
Agreement, the affirmative vote of the Unitholders holding the Required Interest
at a meeting of Unitholders at which a quorum is present shall be the act of the
Unitholders.
(b) PLACE. All meetings of the Unitholders shall be held at the
principal place of business of the LLC or at such other place within or without
the State of Delaware as shall be specified or fixed in the notices or waivers
of notice thereof; provided that any or all Unitholders may participate in any
such meeting by means of conference telephone or similar communications
equipment pursuant to SECTION 3.3(d).
(c) ADJOURNMENT. Notwithstanding the other provisions of the
Certificate or this Agreement, the chairman of the meeting or the Unitholders
holding the Required Interest shall have the power to adjourn such meeting from
time to time, without any notice other than announcement at the meeting of the
time and place of the holding of the adjourned meeting. If such meeting is
adjourned by the Unitholders, such time and place shall be determined by a vote
of the Unitholders holding the Required Interest. Upon the resumption of such
adjourned meeting, any business may be transacted that might have been
transacted at the meeting as originally called.
(d) ANNUAL MEETING. An annual meeting of the Unitholders, for the
election of the Managers and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, within or without
the State of Delaware, on such date and at such time as the Board shall fix and
set forth in the notice of the meeting, which date shall be within thirteen
months subsequent to the date of organization of the LLC or the last annual
meeting of Unitholders, whichever most recently occurred.
(e) SPECIAL MEETINGS. Special meetings of the Unitholders for any
proper purpose or purposes may be called at any time by the Board or the
Unitholders holding the Required Interest. If not otherwise stated in or fixed
in accordance with the remaining provisions hereof, the record date for
determining Unitholders entitled to call a special meeting is the date any
Unitholder first signs the notice of that meeting. Only business within the
purpose or purposes described in the notice (or waiver thereof) required by this
Agreement may be conducted at a special meeting of the Unitholders.
(f) NOTICE. A written or printed notice stating the place, day and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than one
or more than thirty (30) days before the date of the meeting, either personally,
by mail or by facsimile, by or at the direction of the Board or the
14
Unitholders calling the meeting to each Unitholder. If mailed, any such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the Unitholder at its address provided for in the LLC's books and
records, or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the sending party.
(g) RECORD DATE. The date on which notice of a meeting of
Unitholders is mailed or the date on which the resolution of the Board declaring
a distribution is adopted, as the case may be, shall be the record date for the
determination of the Unitholders entitled to notice of or to vote at such
meeting (including any adjournment thereof) or the Unitholders entitled to
receive such distribution.
(h) REQUIRED INTEREST. Except as otherwise expressly provided for
in this Agreement, all matters to be voted on pursuant to this Agreement shall
require the vote of Unitholders holding the Required Interest which vote shall
only be valid and binding if a notice of the meeting at which such vote is taken
is given to all Unitholders in accordance with SECTION 3.2(f).
(i) PROXIES. A Unitholder may vote either in person or by proxy
executed in writing by the Unitholder. A telegram, telex, cable-gram or similar
transmission by the Unitholder, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the Unitholder shall be treated as
an execution in writing for purposes of this SECTION 3.2(i). Proxies for use at
any meeting of Unitholders or in connection with the taking of any action by
written consent pursuant to SECTION 3.3 shall be filed with the Secretary of the
LLC, before or at the time of the meeting or execution of the written consent as
the case may be. All proxies shall be received and taken charge of and all
ballots shall be received and canvassed by the Secretary of the LLC, who shall
decide all questions concerning the qualification of voters, the validity of the
proxies and the acceptance or rejection of votes, unless an inspector or
inspectors shall have been appointed by the chairman of the meeting, in which
event such inspector or inspectors shall decide all such questions. No proxy
shall be valid after 11 months from the date of its execution unless otherwise
provided in the proxy. A proxy shall be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy is coupled with
an interest. Should a proxy designate two or more Persons to act as proxies,
unless that instrument shall provide to the contrary, a majority of such Persons
present at any meeting at which their powers thereunder are to be exercised
shall have and may exercise all the powers of voting or giving consents thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular
issue, the LLC shall not be required to recognize such proxy with respect to
such issue if such proxy does not specify how the Units that are the subject of
such proxy are to be voted with respect to such issue.
(j) CONDUCT OF UNITHOLDER MEETINGS. All meetings of the
Unitholders shall be presided over by the chairman of the meeting, who shall be
one of the Chairman or Vice Chairman (or a representative thereof). The chairman
of any meeting of Unitholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and
the conduct of discussion as seem to him in order.
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(k) VOTING RIGHTS. The holders of the Common Units shall be
entitled to notice of all Unitholder meetings in accordance with this Agreement,
and except as otherwise required by law, the holders of the Common Units shall
be entitled to vote on all matters submitted to the Unitholders for a vote with
each Common Unit entitled to one vote. Except as otherwise required by this
Agreement or by law, the holders of Class A Preferred Units and Class B
Preferred Units shall not be entitled to a vote on matters submitted to the
Unitholders for a vote.
3.3 ACTION OF UNITHOLDERS BY WRITTEN CONSENT OR TELEPHONE
CONFERENCE
(a) WRITTEN CONSENT IN LIEU OF MEETING. Any action required or
permitted to be taken at any annual or special meeting of Unitholders may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the Unitholder or Unitholders holding not less than the minimum percentages of
Units that would be necessary to take such action at a meeting at which all
Unitholders entitled to vote on the action were present and voted. Every written
consent shall bear the date of signature of each Unitholder who signs the
consent. No written consent shall be effective to take the action that is the
subject to the consent unless, within sixty (60) days after the date of the
earliest dated consent delivered to the LLC in the manner required by this
SECTION 3.3(a), a consent or consents signed by the Unitholder or Unitholders
holding not less than the minimum Units that would be necessary to take the
action that is the subject of the consent are delivered to the LLC by delivery
to its registered office, its principal place of business or the chief executive
officer. Delivery shall be by hand or certified or registered mail, return
receipt requested. Delivery to the LLC's principal place of business shall be
addressed to the chief executive officer. A telegram, telex, cablegram or
similar transmission by a Unitholder, or a photographic, photostatic, facsimile
or similar reproduction of a writing signed by a Unitholder, shall be regarded
as signed by the Unitholder for purposes of this SECTION 3.3(a). Prompt notice
of the taking of any action by Unitholders without a meeting by less than
unanimous written consent shall be given to those Unitholders who did not
consent in writing to the action.
(b) RECORD DATE FOR WRITTEN CONSENT IN LIEU OF MEETING. The record
date for determining Unitholders entitled to consent to action in writing
without a meeting shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the LLC
by delivery to its registered office, its principal place of business, or the
chief executive officer. Delivery shall be by hand or by certified or registered
mail, return receipt requested. Delivery to the LLC's principal place of
business shall be addressed to the chief executive officer.
(c) FILINGS. If any action by Unitholders is taken by written
consent, any certificate or documents filed with the Secretary of State of
Delaware as a result of the taking of the action shall state, in lieu of any
statement required by the Delaware Act concerning any vote of Unitholders, that
written consent has been given in accordance with the provisions of the Delaware
Act and that any written notice required by the Delaware Act has been given.
(d) TELEPHONE CONFERENCE. Unitholders may participate in and hold
a meeting by means of conference telephone or similar communications equipment
by means of which all Persons participating in the meeting can hear each other,
and participation in such meeting shall
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constitute attendance and presence in person at such meeting, except where a
Person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
3.4 ISSUANCE OF ADDITIONAL UNITS AND INTERESTS. Subject to
compliance with the provisions of this Agreement, the GTCR Purchase Agreement
and the Securityholders Agreement, the Board shall have the right to cause the
LLC to issue or sell to any Person (including Unitholders and Affiliates) any of
the following (which for purposes of this Agreement shall be "ADDITIONAL
SECURITIES"): (i) additional Units or other interests in the LLC (including
other classes or series thereof having different rights), (ii) obligations,
evidences of indebtedness, or other securities or interests convertible or
exchangeable into Units or other interests in the LLC, and (iii) warrants,
options, or other rights to purchase or otherwise acquire Units or other
interests in the LLC. Subject to the provisions of this Agreement, the Board
shall determine the terms and conditions governing the issuance of such
Additional Securities, including the number and designation of such Additional
Securities, the preference (with respect to distributions, liquidations, or
otherwise) over any other Units and any required contributions in connection
therewith. Any Person who acquires Units may be admitted to the LLC as a
Unitholder pursuant to the terms of SECTION 11.2 hereof. If any Person acquires
additional Units or other interests in the LLC or is admitted to the LLC as an
additional Unitholder, SCHEDULE A shall be amended to reflect such additional
issuance and/or Unitholder, as the case may be. Notwithstanding anything herein
to the contrary, Class A Preferred Units shall be reserved for issuance in
exchange for other Units pursuant to the terms of the Senior Management
Agreements, and such Class A Preferred Units may be issued only in exchange for
other Units pursuant to the terms of the Senior Management Agreements and under
no other circumstances.
3.5 CAPITAL ACCOUNTS.
(a) The LLC shall maintain a separate Capital Account for each
Unitholder according to the rules of Treasury Regulation Section
1.704-1(b)(2)(iv). For this purpose, if the Board reasonably determines that an
adjustment is necessary or appropriate to reflect the relative economic
interests of the Unitholders in the LLC, the LLC may (A) increase or decrease
the Capital Accounts in accordance with the rules of such regulation and
Treasury Regulation Section 1.704-1(b)(2)(iv)(g) to reflect a revaluation of LLC
property upon the occurrence of the events specified in Treasury Regulation
Section 1.704-1(b)(2)(iv)(f), including upon the exercise of an option to
purchase Common Units and (B), as a result of the exercise of an option to
purchase Common Units, make appropriate adjustments to the Capital Accounts of
Unitholders (including determining the Capital Account of those Persons who
become Unitholders as a result of exercising an option to purchase Common Units)
and to the allocations to the Unitholders pursuant to Article IV. Without
limiting the foregoing, each Unitholder's Capital Account shall be adjusted:
(i) by adding any additional Capital Contributions made by
such Unitholder in consideration for the issuance of Units;
(ii) by deducting any amounts paid to such Unitholder in
connection with the redemption or other repurchase by the LLC of Units;
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(iii) by adding any Profits allocated in favor of such
Unitholder and subtracting any Losses allocated in favor of such Unitholder; and
(iv) by deducting any distributions paid in cash or other
assets to such Unitholder by the LLC on Units.
(b) For purposes of computing the amount of any item of LLC
income, gain, loss, or deduction to be allocated pursuant to ARTICLE IV and to
be reflected in the Capital Accounts, the determination, recognition, and
classification of any such item shall be the same as its determination,
recognition, and classification for federal income tax purposes (including any
method of depreciation, cost recovery, or amortization used for this purpose);
PROVIDED THAT:
(i) The computation of all items of income, gain, loss, and
deduction shall include those items described in Code Section 705(a)(l)(B) or
Code Section 705(a)(2)(B) and Treasury Regulation Section 1.704-1(b)(2)(iv)(i),
without regard to the fact that such items are not includable in gross income or
are not deductible for federal income tax purposes.
(ii) If the Book Value of any LLC property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f), the amount
of such adjustment shall be taken into account as gain or loss from the
disposition of such property.
(iii) Items of income, gain, loss, or deduction attributable
to the disposition of LLC property having a Book Value that differs from its
adjusted basis for tax purposes shall be computed by reference to the Book Value
of such property.
(iv) Items of depreciation, amortization, and other cost
recovery deductions with respect to LLC property having a Book Value that
differs from its adjusted basis for tax purposes shall be computed by reference
to the property's Book Value in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(g).
(v) To the extent an adjustment to the adjusted tax basis
of any LLC asset pursuant to Code Sections 732(d), 734(b) or 743(b) is required,
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount of such adjustment to the
Capital Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases such
basis).
3.6 NEGATIVE CAPITAL ACCOUNTS. No Unitholder shall be required to
pay to any other Unitholder or the LLC any deficit or negative balance, which
may exist from time to time in such Unitholder's Capital Account (including upon
and after dissolution of the LLC).
3.7 NO WITHDRAWAL. No Person shall be entitled to withdraw any
part of such Person's Capital Contributions or Capital Account or to receive any
Distribution from the LLC, except as expressly provided herein or in the other
agreements referred to herein.
3.8 LOANS FROM UNITHOLDERS. Loans by Unitholders to the LLC shall
not be considered Capital Contributions. If any Unitholder shall loan funds to
the LLC, the making of such loans shall not result in any increase in the amount
of the Capital Account of such
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Unitholder. The amount of any such loans shall be a debt of the LLC to such
Unitholder and shall be payable or collectible in accordance with the terms and
conditions upon which such loans are made.
ARTICLE IV
DISTRIBUTIONS; REDEMPTIONS
AND ALLOCATIONS
4.1 DISTRIBUTIONS.
(a) DISTRIBUTIONS GENERALLY. Except as otherwise set forth in this
SECTION 4.1, and subject to the provisions of Section 18-607 of the Delaware
Act, the Board may in its sole discretion make Distributions at any time or from
time to time. All Distributions shall be made only in the following order and
priority:
(i) FIRST, to the Unitholders holding Class A Preferred
Units, an amount equal to the aggregate Class A Unpaid Yield (in the proportion
that each Unitholder's share of Class A Unpaid Yield bears to the aggregate
Class A Unpaid Yield) until each such Unitholder has received Distributions in
respect of such Unitholder's Class A Preferred Units in an amount equal to the
aggregate Class A Unpaid Yield on such Unitholder's outstanding Class A
Preferred Units as of the time of such Distribution, and no Distribution or any
portion thereof may be made pursuant to SECTIONS 4.1(a)(ii) through (v) below
until the entire amount of the Class A Unpaid Yield on the outstanding Class A
Preferred Units as of the time of such Distribution has been paid in full.
(ii) SECOND, to the Unitholders holding Class A Preferred
Units, an amount equal to the aggregate Class A Unreturned Capital with respect
to such Units (in the proportion that each Unitholder's share of Class A
Unreturned Capital with respect to such Class A Preferred Units bears to the
aggregate amount of Class A Unreturned Capital with respect to all Class A
Preferred Units) until each such Unitholder has received Distributions in
respect of such Unitholder's Class A Preferred Units in an amount equal to the
aggregate Class A Unreturned Capital with respect to such Unitholder's Class A
Preferred Units as of the time of such Distribution, and no Distribution or any
portion thereof may be made pursuant to SECTIONS 4.1(a)(iii) through (v) below
until the entire amount of Class A Unreturned Capital with respect to the
outstanding Class A Preferred Units as of the time of such Distribution has been
paid in full.
(iii) THIRD, to the Unitholders holding Class B Preferred
Units, an amount equal to the aggregate Class B Unpaid Yield (in the proportion
that each Unitholder's share of Class B Unpaid Yield bears to the aggregate
Class B Unpaid Yield) until each such Unitholder has received Distributions in
respect of such Unitholder's Class B Preferred Units in an amount equal to the
aggregate Class B Unpaid Yield on such Unitholder's outstanding Class B
Preferred Units as of the time of such Distribution, and no Distribution or any
portion thereof may be made pursuant to SECTIONS 4.1(a)(iv) or (v) below until
the entire amount of the Class B Unpaid Yield on the outstanding Class B
Preferred Units as of the time of such Distribution has been paid in full.
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(iv) FOURTH, to the Unitholders holding Class B Preferred
Units, an amount equal to the aggregate Class B Unreturned Capital with respect
to such Units (in the proportion that each Unitholder's share of Class B
Unreturned Capital with respect to such Class B Preferred Units bears to the
aggregate amount of Class B Unreturned Capital with respect to all Class B
Preferred Units) until each such Unitholder has received Distributions in
respect of such Unitholder's Class B Preferred Units in an amount equal to the
aggregate Class B Unreturned Capital with respect to such Unitholder's Class B
Preferred Units as of the time of such Distribution, and no Distribution or any
portion thereof may be made pursuant to SECTION 4.1(a)(v) below until the entire
amount of Class B Unreturned Capital with respect to the outstanding Class B
Preferred Units as of the time of such Distribution has been paid in full.
(v) FIFTH, to the Unitholders holding Common Units, all
remaining amounts (pro rata according to their ownership of Common Units
immediately prior to such Distribution).
(b) TAX DISTRIBUTIONS. Notwithstanding any other provision herein to
the contrary, so long as the LLC is treated as a partnership for federal and
state income tax purposes, the LLC shall use its best efforts to distribute
within fifteen (15) days after the end of each Fiscal Quarter of the LLC, to the
extent that funds are legally available therefor and would not impair the
liquidity of the LLC with respect to working capital, capital expenditures, debt
service, reserves, or otherwise and would not be prohibited under any credit
facility to which the LLC or any Subsidiary is a party, an amount of cash (a
"TAX DISTRIBUTION") which in the good faith judgment of the Board equals the
excess, if any, of (i) the product of (x) the amount of taxable income allocable
to the Unitholders in respect of the period beginning on the date hereof and
ending at the close of such Fiscal Quarter, multiplied by (y) the combined
maximum federal, state, and local income tax rate to be applied with respect to
such taxable income (calculated by using the highest maximum combined marginal
federal, state, and local income tax rates to which any Unitholder may be
subject and taking into account the deductibility of state income tax for
federal income tax purposes) for such period (making an appropriate adjustment
for any rate changes that take place during such period) over (ii) all prior
distributions made pursuant to this SUBSECTION (b) and SUBSECTION (a) above.
(c) PERSONS RECEIVING DISTRIBUTIONS. Each Distribution shall be
made to the Persons shown on the LLC's books and records as Unitholders as of
the date of such Distribution; provided, however, that any transferor and
transferee of Units may mutually agree as to which of them should receive
payment of any Distribution under SECTION 4.1.
(d) DISTRIBUTIONS UPON SALE OF THE COMPANY. In the event of a Sale
of the LLC, each Unitholder shall receive in exchange for the Units held by such
Unitholder the same portion of the aggregate consideration from such sale or
exchange that such Unitholder would have received if such aggregate
consideration had been distributed by the LLC in accordance with the provisions
of SECTION 4.1. Each holder of Units shall take all necessary or desirable
actions in connection with the distribution of the aggregate consideration from
such sale or exchange as requested by the LLC.
4.2 ALLOCATIONS. Except as otherwise provided in SECTION 4.3,
Profits and Losses for any Fiscal Year shall be allocated among the Unitholders
in such a manner that, as of
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the end of such Fiscal Year, the sum of (i) the Capital Account of each
Unitholder, (ii) such Unitholder's share of Minimum Gain (as determined
according to Treasury Regulation Section 1.704-2(g)), and (iii) such
Unitholder's partner nonrecourse debt minimum gain (as defined in Treasury
Regulation Section 1.704-2(i)(2)) shall be equal to the respective net amounts,
positive or negative, which would be distributed to them, determined as if the
LLC were to (i) liquidate the assets of the LLC for an amount equal to their
Book Value, and (ii) distribute the proceeds of liquidation pursuant to SECTION
13.2.
4.3 SPECIAL ALLOCATIONS.
(a) Losses attributable to partner nonrecourse debt (as defined in
Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the manner
required by Treasury Regulation Section 1.704-2(i). If there is a net decrease
during a Fiscal Year in partner nonrecourse debt minimum gain (as defined in
Treasury Regulation Section 1.704-2(i)(3)), Profits for such Fiscal year (and,
if necessary, for subsequent Fiscal Years) shall be allocated to the Unitholders
in the amounts and of such character as determined according to, and subject to
the exceptions contained in, Treasury Regulation Section 1.704-2(i)(4).
(b) If there is a net decrease in Minimum Gain during any Fiscal
Year, each Unitholder shall be allocated Profits for such Fiscal Year (and, if
necessary, for subsequent Fiscal Years) in the amounts and of such character as
determined according to, and subject to the exceptions contained in, Treasury
Regulation Section 1.704-2(f). This Section 4.3(b) is intended to be a minimum
gain chargeback provision that complies with the requirements of Treasury
Regulation Section 1.704-2(f), and shall be interpreted in a manner consistent
therewith.
(c) If any Unitholder that unexpectedly receives an adjustment,
allocation, or distribution described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted Capital Account Deficit as
of the end of any Taxable Year, computed after the application of SECTIONS
4.3(c) and 4.3(d) but before the application of any other provision of this
ARTICLE IV, then Profits for such Taxable Year shall be allocated to such
Unitholder in proportion to, and to the extent of, such Adjusted Capital Account
Deficit. This SECTION 4.3(c) is intended to be a qualified income offset
provision as described in Treasury Regulation Section 1.704--1(b)(2)(ii)(d) and
shall be interpreted in a manner consistent therewith.
(d) Profits and Losses shall be allocated in a manner consistent
with the manner that the adjustments to the Capital Accounts are required to be
made pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(j), (k), and (m).
(e) The allocations set forth in SECTIONS 4.3(a)-(d) (the
"REGULATORY ALLOCATIONS") are intended to comply with certain requirements of
Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Regulatory
Allocations may not be consistent with the manner in which the Unitholders
intend to allocate Profit and Loss of the LLC or make LLC distributions.
Accordingly, notwithstanding the other provisions of this ARTICLE IV, but
subject to the Regulatory Allocations, income, gain, deduction, and loss shall
be reallocated among the Unitholders so as to eliminate the effect of the
Regulatory Allocations and thereby cause the respective Capital Accounts of the
Unitholders to be in the amounts (or as close thereto as possible) they would
have been if Profit and Loss (and such other items of income, gain,
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deduction, and loss) had been allocated without reference to the Regulatory
Allocations. In general, the Unitholders anticipate that this will be
accomplished by specially allocating other Profit and Loss (and such other items
of income, gain, deduction, and loss) among the Unitholders so that the net
amount of the Regulatory Allocations and such special allocations to each such
Unitholder is zero.
4.4 TAX ALLOCATIONS.
(a) The income, gains, losses, deductions, and credits of the LLC
will be allocated, for federal, state, and local income tax purposes, among the
Unitholders in accordance with the allocation of such income, gains, losses,
deductions, and credits among the Unitholders for computing their Capital
Accounts; except that, if any such allocation is not permitted by the Code or
other applicable law, then the LLC's subsequent income, gains, losses,
deductions, and credits will be allocated among the Unitholders so as to reflect
as nearly as possible the allocation set forth herein in computing their Capital
Accounts.
(b) Items of LLC taxable income, gain, loss, and deduction with
respect to any property contributed to the capital of the LLC shall be allocated
among the Unitholders in accordance with Code Section 704(c) so as to take
account of any variation between the adjusted basis of such property to the LLC
for federal income tax purposes and its Book Value.
(c) If the Book Value of any LLC asset is adjusted pursuant to the
requirements of Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f)
subsequent allocations of items of taxable income, gain, loss, and deduction
with respect to such asset shall take account of any variation between the
adjusted basis of such asset for federal income tax purposes and its Book Value
in the same manner as under Code Section 704(c).
(d) Allocations of tax credits, tax credit recapture, and any
items related thereto shall be allocated to the Unitholders according to their
interests in such items as determined by the Board taking into account the
principles of Treasury Regulation Section 1.704-1(b)(4)(ii).
(e) Allocations pursuant to this SECTION 4.4 are solely for
purposes of federal, state, and local taxes and shall not affect, or in any way
be taken into account in computing, any Unitholder's Capital Account or Unit of
Profits, Losses, Distributions, or other LLC items pursuant to any provision of
this Agreement.
4.5 INDEMNIFICATION AND REIMBURSEMENT FOR PAYMENTS ON BEHALF OF A
UNITHOLDER. If the LLC is required by law to make any payment that is
specifically attributable to a Unitholder or a Unitholder's status as such
(including federal withholding taxes, state personal property taxes, and state
unincorporated business taxes), then such Unitholder shall indemnify the LLC in
full for the entire amount paid (including interest, penalties and related
expenses). The LLC may pursue and enforce all rights and remedies it may have
against each Unitholder under this SECTION 4.5, including instituting a lawsuit
to collect such indemnification and contribution with interest calculated at a
rate equal to 10% per annum, compounded as of the last day of each year (but not
in excess of the highest rate per annum permitted by law).
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ARTICLE V
BOARD OF MANAGERS; OFFICERS
5.1 MANAGEMENT BY THE BOARD OF MANAGERS.
(a) UNITHOLDERS ELECT BOARD. The Unitholders shall not manage and
control the business and affairs of the LLC, except for situations in which the
approval of the Unitholders is required by this Agreement or by non-waivable
provisions of applicable law. The Board shall be elected by the Unitholders
pursuant to SECTION 5.2(a).
(b) AUTHORITY OF BOARD OF MANAGERS.
(i) Except for situations in which the approval of the
Common Unitholders is otherwise required, subject to the provisions of SECTION
5.1(b)(ii), (A) the powers of the LLC shall be exercised by or under the
authority of, and the business and affairs of the LLC shall be managed under the
direction of, the Board and (B) the Board may make all decisions and take all
actions for the LLC not otherwise provided for in this Agreement, including the
following:
(A) entering into, making and performing contracts,
agreements and other undertakings binding the LLC that may be necessary,
appropriate or advisable in furtherance of the purposes of the LLC and making
all decisions and waivers thereunder;
(B) maintaining the assets of the LLC in good order;
(C) collecting sums due the LLC;
(D) opening and maintaining bank and investment
accounts and arrangements, drawing checks and other orders for the payment of
money and designating individuals with authority to sign or give instructions
with respect to those accounts and arrangements;
(E) to the extent that funds of the LLC are available
therefor, paying debts and obligations of the LLC;
(F) acquiring, utilizing for LLC purposes and disposing
of any asset of the LLC;
(G) hiring and employing executives, Officers,
supervisors and other personnel;
(H) selecting, removing and changing the authority and
responsibility of lawyers, accountants and other advisers and consultants;
(I) entering into guaranties on behalf of the LLC's
Subsidiaries;
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(J) obtaining insurance for the LLC;
(K) determining distributions of cash and other
property of the LLC as provided in ARTICLE IV;
(L) establishing reserves for commitments and
obligations (contingent or otherwise) of the LLC; and
(M) establishing a seal for the LLC.
(ii) The Board may act (A) by resolutions adopted at a
meeting and by written consents pursuant to SECTION 5.3, (B) by delegating power
and authority to committees pursuant to SECTION 5.4, and (C) by delegating power
and authority to any Officer pursuant to SECTION 5.5(a).
(iii) Each Unitholder acknowledges and agrees that no Manager
shall, as a result of being a Manager (as such), be bound to devote all of his
business time to the affairs of the LLC, and that he and his Affiliates do and
will continue to engage for their own account and for the accounts of others in
other business ventures.
(c) OFFICERS. The management of the business and affairs of the
LLC by the Officers and the exercising of their powers shall be conducted under
the supervision of and subject to the approval of the Board.
5.2 COMPOSITION AND ELECTION OF THE BOARD OF MANAGERS.
(a) NUMBER AND ELECTION. The number of Managers on the Board shall
be initially established at seven (7). Thereafter, the number of Managers shall
be established from time to time by resolution of the Board. The Managers shall
be elected from time to time by the holders of the Required Interest present in
person or represented by proxy at any meeting of Unitholders. The Managers shall
be elected in this manner, except as provided in SECTION 5.2(d). The provisions
contained in this SECTION 5.2 shall be subject to the terms and conditions of
the Securityholders Agreement, as amended from time to time.
(b) TERM. Members of the Board shall serve until their
resignation, death or removal or the election of their successors in accordance
with the terms hereof. Members of the Board need not be Unitholders and need not
be residents of the State of Delaware. A member of the Board may resign as such
by delivering his, her or its written resignation to the LLC at the LLC's
principal office addressed to the Board. Such resignation shall be effective
upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event.
(c) REMOVAL AND RESIGNATION. Subject to the provisions of the
Securityholders Agreement, any Manager or the entire Board may be removed at any
time, with or without cause, by the holders of the Required Interest. Whenever
the holders of any class or series or Units are entitled to elect one or more
Managers by the provisions of the Securityholders Agreement, the provisions of
this section shall apply, in respect to the removal
24
without cause of a Manager or Managers so elected, to the vote of the holders of
the outstanding Units of that class or series and not to the vote of the
outstanding Units as a whole.
(d) VACANCIES. Subject to the provisions of the Securityholders
Agreement, vacancies and newly created managerships resulting from any increase
in the authorized number of Managers may be filled by a representative
designated by the holders of a majority of the Required Interest. Each Manager
so chosen shall hold office until a successor is duly elected and qualified or
until his or her earlier death, resignation or removal as herein provided.
(e) REIMBURSEMENT. The LLC shall pay all reimbursable
out-of-pocket costs and expenses incurred by each member of the Board incurred
in the course of their service hereunder, including in connection with attending
regular and special meetings of the Board, any board of managers or board of
directors of any of the LLC's Subsidiaries and any committee thereof.
(f) COMPENSATION OF MANAGERS. Managers shall receive no
compensation for serving in such capacity.
(g) RELIANCE BY THIRD PARTIES. Any Person dealing with the LLC,
other than a Unitholder, may rely on the authority of the Board (or any Officer
authorized by the Board) in taking any action in the name of the LLC without
inquiry into the provisions of this Agreement or compliance herewith, regardless
of whether that action actually is taken in accordance with the provisions of
this Agreement; PROVIDED that no Manager in his, her, or its capacity as such
(other than the members of the Board acting as the Board or an authorized
Officer of the LLC) has the authority or power to act for or on behalf of the
LLC in any manner, to do any act that would be (or could be construed as)
binding on the LLC or to make any expenditures on behalf of the LLC. Every
agreement, instrument or document executed by the Board (or any Officer
authorized by the Board) in the name of the LLC with respect to any business or
property of the LLC shall be conclusive evidence in favor of any Person relying
thereon or claiming thereunder that (i) at the time of the execution or delivery
thereof, this Agreement was in full force and effect, (ii) such agreement,
instrument or document was duly executed according to this Agreement and is
binding upon the LLC and (iii) the Board or such Officer was duly authorized and
empowered to execute and deliver such agreement, instrument or document for and
on behalf of the LLC.
5.3 BOARD MEETINGS AND ACTIONS BY WRITTEN CONSENT.
(a) QUORUM; VOTING. A majority of the total number of Managers
fixed by, or in the manner provided in, this Agreement must be present
(including pursuant to SECTION 5.3(h)) in order to constitute a quorum for the
transaction of business of the Board (provided that a quorum must at all times
include at least one Manager designated by GTCR), and except as otherwise
provided in this Agreement, the act of a majority of the Managers present at a
meeting of the Board at which a quorum is present shall be the act of the Board.
A Manager who is present at a meeting of the Board at which action on any matter
is taken shall be presumed to have assented to the action unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall deliver such dissent to the LLC
immediately
25
after the adjournment of the meeting. Such right to dissent shall not apply to a
Manager who voted in favor of such action.
(b) PLACE; ATTENDANCE. Meetings of the Board may be held at such
place or places as shall be determined from time to time by resolution of the
Board. At all meetings of the Board, business shall be transacted in such order
as shall from time to time be determined by resolution of the Board. Attendance
of a Manager at a meeting shall constitute a waiver of notice of such meeting,
except where a Manager attends a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully
called or convened.
(c) MEETING IN CONNECTION WITH UNITHOLDER MEETING. In connection
with any meeting of Unitholders at which Managers are elected, the Managers may,
if a quorum is present, hold a first meeting for the transaction of business
immediately after and at the same place as such meeting of the Unitholders.
Notice of such meeting at such time and place shall not be required.
(d) TIME, PLACE AND NOTICE. Regular meetings of the Board shall be
held at such times and places as shall be designated from time to time by
resolution of the Board. Notice of such meetings shall not be required.
(e) SPECIAL MEETINGS. Special meetings of the Board may be called
by any Manager on at least 24 hours' notice to each other Manager. Such notice
need not state the purpose or purposes of, or the business to be transacted at,
such meeting, except as may otherwise be required by law or provided for in this
Agreement.
(f) CHAIRMAN AND VICE CHAIRMAN. The Board shall designate one of
the Managers to serve as Chairman and a different Manager to serve as Vice
Chairman. The Chairman shall preside at all meetings of the Board. If the
Chairman is absent at any meeting of the Board, the Vice Chairman shall preside
over such Board meeting. If the Chairman and Vice Chairman are absent, the
Managers present shall designate a member to serve as interim chairman for that
meeting. Neither the Chairman nor Vice Chairman, except in their capacity as an
Officer, shall have the authority or power to act for or on behalf of the LLC,
to do any act that would be binding on the LLC or to make any expenditure or
incur any obligation on behalf of the LLC or authorize any of the foregoing.
(g) BOARD MEETINGS. There shall be meetings of the Board from time
to time as requested by holders of the Required Interest.
(h) ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any action
permitted or required by the Delaware Act, the Certificate or this Agreement to
be taken at a meeting of the Board or any committee designated by the Board may
be taken without a meeting if a consent in writing, setting forth the action to
be taken, is signed by all the Managers or members of such committee, as the
case may be. Such consent shall have the same force and effect as a unanimous
vote at a meeting and may be stated as such in any document or instrument filed
with the Secretary of State of Delaware, and the execution of such consent shall
constitute attendance or presence in person at a meeting of the Board or any
such committee, as the case
26
may be. Subject to the requirements of the Delaware Act, the Certificate or this
Agreement for notice of meetings, unless otherwise restricted by the
Certificate, the Managers or members of any committee designated by the Board
may participate in and hold a meeting of the Board or any committee, as the case
may be, by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in such meeting shall constitute attendance and presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
5.4 COMMITTEES; DELEGATION OF AUTHORITY AND DUTIES.
(a) COMMITTEES; GENERALLY. The Board may, from time to time,
designate one or more committees, each of which shall include at least two (2)
Managers designated by GTCR. Any such committee, to the extent provided in the
enabling resolution or in the Certificate or this Agreement, shall have and may
exercise all of the authority of the Board. At every meeting of any such
committee, the presence of a majority of all the members thereof shall
constitute a quorum, and the affirmative vote of a majority of the members
present shall be necessary for the adoption of any resolution. The Board may
dissolve any committee at any time, unless otherwise provided in the Certificate
or this Agreement.
(b) AUDIT COMMITTEE. The Board may establish an audit committee to
select the LLC's independent accountants and to review the annual audit of the
LLC's financial statements conducted by such accountants.
(c) DELEGATION; GENERALLY. The Board may, from time to time,
dele-gate to one or more Persons (including any Manager or Officer) such
authority and duties as the Board may deem advisable in addition to those powers
and duties set forth in SECTION 5.1(b) hereof. The Board also may assign titles
(including chairman, chief executive officer, president, chief marketing
officer, chief technology officer, vice president, secretary, assistant
secretary, treasurer and assistant treasurer) to any Manager, Unitholder or
other individual and may delegate to such Manager, Unitholder or other
individual certain authority and duties. Any number of titles may be held by the
same Manager, Unitholder or other individual. Any delegation pursuant to this
SECTION 5.4(c) may be revoked at any time by the Board.
(d) THIRD-PARTY RELIANCE. Any Person dealing with the LLC, other
than a Unitholder, may rely on the authority of any Officer in taking any action
in the name of the LLC without inquiry into the provisions of this Agreement or
compliance herewith, regardless of whether that action actually is taken in
accordance with the provisions of this Agreement.
5.5 OFFICERS.
(a) DESIGNATION AND APPOINTMENT. The Board may (but need not),
from time to time, designate and appoint one or more persons as an Officer of
the LLC. No Officer need be a resident of the State of Delaware, a Unitholder or
a Manager. Any Officers so designated shall have such authority and perform such
duties as the Board may, from time to time, delegate to them. The Board may
assign titles to particular Officers. Unless the Board otherwise decides, if
27
the title is one commonly used for officers of a business corporation formed,
the assignment of such title shall constitute the delegation to such Officer of
the authority and duties that are normally associated with that office, subject
to (i) any specific delegation of authority and duties made to such Officer by
the Board pursuant to the third sentence of this SECTION 5.5(a) or (ii) any
delegation of authority and duties made to one or more Officers pursuant to the
terms of SECTION 5.4(c) and 5.5.(c). Each Officer shall hold office until such
Officer's successor shall be duly designated and shall qualify or until such
Officer's death or until such Officer shall resign or shall have been removed in
the manner hereinafter provided. Any number of offices may be held by the same
individual. The salaries or other compensation, if any, of the Officers and
agents of the LLC shall be fixed from time to time by the Board.
(b) RESIGNATION. Any Officer (subject to any contract rights
available to the LLC, if applicable) may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the Board.
The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation. Any Officer may be removed as
such, either with or without cause, by the Board whenever in its judgment the
best interests of the LLC shall be served thereby; PROVIDED, HOWEVER, THAT such
removal shall be without prejudice to the contract rights, if any, of the
individual so removed. Designation of an Officer shall not of itself create
contract rights. Any vacancy occurring in any office of the LLC may be filled by
the Board.
(c) DUTIES OF OFFICERS; GENERALLY. The Officers, in the
performance of their duties as such, shall owe to the Unitholders duties of
loyalty and due care of the type owed by the officers of a corporation to such
corporation and its stockholders under the laws of the State of Delaware. The
following Officers, to the extent such Officers have been appointed by the
Board, shall have the following duties:
(i) CHIEF EXECUTIVE OFFICER. Subject to the powers of the
Board, the chief executive officer of the LLC shall be in the general and active
charge of the entire business and affairs of the LLC, and shall be its chief
policy-making Officer. The president, chief financial officer and each other
senior officer of the LLC shall report directly to the chief executive officer.
The chief executive officer shall see that all orders and resolutions of the
Board are carried into effect. The chief executive officer shall have such other
powers and perform such other duties as may be prescribed by the Board.
(ii) PRESIDENT. The president shall, subject to the powers
of the Board and the chief executive officer, be the chief administrative
officer of the LLC and shall have general charge of the business, affairs and
property of the LLC, and control over its Officers (other than the chief
executive officer), agents and employees. The president shall see that all
orders and resolutions of the Board and the chief executive officer are carried
into effect. He or she shall be responsible for the employment of employees,
agents and Officers (other than the chief executive officer) as may be required
for the conduct of the business and the attainment of the objectives of the LLC.
He or she shall have authority to suspend or to remove any employee, agent or
Officer (other than the chief executive officer) of the LLC and, in the case of
the suspension for cause of any such Officer, to recommend to the Board what
further action should be taken. In the absence of the president, his or duties
shall be performed and his or her
28
authority may be exercised by the chief executive officer. In the absence of the
president and the chief executive officer, the duties of the president shall be
performed and his or her authority may be exercised by such Officer as may have
been designated as the most senior officer of the LLC. The president shall have
such other powers and perform such other duties as may be prescribed by the
chief executive officer or the Board.
(iii) CHIEF FINANCIAL OFFICER. The chief financial officer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct books and records of accounts of the properties and business
transactions of the LLC, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital and Units. The chief financial
officer shall have the custody of the funds and securities of the LLC, and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the LLC, and shall deposit all moneys and other valuable effects in the name
and to the credit of the LLC in such depositories as may be designated by the
Board. The chief financial officer shall have such other powers and perform such
other duties as may be prescribed by the chief executive officer or the Board.
(iv) VICE PRESIDENT(S). The vice president(s) shall perform
such duties and have such other powers as the chief executive officer, the
president, the chief operating officer or the Board may from time to time
prescribe, and may have such further denominations as "Executive Vice
President," "Senior Vice President," "Assistant Vice President," and the like.
(v) SECRETARY.
(A) The secretary shall attend all meetings of the
Board and shall record all the proceedings of the meetings in a book to be kept
for that purpose, and shall perform like duties for the standing committees of
the Board when required.
(B) The secretary shall keep all documents as may be
required under the Delaware Act or this Agreement. The secretary shall perform
such other duties and have such other authority as may be prescribed elsewhere
in this Agreement or from time to time by the Board. The secretary shall have
the general duties, powers and responsibilities of a secretary of a corporation.
(C) If the Board chooses to appoint an assistant
secretary or assistant secretaries, the assistant secretaries, in the order of
their seniority, in the absence, disability or inability to act of the
secretary, shall perform the duties and exercise the powers of the secretary,
and shall perform such other duties as the Board may from time to time
prescribe.
ARTICLE VI
GENERAL RIGHTS AND OBLIGATIONS OF UNITHOLDERS
6.1 LIMITATION OF LIABILITY. Except as otherwise provided by
applicable law, the debts, obligations, and liabilities of the LLC, whether
arising in contract, tort, or otherwise, shall be solely the debts, obligations,
and liabilities of the LLC, and no Unitholder shall be obligated personally for
any such debt, obligation, or liability of the LLC solely by reason of being a
Unitholder of the LLC; PROVIDED THAT a Unitholder shall be required to return to
the LLC any Distribution made to it in clear and manifest accounting or similar
error. The immediately
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preceding sentence shall constitute a compromise to which all Unitholders have
consented within the meaning of the Delaware Act. Notwithstanding anything
contained herein to the contrary, the failure of the LLC to observe any
formalities or requirements relating to the exercise of its powers or management
of its business and affairs under this Agreement or the Delaware Act shall not
be grounds for imposing personal liability on the Unitholders for liabilities of
the LLC.
6.2 LACK OF AUTHORITY. No Unitholder in his, her, or its capacity
as such (other than the members of the Board acting as the Board or an
authorized Officer of the LLC) has the authority or power to act for or on
behalf of the LLC in any manner, to do any act that would be (or could be
construed as) binding on the LLC or to make any expenditures on behalf of the
LLC, and the Unitholders hereby consent to the exercise by the Board of the
powers conferred on it by law and this Agreement.
6.3 NO RIGHT OF PARTITION. No Unitholder shall have the right to
seek or obtain partition by court decree or operation of law of any LLC
property, or the right to own or use particular or individual assets of the LLC.
6.4 UNITHOLDERS RIGHT TO ACT. For situations which the approval of
any Unitholders or class thereof (rather than the approval of the Board on
behalf of the Unitholders) is required, the Unitholders shall act through
meetings and written consents as described in SECTION 3.2.
6.5 CONFLICTS OF INTEREST. A Unitholder, its Affiliates and each
of their respective stockholders, directors, officers, controlling persons,
partners and employees (collectively, the "UNITHOLDER GROUP") may have business
interests and engage in business activities in addition to those relating to the
LLC and its Subsidiaries, except as any such Person may have otherwise agreed
with the LLC in writing. Neither the LLC nor any of the other Unitholder shall
have any rights by virtue of this Agreement in any business ventures of any such
Person except for any business interests or activities which any such Person has
agreed in writing with the LLC to not pursue or consummate (whether directly or
indirectly), in which case all of such Person's direct and indirect interest in
such business interests or activities shall become an asset of the LLC and the
LLC shall be entitled to all rights in such business interests or activities and
to all income or profits derived therefrom.
6.6 TRANSACTIONS BETWEEN THE LLC AND THE UNITHOLDERS.
Notwithstanding that it may constitute a conflict of interest, the Unitholders
or their Affiliates may engage in any transaction (including the purchase, sale,
lease or exchange of any property or rendering of any service or the
establishment of any salary, other compensation or other terms of employment)
with the LLC so long as such transaction is approved by the Board.
ARTICLE VII
EXCULPATION AND INDEMNIFICATION
7.1 EXCULPATION. No Officer or Manager shall be liable to any
other Officer, Manager, and the LLC or to any Unitholder for any loss suffered
by the LLC unless such loss is caused by such Person's gross negligence, willful
misconduct, violation of law or material breach
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of this Agreement. The Officers and Managers shall not be liable for errors in
judgment or for any acts or omissions that do not constitute gross negligence,
willful misconduct, violation of law or material breach of this Agreement. Any
Officer or Manager may consult with counsel, accountants and other professionals
in respect of LLC affairs, and provided such Person acts in good faith reliance
upon the advice or opinion of such counsel, accountants or other professionals,
such Person shall not be liable for any loss suffered by the LLC in reliance
thereon.
7.2 RIGHT TO INDEMNIFICATION. Subject to the limitations and
conditions as provided in this ARTICLE VII, each Person who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative (hereinafter a "PROCEEDING"), or any appeal in such
a Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that he or she, or a Person of whom he or she
is the legal representative, is or was a Unitholder, Manager or Officer, or
while a Unitholder, Manager or Officer is or was serving at the request of the
LLC as a manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic limited
liability company, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise shall be indemnified by the LLC
to the fullest extent permitted by the Delaware Act, as the same exist or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the LLC to provide broader indemnification rights
than said law permitted the LLC to provide prior to such amendment) against
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including attorneys' fees) actually
incurred by such Person in connection with such Proceeding, and indemnification
under this ARTICLE VII shall continue as to a Person who has ceased to serve in
the capacity which initially entitled such Person to indemnity hereunder. The
rights granted pursuant to this ARTICLE VII shall be deemed contract rights, and
no amendment, modification or repeal of this ARTICLE VII shall have the effect
of limiting or denying any such rights with respect to actions taken or
Proceedings arising prior to any amendment, modification or repeal. It is
expressly acknowledged that the indemnification provided in this ARTICLE VII
could involve indemnification for negligence or under theories of strict
liability.
7.3 ADVANCE PAYMENT. Reasonable expenses incurred by a Person of
the type entitled to be indemnified under SECTION 7.2 who was, is or is
threatened to be made a named defendant or respondent in a Proceeding shall be
paid by the LLC in advance of the final disposition of the Proceeding unless
otherwise determined by the Board in the specific case upon receipt of an
undertaking by or on behalf of such Person to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
LLC.
7.4 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The LLC, by adoption
of a resolution of the Board, may indemnify and advance expenses to an employee
or agent of the LLC to the same extent and subject to the same conditions under
which it may indemnify and advance expenses to Persons who are not or were not
Managers or Officers but who are or were serving at the request of the LLC as a
manager, director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic limited liability
company, corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in such a
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capacity or arising out of his status as such a Person to the same extent that
it may indemnify and advance expenses to Managers and Officers under this
ARTICLE VII.
7.5 APPEARANCE AS A WITNESS. Notwithstanding any other provision
of this ARTICLE VII, the LLC may pay or reimburse reasonable out-of-pocket
expenses incurred by a Manager or Officer in connection with his appearance as a
witness or other participation in a Proceeding at a time when he is not a named
defendant or respondent in the Proceeding.
7.6 NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this ARTICLE VII shall not be
exclusive of any other right which a Manager, Officer or other Person
indemnified pursuant to SECTION 7.2 may have or hereafter acquire under any law
(common or statutory), provision of the Certificate or this Agreement,
agreement, vote of Unitholders or disinterested Managers or otherwise.
7.7 INSURANCE. The LLC may purchase and maintain insurance, at its
expense, to protect itself and any Person who is or was serving as a Manager,
Officer or agent of the LLC or is or was serving at the request of the LLC as a
manager, director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another foreign or domestic limited ability
company, corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise against any expense, liability or
loss, whether or not the LLC would have the power to indemnify such Person
against such expense, liability or loss under this ARTICLE VII.
7.8 SAVINGS CLAUSE. If this ARTICLE VII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the LLC shall nevertheless indemnify and hold harmless each Manager, Officer or
any other Person indemnified pursuant to this ARTICLE VII as to costs, charges
and expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative to the full extent permitted by any
applicable portion of this ARTICLE VII that shall not have been invalidated and
to the fullest extent permitted by applicable law.
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
8.1 RECORDS AND ACCOUNTING. The LLC shall keep, or cause to be
kept, appropriate books and records with respect to the LLC's business,
including all books and records necessary to provide any information, lists, and
copies of documents required to be provided pursuant to SECTION 8.3 or pursuant
to applicable laws. All matters concerning (i) the determination of the relative
amount of allocations and distributions among the Unitholders pursuant to
ARTICLES III and IV and (ii) accounting procedures and determinations, and other
determinations not specifically and expressly provided for by the terms of this
Agreement, shall be determined by the Board, whose determination shall be final
and conclusive as to all of the Unitholders absent manifest clerical error.
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8.2 FISCAL YEAR. The fiscal year (the "FISCAL YEAR") of the LLC
shall constitute the 12-month period ending on December 31 of each calendar
year, or such other annual accounting period as may be established by the Board.
8.3 REPORTS. The LLC shall use reasonable best efforts to deliver
or cause to be delivered, within seventy-five (75) days after the end of each
Fiscal Year, to each Person who was a Unitholder at any time during such Fiscal
Year all information necessary for the preparation of such Person's United
States federal and state income tax returns.
8.4 TRANSMISSION OF COMMUNICATIONS. Each Person that owns or
controls Units on behalf of, or for the benefit of, another Person or Persons
shall be responsible for conveying any report, notice, or other communication
received from the Board to such other Person or Persons.
8.5 LLC FUNDS. The Board and Officers may not commingle the LLC's
funds with the funds of any Unitholder or Managers.
ARTICLE IX
TAXES
9.1 TAX RETURNS. The LLC shall pre-pare and file all necessary
federal and state income tax returns, including making the elections described
in SECTION 9.2. Each Unitholder shall furnish to the LLC all pertinent
information in its possession relating to LLC operations that is necessary to
enable the LLC's income tax returns to be prepared and filed.
9.2 TAX ELECTIONS. The LLC shall make any election the LLC may
deem appropriate and in the best interests of the Unitholders.
9.3 TAX MATTERS PARTNER. GTCR Fund VII, L.P. (or an Affiliate so
designated by GTCR Fund VII, L.P.) shall be the "tax matters partner" of the LLC
pursuant to Section 6231(a)(7) of the Code (the "TAX MATTERS PARTNER"). The Tax
Matters Partner shall take such action as may be necessary to cause each other
Unitholder to become a "notice partner" within the meaning of Section 6223 of
the Code. The Tax Matters Partner shall inform each other Unitholder of all
significant matters that may come to its attention in its capacity as Tax
Matters Partner by giving notice thereof on or before the fifth business day
after becoming aware thereof and, within that time, shall forward to each other
Unitholder copies of all significant written communications he may receive in
that capacity. The Tax Matters Partner may not take any action contemplated by
Sections 6222 through 6232 of the Code without the consent of the Board, but
this sentence does not authorize the Tax Matters Partner (or any Manager) to
take any action left to the determination of an individual Unitholder under
Sections 6222 through 6232 of the Code.
ARTICLE X
TRANSFER OF LLC INTERESTS
10.1 TRANSFERS BY UNITHOLDERS.
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(a) No Unitholder shall Transfer any interest in any Units except
to Permitted Transferees and in compliance with this ARTICLE X. Except for
Transfers made in compliance with the Securityholders Agreement, the Senior
Management Agreement and the Registration Agreement, no Unitholder shall
Transfer, or offer or agree to Transfer, all or any part of any interest of such
Person's Units without the prior written consent of the Board, which consent may
be withheld in the Board's sole discretion. With the Board's consent, a
Unitholder may Transfer all or any part of such Person's Units, subject to
compliance with this Agreement (including, without limitation, SECTION 10.1(b)).
(b) Each transferee of Units or other interest in the LLC shall,
as a condition precedent to such Transfer, execute a counterpart to this
Agreement pursuant to which such transferee shall agree to be bound by the
provisions of this Agreement.
10.2 EFFECT OF ASSIGNMENT.
(a) Any Unitholder who shall assign any Units or other interest in
the LLC shall cease to be a Unitholder of the LLC with respect to such Units or
other interest and shall no longer have any rights or privileges of a Unitholder
with respect to such Units or other interest.
(b) Any Person who acquires in any manner whatsoever any Units or
other interest in the LLC, irrespective of whether such Person has accepted and
adopted in writing the terms and provisions of this Agreement, shall be deemed
by the acceptance of the benefits of the acquisition thereof to have agreed to
be subject to and bound by all of the terms and conditions of this Agreement
that any predecessor in such Units or other interest in the LLC of such Person
was subject to or by which such predecessor was bound.
10.3 RESTRICTION ON TRANSFER. In order to permit the LLC to qualify
for the benefit of a "safe harbor" under Code Section 7704, notwithstanding
anything to the contrary in this Agreement, no Transfer of any Unit or economic
interest shall be permitted or recognized by the LLC or the Board (within the
meaning of Treasury Regulation Section 1.7704-1(d)) if and to the extent that
such Transfer would cause the LLC to have more than 100 partners (within the
meaning of Treasury Regulation Section 1.7704-1(h), including the look-through
rule in Treasury Regulation Section 1.7704-1(h)(3)).
10.4 TRANSFER FEES AND EXPENSES. The transferor and transferee of
any Units or other interest in the LLC shall be jointly and severally obligated
to reimburse the LLC for all reasonable expenses (including attorneys' fees and
expenses) of any Transfer or proposed Transfer, whether or not consummated.
10.5 VOID TRANSFERS. Any Transfer by any Unitholder of any Units or
other interest in the LLC in contravention of this Agreement (including, without
limitation, the failure of the transferee to execute a counterpart in accordance
with SECTION 10.1(b)) or which would cause the LLC to not be treated as a
partnership for U.S. federal income tax purposes shall be void and ineffectual
and shall not bind or be recognized by the LLC or any other party. No purported
assignee shall have any right to any profits, losses or distributions of the
LLC.
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ARTICLE XI
ADMISSION OF UNITHOLDERS
11.1 SUBSTITUTED UNITHOLDERS. In connection with the transfer of an
LLC Interest of a Unitholder permitted under the terms of this Agreement and the
other Transaction Documents, the transferee shall become a Substituted
Unitholder on the effective date of such Transfer, which effective date shall
not be earlier than the date of compliance with or waiver of the conditions to
such Transfer (unless one of the conditions to such Transfer is that Board or
Unitholder consent is required for the admission of such transferee, in which
case such consent must first be obtained), including executing counterparts of,
and become a party to, this Agreement and the other Transaction Documents to
which the transferor Unitholder was a party, and such admission shall be shown
on the books and records of the LLC.
11.2 ADDITIONAL UNITHOLDERS. A Person may be admitted to the LLC as
an Additional Unitholder only as contemplated under, and in compliance with, the
terms of this Agreement, including furnishing to the Board (a) a letter of
acceptance, in form satisfactory to the Board, of all the terms and conditions
of this Agreement, including the power of attorney granted in SECTION 15.1, and
(b) such other documents or instruments as may be necessary or appropriate to
effect such Person's admission as a Unitholder (including counterparts or
joinders to all applicable Transaction Documents). Such admission shall become
effective on the date on which the Board determines in its sole discretion that
such conditions have been satisfied and when any such admission is shown on the
books and records of the LLC.
11.3 OPTIONHOLDERS. Except as set forth in this Agreement, no
Person that holds securities (including options, warrants, or rights)
exercisable, exchangeable, or convertible into Units ("OPTIONHOLDER") shall have
any rights with respect to such Units until such Person is actually issued Units
upon such exercise, exchange, or conversion and, if such Person is not then a
Unitholder, is admitted as a Unitholder pursuant to SECTION 11.2.
ARTICLE XII
WITHDRAWAL AND RESIGNATION OF UNITHOLDERS
12.1 WITHDRAWAL AND RESIGNATION OF UNITHOLDERS. No Unitholder
shall have the power or right to withdraw or otherwise resign or be expelled
from the LLC prior to the dissolution and winding up of the LLC pursuant to
ARTICLE XII, except as otherwise expressly permitted by this Agreement or any of
the other agreements contemplated hereby. Notwithstanding that payment on
account of a withdrawal may be made after the effective time of such withdrawal,
any completely withdrawing Unitholder will not be considered a Unitholder for
any purpose after the effective time of such complete withdrawal, and, in the
case of a partial withdrawal, such Unitholder's Capital Account (and
corresponding voting and other rights) shall be reduced for all other purposes
hereunder upon the effective time of such partial withdrawal.
12.2 WITHDRAWAL OF A UNITHOLDER. No Unitholder shall have the
power or right to withdraw or otherwise resign from the LLC except, simultaneous
with the Transfer of all of a Unitholder's Units in a Transfer permitted by this
Agreement and, if such Transfer is to a
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person or entity that is not a Unitholder, the admission of such person or
entity as a Unitholder pursuant to SECTION 11.1.
ARTICLE XIII
DISSOLUTION AND LIQUIDATION
13.1 DISSOLUTION. The LLC shall not be dissolved by the admission
of Additional Unitholders or Substituted Unitholders, or by the death,
retirement, expulsion, bankruptcy or dissolution of a Unitholder. The LLC shall
dissolve, and its affairs shall be wound up upon the first to occur of the
following:
(a) at any time by the Board; or
(b) the entry of a decree of judicial dissolution of the LLC under
Section 35-5 of the Delaware Act or an administrative dissolution under Section
18-802 of the Delaware Act.
Except as otherwise set forth in this ARTICLE XIII, the LLC is intended to have
perpetual existence. An Event of Withdrawal shall not cause a dissolution of the
LLC and the LLC shall continue in existence subject to the terms and conditions
of this Agreement.
13.2 LIQUIDATION AND TERMINATION. On dissolution of the LLC, the
Board shall act as liquidator or may appoint one or more representatives or
Unitholders as liquidator. The liquidators shall proceed diligently to wind up
the affairs of the LLC, sell all or any portion of the LLC assets for cash or
cash equivalents as they deem appropriate, and make final distributions as
provided herein and in the Delaware Act. The costs of liquidation shall be borne
as an LLC expense. Until final distribution, the liquidators shall continue to
operate the LLC properties with all of the power and authority of the Board. The
liquidators shall pay, satisfy, or discharge from LLC funds all of the debts,
liabilities, and obligations of the LLC (including all expenses incurred in
liquidation) or otherwise make adequate provision for payment and discharge
thereof (including the establishment of a cash fund for contingent liabilities
in such amount and for such term as the liquidators may reasonably determine)
and shall promptly distribute the remaining assets to the holders of Units in
accordance with SECTION 4.1(a). Any non-cash assets will first be written up or
down to their Fair Market Value, thus creating Profit or Loss (if any), which
shall be allocated in accordance with SECTIONS 4.2 and 4.3. In making such
distributions, the liquidators shall allocate each type of asset (i.e., cash,
cash equivalents, securities, etc.) among the Unitholders ratably based upon the
aggregate amounts to be distributed with respect to the Units held by each such
holder. Any such distributions in kind shall be subject to (x) such conditions
relating to the disposition and management of such assets as the liquidators
deem reasonable and equitable and (y) the terms and conditions of any agreement
governing such assets (or the operation thereof or the holders thereof) at such
time.
The distribution of cash and/or property to a Unitholder in accordance with the
provisions of this Section 13.2 constitutes a complete return to the Unitholder
of its Capital Contributions and a complete distribution to the Unitholder of
its interest in the LLC and all the LLC's property and constitutes a compromise
to which all Unitholders have consented within the meaning of the
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Delaware Act. To the extent that a Unitholder returns funds to the LLC, it has
no claim against any other Unitholder for those funds.
13.3 CANCELLATION OF CERTIFICATE. On completion of the distribution
of LLC assets as provided herein, the LLC shall be terminated (and the LLC shall
not be terminated prior to such time), and the Board (or such other Person or
Persons as the Delaware Act may require or permit) shall file a certificate of
cancellation with the Secretary of State of Delaware, cancel any other filings
made pursuant to this Agreement that are or should be canceled, and take such
other actions as may be necessary to terminate the LLC. The LLC shall be deemed
to continue in existence for all purposes of this Agreement until it is
terminated pursuant to this SECTION 13.3.
13.4 REASONABLE TIME FOR WINDING UP. A reasonable time shall be
allowed for the orderly winding up of the business and affairs of the LLC and
the liquidation of its assets pursuant to SECTION 13.2 in order to minimize any
losses other-wise attendant upon such winding up.
13.5 RETURN OF CAPITAL. The liquidators shall not be personally
liable for the return of Capital Contributions or any portion thereof to the
Unitholders (it being understood that any such return shall be made solely from
LLC assets).
13.6 RESERVES AGAINST DISTRIBUTIONS. The Board shall have the right
to withhold from Distributions payable to any Unitholder under this Agreement
amounts sufficient to pay and discharge any reasonably anticipated contingent
liabilities of the LLC. Any amounts remaining after payment and discharge of any
such contingent liabilities of the LLC will be paid to the Unitholders from whom
the Distributions were withheld.
ARTICLE XIV
VALUATION
14.1 DETERMINATION. Subject to SECTION 14.2, the Fair Market Value
of the assets of the LLC or of a LLC Interest will be determined by the Board
(or, if pursuant to SECTION 13.2, the liquidators) in its good faith judgment in
such manner as its deems reasonable and using all factors, information and data
deemed to be pertinent.
14.2 FAIR MARKET VALUE. For purposes of this Agreement, "FAIR
MARKET VALUE" of (i) a specific LLC asset will mean the amount which the LLC
would receive in an all-cash sale of such asset (free and clear of all Liens and
after payment of all liabilities secured only by such asset) in an arms-length
transaction with an unaffiliated third party consummated on the day immediately
preceding the date on which the event occurred which necessitated the
determination of the Fair Market Value (and after giving effect to any transfer
taxes payable in connection with such sale); and (ii) the LLC will mean the
amount which the LLC would receive in an all-cash sale of all of its assets and
businesses as a going concern (free and clear of all Liens and after payment of
indebtedness for borrowed money) in an arms-length transaction with an
unaffiliated third party consummated on the day immediately preceding the date
on which the event occurred which necessitated the determination of the Fair
Market Value (assuming that all of the proceeds from such sale were paid
directly to the LLC other than an amount of such
37
proceeds necessary to pay transfer taxes payable in connection with such sale,
which amount will not be received or deemed received by the LLC). After a
determination of the Fair Market Value of the LLC is made as provided above, the
Fair Market Value of a Unit will be determined by making a calculation
reflecting the cash distributions which would be made to the Unitholders in
accordance with this Agreement in respect of such Unit if the LLC were deemed to
have received such Fair Market Value in cash and then distributed the same to
the Unitholders in accordance with the terms of this Agreement incident to the
liquidation of the LLC after payment to all of the LLC's creditors from such
cash receipts other than payments to creditors who hold evidence of indebtedness
for borrowed money, the payment of which is already reflected in the calculation
of the Fair Market Value of the LLC and assuming that all of the convertible
debt and other convertible securities were repaid or converted (whichever yields
more cash to the holders of such convertible securities) and all options to
acquire Units (whether or not currently exercisable) that have an exercise price
below the Fair Market Value of such Units were exercised and the exercise price
therefor paid. Except as otherwise provided herein or in any agreement, document
or instrument contemplated hereby, any amount to be paid under this Agreement by
reference to the Fair Market Value shall be paid in full in cash, and any Unit
being transferred in exchange therefor will be transferred free and clear of all
Liens.
ARTICLE XV
GENERAL PROVISIONS
15.1 POWER OF ATTORNEY Each Unitholder hereby constitutes and
appoints each member of the Board and the liquidators, with full power of
substitution, as his true and lawful agent and attorney-in-fact, with full power
and authority in his or its name, place and stead, to execute, swear to,
acknowledge, deliver, file, and record in the appropriate public offices (i)
this Agreement, all certificates, and other instruments and all amendments (in
the manner set forth herein) thereof in accordance with the terms hereof which
the Board deems appropriate or necessary to form, qualify, or continue the
qualification of, the LLC as a limited liability company in the State of
Delaware and in all other jurisdictions in which the LLC may conduct business or
own property; (ii) all instruments which the Board deems appropriate or
necessary to reflect any amendment, change, modification, or restatement of this
Agreement in accordance with its terms; (iii) all conveyances and other
instruments or documents which the Board deems appropriate or necessary to
reflect the dissolution and liquidation of the LLC pursuant to the terms of this
Agreement, including a certificate of cancellation; and (iv) all instruments
relating to the admission, withdrawal, or substitution of any Unitholder
pursuant to ARTICLE XI and XII.
(b) The foregoing power of attorney is irrevocable and coupled
with an interest, and shall survive the death, disability, incapacity,
dissolution, bankruptcy, insolvency, or termination of any Unitholder and the
Transfer of all or any portion of his or its LLC Interest and shall extend to
such Unitholder's heirs, successors, assigns, and personal representatives.
15.2 AMENDMENTS. This Agreement may be amended from time to time by
a written instrument by the holders of the Required Interest; provided that, no
amendment or modification pursuant to this SECTION 15.2 that would adversely
affect any class of Units in a manner different than other Units (as the case
may be) shall be effective against the holders of such class of Units (as the
case may be) without the prior written consent of holders of at least a
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majority of Units of such class so adversely affected thereby; and provided
further that no amendment or modification pursuant to this SECTION 15.2 that
would affect the rights of a Unitholder or group of Unitholders specifically
granted such rights by name shall be modified without that Unitholder's (or a
majority of that group of Unitholders') consent.
15.3 TITLE TO LLC ASSETS. LLC assets shall be deemed to be owned by
the LLC as an entity, and no Unitholder, individually or collectively, shall
have any owner-ship interest in such LLC assets or any portion thereof. Legal
title to any or all LLC assets may be held in the name of the LLC or one or more
nominees, as the Board may determine. The Board hereby declares and warrants
that any LLC assets for which legal title is held in its name or the name of any
nominee shall be held in trust by the Board or such nominee for the use and
benefit of the LLC in accordance with the provisions of this Agreement. All LLC
assets shall be recorded as the property of the LLC on its books and records,
irrespective of the name in which legal title to such LLC assets is held.
15.4 REMEDIES. Each Unitholder and the LLC shall have all rights
and remedies set forth in this Agreement and all rights and remedies which such
Person has been granted at any time under any other agreement or contract and
all of the rights which such Person has under any law. Any Person having any
rights under any provision of this Agreement or any other agreements
contemplated hereby shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law.
15.5 SUCCESSORS AND ASSIGNS. All covenants and agreements contained
in this Agreement shall bind and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors, legal
representatives, and permitted assigns, whether so expressed or not.
15.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal, or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed, and enforced
in such jurisdiction as if such invalid, illegal, or unenforceable provision had
never been contained herein.
15.7 INCORPORATION OF THE LLC. The Board may, in order to
facilitate a public offering of securities of the LLC, or for other reasons that
the Board deems in the best interests of the LLC, cause the LLC to incorporate
its business, or any portion thereof, including (i) the transfer of all of the
assets of the LLC, subject to the LLC's liabilities, or the transfer of any
portion of such assets and liabilities, to one or more corporations in exchange
for shares of such corporation(s) and the subsequent distribution of such
shares, at such time as the Board may determine, to the Unitholders on a pro
rata basis, (ii) conversion of the LLC into a corporation pursuant to Section
216 of the Delaware Act (or any successor section thereto) or (iii) by Transfer
by each Unitholder of Units held by such Unitholder to one or more corporations
in exchange for shares of such corporation(s) (including by merger of the LLC
into a corporation) and, in connection therewith, each Unitholder agrees to the
Transfer of its Units in accordance
39
with the terms of exchange as provided by the Board and further agrees that as
of the effective date of such exchange any Unit outstanding thereafter which
shall not have been tendered for exchange shall represent only the right to
receive a certificate representing the number of shares of such corporation(s)
as provided in the terms of such exchange. In connection with any such
reorganization or exchange as provided in CLAUSES (i) and (ii) above, each
Unitholder of a particular class shall receive the same form of securities and
the same amount of securities per Unit of such class and if any holders of a
class of Units are given an option as to the form and amount of securities to be
received, each holder of such class of Units shall be given the same option. The
LLC shall pay any and all organizational, legal and accounting expenses and
filing fees incurred in connection with such incorporation transaction,
including, without limitation, any fees related to a filing under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976, as amended, if
applicable.
15.8 OPT-IN TO ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE. The
Unitholders hereby agree that the Units shall be securities governed by Article
8 of the Uniform Commercial Code of the State of Delaware (and the Uniform
Commercial Code of any other applicable jurisdiction).
15.9 NOTICE TO UNITHOLDER OF PROVISIONS. By executing this
Agreement, each Unitholder acknowledges that it has actual notice of (a) all of
the provisions hereof (including the restrictions on the transfer set forth
herein), and (b) all of the provisions of the Certificate.
15.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
15.11 CONSENT TO JURISDICTION. Each Unitholder irrevocably submits
to the nonexclusive jurisdiction of the United States District Court for the
State of Delaware and the state courts of the State of Delaware for the purposes
of any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each Unitholder further agrees that service of
any process, summons, notice or document by United States certified or
registered mail to such Unitholder's respective address set forth in the LLC's
books and records or such other address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending
party shall be effective service of process in any action, suit or proceeding in
Delaware with respect to any matters to which it has submitted to jurisdiction
as set forth above in the immediately preceding sentence. Each Unitholder
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the State of
Delaware or the state courts of the State of Delaware and hereby irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in such court has been brought in an
inconvenient forum.
15.12 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns,
40
pronouns, and verbs shall include the plural and vice versa. The use of the word
"including" in this Agreement shall be by way of example rather than by
limitation. Reference to any agreement, document, or instrument means such
agreement, document, or instrument as amended or otherwise modified from time to
time in accordance with the terms thereof, and if applicable hereof. Without
limiting the generality of the immediately preceding sentence, no amendment or
other modification to any agreement, document, or instrument that requires the
consent of any Person pursuant to the terms of this Agreement or any other
agreement will be given effect hereunder unless such Person has consented in
writing to such amendment or modification. Wherever required by the context,
references to a Fiscal Year shall refer to a portion thereof. The use of the
words "or," "either," and "any" shall not be exclusive. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement. Wherever a
conflict exists between this Agreement and any other agreement, this Agreement
shall control but solely to the extent of such conflict.
15.13 APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
Any dispute relating hereto shall be heard in the state or federal courts of
Delaware, and the parties agree to jurisdiction and venue therein.
15.14 ADDRESSES AND NOTICES. All notices, demands, or other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and shall be deemed to have been given or
made when (a) delivered personally to the recipient, (b) telecopied to the
recipient (with hard copy sent to the recipient by reputable overnight courier
service (charges prepaid) that same day) if telecopied before 5:00 p.m. Chicago,
Illinois time on a business day, and otherwise on the next business day, or (c)
one business day after being sent to the recipient by reputable overnight
courier service (charges prepaid). Such notices, demands, and other
communications shall be sent to the address for such recipient set forth in the
LLC's books and records, or to such other address or to the attention of such
other person as the recipient party has specified by prior written notice to the
sending party. Any notice to the Board or the LLC shall be deemed given if
received by the Board at the principal office of the LLC designated pursuant to
SECTION 2.5.
15.15 CREDITORS. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the LLC or any of its
Affiliates, and no creditor who makes a loan to the LLC or any of its Affiliates
may have or acquire (except pursuant to the terms of a separate agreement
executed by the LLC in favor of such creditor) at any time as a result of making
the loan any direct or indirect interest in LLC Profits, Losses, Distributions,
capital, or property other than as a secured creditor.
15.16 WAIVER OF CERTAIN RIGHTS. No failure by any party to insist
upon the strict performance of any covenant, duty, agreement, or condition of
this Agreement or to exercise any right or remedy consequent upon a breach
thereof shall constitute a waiver of any
41
such breach or any other covenant, duty, agreement, or condition. Each
Unitholder irrevocably waives any right it may have under Section 18-305 of the
Delaware Act.
15.17 FURTHER ACTION. The parties shall execute and deliver all
documents, provide all information, and take or refrain from taking such actions
as may be necessary or appropriate to achieve the purposes of this Agreement.
15.18 OFFSET. Whenever the LLC is to pay any sum to any Unitholder
or any Affiliate or related person thereof, any amounts that such Unitholder or
such Affiliate or related person owes to the LLC may be deducted from that sum
before payment.
15.19 ENTIRE AGREEMENT. This Agreement, those documents expressly
referred to herein, the other documents of even date herewith, and the other
Transaction Documents embody the complete agreement and understanding among the
parties and supersede and preempt any prior under-standings, agreements, or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
15.20 DELIVERY BY FACSIMILE. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
15.21 SURVIVAL. SECTIONS 4.5, 6.1, 7.1 and 7.2 shall survive and
continue in full force in accordance with its terms notwithstanding any
termination of this Agreement or the dissolution of the LLC.
* * * * *
42
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this
Limited Liability Company Agreement as of the date
first written above.
TSI TELECOMMUNICATION HOLDINGS, LLC
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Chief Executive Officer
GTCR FUND VII, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR FUND VII, L.P./A
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CO-INVEST, L.P.
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
SIGNATURE PAGES TO TSI LLC AGREEMENT
PAGE 1 OF 16
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
SNOWLAKE INVESMENT PTE LTD
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇
G. ▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SIGNATURE PAGES TO TSI LLC AGREEMENT
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PROJECT NETWORK PARTNERS LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Treasurer
SIGNATURE PAGES TO TSI LLC AGREEMENT
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/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNATURE PAGES TO LLC AGREEMENT
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/s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
SIGNATURE PAGES TO LLC AGREEMENT
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/s/ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
SIGNATURE PAGES TO LLC AGREEMENT
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GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
SIGNATURE PAGES TO LLC AGREEMENT
PAGE 16 OF 16