Exhibit 3.2
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QFAC, LLC
(a Delaware Limited Liability Company)
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OPERATING AGREEMENT
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June 28, 1999
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OPERATING AGREEMENT dated as
of June 28, 1999, of QFAC, LLC, a
Delaware limited liability
company (the "Company"), among
the parties listed on Schedule I.
The parties are entering into this Agreement for the purpose of forming
a limited liability company pursuant to the provisions of the Delaware Limited
Liability Company Act, 6 Del. C. ss. 18-101 et seq. (the "Delaware Act").
ACCORDINGLY, in consideration of the mutual covenants and agreements
contained in this Agreement, the sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Definitions; Rules of Construction.
(a) When used in this Agreement, the following capitalized terms have
the meanings ascribed to them below:
"Affiliate" means, with respect to any Person, (i) a director
or executive officer of such Person, (ii) a spouse, parent, sibling or
descendant of such Person (or a spouse, parent, sibling or descendant of any
director or executive officer of such Person), (iii) the estate of such Person,
(iv) any trust for the benefit of Persons referred to in clause (i), (ii) or
(iii) above and (v) any other Person that, directly or indirectly through one or
more intermediaries controls, is controlled by or is under common control with
such Person. The term "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.
"Board of Managers" means the board of managers designated
pursuant to Section 5.
"By-laws" means the By-laws of the Company as amended from
time to time, which are expressly incorporated by reference into this Agreement
and the form of which is attached hereto as Annex A.
"Capital Contribution" means, with respect to any Member, the
amount of capital contributed by such Member to the Company, as determined in
accordance with Section 6.
"Event of Withdrawal of a Member" means the death, insanity,
retirement, resignation, expulsion, bankruptcy or dissolution of a Member or the
occurrence of any other event that terminates the continued membership of a
Member in the Company.
"Fiscal Year" means the 12-month period beginning on April 1
and ending on March 31 of each year.
"GAAP" means generally accepted accounting principles as in
effect from time to time.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.
"LLC Interest" means the percentage ownership interest of a
Member in the Company, as adjusted from time to time in accordance with this
Agreement, consisting of (a) such Member's right to receive a portion of Net
Profits, Net Losses and distributions, in each case as provided herein, (b) such
Member's right, if any, to vote or grant or withhold consents with respect to
Company matters as provided herein or in the Delaware Act and (c) such Member's
other rights and privileges as herein provided.
"Majority in Interest of Members" means, at any time, the
Members who hold, in the aggregate, greater than fifty (50) percent of the LLC
Interests owned by all the Members at such time.
"Manager" means a member of the Board of Managers as
designated in, or selected pursuant to, Section 5.
"Member" means any Person holding an LLC Interest and any
Person who shall be admitted as an additional or substituted Member pursuant to
this Agreement (including an Additional Member), so long as such Person remains
a Member.
"Net Profits and Net Losses" means the net taxable income or
net taxable loss of the Company, respectively, as determined for Federal income
tax purposes, for each fiscal year of the Company, plus any income that is
exempt from Federal income tax and minus expenses that are not deductible in
computing Federal taxable income and not properly chargeable to capital
accounts, in each case to the extent such items are not otherwise taken into
account in computing Net Profits or Net Losses.
"Person" shall be construed broadly and shall include an
individual, a partnership, a corporation, an association, a joint stock company,
a limited liability company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor Federal statute, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder, all as the same shall
be in effect from time to time.
"Transfer" as to any LLC Interest, shall be construed broadly
and shall include any sale, assignment, transfer, participation, gift, bequest,
distribution, or other disposition thereof, whether directly or indirectly by
way of liquidation, merger, consolidation or reorganization, or any pledge or
hypothecation thereof, placement of a lien thereon or grant of a security
interest therein or any other encumbrance thereon (other than with respect to
the pledge of collateral made pursuant to the Pledge and Security Agreement
dated June 28, 1999 between CFP Holdings, Inc., a Delaware corporation, as
Pledgor, and Fleet Capital Corporation, as Lender), in each case whether
voluntary or involuntary or arising by operation of law or otherwise and with or
without compensation, or any agreement having the purpose of accomplishing any
of the foregoing.
(b) The following terms are defined in the following Sections
or other locations:
Section or
Term: other location:
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"Additional Member" 16(b)
"Certificate" 2(b)
"Company" Caption
"Delaware Act" First Paragraph
"Encumbrances" 13(b)(ii)
"Tax Matters Partner" 14(a)
(c) The title of and the section and paragraph headings in
this Agreement are for convenience of reference only and shall not govern the
interpretation of any of the terms or provisions of this Agreement.
(d) The use herein of the masculine, feminine or neuter forms
shall also denote the other forms, as in each case the context may require. The
words "include," "includes" and "including" are deemed to be followed by the
phrase "without limitation".
(e) Except when the context requires otherwise, any reference
in this Agreement to any Section, Clause, Schedule or Annex shall be to the
Sections and Clauses of, and Schedules and Annex to, this Agreement.
2. Name; Formation; Issuance of LLC Interests.
(a) The name of the Company shall be "QFAC, LLC", or such
other name as the Board of Managers may from time to time hereafter designate.
(b) The Company was formed upon the execution and filing by
Lincoln ▇. ▇▇▇▇▇▇▇ (Lincoln ▇. ▇▇▇▇▇▇▇ being hereby authorized to take such
action) with the Secretary of State of the State of Delaware of a certificate of
formation (the "Certificate") of the Company in the form attached hereto as
Annex B on April 15, 1999. The parties hereto hereby (i) ratify and confirm the
filing of the Certificate and (ii) adopt and approve the By-laws.
3. Purpose.
The purpose of the Company shall be to engage in any lawful
business that may be engaged in by a limited liability company organized under
the Delaware Act, as such business activities may be determined by the Board of
Managers from time to time.
4. Offices.
(a) The principal office of the Company, and such additional
offices as the Board of Managers may determine to establish, shall be located at
such place or places inside or outside the State of Delaware as the Board of
Managers may designated from time to time.
(b) The registered office of the Company in the State of
Delaware is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
registered agent of the Company for service of process at such address is The
▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, Inc..
5. Management of the Company; Board of Managers.
(a) Subject to the delegation of rights and powers provided
for herein and in the By-laws, the Board of Managers shall have the sole right
to manage the business of the Company and shall have all powers and rights
necessary, appropriate or advisable to effectuate and carry out the purposes and
business of the Company.
(b) The Board of Managers shall initially consist of six (6)
Managers and thereafter, from time to time, the number of Managers comprising
the Board of Managers may be increased or decreased as provided in the By-laws.
The Board of Managers shall be selected by a Majority in Interest of Members. A
Manager that is not an individual may act through its duly authorized
representative.
(c) No Member, by reason of such Member's status as such,
shall have any authority to act for or bind the Company but shall have only the
right to vote on or approve the actions herein specified to be voted on or
approved by such Member.
(d) The officers of the Company shall be, and shall be
elected, removed and perform such functions, as are provided in the By-laws. The
Board of Managers may appoint, employ, or otherwise contract with such other
Persons for the transaction of the business of the Company or the performance of
services for or on behalf of the Company as it shall determine in its sole
discretion. The Board of Managers may delegate to any officer of the Company or
to any such other Person such authority to act on behalf of the Company as the
Board of Managers may from time to time deem appropriate in its sole discretion.
(e) Except as otherwise provided by the Board of Managers or
in the By-laws, when the taking of such action has been authorized by the Board
of Managers, any officer of the Company or any other Person specifically
authorized by the Board of Managers may execute any contract or other agreement
or document on behalf of the Company and may execute and file on behalf of the
Company with the Secretary of State of the State of Delaware any certificate of
amendment to the Company's Certificate, one or more restated certificates of
formation and certificate of merger or consolidation and, upon the dissolution
and completion of winding up of the Company, at any time when there are fewer
than two Members, or as otherwise provided in the Delaware Act, a certificate of
cancellation canceling the Company's Certificate.
(f) In the event a vacancy is created on the Board of Managers
by reason of the death, removal or resignation of any Manager, such vacancy
shall be filled by an affirmative vote of a Majority in Interest of Members.
(g) Each Member represents that he or she has not granted and
is not a party to any proxy, voting trust or other agreement which is
inconsistent with or conflicts with the provisions of this Agreement, and no
Member shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with the provisions of this
Agreement.
6. Capital Contributions; Capital Accounts.
(a) Each of the Members entering into this Agreement as of the
date hereof has contributed to the Company on the date hereof, in cash, the
amount set forth opposite such Member's name on Schedule II for the LLC Interest
set forth opposite such Member's name on Schedule II.
(b) A separate capital account shall be maintained on the
books of the Company for each Member, which shall be adjusted (1) as of March 31
of each year, (2) immediately prior to the acquisition of any LLC Interest by
any Person or any change in the LLC Interest of any Person, (3) immediately
prior to the date of dissolution of the Company and (4) at such times as the
Board of Managers shall determine, as follows:
(i) the amount of money and the fair market value (as
determined by the Board of Managers in good faith) of property
(net of any liabilities secured by such property that the
Company assumes or takes subject to) contributed by such
Member to the Company shall be credited to such Member's
capital account;
(ii) the amount of any distributions (including the
fair market value (as determined by the Board of Managers in
good faith) of property other than cash (net of any
liabilities that such Member assumes or takes subject to))
distributed to such Member shall be debited from such Member's
capital account;
(iii) Net Profits earned by the Company since the
last date on which Net Profits or Net Losses shall have been
allocated to the Members shall be credited to the Members'
capital accounts as follows:
(A) first, to reverse the allocations of Net
Losses provided for in Section 6(b)(iv); and
(B) next, ratably based upon the LLC
Interests of the Members; and
(iv) Net Losses incurred by the Company since the
last date on which Net Losses or Net Profits shall have been
allocated to the Members shall be debited to the Members'
capital accounts, ratably based upon the LLC Interests of the
Members; provided, that at such time as a Member's capital
account shall be reduced to zero (0) such Member shall be
excluded from the allocations made pursuant to this Section
6(b)(iv) until such time as such Member's capital account has
a positive balance.
(c) Notwithstanding any provision of this Agreement to the
contrary, each Member's capital account shall be maintained and adjusted in
accordance with the Internal Revenue Code, including (i) the adjustments
permitted or required by Internal Revenue Code Section 704(b) and, to the extent
applicable, the principles expressed in Internal Revenue Code Section 704(c) and
the regulations promulgated thereunder and (ii) adjustments required to maintain
capital accounts in accordance with the "substantial economic effect test" set
forth in the regulations promulgated under Internal Revenue Code Section 704(b).
(d) Upon any distribution in kind, the distribution shall be
treated as if the property were sold for its fair market value (as determined as
of the immediately preceding day by the Board of Managers in good faith) and the
proceeds therefrom distributed to the Members. The deemed gain or loss on such
disposition shall be included in the calculation of Net Profit and Net Loss for
the period in which the distribution occurred. For the purposes of this
Agreement, fair market value for such distributions shall be determined by the
Board of Managers in good faith as of the day immediately preceding the
acquisition or disposition of the relevant property.
(e) Any Member, including any substitute Member, who shall
receive an LLC Interest by means of a Transfer to it of a portion of or all of
the LLC Interest of another Member shall have a capital account that reflects
the capital account associated with the transferred LLC Interest.
7. Distributions.
(a) Within ninety (90) days following the end of each Fiscal
Year, the Company will distribute to each Member an amount (if any) equal to
fifty (50%) percent of the excess of Net Profits over Net Losses previously
allocated to such Member's capital account for such Fiscal Year and all prior
Fiscal Years pursuant to Section 6, less (i) all distributions pursuant to this
Section 7(a) and (ii) any distributions made during such Fiscal Year pursuant to
Section 7(b).
(b) Subject to Section 12(f), all distributions not made
pursuant to Section 7(a) of other assets of the Company, whether in cash or in
kind, shall be made at such times and in such amounts as a Majority in Interest
of Members may determine, and shall be allocated among and made to the Members
ratably based upon the LLC Interests of the Members.
8. Liability for Return of Capital.
No Member or Manager shall have any liability for the return
of any Member's Capital Contribution, which Capital Contribution shall be
payable solely from the assets of the Company at the absolute discretion of a
Majority in Interest of Members, subject to the requirements of the Delaware
Act.
9. Transfers; Restrictions.
(a) No LLC Interest or portion thereof may be Transferred by
any Member without the prior approval of a Majority in Interest of Members
(determined excluding the Member that is seeking to Transfer an LLC Interest or
portion thereof) in their sole discretion.
(b) The restrictions on Transfer described in this Agreement
shall apply to all LLC Interests now owned or hereafter acquired by a Member,
including LLC Interests acquired by reason of any dividend or other
distribution, additional issue of LLC Interests (including upon exercise of any
option, warrant or other right to acquire LLC Interests from the Company) and
acquisition of outstanding LLC Interests from another Person.
(c) Any Transfer or attempted Transfer of any LLC Interest in
violation of any the provisions of this Section 9 shall be void, and the Company
shall not record such Transfer on its books or treat any purported transferee of
such LLC Interest as the owner of such LLC Interest
for any purpose. The Board of Managers shall amend Schedule I hereto from time
to time to reflect Transfers made in accordance with, and as permitted under,
this Section 9.
10. Certain Members.
Each Member that is an entity that was formed for the purpose
of acquiring an LLC Interest or that has no substantial assets other than its
LLC Interests or any interest in any LLC Interest agrees that (a) shares of its
common stock or other instruments reflecting equity interests in such entity
(and the shares of common stock or other equity interests in any similar
entities controlling such entity) will note the restrictions contained in this
Agreement on the Transfer of LLC Interests as if such common stock or other
equity interests were LLC Interests and (b) no shares of such common stock or
other equity interests may be issued or Transferred to any Person other than in
accordance with the terms and provisions of this Agreement as if such common
stock or other equity interests were LLC Interests.
11. Withdrawal.
No Member shall have the right to withdraw from the Company
except with the consent of all of the Members (excluding the Member seeking to
withdraw) and upon such terms and conditions as may be specifically agreed upon
between the Company and the withdrawing Member. The provisions hereof with
respect to distributions upon withdrawal are exclusive, and no Member shall be
entitled to claim any further or different distribution upon withdrawal under
Section 18-604 of the Delaware Act or otherwise.
12. Dissolution.
(a) Subject to the provisions of Section 12(b), the Company
shall be dissolved and its affairs wound up and terminated upon the first to
occur of the following:
(i) the determination of the Board of Managers and a
Majority in Interest of Members to dissolve the Company; or
(ii) the occurrence of an Event of Withdrawal of a
Member or any other event causing a dissolution of the Company
under Section 18-801 of the Delaware Act.
(b) Notwithstanding the provisions of Section 12(a)(ii), the
occurrence of an Event of Withdrawal of a Member shall not dissolve the Company
if within ninety (90) days after the occurrence of such Event of Withdrawal of a
Member the business of the Company is continued by a Majority in Interest of
Members remaining after such Event of Withdrawal of a Member.
(c) Upon dissolution of the Company, the Company's affairs
shall be promptly wound up in accordance with the provisions of this Section 12.
The Company shall engage in no further business except as may be necessary, in
the reasonable discretion of the Board of Managers, to preserve the value of the
Company's assets during the period of dissolution and liquidation.
(d) Distributions to the Members in liquidation may be made in
cash or in kind, or partly in cash and partly in kind, as determined by the
Board of Managers.
(e) The Net Profits and Net Losses of the Company during the
period of dissolution and liquidation shall be allocated among the Members in
accordance with the provisions of Section 6.
(f) The assets of the Company (including proceeds from the
sale or other disposition of any assets during the period of dissolution and
liquidation) shall be applied as follows:
(i) First, to repay any indebtedness of the Company,
whether to third parties or to the Members, in the order of
priority required by law;
(ii) Next, to any reserves which the Board of
Managers reasonably deems necessary for contingent or
unforeseen liabilities or obligations of the Company (which
reserves when they become unnecessary shall be distributed in
accordance with the provisions of (iii) below); and
(iii) Next, to the Members ratably based upon the
positive capital account balance of each Member (after taking
into account all adjustments to the Members' capital accounts
required under Section 12(e)).
13. Members; Representations of Members; Representations of the
Company.
(a) The name and business, mailing or residence address and
LLC Interest of each of the Members of the Company as of the date of this
Agreement are set forth on Schedule I. Schedule I shall be amended from time to
time to reflect the names and business, mailing or residence address and LLC
Interest of each Person who shall become a Member after the date hereof and
changes to such information for existing Members.
(b) Upon the acquisition of an LLC Interest, each Member, in
each case severally as to himself or itself (and not as to any other Person),
makes the following representations and warranties to the Company with respect
to this Agreement and such LLC Interest:
(i) Such Member has full legal right, power and authority to
enter into this Agreement and to perform its obligations under this Agreement.
The execution, delivery and performance by such Member of this Agreement have
been duly authorized by all requisite action on the part of such Member. This
Agreement has been duly executed and delivered by such Member and is the valid
and binding obligation of such Member, enforceable against such Member in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium, and similar laws affecting creditors' rights generally
and subject to general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
(ii) The execution, delivery and performance by such
Member of this Agreement, the consummation of the transactions
contemplated hereby, and the compliance by such Member with
the provisions hereof, will not (i) violate, conflict with or
constitute (with notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or
acceleration) under, or result in the creation of any
Encumbrance upon such Member's properties or assets pursuant
to, the terms, conditions
or provisions of any agreement or other instrument or
obligation to which such Member is a party or by which such
Member or such Member's properties or assets are bound, or
(ii) violate any provision of law, statute, rule, regulation,
order, judgment, award, writ, injunction or decree applicable
to such Member or any of such Member's properties or assets.
As used herein, "Encumbrances" means security interests,
mortgages, liens, pledges, charges, reservations,
restrictions, equities, rights of first refusal and all other
encumbrances, whether or not relating to the extension of
credit or the borrowing of money.
(iii) No permit, authorization, consent or approval
of or by, or notification of or filing with, any Person
(governmental or private) is required in connection with the
execution, delivery or performance by such Member of this
Agreement, other than filings contemplated by this Agreement.
(iv) Such Member (A) has been furnished with or has
had access to the information such Member has requested from
the Company, (B) has had the opportunity to discuss with
management of the Company the intended business and financial
affairs of the Company and (C) has such knowledge and
expertise in financial and business matters and with respect
to investments in securities of privately held companies that
he or it is capable of utilizing the information made
available to him or it, to evaluate the merits and risks of an
investment in the Company and to make an informed investment
decision with respect thereto. Such Member is aware that his
or its purchase of such LLC Interest is highly speculative and
he or it is able, without impairing his or its financial
condition, to hold such LLC Interest for an indefinite period
of time and to suffer a complete loss of his or its
investment.
(v) Such Member recognizes that an investment in the
Company involves certain risks, and has taken full cognizance
of, and understands all of, the risk factors related to the
purchase of such LLC Interest. Such Member has consulted with
his or its professional, tax and legal advisors with respect
to the Federal, state, local and foreign income tax
consequences of his or its participation as a Member of the
Company.
(vi) Such Member is acquiring such LLC Interest for
his or its own account and not with a view to the resale or
further distribution thereof, nor with any present intent of
distributing the same, in any such case in violation of
Federal or state securities laws.
(vii) Such Member understands and acknowledges that
the offering of such LLC Interest has not been considered or
approved by any governmental or other entity.
(viii) Such Member understands that there is no
public market for such LLC Interest and that the
transferability of such LLC Interest is restricted.
(ix) Such Member understands that such LLC Interest
has not been registered or qualified for sale under the
Securities Act or otherwise (including under any applicable
state securities laws) and that such LLC Interest cannot be
offered for sale or sold by such Member or by anyone acting
for such Member's account or on such
Member's behalf without the registration of such LLC Interest
and/or the fulfillment of other regulatory requirements.
(x) Such Member understands that the exemption from
registration afforded by Rule 144 (the provisions of which are
known to such Investor) promulgated under the Securities Act
depends on the satisfaction of various conditions and that, if
applicable, Rule 144 may only afford the basis for sales under
certain circumstances only in limited amounts.
14. Administrative Matters.
(a) The Company hereby designates CFP Holdings, Inc. as the
"Tax Matters Partner" for purposes of Internal Revenue Code Section 6231 and the
regulations promulgated thereunder. The Tax Matters Partner shall promptly
advise each Member of any audit proceedings proposed to be conducted with
respect to the Company.
(b) It is the intention of the Members that the Company shall
be taxed as a "partnership" for Federal, state, local and foreign income tax
purposes. The Members shall take all reasonable actions, including the amendment
of this Agreement and the execution of other documents, as may reasonably be
required in order for the Company to qualify for and receive "partnership"
treatment for Federal, state, local and foreign income tax purposes.
(c) The fiscal year of the Company shall be the calendar year.
The books and records of the Company shall be maintained in accordance with GAAP
and Internal Revenue Code Section 704(b) and the regulations promulgated
thereunder.
15. Limitation on Liability.
The debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the Company, and no Member or Manager of the Company shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member or Manager.
16. Additional Members; Changes in LLC Interests.
(a) The Board of Managers shall have the right to cause the
Company to issue additional LLC Interests and to admit Additional Members upon
the acquisition of such LLC Interests upon such terms and conditions (including
but not limited to whether such LLC Interests shall be voting or nonvoting), at
such time or times, and for such capital contributions as shall be determined in
good faith by the Board of Managers. If, at any time after the date of this
Agreement, an Additional Member is admitted to the Company such Additional
Member shall, as a condition to its ownership of an LLC Interest, become party
to this Agreement by executing a counterpart hereof.
(b) If the Company issues an LLC Interest to a Person not then
a Member (an "Additional Member"), or if the LLC Interest of a then current
Member is increased (in either case other than to the extent of a Transfer of
all or a portion of the LLC Interest to another Member in accordance with
Section 9), then the LLC Interest then held by each other Member
shall be decreased by the number of percentage points equal to the percentage
interest represented by the LLC Interest issued to the Additional Member or the
number of percentage points by which the LLC Interest of the then current Member
is increased, as the case may be. Each other Member's pro rata share of such
decrease shall be the percentage amount determined by multiplying (x) the number
of percentage points equal to such new LLC Interest or such increase, as the
case may be, by (y) a fraction the numerator of which is the LLC Interest of
such other Member immediately prior to such issuance or increase and the
denominator of which is the aggregate of the LLC Interests of all such other
Members at such time. For the purposes of the immediately preceding sentence, in
any case in which a Member's LLC Interest is increasing, such Member shall be
treated as an other Member to the extent of his or her LLC Interest prior to
such increase. Any adjustment pursuant to this Section 16(b) shall be made on a
fully diluted basis, assuming that all warrants, options and other rights to
acquire LLC Interests have been exercised.
17. Severability.
If any provision of this Agreement shall be determined to be
illegal or unenforceable by any court of law, the remaining provisions shall be
severable and enforceable in accordance with their terms.
18. Notices.
All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or by telecopy or sent by
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or at such other address as may hereafter be designated
in writing by such party to the other parties:
(a) if to the Company, to:
QFAC, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President and Chief Executive Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Members, to their respective addresses set forth
on Schedule I hereto.
All such notices, requests, consents and other communications
shall be deemed to have been delivered and received (i) in the case of personal
delivery or delivery by telecopy, on the date of such delivery, (ii) in the case
of dispatch by nationally-recognized overnight courier, on the next business day
following such dispatch and (iii) in the case of mailing, on the fifth business
day after the posting thereof.
19. Modification.
Except as otherwise provided herein, neither this Agreement
nor any provisions hereof can be modified, changed, discharged or terminated
except by an instrument in writing signed by a Majority in Interest of Members.
20. Entire Agreement.
This Agreement and the other writings referred to herein
contain the entire agreement among the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings with
respect thereto.
21. Counterparts.
This Agreement may be executed in any number of counterparts,
and each such counterpart hereof shall be deemed to be an original instrument,
but all such counterparts together shall constitute but one agreement.
22. Governing Law.
This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice of law or conflict of law provision or rule (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.
IN WITNESS WHEREOF, the undersigned has duly executed this Operating
Agreement as of the date first written above.
CFP Holdings, Inc.
By: ________________________________
Name:
Title:
SCHEDULES AND ANNEXES
Schedules
Schedule I - Schedule of Members
Schedule II - Schedule of Initial Contributions
Annexes
Annex A - By-laws of the Company
Annex B - Certificate of Formation of the Company
SCHEDULE I TO
OPERATING AGREEMENT
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Members
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Name and Address
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CFP Holdings, Inc.
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SCHEDULE II TO
OPERATING AGREEMENT
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Initial Contributions
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Initial
Members LLC Interest Initial Contribution
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CFP Holdings, Inc. 100% $100
ANNEX A TO
OPERATING AGREEMENT
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By-laws of the Company
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(See Attached)
ANNEX B TO
OPERATING AGREEMENT
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Certificate of Formation
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(See Attached)