EXHIBIT 10.23
OPERATING AGREEMENT
OF
CASH TRANSACTIONS, L.L.C.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE GEORGIA SECURITIES ACT
OF 1973, AS AMENDED, IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION SET FORTH
IN SECTION 10-5-9(13) OF SUCH ACT. IN ADDITION, THESE SECURITIES HAVE NOT BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION IN RELIANCE
UPON AN EXEMPTION FROM SUCH REGISTRATION SET FORTH IN THE SECURITIES ACT OF 1933
PROVIDED BY SECTION 4(2) THEREOF, NOR HAVE THEY BEEN REGISTERED WITH THE
SECURITIES COMMISSION OF ANY OTHER APPLICABLE STATE IN RELIANCE UPON CERTAIN
EXEMPTIONS FROM REGISTRATION. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
PURPOSES ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT
AND IN A TRANSACTION WHICH IS EITHER EXEMPT FROM REGISTRATION UNDER SUCH ACTS OR
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS.
ARTICLE 1
DEFINITIONS
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The following terms used in this Operating Agreement shall have the
following meanings (unless otherwise expressly provided herein);
"Agreement." This Operating Agreement as originally executed and as
amended from time to time.
"Articles of Organization." The Articles of Organization of Cash
Transactions, L.L.C., as filed with the Secretary of State of Georgia, as the
same may be amended from time to time.
"Board of Directors." As defined in Section 5.01.
"Business of the Company." As defined in Section 15.01.
"Capital Account." A separate "Capital Account" shall be maintained
for each Member, and such Capital Account, as of any particular date, shall be
the sum of the following amounts:
(i) The amount of cash plus the agreed upon net fair market value (as
of the date
of contribution) of any other property that has been contributed by the Member
to the Company as of such date; plus
----
(ii) The aggregate amount of the Company's Net Profit or taxable
gain that has been allocated to such Member as of such date pursuant to Section
10.01 or 10.03 hereof; minus
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(iii) The aggregate amount of the Company's Net Loss that has been
allocated to such Member as of such date pursuant to Section 10.01 hereof; minus
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(iv) The sum of all distributions of cash and the agreed upon net
fair market value (as of the date of distribution) of any other property that
has been distributed to such Member by the Company as of such date.
A Member's Capital Account shall also be increased or decreased as of such
date to reflect any items described in Treasury Regulation 1.704-1(b)(2)(iv)
that are required to be reflected in such Member's Capital Account under such
Regulation and which are not otherwise taken into account in computing such
Capital Account under this definition.
"Capital Contribution." Any contribution, as defined in O.C.G.A.
14-11-101(4), to the capital of the Company in cash or property by a Member
whenever made.
"Capital Event." Shall mean any of the following:
(i) when proceeds are realized from a sale of all or a portion of
any property held by the Company as a capital asset;
(ii) when proceeds are realized as a result of re-financing all or a
portion of any property held by the Company as a capital asset;
(iii) any insured casualty with respect to all or any portion of
property owned by the Company to the extent that the proceeds
paid by reason thereof are not required to repair, restore or
improve such property; or
(iv) any condemnation, or sale in lieu of condemnation, of any
property owned by the Company to the extent that the proceeds
paid by reason thereof are not required to repair, restore or
improve such property.
"Change in Control of CTFS." As defined in Section 12.05.
"Change in Control of JRH." As defined in Section 12.06.
"Code." The Internal Revenue Code of 1986, as amended from time to time.
"Company." Cash Transactions, L.L.C.
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"CTFS." Community Trust Financial Services Corporation, a Georgia
corporation.
"Deadlock." As defined in Section 12.04.
"Distributable Cash." All cash, revenues and funds received by the
Company from Company operations, less the sum of the following to the extent
paid or set aside by the Company: (i) all principal and interest payments on
indebtedness of the Company and all other sums paid to lenders; (ii) all cash
expenditures incurred incident to the normal operation of the Company's
business; (iii) such Reserves as the Board of Directors deems necessary or
appropriate, in its sole discretion, to the proper operation of the Company's
business.
"Economic Interest." A Member's interest in the Company's capital, income,
gain, loss, deduction and credit, as the same may be adjusted from time to time
pursuant to this Agreement. A Member's Economic Interest does not include such
Member's Voting Interest. The initial Economic Interests of the Members,
expressed as percentages, are as follows:
Member Economic Interest
------ -----------------
JRH 51%
CTFS 49%
---
100%
"Entity." Any general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative or
association or any foreign trust or foreign business organization.
"Fair Market Value." As defined in Section 12.09.
"Fiscal Year." The Company's fiscal year. The first Fiscal Year shall
commence on the date hereof, and each succeeding Fiscal Year shall commence on
the date immediately following the last day of the immediately preceding Fiscal
Year. Each Fiscal Year shall end on the earlier to occur after the commencement
of such Fiscal Year of (i) December 31, (ii) the day immediately preceding the
"liquidation" of a Member's interest in the Company (within the meaning of
Treasury Regulation 1.704-1(b)(2)(ii)(g), (iii) the date immediately preceding
the date on which a distribution is made to the Members under Section
14.03(b)(4) hereof, or (iv) the date on which the Company is terminated under
Section 14.04 hereof.
"Georgia Act." The Georgia Limited Liability Company Act at O.C.G.A.
▇▇-▇▇-▇▇▇, et seq.
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"▇▇▇▇▇▇▇▇▇." ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual resident of the State
of Georgia.
"Initial Capital Contribution." The initial contribution to the capital of
the Company made by a Member pursuant to this Agreement.
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"JRH." JRH Diversified, Inc., a Georgia Corporation.
"Majority Interest." Voting Interests of Members which, taken
together, exceed fifty percent (50%) of the aggregate of all Voting Interests.
"Member." Each of the Persons who executes a counterpart of this Agreement
as a Member and each of the Persons who may hereafter become Members. If a
Person is a Member immediately prior to the purchase or other acquisition by
such Person of a Membership Interest, such Person shall have all the rights of a
Member with respect to such purchased or otherwise acquired Membership Interest.
"Member Dissolution Event." As defined in Section 14.01(a)(iii).
"Membership Interest." A Member's entire interest in the Company including
such Member's Voting Interest and Economic Interest.
"Net Profits" and "Net Losses." For the purposes of this Agreement, "Net
Profits" and "Net Losses" shall mean, for each taxable year or other period, an
amount equal to the taxable income or loss of the Company for such year or
period, determined in accordance with Code Section 703(a) with the following
adjustments:
(i) such Net Profits and Net Losses will be computed as if items of
tax-exempt income and non-deductible, non-capital expenditures
(under Code Section 705(a)(1)(B)) and 705(a)(2)(B)) were
included in the computation of taxable income or loss;
(ii) any adjustments which are required to compute Net Profit and Net
Loss in accordance with and pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv), and not otherwise taken into account
in computing Net Profits or Net Losses pursuant to this
definition;
(iii) any gain or loss resulting from any dispossession of the
property of the Company and any depreciation or amortization
with respect to the property of the Company which is credited to
the Capital Account of a Member (as a result of the contribution
of such property or a re-evaluation pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(f) at a value different
from the property's adjusted tax basis) shall be computed with
reference to such value notwithstanding that such value differs
from the adjusted tax basis of such property; and
(iv) any items specially allocated pursuant to Sections 10.02 and
10.03 hereof shall not be taken into account in computing Net
Profits or Net Losses.
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For the purpose of this definition, all items of income, gain, loss or
deduction required to be stated separately pursuant to Code Section 703(a)(1)
shall be included in the Net Profit or Net Loss of the Company.
"Permitted Transfer." As defined in Section 12.01.
"Person." Any Individual or Entity, and the heirs, executors,
administrators, legal representatives, successors, and assigns of such "Person"
where the context so permits.
"Prime Rate." The "prime" rate of interest as published in the "Money
Rates" column of the Wall Street Journal, Eastern Edition, on the day prior to
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the date of the note in question.
"Reserves." With respect to any fiscal period, funds set aside or amounts
allocated during such period to reserves which shall be maintained in amounts
deemed sufficient by the Board of Directors for working capital and to pay
taxes, insurance, debt service or other costs or expenses incident to the
ownership or operation of the Company's business.
"Territory." As defined in Section 15.01.
"Treasury Regulations" or "Regulations." The Federal Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Voting Interest." A Member's right to vote on, consent to or otherwise
participate in any decision or action of or by the Members, whether such right
is granted pursuant to this Agreement or the Georgia Act, as the same may be
adjusted from time to time pursuant to this Agreement. The initial Voting
Interests of the Members, expressed as percentages, are as follows:
Member Voting Interests
------ ----------------
JRH 51%
CTFS 49%
---
100%
"Withdrawing Member." As defined in Section 14.01(c).
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ARTICLE 2
FORMATION OF COMPANY
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2.01 Formation. On April 16, 1997, the Company was formed as a Georgia
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Limited Liability Company. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ acted as Organizer by executing and
delivering Articles of Organization to the Secretary of State of Georgia in
accordance with the provisions of the Georgia Act.
2.02 Name. The name of the Company is Cash Transactions, L.L.C.
----
2.03 Principal Place of Business. The principal place of business of the
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Company within the State of Georgia is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇. The Company may locate its place of business at any other place or places
as the Board of Directors may from time to time deem advisable.
2.04 Registered Office and Registered Agent. The Company's initial
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registered office shall be at the office of its registered agent which is
located at ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the name
of its initial registered agent at such address is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇. The
registered office and/or registered agent may be changed from time to time by
the Board of Directors by such means as is permitted under the Georgia Act.
2.05 Term. The term of the Company commenced on the date the Articles of
----
Organization were filed with the Secretary of State of Georgia and shall
continue thereafter until December 31, 2050, unless earlier terminated in
accordance with the provisions of this Operating Agreement or the Georgia Act.
ARTICLE 3
BUSINESS OF COMPANY
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3.01 Permitted Businesses. The business of the Company shall be:
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(a) To engage in any lawful business permitted to be engaged in
by limited liability companies under the Georgia Act;
(b) To exercise all powers necessary to or reasonably connected
with the Company's business which may be legally exercised by limited
liability companies under the Georgia Act; and
(c) To engage in all activities necessary, customary, convenient
or incident to any of the foregoing.
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ARTICLE 4
NAMES AND ADDRESSES OF MEMBERS
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The names and addresses of the Members are as follows:
Name Address
---- -------
JRH Diversified, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Community Trust Financial ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Services Corporation ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
ARTICLE 5
GOVERNANCE OF THE AFFAIRS OF THE COMPANY
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5.01 Board of Directors. Except as may be otherwise specifically provided
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by the Articles of Organization or this Agreement, the business and affairs of
the Company shall be managed under the direction of a board of directors
established pursuant to this Article 5 (the "Board of Directors"). In addition
to the powers and authority by this Agreement expressly conferred upon it, the
Board of Directors may exercise all such powers of the Company and do all such
lawful acts and things as are not by law, by this Agreement, or by the Articles
of Organization directed or required to be exercised or done by the Members.
Notwithstanding the foregoing, or anything else contained in this Agreement
to the contrary, in no event shall the Board of Directors or any officer of the
Company take any of the following actions without the written approval of
Members holding 100% of all Voting Interests:
(i) the raising of additional capital by the Company;
(ii) the borrowing of any monies by the Company (whether by loan,
capitalized lease or otherwise);
(iii) the transfer of anything of value of the Company to any Person
as security for any loan to the Company;
(iv) the amendment of this Agreement or the Articles of Organization;
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(v) the sale, exchange or other disposition, other than in the ordinary
course of the Company's business, of any assets of the Company with a value
(either individually or in the aggregate) in excess of $25,000;
(vi) the filing by the Company for bankruptcy, reorganization or other
protection under applicable debtor relief laws;
(vii) the taking of any action that would result in (a) the Company
becoming engaged in any activity that bank holding companies or their
subsidiaries are prohibited from engaging in under Regulation Y of the
Board of Governors of the Federal Reserve System or (b) a change in the
Company's primary business;
(viii) the payment of compensation to directors of the Company;
(ix) the taking of any action contemplated by O.C.G.A. Sections
14-11-308(b)(1)-(6) or 14-11-308(b)(8).
5.02 Composition of Board. The Board of Directors shall consist of five
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(5) natural persons each of whom shall be over 21 years of age. Directors need
not be residents of Georgia or Members of the Company. JRH, for so long as it
owns a 51% Voting Interest, shall have the right to appoint three individuals to
the Board of Directors. CTFS, for so long as JRH owns a 51% Voting Interest,
shall have the right to appoint two individuals to the Board of Directors. From
and after the time that JRH no longer owns a 51% Voting Interest, each
directorship shall be filled by the vote or consent of a Majority Interest.
Each director (whether appointed or elected at an annual meeting of Members
or otherwise) shall hold office until the annual meeting of Members held next
after his appointment or election and until a qualified successor shall be
appointed or elected, or until his earlier death, resignation, incapacity to
serve or removal.
5.03 Vacancies on the Board. In the event that, as a result of vacancies
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or for any other reason, there shall at any time be fewer than three (3)
qualified individuals serving on the Board of Directors, the Board of Directors
shall not have the power to act. If any vacancy shall occur among the directors
and there shall be three (3) or more qualified individuals remaining on the
Board of Directors, the remaining directors shall continue to act. Vacancies on
the Board of Directors may be filled at any time during the existence of such
vacancy by the Members. Individuals appointed or elected to fill vacancies shall
be appointed or elected in a manner that is consistent with the manner of
appointing or electing directors that is set forth in Section 5.02 hereof so
that the composition of the Board of Directors remains in compliance with said
Section 5.02.
5.04 Chairman. The directors may elect a Chairman of the Board of
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Directors who shall have such duties and such authority as shall be determined
by the Board of Directors.
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5.05 Committees of the Board. The Board of Directors, by resolution
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adopted by a majority of the entire Board, may designate one (1) or more
committees, each committee to consist of one (1) or more of the directors of the
Company, which shall have such name or names as may be determined from time to
time by the Board of Directors. The only power that any committee shall have
shall be the power to make recommendations to the Board of Directors and no
committee shall have any power or authority to act on behalf of the Board of
Directors or the Company.
The Board of Directors shall have the power at any time to remove any
member of any committee, with or without cause, and to fill vacancies in and to
dissolve any such committee.
5.06 Meetings of the Board. Each newly elected Board of Directors shall
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meet immediately following the close of the annual meeting of Members at which
they are elected. Regular meetings of the Board of Directors may be held without
notice at such time and place (within or without the State of Georgia) as shall
from time to time be determined by the Board of Directors. Special meetings of
the Board of Directors may be called by the President of the Company on not less
than fourteen (14) days notice by mail, telegram, cablegram or personal delivery
to each director and shall be called by the President or the Secretary of the
Company in like manner and on like notice on the written request of (i) any two
directors, (ii) ▇▇▇▇▇▇▇▇▇ or (iii) CTFS. Any such special meeting shall be held
at such time and place (within or without the State of Georgia) as shall be
stated in the notice of meeting. No notice of any meeting of the Board of
Directors need state the purposes thereof.
At all meetings of the Board of Directors, the presence of at least three
(3) directors shall be necessary and sufficient to constitute a quorum for the
transaction of business. The act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law, by the Articles of
Organization or this Agreement. In the absence of a quorum, a majority of the
directors present at any meeting may adjourn the meeting from time to time until
a quorum be had. Notice of any adjourned meeting need only be given by
announcement at the meeting at which the adjournment is taken.
Any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if a
written consent, describing the action taken, is signed by all members of the
Board of Directors or of such committee, as the case may be, and such written
consent is filed with the minutes of the proceedings of the Board of Directors
or committee.
5.07 Officers. The Board of Directors at its first meeting after each
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annual meeting of Members shall elect the following officers: a President, a
Vice President, a Secretary and a Treasurer. The Board of Directors at any time
and from time to time may appoint such other officers as it shall deem
necessary, including additional Vice Presidents (if more than one Vice President
is appointed, the Board may choose to designate one Vice President as Executive
Vice-
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President), one or more Assistant Vice-Presidents, one or more Assistant
Secretaries, and one or more Assistant Treasurers, who shall hold their offices
for such terms as shall be determined by the Board of Directors and shall
exercise such powers and perform such duties as shall be determined by the Board
of Directors.
Any number of offices may be held by the same person unless the Articles of
Organization or this Agreement otherwise provide; provided, however, that the
offices of President and Vice President shall be held by different persons. No
officer needs be a Member.
The salaries of the officers of the Company shall be fixed by the Board of
Directors, except that the Board of Directors may delegate to any officer or
officers the power to fix the compensation of any officer appointed in
accordance with the second sentence of this Section 5.07.
Each officer of the Company shall hold office until his successor is
chosen or until his earlier resignation, death or removal, or the termination of
his office. Any officer may be removed by the Board of Directors whenever in
its judgment the best interest of the Company will be served thereby.
5.08 President. The President shall be the chief executive officer of the
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Company and shall have general and active management of the business of the
Company and shall see that all orders and resolutions of the Board of Directors
are carried into effect. The President shall call meetings of the Members and
the Board of Directors to order and shall act as chairman of such meetings
unless a Chairman of the Board of Directors shall have been elected pursuant to
Section 5.04 hereof.
5.09 Vice Presidents. The Vice-Presidents shall perform such duties and
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exercise such powers as the Board of Directors shall request or delegate. One
Vice-President may be designated Executive Vice-President with such additional
duties as are prescribed by the Board of Directors. Assistant Vice-Presidents
shall have such powers, and shall perform such duties, as may be prescribed from
time to time by the Board of Directors, or the President.
5.10 Secretary. The Secretary shall attend all meetings of the Board of
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Directors and all meetings of the Members and record all votes and the minutes
of all proceedings in books to be kept for that purpose and shall perform like
duties for standing committees of the Board when required. He shall give, or
cause to be given, any notice required to be given of any meetings of the
Members or of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, under whose supervision he shall be. An
Assistant Secretary or Assistant Secretaries shall, in the absence or disability
of the Secretary, or at his request, perform his duties and exercise his powers
and authority.
5.11 Treasurer. The Treasurer shall have charge of and be responsible for
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all funds, securities, receipts and disbursements of the Company, and shall
deposit, or cause to be deposited, in the name of the Company, all monies or
other valuable effects, in such banks, trust companies or other depositories as
shall, from time to time, be selected by the Board of Directors; he shall render
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to the President and to the Board of Directors; whenever requested, an account
of the financial condition of the Company, and in general, he shall perform all
the duties incident to the office of a Treasurer of a business entity, and such
other duties as may be assigned to him by the Board of Directors, or the
President.
5.12 Absence of an Officer. In case of the absence of any officers of the
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Company, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may delegate, for the time being, any or all
of the powers or duties of such officer to any officer or to any director.
5.13 Indemnity of Directors and Officers. The Company shall indemnify
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each director or former director and each officer or former officer of the
Company to the fullest extent provided or permitted under the Georgia Act with
respect to their duties arising out of or connected with their capacities as
directors, officers, employees or agents of the Company.
5.14 Liability for Certain Acts. No director or officer of the Company
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has guaranteed, nor shall any director or officer have any obligation with
respect to, the return of a Member's Capital Contributions or profits from the
operation of the Company. No director or officer of the Company shall be liable
to the Company or to any Member for any loss or damage sustained by the Company
or any Member except loss or damage resulting from intentional misconduct or
knowing violation of law or a transaction for which such director or officer
received a personal benefit in violation or breach of the provisions of this
Agreement. Each director and officer of the Company shall be entitled to rely on
information, opinions, reports or statements, including but not limited to
financial statements or other financial data prepared or presented in accordance
with the provisions of O.C.G.A. ▇▇-▇▇-▇▇▇.
ARTICLE 6
RIGHTS AND OBLIGATIONS OF MEMBERS
---------------------------------
6.01 No Liability to Third Parties. Each Member's liability to third
-----------------------------
parties shall be limited as set forth in the Georgia Act.
6.02 Liability for Certain Acts. No Member has guaranteed nor shall any
--------------------------
Member have any obligation with respect to the return of a Member's Capital
Contributions or profits from the operation of the Company. No Member shall be
liable to the Company or to any Member for any loss or damage sustained by the
Company or any Member except loss or damage resulting from intentional
misconduct or knowing violation of law or a transaction for which such Member
received a personal benefit in violation or breach of the provisions of this
Agreement. Each Member shall be entitled to rely on information, opinions,
reports or statements, including but not limited to financial statements or
other financial data prepared or presented in accordance with the provisions of
O.C.G.A. ▇▇-▇▇-▇▇▇.
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6.03 Indemnity of Members. To the fullest extent permitted under
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O.C.G.A. ▇▇-▇▇-▇▇▇, the Company shall indemnify the Members and make advances
for expenses to them with respect to their duties (including fiduciary duties)
and liabilities arising out of or connected with their respective capacities as
Members.
6.04 List of Members. Upon written request of any Member, the Secretary
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of the Company shall provide a list showing the names, addresses and Membership
Interest of all Members and each director and officer of the Company and the
other information required by O.C.G.A. ▇▇-▇▇-▇▇▇ and maintained pursuant to
Section 11.02.
6.05 Priority and Return of Capital. Except as may be expressly provided
------------------------------
in Sections 9.01 and 14.03, no Member shall have priority over any other Member,
either as to the return of Capital Contributions or as to Net Profits, Net
Losses or distributions. This Section shall not apply to loans (as distinguished
from Capital Contributions) which a Member has made to the Company.
ARTICLE 7
MEETINGS OF MEMBERS
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All meetings of the Members shall be held at the principal offices of the
Company, or at such other place (within or without the State of Georgia) as may
be fixed from time to time by the Board of Directors.
An annual meeting of the Members shall be held each year on a date and a
time determined by the Board of Directors of the Company, at which the Members
shall appoint or elect a Board of Directors in accordance with Section 5.02
hereof and transact such other business as may properly be brought before the
meeting.
Special meetings of the Members, for any purpose or purposes, unless
otherwise prescribed by statute or the Articles of Organization, may be called
by the President, and shall be called by the President or the Secretary when so
directed by the Board of Directors, or at the request in writing of any two or
more directors, or at the request in writing of Members owning not less than 25
percent of the aggregate of all Voting Interests. Such request shall state the
purpose or purposes of the proposed meeting. Special meetings of Members shall
be held at such place and time (within or without the State of Georgia) as shall
be stated in the notice of meeting.
Notice of all meetings of Members shall be given to each Member not less
than fourteen (14) days prior to the date set for the meeting by mail, telegram,
cablegram or personal delivery.
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ARTICLE 8
CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS
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8.01 Members' Capital Contributions. Each Member shall contribute such
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amount as is set forth below as its Initial Capital Contribution.
Member Initial Capital Contribution
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JRH $ 51,000.00
CTFS $ 49,000.00
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TOTAL $100,000.00
===========
The Members acknowledge and agree that $46,800 of JRH's Initial Capital
Contribution will be in the form of cash and $4,200 of such Initial Capital
Contribution will be in the form of a contribution by JRH to the Company of all
of JRH's right, title and interest in and to the scrip machines identified on
Exhibit "A" attached hereto and incorporated herein by this reference (the
"Machines"). JRH hereby represents and warrants to the Company that JRH is the
sole and exclusive owner of the Machines, free and clear of all claims, liens
and encumbrances, and that JRH has full power and authority to transfer and
convey the Machines to the Company. JRH acknowledges and agrees that the
Machines will be transferred and conveyed to the Company pursuant to a Warranty
▇▇▇▇ of Sale in form and substance satisfactory to the Company.
The Members acknowledge and agree that all of CTFS' Initial Capital
Contribution will be in the form of cash.
8.02 Additional Contributions; Adjustment of Membership Interests.
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Except as set forth in Section 8.01, no Member shall be required to make any
Capital Contributions. In the event that the Board of Directors determines that
additional capital is necessary or appropriate in connection with the conduct of
the Company's business, the Board of Directors can recommend to the Members that
the Members approve the raising of such additional capital. In the event that
such recommendation is approved by 100% of all Voting Interests, the Board of
Directors shall proceed to raise the amount of additional capital so approved.
In such event, the Members shall be given the opportunity (but shall have no
obligation) to participate in such additional Capital Contributions on a pro
rata basis in accordance with their Economic Interests.
Upon the making of additional Capital Contributions to the Company, the
Voting Interest and Economic Interest of each Member shall be adjusted (i) such
that each Member's Voting Interest and Economic Interest is equal to the
percentage obtained by dividing (a) the total of all Capital contributions ever
made by the Member by (b) the total of all Capital Contributions ever
-13-
made by all Members, or (ii) alternatively, in such a manner as is unanimously
approved by all Members.
8.03 Withdrawal or Reduction of Members' Contributions to Capital.
------------------------------------------------------------
(a) A Member shall not receive out of the Company's property any part
of such Member's Capital Contribution until all liabilities of the Company,
except liabilities to Members on account of their Capital Contributions, have
been paid or there remains property of the Company (exclusive of Reserves)
sufficient to pay them.
(b) A Member, irrespective of the nature of such Member's Capital
Contribution, has only the right to demand and receive cash in return for such
Capital Contribution.
ARTICLE 9
DISTRIBUTIONS TO MEMBERS
------------------------
9.01 Distributions. The Board of Directors shall determine when and if
-------------
to distribute Distributable Cash to the Members. Distributable Cash, when
distributed, shall be distributed to the Members, pro rata, in proportion to
their respective Economic Interests. The Board of Directors shall use its
reasonable efforts to cause such distributions to be made quarterly. The Board
of Directors also shall use its reasonable efforts to cause to be distributed to
Members, at a minimum, Distributable Cash equal to the Company's Net Profit per
fiscal year, multiplied by the highest then applicable combined federal and
Georgia income tax rates. Notwithstanding anything herein to the contrary, upon
the dissolution of the Company, distributions occurring in connection with such
dissolution shall be in accordance with Article 14 hereof.
9.02 Limitation Upon Distributions. No distribution shall be made to
-----------------------------
Members if prohibited by O.C.G.A. ▇▇-▇▇-▇▇▇.
9.03 Interest On and Return of Capital Contributions. No Member shall be
-----------------------------------------------
entitled to interest on its Capital Contribution or to return of its Capital
Contribution, except as otherwise specifically provided for herein.
9.04 Loans to Company. No Member shall be required to make any loans to
----------------
the Company. In the event that the Board of Directors determines that it is
necessary or appropriate for the Company to borrow funds in connection with the
conduct of its business, the Board of Directors can recommend to the Members
that the Members approve the borrowing of such funds. In the event that such
recommendation is approved by 100% of all Voting Interests, the Board of
Directors shall proceed to borrow the amount of funds so approved. If the
borrowing of funds by the Company is so approved, the Company may borrow funds
from one or more Members provided that the interest rate and other terms of such
loans are no less favorable to the Company than the Company could otherwise
secure from a third party.
-14-
The making of any loan by a Member shall not create any additional
fiduciary duty as between the Member and the Company and shall not otherwise
restrict the right to foreclose, or restrict any other legal remedies which may
be exercised by the Member as may be provided to a third party creditor under
law.
ARTICLE 10
NET PROFIT, NET LOSS; DISTRIBUTIVE SHARES OF TAX ITEMS
------------------------------------------------------
10.01 General Allocations. After giving effect to all of the special
-------------------
allocations required by Section 10.02 hereof, the Net Profits of the Company for
any Fiscal Year shall be allocated to the Members in the following manner and in
the following order of priority:
(a) to the Members in proportion to, and to the extent of,
the amount by which zero exceeds the sum of (i) the balances
standing in their respective Capital Accounts as of the last day
of such Fiscal Year and (ii) the amount, if any, that each Member
is deemed to be obligated to restore pursuant to Regulations
Section 1.704-1(b);
(b) any such Net Profit in excess of the sum of the
amounts allocated to the Members under (a) above shall be
allocated to the Members in proportion to their respective
Economic Interests.
Any Net Loss of the Company shall be allocated to the Members in the
following manner and in the following order of priority:
(a) the first such loss shall be allocated to the Members, in
proportion to their respective Economic Interests, until the Capital Account of
each shall reach zero;
(b) any remaining loss shall be allocated to the Members in
accordance with their respective Economic Interests.
10.02 Special Allocations. Prior to making any allocations pursuant to
-------------------
Section 10.01 hereof, the following special allocations shall be made in the
following order of priority for either the Capital Account of any Member or for
federal income tax purposes, or both, as the case may be:
(a) Regulatory Allocations. In accordance with the ordering rules
----------------------
of Treasury Regulations Section 1.704-2(j), items of gross income and gain shall
be allocated for both capital account and federal income tax purposes in an
amount and in a manner that complies with the "chargeback" requirement of
Treasury Regulation Section 1.704-2(i)(4), the "qualified income offset"
requirement of Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4)-(6) and the
"minimum gain chargeback" requirement of Treasury Regulation Section 1.704-2(f).
In addition, any "partner
-15-
non-recourse deductions" within the meaning of Treasury Regulation Section
1.704-2(i)(2) attributable to "partner non-recourse debt" shall, for both
capital account and federal income tax purposes, be allocated to the Member who
bears the "economic risk of loss" for such debt in accordance with Treasury
Regulation Section 1.704-2(i).
(b) Section 704(c) Allocations. For federal income tax purposes but
--------------------------
not for capital account purposes, items of income, gain, loss, or deduction
attributable to Company property with respect to which there is a "Book-Tax
Disparity" shall be allocated among the Members in a manner (to the extent
determined to be feasible by the accountant for the Company) so as to eliminate
any Book-Tax Disparity, in accordance with Section 704(c)(1)(A) of the Code and
the then applicable Regulations thereunder.
For purposes hereof, a "Book-Tax Disparity" shall mean, with respect to any
property contributed by a Member to the Company or any property of the Company
that has been revalued pursuant to Treasury Regulation Section 1.704-
1(b)(2)(iv)(f), the difference, if any, as of any date of determination, between
the fair market value of such property as properly reflected in the Capital
Accounts of the Members (taking into account any previous revaluations) and the
adjusted basis thereof for federal income tax purposes.
10.03 Allocation of Gain Upon Capital Event. Any taxable gain resulting
-------------------------------------
from the occurrence of a Capital Event shall be allocated to the Members in the
following manner and in the following order of priority:
(a) to the Members in proportion to, and to the extent of, the
amount by which zero exceeds the sum of (i) the balances standing in their
respective Capital Accounts as of the last day of such Fiscal Year and (ii) the
amount, if any, that each Member is deemed to be obligated to restore pursuant
to Regulations Section 1.704-1(b);
(b) any such taxable gain in excess of the sum of the amounts
allocated to the Members under (a) above shall be allocated to the Members in
proportion to their respective Economic Interests;
provided, however, that if such a transaction represents a sale of substantially
all of the Company's remaining property, taxable gain shall be allocated in a
manner that will result in the Capital Accounts of the Members being brought to
zero upon the dissolution of the Company.
10.04 Guaranteed Payments. Interest paid on loans by any Member to the
-------------------
Company and all fees paid to any Member, shall, where permissible, be deducted
and treated as guaranteed payments under Section 707(c) of the Code.
10.05 754 Election. In the event of a transfer or assignment of all or
------------
any part of the interest of a Member, the Managers may elect, pursuant to
Section 754 of the Code, as amended (or any corresponding provision of
succeeding law), to adjust the basis of the property of the Company.
-16-
Except insofar as an election pursuant to Section 754 has been made with respect
to the interest of any Member, the determination of profits, gains, losses,
distributions and Capital Accounts shall be made as provided for in this
Agreement. With respect to any Member whose interest has been affected by an
election pursuant to Section 754, appropriate adjustments shall be made with
respect to the determination of profits, gains, losses, distributions and
Capital Accounts in accordance with Treasury Regulations promulgated under
Section 704(b) of the Code. Each Member agrees to provide the Company with all
information necessary to give effect to such election.
10.06 Adjustment of Capital Accounts. In the event of (a) the
------------------------------
acquisition of an interest in the Company by any new or existing Member in
exchange for more than a de minimis Capital Contribution, (b) the distribution
by the Company to a Member of more than a de minimis amount of property of the
Company other than money in exchange for all or a portion of such Member's
interest in the Company or (c) the termination of the Company for federal income
tax purposes pursuant to Section 708(b)(1)(B) of the Code, the property of the
Company shall be revalued in accordance with Treasury Regulations Section 1.704-
1(b)(2)(iv)(f) and the Capital Accounts of the Members shall be adjusted to
reflect how gain or loss would have been allocated to the Members had such
property been sold at its fair market value on the date of such revaluation.
ARTICLE 11
BOOKS AND RECORDS
-----------------
11.01 Accounting Period. The Company's accounting period shall be the
-----------------
calendar year.
11.02 Books of Account and Records. Proper and complete records and
----------------------------
books of account shall be kept or shall be caused to be kept by the Secretary
and the Treasurer of the Company in which shall be entered fully and accurately
all transactions and other matters relating to the Company's business in such
detail and completeness as is customary and usual for businesses of the type
engaged in by the Company. The books and records shall at all times be
maintained at the principal executive office of the Company and shall be open to
the reasonable inspection and examination of the Members or their duly
authorized representatives during reasonable business hours.
11.03 Records, Audits and Reports. At the expense of the Company, the
---------------------------
Manager shall maintain records and accounts of all operations and expenditures
of the Company. The Company shall keep at its principal place of business the
following records:
(a) A current list of the full name and last known address of each
Member, each director and each officer;
(b) Copies of records to enable a Member to determine the relative
voting rights of the Members;
-17-
(c) A copy of the Articles of Organization of the Company and all
amendments thereto;
(d) Copies of the Company's federal, state and local income tax
returns and reports, if any, for the three most recent years;
(e) Copies of this Agreement, together with any amendments
thereto;
(f) Copies of any financial statements of the Company for the
three most recent years.
11.04 Tax Returns. The Board of Directors shall cause the Company's
-----------
officers to have prepared and timely filed all tax returns required to be filed
by the Company pursuant to the Code and all other tax returns deemed necessary
and required in each jurisdiction in which the Company does business. Copies of
such returns, or pertinent information therefrom, shall be furnished to the
Members within a reasonable time after the end of the Company's Fiscal Year.
ARTICLE 12
TRANSFER RESTRICTION; BUYOUT PROVISIONS
---------------------------------------
12.01. General Prohibition on Transfers. Notwithstanding O.C.G.A.
-------------------------------
▇▇-▇▇-▇▇▇, except in the case of a Permitted Transfer, no Member shall have the
right either to:
(a) sell, assign, pledge, hypothecate, transfer, exchange or
otherwise transfer for consideration; or
(b) give, bequeath or otherwise transfer for no consideration
(whether or not by operation of law, except in the case of bankruptcy):
all or any part of its Membership Interest without the prior
written consent of all Members.
For purposes hereof, a "Permitted Transfer" shall mean a transfer by
a Member of all or a part of its Membership Interest in accordance with Sections
12.08 and 12.02, 12.03, 12.04, 12.05, 12.06 or 12.07 hereof.
12.02 Transfers to Affiliate or Trust. Notwithstanding anything in
-------------------------------
Section 12.01 hereof to the contrary, (i) CTFS or JRH may transfer all or any
portion of its Membership Interest to any corporation, partnership or limited
liability company in which the transferring Member (or, in the case of JRH,
▇▇▇▇▇▇▇▇▇) owns more than 50% of the voting interests and (ii) JRH may transfer
all or a portion of its Membership Interest to ▇▇▇▇▇▇▇▇▇ and (iii) if ▇▇▇▇▇▇▇▇▇
becomes a Member, ▇▇▇▇▇▇▇▇▇ may transfer all or a portion of his Economic
Interest to a trust with respect to which ▇▇▇▇▇▇▇▇▇ is the grantor and which is
for the benefit of one or more of ▇▇▇▇▇▇▇▇▇'▇ immediate family members.
-18-
12.03 Right of First Refusal.
----------------------
(a) If a Member (the "Selling Member") receives a bona fide offer
from an unrelated third party (the "Third Party Offeror") to purchase all or
part of his or its Membership Interest (the "Offered Interest"), then such
Selling Member shall be entitled to transfer the Offered Interest to the Third
Party Offeror only in accordance with this Section 12.03 and Section 12.08(a)
hereof.
(b) The Selling Member shall give all Members written notice by
certified mail (the "Notice") of his or its intention to sell the Offered
Interest. The Notice shall be accompanied by a copy of the written offer from
the Third Party Offeror containing the terms of the proposed purchase. The
Notice shall include the identity of the Third Party Offeror, the Membership
Interest to be transferred, the purchase price and the terms of payment. In
addition, the Notice shall constitute an offer by the Selling Member to sell his
Offered Interest to the other Members in accordance with the provisions of this
Section 12.03.
(c) Within thirty (30) days from the date the Notice was
postmarked, the nonselling Members shall hold a telephone or in-person
conference (the "Meeting") to determine whether, and if so, the manner in which
the Selling Member's offer will be accepted. The nonselling Members may accept
the Selling Member's offer to sell to them the Offered Interest only if some
combination of the nonselling Members purchases all of the Offered Interest. At
the Meeting, the following shall occur:
(i) Each nonselling Member shall be entitled to purchase up to
that portion of the Offered Interest determined by multiplying the
Offered Interest by a fraction, the numerator of which is the Voting
Interest of such nonselling Member and the denominator of which is
the aggregate Voting Interests of all nonselling Members. Each
nonselling Member shall state what portion, if any, of the Offered
Interest he or it elects to purchase pursuant to this subparagraph
(i).
(ii) In the event that some of the nonselling Members do not elect
to purchase the entire portion of the Offered Interest which they
are entitled to purchase pursuant to (i) above (the "Unwanted
Interest"), then the other nonselling Members shall then be entitled
to purchase up to that amount of the then Unwanted Interest
determined by multiplying the amount of the then Unwanted Interest
by a fraction, the numerator of which is the Voting Interest of such
other nonselling Member and the denominator of which is the
aggregate Voting Interests of all such other nonselling Members.
Each such other nonselling Member shall state what portion, if any,
of the then Unwanted Interest he or it elects to purchase pursuant
to this subparagraph (ii).
(iii) The provisions of subparagraph (ii) above shall be repeated
until either (x) no portion of the Offered Interest remains as to
which nonselling Members have not
-19-
elected to purchase, or (y) no other nonselling Member chooses
to purchase any additional portion of the remaining Unwanted
Interest.
(d) If the offer to sell all of the Offered Interest has been
accepted by some combination of nonselling Members, then the nonselling Member
that has elected to purchase the greatest amount of the Offered Interest shall
give notice to the Selling Member and all other purchasing Members of a date for
the closing of the purchase and sale. Such closing date shall be the thirtieth
(30th) day (or first business day thereafter, if such thirtieth (30th) day falls
on a non-business day) after the Meeting unless the Selling Member and all
purchasing Members otherwise agree in writing. The price for the Offered
Interest shall be paid upon the terms and conditions contained in the Notice.
If the consideration offered by the Third Party Offeror involves property
other than cash, the purchase and sale shall be made for cash in an amount equal
to the equivalent value of the property offered. The equivalent value of the
property shall be determined by written agreement between the Selling Member and
the purchasing Members. In the event that the Selling Member and the purchasing
Members cannot reach agreement on the equivalent value prior to the closing
date, such equivalent value will be determined by two appraisers, one chosen by
the Selling Member and one chosen by the purchasing Members. If the two
appraisal values differ by ten percent (10%) or less (such percentage difference
to be computed by subtracting the lesser of the appraisal values from the
greater of the appraisal values and dividing that difference by the greater of
the appraisal values), then the equivalent value of the property shall equal the
average of the two appraisal values. In the event that the two appraisal values
vary by more than ten percent (10%), a third appraiser shall be chosen by the
first two, and he shall conduct an independent appraisal of the property. The
three appraisals shall then be averaged, and if the average falls between the
values stated by the first and second appraisers, then that value shall be the
equivalent value. If the average of the three appraisals does not fall between
the values stated by the first and second appraisers, all three appraisers must
reappraise the property and the average of these three appraisals shall be the
equivalent value of the property. The cost of all such appraisals shall be borne
equally by (i) the Selling Member, and (ii) the purchasing Members, as a group.
At the closing of any purchase by the nonselling Members pursuant to this
Section 12.03, the purchasing Members shall deliver the consideration required
by this Section 12.03, and the Selling Member shall deliver evidence of the
Offered Interest.
(e) If all of the Offered Interest is not accepted by
nonselling Members at the Meeting, then the Selling Member may transfer the
Offered Interest to the Third Party Offeror pursuant to the terms of the Third
Party Offeror's written offer; provided, however, that if such transfer is not
effected within sixty (60) days after the date on which the Selling Member
became free to sell the Offered Interest to the Third Party Offeror, the Selling
Member and his or its remaining Membership Interest shall again be fully subject
to the provisions of this Section 12.03.
-20-
12.04 Deadlock.
---------
(a) Existence of Deadlock. In the event that (i) any action set
----------------------
forth in clauses (i) - (vii) or clause (ix) of the second paragraph of Section
5.01 hereof is approved by at least 40% of all Voting Interests, (ii) such
action is not approved by 100% of all Voting Interests and (iii) JRH and CTFS
disagree on whether such action should be approved or disapproved, then JRH and
CTFS, for a period of thirty (30) days, shall use good faith reasonable efforts
to resolve their disagreement with respect to such matter. If, at the end of
said thirty (30) day period, JRH and CTFS still disagree on whether the action
in question should be approved or disapproved, then a deadlock shall be deemed
to exist (herein referred to as a "Deadlock").
(b) Redemption Notice. In the event of a Deadlock, either JRH or
------------------
CTFS (the "Invoking Member") may exercise its rights under this Section 12.04 by
giving the other (the "Non-Invoking Member") notice (the "Redemption Notice")
that the Invoking Member is implementing the redemption procedures set forth in
this Section 12.04. To be effective, the Redemption Notice must be signed by the
Invoking Member and must be accompanied by a statement setting forth the
Invoking Member's statement of the gross value of the assets of the Company as
of the date of such Redemption Notice that is to be used for purposes of
determining the Redemption Price under this Section 12.04 (the "Redemption
Value"). The Redemption Value may be determined by the Invoking Member in its
sole and absolute discretion, and the Invoking Member shall have no
responsibility to the Non-Invoking Member to appraise the assets of the Company
or otherwise to establish a market value of the assets of the Company in
determining the Redemption Value.
(c) Election by Non-Invoking Member. Within sixty (60) calendar
--------------------------------
days after the receipt by the Non-Invoking Member of the Redemption Notice, the
Non-Invoking Member shall give Notice (the "Election Notice") to the Invoking
Member of the Non-Invoking Member's election either (i) to withdraw from the
Company or (ii) to cause the Invoking Member to withdraw from the Company, as
set forth in subsection 12.04(f) below. To be effective, the Election Notice of
the Non-Invoking Member must be signed by such Member. The failure of the Non-
Invoking Member to give an effective and timely Election Notice shall
conclusively be deemed an election by such Member to withdraw from the Company.
If the Non-Invoking Member elects to withdraw from the Company, the terms
"Continuing Member" and "Withdrawing Member" shall be deemed to refer to the
Invoking Member and the Non-Invoking Member, respectively. If the Non-Invoking
Member elects to cause the Invoking Member to withdraw from the Company, the
terms "Continuing Member" and "Withdrawing Member" shall be deemed to refer to
the Non-Invoking Member and the Invoking Member, respectively.
(d) Effect of Redemption Notice. The Redemption Notice shall
----------------------------
constitute the binding commitment of the Invoking Member to be either a
Continuing Member or a Withdrawing Member, and the Election Notice shall
constitute the binding commitment of the Non-Invoking Member to be either a
Continuing Member or a Withdrawing Member, depending upon the election made by
the Non-Invoking Member in the Election Notice.
-21-
(e) Redemption Price. The Redemption Price shall be equal to (i) the
----------------
Redemption Value, multiplied by (ii) the Economic Interest associated with the
Membership Interest of the Withdrawing Member. In addition, and as a condition
to the Withdrawing Member's obligation to transfer its Membership Interest
pursuant to this Section 12.04, the Continuing Member, at or prior to the
closing contemplated by Section 12.04(f), shall cause to be repaid to the
Withdrawing Member, the full outstanding balance (including principal and
interest) of any and all loans or advances made by the Withdrawing Member to the
Company.
(f) Closing of Redemption. The redemption pursuant to this Section 12.04
---------------------
shall be closed and consummated at the office of the principal place of business
of the Company, at 11:00 a.m., local time, on the forty-fifth (45th) calendar
day following receipt by the Invoking Member of the Election Notice (or if such
date is not a business day, the business day next following such date) (the
"Redemption Closing Date"). The Continuing Member and Withdrawing Member shall
on such date simultaneously consummate the redemption as follows:
(1) On or prior to the Closing Date, the Continuing Member shall have
caused to be repaid to the Withdrawing Member, the full outstanding balance
(including principal and interest) of any and all loans or advances made by the
Withdrawing Member to the Company.
(2) The Redemption Price, at the election of the Continuing Member, may be
paid in cash, by promissory note or with a combination of cash and a promissory
note. If a promissory note is delivered in full or partial payment of the
Redemption Price, such note shall be on such terms (including term, amortization
and interest rate) as the Continuing Member and the Withdrawing Member shall
agree; provided, however, if they cannot agree, then the note shall (a) be
payable in sixty (60) consecutive equal monthly installments of principal and
interest commencing on the first day of the month next following the month in
which the closing of the purchase occurs and (b) bear interest at a fixed rate
of interest equal to the Prime Rate plus 1%. Any such note shall be secured by
the grant of a security interest to the Withdrawing Member in the Membership
Interest owned by Withdrawing Member immediately prior to such Member's
withdrawal.
(3) The Redemption Price may be paid to the Withdrawing Member by the
Continuing Member and/or the Company. If the Company pays all or a portion of
the Redemption Price to the Withdrawing Member using a promissory note, then, at
the closing, the Continuing Member shall deliver to the Company an identical
note from the Continuing Member to the Company, which identical note shall be
pledged by the Company to the Withdrawing Member as additional security for the
Company's note; provided, however, that the Withdrawing Member shall have no
right to receive payments under the Continuing Member's note, or to exercise any
rights or remedies thereunder, until the Company shall default in payment of its
note to the Withdrawing Member.
(4) Subject to (i) the repayment to the Withdrawing Member of the full
outstanding balance of all loans and advances made by the Withdrawing Member to
the Company and (ii) the Withdrawing Member's receipt of payment of the
Redemption Price, the Withdrawing Member shall transfer to the Continuing Member
or the Company (as directed by the Continuing Member)
-22-
its entire interest in the Company free and clear of all liens, security
interests and competing claims; and the Withdrawing Member shall execute and
deliver to the Continuing Member or the Company (as directed by the Continuing
Member), and does hereby irrevocably constitute and appoint the Continuing
Member as its true and lawful attorney-in-fact to execute and deliver for and on
its behalf, such instruments of transfer, such evidence of due authorization,
execution and delivery, and such evidence of the absence of any liens, security
interests or competing claims encumbering the Withdrawing Member's interest in
the Company as the Continuing Member shall reasonably request on behalf of the
Company.
(5) Prior to the closing, the Company and the Continuing Member shall use
their respective best efforts to obtain releases of the Withdrawing Member from
any portion of the debts and liabilities of the Company for which the
Withdrawing Member has personal liability. If such releases cannot be obtained
by the Company or the Continuing Member at the time of closing, the Continuing
Member shall, at the time of closing, pay and satisfy, or cause the Company to
pay and satisfy, such debts and liabilities in full.
(6) The Members shall also execute and deliver at closing an amendment to
this Agreement reflecting the closing and consummation of the foregoing
redemption or purchase, or if the Company is being terminated, any filings
required by law.
(g) Assignment of Rights. If the purchase of a Member's interest
---------------------
in the Company pursuant to this Section 12.04 would cause a termination of the
Company, then, notwithstanding anything in this Agreement to the contrary, the
Member with the right to purchase under this Section 12.04 may assign such right
to any Person of its choice and such assignee may purchase the interest pursuant
to this Section 12.04 without the prior written consent of any other Members.
12.05 Change in Control of CTFS. In the event that CTFS should undergo a
--------------------------
"Change in Control of CTFS" (hereinafter defined), JRH shall have the option,
exercisable upon written notice within one hundred eighty (180) days following
such Change in Control of CTFS, to purchase all, but not less than all, of CTFS'
Membership Interest on the following terms and conditions.
The purchase price at which JRH shall be entitled to purchase CTFS'
Membership Interest shall be the Fair Market Value of such Membership Interest.
The purchase price shall be paid by delivery of JRH's promissory note containing
such terms (including term, amortization and interest rate) as the payor and
payee may agree to or, if they cannot agree, then the note shall (i) be payable
in sixty (60) consecutive equal monthly installments of principal and interest
commencing on the first day of the month next following the month in which the
closing occurs and (ii) bear interest at a fixed rate of interest equal to the
Prime Rate plus 1%. Said note shall be secured by a grant to the payee of a
security interest in the Membership Interest being so purchased; provided that,
if JRH complies with the provisions of Section 12.08(a) hereof, JRH shall be
entitled to all rights associated with such Membership Interest (including but
not limited to the right to vote and to a share of Company profits and losses)
until the occurrence of a default under said note.
-23-
For purposes of this Section 12.05, a "Change in Control of CTFS" shall be
deemed to have occurred if (i) a notice or an application is filed with the
Federal Reserve Board under the federal Bank Holding Company Act for permission
to acquire control of CTFS or (ii) more than fifty percent (50%) of CTFS'
outstanding common stock or equivalent in voting power of any class or classes
of outstanding securities of CTFS entitled to vote in the election of Directors
of CTFS, shall be acquired by any person.
12.06 Death or Disability of ▇▇▇▇▇▇▇▇▇; Change in Control of JRH. In the
-----------------------------------------------------------
event of (i) ▇▇▇▇▇▇▇▇▇'▇ death or (ii) ▇▇▇▇▇▇▇▇▇'▇ disability or (iii) a "Change
in Control of JRH" (hereinafter defined), CTFS shall have the option,
exercisable upon written notice within one hundred eighty (180) days following
▇▇▇▇▇▇▇▇▇'▇ death, ▇▇▇▇▇▇▇▇▇'▇ disability or such Change in Control of JRH, as
the case may be, to purchase all, but not less than all, of JRH's Membership
Interest on the following terms and conditions.
The purchase price at which CTFS shall be entitled to purchase JRH's
Membership Interest shall be the Fair Market Value of such Membership Interest.
The purchase price shall be paid by delivery of CTFS' promissory note containing
such terms (including term, amortization and interest rate) as the payor and
payee may agree to or, if they cannot agree, then the note shall (i) be payable
in sixty (60) consecutive equal monthly installments of principal and interest
commencing on the first day of the month next following the month in which the
closing occurs and (ii) bear interest at a fixed rate of interest equal to the
Prime Rate plus 1%. Said note shall be secured by a grant to the payee of a
security interest in the Membership Interest being so purchased; provided that,
if CTFS complies with the provisions of Section 12.08(a) hereof, CTFS shall be
entitled to all rights associated with such Membership Interest (including but
not limited to the right to vote and to a share of Company profits and losses)
until the occurrence of a default under said note.
For purposes of this Section 12.06, ▇▇▇▇▇▇▇▇▇ shall be deemed to have
suffered a disability if, for any reason, he shall be unable to perform his
normal duties on behalf of the Company for a period of 120 consecutive days.
▇▇▇▇▇▇▇▇▇'▇ normal duties shall consist of those duties, if any, ▇▇▇▇▇▇▇▇▇ was
performing on behalf of the Company on a regular basis immediately prior to the
commencement of said 120-day period. If ▇▇▇▇▇▇▇▇▇ does not perform duties on
behalf of the Company on a regular basis, it shall not be possible for him to
suffer a disability within the meaning of this Section 12.06.
For purposes of this Section 12.06, a "Change in Control of JRH" shall be
deemed to have occurred if ▇▇▇▇▇▇▇▇▇ shall, at any time, own less than a
majority of JRH's outstanding common stock or equivalent in voting power of any
class or classes of outstanding securities of JRH entitled to vote in the
election of Directors of JRH.
12.07 Cessation of ▇▇▇▇▇▇▇▇▇'▇ Active Involvement. In the event that
--------------------------------------------
▇▇▇▇▇▇▇▇▇ is no longer actively involved in the Company's business, CTFS shall
have the option to purchase all or a portion of JRH's Membership Interest in
accordance with the following terms and conditions.
If CTFS determines that ▇▇▇▇▇▇▇▇▇ is no longer actively involved in the
Company's
-24-
business within the meaning of this Section 12.07, CTFS shall so notify JRH in
writing. CTFS shall then have one hundred eighty (180) days from the date of
such notice within which to notify JRH, in writing, of CTFS' election to
exercise its purchase option pursuant to this Section 12.07 ("CTFS' Notice of
Exercise"). CTFS' Notice of Exercise shall also specify how much of JRH's
Membership Interest CTFS proposes to acquire. If CTFS notifies JRH that CTFS is
electing to acquire less than all of JRH's Membership Interest, JRH,
nevertheless, may require CTFS to acquire all of JRH's Membership Interest by
notifying CTFS ("JRH's Notice"), in writing within thirty (30) days of the date
of CTFS' Notice of Exercise, that JRH will require CTFS to purchase its entire
Membership Interest. CTFS may then elect to (i) purchase all of JRH's Membership
Interest or (ii) withdraw its notice of election to exercise its purchase option
pursuant to this Section 12.07. In either event, CTFS shall notify JRH of its
election within fifteen (15) days following receipt of JRH's Notice.
The purchase price at which CTFS shall be entitled to purchase all or a
portion of JRH's Membership Interest shall be the Fair Market Value of the
portion of the Membership Interest to be purchased. The purchase price shall be
paid by delivery of CTFS' promissory note containing such terms (including term,
amortization and interest rate) as the payor and payee may agree to or, if they
cannot agree, then the note shall (i) be payable in sixty (60) consecutive equal
monthly installments of principal and interest commencing on the first day of
the month next following the month in which the closing occurs and (ii) bear
interest at a fixed rate of interest equal to the Prime Rate plus 1%. Said note
shall be secured by a grant to the payee of a security interest in the portion
of the Membership Interest being so purchased; provided that, if CTFS complies
with the provisions of Section 12.08(a) hereof, CTFS shall be entitled to all
rights associated with such Membership Interest (including but not limited to
the right to vote and to a share of Company profits and losses) until the
occurrence of a default under said note.
For purposes of this Section 12.07, ▇▇▇▇▇▇▇▇▇ shall be deemed to be no
longer actively involved in the Company's business at such time as ▇▇▇▇▇▇▇▇▇ no
longer performs duties on behalf of the Company on a regular basis.
12.08 Conditions to Permitted Transfers.
----------------------------------
(a) In the event a Member transfers full and complete ownership of
all or part of its Membership Interest (whether such transfer is accomplished
with the written consent of the Members pursuant to Section 12.01 hereof or is a
Permitted Transfer), the Company shall continue and, except in the case of a
transfer contemplated by subparagraph (b) of this Section 12.08, the transferee
of such Membership Interest, upon compliance with the procedures set forth in
the immediately following sentence, shall be admitted to the Company as a Member
under the terms of this Agreement with the same rights and obligations to
participate in the management of the Company, the same rights in and to all
distributions made by the Company, in liquidation or otherwise, and the same
share of the Company's profits and losses for both financial accounting and
income tax purposes as the transferring Member had with respect to the
transferred Membership Interest. The procedures, referred to in the immediately
preceding sentence, with which a transferee must comply in order to be admitted
to the Company as a Member, are as follows:
-25-
(i) the transferor Member must have executed a written instrument of
transfer of such Membership Interest in form and substance satisfactory to the
Board of Directors;
(ii) the transferee must have executed a written agreement, in form and
substance satisfactory to the Board of Directors, to assume all of the duties
and obligations of the transferor Member under this Agreement and to be bound by
and subject to all of the terms and conditions of this Agreement;
(iii) the transferor Member and the transferee must have executed a
written agreement, in form and substance satisfactory to the Board of Directors,
to indemnify and hold the Company and the Board of Directors harmless from and
against any loss or liability arising out of the transfer;
(iv) upon request by the Board of Directors, the transferor must have
delivered to the Company a written opinion of counsel for the Company or of
other counsel reasonably satisfactory to the Board of Directors (which opinion
shall be obtained at the expense of the transferor) that such transfer will not
result in (a) a violation of applicable law or this Agreement, (b) the Company
being classified as an association taxable as a corporation, or (c) the Company
being deemed terminated pursuant to Code Section 708 or any comparable future
section of the Code; and
(v) unless otherwise waived by the Board of Directors, the Board of
Directors can, in its sole discretion, determine whether and to what extent
either the transferor or transferee shall individually be responsible for all
the expenses incurred by the Company in connection with the transfer of the
Membership Interest and admission of the transferee to the Company.
A transferee who does not become a substituted Member shall be treated
merely as an assignee of an Economic Interest and will be entitled to receive
only that portion of the distributions or allocations to which his transferor
would have been entitled with respect to the transferred interest, and such
transferee will not be entitled to vote on any matter and any Voting Interest
that the transferor purported to transfer to him will not be considered to be
outstanding for any purpose.
(b) In the event of a transfer by ▇▇▇▇▇▇▇▇▇ of all or a portion of
his Economic Interest pursuant to clause (iii) of Section 12.02, the transferee
shall merely be an assignee of the Economic Interest so transferred and shall
have no right to vote on any matter. The transferee shall not be deemed a Member
of the Company. The transferee also shall not be permitted to transfer all or
any portion of the Economic Interest transferred to it by ▇▇▇▇▇▇▇▇▇ without the
prior written consent of all Members unless such transfer is (i) being effected
in connection with a transfer by JRH or ▇▇▇▇▇▇▇▇▇ of all or a portion of their
remaining Membership Interest pursuant to Section 12.03, 12.04, 12.06 or 12.07
hereof and (ii) made in favor of the same transferee to whom JRH or ▇▇▇▇▇▇▇▇▇ is
transferring all or a portion of his Membership Interest pursuant to any of said
Sections.
In connection with, and as a condition to, any transfer by ▇▇▇▇▇▇▇▇▇ of all
or a portion of his Economic Interest pursuant to clause (iii) of Section 12.02,
the transferee must execute a written
-26-
agreement, in form and substance satisfactory to the Board of Directors,
acknowledging and agreeing that the Economic Interest so transferred remains
subject to all of the terms and conditions of this Agreement including, but not
limited to, the right of CTFS or the Company to acquire all or a portion of such
Economic Interest pursuant to Sections 12.03, 12.04, 12.06 and 12.07 hereof.
12.09 Fair Market Value. For purposes of Sections 12.05, 12.06 and 12.07
------------------
hereof, the term "Fair Market Value" shall mean the fair market value of the
interest being purchased, determined in accordance with the following
procedures, as of the last day of the month in which the purchasing party gives
notice to the selling party of its election to exercise its right to purchase.
Promptly following the purchasing party giving notice to the selling party
of its election to exercise its right to purchase, the purchasing party and the
Selling party shall each use their good faith efforts to mutually agree upon a
"Valuation Firm" (hereinafter defined) in accordance with the last paragraph of
this Section 12.09. Promptly following the selection of the Valuation Firm in
accordance with the last paragraph of this Section 12.09, the purchasing party
shall notify the Valuation Firm to promptly proceed with the determination of
Fair Market Value pursuant to this Section 12.09.
The Valuation Firm shall promptly proceed to make a determination of the
fair market value of the Company (the "Company's Value") using a combination of
valuation methods including, but not limited to (i) discounted cash flow
analysis, (ii) comparable transaction analysis and (iii) comparison of the
Company to values of comparable public companies; provided, however, that the
Valuation Firm may choose not to utilize any of the foregoing methods if, in its
reasonable professional judgement, such method(s) would not be relevant in
determining the fair market value of the Company. The Valuation Firm, using its
reasonable professional judgment, shall then reconcile the different values
generated by the different valuation methods utilized by it and the result of
such reconciliation shall be the Company's Value. The Fair Market Value of the
interest being purchased shall then be determined by multiplying (i) the
Company's Value by (ii) the Economic Interest associated with the Membership
Interest being purchased.
All costs associated with the determination of Fair Market Value pursuant
to this Section 12.09 shall be borne by the Company.
For purposes of this Section 12.09, the term "Valuation Firm" shall mean
such nationally recognized investment banking firm upon which the purchasing
party and the selling party shall mutually agree or, if they cannot reach such
agreement within ten (10) days following the date on which the purchasing party
gives notice to the selling party of its election to exercise its right to
purchase, then ▇. ▇. ▇▇▇▇▇▇▇▇ & Co., or its successor, shall be deemed selected
as the Valuation Firm.
12.10 Closing; Assignment of Rights. The closing of any purchase pursuant
------------------------------
to Section 12.05, 12.06 or 12.07 hereof shall be held at the office of the
principal place of business of the Company, the exact time and date of which
shall be determined by the purchasing party by notice given to the selling party
at least 30 days prior to the date set for the closing. The closing shall in
-27-
no event be later than sixty (60) days following the final determination of Fair
Market Value pursuant to Section 12.09 hereof.
At the closing, (i) the selling party shall transfer all of the Membership
Interest being sold to the purchasing party (free and clear of all liens,
security interests and competing claims), shall execute all instruments of
transfer necessary to effect the transfer contemplated hereunder and shall do
all other things, if any, required by Section 12.08(a) hereof and (ii) the
purchasing party shall pay to the selling party the purchase price in the manner
required by Section 12.05, 12.06 or 12.07, as the case may be, and shall do all
other things, if any, required by Section 12.08(a) hereof.
If a purchase pursuant to Section 12.05, 12.06 or 12.07 as the case may be,
results in a Member no longer owning any Membership Interest then, in such
event, prior to the closing, the purchasing party shall use its best efforts to
obtain releases of such Member from any portion of the debts or liabilities of
the Company for which such Member has personal liability. If such releases
cannot be obtained by the time of closing, the purchasing party shall, at the
time of closing, pay and satisfy, or cause to be paid and satisfied, such debts
and liabilities in full.
If the purchase of a Member's interest in the Company pursuant to Section
12.05, 12.06 or 12.07 would cause a termination of the Company, then,
notwithstanding anything in this Agreement to the contrary, the Member with the
right to purchase under the applicable Section may assign such right to any
Person of its choice and such assignee may purchase the interest pursuant to the
applicable Section without the prior written consent of any other Members.
ARTICLE 13
ADDITIONAL MEMBERS
------------------
From the date of the formation of the Company, any Person approved by 100%
of all Voting Interests may become a Member of the Company by the issuance by
the Company of Membership Interests for such consideration as the Members by the
vote of 100% of all Voting Interests shall determine, subject to the terms and
conditions of this Agreement. No new Members shall be entitled to any
retroactive allocation of losses, income or expense deductions incurred by the
Company. The Board of Directors may, at its option, at the time a Member is
admitted, close the Company books (as though the Company's tax year had ended)
or make pro rata allocations of loss, income and expense deductions to a new
Member for that portion of the Company's tax year in which a Member was admitted
in accordance with the provisions of Section 706(d) of the Code and Treasury
Regulations promulgated thereunder.
-28-
ARTICLE 14
DISSOLUTION AND TERMINATION
---------------------------
14.01 Dissolution.
-----------
(a) The Company shall be dissolved upon the occurrence of any of
the following events:
(i) when the period fixed for the duration of the Company
shall expire pursuant to Section 2.05 hereof;
(ii) by the unanimous written agreement of all Members; or
(iii) unless all of the Voting Interests held by the
remaining Members elects to continue the business of the Company prior to or
within ninety (90) days after a Member Dissolution Event, as defined below, upon
the withdrawal, removal, bankruptcy, insolvency, death or incompetency of a
Member, the sale, other transfer or redemption of a Member's Membership
Interest, or the occurrence of any other event which constitutes an "event of
dissociation" as defined in the Georgia Act, O.C.G.A. 14-11-101(7) (any of the
foregoing being hereinafter referred to as a "Member Dissolution Event");
provided, however, that a transfer of a Membership Interest which is permitted
by Article 12 hereof shall not constitute a Member Dissolution Event.
---
(b) If a Member suffers, incurs or occasions a Member Dissolution
Event, then the Member's trustee, executor, administrator, guardian,
conservator, or other legal representative may exercise all of the Member's
rights in the Member's Economic Interest for the purpose of settling his estate
or administering his property, but shall not become a Member with a right to
vote or otherwise participate in the management of the Company unless such
transfer occurs pursuant to Article 12 or unless admitted as a substitute Member
by the consent of all of the other Members' Voting Interests.
(c) Notwithstanding O.C.G.A. 14-11-601(c), except as otherwise
expressly permitted in this Agreement, a Member shall not withdraw from the
Company or take any other action which causes such Member to withdraw from the
Company. A Member who withdraws or who otherwise suffers, incurs or occasions a
Member Dissolution Event (a "Withdrawing Member") regardless of whether such
Member Dissolution Event was the result of a voluntary act by such Member, shall
not be entitled to receive any distributions to which such Member would not have
been entitled had such Member remained a Member, and such distributions shall be
distributable to such Member only at the time (if any) such distributions would
have been made had the Withdrawing Member remained a Member.
14.02 Effect of Dissolution. Upon dissolution, the Company shall
---------------------
cease to carry on its business, except as permitted by O.C.G.A. ▇▇-▇▇-▇▇▇ and
▇▇-▇▇-▇▇▇. Upon dissolution, the
-29-
Board of Directors shall cause the Company's officers to file a statement of
commencement of winding up pursuant to O.C.G.A. ▇▇-▇▇-▇▇▇ and publish the notice
permitted by O.C.G.A. ▇▇-▇▇-▇▇▇.
14.03 Winding up, Liquidation and Distribution of Assets.
--------------------------------------------------
(a) Upon dissolution, an accounting shall be made by the
Company's independent accountants of the accounts of the Company and of the
Company's assets, liabilities and operations, from the date of the last previous
accounting until the date of dissolution. The Board of Directors shall cause the
Company's officers to immediately proceed to wind up the affairs of the Company.
(b) If the Company is dissolved and its affairs are to be
wound up, the Board of Directors shall cause the Company's officers to:
(1) Sell or otherwise liquidate all of the Company's
assets as promptly as practicable (except to the extent the Board of Directors
may determine to distribute any assets to the Members in kind),
(2) Allocate any profit or loss resulting from such
sales to the Members in accordance with Article 10 hereof,
(3) Discharge all liabilities of the Company, including
liabilities to Members who are creditors, to the extent otherwise permitted by
law, other than liabilities to Members for distributions, and establish such
Reserves as may be reasonably necessary to provide for contingencies or
liabilities of the Company,
(4) Distribute the remaining assets in the following
order:
(i) If any assets of the Company are to be
distributed in kind, the net fair market value of such assets as of the date of
dissolution shall be determined by independent appraisal or by unanimous
agreement of the Members. Such assets shall be deemed to have been sold as of
the date of dissolution for their fair market value, and the Capital Accounts of
the Members shall be adjusted, pursuant to the provisions of this Agreement to
reflect such deemed sale.
(ii) The remaining assets shall be distributed to
the Members, either in cash or in kind, as determined by the Board of Directors,
in proportion to the positive balance (if any) of each Member's Capital Account
(as determined after taking into account all Capital Account adjustments for the
Company's taxable year during which the liquidation occurs), with any assets
distributed in kind being valued for this purpose at their net fair market
value. Any such distributions to the Members in respect of their Capital
Accounts shall be made in accordance with the time requirements set forth in
Section 1.704-1(b)(2)(ii)(b)(2) of the Treasury Regulations.
-30-
(c) Notwithstanding anything in this Agreement to the contrary, upon
a liquidation within the meaning of Section 1-704-1(b)(2)(ii)(g) of the Treasury
Regulations, if any Member has a deficit Capital Account (after giving effect to
all contributions, distributions, allocations and other Capital Account
adjustments for all taxable years, including the year during which such
liquidation occurs), such Member shall have no obligation to make any Capital
Contribution, and the negative balance of such Member's Capital Account shall
not be considered a debt owed by such Member to the Company or to any other
Person for any purpose whatsoever.
(d) The Board of Directors shall cause the Company's officers to
comply with all applicable requirements of applicable law pertaining to the
winding up of the affairs of the Company and the final distribution of its
assets.
14.04 Certificate of Termination. When all debts, liabilities and
--------------------------
obligations have been paid and discharged or adequate provisions have been made
therefor and all of the remaining property and assets have been distributed to
the Members, a Certificate of Termination may be executed and filed with the
Secretary of State of Georgia in accordance with O.C.G.A. ▇▇-▇▇-▇▇▇.
ARTICLE 15
ADDITIONAL COVENANTS
--------------------
15.01 Noncompete. Each Member hereby agrees that for so long as such
-----------
Member owns any Voting Interest or Economic Interest, such Member will not,
directly or indirectly, on such Member's behalf or on behalf of any Person other
than the Company (i) engage in the "Business of the Company" (hereinafter
defined) or (ii) own any interest in, or serve as an officer, director or
employee of, or consultant or advisor to, any Person who engages in the Business
of the Company.
Each Member hereby further agrees that for a period of three (3) years
after the date on which such Member no longer owns any Voting Interest or
Economic Interest, such Member will not, directly or indirectly, on such
Member's behalf or on behalf of any Person other than the Company (i) engage in
the Business of the Company anywhere in the "Territory" (hereinafter defined) or
(ii) own any interest in, or serve as an officer, director or employee of, or
consultant or advisor to, any Person who engages in the Business of the Company
anywhere in the Territory.
▇▇▇▇▇▇▇▇▇ hereby agrees that for so long as JRH, ▇▇▇▇▇▇▇▇▇ or any person or
entity controlled by ▇▇▇▇▇▇▇▇▇ owns any Voting Interest or Economic Interest,
▇▇▇▇▇▇▇▇▇ will not, directly or indirectly, on his own behalf or on behalf of
any Person other than the Company (i) engage in the Business of the Company or
(ii) own any interest in, or serve as an officer, director or employee of, or
consultant or advisor to, any Person who engages in the Business of the Company.
▇▇▇▇▇▇▇▇▇ hereby further agrees that for a period of three (3) years after
the date on which neither JRH nor ▇▇▇▇▇▇▇▇▇ any longer owns any Voting Interest
or Economic Interest, ▇▇▇▇▇▇▇▇▇ will not, directly or indirectly, on ▇▇▇▇▇▇▇▇▇'▇
behalf or on behalf of any Person other than the
-31-
Company (i) engage in the Business of the Company anywhere in the Territory or
(ii) own any interest in, or serve as an officer, director or employee of or
consultant or advisor to, any Person who engages in the Business of the Company
anywhere in the Territory.
Nothing contained in this Section 15.01 shall be deemed or construed
to prohibit a Member or ▇▇▇▇▇▇▇▇▇ from (i) owning a passive investment of less
than 5 percent of the outstanding equity of an entity that engages in the
Business of the Company or (ii) conducting the Business of the Company through
the Company franchises that such Member may acquire pursuant to Section 15.02
hereof.
For purposes of this Section 15.01, "Business of the Company" shall mean
selling, leasing or servicing machines that disburse cash or cash equivalents.
For purposes of this Section 15.01, "Territory" shall mean those counties
in those States that are listed on Exhibit "B" attached hereto, as said Exhibit
"B" may be updated from time to time in accordance with the immediately
following sentence. The Board of Directors shall from time to time update
Exhibit "B" attached hereto so that it at all times lists the counties and
States in which the Company (i) is then conducting the Business of the Company
and (ii) has conducted the Business of the Company at any time during the
preceding twelve (12) months.
15.02 Franchises. If the Company should elect to franchise its business,
-----------
then following the establishment by the Company of franchise territories, JRH
and CTFS each shall have the right to receive, at no initial cost, three (3)
franchise territories located outside the State of Georgia. These franchise
territories shall be allocated as follows. The first franchise territory to be
offered by the Company outside the State of Georgia may be sold by the Company
to any Person other than ▇▇▇▇▇▇▇▇▇, JRH or CTFS or any entity controlled by
▇▇▇▇▇▇▇▇▇, JRH or CTFS, or may be developed by the Company. The second franchise
territory to be offered by the Company outside the State of Georgia shall be
offered to JRH at no initial cost. The third franchise territory to be offered
by the Company outside the State of Georgia shall be offered to CTFS at no
initial cost. This same pattern of allocating franchise territories shall be
repeated with respect to the fourth through ninth franchise territories to be
offered by the Company outside the State of Georgia so that JRH and CTFS will
each be offered three (3) franchise territories outside the State of Georgia.
It is the intent of the Members that, once acquired by JRH or CTFS, as the
case may be, such franchise territories will be operated under franchise
agreements with the Company that will provide to the Company, in all material
respects, the same economic benefit as is provided to the Company by franchises
operated on an arm's length basis by third parties.
JRH may assign its rights under this Section 15.02 to ▇▇▇▇▇▇▇▇▇ or to any
entity controlled by ▇▇▇▇▇▇▇▇▇ or JRH. CTFS may assign its rights under this
Section 15.02 to any entity controlled by CTFS.
-32-
ARTICLE 16
SECURITIES REPRESENTATIONS
--------------------------
The undersigned Members acknowledge that their Membership Interests are
securities and, further, acknowledge that the Company is relying on the
undersigneds' representations and warranties set forth in this Article 16, in
part, as the basis for exemptions from the registration requirements of federal
and state securities laws that are applicable to the Membership Interests.
16.01 Residence. Each of the undersigned Members is a bona fide resident
---------
of the State of Georgia, having his or her principal residence in such state or,
if a Member is not a natural person, having its principal place of business in
such state.
16.02 Investment Intent. Each of the undersigned Members is acquiring the
-----------------
Membership Interests for investment for his, her or its own account with no
present intent to directly or indirectly resell, transfer, distribute or
participate in a distribution of the Membership Interests or any portion
thereof. If the undersigned Member is a corporation, partnership, trust or other
form of business organization, the undersigned Member was not formed for the
specific purpose of acquiring its Membership Interest.
16.03 No Representations From Company. No Member is acquiring the
-------------------------------
Membership Interests based upon any representation, oral or written, by the
Company or any representative of the Company with respect to the future value
of, income from, or tax consequences relating to the Membership Interests but
rather upon an independent examination and judgment as to the prospects of the
Company. Further, each of the undersigned Members acknowledges that no federal
or state administrative entity responsible for securities registration or
enforcement has made any recommendation or endorsement of the Membership
Interests or any findings as to the fairness of an investment in the Membership
Interests.
16.04 Knowledge and Experience. To the extent that the undersigned
------------------------
believe necessary, each of the undersigned Members has been represented by a
purchaser representative (who has been selected by such Member and who is not
affiliated with or compensated by the Company or any of its affiliates)
concerning such Member's investment in the Company. The undersigned and/or the
undersigned's purchaser representative have sufficient knowledge and experience
in business and financial matters to evaluate the Company, to evaluate the risk
of an investment in the Company, to make an informed investment decision with
respect thereto, and to protect the undersigned's interest in connection with
the undersigned's acquisition of his or her Membership Interest.
16.05 Access to Information. The undersigned Members and/or the
---------------------
undersigned's purchaser representatives have received and reviewed such
financial information and records of the Company as the undersigned and/or the
undersigneds' purchaser representatives deemed necessary,
-33-
and the Company has made available to the undersigned and/or the undersigneds'
purchaser representatives the opportunity to ask questions of, and to receive
answers from, representatives of the Company and to obtain additional
information relative to the Company and the undersigneds' investment therein to
the extent the Company possesses such information or could acquire it without
unreasonable effort or expense. All such materials and information requested by
the undersigned and/or the undersigneds' purchaser representatives have been
made available and examined by the undersigned and/or the undersigneds'
purchaser representatives.
16.06 Membership Interests Not Registered. The undersigned Members
-----------------------------------
understand and acknowledge that the Membership Interests have not been
registered for sale under the federal Securities Act of 1933, as amended (the
"1933 Act"), the Georgia Securities Act of 1973, as amended (the "Georgia Act"),
or any other state securities laws (collectively, the "state securities acts")
and that the Membership Interests are being issued and sold by the Company in
reliance upon exemptions from the registration requirements of such acts,
including, but not necessarily limited to, the exemptions contained in Section
4(2) of the 1933 Act and Section 10-5-9(13) of the Georgia Act. The undersigned
Members understand and agree that the Company may refuse to permit any proposed
sale, transfer, pledge or other disposition of the Membership Interests except
pursuant to an effective registration statement under the 1933 Act and any
applicable state securities acts or upon the issuance to the Company of an
opinion of counsel, or the submission to the Company of such other evidence,
satisfactory to the Company that such proposed sale, transfer, pledge or other
disposition of the Membership Interests will not be in violation of the 1933 Act
and any applicable state securities acts.
The undersigned Members understand and agree that for a period of at least
two years from the date of issuance of the Membership Interests stop-transfer
instructions will be noted on the appropriate records of the Company. The
undersigned understand that the Company is under no obligation to register the
Membership Interests under the 1933 Act or any state securities act or to take
any other action necessary to comply with an available exemption or regulation
under any such acts (including Rule 144 under the ▇▇▇▇ ▇▇▇) in order to permit
the undersigned to sell, transfer or otherwise dispose of the Membership
Interests. Accordingly, the undersigned recognize that the Membership Interests
will not be freely transferable and understand and acknowledge that the
undersigned must continue to bear the economic risk of the investment in the
Membership Interests for an indefinite period.
16.07 Ability to Bear Risk. Each of the undersigned Members can bear the
--------------------
economic risk of losing his, her or its entire investment in the Membership
Interests. Each Member's proposed investment in the Membership Interests is not
disproportionate to his, her or its net worth. Each Member has adequate means of
providing for his, her or its current needs and possible contingencies without
regard to his, her or its investment in the Membership Interests, and no Member
has any need for liquidity in his, her or its investment in the Membership
Interests.
-34-
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.01 Application of Georgia Law. This Agreement, and the application or
--------------------------
interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of Georgia, and specifically the Georgia Act.
17.02 No Action for Partition. No Member has any right to maintain
-----------------------
any action for partition with respect to the property of the Company.
17.03 Execution of Additional Instruments. Each Member hereby agrees
-----------------------------------
to execute such other and further statements of interest and holdings,
designations, powers of attorney and other instruments necessary to comply with
any laws, rules or regulations.
17.04 Construction. Whenever the singular number is used in this
------------
Agreement and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa.
17.05 Headings. The headings in this Agreement are inserted for
--------
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent or intent of this Agreement or any provision hereof.
17.06 Waivers. The failure of any party to seek redress for
-------
violation of or to insist upon the strict performance of any covenant or
condition of this Agreement shall not prevent a subsequent act which would have
originally constituted a violation, from having the effect of an original
violation.
17.07 Rights and Remedies Cumulative; Injunctive Relief. Except as
-------------------------------------------------
otherwise expressly provided herein, the rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive the right to use any or all other remedies. Except
as otherwise expressly provided herein, such rights and remedies are given in
addition to any other rights and remedies the parties may have by law, statute,
ordinance or otherwise.
The Members agree that it would be difficult to compensate the Company for
damages for any violation of the provisions of this Agreement, including,
without limitation, the provisions of Section 15.01 hereof. Accordingly, the
Members specifically agree that the Company shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement. This
provision, with respect to injunctive relief, shall not, however, diminish the
right of the Company to claim and recover damages in addition to injunctive
relief.
17.08 Severability. If any provision of this Agreement or the application
------------
thereof to any person or circumstances shall be invalid, illegal or
unenforceable to any extent, the remainder of
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this Agreement and the application thereof shall not be affected and shall be
enforceable to the fullest extent permitted by law. In furtherance and not in
limitation of the foregoing, should the duration or geographical extent of, or
business activities covered by, any provision of this Agreement be in excess of
that which is valid or enforceable under applicable law, then such provision
shall be construed to cover only that duration, extent or activities which may
validly and enforceably be covered. The Members acknowledge the uncertainty of
the law in this respect and expressly stipulate that this Agreement shall be
given the construction which renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law.
17.09 Heirs, Successors and Assigns. Each and all of the covenants,
-----------------------------
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their respective heirs, legal representatives, successors and
permitted assigns.
17.10 Creditors. None of the provisions of this Agreement shall be
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for the benefit of or enforceable by any creditor of the Company.
17.11 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
17.12 Federal Income Tax Election; Tax Matters Partner. All elections
------------------------------------------------
required or permitted to be made by the Company under the Code shall be made by
the Board of Directors as determined in its sole discretion. For all purposes
permitted or required by the Code, the Members constitute and appoint CTFS as
Tax Matters Partner, or such other Member as shall from time to time be
designated by Members holding a Majority Interest.
17.13 Notices. Any and all notices, offers, demands or elections
-------
required or permitted to be made under this Agreement ("Notices") shall be in
writing, signed by the party giving such Notice, and shall be deemed given and
effective (i) when hand-delivered (either in person by the party giving such
notice, or by its designated agent, or by commercial courier) or (ii) on the
third (3rd) business day (which term means a day when the United States Postal
Service, or its legal successor ("Postal Service") is making regular deliveries
of mail on all of its regularly appointed weekday rounds in Atlanta, Georgia)
following the day (as evidenced by proof of mailing) upon which such Notice is
deposited, postage prepaid, certified mail, return receipt requested, with the
Postal Service, and addressed to the other party at such party's respective
address as set forth below, or at such other address as the other party may
hereafter designate by Notice.
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If to Members:
JRH ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CTFS ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If to the Company:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President of Community Trust
Financial Services Corporation
with a copy to:
JRH Diversified, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
17.14 Amendment. Any amendment to this Agreement shall be made in writing
---------
and signed by each Member.
17.15 Invalidity. The invalidity or unenforceability of any particular
----------
provision of this Agreement shall not affect the other provisions hereof, and
the Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
17.16 Captions. Titles and captions are inserted for convenience only and
--------
in no way define, limit, extend or describe the scope or intent of this
Agreement or any of its provisions and in no way are to be construed to affect
the meaning or construction of this Agreement or any of its provisions.
17.17 Determination of Matters Not Provided For In This Agreement.
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The Board of Directors shall decide any questions arising with respect to the
Company and this Agreement which are not specifically or expressly provided for
in this Agreement.
17.18 Further Assurances. The Members each agree to cooperate, and to
------------------
execute and deliver in a timely fashion any and all additional documents
necessary to effectuate the purposes of the Company and this Agreement.
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17.19 Time. TIME IS OF THE ESSENCE OF THIS AGREEMENT, AND TO ANY
----
PAYMENTS, ALLOCATIONS AND DISTRIBUTIONS SPECIFIED UNDER THIS AGREEMENT.
MEMBERS:
--------
JRH Diversified, Inc., a Georgia Corporation
By:__________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Date: ________, 1997
COMMUNITY TRUST FINANCIAL SERVICES
CORPORATION,
a Georgia Corporation
By: ___________________________________
Title:
Date: __________________, 1997
▇▇▇▇▇▇▇▇▇:
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____________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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"EXHIBIT A"
-----------
ATM OR SCRIP MACHINES CONTRIBUTED BY JRH AS A PART OF ITS INITIAL CAPITAL
CONTRIBUTION
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EXHIBIT "B"
-----------
TERRITORY
---------
COUNTY STATE
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