EXHIBIT 10.19
_________________________________________
LIMITED LIABILITY COMPANY AGREEMENT
OF
READING INTERNATIONAL CINEMAS LLC
________________________________________
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS; CONSTRUCTION................................... 1
1.1 Definitions................................................. 1
1.2 Directly or Indirectly...................................... 3
1.3 Captions.................................................... 3
1.4 Interpretation.............................................. 3
1.5 References to this Agreement................................ 4
ARTICLE II FORMATION................................................... 4
2.1 Formation................................................... 4
2.2 Name........................................................ 4
2.3 Principal Office; Pennsylvania Office....................... 4
2.4 Agent....................................................... 4
2.5 Business; Purpose; Powers................................... 4
2.6 Term of the Company......................................... 4
ARTICLE III MEMBERS AND MEMBERSHIP INTERESTS............................ 4
3.1 Members..................................................... 4
3.2 Voting Rights; Approval Required............................ 5
3.3 Meetings of Members......................................... 5
3.4 Disposition of Interests.................................... 6
3.5 Right of First Refusal...................................... 6
3.6 Buy-Sell Agreement.......................................... 8
3.7 Amendment of Agreement to Reflect New Members............... 9
3.8 No Resignation or Removal................................... 9
3.9 No Liability to Third Parties............................... 9
3.10 Rights of Assignees......................................... 9
3.11 Rights of Voting Members.................................... 10
ARTICLE IV CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS.................. 10
4.1 Capital Contributions....................................... 10
4.2 No Return of Capital Contribution; No Interest.............. 10
4.3 Capital Accounts............................................ 10
4.4 No Obligation to Restore Deficits........................... 11
4.5 Additional Capital Contributions............................ 11
ARTICLE V ALLOCATIONS AND DISTRIBUTIONS............................... 11
5.1 Allocations of Income and Loss.............................. 11
5.2 Special Allocations......................................... 11
5.3 Allocation of Income and Loss in Respect of a
Transferred Interest........................................ 13
5.4 Distributions............................................... 14
5.5 Form of Distributions....................................... 14
ARTICLE VI MANAGEMENT AND OPERATION.................................... 14
6.1 Management of Company by Members............................ 14
i.
ARTICLE VII TAX MATTERS................................................ 14
7.1 Tax Returns................................................ 14
7.2 Tax Matters Partner........................................ 15
7.3 Tax Elections.............................................. 15
7.4 Withholding................................................ 15
ARTICLE VIII INFORMATION................................................ 16
8.1 Information................................................ 16
ARTICLE IX BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS................. 16
9.1 Maintenance of Books....................................... 16
9.2 Financial Information...................................... 16
9.3 Bank Accounts.............................................. 16
ARTICLE X DISSOLUTION AND WINDING UP................................. 16
10.1 Conditions of Dissolution.................................. 16
10.2 Liquidation and Termination................................ 17
10.3 Cancellation of Filings.................................... 18
ARTICLE XI INDEMNIFICATION AND INSURANCE.............................. 18
11.1 Indemnification by Company................................. 18
ARTICLE XII GENERAL PROVISIONS......................................... 19
12.1 Notices.................................................... 19
12.2 Entire Agreement; Waivers and Modifications................ 19
12.3 Binding Effect; No Third-Party Beneficiaries............... 20
12.4 Governing Law.............................................. 20
12.5 Further Assurances......................................... 20
12.6 Waiver of Certain Rights................................... 20
12.7 Multiple Counterparts; Facsimile Transmissions............. 20
12.8 Submission to Jurisdiction................................. 21
ii.
This Limited Liability Company Agreement of Reading International Cinemas
LLC is made and entered into as of this 9th day of November, 1995 by and between
the Members.
For and in consideration of the mutual covenants, rights, and obligations
set forth herein, the benefits to be derived therefrom, and other good and
valuable consideration, the receipt and sufficiency of which each Member
acknowledges, the Members agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.1 Definitions. When used herein, the following capitalized terms shall
-----------
have the meanings indicated:
"Act" means the Delaware Limited Liability Company Act and any
---
successor statute, as amended from time to time.
"Affiliate" means as to any Person a director of such Person or any
---------
other Person who, directly or indirectly, through one or more
intermediaries, Controls or is Controlled by or under common Control with
that Person.
"Agreement" means this Limited Liability Company Agreement, as
---------
originally executed and as amended from time to time.
"Capital Account" means the capital account established and maintained
---------------
for a Member pursuant to Article IV.
"Capital Contribution" means as to any Member the cumulative sum of
--------------------
money contributed by the Member to the capital of the Company, as provided
in Article IV.
"Certificate" or "Certificate of Formation" means the certificate of
----------- ------------------------
formation of the Company filed on November 7, 1995 in accordance with the
Act and as amended from time to time.
"Code" means the Internal Revenue Code of 1986 and any successor
----
statute, as amended from time to time.
"Company" means Reading International Cinemas LLC, the Delaware
-------
limited liability company.
"Company Minimum Gain" has the meaning ascribed to the term
--------------------
"Partnership Minimum Gain" in Treas. Reg. (S) 1.704-2(d).
"Control," "Controls," or "Controlled" (and derivations thereof) means
------- -------- ----------
as to a corporation the right to exercise, directly or indirectly, more
than 50% of the voting rights in the corporation, and as to any other
Entity the possession,
1.
directly or indirectly, of the power to direct or cause the direction of
the management or policies of the same.
"▇▇▇▇▇" means ▇▇▇▇▇ Corporation, a Delaware corporation.
-----
"Dispose," "Disposing," or "Disposition" means a sale, assignment,
------- --------- -----------
transfer, exchange, mortgage, pledge, grant of a security interest, or
other disposition or encumbrance (including, without limitation, by
operation of law), or the acts thereof.
"Dissolution Event" means a Member's resignation, removal, withdrawal,
-----------------
bankruptcy or dissolution.
"Distributable Cash" means the amount of money on hand of the Company
------------------
and available for distribution to the Members, taking into account all
accrued debts, liabilities, and obligations of the Company and any amounts
necessary or advisable to reserve, designate, or set aside for actual or
anticipated costs, payments, liabilities, obligations, claims with respect
to the Company's business or reinvested in any lawful activity that may be
undertaken by the Company, as determined by a Majority in Interest of the
Members.
"Entity" means any association, corporation, estate, limited
------
liability company, limited partnership, partnership, venture or other
entity.
"Income" means any item of Company economic income not includable in
------
gross income for federal income tax purposes, and Company taxable income
for federal income tax purposes, including Tax Items (items of income,
gain, loss, deduction, or credit of the Company) taken into account
separately by the Members.
"Liquidation Member" means the trustee for the time being of RC Trust.
------------------
"Loss" means (i) any Company deduction specially allocable to a
----
Member, (ii) any Company expenditure that is neither deductible nor
chargeable to capital account under section 705(e)(2)(B) of the Code or
Treasury Regulation section 1.704-1(b)(2)(iv) and (d)(2), and (iii) the
Company's net loss for federal income tax purposes, excluding deductions
described in clause (i) and including Company Tax Items taken into account
separately by the Members.
"Member Nonrecourse Debt" has the meaning ascribed to the term
-----------------------
"Partner Nonrecourse Debt" in Treas. Reg. (S) 1.704-2(b)(4).
2.
"Member Nonrecourse Deductions" means items of Company loss, deduction
-----------------------------
or Code section 705(a)(2)(B) expenditures which are attributable to Member
Nonrecourse Debt.
"Members" means the persons listed in Section 3.1 of this Agreement
-------
and those persons subsequently admitted as Members pursuant to the terms of
this Agreement, so long as they have not ceased being Members pursuant to
the terms of this Agreement. A reference to a "Member" means any of the
Members, and a reference to a "Majority in Interest" of the Members means a
Member or Members owning a majority of the interest in the Company.
"Membership Interest" means a Member's allocable share of the
-------------------
Company's Income, Loss, and similar items and the Member's rights to
receive distributions from the Company, together with all obligations of
such Member to comply with the provisions of this Agreement.
"Nonrecourse Liability" has the meaning set forth in Treas. Reg. (S)
---------------------
1.752-1(a)(2).
"Person" means any individual or Entity.
------
"RC Trust" means RC Revocable Trust, a trust formed in the State of
--------
California as of November 9, 1995.
"Reading" means Reading Investment Company, Inc., a Delaware
-------
corporation.
"Secretary of State" means the California Secretary of State of the
------------------
State of Delaware.
"Tax Items" has the meaning set forth under the definition of
---------
"Income."
"Voting Members" means all Members of the Company except for the
--------------
Liquidation Member.
1.2 Directly or Indirectly. Any provision of this Agreement which refers
----------------------
to an action which may be taken by any Person, or which a Person is prohibited
from taking, shall include any such action taken directly or indirectly by or on
behalf of such Person, including by or on behalf of any Affiliate or agent of
such Person.
1.3 Captions. All captions in this Agreement are inserted for reference
--------
only and are not to be considered in the construction or interpretation of any
provision hereof.
1.4 Interpretation. In the event any claim is made by any Person relating
--------------
to any conflict, omission or ambiguity in this Agreement, no presumption or
burden of proof or persuasion shall be
3.
implied by virtue of the fact that this Agreement was prepared by or at the
request of a particular Person or its counsel.
1.5 References to this Agreement. References to numbered or lettered
----------------------------
articles, sections, and subsections refer to articles, sections, and subsections
of this Agreement unless otherwise expressly stated.
ARTICLE II
FORMATION
2.1 Formation. As of the effective date of this Agreement, the Company
---------
has been formed as a Delaware limited liability company under and pursuant to
the Act. The Company has executed and filed the Articles with the Secretary of
State.
2.2 Name. The name of the Company shall be Reading International Cinemas
----
LLC. The business of the Company shall be conducted under that name or any
other name or names selected by the Voting Members.
2.3 Principal Office; Pennsylvania Office. The principal office of the
-------------------------------------
Company shall be Reading, The ▇▇▇▇▇▇ Building, One Penn Square West, ▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office as the
Voting Members may designate from time to time. The Company also may have such
other offices within the United States as the Voting Members may from time to
time determine.
2.4 Agent. The Company shall at all times maintain a registered agent as
-----
required under the Act who shall be as stated in the Certificate or as otherwise
may be determined from time to time by the Voting Members in the manner provided
by law.
2.5 Business; Purpose; Powers. The business and purpose of the Company is
-------------------------
through one or more other entities to develop, own, hold, lease and operate
motion picture exhibition assets in Australia.
2.6 Term of the Company. The term of the Company shall commence on the
-------------------
date hereof and the Company shall continue in existence until December 31, 2025,
or such earlier time as specified in or pursuant to this Agreement.
ARTICLE III
MEMBERS AND MEMBERSHIP INTERESTS
3.1 Members. Reading and ▇▇▇▇▇ are hereby admitted as Members. Reading
-------
and ▇▇▇▇▇ are admitted as the "Voting Members" and the initial Liquidation
Members, but have directed that their interests as Liquidation Members be
transferred to and held by RC
4.
Trust as the sole "Liquidation Member." After the date hereof, no Person may be
admitted as an additional Member except with the approval of the Voting Members.
3.2 Voting Rights; Approval Required. Except as otherwise specifically
--------------------------------
provided in this Agreement, the vote, consent, or approval of Voting Members
holding in the aggregate fifty one (51%) percent of the interest in the income
of the Company as determined under Section 5.1 (a "Majority in Interest") shall
be required as to all matters as to which the vote, consent or approval of the
Members is required or permitted under this Agreement. The vote, consent or
approval of the Voting Members, wherever required or permitted hereunder, may be
obtained in any manner permitted hereunder or under the Act.
3.3 Meetings of Members.
-------------------
3.3.1 No annual or regular meetings of the Members shall be
required; if convened, however, meetings of the Members may be held at such
date, time, and place as the Voting Members may fix from time to time.
3.3.2 A meeting of the Members may be called at any time by a
Majority in Interest of the Voting Members for the purpose of addressing any
matter on which the vote, consent or approval of the Voting Members is required
under this Agreement.
3.3.3 Notice of any meeting of the Members shall be sent or
otherwise given to the Members in accordance with this Agreement not less than
ten nor more than 60 days before the date of the meeting. The notice shall
specify the place, date, and hour of the meeting and the general nature of the
business to be transacted. Except as the Voting Members may otherwise agree, no
business other than that described in the notice may be transacted at the
meeting.
3.3.4 Attendance, in person or by proxy, of a Voting Member at a
meeting shall constitute a waiver of notice of that meeting, except when the
Voting Member objects, at the beginning of the meeting, to the transaction of
any business because the meeting is not fully called or convened, and except
that attendance at a meeting is not a waiver of any right to object to the
consideration of matters not included in the notice of the meeting if that
objection is expressly made at the meeting. Neither the business to be
transacted nor the purpose of any meeting of Members need be specified in any
written waiver of notice. The Voting Members may participate in any meeting of
the Members by means of conference telephone or similar means as long as both
Voting Members can hear one another. A Member so participating shall be deemed
to be present in person at the meeting.
3.3.5 Any action that can be taken at a meeting of the Members may
be taken without a meeting if a consent in writing
5.
setting forth the action so taken is signed and delivered to the Company by a
Majority in Interest of the Voting Members. All such consents shall be
maintained in the books and records of the Company.
3.3.6 Any Voting Member entitled to vote on any matter shall have
the right to do so either in person or by one or more agents authorized by a
written proxy signed by the Voting Member and delivered to the other Voting
Member. The use of proxies in all other respects shall be governed by the
provisions of the Delaware General Corporation Law pertaining to the use of
proxies by corporate stockholders.
3.4 Disposition of Interests.
------------------------
3.4.1 No Member shall Dispose of all or any part of its Membership
Interest without the approval each of the other Voting Members, except as
provided below. Any attempted Disposition of a Membership Interest, or any part
thereof, other than in accordance with either Section 3.4, Section 3.5 or
Section 3.6 shall be, and hereby is declared, null and void ab initio.
3.4.2 If, in connection with a permitted Disposition of a
Membership Interest, a Member purports to grant the Person to which the
Membership Interest is Disposed the right to be admitted as a member of the
Company, such Person shall have the right to be so admitted as a member if (a)
the other Voting Members consent in writing to such admission, and (b) the other
Voting Members receive a document (i) executed by both the Member effecting such
Disposition and the Person to which the Membership Interest is Disposed, (ii)
including the notice and payment address and facsimile number of the Person to
be admitted to the Company as a member and the written acceptance by such Person
of all the terms and provisions of this Agreement and an agreement by such
Person to perform and discharge timely all of the obligations and liabilities in
respect of the Membership Interest being acquired, (iii) setting forth the
respective percentage interests in Company allocations after the Disposition of
the Member effecting the Disposition and the Person to which the Membership
Interest is Disposed, which together shall total the percentage interest in
Company allocations of the Member effecting such Disposition prior thereto, (iv)
containing a representation and warranty by the Member effecting the
Disposition and the Person to which the Membership Interest is Disposed to the
effect that such Disposition was made in accordance with all laws and
regulations, including securities laws, applicable to such Member or Person, as
appropriate, and (v) setting forth the effective date of the Disposition.
3.5 Right of First Refusal.
----------------------
No Voting Member shall directly or indirectly sell, assign, transfer,
or otherwise dispose of (collectively, a "transfer") its Voting Membership
Interest ("VMI"), or any part thereof
6.
or interest therein, at any time, except (i) once during a trailing 12-month
period and then only (ii) in a sale exclusively for cash or in a transfer
expressly permitted by this subsection; and no Voting Member shall transfer its
VMI in a sale for cash at any time without first giving written notice to the
Company and the other Voting Members of its intention to transfer such VMI. Any
such notice shall specify the identity of the transferee and the amount of the
cash purchase price proposed to be paid for such VMI. This subsection shall not
prohibit, and no such notice shall be required for, a transfer to a corporation
wholly-owned, directly or indirectly, except for director's qualifying shares
and executive stock options (provided that such director's qualifying shares and
shares issuable upon exercise of such stock options do not represent more than
20% of the outstanding share or equity interests of such corporation on a fully-
diluted basis), by one or more Voting Members.
Any transfer of VMI requiring the giving of written notice under this
Section 3.5 shall be subject to a right of first refusal on the part of the
Company exercisable within thirty (30) days of receipt of such written notice
(the "Company Period"). During the Company Period, the Company, subject to any
restrictions imposed by law, shall have the right to elect to purchase all or
any part (subject to the condition set forth below) of the VMI (the "Subject
VMI") proposed to be sold by the Voting Member delivering such notice (the
"Selling Voting Member") for cash equal to the cash purchase price, if any,
proposed to be paid for such VMI. The Company shall exercise its election right
by written notice delivered to the Selling Voting Member and the other Voting
Members within the Company Period. If the Company does not elect to purchase
all of the Subject VMI, then such right of first refusal shall pass to the other
Voting Members as follows.
Upon the expiration of the Company Period, each Voting Member, other
than the Selling Voting Member, shall have fifteen (15) days (the "Member
Period") to elect in writing to purchase all or any part of the Subject VMI not
subject to purchase by the Company. In the event that the other Voting Members
elect to purchase in the aggregate more VMI than the Subject VMI available for
sale, the Subject VMI shall be apportioned among the other Voting Members in
proportion to their respective VMIs. The other Voting Members shall exercise
their election right by written notice delivered to the Selling Voting Member
and the Company within the Member Period. If the Company and the other Voting
Members entitled to this right of first refusal decline to purchase in the
aggregate an amount equal to all of the Subject VMI, the Selling Voting Member
may thereafter transfer all, but not less than all, the Subject VMI in
accordance with the terms set forth in the written notice to the Company and the
other Voting Members.
If the Company elects to purchase all of the Subject VMI it shall tender
payment for such interest at the end of the Company Period to the Selling Voting
Member. If the Company does not elect
7.
to purchase all of the Subject VMI but the Company and/or the other Voting
Members elect to purchase all of the Subject VMI they shall tender payment for
such interest at the end of the Member Period to the Selling Voting Member.
No transfer of the Subject VMI shall be made after the end of ninety
(90) days after the original notice given to the Company and the Voting Members
under this Section 3.5 or for a price that is lower than the price specified in
the notice referred to in this Section 3.5, unless the VMI are first offered
again to the Company and the other Voting Members in accordance with this
Section 3.5.
3.6 Buy-Sell Agreement.
------------------
In the event that a Voting Member holding at least fifty (50%) percent
of the Voting Membership Interests desires to purchase all of the VMI held by
the other Voting Members, it shall be entitled, at any time, to make an offer in
writing to the other Voting Members to purchase all, but not less than all, of
remaining VMI (the "Initial Offer"). Such written offer shall specify the price
which shall be payable in cash per one (1%) percent of VMI, and all other
relevant information concerning the Initial Offer. The other Voting Members
(the "Offeree Members") shall then have forty-five (45) days from the giving of
the Initial Offer in which to elect, in writing, (i) to accept the Initial
Offer, or (ii) to purchase (the "Purchase Option") in the aggregate the entire
VMI of the Voting Member making the Initial Offer (the "Offering Member") at the
same price per one (1%) percent of VMI and on the terms and conditions of the
Initial Offer, or, if terms and conditions are not amenable to exact
duplication, upon substantially equivalent terms and conditions. If there is
more than one Offeree Member, then each Offeree Member can elect to purchase
all, or any portion, of the Offering Member's VMI. In the event that the
Offeree Members elect to purchase more than the VMI held by the Offering Member,
the Offering Member VMI will be apportioned among the Offeree Members in
proportion to their respective VMIs. All Voting Members agree to be bound by
and to sell their VMI in accordance with this Section 3.6 and specifically waive
any rights to challenge or otherwise contest the sufficiency or adequacy of the
consideration to be paid for VMI pursuant to this Section 3.6. If no election
is so made by the Offeree Member within forty-five (45) day period, the Initial
Offer shall be deemed to have been accepted.
Once the Initial Offer or the Purchase Option has been accepted, the
purchaser(s) shall have one hundred twenty (120) days from delivery of notice of
acceptance or, if the Initial Offer is not expressly accepted, from the last day
of the forty-five (45) day period referenced in this Section 3.6 to consummate
the purchase and pay the seller. Should the purchaser(s) fail to consummate the
purchase and pay for the VMI within the period specified above, time being
expressly of the essence, the
8.
purchaser(s) shall be liable for all reasonable out-of-pocket costs incurred by
the seller. In addition, the Voting Members acknowledge and agree that in view
of (i) the length of the purchase period and the reliance and change of position
which must necessarily result from the purchaser's election to purchase
hereunder and (ii) the fact that the damages which would result from the
purchaser's failure to consummate the purchase are uncertain in amount and
cannot be determined with certainty, a reasonable estimation of damages is an
amount equal to ten percent (10%) of the offered price, provided that damages
shall not be recoverable in cash but only by way of any adjustment in the
offered price if the option described in the next succeeding sentence is
exercised. Accordingly, the Voting Members agree that in the event of the
purchaser's unexcused failure to consummate the purchase, in addition to the
seller's remedies at law or in equity, and in addition to the seller's right to
collect from the defaulting party out-of-pocket costs and expenses, the selling
Voting Member (the "Option Holder") shall have an option for the six (6) month
period following the expiration of one hundred twenty (120) day closing period
to purchase all, but not less than all, the defaulting purchaser's VMI for the
offered price (again calculated on a per 1% basis), in cash, less ten percent
(10%); the Option Holder may exercise this option by giving notice to the
defaulting purchaser not later than 90 days after the expiration of 120-day
period, and must tender payment in full not later than the end of six-month
option period.
3.7 Amendment of Agreement to Reflect New Members. If a Person is to be
---------------------------------------------
admitted to the Company as a new member, the Person to be admitted as a new
member shall execute appropriate amendments to this Agreement to take into
account the Person's admission as a new member. In the case of any admission
pursuant to Section 3.4.2, amendment shall provide, among things, that the
admission of the new member shall be deemed to occur immediately before any
withdrawal of the transferor Member.
3.8 No Resignation or Removal. Except as otherwise specifically provided
-------------------------
in this Agreement, a Member does not have the right or power to resign or
withdraw from the Company as a Member and shall be entitled to do so only with
the approval of the other Members.
3.9 No Liability to Third Parties. No Member shall have any personal
-----------------------------
obligation for any liabilities of the Company, whether liabilities arise in
contract, tort or otherwise, except to the extent that any liabilities are
expressly assumed in a separate writing by the Member.
3.10 Rights of Assignees. In the event the Company is required to
-------------------
recognize the validity of a Disposition notwithstanding the provisions of this
Article III to the contrary, the assignee of a Membership Interest who has not
been admitted to the Company in accordance with this Article III shall be
entitled only to alloca-
9.
tions and distributions with respect to Membership Interest as provided in this
Agreement, but shall have no right to any information or accounting of the
affairs of the Company, or to inspect the books or records of the Company, and
shall not have any rights of a Member under the Act or this Agreement.
3.11 Rights of Voting Members. Notwithstanding any other provision of this
------------------------
Agreement, with effect on and from the commencement of the dissolution of the
Company, Voting Members will not have any right to participate in a distribution
of the property of the Company; that right will be possessed only the
Liquidation Member.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
4.1 Capital Contributions. Reading and ▇▇▇▇▇ shall each make an initial
---------------------
Capital Contribution of $5,000,000, on an as needed basis. RC Trust shall not
be required to make any Capital Contributions.
4.2 No Return of Capital Contribution; No Interest. Except as otherwise
----------------------------------------------
specifically provided in this Agreement, a Member shall not be entitled to
demand or receive the return of all or any portion of the Member's Capital
Contribution or to be paid interest in respect of either its Capital Account or
Capital Contribution. Under circumstances permitting or requiring a return of a
Member's Capital Contribution, the Member shall have no right to receive
property other than cash. No Member shall be required to contribute or to lend
any money or property to the Company to enable the Company to return any other
Member's Capital Contribution.
4.3 Capital Accounts. A Capital Account shall be established and
----------------
maintained for each Member. Each Member's Capital Account (a) shall be
increased by (i) the amount of money contributed by or on behalf of that Member
to the Company, (ii) the fair market value of property contributed by or on
behalf of that Member to the Company (net of liabilities secured by contributed
property that the Company is considered to assume or take subject to under
section 752 of the Code), and (iii) allocations to that Member of Company Income
and gain (or items thereof), including income and gain exempt from tax and
income and gain described in Treas. Reg. (S) 1.704-1(b)(2)(iv)(g), but
excluding income and gain described in Treas. Reg. (S) 1.704-1(b)(4)(i), and (b)
shall be decreased by (i) the amount of money distributed to that Member by the
Company, (ii) the fair market value of property distributed to that Member by
the Company (net of liabilities secured by the distributed property that the
Member is considered to assume or take subject to under section 752 of the
Code), (iii) allocations to that Member of expenditures of the Company described
in section 705(a)(2)(B) of the Code, and (iv) allocations of Company loss and
deduction (or items thereof), including loss and deduction described in Treas.
10.
Reg. (S) 1.704-1(b)(2)(iv)(g), but excluding items described in clause (b)(iii)
of this sentence and loss or deduction described in Treas. Reg. (S) 1.704-
1(b)(4)(i) or 1.704-1(b)(4)(iii). The Capital Accounts shall also be maintained
and adjusted as permitted by the provisions of Treas. Reg. (S) 1.704-
1(b)(2)(iv)(f) and as required by the other provisions of Treas. Reg. (S)(S)
1.704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments to reflect the
allocations to the Members of depreciation, depletion, amortization, and gain or
loss as computed for book purposes rather than the allocation of the
corresponding items as computed for tax purposes, as required by Treas. Reg. (S)
1.704-1(b)(2)(iv)(g). On the transfer of all or part of a Membership Interest,
the Capital Account of the transferor that is attributable to the transferred
Membership Interest or part thereof shall carry over to the transferee in
accordance with the provisions of Treas. Reg. (S) 1.704-1(b)(2)(iv)(l).
4.4 No Obligation to Restore Deficits. No Member shall have any liability
---------------------------------
or obligation to the Company, the other Members or any creditor of the Company
to restore at any time any deficit balance in Member's Capital Account.
4.5 Additional Capital Contributions. In the event that a Majority in
--------------------------------
Interest of the Voting Members determine that additional capital contributions
are required by the Company, each Voting Member shall be entitled to make
additional capital contributions pro rata in accordance with their interests in
the Company as determined under Section 5.1.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 Allocations of Income and Loss. Income and Loss for each year shall
------------------------------
be allocated as follows:
5.1.1 After giving effect to the special allocations set forth in
Section 5.2, Income shall be allocated to the Voting Members equally.
5.1.2 After giving effect to the special allocations set forth in
Section 5.2, Loss shall be allocated to the Voting Members equally.
5.2 Special Allocations.
-------------------
5.2.1 Notwithstanding the provisions of Section 5.1, if there is a
net decrease in Company Minimum Gain during any taxable year, each Member shall
be specially allocated items of Company income and gain for year (and, if
necessary, in subsequent years) in an amount equal to the portion of Member's
share of the net decrease in Company Minimum Gain that is allocable to the
disposition of Company property subject to a Nonrecourse Liability,
11.
which share of net decrease shall be determined in accordance with Treas. Reg.
(S) 1.704-2(g)(2). Allocations pursuant to this Section 5.2.1 shall be made in
proportion to the amounts required to be allocated to each Member under this
Section 5.2.1. The items to be so allocated shall be determined in accordance
with Treas. Reg. (S) 1.704-2(f). This Section 5.2.1 is intended to comply with
the minimum gain chargeback requirement contained in Treas. Reg. (S) 1.704-2(f)
and shall be interpreted consistently therewith.
5.2.2 Notwithstanding the provisions of Section 5.1, if there is a
net decrease in Minimum Gain attributable to a Nonrecourse Liability during any
taxable year, each Member who has a share of Company Minimum Gain attributable
to Nonrecourse Debt (which share shall be determined in accordance with Treas.
Reg. (S) 1.704-2(i)(5)) shall be specially allocated items of Company income and
gain for taxable year (and, if necessary, in subsequent years) in an amount
equal to that portion of Member's share of the net decrease in Company Minimum
Gain attributable to Nonrecourse Liability that is allocable to the disposition
of Company property subject to Nonrecourse Debt (which share of net decrease
shall be determined in accordance with Treas. Reg. (S) 1.704-2(i)(5)).
Allocations pursuant to this Section 5.2.2 shall be made in proportion to the
amounts required to be allocated to each Member under this Section 5.2.2. The
items to be so allocated shall be determined in accordance with Treas. Reg. (S)
1.704-2(i)(4). This Section 5.2.2 is intended to comply with the minimum gain
chargeback requirement contained in Treas. Reg. (S) 1.704-2(i)(4) and shall be
interpreted consistently therewith.
5.2.3 Notwithstanding the provisions of Section 5.1, any
nonrecourse deductions (as defined in Treas. Reg. (S) 1.704-2(b)(1)) for any
taxable year or other period shall be specially allocated to the Voting Members
in accordance with their respective percentage interests in Income and Member
Nonrecourse Deductions shall be allocated to the Member to whom the Member
Nonrecourse Debt is allocated.
5.2.4 Notwithstanding the provisions of Section 5.1, those items
of Company loss, deduction, or expenditures under section 705(a)(2)(B) of the
Code which are attributable to Member Nonrecourse Debt for any taxable year or
other period shall be specially allocated to the Member who bears the economic
risk of loss with respect to the Member Nonrecourse Debt to which items are
attributable in accordance with Treas. Reg. (S) 1.704-2(i).
5.2.5 Notwithstanding the provisions of Section 5.1, if a Member
unexpectedly receives any adjustments, allocations, or distributions described
in Treas. Reg. (S) 1.704-1(b)(2)(ii)(d)(4), (5) or (6), or any other event
creates a deficit balance in Member's Capital Account in excess of Member's
share of Minimum Gain, items of Company income and gain shall be specially
allocated to Member in an amount and manner sufficient to eliminate excess
deficit balance as quickly as possible. Any special allocations of
12.
items of income and gain pursuant to this Section 5.2.5 shall be taken into
account in computing subsequent allocations of income and gain pursuant to this
Article V so that the net amount of any item so allocated and the income, gain,
and losses allocated to each Member pursuant to this Section 5.2.5 to the extent
possible, shall be equal to the net amount that would have been allocated to
each Member pursuant to the provisions of this Article V if unexpected
adjustments, allocations, or distributions had not occurred.
5.2.6 Notwithstanding any other provision in this Article V, in
accordance with section 704(c) of the Code, income, gain, loss, and deduction
with respect to any property contributed to the capital of the Company shall,
solely for tax purposes, be allocated among the Members so as to take account of
any variation between the adjusted basis of property to the Company for federal
income tax purposes and its fair market value on the date of contribution.
Allocations pursuant to this Section 5.2.5 are solely for purposes of federal,
state, and local taxes; as, they shall not affect or in any way be taken into
account in computing a Member's Capital Account or share of Income, Loss, or
items of distribution pursuant to any provision of this Agreement.
5.2.7 In the event any Member has a deficit Capital Account at the
end of any Company taxable year which is in excess of the sum of (i) the amount,
if any, Member is obligated to restore and (ii) the amount Member is deemed to
be obligated to restore pursuant to the next to the last sentences of Treas.
Reg. (S)(S) 1.704-2(g)(1) and 1.704(2)(i)(5), each Member shall be specially
allocated items of Company income and gain in the amount of excess as quickly
as possible, provided that an allocation pursuant to this Section 5.2.7 shall be
made if and only to the extent that Member would have a deficit Capital Account
in excess of sum after all other allocations provided for in this Article V
have been tentatively made as if this Section 5.2.7 and Section 5.2.5 hereof
were not in this Agreement.
5.3 Allocation of Income and Loss in Respect of a Transferred Interest.
------------------------------------------------------------------
5.3.1 If a Member's Membership Interest is transferred, or is
adjusted by reason of additional Capital Contributions, the admission of a new
Member, or otherwise, during any taxable year, each item of income, gain, loss,
deduction, or credit of the Company for taxable year shall be assigned pro rata
to each day in the particular period of year to which item is attributable
(i.e., the day on or during which it is accrued or otherwise incurred) and the
amount of each item so assigned to any day shall be allocated to the Member
based upon its percentage interest in Company allocations at the close of day.
For the purpose of accounting convenience, except as provided below, the Company
may treat a transfer of, or an adjustment in, a Membership Interest which occurs
at any time during a semi-monthly period
13.
(commencing with the semi-monthly period including the date hereof) as having
been consummated on the first day of semi-monthly period, regardless of when
during semi-monthly period transfer or adjustment actually occurs.
5.3.2 Notwithstanding any provision to the contrary in this
Agreement, gain or loss of the Company realized in connection with a Disposition
of any of the assets of the Company shall be allocated solely to the Members as
of the date Disposition occurs (or to any particular Member or Members as
required by Code section 704(c), if applicable to Disposition).
5.4 Distributions.
-------------
5.4.1 Subject to any restrictions under applicable law, the
Company shall periodically distribute Distributable Cash to the Voting Members
not less frequently than annually, with the amount and timing of distributions
to be determined by the Voting Members.
5.4.2 Except as otherwise provided in the case of the Company's
liquidation and termination, all distributions of Distributable Cash shall be
made to the Voting Members equally.
5.5 Form of Distributions. A Member has no right to demand or receive any
---------------------
distribution from the Company in any form other than cash. Likewise, except in
connection with the dissolution of the Company as provided herein no Member
shall be compelled to accept from the Company a distribution of any asset in
kind.
ARTICLE VI
MANAGEMENT AND OPERATION
6.1 Management of Company by Members.
--------------------------------
6.1.1 The business, property, and affairs of the Company shall be
managed exclusively by the Voting Members. The full, complete, and exclusive
authority to manage and control the business, affairs, and properties of the
Company in accordance with the terms of this Agreement, to make all decisions
regarding the same, and to perform any and all other acts or activities
consistent therewith which are customary or incidental to the management of the
Company's business is subject to approval of a Majority in Interest of the
Voting Members.
ARTICLE VII
TAX MATTERS
7.1 Tax Returns. The Company shall prepare or cause to be prepared and
-----------
filed all necessary federal, state, and local income tax returns for the
Company. The Company shall furnish to each
14.
Member copies of all returns that are actually filed and shall keep them
informed of any and all pending or threatened tax proceedings regarding the
Company.
7.2 Tax Matters Partner. Reading shall be the "tax matters partner" of
-------------------
the Company pursuant to section 6231(a)(7) of the Code. Reading shall take
action as may be necessary to cause each other Member to become a "notice
partner" within the meaning of section 6231(a)(8) of the Code, and shall inform
each other Member of all significant matters that may come to its attention in
its capacity as "tax matters partner" and, shall forward to each Member copies
of all significant written communications it may receive in capacity. Reading
shall not take any action contemplated by sections 6222 through 6231 of the Code
without the consent of the Members.
7.3 Tax Elections. The Company shall make the following elections on the
-------------
appropriate tax returns:
7.3.1 to adopt the calendar year as the Company's fiscal year;
7.3.2 to adopt an appropriate method of accounting and to keep the
Company's books and records on that method; and
7.3.3 any other election Reading deems appropriate and in the best
interests of the Company and the Members. It is the intent of the Members that
the Company be treated as a partnership for United States federal income tax
purposes and, to the extent permitted by applicable law, for state and local
franchise and income tax purposes. Neither the Company nor any other Member may
make an election for the Company to be excluded from the application of the
provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar
provisions of applicable state or local law, and no provision of this Agreement
shall be construed to sanction or approve an election.
7.4 Withholding. With respect to any Member who is not a United States
-----------
person within the meaning of the Code, any tax required to be withheld under
section 1446 or other provisions of the Code, or under state law, shall, unless
already reflected by an appropriate charge to that Member's Capital Account, be
charged to that Member's Capital Account as if the amount of tax had been
distributed to Member. The amount so withheld shall be treated as a
distribution of Distributable Cash to Member for all purposes of this
Agreement.
15.
ARTICLE VIII
INFORMATION
8.1 Information. In addition to the other rights specifically set forth
-----------
in this Agreement, each Member shall have access to all information to which a
Member is entitled to have access pursuant to the Act and other information
regarding the Company, as it may reasonably request from time to time.
ARTICLE IX
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
9.1 Maintenance of Books. The books of account for the Company shall be
--------------------
maintained on an accrual basis in accordance with the terms of this Agreement,
except that Capital Accounts shall be maintained in accordance with Article IV.
The calendar year shall be the accounting year of the Company.
9.2 Financial Information. The Company shall prepare, or shall cause to
---------------------
be prepared, as soon as practicable after the end of each fiscal year of the
Company, and in any event on or before the 90th day thereafter, a balance sheet,
an income statement and a statement of changes in Members' capital in the
Company for, or as of the end of, that year. In addition, the Company shall
deliver to each Member within 90 days after each fiscal year a copy of the
Company's federal income tax return for that year and a Schedule K-1 setting
forth Member's distributions and allocations.
9.3 Bank Accounts. The Company shall establish and maintain one or more
-------------
separate bank and investment accounts for the Company's funds in the Company's
name with financial institutions and firms as the Voting Members may select and
designate signatories thereon. The Company's funds may not be commingled with
other funds of any other Person.
ARTICLE X
DISSOLUTION AND WINDING UP
10.1 Conditions of Dissolution. The Company shall be dissolved, its assets
-------------------------
shall be disposed of, and its affairs wound up on the first to occur of the
following:
(a) the vote, consent or approval of a Majority in Interest of the
Voting Members at any time to dissolve the Company;
(b) the occurrence of a Dissolution Event, unless within 90 days
after the occurrence, the remaining Voting Members (other than the Member as to
which Dissolution Event occurred) consent to continue the Company;
16.
(c) the Disposition of all of the property and assets of the Company;
(d) the entry of a decree of judicial dissolution under the Act; or
(e) the expiration of the term of existence of the Company.
10.2 Liquidation and Termination.
---------------------------
10.2.1 Upon the dissolution of the Company as provided in Section
10.1, the Company shall continue solely for the purpose of winding up its
affairs in an orderly manner, liquidating its assets, and satisfying the claims
of its creditors. The Voting Members shall act as liquidators or may appoint
one or more other Persons to act as liquidator. The liquidator shall oversee
the winding up and liquidation of the Company, take full account of the
liabilities of the Company and assets, either cause the Company's assets to be
sold as promptly as is consistent with obtaining fair market value therefor (or,
with the consent of the Voting Members, distributed to the Liquidation Member)
and, if sold, shall cause the proceeds therefrom, to the extent sufficient
therefor, to be applied and distributed as provided in paragraphs (c) and (d)
below. Until final distribution, the liquidator shall manage the Company's
business and other property and assets with all of the power and authority of
the Voting Members. The steps to be accomplished by the liquidator are as
follows:
(a) as promptly as possible after dissolution and again after final
liquidation, the liquidator shall cause a proper accounting to be made of the
Company's assets, liabilities, and operations through the last day of the
calendar month in which the dissolution shall occur or the final liquidation
shall be completed, as applicable;
(b) during the period commencing on the first day of dissolution
pursuant to Section 10.1 hereof and ending on the date on which all of the
assets of the Company have been distributed to the Liquidation Member in
accordance with this Section 10.2, the Voting Members shall continue to share
Income, Loss, and other items of Company income, gain, loss or deduction in the
manner provided in Article V, provided that no distributions shall be made
pursuant to Section 5.4;
(c) the liquidator shall pay or discharge from Company funds all of
the debts, liabilities and obligations of the Company (including, without
limitation, but subject to the provisions of applicable law, all expenses
incurred in liquidation) or otherwise make reasonably adequate provision
therefor (including, without limitation, the establishment of a cash escrow fund
for contingent liabilities in amount and for terms as the liquidator may
reasonably determine); and
17.
(d) all remaining assets of the Company shall be distributed to the
Liquidation Member.
(e) the liquidator may sell any or all Company property, including to
the Voting Members for fair market value.
10.2.2 Any distributions in kind to the Liquidation Member shall be
made subject to the liability of distributee for costs, expenses, and
liabilities theretofore incurred or for which the Company has committed prior to
the date of termination.
10.3 Cancellation of Filings. Upon completion of the distribution of
-----------------------
Company assets as provided herein, the Company is terminated, and the liquidator
shall take actions as may be necessary to terminate the Company.
ARTICLE XI
INDEMNIFICATION AND INSURANCE
11.1 Indemnification by Company.
--------------------------
11.1.1 The Company shall indemnify and defend each Member or
officer or employee of the Company who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(a "Proceeding") by reason of the fact that it is or was a Member, manager,
----------
officer, or other agent of the Company or that, being or having been a Member,
manager, officer or agent, it is or was serving at the request of the Company as
a manager, director, officer, employee, or other agent of another Person (all
Persons being referred to hereinafter as an "agent"), to the fullest extent
-----
permitted by applicable law in effect on the date hereof and to such greater
extent as applicable law may hereafter from time to time permit; provided,
however, that no Person shall be entitled to indemnification hereunder for any
act or omission constituting gross negligence, wilful misconduct or material
breach of this Agreement. Furthermore, the Company may, but shall not be
obligated to, indemnify any other Person who was or is a party or is threatened
to be made a party to, or otherwise becomes involved in, a Proceeding by reason
of the fact that person is or was an agent to the same extent as is provided
for in the preceding sentence with respect to a Member or agent.
11.1.2 The indemnification provided by, or granted pursuant to, the
provisions of this Article XI shall not be deemed exclusive of any other rights
to which any Person seeking indemnification may be entitled under any agreement,
vote of Members, or otherwise, both as to action in Person's capacity as an
agent of the Company and as to action in another capacity while serving as an
agent. All rights to indemnification under this Article XI shall be deemed to
be provided by a contract between the Company and each Member and officer who
serves in capacity at any
18.
time while this Agreement and relevant provisions of the Act and other
applicable law, if any, are in effect. Any repeal or modification hereof or
thereof shall not affect any rights then existing.
ARTICLE XII
GENERAL PROVISIONS
12.1 Notices. All notices and other communications provided for or
-------
permitted to be given under this Agreement shall be in writing and shall be
given by depositing the notice in the United States mail, addressed to the
Person to be notified, postage paid, and registered or certified with return
receipt requested, or by notice being delivered in person or by facsimile
communication to party. Notices given or served pursuant hereto shall be
effective upon receipt by the Person to be notified. All notices to be sent to
a Member shall be sent to or made at, and all payments hereunder shall be made
at, the address given for that Member or other address as that Member may
specify by notice to the Company and the other Members.
12.2 Entire Agreement; Waivers and Modifications.
-------------------------------------------
12.2.1 The Certificate and this Agreement constitute the entire
agreement of the Members and their respective Affiliates relating to the Company
and supersedes any and all prior contracts, understandings, negotiations, and
agreements with respect to the Company and the subject matter hereof, whether
oral or written.
12.2.2 The Certificate and this Agreement may be amended or
modified from time to time only by a written instrument executed by both of the
Voting Members. However, no amendment or modification which has an adverse
affect upon the Liquidation Member may be adopted without the written consent of
the Liquidation Member.
12.2.3 In the event of an inconsistency or conflict between the
provisions of this Agreement and any resolution adopted by the Voting Members,
resolution shall be deemed an amendment to this Agreement and a waiver by the
Voting Members of the inconsistent or conflicting provision of this Agreement.
Any waiver or consent, express, implied or deemed to or of any breach or default
by any Person in the performance by that Person of its obligations with respect
to the Company or any action inconsistent with this Agreement is not a consent
or waiver to or of any other breach or default in the performance by that Person
of the same or any other obligations of that Person with respect to the Company
or any other action. Failure on the part of a Person to complain of any act of
any Person or to declare any Person in default with respect to the Company,
irrespective of how long that failure continues, does not constitute a waiver by
that Person of
19.
its rights with respect to that default until the applicable statute of
limitations period has run. Except with respect to the matters described in the
first sentence of this Section 12.2.3, all waivers and consents hereunder shall
be in writing and shall be delivered to the Company and the Members in the
manner set forth in Section 12.1. A Member may grant or withhold any waiver or
consent in its absolute sole discretion.
12.3 Binding Effect; No Third-Party Beneficiaries. Subject to the
--------------------------------------------
restrictions on Dispositions set forth herein, this Agreement is binding on and
inures to the benefit of the Members and their respective successors and
assigns. Nothing in this Agreement shall provide any benefit to any third party
or entitle any third party to any claim, cause of action, remedy or right of any
king, it being the intent of the parties that this Agreement shall not be
construed as a third-party beneficiary contract.
12.4 Governing Law. This Agreement is governed by and shall be construed
-------------
in accordance with the law of the State of Delaware, excluding any conflict-of-
laws rule or principle that might refer the governance or construction of this
agreement to the law of another jurisdiction. If any provision of this
Agreement or the application thereof to any Person or circumstance is held
invalid or unenforceable to any extent, the remainder of this Agreement and the
application of that provision to other Persons or circumstances is not affected
thereby, and that provision shall be enforced to the greater extent permitted by
law.
12.5 Further Assurances. In connection with this Agreement and the
------------------
transactions contemplated hereby, each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
12.6 Waiver of Certain Rights. Each Member irrevocably waives any right it
------------------------
might have to maintain any action for partition of the property of the Company.
12.7 Multiple Counterparts; Facsimile Transmissions. This Agreement may be
----------------------------------------------
executed in multiple counterparts with the same effect as if the signing parties
had signed the same document. All counterparts shall be construed together and
constitute the same instrument. Delivery of an executed counterpart of this
Agreement by facsimile shall be equally as effective as delivery of a manually
executed counterpart of this Agreement. Upon the request of any party, any
party who shall have delivered an executed counterpart of this Agreement by
facsimile shall deliver a manually executed counterpart as well, but the failure
to so deliver a manually executed counterpart shall not affect the validity,
enforceability and binding effect of this Agreement.
20.
12.8 Submission to Jurisdiction. Each of the Members hereby consents to
--------------------------
the jurisdiction of any state or federal court located within the State of
Delaware, and, subject to the provisions of Section 12.8, irrevocably agrees
that all actions or proceedings relating to this Agreement shall be instituted
and heard by the courts of jurisdiction. Each Member hereby waives any
objection that it may have based on improper venue or forum non conveniens to
the conduct of any proceeding in any court and personal service of any and all
process upon it, and consents to any service of process made in the manner
provided herein for the giving of notices under this Agreement.
IN WITNESS WHEREOF, the parties hereto executed this Agreement effective as
of the date first above written.
MEMBERS:
-------
▇▇▇▇▇ CORPORATION
By__________________________________
READING INVESTMENT COMPANY, INC.
By__________________________________
TRUSTEE OF RC REVOCABLE TRUST
▇▇▇▇▇ MANAGEMENT, INC.
By__________________________________
21.