CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
FILED WITH THE SEC AND HAS BEEN MARKED BY
AN ASTERISK [*]
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF GRANT ▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLC DATED AS OF OCTOBER 1, 2004 AMONG ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
INC., GTBA HOLDINGS, INC., ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, AND ▇▇▇▇▇▇
▇▇▇▇▇▇
EXHIBIT 10.63
CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
FILED WITH THE SEC AND HAS BEEN MARKED BY
AN ASTERISK [*]
================================================================================
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRANT ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
DATED October 1, 2004
================================================================================
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS......................................................................... 2
ARTICLE 2 GENERAL PROVISIONS.................................................................... 13
Section 2.1. Formation, Name and Continuation...................................................... 13
Section 2.2. Term.................................................................................. 13
Section 2.3. Registered Agent and Office; Principal Place of Business.............................. 13
Section 2.4. Fiscal Year........................................................................... 14
ARTICLE 3 PURPOSE AND POWERS OF THE LLC......................................................... 14
Section 3.1. Purpose............................................................................... 14
Section 3.2. Powers of the LLC..................................................................... 14
ARTICLE 4 MEMBERS............................................................................... 14
Section 4.1. Voting................................................................................ 14
Section 4.2. Meetings of Members................................................................... 14
Section 4.3. Quorum................................................................................ 14
Section 4.4. Action by Consent..................................................................... 15
Section 4.5. Telephonic Meetings................................................................... 15
Section 4.6. Non-Voting Members.................................................................... 15
ARTICLE 5 MANAGERS AND OFFICERS................................................................. 15
Section 5.1. Managers.............................................................................. 15
Section 5.2. Designated Managers................................................................... 16
Section 5.3. Resignation or Removal of a Manager................................................... 16
Section 5.4. Vacancies............................................................................. 16
Section 5.5. Meetings.............................................................................. 16
Section 5.6. Quorum................................................................................ 17
Section 5.7. Action by Consent..................................................................... 17
Section 5.8. Telephonic Meetings................................................................... 17
Section 5.9. Managers as Agents; Limitation on Power of Members.................................... 17
Section 5.10. Duty of Managers...................................................................... 17
Section 5.11. Officers.............................................................................. 17
Section 5.12. Approval of Annual Budget............................................................. 18
Section 5.13. Powers of the Board; Powers of Officers............................................... 18
Section 5.14. Reimbursement......................................................................... 19
ARTICLE 6 CAPITAL CONTRIBUTIONS, CAPITAL ACCOUNTS, DISTRIBUTIONS AND ALLOCATIONS................ 20
Section 6.1. Capital Contributions................................................................. 20
Section 6.2. Capital Accounts...................................................................... 20
Section 6.3. Distributions of Cash................................................................. 20
ii
Page
Section 6.4. Allocations of Profits and Losses for Tax Purposes.................................... 21
Section 6.5. Special Allocations................................................................... 22
Section 6.6. Allocations under Code Section 704(c)................................................. 22
Section 6.7. Transfer of LLC Interests............................................................. 23
ARTICLE 7 TRANSFER OF LLC INTERESTS, PUT AND CALL OPTIONS, CHANGE OF CONTROL AND ADMISSION OF
ADDITIONAL MEMBERS ...................................................................................... 23
Section 7.1. Assignability of Interests............................................................ 23
Section 7.2. Put Options........................................................................... 23
Section 7.3. Call Options.......................................................................... 26
Section 7.4. Right of First Refusal................................................................ 29
Section 7.6. Substitute Members.................................................................... 31
Section 7.7. Recognition of Transfer by LLC........................................................ 32
Section 7.8. Order of Puts and Calls and Right of First Refusal.................................... 32
Section 7.9. Indemnification....................................................................... 32
Section 7.10. Issuance of Additional LLC Interests.................................................. 32
Section 7.11. Assignment of Holdings' Rights and Obligations........................................ 32
ARTICLE 8 BOOKS AND RECORDS..................................................................... 33
Section 8.1. Books, Records and Financial Statements............................................... 33
Section 8.2. Accounting Method..................................................................... 33
Section 8.3. LLC's Independent Accounting Firm..................................................... 33
ARTICLE 9 TAX MATTERS........................................................................... 34
Section 9.1. Tax Matters Member.................................................................... 34
Section 9.2. Right to Make Tax Elections; Tax Classification....................................... 34
ARTICLE 10 LIABILITY, EXCULPATION AND INDEMNIFICATION............................................ 35
Section 10.1. Liability............................................................................. 35
Section 10.2. Exculpation........................................................................... 35
Section 10.3. Indemnification....................................................................... 35
Section 10.4. Expenses.............................................................................. 36
ARTICLE 11 NON-COMPETITION; CONFIDENTIALITY...................................................... 36
Section 11.1. Confidential Information.............................................................. 36
Section 11.2. Non-Competition....................................................................... 38
Section 11.3. Non-Solicitation...................................................................... 39
Section 11.4. Specific Performance.................................................................. 39
ARTICLE 12 CERTAIN COVENANTS..................................................................... 40
Section 12.1. Compliance with Laws; Maintenance..................................................... 40
Section 12.2. Business Arrangements................................................................. 41
Section 12.3. Client Agreements..................................................................... 41
iii
Page
ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION.............................................. 41
Section 13.1. No Dissolution........................................................................ 41
Section 13.2. Events Causing Dissolution............................................................ 41
Section 13.3. Notice of Dissolution................................................................. 42
Section 13.4. Liquidation........................................................................... 42
Section 13.5. Termination........................................................................... 43
Section 13.6. Claims of the Members................................................................. 43
ARTICLE 14 REPRESENTATIONS AND WARRANTIES........................................................ 43
Section 14.1. Representations and Warranties of Natural Person Principals........................... 43
Section 14.2. Representations and Warranties of ▇▇▇▇▇ ▇▇▇▇ and Holdings............................. 43
Section 14.3. Representations and Warranties of All Members......................................... 44
ARTICLE 15 MISCELLANEOUS......................................................................... 44
Section 15.1. Amendments............................................................................ 44
Section 15.2. Power of Attorney..................................................................... 44
Section 15.3. Notices............................................................................... 45
Section 15.4. Waivers............................................................................... 47
Section 15.5. Binding Effect........................................................................ 47
Section 15.6. Severability.......................................................................... 47
Section 15.7. Counterparts.......................................................................... 47
Section 15.8. Governing Law......................................................................... 47
Section 15.9. Captions.............................................................................. 47
Section 15.10.Gender................................................................................ 47
Section 15.11.Third Party Beneficiaries............................................................. 48
Section 15.12.Remedies Cumulative................................................................... 48
Section 15.13.Integration........................................................................... 48
Schedule 1 Capital Contributions, Membership Points and LLC Interests
Schedule 1(uuu) Pro Forma Financial Statements and Valuation Examples
Schedule 5.1 Bonus Plan
Schedule 5.11 LLC Officers
Exhibit A Form of Put Notice
Exhibit B Form of First Refusal Notice
Exhibit C Form of Call Notice
Exhibit D Form of Client Agreement
iv
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRANT ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
This Amended and Restated Limited Liability Company Agreement (the
"Agreement") of Grant ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC (the "LLC") is dated as of
October 1, 2004, among ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC., a California
corporation ("▇▇▇▇▇ ▇▇▇▇"), GTBA HOLDINGS, INC., a Delaware corporation
("Holdings"), ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇" or the "Second Member"), ▇▇▇▇ ▇▇▇▇ ("Tani"),
▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"). This Agreement amends and
restates in its entirety the LLC's Operating Agreement dated as of March 10,
2004, previously executed by ▇▇▇▇▇ ▇▇▇▇ and the Second Member (the "Original LLC
Agreement").
BACKGROUND
A. The Principals own all of the outstanding shares of capital stock of
▇▇▇▇▇ ▇▇▇▇.
B. The LLC has heretofore been formed as a limited liability company under
the Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et seq.,
as amended from time to time (the "Delaware Act"), by filing a Certificate of
Formation of the LLC with the Office of the Secretary of State of Delaware on
February 24, 2004 (the "Certificate").
C. Both ▇▇▇▇▇ ▇▇▇▇ and the Second Member contributed certain assets to the
LLC and then executed the Original LLC Agreement.
D. Pursuant to an Assignment and Assumption Agreement dated October 1,
2004, prior to the transactions contemplated by the Limited Liability Company
Interest Purchase Agreement (as that term is hereinafter defined) ▇▇▇▇▇ ▇▇▇▇
contributed all of its assets, including the goodwill of its business (excluding
any right of ▇▇▇▇▇ ▇▇▇▇ to receive a reversion of surplus assets from the ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. Defined Benefit Plan), to the LLC (which assumed all
of ▇▇▇▇▇ ▇▇▇▇'▇ liabilities, except those liabilities relating to the ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. Defined Benefit Plan and/or the ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇, Inc. 401(k) Plan) in exchange for which the LLC issued ▇▇▇▇▇ ▇▇▇▇ an
LLC Interest consisting of 99.99 Membership Points (as that term is hereinafter
defined).
E. After the execution of the Assignment and Assumption Agreement, ▇▇▇▇▇
▇▇▇▇, the Principals and Holdings consummated Closing (as that term is
hereinafter defined) under the Limited Liability Company Interest Purchase
Agreement, pursuant to which Holdings purchased from ▇▇▇▇▇ ▇▇▇▇ an LLC Interest
consisting of 90 Membership Points.
F. The parties desire to amend and restate the Original LLC Agreement in
its entirety and to operate the LLC as a limited liability company under the
Delaware Act on the terms and conditions herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
ARTICLE 1
DEFINED TERMS
Unless the context otherwise requires, the terms defined in this Article 1
shall, for the purposes hereof, have the following meanings:
a. "Accounting Period" means each Fiscal Year and each other period (1)
beginning on the first Business Day following a day on which a Member (i) is
admitted to the LLC, (ii) completely withdraws from the LLC, (iii) makes a
capital contribution to the LLC, (iv) withdraws a portion of his or her Capital
Account balance or (v) increases or decreases his or her Membership Points and
(2) ending on the earliest thereafter to occur of December 31 or a Business Day
on which any of the events in clauses (i)-(v) above occurs.
b. "Affiliate" means, with respect to any Person: (1) any other Person
directly or indirectly owning, controlling or holding with the power to vote 25%
or more of the outstanding voting securities of that Person; (2) any Person
directly or indirectly controlling, controlled by or under common control with
that Person; (3) any officer, director or partner of that Person; and (4) if the
Person is an officer, director or partner, any company for which that Person
acts in that capacity. The term "control" means the possession, directly or
indirectly, of the power, whether or not exercised, to direct or cause the
direction or management or policies of any Person, whether through ownership of
voting securities or otherwise.
c. "Board" means the LLC's Board of Managers selected in accordance with,
and with the power and authority set forth in, Article 5.
d. "Business Day" means a day Wilmington Trust Company is open for
business.
e. "Call" has the meaning assigned to that term in Section 7.3(a).
f. "Call Notice" has the meaning assigned to that term in Section 7.3(a).
g. "Capital Account" means, with respect to any Member, the capital
account established and maintained for that Member on the LLC's books in
accordance with Section 1.704-1(b)(2)(iv) of the Treasury Regulations.
h. "Carrying Value" means, with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(1) The initial Carrying Value of an asset a Member contributes to
the LLC shall be the Fair Market Value of that asset, as determined by the
contributing Member and the Board;
(2) The Carrying Value of all of the LLC's assets shall be adjusted
to equal their respective Fair Market Values, as determined by the Board,
as of the following
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times: (a) the acquisition of an additional LLC Interest by any new or
existing Member; (b) the distribution by the LLC to a Member of property
as consideration for an LLC Interest; and (c) the liquidation of the LLC
within the meaning of Section 1.704-(b)(2)(ii)(g) of the Treasury
Regulations; provided that adjustments pursuant to clauses (a) and (b)
above shall be made only if the Board reasonably determines that those
adjustments are necessary or appropriate to reflect the relative economic
interests of the Members in the LLC;
(3) The Carrying Value of any asset the LLC distributes to any
Member shall be the Fair Market Value of that asset on the date of
distribution; and
(4) The Carrying Value of the LLC's assets shall be increased or
decreased to reflect any adjustments to the adjusted bases of those assets
pursuant to Code Section 734(b) or Code Section 743(b), but only (a) if an
election under Code Section 754 is in effect and (b) to the extent those
adjustments are taken into account in determining Capital Accounts
pursuant to Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations;
provided that Carrying Values shall not be adjusted pursuant to this
clause (4) to the extent the Board determines that an adjustment pursuant
to clause (2) hereof is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this
clause (4). If the Carrying Value of an asset has been determined or
adjusted pursuant to clause (1), (2) or (4) hereof, that Carrying Value
shall thereafter be adjusted by the Depreciation taken into account with
respect to those assets for purposes of computing Profits and Losses.
i. "Cause," with respect to a Person, means any of the events set forth
below, provided that a Person shall have 20 days after written notice of any
such event to cure such an event that is curable:
(1) A breach of any material provision of Article 11 hereof;
(2) The failure of a Person to perform substantially that Person's
duties with the LLC or the Management Company other than any such failure
resulting from incapacity due to physical or mental illness;
(3) The engaging by a Person in illegal conduct, dishonest conduct,
conduct that is a breach of that Person's fiduciary duty or gross
misconduct; or
(4) Any disqualification, suspension or revocation of any applicable
registration or license of a Person as a result of a final, non-appealable
proceeding by the California State Board of Accountancy, any other state
accounting board, the U.S. Securities and Exchange Commission, any state
securities commission or any self-regulatory authority or court with
jurisdiction over the LLC or the Management Company.
j. "Certificate" has the meaning assigned to that term in Recital B
hereto.
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k. "Change of Control" means (1) the acquisition by any Person or group of
Persons of beneficial ownership (as the term is defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of 25% or more of
the outstanding capital stock of Holdings or Wilmington Trust Corporation, a
Delaware corporation that owns all of Holdings' outstanding shares of capital
stock ("WTC"), entitled to vote for the election of directors ("Voting Shares");
(2) the acquisition by any Person or any group of Persons (other than Holdings,
WTC or any of their respective Affiliates) of 50% or more of the Membership
Points in the LLC owned by Holdings or any of its Affiliates immediately prior
to such acquisition; (3) the merger or consolidation of WTC with one or more
other Persons as a result of which the holders of the outstanding Voting Shares
of WTC immediately before the merger or consolidation hold less than 50% of the
Voting Shares of the surviving or resulting Person; (4) the merger or
consolidation of the LLC with one or more other Persons (other than Holdings or
WTC or one or more of their respective Affiliates) as a result of which the
holders of the outstanding Membership Points immediately before the merger or
consolidation hold less than 50% of the total outstanding Membership Points (or
equivalent) of the surviving or resulting Person; (5) the transfer of all or
substantially all of Holdings', WTC's or the LLC's assets, other than to an
Affiliate of Holdings or WTC; or (6) a proxy contest for the election of
directors of WTC that results in Persons constituting the Board of Directors of
WTC immediately before the initiation of that proxy contest ceasing to be a
majority of the Board of Directors of WTC upon the conclusion of that proxy
contest; provided that neither (x) any transfer of the capital stock or assets
of Holdings or WTC to, or the merger or consolidation of Holdings or WTC with or
into, (A) an entity that both prior to and also after that transfer, merger or
consolidation had been and will be consolidated with Holdings or WTC for federal
income tax purposes or (B) any newly formed, wholly owned subsidiary of Holdings
or WTC that will be consolidated with Holdings or WTC for federal income tax
purposes, nor (y) a transfer of LLC Interests by one or more Principals to one
or more Permitted Transferees shall be deemed to be a Change of Control for
purposes hereof.
l. "Client" means, at any time, any Person who is at that time a customer
or client of the LLC or a Subsidiary (either directly or by participating as a
partner, member, shareholder or other equity holder of a Person to which the LLC
or a Subsidiary provides business management services, including, without
limitation, bookkeeping, cash flow management, budgeting, tax planning,
insurance consultation and/or investment planning).
m. "Closing" has the meaning assigned to that term in the Limited
Liability Company Interest Purchase Agreement.
n. "Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any corresponding federal tax statute enacted hereafter. A reference to
a specific section of the Code refers to that section as well as any
corresponding provision of any federal tax statute enacted hereafter, as that
section is in effect on the date of application of the provisions hereof
containing that reference.
-4-
o. "Confidential Information" has the meaning assigned to that term in
Section 11.1(b).
p. "Depreciation" means, for each Fiscal Year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for that Fiscal Year or other period, except
that, if the Carrying Value of an asset differs from its adjusted basis for
federal income tax purposes at the beginning of that Fiscal Year or other
period, Depreciation shall be an amount that bears the same ratio to that
beginning Carrying Value as the federal income tax depreciation, amortization or
other cost recovery deduction for that Fiscal Year or other period bears to that
beginning adjusted tax basis; provided that, if the federal income tax
depreciation, amortization or other cost recovery deduction for that year is
zero, Depreciation shall be determined with reference to that beginning Carrying
Value using any reasonable method the Board selects.
q. "Derivative Share" means the portion of the outstanding LLC Interests
of the LLC represented by the indirect, pecuniary interest of a shareholder of
▇▇▇▇▇ ▇▇▇▇ in ▇▇▇▇▇ ▇▇▇▇ LLC's Interest, which shall be determined, at any time,
in accordance with the following formula:
Derivative ▇▇▇▇▇ ▇▇▇▇'▇ The percentage of the
Share = LLC Interest in x outstanding shares of
the LLC ▇▇▇▇▇ ▇▇▇▇ held by
that individual
r. "Disability" has the meaning set forth in a policy or policies of
disability insurance, if any, the LLC or the Management Company obtains for the
benefit of itself and/or its employees. If there is no definition of
"disability" applicable under any such policy or policies, then a Person shall
be considered "Disabled" upon the first to occur of: (1) that Person's being
adjudged incompetent by a court of competent jurisdiction; (2) that Person's
being determined to be physically or mentally incapable of performing the
essential functions of his or her job for a period of 180 days in any 12-month
period, in the opinion of a licensed medical doctor acceptable to the LLC or the
Management Company; or (3) that Person's being certified as permanently disabled
under the provisions of the Social Security Act, as amended from time to time.
s. "Election Period" has the meaning assigned to that term in Section
7.4(a).
t. "Employment Agreement" means an employment agreement between the
Management Company and a Principal as in effect from time to time.
u. "Exchange Act" means the Securities Exchange Act of 1934, as amended.
v. "Fair Market Value" means the amount for which an asset could be sold
in an arms'-length transaction by one who desires to sell, but is not under any
urgent requirement to
-5-
sell, to a buyer who desires to buy, but is under no urgent necessity to buy,
when both have a reasonable knowledge of the facts.
w. "Family" means any member of a Person's immediate family, as defined in
Rule 16a-1 of the Exchange Act, and all aunts, uncles, nieces, nephews and first
and second cousins of that Person.
x. "Final Election Period" has the meaning assigned to that term in
Section 7.4(a).
y. "First Refusal Notice" has the meaning assigned to that term in Section
7.2(d).
z. "Fiscal Year" has the meaning assigned to that term in Section 2.4.
aa. "Free Cash Flow" means, for any Accounting Period, (1) the Profits
(determined without deduction of any Depreciation) for that period, excluding
Profits resulting from or in connection with any Realization Event, less (2) all
distributions during that period pursuant to Section 6.3(b). In no event shall
Free Cash Flow for any Accounting Period be less than the LLC's consolidated
revenues for that period (excluding cash generated by or in connection with any
Realization Event) plus cash previously set aside as reserves for contingencies,
working capital, debt service, taxes, insurance and/or other costs and expenses
in connection with the LLC's business that the Board reasonably determines in
good faith is no longer needed for the LLC's business, less the sum of (A) all
cash expenditures the LLC made during that period (including operating expenses,
principal and interest payments on any indebtedness of the LLC and lease
payments on capitalized leases) and (B) funds the Board has reasonably
determined in good faith to set aside during that period as such reserves.
bb. "GAAP" means U.S. generally accepted accounting principles
consistently applied with prior periods.
cc. "Good Reason" means, with respect to any Principal employed by the LLC
or the Management Company:
(1) a reduction by the LLC or the Management Company in that
Principal's title or salary as the foregoing is in effect on the date
hereof;
(2) the LLC's or the Management Company's requiring that Principal,
without his or her consent, to be based at any office or location more
than 25 miles outside the Los Angeles, California Metropolitan Statistical
Area;
(3) without the written consent of a Principal, the assignment to
that Principal of duties inconsistent in any material respect with that
Principal's position, authority, duties or responsibilities as in effect
on the effective date of that Principal's employment by the LLC or the
-6-
Management Company, or any other action by the LLC or the Management
Company, which assignment, in each instance, results in a material
diminution in that position, authority, duties or responsibilities; or
(4) the material breach by the Management Company of that
Principal's Employment Agreement.
Good Reason shall not include a Principal's death or Disability. The LLC
or the Management Company shall have an opportunity to cure any claimed event of
Good Reason within 30 days of notice from the Principal.
dd. "▇▇▇▇▇ ▇▇▇▇ Entities" means the LLC, ▇▇▇▇▇ ▇▇▇▇, the Management
Company and any Subsidiary (present or future) of any of the foregoing, and the
term "▇▇▇▇▇ ▇▇▇▇ Entity" means any one of the foregoing ▇▇▇▇▇ ▇▇▇▇ Entities.
ee. "Holdings Change of Control Purchase Price" means an amount equal to
the sum of (1) the Valuation multiplied by a fraction, the numerator of which is
the number of Membership Points held by Holdlings and its Permitted Transferees
and the denominator of which is the number of Membership Points outstanding on
the Purchase Closing Date, less (2) what the Principals who exercise their right
under Section 7.5(b) would have received under Section 3.1(b) of the Limited
Liability Company Interest Purchase Agreement had only such Persons elected to
receive an accelerated payment under those sections. The Holdings Change of
Control Purchase Price shall be calculated by using the Valuation as of the end
of the year immediately prior to the exercise of the rights described in Section
7.5(b).
ff. "Initial Principal" means ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ or ▇▇▇▇▇▇.
gg. "Limited Liability Company Interest Purchase Agreement" means the
Limited Liability Company Interest Purchase Agreement dated as of April 2, 2004
among ▇▇▇▇▇ ▇▇▇▇, Grant, Tani, Barash, ▇▇▇▇▇▇ and Holdings, as it may be amended
from time to time.
hh. "Liquidating Trustee" has the meaning assigned to that term in Section
13.3.
ii. "LLC Interest" means a beneficial interest in the LLC, consisting of
an interest in Profits (i.e., an interest representing a claim to a portion of
(i) Profits earned by the LLC after issuance of that LLC Interest, (ii) Free
Cash Flow thereafter and (iii) under certain circumstances, distributions on the
LLC's liquidation, all based on the interestholder's Membership Points) and in
the LLC's capital (reflected by the interestholder's Capital Account balance).
jj. "LLC Value" means the Valuation for the last completed Fiscal Year
prior to the event giving rise to the calculation of LLC Value.
kk. "Majority Vote" means (i) with respect to the Members, the written
approval of, or the affirmative vote by, a majority in interest of the Members
determined with reference to their Membership Points set forth on Schedule 1
hereto, and (ii) with respect to the Principals, the written approval of, or the
affirmative vote by, a majority in interest of the Principals
-7-
determined with reference to their Membership Points set forth therein. For
purposes of determining a Majority Vote, Membership Points owned by Non-Voting
Members are not voted and are not counted in the calculation of the total
Membership Points outstanding or the Membership Points held by the Principals
for purposes of such vote.
ll. "Management Company" means ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Management,
Inc., a Delaware corporation owned directly or indirectly by Holdings.
mm. "Management Operating Agreement" means the management operating
agreement dated the date hereof between the LLC and the Management Company.
nn. "Manager" means a member of the Board.
oo. "Members" means the Persons listed on Schedule 1 hereto and any
additional Persons admitted as Members pursuant to the terms of this Agreement.
pp. "Membership Points" means, as of any date, with respect to a Member,
the number of Membership Points set forth opposite that Member's name on
Schedule 1 hereto, as adjusted from time to time pursuant hereto and as in
effect on that date.
qq. "Metropolitan Statistical Area" of a city means that city's
metropolitan statistical area as defined by the United States Office of
Management and Budget.
rr. "Non-Voting Member" means a Member owning an LLC Interest but,
pursuant to Section 4.6, not having the right to vote his or its Membership
Points.
ss. "Note" has the meaning assigned to that term in Section 7.3(c).
tt. "Offer" has the meaning assigned to that term in Section 7.4(a).
uu. "Offered Membership Points" has the meaning assigned to that term in
Section 7.4(a).
vv. "Offer Notice" has the meaning assigned to that term in Section
7.4(a).
ww. "Officer" has the meaning assigned to that term in Section 5.11.
xx. "Original LLC Agreement" has the meaning assigned to that term in the
Preamble hereto.
yy. "Other Principals" has the meaning assigned to that term in Section
7.2(b).
zz. "Permitted Transferee" means Holdings and any other Person
consolidated with Holdings for federal income tax purposes and, with respect to
any natural person, the parents, siblings, spouse, children (by birth or
adoption) or spouses of children of that person (in any such case who are age 21
or over) and any trust, partnership, limited partnership, limited liability
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partnership or limited liability company created by or for one or more of the
aforementioned individuals (including those who are under age 21) of which a
Principal is the voting trustee, general partner, managing member or otherwise
possesses the power to vote the LLC Interest held by that entity.
aaa. "Person" means any individual, partnership, limited liability
company, corporation, association, trust, joint venture or governmental,
business or other entity.
bbb. "Pre-Tax Net Income" means the LLC's pre-tax net income calculated in
accordance with GAAP, except that only [*]% of revenues generated from clients
directly referred to the LLC by a staff member of WTC or any of its Affiliates
shall be included in calculating Pre-Tax Net Income (which amount in the case of
a dispute shall be determined by the Board).
ccc. "Principals" means Grant, Tani, Barash, ▇▇▇▇▇▇ and other employees of
the LLC or the Management Company subsequently admitted to the LLC as Members in
accordance herewith, and the term "Principal" means any one of the foregoing
Principals.
ddd. "Profits" and "Losses," for each Fiscal Year or Accounting Period
mean an amount equal to the LLC's taxable income or loss, respectively, for that
year or period, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), but computed with the following adjustments:
(1) Any income of the LLC exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses shall be added
to that taxable income or loss;
(2) Any expenditures of the LLC described in Code Section
705(a)(2)(B) or treated as such expenditures pursuant to Section
1.704-1(b)(2)(iv)(i) of the Treasury Regulations, and not otherwise taken
into account in computing Profits and Losses, shall be subtracted from
that taxable income or loss;
(3) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Carrying Value of that
property, notwithstanding that its adjusted tax basis differs from its
Carrying Value;
(4) In lieu of depreciation, amortization and other cost recovery
deductions otherwise taken into account in computing taxable income or
loss, there shall be taken into account Depreciation; and
(5) Notwithstanding any other provisions of this definition, any
items that are specially allocated pursuant to Section 6.5 or that result
from an adjustment to basis of
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one or more Members pursuant to Code Section 734(b) or 743(b) shall not be
taken into account in computing Profits or Losses.
eee. "Purchase Closing Date" means the date upon which LLC Interests are
purchased and paid for pursuant to Article 7 hereof.
fff. "Purchase Price" means, in the case of a purchase of an LLC Interest
from a Principal or his or her Permitted Transferees or from ▇▇▇▇▇ ▇▇▇▇ (in the
case of a purchase of the Derivative Share attributable to that Principal as a
shareholder of ▇▇▇▇▇ ▇▇▇▇), an amount equal to (a) the LLC Value multiplied by
(b) a fraction, the numerator of which is the number of Membership Points
associated with the LLC Interest to be purchased and the denominator of which is
the number of all Membership Points outstanding on the related Purchase Closing
Date. The Purchase Price shall be calculated by using the LLC Value as of the
end of the Fiscal Year immediately prior to the exercise of the Put or the event
giving rise to the Call.
ggg. "Purchaser" has the meaning assigned to that term in Section 7.4(c).
hhh. "Put" has the meaning assigned to that term in Section 7.2(b).
iii. "Put Notice" has the meaning assigned to that term in Section 7.2(d).
jjj. "Realization Event" means (1) any sale of all or substantially all of
the LLC's assets, (2) any merger or consolidation of the LLC with or into
another entity or, unless otherwise approved by the Board, of another entity
with or into the LLC or (3) any dissolution or winding up of the LLC.
kkk. "Remaining Principals" has the meaning assigned to that term in
Section 7.4(a).
lll. "Restricted Area" has the meaning assigned to that term in Section
11.2.
mmm. "Restricted Period" has the meaning assigned to that term in Section
11.2.
nnn. "Retirement" with respect to a natural person Principal means when
that Principal reaches age 65; provided that Retirement shall not occur with
respect to a Principal who continues to work for the LLC or the Management
Company after reaching age 65 unless the Board notifies him or her that it
objects to his or her continued participation in the LLC and the Management
Company. Retirement with respect to a Principal who continues to participate in
the LLC and the Management Company after reaching that age shall occur upon the
earlier of (1) notification from the Board that it objects to that Principal's
continued participation or (2) the voluntary cessation of the Principal's
employment by the LLC and the Management Company.
ooo. "Second Member" has the meaning assigned to that term in the Preamble
hereto.
ppp. "Subsidiary" or "Subsidiaries" means any corporation, partnership or
other organization, whether incorporated or unincorporated, of which more than
twenty-five percent
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(25%) of either the equity interests in, or the voting control of, that
corporation, partnership or other organization is beneficially owned by a
Person, directly or indirectly, through Subsidiaries or otherwise, or of which a
Person serves as the general partner or managing member.
qqq. "Tax Matters Member" has the meaning assigned to that term in Section
9.1(a).
rrr. "Term," with respect to a Principal, has the meaning assigned to that
term in that Principal's Employment Agreement.
sss. "Transfer" has the meaning assigned to that term in Section 7.1(a).
ttt. "Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code, as those regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
uuu. The "Valuation" will be based on a formula that weights the LLC's
gross revenue and Pre-Tax Net Income at $[*] and applies a multiple based on the
annual compound growth rate of each from the amounts reflected on ▇▇▇▇▇ ▇▇▇▇'▇
pro forma financial statements for the year ended December 31, 2003, which are
attached hereto as part of Schedule 1(uuu). For all purposes in calculating the
Valuation, ▇▇▇▇▇ ▇▇▇▇'▇ gross revenues for the year ended December 31, 2003
shall be deemed to be $[*] and its pre-tax net income for the year ended
December 31, 2003 shall be deemed to be $[*]. The gross revenue multiple will be
between [*] and [*] based on a range of annual compound growth rate of revenues.
The Pre-Tax Net Income multiple will be between [*] and [*], based on a range of
annual compound growth rates of Pre-Tax Net Income. The multiples will be
determined by calculating the annual compound growth rates of the LLC's gross
revenues and Pre-Tax Net Income according to the following formula:
Pre-Tax Net
Annual Compound Growth Gross Revenue Multiple Income Multiple
---------------------- ---------------------- ---------------
[*] or less [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] or greater [*] [*]
Annual compound growth in revenues or Pre-Tax Net Income between [*]and [*]
shall be interpolated proportionately.
The Valuation will be determined for each calendar year in accordance with
GAAP and the accounting principles and practices historically used by ▇▇▇▇▇ ▇▇▇▇
in preparing the Financial Statements, provided that the following items will be
excluded: (1) extraordinary, non-recurring items of revenue (including any fees
received for services previously provided to Burger Business, LLC) and expense;
and (2)[*]. For purposes of
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determining the Valuation, expenses of the LLC do not include the cost of
support services generally available from WTC, but do include the cost of the
benefits described in Section 7.1 of the Limited Liability Company Interest
Purchase Agreement and the costs and fees paid the Management Company under the
Management Operating Agreement. For years after 2003, the Valuation will be
calculated by reference to the LLC's financial statements prepared in accordance
with GAAP and separately audited by an independent accounting firm selected by
the Principals and acceptable to Holdings, which acceptance will not be
unreasonably withheld, and such other books and records as are sufficient to
identify the items in the proviso in the preceding sentence.
The following is a sample calculation of the Valuation at the end of the
second calendar year following Closing assuming annual compound growth of
revenues of [*] and annual compound growth of Pre-Tax Net Income of [*]:
Gross Revenue = $[*]
Interpolated gross revenue multiple = [*]
Valuation based on gross revenue = $[*]
Pre-Tax Net Income = $[*]
Interpolated Pre-Tax Net Income multiple = [*]
Valuation based on Pre-Tax Net Income = $[*]
Earnout valuation = [*] * $[*] +
[*] * $[*]
= $[*]
Earnout payment = [*] * $[*]
= $[*]
Included in Schedule 1(uuu) are additional examples of computations related to
the Valuation.
Notwithstanding the foregoing or anything to the contrary herein, for
purposes of determining the Valuation, for any period beginning after January 1,
2004 until Closing, ▇▇▇▇▇ ▇▇▇▇'▇ financial statements, prepared on an accrual
basis in accordance with GAAP (including, without limitation, an appropriate
accrual for the Bonus Plan that is Schedule 5.1 to this Agreement) and
separately audited by an independent accounting firm selected by the Principals
and acceptable to Holdings (which acceptance shall not be unreasonably
withheld), and such other books and records as are sufficient to identify the
items in the proviso in the first sentence of the third paragraph of this
Section 1(uuu) for ▇▇▇▇▇ ▇▇▇▇, shall be used in place of the LLC's financial
statements.
vvv. "Voting Members" means all Members, other than Non-Voting Members.
www. "WTC" has the meaning assigned to that term in Section 1(k).
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xxx. "WTC Clients" means investment management, custody and personal trust
clients of WTC or any of its Affiliates. For this purpose, the LLC and its
Subsidiaries are not considered to be Affiliates of WTC.
ARTICLE 2
GENERAL PROVISIONS
Section 2.1. Formation, Name and Continuation. The name of the LLC is
"Grant ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC." The LLC's business will be conducted with
reference to its affiliation with WTC as the Board designates from time to time
and may be conducted under any other name or names the Board designates from
time to time. The parties hereto enter into this Agreement pursuant to the
provisions of the Delaware Act and for the purposes described herein. The rights
and liabilities of the Members shall be as provided in the Delaware Act for
members, except as provided herein. The name, mailing address, initial capital
contribution and Membership Points of each Member shall be listed on Schedule 1
hereto. The LLC's Secretary shall update any schedule from time to time
necessary to reflect accurately the information therein. Any amendment or
revision to a schedule made in accordance with this Agreement shall not be
deemed an amendment hereto. Any reference in this Agreement to a "schedule"
shall be deemed to be a reference to a schedule hereto as amended and in effect
from time to time, unless expressly noted otherwise.
Section 2.2. Term. The term of the LLC commenced on the date the
Certificate was filed in the office of the Secretary of State of Delaware and
shall continue in perpetuity, unless dissolved in accordance with the provisions
hereof. The existence of the LLC as a separate legal entity shall continue until
the Certificate's cancellation.
Section 2.3. Registered Agent and Office; Principal Place of Business.
a. The LLC's registered agent and office in Delaware shall be WTC, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Board may at any time
designate another registered agent and/or registered office.
b. The LLC's principal place of business initially shall be at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
c. The Board may, at any time and from time to time: (1) change the
location of the LLC's principal place of business and establish an additional
place or places of business of the LLC as it may determine; (2) change the
location of the LLC's books and records; (3) change the LLC's registered office
in Delaware; and (4) change the LLC's resident agent for service of process in
Delaware.
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Section 2.4. Fiscal Year. Except as the Board determines otherwise, the
LLC's fiscal year for accounting purposes and taxable year ("Fiscal Year") shall
be the calendar year, except for the short year in the years of the LLC's
formation and termination and as otherwise required by the Code.
ARTICLE 3
PURPOSE AND POWERS OF THE LLC
Section 3.1. Purpose. The LLC is formed for the purpose of engaging in any
lawful act or activity for which limited liability companies may be formed under
the Delaware Act and engaging in any and all activities necessary or incidental
to the foregoing; provided that the LLC is not formed for the purpose of and
shall not engage in any business that would be impermissible for WTC or any of
its Affiliates under federal or state banking law, as those laws may be amended
from time to time.
Section 3.2. Powers of the LLC. The LLC shall have all power and authority
granted under the Delaware Act to take all actions necessary, appropriate,
proper, advisable, incidental or convenient to or for the furtherance of the
purpose set forth in Section 3.1.
ARTICLE 4
MEMBERS
Section 4.1. Voting. Members shall have the power to vote only as provided
by this Article 4 and as required by law. Unless otherwise provided in this
Agreement or by law, any vote of Members shall be determined by a Majority Vote.
Section 4.2. Meetings of Members. The Board, the LLC's President or
Members holding LLC Interests representing at least five Membership Points may
call a meeting of Voting Members. Meetings of Voting Members shall be held at
the LLC's principal place of business upon at least 10 days' written notice to
all Voting Members. The notice shall state the purpose or purposes of the
meeting with reasonable particularity and shall contain a description of the
items to be acted upon. Any notice required hereunder may be waived in writing
by the Person to whom notice should have been sent, whether before or after the
meeting, and attendance at any meeting waives the attendee's right to any notice
required hereunder unless the Person attends for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting was not lawfully called or convened.
Section 4.3. Quorum. At any meeting of Voting Members, the presence of
Members owning LLC Interests representing a majority of the Membership Points,
other than LLC Interests representing Membership Points owned by Non-Voting
Members, shall constitute a quorum. Any meeting may be adjourned from time to
time by Voting Members holding a
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majority of the votes present at the meeting, whether or not a quorum is
present, and the meeting may be held as adjourned upon at least 10 days' written
notice to all Voting Members.
Section 4.4. Action by Consent. Any action of Voting Members may be taken
without a meeting if the Voting Members required to consent to the action to be
taken, if the action had been taken at a meeting of Voting Members, consent to
the action in writing and the Board and all Members are given at least five
days' prior written notice of the proposed action. The written consents shall be
filed with the records of the Members' meetings. Those actions by consent shall
be treated for all purposes as actions taken at a meeting.
Section 4.5. Telephonic Meetings. Voting Members may participate in a
meeting of Voting Members by means of a conference telephone or similar
communications equipment if all Voting Members participating in the meeting can
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 4.6. Non-Voting Members. Any Member shall become a Non-Voting
Member until his or her LLC Interest has been purchased in full in accordance
with Article 7 if that Member (a) is terminated from employment with the LLC or
the Management Company for Cause, (b) voluntarily resigns from employment with
the LLC or the Management Company without Good Reason, (c) is a Member during
the periods described in Sections 7.2(e) and 7.3(d) or (d) is so determined by
the Board to be a Non-Voting Member by reason of Cause. The estate or other
successor of any Member that dies, dissolves or otherwise ceases to exist shall
become a Non-Voting Member until his, her or its LLC Interest has been purchased
in full in accordance with Article 7. In accordance with Section 7.6, the Board
may admit a substitute Member as a Non-Voting Member. Non-Voting Members do not
have the right to receive notice of meetings of Voting Members or to participate
in those meetings.
ARTICLE 5
MANAGERS AND OFFICERS
Section 5.1. Managers. The management of the LLC's business shall be
vested in the Board, which shall consist of five Managers, all of whom must be
Voting Members or employees, officers or directors of Voting Members or of
Holdings or one of its Affiliates. Unless otherwise specified herein, the Board
shall act by majority vote of those Managers present at a meeting at which a
quorum is present, with each Manager on the Board present having one vote.
Notwithstanding the foregoing, subject to the Board's authority to approve
the LLC's budget as set forth in Section 5.12 hereof, the Principals shall set
the salary and benefits of the employees of the LLC and their Subsidiaries,
including setting (a) the amount of the bonus under the Bonus Plan attached
hereto as Schedule 5.1 (the "Bonus Plan"), (b) the annual increase in base
salaries and (c) the terms of generally applicable benefit plans (including
health coverage,
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group life and disability insurance and retirement, including any benefits the
LLC seeks to obtain from WTC pursuant to Section 7.1 of the Limited Liability
Company Interest Purchase Agreement and Section 12.2(b) of this Agreement);
provided, however, that a Manager whose compensation is being approved shall not
be entitled to vote with respect to that matter. Without limiting the foregoing,
the initial Principals shall be entitled to aggregate salaries totaling $[*] (to
be increased annually by not more than [*]% and not less than the annual rate of
inflation as determined by the increase in the California Consumer Price Index),
to be allocated among them as they determine by Majority Vote of the Principals.
Section 5.2. Designated Managers.
a. Until (1) March 31, 2009 and (2) thereafter provided that they own
combined LLC Interests and Derivative Shares with an aggregate of at least 3% of
the then outstanding Membership Points, the Principals shall be entitled to
designate or redesignate two of the five Managers by Majority Vote of the
Principals (or at least 40% of the Managers if the number of Managers is
adjusted) by written notice to the Board of their designee. The Designated
Managers must be Principals.
b. Holdings and its Affiliates shall be entitled to appoint the remainder
of the five Managers (or at least 60% of the Managers if the number of Managers
is adjusted) by written notice to the Board of their designees.
c. The initial Managers of the LLC shall be ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇, who shall be deemed designated by the Principals pursuant to Section
5.2(a), and ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, who shall be
deemed designated by Holdings and its Affiliates pursuant to Section 5.2(b). A
Manager shall hold office until the Manager resigns, Retires, dies or is
removed.
Section 5.3. Resignation or Removal of a Manager.
a. Any Manager may resign by delivering to the LLC a signed notice
indicating his or her intent to resign and the effective date of his or her
resignation.
b. The Board by Majority Vote may remove any Manager (1) for Cause or (2)
if the Manager becomes subject to a Disability. A Manager shall be automatically
removed if he or she becomes a Non-Voting Member. Those Persons who are entitled
to designate a Manager and who hold the number of Membership Points necessary to
designate a Manager may remove and replace that Manager previously designated by
them at any time upon written notice to the LLC.
Section 5.4. Vacancies. If a Manager resigns or is removed from the Board,
the Persons who previously designated that Manager may designate another Person
to serve as Manager at any time after the resignation or removal by written
notice to the LLC.
Section 5.5. Meetings. The Board shall hold regular quarterly meetings at
such places and times as the Board determines from time to time, provided
reasonable notice of the first
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regular meeting following any such determination is given to Managers absent at
the meeting fixing regular meetings. When called by the President or by Managers
holding at least 25% of the votes on the Board, the Board may hold special
meetings at such places and times as are designated in the call of the meeting,
upon at least ten days' notice given by the President, the Secretary or an
Assistant Secretary, or by the Managers calling the meeting. Any notice required
hereunder may be waived in writing by the Person to whom notice should have been
sent, whether before or after the meeting, and attendance at any meeting waives
the attendee's right to any notice required hereunder unless the Person attends
for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting was not lawfully called or
convened.
Section 5.6. Quorum. At any meeting of the Board, the presence of three
Managers shall constitute a quorum. Any meeting may be adjourned from time to
time by Managers holding a majority of votes present at the meeting, whether or
not a quorum is present, and the meeting may be held as adjourned upon at least
10 days' notice to all Managers.
Section 5.7. Action by Consent. Any action of the Board may be taken
without a meeting if the Managers required to consent to the action to be taken,
if the action had been taken at a meeting of the Board, consent to the action in
writing. The written consents shall be filed with the records of the Board
meetings. Those actions by consent shall be treated for all purposes as actions
taken at a meeting.
Section 5.8. Telephonic Meetings. Managers may participate in Board
meetings by conference telephone or similar communications equipment, as long as
all Managers participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence at the meeting in person.
Section 5.9. Managers as Agents; Limitation on Power of Members. To the
extent of their powers set forth herein, the Managers are agents of the LLC for
purposes of the LLC's business, and the actions of the Managers taken in
accordance with those powers shall bind the LLC. No Member, in that Person's
capacity as Member, acting individually or with all Members, and no Managers
representing less than the number of Managers necessary for Board action under
Sections 5.1 or 5.7, may bind the LLC. The Managers representing the number of
Managers necessary for Board action under Article 5 may bind the LLC.
Section 5.10. Duty of Managers. A Manager is required to act in good faith
in a manner he or she reasonably believes to be in the best interest of the LLC
and shall be deemed to owe the same fiduciary duty to the LLC as a director of a
Delaware corporation is deemed to owe the corporation under Delaware law.
Section 5.11. Officers. The Board may appoint agents and employees of the
LLC who are designated as officers of the LLC (each, an "Officer"). The Officers
shall at all times include a President and a Secretary and may from time to time
include a Chairman, a Vice Chairman, one or more Executive Vice Presidents,
Senior Vice Presidents, Vice Presidents and Assistant
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Secretaries and such other Officers as the Board may approve. The initial
Officers shall be as set forth on Schedule 5.11. Subject to Section 5.13(d)(5),
the Board may remove any Officer at any time, for any reason, in its sole and
absolute discretion. The Officers shall be agents of the LLC, authorized to
execute and deliver documents and take other actions on the LLC's behalf,
subject to the direction of the Board, and to have such other duties as the
Board may approve, provided that the delegation of any such power and authority
to the Officers shall not limit in any respect the power and authority of the
Board to take such actions or any other action on the LLC's behalf as provided
herein. The Secretary shall record the actions of the Board, certify this
Agreement and any related document or instrument, certify Board resolutions,
incumbency and other matters of the LLC, and have such other ministerial duties
as the Board may specify from time to time.
Section 5.12. Approval of Annual Budget. The Board alone shall have the
power to approve the LLC's annual budget. If the LLC's annual budget is not
approved in its entirety by the Board under this Section 5.12, the Board shall
approve the budget to the extent of those items on which there is agreement, and
shall continue to negotiate in good faith until all items of the budget are
agreed upon. The Officers shall not exceed the LLC's annual budget by more than
10% without seeking prior approval of the Board of any further expenses of the
LLC.
Section 5.13. Powers of the Board; Powers of Officers.
a. Subject to the provisions hereof and of the Delaware Act requiring the
approval of Members, the Board's powers on behalf and in respect of the LLC
shall be all powers and privileges permitted to be exercised by managers of the
LLC under the Delaware Act (including Section 18-402 of the Delaware Act),
including the authority, power and discretion to manage and control the business
operations, affairs and properties of the LLC, to make all decisions regarding
those matters and to perform any and all other acts or activities customary or
incident to the management of the LLC's business operations. Notwithstanding the
foregoing, subject to the Board's right to approve the LLC's budget as set forth
in Section 5.12 hereof, the Principals shall have the right and power, by
Majority Vote of the Principals, to hire and terminate employees of the LLC who
are not Principals and determine salaries, bonuses and other employee benefits
for the employees of the LLC (including any benefits the LLC seeks to obtain
from WTC pursuant to Section 7.1 of the Limited Liability Company Interest
Purchase Agreement or Section 12.2(b) of this Agreement).
b. Except to the extent that this Agreement requires the Board to vote on
a matter, the Board may delegate any of its powers to the Officers or any one or
more of them.
c. The Board hereby delegates to the respective Officers the respective
powers delegated to officers of a corporation under Delaware's General
Corporation Law, subject, except as otherwise provided herein, to the powers of
a board of directors of a corporation under Delaware law. Any documents signed
by such Officers with the foregoing delegation shall be binding on the LLC as if
signed by the number of Managers required to approve that action. The Board
reserves the right to rescind the delegation of any such powers at any time in
its sole discretion.
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d. Notwithstanding the foregoing, prior to January 1, 2009, without the
approval of at least one Manager who is a Principal, (i) Holdings shall not
sell, transfer or assign any of its LLC Interests except to a Person that is an
affiliate of Holdings, and (ii) the Board has no authority to:
(1) issue new LLC Interests;
(2) admit new Members;
(3) in a single transaction or series of related transactions,
consolidate or merge the LLC or any Subsidiary of the LLC with or into another
Person (whether or not the LLC or that Subsidiary is the surviving Person),
sell, assign, transfer, lease, convey or otherwise dispose of all or any
substantial part of the property or assets of the LLC or any Subsidiary of the
LLC, or liquidate, dissolve or wind up, or undertake any similar transaction or
authorize, announce, make proposals or seek offers for, or enter into any
binding or nonbinding arrangements, understandings or agreements with respect to
any transaction or transactions with a similar effect to the foregoing, except
in all cases with, into, or to any Person that is an Affiliate of the LLC or
Holdings;
(4) file a voluntary petition or otherwise initiate proceedings (i)
to have the LLC adjudicated insolvent, or (ii) seeking an order for relief of
the LLC as a debtor under the United States Bankruptcy Code (11 U.S.C. Sections
101 et seq.); file any petition seeking any composition, reorganization,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy laws or any other present or future applicable
federal, state or other statute or law relating to bankruptcy, insolvency or
other relief for debtors with respect to the LLC; or seek, consent or fail to
contest the appointment of any trustee, receiver, conservator, assignee,
sequestrator, custodian, liquidator (or other similar official) of the LLC or of
all or any substantial part of the property or assets of the LLC, or make any
general assignment for the benefit of creditors of the LLC, or admit in writing
the inability of the LLC to pay its debts generally as they become due, or
declare or effect a moratorium on the LLC's debt or take any action in
furtherance of any proscribed action; or
(5) determine that an event of Cause or a Disability has occurred
with respect to a Principal hereunder.
e. The Principals shall report to an officer of WTC at the level of
executive vice president or above.
Section 5.14. Reimbursement. The LLC shall reimburse each Manager and
Officer for all reasonable and necessary out-of-pocket expenses that Manager or
Officer incurs on the LLC's behalf according to terms the Board approves, except
that the LLC will not be required to reimburse any out-of-pocket travel expenses
of a Manager or Officer who has been designated by Holdings. The Board's sole
determination of which expenses may be reimbursed to a Manager or an Officer and
the amount of those expenses shall be conclusive. Any such reimbursement
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shall be treated as an expense of the LLC that shall be deducted in computing
Profits and Losses and, if made to a Manager or Officer that also is a Member,
shall not be deemed a distributive share of Profits or a distribution or return
of capital to such Manager or Officer.
ARTICLE 6
CAPITAL CONTRIBUTIONS, CAPITAL
ACCOUNTS, DISTRIBUTIONS AND ALLOCATIONS
Section 6.1. Capital Contributions. In exchange for the capital
contribution set forth opposite their names on Schedule 1 hereto, Holdings and
the Second Member have each received an LLC Interest with the number of
Membership Points set forth therein.
Section 6.2. Capital Accounts. Each Member shall have a Capital Account,
which shall not bear interest. No Member has the right to demand a return of
that Member's capital contributions (or the balance of that Member's Capital
Account). In addition, no Member has the right to (a) demand and receive any
distribution from the LLC in any form other than cash or (b) bring an action of
partition against the LLC or its property.
Section 6.3. Distributions of Cash.
a. Within 15 days after the availability of the year-end audit for each
Fiscal Year, the Board shall cause the LLC to distribute Free Cash Flow to the
Members in proportion to the average of their respective Membership Points held
as of the close of each Accounting Period in that Fiscal Year.
b. Notwithstanding Section 6.3(a), the Board shall cause the LLC to make
interim distributions of Free Cash Flow to the Members within 30 days after the
end of each of the four quarters in each Fiscal Year, in proportion to the
average of their respective Membership Points held as of the close of each
Accounting Period in such quarter; all such distributions in any Fiscal Year
shall be deemed advances against the distribution required by Section 6.3(a) for
that year. If any such distribution is determined to be excessive by the Board,
the Members shall repay, without interest, the excessive portion of the
distribution within 30 days after being notified by the Board in writing of that
determination.
c. The LLC is authorized to withhold from distributions, or with respect
to allocations, to the Members and to pay over to any foreign, federal, state or
local government any amount required to be so withheld pursuant to the Code or
any provision of any foreign, federal, state or local tax law. All amounts so
withheld, and all amounts withheld pursuant to the Code or any provision of any
foreign, federal, state or local tax law with respect to any payment,
distribution or allocation to the LLC, shall be treated for all purposes hereof
as amounts distributed pursuant to this Section 6.3 to the affected Member, or
all of the Members, as the case may be.
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d. Notwithstanding any provision to the contrary herein, the LLC shall not
make a distribution to any Member on account of its LLC Interest if that
distribution would (1) cause that Member to have a deficit balance in his, her
or its Capital Account or (2) violate Section 18-607 of the Delaware Act or
other applicable law.
e. The proceeds of a sale of all or substantially all of the LLC's assets
shall be distributed pursuant to Section 13.4(a) as if they were proceeds of the
LLC's liquidation.
f. If any LLC Interest is transferred during any Accounting Period, Free
Cash Flow for that period that is distributable to the holder thereof shall be
distributed in accordance with Section 6.7 (by substituting "Accounting Period"
for "Fiscal Year").
Section 6.4. Allocations of Profits and Losses for Tax Purposes.
a. After giving effect to the special allocations provided in Section 6.5,
and except as otherwise provided in Section 6.4(c), Profits for any Fiscal Year
or Accounting Period shall be allocated to the Members as follows:
(1) First, to each Member in an amount equal to the excess, if any,
of (i) the cumulative Losses allocated to that Member pursuant to Section
6.4(b) for all prior Fiscal Years and prior Accounting Periods in the
current Fiscal Year over (ii) the cumulative Profits allocated to that
Member pursuant to this Section 6.4(a) for all such prior Fiscal Years and
Accounting Periods; provided that, if the Profits of the current Fiscal
Year or Accounting Period are less than the sum of such excess for all
Members, those Profits shall be allocated to each Member in proportion to
his, her or its share of that sum; and
(2) Second, to the Members in proportion to their respective
Membership Points as of the end of that Fiscal Year or Accounting Period,
as the case may be.
b. After giving effect to the special allocations provided in Section 6.5,
and except as otherwise provided in Section 6.4(c), Losses for any Fiscal Year
or Accounting Period shall be allocated to the Members as follows:
(1) First, to each Member in an amount equal to the excess, if any,
of (i) the cumulative Profits allocated to that Member pursuant to Section
6.4(a) for all prior Fiscal Years and prior Accounting Periods in the
current Fiscal Year over (ii) the cumulative Losses allocated to that
Member pursuant to this Section 6.4(b) for all such prior Fiscal Years and
Accounting Periods; provided that, if the Losses of the current Fiscal
Year or Accounting Period are less than the sum of such excess for all
Members, those Losses shall be allocated to each Member in proportion to
his, her or its share of that sum, and provided further that no current
Fiscal Year Losses shall be allocated to any Member to the extent that
allocation would cause that Member to have a deficit in his, her or its
Capital Account;
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(2) Second, to the Members in proportion to their respective
Membership Points as of the end of that Fiscal Year or Accounting Period,
as the case may be, until the Capital Account balance as of that time of
any Member is reduced to zero; and
(3) Third, to the Members in proportion to their respective Capital
Account balances as of the end of that Fiscal Year or Accounting Period,
as the case may be.
c. Notwithstanding Sections 6.4(a) and 6.4(b), Profits and Losses from the
sale of all or substantially all of the LLC's assets, and Profits and Losses
from a deemed sale of assets in connection with the liquidation of the LLC (as
described in Section 13.4(b)), shall be allocated among the Members in
proportion to distributions pursuant to Sections 13.4(a)(2) through (4).
Section 6.5. Special Allocations.
a. The provisions of the Treasury Regulations under Code Section 704(b)
relating to the qualified income offset, minimum gain chargeback, minimum gain
chargeback with respect to nonrecourse debt, allocation of nonrecourse
deductions and allocation of items of deduction, loss or expenditure relating to
nonrecourse debt hereby are incorporated herein by this reference and shall be
applied to the allocation of items of income, gain, loss or deduction of the
LLC. However, the Members do not intend to incorporate, by reference or
otherwise, the "deficit restoration obligation" described in Section
1.704-1(b)(2)(ii)(c) of the Treasury Regulations.
b. If items of income, gain, loss or deduction are allocated to one or
more Members pursuant to Section 6.5(a), subsequent items of income, gain, loss
or deduction shall first be allocated to the Members in a manner designed to
result in each Member's receiving an allocation of Profits and Losses through
the time of that subsequent allocation equal to what that Member would have
received in the absence of Section 6.5(a).
Section 6.6. Allocations under Code Section 704(c).
a. In accordance with Code Section 704(c) and the Treasury Regulations
thereunder, income, gain, loss and deduction with respect to any property
contributed to the LLC's capital shall, solely for tax purposes, be allocated
among the Members to take account of any variation between the LLC's adjusted
basis in that property for federal income tax purposes and its initial Carrying
Value at the time of its contribution to the LLC.
b. Allocations of income, gain, loss and deduction with respect to any
asset revalued in accordance with Section 1.704-1(b)(2)(iv)(f) of the Treasury
Regulations shall take account of any variation between the LLC's adjusted basis
in that asset for federal income tax purposes and its Carrying Value in the same
manner as under Code Section 704(c) and the Treasury Regulations thereunder and
as required by Section 1.704-1(b)(2)(iv)(g) of the Treasury Regulations.
c. Any elections or other decisions relating to allocations described in
Sections 6.6(b) or (c) shall be made by the Members in any manner that
reasonably reflects the purposes and intent hereof. Allocations pursuant to
Sections 6.4, 6.5 and 6.6 are solely for purposes of
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federal, state and local income taxes and shall not affect, nor in any way be
taken into account in computing, any Member's Capital Account balance, Free Cash
Flow or other items or distributions pursuant to any provision hereof.
Section 6.7. Transfer of LLC Interests. If an LLC Interest is transferred
during any Fiscal Year (including to the LLC or another Member), the Profits or
Losses attributable to that LLC Interest for that Fiscal Year shall be
allocated, and the Free Cash Flow for that year distributable to the holder
thereof shall be distributed, between the transferor and the transferee in any
manner permitted by law as to which they agree; provided, however, that, if the
LLC does not receive, on or before January 31 of the year following the Fiscal
Year in which the transfer occurs, written notice from the transferor and the
transferee stating the manner in which the parties have agreed to allocate those
Profits or Losses and distributions of Free Cash Flow, then all such Profits or
Losses and distributions of Free Cash Flow shall be allocated between or made to
the parties based on the percentage of the year each of them was, according to
the LLC's books and records, the holder of the transferred LLC Interest.
ARTICLE 7
TRANSFER OF LLC INTERESTS, PUT AND CALL OPTIONS, CHANGE OF
CONTROL AND ADMISSION OF ADDITIONAL MEMBERS
Section 7.1. Assignability of Interests.
a. Except as otherwise provided in this Article 7, no LLC Interest may be
sold, assigned, transferred, pledged, hypothecated, given, exchanged, optioned
or encumbered (each, a "Transfer"), and no Transfer in violation of this
Agreement shall be binding upon the LLC.
b. A Member may transfer all or any portion of his, her or its LLC
Interest and/or the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable
to that Member to any one or more Permitted Transferees who agree to be bound by
the terms and conditions hereof; provided that, notwithstanding anything to the
contrary contained herein, the transferring Member shall retain the vote with
respect to the LLC Interest so Transferred to Permitted Transferees; provided,
however, that if the Transferee is Holdings or is consolidated with Holdings for
federal income tax purposes, the Transferee shall become a Voting Member.
Section 7.2. Put Options.
a. Except as provided in the next paragraph of this Section 7.2(a), on or
before February 28 of each year beginning in 2005, the Board shall notify each
Principal and each Member of the LLC Value as of December 31 of the immediately
preceding year. The Board shall also furnish a certified copy of a balance
sheet, income statement and cash flow statement of the LLC for each Fiscal Year
and statement of that Member's Capital Account balance as of the end of that
Fiscal Year, all of which shall be audited by, and shall receive the unqualified
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opinion of, the LLC's independent accounting firm, as if the LLC were
independent and not affiliated with Holdings, to each Member promptly after that
financial information is available.
If the LLC's financial statements are unavailable until after February 28
of a year beginning in 2005, the Board shall notify, on or before February 28 of
that year, each Principal and each Member of the estimated LLC Value as of
December 31 of the immediately preceding year and shall notify each Member of
the actual LLC Value as promptly as possible after those financial statements
become available. If the Purchase Closing Date has occurred, each of the
Principals, his or her Permitted Transferees and ▇▇▇▇▇ ▇▇▇▇, as the case may be,
exercising Put rights with respect to his, her or its LLC Interests and the
purchaser(s) of such LLC Interests, as the case may be, shall remit to the
other(s) the amount(s) necessary to reflect appropriately the difference between
the LLC Value and the estimated LLC Value.
b. Subject to the terms, conditions and limitations of this Section 7.2,
each Principal (on behalf of himself or herself and/or his or her Permitted
Transferees) (but not ▇▇▇▇▇ ▇▇▇▇, other than in accordance with the next
sentence) may exercise an option to sell all or any portion of his, her or its
LLC Interest and associated Membership Points at the Purchase Price therefore by
delivery of a notice in the form of Exhibit A. In addition, subject to the
terms, conditions and limitations of this Section 7.2, if a Principal, as a
shareholder of ▇▇▇▇▇ ▇▇▇▇, exercises an option to sell all or any portion of his
or her Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interests attributable to that
Principal, then ▇▇▇▇▇ ▇▇▇▇ shall exercise an option to sell that portion of its
outstanding LLC interests represented by the Derivative Share attributable to
that Principal (each such exercise by a Principal or ▇▇▇▇▇ ▇▇▇▇ is referred to
herein as a "Put") at the Purchase Price therefor by delivery of a notice in the
form of Exhibit A. Upon exercise of a Put under this Section 7.2(b) by a
Principal, the other Principals (the "Other Principals") shall first have the
right (in proportion to their Membership Points or in such other proportions as
the Other Principals may determine) to purchase from that Principal, that
Principal's Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the case may be, all of
that Principal's and his or her Permitted Transferees' LLC Interests and the
Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that Principal
with respect to which the Put has been exercised (or such portion as the Other
Principals agree to purchase). If the Other Principals do not elect to purchase
all of such LLC Interests and associated Membership Points, Holdings shall
thereupon become obligated to purchase any such remaining LLC Interests and
associated Membership Points.
c. Notwithstanding anything contained in Section 7.2(b) to the contrary,
unless otherwise agreed to by Holdings: (1) an Initial Principal (on behalf of
himself, herself, his or her Permitted Transferees and/or the Derivative Share
of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that Principal) may not exercise a
Put prior to January 1, 2010; (2) a Principal other than an Initial Principal
(on behalf of himself, herself, his or her Permitted Transferees and/or the
Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that Principal)
may not exercise a Put until such Principal has been a Member for at least five
years; and (3) Puts may not be exercised by a Principal in any year with respect
to LLC Interests and associated Membership Points representing more than 50% of
the Membership Points of the LLC owned by that Principal, his or her Permitted
Transferees and/or the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC
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Interest attributable to that Principal and, with respect to an Initial
Principal, the lesser of that amount and more than 50% of the Membership Points
of the LLC owned by that Initial Principal, his or her Permitted Transferees
and/or the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that
Initial Principal at Closing (as defined in the Limited Liability Company
Interest Purchase Agreement); provided, however, if a Put is not exercised in
full by a Principal or his or her Permitted Transferees or with respect to the
Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that Principal for
any year beginning in the first year in which that Put is first exercisable, the
unexercised portion may be exercised at the time a Put is exercised for any
subsequent year. For purposes of illustration, if, during 2010, an Initial
Principal, his or her Permitted Transferees and ▇▇▇▇▇ ▇▇▇▇ exercised a Put for
LLC Interests associated with only 10% of the Membership Points held by them at
Closing relating to that Principal, that Principal, his or her Permitted
Transferees and ▇▇▇▇▇ ▇▇▇▇ would then be permitted during 2011 to exercise a Put
in respect of LLC Interests associated with 90% of the Membership Points held by
them at Closing relating to that Principal.
d. A Principal (on behalf of himself, herself, his or her Permitted
Transferees and/or the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest
attributable to that Principal) may exercise a Put if, on or before March 31 of
the year in which the exercise occurs, Holdings and each Other Principal
receives an irrevocable notice of exercise of the Put substantially in the form
of Exhibit A hereto (a "Put Notice") stating that he or she is electing to
exercise the Put and specifying the LLC Interests and associated Membership
Points to be sold pursuant to the Put. On or before 60 days after receipt of a
Put Notice, the Other Principals may exercise their right of first refusal to
purchase all of that Principal's and his or her Permitted Transferees' LLC
Interests and associated Membership Points and the Derivative Share of ▇▇▇▇▇
▇▇▇▇'▇ LLC Interest attributable to that Principal with respect to which the Put
has been exercised (or such portion as the Other Principals agree to purchase)
by providing written notice to the Principal and/or the Principal's Permitted
Transferees, as the case may be, and Holdings in the form of Exhibit B (the
"First Refusal Notice"). If that right is exercised, that Principal, that
Principal's Permitted Transferees and ▇▇▇▇▇ ▇▇▇▇ shall be obligated to sell to
the Other Principals all of those LLC Interests and associated Membership Points
(or such portion as the Other Principals agree to purchase). If the Other
Principals do not elect to purchase all of those LLC Interests and associated
Membership Points (or if Holdings has not received any notice from the Other
Principals of their intention to purchase all of those LLC Interests and
associated Membership Points) within the 60-day period described in this Section
7.2(d)), Holdings shall purchase any such remaining LLC Interests and associated
Membership Points.
The Purchase Closing Date for a purchase pursuant to this Section 7.2(d)
shall be within 60 days following the earlier of (1) the expiration of the
60-day time period contained in the preceding paragraph or (2) the delivery of
the First Refusal Notice by the Other Principals of their exercise in part or in
whole of their rights of first refusal. On the Purchase Closing Date, each of
Holdings and the Other Principals, as applicable, shall pay the Purchase Price,
in proportion to the amount of LLC Interests and associated Membership Points
being purchased by that Person, to the Member by certified check or wire
transfer of immediately available funds against delivery of the LLC Interests
and associated Membership Points, free and clear of all
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liens, security interests and other encumbrances, and any other documents or
instruments of transfer as they may reasonably request.
e. On the last day of the month in which a Put is exercised by a Principal
(on behalf of himself, herself, his or her Permitted Transferees and/or the
Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that Principal),
those Persons shall cease to have any rights as a Member with respect to the LLC
Interests so Put other than (1) the right to receive the Purchase Price on the
Purchase Closing Date and (2) the right to receive distributions and allocations
with respect to those LLC Interests through the Purchase Closing Date. Without
limiting the generality of the foregoing, the LLC Interests to be purchased on
the Purchase Closing Date shall not have any voting rights during that period.
Section 7.3. Call Options. The following provisions with respect to the
purchase and sale of an LLC Interest of a Principal (and his or her Derivative
Share) and his or her Permitted Transferees shall apply following the
Principal's death, Disability, Retirement, termination of a Principal's
employment with the LLC, a transfer required by operation of law or other
involuntary transfer of an LLC Interest.
a. In the event of the death, Disability or Retirement of a Principal, the
Other Principals shall have the right (in proportion to their respective
Membership Points or in such other proportions as the Other Principals may
determine), exercisable by providing written notice, within 60 days of that
event, to the Principal, the Principal's estate, the Principal's Permitted
Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the case may be, and Holdings in the form of
Exhibit C (a "Call Notice"), to purchase (a "Call") from that Principal, that
Principal's estate, that Principal's Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as
the case may be. If that right is exercised, that Principal, that Principal's
estate, that Principal's Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the case
may be, shall be obligated to sell to the Other Principals all or any portion of
that Principal's and his or her Permitted Transferees' LLC Interests and
associated Membership Points and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC
Interest attributable to that Principal (or that portion as the Other Principals
agree to purchase). If the Other Principals do not elect to purchase all of
those LLC Interests and associated Membership Points, Holdings shall have the
right, exercisable by providing a Call Notice to the Principal, that Principal's
estate, that Principal's Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the case
may be, within the 60-day period following receipt of notice from the Other
Principals declining to purchase all or any portion of those LLC Interests and
associated Membership Points and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC
Interest attributable to that Principal (or, if Holdings has not received any
notice from the Other Principals regarding their intent to purchase any portion
of those LLC Interests and associated Membership Points within the 60-day period
following the first 60-day period), to purchase some or all of those remaining
LLC Interests and associated Membership Points. If that right is exercised, that
Principal, that Principal's estate and Permitted Transferees and ▇▇▇▇▇ ▇▇▇▇
shall be obligated to sell to Holdings all of those remaining LLC Interests and
associated Membership Points (or that portion that Holdings agrees to purchase).
Notwithstanding anything to the contrary herein, the Other Principals and
Holdings shall not be obligated to purchase any or all of that Principal's and
his or her Permitted Transferees' LLC
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Interests and associated Membership Points or the Derivative Share of ▇▇▇▇▇
▇▇▇▇'▇ LLC Interest attributable to that Principal, and any rights granted by
this Section 7.3(a) may be exercised in whole or in part. The aggregate purchase
price for all of that Principal's and his or her Permitted Transferees' LLC
Interests and associated Membership Points and the Derivative Share of ▇▇▇▇▇
▇▇▇▇'▇ LLC Interest attributable to that Principal purchased pursuant to this
Section 7.3(a) shall be the Purchase Price thereof. Each of Holdings and the
Other Principals shall pay the Purchase Price in proportion to the amount of LLC
Interests and associated Membership Points being purchased by that Person.
The Purchase Closing Date for a purchase pursuant to this Section 7.3(a)
shall be within 60 days following the earlier of (1) the expiration of the
relevant 60-day time period(s) contained in the preceding paragraph or (2) the
delivery of the Call Notice by Holdings. At the closing of the purchase from the
Principal, the estate of the deceased Principal, the Principal's Permitted
Transferees and/or ▇▇▇▇▇ ▇▇▇▇, Holdings and/or the Other Principals shall
deliver to the Principal, the personal representative of the deceased
Principal's estate, his or her Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the
case may be, the Purchase Price by certified check or wire transfer of
immediately available funds against delivery of the LLC Interests and associated
Membership Points, free and clear of all liens, security interests and other
encumbrances, and any other documents or instruments of transfer as they may
reasonably request. Holdings and the Other Principals may purchase life
insurance or disability insurance on any Principal. Each Principal shall
cooperate with ▇▇▇▇▇ ▇▇▇▇ and the Other Principals in obtaining that insurance,
including taking any required physical examinations.
b. Within 60 days following (1) the date the Principal's employment with
the LLC or the Management Company is terminated other than by reason of death,
Disability or Retirement; (2) the date the Principal becomes a Non-Voting Member
pursuant to Section 4.6(d); or (3) a transfer required by operation of law or
other involuntary transfer of a Principal's or his or her Permitted Transferee's
LLC Interests and associated Membership Points or the Derivative Share of ▇▇▇▇▇
▇▇▇▇'▇ LLC Interest attributable to that Principal, the Other Principals (in
proportion to their Membership Points or in such other proportions as the
Principals may determine) may exercise a Call with respect to all or any portion
of that Principal's and that Principal's Permitted Transferees' LLC Interests
and associated Membership Points and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC
Interest attributable to that Principal. If some or all of those LLC Interests
and associated Membership Points are transferred by operation of law or by means
of any other involuntary transfer, that Person shall cause its transferees to
comply with all of the requirements of this Section 7.3 as though they were
parties hereto. A Call may be exercised by the Other Principals providing a Call
Notice to the Principal, the estate of the deceased Principal, the Principal's
Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as applicable, within 60 days after
that event, of their intent to purchase all or any portion of the Principal's
and that Principal's Permitted Transferees' LLC Interests and associated
Membership Points and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest
attributable to that Principal. If the Other Principals do not exercise a Call
with respect to all of those LLC Interests and associated Membership Points in
accordance with the preceding sentence (or if Holdings has not received any
notice from the Other Principals of their intent to purchase any portion of
those LLC Interests and associated
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Membership within the 60-day period described in this Section 7.3(b)), Holdings
shall have an additional 60 days to exercise a Call with respect to all or any
portion of the LLC Interests and associated Membership Points for which the
Other Principals do not exercise a Call by providing a Call Notice to the
Principal, the estate of the deceased Principal, his or her Permitted
Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the case may be. Notwithstanding anything to
the contrary contained herein, the Other Principals and Holdings shall not be
obligated to exercise any Call, and any right granted in this Section 7.3(b) may
be exercised in whole or in part.
If a Call is exercised as a result of (1) a Principal's employment with
the LLC or the Management Company being terminated without Cause or by reason of
voluntary resignation of his or her employment with the LLC or the Management
Company; or (2) a transfer required by operation of law or other involuntary
transfer of a Principal's or his or her Permitted Transferees' LLC Interests and
associated Membership Points and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC
Interest attributable to that Principal, the purchase price payable by the Other
Principals and/or Holdings to that Principal, the estate of the deceased
Principal, his or her Permitted Transferees and/or and ▇▇▇▇▇ ▇▇▇▇ for their LLC
Interests and associated Membership Points and the Derivative Share of ▇▇▇▇▇
▇▇▇▇'▇ LLC Interest attributable to that Principal shall be the Purchase Price.
If a Principal's employment with the LLC or the Management Company is terminated
by the LLC or the Management Company for Cause or if the Principal becomes a
Non-Voting Member pursuant to Section 4.6(d), then, notwithstanding anything
else to the contrary herein, the Purchase Price payable by the Other Principals
and/or Holdings to that Principal, the estate of the deceased Principal, his or
her Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇ for their LLC Interests shall be 90%
of the Purchase Price that would otherwise apply.
The Purchase Closing Date under this Section 7.3(b) shall be within 60
days following the earlier of (1) the expiration of the relevant 60-day time
period(s) contained in the first paragraph of this Section 7.3(b) or (2) the
delivery of the Call Notice by Holdings. At the closing of the purchase from the
Principal, the estate of the deceased Principal, the Principal's Permitted
Transferees and/or ▇▇▇▇▇ ▇▇▇▇, Holdings and/or the Other Principals shall
deliver to the Principal, the estate of the deceased Principal, his or her
Permitted Transferees and/or ▇▇▇▇▇ ▇▇▇▇, as the case may be, the Purchase Price
or 90% of the Purchase Price, as the case may be, by certified check or wire
transfer of immediately available funds against delivery of the LLC Interests
and associated Membership Points, free and clear of all liens, security
interests and other encumbrances, and any other documents or instruments of
transfer as they may reasonably request.
c. Notwithstanding the foregoing, if a Call is exercised with respect to
the LLC Interests and associated Membership Points of a Principal or his or her
Permitted Transferees and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest
attributable to that Principal who has voluntarily resigned his or her
employment with the LLC or the Management Company other than by death,
Disability or Retirement or for Good Reason or whose employment by the LLC or
the Management Company is terminated for Cause or if the Principal becomes a
Non-Voting Member pursuant to Section 4.6(d), the portion of the Purchase Price
payable to that Principal, the estate of the deceased Principal, his or her
Permitted Transferees and ▇▇▇▇▇ ▇▇▇▇ shall be paid
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by delivery of a three-year promissory note of the purchaser(s) of those LLC
Interests and associated Membership Points to the selling Principal, the estate
of the deceased Principal, his or her Permitted Transferees and ▇▇▇▇▇ ▇▇▇▇,
which shall bear interest at the "applicable federal rate" determined under
Section 1274(d) of the Code for three-year instruments (a "Note"), payable
quarterly, and the principal of which shall be payable three years after the
Purchase Closing Date.
d. On the last day of the month in which a Call is exercised, the
Principal who has died, become Disabled or Retired, the estate of the deceased
Principal, his, her or its Permitted Transferees and the Derivative Share of
▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to that Principal shall cease to have any
rights as a Member with respect to the LLC Interest for which Calls have been
exercised, other than (1) the right to receive the Purchase Price on the
Purchase Closing Date and (2) the right to receive distributions and allocations
with respect to that LLC Interest through the Purchase Closing Date.
Section 7.4. Right of First Refusal.
a. If Holdings desires to sell any or all of Holdings' LLC Interests to a
third party (other than a Permitted Transferee) and Holdings receives an offer
from a third party that would permit Holdings to do so, Holdings shall give
notice ("Offer Notice") to the LLC and the Principals within 15 days of receipt
of that offer ("Offer"), which Offer Notice shall set forth the name and address
of the third party, the amount of the Membership Points associated with the LLC
Interests to be sold, the proposed purchase price and the other terms and
conditions of the Offer. The Principals shall have the option, exercisable by
notice to Holdings, within 60 days of the date of the Offer Notice ("Election
Period"), to purchase, pro rata in proportion to the number of Membership Points
they then hold directly and their Derivative Share then held through ▇▇▇▇▇ ▇▇▇▇,
all (but not less than all) of Holdings' LLC Interests and associated Membership
Points subject to the Offer ("Offered Membership Points") at the same price and
on substantially the same terms specified in the Offer except as provided in
Section 7.4(c); provided, however, (i) that, if one or more of the Principals
does not elect to purchase his or her full proportionate amount of the Offered
Membership Points, then the balance may be purchased by each of the other
Principals ("Remaining Principals") in an amount equal to the balance multiplied
by a fraction, the numerator of which is the number of Membership Points then
held by a Remaining Principal and the Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC
Interest attributable to that Principal and the denominator of which is the
number of Membership Points then held by all of the Remaining Principals and the
Derivative Share of ▇▇▇▇▇ ▇▇▇▇'▇ LLC Interest attributable to the Remaining
Principals, or in such other proportions as they may agree, and (ii) that the
Remaining Principals and ▇▇▇▇▇ ▇▇▇▇ must exercise their option to purchase all
of the Offered Membership Points pro rata, or in such other proportions as such
Remaining Principals and ▇▇▇▇▇ ▇▇▇▇ may agree, within ten days ("Final Election
Period") after expiration of the Election Period.
b. If neither the Principals, the Remaining Principals nor ▇▇▇▇▇ ▇▇▇▇
elect to purchase all of the Offered Membership Points, Holdings may,
notwithstanding the other
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provisions of this Article 7, within 180 days after expiration of the last
applicable Election Period, transfer all (but not less than all) of the Offered
Membership Points to the third party upon the same terms and conditions of the
Offer; provided, however, that no such transfer may be made to that third party
unless the third party executes and delivers to the LLC a written agreement, in
form and substance satisfactory to the Board, agreeing to be bound by the
provisions of this Agreement, in which event the third party shall become a
Voting Member with the number of Membership Points associated with the Offered
Membership Points.
c. The closing of any purchase under this Section 7.4 shall be held at a
place and date specified by the purchaser(s) of the Offered Membership Points
("Purchaser(s)"), but not more than 60 days after expiration of the last
applicable Election Period. At that closing, the Offered Membership Points shall
be delivered by Holdings to the Purchaser(s) thereof, free and clear of all
liens, security interests and other encumbrances, and the Purchaser(s) shall pay
the purchase price for the Offered Membership Points, and Holdings shall have
right to receive distributions and allocations with respect to those Offered
Membership Points through the Purchase Closing Date. If some or all of the
Principals and/or ▇▇▇▇▇ ▇▇▇▇ are the Purchaser(s), the purchase price shall be
payable in cash by the Purchaser(s) even if some of the consideration provided
in the Offer was in a form other than cash, in which case that Purchaser(s) and
Holdings shall in good faith ascribe a value to that non-cash consideration. If
that Purchaser(s) and Holdings cannot agree on the value of the non-cash
consideration, they shall retain an independent appraiser, mutually acceptable
to that Purchaser(s) and Holdings, and the average of the high and low values
ascribed to the non-cash consideration by the appraiser shall be the value. The
fees of that appraiser shall be split equally between the Purchaser(s) (pro rata
in proportion to number of Membership Points held by each such Purchaser) and
Holdings.
d. If all of Holdings' LLC Interests and associated Membership Points are
purchased by a third party, then that third party shall succeed to all of
Holdings' rights and obligations under this Agreement. If Holdings transfers
part of its LLC Interests and associated Membership Points to that third party
pursuant to this Section 7.4, the Principals, ▇▇▇▇▇ ▇▇▇▇, Holdings and that
third party shall make appropriate adjustments to the terms of this Agreement to
entitle that third party to exercise Holdings' rights under Sections 7.2 and 7.3
proportionately with Holdings, and to otherwise grant that third party rights
similar to Holdings' other rights under this Agreement.
Section 7.5 Change of Control.
a. In the event of a Change of Control, each of the Principals and/or
their Permitted Transferees shall have the right, which must be exercised within
six months after that Change of Control, to put to Holdings or WTC's successor
all or a portion of the LLC Interests and associated Membership Points held by
that Principal and/or Permitted Transferee, including their Derivative Shares.
Upon exercise of a put under this Section 7.5(a), Holdings or its successor, as
the case may be, shall thereupon become obligated to purchase the LLC Interests
and associated Membership Points with respect to which the put has been
exercised. The Purchase Closing Date under this Section 7.5(a) shall be within
60 days following the delivery of the notice by a
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Principal and his, her or its Permitted Transferees, and those Persons
(including ▇▇▇▇▇ ▇▇▇▇ with respect to Derivative Shares) shall have the right to
receive distributions and allocations on the LLC Interests to be purchased
through the Purchase Closing Date. At the Purchase Closing Date, Holdings or
WTC's successor, as the case may be, shall deliver to ▇▇▇▇▇ ▇▇▇▇, the Principal
and/or his, her or its Permitted Transferees, as the case may be, the Purchase
Price by certified check or wire transfer of immediately available funds against
delivery of the LLC Interests and associated Membership Points, free and clear
of all liens, security interests and other encumbrances, and any other documents
or instruments of transfer as Holdings' or WTC's successor may reasonably
request.
b. In the event of a Change of Control prior to January 1, 2009, if some
of the Principals do not elect to receive the accelerated payments pursuant to
Section 3.1(b) of the Limited Liability Company Interest Purchase Agreement and
less than all of the Principals and their Permitted Transferees exercise the put
right provided for in Section 7.5(a), the Principals who or that have not
exercised their put pursuant to Section 7.5(a) shall have the right to purchase
all, but not less than all, outstanding LLC Interests then held by Holdings
and/or its Permitted Transferees or WTC's successor, as the case may be, from
those Persons, including those LLC Interests that were put under Section 7.5(a).
This right to purchase may be exercised by some or all of such Principals by
providing written notice to Holdings and Holdings' Permitted Transferees or
WTC's successor, as the case may be, within eight months after the Change of
Control of their intent to purchase all, but not less than all, outstanding LLC
Interests from Holdings and/or its Permitted Transferees or WTC's successor, as
the case may be. The Purchase Closing Date under this Section 7.5(b) shall be
within 30 days following the delivery of the notice by those Principals. At the
Purchase Closing Date, those Principals shall deliver to Holdings and/or its
Permitted Transferees or WTC's successor, as the case may be, the Holdings
Change of Control Purchase Price by certified check or wire transfer of
immediately available funds against delivery of the LLC Interests, free and
clear of all liens, security interests and other encumbrances, and any other
documents or instruments of transfer they may reasonably request. Holdings
and/or its Permitted Transferees or WTC's successor, as the case may be, shall
have the right to receive distributions and allocations with respect to those
LLC Interests through the Purchase Closing Date.
Section 7.6. Substitute Members. Any Transfer of LLC Interests other than
pursuant to this Article 7 shall nevertheless not entitle the transferee, unless
already a Member, to become a Member or be entitled to exercise or receive any
right, power or benefit of a Member other than the right to share in profits and
losses, receive distributions and allocations of income, gain, loss, deduction
or credit or similar item to which the transferor Member would otherwise be
entitled, to the extent assigned, unless the transferor Member designates, in a
written instrument delivered to the Board, its transferee to become a substitute
Member and the Board, in its sole and absolute discretion, consents to the
admission of that transferee as a Non-Voting Member. That transferee shall not
become a substitute Member without having first executed an instrument
satisfactory to the Board accepting and agreeing to the terms and conditions of
this Agreement, including a counterpart signature page to this Agreement, and
without having paid to the LLC a fee sufficient
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to cover all reasonable expenses of the LLC in connection with that transferee's
admission as a substitute Member.
Section 7.7. Recognition of Transfer by LLC. No Transfer of a Member's LLC
Interest or any part thereof in violation of this Article 7 shall be valid or
effective, and neither the LLC nor the Members shall recognize the same for the
purpose of making distributions pursuant to this Article 7 with respect to that
transferred LLC Interest or part thereof. Neither the LLC, any member of the
Board nor any Member shall incur any liability as a result of refusing to make
any distributions to the transferee of any such invalid Transfer. Upon the valid
transfer of a Member's LLC Interest, that Person shall cease to be a Member, and
the LLC's books and records, including Schedule 1, shall be revised to reflect
that event.
Section 7.8. Order of Puts and Calls and Right of First Refusal. With
respect to Sections 7.2, 7.3 and 7.4, the first to occur of (1) the delivery of
a Put Notice under Section 7.2(d); (2) the delivery of the first Call Notice
under Section 7.3(a) or (b); or (3) the delivery of an Offer Notice under
Section 7.4, shall govern the rights and obligations of the parties with respect
to the LLC Interests subject to the Put Notice, the Call Notice or the Offer
Notice. Notwithstanding the foregoing, the delivery of a put notice under
Section 7.5(a) or a call notice under Section 7.5(b) shall govern the rights and
obligations of the parties with respect to LLC Interests.
Section 7.9. Indemnification. In the case of a Transfer or attempted
Transfer of an LLC Interest that has not received the consents required by this
Article 7, the parties engaging or attempting to engage in that Transfer shall
be liable to indemnify and hold the LLC and the other Members harmless from all
costs, liabilities and damages any such indemnified Person may incur (including,
without limitation, incremental tax liability and attorneys' fees and expenses)
as a result of that Transfer or attempted Transfer and efforts to enforce the
indemnity granted hereby.
Section 7.10. Issuance of Additional LLC Interests.
a. Subject to Sections 7.1, 7.2, 7.3 and 7.4, the Board may admit new
Members to the LLC, issue additional LLC Interests and grant options to purchase
LLC Interests upon terms and conditions it may establish from time to time,
which terms may include the rights, if any, that a holder of those LLC Interests
will have relating to the matters discussed in this Article 7. As a condition to
the admission of a new Member, that Member must become a party to this
Agreement.
b. Upon the issuance of additional LLC Interests with associated
Membership Points to a Member, an Officer shall make the appropriate revisions
to Schedule 1.
Section 7.11. Assignment of Holdings' Rights and Obligations. Holdings may
assign any or all of its rights and delegate any or all of its obligations under
this Article 7 to one or more of its Affiliates.
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ARTICLE 8
BOOKS AND RECORDS
Section 8.1. Books, Records and Financial Statements. The LLC's Secretary
shall prepare and maintain, or cause to be prepared and maintained, the LLC's
books of account. Those books of account and all financial records of the LLC
initially shall be kept at its office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Secretary shall also cause the following
documents to be transmitted at the times hereinafter set forth:
a. To each Member, as soon as available, a balance sheet, income statement
and cash flow statement of the LLC, and a statement of that Member's Capital
Account balance, as of the end of the preceding Fiscal Year, all of which shall
be audited by the LLC's independent accounting firm;
b. To each Member, as soon as available and in any event within 30 days
after the end of each of the first three quarters of each of the LLC's Fiscal
Years, a balance sheet, income statement and cash flow statement of the LLC, and
a statement of that Member's Capital Account balance, as of the end of that
quarter;
c. To each Member, as soon as available from the LLC's accountants, a copy
of the annual federal and state income tax return of the LLC and a Schedule K-1
indicating that Member's taxable income or loss for that Fiscal Year;
d. To each Member, at least ten days prior to each date on which any
federal or state estimated income tax payment is due, a schedule setting forth
the LLC's estimated taxable income allocable to that Member for the current
Fiscal Year; and
e. To Holdings, within five Business Days after the end of each quarter,
an estimate of the net income of the LLC for the year-to-date period through the
end of that quarter.
Section 8.2. Accounting Method. The LLC's books and records shall be kept
on an accrual basis for financial reporting and tax purposes. All records shall
be maintained in accordance with GAAP and shall reflect all LLC transactions and
be appropriate and adequate for the LLC's business.
Section 8.3. LLC's Independent Accounting Firm. The LLC's independent
accounting firm shall be selected by the Principals and shall be acceptable to
Holdings, which acceptance will not be unreasonably withheld.
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ARTICLE 9
TAX MATTERS
Section 9.1. Tax Matters Member.
a. The LLC's initial "tax matters partner" designated under Code Section
6231(a)(7) and Section 301.6231(a)(7)-1 of the Treasury Regulations (the "Tax
Matters Member") shall be the Second Member, who shall be a Member at all times
he or she is serving as the Tax Matters Member. Each Member, by executing this
Agreement, consents to that designation of the Tax Matters Member and agrees to
execute, certify, acknowledge, deliver, swear to, file and record at the
appropriate public offices all documents necessary or appropriate to evidence
such consent.
b. The Tax Matters Member shall have the power to manage and control, on
the LLC's behalf, any administrative proceeding at the LLC level with the
Internal Revenue Service relating to the determination of any item of LLC
income, gain, loss, deduction or credit for federal income tax purposes. In
furtherance of the foregoing, the Tax Matters Member shall have all of the
powers and responsibilities of that position provided in the Code and shall (1)
promptly furnish the Internal Revenue Service with information sufficient to
cause each Member to be treated as a "notice partner" as defined in Code Section
6231(a)(8), (2) within ten days of the receipt of any notice from the Internal
Revenue Service in any administrative proceeding at the LLC level relating to
the determination of any LLC item of income, gain, loss or deduction, mail a
copy of that notice to each Member and (3) not file any action or suit, extend
any statute of limitations or settle any action or suit relating to the LLC's
tax matters without first notifying each Member. Reasonable expenses incurred by
the Tax Matters Member, in his capacity as such, shall be treated as LLC
expenses hereunder and will be deducted in computing the Run Rate.
c. The Board may at any time hereafter designate from among the Members a
new Tax Matters Member.
Section 9.2. Right to Make Tax Elections; Tax Classification.
a. The Board may, in its discretion, make or revoke, on the LLC's behalf,
elections for federal income tax purposes permitted under the Code, including an
election in accordance with Code Section 754. Upon request of the Board, each
Member shall supply the information necessary to give effect to such an
election.
b. Each Member intends that the LLC be classified for federal tax purposes
as a partnership that is not a "publicly traded partnership" treated as a
corporation under Code Section 7704(a), and each Member shall at all times use
commercially reasonable efforts to maintain the LLC's classification as such.
The LLC shall not elect to be classified as other than a partnership for federal
tax purposes.
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ARTICLE 10
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 10.1. Liability. Except as otherwise provided herein, any document
referred to or incorporated herein or by the Delaware Act, the debts,
obligations and liabilities of the LLC, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the LLC,
and no Member shall be obligated personally for any debt, obligation or
liability of the LLC solely because he or she is a Member.
Except as otherwise expressly provided herein, any document referred to or
incorporated herein or by the Delaware Act, a Member, in his, hers, or its
capacity as such, shall have no liability in excess of (1) the amount of that
Member's capital contributions, (2) that Member's share of any assets and
undistributed Profits of the LLC and (3) the amount of any distributions
wrongfully distributed to that Member.
Section 10.2. Exculpation.
a. No Officer or Manager shall be liable to the LLC or any Member for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by that Officer or Manager in good faith on the LLC's behalf and in a
manner reasonably believed to be in the best interests of the LLC and within the
scope of authority conferred on that Officer or Manager hereby, except that an
Officer or Manager shall be liable for any such loss, damage or claim incurred
by reason of that Officer's or Manager's bad faith, gross negligence, reckless
disregard of his or her duties hereunder, willful misconduct or breach of the
provisions hereof or in connection with any transaction for which that Officer
or Manager or any Affiliate thereof received an improper personal benefit.
b. An Officer or Manager shall be protected fully in relying in good faith
upon the LLC's records and upon information, opinions, reports or statements
presented to the LLC by any person as to matters the Officer or Manager
reasonably believes are within that person's professional or expert competence
and who has been selected with reasonable care by or on behalf of the LLC,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses or net cash flow or any other
facts pertinent to the existence and amount of assets from which distributions
to Members might properly be paid.
Section 10.3. Indemnification. To the fullest extent permitted by
applicable law, the LLC shall indemnify each Officer and Manager for any loss,
damage or claim incurred by that Officer or Manager by reason of any act or
omission that Officer or Manager performed or omitted in good faith on behalf of
the LLC and in a manner reasonably believed to be in the best interests of the
LLC and within the scope of authority conferred on that Officer or Manager or
hereby, except that no Officer or Manager shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by that Officer or Manager by
reason of bad faith, gross negligence, reckless disregard of his or her duties
hereunder, willful misconduct or breach of the
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provisions hereof with respect to those acts or omissions or in connection with
any transaction for which that Officer or Manager or any Affiliate thereof
received an improper personal benefit. Notwithstanding the foregoing: (a) any
indemnity under this Section 10.3 shall be provided out of and to the extent of
LLC assets only, and no Member shall have any personal liability on account
thereof; and (b) nothing contained herein shall limit any indemnification or
other rights of the LLC or any Member under the Limited Liability Company
Interest Purchase Agreement or any document referred to or incorporated therein.
Section 10.4. Expenses. To the fullest extent permitted by applicable law,
the LLC shall advance to an Officer or Manager any expenses, including legal
fees, that Officer or Manager incurs in defending any claim, demand, action,
suit or proceeding (that advance to be made prior to the final disposition of
that claim, demand, action, suit or proceeding), including, without limitation,
claims, demands, actions, suits or proceedings with respect to which that
Officer or Manager is alleged to have not met the applicable standard of conduct
or is alleged to have acted or failed to act in a manner that, if those
allegations were true, would not entitle that Officer or Manager to
indemnification hereunder, upon receipt by the LLC of an undertaking by or on
behalf of that Officer or Manager to repay that amount if it is determined that
that Officer or Manager is not entitled to be indemnified as authorized in
Section 10.3.
ARTICLE 11
NON-COMPETITION; CONFIDENTIALITY
Section 11.1. Confidential Information.
a. Each Member and each Principal acknowledges and agrees that (1) the
"business management" industry is an intensely competitive business, (2) as a
result of his, her or its association with the ▇▇▇▇▇ ▇▇▇▇ Entities, he, she or
it has had access to, and is and will be in possession of, Confidential
Information, all is which is of vital importance to the success of the ▇▇▇▇▇
▇▇▇▇ Entities, Holdings, WTC and WTC's Affiliates, and (3) the use by that
Member or Principal for his, her or its own account or the disclosure by any
Member or Principal to any existing or potential competitor of a ▇▇▇▇▇ ▇▇▇▇
Entity, Holdings, WTC or WTC's Affiliates of Confidential Information would
place the ▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or WTC's Affiliates at a serious
competitive disadvantage and cause irreparable harm to the business of the ▇▇▇▇▇
▇▇▇▇ Entities, Holdings, WTC or WTC's Affiliates.
b. Each Member and each Principal acknowledges and agrees that
"Confidential Information" includes, without limitation:
(1) trade secrets relating to the business practices of any of the
▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or WTC's Affiliates and other information
pertaining to the goodwill of any of the ▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or
WTC's Affiliates or to Clients or WTC Clients;
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(2) "non-public personal information," as that phrase is defined in
Section 509 of Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and Federal Regulation P
promulgated thereunder by the Federal Reserve Board, of natural person Clients
or WTC Clients, except that, for purposes of this Agreement, that term shall
extend to all such clients, present and former. "Non-public personal
information" means (i) personally identifiable client financial information,
including, without limitation, information provided to, or obtained by, any of
the ▇▇▇▇▇ ▇▇▇▇ Entities or Holdings, WTC or WTC's Affiliates confidentially or
on a non-public basis, and (ii) any list, description or other grouping of
clients (and publicly available information pertaining to them) that is derived
using any personally identifiable financial information that is not publicly
available;
(3) proprietary financial products of any of the ▇▇▇▇▇ ▇▇▇▇
Entities, Holdings, WTC or WTC's Affiliates, embodying the unique trade know-how
and operational methods of any of the ▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or
WTC's Affiliates, and, without limitation, all trade know-how, secrets,
operational methods, pricing, investment policies, procedures, personnel,
concepts, format, style, techniques, proprietary software, business strategies,
business management strategies and other financial information, and other
business affairs of any of the ▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or WTC's
Affiliates that are unique to any of the ▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or
WTC's Affiliates and are made known to or learned by that Member heretofore or
hereafter; and
(4) lists of WTC Clients.
c. Each Member and each Principal acknowledges and agrees that (1)
Confidential Information is and shall remain the sole and exclusive property of
the appropriate ▇▇▇▇▇ ▇▇▇▇ Entity or Holdings, WTC or WTC's Affiliates, as the
case may be, and that Member or Principal does not have and shall not have any
right, title or interest therein by virtue of his or her status as an executive
of the LLC or of the Management Company, a Member or a Principal and (2)
Confidential Information is not readily accessible to competitors of the ▇▇▇▇▇
▇▇▇▇ Entities, Holdings, WTC or WTC's Affiliates, as the case may be.
d. By reason of Sections 11.1(a), (b) and (c) above, each Member and each
Principal covenants that he, she or it shall not directly or indirectly reveal,
divulge or make known to any Person other than any of the ▇▇▇▇▇ ▇▇▇▇ Entities,
Holdings, WTC or WTC's Affiliates or use for his, her or its own account, or for
the account of any Person other than the ▇▇▇▇▇ ▇▇▇▇ Entities, Holdings, WTC or
WTC's Affiliates, (1) until that Member or Principal ceases to be a Member or a
party to this Agreement, respectively, and for a period of five years
thereafter, any Confidential Information relating to Holdings, WTC or WTC's
Affiliates or WTC Clients; (2) until that Member or Principal ceases to be a
Member or a party to this Agreement, respectively, and thereafter, any
Confidential Information not permitted to be revealed, divulged, or made known
under Holdings', WTC's, WTC's Affiliates' or any of the ▇▇▇▇▇ ▇▇▇▇ Entities'
policies to comply with all applicable U.S. federal and state privacy laws in
effect, including, without limitation, Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act,
the Fair Credit Reporting Act and any and all applicable regulations
implementing either Act or a successor Act; and (3) until that Member or
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Principal ceases to be a Member or a party to this Agreement, respectively, and
for a period of five years thereafter, any Confidential Information not included
in clauses (1) and (2) of this subsection.
e. Each Principal (1) shall comply, until that Principal ceases to be a
party to this Agreement, with all reasonable procedures each ▇▇▇▇▇ ▇▇▇▇ Entity,
Holdings, WTC or any of WTC's Affiliates may adopt from time to time to preserve
the confidentiality of the Confidential Information; (2) acknowledges that the
absence of any legend indicating the confidentiality of any materials will not
give rise to an inference that the contents thereof or information derived
therefrom are not confidential; and (3) shall immediately following the
termination of that Principal's employment with the LLC or the Management
Company or membership in the LLC return to each ▇▇▇▇▇ ▇▇▇▇ Entity, Holdings, WTC
or that WTC Affiliate, as the case may be, all materials that ▇▇▇▇▇ ▇▇▇▇ Entity,
Holdings, WTC or any WTC Affiliate provides that Principal during the Term, all
works created by that Principal or others in the course of his or her employment
duties during the Term and all copies thereof. Notwithstanding the foregoing,
the limitations imposed on that Principal pursuant to this Section 11.1 shall
not apply to that Principal's (y) compliance with legal process or subpoena or
(z) statements in response to inquiry from a court or regulatory body; provided
that, to the extent permitted by law, that Principal gives the appropriate ▇▇▇▇▇
▇▇▇▇ Entity, Holdings, WTC or WTC's Affiliate reasonable prior written notice of
that process, subpoena or request and uses reasonable efforts to obtain
confidential treatment of the Confidential Information (except that, with
respect to an examination by a regulatory authority with jurisdiction over any
of the ▇▇▇▇▇ ▇▇▇▇ Entities, the Principal need only provide the appropriate
▇▇▇▇▇ ▇▇▇▇ Entity prompt notice that the examination will occur or is
occurring).
f. For purposes of this Section 11.1 only, a Principal shall be considered
to be "a party to this Agreement" when that Principal is a Member, when one or
more of that Principal's Permitted Transferees are Members or when that
Principal holds a Derivative Share through ▇▇▇▇▇ ▇▇▇▇.
Section 11.2. Non-Competition. With respect to a natural person Principal,
until the termination of a Principal's employment with the LLC, the Management
Company and each of their Subsidiaries (the "Restricted Period"), that Principal
shall not, for whatever reason, whether for his or her account or for the
account of any other Person, without the prior written consent of the LLC and
the Management Company, as a shareholder, employee, partner, member, board
member, consultant, independent contractor, representative or otherwise, engage
in any business competitive with any business conducted by any of the ▇▇▇▇▇ ▇▇▇▇
Entities at any time during the Restricted Period, in the ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Restricted Area").
Notwithstanding the foregoing, nothing herein shall prohibit that Principal from
being a shareholder or equity holder in any publicly-traded entity whose
business is competitive with, the business heretofore conducted, or conducted at
any time during the Restricted Period and in the Restricted Area, by any of the
▇▇▇▇▇ ▇▇▇▇ Entities, as long as that Principal does not hold more than a three
percent equity interest in that publicly-traded entity.
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Section 11.3. Non-Solicitation. Until one year after the date of
termination of each Principal's employment with the LLC, the Management Company
and each of their Subsidiaries, that Principal shall not, directly or
indirectly, for whatever reason, whether for his or her own account or the
account of any Person, without the prior written consent of the LLC and the
Management Company:
a. solicit, either directly or indirectly, or otherwise induce or attempt
to induce any WTC Client to use the family office or business management
services of any Person other than Holdings, WTC, WTC's Affiliates or the ▇▇▇▇▇
▇▇▇▇ Entities and will otherwise treat the list of Clients as if it were
Confidential Information; or
b. solicit or hire any Person who is, or was during the 12 months prior to
the time of that Principal's termination of employment, employed by or
associated with a ▇▇▇▇▇ ▇▇▇▇ Entity, Holdings, WTC or a WTC Affiliate as an
executive, officer, employee, manager, salesman, consultant, independent
contractor, representative or other agent or induce that Person to terminate his
or her employment relationship with any ▇▇▇▇▇ ▇▇▇▇ Entity or to enter into
employment with any other Person.
The restrictions set forth in Section 11.2 and this Section 11.3 shall not
apply (1) to a Principal whose employment with the LLC and each of its
Subsidiaries or by the Management Company is terminated by the LLC and such
Subsidiaries or by the Management Company without Cause or by that Principal for
Good Reason, (2) to a Principal if a Change of Control occurs and Holdings and
its Permitted Transferees or its successor, as the case may be, purchase all of
that Principal's LLC Interests (including his or her Derivative Share and the
LLC Interests held by his or her Permitted Transferees) pursuant to the terms of
Section 7.5(a) or (3) if the LLC is liquidated and its business is not continued
by a successor entity.
Nothing in Section 11.3(a) or (b) shall permit a Principal to use
Confidential Information made available by Holdings, WTC or any of WTC's
Affiliates to the ▇▇▇▇▇ ▇▇▇▇ Entities (including, without limitation, WTC Client
lists) for any purpose other than the pursuit of the ▇▇▇▇▇ ▇▇▇▇ Entities
business objectives or those of Holdings, WTC or WTC's Affiliates.
Section 11.4. Specific Performance.
a. The Members and the Principals acknowledge that it is fair and
reasonable that they make the covenants and undertakings set forth above, and
have done so with the benefit of the advice of counsel. In addition, the Members
and the Principals acknowledge that any breach or attempted breach by any of
them of the provisions of this Article 11 will cause irreparable harm to
Holdings, WTC, their respective Affiliates and each ▇▇▇▇▇ ▇▇▇▇ Entity, for which
monetary damages will not be an adequate remedy. Accordingly, Holdings, WTC,
their respective Affiliates and each ▇▇▇▇▇ ▇▇▇▇ Entity shall be entitled to
apply for and obtain injunctive relief (temporary, preliminary and permanent) to
restrain the breach or threatened breach of, or otherwise to specifically
enforce, any provision of this Article 11, without the requirement to post a
bond or provide other security. Nothing herein shall be construed as a
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limitation or waiver of any other right or remedy that may be available to
Holdings, WTC, their respective Affiliates or a ▇▇▇▇▇ ▇▇▇▇ Entity for that
breach or threatened breach. For emergency relief (including temporary and
preliminary injunctive relief), an application may be made in any court of
competent jurisdiction. The Members and Principals further agree that the
subject matter and duration of the restrictions covered herein are reasonable in
light of the facts as they exist today. If any restriction contained in this
Article 11 is deemed unreasonable by a court, it shall, to the extent permitted
by applicable law, be reduced to the maximum restriction that is enforceable
under such law.
b. The restrictions set forth in Section 11.1 shall apply to Permitted
Transferees who own LLC Interests.
ARTICLE 12
CERTAIN COVENANTS
Section 12.1. Compliance with Laws; Maintenance. The LLC and its
Subsidiaries shall and the Board shall cause the LLC to comply in all material
respects with all laws and regulations applicable to the LLC and its
Subsidiaries (including, without limitation, all foreign, federal and state laws
and regulations relating to public accountants, preparation of tax returns and
investment advisers, and all foreign, federal and state laws and regulations
applicable to the LLC and its Subsidiaries as an Affiliate of a bank, a thrift
or a bank or thrift holding company). Without limiting the generality of the
foregoing, neither the LLC nor any of its employees shall:
a. Audit, attest, certify or compile financial information of
Clients;
b. Advertise, market, solicit or otherwise hold out the LLC or any
of themselves as certified public accountants or public accountants, whether
orally or in writing, in correspondence or on business cards, signs,
advertisements, letterhead, publications directed to clients, financial or tax
documents of Clients, or otherwise;
c. Offer investment advice, either directly or through publications
or writings, in any jurisdiction in which the LLC and the Management Company are
not registered or licensed as an investment adviser or in another capacity that
would allow such advice to be lawfully rendered; or
d. Accept any referral or other fee for recommending an investment
adviser, insurer, accountant, broker-dealer, trustee or other service provider
to any Client.
In addition, the LLC shall not serve as a trustee for or general
partner or managing member of any Person.
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The LLC and its Subsidiaries shall maintain in full force and effect
its limited liability company or other existence, rights and franchises and all
other rights, licenses and registrations owned or possessed by them.
Section 12.2. Business Arrangements.
a. Holdings will cause to be provided to the LLC client related
services that are available for the use of Holdings' other Affiliates, including
external asset management, custom-built insurance products and marketing
materials on a reasonable and fair basis and cost. Holdings will also make
available the full array of support services on the same basis as are made
available to Holdings' affiliated asset managers, including internal asset
management, human resources, marketing, financial reporting, tax and estate
planning, compliance and information technology, as the LLC may request from
time to time.
b. The LLC shall have the right to elect, on or prior to six months
after the Closing Date, to have the officers and employees of the LLC and its
Subsidiaries participate in some or all of WTC's then-existing employee benefit
plans (other than WTC bonus or incentive plans) at the LLC's cost; provided,
however, that (i) once the election to participate or not participate in a
particular plan is made it cannot be changed without Holdings' written consent,
which shall not be unreasonably withheld, (ii) those officers and employees are
otherwise eligible to participate in those plans in accordance with their terms,
and (iii) nothing herein shall entitle such an officer or employee to
participate in a plan where participation is not based solely on eligibility
criteria set forth in the plan. The LLC shall have a reasonable opportunity to
participate in any new employee benefit plans made available to employees of WTC
or its Affiliates generally.
Section 12.3. Client Agreements. The LLC shall enter into a written
agreement, in a form substantially similar to Exhibit D hereto except as that
form may be revised to incorporate revisions requested by the California
Department of Corporations, with each client to or for whom it provides
investment advice (including suggesting investment advisers or investment
managers or monitoring investments), whether by itself, as a general partner or
managing member of any entity or otherwise. Neither the LLC nor any employee of
the Management Company shall provide investment advice to any client who has not
executed such an agreement.
ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1. No Dissolution. The LLC shall not be dissolved by the
admission of additional Members in accordance with the terms hereof.
Section 13.2. Events Causing Dissolution. The LLC shall be dissolved and
its affairs shall be wound up upon the occurrence of any of the following
events:
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a. The determination of the Board and the vote of Members holding 95% or
more of the Membership Points;
b. The occurrence of a Realization Event; or
c. The entry of a decree of judicial dissolution under Section 18-802 of
the Delaware Act.
Section 13.3. Notice of Dissolution. Upon the LLC's dissolution, the
person or persons appointed to carry out the winding up of the LLC (the
"Liquidating Trustee") shall promptly notify the Members of that dissolution.
Section 13.4. Liquidation. Upon dissolution of the LLC:
a. The proceeds of liquidation shall be distributed, as realized, in the
following order and priority:
(1) First, to the LLC's creditors, including Members who are
creditors and the Liquidating Trustee, to the extent otherwise permitted
by law, in satisfaction of the LLC's liabilities (whether by payment or
making reasonable provision for payment thereof), other than liabilities
for distributions to Members;
(2) Next, to Members to the extent of liabilities for distributions
to Members previously declared;
(3) Next, to all Members, up to the amount of their Capital Account
balances, in proportion thereto; and
(4) The remainder, to all Members in proportion to their respective
Membership Points.
b. If the Liquidating Trustee determines that it is not feasible to
liquidate all of the LLC's assets, then the Liquidating Trustee (1) shall cause
the Fair Market Value of the assets not so liquidated to be determined and (2)
shall distribute those assets in kind to the Members pursuant to Section
13.4(a). For purposes of that section, a distribution of any such asset in kind
to a Member shall be considered a distribution of an amount equal to that
asset's Fair Market Value as of the date of distribution thereof. Each such
asset shall be treated as if it were sold for that Fair Market Value, and the
resulting Profits or Losses shall be allocated among the Members in accordance
with Article 6.
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Section 13.5. Termination. The LLC shall terminate when all of its assets,
after payment of or provision for all of its debts, liabilities and obligations,
have been distributed to the Members as provided for in this Article 13, and the
Certificate has been canceled in the manner required by the Delaware Act.
Section 13.6. Claims of the Members. For purposes of this Article 13, the
Members shall look solely to the LLC's assets for the return of their capital
contributions. If the assets of the LLC remaining after payment of or provision
for all of the LLC's debts, liabilities and obligations are insufficient to
return those capital contributions, the Members shall have no recourse against
the LLC or any other Member.
ARTICLE 14
REPRESENTATIONS AND WARRANTIES
Section 14.1. Representations and Warranties of Natural Person Principals.
Each Principal who is a natural person hereby represents and warrants to
Holdings, the other Principals and the LLC with respect to himself or herself:
a. He or she has full legal capacity and authority to execute, deliver and
perform his or her obligations hereunder. This Agreement has been duly executed
and delivered by him or her and constitutes his or her legal, valid and binding
obligation, enforceable against him or her in accordance with its terms, except
as may be limited by (x) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and fraudulent transfer or similar laws now or hereafter
relating to creditors' rights generally or (y) general principles of equity,
whether asserted in a proceeding in equity or at law.
b. No approval, authorization, consent, license, clearance or order of,
declaration or notification to, or filing, registration or compliance with, any
government or regulatory authority that has not been obtained is required to
permit him or her to enter into this Agreement.
Section 14.2. Representations and Warranties of ▇▇▇▇▇ ▇▇▇▇ and Holdings.
Each of ▇▇▇▇▇ ▇▇▇▇ and Holdings hereby represents and warrants to the Principals
and the LLC on behalf of itself:
a. It is an entity duly organized, validly existing and in good standing
under California law in the case of ▇▇▇▇▇ ▇▇▇▇ and Delaware law in the case of
Holdings, and has all requisite corporate power and authority to own, lease and
operate its properties and carry on its business as now being conducted.
b. It has all requisite corporate power and authority to execute, deliver
and perform its obligations hereunder. The execution, delivery and performance
hereof and the consummation of the transactions contemplated hereby have been
duly approved and authorized by all necessary corporate action of ▇▇▇▇▇ ▇▇▇▇ or
Holdings, as the case may be. This Agreement
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has been duly executed and delivered by ▇▇▇▇▇ ▇▇▇▇ or Holdings, as the case may
be, and constitutes the legal, valid and binding obligation of ▇▇▇▇▇ ▇▇▇▇ or
Holdings, as the case may be, enforceable against it in accordance with its
terms, except as may be limited by (x) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and fraudulent transfer or similar laws now or
hereafter relating to creditors' rights generally or (y) general principles of
equity, whether asserted in a proceeding in equity or at law.
c. No approval, authorization, consent, license, clearance or order of,
declaration or notification to, or filing, registration or compliance with, any
governmental or regulatory authority that has not been obtained is required in
order to permit ▇▇▇▇▇ ▇▇▇▇ or Holdings, as the case may be, to enter into this
Agreement.
Section 14.3. Representations and Warranties of All Members. Each Member
hereby represents and warrants to the LLC and each other Member and acknowledges
that (1) he, she or it is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Securities Act of 1933, as amended,
(2) he, she or it has such knowledge and experience in financial and business
matters that he, she or it is capable of evaluating the merits and risks of an
investment in the LLC and making an informed investment decision with respect
thereto, (3) he, she or it is able to bear the economic and financial risks of
an investment in the LLC for an indefinite period of time, (4) he, she or it is
acquiring an interest in the LLC for investment only and not with a view to, or
for resale in connection with, any distribution to the public, (5) the LLC
Interests have not been registered under the securities laws of any jurisdiction
and cannot be disposed of unless they are subsequently registered and/or
qualified under applicable securities laws and the provisions of this Agreement
have been complied with and (6) the execution, delivery and performance of this
Agreement by him, her or it do not require him, her or it to obtain any consent
or approval that has not been obtained, and do not contravene or result in a
default under any existing law or regulation applicable to him, her or it, or
any agreement or instrument to which he, she or it is a party or by which he or
it is bound.
ARTICLE 15
MISCELLANEOUS
Section 15.1. Amendments. Except as provided otherwise herein, any
amendment to this Agreement shall be adopted and be effective as an amendment
hereto if it is approved by Members holding at least 95% of the then outstanding
Membership Points in writing.
Section 15.2. Power of Attorney. Each Member hereby constitutes and
appoints the LLC's President as the true and lawful representative and
attorney-in-fact of that Member, in his, her or its name, place and stead, to
make, execute, sign and file any amendment to the Certificate and other
instruments, documents and certificates that may from time to time be required
by the laws of the United States of America, the State of Delaware, any other
state or country or any political subdivision or agency thereof, in which the
LLC does business to effectuate, implement and continue the valid and subsisting
existence or qualification to do business of the LLC or in connection with any
tax returns, filings or related matters, in each case consistent with the
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provisions hereof. Each Member acknowledges that such appointment is coupled
with an interest. The Board may at any time replace the LLC's President with
another individual as attorney-in-fact if the Board determines that a
replacement would be in the LLC's best interests.
Section 15.3. Notices.
a. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be sent as provided below:
(1) If to ▇▇▇▇▇ ▇▇▇▇, to:
▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
(2) If to Holdings, to:
GTBA Holdings, Inc.
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President
with a copy to:
GTBA Holdings, Inc.
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇, Esquire,
Vice President
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(3) If to the LLC, to:
Grant ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
and a copy to:
GTBA Holdings, Inc.
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esquire
Vice President
(4) If to a Principal, to that Principal's attention at:
Grant ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
b. All notices and other communications required or permitted hereunder
addressed as provided in this Section 15.3: (1) shall be effective upon delivery
if delivered personally against proper receipt and (2) shall be effective upon
receipt if sent by (A) certified or registered mail with postage prepaid or (B)
Federal Express or similar courier service with courier fees paid by the sender.
The parties hereto may change their respective addresses for the purposes of
notices to that party from time to time by a similar notice specifying a new
address. No such change shall be deemed to have been given unless it has been
sent and received in accordance with this Section 15.3.
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Section 15.4. Waivers. Any waiver of any term or condition or of the
breach of any covenant, representation or warranty hereof in any one instance
shall not operate as or be deemed to be or construed as a further or continuing
waiver of any other breach of that term, condition, covenant, representation or
warranty or any other term, condition, covenant, representation or warranty. No
failure or delay at any time or times to enforce or require performance of any
provision hereof shall operate as a waiver of or affect in any manner a party's
right at a later time to enforce or require performance of that provision or of
any other provision hereof; provided that no such waiver, unless by its terms it
explicitly provides to the contrary, shall be construed to effect a continuing
waiver of the provision being waived. No waiver in any instance shall constitute
a waiver in any other instance or for any other purpose or impair the right of
the party against whom that waiver is claimed in all other instances or for all
other purposes to require full compliance.
Section 15.5. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement, their heirs, legal representatives, successors and assigns.
Section 15.6. Severability. The invalidity or unenforceability of any
provision hereof shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects by interpreting that invalid or
unenforceable provision as nearly to the original meaning as possible so as to
make it valid and enforceable or, if that is not possible or permitted by
applicable law, by omitting that invalid or unenforceable provision.
Section 15.7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 15.8. Governing Law. This Agreement shall be construed under and
governed by Delaware law, without giving effect to the choice or conflicts of
law provisions thereof. Holdings hereby agrees to submit to the jurisdiction of
the courts of the State of California and the courts of the United States of
America located in the Central District in the State of California in any action
or proceeding arising out of or relating to this Agreement. Each of the
Principals, ▇▇▇▇▇ ▇▇▇▇ and the LLC hereby agrees to submit to the jurisdiction
of the courts of the State of Delaware and to the courts of the United States of
America located in Delaware in any action or proceeding arising out of or
relating to this Agreement.
Section 15.9. Captions. The captions in this Agreement are for convenience
only and shall not affect the construction or interpretation of any term or
provision hereof.
Section 15.10. Gender. Whenever used herein, the singular number shall
include the plural, the plural shall include the singular, unless the context
otherwise requires, and the use of any gender shall include all genders.
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Section 15.11. Third Party Beneficiaries. No person who is not a party to
this Agreement shall be entitled to any rights or benefits hereunder; provided
that Holdings, WTC and their respective Affiliates, each ▇▇▇▇▇ ▇▇▇▇ Entity and
each Subsidiary of a ▇▇▇▇▇ ▇▇▇▇ Entity is a third-party beneficiary of Sections
11.1, 11.2, 11.3 and 11.4.
Section 15.12. Remedies Cumulative. The rights and remedies provided
herein are cumulative, and the use of any one right or remedy by any party shall
not preclude or waive its right to use any and all other remedies.
Section 15.13. Integration. This Agreement (as it may be amended from time
to time) and the exhibits and schedules hereto constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and supersede
all prior agreements and understandings, oral or written, express or implied,
with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title:
GTBA HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Executive Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ (SEAL)
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇ (SEAL)
----------------------------------
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
By its execution below, Wilmington Trust Corporation guarantees the
obligations of GTBA Holdings, Inc. under this Amended and Restated Limited
Liability Company Agreement.
WILMINGTON TRUST CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
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