LIMITED LIABILITY COMPANY OPERATING
AGREEMENT dated as of March 11, 1994, by
and among HW Nebraska, Inc., a Nebraska
corporation, CP Nebraska, Inc., a
Nebraska corporation, both as Common
Members (as defined herein) and as the
managing members (the "Managing
Members"), as signatories hereto and,
pursuant to the Articles of Organization
referred to below, the other non-
signatory members (collectively, the
"Members") from time to time of ConAgra
Capital, L.C., an Iowa limited liability
company (the "Company").
Preliminary Statement
The Managing Members, as Common Members, have
formed the Company under the Iowa Limited Liability Company
Act (the "Act") for the purpose of the Company issuing
membership interests (the "Membership Interests"), on the
terms and conditions set forth herein, and lending the net
proceeds thereof to ConAgra, Inc. ("ConAgra") in exchange
for one or more debentures (the "Debentures").
In that connection, the Managing Members and the
Preferred Members (as defined herein) desire to enter into a
written agreement, in accordance with Section 490A.703 of
the Act, as to the affairs of the Company and the conduct of
its business. Pursuant to the Articles of Organization of
the Company, the Preferred Members are bound by this
Agreement.
Accordingly, in consideration of the mutual
promises made herein, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Capitalized terms used
but not otherwise defined herein shall have the meanings
assigned to them in the Act.
ARTICLE II
General Provisions
SECTION 2.01. Company Name. The name of the
Company is "ConAgra Capital, L.C.". The name of the Company
may be changed from time to time by the Managing Members in
their discretion.
SECTION 2.02. Registered Office; Registered
Agent. The Company shall maintain a registered office in the
State of Iowa at, and the name and address of the Company's
registered agent in the State of Iowa is, The Prentice-Hall
Corporation System, Inc., 729 Insurance Exchange Building,
Des Moines, Iowa 50309. Such office and such agent may be
changed from time to time by the Managing Members in their
discretion. The initial business address and office of the
Company shall be in care of ConAgra, Inc., at the address of
One ConAgra Drive, Omaha, Nebraska 68102-5001.
SECTION 2.03. Nature of Business Permitted;
Powers. The primary purpose of the Company is to finance
the business operation of ConAgra and companies controlled
by ConAgra. Subject to the foregoing and in compliance with
any requirements necessary to remain eligible for exemption
from the definition of "investment company" under the
Investment Company Act of 1940, as amended, and exempt from
the periodic reporting requirements under the Securities
Exchange Act of 1934, as amended, the Company may carry on
any lawful business, purpose or activity.
SECTION 2.04. Business Transactions of a Member
or the Managing Members with the Company. Subject to
Section 490A.708 of the Act, the Managing Members or their
affiliates may lend money to, borrow money from, act as
surety, guarantor or endorser for, guarantee or assume one
or more specific obligations of, provide collateral for, and
transact other business with, the Company and, subject to
other applicable law, shall have the same rights and
obligations with respect to any such matter as persons who
are not Managing Members or affiliates thereof.
SECTION 2.05. Fiscal Year. The fiscal year of
the Company for federal income tax purposes shall, except as
otherwise required in accordance with the Internal Revenue
Code of 1986, as amended (the "Code"), end on
December 31 of each year.
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ARTICLE III
Members
SECTION 3.01. Admission of Members. (a) A person
shall be admitted as a Member, or shall become an assignee
of a Membership Interest or other rights or powers of a
Member to the extent assigned, and shall become bound by the
terms of this Agreement, without execution of this
Agreement, if such person (or a representative authorized by
such person orally, in writing or by other action such as
payment for a Membership Interest) complies with the
conditions for becoming a Member or assignee, as the case
may be, as set forth in Section 3.01(b) and requests (which
request shall be deemed to have been made by such person
effective upon payment for its Membership Interest) that the
records of the Company reflect such admission or assignment.
The Company shall be promptly notified by any
assignor of any assignment. The Company will reflect
admission of a Member in the records of the Company as soon
as is reasonably practicable after either of the following
events: (i) in the case of a person acquiring a Membership
Interest directly from the Company, at the time of payment
therefor, and (ii) in the case of an assignment, upon
notification thereof (the Company being entitled to assume,
in the absence of knowledge to the contrary, that proper
payment has been made by the assignee).
(b) Whether acquiring a Membership Interest
directly from the Company or by assignment, a person shall
be admitted as a Member upon the acquisition or assignment,
as the case may be, of such Membership Interest and the
reflection of such person's admission as a Member in the
records of the Company. The consent of any other Member
shall not be required for the admission of a Member.
SECTION 3.02. Classes and Voting. (a) The
Membership Interests of the Company shall be divided into
two classes: (i) Series Preferred Membership Interests
("Preferred Interests") and (ii) Common Membership Interests
("Common Interests"). Members holding Preferred Interests
shall be referred to herein as "Preferred Members", and
Members holding Common Interests shall be referred to herein
as "Common Members". Common Interests shall be non-
assignable and non-transferable, and may only be issued to
and held by the Managing Members. Preferred Interests shall
be freely assignable and transferable.
(b) The Preferred Interests may be issued from
time to time in one or more series, the Membership Interests
of each series to have such relative rights, powers and
duties as may from time to time be established in a written
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action or actions of the Managing Members providing for the
issue of such series as hereinafter provided. Authority is
hereby expressly granted to the Managing Members, subject to
the provisions of this Section 3.02, to authorize the issue
of one or more series of Preferred Interests, and with
respect to each such series to establish by a written action
or actions providing for the issue of such series:
(i) the maximum number of Preferred Interests to
constitute such series and the distinctive designation
thereof;
(ii) whether the Preferred Interests of such
series shall have voting rights and, if so, the terms
of such voting rights;
(iii) the periodic distribution rate, if any, on
the Preferred Interests of such series, the conditions
and dates upon which such distributions shall be
payable, the dates from which such distributions shall
accrue, the preference or relation which such
distributions have with respect to distributions
payable on any other class or classes of Membership
Interests or on any other series of Preferred
Interests, and whether such distributions shall be
cumulative or noncumulative;
(iv) whether the Preferred Interests of such
series shall be subject to redemption by the Company,
and, if made subject to redemption, the times and other
terms and conditions of such redemption (including the
amount and kind of consideration to be received upon
such redemption);
(v) the rights of the holders of Preferred
Interests of such series upon the liquidation,
dissolution or winding up of the Company;
(vi) whether or not the Preferred Interests of
such series shall be subject to the operation of a
retirement or sinking fund, and, if so, the extent to
and manner in which any such retirement or sinking fund
shall be applied to the purchase or redemption of the
Preferred Interests of such series for retirement or to
other Company purposes and the terms and provisions
relative to the operation thereof;
(vii) whether or not the Preferred Interests of
such series shall be convertible into, or exchangeable
for, Membership Interests of any other class or
classes, or of any other series of Preferred Interests,
or securities of any other kind, including those issued
by the Managing Member or any of its affiliates, and if
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so convertible or exchangeable, the price or prices or
the rate or rates of conversion or exchange and the
method, if any, of adjusting the same;
(viii) the limitations and restrictions, if any,
to be effective while any Preferred Interests of such
series are outstanding upon the payment of periodic
distributions or other distributions on, and upon the
purchase, redemption or other acquisition by the
Company of, Common Interests or any other series of
Preferred Interests;
(ix) the conditions or restrictions, if any, upon
the creation of indebtedness of the Company or upon the
issue of any additional Membership Interests (including
additional Preferred Interests of such series or of any
other series ranking on a parity with or prior to the
Membership Interests of such series as to periodic
distributions or distribution of assets on liquidation,
dissolution or winding up);
(x) the times, prices and other terms and
conditions for the offering of the Preferred Interests;
(xi) the allocation of preferential profits or
losses, if any;
(xii) the circumstances under which a trustee may
be appointed as contemplated by Section 3.02(f); and
(xiii) any other relative rights, powers and
duties as shall not be inconsistent with this Section
3.02.
In connection with the foregoing and without
limiting the generality thereof and except as otherwise
provided herein (including, without limitation, in Sections
3.02(e) and 10.01), the Managing Members are hereby
expressly authorized to take any action, including the
amendment of this Agreement, without the vote or approval of
any Preferred Member, to create under the provisions of this
Agreement a class or group of Membership Interests that was
not previously outstanding.
An action or actions taken by the Managing Members
pursuant to the provisions of this paragraph (b) shall be
deemed an amendment and supplement to and part of this
Agreement.
(c) All Preferred Interests of any one series
shall be identical with each other in all respects, except
that Preferred Interests of any one series issued at
different times may differ as to the dates from which
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periodic distributions, if any, thereon shall be cumulative;
and all series of Preferred Interests shall rank equally and
be identical in all respects, except as permitted by the
provisions of paragraph (b) of this Section 3.02; and all
Preferred Interests shall rank senior to the Common
Interests both as to periodic distributions and
distributions of assets upon liquidation dissolution or
winding up.
(d) In the event of any liquidation, dissolution
or winding up of the Company, the holders of Preferred
Interests of each series at the time outstanding will be
entitled to receive out of the assets of the Company legally
available for distribution to Members, before any
distribution of assets is made to holders of Common
Interests or any other class of interests ranking junior to
such Preferred Interests as regards participation in assets
of the Company, but together with the holders of Preferred
Interests of any other series or any other preferred
interests of the Company outstanding ranking pari passu with
such Preferred Interests as regards participation in the
assets of the Company ("Capital Liquidation Parity
Interests"), an amount equal, in the case of the holders of
the Preferred Interests of such series, to the aggregate of
the stated liquidation preference for Preferred Interests of
such series and all accumulated and unpaid distributions
(whether or not declared) to the date of payment (the
"Liquidation Distribution"). If, upon any such liquidation,
the Liquidation Distributions can be paid only in part
because the Company has insufficient assets available to pay
in full the aggregate Liquidation Distributions and the
aggregate maximum liquidation distributions on Capital
Liquidation Parity Interests, then the amounts payable
directly by the Company on the Preferred Interests of such
series and on such Capital Liquidation Parity Interests
shall be paid on a pro rata basis, so that
(i) (x) the aggregate amount paid as Liquidation
Distributions on the Preferred Interests of such series
bears to (y) the aggregate amount paid as liquidation
distributions on Capital Liquidation Parity Interests
the same ratio as
(ii) (x) the aggregate Liquidation Distribution
bears to (y) the aggregate maximum liquidation
distributions on Capital Liquidation Parity Interests.
For the purposes of this paragraph (d), the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock,
securities, or other consideration) of all or substantially
all the property or assets of the Company shall be deemed a
voluntary liquidation, dissolution or winding up of the
Company, but a consolidation or merger of the Company with
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one or more other limited liability companies or
corporations shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
(e) Except as shall be otherwise established
herein or in the action or actions of the Managing Members
providing for the issue of any series of Preferred Interests
and except as otherwise required by the Act, the Preferred
Members holding such Preferred Interests shall have, with
respect to such Preferred Interests, no right or power to
vote on any question or matter or in any proceeding or to be
represented at, or to receive notice of, any meeting of
Members. Notwithstanding the foregoing, if any resolution
is proposed for adoption by the Members of the Company
providing for, or the Managing Members propose to take any
action to effect,
(x) any variation or abrogation of the rights,
preferences and privileges of the Preferred Interests
of any series by way of amendment of the Agreement or
otherwise (including, without limitation, the
authorization or issuance of any interests in the
Company ranking, as to participation in the profits or
assets of the Company, senior to the Preferred
Interests) which variation or abrogation adversely
affects the Members of Preferred Interests of such
series,
(y) the liquidation, dissolution or winding up of
the Company, or
(z) the commencement of any bankruptcy,
insolvency, reorganization or other similar proceeding
involving the Company in the United States or any state
thereof,
then the Members holding outstanding Preferred Interests of
such series (and, in the case of a resolution described in
clause (x) above which would adversely affect the rights,
preferences or privileges of any Capital Dividend Parity
Interests or any Capital Liquidation Parity Interests, such
Capital Dividend Parity Interests or such Capital
Liquidation Parity Interests, as the case may be, or, in the
case of any resolution described in clause (y) above, all
Capital Liquidation Parity Interests or, in the case of any
resolution described in clause (z) above, other than holders
of any Preferred Interests of such series that are also
creditors of ConAgra or any of its subsidiaries) will be
entitled to vote together as a class on such resolution or
action of the Managing Members (but not any other resolution
or action) and such resolution or action shall not be
effective except with the approval of the holders of 66 2/3%
in stated liquidation preference of such outstanding
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Preferred Interests, provided that no such resolution or
action shall, without the consent of each Preferred Member
affected thereby, (1) change the terms established pursuant
to Section 3.02(b)(iii), (iv), (v), (vi), (vii), (viii),
(xi) or (xii) in a manner adverse to such Preferred Member
or (2) reduce the above-stated percentage of stated
liquidation preference necessary to approve such action or
(3) amend the provisions of Section 3.02(f); provided
further, however, that no such approval shall be required
under clauses (y) and (z) if the liquidation, dissolution or
winding up of the Company is proposed or initiated upon the
initiation of proceedings, or after proceedings have been
initiated, for the liquidation, dissolution, or winding up
of either of the Managing Members.
(f) If (i) the Company fails to pay distributions
in full on the Preferred Interests of any series for 18
consecutive monthly periods, (ii) an Event of Default (as
defined in the Debentures) occurs and is continuing on the
Debentures, or (iii) ConAgra is in default on any of its
payment or other obligations under the Payment and Guarantee
Agreement (the "Guarantee") to be executed and delivered by
ConAgra in respect of the issuance of the Preferred
Interests, then the holders of a majority in stated
liquidation preference of the outstanding Preferred
Interests of all series having the right to vote for the
appointment of a trustee in such event, acting as a single
class, shall be entitled to appoint and authorize a trustee
to enforce the Company's rights under the Debentures against
ConAgra, enforce the obligations undertaken by ConAgra under
the Guarantee and declare and pay distributions on the
Preferred Interests. For purposes of determining whether
the Company has failed to pay distributions in full for 18
consecutive monthly distribution periods, distributions
shall be deemed to remain in arrears, notwithstanding any
payments in respect thereof, until full cumulative
distributions have been or contemporaneously are declared
and paid with respect to all monthly distribution periods
terminating on or prior to the date of payment of such full
cumulative distributions. Not later than 30 days after such
right to appoint a trustee arises, the Managing Members
shall convene a meeting for the purpose of appointing a
trustee. If the Managing Members fail to convene such
meeting within such 30-day period, the holders of 10% in
stated liquidation preference of the outstanding Preferred
Interests of all series having the right to vote for the
appointment of a trustee in such event, acting as a single
class, shall be entitled to convene such meeting. Any such
trustee so appointed shall vacate office immediately,
subject to the applicable terms of all such Preferred
Interests, if the Company shall have paid in full all
accumulated and unpaid distributions on the Preferred
8
Interests of such series or such default or breach by
ConAgra shall have been cured.
(g) All Common Interests shall be identical with
each other in every respect. The Common Interests shall
entitle the holders thereof to one vote for each such Common
Interest upon all matters upon which Common Members have the
right to vote.
SECTION 3.03. Liability of Members. (a) Except
as otherwise provided in Section 3.03(b) below, the debts,
obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts,
obligations and liabilities of the Company; and no Member of
the Company, other than the Managing Members as described in
Section 3.03(b), shall be obligated personally for any such
debt, obligation or liability of the Company solely by
reason of being a Member.
(b) The Common Members shall have unlimited
liability for the debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, and
shall be obligated personally for all such debts,
obligations and liabilities of the Company, in the same way
and to the same extent as if the Company were a partnership
under the Iowa Uniform Partnership Act, Chapter 486 of the
Code of Iowa, of which the Managing Members were general
partners.
SECTION 3.04. Events of Cessation of Membership.
A person shall cease to be a Member only upon the lawful
assignment of its Membership Interests (including any
redemption, exchange or other repurchase by the Company or
the Managing Members), and the compliance, in cases other
than any such redemption, exchange or repurchase, of the
assignee with the provisions of Section 3.01.
SECTION 3.05. Access to and Confidentiality of
Information; Records. (a) Each Member shall have the
right, subject to such reasonable standards (including
standards governing time, location and expense) as may be
established by the Managing Members from time to time, to
obtain from the Company from time to time upon reasonable
demand for any purpose reasonably related to the Member's
interest as a Member of the Company, the documents and other
information described in Section 490A.709 of the Act.
(b) Any demand by a Member pursuant to this
Section 3.05 shall be in writing and shall state the purpose
of such demand.
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ARTICLE IV
Management
SECTION 4.01. Management of the Company. The
business and affairs of the Company shall be managed, and
all actions required under this Agreement shall be
determined, solely and exclusively by the Managing Members,
in their capacity as Common Members, which shall have all
rights and powers on behalf and in the name of the Company
to perform all acts necessary and desirable to the objects
and purposes of the Company. Without limiting the
generality of the foregoing, but subject to Section 2.03
hereof, the Managing Members, in their capacity as Common
Members, shall have the power to:
(a) authorize and engage in transactions and
dealings on behalf of the Company, including
transactions and dealings with any Member or any
affiliate of any Member or the Managing Members
(including, without limitation, purchasing Debentures
from and making loans to ConAgra);
(b) call meetings of Members or any class or
series thereof;
(c) issue Membership Interests;
(d) pay all expenses incurred in forming the
Company;
(e) borrow money on behalf of the Company, issue
or guarantee evidences of indebtedness and obtain lines
of credit, loan commitments and letters of credit for
the account of the Company and secure the same by
mortgage, pledge or other lien on any assets of the
Company;
(f) lend money, with or without security, to any
person, including the Managing Members, any Member or
any affiliate thereof;
(g) determine and make distributions, in cash or
otherwise, on Membership Interests, in accordance with
the provisions of this Agreement and of the Act;
(h) establish or set aside in their discretion any
reserve or reserves for contingencies and for any other
proper Company purpose;
(i) redeem or repurchase on behalf of the Company
Membership Interests which may be so redeemed or
repurchased;
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(j) appoint (and dismiss from appointment)
officers, attorneys and agents on behalf of the
Company, and employ (and dismiss from employment) any
and all persons providing legal, accounting or
financial services to the Company, or such other
employees or agents as the Managing Members deem
necessary or desirable for the management and operation
of the Company, including, without limitation, any
Member or any affiliate of the Managing Members or any
Member;
(k) incur and pay all expenses and obligations
incident to the operation and management of the
Company, including, without limitation, the services
referred to in the preceding paragraph, taxes,
interest, travel, rent, insurance, supplies, salaries
and wages of the Company's employees and agents;
(l) acquire and enter into any contract of
insurance necessary or desirable for the protection or
conservation of the Company and its assets or otherwise
in the interest of the Company as the Managing Members
shall determine;
(m) open accounts and deposit, maintain and
withdraw funds in the name of the Company in banks,
savings and loan associations, brokerage firms or other
financial institutions;
(n) effect a dissolution of the Company and to act
as liquidator or the person winding up the Company's
affairs, all in accordance with the provisions of this
Agreement and of the Act;
(o) bring and defend on behalf of the Company
actions and proceedings at law or equity before any
court or governmental, administrative or otherwise
regulatory agency, body or commission or otherwise;
(p) prepare and cause to be prepared reports,
statements and other relevant information for
distribution to Members as may be required or
determined to be appropriate by the Managing Members
from time to time;
(q) prepare and file all necessary returns and
statements and pay all taxes, assessments and other
impositions applicable to the assets of the Company;
and
(r) execute all other documents or instruments,
perform all duties and powers and do all things for and
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on behalf of the Company in all matters necessary or
desirable or incidental to the foregoing.
The Managing Members are hereby authorized and
directed to conduct their affairs and to operate the Company
in such a way that the Company would not be deemed to be an
"investment company" for purposes of the Investment Company
Act of 1940, as amended. In this connection, the Managing
Members are authorized to take any action not inconsistent
with applicable law, the articles of organization or this
Agreement which they determine in their discretion to be
necessary or desirable for such purposes.
SECTION 4.02. Classes and Voting. All Common
Members shall have the right to vote separately as a class
on any matter on which the Common Members have the right to
vote regardless of the voting rights of any other Member.
SECTION 4.03. Books and Records; Accounting.
The Managing Members shall keep or cause to be kept at the
address of the Managing Members (or at such other place as
the Managing Members shall advise the other Members in
writing) true and full books and records regarding the
status of the business and financial condition of the
Company.
SECTION 4.04. Company Tax Returns. (a) The
Managing Members shall cause to be prepared and timely filed
all tax returns required to be filed for the Company. The
Managing Members may, in their discretion, make or refrain
from making any federal, state or local income or other tax
elections for the Company that they deem necessary or
advisable, including, without limitation, any election under
Section 754 of the Internal Revenue Code or any successor
provision.
(b) CP Nebraska, Inc. is hereby designated as the
Company's "Tax Matters Partner" under Code Section
6231(a)(7) and shall have all the powers and
responsibilities of such position as provided in the Code.
CP Nebraska, Inc. is specifically directed and authorized to
take whatever steps CP Nebraska, Inc., in its discretion,
deems necessary or desirable to perfect such designation,
including filing any forms or documents with the Internal
Revenue Service and taking such other action as may from
time to time be required under the Regulations issued under
the Code. Expenses incurred by the Tax Matters Partner, in
its capacity as such will be borne by the Company.
SECTION 4.05 Reliance by Third Parties. Persons
dealing with the Company are entitled to rely conclusively
upon the power and authority of the Managing Members herein
set forth.
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SECTION 4.06 Expenses. Except as otherwise
provided in this Agreement, the Company shall be responsible
for all and shall pay all expenses out of funds of the
Company determined by the Managing Members to be available
for such purpose, provided that such expenses or obligations
are those of the Company or are otherwise incurred by the
Managing Members in connection with this Agreement,
including, without limitation:
(a) all expenses incurred by the Managing Members
or its affiliates in organizing the Company;
(b) all costs and expenses related to the
business of the Company and all routine administrative
expenses of the Company, including the maintenance of
books and records of the Company, the preparation and
dispatch to the Members of checks, financial reports,
tax returns and notices required pursuant to this
Agreement and the holding of any meetings of the
Members;
(c) all expenses incurred in connection with any
indebtedness or guarantees of the Company or any
proposed or definitive credit facility or other credit
arrangement;
(d) all expenses incurred in connection with any
litigation involving the Company (including the cost of
any investigation and preparation) and the amount of
any judgment or settlement paid in connection therewith
(other than expenses incurred by the Managing Member in
connection with any litigation brought by or on behalf
of any Member against the Managing Member);
(e) all expenses for indemnity or contribution
payable by the Company to any Person;
(f) all expenses incurred in connection with the
collection of amounts due to the Company from any
person;
(g) all expenses incurred in connection with the
preparation of amendments to this Agreement; and
(h) all expenses incurred in connection with the
liquidation, dissolution and winding up of the Company.
SECTION 4.07. Merger or Consolidation. The
Company may not consolidate or merge with or into, or
convey, transfer or lease its properties and assets
substantially as an entirety to any limited liability
company, corporation or other body, except as set forth in
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this Section 4.07. The Company may solely for the purpose
of changing its domicile or avoiding tax consequences
adverse to ConAgra or the Company or holders of Preferred
Securities, without the consent of the Preferred Members,
consolidate or merge with or into a limited liability
company or limited partnership organized as such under the
laws of any state of the United States of America; provided
that (i) such successor entity either (x) expressly assumes
all of the obligations of the Company under each series of
Preferred Securiites then outstanding or (y) substitutes for
the Preferred Securities then outstanding other securities
having substantially the same terms as the Preferred
Securities then outstanding (the "Successor Securities") so
long as the Successor Securities rank, with respect to
participation in the profits or assets of the successor
entity, at least as senior as the respective Preferred
Securities rank with respect to participation in the profits
or assets of the Company, (ii) ConAgra expressly
acknowledges such successor as the holder of all of the
Debentures relating to each series of Preferred Interests
then outstanding, (iii) such merger or consolidation does
not cause any series of Preferred Interests then outstanding
to be delisted by any national securities exchange or other
organization on which such series is then listed, (iv) the
Preferred Members do not suffer any adverse tax consequences
as a result of such merger or consolidation, (v) such merger
or consolidation does not cause any Preferred Interests to
be downgraded by any "nationally recognized statistical
rating organization," as that term is defined by the
Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act of 1933, as amended, and
(vi) following such merger or consolidation neither ConAgra
nor such successor limited liability company or limited
partnership will be an "investment company" for purposes of
the Investment Company Act of 1940, as amended.
ARTICLE V
Contributions and Allocations
SECTION 5.01. Form of Contribution. The
contribution of a Member to the Company may, as determined
by the Managing Members in their discretion, be in cash, or
a promissory note or other obligation to contribute cash.
SECTION 5.02. Contributions by the Common
Members. The Common Members shall make such contributions
to the Company, either in connection with the purchase of
Common Membership Interests or otherwise, so as to cause
their Common Interests to be entitled to at least 21% of all
interest in the capital, income, gain, loss, deduction,
credit and distributions of the Company at all times.
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SECTION 5.03. Contributions by the Preferred
Members. The Preferred Members shall make such
contributions to the Company in accordance with the
applicable terms of Section 3.02 of this Agreement.
Preferred Members, in their capacity as Members of the
Company, shall not be required to make any additional
contribution to the Company and shall have no additional
liability solely by reason of being Preferred Members in
excess of their share of the Company's assets and
undistributed profits.
SECTION 5.04. Allocation of Profits and Losses.
The profits and losses of the Company shall, subject to the
applicable terms of Section 3.02 of this Agreement and of
any series of Preferred Interests (including the
preferential allocation of profits and losses, if any), be
allocated entirely to the Common Members.
SECTION 5.05. Allocation of Distributions. The
distributions of the Company shall, subject to the
applicable terms of Section 3.02 of this Agreement and of
any series of Preferred Interests (including the
preferential allocation of distributions, if any), be
allocated entirely to the Common Members.
ARTICLE VI
Distributions and Resignations
SECTION 6.01. Interim Distribution. Preferred
Members shall receive periodic distributions, if any, in
accordance with the applicable terms of Section 3.02 of this
Agreement and of any series of Preferred Interests, and
Common Members shall receive periodic distributions, subject
to the applicable terms of Section 3.02 of this Agreement
and of any series of Preferred Interests, and to the
provisions of the Act, as and when declared by the Managing
Members, in their discretion out of funds legally available
therefor.
SECTION 6.02. Resignation of the Managing
Members. The Managing Members shall have no right to
resign.
SECTION 6.03. Resignation of Member. A Member
shall resign from the Company prior to the dissolution and
winding up of the Company only upon the assignment of its
Membership Interests (including any redemption, exchange or
other repurchase by the Company) and, as the case may be,
compliance with the provisions of Section 3.01 of this
Agreement.
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SECTION 6.04. Distribution Upon Resignation. Upon
resignation, and except in accordance with the applicable
terms of its Membership Interest, any resigning Member shall
not be entitled to receive any distribution and shall not
otherwise be entitled to receive the fair value of its
Membership Interest.
SECTION 6.05. Distribution in Kind. A Member, in
the discretion of the Managing Members and in accordance
with any applicable agreement, instrument, action or terms
of the Membership Interests, may receive distributions from
the Company in any form other than cash, and may be
compelled to accept a distribution of any asset in kind from
the Company such that the percentage of the asset
distributed to him equals a percentage of that asset which
is equal to the percentage in which the Member shares in
distributions from the Company.
SECTION 6.06. Record Dates. The Managing Members
in their discretion, and in accordance with any applicable
agreement, instrument or action, shall have the right to
establish a record date with respect to allocations and
distributions by the Company.
ARTICLE VII
Assignment of Membership Interests
SECTION 7.01. Assignment of Membership Interests.
Notwithstanding anything to the contrary under this
Agreement, Common Interests shall be non-assignable and non-
transferable, and may only be issued to a Managing Member
and held by the Managing Member to which such Common
Interest was originally issued. Preferred Interests shall
be freely assignable and transferable, subject to the
provisions of Section 3.01.
SECTION 7.02. Right of Assignee to Become a
Member. An assignee shall become a Member upon compliance
with the provisions of Section 3.01.
ARTICLE VIII
Dissolution
SECTION 8.01. Duration and Dissolution. The
Company shall be dissolved and its affairs shall be wound up
upon the first to occur of the following:
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(a) May 15, 2094;
(b) any Managing Member makes an assignment for
the benefit of creditors, files a voluntary petition in
bankruptcy, is adjudged bankrupt or insolvent, or has
entered against it an order for relief, in any
bankruptcy or insolvency proceeding, files a petition
or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or other similar relief under any statute,
law or regulation, files an answer or other pleading
admitting or failing to contest the material
allegations of a petition filed against it in any
proceeding of this nature, seeks, consents or
acquiesces in the appointment of a trustee, receiver or
liquidator of any Managing Member of any substantial
part of its properties, or 120 days after the
commencement of any proceeding against any Managing
Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or
similar relief under any statute, law or regulation, if
the proceeding has not been dismissed, or if within 90
days after the appointment without its consent or
acquiescence of a trustee, receiver or liquidator of
any Managing Member or of all or any substantial part
of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any
such stay, the appointment is not vacated;
(c) upon the withdrawal, resignation, expulsion,
dissolution or liquidation of any Managing Member or
the occurrence of any other event that terminates the
continued membership of the Common Members;
(d) a decision made by the Managing Members
(subject to the voting rights of the holders of the
Preferred Interests set forth in Section 3.02(e)) to
dissolve the Company;
(e) the written consent of all Members; and
(f) the entry of a decree of judicial dissolution
under Section 490A.1302 of the Act.
The death, retirement, resignation, expulsion,
bankruptcy or dissolution of any other Member or the
occurrence of any other event which terminates the continued
membership of any other Member in the Company shall not
cause the Company to be dissolved and its affairs wound up.
SECTION 8.02. Winding Up. Subject to the
provisions of the Act, the Managing Members shall have the
exclusive right to wind up the Company's affairs in
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accordance with Section 490A.1303 of the Act (and shall
promptly do so upon dissolution of the Company in accordance
with Section 8.01), and shall also have the exclusive right
to act as or appoint a liquidating trustee in connection
therewith.
SECTION 8.03. Distribution of Assets. Upon the
winding up of the Company the assets shall be distributed in
the manner provided in Section 490A.1304 of the Act, subject
to the applicable terms of Section 3.02 and of any series of
Preferred Interests.
ARTICLE IX
Reports
SECTION 9.01. Tax Reports and Financial
Statements. After the end of each fiscal year, the Managing
Members shall, as promptly as possible and in any event
within 90 days of the close of the fiscal year, (a) cause to
be prepared and made available upon request of any Preferred
Member the financial statements of the Company prepared in
accordance with generally accepted accounting principles and
(b) cause to be prepared and transmitted to each member
federal income tax form K-1 or any other forms which are
necessary or advisable.
ARTICLE X
Miscellaneous
SECTION 10.01. Amendment to the Agreement.
Except as otherwise provided in this Agreement or by any
applicable terms of any Preferred Interests, this Agreement
(other than Section 7.01 of this Agreement) may be amended
by a written instrument executed by the Managing Members.
SECTION 10.02. Successors; Counterparts. This
Agreement (a) shall be binding as to the executors,
administrators, estates, heirs and legal successors, or
nominees or representatives, of the Members and (b) may be
executed in several counterparts with the same effect as if
the parties executing the several counterparts had all
executed one counterpart.
SECTION 10.03. Governing Law; Severability. This
Agreement shall be governed by and construed in accordance
with the laws of the State of Iowa without giving effect to
the principles of conflict of laws thereof. In particular,
this Agreement shall be construed to the maximum extent
possible to comply with all of the terms and conditions of
the Act. If, nevertheless, it shall be determined by a
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court of competent jurisdiction that any provisions or
wording of this Agreement shall be invalid or unenforceable
under said Act or other applicable law, such invalidity or
unenforceability shall not invalidate the entire Agreement.
In that case, this Agreement shall be construed as to limit
any term or provision so as to make it enforceable or valid
within the requirements of applicable law, and, in the event
such term or provisions cannot be so limited, this Agreement
shall be construed to omit such invalid or unenforceable
provisions. If it shall be determined by a court of
competent jurisdiction that any provision relating to the
distributions and allocations of the Company or to any fee
payable by the Company is invalid or unenforceable, this
Agreement shall be construed or interpreted so as (a) to
make it enforceable or valid and (b) to make the
distributions and allocations as closely equivalent to those
set forth in this Agreement as is permissible under
applicable law.
SECTION 10.04. Filings. Following the execution
and delivery of this Agreement, the Managing Members shall
promptly prepare any documents required to be filed and
recorded under the Act, and the Managing Members shall
promptly cause each such document to be filed and recorded
in accordance with Act and, to the extent required by local
law, to be filed and recorded or notice thereof to be
published in the appropriate place in each jurisdiction in
which the Company may hereafter establish a place of
business. The Managing Members shall also promptly cause to
be filed, recorded and published such statements of
fictitious business name and any other notices,
certificates, statements or other instruments required by
any provision of any applicable law of the United States or
any state or other jurisdiction which governs the conduct of
its business from time to time.
SECTION 10.05. Power of Attorney. Each Member
does hereby constitute and appoint each Managing Member as
its true and lawful representative and attorney-in-fact, in
its name, place and stead to make, execute, sign, deliver
and file (a) Articles of Organization of the Company, any
amendment thereof required because of an amendment to this
Agreement or in order to effectuate any change in the
membership of the Company, (b) this Agreement, (c) any
amendments to this Agreement and (d) all such other
instruments, documents and certificates which may from time
to time be required by the laws of the United States of
America, the State of Iowa or any other jurisdiction, or any
political subdivision of agency thereof, to effectuate,
implement and continue the valid and subsisting existence of
the Company or to dissolve the Company or for any other
purpose consistent with this Agreement and the transactions
contemplated hereby.
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The power of attorney granted hereby is coupled
with an interest and shall (a) survive and not be affected
by the subsequent death, incapacity, disability,
dissolution, termination or bankruptcy of the Member
granting the same or the transfer of all or any portion of
such Member's Interest and (b) extend to such Member's
successors, assigns and legal representatives.
SECTION 10.06. Headings. Section and other
headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret,
define or limit the scope or intent of this Agreement or any
provision hereof.
SECTION 10.07. Additional Documents. Each
Member, upon the request of the Managing Members, agrees to
perform all further acts and execute, acknowledge and
deliver any documents that may be reasonably necessary to
carry out the provisions of this Agreement.
SECTION 10.08. Notices. All notices, requests
and other communications to any party hereunder shall be in
writing (including telecopier or similar writing) and shall
be given to such party (and any other person designated by
such party) at its address or telecopier number set forth in
a schedule filed with the records of the Company or such
other address or telecopier number as such party may
hereafter specify for the purpose of notice to the Managing
Members (if such party is not a Managing Member) or to all
the other Members (if such party is a Managing Member).
Each such notice, request or other communication shall be
effective (a) if given by telecopier, when transmitted to
the number specified pursuant to this Section and the
appropriate confirmation is received, (b) if given by mail,
72 hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid, or
(c) if given by any other means, when delivered at the
address specified pursuant to this Section.
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IN WITNESS WHEREOF, the undersigned have hereto set
their hands as of the day and year first above written.
COMMON MEMBERS:
CP NEBRASKA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance and
Treasurer
HW NEBRASKA, INC.
By: /s/ James P. O'Donnell
Name: James P. O'Donnell
Title: Vice President, Finance and
Treasurer
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