EXHIBIT 10.5
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ALLIANCE LAUNDRY HOLDINGS LLC
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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
Dated as of May 5, 1998
THE COMPANY INTERESTS REPRESENTED BY THIS AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH
INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY
TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION
THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.
THE COMPANY INTERESTS REPRESENTED BY THIS AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER
SPECIFIED IN THE SECURITYHOLDERS AGREEMENT, DATED AS OF MAY 5, 1998, AS AMENDED
OR MODIFIED FROM TIME TO TIME, AMONG THE ISSUER (THE "COMPANY"), AND CERTAIN
INVESTORS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH
INTERESTS UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO ANY
TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE.
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TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS..................................................1
ARTICLE II ORGANIZATIONAL MATTERS.......................................9
2.1 Formation of Company.........................................9
2.2 Limited Liability Company Agreement..........................9
2.3 Name.........................................................9
2.4 Purpose......................................................9
2.5 Principal Office; Registered Office..........................9
2.6 Term.........................................................9
2.7 No State-Law Partnership....................................10
ARTICLE III CAPITAL CONTRIBUTIONS.......................................10
3.1 Unitholders.................................................10
3.2 Capital Accounts............................................10
3.3 Negative Capital Accounts...................................11
3.4 No Withdrawal...............................................12
3.5 Loans From Unitholders......................................12
ARTICLE IV DISTRIBUTIONS AND ALLOCATIONS...............................12
4.1 Distributions...............................................12
4.2 Allocations.................................................14
4.3 Special Allocations.........................................14
4.4 Tax Allocations.............................................15
4.5 Curative Allocations........................................16
4.6 Indemnification and Reimbursement for Payments on Behalf
of a Unitholder.............................................16
ARTICLE V MANAGEMENT..................................................17
5.1 Authority of Board..........................................17
5.2 Actions of the Board; Composition...........................17
5.3 Proxies.....................................................18
5.4 Meetings, etc...............................................18
5.5 Delegation of Authority.....................................19
5.6 Purchase of Units...........................................19
5.7 Limitation of Liability.....................................20
ARTICLE VI RIGHTS AND OBLIGATIONS OF UNITHOLDERS.......................21
6.1 Limitation of Liability.....................................21
6.2 Lack of Authority...........................................21
6.3 No Right of Partition.......................................21
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6.4 Indemnification.............................................21
6.5 Members Right to Act........................................22
6.6 Conflicts of Interest.......................................23
ARTICLE VII BOOKS, RECORDS, ACCOUNTING AND REPORTS.......................24
7.1 Records and Accounting......................................24
7.2 Fiscal Year.................................................24
7.3 Reports.....................................................24
7.4 Transmission of Communications..............................25
ARTICLE VIII TAX MATTERS.................................................25
8.1 Preparation of Tax Returns..................................25
8.2 Tax Elections...............................................25
8.3 Tax Controversies...........................................25
ARTICLE IX TRANSFER OF COMPANY INTERESTS...............................26
9.1 Transfer In General.........................................26
9.2 Assignee's Rights...........................................26
9.3 Assignor's Rights and Obligations...........................27
ARTICLE X ADMISSION OF MEMBERS........................................27
10.1 Substituted Members.........................................27
10.2 Additional Members..........................................27
ARTICLE XI WITHDRAWAL AND RESIGNATION OF UNITHOLDERS...................28
11.1 Withdrawal and Resignation of Unitholders...................28
ARTICLE XII DISSOLUTION AND LIQUIDATION..................................28
12.1 Dissolution.................................................28
12.2 Liquidation and Termination.................................28
12.3 Deferment; Distribution in Kind.............................29
12.4 Cancellation of Certificate.................................30
12.5 Reasonable Time for Winding Up..............................30
12.6 Return of Capital...........................................30
12.7 Liquidity Event or IPO......................................30
ARTICLE XIII VALUATION...................................................31
13.1 Determination...............................................31
13.2 Determination of Fair Market................................31
ARTICLE XIV GENERAL PROVISIONS...........................................32
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14.1 Power of Attorney...........................................32
14.2 Amendments..................................................32
14.3 Title to Company Assets.....................................33
14.4 Addresses and Notices.......................................33
14.5 Binding Effect..............................................34
14.6 Creditors...................................................34
14.7 Waiver......................................................34
14.8 Counterparts................................................34
14.9 Applicable Law..............................................34
14.10 Severability................................................34
14.11 Further Action..............................................34
14.12 Expenses....................................................35
14.13 Offset......................................................35
14.14 Entire Agreement............................................35
14.15 Remedies....................................................35
14.16 Opt-in to Article 8 of the Uniform Commercial Code..........35
14.17 Descriptive Headings; Interpretation........................36
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ALLIANCE LAUNDRY HOLDINGS LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, dated
as of May 5, 1998, is entered into by and among the Members a party hereto.
Pursuant to Section 13.9 of that certain Limited Liability Company Agreement of
Raytheon Commercial Laundry, LLC dated as of August 21, 1997 (the "Original
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Agreement"), the parties thereto desire to amend and restate the Original
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Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby amend and restate the Original Agreement as follows:
ARTICLE I
DEFINITIONS
The following definitions shall be applied to the terms used in this
Agreement for all purposes, unless otherwise clearly indicated to the contrary.
"Additional Member" means a Person admitted to the Company as a Member
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pursuant to Section 10.2.
"Adjusted Capital Account Deficit" means with respect to any Capital
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Account as of the end of any Taxable Year, the amount by which the balance in
such Capital Account is less than zero. For this purpose, such Person's Capital
Account balance shall be:
(i) reduced for any items described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), and (6), and
(ii) increased for any amount such Person is obligated to contribute
or is treated as being obligated to contribute to the Company
pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c)
(relating to partner liabilities to a partnership) or 1.704-
2(g)(1) and 1.704-2(i) (relating to minimum gain).
"Admission Date" is defined in Section 9.3.
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"Affiliate" of any Person means any Person that directly or indirectly
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controls, is controlled by, or is under common control with the Person in
question.
"Agreement" means this Amended and Restated Limited Liability Company
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Agreement of Alliance Laundry Holdings LLC.
"Assignee" means a Person to whom a Company Interest has been
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transferred in accordance with the terms of the Securityholders Agreement, but
who has not become a Member pursuant to Article X.
"Bain" means Bain/RCL, L.L.C.
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"Bain Group" means Bain/RCL, L.L.C., and each of its respective
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Affiliates and successors.
"Bain Members" is defined in Section 5.2(b).
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"Bain Units" means Units held by members of the Bain Group.
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"Base Rate" means, on any date, a variable rate per annum equal to the
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rate of interest most recently published by The Wall Street Journal as the
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"prime rate" at large U.S. money center banks.
"Board" means the Board of Managers of the Company.
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"Book Value" means, with respect to any Company property, the
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Company's adjusted basis for federal income tax purposes, adjusted from time to
time to reflect the adjustments required or permitted by Treasury Regulation
Section 1.704-1(b)(2)(iv)(d)-(g).
"BRS" shall mean BRS/RCL Investment Corp., BCB Family Partners, L.P.,
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Stephen C. Sherrill, NAZ Family Partners, L.P., H. Virgil Sherrill, Paul D.
Kaminski, Nancy A. Zweng, Bruce C. Bruckmann, John Rice Edmonds, Donald J.
Bruckmann, Susan Kaider, Harold O. Rosser, Marilena Tibrea, Walker C. Simmons,
MLPF&S Custodian FBO Paul Kaminski and their Affiliates, Permitted Transferees
(as defined in the Securityholders Agreement) and successors.
"Capital Account" means the capital account maintained for a Member
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pursuant to Section 3.2.
"Capital Contribution" means any cash, cash equivalents, promissory
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obligations or the Fair Market Value of other property which a Unitholder
contributes or is deemed to have contributed to the Company pursuant to Section
3.1 or 5.1.
"Cash Inflows" means the sum of all Capital Contributions made by the
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Investors from and after the date of this Agreement with respect to or in
exchange for Investor Units.
"Cash Outflows" means the sum of all cash Distributions and the Fair
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Market Value of all other Distributions made by the Company to the Investors,
together with the sum of all other cash payments and the Fair Market Value of
all other payments made by unaffiliated third parties to, or otherwise received
by, the Investors (other than in connection with a repurchase of securities
pursuant to an Executive Agreement) from and after the date of this Agreement
with respect to or in exchange for Investor Units; provided that in the event
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that property is distributed subject to
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contingencies or restrictions that might affect its Fair Market Value (e.g.,
non-publicly traded stock, publicly traded stock subject to restrictions or
limitations or a right to receive future consideration pursuant to an earn out),
such Distribution shall not be considered a "Cash Outflow" until the date such
distributed property is first sold by one of the Investors (i) in or after an
underwritten public offering of securities by the Company or (ii) to any person
who is not an Affiliate of any Unitholder or the Company.
"Certificate" means the Company's Certificate of Formation as filed
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with the Secretary of State of Delaware.
"Chairman" is defined in Section 5.2(b).
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"Change in Control" shall mean the first to occur of (i) the
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occurrence of a Liquidity Event or (ii) (A) the Company (or its successor as a
result of merger, consolidation, reorganization or sale) becoming a reporting
company under the Securities Exchange Act of 1934 as a result of the
registration of its common equity securities thereunder and (B) the Investors
and their affiliates collectively ceasing to own at least 50% of the aggregate
number of Common Units that they own on the date hereof (as adjusted for a
dividend or split or exchange or in connection with a combination of units,
recapitalization, merger, consolidation or other reorganization).
"Class A Unit" means a Unit representing a fractional part of the
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Company Interests of the Unitholders and having the rights and obligations
specified with respect to Class A Units in this Agreement.
"Class A Unitholder" means a holder of Class A Units.
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"Class B Unit" means a Unit representing a fractional part of the
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Company Interests of the Unitholders and having the rights and obligations
specified with respect to Class B Units in this Agreement.
"Class B Unitholder" means a holder of Class B Units.
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"Class C Unit" means a Unit representing a fractional part of the
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Company Interests of the Unitholders and having the rights and obligations
specified with respect to the Class C Units in the Agreement.
"Class C Unitholder" means a holder of Class C Units.
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"Class L Unit" means a Unit representing a fractional part of the
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Company Interests of the Unitholders and having the rights and obligations
specified with respect to the Class L Units in this Agreement.
"Class L Unitholder" means a holder of Class L Units.
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"Class L Yield" means, with respect to each Class L Unit, the amount
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accruing on such Class L Unit on a daily basis, at the rate of 12% per annum,
compounded on the last day of each calendar quarter, on (a) the Unreturned
Capital of such Class L Unit plus (b) Unpaid Class L Yield thereon, for all
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prior quarterly periods. In calculating the amount of any Distribution to be
made during a period, the portion of a Class L Unit's Class L Yield for such
portion of such period elapsing before such Distribution is made shall be taken
into account with respect to determining the amount of such Distribution with
respect to Class L Yield.
"Code" means the United States Internal Revenue Code of 1986, as
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amended. Such term shall, at the Board's sole discretion, be deemed to include
any future amendments to the Code and any corresponding provisions of succeeding
Code provisions (whether or not such amendments and corresponding provisions are
mandatory or discretionary).
"Commitment" means, with respect to each Unitholder, the aggregate
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amount of Capital Contributions made or agreed to be made by such Unitholder as
specified in Schedule I attached hereto as the same may be modified from time to
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time under the terms of this Agreement.
"Common Unit" means a Unit representing a fractional part of the
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Company Interests of the Unitholders and having the rights and obligations
specified with respect to Class L Units, Class A Units, Class B Units or Class C
Units in this Agreement; provided that a "Common Unit" will not include (i) a
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Class B Unit unless and until such Class B Unit is a Vested Class B Unit and the
Target B Multiple has been achieved, or (ii) a Class C Unit unless and until
such Class C Unit is a Vested Class C Unit and the Target C Multiple has been
achieved. Without limiting the generality of the immediately preceding sentence
and in furtherance thereof, any Units that are not included as "Common Units"
pursuant to the proviso contained in the immediately preceding sentence at the
time of any determination thereof, shall not be deemed outstanding for purposes
of Section 4.1(a)(iv) at the time of such determination.
"Common Unitholder" means a holder of Common Units.
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"Company" means Alliance Laundry Holdings LLC, a Delaware limited
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liability company, established in accordance with this Agreement as such limited
liability company may be from time to time constituted, and including its
successors.
"Company Interest" means the interest of a Unitholder in Profits,
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Losses and Distributions.
"Delaware Act" means the Delaware Limited Liability Company Act, 6
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Del.L. (S) 18-101, et seq., as it may be amended from time to time, and any
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successor to the Delaware Act.
"Distribution" means each distribution made by the Company to a
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Unitholder, whether in cash, property or securities of the Company and whether
by liquidating distribution, redemption, repurchase or otherwise; provided that
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none of the following shall be a Distribution: (a) any redemption or repurchase
by the Company of any securities, and (b) any recapitalization or exchange of
securities of the Company, and any subdivision (by Unit split or otherwise) or
any
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combination (by reverse Unit split or otherwise) of any outstanding Units
and (c) any distribution made by the Company pursuant to Section 4.1(c) hereof.
"Equity Securities" means (i) Units or other equity interests in the
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Company (including other classes or groups thereof having such relative rights,
powers and duties as may from time to time be established by the Board,
including rights, powers and/or duties senior to existing classes and groups of
Units and other equity interests in the Company), (ii) obligations, evidences of
indebtedness or other securities or interests convertible or exchangeable into
Units or other equity interests in the Company and (iii) warrants, options or
other rights to purchase or otherwise acquire Units or other equity interests in
the Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended.
"Event of Withdrawal" means the death, retirement, resignation,
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expulsion, bankruptcy or dissolution of a Member, or the occurrence of any other
event that terminates the continued membership of a Member in the Company.
"Executive Agreements" means those certain Executive Unit Purchase
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Agreements and IRA and Executive Unit Purchase Agreements, by and among the
Company and certain employees of the Company, and/or trustees for various
employees' IRAs, as in effect from time to time.
"Fair Market Value" means, with respect to any asset or equity
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interest, its fair market value determined according to Article XIII.
"Fiscal Period" means any interim accounting period within a Taxable
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Year established by the Board and which is permitted or required by Code Section
706.
"Fiscal Year" means the Company's annual accounting period established
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pursuant to Section 7.2.
"Governmental Entity" means the United States of America or any other
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nation, any state or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.
"Indemnified Person" is defined in Section 6.4(a).
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"Independent Third Party" means any Person or group of Persons
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collaborating with respect to a transaction that, immediately prior to the
contemplated transaction, does not own, individually or collectively, in excess
of 10% of the Company's Units on a fully-diluted basis (a "10% Owner"), who is
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not controlling, controlled by or under common control with any such 10% Owner
and who is not the spouse or descendent (by birth or adoption) of any such 10%
Owner or a trust for the benefit of such 10% Owner and/or such other Persons.
"Investor Units" means, collectively, Class A Units and Class L Units.
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"Investors" means members of the Bain Group.
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"IPO" means the initial sale pursuant to a registration statement
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filed under the Securities Act of any Equity Securities of the Company, whether
by the Company or any holder of equity securities of the Company.
"Liens" means any mortgage, pledge, security interest, encumbrance,
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lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof), any sale of
receivables with recourse against the Company, any Subsidiary or any Affiliate,
any filing or agreement to file a financing statement as debtor under the
Uniform Commercial Code or any similar statute other than to reflect ownership
by a third party of property leased to the Company or any Subsidiaries under a
lease which is not in the nature of a conditional sale or title retention
agreement, or any subordination arrangement in favor of another Person (other
than any subordination arising in the ordinary course of business).
"Liquidity Event" means (a) any sale to an Independent Third Party of
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all or substantially all (as defined in the Model Business Corporation Act) of
the assets of the Company and its Subsidiaries on a consolidated basis in one
transaction or series of related transactions, (b) any sale to an Independent
Third Party of all or substantially all of the Common Units (or a transaction
having a similar effect as contemplated by Section 12.7) in one transaction or
series of related transactions but excluding any sales of Common Units in a
Public Sale (as defined in the Securityholders Agreement) or (c) a merger or
consolidation or other transaction which accomplishes one of the foregoing.
"Losses" means items of Company loss and deduction determined
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according to Section 3.2.
"Member" means each of the members named on Schedule I attached hereto
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and any Person admitted to the Company as a Substituted Member or Additional
Member; but only so long as such Person is shown on the Company's books and
records as the owner of one or more Units.
"Merger Agreement" means that certain Agreement and Plan of Merger,
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dated February 21, 1998, by and among Bain, the Company, Raytheon and Raytheon
Commercial Laundry LLC, as amended from time to time.
"Minimum Gain" means the partnership minimum gain determined pursuant
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to Treasury Regulation Section 1.704-2(d).
"Note" means that certain Junior Subordinated Note in the original
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principal amount of $9,000,000 issued by the Company to Raytheon.
"Person" means an individual or a corporation, partnership, limited
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liability company, trust, unincorporated organization, association or other
entity.
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"Preferred Redemption Date" shall mean the earlier to occur of (i) a
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Change in Control, (ii) the consummation of an IPO and (iii) the date that is
eleven and one-half years from date hereof.
"Preferred Unit" means a Unit representing a fractional part of the
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Company Interests of the Unitholders and having the preference rights and other
rights and obligations specified with respect to Preferred Units in this
Agreement.
"Preferred Unitholder" means a holder of Preferred Units.
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"Profits" means items of Company income and gain determined according
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to Section 3.2.
"Raytheon" means Raytheon Company, a Delaware corporation, and any
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transferee of Common Interests issued to it.
"Representative" is defined in Section 5.2(b).
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"Securities Act" means the Securities Act of 1933, as amended, and
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applicable rules and regulations thereunder, and any successor to such statute,
rules or regulations. Any reference herein to a specific section, rule or
regulation of the Securities Act shall be deemed to include any corresponding
provisions of future law.
"Securityholders Agreement" means that certain Securityholders
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Agreement, dated as of the date hereof, by and among the Company and each of its
Members, as amended or modified from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
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limited liability company, partnership, association or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity (other than
a corporation), a majority of partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity (other than a corporation) if such Person or Persons shall
be allocated a majority of limited liability company, partnership, association
or other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association or other business entity. For purposes hereof, references to a
"Subsidiary" of the Company shall be given effect only at such times that the
Company has one or more Subsidiaries, and, unless otherwise indicated, the term
"Subsidiary" refers to a Subsidiary of the Company.
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"Substituted Member" means a Person that is admitted as a Member to
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the Company pursuant to Section 10.1.
"Target B Multiple" means Cash Outflows divided by Cash Inflows which
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yield a result greater than or equal to 1.0.
"Target C Multiple" means Cash Outflows divided by Cash Inflows which
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yield a result greater than or equal to 3.0.
"Tax Matters Partner" has the meaning given to such term in Section
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6231 of the Code.
"Taxable Year" means the Company's accounting period for federal
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income tax purposes determined pursuant to Section 7.2.
"Treasury Regulations" means the income tax regulations promulgated
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under the Code and effective as of the date hereof. Such term shall, at the
Board's sole discretion, be deemed to include any future amendments to such
regulations and any corresponding provisions of succeeding regulations (whether
or not such amendments and corresponding provisions are mandatory or
discretionary).
"Unit" means a Company Interest of a Member or an Assignee in the
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Company representing a fractional part of the Company Interests of all Members
and Assignees and shall include Common Units and Preferred Units; provided that
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any class or group of Units issued shall have relative rights, powers and duties
set forth in this Agreement and the Company Interest represented by such class
or group of Units shall be determined in accordance with such relative rights,
powers and duties.
"Unitholder" means any owner of one or more Units as reflected on the
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Company's books and records.
"Unitholder Group" is defined in Section 6.6.
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"Unpaid Class L Yield" of any Class L Unit means, as of any date, an
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amount equal to the excess, if any, of (a) the aggregate Class L Yield accrued
on such Class L Unit for all periods prior to such date, over (b) the aggregate
amount of prior Distributions made by the Company that constitute payment of
Class L Yield on such Class L Unit.
"Unreturned Capital" means, with respect to a Preferred Unit or a
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Class L Unit, the excess, if any, of the Capital Contribution made in exchange
for or on account of such Unit over all Distributions made by the Company that
constitute a return of the Capital Contribution therefor pursuant to Section
4.1(a)(ii) or 4(a)(iv).
"Vested Class B Units" means any Class B Units which have time vested
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in accordance with the terms of the Executive Agreement pursuant to which such
Units were acquired.
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"Vested Class C Units" means any Class C Units which have time vested
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in accordance with the terms of the Executive Agreement pursuant to which such
Units were acquired.
"Vested Common Units" means collectively Vested Class B Units and
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Vested Class C Units.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 FORMATION OF COMPANY. The Company was formed on August 21, 1997
pursuant to the provisions of the Delaware Act and the provisions of this
Agreement.
2.2 LIMITED LIABILITY COMPANY AGREEMENT. The Members hereby execute
this Agreement for the purpose of establishing the affairs of the Company and
the conduct of its business in accordance with the provisions of the Delaware
Act. The Members hereby agree that during the term of the Company set forth in
Section 2.6 the rights and obligations of the Unitholders with respect to the
Company will be determined in accordance with the terms and conditions of this
Agreement and, except where the Delaware Act provides that such rights and
obligations specified in the Delaware Act shall apply "unless otherwise provided
in a limited liability company agreement" or words of similar effect, and such
rights and obligations are set forth in this Agreement, the Delaware Act;
provided that, notwithstanding the foregoing, Section 18-210 of the Delaware Act
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shall not apply or be incorporated into this Agreement.
2.3 NAME. The name of the Company shall be "Alliance Laundry
Holdings LLC." The Board in its sole discretion may change the name of the
Company at any time and from time to time. Notification of any such change
shall be given to all Unitholders. The Company's business may be conducted
under its name and/or any other name or names deemed advisable by the Board.
2.4 PURPOSE. The purpose and business of the Company shall be any
business which may lawfully be conducted by a limited liability company formed
pursuant to the Delaware Act.
2.5 PRINCIPAL OFFICE; REGISTERED OFFICE. The principal office of the
Company shall be at P.O. Box 990, Ripon, WI 54971-0990 or such other place as
the Board may from time to time designate. The Company may maintain offices at
such other place or places as the Board deems advisable. Notification of any
such change shall be given to all Unitholders. The address of the registered
office of the Company in the State of Delaware shall be 1 East Loockermann
Street, Dover, DE 19901, and the registered agent for service of process on the
Company in the State of Delaware at such registered office shall be National
Registered Agents, Inc.
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2.6 TERM. The term of the Company commenced upon the filing of the
Certificate in accordance with the Delaware Act and shall continue in existence
until termination and dissolution thereof in accordance with the provisions of
Article XII.
2.7 NO STATE-LAW PARTNERSHIP. The Unitholders intend that the
Company not be a partnership (including, without limitation, a limited
partnership) or joint venture, and that no Unitholder be a partner or joint
venturer of any other Unitholder by virtue of this Agreement, for any purposes
other than as set forth in the last sentence of this Section 2.7, and neither
this Agreement nor any other document entered into by the Company or any
Unitholder relating to the subject matter hereof shall be construed to suggest
otherwise. The Unitholders intend that the Company shall be treated as a
partnership for federal and, if applicable, state or local income tax purposes,
and that each Unitholder and the Company shall file all tax returns and shall
otherwise take all tax and financial reporting positions in a manner consistent
with such treatment.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 UNITHOLDERS.
(a) Each Unitholder named on Schedule I attached hereto has made
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Capital Contributions to the Company as set forth on Schedule I in exchange for
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the Units specified thereon; it being understood that interest paid by any
Unitholder on Capital Contributions made by such Unitholder in the form of a
promissory note pursuant to Section 3.1(b) below shall not be deemed a Capital
Contribution and the paying of such interest shall not result in any increase in
the amount of the Capital Account of such Unitholder.
(b) Notwithstanding the provisions of paragraph (a) above, the Board
may, at its sole option, permit Members to satisfy their Capital Contributions
by the issuance to the Company of a promissory note with a principal amount
equal to the amount of its Capital Contribution required hereunder.
(c) Subsequent to the closing of the transactions contemplated by the
Merger Agreement, each Unitholder who is issued Units by the Company shall make
the Capital Contributions to the Company as determined by the Board pursuant to
Section 5.1 in exchange for such Units.
3.2 CAPITAL ACCOUNTS.
(a) The Company shall maintain a separate Capital Account for each
Unitholder according to the rules of Treasury Regulation Section 1.704-
1(b)(2)(iv). For this purpose, the Company may (in the discretion of the
Board), upon the occurrence of the events specified in Treasury Regulation
Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in
10
accordance with the rules of such regulation and Treasury Regulation Section
1.704-1(b)(2)(iv)(g) to reflect a revaluation of Company property.
(b) For purposes of computing the amount of any item of Company
income, gain, loss or deduction to be allocated pursuant to Article IV and to be
reflected in the Capital Accounts, the determination, recognition and
classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes (including any
method of depreciation, cost recovery or amortization used for this purpose);
provided that:
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(i) The computation of all items of income, gain, loss and
deduction shall include those items described in Code Section
705(a)(l)(B) or Code Section 705(a)(2)(B) and Treasury
Regulation Section 1.704-1(b)(2)(iv)(i), without regard to the
fact that such items are not includable in gross income or are
not deductible for federal income tax purposes.
(ii) If the Book Value of any Company property is adjusted pursuant
to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f), the
amount of such adjustment shall be taken into account as gain
or loss from the disposition of such property.
(iii) Items of income, gain, loss or deduction attributable to the
disposition of Company property having a Book Value that
differs from its adjusted basis for tax purposes shall be
computed by reference to the Book Value of such property.
(iv) Items of depreciation, amortization and other cost recovery
deductions with respect to Company property having a Book Value
that differs from its adjusted basis for tax purposes shall be
computed by reference to the proper ty's Book Value in
accordance with Treasury Regulation Section 1.704-
1(b)(2)(iv)(g).
(v) To the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code Sections 732(d), 734(b) or
743(b) is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining
Capital Accounts, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment
decreases such basis).
3.3 NEGATIVE CAPITAL ACCOUNTS. No Unitholder shall be required to
pay to any other Unitholder or the Company any deficit or negative balance which
may exist from time to time in such Unitholder's Capital Account (including upon
and after dissolution of the Company).
11
3.4 NO WITHDRAWAL. No Person shall be entitled to withdraw any part
of such Person's Capital Contribution or Capital Account or to receive any
Distribution from the Company, except as expressly provided herein or in the
Securityholders Agreement.
3.5 LOANS FROM UNITHOLDERS. Loans by Unitholders to the Company
shall not be considered Capital Contributions. If any Unitholder shall transfer
funds to the Company in excess of the amounts required hereunder to be
contributed by such Unitholder to the capital of the Company, the transfer of
such excess shall not result in any increase in the amount of the Capital
Account of such Unitholder. The amount of any such excess, to the extent
approved by the Board and the Unitholder, shall be a debt of the Company to such
Unitholder and shall be payable or collectible in accordance with such terms and
conditions as are set by the Board and agreed to by such Unitholder and
otherwise promptly repaid to such Unitholder.
ARTICLE IV
DISTRIBUTIONS AND ALLOCATIONS
4.1 DISTRIBUTIONS.
(a) Except as otherwise set forth in this Section 4.1, the Board may
in its sole discretion make Distributions at any time or from time to time.
Except as otherwise set forth in this Section 4.1, each Distribution shall be
made in the following order and priority:
(i) first, to the holders of Preferred Units, an amount equal to the
aggregate Unreturned Capital with respect to such Preferred Unitholders'
outstanding Preferred Units (in the proportion that each Unitholder's share of
Unreturned Capital with respect to Preferred Units bears to the aggregate amount
of Unreturned Capital with respect to all such Preferred Units outstanding
immediately prior to such Distribution) until each such Unitholder has received
Distributions under this clause (i) in respect of such Unitholder's Preferred
Units in an amount equal to the aggregate Unreturned Capital with respect to
such Unitholder's outstanding Preferred Units immediately prior to such
Distribution, and no Distribution or any portion thereof may be made under any
of the other paragraphs below until the entire amount of Unreturned Capital with
respect to the outstanding Preferred Units immediately prior to such
Distribution has been paid in full;
(ii) second, to the Class L Unitholders, an amount equal to the
aggregate Unpaid Class L Yield with respect to such Class L Unitholders'
outstanding Class L Units (in the proportion that each Class L Unitholder's
share of Unpaid Class L Yield with respect to such Class L Units bears to the
aggregate Unpaid Class L Yield with respect to all Class L Units immediately
prior to such Distribution) until each such Unitholder has received
Distributions under this clause (ii) in respect of such Unitholder's Class L
Units in an amount equal to the aggregate Unpaid Class L Yield with respect to
such Unitholder's outstanding Class L Units immediately prior to such
Distribution, and no Distribution or any portion thereof shall be made under any
of the other paragraphs below until the entire amount of the Unpaid Class L
Yield with respect to the outstanding Class L Units immediately prior to such
Distribution has been paid in full;
12
(iii) third, to the Class L Unitholders, an amount equal to the
aggregate Unreturned Capital with respect to such Class L Unitholders'
outstanding Class L Units (in the proportion that each Unitholder's share of
Unreturned Capital with respect to such Class L Units bears to the aggregate
Unreturned Capital with respect to all such Class L Units immediately prior to
such Distribution) until each such Unitholder has received Distributions under
this clause (iii) in respect of such Unitholder's Class L Units in an amount
equal to the aggregate Unreturned Capital with respect to such Unitholder's
outstanding Class L Units immediately prior to such Distribution, and no
Distribution or any portion thereof shall be made under any of the other
paragraphs below until the entire amount of the Unreturned Capital with respect
to the outstanding Class L Units immediately prior to such Distribution has been
paid in full; and
(iv) fourth, to the Common Unitholders, an amount equal to the amount
of such Distribution that has not been distributed pursuant to paragraphs (i)
through (iii) of this Section 4.1(a) above (ratably among such Unitholders based
upon the number of outstanding Common Units held by each such Unitholder
immediately prior to such Distribution).
(b) Notwithstanding anything to the contrary herein, on the Preferred
Redemption Date, the Company shall make a distribution to the each holder of
Preferred Units an amount equal to the aggregate Unreturned Capital with respect
to such Preferred Unitholders' outstanding Preferred Units; provided, however,
-------- -------
that, notwithstanding the foregoing, if the Senior Indebtedness (as defined in
the Note) is in default and payment hereunder is prohibited thereby, amounts
required to be paid pursuant to this paragraph shall not be permitted to be paid
by the Company to the holder of the Preferred Units.
(c) The Company may in the sole discretion of the Board, subject to
any restrictions contained in the financing agreements to which the Company or
any of its Affiliates is a party, distribute to each Unitholder within 75 days
after the close of each Taxable Year (or at such earlier times and in such
amounts as determined in good faith by the Board to be appropriate to enable the
Unitholder to pay estimated income tax liabilities) an amount equal to 46% (or,
at the Board's sole discretion such greater or lesser percentage as the Board
may determine in good faith from time to time, to represent the sum of the
maximum marginal federal, state and local income tax rates applicable to any
Unitholder or its partners or stockholders, if applicable) of
(i) the Profits for such Fiscal Year allocated to such Unitholder
pursuant to Section 4.2 and 4.3, reduced by
----------
(ii) the sum of (x) the Losses for such Fiscal Year allocated to such
Unitholder pursuant to Sections 4.2 and 4.3 and (y) the excess of
the aggregate Losses over the aggregate Profits for all prior
fiscal years allocated to such Unitholder pursuant to Sections
4.2 and 4.3 but only to the extent that such excess Losses have
not expired unused pursuant to applicable Code provisions
(provided that, any Unitholder claiming Losses to have expired
unused shall provide the Company with documentation thereof and
shall not have used Losses from any other investment ahead of
Losses allocated to such Unitholder hereunder).
13
(d) Each Distribution pursuant to Sections 4.1(a), 4.1(b) and 4.1(c)
shall be made to the Persons shown on the Company's books and records as
Unitholders as of the date of such Distribution; provided, however, that any
-------- -------
transferor and transferee of Units may mutually agree as to which of them should
receive payment of any Distribution under Section 4.1(c).
4.2 ALLOCATIONS.
(a) Except as otherwise provided in Section 4.3, Profits and Losses
for any Fiscal Year shall be allocated among the Unitholders in such a manner
that, as of the end of such Fiscal Year, the sum of (i) the Capital Account of
each Unitholder, (ii) such Unitholder's share of Minimum Gain (as determined
according to Treasury Regulation Section 1.704-2(g)) and (iii) such Unitholder's
partner nonrecourse debt minimum gain (as defined in Treasury Regulation Section
1.704-2(i)(3)) shall be equal to the respective net amounts, positive or
negative, which would be distributed to them or for which they would be liable
to the Company under the Delaware Act, determined as if the Company were to (i)
liquidate the assets of the Company for an amount equal to their Book Value and
(ii) distribute the proceeds of liquidation pursuant to Section 12.2.
(b) For purposes of this Section 4.2, if Profits exceed Losses for a
Fiscal Year, (i) Losses shall first be allocated to Unitholders whose Capital
Accounts are reduced as a result of the allocations under Section 4.2(a), in an
amount equal to the amount by which such Capital Accounts have been reduced and
(ii) Profits and any remaining Losses shall be allocated to Unitholders whose
Capital Accounts are increased as a result of the allocations under Section
4.2(a), in the proportion that the amount of the increase in such Unitholder's
Capital Accounts as a result of the allocations under Section 4.2(a) bears to
the aggregate amount of the increase in all such Unitholders' Capital Accounts
as a result of the allocations under Section 4.2(a).
(c) For purposes of this Section 4.2, if Losses exceed Profits for a
Fiscal Year, (i) Profits shall first be allocated to Unitholders whose Capital
Accounts are increased as a result of the allocations under Section 4.2(a), in
an amount equal to the amount by which such Capital Accounts have been increased
and (ii) Losses and any remaining Profits shall be allocated to Unitholders
whose Capital Accounts are reduced as a result of the allocations under Section
4.2(a), in the proportion that the amount of the reduction in such Unitholder's
Capital Accounts as a result of the allocations under Section 4.2(a) bears to
the aggregate amount of the reduction in all such Unitholders' Capital Accounts
as a result of the allocations under Section 4.2(a).
4.3 SPECIAL ALLOCATIONS.
(a) Losses attributable to partner nonrecourse debt (as defined in
Treasury Regulation Section 1.704-2(b)(4)) shall be allocated in the manner
required by Treasury Regulation Section 1.704-2(i). If there is a net decrease
during a Taxable Year in partner nonrecourse debt minimum gain (as defined in
Treasury Regulation Section 1.704-2(i)(3)), Profits for such Taxable Year (and,
if necessary, for subsequent Taxable Years) shall be allocated to the
Unitholders in the amounts and of such character as determined according to
Treasury Regulation Section 1.704-2(i)(4).
14
(b) Nonrecourse deductions (as determined according to Treasury
Regulation Section 1.704-2(b)(1)) for any Taxable Year shall be allocated to
each Common Unitholder ratably among such Common Unitholders based upon the
number of outstanding Common Units held by each such Common Unitholder
immediately prior to such allocation. Except as otherwise provided in Section
4.3(a), if there is a net decrease in the Minimum Gain during any Taxable Year,
each Unitholder shall be allocated Profits for such Taxable Year (and, if
necessary, for subsequent Taxable Years) in the amounts and of such character as
determined according to Treasury Regula tion Section 1.704-2(f). This Section
4.3(b) is intended to be a minimum gain chargeback provision that complies with
the requirements of Treasury Regulation Section 1.704-2(f), and shall be
interpreted in a manner consistent therewith.
(c) If any Unitholder that unexpectedly receives an adjustment,
allocation or distribution described in Treasury Regulation Section 1.704-
1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted Capital Account Deficit as of the
end of any Taxable Year, computed after the application of Sections 4.3(a) and
4.3(b) but before the application of any other provision of this Article IV,
then Profits for such Taxable Year shall be allocated to such Unitholder in
proportion to, and to the extent of, such Adjusted Capital Account Deficit.
This Section 4.3(c) is intended to be a qualified income offset provision as
described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted in a manner consistent therewith.
(d) Profits and Losses described in Section 3.2(b)(v) shall be
allocated in a manner consistent with the manner that the adjustments to the
Capital Accounts are required to be made pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(j), (k) and (m).
(e) If, and to the extent that, any Unitholder is deemed to recognize
any item of income, gain, loss, deduction or credit as a result of any
transaction between such Unitholder and the Company pursuant to Code Sections
1272-1274, 7872, 483, 482 or any similar provision now or hereafter in effect,
and the Board determines that any corresponding Profit or Loss of the Company
should be allocated to the Unitholder who recognized such item in order to
reflect the Unitholder's economic interests in the Company, then the Board may
so allocate such Profit or Loss.
4.4 TAX ALLOCATIONS.
(a) The income, gains, losses, deductions and credits of the Company
will be allocated, for federal, state and local income tax purposes, among the
Unitholders in accordance with the allocation of such income, gains, losses,
deductions and credits among the Unitholders for computing their Capital
Accounts; except that if any such allocation is not permitted by the Code or
other applicable law, the Company's subsequent income, gains, losses, deductions
and credits will be allocated among the Unitholders so as to reflect as nearly
as possible the allocation set forth herein in computing their Capital Accounts.
(b) Items of Company taxable income, gain, loss and deduction with
respect to any property contributed to the capital of the Company shall be
allocated among the Unitholders in accordance with Code Section 704(c) so as to
take account of any variation between the adjusted basis of such property to the
Company for federal income tax purposes and its Book Value.
15
(c) If the Book Value of any Company asset is adjusted pursuant to the
requirements of Treasury Regulation Section 1.704-1(b)(2)(iv)(e) or (f)
subsequent allocations of items of taxable income, gain, loss and deduction with
respect to such asset shall take account of any variation between the adjusted
basis of such asset for federal income tax purposes and its Book Value in the
same manner as under Code Section 704(c).
(d) Allocations of tax credits, tax credit recapture, and any items
related thereto shall be allocated to the Unitholders according to their
interests in such items as determined by the Board taking into account the
principles of Treasury Regulation Section 1.704-1(b)(4)(ii).
(e) Allocations pursuant to this Section 4.4 are solely for purposes
of federal, state and local taxes and shall not affect, or in any way be taken
into account in computing, any Member's Capital Account or share of Profits,
Losses, Distributions or other Company items pursuant to any provision of this
Agreement.
(f) The Company shall not be required to apply the "traditional
method" of allocation permitted by Treasury Registration Section 1.704-3(b)(i).
4.5 CURATIVE ALLOCATIONS. The allocations set forth in Section 4.3
(the "Regulatory Allocations") are intended to comply with certain requirements
----------------------
of Sections 1.704-1(b) and 1.704-2 of the Treasury Regulations. The Regulatory
Allocations may not be consistent with the manner in which the Unitholders
intend to allocate Profit and Loss of the Company or make Company distributions.
Accordingly, notwithstanding the other provisions of this Article IV, but
subject to the Regulatory Allocations, income, gain, deduction, and loss shall
be reallocated among the Unitholders so as to eliminate the effect of the
Regulatory Allocations and thereby cause the respective Capital Accounts of the
Unitholders to be in the amounts (or as close thereto as possible) they would
have been if Profit and Loss (and such other items of income, gain, deduction
and loss) had been allocated without reference to the Regulatory Allocations.
In general, the Unitholders anticipate that this will be accomplished by
specially allocating other Profit and Loss (and such other items of income,
gain, deduction and loss) among the Unitholders so that the net amount of the
Regulatory Allocations and such special allocations to each such Unitholder is
zero. In addition, if in any Fiscal Year or Fiscal Period there is a decrease
in partnership minimum gain, or in partner nonrecourse debt minimum gain, and
application of the minimum gain chargeback requirements set forth in Section
4.3(a) or Section 4.3(b) would cause a distortion in the economic arrangement
among the Unitholders, the Unitholders may, if they do not expect that the
Company will have sufficient other income to correct such distortion, request
the Internal Revenue Service to waive either or both of such minimum gain
chargeback requirements. If such request is granted, this Agreement shall be
applied in such instance as if it did not contain such minimum gain chargeback
requirement.
4.6 INDEMNIFICATION AND REIMBURSEMENT FOR PAYMENTS ON BEHALF OF A
UNITHOLDER. Except as otherwise provided in Section 14.12, if the Company is
obligated to pay any amount to a Governmental Entity (or otherwise makes a
payment to a Governmental Entity) that is specifically attributable to a
Unitholder or a Unitholder's status as such (including federal withholding
taxes, state personal property taxes, and state unincorporated business taxes),
then such
16
Person shall indemnify the Company in full for the entire amount paid (including
interest, penalties and related expenses). The Board may offset Distributions to
which a Person is otherwise entitled under this Agreement against such Person's
obligation to indemnify the Company under this Section 4.6. A Unitholder's
obligation to make contributions to the Company under this Section 4.6 shall
survive the termination, dissolution, liquidation and winding up of the Company,
and for purposes of this Section 4.6, the Company shall be treated as continuing
in existence. The Company may pursue and enforce all rights and remedies it may
have against each Unitholder under this Section 4.6, including instituting a
lawsuit to collect such contribution with interest calculated at a rate equal to
the Base Rate plus three percentage points per annum (but not in excess of the
highest rate per annum permitted by law).
ARTICLE V
MANAGEMENT
5.1 AUTHORITY OF BOARD. Except for situations in which the approval
of the Members is specifically required by this Agreement, but subject to any
applicable provisions of the Securityholders Agreement (i) the Board shall
conduct, direct and exercise full control over all activities of the Company and
(ii) all management powers over the business and affairs of the Company shall be
exclusively vested in the Board. Without limiting the generality of the
foregoing, subject to the Securityholders Agreement, (x) the Board shall have
sole and complete discretion in determining whether to issue Equity Securities,
the number of Equity Securities to be issued at any particular time, the Capital
Contribution or purchase price for any Equity Securities issued, and all other
terms and conditions governing the issuance of Equity Securities and (y) the
Board may in its sole and complete discretion enter into, approve, and
consummate any merger, consolidation, sale of all or any part of its assets,
Liquidity Event or other extraordinary transaction, and execute and deliver on
behalf of the Company or the Unitholders any agreement, document and instrument
in connection therewith (including amendments, if any, to this Agreement or
adoptions of new constituent documents) without the approval or consent of any
Unitholder. No Representative shall have the authority to bind the Company,
unless such authority has been granted to such Representative by the Board.
5.2 ACTIONS OF THE BOARD; COMPOSITION.
(a) The Board may act (i) through meetings and written consents
pursuant to Section 5.4, (ii) through committees pursuant to Section 5.4(a) and
(iii) through any Person to whom authority and duties have been delegated
pursuant to Section 5.5.
(b) The Board shall consist of five individuals, which number may be
adjusted by the vote of the Bain Members, and, subject to the Securityholders
Agreement, the Members holding a majority of the Bain Units (the "Bain
----
Members") shall be entitled to appoint such Board Members. Each member of the
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Board is referred to herein as a "Representative." Subject to the immediately
--------------
preceding sentences and the Securityholders Agreement, the Bain Members may
remove (with or without cause) and, at their option and at any time thereafter,
replace, one or more
17
of the Representatives at any time by giving written notice pursuant to Section
14.5 of such removal and the name of the replacement Representative(s) to the
Board, if any; provided that any such replacement Representative is eligible
--------
to be appointed as a Representative pursuant to the immediately preceding
sentences in this Section 5.2(b). A "Chairman" of the Board shall be elected
--------
by the Board for one or more one-year terms.
(c) The initial Board shall consist of those persons set forth on
Schedule II attached hereto, each such person will be decreed duly appointed to
- -----------
the Board as of the first Business Day following the date hereof.
(d) In the event that any Representative designated hereunder by the
Bain Members ceases to serve as a member of the Board, the resulting vacancy on
the Board shall be filled by a Representative appointed by the Bain Members as
provided by Section 5.2(b).
5.3 PROXIES. A Representative may vote at a meeting of the Board or
any committee thereof either in person or by proxy executed in writing by such
Representative. A telegram, telex, cablegram or similar transmission by the
Representative, or a photographic, photostatic, facsimile or similar
reproduction of a writing executed by the Representative shall (if stated
thereon) be treated as a proxy executed in writing for purposes of this Section
5.3. Proxies for use at any meeting of the Board or any committee thereof or in
connection with the taking of any action by written consent shall be filed with
the Board, before or at the time of the meeting or execution of the written
consent as the case may be. All proxies shall be received and taken charge of
and all ballots shall be received and canvassed by the majority of the Board who
shall decide all questions concerning the qualification of voters, the validity
of the proxies and the acceptance or rejection of votes. No proxy shall be
valid after eleven months from the date of its execution unless otherwise
provided in the proxy. A proxy shall be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy is coupled with
an interest. Should a proxy designate two or more Persons to act as proxies,
unless that instrument shall provide to the contrary, a majority of such Persons
present at any meeting at which their powers thereunder are to be exercised
shall have and may exercise all the powers of voting or giving consents thereby
conferred, or if only one be present, then such powers may be exercised by that
one; or, if an even number attend and a majority do not agree on any particular
issue, the Company shall not be required to recognize such proxy with respect to
such issue if such proxy does not specify how the votes that are the subject of
such proxy are to be voted with respect to such issue.
5.4 MEETINGS, ETC.
(a) Meetings of the Board and any committee thereof shall be held at
the principal office of the Company or at such other place as may be determined
by the Board or such committee. Regular meetings of the Board shall be held on
such dates and at such times as shall be determined by the Board. Special
meetings of the Board or any committee may be called by any one Representative
(or, in the case of a special meeting of any committee of the Board, by any
member thereof) on at least twenty-four hours' prior written notice to the other
Representatives, which notice shall state the purpose or purposes for which such
meeting is being called. The actions taken by the Board or any committee at any
meeting (as opposed to by written consent), however called and
18
noticed, shall be as valid as though taken at a meeting duly held after regular
call and notice if (but not until), either before, at or after the meeting, the
Representative as to whom it was improperly held signs a written waiver of
notice or a consent to the holding of such meeting or an approval of the minutes
thereof. The actions by the Board or any committee thereof may be taken by vote
of the Board or any committee at a meeting of the Representatives thereof or by
unanimous written consent (without a meeting and without a vote). A meeting of
the Board or any committee may be held by conference telephone or similar
communications equipment by means of which all individuals participating in the
meeting can be heard.
(b) Each Representative shall have one vote on all matters submitted
to the Board or any committee thereof (whether the consideration of such matter
is taken at a meeting, by written consent or otherwise). The affirmative vote
(whether by proxy or otherwise) of members of the Board holding a majority of
the votes of all members of the Board shall be the act of the Board. Except as
otherwise provided by the Board when establishing any committee, the affirmative
vote (whether by proxy or otherwise) of members of such committee holding a
majority of the votes of all members of such committee shall be the act of such
committee.
(c) The Company shall pay the reasonable out-of-pocket expenses
incurred by each Representative in connection with attending the meetings of the
Board and any committee thereof (unless such expenses shall have been paid or
are required to be paid by any other Person). Except as otherwise provided in
the immediately preceding sentence or elsewhere in this Agreement, the
Representatives shall not be compensated for their services as members of the
Board.
5.5 DELEGATION OF AUTHORITY. The Board may, from time to time,
delegate to one of more Persons (including any Representative or officer of the
Company and including through the creation and establishment of one or more
committees) such authority and duties as the Board may deem advisable. In
addition, the Board may assign titles (including, without limitation, managing
director, chairman, chief executive officer, president, principal, vice
president, secretary, assistant secretary, treasurer, or assistant treasurer)
and delegate certain authority and duties to such persons. Any number of titles
may be held by the same Representative or other individual. The salaries or
other compensation, if any, of the officers and agents of the Company shall be
fixed from time to time by the Board. Any delegation pursuant to this Section
5.5 may be revoked at any time by the Board in its sole discretion.
5.6 PURCHASE OF UNITS. The Board may cause the Company to purchase
or otherwise acquire Units, or may purchase or otherwise acquire Units on behalf
of the Company. As long as such Units are owned by or on behalf of the Company,
such Units will not be considered outstanding for any purpose. Notwithstanding
the foregoing, as long as the Note or any Preferred Units are outstanding, the
Company shall not repurchase or otherwise acquire Units issued directly or
indirectly to the Bain Group without the consent of Raytheon (or if the Note or
the Preferred Units have been transferred, the then current transferee thereof).
Except as required under Section 12.7 hereof, nothing in this Agreement shall be
deemed to require Raytheon to sell Common Units.
19
5.7 LIMITATION OF LIABILITY. (a) Except as otherwise provided
herein or in an agreement entered into by such Person and the Company, no
Representative or any of such Representative's Affiliates shall be liable to the
Company or to any Member for any act or omission performed or omitted by such
Representative in its capacity as a member of the Board pursuant to authority
granted to such Person by this Agreement; provided that, except as otherwise
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provided herein, such limitation of liability shall not apply to the extent the
act or omission was attributable to such Person's gross negligence, willful
misconduct or knowing violation of law. The Board may exercise any of the
powers granted to it by this Agreement and perform any of the duties imposed
upon it hereunder either directly or by or through its agents, and no
Representative or any of such Representative's Affiliates shall be responsible
for any misconduct or negligence on the part of any such agent appointed by the
Board (so long as such agent was selected in good faith and with reasonable
care). The Board shall be entitled to rely upon the advice of legal counsel,
independent public accountants and other experts, including financial advisors,
and any act of or failure to act by the Board in good faith reliance on such
advice shall in no event subject the Board or any Representative thereof to
liability to the Company or any Member.
(b) Whenever this Agreement or any other agreement contemplated herein
provides that the Board shall act in a manner which is, or provide terms which
are, "fair and reasonable" to the Company or any Unitholder, the Board shall
determine such appropriate action or provide such terms considering, in each
case, the relative interests of each party to such agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable United States generally
accepted accounting practices or principles.
(c) Whenever in this Agreement or any other agreement contemplated
herein, the Board is permitted or required to take any action or to make a
decision in its "sole discretion" or "discretion," with "complete discretion" or
under a grant of similar authority or latitude, the Board shall be entitled to
consider such interests and factors as it desires, provided that, the Board
-------- ----
shall act in good faith.
(d) Whenever in this Agreement the Board is permitted or required to
take any action or to make a decision in its "good faith" or under another
express standard, the Board shall act under such express standard and, to the
extent permitted by applicable law, shall not be subject to any other or
different standards imposed by this Agreement or any other agreement
contemplated herein, and, notwithstanding anything contained herein to the
contrary, so long as the Board acts in good faith, the resolution, action or
terms so made, taken or provided by the Board shall not constitute a breach of
this Agreement or any other agreement contemplated herein or impose liability
upon the Board, any representative thereof or any of such Representative's
Affiliates.
(e) No power delegated to the Board hereunder shall, merely because
its exercise is authorized hereunder, be deemed to satisfy the duty of the Board
to act in good faith or its duty of loyalty to the Unitholders.
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ARTICLE VI
RIGHTS AND OBLIGATIONS OF UNITHOLDERS
6.1 LIMITATION OF LIABILITY. Except as provided in this Agreement or
in the Delaware Act, 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 Unitholder or Representative
shall be obligated personally for any such debts, obligation or liability solely
by reason of being a Unitholder or acting as a Representative of the Company.
Except as otherwise provided in this Agreement, a Unitholder's liability (in its
capacity as such) for Company liabilities and Losses shall be limited to such
Unitholder's interest in the Company's assets; provided that a Unitholder shall
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be required to return to the Company any Distribution made to it in clear and
manifest accounting or similar error. The immediately preceding sentence shall
constitute a compromise to which all Unitholders have consented within the
meaning of the Delaware Act. Notwithstanding anything contained herein to the
contrary, the failure of the Company to observe any formalities or requirements
relating to the exercise of its powers or management of its business and affairs
under this Agreement or the Delaware Act shall not be grounds for imposing
personal liability on the Unitholders for liabilities of the Company.
6.2 LACK OF AUTHORITY. No Unitholder in its capacity as such (other
than through its Representative or as a Representative) has the authority or
power to act for or on behalf of the Company, to do any act that would be
binding on the Company or to make any expenditures on behalf of the Company and
the Unitholders hereby consent to the exercise by the Board and the
Representatives of the powers conferred on them by law and this Agreement.
6.3 NO RIGHT OF PARTITION. No Unitholder shall have the right to
seek or obtain partition by court decree or operation of law of any Company
property, or the right to own or use particular or individual assets of the
Company.
6.4 INDEMNIFICATION.
(a) Subject to Section 4.6, the Company hereby agrees to indemnify and
hold harmless any Person (each an "Indemnified Person") to the fullest extent
------------------
permitted under the Delaware Act, as the same now exists or may hereafter be
amended, substituted or replaced (but, in the case of any such amendment,
substitution or replacement only to the extent that such amendment, substitution
or replacement permits the Company to provide broader indemnification rights
than the Company is providing immediately prior to such amendment), against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
excise taxes or penalties) reasonably incurred or suffered by such Person (or
one or more of such Person's Affiliates) by reason of the fact that such Person
is or was a Unitholder or is or was serving as a Representative, officer,
director, principal, member, employee or agent of the Company or is or was
serving at the request of the Company as a Representative, officer, director,
principal, member, employee or agent of another corporation, partnership, joint
venture, limited liability company, trust or other enterprise; provided that
-------- ----
(unless the Board otherwise consents) no Indemnified Person shall be indemnified
for any expenses, liabilities and losses suffered that are attributable to such
Indemnified Person or its Affiliates gross negligence, willful misconduct or
knowing violation of law or for any present or future breaches of any
representations, warranties or covenants by such Indemnified Person or its
21
Affiliates contained herein or in the other agreements with the Company.
Expenses, including attorneys' fees, incurred by any such Indemnified Person in
defending a proceeding shall be paid by the Company in advance of the final
disposition of such proceeding, including any appeal therefrom, upon receipt of
an undertaking by or on behalf of such Indemnified Person to repay such amount
if it shall ultimately be determined that such Indemnified Person is not
entitled to be indemnified by the Company.
(b) The right to indemnification and the advancement of expenses
conferred in this Section 6.4 shall not be exclusive of any other right which
any Person may have or hereafter acquire under any statute, agreement, by-law,
vote of Representatives or otherwise.
(c) The Company may maintain insurance, at its expense, to protect any
Indemnified Person against any expense, liability or loss described in Section
6.4(a) above whether or not the Company would have the power to indemnify such
Indemnified Person against such expense, liability or loss under the provisions
of this Section 6.4.
(d) Notwithstanding anything contained herein to the contrary
(including in this Section 6.4), any indemnity by the Company relating to the
matters covered in this Section 6.4 shall be provided out of and to the extent
of Company assets only and no Unitholder (unless such Unitholder otherwise
agrees in writing or is found in a final decision by a court of competent
jurisdiction to have personal liability on account thereof) shall have personal
liability on account thereof or shall be required to make additional Capital
Contributions to help satisfy such indemnity of the Company.
(e) If this Section 6.4 or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify and hold harmless each Indemnified Person pursuant to
this Section 6.4 to the fullest extent permitted by any applicable portion of
this Section 6.4 that shall not have been invalidated and to the fullest extent
permitted by applicable law.
6.5 MEMBERS RIGHT TO ACT. For situations which the approval of the
Members (rather than the approval of the Board on behalf of the Members) is
required, the Members shall act through meetings and written consents as
described in paragraphs (a) and (b) below:
(a) Except as otherwise provided by this Agreement, acts by the
Members holding a majority of the Class A Units shall be the act of the Members.
Any Member entitled to vote at a meeting of Members or to express consent or
dissent to Company action in writing without a meeting may authorize another
person or persons to act for them by proxy. A telegram, telex, cablegram or
similar transmission by the Member, or a photographic, photostatic, facsimile or
similar reproduction of a writing executed by the Member shall (if stated
thereon) be treated as a proxy executed in writing for purposes of this Section
6.5(a). No proxy shall be voted or acted upon after eleven months from the date
thereof, unless the proxy provides for a longer period. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the
22
proxy is coupled with an interest. Should a proxy designate two or more Persons
to act as proxies, unless that instrument shall provide to the contrary, a
majority of such Persons present at any meeting at which their powers thereunder
are to be exercised shall have and may exercise all the powers of voting or
giving consents thereby conferred, or if only one be present, then such powers
may be exercised by that one; or, if an even number attend and a majority do not
agree on any particular issue, the Company shall not be required to recognize
such proxy with respect to such issue if such proxy does not specify how the
votes that are the subject of such proxy are to be voted with respect to such
issue.
(b) The actions by the Members permitted hereunder may be taken at a
meeting called by Members holding at least 20% of the Class A Units on at least
five days' prior written notice to the other Members entitled to vote, which
notice shall state the purpose or purposes for which such meeting is being
called. The actions taken by the Members entitled to vote or consent at any
meeting (as opposed to by written consent), however called and noticed, shall be
as valid as though taken at a meeting duly held after regular call and notice if
(but not until), either before, at or after the meeting, the Members entitled to
vote or consent as to whom it was improperly held signs a written waiver of
notice or a consent to the holding of such meeting or an approval of the minutes
thereof. The actions by the Members entitled to vote or consent may be taken by
vote of the Members entitled to vote or consent at a meeting or by written
consent (without a meeting, without notice and without a vote) so long as such
consent is signed by the Members having not less than the minimum number of
Units that would be necessary to authorize or take such action at a meeting at
which all Members entitled to vote thereon were present and voted. Prompt
notice of the action so taken without a meeting shall be given to those Members
entitled to vote or consent who have not consented in writing. Any action taken
pursuant to such written consent of the Members shall have the same force and
effect as if taken by the Members at a meeting thereof.
(c) Except as specifically provided herein to the contrary, the owners
of Class B Units, Class C Units, Class L Units and Preferred Units (in their
capacity as owners of such Units) shall not have any right to vote on any matter
or consent to any matter on which Members are otherwise entitled to vote or
consent.
6.6 CONFLICTS OF INTEREST.
(a) A Unitholder, its Affiliates and each of their respective
stockholders, Representatives, directors, officers, controlling persons,
partners and employees (collectively, the "Unitholder Group") may have business
----------------
interests and engage in business activities in addition to those relating to the
Company and its Subsidiaries, except as any such Person may have otherwise
agreed hereafter with the Company in writing (e.g. the Executive Agreements).
Neither the Company nor any of the other Unitholders shall have any rights by
virtue of this Agreement in any business ventures of any such Person except for
any business interests or activities which any such Person has agreed in writing
with the Company to not pursue or consummate (whether directly or indirectly),
in which case all of such Person's direct and indirect interest in such business
interests or activities shall become an asset of the Company and the Company
shall be entitled to all rights in such business interests or activities and to
all income or profits derived therefrom.
23
(b) No member of the Unitholder Group shall be obligated to present
any particular investment or business opportunity to the Company even if the
opportunity is of a character which, if presented to the Company, could be
undertaken by the Company or any of its Subsidiaries, except as otherwise agreed
hereafter by any such Person with the Company in writing (e.g. the Executive
Agreements). Each member of the Unitholder Group shall have the right to
undertake any such opportunity for itself for its own account or on behalf of
another or to recommend any such opportunity to other Persons, except as
otherwise agreed by any such Person with the Company in writing, in which case
all of such Person's direct and indirect interest in such business interests or
activities shall become an asset of the Company and the Company shall be
entitled to all rights in such business interests or activities and to all
income or profits derived therefrom.
(c) Neither the Merger Agreement nor any other contractual obligation
of Raytheon or any of its Affiliates prior to the closing of the transactions
contemplated by the Merger Agreement shall be deemed an agreement with the
Company to which this Section 6.6 applies.
ARTICLE VII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
7.1 RECORDS AND ACCOUNTING. The Company shall keep, or cause to be
kept, appropriate books and records with respect to the Company's business,
including all books and records necessary to provide any information, lists and
copies of documents required to be provided pursuant to Section 7.3 or pursuant
to applicable laws. All matters concerning (i) the determination of the
relative amount of allocations and distributions among the Unitholders pursuant
to Articles III and IV and (ii) accounting procedures and determinations, and
other determinations not specifically and expressly provided for by the terms of
this Agreement, shall be determined by the Board, whose determination shall be
final and conclusive as to all of the Unitholders absent manifest clerical
error.
7.2 FISCAL YEAR. The Fiscal Year of the Company shall end on
December 31 of each year or such other annual accounting period as may be
established by the Board.
7.3 REPORTS.
(a) The Company shall deliver or cause to be delivered to each
Unitholder, within 120 days after the end of each Fiscal Year, an annual report
containing the following:
(i) consolidated statements of income and cash flows of the Company
and its Subsidiaries for such Fiscal Year, and a consolidated
balance sheet of the Company and its Subsidiaries as of the end
of such Fiscal Year, all prepared in accordance with generally
accepted accounting principals, consistently applied, and audited
by an independent accounting firm of recognized
24
national standing and a copy of such firm's annual management
letter regarding internal controls and other matters to the
Board;
(ii) a statement of changes in the Unitholder's equity and the
Unitholder's Capital Account balance for such Fiscal Year; and
(iii) a general description of the Company's activities during such
Fiscal Year.
(b) The Company shall, to the extent required by the Delaware Act,
deliver or cause to be delivered to each Unitholder with reasonable promptness,
such other information and financial data concerning the Company and its
Subsidiaries as any Unitholder shall from time to time reasonably request;
provided that furnishing such information shall not be financially burdensome on
- -------- ----
the Company, the Board or their Subsidiaries or unreasonably time consuming for
the employees of the Company, the Board or their Subsidiaries.
(c) The Company shall use reasonable efforts to deliver or cause to be
delivered, within 75 days after the end of each Fiscal Year, to each Person who
was a Unitholder at any time during such Fiscal Year all information necessary
for the preparation of such Person's United States federal and state income tax
returns.
7.4 TRANSMISSION OF COMMUNICATIONS. Each Person that owns or
controls Units on behalf of, or for the benefit of, another Person or Persons
shall be responsible for conveying any report, notice or other communication
received from the Board to such other Person or Persons.
ARTICLE VII
TAX MATTERS
8.1 PREPARATION OF TAX RETURNS. The Company shall arrange for the
preparation and timely filing of all returns required to be filed by the
Company.
8.2 TAX ELECTIONS. The Taxable Year shall be the Fiscal Year set
forth in Section 7.2, unless the Board shall determine otherwise in its sole
discretion and in compliance with applicable laws. The Board shall, in its sole
discretion, determine whether to make or revoke any available election pursuant
to the Code. Each Unitholder will upon request supply any information necessary
to give proper effect to such election. Except as otherwise permitted herein,
the Company shall not make or revoke any tax election adverse to Raytheon
relative to the Bain Group.
8.3 TAX CONTROVERSIES. Bain/RCL, L.L.C. is hereby designated the Tax
Matters Partner and is authorized and required to represent the Company (at the
Company's expense) in connection with all examinations of the Company's affairs
by tax authorities, including resulting administrative and judicial proceedings,
and to expend Company funds for professional services and reasonably incurred in
connection therewith. Each Unitholder agrees to cooperate with the Company and
to do or refrain from doing any or all things reasonably requested by the
Company
25
with respect to the conduct of such proceedings. The Tax Matters Partner shall
keep all Unitholders fully informed of the progress of any examinations, audits
or other proceedings, and all Unitholders shall have the right to participate in
any such examinations, audits or other proceedings. Notwithstanding the
foregoing, the Tax Matters Partner shall not settle or otherwise compromise any
issue in any such examination, audit or other proceeding without first obtaining
approval of the Board and, to the extent any settlement or compromise affects
Raytheon adversely to the Bain Group, the consent of Raytheon.
ARTICLE IX
TRANSFER OF COMPANY INTERESTS
9.1 TRANSFER IN GENERAL. THE TRANSFER OF ANY INTEREST IN THE COMPANY
IS SUBJECT TO THE RESTRICTIONS ON TRANSFER CONTAINED IN THE SECURITYHOLDERS
AGREEMENT, AS AMENDED OR MODIFIED FROM TIME TO TIME, AND, WITH RESPECT TO
UNITHOLDERS A PARTY THERETO, THE EXECUTIVE AGREEMENTS, WHICH RESTRICTIONS ARE
INCORPORATED HEREIN BY REFERENCE. IN ADDITION, NO UNITHOLDER MAY TRANSFER ALL OR
ANY PORTION OF SUCH UNITHOLDER'S INTEREST IN THE COMPANY WITHOUT THE PRIOR
WRITTEN CONSENT OF THE BOARD IF SUCH TRANSFER WOULD (A) CAUSE THE COMPANY TO
HAVE MORE THAN 100 PARTNERS WITHIN THE MEANING OF TREASURY REGULATION SECTION
1.7704-1(H) OR (B) CAUSE THE COMPANY TO HAVE TO REGISTER AS AN INVESTMENT
COMPANY FOR PURPOSES OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
9.2 ASSIGNEE'S RIGHTS.
(a) A permitted transfer of a Company Interest shall be effective as
of the date of assignment and compliance with the conditions to such transfer
and such transfer shall be shown on the books and records of the Company.
Profits, Losses and other Company items shall be allocated between the
transferor and the Assignee according to Code Section 706. Distributions made
before the effective date of such transfer shall be paid to the transferor, and
Distributions made after such date shall be paid to the Assignee.
(b) Unless and until an Assignee becomes a Member pursuant to Article
X, the Assignee shall not be entitled to any of the rights granted to a Member
hereunder or under applicable law, other than the rights granted specifically to
Assignees pursuant to this Agreement and to have the other rights granted to
Assignees pursuant to the Delaware Act; provided that, without relieving the
--------
transferring Unitholder from any such limitations or obligations as more fully
described in Section 9.3, such Assignee shall be bound by any limitations and
obligations of a Unitholder contained herein that a Member would be bound on
account of the Assignee's Company Interest (including the obligation to make
Capital Contributions on account of such Company Interest).
26
9.3 ASSIGNOR'S RIGHTS AND OBLIGATIONS. Any Member who shall
transfer any Units or other interest in the Company shall cease to be a
Unitholder with respect to such Units or other interest and shall no longer have
any rights or privileges of a Unitholder with respect to such Units or other
interest (it being understood, however, that the applicable provisions of
Sections 5.7 and 6.4 shall continue to inure to such Person's benefit), except
that unless and until the Assignee is admitted as a substituted Member in
accordance with the provisions of Article X (the "Admission Date"), (i) such
--------------
assigning Unitholder shall retain all of the duties, liabilities and obligations
of a Unitholder with respect to such Units or other interest, including, without
limitation, the obligation (together with its Assignee pursuant to Section
9.2(b)) to make and return Capital Contributions on account of such Units or
other interest pursuant to the terms of this Agreement and (ii) the Board may,
in its sole discretion, reinstate all or any portion of the rights and
privileges of such Unitholder with respect to such Units or other interest for
any period of time prior to the Admission Date. Nothing contained herein shall
relieve any Unitholder who Transfers any Units or other interest in the Company
from any liability of such Unitholder to the Company with respect to such Units
or other interest that may exist on the Admission Date or that is otherwise
specified in the Delaware Act and incorporated into this Agreement or for any
liability to the Company or any other Person for any materially false statement
made by such Unitholder (in its capacity as such) in the Securityholders
Agreement or an Executive Agreement or for any present or future breaches of any
representations, warranties or covenants by such Unitholder (in its capacity as
such) contained herein or in the other agreements with the Company.
ARTICLE X
ADMISSION OF MEMBERS
10.1 SUBSTITUTED MEMBERS. In connection with the permitted transfer
of a Company Interest of a Unitholder, the transferee shall become a Substituted
Member on the effective date of such transfer, which effective date shall not be
earlier than the date of compliance with the conditions to such transfer
(without any Board or Member consent unless one of the conditions to such
transfer (as set forth in Section 1 of the Securityholders Agreement) is that
Board or Member consent is required for the admission of such transferee, in
which case such consent must first be obtained), and such admission shall be
shown on the books and records of the Company.
10.2 ADDITIONAL MEMBERS. A Person may be admitted to the Company as
an Additional Member only upon furnishing to the Board (a) a letter of
acceptance, in form satisfactory to the Board, of all the terms and conditions
of this Agreement, including the power of attorney granted in Section 14.1, and
(b) such other documents or instruments as may be necessary or appropriate to
effect such Person's admission as a Member (including the Securityholders
Agreement and such other documents referenced therein). Such admission shall
become effective on the date on which the Board determines in its sole
discretion that such conditions have been satisfied, each of the conditions
contained in the Securityholders Agreement to the issuance of Units to such
Member have been satisfied, and when any such admission is shown on the books
and records of the Company.
27
ARTICLE XI
WITHDRAWAL AND RESIGNATION OF UNITHOLDERS
11.1 WITHDRAWAL AND RESIGNATION OF UNITHOLDERS. No Unitholder shall
have the power or right to withdraw or otherwise resign from the Company prior
to the dissolution and winding up of the Company pursuant to Article XII without
the prior written consent of the Board, except as otherwise expressly permitted
by this Agreement. Any Unitholder, however, that withdraws or otherwise resigns
from the Company without the prior written consent of the Board upon or
following the dissolution and winding up of the Company pursuant to Article XII
but prior to such Unitholder receiving the full amount of Distributions from the
Company to which such Unitholder is entitled pursuant to Article XII shall be
liable to the Company for all damages directly or indirectly caused by the
withdrawal or resignation of such Unitholder, and such Unitholder shall be
entitled to receive the fair value of his equity interest in the Company as of
the date of its resignation (or, if less, the amount that such Unitholder would
have received on account of such equity interest had such Unitholder not
resigned or otherwise withdrawn from the Company), as conclusively determined by
the Board, on the sixth month anniversary date (or such earlier date determined
by the Board) following the completion of the distribution of Company assets as
provided in Article XII to all other Unitholders. Upon a transfer of all of a
Unitholder's Units in a transfer permitted by the Securityholders Agreement and
this Agreement, subject to the provisions of Section 9.3, such Unitholder shall
cease to be a Unitholder.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
12.1 DISSOLUTION. The Company shall not be dissolved by the admission
of Additional Members or Substituted Members. The Company shall dissolve, and
its affairs shall be wound up, upon:
(a) the vote of the Board holding at least a majority of the votes of
all members of the Board; or
(b) the entry of a decree of judicial dissolution of the Company under
Section 35-5 of the Delaware Act or an administrative dissolution under Section
18-802 of the Delaware Act.
Except as otherwise set forth in this Article XII, the Company is
intended to have perpetual existence. An Event of Withdrawal shall not cause a
dissolution of the Company and the Company shall continue in existence subject
to the terms and conditions of this Agreement.
12.2 LIQUIDATION AND TERMINATION. On dissolution of the Company, the
Board shall act as liquidator or may appoint one or more Representatives or
Members as liquidator. The liquidators shall proceed diligently to wind up the
affairs of the Company and make final
28
distributions as provided herein and in the Delaware Act. The costs of
liquidation shall be borne as a Company expense. Until final distribution, the
liquidators shall continue to operate the Company properties with all of the
power and authority of the Board. The steps to be accomplished by the
liquidators are as follows:
(a) as promptly as possible after dissolution and again after final
liquidation, the liquidators shall cause a proper accounting to be made by a
recognized firm of certified public accountants of the Company's assets,
liabilities and operations through the last day of the calendar month in which
the dissolution occurs or the final liquidation is completed, as applicable;
(b) the liquidators shall cause the notice described in the Delaware
Act to be mailed to each known creditor of and claimant against the Company in
the manner described thereunder;
(c) the liquidators shall pay, satisfy or discharge from Company funds
(to the extent available therefor) all of the debts, liabilities and obligations
of the Company (including, without limitation, all expenses incurred in
liquidation) or otherwise make adequate provision (to the extent the remaining
property or assets of the Company can so provide) for payment and discharge
thereof (including, without limitation, the establishment of a cash fund for
contingent liabilities in such amount and for such term as the liquidators may
reasonably determine); and
(d) all remaining assets of the Company shall be distributed to the
holders of Units in accordance with Section 4.1 (a) by the end of the taxable
year of the Company during which the liquidation of the Company occurs (or, if
later, 90 days after the date of the liquidation).
The distribution of cash and/or property to a Unitholder in accordance with the
provisions of this Section 12.2 and Section 12.3 below constitutes a complete
return to the Unitholder of its Capital Contributions and a complete
distribution to the Unitholder of its interest in the Company and all the
Company's property and constitutes a compromise to which all Unitholders have
consented within the meaning of the Delaware Act. To the extent that a
Unitholder returns funds to the Company, it has no claim against any other
Unitholder for those funds.
12.3 DEFERMENT; DISTRIBUTION IN KIND. Notwithstanding the provisions
of Section 12.2, but subject to the order of priorities set forth therein, if
upon dissolution of the Company the liquidators determine that an immediate sale
of part or all of the Company's assets would be impractical or would cause undue
loss (or would otherwise not be beneficial) to the Unitholders, the liquidators
may, in their sole discretion, defer for a reasonable time the liquidation of
any assets except those necessary to satisfy Company liabilities (other than
loans to the Company by Unitholders) and reserves. Subject to the order of
priorities set forth in Section 12.2, the liquidators may, in their sole
discretion, distribute to the Unitholders, in lieu of cash, either (i) all or
any portion of such remaining Company assets in-kind in accordance with the
provisions of Section 12.2(d), (ii) as tenants in common and in accordance with
the provisions of Section 12.2(d), undivided interests in all or any portion of
such Company assets or (iii) a combination of the foregoing. Any such
Distributions in kind shall be subject to (x) such conditions relating to the
disposition and management of such assets as the liquidators deem reasonable and
equitable and (y)
29
the terms and conditions of any agreements governing the such assets (or the
operation thereof or the holders thereof) at such time. Any Company assets
distributed in kind will first be written up or down to their Fair Market Value,
thus creating Profit or Loss (if any), which shall be allocated in accordance
with Sections 4.2 and 4.3. The liquidators shall determine the Fair Market Value
of any property distributed in accordance with the valuation procedures set
forth in Article XIII.
12.4 CANCELLATION OF CERTIFICATE. On completion of the distribution
of Company assets as provided herein, the Company is terminated (and the Company
shall not be terminated prior to such time), and the Board (or such other Person
or Persons as the Delaware Act may require or permit) shall file a certificate
of cancellation with the Secretary of State of Delaware, cancel any other
filings made pursuant to this Agreement that are or should be canceled and take
such other actions as may be necessary to terminate the Company. The Company
shall be deemed to continue in existence for all purposes of this Agreement
until it is terminated pursuant to this Section 12.4.
12.5 REASONABLE TIME FOR WINDING UP. A reasonable time shall be
allowed for the orderly winding up of the business and affairs of the Company
and the liquidation of its assets pursuant to Sections 12.2 and 12.3 in order to
minimize any losses otherwise attendant upon such winding up.
12.6 RETURN OF CAPITAL. The liquidators shall not be personally
liable for the return of Capital Contributions or any portion thereof to the
Unitholders (it being understood that any such return shall be made solely from
Company assets).
12.7 LIQUIDITY EVENT OR IPO.
(a) In the event that the Majority Holder (as defined in the
Securityholders Agreement), or in the case of any such event which requires the
approval of the Board, the Board approves a Liquidity Event or IPO, the Company
and each of its Unitholders will work with Bain to structure such Liquidity
Event or IPO to maximize Bain's after-tax return to Bain's direct or indirect
members in connection therewith, but only to the extent that such structure is
not materially detrimental to the Company or any other Unitholder.
(b) Subject to the Securityholders Agreement, it is understood and
agreed that the following structures of a Liquidity Event or IPO are not
materially detrimental to the Company or any Member and shall be utilized by the
Company and approved by the Board and each Unitholder if so requested by Bain:
(i) Private Transaction. A Liquidity Event in which the person
-------------------
or persons purchasing the Company (the "Buyer") acquires separately
-----
each of the following:
(A) all Units other than Units held by Bain;
(B) all debt instruments issued by Bain;
30
(C) all options to acquire equity interests in Bain (which
options the Buyer will then exercise); and
(D) all other equity interests in Bain (i.e., all interests not
acquired in clause (C) above).
(ii) Public Offering. An IPO under the following terms and in the
---------------
following order:
(A) The Company will be incorporated; and
(B) Bain will distribute its interests (i.e., shares) in the
Company to its securityholders. Any options to acquire such
interests (i.e., shares) will be exercised.
ARTICLE XII
VALUATION
13.1 DETERMINATION. The Fair Market Value of the assets of the
Company or of a Company Interest in the Company will be determined by the Board
(or, if pursuant to Section 12.3, the liquidators) in its good faith judgement
in such manner as its deems reasonable and using all factors, information and
data deemed to be pertinent.
13.2 DETERMINATION OF FAIR MARKET VALUE. "Fair Market Value" of
-----------------
(i) a specific Company asset will mean the amount which the Company would
receive in an all-cash sale of such asset in an arms-length transaction with an
unaffiliated third party consummated on the day immediately preceding the date
on which the event occurred which necessitated the determination of the Fair
Market Value (and after giving effect to any transfer taxes payable in
connection with such sale); and (ii) of the Company will mean the amount which
the Company would receive in an all-cash sale of all of its assets and
businesses as a going concern in an arms-length transaction with an unaffiliated
third party consummated on the day immediately preceding the date on which the
event occurred which necessitated the determination of the Fair Market Value
(assuming that such sale were accomplished pursuant to a Liquidity Event of the
type referred to in Section 12.7(b)(i) above and all of the proceeds from such
sale were paid directly to the Company other than an amount of such proceeds
necessary to pay transfer taxes payable in connection with such sale, which
amount will not be received or deemed received by the Company). After a
determination of the Fair Market Value of the Company is made as provided above,
the Fair Market Value of a Company Interest will be determined by making a
calculation reflecting the cash distributions which would be made to the
Unitholders in accordance with this Agreement if the Company were deemed to have
received such Fair Market Value in cash and then distributed the same to the
Unitholders in accordance with the terms of this Agreement incident to the
liquidation of the Company after payment to all of the Company's creditors from
such cash receipts and assuming that all of the convertible debt and other
convertible securities were repaid or converted (whichever yields more cash to
the holders of such convertible securities). Except as otherwise provided herein
or in any
31
agreement, document or instrument contemplated hereby, any amount to be paid
under this Agreement by reference to the Fair Market Value shall be paid in full
in cash, and any Company Interest being transferred in exchange therefor will be
transferred free and clear of all Liens.
ARTICLE XIV
GENERAL PROVISIONS
14.1 POWER OF ATTORNEY.
(a) Each Unitholder hereby constitutes and appoints each member of
the Board and the liquidators, with full power of substitution, as his true and
lawful agent and attorney-in-fact, with full power and authority in his or its
name, place and stead, to: (i) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (A) this Agreement, all certificates
and other instruments and all amendments thereof which the Board deems
appropriate or necessary to form, qualify, or continue the qualification of, the
Company as a limited liability company in the State of Delaware and in all other
jurisdictions in which the Company may conduct business or own property; (B) all
instruments which the Board deems appropriate or necessary to reflect any
amendment, change, modification or restatement of this Agreement in accordance
with its terms; (C) all conveyances and other instruments or documents which the
Board deems appropriate or necessary to reflect the dissolution and liquidation
of the Company pursuant to the terms of this Agreement, including a certificate
of cancellation; and (D) all instruments relating to the admission, withdrawal
or substitution of any Unitholder pursuant to Article X or XI; and (ii) sign,
execute, swear to and acknowledge all ballots, consents, approvals, waivers,
certificates and other instruments appropriate or necessary, in the reasonable
judgment of the Board, to evidence, confirm or ratify any vote, consent,
approval, agreement or other action which is made or given by the Members
hereunder or is consistent with the terms of this Agreement and/or appropriate
or necessary (and not inconsistent with the terms of this Agreement), in the
reasonable judgment of the Board, to effectuate the terms of this Agreement;
provided, that the powers of attorney granted herein shall not be deemed to
- --------
constitute a written consent of any Unitholder required pursuant to Section
14.2(b).
(b) The foregoing power of attorney is irrevocable and coupled with an
interest, and shall survive the death, disability, incapacity, dissolution,
bankruptcy, insolvency or termination of any Unitholder and the transfer of all
or any portion of his or its Company Interest and shall extend to such
Unitholder's heirs, successors, assigns and personal representatives.
14.2 AMENDMENTS.
(a) The Board members holding a majority of the votes of all members
of the Board (pursuant to its powers of attorney from the Unitholders as
provided in Section 14.1), without the consent of any Unitholder, may amend any
provision of this Agreement, and execute, swear to, acknowledge, deliver, file
and record whatever documents may be required in connection therewith, to
reflect:
32
(i) a change in the name of the Company or the location of the
principal place of business of the Company;
(ii) admission, substitution, removal or withdrawal of Members or
Assignees in accordance with this Agreement;
(iii) a change that in the Board's reasonable judgment does not
adversely affect any Unitholder in any material respect in its
capacity as an owner of Units, and is either (A) necessary or
desirable to satisfy any requirements, conditions or guidelines
contained in any opinion, directive, order, ruling or
regulation of any United States federal or state agency or
judicial authority or contained in any United States federal or
state statute, or (B) required by this Agreement; or
(iv) a change that does not adversely affect any Unitholder in any
material respect in its capacity as an owner of Units, and (A)
cures any ambiguity, or (B) corrects or supplements any
provisions in this Agreement.
(b) In all other cases this Agreement may be amended or modified upon
the consent of the Board and, except for amendments and modifications in
connection with actions by the Board permitted by the second sentence of Section
5.1, the Bain Members; provided that no amendment or modification pursuant to
-------- ----
this Section 14.2(b) that would adversely affect holders of one class of Units
in a manner different than holders of any other class of Units (other than
amendments and modifications in connection with the actions of the Board
permitted by Section 5.1), shall be effective against the holders of such class
of Units without the prior written consent of holders of at least a majority of
Units of such class adversely affected thereby; provided further that so long as
-------- ------- ----
BRS or Raytheon holds any Units, no amendment or modification that will
adversely alter BRS' or Raytheon's respective rights granted pursuant to this
Agreement shall be effective against BRS or Raytheon, respectively, without its
consent (it being understood that the issuance or creation of new (in accordance
with Section 6 of the Securityholders Agreement) or additional Units, or other
equity securities of the Company or the addition of new parties to this
Agreement shall not be deemed to alter such rights).
14.3 TITLE TO COMPANY ASSETS. Company assets shall be deemed to be
owned by the Company as an entity, and no Unitholder, individually or
collectively, shall have any ownership interest in such Company assets or any
portion thereof. Legal title to any or all Company assets may be held in the
name of the Company, the Board or one or more nominees, as the Board may
determine. The Board hereby declares and warrants that any Company assets for
which legal title is held in its name or the name of any nominee shall be held
in trust by the Board or such nominee for the use and benefit of the Company in
accordance with the provisions of this Agreement. All Company assets shall be
recorded as the property of the Company on its books and records, irrespective
of the name in which legal title to such Company assets is held.
14.4 ADDRESSES AND NOTICES. Any notice, demand, request or report
required or permitted to be given or made to any Person under this Agreement
shall be in writing and shall be
33
deemed given or made when delivered in person or when sent by first class mail
or by other commercially reasonable means of written communication to the Person
at his address as shown on the Company's books and records. An affidavit or
certificate of mailing executed by the Board shall be conclusive (but not
exclusive) evidence of the date and fact of mailing of any such notice, demand,
request or report. Any notice to the Board or the Company shall be deemed given
if received by the Board at the principal office of the Company designated
pursuant to Section 2.5.
14.5 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors, administrators,
successors, legal representa tives and permitted assigns.
14.6 CREDITORS. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of the Company or any of its
Affiliates, and no creditor who makes a loan to the Company or any of its
Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the Company in favor of such creditor) at any time as a
result of making the loan any direct or indirect interest in Company Profits,
Losses, Distributions, capital or property other than as a creditor.
14.7 WAIVER. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, agreement or
condition.
14.8 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which together shall
constitute one and the same agree ment binding on all the parties hereto.
14.9 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF
THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
ANY DISPUTE RELATING HERETO SHALL BE HEARD IN THE STATE OR FEDERAL COURTS OF
DELAWARE, AND THE PARTIES AGREE TO JURISDICTION AND VENUE THEREIN.
14.10 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein
14.11 FURTHER ACTION. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking such actions
as may be necessary or appropriate to achieve the purposes of this Agreement.
34
14.12 EXPENSES. The Company shall pay, and hold the Investors and
their respective Affiliates harmless against liability for the payment of (i)
their out-of-pocket fees and expenses incurred in connection with this Agreement
and the transactions related hereto and contemplated hereby (including legal
expenses relating to this Agreement and the documents related hereto); (ii) the
reasonable fees and expenses incurred in connection with an investment or
acquisition by the Company or any of its Subsidiaries; (iii) the fees and
expenses incurred with respect to any amendments or waivers (whether or not the
same become effective) under or in respect of any of this Agreement or the
agreements referred to herein or contemplated hereby or thereby (including,
without limitation, in connection with any proposed merger, sale or
recapitalization of the Company or any of its Subsidiaries); (iv) stamp and
other taxes which may be payable in respect of the execution and delivery of
this Agreement or the issuance, delivery or acquisition of any Units; (v) the
fees and expenses incurred with respect to the enforcement of the rights granted
under any of this Agreement, the Units, and the other agreements referred to
herein or contemplated hereby or thereby; and (vi) the reasonable fees and
expenses incurred by each such Person in any filing with any Governmental Entity
with respect to its investment in the Company which mentions such Person. So
long as Raytheon or BRS holds any Units, the Company shall pay and hold
Raytheon, BRS and their respective Affiliates harmless against liability for the
payment of the fees and expenses incurred with respect to the successful
enforcement of the rights granted under any of this Agreement, the Units, the
Securityholders Agreement and the Registration Rights Agreement.
14.13 OFFSET. Whenever the Company is to pay any sum to any
Unitholder or any Affiliate or related person thereof, any amounts that such
Unitholder or such Affiliate or related person owes to the Company may be
deducted from that sum before payment.
14.14 ENTIRE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
14.15 REMEDIES. Each Unitholder shall have all rights and
remedies set forth in this Agreement and all rights and remedies which such
Person has been granted at any time under any other agreement or contract and
all of the rights which such Person has under any law. Any Person having any
rights under any provision of this Agreement or any other agreements
contemplated hereby shall be entitled to enforce such rights specifically
(without posting a bond or other security), to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law.
14.16 OPT-IN TO ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE. The
Unitholders hereby agree that the Units shall be securities governed by Article
8 of the Uniform Commercial Code of the State of Delaware (and the Uniform
Commercial Code of any other applicable jurisdiction).
35
14.17 DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation. Reference
to any agreement, document or instrument means such agreement, document or
instrument as amended or otherwise modified from time to time in accordance with
the terms thereof, and if applicable hereof. Without limiting the generality of
the immediately preceding sentence, no amendment or other modification to any
agreement, document or instrument that requires the consent of any Person
pursuant to the terms of this Agreement or any other agreement will be given
effect hereunder unless such Person has consented in writing to such amendment
or modification. Wherever required by the context, references to a Fiscal Year
shall refer to a portion thereof. The use of the words "or," "either" and "any"
shall not be exclusive. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement. Wherever a conflict exists between
this Agreement and any other agreement, this Agreement shall control but solely
to the extent of such conflict.
* * * * *
36
IN WITNESS WHEREOF, the undersigned have executed or caused to be
executed on their behalf this Amended and Restated Limited Liability Company
Agreement of Alliance Laundry Holdings LLC as of the date first written above.
BAIN/RCL, L.L.C.
By:_______________________________________
Its:_______________________________________
RAYTHEON COMPANY
By:_______________________________________
Its:_______________________________________
THOMAS F. L'ESPERANCE
____________________________________
HERMAN W. BEACH
____________________________________
JEFFREY J. BROTHERS
____________________________________
R. SCOTT GASTER
____________________________________
BRUCE P. ROUNDS
____________________________________
ROBERT T. WALLACE
____________________________________
SCOTT L. SPILLER
____________________________________
DAVID A. DOCKERY
____________________________________
DARWIN K. GILMORE
____________________________________
CHARLES O. REIFF
____________________________________
LEE E. WILSON
____________________________________
RICHARD J. CASEY
____________________________________
JAY B. MCDONALD
____________________________________
KIM M. SHADY
____________________________________
D. MARK FREESMAN
____________________________________
AL RIOS
____________________________________
PAT ANDERSEN-SHEW
____________________________________
STIFEL, NICOLAUS CUSTODIAN FOR
PAULA K. L'ESPERANCE IRA
____________________________________
STIFEL, NICOLAUS CUSTODIAN FOR
THOMAS F. L'ESPERANCE IRA
____________________________________
STIFEL, NICOLAUS CUSTODIAN FOR
SCOTT L. SPILLER IRA
____________________________________
STIFEL, NICOLAUS CUSTODIAN FOR
BRUCE P. ROUNDS IRA
____________________________________
ROBERT W. BAIRD & CO INC. TTEE FBO
R SCOTT GASTER IRA
____________________________________
EDWARD JONES CUST FBO ROBERT T.
WALLACE, IRA
____________________________________
DELAWARE CHARTER GUARANTEE AND
TRUST COMPANY, TTEE FOR JEFFREY J.
BROTHERS, IRA
____________________________________
BCB FAMILY PARTNERS, L.P.
By: * *
---------------------------- -------------------------------
Name: STEPHEN C. SHERRILL
Title:
NAZ FAMILY PARTNERS, L.P.
By: * *
---------------------------- -------------------------------
Name: H. VIRGIL SHERRILL
Title:
* *
- ------------------------------- -------------------------------
PAUL D. KAMINSKI NANCY A. ZWENG
* *
- ------------------------------- -------------------------------
BRUCE C. BRUCKMANN JOHN RICE EDMONDS
* *
- ------------------------------- -------------------------------
DONALD J. BRUCKMANN SUSAN KAIDER
* *
- ------------------------------- -------------------------------
HAROLD O. ROSSER MARILENA TIBREA
*
- -------------------------------
WALKER C. SIMMONS
MLPF&S CUSTODIAN FBO PAUL KAMINSKI
By: *
---------------------------
BRS/RCL INVESTMENT CORP.
By:________________________________
Its:________________________________
* By: _________________________________
Name: Stephen Sherrill
Title: Attorney-in-fact
SCHEDULE I
Capital
Contributions
pursuant to Class L Class A Class B Class C
Name and Address Section 3.1(a) Preferred Units Units Units Units Units
- ---------------- ---------------- --------------- ------- ------- ------- -------
Bain/RCL, L.L.C.
Two Copley Place
Boston, MA 02116
Raytheon Company
141 Spring Street
Lexington, MA 02173
BRS/RCL Investment Corp.
c/o Bruckmann Rosser Sherrill &
Co., Inc.
126 East 56th Street
New York, NY 10022
Bruce C. Bruckmann
125 East 84th Street, Apt. 5A
New York, NY 10028
Harold O. Rosser
499 Silvermine Road
New Canaan, CT 06840
Stephen C. Sherrill
765 Park Avenue
New York, NY 10028
BCB Family Partners, L.P.
125 East 84th Street, Apt. 5A
New York, NY 10028
NAZ Family Partners, L.P.
125 East 84th Street, Apt. 5A
New York, NY 10028
Nancy A. Zweng
125 East 84th Street, Apt. 5A
New York, NY 10028
Donald J. Bruckmann
68 East 79th Street
New York, NY 10021
H. Virgil Sherrill
c/o Prudential Securities
One Seaport Plaza, 34th Flr.
New York, NY 10292
Capital
Contributions
pursuant to Class L Class A Class B Class C
Name and Address Section 3.1(a) Preferred Units Units Units Units Units
- ---------------- ---------------- --------------- ------- ------- ------- -------
MLPF&S Custodian FBO Paul
Kaminski
59 Fourth Avenue, #5A
New York, NY 10003
John Rice Edmonds
170 West 74th Street, #515
New York, NY 10023
Walker C. Simmons
424 West End Avenue, #18C
New York, NY 10024
Marilena Tibrea
4812 14th Avenue, Apt. 6C
Brooklyn, NY 11219
Susan Kaider
16 West 76th Street, #1RE
New York, NY 10023
Thomas F. L'Esperance
1945 Cliffview Court
Oshkosh, WI 54901
Herman W. Beach
4663 Meadowview Road
Mariann, FL 32446
Jeffrey J. Brothers
1614 River Mill Road
Oshkosh, WI 54901
R. Scott Gaster
906 Wylde Oak Drive
Oshkosh, WI 54904
Bruce P. Rounds
1510 Maricopa Drive
Oshkosh, WI 54904
Robert T. Wallace
1798 Hunters Glen Road
Oshkosh, WI 54901
Scott L. Spiller
341 Overland Trail
Oshkosh, WI 54904
David A. Dockrey
716 Lakeside
Madisonville, KY 42431
Capital
Contributions
pursuant to Class L Class A Class B Class C
Name and Address Section 3.1(a) Preferred Units Units Units Units Units
- ---------------- ---------------- --------------- ------- ------- ------- -------
Darwin K. Gilmore
5092 Creek Path
Marianna, FL 32446
Charles O. Reiff
4390 Kelson Avenue
Marianna, FL 32446
Robert J. Baudhuin
2854 Westmoor Drive
Oshkosh, WI 54904
Lee E. Wilson
3896 Leonard Point Road
Oshkosh, WI 54904
Richard J. Casey
1520 Villa Park Drive
Oshkosh, WI 54904
Jay B. McDonald
738 Ransom Street
Ripon, WI 54971
Kim M. Shady
W13239 Penny lane
Ripon, WI 54971
D. Mark Freesman
1340 Candlelight Court
Oshkosh, WI 54904
Al Rios
5140 Menawa Trail
Marianna, FL 32446
Pat Andersen-Shew
1788 West Breeze
Oshkosh, WI 54904
Stifel, Nicolaus Custodian for
Paula K. L'Esperance IRA
500 N. Broadway
St. Louis, MO 63102
Stifel, Nicolaus Custodian for
Thomas F. L'Esperance IRA
500 N. Broadway
St. Louis, MO 63102
Stifel, Nicolaus Custodian for
Scott L. Spiller IRA
500 N. Broadway
St. Louis, MO 63102
Capital
Contributions
pursuant to Class L Class A Class B Class C
Name and Address Section 3.1(a) Preferred Units Units Units Units Units
- ---------------- ---------------- --------------- ------- ------- ------- -------
Stifel, Nicolaus Custodian for
Bruce P. Rounds IRA
500 N. Broadway
St. Louis, MO 63102
Robert W. Baird & Co Inc.
TTEE FBO R Scott Gaster IRA
Account #3611-3785
P.O. Box 672
Milwaukee, WI 53201
Edward Jones, Cust FBO
Robert T. Wallace, IRA
931-90090-1-6
201 Progress Pkwy
Maryland Heights, MO 63043
Londolt Securities
Delaware Charter Guarantee and
Trust Company, TTEE for
Jeffrey J. Brothers, IRA
701 Oregon Street
Oshkosh, WI 54901
SCHEDULE II
Initial Board of Managers
-------------------------
Thomas F. L'Esperance
Edward W. Conard
Robert C. Gay
Stephen M. Zide
Stephen Sherrill