EXHIBIT 10.7
BEELAND MANAGEMENT COMPANY, L.L.C.
OPERATING AGREEMENT
RESTRICTIVE LEGEND
THE INTERESTS REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION, OR THE SECURITIES DEPARTMENT OF THE
STATE OF ILLINOIS OR ANY OTHER STATE. THE INTERESTS HAVE BEEN ISSUED PURSUANT TO
AVAILABLE EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS.
THE HOLDERS OF THE INTERESTS HAVE EXECUTED INVESTMENT REPRESENTATIONS TO THIS
EFFECT. A PURCHASE OF INTERESTS MUST BE MADE SOLELY FOR INVESTMENT PURPOSES ONLY
AND WITH NO VIEW TO A RESALE OF DISTRIBUTION THEREOF. THERE IS NO PRESENT PUBLIC
MARKET FOR THE INTERESTS NOR WILL THERE BE ANY SUCH MARKET FOR THE TRADING OF
SUCH INTERESTS. INTERESTS MAY NOT BE SOLD OR TRANSFERRED (EXCEPT BY GIFT OR
OPERATION OF LAW) IN THE ABSENCE OF EFFECTIVE REGISTRATION UNDER THE SECURITIES
ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY AND ITS LEGAL COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
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THIRD REVISED AMENDED AND RESTATED
OPERATING AGREEMENT
OF
BEELAND MANAGEMENT COMPANY, L.L.C.
This Third Revised Amended and Restated Operating Agreement (the
"Agreement") of Beeland Management Company, L.L.C. (the "Company") is entered
into and shall be effective as of the 31st day of July, 2003 by and among James
B. Rogers, Jr.; individually, Clyde C. Harrison, individually; Brian Cornell,
individually; and Richard Chambers, individually, as Members (the "Core
Members"), and any other Persons who may from time to time become Members (the
Core Members and any such other Members are collectively referred to as the
"Members").
RECITALS
A. WHEREAS, certain of the Core Members and other parties formed the
Company as of June 6, 1997 pursuant to an Operating Agreement (the
"Original Agreement");
B. WHEREAS, the Original Agreement was amended and restated as of November
1, 1998 (the "First Amendment");
C. WHEREAS, the First Amendment was amended and restated as of April 12,
2000 (the "Second Amendment");
D. WHEREAS, certain Interests (as defined in Section 1.9(m)) have been
transferred and additional Interests have been acquired by new Members,
pursuant to the terms of the First Amendment;
E. WHEREAS, the parties to this Agreement desire to effect certain
amendments to the First Amendment;
F. WHEREAS, except as so amended, the parties to this Agreement desire to
continue the Company pursuant to the terms and conditions of the First
Amendment; and
G. WHEREAS, the parties to this Agreement desire to set forth their entire
agreement in one document, upon the terms and conditions set forth
herein.
NOW THEREFORE, the parties, intending to be legally bound, hereby agree
as follows:
ARTICLE 1
THE COMPANY
1.1 FORMATION. The Company was formed as an Illinois limited liability
company effective as of June 6, 1997 by filing of Articles of Organization with
the Illinois Secretary of
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State pursuant to, and in accordance with, the provisions of the Illinois
Limited Liability Company Act.
1.2 NAME. The name of the Company is Beeland Management Company, L.L.C.
All business of the Company shall be conducted in such name except as the
Managing Members (as listed on EXHIBIT B hereto) may otherwise determine.
1.3 PURPOSE. The purpose of the Company shall be to engage in business
as a manager of commodity pools both as a Commodity Trading Advisor and as a
Commodity Pool Operator. The Company may provide all necessary and appropriate
financial and administrative services and support for such activities and do all
other things necessary or convenient to further the foregoing purposes. In
addition, the Company may carry out any and all other activities as permitted
under the Act.
1.4 PLACE OF BUSINESS. The principal place of business of the Company
shall be at 1000 Hart Road, Suite 260, Barrington, Illinois 60010 and at such
other place(s) as may be approved by the Managing Members.
1.5 TERM. The term of the Company commenced on the date of filing of
its Articles of Organization with the Illinois Secretary of State and shall
continue until December 31, 2097, unless the Company is earlier dissolved in
accordance with either the provisions of this Agreement or the Act.
1.6 STATUTORY AND REGULATORY COMPLIANCE. The Company and its business
activities are regulated by the Commodity Futures Trading Commission ("CFTC")
and by one or more self regulatory organizations ("SRO"), as that term is
defined in the Commodity Exchange Act of 1936, as amended (the "CEA").
Accordingly, the business of the Company shall be conducted in accordance with
the laws, policies, standards, rules and regulations (including, without
limitation, all of the foregoing as they relate to securities and futures) of
(i) the federal and all applicable state governments, (ii) the CFTC and the
Securities and Exchange Commission (the "SEC"), (iii) all applicable SROs, and
contract markets (as that term is defined in the CEA), and (iv) each and every
other industry, governmental or quasi-governmental agency, body or tribunal
having jurisdiction over the Company or its business activities.
1.7 TITLE TO PROPERTY. All Property owned by the Company shall be owned
by the Company as an entity and no Member shall have any ownership interest in
such Property in its individual name or right. The Company shall hold all of its
Property in the name of the Company and not in the name of any Member, unless
otherwise determined by the Managing Members to be necessary or advisable for
purposes of complying with applicable regulatory or exchange requirements. Each
Member's Interest in the Company shall be personal property for all purposes.
1.8 PAYMENTS OF INDIVIDUAL OBLIGATIONS. The Members shall use the
Company's credit and assets solely for the benefit of the Company and no asset
of the Company shall be transferred or encumbered for or in payment of any
individual obligation of a Member.
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1.9 DEFINITIONS. Capitalized words and phrases used in this Agreement
have the following meanings:
(a) "Act" means the Illinois Limited Liability Company Act, as
set forth in 805 ILCS Section 180/1-1 ET SEQ. as amended from time to
time (or any corresponding provisions of succeeding law).
(b) "Agreement" means this Operating Agreement, as it may be
amended from time to time. Words such as "herein," "hereinafter,"
"hereof," "hereto," and "hereunder" refer to this Agreement as a whole,
unless the context otherwise requires.
(c) "Associate Member" has the meaning set forth in subsection
10.1.
(d) "Bankruptcy" means, with respect to any Person, a
"Voluntary Bankruptcy" or an "Involuntary Bankruptcy."
(i) A "Voluntary Bankruptcy" means, with respect to
any Person, the inability of such Person generally to pay its
debts as such debts become due, or an admission in writing by
such Person of its inability to pay its debts generally or a
general assignment by such Person for the benefit of
creditors; the filing of any petition or answer by such Person
seeking to adjudicate it a bankrupt or insolvent, or seeking
for itself any liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of
such Person or its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or
seeking, consenting to, or acquiescing in the entry of an
order for relief or the appointment of a receiver, trustee,
custodian, or other similar official for such Person or for
any substantial part of its property; or corporate action
taken by such Person to authorize any of the actions set forth
above.
(ii) An "Involuntary Bankruptcy" means, with respect
to any Person, without the consent or acquiescence of such
Person, the entering of an order for relief or approving a
petition for relief or reorganization or any other petition
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or other similar
relief under any present or future bankruptcy, insolvency, or
similar statute, law, or regulation, or the filing of any such
petition against such Person with petition shall not be
dismissed within ninety (90) days, or, without the consent or
acquiescence of such Person, the entering of an order
appointing a trustee, custodian, receiver or liquidation of
such Person or of all or any substantial part of the property
of such Person which order shall not be dismissed within sixty
(60) days.
(e) "Business Day" means a day of the year on which the
Chicago Mercantile Exchange is open for trading in any of its markets.
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(f) "Capital" means the total of all Members' Capital
Accounts.
(g) "Capital Account" and "Capital Account Balance" is
determined by adding a Member's Capital Contribution, if any, and
subtracting distributions made pursuant to subsection 4.1 or tax
related payments made pursuant to subsection 4.2. It shall also include
each Member's share of Profits or Losses when determined and allocated
pursuant to subsection 3.1.
(h) "Capital Contributions" means the amount of money, if any,
contributed to the Company by a Member.
(i) "Company" means the limited liability company formed
pursuant to subsection 1.1 and the company continuing the business of
this Company in the event of dissolution as herein provided.
(j) "Family" means a spouse, sibling, direct descendant or
direct ancestor of a Member; a spouse of a sibling, direct descendant
or direct ancestor of a sibling; or a trustee of a trust or custodian
of a custodianship primarily for the benefit of one or more of the
foregoing and/or a Member.
(k) "Fiscal Year" means:
(i) any twelve month period commencing on January 1
and ending on December 31, of any year beginning with 1997;
(ii) the period commencing on the date hereof and
ending on December 31, 2003; or
(iii) any portion of the period described in clause
(i) for which the Company is required to allocate Profits and
Losses pursuant to Article 3 hereof.
(l) "Interest" means an ownership interest in the Company,
including any and all benefits to which Members may be entitled as
provided in this Agreement, together with all obligations of such
Members to comply with the terms and provisions of this Agreement.
(m) "Liquidating Event" means any of the circumstances set
forth in subsection 12.1.
(n) "Managing Member(s) means "Manager(s)" as defined by the
Act.
(o) "Members" means those individuals and entities executing
this Agreement as Members.
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(p) "Person" means any individual, partnership, limited
liability company, corporation, trust or other entity.
(q) "Percentage Interest" shall mean a Member's interest in
the Company expressed as a percentage of the total of all Percentage
Interests of all Members (i.e., 100%).
(r) "Profits" and "Losses" means for each Fiscal Year the
Company's net income or loss determined in accordance with United
States generally accepted accounting principles applied on a consistent
basis.
(s) "Property" means all real and personal property acquired
by the Company and any improvements thereto, and shall include both
tangible and intangible property.
(t) "Regulatory Agency" means the CFTC, the SEC, each SRO and
each state securities regulator or agency having jurisdiction over the
Company and/or its business.
(u) "Transfer" means:
(i) as a noun, any voluntary or involuntary transfer,
sale, or other disposition of an Interest, and
(ii) as a verb, voluntarily or involuntarily to
transfer, sell, or otherwise dispose of an Interest.
1.10 RECITALS. The recitals set forth above are hereby incorporated as
an integral part of this Agreement, and not as mere introductory material.
ARTICLE 2
CAPITAL
2.1 MEMBERS. The names and Percentage Interests of each of the Members
as of the date hereof are set forth on EXHIBIT A attached hereto, and herein
incorporated by reference.
2.2 ADDITIONAL CAPITAL CONTRIBUTIONS. A Member may only make additional
Capital Contributions upon the affirmative vote of Members holding at least 67%
of all outstanding Percentage Interests.
2.3 RETURN OF EXCESS CAPITAL. Except as provided in subsection 12.2 of
this Agreement, no Member shall demand, withdraw or receive a return of his
Capital Account without the unanimous consent of the Managing Members or the
consent of Members holding at least 67% of all outstanding Percentage Interests.
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2.4 EARNINGS ON CAPITAL. No Member shall receive any interest, salary
or draw with respect to their Capital Contributions or their Capital Account or
for services rendered on behalf of the Company or otherwise in their capacity as
a Member, except as otherwise provided in this Agreement.
2.5 LOANS. Any Member may, with the affirmative vote of a majority of
the Members, excluding such Member, lend or advance money to the Company. If any
Member shall make any loan or loans to the Company or advance money on its
behalf, the amount of any such loan or advance shall not be treated as a Capital
Contribution, but shall represent a debt due from the Company. The amount of any
such loan or advance shall be repayable solely out of the Company's cash
reserves and shall bear interest at the rate previously agreed between the
Company and the lending Member. None of the Members shall be obligated to make
any loan or advance to the Company. If any Member shall guarantee any loan or
loans to the Company, the amount of any such guarantee may be treated as a
Capital Contribution for purposes of Article 3, and in such event the guaranteed
amount shall constitute a debt due the Member from the Company.
ARTICLE 3
ALLOCATIONS
3.1 PROFITS AND LOSSES. Profits and Losses are to be determined
annually in accordance with United States generally accepted accounting
principles applied on a consistent basis. At the end of each Fiscal Year, all
Profits and Losses shall be allocated proportionately based on each Member's
Percentage Interest in the Company, as reflected on the attached EXHIBIT A (as
the same may be amended from time to time).
ARTICLE 4
DISTRIBUTIONS
4.1 DISTRIBUTIONS. Except as provided in Article 12 hereof, the Members
shall receive cash distributions at such times and in such amounts as the
Managing Members shall determine subject to the following order of priority:
(a) First, according to the current year allocation of income;
(b) Second, according to the Capital Account Balances of Members at
the beginning of the year; and
(c) Third, according to the Percentage Interest of Members at the
beginning of the year.
Provided, however, that no Member shall have the right to receive any
distribution except those distributions required pursuant to subsection 2.3 and
Article 12. Each Member shall be entitled to
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annual distributions in amounts necessary to pay any income tax or to settle any
complaint of a Regulatory Agency of which the Company either has been or is a
member. Any such distributions shall reduce the Capital Account of the Member
receiving the distributions or the Member on whose behalf the distribution was
made.
4.2 AMOUNTS WITHHELD.
(a) Any amounts withheld pursuant to the Internal Revenue Code
or any provision of any state, local or foreign tax law shall be
treated as amounts distributed to the Members pursuant to subsection
4.1. The Company is authorized to pay over such amounts to any
applicable government authority on behalf of a Member and deduct such
amounts from the Member's Capital Account.
(b) Notwithstanding subsection 2.2, each year each Member
shall be allowed to re-contribute to the Company an amount not
exceeding that amount paid by the Company pursuant to subsection
4.2(a). Should a Member choose to re-contribute amounts withheld under
this Article, such amount must be re-contributed to the Company within
30 days from the date of filing that tax return or from receipt of the
corresponding tax refund, whichever is later.
ARTICLE 5
RIGHTS AND DUTIES OF THE MANAGING MEMBERS
5.1 MANAGING MEMBERS. The management of the Company shall vest in the
Members. However, administration of the Company's operations shall vest in the
Managing Members. As of the date of this Agreement, the Managing Members are
Brian Cornell, Richard L. Chambers and Walter T. Price III. The name of each
Managing Member shall be listed on the attached Exhibit B. Exhibit B shall be
amended, from time to time, each time that any of the Managing Members should
change.
5.2 ELECTION AND TERM.
(a) The term of each Managing Member shall continue until such
Managing Member is removed or resigns in accordance with this Article.
(b) In addition to the current Managing Members, any other
Managing Member shall be elected for annual terms by the affirmative
vote of Members holding at least sixty-seven percent (67%) of all
Percentage Interests held by Members.
5.3 AUTHORITY OF THE MANAGING MEMBERS. The Managing Members shall have
the authority, on behalf of the Company, to do all things necessary or
convenient to carry out the ordinary business affairs of the Company, including,
without limitation:
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(a) the institution, prosecution and defense of any proceeding
in the Company's name;
(b) appointment and discharge of officers, employees and
agents of the Company, the defining of their duties, and the
establishment and payment of their compensation;
(c) payment of pensions and establishment of pension plans,
pension trusts, profit sharing plans, and benefit and incentive plans
for all or any of the current or former employees of the Company;
(d) purchase of insurance on the life of any of its employees
for the benefit of the Company;
(e) the indemnification of Members or any other Person;
(f) the execution on behalf of the Company of all instruments
and documents, which have been authorized by the Members including,
without limitation, checks; drafts; notes and other negotiable
instruments; mortgages or deeds of trust; security agreements;
financing statements; documents providing for the acquisition, mortgage
or disposition of Company Property; assignments; bills of sale; leases;
and any other documents or instruments necessary to the business of the
Company; and
(g) the doing and performing of all other acts as may be
necessary or appropriate to the ordinary conduct of the Company's
business.
5.4 APPROVAL OF THE MEMBERS REQUIRED. Notwithstanding any other
authority provided herein, without the approval of Members holding a minimum of
67% of the Percentage Interests in the Company, the Managing Members shall not
have the authority to do any of the following:
(a) expend or use the Company Property except upon the account
and for the benefit of the Company;
(b) sell, mortgage, lease, pledge, or otherwise dispose of
all, or substantially all, of the assets of the Company;
(c) pledge any of the Company's credit or Property for other
than Company purposes;
(d) cause the Company to incur any debt or contract obligating
the Company to pay an aggregate amount (exclusive of interest) of more
than $50,000;
(e) compromise, settle or release any debt due to the Company
except upon full payment thereof or except in the ordinary course of
business;
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(f) assign the Company Property in trust for creditors or on
the assignee's promise to pay the debts of the Company;
(g) obtain debt on behalf of the Company;
(h) settle litigation or regulatory claims for any sum in
excess of Twenty Five Hundred Dollars ($2,500);
(i) confess a judgment against the Company or any Company
Property;
(j) dispose of any of the goodwill of the Company business; or
(k) do any other act which would make it impossible to carry
on the ordinary business of the Company.
5.5 COMPENSATION OF THE MANAGING MEMBERS; REIMBURSEMENT FOR EXPENSES.
No Managing Member shall be entitled to receive compensation for serving in such
capacity. However, Managing Members who also serve as Officers (as defined in
Section 5.10) of the Company may be compensated subject to the conditions set
forth in Section 5.10. Managing Members shall be entitled to receive
reimbursement for expenses which they reasonably incur on behalf of the Company.
5.6 MANAGING MEMBER'S STANDARD OF CARE; WAIVER OF LIABILITY. A Managing
Member owes a duty to the Company and to the Members in the discharge of the
Member's duties and must refrain from engaging in grossly negligent or reckless
conduct, intentional misconduct, or a knowing violation of law. In discharging
his duties, each Managing Member may reasonably rely on Persons as to matters
the Managing Member reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Company, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, Profits or
Losses of the Company or any other facts pertinent to the existence and amount
of assets from which distributions to Members might properly be paid. Each
Member of the Company, in his or her individual capacity, hereby waives any and
all claims against the Managing Members for and hereby releases the Managing
Members from any and all losses, damages, liabilities, claims, causes of action,
omissions, demands, expenses or any other acts or failures to act arising from
or out of his duties as a Managing Member. Nothing contained in the last
sentence above shall constitute a waiver of any claim which the Company may have
against a Managing Member or limit any Member's authority to assert such a claim
on a derivative basis.
5.7 REMOVAL OF MANAGING MEMBER. A Managing Member may be removed by the
affirmative vote of Members holding sixty seven percent (67%) of the total of
all Membership Interests. In the event of removal or resignation of a single
Managing Member, the remaining Members shall select a successor as provided in
Section 5.2, above.
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5.8 RESIGNATION. A Managing Member may resign at any time by giving
written notice to the Members. The resignation of a Managing Member shall take
effect upon receipt of such notice thereof or at such later date specified in
such notice; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of a
Managing Member shall not affect his rights as a Member and shall not constitute
the withdrawal of a Member.
5.9 BANK ACCOUNTS. Each Managing Member may from time to time open
accounts in the name of the Company with such signatories as designated by the
Managing Members.
5.10 OFFICERS. A majority of the Managing Members ("Majority") may
appoint such officer or officers (collectively, the "Officers") as the Majority
shall designate in the appointing instrument or instruments. The Officers shall
be entitled to receive compensation for serving in such capacity as approved by
a majority of the Managing Members. Each Officer shall hold such office until
the earlier of their respective resignations or until his successors are elected
by a majority of the Managing Members.
ARTICLE 6
RIGHTS AND DUTIES OF MEMBERS
6.1 RIGHTS AND DUTIES OF MEMBERS.
(a) Members who are not Managing Members shall not have any
individual authority to act for or bind the Company, nor transact any
business for the Company. However, Members who are Officers of the
Company may act for and bind the Company if such transactions are
within the scope of their duties as an Officer.
(b) Each Member ("Indemnifying Member") agrees to indemnify,
protect and hold harmless, on an after-tax basis, each other Member,
such Member's permitted assigns and successors, and the Company and its
agents, employees, officers, Managing Members, successors and permitted
assigns, from and against all losses, damages, injuries, claims,
demands and expenses arising out of the Indemnifying Member's own acts
of willful and wanton misconduct, limited to the extent that such
losses, damages, injuries, claims, demands and expenses are not
reimbursed under a policy of insurance carried by the Company.
(c) The Members of the Company may elect such Managing Members
of the Company which the Members deem, in their sole discretion,
necessary and appropriate for the Company to carry out its activities
as contemplated in this Agreement. Each Managing Member shall be
elected or appointed by the affirmative vote of the Members, as
provided in subsection 5.2(b). The names of the Managing Members are
set forth in EXHIBIT B which is attached hereto and incorporated by
reference herein and which
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shall be amended when such additional or successor Managing Members
have been duly elected or until a Managing Member's death, resignation
or removal pursuant to Subsection 5.7 by the Members whenever, in their
judgment, the best interests of the Company would be served thereby. A
vacancy because of death, resignation, removal, disqualification or
otherwise, may be filled by the remaining Members.
(d) The Members of the Company, by affirmative majority vote,
may take any action for which a greater percentage vote is not
required, either by virtue of Subsection 5.4 above, or otherwise.
6.2 CONFLICTS OF INTEREST. Neither the Managing Members nor any Member
need devote full time to the Company's business, but shall devote such time as
he, in his discretion, deems necessary to make management decisions and
otherwise fulfill their responsibilities. Except as set forth below, nothing in
this Agreement shall be deemed to restrict in any way the rights of any Member,
or any affiliate of any Member, to conduct any other business or activity
whatsoever, and no such Member shall be accountable to the Company or to any
Member with respect to that business or activity even if the business or
activity competes with the Company's business. Each Member understands and
acknowledges that the conduct of the Company's business may involve business
dealings and undertakings with Members, the Managing Members, and affiliates. In
any such event, those dealings and undertakings shall be at arm's length and on
commercially reasonable terms, and neither the Managing Members nor any Officer
may use his office to obtain favorable treatment for or on behalf of himself,
his affiliates or others which would not otherwise be received in an arm's
length transaction.
ARTICLE 7
INDEMNIFICATION
7.1 DEFINITIONS.
(a) For purposes of this Article only, a "Covered Person" is a
person who is or was:
(i) A Member;
(ii) an employee, agent, director, officer, member,
partner, shareholder, trustee, fiduciary or beneficiary of a
Member;
(iii) an employee, agent, director, officer, partner,
shareholder, trustee, fiduciary or beneficiary of another
person serving the Company or any entity in which the Company
has an interest at the request of a Managing Member for the
benefit of the Company.
(b) For purposes of this Article, a "Designated Matter" with
respect to a Covered Person means a matter that is claimed to be (in
the case of an assertion by a
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person adverse to such Covered Person) a matter related to such Covered
Person's status with respect to, duties to, or activities for the
intended benefit of, the Company, whether such status, duties or
activities are direct or are through Persons other than who are Covered
Persons and whether such duties or activities occurred before or after
the organization of the Company.
7.2 EXCULPATION. No Covered Person shall be liable to the Company or
any other Member for any expenses, damages or losses with respect to a
Designated Matter other than those expenses, damages or losses directly
attributable to such Covered Person's willful misconduct or gross negligence or
failure to act in good faith or in a manner that it reasonably believed to be in
(or not opposed to) the best interests of the Company.
7.3 INDEMNIFICATION.
(a) The Company shall indemnify any Covered Person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the Company or the Members generally) as a result of a
Designated Matter against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such Covered Person in connection with such action, suit or
proceeding if (A) such Covered Person acted in good faith, was not
grossly negligent and did not willfully engage in misconduct, and acted
in a manner that such Covered Person reasonably believed to be in (or
not opposed to) the best interests of the Company, and (B) with respect
to any criminal action or proceeding, such Covered Person had no
reasonable cause to believe his or its conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that such
Covered Person did not act in good faith, was grossly negligent or
committed willful misconduct or acted otherwise than in a manner which
such Covered Person reasonably believed to be in (or not opposed to)
the best interest of the Company, or, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or
its conduct was unlawful.
(b) The Company shall indemnify any Covered Person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Company
or the Members generally to procure a judgment in its favor by reason
of a Designated Matter against expenses (including attorneys' fees)
actually and reasonably incurred by such Covered Person in connection
with the defense or settlement of such action or suit if such Covered
Person acted in good faith and in a manner such Covered Person
reasonably believed to be in (or not opposed to) the best interests of
the Company, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such Covered Person shall have
been adjudged to be liable to the Company or the Members generally
unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such
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Covered Person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(c) To the extent that a Covered Person has been successful on
the merits or otherwise in defense of any action, suit or proceeding
referred to in paragraphs (a) or (b) of this subsection, or in defense
of any claim, issue or matter therein, the Company shall indemnify such
Covered Person against expenses (including attorneys' fees) actually
and reasonably incurred by such Covered Person in connection therewith.
(d) Expenses incurred by a Covered Person in defending a civil
or criminal action, suit or proceeding with respect to a Designated
Matter may, in the discretion of the Managing Members, be paid by the
Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
Covered Person to repay such amount together with interest thereon if
it shall ultimately be determined that such Covered Person is not
entitled to be indemnified by the Company as authorized in this
subsection.
(e) The Company may enter into an agreement to indemnify any
Person (whether or not a Covered Person) as to any matter (whether or
not a Designated Matter) to the extent such agreement (i) is a
customary practice in the industry in all material aspects, taking into
account all facts and circumstances, or (ii) is approved by the
Managing Members and by the holders of a majority of the Percentage
Interests of Members.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this subsection
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled
under any agreement, vote of disinterested Members or otherwise, both
as to action in his or its official capacity and as to action in
another capacity while holding such position, and shall continue as to
any person or entity who has ceased to be a Member (or successor or
assignee of a Member), director, officer, employee or agent of the
Company or a Member (or successor or assignee of a Member) and shall
inure to the benefit of the heirs, representatives, successors and
assigns of such person or entity. The indemnification obligations
contained in this subsection 7.3 are solely the obligations of the
Company and no Member shall be deemed to be liable for such
indemnification obligations by reason of its status as a Member in the
Company.
(g) The Company shall have the power to purchase and maintain
insurance on behalf of any person or entity who is or was a Member (or
successor or assignee of a Member), or a Covered Person, including a
director, officer, employee or agent of the Company or of a Member (or
successor or assignee of a Member), or is or was serving at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or it and incurred by such
person or entity in any such capacity, or arising out of his or its
status as such, whether or not the Company would have the
15
power to indemnify such person or entity against such liability under
this subsection. However, neither (i) the availability and/or presence
of such insurance nor (ii) any determination made by an insurance
carrier concerning coverage issues, shall relieve or mitigate the
Company's obligation(s) to indemnify pursuant to this Article 7.
7.4 RELIANCE. The Members (and their successors and assignees),
directors, partners and officers of the Company or of a Member (or its
successors and assignees) may consult with counsel, accountants or other
independent consultants of their choosing in respect to Company affairs and be
fully protected and justified in any action or inaction which is taken in
accordance with the advice or opinion of such counsel, accountants or other
independent consultants, provided that they shall have been selected with
reasonable care.
ARTICLE 8
ACCOUNTING; BOOKS AND RECORDS
8.1 ACCOUNTING; BOOKS AND RECORDS. The Company shall maintain at its
principal place of business separate books of account for the Company which
shall show a true and accurate record of all costs and expenses incurred, all
charges made, all credits made and received, and all income derived in
connection with the operation of the Company business. The Company shall keep
its books and records in conformity with United States generally accepted
accounting principles applied on a consistent basis. Each Member shall have the
right, at his sole expense and with reasonable notice to every other Member, to
examine, copy, and audit the Company's books and records during normal business
hours; provided, however, that the exercise of such right shall not disrupt the
day-to-day operations of the Company.
8.2 REPORTS. Within ninety (90) days after the end of each Fiscal Year,
the Managing Members, shall at the Company's expense, provide each Member with a
summary report of the operations and business of the Company during the
completed fiscal year.
8.3 TAX RETURNS. The Managing Members shall, at the Company's expense,
furnish each Member with a copy of the Schedule K-1 for the Member as well as
such other form(s) as are required to be furnished under applicable law and
regulation.
8.4 BANKING. All available funds of the Company required for trading
activities shall be deposited in the Company's name, in such account or accounts
with domestic member banks of the Federal Reserve System as may be approved by
the Managing Members; provided, however, that the Managing Members may elect to
deposit all or a portion of the funds standing in the Company reserves in
interest-bearing accounts with, or apply such funds to purchase short-term
interest-bearing investments issued or guaranteed as to payment by, such banks
or other financial institutions that are members of the Federal Deposit
Insurance Corporation or the United States of America (or its agencies or
instrumentalities). Withdrawals of funds from Company accounts shall be made on
such signature or signatures as the Managing Members may approve from time to
time.
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ARTICLE 9
METHOD OF VOTING; MEMBER MEETINGS; AMENDMENTS
9.1 GENERAL. Actions and decisions requiring the approval of the
Members or Managing Members pursuant to any provision of this Agreement may be
taken at a meeting of the Members or the Managing Members, as the case may be,
held either in person, by teleconference or videoconference, or by unanimous
written consent without a meeting.
9.2 MEETINGS. Meetings of the Members, for any purpose or purposes, may
be called by any Managing Member or by any Member or Members holding at least
twenty-five percent (25%) of the Percentage Interests held by Members.
9.3 PLACE OF MEETINGS. The Members may designate any place, either
within or outside the State of Illinois, as the place of meeting for any meeting
of the Members. If no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the principal place of business of the
Company in the State of Illinois.
9.4 NOTICE OF MEETINGS. Written notice stating the place, day and hour
of the meeting and the purpose or purposes for which the meeting is called shall
be delivered not less than five (5) nor more than thirty (30) days before the
date of the meeting, either personally or by mail, by or at the direction of the
Managing Members or Member or Members calling the meeting, to each Member
entitled to vote at such meeting.
9.5 MEETING OF ALL MEMBERS. If all of the Members shall meet at any
time and place, either within or outside of the State of Illinois, and consent
to the holding of a meeting at such time and place, such meeting shall be valid
without call or notice, and at such meeting lawful action may be taken.
9.6 RECORD DATE. For the purpose of determining Members entitled to
notice of or to vote at any meeting of Members or any adjournment thereof, or
Members entitled to receive payment of any distribution, or in order to make a
determination of Members for any other purpose, the date on which notice of the
meeting is mailed or the date on which the resolution declaring such
distribution is adopted, as the case may be, shall be the record date for such
determination of Members.
9.7 QUORUM. Members holding at least sixty-seven percent (67%) of all
Percentage Interests held by Members, represented in person or by proxy, shall
constitute a quorum at any meeting of Members. In the absence of a quorum at any
such meeting, a majority of the Percentage Interests so represented may adjourn
the meeting from time to time for a period not to exceed sixty (60) days without
further notice. However, if the adjournment is for more than sixty (60) days, or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each Member of record entitled
to vote at the meeting. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally
17
noticed. The Members present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal during such
meeting of that number of Percentage Interests whose absence would cause less
than a quorum.
9.8 MANNER OF ACTING. If a quorum is present, the act of the Members
holding a Majority Interest shall be the affirmative vote of Members, unless the
vote of a greater or lesser proportion or number is otherwise required by the
Act, the Articles of Organization or this Agreement. Unless otherwise expressly
provided herein or required under applicable law, only Members who have an
Interest may vote or consent upon any matter and their vote or consent, as the
case may be, shall be counted in the determination of whether the matter was
approved by the Members. In the event of an amendment to this Agreement, the
provisions of Section 6.1(d) shall govern.
9.9 PROXIES. At all meetings of Members, a Member may vote in person or
by proxy executed in writing by the Member or by a duly authorized
attorney-in-fact. Such proxy shall be filed with the Managing Members before or
at the time of the meeting. No proxy shall be valid after eleven months from the
date of its execution, unless otherwise provided in the proxy.
9.10 ACTION BY MEMBERS WITHOUT A MEETING. Action required or permitted
to be taken at a meeting of Members may be taken without a meeting if the action
is evidenced by one or more written consents describing the action taken, signed
by each Member entitled to vote and delivered to a Managing Member of the
Company for inclusion in the minutes or for filing with the Company records.
Action taken under this subsection 9.10 is effective when all Members entitled
to vote have signed the consent, unless the consent specifies a different
effective date.
9.11 WAIVER OF NOTICE. When any notice is required to be given to any
Member, a waiver thereof in writing signed by the person entitled to such
notice, whether before, at, or after the time stated therein, shall be
equivalent to the giving of such notice.
ARTICLE 10
ASSOCIATE MEMBERS
10.1 NEW MEMBER ADMISSION. New Members ("Associate Members") (i.e.,
Members other than Core Members and other Persons admitted pursuant to the terms
of the First Amendment or the Second Amendment) may be admitted at any time with
the affirmative vote of Members holding not less than seventy-five percent (75%)
of the Percentage Interests of Members. Such Associate Members shall be admitted
on the first day of the month specified by the Members and shall have the same
rights and duties as other Members.
10.2 ADMISSION PROCEDURES. No Associate Member shall be admitted unless
such Associate Member executes, acknowledges and delivers to the Company such
instruments as the Managing Members may deem necessary or advisable to effect
the admission of such Associate Member, including, without limitation, the
written acceptance and adoption by such
18
Associate Member of the provisions of this Agreement. EXHIBIT A shall be revised
from time to time to reflect all of the Members and Associate Members of the
Company.
ARTICLE 11
TRANSFERABILITY
11.1 GENERAL. No Member shall Transfer all or any portion of his
Interest without the prior written consent of Members owning at least
sixty-seven percent (67%) of Percentage Interests held by Members, which consent
may be withheld by a Member for any reason or for no reason (it being understood
that any purported Transfer in violation of this Agreement shall be null and
void and of no force and effect).
11.2 PERMITTED TRANSFERS. Notwithstanding anything contained in this
Agreement to the contrary (except subsection 11.3 hereof, to which this
subsection 11.2 is subject), Interests may be Transferred as follows:
(a) by a Member to any member of his Family;
(b) to the personal representative of a Member who is deceased
or adjudicated incompetent;
(c) by the personal representative of a Member who is deceased
or adjudicated incompetent to any member of such Member's Family;
(d) upon termination of a trust which is a Member, by the
trustee of such trust to the person or persons who, in accordance with
the provisions of such trust, are entitled to receive the Interest held
in trust; and
(e) to any Person who or which is a record AND beneficial
owner of any Member which is not a natural person.
Interests Transferred in accordance with the foregoing provisions of this
subsection 11.2 shall continue to be subject to the rights and obligations of
the Members under this Agreement.
11.3 LIMITATIONS ON TRANSFER. As a condition to the Company recognizing
the effectiveness of any Transfer, the Managing Members may require the
transferor or transferee, as the case may be, to execute, acknowledge and
deliver to the Managers such instruments of transfer, assignment and assumption
and such other certificates, representations and documents, and to perform all
such other acts which the Managing Members may deem necessary or desirable to:
(a) verify the Transfer;
19
(b) confirm that the proposed transferee has accepted, assumed
and agreed to be subject and bound by all of the terms, obligations and
conditions of this Agreement;
(c) maintain the status of the Company as a partnership for
federal tax purposes; and
(d) assure compliance with any applicable state and federal
laws.
ARTICLE 12
DISSOLUTION AND TERMINATION
12.1 DISSOLUTION. The Company shall be dissolved upon the occurrence of
any of the following events:
(a) when the period fixed for the duration of the Company
shall expire pursuant to subsection 1.5 hereof;
(b) the vote of a Member or Members owning greater than
sixty-seven percent (67%) of the Percentage Interests held by Members;
(c) upon the death, retirement, resignation, expulsion,
Bankruptcy or dissolution of a Member or occurrence of any other event
which terminates the continued membership of a Member in the Company (a
"Withdrawal Event") if such Withdrawal Event causes the Company to have
fewer than five (5) remaining Members; or
(d) as otherwise required by law.
12.2 WINDING UP, LIQUIDATION AND DISTRIBUTION OF ASSETS. The Company's
assets on winding up shall be applied first to the expenses of the winding up,
and thereafter all of the remaining Company assets shall be distributed in the
following order:
(a) to creditors, including any Member who is also a creditor,
in the order of priority as provided by law; and
(b) to the Members pro rata in accordance with their Capital
Account Balances.
Upon completion of the winding up, liquidation and distribution of the assets,
the Company shall be deemed terminated.
12.3 ARTICLES OF DISSOLUTION. When all debts, liabilities and
obligations of the Company have been paid and discharged or adequate provisions
have been made therefor and all of the remaining property and assets of the
Company have been distributed, articles of dissolution, as required by the Act,
shall be executed in duplicate and filed with the Illinois Secretary of State.
20
12.4 EFFECT OF FILING OF ARTICLES OF DISSOLUTION. Upon the filing of
articles of dissolution with the Illinois Secretary of State, the existence of
the Company shall cease, except for the purpose of suits, other proceedings and
appropriate action as provided in the Act. The Managing Members shall have
authority to distribute any Company property discovered after dissolution,
convey real estate and take such other action as may be necessary on behalf of
and in the name of the Company.
12.5 RETURN OF CONTRIBUTION; NONRECOURSE. Except as provided by law or
as expressly provided in this Agreement, upon dissolution, each Member shall
look solely to the assets of the Company for the return of its Capital
Contributions. If the Company property remaining after the payment or discharge
of the debts and liabilities of the Company is insufficient to return the
Capital Contributions of one or more Members, such Members shall have no
recourse against any Members of the Company, except as otherwise provided by
law.
ARTICLE 13
MISCELLANEOUS
13.1 NOTICES. Any notice, payment, demand or communication required or
permitted to be given by any provision of this Agreement shall be in writing and
sent by overnight courier, or may be given by telephone, facsimile or electronic
mail if such telephone conversation, facsimile or electronic mail is followed by
a written copy of the telephone conversation, facsimile communication or
electronic mail sent by overnight courier. The overnight courier shall be sent
with confirmation of delivery required, charges prepaid, addressed as follows:
(a) if to the Company, at the address set forth in subsection
1.4 hereof, or to such other address as the Company may from time to
time specify by notice to the Members, or
(b) if to a Member, to such Member at its address set forth on
EXHIBIT A hereto, or to such other address as such Member may from time
to time specify by notice to the Company.
Regardless of the method of notice, any such notice shall be deemed to be
delivered, given and received as of the Business Day following the date that
such written copy of the communication was sent via overnight courier as
provided in this subsection 13.1.
13.2 BINDING EFFECT. Except as otherwise provided in this Agreement,
every covenant, term and provision of this Agreement shall be binding upon and
inure to the benefit of the Members and their respective heirs, legatees, legal
representatives, successors, transferees and permitted assigns.
21
13.3 CONSTRUCTION. Every covenant, term and provision of this Agreement
shall be construed simply according to its fair meaning and not strictly for or
against any Member. The terms of this Agreement are intended to embody the
economic relationship among the Members and shall not be subject to modification
by, or be conformed with, any actions by the Internal Revenue Service except as
this Agreement may be explicitly so amended and except as may relate
specifically to the filing of tax returns.
13.4 TIME. Time is of the essence with respect to this Agreement.
13.5 HEADINGS. Section and other headings contained in this Agreement
are for reference purposes only and are not intended to describe, interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof.
13.6 SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
legality of the remainder of this Agreement.
13.7 INCORPORATION BY REFERENCE. Every exhibit, schedule and other
appendix attached to this Agreement and referred to herein is incorporated in
this Agreement by reference unless this Agreement expressly otherwise provides,
or as otherwise agreed to by affirmative vote of the Members. The Members
acknowledge and agree that this Agreement is the complete and exclusive
statement of the understanding of the parties with respect to the subject matter
hereof and that this Agreement supercedes and cancels any previous written or
oral agreements or communications relating to such subject matter.
13.8 FURTHER ACTION. Each Member agrees to perform all further acts and
execute, acknowledge and deliver any documents which may be reasonably
necessary, appropriate or desirable to carry out the provisions of this
Agreement.
13.9 VARIATION OF PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to masculine, feminine or neuter and singular or
plural, as the identity of the Person or Persons may require.
13.10 GOVERNING LAW. The laws of the State of Illinois shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the Members without giving effect to
the conflict of laws principles.
13.11 COUNTERPART EXECUTION.
(a) This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had signed
the same document. All counterparts shall be construed together and
shall constitute one and the same agreement.
(b) Members admitted subsequent to the date of this Agreement
must sign such admission documents that the Managing Members determine
to be necessary to
22
reflect their intention to be bound by the terms and conditions set
forth in this Agreement. Any such written documents to admit new
Members need only be executed by all of the then Managing Members to
bind the Company and by the newly admitted Member(s).
13.12 POWER OF ATTORNEY. The Members hereby jointly and severally
irrevocably constitute and appoint each of the Managing Members, with full power
of substitution, their true and lawful attorney-in-fact, in their name, place
and stead to make, execute, sign, acknowledge, record and file, on behalf of
them and on behalf of the Company, the following:
(a) The Articles of Organization and any other certificates or
instruments that may be required to be filed by the Company or Members
under the laws of the State of Illinois and any other jurisdiction
whose laws may be applicable, provided that such certificates or
instruments have been authorized by the particular Member or Members,
and
(b) Such instruments or documents as may be deemed necessary
or desirable by the Managing Members in connection with the termination
of the Company business, and
(c) Any and all amendments to the instruments described in
clauses (a) and (b) above, provided that such amendments are either
required by law to be filed, or are consistent with this Agreement as
it may exist from time to time, or have been authorized by the
particular Member or Members.
The foregoing grant of authority:
(i) Is a special power of attorney coupled with an
interest, is irrevocable and shall survive the death or
incapacity of the Member granting the power, and
(ii) may be exercised by any Managing Member on
behalf of each Member by a facsimile signature or by listing
all of the Members executing any instrument with a single
signature as attorney-in-fact for all of them, and
(iii) shall survive the resignation of a Member from
the Company or the delivery of an assignment by a Member of
the whole or any portion of his Interest in the Company.
23
IN WITNESS WHEREOF, the undersigned have executed into this Third
Revised Amended and Restated Operating Agreement of the Company in counterpart
as of the date first above set forth.
- -------------------------------------------
Name
24
AMENDED EXHIBIT A TO
OPERATING AGREEMENT OF
BEELAND MANAGEMENT COMPANY, L.L.C.
(AS OF JULY 31, 2003)
MEMBERS
Members Percentage Interest
- ------- -------------------
James B. Rogers, Jr. 56.83085500%
Clyde C. Harrison 9.71895400%
Ralph Wanger Trust 10.33288300%
Arbor Research & Trading, Inc. 4.13315300%
Charles Sisk 2.06657700%
Brian Cornell 2.06657700%
Terry L. Savage, Trustee 1.03328700%
John L. King, Jr. 3.16320800%
Richard L. Chambers 3.05763400%
Fred Handler 1.05440300%
James R. Stevens 1.05440300%
Louis J. Petralli & Judith L. Petralli, 1.05440300%
Trustees
William L. Darnall 0.26360100%
Eugene G. Good, Jr. 0.26360100%
William Ramirez 0.26360100%
Paul A. Taylor 0.26360100%
Marvin W. Frisch 0.26360100%
Bernard Bushell 0.26360100%
25
James M. Llewellyn 0.13180000%
J. Mark Garlinghouse 0.13180000%
Clifford F. Klose & Marjorie J. Klose, 0.52720100%
Trustees
Donald S. McAlvany 0.26360100%
Wildman, Harold, Allen & Dixon 1.02306200%
Worth Trust u/a 8-17-01 0.77459300%
26
EXHIBIT B
TO
OPERATING AGREEMENT
OF
BEELAND MANAGEMENT COMPANY, LLC
AS OF JULY 31, 2003
MANAGING MEMBERS
Brian Cornell
Richard L. Chambers
Walter T. Price III
27