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Exhibit 3.24
LIMITED LIABILITY COMPANY AGREEMENT
OF
JEAN COUTU GROUP HOLDINGS (USA), LLC
A DELAWARE LIMITED LIABILITY COMPANY
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TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS 1
Section 1.1 Certain Definitions 1
ARTICLE II NAME, OFFICE AND FORMATION OF THE COMPANY 3
Section 2.1 Name 3
Section 2.2 Registered Office and Agent 3
Section 2.3 Principal Place of Business 3
Section 2.4 Purpose and Powers 3
Section 2.5 Term 3
Section 2.6 Certificate of Formation 4
ARTICLE III MEMBERS 4
Section 3.1 Membership 4
Section 3.2 Annual, Regular and Special Meetings of the Members 4
Section 3.3 Notice for Meeting of Members 4
Section 3.4 Waiver of Notice 4
Section 3.5 Membership Quorum and Voting 4
Section 3.6 Action Without a Meeting 4
Section 3.7 Limited Liability of Members 5
ARTICLE IV CAPITALIZATION 5
Section 4.1 Capital Contributions 5
Section 4.2 Capital Accounts 5
Section 4.3 Return of Capital and Waiver of Partition 5
Section 4.4 Third Party Loans 5
Section 4.5 Member Loans 6
ARTICLE V ALLOCATIONS AND DISTRIBUTIONS 6
Section 5.1 Allocation of Net Profits and Net Losses 6
Section 5.2 Distributions 6
ARTICLE VI MANAGEMENT 6
Section 6.1 Board of Managers 6
Section 6.2 Powers of Board of Managers 7
Section 6.3 Election and Term of Managers 7
Section 6.4 Annual, Regular and Special Meetings of Managers 7
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TABLE OF CONTENTS
(CONTINUED)
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Section 6.5 Notice for Meeting of Managers 8
Section 6.6 Waiver of Notice 8
Section 6.7 Board of Managers Quorum and Voting 8
Section 6.8 Action Without a Meeting 8
Section 6.9 Resignation of Managers 8
Section 6.10 Vacancies 8
Section 6.11 Removal 9
Section 6.12 Compensation 9
Section 6.13 Officers 9
ARTICLE VII LIMITATION ON LIABILITY 9
ARTICLE VIII ADMINISTRATIVE MATTERS 9
Section 8.1 Books of Account 9
Section 8.2 Reports 9
Section 8.3 Tax Matters Handled By the Members 9
Section 8.4 Fiscal Year 10
ARTICLE IX TRANSFER OF MEMBERSHIP INTEREST BY MEMBERS 10
Section 9.1 Transfer of Membership Interest 10
ARTICLE X INDEMNIFICATION 10
Section 10.1 Indemnification By Company 10
Section 10.2 Right Not Exclusive 10
Section 10.3 Insurance 10
Section 10.4 Amendment 10
ARTICLE XI DISSOLUTION 11
Section 11.1 Events of Dissolution 11
Section 11.2 Winding Up 11
Section 11.3 Notice of Dissolution 11
ARTICLE XII SALE OF ASSETS 11
ARTICLE XIII MISCELLANEOUS 12
Section 13.1 Amendment 12
Section 13.2 Waiver 12
Section 13.3 Notices 12
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TABLE OF CONTENTS
(CONTINUED)
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Section 13.4 Binding Agreement 12
Section 13.5 Governing Law 12
Section 13.6 Severability 12
Section 13.7 Counterparts 13
Section 13.8 Entire Agreement 13
Section 13.9 Headings 13
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OPERATING AGREEMENT
OF
JEAN COUTU GROUP HOLDINGS (USA), LLC
a Delaware limited liability company
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "AGREEMENT") of Jean Coutu
Group Holdings (USA), LLC, a Delaware limited liability company (the "COMPANY"),
is made effective as of the ___ th day of July, 2004, as amended from time to
time, by and among the Persons set forth on the signature page hereof.
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. As used in this Agreement:
"ACT" shall mean the Delaware Limited Liability Company Act, Del. Code Ann.
tit. 6 Section 18-101 et seq., as now in effect or hereafter amended.
"AFFILIATE" shall mean any Person (other than an individual) that directly
or through one or more intermediaries controls, is controlled by or is under
common control with another Person and includes the power to direct or cause the
direction of the management and policies of a Person. With respect to an
individual, "AFFILIATE" means members of such individual's immediate family and
any trust all the beneficiaries of which are either such individual or members
of such individual's immediate family.
"AGREEMENT" shall mean this Limited Liability Company Agreement of 395
Harding Street, LLC, a Delaware limited liability company.
"ANNUAL MEMBER'S MEETING" shall have the meaning set forth in Section 3.2.
"AVAILABLE CASH" means the gross cash proceeds from Company operations
(including from sales, financings and refinancings of Company property) less the
portion thereof used or to be used to pay or provide for the payment of Company
expenses, debts (including debts to the Members), replacements and
contingencies, all as determined in accordance with this Agreement.
"BOARD OF MANAGERS" shall have the meaning set forth in Section 6.1.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section 4.2(a).
"CARRYING VALUE" means, with respect to any asset, the asset's adjusted
basis for federal income tax purposes except as follows:
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(i) the initial Carrying Value of any asset contributed (or deemed
contributed) to the Company shall be such asset's gross fair market value
at the time of such contribution;
(ii) the Carrying Values of all Company assets shall be adjusted to
equal their respective gross fair market values in accordance with, and as
permitted by, Section 1.704-l(b)(2)(iv)(f) of the Regulations;
(iii) if the Carrying Value of an asset has been determined pursuant
to clause (i) or (ii) above, such Carrying Value shall thereafter be
adjusted in the same manner, as would the asset's adjusted basis for
federal income tax purposes.
"CERTIFICATE OF FORMATION" shall mean the Certificate of Formation of the
Company filed with the Secretary of State of Delaware on March 5, 2003.
"CERTIFICATE OF MEMBERSHIP INTERESTS" shall have the meaning set forth in
Section 3.1.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" means Jean Coutu Group Holdings (USA), LLC, a Delaware limited
liability company.
"EVENT OF DISSOLUTION" shall have the meaning set forth in Section 11.1.
"MEMBERSHIP INTEREST" shall have the meaning set forth in Section 9.1.
"MANAGER" shall have the meaning set forth in Section 6.1.
"NET PROFITS" and "NET LOSSES" shall mean the taxable income or loss, as
the case may be, for a period (or from a transaction) as determined in
accordance with Section 703(a) of the Code (for this purpose, all items of
income, gain, loss or deduction required to be separately stated pursuant to
Section 703(a)(l) of the Code shall be included in taxable income or loss)
computed with the following adjustments:
(iv) items of gain, loss, and deduction shall be computed based upon
the Carrying Values of the Company's assets rather than upon the assets'
adjusted bases for federal income tax purposes;
(v) the amount of any adjustments to the Carrying Values of any
assets of the Company pursuant to Code Section 743 shall not be taken into
account; and
(vi) any expenditure of the Company described in Section
705(a)(2)(B) of the Code (including any expenditures treated as being so
described pursuant to Treasury Regulations under Section 704(b) of the
Code) shall be treated as a deductible expense.
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"PERSON" shall mean any natural person, company, government, political
subdivision, agency, instrumentality of a government, body corporate,
association, partnership, limited liability company, firm, joint venture, trust
or other entity recognized at law. When two or more "PERSONS" act as a
partnership, limited partnership, syndicate or other group for the purpose of
acquiring, holding or disposing of securities of an issuer, such syndicate or
group shall be deemed a "PERSON" for purposes of this definition.
"REGULATIONS" means the Treasury Regulations promulgated under the Code, as
from time-to-time are in effect.
"MEMBERS" shall mean the Persons listed on SCHEDULE A hereto, as amended
from time-to-time, granted a Membership Interest in the Company upon such terms
and conditions as provided in this Agreement and under the Act.
"TRANSFER" shall mean: (a) any sale, assignment or transfer of any
Membership Interest, or any economic or voting rights associated with any
Membership Interest; (b) any sale, assignment or transfer of an economic
interest and/or a voting interest in an entity that, directly or indirectly,
holds any Membership Interest; (c) any sale, assignment or transfer of any
securities convertible into or exchangeable for any Membership Interest; (d) any
other direct or indirect, voluntary or involuntary, sale, assignment or transfer
of a Membership Interest or any interest therein.
ARTICLE II
NAME, OFFICE AND FORMATION OF THE COMPANY
SECTION 2.1 NAME. The name of the Company shall be Jean Coutu Group Holdings
(USA), LLC.
SECTION 2.2 REGISTERED OFFICE AND AGENT. The registered office and agent of
the Company are as set forth in the Certificate of Formation, as it may be
amended from time to time.
SECTION 2.3 PRINCIPAL PLACE OF BUSINESS. The Company's principal place of
business, and the place where its books and records shall be kept, shall be 50
Service Avenue, Warwick, RI 02886 or such other place as may from time-to-time
be determined by the Members. The records of the Company will be available for
inspection and copying by the Members at such office to the extent required
under the Act during regular business hours.
SECTION 2.4 PURPOSE AND POWERS. The purpose of the Company is to hold a
beneficial interest in JCG Holdings (USA), Inc. and, in general, to have and
exercise all powers and privileges now or hereinafter granted to a limited
liability company under the provisions of the Act.
SECTION 2.5 TERM. The term of the Company shall commence as of the date the
Certificate of Formation is duly filed, and shall continue until the Company is
dissolved in accordance with this Agreement or pursuant to the Act.
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SECTION 2.6 CERTIFICATE OF FORMATION. The Certificate of Formation was
previously filed with the Secretary of State of Delaware, and agrees to, from
time-to-time, take such actions (including publication or periodic filings of
any certificate) as may be necessary for the formation or continuation of the
Company as a limited liability company under the provisions of the Act and the
terms of this Agreement.
ARTICLE III
MEMBERS
SECTION 3.1 CERTIFICATION OF MEMBERSHIP INTERESTS. The Company may issue to
each Member a certificate evidencing the Member's Membership Interests
("CERTIFICATE OF MEMBERSHIP INTERESTS").
SECTION 3.2 ANNUAL, REGULAR AND SPECIAL MEETINGS OF THE MEMBERS. The annual
meeting of the Members shall be held on such date and at such place and time as
the Members may designate (the "ANNUAL MEMBER'S MEETING"). If the Annual
Member's Meeting is for any reason not held on the date determined in accordance
with this Section, a special meeting in lieu of the Annual Member's Meeting may
be held with the full force and effect of such Annual Member's Meeting.
SECTION 3.3 NOTICE FOR MEETING OF MEMBERS. Except as may otherwise be
required by law, notice of any annual, regular or special meeting of the Members
shall be given by the Company to the Members by (a) hand-delivery, (b) delivery
to the Member's address on file with the Company, (c) first-class mail,
telecopier, or an internationally recognized overnight delivery service to such
address, or (d) other reasonable means of communication, such that, in any
event, the Members shall be in receipt of such notice in writing not less than
ten (10) days nor more than sixty (60) days prior to the date of such meeting.
Each notice shall state the date, time and place of the meeting, and shall
contain a description of the purpose(s) for which the meeting is called.
SECTION 3.4 WAIVER OF NOTICE. Whenever any written notice is required to be
given under this Article III, a waiver of notice signed, either before or after
the action for which notice is required, shall have the effect of written
notice. Attendance at any meeting shall also constitute a waiver of notice
unless an objection to the lack of notice is made at the beginning of the
meeting.
SECTION 3.5 MEMBERSHIP QUORUM AND VOTING. The presence of the Members shall
constitute a quorum at all meetings of the Members. The Members shall have one
(1) vote on each matter presented for action at a meeting of the Members. Except
as otherwise provided in this Agreement, when a quorum is present, any matter
shall be deemed to be approved by the Members if the Members votes in favor
thereof.
SECTION 3.6 ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the Members may be taken without a meeting if the Members consents in
writing to such action, and if such written consent is filed with the records of
the Company. Such consent shall be treated for all purposes as a vote at a
meeting.
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SECTION 3.7 LIMITED LIABILITY OF MEMBERS. The Members shall not, nor shall
any officer, director, employee or agent of the Members be, liable for any
debts, liabilities or obligations of the Company, The Members shall be
responsible:
(a) for the making of any contribution to the capital of the Company
required to be made by such Member pursuant to the terms of this Agreement; and
(b) for the amount of any distribution made to such Member that must be
returned to the Company pursuant to the Act.
ARTICLE IV
CAPITALIZATION
SECTION 4.1 CAPITAL CONTRIBUTIONS. The initial capital contribution of the
Members shall be as set forth opposite the Member's name on SCHEDULE B annexed
hereto. Except as otherwise provided herein, the Members shall not be entitled
to a return of its capital contributions to the Company.
SECTION 4.2 CAPITAL ACCOUNTS.
(a) The Company shall establish and maintain a capital account for the
Members (a "CAPITAL ACCOUNT) in accordance with the Code and the Regulations.
(b) The Members shall not be obligated to restore any deficit in its
Capital Account upon dissolution or liquidation.
(c) Upon transfer of any Capital Account, the Capital Account of the
transferee shall be adjusted to reflect the amount of the transferor's Capital
Account (or the applicable percentage interest thereof in the case of a partial
transfer) and the transferor's Capital Account shall be adjusted accordingly.
(d) If distributions under this Agreement are insufficient to return to
the Members the full amount of such Member's capital contributions to the
Company, such Member shall have no recourse against the Company for the return
of such capital contributions.
SECTION 4.3 RETURN OF CAPITAL AND WAIVER OF PARTITION. The Members have no
right to demand or receive from the Company any return of capital contributions
made pursuant to this Agreement, except with respect to distributions in
accordance with and during the term of this Agreement or upon dissolution of the
Company. The Members have no right to demand and receive any distribution from
the Company in any form other than cash.
SECTION 4.4 THIRD PARTY LOANS. The Company may, subject to Section 6.2,
borrow from third party lenders such amounts as the Board of Managers determines
is necessary, either for working capital or capital expenditures, on such terms
and conditions as the Board of Managers considers reasonable. The Board of
Managers may grant mortgages, security interests or other liens upon
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the assets of the Company as may be required by such third party lender to
secure any such borrowing.
SECTION 4.5 MEMBER LOANS. The Company may, subject to Section 6.2, borrow
from the Members or Affiliates of the Members such amounts as the Board of
Managers determines is necessary, either for working capital or capital
expenditures, on such terms and conditions as the Board of Managers considers
reasonable. The Board of Managers may grant mortgages, security interests or
other liens upon the assets of the Company as may be required by the Members or
Affiliate of the Members to secure any such borrowing. The Members shall not be
required to make any such loan.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
SECTION 5.1 ALLOCATION OF NET PROFITS AND NET LOSSES.
(a) ALLOCATIONS OF NET PROFITS AND LOSSES. Except as provided in Section
5.2 and Article XII hereof, all Company Net Profits and Net Losses shall be
allocated to the Members in accordance with the provisions of this Section 5.1.
(b) ALLOCATION OF NET LOSSES. Net Losses of the Company available for
allocation shall be allocated to the Members in proportion to their respective
ownership of Membership Interests.
(c) ALLOCATION OF NET PROFITS. Net Profits of the Company available for
allocation shall be allocated to the Members.
SECTION 5.2 DISTRIBUTIONS. Available Cash of the Company available for
distribution, or a portion thereof, shall be distributed to the Members, and to
no other person without the prior written approval of the Members or its
designated affiliate, as authorized and directed by the Board of Managers in
accordance with the provisions of this Agreement; provided, however, that,
subject to any restrictions and limitations in any credit agreement with third
party lenders, if any, the Board of Managers shall, annually, authorize and
direct the distribution of a portion of the Available Cash of the Company to the
Members in an amount necessary for the payment of tax liabilities, both federal
and state, if any, arising from the Members holding Membership Interests in the
Company.
ARTICLE VI
MANAGEMENT
SECTION 6.1 BOARD OF MANAGERS. The overall management and control of the
business and affairs of the Company shall be vested in a Board of Managers (the
"BOARD OF MANAGERS"). The initial Board of Managers shall consist of one (1)
voting Manager (the "MANAGER"). The Members may increase or decrease the number
of Managers from time to time.
SECTION 6.2 POWERS OF BOARD OF MANAGERS. All management and other
responsibilities not specifically reserved to the Members in this Agreement
shall be vested in the Board of Managers, and the Members shall have no voting
rights except as specifically provided in this
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Agreement or as required by the Act. Each Manager shall devote such time to the
affairs of the Company as is reasonably necessary for the performance of his/her
duties hereunder. The Board of Managers shall have the right and power to
manage, operate and control the Company and to do all things necessary or
appropriate in furtherance thereof. Notwithstanding any provision of this
Agreement to the contrary, the Board of Managers shall not authorize or direct
any of the following actions without the prior written approval of the Members:
(a) authorize or approve the Company's establishment of any subsidiaries,
affiliates or other related companies, or any joint venture arrangements;
(b) authorize or approve any merger, consolidation, reorganization, or
sale or transfer of all or substantially all of the assets of the Company;
(c) authorize or approve any plan of dissolution of the Company, any
liquidating distribution of the Company's assets or other action related to the
dissolution or liquidation of the Company;
(d) authorize or approve any voluntary declaration of bankruptcy of the
Company or any consent by the Company to any involuntary bankruptcy filed
against the Company;
(e) amend, repeal, revise or adopt changes to the Certificate of Formation
or Limited Liability Company Agreement of the Company;
(f) authorize or approve any third party loans, Member loans, or other
borrowings, or grant any liens upon or security interests in any assets of the
Company with respect thereto or otherwise;
(g) authorize or approve the acquisition by the Company of the stock or
assets of any other business or entity; or
(h) increase or decrease the number of Managers.
SECTION 6.3 ELECTION AND TERM OF MANAGERS. The initial Manager shall be
Michel Coutu, and he shall serve until the first Annual Member's Meeting and
until his successor is duly elected and qualified. The first Board of Managers
shall be elected at the first Annual Member's Meeting. Each Manager elected at
the first Annual Member's Meeting shall serve for a term of one (1) year,
expiring when his/her successor is duly elected and qualified at the next
applicable Annual Member's Meeting. Nothing herein shall be construed to prevent
any of the following: (i) the election of a Manager to succeed himself/herself;
(ii) the election of a Manager for the remainder of an unexpired term of another
Manager; or (iii) an increase or decrease in the number of Managers.
SECTION 6.4 ANNUAL, REGULAR AND SPECIAL MEETINGS OF MANAGERS. The annual
meeting of the Board of Managers shall be held immediately following the Annual
Member's Meeting (the "ANNUAL MANAGER'S MEETING"). If the Annual Manager's
Meeting is for any reason not held on the date determined in accordance with
this Section, a special meeting in lieu of the Annual Manager's Meeting may be
held with the full force and effect of such Annual Manager's Meeting. Regular
meetings of the Board of Managers shall be held on such date and at such
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place and time as designated by the Board of Managers. Special meetings of the
Board of Managers may be called by the Members at any time.
SECTION 6.5 NOTICE FOR MEETING OF MANAGERS. Except as may otherwise be
required by law, notice of any annual, regular or special meeting of the Board
of Managers shall be given to a Manager by (a) hand-delivery, (b) delivery to
the Manager's address on file with the Company, (c) first-class mail or
telecopier to such address, or (d) other reasonable means of communication. Each
notice shall state the date, time and place of the meeting.
SECTION 6.6 WAIVER OF NOTICE. Whenever any written notice is required to be
given under this Article VI, a waiver of notice signed, either before or after
the action for which notice is required, shall have the effect of written
notice. Attendance at any meeting shall also constitute a waiver of notice
unless an objection to the lack of notice is made at the beginning of the
meeting.
SECTION 6.7 BOARD OF MANAGERS QUORUM AND VOTING. The presence in person of at
least fifty percent (50%) of the Managers shall constitute a quorum at all
meetings of the Board of Managers. If less than a quorum is present, any meeting
of the Board of Managers may be adjourned to a subsequent date or until a quorum
exists, without further notice, and at such adjourned meeting any business may
be transacted which might have been transacted at the original meeting. Each
Manager shall have one (1) vote on each matter presented for action at a meeting
of the Board of Managers. Except as otherwise provided in this Agreement, when a
quorum is present, any matter shall be deemed to be approved by the Board of
Managers if more than fifty percent (50%) of the Managers present at the
applicable meeting thereof vote in favor of such matter.
SECTION 6.8 ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the Board of Managers may be taken without a meeting if all those
entitled to vote thereon consent in writing to such action, and if such written
consents are filed with the records of the Company. Such consents shall be
treated for all purposes as a vote at a meeting.
SECTION 6.9 RESIGNATION OF MANAGERS. A Manager may resign at any time by
giving written notice of such resignation to the Members and the Board of
Managers. Such resignation shall be effective at the time specified in such
notice, or, if no time is specified, upon receipt of such notice by the Members
or earlier at the discretion of the Members. If the resignation is effective at
a future time, a successor may be elected before such time to take office when
the resignation becomes effective. Resignation as a Manager of the Company shall
also constitute resignation as an officer and employee of the Company.
SECTION 6.10 VACANCIES. Any vacancy among the Managers shall be filled by the
Members. Any Manager appointed to fill a vacancy shall: (a) meet the then
current conditions of eligibility to serve as Manager set forth in this
Agreement; and (b) serve until the expiration of the term of the vacancy he/she
was elected to fill. The Board shall have and may exercise all of its powers
notwithstanding the existence of one or more vacancies among the Managers.
SECTION 6.11 REMOVAL. Any Manager may be removed for any reason at any time by
the Members after written notice of such removal is given to the applicable
Manager. In any such event, the Members shall give written notice to the Board
of Managers of the name of the
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Manager so removed and the effective date of such removal. Removal as a Manager
of the Company shall also constitute removal as an officer and employee of the
Company. Election of a Manager shall not of itself create any contract rights.
SECTION 6.12 COMPENSATION. Each Manager may be paid compensation for the
performance of his/her duties as a Manager of the Company as determined by the
Members.
SECTION 6.13 OFFICERS. The Company shall have such officers as may be
appointed, from time to time, by the Board of Managers; provided, however, that
the Board of Managers shall appoint a President, a Secretary, and a Treasurer of
the Company to have such duties as the Board of Managers shall determine.
ARTICLE VII
LIMITATION ON LIABILITY
No current or former Manager of the Company shall be personally liable to
the Company or the Members for monetary damages for breach of fiduciary duty as
a Manager of the Company notwithstanding any provision of law imposing such
liability; provided, however, that this provision shall not eliminate liability
of a Manager: (i) for any breach of the Manager's duty of loyalty to the Company
or the Members; (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; or (iii) for any
transaction from which the Manager derived an improper personal benefit. No
amendment or repeal of this paragraph shall adversely affect any of the rights
or protection afforded to a Manager of the Company for or with respect to any
acts or omissions of such Manager occurring prior to such amendment or repeal.
ARTICLE VIII
ADMINISTRATIVE MATTERS
SECTION 8.1 BOOKS OF ACCOUNT. At all times the Company shall maintain or
cause to be maintained true and proper books, records, reports and accounts in
accordance with generally accepted accounting principles, consistently applied,
in which shall be entered fully and accurately all transactions of the Company.
The Company shall keep vouchers, statements, receipted bills and invoices and
all other records in connection with the Company's business.
SECTION 8.2 REPORTS. The Company shall provide the Members with such reports
as may be reasonably requested and required to keep such Member advised of the
Company's current and projected operations and financial condition.
SECTION 8.3 TAX MATTERS HANDLED BY THE MEMBERS. The Members shall have
exclusive authority to negotiate with, to conclude agreements with, or to refuse
to agree with federal, state, local and foreign taxing authorities as to the
taxable income of the Company for any taxable period. The Members may also make
such elections, including, without limitation, an election under Section 754 of
the Code, as the Members may determine.
SECTION 8.4 FISCAL YEAR. The fiscal year of the Company shall end on the last
Saturday of May in each year.
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ARTICLE IX
TRANSFER OF MEMBERSHIP INTEREST BY MEMBERS
SECTION 9.1 TRANSFER OF MEMBERSHIP INTEREST. The Members may Transfer any
part or all of its rights and interest (including, but not limited to, its
Capital Account) in the Company (each a "MEMBERSHIP INTEREST") now owned or
hereafter acquired to any Person, and the transferee of such Membership Interest
shall become a Member of the Company; provided, however, that any Person that is
a transferee of a Membership Interest as a result of an assignment thereof shall
only become a Member of the Company upon the written approval of the Members.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 INDEMNIFICATION BY COMPANY. The Company shall indemnify, defend
and hold the Members, and each Manager, officer, employee and agent of the
Company harmless to the fullest extent permitted by law.
SECTION 10.2 RIGHT NOT EXCLUSIVE. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article X shall not be exclusive of any other
right that any person may have or hereafter acquire under any statute, provision
of the Certificate of Formation, provision of this Agreement, vote of the
Members or otherwise.
SECTION 10.3 INSURANCE. The Company may maintain insurance, at its expense, to
protect itself, the Members, or any Manager, officer, employee or agent of the
Company against any expense, liability or loss, whether or not the Company would
have the power to indemnify such Person against such expense, liability or loss
by law.
SECTION 10.4 AMENDMENT. Any amendment, repeal or modification of any provision
of this Article X shall not adversely affect any right or protection of the
Members, or any Manager, employee or agent of the Company existing at the time
of such amendment, repeal or modification.
ARTICLE XI
DISSOLUTION
SECTION 11.1 EVENTS OF DISSOLUTION. Notwithstanding any provision of the Act
to the contrary, the Company shall only be dissolved within sixty (60) days
after the occurrence of any of the following events (each an "Event of
Dissolution"), unless within said sixty (60) day period the Members agrees in
writing to continue the Company:
(a) the written agreement to dissolve the Company of the Members;
(b) when the Company is declared bankrupt;
(c) the sale or other disposition of all or substantially all the assets
of the Company; or
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(d) the entry of a decree of judicial dissolution of the Company.
SECTION 11.2 WINDING UP. Upon the happening of an Event of Dissolution, the
Company shall not conduct business or engage in any activity not necessary or
appropriate to winding-up its business and liquidating, and shall proceed
promptly to wind up its affairs in an orderly manner, to liquidate its assets,
to satisfy the claims of its creditors, and to distribute its remaining assets
to the Members. The Members shall be responsible for supervising the winding-up
and liquidation of the Company and shall dispose of the assets of the Company as
promptly as is consistent with obtaining fair value therefore. The proceeds of
the disposition of the assets of the Company shall be applied in the following
order of priority:
(a) First, to the payment, in order of priority, of all Company debts to
creditors other than the Members;
(b) Next, to the payment, in the order of priority, and, thereafter, pro
rata, of the debts of the Company owed to the Members;
(c) Next, to the Members in accordance with the balance in its Capital
Account; and
(d) Any balance to the Members.
SECTION 11.3 NOTICE OF DISSOLUTION. Within thirty (30) days of the happening
of an Event of Dissolution, the Company shall give written notice thereof to the
Members, to all creditors of the Company, to the banks and other financial
institutions with which the Company does business, and to all other parties with
whom the Company conducts business, and shall publish notice of dissolution in
accordance with the provisions of the Act.
ARTICLE XII
SALE OF ASSETS
Upon the sale or other disposition of all or substantially all of the
Company's assets the Net Profits arising thereof shall be distributed in
accordance with the terms of Section 5.1 of this Agreement, and the proceeds
thereof shall be distributed in accordance with the terms of Section 11.2 of
this Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 AMENDMENT. This Agreement may be amended by the Members by
written action.
SECTION 13.2 WAIVER. Any waiver of any of the terms hereof shall be in
writing, shall be effective only for the instance for which it is given and
shall not constitute a waiver of a subsequent occurrence or of any other
provision hereof.
SECTION 13.3 NOTICES. Except as otherwise set forth herein, all notices,
requests, demands and other communications made with respect to this Agreement
or any other agreements executed in connection herewith shall be in writing, and
personally delivered, sent by registered or certified
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mail (postage prepaid), by telecopier or by prepaid internationally recognized
overnight delivery service, and shall be deemed to be effective on the day that
such writing is delivered or, if given by registered or certified mail, ten (10)
days after being deposited in the mails, postage prepaid, in accordance with
this Section 13.3. All such notices shall be addressed as follows:
if to the Company:
JCG Holdings (USA), LLC
Attn: Michel Coutu
50 Service Avenue
Warwick, RI 02886
Facsimile: (401)825-3997
if to the Members, at the address of such member set forth in SCHEDULE A hereto
or to such other address as may be specified in a notice given to the other
parties hereto in accordance with this Section 13.3.
SECTION 13.4 BINDING AGREEMENT. This Agreement shall be binding upon the
executors, administrators, estates, heirs and legal successors of the parties
hereto.
SECTION 13.5 GOVERNING LAW. This Agreement and all questions arising hereunder
shall be resolved in accordance with the laws of The State of Delaware, except
for any choice of law provisions of Delaware law that would result in the
application of the substantive laws of another jurisdiction.
SECTION 13.6 SEVERABILITY. If one or more provisions of this Agreement is held
or found to be invalid, illegal or unenforceable in any respect, the
provision(s) shall be given effect to the extent permitted by law, and the
invalidity, illegality or unenforceability thereof shall not affect the validity
or enforceability of the remaining provisions of this Agreement.
SECTION 13.7 COUNTERPARTS. This Agreement may be executed in several
counterparts, and all counterparts so executed shall constitute one agreement,
binding on all the parties hereto, notwithstanding that all the parties hereto
are not signatory to the original or the same counterpart.
SECTION 13.8 ENTIRE AGREEMENT. This Agreement is intended by the Members to
constitute the "limited liability company agreement" of the Company within the
meaning of the Act. This Agreement contains the entire understanding of the
Members with respect to the subject matter hereof.
SECTION 13.9 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
WITNESS THE JEAN COUTU GROUP (PJC) USA, INC.
By: /s/ DEBRA LEVIN By: /s/ MICHEL COUTU
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Name: Name: Michel Coutu
Its: President
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SCHEDULE A
<Table>
<Caption>
MEMBER ADDRESS
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The Jean Coutu Group (PJC) USA, Inc. 50 Service Avenue
Warwick, RI 02886
</Table>
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SCHEDULE B
<Table>
<Caption>
MEMBER INITIAL CAPITAL CONTRIBUTION
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The Jean Coutu Group (PJC) $ 1.00
USA, Inc.
</Table>