Exhibit 3.40
OPERATING AGREEMENT
FOR
GLOBAL MAILBOX EXPRESS, LLC,
A FLORIDA LIMITED LIABILITY COMPANY
This Operating Agreement (this "Agreement"), is made as of July 1,
1996, by and among the parties listed an The signature pages hereof
(collectively referred to as the "Members" or, individually as a "Member"), with
reference to the following facts:
A. The Members have filed Articles of Organization (the "Articles") for
Global MailBox Express, LLC (the "Company"), a limited liability company under
the laws of the State of Florida, with the Florida Secretary of State,
B The Members desire to adopt and approve an operating agreement for
the Company under the Florida Limited Liability Company Act (the "Act").
NOW, THEREFORE, the Members by this Agreement set forth the operating
agreement for the Company upon the terms and subject to the conditions of this
Agreement.
ARTICLE I
ORGANIZATIONAL MATTERS
1.1 Name. The name of the Company shall be "Global MailBox Express, LLC," The
Company may conduct business under that name or any other name approved by the
Members.
1.2 Term. The term of the Company commenced as of the date of the filing of the
Articles and unless sooner terminated under Section 9.1, shall terminate not
later than July 1, 2196, unless earlier dissolved as provided for in the
Articles of Organization.
1.3 Office and Agent. The Company shall continuously maintain an office and
registered agent in the State of Florida as required by the Act. The principal
office of the Company shall be at 4405 N.W. 73rd Avenue, Miami, Florida,
33166-6400, or such location as the Members may determine. The registered agent
shall be as stated in the Articles or as otherwise determined by the Members.
1.4 Business of the Company. Notwithstanding the purpose of The Company which is
described in the Articles, the Company shall not engage in any business other
than the following without the consent of all of the Members:
(a) the business of international mail and package forwarding; and
(b) such other activities directly related to the foregoing
business as may be necessary or advisable in the reasonable opinion of
the Members to further such business.
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ARTICLE 11
CAPITAL CONTRIBUTIONS
2.1 Capital Contributions. Each Member shall make an initial cash
contribution to the capital of the Company in the amount shown opposite the
Member's name on Exhibit A attached hereto, Except as provided in this
Agreement, no Member may withdraw it or its capital contribution.
2.2 Capital Accounts. The Company shall establish an individual capital
account ("Capital Account") for each Member. The Company shall determine and
maintain each Capital Account in accordance with Treasury Regulations Section
1,704-1(b)(2)(iv), its successor, or other relevant law. Upon a valid transfer
of a Member's interest in the Company ("Membership Interest") in accordance with
Article V1, such Member's Capital Account shall carry over to the new owner.
2.3 No Interest. The Company shall not pay any interest on capital
contributions.
2.4 Additional Capital Contributions. The Members shall contribute
additional capital to the Company in such amounts and at such times as Members
holding a Majority Interest shall determine that additional capital is required.
All such capital calls shall be reasonable and reasonably related to the needs
of the Company. The Members shall contribute such additional capital in
proportion to their respective Percentage Interests. Each Member shall have
fifteen (15) days from the date such notice is given to contribute its share of
the additional capital to the Company. Each Member shall receive a credit to its
Capital Account in the amount of any additional capital which he or she
contributes to the Company.
2.5 Failure to Make Contributions. If a Member does not timely
contribute capital when required, that Member shall be in default under this
Agreement. In such event, the non-. defaulting Members shall send the defaulting
Member written notice of such default, giving the defaulting Member thirty (30)
days from the date such notice is given to contribute the entire amount of it or
its required capital contribution. If the defaulting Member does not contribute
its required capital to the Company within said thirty (30) day period, those
non-defaulting Members who hold a majority of the Percentage Interests held by
all non-defaulting Members may elect any one or more of the following remedies:
A. The Percentage Interests shall be adjusted, in which even each
Member's Percentage Interest shall be a fraction, the numerator of which
represents the aggregate amount of such Member's capital contributions and the
denominator of which represents the sum of all Member' capital contributions.
B - The non-defaulting Members who hold a majority of the Percentage
Interests held by all non-defaulting Members may dissolve tile Company, in which
event the Company shall be
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wound-up, liquidated and terminated pursuant to Article X, and the event will
be treated as a Dissolution Event and Article VII will also apply,
C, The defaulting Members shall have no right to receive any
distributions from the Company, until the non-defaulting Members have first
received distributions in an amount equal to the additional capital contributed
by each non-defaulting Member to the Company plus a cumulative, non-compounded
return thereon at the rate of ten percent (10%) per annum,
D. The defaulting Member shall lose its voting and approval rights
under the Act, the Articles and this Agreement until such time As the
defaulting Member cures the default.
"Percentage Interest" shall mean the percentage of a Member set forth
opposite the name of such Member under the column "Member's Percentage
Interest" in Exhibit A hereto, as such percentage may be adjusted from time to
time pursuant to the terms of this Agreement. "Majority Interests" shall mean
those Members who hold a majority of the Percentage Interests which all Members
hold.
Each Member acknowledges and agrees that (i) a default by any Member
in making a required capital contribution will result in the Company and the
non-defaulting Members incurring certain costs and other damages in an amount
that would be extremely difficult or impractical to ascertain and (ii) the
remedies described in this Section 2.5 bear a reasonable relationship to the
damages which the Members estimate may be suffered by the Company and the
non-defaulting Members by reason of the failure of a defaulting Member be
suffered by the Company and the non-defaulting Members by reason of the failure
of a defaulting Member.
ARTICLE III
MEMBERS
3 1 Limited Liability. Except as expressly set forth in this Agreement
or required by law, no Member shall be individually or personally liable for any
debt, obligation, or liability of the Company, whether that liability or
obligation arises in contract, tort, or otherwise.
3.2 Admissions of Additional Members. Additional Members may be
admitted only with the approval of all Members. Additional Members will
participate in "Net Profits", "Net Losses" (as such Terms are defined in Section
5.1), and distributions of the Company on such terms as are determined by the
Members. Exhibit A shall be amended upon the admission of an Additional Member
to set forth such Member's name and capital contribution,
3.3 Payments to Members. Except as specified in this Agreement or
pursuant to a transaction permitted by Section 4.6, no Member or person or
entity controlled by, controlling or under common control with the Member (each
such person or entity is defined as an "Affiliate"), is entitled to remuneration
for services rendered or goods provided to the Company. In addition, the Company
shall not reimburse the Members and their Affiliates for organization expenses
incurred to form the
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Company, prepare the Articles and this Agreement or pre-formation expenses.
ARTICLE IV
MANAGEMENT AND CONTROL OF THE COMPANY
4.1 Management and Powers. In entering into this Agreement it is the
intent of each Member to engage in the management of the Company; however, all
management and operational decisions will be made by approval of Members
holding Majority Interests, In addition, Members holding Majority Interests may
temporarily delegate any of such management and operational authority as such
Members deem appropriate.
4.2 Limitations on Power of Members. Notwithstanding any other
provision of this Agreement, no debt or liability may be contracted on behalf
of the Company without the approval of Members holding Majority Interests, but
Members holding Majority Interests may delegate any such contractual authority
as such Members deem appropriate. Additionally, no Member shall have authority
to cause the Company to engage in the following transactions without first
obtaining the approval of Members holding seventy five percent (75%) of the
Membership Interests:
(i) The sale, exchange or other disposition of all, or
substantially all, of the Company's assets occurring as part of a single
transaction or plan, or in multiple transactions over a 6 month period, except
in the orderly liquidation and winding up of the business of the Company upon
its duly authorized dissolution,
(ii) The merger of the Company with another limited liability
company or corporation, general partnership, limited partnership or other
entity (except that any act which would cause a Member to incur liability for
the obligations of the Company or its successor shall also require the consent
of such Member).
(iii) An alteration Of the authorized businesses of the
Company.
(iv) Any act which would make it impossible to carry on the
ordinary business of the Company.
(v) The confession of a judgement against the Company.
(vii) In addition, subject to Section 4.5, no Member may
engage in any activity detrimental to the success of the Company, nor may any
Member engage in any activity which is a conflict of interest with business
performed by Company.
4.3 Member Approval. No annual or regular meetings of the members are
required
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to be held, However, if such meetings are held, such meetings shall be noticed,
held and conducted pursuant to the Act. In any instance in which the approval
of the Members is required under this Agreement, such approval may be obtained
in any manner permitted by the Act. Unless otherwise provided in this
Agreement, approval of the Members shall mean the approval of Members who hold
a majority of the Membership Percentage Interests.
4.4 Devotion of Time, Each Member shall devote whatever time or efforts
it deems appropriate for the furtherance of the Company's business.
Members and their Affiliates may engage or invest in any activity, including
without limitation those that might be in direct or indirect competition with
the Company. Neither the Company nor any Member shall have any right, in or to
such other activities or to the income or proceeds derived therefrom. No Member
shall be obligated to present any investment opportunity to the Company, even if
the opportunity is of the character that, if presented to the Company, could be
taken by the Company. Each Member shall have the right to hold any investment
opportunity for its own account or to recommend such opportunity to persons
other than the Company. The Members acknowledge that certain Members and their
Affiliates own and/or manage other businesses, including businesses that may
compete with the Company and for the Members' time. Each Member hereby waives
any and all rights and claims which it may otherwise have against the other
Members and their Affiliates as a result of any of such activities.
Notwithstanding the foregoing, and unless waived in writing by Members holding
Majority Interests, SkyBox may not expand to serve any new markets or new
distribution channels for mail and package forwarding services unless and until
the Company shows six consecutive profitable months attributable to the Company
hub serving the market to which SkyBox would like to enter. The restrictions in
this paragraph do not, apply, however, to Latin America or the Caribbean.
In addition, during the term of the Membership of SkyBox in Company and for one
(1) year thereafter, SkyBox, agrees that for any current and future mail and
package forwarding business which SkyBox conducts independently of the Company,
the following terms shall apply:
a. SkyBox may not utilize retail outlets as a means of distribution which
could reasonably be determined to be competing with the Company and the
MBE Network;
b. The mail and packages forwarded by SkyBox must be delivered directly to
a home or place of business with the exception of occasional pick-ups
by clients of SkyBox from SkyBox offices; and
c. Any prices charged to customers of the Company shall be at least twenty
percent (20%) less than prices charged to SkyBox customers.
Manager has had discussions with certain co-marketing partners such as AT&T,
Diners
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Club and several airlines that may result in the establishing of a proprietary
brand name product for a co-marketing partner, which SkyBox would operate.
These agreements would not be considered Competitive to MBE or to the Company,
provided thc mail delivery is exclusively to customers' business premises or
home addresses and not to retail outlets and, provided further, that the
Company is given an option to participate where it is reasonable to do so.
Manager will use good faith efforts to include Company, Company's distribution
system and Company's services in any such co-marketing programs,
Company acknowledges that SkyBox has entered into agreements with
certain courier companies whose primary business is delivery of priority mail
and parcels to homes and businesses. These agreements provide for the
distribution of materials promoting SkyBox service in conjunction with their
delivery services to clients' homes and businesses. Company acknowledges that
such promotional materials may be distributed in the offices of these courier
companies SkyBox agrees to use its best efforts to prohibit such courier
companies or any SkyBox agent from marketing SkyBox services to any retail
outlets which could compete with MBE Centers in providing services similar to
those offered by the Company. A retail outlet is defined as any facility which
customers visit for the purpose of picking up mail or packages.
Any customers and customer lists of the Company belong solely to the Company
and those customers may not be solicited by or marketed to by any other entity,
including SkyBox, without the written approval of Members holding Majority
Interests.
4.6 Transactions between the Company and the Members. Notwithstanding
that it may constitute a conflict of interest, the Members and their Affiliates
may engage in any transaction with the Company so long as such transaction is
not expressly prohibited by this Agreement and so long as the terms and
conditions of such transaction, on an overall basis, are Fair and reasonable to
the Company and are at least as favorable to the Company as those that are
general available from persons capable of similarly performing them, as long as
the Members holding a majority of the Membership Interest approve the
transaction in writing.
4.7 Operations Information Developed or Used by Company. Any and all
systems and procedures developed for or used by Company will be owned by the
Company and are acknowledged by all Members to be Company assets. Such items
include, without limitation, any operations manuals, software, internal
operating procedures, and marketing materials.
ARTICLE V
ALLOCATIONS OF NET PROFITS AND NET LOSSES AND DISTRIBUTIONS
5.1 Allocations of Net Profit and Net Loss.
A. Net Loss. Net Loss shall bc allocated to the Members in
proportion to their Membership Percentage Interests.
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B. Net Profit. Net Profit shall be allocated to the Members in
Proportion to their Membership Percentage Interests.
5.2 Distribution of Assets by the Company. Subject to applicable law
and any limitations contained elsewhere in this Agreement, Members holding a
Majority Interests may elect from time to time to cause the Company to make
distributions. Distributions shall be made either to the Members in proportion
to their unreturned capital contributions until each Member has recovered its
capital contributions, or to the Members in proportion to their Membership
Interests, at the option of Company.
ARTICLE V1
TRANSFER AND ASSIGNMENT OF INTERESTS
6.1 Transfer and Assignment of Interests. No Member shall be entitled
to transfer, assign, convey, sell, encumber or in any way alienate all or any
part of its Membership Interest (collectively, "transfer") except with, the
prior approval of all Members, which approval may be given or withheld in the
sole discretion of the Members.
6.2 Substitution of Members. A transferee of a Membership Interest
shall have the right to become a substitute Member only if (i) consent of the
Members is given in accordance with Section 6.1, (ii) such substitute Member
executes an instrument satisfactory to the Members accepting and adopting the
terms and provisions of this Agreement, and (iii) such Substitute Member pays
any reasonable expenses in connection with its admission as a new Member. The
admission of a substitute Member shall not release the Member who assigned the
Membership Interest from any liability that such Member may have to the Company.
6.3
Transfers in Violation of this Agreement and transfers of Partial Membership
Interests. Upon a transfer in violation of this Article VI, the transferee shall
have no right to vote or participate in the management of the Company or to
exercise any rights of a Member. Such transferee shall only be entitled to
receive the share of the Company's Net Profits, Net Losses and distributions of
the Company's assets to which the transferor would otherwise be entitled.
Notwithstanding the immediately preceding sentences, if, in the determination of
the remaining Members, a transfer in violation of this Article VI would cause
the termination of the Company under the Code, in the. sole discretion of the
remaining; Members, the transfer shall be null and void.
ARTICLE VII
CONSEQUENCES OF DISSOLUTION EVENTS AND
TERMINATION OF MEMBERSHIP INTEREST
7.1 Dissolution Event. Upon the occurrence of the withdrawal,
resignation, bankruptcy or dissolution of any Member ("Dissolution Event"), the
Company, shall dissolve unless all of the remaining Members ("Remaining
Members") consent within ninety
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(90) days of the Dissolution Event to the continuation of the business of the
Company. If the Remaining Members so consent, the Company and/or the Remaining
Members shall have the right to purchase, and if such right is exercised, the
Member (or it or its legal representative) whose actions or conduct resulted in
the Dissolution Event ("Former Member") shall sell the Former Member's
Membership Interest ("Former Member's Interest") as provided in this Article
VII.
7.2 Withdrawal. Notwithstanding Section 7.1, upon, the withdrawal by a
Member such Member shall be treated as a Former Member, and, unless the Company
dissolves as a result of such withdrawal, the Company and/or the Remaining
Members shall have the right to purchase, and if such right is exercised, the
Former Member shall sell, the Former Member's Interest as provided in this
Article VII.
7.3 Purchase Price. The purchase price for the Former Member's Interest
shall be the fair market value of the Former Member's Interest as determined by
an appraisal of three appraisers selected as follows: one appraiser selected by
the Former Member, one appraiser selected by Remaining Members holding a
majority of the remaining Membership Interests, and a third appraiser jointly
selected by the first two appraisers. In the event that the three appraisers are
unable to unanimously agree on an appraisal, an agreement by any two appraisers
shall establish the purchase price of the Former Member's Interest. In the event
that no two appraisers agree, the Members shall begin the appraisal process once
again. The Company and the Former Member shall each pay one-half of the total
cost of the appraisal. Notwithstanding the foregoing, if the Dissolution Event
results from a breach of this Agreement by the Former Members, the purchase
price shall be reduced by an amount equal to the damages suffered by the Company
or the Remaining Members as a result of such breach.
ARTICLE VIII
ACCOUNTING, RECORDS, REPORTING BY MEMBERS
8.1 Books and Records, The books and records of the Company shall be
kept in accordance with the accounting methods followed for federal income tax
purposes. The Company shall maintain at its principal office in Florida, or at a
place designated by the Members, all of the following:
A A current list of the full name and last known business or residence
address of each Member, together with the capital contributions, capital account
and Membership Interest of each Member;
B A copy of the Articles and any and all amendments thereto together
with executed copies of any powers of attorney pursuant to which The Articles or
any amendments thereto have been executed;
C. Copies of the Company's federal, state, and local income tax or
information returns and reports, if any, for the six (6) most recent taxable
years;
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D. A copy of this Agreement and any and all amendments thereto together
with executed copies of any power of attorney pursuant to which this Agreement
or any amendments thereto have been executed;
E. Copies of the financial statements of the Company, if any, for the
six (6) most recent fiscal years; and
F. The Company's books and records as they relate to the internal
affairs of the Company for at least the current and past four (4) fiscal years.
8,2 Reports. The Company shall cause to be filed, in accordance with
the Act, all reports and documents required to be filed with any governmental
agency both foreign and domestic. The Company shall cause to be prepared at
least annually information concerning the Company's operations necessary for the
completion of the Member's federal and state income tax returns. The Company
shall send or cause to be sent to each Member within ninety (90) days after the
end of each taxable year (i) such information as is necessary to complete the
Members' federal and state income tax or information returns and (ii) a copy of
the Company's federal, state and local income tax or information returns for the
year.
8.3 Bank Accounts. The Members shall amintain the funds of the Company
in one or more, separate bank accounts in the name of the Company, and shall not
permit the funds of the Company to be commingled in any fashion with the funds
of any other person. Any Member, acting alone, is authorized to endorse checks,
drafts, and other evidences of indebtedness made payable to the order of the
Company, but only for the purpose of depositing into the Company's accounts. All
checks, drafts, and other instruments obligating the Company to pay money must
be signed on behalf of the Company by Members holding Majority Interests or as
delegated by such Members.
8.4 Tax Matters for the Company. MBE is designated, as "Tax Matters
Partner" (as defined in Code Section 6231, its successor or other relevant law),
to represent the Company (at the Company's expense) in connection with all
examination of the Company's affairs by tax authorities and to expend Company
funds for professional services and costs associated therewith.
ARTICLE IX
DISSOLUTION AND WINDING UP
9.1 Conditions of Dissolution, The Company shall dissolve upon the
occurrence of any of the following events:
A. Upon the happening of any event of dissolution specified in the
Articles;
B. Upon the entry of a decree of judicial dissolution pursuant to
Florida law;
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C. Upon the vote of Members holding at least fifty one (5 1%) percent
of the Membership Percentage Interests, however, dissolution pursuant to such
vote may not occur until after August 1, 1998;
D. The occurrence of a Dissolution Event and the failure of the
Remaining Members to consent in accordance with Section 7.1 to continue the
business of the Company within ninety (90) days after the occurrence of such
event, or
E. The sale of all or substantially all of the assets of Company.
In the event that Company is dissolved under the terms of Section 9.1.C., above,
the Members holding Majority Interests may consent within ninety (90) days of
the announcement of such dissolution to the continuation of the business of the
Company. In such case, the Members holding Majority Interests will purchase the
minority interests in the Company according to the formula set forth in Section
7.3.
9.2 Rights Upon Dissolution. SkyBox shall prepare and deposit with
Company, and shall keep current, copies of software and all applicable
operations manuals relevant to providing the services (Collectively the
"Operations Information"). Upon dissolution, the following terms apply:
a, All customers and the ownership of any and all
customer lists revert solely to Members holding
Majority Interests and may not be used by any other
Members or entities for any reason whatsoever without
the written consent of such Members holding Majority
Interests;
b The ownership of any software developed by the
Company and all rights to utilize software required
to conduct company business revert solely to Members
holding Majority Interests,
c. The ownership of all USPS "caller boxes" reverts
solely to Members holding Majority Interests,
d. Members holding Majority Interest shall have
unrestricted access to the Operations Information to
enable it to service the MBE Network;
e. Members holding Majority Interests shall have the
right but not the obligation to take over and operate
that part of Company's or SkyBox's operations serving
the MBE Network and Company, and SkyBox shall
cooperate fully with MBE to ensure that the portion
of the MBE Network which is contracting with the
Company receives the services uninterrupted pending
transition to the new provider of the Services;
f. Members holding Majority Interests are granted the
right but not the
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obligation to pick up packages for customers of the
MBE Network from the Company or SkyBox Hub locations
or to have Company or SkyBox deliver the packages to
a separate location designated byMBE for a period of
one year, and payments by MBE shall equal the
reasonable cost for such services: and
g. Company or SkyBox shall deliver mail and packages for
MBE Customers which are in transit at the time of
termination and MBE shall have the option to require
SkyBox to continue offering the Services to customers
of the MBE Network pursuant to the terms of this such
customer's agreements with Company for a reasonable
period of time, not to exceed 90 days.
9.3 Winding Up. Upon the dissolution of the Company, the Company's
remaining assets shall be disposed of and its affairs wound up. Members holding
Majority Interests are granted the right to purchase such remaining assets at
market value. The Company shall give written notice of the commencement of the
dissolution to all of its known creditors.
9.4 Order of Payment of Liabilities Upon Dissolution, After determining
that all the known debts and liabilities of the Company have been paid or
adequately provided for, the remaining assets shall be distributed to the
Members in accordance with their positive cpaital account balances, after taking
into account income and loss allocations for the Company's taxable year during
which liquidation occurs.
9 5 Limitations on Payment of Liabilities Upon Dissolution. Except as
otherwise specifically provided in this Agreement, each Memberr shall be
entitled to look only to the assets of the Company for the return of its
positive Capital Account balance and shall have no recourse for its Capital
Contribution and/or share of Net Profits against any other Member except as
provided in Article X.
9.6 Certificates, The Company shall file with the Florida Secretary of
State a Certificate of Dissolution upon the dissolution of the Company and
Certificate of Cancellation upon the completion of the winding up of the
Company's affairs.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification of Agents. The Company shall indemnify any Member
and may, upon vote of Members with majority Membership Interests, indemnify any
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 by reason of the
fact that he, she or it is or was a Member, officer, employee or other agent of
the Company or that, being or having been such a Member, officer, employee or
agent, he, she or it is or was serving at the request of the Company as a
manager,
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director, officer, employee or other agent of another limited liability company,
corporation, partnership, joint venture, or other enterprise (all such persons
being referred to hereinafter as an "agent"), to the fullest extent permitted by
applicable law in effect on the date hereof and to such greater extent as
applicable law may hereafter from time to time permit.
ARTICLE XI
MISCELLANEOUS
11.1 Complete Agreement. This Agreement and the Articles and the
parties' Management Agreement constitute the complete and exclusive statement of
agreement among the Members with respect to the subject matter herein and
therein and replace and supersede all prior written and oral agreements among
the Members. To the extent that any provision of the Articles conflict with any
provision of this Agreement, the Articles shall control.
11.2 Binding Effect. Subject to the provision of this Agreement
relating to transferability, this Agreement will be binding upon and inure to
the benefit of the Members, and their respective successors and assigns.
11.3 Interpretation. All pronouns shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the context in which they
are used may require. All headings herein are inserted only for convenience and
ease of reference and are not to be considered in the interpretation of any
provision of this Agreement. Numbered or lettered articles, sections and
subsections herein contained refer to articles, sections and subsections of this
Agreement unless otherwise expressly stated. In the event any claim is made by
any Member relating to any conflict, omission or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular
Member or its counsel,
11.4 Arbitration. Except as otherwise provided in this Agreement, any
controversy between the parties arising out of this Agreement which cannot be
resolved first by good faith negotiations and mediation shall be submitted to
the American Arbitration Association for arbitration in San Diego, California.
The costs of the arbitration, including any American Arbitration Association
administration fee, the arbitrator's fee, and costs for the use of facilities
during the hearings, shall be borne equally by the parties to the arbitration.
Attorneys' fees may be awarded to the prevailing or most prevailing party at the
discretion of the arbitrator. The arbitrator shall not have any power to alter,
amend, modify or change any of the terms of this Agreement nor to grant any
remedy which is either prohibited by the Terms of this Agreement, or not
available in a court of law. In addition, the arbitrator shall have no power or
authority to aware punitive, consequential or incidental damages.
11.5 Severability. If any provision of this Agreement or the
application of such provision to any person or circumstance shall be held
invalid, the remainder of this Agreement or the application of such provision to
persons or circumstances other than those to which it is held invalid shall not
be affected thereby.
11.6 Notices, Any notice to be given or to be served upon the Company
or any party hereto in connection with this Agreement must be in writing (which
may include facsimile) and will be deemed to have been given and received when
delivered to the address specified by the party to receive the notice. Such
notices will be given to a Member at the address specified in Exhibit A hereto.
Any party may, at any time by giving five (5) days' prior written notice to the
other Members, designate any other address in substitution of the foregoing
address to which such notice will be given.
11.7 Amendments. All amendments to this Agreement will be in writing
and signed by all of the Members.
11.8 Remedies Cumulative. The remedies under this Agreement are
cumulative and shall not exclude any other remedies to which Any person may be
lawfully entitled.
11 9 Confidential Information. SkyBox and MBE shall preserve in strict
confidence any confidential or proprietary information each obtains from the
other and agrees to refrain from disclosing such information to any other person
or business organizations. Subject to the terms of Section 9.2, upon termination
of this Operating Agreement, withdrawal of SkyBox or MBE from Company, or upon
dissolution of Company, SkyBox and MBE shall return all such information to the
other. SkyBox agrees that it will maintain the absolute confidentiality of any
customer list of MBE, MBE Master Licensees, and any list of MBE Centers,
disclosing same to its employees only to the extent necessary for compliance
with this Agreement to the extent necessary to operate Company. SkyBox. agrees
that it will not use any customer lists or such other confidential information
in any other business or in any manner not specifically authorized or approved
in writing by Company.
IN WITNESS WHEREOF, all of the Members of Global MailBox Express, LLC,
a Florida Limited Liability Company, have executed this Agreerment, effective as
of the date written above.
Member MAIL BOXES ETC. USA, INC.
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By: /s/ A.W. DeSio
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A.W. DeSio
Member SKYBOX SERVICES CORPORATION
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By: /s/ Albert Hernandez
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Albert Hernandez, President