Exhibit 3.5b
LIMITED LIABILITY COMPANY AGREEMENT
OF
BERNEY OFFICE SOLUTIONS, LLC
AN ALABAMA LIMITED LIABILITY COMPANY
LIMITED LIABILITY COMPANY AGREEMENT
OF
BERNEY OFFICE SOLUTIONS, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of Berney
Office Solutions, LLC (the "Company") is effective as of April 1, 2002.
1. Formation of Limited Liability Company. The Company has been
formed as a limited liability company pursuant to the provisions of the Alabama
Limited Liability Company Act, as it may be amended from time to time, and any
successor to such statute (the "Act"). The rights and obligations of Global
Imaging Systems, Inc., a Delaware corporation ("Global"), and the administration
and termination of the Company shall be governed by the Agreement and the Act.
The Agreement shall be considered the "Limited Liability Company Agreement" of
the Company within the meaning of the Act. To the extent this Agreement is
inconsistent in any respect with the Act, this Agreement shall control.
2. Members. Global is the sole Member of the Company (the "Member").
3. Purpose. The Company is formed for the object and purpose of, and
the nature of the business is, engaging in any lawful business or activity
permitted to be engaged in by a limited liability company pursuant to the Act
and engaging in any and all activities necessary, convenient, desirable or
incident to the foregoing.
4. Name. The name of the Company shall be Berney Office Solutions,
LLC.
5. Registered Agent and Principal Office. The registered office and
registered agent of the Company in the State of Alabama shall be initially at
The Corporate Company, 2000 Interstate Park Drive, Suite 204 Montgomery,
Alabama, 36109, and shall thereafter be as the managers may designate from time
to time. The Company may have such other offices as the managers may designate
from time to time. The principal business and mailing address of the Company
shall be 209 Gunn Road, Montgomery, Alabama 36117.
6. Term of Company. The Company commenced on the date its
Certificate of Formation first was properly filed with the Secretary of State of
the State of Alabama and shall continue in existence in perpetuity unless its
business and affairs are earlier wound up following dissolution at such time as
this Agreement may specify.
7. Management of Company.
(a) Managers. All decisions relating to the business, affairs, and
properties of the Company shall be made by the managers. The managers may
appoint a Chairman, a President, one or more Vice Presidents, a Secretary and
such other officers of the Company as the managers may deem necessary or
advisable to manage the day-to-day business affairs of the Company. The managers
shall serve at the pleasure of the Member. The managers and officers shall have
the authority to act on behalf of, bind, and execute and deliver documents in
the name
and on behalf of the Company. Such delegation of authority shall not cause the
Member to cease to be a Member.
(b) Number, Qualifications and Terms. The Company shall have at least
two managers, but the authorized number of managers may be increased by manager
resolution. Managers need not be residents of the State of Alabama. Each manager
shall hold office for the full term for which such manager is elected, which
term shall be specified in the vote or resolution of the Member or, if not so
specified and in each case, until such manager's successor shall have been duly
elected and qualified or until his or her earlier death or resignation or
removal in accordance with this Agreement.
(c) Initial Managers. The initial managers shall be as follows:
Thomas S. Johnson
Raymond Schilling
(d) Place of Meetings. Meetings of the managers of the Company,
regular or special, may be held either within or without the State of Alabama,
at whatever place is specified by the person or persons calling the meeting. In
the absence of a specific designation, the meetings shall be held at the
principal office of the Company.
(e) Regular Meetings of Managers. Regular meetings of the managers
shall be held at such place or places within or without the State of Alabama, at
such hour and on such day as may be fixed by resolution of the managers, without
further notice of such meetings. The time or place of holding regular meetings
of the managers may be changed by the Chairman or the President of the Company
by giving written notice thereof as provided in Section 7(g) hereof.
(f) Special Meetings of Managers. Special meetings of the managers
shall be held, whenever called by the President or any manager, at such place or
places within or without the State of Alabama as may be stated in the notice of
the meeting.
(g) Attendance at and Notice of Meetings. Written notice of the time
and place of, and general nature of the business to be transacted at, all
special meetings of the managers, and written notice of any change in the time
or place of holding the regular meetings of the managers, shall be given to each
manager personally or by mail or by telegraph, telecopier or similar
communication at least ten days before the day of the meeting; provided,
however, that notice of any meeting need not be given to any manager if waived
by him or her in writing, or if he or she shall be present at such meeting.
Participation in a meeting of the managers shall constitute presence in person
at such meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
(h) Quorum of and Action by Managers. Unless a greater number is
required by law, one manager shall constitute a quorum for the transaction of
business. Except as
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otherwise provided by law or in this Agreement, all questions shall be decided
by the vote cast by the manager.
(i) Manager Action Without a Meeting. Unless otherwise restricted by
this Agreement, any action required or permitted to be taken at a meeting of the
managers may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by the manager of the Company and filed with the
Secretary of the Company.
(j) Manager Telephone Meetings. Subject to the provisions required or
permitted by the Act for notice of meetings, unless otherwise restricted by this
Agreement, the managers may participate in and hold a meeting of such managers
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 7(j) shall constitute
presence in person at such meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
(k) Compensation of Managers. Managers shall not be entitled to
receive compensation for their services.
(l) Removal, Vacancies. The Member may remove any manager of the
Company at any time in its sole discretion. The Member shall appoint a
replacement manager to fill any vacancy.
(m) Liability of Managers. A manager shall not be liable under any
judgment, decree or order of a court, or in any other manner, for any debt,
obligation or liability of the Company by reason of his acting as a manager of
the Company. A manager of the Company shall not be personally liable to the
Company or the Member for monetary damages for breach of fiduciary duty as a
manager, except for liability for any acts or omissions that involve intentional
misconduct, fraud or a knowing violation of law or for a distribution in
violation of the Act as a result of the willful or grossly negligent act or
omission of the manager. If the laws of the State of Alabama are amended after
the date of this Agreement to authorize action further eliminating or limiting
the personal liability of managers, then the liability of a manager of the
Company, in addition to the limitation on personal liability provided herein,
shall be limited to the full extent permitted by the amended laws of the State
of Alabama. Any repeal or modification of this Section 7(m) by the Member shall
be prospective only, and shall not adversely affect any limitation on the
personal liability of a manager of the Company existing at the time of such
repeal or modification or thereafter arising as a result of acts or omissions
prior to the time of such repeal or modification.
(n) Outside Activities. This Agreement shall not preclude or limit,
in any respect, the right of the Member or the Managers (or any person
associated with the Managers) to engage or invest, directly or indirectly, in
any business activity or venture of any nature or description, including those
that may be the same as or similar to the Company's business and in direct
competition therewith, or to invest in the same business activity or venture as
those in which the Company has invested, and no Member or the Managers shall
have any obligation to offer any such business activity or venture to the
Company. Neither the Company nor the
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Member shall have any right, by virtue of this Agreement or the relationship
created hereunder, in such investments or to such other activities or ventures,
and such activities or ventures, even if the same are directly competitive with
the business of the Company, shall not be deemed wrongful or improper,
manifestly unreasonable or a breach of any duty imposed on the Member or the
Managers hereunder, the Act or other applicable law.
(o) Reimbursement of Managers. All direct costs and expenses
incurred by the Managers in managing and conducting the business and affairs of
the Company, including, without limitation, (i) all costs and expenses incurred
in organizing the Company and in conducting any business activities of the
Company, (ii) telephone and other office expenses, (iii) travel expenses and
(iv) expenses incurred in providing or obtaining such other professional,
technical, administrative services and advice as the Managers may deem necessary
or desirable, shall be paid or reimbursed by the Company as a Company expense.
8. Indemnification of Officers and Managers. The Company shall
indemnify each manager and officer of the Company to the full extent permitted
by law. The Company shall provide director and officer liability insurance for
each manager and officer of the Company to the extent deemed appropriate by the
Member or as otherwise required by any agreement to which the Company is a
party.
9. Capital Contributions. The Member shall contribute to the capital
of the Company the properties described in Exhibit A (the "Capital
Contributions"). At any time and from time to time, the Member may make, and the
Managers may request that the Member make, additional Capital Contributions
("Additional Contributions") to the capital of the Company. In no event shall
the Managers be obligated to call for Additional Contributions nor shall the
Member be required to make Additional Contributions.
10. Allocations of Profits and Losses. Except as may otherwise be
required by applicable U.S. Treasury regulations (including U.S. Treasury
regulations applicable to allocations attributable to Company indebtedness), all
profits and losses and all related items of income, gain, loss, deduction, and
credit of the Company shall be allocated, charged, or credited among the Members
in accordance with their respective membership interests.
11. Distributions. The Company may distribute funds to the Members at
such times and in such amounts as the Managers shall determine to be
appropriate. Any such distributions shall be made to each Member in accordance
with each such Member's membership interest at the time of the distribution with
no priority as to any Member.
12. Additional Members and Membership Interests. Additional persons
may be admitted to the Company as Members and membership interests may be
created and issued to such persons on such terms and conditions as the Member
shall determine and as shall be reflected in an appropriate amendment to this
Agreement that is approved by all the Members.
13. Liability of Member. No Member shall be liable for the debts,
liabilities, contracts or other obligations of the Company except to the extent
of any unpaid Capital Contributions such Member has agreed to make to the
Company and such Member's share of the assets (including undistributed revenues)
of the Company; and in all events, a Member shall be
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liable and obligated to make payments of its Capital Contributions only as and
when such payments are due in accordance with the terms of this Agreement. No
Member shall be required to make any loans to the Company. The Company shall
indemnify and hold harmless a Member in the event a Member becomes liable,
notwithstanding the preceding sentence, for any debt, liability, contract or
other obligation of the Company except to the extent expressly provided in the
first sentence of this Section 13.
14. No State-Law Partnership. The Company shall not be considered a
partnership (including, without limitation, a limited partnership) or joint
venture, and no Member shall be a partner or joint venturer of any other Member
for any purposes other than as the Managers may determine, and this Agreement
shall not be construed to suggest otherwise.
15. Title to Company Property. All assets and property owned by the
Company, whether real or personal, tangible or intangible, shall be deemed to be
owned by the Company as an entity, and no Member, individually, shall have any
ownership of such property. All the Company's assets and properties shall be
recorded as the property of the Company on its books and records.
16. Books and Records. The Managers shall maintain or cause the
Company to maintain books and records as required by, and in accordance with,
the Act, and such other books and records as the Member may reasonably request,
including specifically accounting books. Such books shall be kept at the
principal office of the Company and shall be maintained in accordance with the
terms of this Agreement. The fiscal year of the Company shall be April 1 to
March 31, and the Managers shall keep the accounting books of the Company on
such basis.
17. Bank Accounts. The Managers may cause one or more accounts to be
maintained in the name of the Company in a bank (or banks) or other financial
institutions such as stock brokerage firms, which accounts shall be used for the
payment of expenditures incurred by the Company and in which shall be deposited
any and all receipts of the Company. All amounts shall be and remain the
property of the Company and shall be received, held and disbursed by the
Managers for the purposes specified in this Agreement.
18. Dissolution and Winding Up. The Member shall have the right to
dissolve the Company. The Member may exercise this right by executing a written
instrument of dissolution that provides that the Company's business and affairs
shall be wound up.
19. Amendments. This Agreement may be amended or modified from time
to time only by a written instrument executed by the Member.
20. Governing Law. The validity and enforceability of this Agreement
shall be governed by and construed in accordance with the laws of the State of
Alabama without regard to otherwise governing principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
MEMBER
Global Imaging Systems, Inc.,
a Delaware corporation
By: /s/ Thomas S. Johnson
------------------------------------
Name: Thomas S. Johnson
Title: President and CEO
COMPANY
Berney Office Solutions, LLC,
an Alabama limited liability company
By: /s/ Raymond Schilling
------------------------------------
Name: Raymond Schilling
Title: Vice President and Secretary
EXHIBIT A
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PROPERTY CONTRIBUTED
The Member's shares of and basis in all or the outstanding shares of the
capital stock of Berney, Inc.
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