Exhibit 10.21
Execution Copy
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THL-MF INVESTORS, LLC
A Delaware Limited Liability Company
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of November 20, 2003
THE COMPANY INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT
BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT
EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND
COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH
HEREIN.
THE COMPANY INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT
ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE
SECURITYHOLDERS AGREEMENT, DATED AS OF THE DATE HEREOF, AS AMENDED OR MODIFIED
FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN INVESTORS, AND THE COMPANY
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH INTERESTS UNTIL SUCH TRANSFER
IS IN COMPLIANCE WITH SUCH SECURITYHOLDERS AGREEMENT. A COPY OF THE
SECURITYHOLDERS AGREEMENT SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER OF
SUCH INTERESTS UPON WRITTEN REQUEST AND WITHOUT CHARGE.
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS.....................................................1
SECTION 1.1 Definitions...................................................1
SECTION 1.2 Terms Generally..............................................10
ARTICLE II. GENERAL PROVISIONS.............................................11
SECTION 2.1 Formation....................................................11
SECTION 2.2 Name.........................................................11
SECTION 2.3 Term.........................................................11
SECTION 2.4 Purpose; Powers..............................................11
SECTION 2.5 Foreign Qualification........................................12
SECTION 2.6 Registered Office; Registered Agent; Principal Office;
Other Offices................................................12
SECTION 2.7 No State-Law Partnership.....................................12
SECTION 2.8 Amendment and Restatement....................................12
SECTION 2.9 Issuance of Additional Units.................................12
ARTICLE III. MANAGEMENT.....................................................13
SECTION 3.1 The Management Committee; Delegation of Authority
and Duties...................................................13
SECTION 3.2 Establishment of Management Committee........................14
SECTION 3.3 Management Committee Meetings................................15
SECTION 3.4 Chairman.....................................................16
SECTION 3.5 Approval or Ratification of Acts or Contracts................16
SECTION 3.6 Action by Written Consent or Telephone Conference............16
SECTION 3.7 Officers.....................................................16
SECTION 3.8 Management Matters...........................................18
SECTION 3.9 Securities in Holdings.......................................19
SECTION 3.10 Liability of Unitholders.....................................19
SECTION 3.11 Indemnification by the Company...............................20
ARTICLE IV. CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS..............21
SECTION 4.1 Capital Contributions........................................21
SECTION 4.2 Capital Accounts.............................................21
SECTION 4.3 Allocations of Net Income and Net Loss.......................21
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SECTION 4.4 Distributions................................................24
SECTION 4.5 Security Interest and Right of Set-Off.......................27
ARTICLE V. WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS;
ADMISSION OF NEW MEMBERS.......................................28
SECTION 5.1 Unitholder Withdrawal........................................28
SECTION 5.2 Dissolution..................................................28
SECTION 5.3 Transfer by Unitholders......................................29
SECTION 5.4 Admission or Substitution of New Members.....................29
SECTION 5.5 Compliance with Law..........................................30
ARTICLE VI. REPORTS TO MEMBERS; TAX MATTERS................................30
SECTION 6.1 Books of Account.............................................30
SECTION 6.2 Reports......................................................30
SECTION 6.3 Fiscal Year..................................................31
SECTION 6.4 Certain Tax Matters..........................................31
ARTICLE VII. MISCELLANEOUS..................................................33
SECTION 7.1 Schedules....................................................33
SECTION 7.2 Governing Law................................................33
SECTION 7.3 Successors and Assigns.......................................33
SECTION 7.4 Confidentiality..............................................33
SECTION 7.5 Amendments...................................................34
SECTION 7.6 Notices......................................................34
SECTION 7.7 Counterparts.................................................35
SECTION 7.8 Power of Attorney............................................35
SECTION 7.9 Entire Agreement.............................................35
SECTION 7.10 Section Titles...............................................35
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
THL-MF INVESTORS, LLC
A Delaware Limited Liability Company
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
THL-MF Investors, LLC, dated and effective as of November 20, 2003 (this
"Agreement"), is adopted, executed and agreed to, for good and valuable
consideration, by and among Thomas H. Lee Equity Fund V, L.P., a Delaware
limited partnership, Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman
Fund V, L.P., Thomas H. Lee Investors Limited Partnership, 1997 Thomas H. Lee
Nominee Trust, Putnam Investments Holdings, LLC, Putnam Investments Employees'
Securities Company I, LLC, Putnam Investments Employees' Securities Company II,
LLC (collectively the "THL Holders"), the Persons listed on Schedule A attached
hereto as of the date hereof upon their execution of this Agreement, and each
other Person who at any time becomes a Member in accordance with the terms of
this Agreement and the Act. Any reference in this Agreement to THL or any other
Member shall include such Member's Successors in Interest to the extent such
Successors in Interest have become Substitute Members in accordance with the
provisions of this Agreement.
WHEREAS, on November 6, 2003, THL formed the Company as a limited
liability company under the Delaware Limited Liability Company Act, Title 6,
Sections 18-101, et seq., as it may be amended from time to time (the "Act"), by
executing the Limited Liability Company Agreement of THL-MF Investors, LLC (the
"Original Agreement") and filing a Certificate of Formation with respect thereto
with the Delaware Secretary of State; and
WHEREAS, THL desires to amend and restate the Original Agreement for
the purpose of setting forth the agreements governing the relations among the
Members and to admit additional members.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto, each intending to be legally bound, agree
as follows:
ARTICLE I.
DEFINITIONS
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SECTION 1.1 Definitions.
Unless the context otherwise requires, the following terms shall have
the following meanings for purposes of this Agreement:
"Act" has the meaning set forth in the preamble above.
"Additional Member" means any Person that has been admitted to the
Company as a Member pursuant to Section 5.4 by virtue of having received its
Membership Interest from the Company and not from any other Member or Assignee.
"Adjusted Capital Account Deficit" means, with respect to any
Unitholder, the deficit balance, if any, in such Unitholder's Capital Account as
of the end of the relevant fiscal year, after giving effect to the following
adjustments:
(i) credit to such Capital Account any amounts that such
Unitholder is obligated to restore pursuant to this Agreement or is
deemed to be obligated to restore pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) or the penultimate sentence of each of
Regulations Sections 1.704-2(i)(5) and 1.704-2(g)(1); and
(ii) debit to such Capital Account the items described in
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall
be interpreted and applied by the Management Committee consistently therewith.
"Affiliate" when used with reference to another Person means any
Person (other than the Company), directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with, such
other Person. In addition, Affiliates of a Member shall include all partners,
officers, employees and former partners, officers or employees of, all
consultants or advisors to, and all other Persons who directly or indirectly
receive compensation from, such Member.
"Assignee" means any transferee to which a Member or another Assignee
has transferred its interest in the Company in accordance with the terms of this
Agreement, but who is not a Member.
"Bankruptcy" means, with respect to any Person, the occurrence of any
of the following events: (i) the filing of an application by such Person for, or
a consent to, the appointment of a trustee or custodian of his assets; (ii) the
filing by such Person of a voluntary petition in Bankruptcy or the seeking of
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or the filing of a pleading in any court of record admitting in writing
his inability to pay his debts as they become due; (iii) the failure of such
Person to pay his debts as such debts become due; (iv) the making by such Person
of a general assignment for the benefit of creditors; (v) the filing by such
Person of an answer admitting the material allegations of, or his consenting to,
or defaulting in answering, a Bankruptcy petition filed against him in any
Bankruptcy proceeding or petition seeking relief under Title 11 of the United
States Code, as now constituted or as hereafter amended; or (vi) the entry of an
order, judgment or decree by any court of competent jurisdiction adjudicating
such Person a bankrupt or insolvent or for relief in respect of such Person or
appointing a trustee or custodian of his assets and the continuance of such
order, judgment or decree unstayed and in effect for a period of 60 consecutive
days.
"Capital Account" means, with respect to any Unitholder, the account
maintained for such Unitholder in accordance with the following provisions:
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(a) To each Unitholder's Capital Account there shall be added
such Unitholder's Capital Contributions, such Unitholder's allocable share
of Net Income and any items in the nature of income or gain which are
specially allocated to such Unitholder pursuant to Section 4.3(c) hereof,
and the amount of any Company liabilities assumed by such Unitholder or
which are secured by any property distributed to such Unitholder.
(b) To each Unitholder's Capital Account there shall be
subtracted the amount of cash and the Gross Asset Value of any property
distributed to such Unitholder pursuant to any provision of this Agreement,
such Unitholder's allocable share of Net Losses and any items in the nature
of expenses or losses which are specially allocated to such Unitholder
pursuant to Section 4.3(c) hereof, and the amount of any liabilities of
such Unitholder assumed by the Company or which are secured by any property
contributed by such Unitholder to the Company.
(c) In the event any interest in the Company is transferred in
accordance with the terms of this Agreement, the transferee shall succeed
to the Capital Account of the transferor to the extent it relates to the
transferred interest.
(d) In determining the amount of any liability for purposes of
subparagraphs (a) and (b) hereof and Section 4.3(b) hereof, there shall be
taken into account Code Section 752(c) and any other applicable provisions
of the Code and Regulations.
(e) The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to
comply with Code Section 704(b) and the Regulations promulgated thereunder,
and shall be interpreted and applied by the Management Committee in a
manner consistent with such Regulations.
"Capital Contribution" means, with respect to any Unitholder, the
amount of cash and the initial Gross Asset Value of any property (other than
money) contributed from time to time to the Company by such Unitholder (it being
understood that the Gross Asset Value with respect to property in respect of a
Unitholder's Initial Capital Contribution shall be as set forth on Exhibit I
hereto).
"Certificate" has the meaning set forth in Section 2.1.
"Class A Units" means the Class A Units of the Company.
"Class B Units" means the Class B Units of the Company.
"Class C Fraction" means the lesser of (A) one and (B) a fraction, the
numerator of which is the number of Class C Units outstanding at the date of any
such determination and the denominator of which is the number of Class C Units
outstanding on the date of the Initial Capital Contribution after giving effect
to the Initial Capital Contribution, as each of the numerator and denominator
may be adjusted in the event of a recapitalization, split, dividend, or other
reclassification affecting the Class C Units.
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"Class C Units" means the Class C Units of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute. Any reference herein to a particular
provision of the Code shall mean, where appropriate, the corresponding provision
in any successor statute.
"Company" means THL-MF Investors, LLC, a Delaware limited liability
company.
"Company Minimum Gain" has the meaning set forth in Regulations
Section 1.704- 2(d).
"Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Gross Asset
Value as the federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be calculated with reference to such beginning Gross
Asset Value using any reasonable method selected by the Management Committee.
"Distributable Assets" means, with respect to any fiscal period, all
cash receipts (including from any operating, investing, and financing
activities) and (if distribution thereof is determined to be necessary by a
majority of the Management Committee) other assets of the Company from any and
all sources, reduced by operating cash expenses, contributions of capital to
subsidiaries of the Company and payments (if any) required to be made in
connection with any loan to the Company and any reserve for contingencies or
escrow required, in the good faith judgment of the Management Committee, in
connection therewith.
"Economic Interest" means a Member's or Assignee's share of the
Company's net profits, net losses and distributions pursuant to this Agreement
and the Act, but shall not include any right to participate in the management or
affairs of the Company, including the right to vote in the election of
Representatives, vote on, consent to or otherwise participate in any decision of
the Members or Representatives, or any right to receive information concerning
the business and affairs of the Company, in each case except as expressly
otherwise provided in this Agreement or required by the Act.
"First Performance Hurdle" means, that the Target Holders shall have
received (i) on or prior to the first anniversary of the date of this Agreement,
aggregate distributions with respect to Class A Units equal to 150% of the
aggregate Capital Contributions of Target Holders, (ii) on or prior to the
second anniversary of the date of this Agreement, aggregate distributions with
respect to Class A Units equal to 175% of the aggregate Capital Contributions of
Target Holders, (iii) on or prior to the third anniversary of the date of this
Agreement, aggregate distributions with respect to Class A Units equal to 200%
of the aggregate Capital Contributions of Target Holders, (iv) on or prior to
the fourth anniversary of the date of this Agreement,
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aggregate distributions with respect to Class A Units equal to 225% of the
aggregate Capital Contributions of Target Holders, (v) on or prior to the fifth
anniversary of the date of this Agreement, aggregate distributions with respect
to Class A Units equal to 249% of the aggregate Capital Contributions of Target
Holders or (vi) at any time after the fifth anniversary of the date of this
Agreement, aggregate distributions with respect to Class A Units equal to an
amount that would produce a Target Holders' IRR equal to or in excess of 20%; it
being understood that the terms contained in clauses (i) through (vi) of this
definition shall remain constant and in effect throughout the periods indicated.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a
Unitholder to the Company shall be the gross fair market value of such
asset on the date of the contribution, as determined by the contributing
Unitholder and the Company.
(b) The Gross Asset Values of all Company assets shall be
adjusted to equal their respective gross fair market values, as determined
by the Management Committee, as of the following times:
(i) the acquisition of an additional interest in the
Company after the date hereof by a new or existing Unitholder in
exchange for more than a de minimis Capital Contribution, if the
Management Committee reasonably determines that such adjustment is
necessary or appropriate to reflect the relative Economic Interests of
the Unitholders in the Company;
(ii) the distribution by the Company to a Unitholder of
more than a de minimis amount of Company property as consideration for
an interest in the Company, if the Management Committee reasonably
determines that such adjustment is necessary or appropriate to reflect
the relative Economic Interests of the Unitholders in the Company;
(iii) the liquidation of the Company within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g);
(iv) the grant of an interest in the Company (other than a
de minimis interest) as consideration for the provision of services to
or for the benefit of the Company by an existing Member acting in a
Member capacity or by a new Member acting in a Member capacity or in
anticipation of being a Member; and
(v) such other times as the Management Committee shall
reasonably determine necessary or advisable in order to comply with
Regulations Sections 1.704-1(b) and 1.704-2.
(c) The Gross Asset Value of any Company asset distributed to a
Unitholder shall be the gross fair market value of such asset on the date
of distribution, as reasonably determined by the Management Committee
taking into account the following
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proviso; provided that, in the case of such assets which are securities,
the fair market value thereof shall be reduced (a) if and to the extent
that a block sale of all of such securities is reasonably likely, in the
good faith judgment of a registered broker-dealer affiliated with a
reputable, nationally recognized brokerage house, to depress the trading
price of such securities, (b) if and to the extent appropriate, in the good
faith judgment of the Management Committee, due to illiquidity of such
securities and (c) for any sales or other commissions reasonably likely to
be incurred or applied in a sale of such securities.
(d) The Gross Asset Values of Company assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining
Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m);
provided, however, that Gross Asset Values shall not be adjusted pursuant
to this subparagraph (d) to the extent that the Management Committee
determines that an adjustment pursuant to subparagraph (b) of this
definition of Gross Asset Value is necessary or appropriate in connection
with a transaction that would otherwise result in an adjustment pursuant to
this subparagraph (d).
"Holdings" means THL-Food Products Holding, Co., a Delaware
corporation.
"Initial Capital Contribution" has the meaning set forth in Section
4.1.
"Management Committee" means the Management Committee established
pursuant to Section 3.2.
"Management Unit Subscription Agreements" has the meaning set forth in
Section 2.9.
"Member" means each THL Holder and the Persons listed on Schedule A
attached hereto and each other Person who is hereafter admitted as a Member in
accordance with the terms of this Agreement and the Act. The Members shall
constitute the "members" (as that term is defined in the Act) of the Company.
Except as otherwise set forth herein or in the Act, the Members shall constitute
a single class or group of members of the Company for all purposes of the Act
and this Agreement.
"Member Minimum Gain" means minimum gain attributable to Member
Nonrecourse Debt determined in accordance with Regulations Section 1.704- 2(i).
"Member Nonrecourse Debt" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
"Member Nonrecourse Deduction" has the meaning set forth in
Regulations Section 1.704- 2(i)(2).
"Membership Interest" means, with respect to each Member, such
Member's Economic Interest and rights as a Member.
"Michael Foods" means Michael Foods, Inc., a Delaware corporation.
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"Net Income" or "Net Loss" means for each fiscal year of the Company,
an amount equal to the Company's taxable income or loss for such fiscal year,
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(a) Any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Net Income or Net
Loss pursuant to this definition of Net Income or Net Loss shall be added
to such taxable income or loss;
(b) Any expenditures of the Company described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant
to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Net Income or Net Loss pursuant to this definition of
Net Income or Net Loss shall be subtracted from such taxable income or
loss;
(c) In the event the Gross Asset Value of any Company asset is
adjusted pursuant to subparagraph (b) or (c) of the definition of Gross
Asset Value, the amount of such adjustment shall be taken into account as
gain (if the adjustment increases the Gross Asset Value of the asset) or
loss (if the adjustment decreases the Gross Asset Value of the asset) from
the disposition of such asset for purposes of computing Net Income or Net
Loss;
(d) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property
disposed of, notwithstanding that the adjusted tax basis of such property
differs from its Gross Asset Value;
(e) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or
loss, Depreciation shall be taken into account for such fiscal year;
(f) To the extent an adjustment to the adjusted tax basis of any
Company asset pursuant to Code Section 734(b) or 743(b) is required
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken into
account in determining Capital Accounts as a result of a distribution other
than in liquidation of a Unitholder's interest in the Company, the amount
of such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases the
basis of the asset) from the disposition of the asset and shall be taken
into account for purposes of computing Net Income or Net Loss; and
(g) Notwithstanding any other provision of this definition of
Net Income or Net Loss, any items which are specially allocated pursuant to
Section 4.3(c) hereof shall not be taken into account in computing Net
Income or Net Loss. The amounts of the items of Company income, gain, loss,
or deduction available to be
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specially allocated pursuant to Section 4.3(c) hereof shall be determined
by applying rules analogous to those set forth in this definition of Net
Income or Net Loss.
"Nonrecourse Deductions" has the meaning set forth in Regulations
Section 1.704- 2(b).
"Officer" means each Person designated as an officer of the Company
pursuant to and in accordance with the provisions of Section 3.7, subject to any
resolution of the Management Committee appointing such Person as an officer or
relating to such appointment.
"Original Agreement" has the meaning set forth in the preamble above.
"Preferred Return" with respect to each holder of Class A Units and
Class B Units means an amount, accrued on a daily basis commencing on the date
hereof and, beginning January 1, 2004, compounded quarterly on April 1, July 1,
October 1 and January 1 of each year, from the day on which such Unitholder
makes a Capital Contribution through the date of distribution equal to 8% per
annum of the excess, if any, of (i) such Unitholder's aggregate Capital
Contribution plus the aggregate amount compounded pursuant to this definition
through the end of the previous quarter on each day during such period over (ii)
the aggregate amount of all distributions made on or prior to such day to such
Unitholder. For purposes of computing the Preferred Return, each Capital
Contribution shall be treated as having been made on the last day of the
calendar month in which such Capital Contribution is received by the Company
(except for the Initial Capital Contribution, which shall be deemed to have been
made on the date hereof), and distributions shall be deemed to have been made on
the last day of the month in which they are made.
"Proceeding" has the meaning set forth in Section 3.11.
"Regulations" means the Income Tax Regulations, including temporary
Regulations, promulgated under the Code, as such Regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Regulatory Allocations" has the meaning set forth in Section 4.3(c)
of this Agreement.
"Representative" has the meaning set forth in Section 3.2(a) of this
Agreement.
"Sale of the Company" shall mean a "Sale of the Company" (as defined
in the Securityholders Agreement) or a dissolution of the Company in accordance
with this Agreement (other than transactions effected for the purpose of
changing, directly or indirectly, the form of organization or the organizational
structure of the Company and/or any of its subsidiaries).
"Second Performance Hurdle" means that the Target Holders shall have
received (i) on or prior to the first anniversary of the date of this Agreement,
aggregate distributions with respect to Class A Units equal to 200% of the
aggregate Capital Contributions of Target Holders, (ii) on or prior to the
second anniversary of the date of this Agreement, aggregate
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distributions with respect to Class A Units equal to 225% of the aggregate
Capital Contributions of Target Holders, (iii) on or prior to the third
anniversary of the date of this Agreement, aggregate distributions with respect
to Class A Units equal to 250% of the aggregate Capital Contributions of Target
Holders, (iv) on or prior to the fourth anniversary of the date of this
Agreement, aggregate distributions with respect to Class A Units equal to 275%
of the aggregate Capital Contributions of Target Holders, (v) on or prior to the
fifth anniversary of the date of this Agreement, aggregate distributions with
respect to Class A Units equal to 305% of the aggregate Capital Contributions of
Target Holders or (vi) at any time after the fifth anniversary of the date of
this Agreement, aggregate distributions with respect to Class A Units equal to
an amount that would produce a Target Holders' IRR equal to or in excess of 25%;
it being understood that the terms contained in clauses (i) through (vi) of this
definition shall remain constant and in effect throughout the periods indicated.
"Securities" means any debt or equity securities of any issuer,
including common and preferred stock and interests in limited liability
companies (including warrants, rights, put and call options and other options
relating thereto or any combination thereof), notes, bonds, debentures, trust
receipts and other obligations, instruments or evidences of indebtedness, other
property or interests commonly regarded as securities, interests in real
property, whether improved or unimproved, interests in oil and gas properties
and mineral properties, short-term investments commonly regarded as money market
investments, bank deposits and interests in personal property of all kinds,
whether tangible or intangible.
"Securityholders Agreement" means the Securityholders Agreement dated
as of the date hereof among the Company and each Member, as it may be amended or
supplemented from time to time.
"Substitute Member" means any Person that has been admitted to the
Company as a Member pursuant to Section 5.4 by virtue of such Person receiving
all or a portion of a Membership Interest from a Member or its Assignee and not
from the Company.
"Successor in Interest" means any (i) trustee, custodian, receiver or
other Person acting in any Bankruptcy or reorganization proceeding with respect
to; (ii) assignee for the benefit of the creditors of; (iii) trustee or
receiver, or current or former officer, director or partner, or other fiduciary
acting for or with respect to the dissolution, liquidation or termination of; or
(iv) other executor, administrator, committee, legal representative or other
successor or assign of, any Unitholder, whether by operation of law or
otherwise.
"Target Holders" means the holders of Class A Units.
"Target Holders' IRR" shall mean the cumulative internal rate of
return of the Target Holders (calculated as provided below), as of any date,
where the internal rate of return for such Target Holders shall be the annually
compounded rate of return which results in the following amount having a net
present value equal to zero: (i) the aggregate amount of cash and Gross Asset
Value of any assets distributed to such Target Holders pursuant to Sections 4.4
and 5.2 of this Agreement and from time to time on a cumulative basis through
such date (provided that, in no circumstances shall any fees paid to such Target
Holders or expenses reimbursed to such Target Holders from time to time under
this Agreement or otherwise be included in this clause (i)), minus (ii) the
aggregate amount of the Capital Contributions made by such Target Holders from
time to time on a cumulative basis through such date. In determining the Target
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Holders' IRR, the following shall apply: (a) any Capital Contributions under
clause (ii) above shall be deemed to have been made on the last day of the month
in which they are actually made (except for the Initial Capital Contribution (as
such term is defined herein), which shall be deemed to have been made on the
date hereof; (b) distributions under clause (i) above shall be deemed to have
been made on the last day of the month in which they are actually made; (c) all
distributions shall be based on the amount distributed prior to the application
of any U.S. federal, state, local, or foreign income taxation to the Target
Holders; and (d) the rates of return shall be per annum rates and all amounts
shall be calculated on an annually compounded basis, and on the basis of a
365-day year.
"Tax Matters Member" has the meaning set forth in Section 6.4(b).
"Third Performance Hurdle" means that the Target Holders shall have
received (i) on or prior to the first anniversary of the date of this Agreement,
aggregate distributions with respect to Class A Units equal to 300% of the
aggregate Capital Contributions of Target Holders, (ii) on or prior to the
second anniversary of the date of this Agreement, aggregate distributions with
respect to Class A Units equal to 325% of the aggregate Capital Contributions of
Target Holders, (iii) on or prior to the third anniversary of the date of this
Agreement, aggregate distributions (pursuant to this Agreement) with respect to
Class A Units equal to 350% of the aggregate Capital Contributions of Target
Holders, (iv) on or prior to the fourth anniversary of the date of this
Agreement, aggregate distributions with respect to Class A Units equal to 375%
of the aggregate Capital Contributions of Target Holders, (v) on or prior to the
fifth anniversary of the date of this Agreement, aggregate distributions with
respect to Class A Units equal to 448% of the aggregate Capital Contributions of
Target Holders or (vi) at any time after the fifth anniversary of the date of
this Agreement, aggregate distributions with respect to Class A Units equal to
an amount that would produce a Target Holders' IRR equal to or in excess of 35%;
it being understood that the terms contained in clauses (i) through (vi) of this
definition shall remain constant and in effect throughout the periods indicated.
"Unitholder" means a Member or Assignee who holds an Economic Interest
in Class A Units, Class B Units or Class C Units.
"Unpaid Preferred Return" with respect to each holder of Class A Units
and Class B Units means the excess, if any, of (i) such Unitholder's Preferred
Return as of the date of any such determination over (ii) the aggregate amount
of all distributions made to such Unitholder pursuant to or in accordance with
Section 4.4(a)(ii).
"Unreturned Capital" with respect to each Unitholder means the excess,
if any, of (i) such Unitholder's aggregate Capital Contributions over (ii) the
aggregate amount of all distributions made to such Unitholder pursuant to or in
accordance with Section 4.4(a)(i).
SECTION 1.2 Terms Generally. The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The term "person" or "Person" includes
individuals, partnerships (whether general or limited), joint ventures,
corporations, limited liability companies, trusts, estates, custodians,
nominees, governments (or agencies or political subdivisions thereof) and other
associations, entities or
10
groups (as defined in the Securities Exchange Act of 1934, as amended). The
words "include," "includes" and "including" shall be deemed to be followed by
the phrase "without limitation." All terms herein that relate to accounting
matters shall be interpreted in accordance with generally accepted accounting
principles from time to time in effect. All references to "Sections" and
"Articles" shall refer to Sections and Articles of this Agreement unless
otherwise specified. The words "hereof" and "herein" and similar terms shall
relate to this Agreement.
ARTICLE II.
GENERAL PROVISIONS
------------------
SECTION 2.1 Formation. The Company has been organized as a Delaware
limited liability company by the execution and filing of a Certificate of
Formation (the "Certificate") by THL, as an initial Member, under and pursuant
to the Act. The rights, powers, duties, obligations and liabilities of the
Members shall be determined pursuant to the Act and this Agreement. To the
extent that the rights, powers, duties, obligations and liabilities of any
Member are different by reason of any provision of this Agreement than they
would be in the absence of such provision, this Agreement shall, to the extent
permitted by the Act, control.
SECTION 2.2 Name. The name of the Company is "MF Investors, LLC,"
and all Company business shall be conducted in that name or in such other names
that comply with applicable law as the Management Committee may select from time
to time.
SECTION 2.3 Term. The term of the Company commenced on the date the
Certificate was filed with the office of the Secretary of State of the State of
Delaware and shall continue in existence perpetually until termination or
dissolution in accordance with the provisions of Section 5.2.
SECTION 2.4 Purpose; Powers.
(a) General Powers. The nature of the business or purposes to
be conducted or promoted by the Company is to engage in any lawful act or
activity for which limited liability companies may be organized under the
Act. The Company may engage in any and all activities necessary, desirable
or incidental to the accomplishment of the foregoing. Notwithstanding
anything herein to the contrary, nothing set forth herein shall be
construed as authorizing the Company to possess any purpose or power, or to
do any act or thing, forbidden by law to a limited liability company
organized under the laws of the State of Delaware.
(b) Company Action. Subject to the provisions of this
Agreement and except as prohibited by applicable law (i) the Company may,
with the approval of the Management Committee, enter into and perform any
and all documents, agreements and instruments contemplated thereby, all
without any further act, vote or approval of any Member and (ii) the
Management Committee may authorize any Person (including any Member or
Officer) to enter into and perform any document on behalf of the Company.
(c) Merger. Subject to the provisions of this Agreement, the
Company may, with the approval of the Management Committee and without the
need for any further act, vote or approval of any Member, merge with, or
consolidate into,
11
another limited liability company (organized under the laws of Delaware or
any other state), a corporation (organized under the laws of Delaware or
any other state) or other business entity (as defined in Section 18-209(a)
of the Act), regardless of whether the Company is the survivor of such
merger or consolidation; provided that, to the extent applicable in
connection with any transaction described in this Section 2.4(c), each
Unitholder shall be afforded any rights to which it is entitled to pursuant
to Article IV of the Securityholders Agreement.
SECTION 2.5 Foreign Qualification. Prior to the Company's conducting
business in any jurisdiction other than Delaware, the Management Committee shall
cause the Company to comply, to the extent procedures are available and those
matters are reasonably within the control of the Officers, with all requirements
necessary to qualify the Company as a foreign limited liability company in that
jurisdiction.
SECTION 2.6 Registered Office; Registered Agent; Principal Office;
Other Offices. The registered office of the Company required by the Act to be
maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the Company) as the Management Committee may designate
from time to time in the manner provided by law. The registered agent of the
Company in the State of Delaware shall be the initial registered agent named in
the Certificate or such other Person or Persons as the Management Committee may
designate from time to time in the manner provided by law. The principal office
of the Company shall be at such place as the Management Committee may designate
from time to time, which need not be in the State of Delaware, and the Company
shall maintain records at such place. The Company may have such other offices as
the Management Committee may designate from time to time.
SECTION 2.7 No State-Law Partnership. The Unitholders intend that
the Company shall not be a partnership (including a limited partnership) or
joint venture, and that no Unitholder, Representative or Officer shall be a
partner or joint venturer of any other Unitholder, Representative or Officer by
virtue of this Agreement, for any purposes other than as set forth in the last
sentence of this Section 2.7, and this Agreement shall not be construed to the
contrary. The Unitholders intend that the Company shall be treated as a
partnership for federal and, if applicable, state or local income tax purposes,
and each Unitholder and the Company shall file all tax returns and shall
otherwise take all tax and financial reporting positions in a manner consistent
with such treatment.
SECTION 2.8 Amendment and Restatement. This Agreement amends,
restates and supersedes in its entirety the Original Agreement.
SECTION 2.9 Issuance of Additional Units. The Management Committee
shall have the right to cause the Company to create and issue preferred units in
connection with the exercise of the Company's rights and/or obligations to
purchase Class A Units, Class B Units and Class C Units from certain Members
each of whom is also a party to a Management Unit Subscription Agreement, dated
as of the date hereof, by and between such Member and the Company (collectively,
the "Management Unit Subscription Agreements"). Subject to the provisions of the
Management Unit Subscription Agreement, the Management Committee shall determine
the terms and conditions governing the issuance of any of such preferred units.
In
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addition, the Management Committee shall have the right to issue Class B Units
and Class C Units; provided that, the Management Committee shall not authorize
the issuance of either Class B Units or Class C Units in excess of the number of
such Class B Units and Class C Units, as the case may be, issued as of the date
hereof (it being understood that any Class B Units or Class C Units repurchased
by the Company shall no longer be considered "issued" for purposes hereof)
unless (A) for so long as he serves as Chief Executive Officer of Michael Foods,
Gregg A. Ostrander provides his written consent to such issuance or (B) if Gregg
A. Ostrander shall cease to be the Chief Executive Officer of Michael Foods, the
holders of a majority of the outstanding Class B Units or Class C Units, as the
case may be, approve such issuance. In addition, the holders of a majority of
Class A Units shall have the right to cause the Company to create and issue
additional units, provided that no such issuance shall adversely affect the
relationship among the Class A Units, Class B Units and Class C Units as set
forth herein.
ARTICLE III.
MANAGEMENT
----------
SECTION 3.1 The Management Committee; Delegation of Authority and
Duties.
(a) Members and Management Committee. The Members shall
possess all rights and powers as provided in the Act and otherwise by law.
Except as otherwise expressly provided for herein, the Members hereby
consent to the exercise by the Management Committee of all such powers and
rights conferred on them by the Act with respect to the management and
control of the Company. Notwithstanding the foregoing and except as
explicitly set forth in this Agreement, if a vote, consent or approval of
the Members is required by the Act or other applicable law with respect to
any act to be taken by the Company or matter considered by the Management
Committee, each Member agrees that it shall be deemed to have consented to
or approved such act or voted on such matter in accordance with a vote of
the Management Committee on such act or matter. No Member, in its capacity
as a Member, shall have any power to act for, sign for or do any act that
would bind the Company. The Members, acting through the Management
Committee, shall devote such time and effort to the affairs of the Company
as they may deem appropriate for the oversight of the management and
affairs of the Company. Each Member acknowledges and agrees that no Member
shall, in its capacity as a Member, be bound to devote all of such Member's
business time to the affairs of the Company, and that each Member and such
Member's Affiliates do and will continue to engage for such Member's own
account and for the account of others in other business ventures.
(b) Delegation by Management Committee. The Management
Committee shall have the power and authority to delegate to one or more
other Persons the Management Committee's rights and powers to manage and
control the business and affairs of the Company, including to delegate to
agents and employees of a Member, a Representative or the Company
(including Officers), and to delegate by a management agreement or another
agreement with, or otherwise to, other Persons. The Management Committee
may authorize any Person (including, without limitation, any Member,
13
Officer or Representative) to enter into and perform under any document on
behalf of the Company.
(c) Committees. The Management Committee may, from time to
time, designate one or more committees, each of which shall be comprised of
at least two Representatives. Any such committee, to the extent provided in
the enabling resolution and until dissolved by the Management Committee,
shall have and may exercise any or all of the authority of the Management
Committee. At every meeting of any such committee, the presence of a
majority of all the representatives thereof shall constitute a quorum, and
the affirmative vote of a majority of the representatives present shall be
necessary for the adoption of any resolution. The Management Committee may
dissolve any committee at any time, unless otherwise provided in the
Certificate or this Agreement.
SECTION 3.2 Establishment of Management Committee.
(a) Representatives. There shall be established a Management
Committee composed of up to five (5) Persons all of whom shall be
individuals ("Representatives") who shall be elected by a majority vote of
the holders of Class A Units and Class B Units, voting together as a single
class, and each such Member shall have one vote for each Class A Unit
and/or Class B Unit held by such Member. Any Representative may be removed
from the Management Committee at any time by the holders of a majority of
the total voting power of the outstanding Class A Units and Class B Units.
Each Representative shall remain in office until his or her death,
resignation or removal, and in the event of death, resignation or removal
of a Representative, the party or parties, as applicable, which designated
such Representative shall fill the vacancy created.
(b) Duties. The Representatives, in the performance of their
duties, shall owe to the Company and the Members duties of loyalty and due
care of the type owed by the directors of a corporation to such corporation
and its stockholders under the laws of the State of Delaware.
(c) Absence. A Representative may, in isolated instances
arising from exigent circumstances, designate a Person to act as his or her
substitute and in his or her place at any meeting of the Management
Committee. Such Person shall have all power of the absent Representative,
and references herein to a "Representative" at a meeting shall be deemed to
include his or her substitute. Notwithstanding anything in this Agreement
to the contrary, Representatives, in their capacities as such, shall not be
deemed to be "members" or "managers" (as such terms are defined in the Act)
of the Company; provided that, for the purpose of clarity and the avoidance
of doubt, nothing contained in this sentence shall relieve or diminish any
Representative's duties under Section 3.2(b) hereof.
(d) No Individual Authority. No Representative has the
authority or power to act for or on behalf of the Company, to do any act
that would be binding on the Company or to make any expenditures or incur
any obligations on behalf of the
14
Company or authorize any of the foregoing, other than acts that are
expressly authorized by the Management Committee.
(e) Conflict. Each provision of this Section 3.2 is subject
to the terms and provisions of the Securityholders Agreement, and to the
extent any such provisions apply, they are then to be construed as being
incorporated in this Agreement and made a part hereof.
SECTION 3.3 Management Committee Meetings.
(a) Quorum. A majority of the total number of Representatives
shall constitute a quorum for the transaction of business of the Management
Committee and, except as otherwise provided in this Agreement, the act of a
majority of the Representatives present at a meeting of the Management
Committee at which a quorum is present shall be the act of the Management
Committee. A Representative who is present at a meeting of the Management
Committee at which action on any matter is taken shall be presumed to have
assented to the action unless his dissent shall be entered in the minutes
of the meeting or unless he shall file his written dissent to such action
with the Person acting as secretary of the meeting before the adjournment
thereof or shall deliver such dissent to the Company immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a
Representative who voted in favor of such action.
(b) Place, Waiver of Notice. Meetings of the Management
Committee may be held at such place or places as shall be determined from
time to time by resolution of the Management Committee. At all meetings of
the Management Committee, business shall be transacted in such order as
shall from time to time be determined by resolution of the Management
Committee. Attendance of a Representative at a meeting shall constitute a
waiver of notice of such meeting, except where a Representative attends a
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.
(c) Regular Meetings. Regular meetings of the Management
Committee shall be held at such times and places as shall be designated
from time to time by resolution of the Management Committee. Notice of such
meetings shall not be required.
(d) Special Meetings. Special meetings of the Management
Committee may be called on at least 24 hours notice to each Representative
by the chairman or any two Representatives. Such notice need not state the
purpose or purposes of, nor the business to be transacted at, such meeting,
except as may otherwise be required by law or provided for in this
Agreement.
(e) Notice. Notice of any special meeting of the Management
Committee or other committee may be given personally, by mail, facsimile,
courier or other means and, if other than personally, shall be deemed given
when written notice is delivered to the office of the Representative at the
address of the Representative in the books and records of the Company.
15
SECTION 3.4 Chairman. The Management Committee shall designate a
Representative to serve as chairman. The chairman shall preside at all meetings
of the Management Committee. If the chairman is absent at any meeting of the
Management Committee, a majority of the Representatives present shall designate
another Representative to serve as interim chairman for that meeting. The
chairman shall have no authority or power to act for or on behalf of the
Company, to do any act that would be binding on the Company or to make any
expenditure or incur any obligations on behalf of the Company or authorize any
of the foregoing. The chairman shall initially be Gregg A. Ostrander and shall
continue to be Mr. Ostrander during the period during which he is the Chief
Executive Officer of Michael Foods.
SECTION 3.5 Approval or Ratification of Acts or Contracts. Any act
or contract that shall be approved or be ratified by the Management Committee
shall be as valid and as binding upon the Company and upon all the Members (in
their capacity as Members) as if it shall have been approved or ratified by
every Member of the Company; provided, however, the Management Committee shall
not permit the Company or its subsidiaries to engage in any act or enter into
any contract or other arrangement involving the payment by the Company or its
subsidiaries of any fees or compensation to THL or its Affiliates (excluding
from this proviso any fees or compensation payable pursuant to that certain
Management Agreement, dated as of the date hereof, by and among Michael Foods
and THL Managers V, LLC) unless a majority of the Representatives (excluding the
THL Directors (as such term is defined in the Securityholders Agreement),
provide written consent to such action, contract or other arrangement.
SECTION 3.6 Action by Written Consent or Telephone Conference. Any
action permitted or required by the Act, the Certificate or this Agreement to be
taken at a meeting of the Management Committee or any committee designated by
the Management Committee may be taken without a meeting if a consent in writing,
setting forth the action to be taken, is signed by a majority of the
Representatives or representatives of such other committee, as the case may be.
Such consent shall have the same force and effect as a vote at a meeting and may
be stated as such in any document or instrument filed with the Secretary of
State of the State of Delaware, and the execution of such consent shall
constitute attendance or presence in person at a meeting of the Management
Committee or any such other committee, as the case may be. Subject to the
requirements of this Agreement for notice of meetings, the Representatives, or
representatives of any other committee designated by the Management Committee,
may participate in and hold a meeting of the Management Committee or any such
other committee, as the case may be, by means of a conference telephone or
similar communications equipment by means of which all Persons participating in
the meeting can hear each other, and participation in such meeting shall
constitute attendance and 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.
SECTION 3.7 Officers.
(a) Designation and Appointment. The Management Committee
may, from time to time, employ and retain Persons as may be necessary or
appropriate for the conduct of the Company's business (subject to the
supervision and control of the Management Committee), including employees,
agents and other Persons (any of whom may be a Member or Representative)
who may be designated as Officers of the
16
Company, with titles including "chief executive officer," "chairman,"
"president," "vice president," "treasurer," "secretary," "general manager,"
"director" and "chief financial officer," as and to the extent authorized
by the Management Committee. Any number of offices may be held by the same
Person. In its discretion, the Management Committee may choose not to fill
any office for any period as it may deem advisable. Officers need not be
residents of the State of Delaware or Members. Any Officers so designated
shall have such authority and perform such duties as the Management
Committee may, from time to time, delegate to them. The Management
Committee may assign titles to particular Officers. Each Officer shall hold
office until his successor shall be duly designated and shall qualify or
until his death or until he shall resign or shall have been removed in the
manner hereinafter provided. The salaries or other compensation, if any, of
the Officers of the Company shall be fixed from time to time by the
Management Committee.
(b) Resignation/Removal. Any Officer may resign as such at
any time. Such resignation shall be made in writing and shall take effect
at the time specified therein, or if no time is specified, at the time of
its receipt by the Management Committee. The acceptance of a resignation
shall not be necessary to make it effective, unless expressly so provided
in the resignation. Subject to clauses (d), (e) and (f) of this Section
3.7, any Officer may be removed as such, either with or without cause at
any time by the Management Committee. Designation of an Officer shall not
of itself create any contractual or employment rights.
(c) Duties of Officers Generally. The Officers, in the
performance of their duties as such, shall owe to the Company duties of
loyalty and due care of the type owed by the officers of a corporation to
such corporation and its stockholders under the laws of the State of
Delaware.
(d) Chief Executive Officer. Subject to the powers of the
Management Committee, the chief executive officer of the Company shall be
in general and active charge of the entire business and affairs of the
Company, and shall be its chief policy making officer. The chief executive
officer shall initially be Gregg A. Ostrander and shall continue to be Mr.
Ostrander during the period during which he is the Chief Executive Officer
of Michael Foods.
(e) President. The president shall, subject to the powers of
the Management Committee and chief executive officer, have general and
active management of the business of the Company; and shall see that all
orders and resolutions of the Management Committee are carried into effect.
The president shall have such other powers and perform such other duties as
may be prescribed by the chief executive officer or the Management
Committee. The president shall initially be Gregg A. Ostrander and shall
continue to be Mr. Ostrander during the period during which he is the Chief
Executive Officer of Michael Foods.
(f) Chief Financial Officer. The chief financial officer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct books and records of accounts of the properties and business
transactions of the Company, including
17
accounts of its assets, liabilities, receipts, disbursements, gains, losses
and capital. The chief financial officer shall have the custody of the
funds and securities of the Company, and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company,
and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the
Management Committee. The chief financial officer shall have such other
powers and perform such other duties as may from time to time be prescribed
by the chief executive officer or the Management Committee. The chief
financial officer shall initially be John D. Reedy and shall continue to be
Mr. Reedy during the period during which he is the Chief Financial Officer
of Michael Foods.
(g) Vice President(s). The vice president(s) shall perform
such duties and have such other powers as the chief executive officer or
the Management Committee may from time to time prescribe.
(h) Secretary.
(i) The secretary shall attend all meetings of the
Management Committee, and shall record all the proceedings of the
meetings in a book to be kept for that purpose, and shall perform like
duties for the standing committees of the Management Committee when
required. The secretary shall initially be Mark D. Witmer.
(ii) The secretary shall keep all documents described in
Article VI and such other documents as may be required under the Act.
The secretary shall perform such other duties and have such other
authority as may be prescribed elsewhere in this Agreement or from
time to time by the chief executive officer or the Management
Committee. The secretary shall have the general duties, powers and
responsibilities of a secretary of a corporation.
(iii) If the Management Committee chooses to appoint an
assistant secretary or assistant secretaries, the assistant
secretaries, in the order of their seniority, in the absence,
disability or inability to act of the secretary, shall perform the
duties and exercise the powers of the secretary, and shall perform
such other duties as the chief executive officer or the Management
Committee may from time to time prescribe.
SECTION 3.8 Management Matters.
(a) Transfer of Property. All property owned by the Company
shall be registered in the Company's name, in the name of a nominee or in
"street name" as the Management Committee may from time to time determine.
Any corporation, brokerage firm or transfer agent called upon to transfer
any Securities to or from the name of the Company shall be entitled to rely
on instructions or assignments signed or purported to be signed by any
Officer or Representative without inquiry as to the authority of the Person
signing or purporting to sign such instructions or assignments or as to the
validity of any transfer to or from the name of the Company. At the time of
any
18
such transfer, any such corporation, brokerage firm or transfer agent shall
be entitled to assume that (i) the Company is then in existence and (ii)
that this Agreement is in full force and effect and has not been amended,
in each case unless such corporation, brokerage firm or transfer agent
shall have received written notice to the contrary.
(b) Existence and Good Standing. The Management Committee may
take all action which may be necessary or appropriate (i) for the
continuation of the Company's valid existence as a limited liability
company under the laws of the State of Delaware (and of each other
jurisdiction in which such existence is necessary to enable the Company to
conduct the business in which it is engaged) and (ii) for the maintenance,
preservation and operation of the business of the Company in accordance
with the provisions of this Agreement and applicable laws and regulations.
The Management Committee may file or cause to be filed for recordation in
the office of the appropriate authorities of the State of Delaware, and in
the proper office or offices in each other jurisdiction in which the
Company is formed or qualified, such certificates (including certificates
of limited liability companies and fictitious name certificates) and other
documents as are required by the applicable statutes, rules or regulations
of any such jurisdiction or as are required to reflect the identity of the
Members and the amounts of their respective capital contributions.
(c) Investment Company Act. The Management Committee shall
use its best efforts to assure that the Company shall not be subject to
registration as an investment company pursuant to the Investment Company
Act of 1940, as amended.
(d) No UBTI;ECI. The Company shall not, directly or through
any pass-through entity in which it holds an interest, engage in any
transaction or activity that shall cause its Unitholders, or any of such
Unitholder's limited partners, which, in the case of clause (i), are exempt
from income taxation under Section 501(a) of the Code, or, in the case of
clause (ii), are non-U.S. persons, to recognize (i) unrelated business
taxable income, as defined in Section 512 and Section 514 of the Code, that
is taxable to such Persons under Section 511 of the Code or (ii) income
that is or is deemed to be "effectively connected" with a U.S. trade or
business, as defined in Section 864(b) of the Code or income received
directly or indirectly from a commercial activity within the meaning of
Section 892(a)(2) of the Code.
SECTION 3.9 Securities in Holdings. The Company shall vote all of
the securities it holds in Holdings as directed by the Management Committee.
SECTION 3.10 Liability of Unitholders.
(a) No Personal Liability. Except as otherwise required by
applicable law and as expressly set forth in this Agreement, no Unitholder
shall have any personal liability whatsoever in such Person's capacity as a
Unitholder, whether to the Company, to any of the other Unitholders, to the
creditors of the Company or to any other third party, for the debts,
liabilities, commitments or any other obligations of the Company or for any
losses of the Company. Each Unitholder shall be liable only to make
19
such Unitholder's Initial Capital Contribution to the Company, if
applicable, and the other payments provided expressly herein.
(b) Return of Distributions. In accordance with the Act and
the laws of the State of Delaware, a member of a limited liability company
may, under certain circumstances, be required to return amounts previously
distributed to such member. It is the intent of the Members that no
distribution to any Member pursuant to Article V hereof shall be deemed a
return of money or other property paid or distributed in violation of the
Act. The payment of any such money or distribution of any such property to
a Member shall be deemed to be a compromise within the meaning of the Act,
and the Member receiving any such money or property shall not be required
to return to any Person any such money or property. However, if any court
of competent jurisdiction holds that, notwithstanding the provisions of
this Agreement, any Member is obligated to make any such payment, such
obligation shall be the obligation of such Member and not of any
Representative or other Member.
SECTION 3.11 Indemnification by the Company. Subject to the
limitations and conditions provided in this Section 3.11, each Person who was or
is made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or arbitrative (hereinafter a "Proceeding"), or any
appeal in such a Proceeding or any inquiry or investigation that could lead to
such a Proceeding, by reason of the fact that he, she, or it, or a Person of
which he, she or it is the legal representative, is or was a Unitholder, Officer
or Representative shall be indemnified by the Company to the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than said law
permitted the Company to provide prior to such amendment) against all judgments,
penalties (including excise and similar taxes and punitive damages), fines,
settlements and reasonable expenses (including reasonable attorneys' fees and
expenses) actually incurred by such Person in connection with such Proceeding,
appeal, inquiry or investigation if such Person acted in Good Faith, and
indemnification under this Section 3.11 shall continue as to a Person who has
ceased to serve in the capacity which initially entitled such Person to
indemnity hereunder. The rights granted pursuant to this Section 3.11 shall be
deemed contract rights, and no amendment, modification or repeal of this Section
3.11 shall have the effect of limiting or denying any such rights with respect
to actions taken or Proceedings, appeals, inquiries or investigations arising
prior to any amendment, modification or repeal. It is expressly acknowledged
that the indemnification provided in this Section 3.11 could involve
indemnification for negligence or under theories of strict liability. "Good
Faith" shall mean a Person having acted in good faith and in a manner such
Person reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to a criminal proceeding, having had no reasonable
cause to believe such Person's conduct was unlawful.
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ARTICLE IV.
CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS
-------------------------------------------------
SECTION 4.1 Capital Contributions. The Members listed on Schedule A
hereto have made initial Capital Contributions to the Company in the amounts and
of the type set forth in Exhibit I hereto (with respect to each Member, an
"Initial Capital Contribution").
SECTION 4.2 Capital Accounts.
(a) Creation. There shall be established for each Unitholder
on the books of the Company a Capital Account which shall be increased or
decreased in the manner set forth in this Agreement.
(b) Negative Balance. A Unitholder shall not have any
obligation to the Company or to any other Unitholder to restore any
negative balance in the Capital Account of such Unitholder.
SECTION 4.3 Allocations of Net Income and Net Loss.
(a) Timing and Amount of Allocations of Net Income and Net
Loss. Net Income and Net Loss of the Company shall be determined and
allocated with respect to each fiscal year of the Company as of the end of
each such year or as circumstances otherwise require or allow. Subject to
the other provisions of this Section 4.3, an allocation to a Unitholder of
a share of Net Income or Net Loss shall be treated as an allocation of the
same share of each item of income, gain, loss or deduction that is taken
into account in computing Net Income or Net Loss.
(b) General Allocations.
(i) Net Income and Net Loss. After giving effect to the
special allocations provided in Sections 4.3(c) all Net Income and Net
Loss of the Company for a fiscal year shall be allocated to the
Unitholders as follows:
(A) first, Net Income will be allocated to the
Unitholders having deficit balances in their Capital Accounts
(computed after giving effect to all contributions,
distributions, allocations and other Capital Account adjustments
for all taxable years (other than the items comprising the Net
Income or Net Loss of the Company being allocated to the
Unitholders for the current fiscal year), after adding back each
Unitholder's share of Company Minimum Gain and Member Minimum
Gain as provided in Regulations Sections 1.704-2(g) and
1.704-2(i)(5)), to the extent of, and in proportion to, those
deficits, unless satisfied by allocations under Section 4.3(c)
hereof; and
(B) second, Net Income and Net Loss not allocated
under Section 4.3(b)(i)(A) will be allocated so as to cause the
credit balance in each Unitholder's Capital Account (computed in
the same manner as provided parenthetically in Section 4.3(b)(i)
(A) hereof) to
21
equal, as nearly as possible, the amount such Unitholder would
receive if the Company sold all of its assets for the Gross Asset
Value of each such asset and distributed the proceeds thereof
(after satisfaction of any liabilities of the Company) in
accordance with the provisions of Section 4.4 hereof.
(c) Additional Allocation Provisions. Notwithstanding the
foregoing provisions of this Section 4.3:
(i)
(A) If there is a net decrease in Company Minimum
Gain or Member Minimum Gain during any fiscal year, the
Unitholders shall be allocated items of Company income and gain
for such fiscal year (and, if necessary, for subsequent fiscal
years) in accordance with Regulations Section 1.704-2(f) or
1.704-2(i)(4), as applicable. It is intended that this Section
4.3(c)(i)(A) qualify and be construed as a "minimum gain
chargeback" and a "chargeback of partner nonrecourse debt minimum
gain" within the meaning of such Regulations, which shall be
controlling in the event of a conflict between such Regulations
and this Section 4.3(c)(i)(A).
(B) Any Nonrecourse Deductions for any fiscal year
shall be specially allocated to the holders of Class A Units in
accordance with the number of Class A Units held by each such
Unitholder. Any Member Nonrecourse Deductions for any fiscal year
shall be specially allocated to the Unitholder(s) who bears the
economic risk of loss with respect to the Member Nonrecourse Debt
to which such Member Nonrecourse Deductions are attributable, in
accordance with Regulations Section 1.704- 2(i).
(C) If any Unitholder unexpectedly receives an
adjustment, allocation or distribution described in Regulations
Section 1.704- 1(b)(2)(ii)(d)(4), (5) or (6), items of Company
income and gain shall be allocated, in accordance with
Regulations Section 1.704- 1(b)(2)(ii) (d), to the Unitholder in
an amount and manner sufficient to eliminate, to the extent
required by such Regulations, the Adjusted Capital Account
Deficit of the Unitholder as quickly as possible. It is intended
that this Section 4.3(c)(i)(C) qualify and be construed as a
"qualified income offset" within the meaning of Regulations
1.704- 1(b)(2)(ii)(d), which shall be controlling in the event of
a conflict between such Regulations and this Section
4.3(c)(i)(C).
(D) The allocations set forth in Sections 4.3(c)(i)
(A), (B) and (C) (the "Regulatory Allocations") are intended to
comply with certain regulatory requirements, including the
requirements of Regulations Sections 1.704-1(b) and 1.704-2.
Notwithstanding the provisions of
22
Section 4.3(b), the Regulatory Allocations shall be taken into
account in allocating other items of income, gain, loss and
deduction among the Unitholders so that, to the extent possible,
the net amount of such allocations of other items and the
Regulatory Allocations to each Unitholder shall be equal to the
net amount that would have been allocated to each such Unitholder
if the Regulatory Allocations had not occurred.
(ii) For any fiscal year during which a Unitholder's
interest in the Company is assigned by such Unitholder, the portion of
the Net Income and Net Loss of the Company that is allocable in
respect of such Unitholder's interest shall be apportioned between the
assignor and the assignee of such Unitholder's interest using any
permissible method under Code Section 706 and the Regulations
thereunder, as determined by the Management Committee.
(iii) In the event that any amount claimed by the Company
to constitute a deductible expense in any fiscal year is treated for
federal income tax purposes as a distribution made to a Unitholder in
its capacity as a partner of the Company and not a payment to a
Unitholder not acting in its capacity as a partner under Code Section
707(a), then the Unitholder who is deemed to have received such
distribution shall first be allocated an amount of Company gross
income equal to such payment, its Capital Account shall be reduced to
reflect the distribution, and for purposes of Section 4.3, Net Income
and Net Loss shall be determined after making the allocation required
by this Section 4.3(c)(iii).
(iv) In the event that any amount claimed by the Company
to constitute a distribution made to a Unitholder in its capacity as a
partner of the Company is treated for federal income tax purposes as a
deductible expense of the Company for a payment to a Unitholder not
acting in its capacity as a partner of the Company, then the
Unitholder who is deemed to have received such payment shall first be
allocated the Company expense item attributable to such payment, its
Capital Account shall be reduced to reflect the allocation, and for
purposes of Section 4.3, Net Income and Net Loss shall be determined
after making the allocation required by this Section 4.3(c)(iv).
(d) Required Tax Allocations. All items of income, gain,
loss, deduction and credit for federal income tax purposes shall be
allocated to each Unitholder in the same manner as the Net Income or Net
Loss (and each item of income, gain, loss and deduction related thereto)
that is allocated to such Unitholder pursuant to Section 4.3(a), (b) and
(c) to which such tax items relate. Notwithstanding the foregoing
provisions of this Section 4.3, income, gain, loss, deduction, and credits
with respect to property contributed to the Company by a Unitholder shall
be allocated among the Unitholders for federal and state income tax
purposes pursuant to Regulations promulgated under Section 704(c) of the
Code, so as to take account of the variation, if any, between the adjusted
basis for federal income tax purposes of the property to the Company and
its initial Gross Asset Value at the time of contribution. In the event the
Gross Asset Value of any Company asset is adjusted pursuant to subparagraph
(b), (c), or (d) of the definition of Gross Asset Value, subsequent
allocations of income, gain, loss,
23
deduction, and credits with respect to such asset shall take account of the
variation, if any, between the adjusted basis of such asset for federal
income tax purposes and its Gross Asset Value in the same manner as under
Code Section 704(c) and the applicable Regulations consistent with the
requirements of Treasury Regulation Section 1.704-1(b)(2)(iv)(g).
Allocations pursuant to this Section 4.3(d) are solely for purposes of
federal, state and local income taxes and shall not affect, or in any way
be taken into account in computing, any Unitholder's Capital Account or
share of Net Income, Net Loss, other tax items or distributions pursuant to
any provision of this Agreement.
(e) Unitholders' Tax Reporting. The Unitholders acknowledge
and are aware of the income tax consequences of the allocations made by
this Section 4.3 and, except as may otherwise be required by applicable law
or regulatory requirements, hereby agree to be bound by the provisions of
Section 4.3 in reporting their shares of Company income, gain, loss,
deductions, and credits for federal, state and local income tax purposes.
(f) Withholding. Each Unitholder hereby authorizes the
Company to withhold and to pay over any taxes payable by the Company or any
of its Affiliates as a result of the participation by such Unitholder (or
any Assignee of, or Successor in Interest to, such Unitholder) in the
Company; provided that, prior to withholding any amount in respect of
Minnesota income taxes from any Unitholder, the Company shall provide such
Unitholder a reasonable opportunity to provide the Company an exemption
certificate, or its equivalent, to exonerate the Company from any
obligation to withhold such tax. If and to the extent that the Company
shall be required to withhold any taxes, such Unitholder shall be deemed
for all purposes of this Agreement to have received a payment from the
Company as of the time such withholding is required to be paid, which
payment shall be deemed to be a distribution to such Unitholder under
Section 4.4(a) or Section 5.2 to the extent that the Unitholder is entitled
to receive a distribution and shall be taken into account in determining
the amount of future distributions to such Unitholder. To the extent that
the aggregate of such payments to a Unitholder for any period exceeds the
distributions to which such Unitholder is entitled for such period, the
amount of such excess shall be considered a demand loan from the Company to
such Unitholder, with interest at an interest rate of 9% compounded
annually, which interest shall be treated as an item of Company income
until discharged by such Unitholder by repayment, which may be made in the
sole discretion of the Management Committee out of distributions to which
such Unitholder would otherwise be subsequently entitled. The withholdings
referred to in this Section 4.3 shall be made at the maximum applicable
statutory rate under applicable tax law unless the Management Committee
receives documentation, satisfactory to the Management Committee, to the
effect that a lower rate is applicable, or that no withholding is
applicable.
SECTION 4.4 Distributions.
(a) Priority. Distributable Assets will be distributed (or
set aside for the benefit of the applicable Unitholder in the discretion of
the Management Committee) as soon as reasonably practicable after such
Distributable Assets become available to the Company, subject to Sections
4.4(b) and (c) as follows:
24
(i) First, 100% of the Distributable Assets shall be
distributed to the Unitholders pro rata in accordance with each such
Unitholder's Unreturned Capital until each such Unitholder's
Unreturned Capital has been reduced to zero;
(ii) Second, after the required distributions pursuant to
subparagraph (i) above, 100% of the Distributable Assets shall be
distributed to the holders of Class A Units and Class B Units, pro
rata in accordance with the aggregate amount of such Unitholders'
Unpaid Preferred Return until each such Unitholder's Unpaid Preferred
Return has been reduced to zero;
(iii) Third, after the required distributions pursuant to
subparagraph (ii) above, until the First Performance Hurdle has been
satisfied, 100% of the Distributable Assets shall be distributed as
follows:
(A) 92.5% to the holders of Class A Units and Class
B Units, pro rata in accordance with the number of Class A Units
and Class B Units held by each such Unitholder; and
(B) (1) a percentage, equal to the product of (x)
7.5% multiplied by (y) the Class C Fraction, to the holders of
Class C Units, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (2) a percentage, if any,
equal to the product of (x) 7.5% multiplied by (y) one minus the
Class C Fraction, to the holders of Class A and Class B Units,
pro rata in accordance with the number of Class A Units and Class
B Units held by each such Unitholder;
(iv) Fourth, after the required distributions pursuant to
subparagraph (iii) above and after the First Performance Hurdle has
been met, 100% of the Distributable Assets shall be distributed to the
holders of Class C Units, pro rata in accordance with the number of
Class C Units held by each such Unitholder, until the cumulative
amount of distributions made to holders of Class C Units pursuant to
this Section 4.4(a)(iv) and Section 4.4(a)(iii)(B)(1) above is equal
to (1) the product of (x) 12.5% multiplied by (y) the Class C
Fraction, multiplied by (2) the cumulative distributions made to all
Unitholders pursuant to this Section 4.4(a)(iv) and Section
4.4(a)(iii) above;
(v) Fifth, after the required distributions pursuant to
subparagraph (iv) above, until the Second Performance Hurdle has been
satisfied, 100% of the Distributable Assets shall be distributed as
follows:
(A) 87.5% to the holders of Class A Units and Class
B Units, pro rata in accordance with the number of Class A Units
and Class B Units held by each such Unitholder; and
(B) (1) a percentage, equal to the product of (x)
12.5% multiplied by (y) the Class C Fraction, to the holders of
Class C Units, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (2) a percentage, if any,
equal to the product of (x) 12.5%
25
multiplied by (y) one minus the Class C Fraction, to the holders
of Class A and Class B Units, pro rata in accordance with the
number of Class A Units and Class B Units held by each such
Unitholder;
(vi) Sixth, after the required distributions pursuant to
subparagraph (v) above, until the Third Performance Hurdle has been
satisfied, 100% of the Distributable Assets shall be distributed as
follows:
(A) 75% to the holders of Class A Units and Class B
Units, pro rata in accordance with the number of Class A Units
and Class B Units held by each such Unitholder; and
(B) (1) a percentage, equal to the product of (x)
25% multiplied by (y) the Class C Fraction, to the holders of
Class C Units, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (2) a percentage, if any,
equal to the product of (x) 25% multiplied by (y) one minus the
Class C Fraction, to the holders of Class A and Class B Units,
pro rata in accordance with the number of Class A Units and Class
B Units held by each such Unitholder; and
(vii) Seventh, after the required distributions pursuant
to subparagraph (vi) above and after the Third Performance Hurdle has
been met, 100% of the Distributable Assets shall be distributed as
follows:
(A) 67.5% to the holders of Class A Units and Class
B Units, pro rata in accordance with the number of Class A Units
and Class B Units held by each such Unitholder; and
(B) (1) a percentage, equal to the product of (x)
32.5% multiplied by (y) the Class C Fraction to the holders of
Class C Units, pro rata in accordance with the number of Class C
Units held by each such Unitholder, and (2) a percentage, if any,
equal to the product of (x) 32.5% multiplied by (y) one minus the
Class C Fraction, to the holders of Class A Units and Class B
Units, pro rata in accordance with the number of Class A Units
and Class B Units held by each such Unitholder;
provided that, if the Distributable Assets being distributed consist
of more than one kind of asset, all Distributable Assets consisting of
cash must be distributed before any other kind of asset is
distributed.
(b) Successors. For purposes of determining the amount of
distributions under this Section 4.4, each Unitholder shall be treated as
having received amounts received by its predecessors in respect of any of
such Unitholder's Units.
(c) Tax Distributions. Subject to the Act and to any
restrictions contained in any agreement to which the Company is bound, no
later than the tenth day of each March, June, September and December, the
Company shall, to the extent of available cash, make a tax distribution to
each Unitholder in an amount equal to the
26
excess of (i) the product of (A) the cumulative taxable income (including
any guaranteed payments for services that are not actually received by such
Unitholder in cash) attributable to the Unitholder's investment as reported
on the Unitholder's Schedule K-1 allocated by the Company to the
Unitholder, in excess of the cumulative taxable loss attributable to the
Unitholder's investment as reported on the Unitholder's Schedule K-1
allocated by the Company to the Unitholder and (B) the combined maximum
federal, state and local marginal income tax rate (taking into account the
deductibility of state and local taxes and adjusted appropriately to take
into account the varying rates applicable to capital gains, qualified
dividend income and ordinary income) applicable to individual residents of
New York, New York, over (ii) all prior distributions pursuant to this
Section 4.4. All distributions made to a Unitholder pursuant to this
Section 4.4(c) on account of the taxable income allocated to such
Unitholder shall be treated as advance distributions under Section 4.4(a)
or Section 5.2 and shall be taken into account in determining the amount of
future distributions to such Unitholder. For purposes of determining the
amount of distributions to be made to the Unitholders pursuant to Section
4.4(a) or Section 5.2, distributions made pursuant to this Section 4.4(c)
shall be deemed made at such time as they offset distributions being made
pursuant to Section 4.4(a) or Section 5.2.
SECTION 4.5 Security Interest and Right of Set-Off. As security for
any withholding tax or other liability or obligation to which the Company may be
subject as a result of any act or status of any Unitholder, or to which the
Company may become subject with respect to the interest of any Unitholder, the
Company shall have (and each Unitholder hereby grants to the Company) a security
interest in all Distributable Assets distributable to such Unitholder to the
extent of the amount of such withholding tax or other liability or obligation.
The Company shall have a right of setoff against such distributions of
Distributable Assets in the amount of such withholding tax or other liability or
obligation, subject to the proviso in the first sentence of Section 4.3(f). The
Company may withhold distributions or portions thereof if it is required to do
so by the Code or any other provision of federal, state or local tax or other
law. Any amount withheld pursuant to the Code or any other provision of federal,
state or local tax or other law with respect to any distribution to a Unitholder
shall be treated as an amount distributed to such Unitholder for all purposes
under this Agreement.
27
ARTICLE V.
WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS;
----------------------------------------------------------
ADMISSION OF NEW MEMBERS
------------------------
SECTION 5.1 Unitholder Withdrawal. No Unitholder shall have the power
or right to withdraw or otherwise resign or be expelled from the Company prior
to the dissolution and winding up of the Company except pursuant to a transfer
permitted under this Agreement of all of such Unitholder's Units to an Assignee,
a Member or the Company. Notwithstanding anything to the contrary contained in
the Act, in no event shall any Unitholder be deemed to have withdrawn from the
Company or cease to be a Unitholder upon the occurrence of any of the events
specified in this Agreement, or any events similar thereto, unless the
Unitholder, after the occurrence of any such event, indicates in a written
instrument that the Unitholder has so withdrawn.
SECTION 5.2 Dissolution.
(a) Events. The Company shall be dissolved and its affairs
shall be wound up on the first to occur of the following:
(i) the unanimous vote of the Management Committee;
(ii) (a) the written consent of the Members holding a
majority of the outstanding Class A Units, and (b) the written consent
of the Members holding a majority of the outstanding Class B Units;
(iii) the entry of a decree of judicial dissolution of
the Company under Section 18-802 of the Act;
(iv) upon consummation of a Sale of the Company (as
defined in the Securityholders Agreement), upon consummation of a
Public Offering (as defined in the Securityholders Agreement) or upon
consummation of a merger or consolidation pursuant to which the
Company is not the surviving entity, each with the consent of a
majority of the Management Committee; and
(v) upon the liquidation, dissolution or winding up of
the Company or Holdings.
Except as provided in this Agreement, the death, retirement, resignation,
expulsion, incapacity, bankruptcy or dissolution of a Member, or the occurrence
of any other event that terminates the continued membership of a Member in the
Company, shall not cause a dissolution of the Company, and the Company shall
continue in existence subject to the terms and conditions of this Agreement.
(b) Actions Upon Dissolution. When the Company is dissolved,
the business and property of the Company shall be wound up and liquidated
by the Management Committee or, in the event of the unavailability of the
Management Committee, such Member or other liquidating trustee as shall be
named by the Management Committee.
28
(c) Priority. Within 120 calendar days after the effective
date of dissolution of the Company, whether by expiration of its full term
or otherwise, the assets of the Company shall be distributed in the
following manner and order:
(i) All debts and obligations of the Company, if any,
shall first be paid, discharged or provided for by adequate reserves;
and
(ii) The balance shall be distributed to the Unitholders
in accordance with Section 4.4.
(d) Cancellation of Certificate. On completion of the
distribution of Company assets as provided herein, the Company is
terminated, and shall file a certificate of cancellation with the Secretary
of State of the State of Delaware, cancel any other filings made and take
such other actions as may be necessary to terminate the Company.
SECTION 5.3 Transfer by Unitholders. Subject to the Securityholders
Agreement and this Agreement, a Unitholder may transfer or assign all or part of
its interest as a Unitholder in the Company to any Person that agrees in writing
to assume the responsibility of a Unitholder. Any Member who shall assign any
Units in the Company shall cease to be a Member of the Company with respect to
such Units and shall no longer have any rights or privileges of a Member with
respect to such Units. Any Member or Assignee who acquires in any manner
whatsoever any Units, irrespective of whether such Person has accepted and
adopted in writing the terms and provisions of this Agreement, shall be deemed
by the acceptance of the benefits of the acquisition thereof to have agreed to
be subject to and bound by all of the terms and conditions of this Agreement
that any predecessor in such Units or other interest in the Company was subject
to or by which such predecessor was bound. No Member shall cease to be a Member
upon the collateral assignment of, or the pledging or granting of a security
interest in, its entire interest in the Company.
SECTION 5.4 Admission or Substitution of New Members.
(a) Admission. The Management Committee shall have the right,
subject to Section 5.3, to admit as a Substitute Member or an Additional
Member, any Person who acquires an interest in the Company, or any part
thereof, from a Member or from the Company; provided that, the Management
Committee shall admit as a Substitute Member, subject to Section 5.4(b),
any transferee who acquires an interest in the Company pursuant to an
Exempt Transfer (as such term is defined in the Securityholders Agreement).
Concurrently with the admission of a Substitute Member or an Additional
Member, the Management Committee shall forthwith cause any necessary papers
to be filed and recorded and notice to be given wherever and to the extent
required showing the substitution of a transferee as a Substitute Member in
place of the transferring Member, or the admission of an Additional Member,
all at the expense, including payment of any professional and filing fees
incurred, of the Substitute Member or the Additional Member.
29
(b) Conditions. The admission of any Person as a Substitute
or Additional Member shall be conditioned upon (i) such Person's written
acceptance and adoption of all the terms and provisions of this Agreement,
either by (X) execution and delivery of a counterpart signature page to
this Agreement countersigned by a Representative on behalf of the Company
or (Y) any other writing evidencing the intent of such Person to become a
Substitute Member or Additional Member and such writing is accepted by the
Management Committee on behalf of the Company and (ii) (at the request of
the Management Committee) such Person's execution and delivery of a
counterpart to the Securityholders Agreement.
SECTION 5.5 Compliance with Law. Notwithstanding any provision hereof
to the contrary, no sale or other disposition of an interest in the Company may
be made except in compliance with all federal, state and other applicable laws,
including federal and state securities laws. Nothing in this Section 5.5 shall
be construed to limit or otherwise affect any of the provisions of the
Securityholders Agreement or the Management Unit Subscription Agreements, and to
the extent any such provisions apply, they are then to be construed as being
incorporated in this Agreement and made a part hereof.
ARTICLE VI.
REPORTS TO MEMBERS; TAX MATTERS
-------------------------------
SECTION 6.1 Books of Account. Appropriate books of account shall be
kept by the Management Committee, in accordance with generally accepted
accounting principles, at the principal place of business of the Company, and
each Member shall have access to all books, records and accounts of the Company
and the right to make copies thereof for any purpose reasonably related to the
Member's interest as a member of the Company, in each case, under such
conditions and restrictions as the Management Committee may reasonably
prescribe.
SECTION 6.2 Reports.
(a) Financial Statements. As promptly as practicable after
the close of each fiscal year of the Company, the Management Committee
shall cause an examination of the financial statements of the Company as of
the end of each such fiscal year to be made in accordance with generally
accepted auditing standards as in effect on the date thereof, by a firm of
certified public accountants selected by the Management Committee. Within
60 days after the close of each fiscal year, a copy of the financial
statements of the Company, including the report of such certified public
accountants, shall be furnished to each Unitholder and shall include, as of
the end of such fiscal year:
(i) a statement prepared by the Company setting forth
the balance of each Unitholder's Capital Account and the amount of
that Unitholder's allocable share of the Company's items of Net Income
or Net Loss and deduction, capital gain and loss or credit for such
year for each of its Economic Interests; and
(ii) a balance sheet, a statement of income and expense
and a statement of changes in cash flows of the Company for that
fiscal year.
30
In addition, the Unitholders shall be supplied with all other Company
information necessary to enable each Unitholder to prepare its federal,
state, and local income tax returns, which information shall include a
Schedule K-1.
(b) Determinations. All determinations, valuations and other
matters of judgment required to be made for accounting purposes under this
Agreement shall be made by the Management Committee and shall be conclusive
and binding on all Unitholders, their Successors in Interest and any other
Person, and to the fullest extent permitted by law, no such Person shall
have the right to an accounting or an appraisal of the assets of the
Company or any successor thereto; provided, however, that with respect to
determinations or valuations related to any determination of which
performance hurdle applies with respect to any Company assets distributed
in kind, if the holders of a majority of the Class B Units disagree in good
faith with the Management Committee's determination, then such holders
through a single representative shall promptly notify the Company in
writing of such disagreement, in which event an independent appraiser,
accountant or investment banking firm (the "Arbiter") selected by mutual
agreement of such holders and the Management Committee shall make a
determination of the Gross Asset Value of the Company assets distributed in
kind or other disputed item thereof solely by (i) reviewing a single
written presentation timely made by each of the Company and the
representative of such holders setting forth their respective resolutions
of the dispute and the bases therefor and (ii) accepting either such
holders' or the Company's proposed resolution of the dispute. Promptly
following the Company's receipt of such holders' written notice of
disagreement, the Company shall make available to such holders all data
(including reports of employees and outside advisors) relied upon by the
Management Committee in making its determination. Such holders' and the
Company's written presentations must be submitted to the Arbiter within 30
days of the Arbiter's engagement. The Arbiter shall notify the
representative of such holders and the Company of its decision within 40
days of its engagement. The party whose proposed resolution is not accepted
shall pay all of the Arbiter's fees and expenses, which in the case of the
holders shall be limited only to those holders challenging the Management
Committee determination. If such holders' proposed resolution is accepted,
the Company also shall pay all of such holders' reasonable out-of-pocket
fees and expenses (including reasonable fees and expenses of counsel and
one appraiser, accountant or investment banking firm) incurred in
connection with the arbitration. Each of the Company and such holders
agrees to execute, if requested by the Arbiter, a reasonable engagement
letter with the Arbiter.
SECTION 6.3 Fiscal Year. The fiscal year of the Company shall end on
December 31/st/ of each calendar year unless otherwise determined by the
Management Committee in accordance with Section 706 of the Code.
SECTION 6.4 Certain Tax Matters.
(a) Preparation of Returns. The Management Committee shall
cause to be prepared all federal, state and local tax returns of the
Company for each year for which such returns are required to be filed and
shall cause such returns to be timely filed. The Management Committee shall
determine the appropriate treatment of each
31
item of income, gain, loss, deduction and credit of the Company and the
accounting methods and conventions under the tax laws of the United States,
the several states and other relevant jurisdictions as to the treatment of
any such item or any other method or procedure related to the preparation
of such tax returns. The Management Committee may cause the Company to make
or refrain from making any and all elections permitted by such tax laws.
Each Unitholder agrees that it shall not, except as otherwise required by
applicable law or regulatory requirements, (i) treat, on its individual
income tax returns, any item of income, gain, loss, deduction or credit
relating to its interest in the Company in a manner inconsistent with the
treatment of such item by the Company as reflected on the Form K-1 or other
information statement furnished by the Company to such Unitholder for use
in preparing its income tax returns or (ii) file any claim for refund
relating to any such item based on, or which would result in, such
inconsistent treatment. In respect of an income tax audit of any tax return
of the Company, the filing of any amended return or claim for refund in
connection with any item of income, gain, loss, deduction or credit
reflected on any tax return of the Company, or any administrative or
judicial proceedings arising out of or in connection with any such audit,
amended return, claim for refund or denial of such claim, (A) the Tax
Matters Member (as defined below) shall be authorized to act for, and its
decision shall be final and binding upon, the Company and all Unitholders
except to the extent a Unitholder shall properly elect to be excluded from
such proceeding pursuant to the Code, (B) all expenses incurred by the Tax
Matters Member in connection therewith (including attorneys', accountants'
and other experts' fees and disbursements) shall be expenses of, and
payable by, the Company, (C) no Unitholder shall have the right to (1)
participate in the audit of any Company tax return, (2) file any amended
return or claim for refund in connection with any item of income, gain,
loss, deduction or credit (other than items which are not partnership items
within the meaning of Section 6231(a)(4) of the Code or which cease to be
partnership items under Section 6231(b) of the Code) reflected on any tax
return of the Company, (3) participate in any administrative or judicial
proceedings conducted by the Company or the Tax Matters Member arising out
of or in connection with any such audit, amended return, claim for refund
or denial of such claim, or (4) appeal, challenge or otherwise protest any
adverse findings in any such audit conducted by the Company or the Tax
Matters Member or with respect to any such amended return or claim for
refund filed by the Company or the Tax Matters Member or in any such
administrative or judicial proceedings conducted by the Company or the Tax
Matters Member and (D) the Tax Matters Member shall keep the Unitholders
reasonably apprised of the status of any such proceeding. Notwithstanding
the previous sentence, if a petition for a readjustment to any partnership
item included in a final partnership administrative adjustment is filed
with a District Court or the Court of Claims and the IRS has elected to
assess income tax against a Member with respect to that final partnership
administrative adjustments (rather than suspending assessments until the
District Court or Court of Claims proceedings become final), such Member
shall be permitted to file a claim for refund within such period of time to
avoid application of any statute of limitation provisions which would
otherwise prevent the Member from having any claim based on the final
outcome of that review.
32
(b) Tax Matters Member. The Company and each Member hereby
designate Thomas H. Lee Equity Fund V, L.P. as the "tax matters partner"
for purposes of Section 6231(a)(7) of the Code (the "Tax Matters Member").
(c) Certain Filings. Upon the sale of Company assets or a
liquidation of the Company, Unitholders shall provide the Management
Committee with certain tax filings as reasonably requested by the
Management Committee and required under applicable law.
ARTICLE VII.
MISCELLANEOUS
-------------
SECTION 7.1 Schedules. Without in any way limiting the provisions of
Section 6.2, a Representative may from time to time execute on behalf of the
Company and deliver to the Unitholders schedules which set forth the then
current Capital Account balances of each Unitholder and any other matters deemed
appropriate by the Management Committee or required by applicable law. Such
schedules shall be for information purposes only and shall not be deemed to be
part of this Agreement for any purpose whatsoever.
SECTION 7.2 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and any provision
of the Certificate or any mandatory provision of the Act, the applicable
provision of the Certificate or the Act shall control. If any provision of this
Agreement or the application thereof to any Person or circumstance is held
invalid or unenforceable to any extent, the remainder of this Agreement and the
application of that provision to other Persons or circumstances is not affected
thereby and that provision shall be enforced to the greatest extent permitted by
law.
SECTION 7.3 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
Successors in Interest; provided that no Person claiming by, through or under a
Member (whether as such Member's Successor in Interest or otherwise), as
distinct from such Member itself, shall have any rights as, or in respect to, a
Member (including the right to approve or vote on any matter or to notice
thereof).
SECTION 7.4 Confidentiality. By executing this Agreement, for three
years from the receipt thereof, each Member expressly agrees to maintain the
confidentiality of, and not to disclose to any Person other than the Company,
another Member or a Person designated by the Company or any of their respective
financial planners, accountants, attorneys or other advisors, any information
relating to the business, financial structure, financial position or financial
results, clients or affairs of the Company that shall not be generally known to
the public, except as otherwise required by law or by any regulatory or
self-regulatory organization having jurisdiction and except in the case of any
Member who is employed by any entity controlled by the Company in the ordinary
course of its duties. Notwithstanding anything to the
33
contrary set forth herein or in any other agreement to which the parties hereto
are parties or by which they are bound, the obligations of confidentiality
contained herein and therein, as they relate to an investment in Membership
Interests (the "Transaction"), shall not apply to the tax structure or tax
treatment of the Transaction, and each party hereto (and any employee,
representative, or agent of any party hereto) may disclose to any and all
persons, without limitation of any kind, the tax structure and tax treatment of
the Transaction and all materials of any kind (including opinions or other tax
analysis) that are provided to such party relating to such tax treatment and tax
structure; provided, however, that such disclosure shall not include the name
(or other identifying information not relevant to the tax structure or tax
treatment) of any person and shall not include information for which
nondisclosure is reasonably necessary in order to comply with applicable
securities laws.
SECTION 7.5 Amendments. The Management Committee may, to the fullest
extent allowable under Delaware law, amend or modify this Agreement; provided
that, if an amendment or modification adversely affects any class of Members,
such class of Members must approve such amendment or modification; provided
further that, the Management Committee may amend this Agreement without the
consent of any class of Members in order to provide for the issuance of any
Company units in accordance with Section 2.9 hereof and the terms of the
Management Unit Subscription Agreements and to make any such other amendments as
it deems necessary or desirable to reflect such additional issuances provided
that, no such amendment shall adversely affect the relationship among the Class
A Units, Class B Units and Class C Units as set forth herein; provided further
that no amendment shall be effective if such amendment results in Units held by
a Member being redesignated to a different class of Unit than the class of which
it is then included, without such Member's consent.
SECTION 7.6 Notices. Whenever notice is required or permitted by this
Agreement to be given, such notice shall be in writing and shall be given to any
Unitholder at its address or telecopy number shown in the Company's books and
records, or, if given to the Company, at the following address:
c/o Thomas H. Lee Partners, L.P.
75 State Street
Boston, MA 02109
Attention: Anthony DiNovi
Attention: Kent Weldon
Attention: Todd Abbrecht
Telecopy: (617) 227-3514
with a copy to:
Weil, Gotshal & Manges LLP
100 Federal Street
Boston, MA 02110
Attention: James Westra, Esq.
Telecopy: (617) 772-8333
34
Each proper notice shall be effective upon any of the following: (i) personal
delivery to the recipient, (ii) when telecopied to the recipient (with hard copy
sent to the recipient by reputable overnight courier service that same day or
the next business day (charges prepaid)), (iii) one business day after being
sent to the recipient by reputable overnight courier service (charges prepaid)
or (iv) two business days after being deposited in the mails (first class or
airmail postage prepaid).
SECTION 7.7 Counterparts. This Agreement may be executed in any
number of counterparts (including by means of telecopied signature pages), all
of which together shall constitute a single instrument.
SECTION 7.8 Power of Attorney. Each Member hereby irrevocably
appoints each Representative as such Member's true and lawful representative and
attorney-in-fact, each acting alone, in such Member's name, place and stead, (i)
to make, execute, sign and file all instruments, documents and certificates
which, from time to time, may be required to set forth any amendment to this
Agreement or which may be required by this Agreement or by the laws of the
United States of America, the State of Delaware or any other state in which the
Company shall determine to do business, or any political subdivision or agency
thereof and (ii) to execute, implement and continue the valid and subsisting
existence of the Company or to qualify and continue the Company as a foreign
limited liability company in all jurisdictions in which the Company may conduct
business. The chief executive officer, as representative and attorney-in-fact,
however, shall not have any rights, powers or authority to amend or modify this
Agreement when acting in such capacity, except as expressly provided herein.
Such power of attorney is coupled with an interest and shall survive and
continue in full force and effect notwithstanding the subsequent withdrawal from
the Company of any Member for any reason and shall survive and shall not be
affected by the disability or incapacity of such Member.
SECTION 7.9 Entire Agreement. This Agreement amends, restates and
supersedes in its entirety the Original Agreement. This Agreement and the other
documents and agreements referred to herein or entered into concurrently
herewith embody the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein; provided that, such other
agreements and documents shall not be deemed to be a part of, a modification of
or an amendment to this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 7.10 Section Titles. Section titles and headings are for
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text hereof.
35
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Limited Liability Company Agreement as of the day and year first above
written.
THL-MF INVESTORS, LLC
By: /s/ Gregg A. Ostrander
-------------------------------------
Name: Gregg A. Ostrander
Title:
MEMBERS:
THOMAS H. LEE EQUITY FUND V, L.P.
By: THL Equity Advisors V, LLC,
its general partners
By: Thomas H. Lee Partners, L.P.,
its sole member
By: Thomas H. Lee Advisors LLC,
its general partner
By: /s/ Illegible
-------------------------------------
Name:
Title: Managing Director
THOMAS H. LEE PARALLEL FUND V, L.P.
By: THL Equity Advisors V, LLC,
its general partner
By: Thomas H. Lee Partners, L.P.,
its sole member
By: Thomas H. Lee Advisors LLC,
its general partner
By: /s/ Illegible
-------------------------------------
Name:
Title: Managing Director
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
THOMAS H. LEE CAYMAN FUND V, L.P.
By: THL Equity Advisors V, LLC,
its general partner
By: Thomas H. Lee Partners, L.P.,
its sole member
By: Thomas H. Lee Advisors LLC,
its general partner
By: /s/ Illegible
-------------------------------------
Name:
Title: Managing Director
1997 THOMAS H. LEE NOMINEE TRUST
By: US Bank, N.A., not personally, but
solely as Trustee under the 1997
Thomas H. Lee Nominee Trust
By: /s/ Gerald R. Wheeler
-------------------------------------
Name: Gerald R. Wheeler
Title:
THOMAS H. LEE INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp.,
its general partner
By: /s/ Illegible
-------------------------------------
Name: Thomas H. Lee
Title: Chief Executive Officer
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
PUTNAM INVESTMENTS EMPLOYEES' SECURITIES
COMPANY I LLC
By: Putnam Investments Holdings, LLC,
its managing member
By: Putnam Investments, LLC, its
managing member
By: /s/ Illegible
-------------------------------------
Name:
Title:
PUTNAM INVESTMENTS EMPLOYEES' SECURITIES
COMPANY II LLC
By: Putnam Investments Holdings, LLC,
its managing member
By: Putnam Investments, LLC, its
managing member
By: /s/ Illegible
-------------------------------------
Name:
Title:
PUTNAM INVESTMENTS HOLDINGS, LLC
By: Putnam Investments, LLC, its
managing member
By: /s/ Illegible
-------------------------------------
Name:
Title:
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Gregg A. Ostrander
----------------------------------------
Gregg A. Ostrander
/s/ John D. Reedy
----------------------------------------
John D. Reedy
/s/ James D. Clarkson
----------------------------------------
James D. Clarkson
/s/ Max R. Hoffman
----------------------------------------
Max R. Hoffman
/s/ James Mohr
----------------------------------------
James Mohr
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Mark Brian Anderson
----------------------------------------
Mark Brian Anderson
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Steven Todd Bacon
----------------------------------------
Steven Todd Bacon
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Charles Douglas Bailey
----------------------------------------
Charles Douglas Bailey
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Terry L. Baker
----------------------------------------
Terry L. Baker
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Timothy James Bebee
----------------------------------------
Timothy James Bebee
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Toby Lee Catherman
----------------------------------------
Toby Lee Catherman
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Thomas Prescott Colwell
----------------------------------------
Thomas Prescott Colwell
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Deborah Naismith Cummings
----------------------------------------
Deborah Naismith Cummings
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Michael Allen Elliot
----------------------------------------
Michael Allen Elliot
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Richard James Howe
----------------------------------------
Richard James Howe
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Michael Lee Jaeger
----------------------------------------
Michael Lee Jaeger
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Michael Frederick Johnson
----------------------------------------
Michael Frederick Johnson
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Thomas Charles Kelly
----------------------------------------
Thomas Charles Kelly
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Timothy Dean Larson
----------------------------------------
Timothy Dean Larson
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Craig Stanley Morrill
----------------------------------------
Craig Stanley Morrill
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ S. Vincent O'Brien
----------------------------------------
S. Vincent O'Brien
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Stephan Jay Ostrander
----------------------------------------
Stephan Jay Ostrander
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Russell P. Roedl
----------------------------------------
Russell P. Roedl
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Ronald Allen Seim
----------------------------------------
Ronald Allen Seim
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Steven Joseph Semmer
----------------------------------------
Steven Joseph Semmer
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Diane Marie Sparish
----------------------------------------
Diane Marie Sparish
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Jeffrey C. Thomas
----------------------------------------
Jeffrey C. Thomas
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Vicki Lee Wass
----------------------------------------
Vicki Lee Wass
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Mark W. Westphal
----------------------------------------
Mark W. Westphal
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ John Hugh Wiebe
----------------------------------------
John Hugh Wiebe
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Mark D. Witmer
----------------------------------------
Mark D. Witmer
COUNTERPART SIGNATURE PAGE TO AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT
/s/ Dennis Lee Woodward
----------------------------------------
Dennis Lee Woodward
Schedule A (Investors)
- -----------------------------------------------------------------------------
Class A Class B Class C
Units Units Units
Thomas H. Lee Equity Fund V, L.P. 2,233,940.73 - 0 - - 0 -
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Thomas H. Lee Parallel Fund V, L.P. 579,618.07 - 0 - - 0 -
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Thomas H. Lee Cayman Fund V, L.P. 30,780.61 - 0 - - 0 -
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Thomas H. Lee Investors Limited 4,721.67 - 0 - - 0 -
Partnership
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
1997 Thomas H. Lee Nominee Trust 5,071.48 - 0 - - 0 -
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Putnam Investments Holdings, LLC 17,460.52 - 0 - - 0 -
75 State Street
Boston, MA 02109
Attn: William H. Woolverton
Putnam Investments Employees' 15,007.43 - 0 - - 0 -
Securities Company I, LLC
75 State Street
Boston, MA 02109
Attn: William H. Woolverton
Putnam Investments Employees' 13,399.49 - 0 - - 0 -
Securities Company II, LLC
75 State Street
Boston, MA 02109
Attn: William H. Woolverton
Gregg A. Ostrander 22,806.09 118,193.91 141,000.00
21520 Fairview Street
Greenwood, MN 55331
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Class A Class B Class C
Units Units Units
John D. Reedy 7,707.96 42,292.04 50,000.00
7262 Gordon Drive
Eden Prairie, MN 55346
James D. Clarkson 16,206.50 33,793.50 50,000.00
11428 Entrevaux Drive
Eden Prairie, MN 55347
Max R. Hoffman 6,863.43 10,136.57 17,000.00
14520 Wellington Road
Wayzata, MN 55391
James Mohr 5,728.70 11,271.30 17,000.00
5288 River Oak Drive
Savage, MN 55378
Mark Brian Anderson 10.95 3,989.05 4,000.00
10609 Wyoming Road
Bloomington, MN 55438
Steven Todd Bacon - 0 - 1,000.00 1,000.00
2025 Haughton Avenue
North Mankato, MN 56003
Charles Douglas Bailey - 0 - 4,500.00 4,500.00
14130 46th Place North
Plymouth, MN 55446
Terry L. Baker - 0 - 3,000.00 3,000.00
308 Michener Street
Wakefield, NE 68784
Timothy James Bebee - 0 - 1,500.00 1,500.00
1008 Winter Street
Wakefield, NE 68784
Toby Lee Catherman 982.33 1,017.67 2,000.00
1504 East Mountain Road
Hegins, PA 17938
Thomas Prescott Colwell 5.47 1,994.53 2,000.00
4100 Countryview Drive
Eagan, MN 55123
Deborah Naismith Cummings 43.46 1,456.54 1,500.00
13510 Willow Springs Road
Haslet, TX 76052
Michael Allen Elliott 1,246.22 753.78 2,000.00
12452 Alise Place
Eden Prairie, MN 55347
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Class A Class B Class C
Units Units Units
Richard James Howe - 0 - 1,000.00 1,000.00
15345 41st Place North
Plymouth, MN 55446
Michael Lee Jaeger 2.74 997.26 1,000.00
9617 Lakeside Trail
Champlin, MN 55316
Michael Frederick Johnson 492.53 1,007.47 1,500.00
16940 Kings Court
Lakeville, MN 55044
Thomas Charles Kelly - 0 - 4,000.00 4,000.00
13132 Hallmark Court
Apple Valley, MN 55124
Timothy Dean Larson - 0 - 1,000.00 1,000.00
9900 James Avenue NE
Monticello, MN 55362
Craig Stanley Morrill 268.00 1,232.00 1,500.00
11012 France Avenue South
Bloomington, MN 55431
S. Vincent O'Brien 1,744.25 1,255.75 3,000.00
7800 W. 95th
Bloomington, MN 55438
Stephan Jay Ostrander 1,959.18 40.82 2,000.00
3815 Huntington Ave. So.
St. Louis Park, MN 55416
Russell P. Roedl 2.74 997.26 1,000.00
W8237 Sunset Court
Lake Mills, WI 53551
Ronald Allen Seim 43.46 1,456.54 1,500.00
4150 Ximines Lane
Plymouth, MN 55441
Steven Joseph Semmer - 0 - 1,000.00 1,000.00
4280 Ithaca Lane North
Plymouth, MN 55446
Diane Marie Sparish 43.46 1,456.54 1,500.00
11715 28th Ave. No.
Plymouth, MN 55441
Jeffrey C. Thomas - 0 - 2,000.00 2,000.00
18200 Woolman Drive
Minnetonka, MN 55345
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
Class A Class B Class C
Units Units Units
Vicky Lee Wass - 0 - 1,000.00 1,000.00
2 Wilson Way South
West Windsor, NJ 08550
Mark W. Westphal 84.18 1,915.82 2,000.00
2462 Thrush Street
Shakopee, MN 55379
John Hugh Wiebe 59.94 2,440.06 2,500.00
550 Heron Point Lane
Bellingham, WA 98229
Mark D. Witmer 13.68 4,986.32 5,000.00
6071 Foxtail Drive
White Bear Lake, MN 55110
Dennis Lee Woodward 2.74 997.26 1,000.00
802 Vista Circle
Delano, MN 55328
Totals 2,966,318.01 263,681.99 330,000.00
- -----------------------------------------------------------------------------
Exhibit I (Investors)
- --------------------------------------------------------------------------
Initial Capital
Contribution
(in dollars)
Thomas H. Lee Equity Fund V, L.P. 223,394,073.00
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Thomas H. Lee Parallel Fund V, L.P. 57,961,807.00
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Thomas H. Lee Cayman Fund V, L.P. 3,078,061.00
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Thomas H. Lee Investors Limited Partnership 472,167.00
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
1997 Thomas H. Lee Nominee Trust 507,148.00
75 State Street
Boston, MA 02109
Attn: Anthony DiNovi
Putnam Investments Holdings, LLC 1,746,052.00
75 State Street
Boston, MA 02109
Attn: William H. Woolverton
Putnam Investments Employees' 1,500,743.00
Securities Company I, LLC
75 State Street
Boston, MA 02109
Attn: William H. Woolverton
Putnam Investments Employees' 1,339,949.00
Securities Company II, LLC
75 State Street
Boston, MA 02109
Attn: William H. Woolverton
Gregg A. Ostrander 2,798,996.82
21520 Fairview Street
Greenwood, MN 55331
John D. Reedy 955,380.08
7262 Gordon Drive
Eden Prairie, MN 55346
James D. Clarkson 1,788,237.00
11428 Entrevaux Drive
Eden Prairie, MN 55347
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Max R. Hoffman 740,616.14
14520 Wellington Road
Wayzata, MN 55391
James Mohr 629,412.60
5288 River Oak Drive
Savage, MN 55378
Mark Brian Anderson 17,073.10
10609 Wyoming Road
Bloomington, MN 55438
Steven Todd Bacon 4,000.00
2025 Haughton Avenue
North Mankato, MN 56003
Thomas Prescott Colwell 8,536.06
4100 Countryview Drive
Eagan, MN 55123
Michael Allen Elliott 130,129.56
12452 Alise Place
Eden Prairie, MN 55347
Richard James Howe 4,000.00
15345 41st Place North
Plymouth, MN 55446
Michael Lee Jaeger 4,268.52
9617 Lakeside Trail
Champlin, MN 55316
Michael Frederick Johnson 54,267.94
16940 Kings Court
Lakeville, MN 55044
Thomas Charles Kelly 16,000.00
13132 Hallmark Court
Apple Valley, MN 55124
Timothy Dean Larson 4,000.00
9900 James Avenue NE
Monticello, MN 55362
Craig Stanley Morrill 32,264.00
11012 France Avenue South
Bloomington, MN 55431
S. Vincent O'Brien 182,936.50
7800 W. 95th
Bloomington, MN 55438
Stephan Jay Ostrander 199,999.64
3815 Huntington Ave. So.
St. Louis Park, MN 55416
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Russell P. Roedl 4,268.52
W8237 Sunset Court
Lake Mills, WI 53551
Ronald Allen Seim 10,259.08
4150 Ximines Lane
Plymouth, MN 55441
Steven Joseph Semmer 4,000.00
4280 Ithaca Lane North
Plymouth, MN 55446
Diane Marie Sparish 10,259.08
11715 28th Ave. No.
Plymouth, MN 55441
Jeffrey C. Thomas 8,000.00
18200 Woolman Drive
Minnetonka, MN 55345
Vicky Lee Wass 4,000.00
2 Wilson Way South
West Windsor, NJ 08550
Mark W. Westphal 16,249.64
2462 Thrush Street
Shakopee, MN 55379
John Hugh Wiebe 15,874.12
550 Heron Point Lane
Bellingham, WA 98229
Mark D. Witmer 21,340.64
6071 Foxtail Drive
White Bear Lake, MN 55110
Dennis Lee Woodward 4,268.52
802 Vista Circle
Delano, MN 55328
Charles Douglas Bailey 18,000.00
14130 46th Place North
Plymouth, MN 55446
Terry L. Baker 12,000.00
308 Michener Street
Wakefield, NE 68784
Timothy James Bebee 6,000.00
1008 Winter Street
Wakefield, NE 68784
Toby Lee Catherman 104,268.34
1504 East Mountain Road
Hegins, PA 17938
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Deborah Naismith Cummings 10,259.08
13510 Willow Springs Road
Haslet, TX 76052
Total $ 297,819,164.98
- --------------------------------------------------------------------------