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Exhibit 2.2
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MEMBERS' AGREEMENT
BY AND AMONG
NORTEL NETWORKS INC.,
VOLT INFORMATION SCIENCES, INC.,
NUCO I, LTD.,
VOLT DELTA RESOURCE HOLDINGS, INC.
AND
VOLT DELTA RESOURCES, LLC
AS OF
AUGUST 2, 2004
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Table of Contents
Page
ARTICLE I
DEFINITIONS
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1.1 Certain Defined Terms..........................................................................2
1.2 Terms Generally................................................................................6
ARTICLE II
GOVERNANCE
2.1 Board of Managers..............................................................................6
2.2 Company Matters Requiring Super-Majority Approval..............................................7
2.3 Officers.......................................................................................9
2.4 Financial and Tax Reporting....................................................................9
2.5 Inspection of Facilities and Records..........................................................10
2.6 Enforcement of Contribution Agreement.........................................................10
2.7 Business Opportunities Not Achieving Super-Majority Approval..................................11
ARTICLE III
ADDITIONAL MEMBER RIGHTS AND OBLIGATIONS
3.1 Restrictive Legend............................................................................11
ARTICLE IV
TRANSFER RESTRICTIONS
4.1 Limitations on Transfer.......................................................................12
4.2 Tag-Along Rights..............................................................................13
4.3 Transferee Rights and Obligations.............................................................14
ARTICLE V
ADDITIONAL AGREEMENTS OF THE PARTIES
5.1 Implementation................................................................................14
5.2 Company Covenant..............................................................................14
5.3 Implementation of Business Plan...............................................................14
5.4 Non-Competition...............................................................................14
5.5 Members' Trademarks and Tradenames............................................................18
5.6 Banking Matters...............................................................................18
5.7 Distributions.................................................................................18
5.8 Other Activities of Members and Affiliates....................................................19
5.9 Capital Contributions.........................................................................19
5.10 Restriction on Security Interests.............................................................19
5.11 Relationship Agreement Payments...............................................................19
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5.12 Confidentiality...............................................................................19
ARTICLE VI
TERM AND TERMINATION
6.1 Termination...................................................................................20
6.2 Termination Events............................................................................21
6.3 Put and Call Options..........................................................................21
6.4 Option Closing................................................................................22
6.5 Audit Rights..................................................................................22
6.6 Dispute Resolution............................................................................23
6.7 No Prejudice to Rights........................................................................23
ARTICLE VII
MISCELLANEOUS
7.1 Expenses......................................................................................24
7.2 Notices.......................................................................................24
7.3 Headings......................................................................................25
7.4 Severability..................................................................................25
7.5 Entire Agreement..............................................................................25
7.6 Assignment....................................................................................25
7.7 No Third-Party Beneficiaries..................................................................25
7.8 Amendment.....................................................................................25
7.9 Governing Law.................................................................................26
7.10 Counterparts..................................................................................26
7.11 No Presumption................................................................................26
7.12 No Special Damages............................................................................26
7.13 Specific Performance..........................................................................26
7.14 Performance by Nuco and Holdings..............................................................26
Exhibits:
Exhibit A: Amended and Restated Operating Agreement
Exhibit B: Articles of Organization
Exhibit C: Business Plan
Exhibit D: Initial VIS Managers, Initial Nortel Networks Manager and Initial Officers of the
Company
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MEMBERS' AGREEMENT
This MEMBERS' AGREEMENT (the "Agreement") is made and entered into as
of August 2, 2004, by and among Volt Delta Resources, LLC, a Nevada limited
liability company (the "Company"), Nortel Networks Inc., a Delaware corporation
("Nortel Networks"), Volt Delta Resource Holdings, Inc., a Nevada corporation
("Holdings"), Nuco I, Ltd., a Nevada corporation ("Nuco"), and Volt Information
Sciences, Inc., a New York corporation ("VIS" and together with Nortel Networks,
the "Members").
WHEREAS, VIS owns 100% of the issued and outstanding capital stock of
Nuco, and Nuco owns 100% of the issued and outstanding capital stock of
Holdings;
WHEREAS, Nortel Networks and Holdings have entered into an Amended and
Restated Operating Agreement dated the date hereof (the "Operating Agreement"),
a true and complete copy of which is attached hereto as Exhibit A;
WHEREAS, the Company and Nortel Networks entered into a Contribution
Agreement dated as of June 11, 2004 (the "Contribution Agreement");
WHEREAS, upon the consummation of the transactions contemplated by the
Contribution Agreement, Nortel Networks shall beneficially own in the aggregate
Membership Interests (as defined in the Contribution Agreement) representing
twenty-four percent (24%) of the issued and outstanding Membership Interests of
the Company, VIS shall beneficially own in the aggregate Membership Interests
representing seventy-six percent (76%) of the issued and outstanding Membership
Interests of the Company and Holdings shall be the record holder of such
Membership Interests beneficially owned by VIS;
WHEREAS, it is a condition to the Closing that this Agreement and the
other agreements, documents and instruments entered into by the parties pursuant
to the terms hereof be in full force and effect and that the parties hereto have
complied with their obligations hereunder and thereunder;
WHEREAS, the Members and the Company desire to provide for the
management of the Company and the respective rights and obligations of the
Members generally;
WHEREAS, VIS desires to make payments in the aggregate amount of
$4,000,000 to Nortel Networks in consideration of Nortel Networks entering into
the Relationship Agreement with the Company dated as of the date hereof; and
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties, and subject to the terms and conditions
contained herein, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Contribution Agreement. As used
in this Agreement, the following terms shall have the following meanings:
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Arbitrator" has the meaning set forth in Section 6.6(b).
"Articles of Organization" means the articles of organization of the
Company in the form of Exhibit B.
"Audit Report" has the meaning set forth in Section 6.5(a).
"Authorized Officer" means any of the chief executive officer, the
controller or the chief financial officer of the Company.
"Beneficial Ownership" or "Beneficially Own" means, with respect to any
Membership Interest, the ability to vote and/or direct the disposition of such
Membership Interest.
"Beneficial Ownership Percentage" means, with respect to any Person or
Persons, the percentage calculated by dividing the total outstanding number of
Membership Interests (on a fully-diluted basis) which are Beneficially Owned,
directly or indirectly, by such Person or Persons (without double counting),
into the total outstanding number of Membership Interests of the Company (on a
fully-diluted basis), as of the relevant time for making such calculation, it
being understood that for purposes of this definition, Membership Interests
which a Person has the right to acquire but has not yet acquired shall not be
deemed to be Beneficially Owned.
"Board" means the Board of Managers of the Company.
"Business Plan" means the yearly business and operations plan,
including income statement, balance sheet and cash flow statement, capital
expenditure budget and financial projections for the Company. The Business Plan
for the two (2) year period following the Closing Date is attached hereto as
Exhibit C.
"Cause" means, with respect to any Manager, (i) a final judgment of a
court of competent jurisdiction that such Manager has acted in breach of his or
her duty to the Company and such action was not permitted by Section 5.8 hereof
or has committed an act of willful misconduct, gross negligence or abuse of
authority, or (ii) that any Governmental Authority has formally charged such
Manager with one or more felonious criminal acts.
"Change in Control" means, with respect to any Person in the Industry
Group, any of the following: (i) the sale, lease, exchange, transfer or other
disposition, either directly or indirectly, of assets constituting all or
substantially all of the assets of such Person in the Industry Group and its
subsidiaries taken as a whole, to a Person or group of Person that did not own,
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directly or indirectly, substantially all of such assets prior to such transfer;
(ii) any merger, consolidation or other business combination, or refinancing or
recapitalization of such member of the Industry Group that results in the
holders of the issued and outstanding voting securities of such member of the
Industry Group immediately prior to such transaction beneficially owning or
controlling less than a majority of the voting securities of the continuing or
surviving entity immediately following such transaction; or (iii) any Person or
Persons acting together or which would constitute a "group" for the purposes of
Section 13(d) of the Exchange Act, together or with any Affiliates thereof
becoming the beneficial owner (as defined in Rule 13d-3 of the Exchange Act) or
controlling, directly or indirectly, at least 50% of the total voting power of
all classes of capital stock entitled to vote generally in the election of
directors of such member of the Industry Group, which Person or "group" did not
previously control, directly or indirectly, at least 50% of such total voting
power.
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Call Option" has the meaning set forth in Section 6.3(a).
"Company Event of Default" has the meaning set forth in Section 5.4(d).
"Competitive Products" has the meaning set forth in Section 5.4(b)(i).
"Contribution Agreement" has the meaning set forth in the recitals to
this Agreement.
"Designated Division" has the meaning set forth in Section 5.4(c)(iv).
"Disclosing Party" has the meaning set forth in Section 5.12(a).
"Disputed Items" has the meaning set forth in Section 6.5(c).
"Distribution Payment Date" has the meaning set forth in Section
5.7(a).
"Excess Cash" has the meaning set forth in Section 5.7(a).
"Exchange Act" means the United States Securities Exchange Act of 1934
(as amended, together with the rules and regulations thereunder).
"Exit Payment" has the meaning set forth in Section 6.3(c).
"Expiration Date" has the meaning set forth in Section 6.5(a).
"Fair Value" means the product of (x) the LTM Revenue as of the
Put/Call Date multiplied by (y) seventy percent (70%) of the Industry Average
Multiple.
"Holdings" has the meaning set forth in the preamble to this Agreement.
"Industry Average Multiple" means the average LTM Revenue Market
Multiples of the Industry Group as of the Put/Call Date. In no event shall the
Industry Average Multiple exceed 1.8.
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"Industry Group" means Comverse Technology (CMVT), Convergys (CVG) and
CSG Systems (CSGS). If, as of the date that any determination of Fair Value is
made hereunder, there has been a Change in Control of any Person in the Industry
Group that would make such Person's business segments and source of revenue
generation less comparable to the Company than it was on the Closing Date or any
Person in the Industry Group no longer makes available the relevant publicly
available financial information, the Members shall promptly agree on one or more
other comparable companies in lieu of such Person. If the Members cannot agree,
the entities comprising the Industry Group shall be resolved by an independent
investment banking firm of national repute promptly selected by the agreement of
the Members. The Members shall use their commercially reasonable efforts to
cause such investment banking firm to select substitute Persons to comprise the
Industry Group that are comparable to the original Industry Group enumerated
above within thirty (30) days of the date of engagement of such investment
banking firm. The fees and expenses of such investment banking firm shall be
divided equally between the Members.
"LTM" means the twelve (12) month period ended as of the most recent
fiscal quarter ended.
"LTM Revenue" means the LTM revenue of the Company on a consolidated
basis as determined in accordance with GAAP.
"LTM Revenue Market Multiple" means, with respect to any Person in the
Industry Group as of a particular date, (i) the market capitalization of such
Person (i.e., the average of the last closing stock price of such Person on the
twenty (20) immediately prior trading days multiplied by the fully-diluted
number of shares outstanding of such Person as of the most recent date
practicable) adjusted by deducting cash and adding debt held by such Person as
of the most recent date practicable (commonly known as the "Enterprise Value")
divided by (ii) the gross revenue reported by such Person in its forms, reports
and documents filed with the Securities and Exchange Commission or by a public
announcement or release as of the most recent date practicable for the
immediately proceeding LTM.
"Manager" means a member of the Board of Managers of the Company
designated pursuant to Section 2.1(a).
"Members" has the meaning set forth in the preamble to this Agreement.
"Necessary Action" means, with respect to a specified result, required
actions (to the extent such actions are permitted by Applicable Law) reasonably
necessary to cause such result, including (i) exercising voting rights with
respect to Membership Interests, (ii) causing the adoption of member resolutions
and amendments to the Operating Agreement, Articles of Organization or other
constituent documents, (iii) causing Managers (to the extent such Managers were
nominated or designated by the Person obligated to undertake the Necessary
Action) to act in a certain manner or causing them to be removed in the event
they do not act in such manner, (iv) executing agreements that are required to
cause such specified result, and (v) making, or causing to be made, with any
Governmental Authority, filings, registrations or similar actions that are
reasonably necessary or required to achieve such specified result.
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"Net Income" means, with respect to the Company, the net income (or
loss) after taxes of the Company and its Subsidiaries on a consolidated basis,
as determined in accordance with GAAP.
"Nortel Networks" has the meaning set forth in the preamble to this
Agreement. All references to Nortel Networks shall include Persons who acquire
Nortel Networks' Membership Interests pursuant to a Permitted Transfer or with
the consent of the non-Transferring Member(s) (as contemplated by Section
4.1(a)).
"Nortel Networks Manager" has the meaning set forth in Section 2.1(a).
"Nortel Networks Non-Compete Period" has the meaning set forth in
Section 5.4(a).
"Nortel Networks Put Option" has the meaning set forth in Section
6.3(a).
"Nuco" has the meaning set forth in the preamble to this Agreement.
"Operating Agreement" has the meaning set forth in the recitals to this
Agreement.
"Option" has the meaning set forth in Section 6.3(b).
"Option Closing" has the meaning set forth in Section 6.4.
"Option Floor" means $25,000,000, subject to adjustment pursuant to
Section 4.2(e).
"Option Interests" has the meaning set forth in Section 6.3(a).
"Permitted Transfer" means a Transfer to a Qualified Affiliate.
"Proposed Transfer" has the meaning set forth in Section 4.2(a).
"Proposed Transferee" has the meaning set forth in Section 4.2(a).
"Put/Call Date" has the meaning set forth in Section 6.3(b).
"Qualified Affiliate" means an Affiliate of any Person (a) which
Affiliate has agreed in writing: (i) to be bound, in respect of all Membership
Interests it Beneficially Owns, by the provisions applicable to such Person in
this Agreement and any other agreement or instrument executed and delivered by
such Person pursuant to the terms hereof and (ii) prior to ceasing to be such a
Qualified Affiliate and without prejudice to Permitted Transfers, to Transfer
its ownership in all securities issued by the Company and rights and obligations
hereunder to such Person or to another Qualified Affiliate of such Person; and
(b) as to which such Person (or the guarantors of such Person under this
Agreement and any other agreement or instrument executed by such Person pursuant
to the terms hereof) has agreed in writing to guarantee the
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obligations of such Qualified Affiliate hereunder and any other agreement or
instrument executed by such Qualified Affiliate pursuant hereto.
"Recipient Party" has the meaning set forth in Section 5.12(a).
"Relationship Agreement" means the Relationship Agreement dated as of
the date hereof between Nortel Networks and the Company.
"Remainder Interests" has the meaning set forth in Section 4.2(d).
"Representative" has the meaning set forth in Section 5.12(a).
"Securities Act" means the United States Securities Act of 1933 (as
amended, together with the rules and regulations thereunder).
"SIP" has the meaning set forth in Section 5.4(b)(ii).
"Statement" has the meaning set forth in Section 6.3(c).
"Super-Majority Vote" has the meaning set forth in Section 2.2.
"Tag-Along Right" has the meaning set forth in Section 4.2(a).
"Termination Event" has the meaning set forth in Section 6.2.
"TOPS" has the meaning set forth in Section 5.4(b)(i).
"Transfer" means, whether voluntary or involuntary, any transfer,
assignment, sale, including by way of merger or other business combination,
pledge or hypothecation.
"VIS" has the meaning set forth in the preamble to this Agreement. All
references to VIS shall include Persons who acquire VIS's Membership Interests
pursuant to a Permitted Transfer or with the consent of the non-Transferring
Member(s) (as contemplated by Section 4.1(a)).
"VIS Manager" has the meaning set forth in Section 2.1(a).
1.2 Terms Generally. (a) Words in the singular shall include the plural
and vice versa, and words of one gender shall include the other genders as the
context requires, (b) the term "hereof," "herein," and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement and not to any particular provision of this Agreement, and Article,
Section, paragraph, Exhibit and Schedule references are to the Articles,
Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise
specified and (c) the word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless otherwise
specified.
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ARTICLE II
GOVERNANCE
2.1 Board of Managers. (a) From and after the Closing, the Members
shall take all Necessary Action to cause the Board to be comprised of five (5)
Managers, one (1) of whom shall be designated by Nortel Networks (the "Nortel
Networks Manager") and four (4) of whom shall be designated by VIS (each a "VIS
Manager").
(b) Each Member shall have the exclusive right from time to
time without meeting to appoint and remove its respective designees to
the Board upon providing notice thereof to the other Member and the
Company, as well as the exclusive right to fill vacancies created by
reason of death, removal or resignation of such designees; provided,
however, that any Manager may be removed for Cause by the Members so
long as such Manager is replaced by another Manager designated by the
Member which originally designated the Manager being replaced. In
addition, to the extent a Member has the right to designate a Manager
pursuant to Section 2.1(a), such Member shall have the right to
designate a replacement for such Manager. The Members shall take all
Necessary Action to give effect to this provision. Notwithstanding the
foregoing, after the second anniversary of the Closing Date, VIS shall
have the right to require that Nortel Networks designate as the Nortel
Networks Manager an individual that does not occupy a "line position"
in one of Nortel Networks' lines of business. For the avoidance of
doubt, the preceding sentence shall not prohibit Nortel Networks from
designating as the Nortel Networks Manager a Finance employee or a
Legal employee.
(c) The initial VIS Managers and the initial Nortel Networks
Manager designated pursuant to Section 2.1(a) shall be the individuals
set forth on Exhibit D.
(d) The Board shall have full authority with respect to the
management of the Company and its Subsidiaries.
(e) The Members shall take all Necessary Action to cause,
subject to the Super-Majority Vote requirements of Section 2.2, the
Board to form and appoint members to such committees as it deems
appropriate and to delegate certain of the Board's powers to such
committees; provided that each such committee shall include the Nortel
Networks Manager.
(f) Except as otherwise provided herein and subject to the
Super-Majority Vote requirements of Section 2.2, the Members shall take
all Necessary Action to cause the Board to approve decisions only by
the affirmative vote of at least a majority of the Managers or by
unanimous written consent of the Managers as required by Applicable
Law.
(g) The Members shall take all Necessary Action to cause the
Board to meet at least once each quarter and any committees formed by
the Board to meet as directed by the Board.
2.2 Company Matters Requiring Super-Majority Approval. Notwithstanding
anything to the contrary in Section 2.1, the Members shall take all
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Necessary Action to cause the Company not to take, and the Company shall not
take, and shall take all Necessary Action to cause its Subsidiaries not to take,
any of the following actions without the affirmative vote of at least a majority
of the Board (including the affirmative vote of the Nortel Networks Manager and
a majority of the other Managers) (such vote, a "Super-Majority Vote") except to
the extent that the following actions are contemplated by the Business Plan:
(a) except as provided in Section 2.7 hereof, approval of any
Contracts (other than the Ancillary Agreements) between or involving
the Company or any of its Subsidiaries, on the one hand, and any Member
or Affiliate thereof (other than Nortel Networks or any of its
Affiliates), on the other hand, as well as any amendment, consent or
waiver with respect to such Contracts; provided, however, that until
such time as the Company has obtained necessary third party financing,
this provision shall not apply to loans from VIS or its Affiliates to
the Company or its Subsidiaries, to the extent (i) such loans bear
interest at rates no greater than those charged to VIS or such
Affiliate under its third party financing arrangements for loans of
similar type, (ii) such loans would otherwise be permitted hereunder
and (iii) no other fees or expenses are charged to the Company or its
Subsidiaries in respect of such loans;
(b) removal of Managers other than for Cause except by the
Member which designated the Manager to be removed;
(c) approval of capital purchases, rental or lease agreements
of the Company or any of its Subsidiaries providing for one or more
payments to be made in excess of $2,000,000; provided, however, that
additional capital purchases required for the performance of new
business awarded to the Company after the Closing Date shall not be
subject to such limitation;
(d) providing loans, guarantees, or other extensions of credit
other than to customers for the purchase of products of the Company or
any of its Subsidiaries in the ordinary course of business;
(e) amendment of the Operating Agreement, Articles of
Organization or other charter documents of the Company or any of its
Subsidiaries;
(f) merger of the Company or any of its Subsidiaries into or
with, or an acquisition by the Company or any of its Subsidiaries of
all or a substantial part of the business of, another Person;
(g) reorganization, reincorporation, conversion,
consolidation, combination or merger, or sale, transfer or other
disposition of all or substantially all of the assets of the Company or
any of its Subsidiaries;
(h) liquidation, dissolution, winding up or voluntary
bankruptcy of the Company or any of its Subsidiaries;
(i) any material change in the Business Plan or adoption of
any future Business Plans subsequent to the initial Business Plan
attached hereto as Exhibit C;
(j) any change to the distribution requirement set forth in
Section 5.7;
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(k) issuance, purchase or redemption by the Company or any of
its Subsidiaries of any of their respective securities and any change,
increase or reduction in the capitalization of the Company or its
Subsidiaries, except for an issuance of Membership Interests by the
Company on or after the Put/Call Date, the closing of which occurs
simultaneously with the Option Closing and the proceeds of which (to
the extent necessary to fund the Exit Payment) are used solely to fund
the Exit Payment and are paid to Nortel Networks simultaneously with
such closing;
(l) incurrence, in one or more transactions, of any
indebtedness for borrowed money by the Company or any of its
Subsidiaries of an aggregate amount at any time in excess of
$2,000,000; provided, however, that (i) indebtedness incurred in order
to fund the capital purchases referenced in the proviso in Section
2.2(c) hereof and (ii) any indebtedness incurred by the Company on or
after the Put/Call Date, the closing of which occurs simultaneously
with the Option Closing and the proceeds of which (to the extent
necessary to fund the Exit Payment) are used solely to fund the Exit
Payment and are paid to Nortel Networks simultaneously with such
closing, shall not be subject to such limitation;
(m) material restructuring of the business of the Company or
any of its Subsidiaries including, but not limited to, a single or
series of related workforce reductions in excess of 25% of the
Company's total workforce;
(n) any exclusive license of the Intellectual Property Rights
of the Company or any of its Subsidiaries; provided, however, that this
provision shall not apply to exclusive licenses for particular
geographic or industry markets or territories or exclusive licenses for
customized software or products for particular customers, industry
markets or territories;
(o) making or changing any material Tax election, initiating
or settling any Tax proceeding, or filing any material Tax return;
(p) the appointment or removal of a Person as its auditor
(other than the auditors used by VIS so long as such auditors are a
nationally recognized accounting firm), any change to its revenue
recognition policies, or any other material change to its accounting
policies other than as is required to comply with GAAP or to conform to
VIS's accounting policies; or
(q) entering into any agreement to effect any of the above.
2.3 Officers. The officers of the Company shall include a president,
one or more vice presidents, a treasurer, a secretary and such subordinate
officers as the Board may appoint. The officers shall be appointed by the Board,
and shall serve at the discretion of the Board. The initial officers are
identified on Exhibit D.
2.4 Financial and Tax Reporting. (a) The Company shall deliver to the
Members, as soon as available and in no event more than ninety (90) days after
the end of each fiscal year, audited annual consolidated financial statements
for the Company (including a balance sheet and statements of income, changes in
financial position and changes in members' equity) at and as of the end of such
fiscal year (including, commencing in 2005, the respective
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consolidated financial statements in comparative form as of the end of and for
the previous fiscal year) prepared in accordance with GAAP.
(b) The Company shall deliver to the Members, as soon as
available and in no event more than forty-five (45) days after the end
of each consecutive three-month period in each fiscal year, quarterly
unaudited consolidated financial statements for the Company (including
a balance sheet and statements of income, changes in financial position
and changes in members' equity) at and as of the end of such
three-month period (including, commencing in 2005, the respective
consolidated and consolidating financial statements in comparative form
as of the end of and for the corresponding period in the previous
fiscal year) prepared in accordance with GAAP, all of which shall be
certified by an Authorized Officer.
(c) The Company shall deliver to the Members, as soon as
available and in no event less than thirty (30) days after the end of
each month, a copy of the Company's consolidated monthly operating and
management reports with variances and explanations, including monthly
income statements.
(d) As soon as practicable, but in any event no later than
four (4) months after the date hereof, the Company shall engage, a
nationally recognized accounting firm to serve as the Company's
independent auditors, which may be the auditors of VIS.
(e) The Company shall keep its and its Subsidiaries' books and
records in a manner necessary to comply with Applicable Law.
(f) The Company shall supply any Member upon request with
complete and accurate statements of any financial and other information
regarding the Company and its Subsidiaries that such Member is required
to file with any Governmental Authority or deliver to any institutional
lender of such Member, and such Member shall be entitled to file or
deliver such financial or other information notwithstanding the
provisions of Section 5.12 hereof; provided that any institutional
lenders which are to receive such information pursuant to this Section
2.4(f) shall have previously agreed to keep such information
confidential.
(g) As soon as practicable, but in no event later than March 1
after the end of each taxable year, the Company shall supply to the
Members an IRS Form 1065, and other material Tax Returns, for review.
The Company shall, promptly after the review of the Members regarding
the IRS Form 1065 for any taxable year, supply a Schedule K-1 to the
Members.
(h) The Company shall pay all costs incurred in connection
with the preparation and delivery of financial statements and other
