EXHIBIT 3.35
OPERATING AGREEMENT
OF
RTM ACQUISITION COMPANY, L.L.C.
THIS
OPERATING AGREEMENT OF RTM ACQUISITION COMPANY. L.L.C. (this
“Agreement”), made and entered into effective as of
April 8, 1997 by and among the parties hereto.
WITNESSETH
WHEREAS,
the parties hereto constitute the initial members of a Georgia
limited liability company, and desire to set forth herein their
agreements, rights, duties and obligations with respect to such
company.
NOW,
THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby agreed, the undersigned hereby
agree as follows:
ARTICLE I
DEFINITIONS
The
following terms used in this Agreement shall have the following
meanings (unless otherwise expressly provided herein);
“Act”:
The Georgia Limited Liability Company Act at O.C.G.A.
§§14-11-100, et seq .
THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE GEORGIA SECURITIES ACT OF 1973 AS AMENDED, IN
RELIANCE UPON THE EXEMPTION FROM REGISTRATION SET FORTH IN SECTION
10-5-9(13) OF SUCH ACT. IN ADDITION, THESE SECURITIES HAVE NOT BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION. IN RELIANCE UPON AN EXEMPTION FROM SUCH REGISTRATION
SET FORTH IN THE SECURITIES ACT OF 1933 PROVIDED BY SECTION 4(2)
THEREOF, NOR HAVE THEY BEEN REGISTERED WITH THE SECURITIES
COMMISSION OF CERTAIN STATES IN RELIANCE UPON CERTAIN EXEMPTIONS
FROM REGISTRATION. THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT PURPOSES ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
TERMS AND CONDITIONS OF THIS AGREEMENT AND IN A TRANSACTION WHICH
IS EITHER EXEMPT FROM REGISTRATION UNDER SUCH ACTS OR PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACTS.
“Adjusted
Capital Account”: With respect to any Member, the balance of
such Member’s Capital Account as of the end of the relevant
Fiscal Year, after giving effect to the following
adjustments:
(a)
Credit to such Capital Account any amounts which such Member is
deemed to be obligated to restore pursuant to Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations; and
(b)
Debit to such Capital Account the adjustments, allocations and
distributions that, as of the end of the Fiscal Year; reasonably
are expected to be made in the future and are otherwise described
in Section 1.704-1 (b)(2)(ii)(d)(4) through (6) of the
Regulations.
The provisions of this definition
are intended to comply with the requirements of Section 1.704-1
(b)(2)(ii)(d) of the Regulations and shall be applied in a manner
consistent therewith.
“Agreement”:
This Agreement as originally executed and as may be amended from
time to time pursuant to the unanimous approval of the
Members.
“Articles
of Organization”: The Articles of Organization of the
Company, as filed with the Secretary of State of Georgia as the
same may be amended from time to time.
“Breaching
Member”: Has the meaning set forth in Section 13.02
hereof.
“Capital
Account”: An account maintained by the Manager with respect
to each Member in accordance with the following:
(a)
A Member’s Capital Account shall be credited for the
Member’s Capital Contributions and the Profits and items of
income and gain allocated to the Member pursuant to Section 9.01
and Paragraph 2 of Exhibit “B” hereof, and shall
debited for the all distributions to the Member pursuant to
Articles VIII and XIV hereof and the Losses and items of loss and
deduction allocated to the Member pursuant to Section 9.01 and
Paragraphs 1 and 2 of Exhibit “B”
hereof.
(b)
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 that
it relates to the transferred interest. In the event any such
transferee is not admitted to the Company as a substitute Member,
adjustments shall nonetheless be made to such transferee’s
Capital Account in accordance with the terms hereof.
(c)
If the net amount with regard to any Member’s Capital Account
is a credit, such amount shall be referred to as a positive Capital
Account balance; if the net amount is a debit, a negative Capital
Account balance.
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(d)
The foregoing provisions and other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to
comply with Section 1.704-1(b) of the Regulations and shall be
interpreted and applied in a manner consistent therewith. In the
event the Manager determines that it is prudent to modify the
manner in which the Capital Accounts, or any debits or credits
thereto, are computed in order to comply with such Regulations, the
Manager may make such modification, provided that it is not likely
to have a material effect on the amounts distributable to any
Member pursuant to Article XIV hereof upon the dissolution and
winding up of the Company.
As of the date hereof, the
Members’ respective Capital Account balances are equal to
their initial Capital Contributions as set forth in Exhibit
“A” hereof “Capital Contribution”: The
cash or fair market value, as agreed by· the Members, of any
contribution made by a Member pursuant to the terms of this
Agreement.
“Cash
Flow”: As of any time, all of the cash proceeds from Company
operations after the payment of all then due debts, liabilities and
expenses of the Company that the Manager, in its reasonable
judgment, elects to make, less the sum of reserves which Manager
deems necessary or appropriate, in its reasonable judgment, to meet
the capital or any other needs of the Company (including, by way of
example, any contingent or unforeseen liabilities of the
Company).
“Code”:
The Internal Revenue Code of 1986, as amended from time to time.
All references herein to specific sections of the Code shall be
deemed to refer also to any successor provisions of succeeding
law.
“Company”:
RTM Acquisition Company, L.L.C., a Georgia limited liability
company.
“Default
Rule”: A rule or provision in the Act which (a) structures,
defines, or regulates the finances, governance, operations or other
aspects of a limited liability company organized under the Act; and
(b) applies except to the extent it is negated or modified through
the provisions of a limited liability company’s articles of
organization or operating agreement. By way of example and not
limitation, Default Rules include the provisions of O.C.G.A.
§14-11-307, concerning conflicting interest transactions;
the provisions of O.C.G.A. §14-11-308, concerning
approval rights of Members; and the provisions of O.C.G.A.
§14-l1-1102, concerning dissenters’ rights.
“Fiscal
Year”: With respect to the Company and for tax purposes (a)
the period commencing on the effective date of this Agreement and
ending on December 31, 1997, (b) any subsequent 12 month period
commencing on the first day of the next succeeding year and ending
on the last day of such taxable year, or (c) any portion of the
period described in clause (b) for which the Company is required to
allocate Profits, Losses and other items of Company income, gain,
loss or deduction pursuant to Article IX or Exhibit
“B” hereof. For accounting purposes, the 52 or 53
week period ending on the last Sunday in May.
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“Indemnified
Person”: Has the meaning set forth in Section 15.01
hereof.
“Majority
Interest”: Members who own, in the aggregate, more than fifty
percent (50%) of the aggregate of all Percentage
Interests.
“Manager”:
The manager of the Company designated from time to time pursuant to
this Agreement. The initial Manager of the Company is RTM
Enterprises, Inc.
“Member”:
Each of the parties who executes a counterpart of this Agreement as
a Member and each of the parties who may hereafter become Members
in accordance with the terms of this Agreement. For purposes only
of distributions and allocations pursuant to this Agreement, any
reference herein to a Member also shall include a purchaser,
assignee or other transferee of an interest in the Company who is
not admitted as a Member in accordance with Section 10.02
hereof.
“Percentage
Interest”: The respective percentage ownership interest(s) of
the Members in the Company for the purposes specified herein. The
initial Percentage Interests of the Members are set forth on
Exhibit “A” hereof.
“Person”:
Any individual, general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business
trust, cooperative, association, or other entity, and the heirs,
executors. administrators. legal representatives, successors, and
assigns of such “Person” where the context so
permits.
“Profit”
or “Loss”: For each Fiscal Year, an amount equal to the
Company’s taxable income or loss for such year, determined in
accordance with Section 703(a) of the Code (for this purpose, all
items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be
included in taxable income or loss), with the following
adjustments:
(i)
Any income of the Company that is exempt from federal income tax
and not otherwise taken into account in computing Profit or Loss
shall be added to such taxable income or loss;
(ii)
Any expenditures of the Company described in Section 705(a)(2)(B)
of the Code or treated as such pursuant to Section
1.704-1(b)(2)(iv)(i) of the Regulations and not otherwise taken
into account in computing Profit or Loss shall be subtracted from
such taxable income or loss;
(iii)
In the event the Manager determines to adjust the book value of
Company property pursuant to Section 1.704-1(b)(2)(iv)(f) of the
Regulations, the amount of such adjustment shall be added to (to
the extent it results in an increase in the book value of the
property) or subtracted from (to the extent it results in a
decrease in the book value of the property) such taxable income or
loss;
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(iv)
In the event any property is reflected on the books and records of
the Company at an amount which differs from !he property’s
adjusted basis for federal income tax purposes, then Profits and
Losses shall be determined with respect to items of income, gain,
loss or deduction attributable to such property in accordance with
Subparagraph 3(a) of Exhibit “B” hereof;
and
(v)
Any items which are specially allocated pursuant to Exhibit
“B” hereof shall not be taken account in computing
Profit and Loss.
If the Company’s taxable
income or taxable loss for a Fiscal Year, as adjusted in the
manner. provided above is a positive amount, such amount shall be
the Company’s Profit for such Fiscal Year; and if negative,
such amount shall be the Company’s Loss for such Fiscal
Year.
“Regulations”:
The Department of the Treasury regulations promulgated under the
Code, as such Regulations may be amended from time to time. All
references herein to specific sections of the Regulations shall be
deemed also to refer to any corresponding provisions of succeeding
law.
“Tax
Liquidation”: Has the meaning set forth in Section 14.05
hereof.
“Tax
Matters Member”: The Member designated in accordance with
this Agreement to act as the “tax matters partner” for
the Company, within the meaning of Section 6231(a)(7)(A) of the
Code, and in a similar capacity for any state and local income tax
purposes. The initial Tax Matters Member shall be Douglas N.
Benham.
“Transfer”:
As a noun, means any voluntary or involuntary transfer, sale,
pledge, hypothecation, or other disposition and, as a verb. means
voluntarily or involuntarily to transfer, sell, pledge,
hypothecate, or otherwise dispose of.
ARTICLE II
FORMATION OF COMPANY
2.01
Formation . J. Russell Welch formed the Company as a Georgia
Limited Liability Company by executing and delivering Articles of
Organization to the Secretary of State of Georgia in accordance
with the provisions of the Act.
2.02
Name . The name of the Company is “RTM Acquisition
Company, L.L.C.”
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2.03
Principal Place of Business . The principal place of
business of the Company within the State of Georgia is at 5995
Barfield Road, Atlanta, Georgia 30328. The Company may locate its
places of business and registered office at any other place or
places as the Members may from time to time agree.
2.04
Registered Office and Registered Agent . The Company’s
initial registered office shall be at the office of its registered
agent at 1201 Peachtree Road, N.E., Atlanta, Georgia 30361, and the
name of its initial registered agent at such address is C. T.
Corporation System. The registered office and registered agent may
be changed from time to time by filing the address of the new
registered office and/or the name of the new registered agent with
the Secretary of State of Georgia pursuant to the Act and the
applicable rules promulgated thereunder.
2.05
Term . The term of the Company commenced on the date the
Articles of Organization were filed with the Secretary of State of
Georgia and shall continue thereafter until its termination
pursuant to Article XIV hereof.
ARTICLE III
BUSINESS OF COMPANY
3.01
Permitted Businesses . The business of the Company shall
be:
(a)
To provide management, administrative, financial consulting and
other services to RIM, Inc., RIM Development Company, RIM Operating
Company and other entities affiliated with the Company through
common ownership; and
(b)
To exercise all other powers and/or engage in all other activities
necessary to or reasonably connected with such business or any
other business which may be legally exercised by limited liability
companies under the Act.
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ARTICLE IV
NAMES: ADDRESSES; PERCENTAGE INTERESTS OF
MEMBERS
4.01
Name, Address and Percentage Interest of Members . The name,
address and Percentage Interests of each Member are as set forth on
Exhibit “A” hereof.
ARTICLE V
MANAGEMENT
5.01
Management by the Manager .
(a)
Subject to the express limitations of this Agreement the business
and affairs of the Company shall be managed by its Manager and the
Manager shall have the power and authority to take such action for
and on behalf of the Company as the Manager reasonably deems
necessary or appropriate to carry OUI the business of the Company.
By executing this Agreement, the Manager accepts such appointment
as Manager pursuant to the terms and conditions of this
Agreement.
(b)
Subject to the express limitations of this Agreement, the Manager
shall have the power on behalf and in the name of the Company to
carry out any and all of the objects and purposes of the Company
and to perform all acts which it may, in its discretion, deem
necessary or desirable, including, without limitation, the power
to:
(i)
acquire, hold, manage, own, sell, transfer, convey, assign,
exchange, pledge or otherwise dispose of any property;
(ii)
enter into, and take, any action under, any contract, agreement or
other instrument as the Manager shall determine to be necessary or
desirable to further the purposes of the Company;
(iii)
bring and defend actions and proceedings at law or equity and
before any governmental, administrative or other regulatory agency,
body or commission;
(iv)
Contract on behalf of the Company for the employment and services
of employees and/or independent contractors, such as lawyers and
accountants, and delegate to such Persons the duty to manage or
supervise any of the assets or operations of the
Company;
(v)
make all elections, investigations and evaluations that may in the
judgment of the Manager be necessary or desirable for the
acquisition, management or disposition of Company property;
and
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(vi)
Take, or refrain from taking, all actions, not expressly proscribed
or limited by this Agreement, as may be necessary or appropriate to
accomplish the purposes of the Company.
5.02
Records; Audits and Reports . At the expense of the Company,
the Manager shall maintain records and accounts of all operations
and expenditures of the Company. The books and records shall be
open at all times to the reasonable inspection and examination of
the Members or their duly authorized representatives during
reasonable business hours. The Company shall keep at its principal
place of business the following records:
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(a)
A current list of the full name and last known address of each
Member and Manager;
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(b)
Copies of records to enable a Member to determine the relative
voting rights, if any;
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(c)
A copy of the Articles of Organization;
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(d)
Copies of the Company’s federal, state, and local income tax
returns and reports, if any, for the three most recent
years;
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(e)
A copy of this Agreement; and
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(f)
Copies of any financial statements of the Company for the thiee
most recent years.
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5.03
Annual Registration Statements; Tax Returns . The Manager
shall, at the expense of the Company, cause the preparation and
timely filing of all tax returns required to be filed by the
Company pursuant to the Code and all other tax returns deemed
necessary and required in each jurisdiction in which the Company
does business. Copies of such returns, or pertinent information
therefrom, shall be furnished to the Members within a reasonable
time after the end of the Company’s Fiscal Year. The Manager
also shall cause the preparation and timely filing, at the expense
of the Company, of all annual registration statements and similar
forms required to be filed by the Company pursuant to the
Act.
5.04
Bank Accounts . All funds of the Company shall be deposited
in the name of the Company in an account or accounts as shall be
designated by the Manager.
5.05
Accounting Period . The Company’s accounting period
shall be, for tax purposes, the calendar year and for accounting
purposes, the 52 or 53 week period ending on the last Sunday in
May.
5.06
Restrictions on Authority of the Manager . The Manager shall
not have the authority to:
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(a)
do any act in contravention of this Agreement; or
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(b)
merge or consolidate the Company with or into any other Person;
or
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(c)
without the consent of a Majority Interest, sell or otherwise
dispose of all or substantially all of the Company’s
assets.
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5.07
Tenure and Qualifications . The Manager shall hold office
until any successor shall have been elected and qualified. A
Manager or a successor thereto shall be elected by the affirmative
vote of Members holding at least a Majority Interest. A Manager
need not be an individual, a resident of the State of Georgia, or a
Member.
5.08
Resignation . Any Manager of the Company may resign at any
time by giving written notice to the Members of the Company. The
resignation of any Manager shall take effect upon receipt of notice
thereof or at such later time as shall be specified in such notice.
The resignation of a Manager who is also a Member. shall not affect
the Manager’s rights as a Member and shall not constitute the
withdrawal of a Member.
5.09
Removal . Any Manager may be removed at any time, with or
without cause, by the affirmative vote of Members holding a
Majority Interest. The removal of a Manager who is also a Member
shall not affect the Manager’s rights as a Member and shall
not constitute the withdrawal of a Member.
5.10
Compensation of the Manager and the Members . Except as
otherwise provided in this Section 5.10 or as may otherwise be
agreed in writing by the Members, neither the Manager nor any
Member shall receive any salary, fee, or draw for services rendered
to or on behalf of the Company, nor shall any Member be reimbursed
for any expenses incurred by such Member on behalf of the Company.
The Manager, however, may charge the Company, and shall be
reimbursed, for any reasonable direct expenses incurred by the
Manager in connection with the Company’s business.
5.11
No Authority of Members . Except as otherwise expressly
provided herein, no Member is an agent of the Company or has the
authority to make any contracts, enter into any transactions or
make any commitments on behalf of the Company.
5.12
Relationship of this Agreement to the Default Rules .
Regardless of whether this Agreement specifically refers to a
particular Default Rule, in no event shall any Default Rule apply
to the Company, it being the interest of the Members that, by
virtue of this Section 5.12 all of the Default Rules shall be
negated and, to the fullest extent possible, all of the rights and
obligations of the Members with respect to the Company shall be as
set forth in this Agreement and shall not arise from any provisions
of the Act that constitute a Default Rule that is permitted to be
made inapplicable, or modified with respect to, a limited liability
company pursuant to the articles of organization or operating
agreement of a limited liability company.
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ARTICLE VI
LIMITATION OF LIABILITY OF
MEMBERS
6.01
Limitation on Liability . Each Member’s liability
shall be limited as set forth in this Agreement, the Act and other
applicable law.
6.02
No Liability for Company Obligations . No Member will have
any personal liability for any debts or losses of the Company
beyond its respective Capital Contributions.
6.03
No Obligation with Respect to Negative Capital Account
Balances . In no event shall any Member be obligated to .make a
contribution to the Company as a result of the existence of a
negative balance in such Member’s Capital Account upon the
dissolution of the Company or at any other time.
ARTICLE VII
CONTRIBUTIONS TO THE COMPANY AND CAPITAL
ACCOUNTS
7.01
Initial Capital Contributions . The Initial Capital
Contribution of each Member made as of the dale hereof is as set
forth on Exhibit “A” hereof.
7.02
Additional Capital Contributions . Additional Capital
Contributions shall only be permitted or required at such time(s)
and in such amount(s) as may be agreed by the Majority Interest.
All such additional Capital Contributions shall be made by the
Members in accordance with their respective Percentage
Interests.
7.03
Withdrawal, Reduction of Members’ Contributions to
Capital . No Member shall be entitled to withdraw any part of
the Members’ Capital Account or to receive any distribution
except as expressly provided herein and no Member shall have the
right to receive property other than cash. No Member shall be
entitled to receive any interest on its Capital Contributions or
with respect to its Capital Account. Except as otherwise provided
herein, no Member shall have priority over any other Member as to
the return of Capital Contributions.
ARTICLE VIII
DISTRIBUTIONS TO MEMBERS
8.01
Distributions . At such times as the Manager deems
appropriate, and subject to the other provisions of this Article
VIII and of Article XIV hereof, the Company shall distribute the
Cash Flow, if there is any, to the Members in accordance with their
respective Percentage Interests.
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8.02
Limitation Upon Distributions . No distribution shall be
made to Members if prohibited by O.C.G.A.
§§14-11-407.
8.04
Loans to Company . Nothing in this Agreement shall prevent
any Member from making secured or unsecured loans to the Company by
agreement with the Company.
8.05
Amounts Withheld . All amounts withheld by the Company
pursuant to the Code, O.C.O.A. §§48-7-129, or any other
provision of any state or local law with respect to any payment,
distribution or allocation to the Members, and any amounts paid
with respect to a Member’s allocable share of the
Company’s net income or items thereof shall be treated as
amounts distributed to the Members pursuant to this Article VIII
for all purposes under this Agreement. The Manager is authorized to
withhold from distributions (or with respect to allocations, to a
Member) and to pay over to federal, state or local government
authorities any amounts required to be so withheld pursuant to the
Code or any provisions of any other federal, state or local law,
and shall allocate any such amounts to the Members with respect to
which such amount was withheld.
ARTICLE IX
ALLOCATIONS
9.01
Allocations of Profits and Losses . After making any
allocations provided for in Paragraph 2 of Exhibit
“B” hereof and subject to Paragraph 1 of Exhibit
“B” hereof, Profits and Losses for each Fiscal Year
shall be allocated among the Members in accordance with their
respective Percentage Interests.
9.02
Profits Interest . In accordance with Section 1. 753-3(a)(3)
of the Regulations, the Members hereby agree that for the purposes
set forth in such section of the Regulations (and for any other
purpose under the Code for determining the Member’s profits
interests), the Member’s interests in Company profits are in
accordance with their respective Percentage Interests.
ARTICLE X
TRANSFERABILITY
10.01
General Restrictions . Each of the Members hereby covenants
and agrees that it will not Transfer all or any part of its
interest in the Company to any Person unless the Transfer is in
accordance with Sections 10.04 or 10.05 hereof or the Transfer is
approved by a Majority Interest. No Member shall be under any
obligation to approve or consent to a proposed Transfer by any
other Member of an interest in the Company, it being agreed that
each Member shall have the sole and absolute discretion to grant or
withhold consent to any proposed Transfer. A condition of any
Transfer otherwise permitted by this Section 10.1 shall be the
proposed
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transferee agreeing in writing to
be bound by the terms and conditions of this Agreement and the
qualification of such Transfer under any applicable federal and
state securities laws.
10.02
Transferee Not a Member in Absence of Majority Consent
.
(a)
Notwithstanding anything contained herein to the contrary, a
purchaser, assignee or other transferee of all or any portion of a
Transferring Member’s interest in the Company in accordance
with Section 10.01 who is not a Member immediately prior to the
Transfer shall not be admitted as a Member unless a Majority
Interest consent to such Person becoming a Member, which consent
can be given or withheld in the sole and absolute discretion of
each Member.
(b)
Any purchaser, assignee or other transferee who is not admitted as
a Member shall be entitled only to allocations and distributions
with respect to such interest in accordance with this Agreement
and, solely for that purpose, shall succeed to the
transferor’s Capital Account and right to distributions and
allocations hereunder to the’ extent it relates to the
transferred interest, and shall have no right to any information or
accounting of the affairs of the Partnership, shall not be entitled
to inspect the books or records of the Partnership, shall have no
approval/consent rights provided hereunder to Members or otherwise
be entitled to participate in the management of the Company and
shall not have any of the other rights of a Member under the Act or
this Agreement. Any reference herein to a Member shall, solely for
purposes of distributions and allocations hereunder, be deemed to
include a purchaser, assignee or other transferee who is not
admitted as a Member pursuant to this Subsection
10.02(b).
(c)
Upon and contemporaneously with any sale, assignment or other
transfer of a Transferring Member’s interest in the Company
where the purchaser, transferee or assignee does not become a
Member pursuant to Subsection 10.02(a) hereof, the. Company shall
purchase from the Transferring Member and the Transferring Member
shall sell to the Company, in redemption of the Transferring
Member’s remaining interest in the Company, for a purchase
price of One Hundred and No/100 Dollars ($100.00), all remaining
rights and interest retained by the Transferring Member which
immediately prior to such sale, assignment or other transfer were
associated with the transferred interest.
10.03
Transfers in Violation . Any Transfer or attempted Transfer
by any Member in violation of this Article X shall be null and void
and of no effect whatever. Each Member hereby acknowledges the
reasonableness of the restrictions on Transfer imposed by this
Agreement in view of the Company purposes and the relationship of
the Members. Accordingly, the restrictions on Transfer contained
herein shall be specifically enforceable. Each Member further
agrees to hold the Company and each Member (and each Member’s
successors and assigns) wholly and completely harmless from any
cost, liability or damage (including, without limitation, costs of
enforcing this indemnity) incurred by any of such indemnified
Persons as a result of a Transfer.
10.04
Right of First Refusal . Upon (i) the death of a Member,
(ii) the voluntary or involuntary termination of a Member’s
employment with RTM, Inc., the Member (or, if
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applicable, his or her personal
representative) shall offer his or her Percentage Interest for sale
to Russell V. Umphenour. Jr. (“Umphenour”) and, for a
period of ten (10) days thereafter, Umphenour shall have the right
to acquire the applicable Percentage Interest for Fair Market Value
payable in cash. In the event Umphenour does not elect 10 acquire
such Percentage Interest, for a period of ten (10) days after the
expiration of Umphenour’s option hereunder, the Company, for
the benefit of the remaining Members, has the right to acquire the
offered Percentage Interest for Fair Market Value payable in cash.
If the Company does not elect to acquire such Percentage Interest,
for a period of ten (10) days after the expiration of the
Company’s option hereunder, the remaining Members desiring to
participate may proportionately (or in such proportions as the
remaining Members may agree) purchase such Percentage Interest for
Fair Market Value payable in cash. If the transfer or assignment of
the applicable Percentage Interest is not made as originally
proposed and the required Majority Interest fails to approve the
transfer or assignment in accordance with the provisions of Section
10.01 hereunder, then the provisions of Section 10.02 shall apply
to such Transfer.
10.05
Required Sale . If Members owning a Majority Interest vote
in favor of the sale of their Percentage Interests to a third
party, all Members shall be required to sell their Percentage
Interests to such third party on the same terms and conditions as
shall apply to the sale of the Percentage Interests owned by
Members owning such Majority Interest.
ARTICLE XI
ADDITIONAL MEMBERS
11.01
General Restriction on Admission of Additional Members .
Except as may be agreed to in writing by the Members, no additional
Members shall be admitted to the Company.
ARTICLE XII
INVESTMENT REPRESENTATIONS OF THE
MEMBERS
12.01
Investment Representations of the Members . Each of the
Members hereby covenant, represent and warrant to the Manager and
the Company as follows, and acknowledges that each of the
covenants, representations and warranties are material to and
intended to be relied upon by the Manager and the
Company:
(a)
Own Account . The Member is acquiring the interest in the
Company solely for the Member’s own ac
