Exhibit 3.2
State of New York )
)ss:
Department of State )
I hereby certify, that ACCIDENT PREVENTION PLUS LLC a NEW YORK limited liability
company filed a Certificate of Articles of Organization pursuant to section 203
of the Limited Liability Company Law on 02/01/1996, and that the limited
liability company is subsisting so far as shown by the records of the
Department.
A Certificate of Affidavit of Publication of ACCIDENT PREVENTION PLUS LLC was
filed on 05/13/1996.
A Certificate of Affidavit of Publication of ACCIDENT PREVENTION PLUS LLC was
filed on 05/13/1996.
The limited liability company has filed proofs of publication under section 206
(c) of the Limited Liability Company Law.
***
Witness my hand and the official seal
of the Department of state at the City
of Albany, this 04th day of June one
thousand nine hundred and ninety-seven.
/s/
Special Deputy Secretary of State
199706050355 63
<PAGE>
ARTICLES OF ORGANIZATION
OF
ACCIDENT PREVENTION PLUS LLC
(Under section Two Hundred Three of the Limited Company Law)
The undersigned person, acting as an organizer the limited liability
company hereinafter named, sets forth the following statements.
FIRST: The name of the limited liability company (the "Company") is
ACCIDENT PREVENTION PLUS LLC,
SECOND: The county within the state of New York in which the office of the
Company is to be located is the County of Suffolk.
THIRD: The Company is not to have a specific date of dissolution in
addition to the events of dissolution a forth in Section 701 of the New York
Limited Liability Company Law.
FOURTH: The Secretary of State of the State New York is designated as agent
of the Company upon whom process against it may be served. The post office
address within or without the State of New York to which the Secretary of State
of the State of New York shall mail copy of any process against the Company
served upon him: Suite 3500, 101 Park Avenue, New York, NY 10178, Attention:
William B. Sherman.
FIFTH: The Company is to be managed by one or more members.
SIXTH: No member or manager of the Company is liable for any debts,
obligations, or liabilities of the Company or each other except as required by
Section 609 of the New York Limited Liability Company Law and other applicable
laws.
SEVENTH: The business purpose for which the Company is formed to (a) to
engage in any lawful act or activity for which limited liability companies may
be organized under the New York Limited Liability Company Law; (b) to exercise
all other powers necessary to, or reasonably connected with, the Company's
business which may be legally exercised by limited liability companies under New
York law; and (c) to engage in all activities necessary, customary, convenient,
or incident to any of the foregoing.
<PAGE>
IN WITNESS WHEREOF, I have signed this document on the date set forth
below and do hereby affirm, under penalties of perjury, that the statements
contained therein have been examined by me and are true and correct.
Dated: January 30, 1996
/s/ William B. Sherman
----------------------------------------
William B. Sherman, Organizer
-2-
<PAGE>
[Graphic Omitted]
State of New York
George E. Pataki
Governor
I would like to congratulate you on the formation of your business in New
York State. I am pleased that you have chosen the Empire State because we are
moving aggressively to transform New York into a business-friendly state.
My administration will continually strive to provide your business with
incentives for job creation and economic opportunity. We will also work
diligently to cut back on unnecessary regulations that hurt your ability to
compete.
Please be assured that I will make every effort to ensure that your
business experience in the state is rewarding. Thank you for your confidence in
New York.
Once again, congratulations and best wishes.
Very truly yours,
/s/ George E. Pataki
George E. Pataki
Governor
Executive Chamber State Capital Albany 12224
<PAGE>
State of New York )
) ss.
Department of State )
I hereby certify that I have compared the annexed copy of the original
document filed by the Department of State and that the same is a correct
transcript of said original.
Witness my hand and seal of the Department of State on Feb - 1, 1996.
[Graphic Seal Omitted]
/s/ Alexander F. Treadwell
Secretary of State
<PAGE>
LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
FOR ACCIDENT PREVENTION PLUS LLC
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I Definitions ...................................... 1
Section 1.1 Defined Terms .............................. 1
ARTICLE II Formation of Company ............................. 4
Section 2.1 Formation of Limited Liability Company ..... 4
Section 2.2 Name ....................................... 4
Section 2.3 Business of Company ........................ 4
Section 2.4 Principal Place of Business ................ 5
Section 2.5 Registered Office and Agent ................ 5
Section 2.6 Term ....................................... 5
Section 2.7 Qualification in Other Jurisdictions ....... 5
ARTICLE III Members, Membership Interests .................... 5
Section 3.1 Names, Addresses and Capital Contributions
of Members ................................ 5
Section 3.2 Capital and Capital Accounts ............... 6
Section 3.3 Admission of Additional Members ............ 6
Section 3.4 Representations and Warranties ............. 7
Section 3.5 Failure to Make Additional Capital
Contribution .............................. 8
ARTICLE IV Management and Control of Business ............... 8
Section 4.1 Management ................................. 8
Section 4.2 Number of Managers ......................... 8
Section 4.3 Tax Matters Manager ........................ 8
Section 4.4 Compensation ............................... 9
Section 4.5 Meetings of Managers ....................... 9
Section 4.6 Resignation of Managers .................... 10
Section 4.7 Removal of a Manager ....................... 10
Section 4.8 Liability for Certain Acts ................. 10
Section 4.9 Indemnification ............................ 11
Section 4.10 Officers ................................... 11
Section 4.11 Voting ..................................... 12
Section 4.12 Annual Budget .............................. 12
(i)
<PAGE>
Page
ARTICLE V Members .......................................... 12
Section 5.1 Meetings of Members ........................ 12
Section 5.2 Meetings without Notice .................... 12
Section 5.3 Means of Cmmunication ...................... 13
Section 5.4 Election of Managers ....................... 13
Section 5.5 Liability .................................. 13
Section 5.6 Indemnification ............................ 13
Section 5.7 Restriction of Members' Rights of Manger ... 13
ARTICLE VI Accounting and Records ........................... 13
Section 6.1 Accounting and Records ..................... 13
Section 6.2 Annual and tax Information ................. 14
Section 6.3 Federal Income Tax Elections ............... 14
ARTICLE VII Allocations; Distributions; and Interests ........ 14
Section 7.1 Allocation of Net Profits and Net Losses ... 14
Section 7.2 Distributions .............................. 14
Section 7.3 Tax Distributions .......................... 14
Section 7.4 Tax Allocations ............................ 15
Section 7.5 Revaluation of Company Property ............ 15
Section 7.6 Allocation of Income and Loss and
Distributions in Respect to Percentage
Interests Transferred ..................... 16
ARTICLE VIII Changes in Members ............................... 16
Section 8.1 Restrictions on Transfer ................... 16
Section 8.2 Permitted Transfers ........................ 17
Section 8.3 Substitute Members ......................... 17
Section 8.4 Effect of Transfer ......................... 18
Section 8.5 Purchase Agreement ......................... 18
ARTICLE IX Termination ...................................... 19
Section 9.1 Termination of the Company ................. 19
Section 9.2 Distribution of Assets ..................... 19
ARTICLE X Miscellaneous .................................... 20
Section 10.1 Entire Agreement ........................... 20
Section 10.2 Governing Law .............................. 20
(ii)
<PAGE>
Page
Section 10.3 Binding Effect ............................. 20
Section 10.4 Headings ................................... 20
Section 10.5 Severability ............................... 20
Section 10.6 Multiple Counterparts ...................... 21
Section 10.7 Additional Documents and Acts .............. 21
Section 10.8 Notices .................................... 21
Section 10.9 Amendments ................................. 21
Section 10.10 Power of Attorney .......................... 21
Section 10.11 Title To Company Property .................. 22
Section 10.12 Waivers .................................... 22
(iii)
<PAGE>
THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (the "Agreement") is
made and entered into this 26 DAY OF JANUARY, 1996 by and among the persons set
forth on Exhibit A hereto (collectively the "Members").
WHEREAS, Accident Prevention Plus LLC, a New York limited liability company
(the "Company") has been formed by the filing of the Articles of Organization,
dated November __ , 1995, with the Secretary of State of the State of New York
pursuant to the New York Limited Liability Company Law (the "New York Law");
WHEREAS, the parties hereto as the Members of the Company enter into this
Limited Liability Company Operating Agreement as their binding agreement and for
all purposes permitted to a limited liability company agreement under New York
Law;
NOW, THEREFORE, in consideration of mutual covenants contained herein and
for good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1. Defined Terms. The capitalized terms used in this Agreement
shall, unless the context otherwise requires or unless otherwise expressly
provided herein, have the meanings set forth below:
(a) "Agreement" shall, mean the Limited Liability Company Operating
Agreement of the Company, as amended, modified, supplemented or restated &om
time to time.
(b) "Allowed Transferee" shall have the meaning set forth in Section 8.5.
(c) "Annual Budget" shall mean the annual budget of the Company as
described in Section 4.12.
(d) "Available Cash" or "Mailable Cash Flow" of the Company shall mean all
cash funds of the Company on hand from time to time (other than cash funds
obtained as contributions to the capital of the Company by the Members and cash
funds obtained from loans to the Company unless expressly determined by the
Managers to be considered part of Available Cash) after (1) payment of all
operating expenses of the Company as of such time, (ii) provision for payment
<PAGE>
of all outstanding and unpaid current obligations of the Company as of such
time, and (iii) provision for a working capital reserve as determined by the
Managers.
(e) "Bankruptcy" shall mean, and a Member shall be deemed a "Bankrupt
Member" upon (i) the entry of a decree or order for reLief against the Member by
a court of competent jurisdiction in any involuntary ease brought against the
Member under any bankruptcy, insolvency or other similar law (collectively,
"Debtor Relief Laws") generally affecting the rights of creditors and relief of
debtors now or hereafter in effect, (ii) the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or other similar agent
under applicable Debtor Relief Laws for the Member or for any substantial part
of its assets or property, (iii) the ordering of the winding-up or liquidation
of the Member's affairs, (iv) the filing of a petition in any such involuntary
bankruptcy case, which petition remains undismissed for a period of 180 days or
which is not dismissed or suspended pursuant to Section 305' of the Federal
Bankruptcy Code (or any corresponding provision of any future United States
bankruptcy law), (v) the commencement by the Member of a voluntary case under
any applicable Debtor Relief Laws now or hereafter in effect, (vi) the consent
by the Member to the entry of an order for relief in an involuntary case under
any such law or to the appointment of or the taking of possession.by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar agent
under any applicable Debtor Relief Laws for the Member or for any substantial
part of its assets or property, or (vii) the making by a Member of any general
assignment for the benefit of its creditors.
(f) "Book Value'~' shall mean the consolidated net asset value per
Percentage Interest of the Company as at the end of any month as determined by
the Company's independent certified public accountants, whose determination
shall be final.
(g) "Capital Account" shall mean, for each Member, the account in the books
and records of the Company consisting of (1) the amount of cash such Member has
contributed to the Company, plus (ii) the agreed fair market value of any
property such Member has contributed to the Company, net of any liabilities
assumed by the Company or to which such property is subject as provided under
Section 752 of the Code, plus (iii) the amount of profits, income or gain
(including tax-exempt income) allocated to such Member, less (iv) the amount of
losses and deductions allocated to such Member, less (v) the amount of all cash
distributed to such Member, less (vi) the fair market value of any property
distributed to such Member, net of any liability assumed by such Member or to
which such property is subject, less (vii) such Member's share of any other
expenditures which are not deductible by the Company for federal income tax
purposes or which are not allowable as additions to the basis of Company
property, and (viii) such other adjustments as may be required under the Code.
2
<PAGE>
(h) "Capital Contribution" shall mean the total value of cash and agreed
fair market value of property contributed and agreed to be contributed to the
Company by each Member, as shown in Exhibit A, as the same may be amended from
time to time.
(i) "Closipg" shall have the meaning set forth in Section 8.5.
(j) "Code" shall mean the Internal Revenue Code of 1986, as amended. All
references herein to sections of the Code shall include any corresponding
provision or provisions of any succeeding law.
(k) "Company" shall mean Accident Prevention Plus LLC.
(1) "Dissolution Event" shall have the meaning ascribed to that term in
Section 9 of this Agreement.
(m) "Entity" shall mean any association, corporation, general partnership,
limited partnership, limited liability company, joint stock association, joint
venture, trust, business trust, cooperative, and any foreign association of like
structure.
(n) "Exercise Event" shall mean: (a) the death of a Member; or (b) the
termination, with or without cause, for any reason, of a Member's employment
relationship with the Company.
(o) "Fiscal Year" shall mean, for the Company's financial reporting and
federal income tax purposes, a period commencing January 1 and ending December
31 of each year, or such other period as the Managers may determine.
(p) "Former Member" shall have the meaning ascribed to that term in Section
9(b) of this Agreement.
(q) "Manager" shall refer to one or more persons or entities acting as
nianager or managers for the Company as defined in Section 4.1.
(r) "Majority Vote" shall mean, with respect to action to be taken by the
Managers, the affirmative vote or consent of at least a majority of the Managers
present at a meeting duly called in accordance with Section 4.5 hereof at which
a quoruni is present.
(s) "Member" shall have the meaning set forth in Section 3.1.
(t)"Net Losses" shall mean, for each Fiscal Year, the losses and deductions
of the Company determined in accordance with the cash method of accounting and
as reorted, separately or in the aggregate, as appropriate, on the Company's
3
<PAGE>
information tax return filed for federal income tax purposes, plus any
expenditures described in Section 705(a)(2)(B) of the Code.
(u) "Net Profits" shall mean, for each Fiscal Year, the income and gain of
the Company determined in accordance with the cash method of accounting and as
reported, separately or in the aggregate, as appropriate, on the Company's
information tax return filed for federal income tax purposes, plus any income
described in Section 705(a)(l)Q3) of the Code.
(v) "New York Law" shall have the meaning ascribed that term in the first
Whereas Clause.
(w) "Percentaged Interests" of a Member shall mean the interest of such
Member in the Company, expressed as a percent of the aggregate of all interests
in the Company. The Percentage Interest of a Member shall be set forth opposite
the name of such Member under the column "Percentage Interest" in Exhibit A
hereto, as such percentage may be adjusted from time to time pursuant to the
terms hereof.
(x) "Person" shall mean any individual or Entity, and the heirs, executors,
administrators, successors and assigns of any such Person where the context so
requires.
(y) "Regulations" means, the permanent, temporary, proposed, or proposed
and temporary regulations of the Department of the Treasury under the Code as
such regulations may be lawfully changed from time to time.
(z) "Tax Matters Manager" shall have the meaning ascribed to that term in
Section 4.3 of this Agreement.
ARTICLE II
Formation of Company
Section 2.1. Formation of Limited Liability Company. On behalf of the
Members, an authorized person has formed a New York limited liability company
under the laws of the State of New York by the filing of Articles of
Organization for the Company pursuant to New York law.
Section 2.2. Name. The name of the Company is Accident Prevention Plus LLC.
Section 2.3. Business of Company. The business of the Company shall be as
follows;
4
<PAGE>
(a) To engage in any lawful act or activity for which limited liability
companies may be organized under New York law;
(b) To exercise all other powers necessary to, or reasonably connected
with, the Company's business which may be legally exercised by limited liability
companies under New York law; and
(c) To engage in all activities nccessary, customary, convenient, or
inaident to any of the foregoing.
Section 2.4. Principal Place of Business. The principal place of business
of the Company shall be in Hauppauge, N.Y. The Company may locate its place of
business and registered office at any other place or places as the Managers may
from time to time deem advisable.
Section 2.5. Registered Office and Agent. The New York Secretary of State
is designated as agent of the Company upon whom process against it may be
served. The registered agent of the Company upon whom process against it may be
served is LEXIS Document Services, 194 Washington Avenue, 4th Floor, Albany,
New. York 12210.
Section 2.6. Term. The Company shall be dissolved and its affairs wound up
in accordance with the terms of the New York Law and this Agreement.
Section 2.7. Qualification in Other Jurisdictions. The Managers shall cause
the Company to be qualified, or registered, under assumed or fictitious name
statutes or similar laws in which the Company transacts business in which such
qualification or registration is required or desirable. The Managers shall
execute, and deliver any file certificates (and any amendments and/or
restatements thereof) necessary for the Company to qualify to do business in the
jurisdictions in which the Company may wish to conduct business.
ARTICLE III
Members, Membership Interests
Section 3.1. Names, Addresses1 and Capital Contributions of Members.
Members (who are collectively referred to as the "Members" and individually
referred to as a "Member"), their respective addresses, their Capital
Contributions to the Company and their respective Percentage Interests in the
Company are set forth on Exhibit A, attached hereto and made a part hereof.
5
<PAGE>
Section 3.2. Capital and Capital Accounts.
(a) Each Member shall mak the following initial Capital Contributions:
Richard Goodhart The property (the "Goodhart Property")
described on Exhibit B hereto.
Steven H. Wahrman $100,000
In addition, Steven H. Wahrman ("Wahrman") hereby agrees to make an
additional Capital Contribution in the amount set forth on Exhibit A upon the
determination of a Majority Vote of the Managers that such additional Capital
Contribution is needed to enable the Company to conduct its business: Such
Capital Contribution shall be due within ten (10) business days following
receipt of notice from the Company that such Capital Contribution is required.
No interest shall be paid on any Capital Contribution.
(b) No additional calls for Capital Contributions may be made to the
Members except as set forth herein or except as otherwise agreed by all of the
Members.
(c) No Member shall have the right to withdraw the Member's Capital
Contribution or to demand and receive property of the Company or any
distribution in return for the Member's Capital Contribution, except as may be
specifically provided in this Agreement or required by law (excluding any law
which grants such a right in the absence of a negating provision in this
Agreement).
Section 3.3. Admission of Additional Members. (a) The Members may admit to
the Company additional Members who will participate in the profits, losses,
Available Cash Flow and ownership of the capital of the Company on such terms as
are determined by a majority of the Managers.
(b) If a majority of the Managers approve a bona fide offer for the
admission of an additional Member (the "Proposed Member") pursuant to Section
3.3(a), the Company shall notify each of the Members in writing by certified or
registered mail, postage prepaid, of such desire to admit an additional Member,
which notice shall include the bona tide offering price, the nature of the
consideration, the Percentage Interest to be issued, the terms of the offer, and
the identity of the Proposed Member, together with a true and complete copy of
the written offer to the Proposed Member, and the Company shall make an offer to
issue to the Members the Percentage lnterest specified in the aforesaid bona
fide offer upon the terms and conditions contained in the offer made to the
Proposed Member, provided, however, if the consideration to be paid under the
6
<PAGE>
terms of the bona tide offer is not all cash, that portion of the consideration
which is not cash, shall be valued at its fair market value and the Members
shall be entitled to accept the offer~madc to them and pay all the consideration
in cash.
(e) The offer to the Members shall remain open for a period of thirty (30)
days from the date of receipt by the Members of such offer. Within such thirty
(30) day. period, the Members may, by written notice to the Company, exercise
their rights to purchase all or any part of the Percentage Interest which the
Company is offering in accordance with subparagraph (d) below. If the
aggregate amount desired to be purchased by the Members pursuant to the
preceding sentence exceeds the Percentage Interest offered, the exercising
Members shall each be entitled to purchase a proportionate amount based on their
then Percentage Interests.
(d) If a Member exercises its right to purchase all or any part of the
Percentage Interest so offered, promptly after receipt by the Company of notice
to that effect, the Company shall transfer and deliver to the Member the
Percentage Interest to be issued to such Member pursuant to his exercise of his
purchase right against payment by such Member of the purchase price.
(e) If the Members fail to accept all of the Percentage Interest which is
offered to them within such thirty (30) day period, the offer shall be deemed
rejected with respect to the unaccepted portion and the Company shall thereupon
be at liberty to issue the unaccepted portion of such Percentage Interest which
was specified in the offer to the Proposed Member on the terms and conditions of
said bona tide offer. If the Company does not dispose of said Percentage
Interest pursuant to the prior sentence within thirty (30) days from the
expiration of the aforesaid thirty (30) day period, then it shall not thereafter
dispose of said Percentage Interest without against first offering same to the
Members in accordance with this Section 3.3.
(f) The Company shall obtain from any purchaser of an interest in the
Company hereunder the Purchaser's agreement to be bound by the terms and
conditions hereof as a condition to its purchase of such interest.
Section 3.4. Representations and Warranties. Each Member, and in the case
of an organization, the person(s) executing the Agreement on behalf of the
organization, hereby represent(s) and warrant(s) to the Company and each other
Member that: (a) if the Member is a organization, that it is duty organized,
validly existing, and in good standing under the law of its state of
organization and that it has full organizational power to execute and deliver
the Agreement and to perform its obligations hereunder; (b) the Member is
acquiring its interest in the Company for the Member's own account as an
investment and without an intent to distribute the interest; and (c) the
interests have not been registered under the Securities Act of 1933 or any state
7
<PAGE>
securities laws, and may not be resold or transferred by the Member without
appropriate registration or the availability of an exemption from such
requirements.
Section 3.5. Failure to Make Additional Capital Contribution. If Wahrman
fails to make the additional Capital Contribution (the "Required Contribution")
specified in Section 3.2 when and as due, (or any . part thereof) (a "Defaulted
Contribution") on the date due, which default continues for thirty (30) days
after written notice of such failure to pay, the Company shall have the right to
redeem Wahrman's interest in the Company by paying Wahrman an amount equal to
the sum of all Capital Contributions made by Wahrman (the "Redemption Payment").
The Company may elect to exercise such right by delivering to Wahnnan a written
notice (the "Redemption Notice") to such effect within 30 days after the
expiration of the 30-day period mentioned in the prior sentence. The closing of
the redemption shall take place 60 days after the Redemption Notice at which
time the Company shall purchase from Wahrman and Wahrnmn shall sell to the
Company his entire interest in the Company and the Company shall pay to Wahrman
the Redemption Payment.
ARTICLE IV
Management and Control of Business
Section 4.1. Management. (a) Management of the Company shall be vested
exclusively in the managers (each, a "Manager" and collectively, the "Managers")
selected by the Members, with (i) two (2) managers (the "Goodhart Managers")
selected by Richard Goodhart ("Goodhart"), (ii) two (2) managers (the "Wahrman
Managers") selected by Wahrman and (iii) one manager (the "Daveau Manager")
selected by Jean-Paul Daveau. The Managers shall be authorized and empowered on
behalf of and in the name of the Company to carry out any and all objectives and
purposes of the Company and toperform all acts and enter into and perform all
contracts and other undertakings that they may deem necessary or advisable or
incidental thereto.
(b)If Wahrman fails to make the Required Contribution when and as due and
such default continues for thirty (30) days after written notice of such failure
to pay, Wahrman's right to appoint the Wahrman Managers shall cease.
Section 4.2. Number of Managers. The number of Managers shall be set at
five.
Section 4.3. Tax Matters Manager. The Managers shall designate one oftheir
number to act as the "Tax Matters Manager", who shall be responsible for all
elections under the Code and other tax matters pursuant to Articles VI and VII
hereof.The Tax Matters Manager shall be considered the "Tax Matters Partner" for
8
<PAGE>
purposes of Section 623 l(a)(7) of the Code. The Company shall be treated as a
partnership for U.S. Federal Income tax purposes.
Section 4.4. Compensation. The Managers may from time to time by resolution
authorize the payment of fees or other compensation to the Managers for services
as such to the Company, including, but not limited to, fees for attendance at
all meetings of the Managers, and to determine the amount of such fees and
compensation. Managers shall in any event be paid their traveling expenses for
attendance at all meetings of the Managers.
Section 4.5. Meetings of Managers.
(a) The Managers shall provide for the holding of regular meetings with or
without notice inside or outside of New York at least four (4) times a year.
Annual meetings Of the Managers shall be held each year at the close of the
annual Members' meeting or shortly thereafter, in such place br places as the
Managers may determine. Special meetings of the Managers shall be called upon
the request of any Manager. Any and all actions to be taken by the Managers,
which are not in the day to day operation of the Company, shall be by
[unanimous) consent or vote of the Managers entitled to vote.
(b) The Company shall deliver or mail written notice stating the date,
time, and place of any meeting of Managers, other than a regular meeting, at
such address as appears In the records of the Company, such notice to be mailed
at least five (5) days before the date of the meeting or by delivering the saine
to such Manager personally or by telephone or telefax at least one (1) day prior
to the meeting, unless, in case of exigency a majority of the Managers or
Members shall prescribe a shorier notice, to be given personally or by
telephone, telefax, cable or wireless to all or any one or more Managers at such
address. A Manager may waive notice of any meeting, before or after the date of
the meeting, by delivering a signed waiver to the Company for inclusion in the
minutes of the Company. A Manager's attendance at any meeting waives objection
to lack of notice or defective notice of the meeting.
(c) A quorum of Managers shall be the presence of at least one Goodhart
Manager and one Walirman Manager at any meeting of Managers.
(d) Any action required or permitted to be taken at a Managers' meeting may
be taken without a meeting if the action is approved by all of the Managers
entitled to vote on the action. The action must be evidenced by one or more
written consents describing the action taken, signed by all the Managers
entitled to vote on the action, and delivered to the Company for inclusion in
the minutes.
(e) Any or all Managers may participate in any annual or special Managers'
meeting by, or through the use of, any means of communication by which all
9
<PAGE>
Managers participating may simultaneously hear each other during the meeting. A
Manager so participating is deemed to be present in person at the meeting.
Section 4.6. Resignation of Mgnagers. A Manager may resign as Manager at
any time by giving written notice thereof to the other Managers or, if there are
no other Managers, to the president or the secretary or, if no president or
secretary, to the Members, Any such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof-, and
unless otherwise specified therein, the, acceptance of any resignation shall not
be necessary to make it effective. In the event that either or both of the
Goodhart Managers resigns, or in the event that either or both of tile Goodhart
Managers dies or becomes mentally incapacitated, Goodliart or his legal
representative in the case of the death or incapacitation of Goodhart shall have
the right to elect a successor Manager(s); in the event either or both of the
Wahrman Managers resigns or in the event that either or both of the Wahrman
Managers dies or becomes mentally incapacitated, Wahrman or his legal
representative in the case of the death or incapacitation of Wahrman shall have
the right to elect a successor Manager; and in the event that the Daveau Manager
resigns or in the event the Daveau Manager dies or becomcs incapacitated, Daveau
or his legal representative in the case of the death or incapacitation of
DaveaLl shall have the right to elect a successor Manager. The election of a
successor Manager sliall be effective as of the date the Company receives
written notifitcation of the election of a successor Manager by the electing
Member. The Company shall take all such actions and make all filings required
under the Act to complete the valid election of the successor Manager,
Section 4.7. Removal of a Manage . The Goodhart Managers may be removed,
with or without cause, by Goodhart at any time. The Walirman Managers may be
removed, with or without cause, by Wahrman at any time, and the Daveau Manager
may be removed, with or without cause, by Daveau at any time. Any Member inay
remove a Manager of the Company upon the commission by such Manager of gross
negligence, willful misconduct, or fraud, or upon a material breach of his, her,
or its obligations hereunder, in the handling of the Company's business and
affairs. Upon such a removal, the Member who appointed the removed Manager
sliall appoint a replacement for such removed Manager.
Section 4.8. Liability for Certain Acts. Each Manager sliall exercise his
or her business judgment in participating in the management of the business,
operations and affairs of the Company. To the fullest extent permitted by law,
the Managers sliall not be liable or obligated to the Members for any mistake of
fact or judgment or for tile doing of any act or the failure to do any act by
any Manager in conducting the business, operations and affairs of the Company,
which may cause or result in any loss or damage to the Company or its Members. A
Manager shall incur no liability to the Company or to any of the Members as a
result of engaging in any other business or venture.
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Section 4.9. Indemnification. The Company shall indemnify, to the full
extent and under the circumstances permitted by the New York Law any person,
made or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that lie or she is or was a Manager or
officer of the Company, or is or was an employee or agent of the Company, or is
or was serving at the specific request of the Company as a Manager, officer,
employee or agent of another company or other enterprise in which the Company
owns, directly or indirectly, an equity interest or of which it may -be a
creditor.
This right of indemnification shall not be deemed exclusive of any other
rights to which a person indemnified herein may be entitled by agreement, vote
of Members or disinterested Managers or otherwise, and shall continue as to a
person who has ceased to be a Manager, officer, employee or agent and shall
inure to the benefit of the heirs, eyecutors, administrators and other legal
representatives of such person. It is not intended that the provisions of this
section be applicable to, and they are not to be construed as granting indemnity
with respect to, matters as to which indemnification would be in contravention
of the laws of New York or of the United States of America whether as a matter
of public policy or pursuant to statutory provision.
Section 4.10, Officers.
---------
(a) Titles and election. The Managers, in their discretion, may at any time
appoint such officers of the Company as they deem advisable each of whom shall
hold office at the pleasure of the Managers, except as may otherwise be approved
by tile Managers or until his or her earlier resignation, removal or other
termination of employment and shall perform such duties as may be prescribed or
determined from time to tirne by the Managers. The initial officers of the
Company shall be as follows: Richard Goodhart-Chief Executive Officer, Steven
1-1. Wahrman- President, Jean-Paul Daveau-Vice President of Engineering. Each of
such officers shall enter into an Employment Agreement, substantially in the
form of Exhibits 4.10 A, 4. 10 B and 4. 10 C, respectively, attached hereto. Any
person may hold more than one office if the duties can be consistently performed
by the same person, and to the extent permitted by New York Law.
(b) Resianations. Subject to the terms of any employment agreement entered
into with an officer, any officer may resign at any time by giving written
notice thereof to the Managers. Any such resignation shall take effect at the
time specified therein or, if tile time be not specified, upon receipt thereof-,
and unless otherwise specified therein, the acceptance of any resignation shall
not be necessary to make it effective.
(c) Vacancies. The Managers may at any time or from time to tinie fill any
vacancy among the officers of the Company,
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Section 4.11. Voting.
-------
(a) Subject to Section 4. 11 (b) below any action to be taken or approved
by the Managers hereunder must be taken or approved by a Majority Vote of the
Managers and any action so. taken or approved shall constitute the act of the
Board of Managers.
(b) Notwithstanding the foregoing, without the consent of at least 80% of
tile Managers then in office, the Board of Managers shall have no authority to:
(i) merge or consolidate the Company with or into any other Person; or
(ii) sell or transfer all or substantially all of the assets of the
Company.
Section 4.12. Annual Budget. By December 1st of each Fiscal Year, Goodhart
and Wahrman shall approve an Annual Budget for the Company. Once the final
Annual Budget has been so approved, the Company shall endeavor to follow and
implement the Annual Budget unless modified or amended by both Goodhart and
Walirman. In addition, any expenditure which exceeds any line item of the then
applicable Annual Budget by inore than ten percent (10%) must be approved by
both Goodhart and Wahrinan. To the extent a new Annual Budget is not approved
prior to the beginning of a Fiscal Year, the terms of the prior year's Annual
Budget shall continue to apply until a new Annual Budget is approved.
ARTICLE V
Members
Section 5.1. Meetings of Members. Unless otherwise determined from time to
time by tile Managers, tile annual meeting of the Members may be held at such
time and in such place or places inside or outside of New York as tile Managers
may from time or time determine as may be designated in the notice of meeting,
such notice to be mailed at least five (5) days before tile date of the meeting
or by delivering the same to such Member personally or by telephone or telefax
at least one (1) day prior to the meeting, unless, in case of exigency a
majority of the Members shall prescribe a shorter notice, to be given personally
or by telephone, telefax, cable or wireless to all or any one or more Members at
such address. A Member may waive notice of any meeting, before or after the date
of the meeting, by delivering a signed waiver to the Company for inclusion in
the minutes of the Company. A Manager's attendance at any meeting waives
objection to lack of notice or defensive notice of the meeting.
Section 5.2. Meetinas without Notice. Meetings of tile Members may be held
at any time without notice when all the Members entitled to vote thereat are
present in person.
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Section 5.3. Means of Communication. Any or all Members may participate in
any annual or special Members' meeting by, or through the use of, any means of
communication by which all Members participating may simultaneously hear each
other during the meeting. A Member so participating is deemed to be present in
person at the meeting.
Section 5.4. Election of Manaizers. The Members may el ect Managers at an
annual or special Members' meeting in accordance with the terms of Section 4.'l
liereof. Each Manager shall hold office for-the term for which lie is elected
until his successor has been elected.
Section 5.5. Liabilily. A Member will not be personally liable for any
debts or losses of the Company beyond its, his or her Capital Contribution.
Section 5.6. Indemnification. The Company shall indeninify, to the full
extent and under the circumstances permitted by New York Law, past, present or
future Members of the Company, niade or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative by reason of tile fact that such
person is or was a Member of the Company, or is or was an employee or agent of
the Company.
This right or indemnification shall not be deemed exclusive of any other
rights to which a person indemnified herein may be entitled by agreement, vote
of Members or otherwise, and shall continue as to a person who has ceased to be
a Member, officer, employee or agent and shall inure to the benefit of the
heirs, executors, administrators and other legal representatives of such person.
It is not intended that the provisions of this Section 5.6 be applicable to, and
they are not to be construed as granting indemnity with respect to, matters as
to which indemnification would be in contravention of the laws of New York or of
the United States of America whether as a matter of public policy or pursuant to
statutory provision.
Section 5.7. Restriction of Members' Rights to Manage. Except as otherwise
expressly provided herein, the Members shall have no voice, nor take any part
in, nor interfere with the conduct, control or management of the business of the
Company in their capacity as Members, nor shall the Members have the authority
or power to vote for, or on behalf of, the Company or to bind the Company in any
respect.
ARTICLE VI
Accounting and Records
Sect ion 6.1. Accounting and Records. The books and records of the Company
shall be kept, and the financial position and the results of its operations
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recorded, at the expense of the Company, in accordance with the [cash] method of
accounting elected to be followed by the Company for federal income tax
purposes. The books and records of the Company shall reflect all Company
transactions and shall be appropriate and adequate for the Company's business.
Section 6.2. Annual and Tax Information. The Tax Matters Manager shall use
his best efforts to cause the Company to deliver to each Member, within ninety
(90) days after the end of each Fiscal Year, all information necessary for the
preparation of such Member's federal income tax retum. The Tax Matters Manager
shall also use his best efforts to cause the Company to prepare, within 120 days
after the end of each Fiscal Year, a financial report of the Company for such
Fiscal Year, containing a balance sheet as of the last day of the year then
ended, an income statement for the year then ended, a statement of sources and
applications of funds, and a statement of reconciliation of tile capital
accounts of the Members.
Section 6.3. Federal Income, Tax Elections, The Tax Matters Manager shall
make all elections for federal income tax purposes on behalf of the Company.
ARTICLE VII
Allocations; Distributions; and Interests
Section 7.1. Allocation of Net Profits and Net LOSNCS. Subject to the
special allocations set forth in this Article VII and Section 704(c) of tile
Code, tile Net Profits and Net Losscs of the Company for each Fiscal Year of the
Company shall be allocated to the Members pro rata in accordance with their
Percentage Interests,
Section 7.2. Distributions. Except as set forth in Section 7.3,
distributions of Available Cash or such other property shall be made at such
time as determined by tile Managers. Such distributions of Available Cash or
other property shall be made to the Members pro rata in accordance with the
Percentage Interests of such Member on the date set for Such distribution.
Section 7.3. Tax Distributions. Subject to the requirements of applicable
law, the Company shall make pro rata distributions of money with respect to
Percentage Interests sufficient to pay the federal, state and local income taxes
on tile Members' distributive share of the Company's income, loss, deduction or
credit as determined under Section 702 of the Code. The Company shall (x) at
least fifteen days prior to the due dates for the Merribers' obligations to make
such payments, provide sufficient information to the Members to enable the
Members to compute the amount of such federal, state and local income taxes
owed, and (y) make such distributions at least five days prior to such due
dates. In the event the Company is precluded by applicable law from making the
distribution set forth above, the Company shall be obligated to make such
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distribution immediately at such time as allowable by applicable law. The pro
rata distributions to be made to each Member pursuant to tl-ds provision shall
be calculated using the highest marginal income tax rate (federal, state and
local combined, but taking into account the deductibility of the state and local
income tax from the federal income tax) applicable to any Member on such
Members' distributive share of the Company's income, loss, deduction or credit
as determined under Section 702 of the Code.
Section 7.4. Tax Allocations.
----------------
(a) For federal, state and local income tax purposes, each item of income,
gain, loss, deduction and credit of the Company shall be allocated among the
Members as nearly as possible in the same manner as tile corresponding item of
income, expense, gain or loss is allocated pursuant to the other provisions of
this Article 7.
(b) In accordance with Code Section 704(c) and the Regulations thereunder,
income, gain, loss, and deduction with respect to any property contributed to
the capital of tile Company shall, solely for tax purposes, be allocated among
tile Members so as to take account of any variation between the adjusted basis
of such property to the Company for federal income tak purposes and its initial
book value.
(c) In the event the book value of any Company asset is adjusted pursuant
to Section 7.6 hereof, subsequent allocations of income, gain, loss, and
deduction with respect to such asset shall take account of any variation between
the adjusted basis of such asset for federal income tax purposes and its book
value (as adjusted) in the sarne manner as under Code Section 704(c) and the
Regulations thereunder.
(d) Any elections or other decisions relating to the allocations described
in Sections 7.4(b) and 7,4(c) shall be made in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations pursuant to
this Section 7.4 are solely for purposes of federal, state, and local taxes and
shall not affect, or in ,An), way be takm into account in computing, any
Member's Capital Account or share of Net Profits, Net Losses, other items, or
distributions pursuant to any provision of this Agreement,
Section 7.5. Revaluation of Company Property. The book values of all
Company assets shall be adjusted to equal their respective gross fair market
values, as determined by the Managers, as of the following times: (a) the
acquisition of an additional interest in the Company by any new or existing
Member in exchange for more than a de mininfis Capital Contribution; (b) the
distribution by the Company to a Member of more than a de minimis amount of
property as' consideration for an interest in the Company; and (c) the
liquidation of the Company within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses
(a) and (b) above shall be made only if it is reasonably determined that such
15
<PAGE>
adjustments are necessary or appropriate to reflect the relative econornic
interests of tile Members in the Company.
Section 7.6. Allocation of Income and Loss and Distributions in Respect of
Percentage Interests Transferred.
(a) If any Percentage Interests in the Company are transferred or are
increased or decreased by reason of the admission of a new Member or otherwise,
during any Fiscal Year of the Company, each item of income, gain, loss,
deduction, or credit of tile Company for such Fiscal Year shall be assigned pro
rata to each day in tile particular period of such Fiscal Year to which such
item is attributable (i.e., the day on or during which it is accrued or
otherwise incurred) and the amount of each such item so assigned to any such day
shall be allocated to the Member based upon the Member's respective Percentage
Interests in the Company at the close of such day. For the purpose of accounting
convenience and simplicity, the Company may treat a transfer of, or an increase
or decrease in Percentage Interests which occurs at any time during a monthly
period (commencing with tile monthly period including the date hereof) as having
been consummated on the first day of such monthly period, regardless of when
during such monthly period such transfer, increase, or decrease actually occurs
(i.e., sales and dispositions made during any month may be deemed to have been
made on the first day of such month).
(b) Distributions of tile Company assets in respect of Percentage Interests
shall be made only to the Members who, according to tile books and records of
tile Company, are the holders of record of the Percentage Interests in respect
of which such distributions are made on the actual date of distribution. Neither
the Company nor any Member or Manager shall incur any liability for making
distributions in accordance with the provisions of the preceding sentence,
whether or not the Company, or the Member or Manager has knowledge or notice of
any transfer or purported transfer of ownership of Percentage Interests.
Notwithstanding any provision above to the contrary, gain or loss of the Company
realized in connection with a sale or other disposition of any of the assets of
the Company shall be allocated solely to the parties owning Percentage Interests
in the Company as of the date such sale or other disposition occurs.
ARTICLE VIII
Changes in Members
Section 8.1. Restrictions on Transfer.
(a) No Member shall be entitled to assign, convey, sell, encumber or in any
way alienate ("Transfer") all or any part of its Percentage Interests or any
interest therein, except in accordance with the terms of this Agreement. Any
Transfer effected or purported to be effected, not in accordance with the terms
16
<PAGE>
and conditions of this Agreement, or to a person who has been adjudged
incompetent or insane or to a person prohibited by law from owning Percentage
Interests shall be void ab initio and shall not bind the Company.
(b) Notwithstanding anything contained herein to the contrary, no Member
may Transfer any Percentage Interests if such Transfer, alone or when combined
with other transactions, would result in a termination of the Company within the
meaning of Section 709 of the Code.
Section 8.2. Permitted Transfers. Subject always to the provisions of
Sections 8.1(b), 8.3 and 8.4 hereof:
(a) A Member may at any time Transfer any or all of its Percentage
Interests to a spouse and/or children of such Member or to trusts created for
tile benefit of such spouse and/or children of such Member.
(b) (i) A trustee may at any time Transfer any or all of the Percentage
Interests owned by a trust to the grantor or settlor of the trust or the trust
beneficiary or beneficiaries pursuant to the terms of the trust, (ii) a
successor trustee, guardian or custodian may be appointed with respect to any
Percentage Interests, (iii) the addition, withdrawal or. demise of a beneficiary
or beneficiaries of a trust pursuant to the terms of the trust and by reason of
the birth, death, marriage or divorce of any natural person, shall be permitted,
and (iv) a Transfer by reason of the creation or termination of any guardianship
or custodial arrangement or by the attainment by any natural person of a
specific age shall be permitted.
(c) A Member may make any other Transfer consented to in writing by all of
the Percentage Interests of the other Members,
(d) The foregoing'Transfers described in subsections (a), (b), and (c) are
sometimes referred to herein collectively as the "Permitted Transfers" and,
individually, as a "Permitted Transfer." Any transferee pursuant to a Permitted
Transfer is sometimes referred to herein as a "Permitted Transferee."
Section 8.3. Substitute Members. A transferee of Percentage Interests shall
not be admitted as a Member (a "Substitute Member") in the Company and shall not
be admitted to any of the rights of the Member who initially transferred the
Percentage Interests to such transferee (other than the right to receive
distributions), unless (i) tile requirements of this Article VIII are met, (ii)
such Transfer has been consented to (which consent can be withheld for any
reason) by all of the Members, (iii) such person executes an instrument
satisfactory to the remaining Members accepting and adopting the terins and
provisions of this Agreement, (iv) such person pays any reasonable expenses in
connection with the Member's admission as a Substitute Member, and (v) the
Percentage Interests subject to such Transfer have been registered under
17
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applicable federal mid state securities laws, or, if the transferee delivers an
opinion of counsel satisfactory to the Company that registration under such laws
is not required.
Section 8.4. E ffect of Transfer. Any transferee of Percentage Interests in
the Company shall take such Percentage Interests subject to restrictions on
Transfer imposed by this Agreement. Notwithstanding anything contained herein to
the contrary, no transferee of Percentage Interests shall have the right to
participate in. the manage ' meat of the business and affairs of the Company, to
vote, or become a Member, but shall only be entitled to receive the share of
profits or other compensation by way of income and the return of contributions
to which the transferor of such Percentage Interests in tile Company would
otherwise be entitled until such time, and unless such transferee, becomes a
Substitute Member in accordance with Section 8.3 hereof.
Section 8.5. Purchase Agreement . Upon the occurrence of an Exercise Event,
the Company shall purchase from the Member with respect to whom such Exercise
Event has occurred or the representative of ~uch Member, as the case may be and
any transferee of such Member who has received an interest pursuant to Section
8.2(a) or (b) (an "Allowed Transferee"), and such Member, representative of such
Member or Allowed Transferee shall sell to the Company all, but not less than
all, of the Percentage Interests owned by said Member or Allowed Transferee, at
the Book Value per Percentage Interest (the "Purchase Price"). The closing (the
"Closing") of the transfer of Percentage Interests pursuant to this Section 8.5
shall take place at 11:00 a.m., New York time, at the New York offices, of the.
Company, sixty (60) business days following tile date of the Exercise Event to
which such transfer is taking place, or at such other time or place as the
parties may agree. At such closing, said Member, his representative or Allowed
Transferee shall sell, convey, transfer and deliver to the Company full right,
title and interest in and to tile Percentage Interests so purchased, free and
clear of all liens, security interests or adverse claims of any kind and nature
to tile Company, and the Company shall deliver to said Member, his
representative or Allowed Transferee in full payment of the Purchase Price of
the Percentage Interests purchased, immediately available funds in the amount of
the aggregate Purchase Price of the Percentage Interests so purchased, to the
extent of any insurance proceeds frorn insurance maintained by the Company on
the life of such Member. The balance of the Purchase Price, if any, shall be
paid in five equal installments, 20% of which shall be payable at tile Closing
and tile balance in four equal annual installments, bearing interest at tile
prime rate as published by Citibank, N.A. on the date of tile Closing, on each
of the four succeeding anniversaries of the Closing.
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ARTICLE IX
Termination
Section 9.1. Termination of the Company. The Company shall be dissolved,
its assets shall be disposed 6f, and its affairs wound up on the first to occur
of the following:
(a) A written consent of all of the Managers that the Company should be
dissolved, or
(b) The death, retirement, resignation, expulsion, Bankruptcy or
dissolution of a Member (a "Former Member"), or the occurrence of any other
event which terminates the continued membership of a Member in the Company (a
"Dissolution Event"), unless the remaining Members unanimously consent to the
continuation of tile business of the Company within ninety (90).days of the
happening of such Dissolution Event; provided that at least two (2) Members
remain. In the event that there is only one (1) remaining Member upon the
occurrence of a Dissolution Event, the Company will terminate unless within
ninety (90) days of the happening of such Dissolution Event, the trustee(s),
personal representative(s) or heir(s) of the Former Member becomes a substitute
Member of the Company or a new Member is admitted.
Section 9.2. Distribution of Assets. In connection with the dissolution of
the Company, and subject to applicable law:
(a) If the Company is dissolved and its affairs are to be wound up, the
Members shall (1) sell or otherwise liquidate all of the Company's assets as
promptly as practicable, (2) allocate any profit or loss resulting from such
sales to the Members in accordance with Article VII hereof, (3) discharge all
liabilities of the Company (other than liabilities to Members), including all
costs relating to the dissolution, winding-up, and liquidation and distribution
of assets, (4) establish such reserves as may be reasonably necessary to provide
for contingent liabilities of the Company, (5) discharge any liabilities of the
Company to the Members other than on account of their interests in Company
capital or profits, and (6) distribute the remaining assets in flie following
order:
(i) If any assets of the Company are to be distributed in kind, the net
fair market value of such assets as of the date of dissolution shall be
determined by independent appraisal or by agreement of the Members. Such assets
shall be deerned to have been sold as of the date of dissolution for their fair
market value, and the Capital Accounts of the Members shall be adjusted pursuant
to the provisions of Article VII of this Agreement to reflect such deemed sale.
(ii) The positive balance of each Member's Capital Account as determined
after taking into account all Capital Account adjustments for the Company's
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taxable year during which the liquidation occurs, shall be distributed to the
Members, either in cash or in kind, as determined by the Members, with any
assets distributed in kind being valued for this purpose at their fair market
value as determined pursuant to Section 9.2(a)(i). Any such distributions to the
Members in respect of their Capital Accounts shall be made in accordance with
the time requirements set forth in Section 1.704-1(b)(2)(ii)(b)(2) of the
Regulations.
(b) Notwithstanding anything to the contrary in this Agreement, upon a
liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
Regulations, if any Member has a deficit Capital Account (after giving effect to
all contributions, distributions, allocations and other Capital Account
adjustments for all taxable years, including the year during which such
liquidation occurs), such Member shall have no obligation to make any
contribution to the capital of the Company, and the negative balance of such
Member's Capital Account shall not be considered a debt owed by such Member to
the Company or to any otherperson for any purpose whatsoever.
(c) Upon completion of the winding-up, liquidation and distribution of tile
assets, the Company shall be deemed terminated.
ARTICLE X
Miscellaneous
Section 10.1. Entire Agreement. This Agreement and the Articles of
Organization constitute the entire agreement among the Members with respect to
tile subject matter hereof, and supersede any prior agreement or understanding
among the Members with respect to such subject matter.
Section 10.2. Governing Law. This Agreement and tile rights of tile parties
hereunder will be governed by, interpreted, and enforced in accordance with the
laws of the State of New York.
Section 10.3. Binding Effect. Subject to the provisions of this Agreement
relating to transferability, this Agreement will be binding upon and inure to
tile benefit of the Members, and their respective distributees, successors and
assigns.
Section 10.4. Headings. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
Section 10.5. Severability. If any provision of this Agreement, or tile
application of such'provision to any person or circumstance, shall be held
illegal, invalid,
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or unenforceable, the remainder of this Agreement or the application of such
provision to other persons or circumstances shall not be affected thereby.
Section 10.6. Multiple Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall constitute one and the same instrument.
Section 10.7. Additional Docurncrits and Acts. Each Member agrees to
execute and deliver such additional documents and instrurnents and to perform
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions, and conditions of this Agreement and
the transactions contemplated hereby.
Section 10.8. Notices. Any notice to be given or to be served upon the
Company or any party hereto in connection with this Agreement must be in writing
and will be deerned to have been given and received when delivered to the
address specified by tile party to receive the notice. Such notices will be
given to a Member at tile address specified in Exhibit A hereto. Any Member or
the Company may, at any time by giving five (5) days' prior written notice to
the other Members and the Company, designate any other address in substitution
of the foregoing address to which such notice will be given.
Section 10.9. Amendments. All amendments to this Agreement will be in
writing and signed by all Members,
Section 10.10. Power of Attorney.
------------------
(a) The Members hereby irrevocably make, constitute, and appoint tile Tax
Matters Manager as their true and lawful attomey-in-fact to sign, execute,
acknowledge, file and record with respect to this Company all instruments
amending, restating or cancelling the Articles of Organization, that may be
required or appropriate pursuant to the provisions of this Agreement, or
otherwise under law, and to sign, execute, certify, acknowledge, file and record
such other agreements, instruments or documents as may be required or
appropriate (i) to reflect the exercise by the Managers of any of the po\,vers
granted to them under this Agreement, (ii) to reflect the admission to tile
Company of any Member, an increase in the Capital Contribution of any Member or
any withdrawals, and (iii) that may be required of the Company or of the Members
by the laws of tile State of New York or any other jurisdiction.
(b) The Members hereby agree that the grant of tile foregoing
power-ofattorney shall survive the delivery of an assignment by any Member of
the whole or any part of his or her Percentage Interests in the Company, except
that in the event that all assignee of such Percentage Interests has been
admitted as a Substituted Member, as provided in Section 8.3, then the foregoing
power-of-attorney of the assignor Member shall survive the delivery of such
assignment for the sole purpose of enabling the Tax
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Matters Manager to execute, acknowledge, and file any and all instruments
necessary to effectuate such substitution.
Section 10.11. Title To Company Property. Legal title to all property of
the Company will be held and conveyed in the name of the Company.
Section 10.12. Waivers. The failure of any party to seek redress for
viol~tion of or to insist upon the strict performance of any covenant or
condition of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, frorn having the effect of an original
violation.
IN WITNESS WHEREOF, the undersigned Members have duly executed this
Agreement on the date first above written.
ACCIDENT PREVENTION PLUS LLC
By: /s/ Richard Goodhart
-----------------------------------
Name:
Title: C.E. O.
ADDRESS:
700 Veterans Memorial Hwy. /s/ Richard Goodhart
------------------------------ ----------------------------------------
Hauppaugh, New York 11788 Richard Goodhart
" " /s/ Steven H. Wahrman
------------------------------ ----------------------------------------
" " Steven H. Wahrman
------------------------------
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EXHIBIT A
Capital Contributions
Upon Execution Additional Percentage
Members of the Agreement Contributions Interests
------- ---------------- ------------- ---------
Richard Goodhart [ ] - 61%
Steven H. Wahrman $100,000 $150,000 39%
-------
Total 100%
