Limited Liability Company Agreement.doc

1、Limited Liability Company AgreementA _(STATE) LIMITED LIABILITY COMPANYEFFECTIVE AS OF _(M,D,Y)THE INTERESTS DESCRIBED AND REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS (STATE ACTS) A

2、ND ARE RESTRICTED SECURITIES AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR QUALIFICATION UNDER THE ACT AND APPLICABLE STATE ACTS OR PURSUANT TO AN EXEMPTION FROM

3、REGISTRATION UNDER THE ACT AND APPLICABLE STATE ACTS, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.TABLE OF CONTENTSArticle 1. DEFINITIONS1.1 Accretion Amount1.2 Act 1.3 Affiliate 1.4 Agreement 1.5 Business. 1.6 Business Plan 1.7 Capital Account 1.8 Capital Contr

4、ibution. 1.9 Certificate of Formation or Certificate 1.10 Change of Control 1.11 Code. 1.12 Common Unit 1.13 Company 1.14 Company Property. 1.15 Confidential Information. 1.16 Deficit Capital Account 1.17 Depreciation. 1.18 Distributable Cash. 1.19 Distribution. 1.20 Economic Interest 1.21 Economic

5、Interest Owner 1.22 Entity. 1.23 Equity Owner. 1.24 Fiscal Year 1.25 Gross Asset Value 1.26 Holders 1.27 IPO 1.28 Intellectual Property Rights. 1.29 License Agreement 1.30 Majority Interest 1.31 Manager 1.32 Member. 1.33 Membership Interest 1.34 FFF. 1.35 FFF Options. 1.36 FFF Dilutive Units 1.37 NI

6、I 1.38 NII Sale. 1.39 Noncompetitive Activity 1.40 HHH Partners Domestic. 1.41 HHH Partners Overseas. 1.42 HHH Partners 1.43 Ownership Interest. 1.44 Preferred Sale Fee. 1.45 Proportionately Dilutive Units. 1.46 Put Period. 1.47 Put Right 1.48 Person. 1.49 PreferredtoCommon Conversion Option 1.50 Pr

7、eferred Units 1.51 Profits and Losses. 1.52 Proportionately 1.53 Redemption Price. 1.54 Regulations 1.55 Reorganization. 1.56 Reserves. 1.57 Sale or Sell. 1.58 Secretary of State. 1.59 Selling Equity Owner. 1.60 Sharing Ratio 1.61 State 1.62 Successor Corporation 1.63 TwoThirds Interest 1.64 Unrecov

8、ered Losses. 1.65 Voting Interest Article 2. FORMATION OF COMPANY 2.1 Formation 2.2 Name. 2.3 Principal Place of Business 2.4 Registered Office and Registered Agent. 2.5 Term. 1Article 3. BUSINESS OF COMPANY. 3.1 Permitted Business. Article 4. NAMES AND ADDRESSES OF EQUITY OWNERS Article 5. RIGHTS A

9、ND DUTIES OF MANAGER AND OFFICERS. 5.1 Management 5.2 Number, Tenure and Qualifications. 5.3 Certain Powers of Manager. 5.4 Limitations on Authority 5.5 Liability for Certain Acts 5.6 Manager and Members Have No Exclusive Duty to Company; Noncompetition Covenant 5.7 Bank Accounts. 5.8 Indemnity of t

10、he Manager, Employees and Other Agents 5.9 Resignation. 5.10 Removal 5.11 Vacancies 5.12 Compensation, Reimbursement, Organization Expenses. 5.13 Annual Operating Plan 5.14 Right to Rely on the Manager. 5.15 Officers. Article 6. RIGHTS AND OBLIGATIONS OF EQUITY OWNERS. 6.1 Limitation of Liability 6.

11、2 List of Equity Owners 6.3 Equity Owners Have No Agency Authority. 6.4 Company Books 6.5 Priority and Return of Capital6.6 License Agreement 6.7 Warrants. Article 7. MEETINGS OF MEMBERS. 7.1 No Required Meetings. 7.2 Place of Meetings 7.3 Notice of Meetings. 7.4 Meeting of all Members. 7.5 Record D

12、ate 7.6 Quorum. 7.7 Manner of Acting. 7.8 Proxies 7.9 Action by Members Without a Meeting7.10 Waiver of Notice. Article 8. CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS.8.1 Members Capital Contributions.8.2 Additional Contributions.8.3 Capital Accounts.8.4 Withdrawal or Reduction of Equity Owner

13、s Contributions to Capital. Article 9. ALLOCATIONS, INCOME TAX, DISTRIBUTIONS, ELECTIONS AND REPORTS.9.1 Allocations of Profits and Losses from Operations9.2 Special Allocations to Capital Accounts9.3 Credit or Charge to Capital Accounts.9.4 Distributions9.5 Limitation Upon Distributions9.6 Accounti

14、ng Principles9.7 Interest on and Return of Capital Contributions9.8 Loans to Company.9.9 Accounting Period 9.10 Records and Reports9.11 Returns and Other Elections9.12 Tax Matters Partner9.13 Certain Allocations for Income Tax (But Not Book Capital AccountPurposes. Article 10. TRANSFERABILITY10.1 Ge

15、neral10.2 Right of First Refusal and CoSale.10.3 Transferee Not Member in Absence of Consent10.4 Additional Conditions to Recognition of Transferee.10.5 Put Rights.10.6 Sales to Affiliates10.7 Right of First Offer. Article 11. ISSUANCE OF MEMBERSHIP INTERESTS; OPTIONS; CONVERSION RIGHTS.11.1 Issuanc

16、e of Additional Membership Interests to New Members; Right of First Offer.11.2 FFF Options.11.3 Conversion of Preferred Units to Common Units11.4 Issuance of Common Units (and Options to Acquire Common Units) to Employees; Dilution11.5 Conversion of Common Units Upon Reorganization.11.6 Part Year Al

17、locations With Respect to New Members Article 12. DISSOLUTION AND TERMINATION12.1 Dissolution12.2 Effect of Dissolution12.3 Winding Up, Liquidation and Distribution of Assets.12.4 Filing or Recording Statements.12.5 Return of Contribution Nonrecourse to Other Equity Owners Article 13. MISCELLANEOUS

18、PROVISIONS.13.1 Notices.13.2 Books of Account and Records13.3 Application of State Law13.4 Waiver of Action for Partition13.5 Amendments13.6 Execution of Additional Instruments.13.7 Construction13.8 Effect of Inconsistencies with the Act13.9 Waivers.13.10 Rights and Remedies Cumulative13.11 Attorney

19、s Fees.13.12 Severability13.13 Heirs, Successors and Assigns.13.14 Creditors.13.15 Counterparts13.16 Rule Against Perpetuities.13.17 Power of Attorney.13.18 Investment Representations13.19 Representations and Warranties13.20 ERISA Representation and Covenant.13.21 Confidential InformationThis Limite

20、d Liability Company Agreement is made and entered into effective as of the _(M,D,Y), (the Effective Date) by and among the Company and each of the Members whose signatures appear on the signature page hereof (the Initial Members). In consideration of the mutual covenants herein contained and for oth

21、er good and valuable consideration, the Members and the Company (and each person who subsequently becomes an Equity Owner) hereby agree as follows:Article 1.DEFINITIONSThe following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein):1.1 Accret

22、ion Amount. Accretion Amount shall mean an amount, computed without duplication, at the rate of six percent (6%) compounded annually on $1,000 per Preferred Unit commencing on the Effective Date and ending on the earlier of the date of dissolution of the Company, the date the Put Option is exercised

23、 pursuant to Section 10.5 or the date the Preferred Units are converted to Common Units, as appropriate.1.2 Act. Act shall mean the _(STATE) Limited Liability Company Act, as amended from time to time.1.3 Affiliate. Affiliate shall mean, with respect to any Person, (i) any Person directly or indirec

24、tly controlling, controlled by, or under common control with such Person, and (ii) any Person owning or controlling ten percent (10%) or more of the outstanding voting interests of such Person. For purposes of this definition, the term controls, is controlled by, or is under common control with shal

25、l mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.1.4 Agreement. Agreement shall mean this Limited Liability Company Agreement as originally

26、 executed and as amended from time to time.1.5 Business. Business is defined in Section 3.1.1.6 Business Plan. Business Plan is defined in Section 3.1.1.7 Capital Account. Capital Account as of any given date shall mean the Capital Account of each Equity Owner as described in Article 8 and maintaine

27、d to such date in accordance with this Agreement.1.8 Capital Contribution. Capital Contribution shall mean any contribution to the capital of the Company in cash or property by an Equity Owner whenever made. Initial Capital Contribution shall mean the initial contribution to the capital of the Compa

28、ny pursuant to this Agreement as shown on Exhibit 8.1.1.9 Certificate of Formation or Certificate. The Certificate of Formation or Certificate shall mean the Certificate of Formation of the Company as filed with the Secretary of State as the same may be amended from time to time.1.10 Change of Contr

29、ol. Change of Control means (a) any merger or consolidation to which NII is a party except for a merger in which after giving effect to such merger, the holders of NIIs outstanding capital stock possessing a majority of the voting power to elect a majority of the surviving corporations board of dire

30、ctors (Voting Power) immediately prior to the merger shall continue to own the surviving corporations outstanding capital stock possessing the Voting Power, and (b) any transaction or series of related transactions in which capital stock representing in excess of 50% of NIIs Voting Power is transfer

31、red.1.11 Code. Code shall mean the Internal Revenue Code of 1986, as amended from time to time.1.12 Common Unit. Common Unit means an Ownership Interest in the Company which entitles the Equity Owner who holds such Common Unit to the following:(a) a Proportionate share of the Profits and Losses allo

32、cated to all Common Units,(b) a Proportionate share of the Voting Interests attributable to all Common Units held by Members, and(c) such other rights and obligations set forth in this Agreement.1.13 Company. Company shall mean AAA, LLC, a _(STATE) limited liability company.1.14 Company Property. Al

33、l assets (real or personal, tangible or intangible, including cash) of the Company.1.15 Confidential Information. Confidential Information means any proprietary information, whether written or oral, pertaining to the business, financial condition, strategies, plans, policies, clients or customers, i

34、nventions, trade secrets, computer programs, or processes of the disclosing party (i) that is furnished or disclosed by the disclosing party to the recipient or to the recipients employees, representatives or agents, and (A) in the case of written information, is conspicuously marked as proprietary

35、or confidential, or (B) in the case of information which is provided orally, is stated to be proprietary or confidential at the time of disclosure and after disclosure is reduced to writing or other tangible form and delivered within 10 business days in accordance with this agreement to the party re

36、ceiving such disclosure. Confidential Information shall not include any information that (X) is already known to the receiving party at the time of receipt, as evidenced by written records made prior to such receipt, or (Y) is independently developed or formulated by the receiving party, or (Z) othe

37、rwise is or becomes generally available to the public through no fault of the receiving party.1.16 Deficit Capital Account. Deficit Capital Account shall mean with respect to any Equity Owner, the deficit balance, if any, in such Equity Owners Capital Account as of the end of the Fiscal Year, after

38、giving effect to the following adjustments:(a) credit to such Capital Account the amount, if any, which such Equity Owner is obligated to restore under Section 1.7041(b)(2)(ii)(c) of the Regulations, as well as any addition thereto pursuant to the next to last sentence of Sections 1.7042(g)(1) and (

39、i)(5) of the Regulations, after taking into account thereunder any changes during such year in partnership minimum gain as determined in accordance with Section 1.7042 (d) of the Regulations (Company Minimum Gain) and in any partner nonrecourse debt minimum as determined under Section 1.7042(i)(3) o

40、f the Regulations (Member Minimum Gain); and(b) debit to such Capital Account the items described in Sections 1.7041(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.This definition of Deficit Capital Account is intended to comply with the provisions of Regulations Sections 1.7041(b)(2)(ii)(d) and 1.

41、7042, and shall be interpreted consistently with those provisions.1.17 Depreciation. For each Fiscal Year, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such Fiscal Year, except that if the Gross Asset Value of an asset dif

42、fers from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Yea

43、r bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method select

44、ed by the Manager.1.18 Distributable Cash. All cash, whether revenues or other funds received by the Company, less the sum of the following to the extent paid or set aside by the Company: (i) all principal and interest payments on indebtedness of the Company and all other sums paid to lenders; (ii)

45、all cash expenditures incurred incident to the normal operation of the Companys business; and (iii) Reserves.1.19 Distribution. Any Sale of Company Property from the Company to or for the benefit of an Equity Owner by reason of such Equity Owners ownership of an Economic Interest.1.20 Economic Inter

46、est. An Equity Owners share of one or more of the Profits, Losses and Distributions pursuant to this Agreement and the Act, including such rights that the Equity Owner has with respect to any Common Units or Preferred Units held by it, but shall not include any right to participate in the management

47、 or affairs of the Company, including, the right to vote on, consent to or otherwise participate in any decision of the Members or Manager.1.21 Economic Interest Owner. The owner of an Economic Interest who is not a Member.1.22 Entity. Any general partnership (including a limited liability partnersh

48、ip), limited partnership (including a limited liability limited partnership), limited liability company, corporation, joint venture, trust, business trust, cooperative or association or any foreign trust or foreign business organization.1.23 Equity Owner. An Economic Interest Owner or a Member.1.24

49、Fiscal Year. The taxable year of the Company shall be a calendar year unless another year is required for federal income tax purposes.1.25 Gross Asset Value. Gross Asset Value means, with respect to any asset, the assets adjusted basis for federal income tax purposes, except as follows:(a) The initial Gross Asset Value of any asset contributed by an Equity Owner to the Company shall be the gross fair market value of such asset, as determined by the contributing Member and the Manager, provided that the initial Gross Ass