Limited Liability Company Agreement（有限责任公司章程）C

【英文名称】 Limited Liability Company Agreement 【中文名称】 有限责任公司章程 【合同类型】 商业文本[Business Formation] → 股东协议[Limited Liability Company Agreements] 正文

简单编辑

LIMITED LIABILITY COMPANY AGREEMENT

ARTICLE I Definitions

SECTION 1.01. Definitions

SECTION 1.02. Definitions Generally

ARTICLE II General Provisions

SECTION 2.01. Formation SECTION 2.02. Name SECTION 2.03. Term SECTION 2.04. Purpose

SECTION 2.05. Registered Office/Agent SECTION 2.06. Principal Office SECTION 2.07. Members

ARTICLE III Capital Contributions

of CCC, LLC between AAA INC. and

BBB CORPORATION

Dated as of _________(M,D,Y)

TABLE OF CONTENTS

SECTION 3.01. Initial Capital Contributions SECTION 3.02. Additional Capital Contributions

SECTION 3.03. Withdrawals, Interest and Capital Accounts

ARTICLE IV Distributions

SECTION 4.01. Distributions SECTION 4.02. Distributions in Kind SECTION 4.03. Tax Withholding

ARTICLE V Allocations and Other Tax Matters

SECTION 5.01. Capital Accounts

SECTION 5.02. Allocation of Net Profits and Net Losses SECTION 5.03. Definition of Net Profits and Net Losses SECTION 5.04. Federal Income Tax Allocations SECTION 5.05. Elections SECTION 5.06. Fiscal Year SECTION 5.07. Tax Matters Partner SECTION 5.08. Other Tax Matters

ARTICLE VI Management

SECTION 6.01. Delegation of Authority SECTION 6.02. Management Committee SECTION 6.03. Employees; Officers SECTION 6.04. Business Plan

SECTION 6.05. Matters Requiring the Consent of All Members

ARTICLE VII Dispute Resolution

SECTION 7.01. Negotiation SECTION 7.02. Dispute Resolution

ARTICLE VIII Books and Records

SECTION 8.01. Books and Records

SECTION 8.02. Reports to Members; Budgets

ARTICLE IX Admission of Members; Transfers

SECTION 9.01. Admission of Substitute or Additional Members SECTION 9.02. Restriction on Transfer SECTION 9.03. Right of First Refusal

ARTICLE X Exculpation and Indemnification

SECTION 10.01. Exculpation and Indemnification SECTION 10.02. Liability of the Members

ARTICLE XI Dissolution, Liquidation and Transfer

SECTION 11.01. Dissolution SECTION 11.02. Liquidation SECTION 11.03. Time Limitation SECTION 11.04. Mandatory Transfers SECTION 11.05. Claims of Members

ARTICLE XII BBB Loan

SECTION 12.01. BBB Loan

ARTICLE XIII Agreement Not To Compete

SECTION 13.01. Agreement Not To Compete SECTION 13.02. Enforcement

ARTICLE XIV Miscellaneous

SECTION 14.01. Amendments SECTION 14.02. Notices SECTION 14.03. Counterparts SECTION 14.04. Severability

SECTION 14.05. No Third-Party Beneficiaries SECTION 14.06. Governing Law SECTION 14.07. Publicity

SECTION 14.08. WAIVER OF JURY TRIAL SECTION 14.09. Consent to Jurisdiction SECTION 14.10. Headings SECTION 14.11. Survival SECTION 14.12. No Waiver SECTION 14.13. Entire Agreement SECTION 14.14. Further Assurance

EXHIBIT A Addresses for Notices

EXHIBIT B Management Committee

LIMITED LIABILITY COMPANY AGREEMENT dated as of _________(M,D,Y), between AAA INC., a New York corporation (\and BBB CORPORATION, a _________(STATE) corporation (\

WHEREAS, having formed a limited liability company with the name \hereinafter defined) by the filing of a Certificate of Formation with the Secretary of State of the State of _________ on the date hereof, the parties hereto now desire to enter into this Agreement to govern their rights and obligations as members thereof;

WHEREAS, immediately following the execution and delivery of this Agreement, AAA ad BBB are entering into the Contribution Agreement dated as of the date hereof (the \Agreement\among AAA, BBB and the Company; and

WHEREAS, simultaneously with the execution and delivery of the Contribution Agreement, AAA and the Company are entering into the License Agreement and BBB and the Company are entering into the BBB Services Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound by the terms hereof applicable to each of them, hereby agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Definitions. When used herein, the following terms have the following meanings:

\means the _________ Limited Liability Company Act as in effect from time to time, or any successor statute.

\more intermediaries, Controlling or Controlled by or under common Control with such Person.

\means this Limited Liability Company Agreement as it may be amended, supplemented or otherwise

modified from time to time.

\

\the assets contributed to the Company by BBB pursuant to the Contribution Agreement as such businesses may be expanded or otherwise changed from time to time by the Company pursuant to the terms hereof.

\in the State of New York are authorized or required by law, regulation or executive order to be closed.

\

\

\

\

\of Formation\means the Certificate of Formation of the Company as filed with the Secretary of State of the State of _________ on the date hereof, as the same may be amended, modified or otherwise supplemented from time to time in accordance with the terms hereof.

\

\

\

\of the management or policies of a Person, whether through the ownership of voting securities or general partnership or managing member interests, by contract or otherwise, and

\and \shall have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or indirectly, a majority of the ownership interests or a majority of all outstanding voting stock of such Person.

\

\

\

\

\

\Company.

\Documents\means this Agreement, the Contribution Agreement, the License Agreement, the BBB Services Agreement and all other agreements and documents contemplated by any of the foregoing , as the same may be amended, supplemented or otherwise modified in accordance with the terms hereof or thereof, as applicable.

\

\

\of such Member to any and all benefits to which such Member may be entitled as provided in this Agreement, together with the obligations of such Member to comply with all the terms and provisions of this Agreement.

\Agreement\means the License Agreement dated as of the date hereof, among AAA and the Company.

\

\Nonrecourse Debt\means any Company liability (or portion thereof) that is a \nonrecourse debt\

\AAA and BBB and any Persons admitted as additional or substitute Members of the Company pursuant to Section 9.01.

\Company, expressed as a percentage. The initial Membership Percentages are 50% with respect to AAA and 50% with respect to BBB.

\

\

\

\

\

\limited liability partnership, association, joint-stock company, trust, unincorporated organization or other organization, whether or not a legal entity, and any governmental authority.

\704(c) Property\means any property that is contributed to the Company at a time when its adjusted tax basis differs from its fair market value and any Company property that is the subject of a revaluation pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(f) at a time when its adjusted tax basis differs from its fair market value.

\

\

\

\disposition of or other transfer, pledge or encumbrance of such item, and \correlative to the foregoing.

\

SECTION 1.02. Definitions Generally. Definitions in this Agreement apply equally to both the singular and

plural forms of the defined terms. The words \be followed by the phrase \limitation\when such phrase does not otherwise appear. The terms \this Agreement as a whole and not to any particular section, paragraph or subdivision. The article and section titles appear as a matter of convenience only and shall not affect the interpretation of this Agreement. All article, section, paragraph, clause, exhibit or schedule references not attributed to a particular document shall be references to such parts of this Agreement.

ARTICLE II

General Provisions

SECTION 2.01. Formation. The Company has been formed as a limited liability company pursuant to the provisions

of the Act by the filing of the Certificate of Formation with the Secretary of State of the State of _________. Each member hereby adopts, confirms and ratifies the Certificate of Formation and all acts taken in connection therewith.

SECTION 2.02. Name. The name of the Company is \

the Company or adopt such trade or fictitious names as it may determine with the approval of the Members.

SECTION 2.03. Term. The term of the Company began on the date hereof and shall continue in perpetuity or until

terminated in accordance with the terms hereof.

SECTION 2.04. Purpose. The purpose of the Company shall be to carry on any lawful business, purpose or activity

for a limited liability company under the Act.

SECTION 2.05. Registered Office/Agent. The registered office of the Company in the State of _________ is The

Corporation Trust Company, Corporation Trust Center, _________(ADDRESS). The name and address of the registered agent of the Company for service of process on the Company in the State of _________ is The Corporation Trust Company, Corporation Trust Center, _________(ADDRESS).

SECTION 2.06. Principal Office. The Company's principal place of business will be at _________(ADDRESS), or

such other address as the Management Committee shall specify from time to time by written notice to the Members.

SECTION 2.07. Members. The addresses of the initial Members are as set forth in Exhibit A attached hereto.

ARTICLE III

Capital Contributions

SECTION 3.01. Initial Capital Contributions. Pursuant to the Contribution Agreement, each of the Members will

make an initial capital contribution (the \in the Contribution Agreement in exchange for the their respective Interests. The Initial Capital Contributions made by each of the Members are deemed to have equal discounted present values.

SECTION 3.02. Additional Capital Contributions. Upon request from the Management Committee, and subject to

the unanimous consent and approval of the Members, the Members will make additional capital contributions to the Company pro rata in accordance with their respective Membership Percentages.

SECTION 3.03. Withdrawals, Interest and Capital Accounts. No member shall have the right to withdraw any part

of its capital contribution or to receive any distribution except in accordance with the provisions of this Agreement. No interest shall be paid on any capital contribution to the Company except as may be set forth in this Agreement. A member shall not have any obligation to the Company or to any other Member to restore any negative balance in the Capital Account of such Member.

ARTICLE IV

Distributions

SECTION 4.01. Distributions. The Company will make cash distributions to the Members in accordance with their

Membership Percentages at such times and in such amounts as the Management Committee shall determine in its sole discretion.

SECTION 4.02. Distributions in Kind. The Company shall not distribute any assets in kind unless approved by

all of the Members. Such property distributions shall be distributed based upon their fair market value in the same proportions as if cash were distributed.

If cash and property in kind are to be distributed simultaneously, the Company shall distribute such cash and property in kind in the same proportion to each Member, unless otherwise agreed by the Members.

SECTION 4.03. Tax Withholding. Notwithstanding any provision herein to the contrary, the Management Committee

may take any and all actions that it determines to be necessary or appropriate to ensure that the Company satisfies any and all withholding and tax payment obligations under Section 1441, 1445 or 1446 of the Code or any other provision of the Code or other applicable law. Without limiting the generality of the foregoing, the Management Committee may withhold any amount of taxes that it determines is required to be withheld from amounts otherwise distributable to any Member pursuant to this Article IV; provided, however, that such amount

shall be deemed to have been distributed to such Member for purposes of applying this Agreement.

ARTICLE V

Allocations and Other Tax Matters

SECTION 5.01. Capital Accounts. (a) There shall be established for each Member on the books of the Company

an account (a \Account\to be maintained pursuant to this Agreement. The Capital Account of each Member shall be credited with (i) the amount of all cash contributed by a Member to the Company, (ii) the fair market value of any property contributed to the Company (net of any liabilities secured by such property that the Company is considered to assume or take subject to under Section 752 of the Code) and (iii) the amount of any Net Profits (or items of income) allocated to a Member pursuant to Section 5.02, and shall be decreased by (a) the amount of any cash distributed to a Member by the Company, (b) the fair market value of any property distributed to a Member by the Company (net of any liabilities secured by such distributed property that such Member is considered to assume or take subject to under Section 752 of the Code), (c) the amount of any expenditure of the Company described in Section 705(a)(2)(B) of the Code (or treated as a Section 705(a)(2)(B) expenditure for purposes of Section 704(b) of the Code) that is allocable to a Member and (d) the amount of any Net Losses (or item of loss or deduction) allocated to a Member pursuant to Section 5.02. The Capital Accounts of the Members shall also be adjusted appropriately for their respective shares of any other adjustment required under Treasury Regulation Sections 1.704-1(b) and 1.704-2.

(b) In the event that any Interest in the Company is Transferred, the transferee of such Interest shall

succeed to the pro rata portion of the transferor's Capital Account attributable to such Interest. (c) Upon the occurrence of any event specified in Treasury Regulation Section 1.704-1(b) (2) (iv) (f),

the Management Committee may cause the Capital Accounts of the Members to be adjusted to reflect the fair market value of the Company's property at such time, as provided in such regulation.

SECTION 5.02. Allocation of Net Profits and Net Losses. (a) Subject to Section 5.02(b), the Net Profits and

Net Losses of the Company for each taxable year shall be allocated among the Members pro rata in proportion to their respective Membership Percentages.

(b) Notwithstanding Section 5.02(a), special allocations of Net Profits, Net Losses or specific items

of income, gain, loss or deduction may be required for any taxable year as follows:

(i) The Company shall allocate items of Company income and gain among the Members at such times

and in such amounts as necessary to satisfy the minimum gain chargeback requirements of Treasury Regulation Sections 1.704-2(f) and 1.704-2(i)(4).

(ii) Any deductions attributable to Member Nonrecourse Debt shall be allocated among the Members

that bear the economic risk of loss for such Member Nonrecourse Debt in accordance with the ratios in which such Members share such economic risk of loss and in a manner consistent with the requirements of Treasury Regulation Sections 1.704-2(c), 1.704-2(i)(2) and 1.704-2(j) (1).

(iii) The Company shall specially allocate Net Losses and items of income and gain when and to the

extent required to satisfy the \of Treasury Regulation Section 1.704-1(b)(2)(ii) (d).

(iv) During the taxable year in which a liquidation occurs, the Company shall allocate Net Profits

or Net Losses and any other item allocable to such taxable year such that the balance in each Member's Capital Account equals the amount to be distributed to that Member pursuant to Section 11.02(b).

(v) In the event a Member's contribution to the Company causes any Member to recognize income for

Federal income tax purposes, the entire amount of any deductions associated with such contribution shall be allocated to the Member that recognizes income or, if more than one Member recognizes income as a result of such contributions to the Company, shall be allocated proportionately based upon the amount of income so recognized by each Member.

SECTION 5.03. Definition of Net Profits and Net Losses. The \

as appropriate, shall be the taxable income or tax loss of the Company as determined for Federal income tax purposes for a given taxable year, taking into account any separately stated items, increased by the amount of any tax exempt income of the Company during such taxable year and decreased by the amount of any Code Section 705(a)(2)(B) expenditures (within the meaning of Treasury Regulation Section 1.704-1(b)(2)(iv)(i)) of the Company during such taxable year; provided, however, that items of income, gain, loss and deduction attributable to Section 704(c) Property shall be determined in accordance with the

principles of Treasury Regulation Section 1.704-1(b)(2)(iv)(g).

SECTION 5.04. Federal Income Tax Allocations. Section 5.02 provides for the allocation of Net Profits and

Net Losses for accounting and Capital Account maintenance purposes. The Company's ordinary income and losses and capital gains and losses as determined for Federal income tax purposes (and each item of income, gain, loss or deduction entering into the computation thereof) shall be allocated to the Members in the same proportions as the corresponding \items are allocated pursuant to the preceding provisions of this Article V; provided, however, that items of income, gain, loss and deduction relating to Section 704(c) Property shall be allocated in accordance with Section 704(c)(1)(A) of the Code and the Treasury Regulations thereunder. Items described in this Section shall neither be credited nor charged to the Members' Capital Accounts.

SECTION 5.05. Elections. (a) The Management Committee shall cause the Company to make an election under Section

754 of the Code upon receipt of a written request therefor from any transferee of an Interest permitted hereunder.

(b) The Members intend that the Company be treated as a partnership for Federal income tax purposes.

Accordingly, neither the Management Committee nor any Member shall file any election on behalf of the Company that is inconsistent with that intent.

(c) Except as otherwise expressly provided herein, any tax elections required or permitted to be made

by the Company under the Code or otherwise shall be made in such manner as may be reasonably determined by the Management Committee.

SECTION 5.06. Fiscal Year. The fiscal year of the Company shall end on the last day of December of each year. SECTION 5.07. Tax Matters Partner. BBB, or such other Member as shall be designated by a majority in Membership

Percentage, shall be the \matters partner\of the Company within the meaning of Section 6231(a)(7) of the Code and shall act in any similar capacity under state or local tax law. The designated Member shall keep each other Member fully informed regarding matters for which it is responsible while acting in such capacity. The designated Member shall perform only ministerial duties in its capacity as \material action in such capacity without the consent of the Management Committee. All reasonable expenses incurred by the \shall be paid or reimbursed by the Company.

SECTION 5.08. Other Tax Matters. The Members agree to treat contributions made pursuant to the Contribution

Agreement as governed by Section 721 of the Code, unless a final determination (which shall include the execution of a Form 870-AD or successor form) requires a different treatment for U.S. Federal income tax purposes. In the event that any taxing authority contests such agreed treatment of the contributions or the treatment of any other item as agreed to by the Members in the Definitive Documents, a Member receiving notice of such contest from such taxing authority shall promptly give written notice of such contest to each other Member. Such other Members may, at their own expense, participate in the defense of such contest. The Members shall reasonably cooperate in defending any such contest, and no Member shall settle or otherwise compromise such a contest without the written consent of the other Members (which shall not be unreasonably delayed or withheld). In the event of a Member's refusal to consent to a settlement, such Member shall, to the extent permitted by law, assume control of the defense of such contest, and such Member shall bear any legal fees incurred by such Member in undertaking such defense to the extent incurred after the assumption.

ARTICLE VI

Management

SECTION 6.01. Delegation of Authority. Except as otherwise provided herein, each of the Members agree that

the power to direct and control the Company shall be delegated to a management committee (the \accordance with this Agreement shall constitute approval or action by the Company and shall be binding on each Member.

SECTION 6.02. Management Committee. (a) Voting and Members.

(i) AAA shall appoint three members of the Management Committee and BBB shall appoint three members

of the Management Committee. Each member of the Management Committee, including any alternate member designated by any Member, shall be an employee of the Member making such appointment or an employee of the Company.

The initial members and alternative members of the Management Committee and their respective telephone and telecopier numbers are set forth in Exhibit B.

(ii) For purposes of any approval or action taken by the Management Committee, each member of the

Management Committee shall have one vote. Except as set forth herein, a majority vote of all of the members of the Management Committee shall constitute action on that matter that is binding upon the Company and the Members. In the event that the Vote of the Management Committee is evenly divided, and the members of the Management Committee cannot resolve such conflict by good faith negotiation within 15 days, the Management Committee shall, by written notice to the Members, submit such issue for resolution as set forth in Article VII hereof.

(iii) The quorum necessary for any meeting of the Management Committee shall be those members

entitled to cast all of the votes held by the members of the Management Committee. A quorum shall be deemed not be present at any meeting for which notice was not properly given as provided for herein, unless the member or members as to whom such notice was not properly given attend such meeting without protesting the lack of notice or duly execute and deliver a written waiver of notice or a written consent to the holding of such meeting.

(iv) Each Member shall be entitled to name an alternate member to serve in the place of any member

of the Management Committee appointed by such Member should any such member not be able to attend a meeting or meetings of the Management Committee. Each member or alternate member shall serve at the request of the designating Member and may be removed as such by the designating Member with or without cause. Each Member shall bear any cost incurred by any member designated by it to serve on the Management Committee, and no member of the Management Committee shall be entitled to compensation from the Company for serving in such capacity. Each member shall notify the other Member and the Company of the name, business address and business telephone and facsimile numbers of each member and each alternate member that such Member has appointed to the Management Committee. Each Member shall promptly notify the other Member and the Company of any change in such Member's appointments or of any change in any such address or number. Each appointment by a Member to the Management Committee shall remain in effect until the Member making such appointment notifies the Company of a change in such appointment. The resignation or removal of a member of the Management Committee shall not invalidate any act of such member taken before the giving of such written notice of the removal or resignation of such member.

(v) Any action taken by a member of the Management Committee in such member's capacity as such shall,

so far as the Members are concerned, be deemed to have been duly authorized by the Member

that appointed such member; provided, however, that any such action shall not be deemed to be an approval, consent or agreement of such Member for any purposes of this Agreement for which approval, consent or agreement must be separately obtained from such Member pursuant to the terms of this Agreement.

(vi) AAA shall be entitled to appoint the Chairman of the Management Committee.

(b) Meetings and Notices. (i) Meetings of the Management Committee, which shall be led by the Chairman

of the Management Committee, shall be held at the principal offices of the Company or at such other place as may be determined by the Management Committee. A meeting of the Management Committee may be held by conference telephone or similar communications equipment by means of which all members participating in the meeting can be heard by all other participants. Regular meetings of the Management Committee shall be held at least semi-annually on such dates and at such times as shall be determined by the Management Committee. Notice of any regular meeting shall be given to each member of the Management Committee by the Company or any Member at least five Business Days prior to such meeting. Special meetings of the Management Committee may be called by any Member on at least five Business Days' notice to each member and alternate member thereof, which notice shall state the purpose or purposes for which such meeting is being called. The failure to identify specifically any action to be taken or business to be transacted at a special meeting shall not invalidate any action taken or business transacted at such special meeting.

(ii) The actions taken by the Management Committee at any meeting, however called and noticed, shall

be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the member or members as to whom it was improperly held duly executes and delivers a written waiver of notice or a written consent to the holding of such meeting. A vote of the Management Committee may be taken either in a meeting of the members thereof or by unanimous written consent without a meeting.

(iii) Unless otherwise determined by the Management Committee with respect to any meeting of the

Management Committee, any member of the Management Committee may bring a reasonable number of nonvoting observers (including lawyers and accountants) to any meeting of the Management Committee. The Management Committee may establish reasonable rules and regulations to limit the number and participation of observers and require them to observe confidentiality obligations.

(iv) The Management Committee may establish reasonable rules and regulations to provide for the

keeping of minutes and other internal Management Committee governance not inconsistent with the terms of this Agreement.

(c) Nothing in this Section shall derogate from the power of the Members, which is absolute, to mutually

agree in writing to cause the Company to act or refrain from acting.

(d) Notwithstanding anything herein to the contrary, the Company may enforce its rights under any

agreement with any Member without such Member's consent and without the approval of the members of the Management Committee appointed by such Member.

SECTION 6.03. Employees; Officers. (a) General. (i) The Management Committee shall retain and employ officers,

including a Chief Executive Officer and such other officers as shall be deemed necessary or advisable to operate the Company; provided, however, that AAA shall be entitled to appoint the Chairman of the Management Committee (pursuant to clause 6.01(a)(iv)) and BBB shall be entitled to appoint the Chief Executive Officer, who shall be one of the members of the Management Committee appointed by BBB hereunder.

(ii) The Chief Executive Officer and the Chairman of the Management Committee shall jointly approve

the appointment of all key personnel of the Company other than the Chief Executive Officer, subject, in each case, to the ratification of such appointments by the Management Committee. The officers of the Company shall be subject to removal with or without cause by the Management Committee; provided, however, that the Chief Executive Officer shall be subject to removal without cause only by BBB, and the Chairman shall be subject to removal without cause only by AAA.

(iii) All officers of the Company (other than the Chief Executive Officer) shall (A) report to the

Chief Executive Officer or another officer designated by the Chief Executive Officer and (B) attend meetings of the Management Committee as requested.

(b) The Chief Executive Officer. The Chief Executive Officer shall be the most senior officer of the

Company and shall be responsible for the day to day operation of the Company, subject to the control of the Management Committee. He or she shall report to the Management Committee.

SECTION 6.04. Business Plan. The Chief Executive Officer will prepare annually a business plan for the Company

which will be submitted to the Management Committee for approval (the business plan so approved, the \

as set forth herein, then the prior Business Plan then in effect in accordance with this Section will continue in effect.

SECTION 6.05. Matters Requiring the Consent of All Members.

(a) Each Member shall designate one individual who shall be authorized to act on behalf of such Member

in connection with consents or approvals necessary or appropriate pursuant to the terms of this Agreement; provided that all such acts on behalf of a Member shall be in writing. Each Member agrees to give any consent or approval required pursuant to the terms of this Agreement, or to indicate that such consent or approval will not be given, within 30 days of written request by the other Member or the Company.

(b) Each provision of this Agreement that requires the vote, consent or approval of the Members shall

require the vote, consent or approval of each Member, notwithstanding the size of such Member's Interest in the Company or its entitlement to allocations or distributions.

ARTICLE VII

Dispute Resolution

SECTION 7.01. Negotiation. (a) The Members shall attempt in good faith to resolve promptly any impasse on

any issue before the Management Committee by referring such matters to negotiation between Bill Korn, Executive Vice President, Planning and Operations of AAA, and Mark Imperiale, Chief Operating Officer of BBB, or, in the event that either of such officers is no longer serving in such position or a comparable senior executive position, a senior executive of such Member designated by such member.

(b) If any Member determines in good faith that there is a disagreement among the Members as to the need

for additional capital contributions to the Company or as to the scope of the business or activities to be conducted by the Company or any other fundamental strategic matter relating to the Company, such Member shall give written notice to the other Members of such disagreement. Such disagreement shall be referred for negotiation between Bill Korn, Executive Vice President, Planning and Operations of AAA, and Mark Imperiale, Chief Operating Officer of BBB, or, in the event that either of such officers is no longer serving in such position or a comparable senior executive position, a senior executive of such Member designated by such Member. In the event that such disagreement has not been resolved to the mutual satisfaction of each Member within 30 days after the delivery

notice of such disagreement, any Member may give notice in writing to the other Members of its election to trigger the mandatory transfer provisions of Section 11.04.

SECTION 7.02. Dispute Resolution. Any claim or controversy with respect to a matter which is within the authority

of the Management Committee and which is not resolved within 15 days (the \Period\after the Members receive written notice of the impasse of the Management Committee pursuant to Section 6.02(a)(ii), will, upon the request of either Member, be resolved by arbitration as set forth below. The Members agree that the dispute resolution procedure described in this Section 7.02 shall not apply to any matter other than those specifically contemplated by the previous sentence, including, without limitation, any dispute regarding the interpretation of this Agreement, the rights and obligations of the Members under this Agreement or other matters not involving the management of the business, operations or affairs of the Company. Such arbitration shall be conducted in accordance with the following:

(a) As promptly as practicable (and in any event within 10 days) after the expiration of the Negotiation

Period, the Company shall appoint an arbitrator from the list attached hereto as Schedule 7.02. The arbitrator appointed shall be the first name listed on such Schedule or if such person does not consent to serve as the arbitrator, the next such person on such Schedule who so consents to serve (the \selected has already served as an arbitrator under this Agreement, then such Arbitrator shall be disqualified if any of the Members so elect and the next name listed on such Schedule (provided such next person has not served in the capacity of arbitrator (as set forth above)) shall be considered to be the \foregoing disqualification shall not occur if such disqualified but otherwise consenting Arbitrator is the only consenting person on such Schedule, or if all other persons on such Schedule are similarly disqualified (i.e., have served as arbitrator an equal number of times). The Arbitrator shall then proceed under the procedures outlined in this Section 7.02.

(b) Following the designation of the Arbitrator, the Members, together with the Arbitrator, shall promptly

undertake appropriate informal efforts to mediate and negotiate a solution to the matter covered by the original notice.

(c) If a negotiated solution cannot be achieved within 10 Business Days after the date on which the

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