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 求助：有关Draft of Private Equity/Venture Capital Fund |
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求助：有关Draft of Private Equity/Venture Capital Fund -- 游客 - (250 Byte) 2003-12-03 周三, 12:52 (990 reads) |
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作者：游客 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
SAMPLE LIMITED LIABILITY COMPANY OPERATING AGREEMENT
(DELAWARE) (LONG FORM)
NEWCO, L.L.C.
OPERATING AGREEMENT OF A DELAWARE LIMITED LIABILITY COMPANY
of
NEWCO, L.L.C.
by and between
MEMBER A
and
MEMBER B
Dated March 31, 1994
THIS OPERATING AGREEMENT OF NEWCO, L.L.C., a Delaware limited liability company (the “Company”), dated as of [Day] [Month], 19__, by and between MEMBER A (“Member A”) and MEMBER B (“Member B”) as members (the “Members”).
COMMENT while operating agreement is the common label, the Delaware status uses the term “limited liability agreement”. Rel. Lim. Liab. Co. Act, Tit. 6, § 18-101 (7).
P R E A M B L E
The Members desire to form a limited liability company pursuant to the provisions of the Delaware Limited Liability Company Act, Del. Code, tit. 6, §§ 18‑101, et seq., as amended from time to time (the “Act”); the purposes and on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises of the parties hereto, and of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
As used herein:
1.1. “Act” shall mean the Limited Liability Company Act of the State of Delaware, as the same may be amended from time to time.
1.2. “Additional Capital Contribution” shall mean any Capital Contribution made in accordance with Section 3.2.
1.3. “Affiliate” shall mean, with respect to any Person, any other Person who controls, is controlled by or is under common control with such Person. “Control” (and its derivations) shall mean the ability to direct or influence the policy or management of any Person, whether by means of contract, organic document or otherwise.
1.4. “Agreement” shall mean this Operating Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time as herein provided.
1.5. “Assignee” shall mean an assignee or a transferee of a Member’s Interest who has not been admitted as a new Member.
1.6. “Book Value” shall have the meaning given to it in Section 5.1.
1.7. “Capital Account” shall have the meaning specified in Section 3.3.
1.8. “Capital Contribution” shall mean the total amount of cash and other property contributed by a Member to the capital of the Company pursuant to this Agreement.
1.9. “Certificate” shall mean the Certificate of Formation of the Company as originally filed with the Office of the Secretary of State of Delaware, as amended and restated from time to time.
1.10. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and any subsequent federal law of similar import, and, to the extent applicable, any Treasury Regulations promulgated thereunder.
1.11. “Company” shall mean the limited liability company hereby established in accordance with this Agreement by the parties hereto, as such limited liability company may from time to time be constituted.
1.12. “Contribution Percentage” shall mean, with respect to each Member, the percentage set forth opposite the name of such Member on Exhibit A hereto.
1.13. “Dissolution Event” shall have the meaning specified in Section 8.1.
1.14. “Fiscal Year” shall mean the fiscal year of the Company and shall be the same as its taxable year, which shall be the [calendar year] unless otherwise required by the Code. Each Fiscal Year shall commence on the day immediately following the last day of the immediately preceding Fiscal Year.
1.15. “Formation Date” shall mean the date that the Company is formed, as specified in Section 2.7.
1.16. “Indemnified Persons” shall have the meaning specified in Section 9.6.
1.17. “Initial Capital Contribution” shall mean any Capital Contribution made in accordance with Section 3.1.
1.18. “Interest” shall mean the proportionate interest of a Member in the Company based on such Member’s Capital Account relative to the Capital Accounts of all Members. A Member may have more than one Interest in the Company.
1.19. “Majority‑in‑Interest of the Members” shall mean any one or more Members having more than fifty percent (50%) in the aggregate of the Interests of all Members.
1.20. “Members” shall mean [Member A] and [Member B], together with any Person who becomes a substituted or additional Member as herein provided and who is listed as a Member of the Company in the books and records of the Company, in such Person’s capacity as a member of the Company.
1.21. “Net Profits” and “Net Losses” shall mean the income and loss of the Company as determined in accordance with the accounting methods followed by the Company for federal income tax purposes including income exempt from tax and described in Code § 705(a)(1)(B) , treating as deductions items of expenditure described in, or under Treasury Regulations deemed described in, Code § 705(a)(2)(B) and treating as an item of gain (or loss) the excess (deficit), if any, of the fair market value of distributed property over (under) its Book Value. Depreciation, depletion, amortization, income and gain (or loss) with respect to Company assets shall be computed with reference to their Book Value rather than to their adjusted bases.
1.22. “Notices” shall have the meaning specified in Section 11.1.
1.23. “Person” shall mean an individual, corporation, association, limited liability company, limited liability partnership, partnership, estate, trust, unincorporated organization or a government or any agency or political subdivision thereof.
1.24. “Transfer” shall mean any direct or indirect sale, assignment, gift, hypothecation, pledge or other disposition, whether voluntary, involuntary, by operation of law or otherwise, by sale of stock or partnership interests, or otherwise, of an Interest or of any entity which directly or indirectly through one or more intermediaries holds an Interest.
1.25. “Treasury Regulations” shall mean the federal income tax regulations, including any temporary or proposed regulations, promulgated under the Code, as such Treasury Regulations may be amended from time to time (it being understood that all references herein to specific sections of the Treasury Regulations shall be deemed also to refer to any corresponding provisions of succeeding Treasury Regulations).
ARTICLE 2
FORMATION OF LIMITED LIABILITY COMPANY
2. HIDDEN TXT
2.1. Formation. The parties, by execution of this Agreement, hereby enter into and join together in, and do hereby form, the Company as a limited liability company under and pursuant to the Act. Each party hereto represents and warrants that it is duly authorized to join in this Agreement and that the Person executing this Agreement on its behalf is duly authorized to do so.
2.2. Name. The name of the Company shall be Newco, L.L.C., and all business of the Company shall be conducted under that name or under any other name as the Members may determine from time to time; provided, however, that the words “Limited Liability Corporation” or the initials “L.L.C.” shall be included in the name where necessary.
2.3. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
2.4. Registered Office. The address of the registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801.
2.5. Registered Agent. The name and address of the registered agent for service of process on the Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware 19801. In the event the registered agent ceases to act as such for any reason or the registered office shall change, the Members shall promptly designate a replacement registered agent or file a notice of change of address, as the case may be.
2.6. Principal Office. The Principal Office of the Company shall be located at [____________ _____________________________________________].
2.7. Duration. The Company shall be formed upon the filing of a Certificate of Formation (the “Certificate”) with the Office of the Secretary of State of Delaware pursuant to the Act and shall continue until dissolved pursuant to Section 8.1.
ARTICLE 3
CAPITAL CONTRIBUTIONS
3. HIDDEN TXT
3.1. Initial Capital Contributions. Each of the Members shall contribute or cause to be contributed to the Company, on the Formation Date, as its Initial Capital Contribution, such amount as is set forth on Exhibit A and shall have Contribution Percentages as set forth in such Exhibit A, which Contribution Percentages shall be adjusted in Exhibit A from time to time to properly reflect the admission of new Members or any other event having an effect on a Member’s Contribution Percentage.
3.2. Additional Capital Contributions. If additional funds are required by the Company, each Member shall advance, as an Additional Capital Contribution, its proportionate share, based upon the Contribution Percentage of such Member as of the date of the contribution, of the total amount so required; provided, however, in no event shall any Member be obligated to advance an amount in excess of [___________________________] Dollars ($___________) on account thereof in the aggregate. If the Members determine that additional funds are required by the Company for any other Company purpose, the Members may obtain such funds as a loan from any third party upon such terms and conditions as the Members deem appropriate.
3.3. Capital Accounts. A separate Capital Account (a “Capital Account”) shall be established and maintained for each Member, including any substituted or additional Member who shall hereafter acquire an interest in the Company, in accordance with the following provisions:
(a) Each Member’s Capital Account shall be increased by:
(i) the amount of any money contributed by the Member to the Company;
(ii) the fair market value of any property contributed by the Member to the Company;
(iii) the amount of Net Profits allocated to the Member; and
(iv) the amount of any Company liabilities assumed by such Member (or taken subject to, if property is distributed to the Member by the Company);
(b) Each Member’s Capital Account shall be decreased by:
(i) the amount of any money distributed to the Member by the Company;
(ii) the fair market value of any property distributed to the Member by the Company;
(iii) the amount of Net Losses allocated to the Member; and
(iv) the amount of any Member liabilities assumed by the Company (or taken subject to if property is contributed to the Company by the Member).
The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations under § 704(b) of the Code and, to the extent not inconsistent with the provisions of this Agreement, shall be interpreted and applied in a manner consistent with such Regulations.
(c) A Member shall not be entitled to withdraw any part of its Capital Account or to receive any distributions from the Company except as provided in Article 7; nor shall a Member be entitled to make any loan or Capital Contribution to the Company other than as expressly provided herein. No loan made to the Company by any Member shall constitute a Capital Contribution to the Company for any purpose.
(d) Except as required by the Act, no Member shall have any liability for the return of the Capital Contribution of any other Member. A Member who has more than one Interest in the Company shall have a single Capital Account that reflects all such Interests, regardless of the class of Interest owned and regardless of the time or manner in which the Interests were acquired.
3.4. Transfer of Capital Accounts. The original Capital Account established for each substituted Member shall be in the same amount as the Capital Account of the Member which such substituted Member succeeds, at the time such substituted Member is admitted to the Company. The Capital Account of any Member whose interest in the Company shall be increased by means of the transfer to it of all or part of the interest in the Company of another Member shall be appropriately adjusted to reflect such transfer. Any reference in this Agreement to a Capital Contribution of or distribution to a then Member shall include a Capital Contribution or distribution previously made by or to any prior Member on account of the Company Interest of such then Member.
ARTICLE 4
BOOKS; ACCOUNTING REPORTS; TAX MATTERS
4. HIDDEN TXT
4.1. Books and Records. The Members shall keep, or cause to be kept, complete and accurate books and records of account (including Capital Accounts) of the Company. The books of the Company (other than books required to maintain Capital Accounts) shall be kept on the [accrual] [cash] basis of accounting, and otherwise in accordance with generally accepted accounting principles consistently applied, and shall at all times be maintained or made available at the principal business office of the Company. A current list of the full name and last known business address of each Member, set forth in alphabetical order, a copy of the Certificate, including all certificates of amendment thereto and executed copies of all powers of attorney pursuant to which the Certificate or any certificate of amendment has been executed, copies of the Company’s federal, state and local income tax returns and reports, if any, for the three most recent years, copies of the Agreement and of any financial statements of the Company for the three most recent years and all other records required to be maintained pursuant to the Act shall also be maintained at the principal business office of the Company.
4.2. Reports. (a) Forthwith upon request, the Members shall, at the cost and expense of the Company, furnish, or cause to be furnished, to each Member such information bearing on the financial condition and operations of the Company as any Member may from time to time reasonably request.
(a) HIDDEN TXT
(b) Each Member shall have the right, at all reasonable times and upon reasonable notice during usual business hours, to audit, examine and make copies of or extracts from the books of account of the Company for any purpose reasonably related to such Member’s Interest as a member of the Company. Such right may be exercised through any agent or employee of such Member designated by it or by a certified public accountant designated by such Member. A Member shall bear all expenses incurred in any examination made for such Member’s account.
4.3. Filing of Returns and Other Writings; Tax Matters Member.
(a) The Members shall determine the method of depreciation to be utilized by the Company for tax purposes and all elections to be made by the Company for tax purposes.
(b) The Members shall cause the preparation and timely filing of all Company tax returns and shall, on behalf of the Company, timely file all other writings required by any governmental authority having jurisdiction to require such filing.
(c) Unless and until the Members shall otherwise agree, Member [__] shall serve as the “tax matters member” (as such term is defined in Section 6231(a)(7) of the Code, the “Tax Matters Member”) for purposes of Section 6231 of the Code.
(d) Promptly following the written request of the Tax Matters Member, the Company shall, to the fullest extent permitted by law, reimburse and indemnify the Tax Matters Member for all reasonable expenses, including reasonable legal and accounting fees, claims, liabilities, losses and damages incurred by the Tax Matters Member in connection with any administrative or judicial proceeding with respect to the tax liability of the Members.
(e) The provisions of this Section shall survive the termination of the Company or the termination of any Member’s Interest in the Company and shall remain binding on the Members for as long a period of time as is necessary to resolve with the Internal Revenue Service any and all matters regarding the federal income taxation of the Company or the Members.
4.4. Reserves. The Members may from time to time in their discretion establish reasonable cash reserves.
ARTICLE 5
DETERMINATION OF BOOK VALUE OF COMPANY ASSETS
5. HIDDEN TXT
5.1. Book Value. Except as set forth below, the Book Value of any Company asset is its adjusted basis for federal income tax purposes.
5.2. Initial Book Value. The initial Book Value of any assets contributed by a Member to the Company shall be the gross fair market value of such assets at the time of such contribution.
5.3. Adjustments. The Book Values of all of the Company’s assets may be adjusted by the Company to equal their respective gross fair market values, as determined by the Members, as of the following times: (a) the admission of a new Member to the Company or acquisition by an existing Member of an additional Interest in the Company; (b) the distribution by the Company of money or property to a retiring or continuing Member in consideration for the retirement of all or a portion of such Member’s Interest in the Company; (c) the termination of the Company for Federal income tax purposes pursuant to Section 708(b)(1)(B) of the Code; and (d) such other times as determined by the Members.
5.4. Depreciation and Amortization. The Book Value of a Company asset shall be adjusted for the depreciation and amortization of such asset taken into account in computing Net Profits and Net Losses and for Company expenditures and transactions that increase or decrease the asset’s Federal income tax basis.
ARTICLE 6
ALLOCATION OF NET PROFITS AND NET LOSSES
6. HIDDEN TXT
6.1. Allocation of Net Profits. Net Profits shall, first, be allocated in proportion to, and to the extent of, the excess of prior allocations of Net Losses under Section 6.2 below over prior allocations of Net Profits under this Section and, second, among the Members in proportion to their Contribution Percentages.
6.2. (a) Allocation of Net Losses. Net Losses shall, first, be allocated among the Members in proportion to their Contribution Percentages until the Capital Account of any Member is reduced to zero, second, among the Members in proportion to, and to the extent of, their positive Capital Account balances and, finally, to the Members in proportion to their Contribution Percentages.
6.3. Allocation of Tax Credits and Tax Losses. Tax credits and tax losses shall be allocated among the Members in proportion to their Contribution Percentages.
6.4. Treasury Regulation Allocations. When the Book Value of a Company asset differs from its basis for federal or other income tax purposes, solely for purposes of the relevant tax and not for purposes of computing Capital Account balances, income, gain, loss, deduction and credit shall be allocated among the Members under the traditional method with curative allocations under Treasury Regulation § 1.704‑3(c).
6.5. Restrictions on Transfer. No Member may Transfer any Interest without the prior written consent of all Members (excluding the proposed Transferor and Transferee). Upon any approved transfer, Exhibit A hereto shall be amended accordingly.
ARTICLE 7
DISTRIBUTIONS
7. HIDDEN TXT
7.1. Distributions. Distributions shall be made at such time and in such amounts as determined by a Majority‑In‑Interest of the Members and shall be made among the Members in cash or other property first, in proportion to, and to the extent of, the excess of each Member’s Capital Contributions over prior distributions to that Member under this Section 7.1 and, second, in proportion to their Contribution Percentages.
7.2. Withdrawals of Capital Contributions and Interest Thereon. No Member shall be entitled to withdraw any part of its Capital Contributions to, or to receive any distributions from the Company except as provided in Section 7.1 and Section 8.2. No Member shall be entitled to demand or receive (i) interest on its Capital Contributions or (ii) any property from the Company other than cash except as provided in Section 8.2(a).
7.3. Restoration of Funds. Except as otherwise provided by law, no Member shall be required to restore to the Company any funds properly distributed to it pursuant to Section 7.1.
ARTICLE 8
DISSOLUTION AND LIQUIDATION
8. HIDDEN TXT
8.1. Dissolution. The Company shall be dissolved upon the occurrence of any of the following, (each, a “Dissolution Event”):
(a) 12:00 midnight on March 31, 2094;
(b) The sale, transfer or other disposition of all or substantially all the assets of the Company;
(c) The acquisition by a Member of all of the Interests of the other Members;
(d) The resignation or withdrawal of any Member, or the Transfer of any Interest, unless within 90 days thereafter all remaining, or non‑Transferring, Members unanimously elect to continue the business of the Company;
(e) The happening of any of the events set forth in §§ 18‑801(4) and 18‑801(5) of the Act which affects the Member and thereby results in the dissolution of the Company by operation of law unless within 90 days thereafter all remaining Members unanimously elect to continue the business of the Company; or
(f) The unanimous written decision of the Members to dissolve the Company.
8.2. Winding up Affairs and Distribution of Assets.
(a) Upon dissolution of the Company (except dissolution pursuant to Section 8.1(c), and in the absence of an election to continue the business
作者：游客 在 海归商务 发贴, 来自【海归网】 http://www.haiguinet.com
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