LIMITED LIABILITY
COMPANY AGREEMENT
OF
INCOMMON
LLC
The following terms shall have the meanings set forth herein (such definitions to be equally applicable to both the singular and plural forms of the terms defined):
Act: The Delaware Limited Liability Company Act, as amended from time to time.
Agreement: This Limited Liability Company Agreement, as it may be further amended or supplemented from time to time.
Annual Meeting: As defined in Section 6.01.
Steering Committee: As defined in Section 6.01.
Capital Contribution: Any property (including cash) contributed to the Company by or on behalf of a Member.
Certificate: The Certificate of Formation, and any and all amendments thereto, filed on behalf of the Company with the Recording Office as required under the Act.
Code: The Internal Revenue Code of 1986, as in effect and hereafter amended, and, unless the context otherwise requires, applicable regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law.
Company: InCommon , LLC.
Company Assets: All assets and property, whether tangible or intangible and whether real, personal, or mixed, at any time owned by or held for the benefit of the Company.
Fiscal Year: As defined in Section 7.05.
Member: University Corporation for Advanced Internet Development, Inc. d/b/a Internet2 ("Internet2").
Membership Interest: As defined in Section 4.01.
Person: Any individual, corporation, association, partnership, limited liability company, joint venture, trust, estate, or other entity or organization.
Recording Office: The office of the Secretary of State of the State of Delaware.
Related Party: With regard to a Member, officer, or other Person in question, any Person directly or indirectly controlling, controlled by, or under common control with the Person in question; if the Person in question is a corporation, any executive officer or director of the Person in question or of any corporation directly or indirectly controlling the Person in question. As used in this definition of “Related Party”, the term “control” means the possession, directly or indirectly, 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.
SC Member: Any member of the Steering Committee.
All property owned by the Company shall be owned by the Company as an entity and no Member shall have any ownership interest in such property in its individual name, and each Member’s interest in the Company shall be personal property for all purposes. At all times after the Effective Date, the Company shall hold title to all of its property in the name of the Company and not in the name of any Member.
The Company’s credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be transferred or encumbered for, or in payment of, any individual obligation, of any Member or any other Person.
The Member of the Company hereby ratifies and approves all actions taken by the Company, its sole incorporator, and any officer prior to this Agreement.
The name under which the Company shall conduct its business is “InCommon, LLC”. The business of the Company may be conducted under any other name permitted by the Act that is selected by the Steering Committee, in its sole and absolute discretion. The Steering Committee promptly shall execute, file, and record any assumed or fictitious name certificates required by the laws of the State of Delaware or any state in which the Company conducts business.
The term of the Company commenced on the date upon which the Certificate was duly filed with the Recording Office and shall continue until dissolved and liquidated. The existence of the Company as a separate legal entity shall continue until the Certificate’s cancellation.
The location of the principal place of business of the Company shall be as determined by the Steering Committee. The Steering Committee may change the principal place of business of the Company to such other place or places within the United States as the Steering Committee may from time to time determine, in its sole and absolute discretion, provided that the Steering Committee shall give written notice of the change to the Member within thirty (30) days after the effective date of the change and, if necessary, the Steering Committee shall amend the Certificate in accordance with the applicable requirements of the Act. The Steering Committee may, in its sole and absolute discretion, establish and maintain such other offices and additional places of business of the Company, either within or without the State of Delaware, as it deems appropriate.
The location of the registered office and the name of the registered agent of the Company in the State of Delaware shall be as stated in the Certificate, as determined from time to time by the Steering Committee .
The purposes of the Company shall include:
The Company shall have the power to do any and all acts and things necessary, appropriate, advisable, or convenient for the furtherance and accomplishment of the purposes of the Company, including, without limitation, to engage in any kind of activity and to enter into and perform obligations of any kind necessary to or in connection with, or incidental to, the accomplishment of the purposes of the Company, so long as said activities and obligations may be lawfully engaged in or performed by a limited liability company under the Act.
The Company shall be operated in a manner consistent with its classification as a disregarded entity for federal and state tax purposes.
Equity interests in the Company shall consist of the Membership Interests, which shall all be owned by Internet2.
No new Membership Interest shall be issued.
Except as otherwise provided in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and neither the Member nor the SC Members shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member or a SC Member. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under the Act or this Agreement shall not be grounds for imposing personal liability on the Member or the SC Members for liabilities of the Company.
Terms of Office. Any officer shall hold his or her respective office unless and until such officer is removed by the Steering Committee.
(i) The sale or other disposition of substantially all of the Company’s assets;
(ii) An amendment to this Agreement;
(iii) The admission of new Members;
(iv) The dissolution, merger or combination of the Company;
(v) Approving any contract, agreement, or commitment (with the exception of an employment contract) with a value in excess of $50,000 or a term longer than six (6) months (or a group of related contracts, agreements and commitments with an aggregate value in excess of $50,000);
(vi) Approving the choice of bank depositories and approving arrangements relating to signatories on bank accounts affirmative;
(vii) Approving the conveyance, sale, transfer, assignment, pledge, encumbrance, or disposal of, or the granting of a security interest in, any assets of the Company the fair market value of which may reasonably be expected to exceed $25,000;
(viii) Approving the entry of the Company into any other partnership or joint venture;
(ix) Incurring indebtedness or loaning any sum or extending credit to any Person in an amount in excess of $25,000, or for a period in excess of six (6) months;
(x) Guaranteeing any indebtedness of any other Person in any amount in excess of $25,000 or for a period in excess of six (6) months, or guaranteeing any contractual obligations of any other Person with a value in excess of $25,000 or for a period in excess of six (6) months;
(xi) Conducting litigation to which the Company is a party; or
(xii) Approving the acquisition approval of any business or a business division from any Person, whether by asset purchase, stock purchase, merger, or other business combination.
Operations
Manager. The Steering
Committee shall appoint an Operations Manager of the Company (the “Operations
Manager”) and the appointment shall be approved by the Member. Subject to the supervision and authority of
the Steering Committee, the Operations Manager (i) shall be the chief
executive officer of the Company, (ii) shall have responsibility and authority
for management of the day-to-day operations of the Company, and (iii) may
execute agreements and contracts on behalf of the Company. The Operations Manager shall be an employee
of Internet2.
The Company shall implement the Conflict of Interest Policy set forth in Exhibit B hereto, which may be amended solely by the Member.
All funds of the Company shall be deposited in Member's name in such checking and savings accounts, time deposits, certificates of deposit or other accounts at such banks as shall be designated by the Member from time to time, and the Member shall arrange for the appropriate conduct of such account or accounts.
All decisions as to accounting matters, except as specifically provided to the contrary herein, shall be made by the Steering Committee.
The books, accounts and records of the Company at all times shall be maintained at the Company’s principal office.
The fiscal year of the Company for financial, accounting, Federal, state and local income tax purposes shall be the same fiscal year as its Member.
Upon the dissolution of the Company, the Certificate shall be canceled in accordance with the provisions of Section 18‑203 of the Act, and the Member (or any other person or entity responsible for winding up the affairs of the Company) shall promptly notify the Steering Committee of such dissolution.
A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to Section 8.03 in order to minimize any losses otherwise attendant upon such a winding up.
9.01 This Agreement may only be amended by the
consent of the Member.
10.01 The
Company may permit Persons, who shall be designated as “Participants” or such
other name as the Steering Committee may permit to become affiliated with the
Company in order to help facilitate and advance the Company’s purposes. Such Participants may be designated into one
or more classes with such rights and obligations, as provided for by agreement
between the Company and such Participant(s).
In no event shall such Participant(s) be (i) entitled to vote on any
manner involving the affairs of the Company, (ii) entitled to any rights or
privileges afforded to the Member, (iii) entitled to any rights or privileges
not specifically provided for in the agreement between the Company and the
Participant(s), or (iv) entitled to any interest in the Company or its assets.
The foregoing Agreement was adopted by the Company's sole Member, Internet2, on December 10, 2004.
___________________________________
By: _________________________________
Douglas E. Van Houweling, CEO
University Corporation for Advanced Internet Development, Inc.
EXHIBIT A
INCOMMON LLC
Steering Committee
|
Name |
Class
|
Term Expires |
|
Jerry Campbell, USC |
A |
12/31/2004 |
|
Lev Gonick, CWRU |
A |
12/31/2004 |
|
Susan Perry, Mt Holyoke, Mellon |
A |
12/31/2004 |
|
Clair Goldsmith, UT System |
B |
12/31/2006 |
|
Carrie Regenstein, U Wisconsin-Madison |
B |
12/31/2006 |
|
Mike Teets, OCLC |
B |
12/31/2006 |
|
Mark Luker, EDUCAUSE |
C |
12/31/2007 |
|
Tracy Mitrano, Cornell |
C |
12/31/2007 |
|
David
Yakimischak, JSTOR |
C |
12/31/2007 |
|
Ken
Klingenstein, Internet2 |
Internet2 Member
|
|
|
|
|
|
EXHIBIT B
INCOMMON FEDERATION,
LLC
CONFLICT
OF INTEREST POLICY
ARTICLE I
PURPOSE
The purpose of the conflict of interest policy is to protect the interest of InCommon, LLC (the “Company”) when it is contemplating entering into a transaction or arrangement that might benefit the private interest of a member of the Steering Committee (each such member, an “SC Member,” and such Committee, the “Steering Committee”), a member of a subcommittee of the Steering Committee (a “subcommittee”), an officer of the Steering Committee, or an employee of the Company (each such member, officer, or employee, a “Company Individual”). This policy is intended to supplement but not replace any applicable federal or state laws governing conflicts of interest applicable to the Company.
ARTICLE II
DEFINITIONS
1. Interested Person
Any Company Individual who has a direct or indirect financial interest, as defined below, is an “Interested Person.”
2. Financial Interest
A Company Individual has a financial interest if he or she has, directly or indirectly, through business, investment or family ‑‑
a. an ownership or investment interest in any entity with which the Company has a transaction or arrangement, or
b. a compensation arrangement with any entity, except Internet2, or individual with which the Company has a transaction or arrangement, or
c. a potential ownership or investment interest in, or compensation arrangement with, any entity, except Internet2, or individual with which the Company is negotiating a transaction or arrangement.
Compensation includes direct and indirect remuneration as well as gifts or favors that are substantial in nature.
A financial interest is not necessarily a conflict of interest. Under Article III, Section 2, a person who has a financial interest may have a conflict of interest only if the Steering Committee or appropriate subcommittee decides that a conflict of interest exists.
ARTICLE III
PROCEDURES
1. Duty to Disclose
In connection with any actual or possible conflict of interest, an Interested Person must disclose the existence of his or her financial interest and all material facts to the Steering Committee and/or subcommittee considering the proposed transaction or arrangement.
2. Determining
Whether a Conflict of Interest Exists
After disclosure of the financial interest and all material facts, and after any discussion with the Interested Person, he or she shall leave the Steering Committee or subcommittee meeting while the determination of a conflict of interest is discussed and voted upon. The remaining Steering Committee or subcommittee members shall decide if a conflict of interest exists.
3. Procedures for Addressing the Conflict of Interest
a. An Interested Person may make a presentation at the Steering Committee or subcommittee meeting, but after such presentation, he/she shall leave the meeting during the discussion of, and the vote on, the transaction or arrangement that results in the conflict of interest.
b. The Steering Committee or subcommittee, as the case may be, shall, if appropriate, appoint a disinterested SC Member, officer, or subcommittee to investigate alternatives to the proposed transaction or arrangement.
c. After exercising due diligence, the Steering Committee or subcommittee shall determine whether the Company can obtain a more advantageous transaction or arrangement with reasonable efforts from a person or entity that would not give rise to a conflict of interest.
d. If a more advantageous transaction or arrangement is not reasonably attainable under circumstances that would not give rise to a conflict of interest, the Steering Committee or subcommittee shall determine by a majority vote of its disinterested members whether the transaction or arrangement is in the Company’s best interest and for its own benefit and whether the transaction is fair and reasonable to the Company and shall make its decision as to whether to enter into the transaction or arrangement in conformity with such determination.
4. Violations of the Conflict of Interest Policy
a. If the Steering Committee or subcommittee has reasonable cause to believe that a Company Individual has failed to disclose an actual or possible conflict of interest, it shall inform such person of the basis for such belief and afford him or her an opportunity to explain the alleged failure to disclose.
b. If, after hearing the response of the Company Individual and making such further investigation as may be warranted in the circumstances, the Steering Committee or subcommittee thereof determines that the Company Individual has in fact failed to disclose an actual or possible conflict of interest, it shall take appropriate disciplinary and corrective action.
ARTICLE IV
RECORDS OF PROCEEDINGS
The minutes of the Steering Committee and all subcommittees with Steering Committee-delegated powers shall contain --
1. the names of the persons who disclosed or otherwise were found to have a financial interest in connection with an actual or possible conflict of interest, the nature of the financial interest, any action taken to determine whether a conflict of interest was present, and the Steering Committee’s or subcommittee’s decision as to whether a conflict of interest in fact existed.
2. the names of the persons who were present for discussions and votes relating to the transaction or arrangement, the content of the discussion, including any alternatives to the proposed transaction or arrangement, and a record of any votes taken in connection therewith.
ARTICLE V
COMPENSATION COMMITTEES
A voting member of any subcommittee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Company for services is precluded from voting on matters pertaining to that member’s compensation.
ARTICLE VI
ANNUAL STATEMENTS
Each Company Individual shall annually sign a statement which affirms that such person: -
a. has received a copy of the conflict of interest policy,
b. has read and understands the policy, and
c. has agreed to comply with the policy.