EXHIBIT C (Form of Reorganized MIG LLC Agreement)

Transcription

1 Case KG Doc Filed 10/24/16 Page 1 of 11 EXHIBIT C (Form of Reorganized MIG LLC Agreement)

2 Case KG Doc Filed 10/24/16 Page 2 of 11 AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF MIG, LLC This Amended and Restated Limited Liability Company Agreement (this Agreement ) of MIG, LLC (the Company ), is entered into as of the [ ] day of [ ], 2016 by MIG Holdings, LLC, as sole member (the Member ). WHEREAS, the Company was formed in accordance with the Delaware Limited Liability Company Act, as amended from time to time (6 Del. C , et seq.) (the Act ), and immediately prior to the date hereof was governed by that certain Limited Liability Company Agreement of the Company, dated as of December 30, 2010 (the Prior Agreement ); WHEREAS, on June 30, 2014, the Company and its wholly-owned subsidiary, ITC Cellular, LLC, a Delaware limited liability company ( ITC and, together with the Company, the Debtors ), filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. 101, et seq, (the Bankruptcy Code ), thereby commencing Case Nos (KG) and (KG) with the United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court ), and the Debtors have continued to operate their businesses as debtors and debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code; and WHEREAS, pursuant to the Indenture Trustee s Amended Plan of Reorganization of MIG, LLC and ITC Cellular, LLC, as confirmed by an order of the Bankruptcy Court entered on [ ], 2016, and in connection with the consummation of the transactions contemplated thereby, the Member is entering into this Agreement to amend and restate the Prior Agreement in its entirety and continue the Company as a limited liability company under the Act. NOW, THEREFORE, the Member hereby agrees as follows: 1. Name. The name of the Company is MIG, LLC. 2. Purpose. The object and purpose for which the Company has been organized, 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 (including, without limitation, acquiring, managing and disposing of real and personal property), and engaging in any and all activities necessary or incidental to the foregoing. 3. Registered Office. The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE

3 Case KG Doc Filed 10/24/16 Page 3 of Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE Term. The Company was converted from a corporation to a limited liability company upon the effectiveness of the filing with the Secretary of State of the State of Delaware of a certificate of conversion and a certificate of formation with respect to the Company, and shall continue in existence until dissolved in accordance with the Act and this Agreement. 6. Members. The Company has one member. The name and mailing address of the Member is as follows: Name Address MIG Holdings, LLC 5960 Fairview Road, Suite 400 Charlotte, North Carolina Management. Section 7.1 Powers of the Member. The business and affairs of the Company shall be managed by the Member. The Member shall be deemed to be a manager as such term is used in the Act. Without limiting the foregoing, the Member shall have the power and authority to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers and authorities, statutory or otherwise, possessed by members of limited liability companies under the laws of the State of Delaware. Section 7.2 Officers. (a) In connection with Section 7.1 above, the Member is hereby authorized and empowered to act through officers and employees and other persons designated by the Member in carrying out any and all of the Member s powers and authorities under this Agreement, and to delegate any and all of the powers and authorities that the Member possesses under the Agreement to any of its officers and employees and to any other persons designated by the Member. The Member may appoint individuals with or without such titles as it may elect, including the titles of President, Vice President, Treasurer, Assistant Treasurer, Secretary, Assistant Secretary, Controller and Assistant Controller to act on behalf of the Company with such power and authority as the Member may delegate in writing to any such persons. (b) All officers as between themselves and the Company shall have such authority and perform such duties in the management of the Company as may be provided in this Section 7 or as the Member may from time to time determine, and may act on behalf of the Company in the manner and regarding such matters as is provided for in this Section 7 or as may be authorized by the Member. (c) Each officer elected by the Member shall serve until his or her death, resignation, or removal by the Member. A vacancy in any office because of death, resignation, removal, or any other cause may be filled by the Member. 2

4 Case KG Doc Filed 10/24/16 Page 4 of 11 (d) Any officer may resign at any time by so notifying the Member in writing. Such resignation shall take effect upon receipt of such notice or at such later time as is therein specified, and unless otherwise specified, the acceptance of such resignation shall not be necessary to make it effective. Any officer elected by the Member may be removed by the Member with or without cause. Section 7.3 Qualification to do Business. (a) The Member or any officer of the Company is hereby authorized, as an authorized person within the meaning of the Act, at any time upon the approval of the Member, to promptly execute, deliver and file any amendment and/or restatement of the Certificate of Formation and any other certificates (and any amendments or restatements thereof) necessary for the Company to qualify to conduct business in a jurisdiction in which the Company may wish to conduct business. 8. No Management by Other Persons or Entities. Except and only to the extent expressly delegated by the Member, no person or entity other than the Member shall be an agent of the Company or have any right, power or authority to transact any business in the name of the Company or to act for or on behalf of or to bind the Company. 9. Dissolution. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (a) the written consent of the Member or (b) the entry of a decree of judicial dissolution under Section of the Act. Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. As used in this Section 9, the term Bankruptcy means, with respect to any person or entity, if such person or entity (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the person or entity or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the person or entity seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such person or entity s consent or acquiescence of a trustee, receiver or liquidator of such person or entity or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of Bankruptcy is intended to replace and shall supersede and replace the definition of Bankruptcy set forth in Sections (1) and of the Act. 10. Liquidation. If the Company is dissolved pursuant to Section 9, the Member shall have the authority to wind-up the Company in accordance with the provisions of the Act. 3

5 Case KG Doc Filed 10/24/16 Page 5 of Capital Contributions. The Member is not required to make any capital contribution to the Company. 12. Allocation of Profits and Losses. The Company s profits and losses shall be allocated to the Member. 13. Amendments. Amendments to this Agreement may be made only with the written consent of the Member. 14. Distributions. Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Member. 15. Assignments. The Member may assign in whole or in part its limited liability company interest. The transferee shall be admitted to the Company as a member of the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of this Agreement, which instrument may be a counterpart signature page to this Agreement. If the Member transfers all of its limited liability company interest in the Company pursuant to this Section 15, such admission shall be deemed effective immediately prior to the transfer and, immediately following such admission, the transferor Member shall cease to be a member of the Company. Notwithstanding anything in this Agreement to the contrary, any successor to the Member by merger or consolidation shall, without further act, be the Member hereunder, and such merger or consolidation shall not constitute an assignment for purposes of this Agreement and the Company shall continue without dissolution. 16. Admission of Additional Members. One (1) or more additional members of the Company may be admitted to the Company with the consent of the Member. Prior to the admission of any such additional member of the Company, the Member shall amend this Agreement to make such changes as the Member shall determine to reflect the fact that the Company shall have more than one member. 17. Liability of Members. The Member shall not have any liability for the obligations or liabilities of the Company except to the extent provided in the Act. 18. Indemnification. Section 18.1 Exculpation. (a) For purposes of this Agreement, the term Covered Persons means the Member, any affiliate of the Member and any officers, directors, shareholder, partners or employees of the Member and their respective affiliates, and any Manager, officer, employee or expressly authorized agent of the Company or its affiliates. (b) No Covered Person shall be liable to the Company or any other Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person s gross negligence or willful misconduct. 4

6 Case KG Doc Filed 10/24/16 Page 6 of 11 (c) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person or entity as to matters the Covered Person reasonably believes are within the professional or expert competence of such person or entity and who or which has been selected with reasonable care by or on behalf of the Company; including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to the Member properly be paid. Section 18.2 Duties and Liabilities of Covered Persons. (a) To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the Company or to any other Covered Person for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or otherwise modify the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person. (b) Whenever in this Agreement a Covered Person is permitted or required to make a decision (i) in its discretion or under a grant of similar authority or latitude, the Covered Person shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Person, or (ii) in its good faith or under another express standard, the Covered Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Agreement or other applicable law. Section 18.3 Indemnification. To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 shall be provided out of and to the extent of Company assets only, and no Covered Person shall have any personal liability on account thereof. Section 18.4 Expenses. To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 18 hereof. 5

7 Case KG Doc Filed 10/24/16 Page 7 of Outside Business. The Member or any affiliate thereof may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Company, and the Company and the Member shall have no rights by virtue of this Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Company, shall not be deemed wrongful or improper. The Member or affiliate thereof shall not be obligated to present any particular investment opportunity to the Company even if such opportunity is of a character that, if presented to the Company, could be taken by the Company and the Member or affiliate thereof shall have the right to take for its own account (individually or as a partner, shareholder, fiduciary or otherwise) or to recommend to others any such particular investment opportunity. 20. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. 21. Certificated Limited Liability Company Interests. (a) Each limited liability company interest in the Company shall constitute a security within the meaning of, and be governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(l 5) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995 and the Company hereby opts-in to such provisions for the purpose of the Uniform Commercial Code. (b) The Company shall maintain books for the purpose of registering the transfer of limited liability company interests of the Company. Notwithstanding anything in this Agreement to the contrary, the transfer of any limited liability company interest in the Company requires delivery of an endorsed Certificate and any transfer of limited liability company interests in the Company shall not be deemed effective until the transfer is registered in the books and records of the Company. (c) Each limited liability company interest in the Company shall be represented by a certificate in the form attached hereto as Exhibit A (a Certificate ), and shall contain the following legend: THE TRANSFER OF THIS CERTIFICATE AND THE LIMITED LIABILITY COMPANY INTEREST REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF [ ], 2016, AS THE SAME MAY BE AMENDED OR AMENDED AND RESTATED FROM TIME TO TIME. (d) Notwithstanding any provision of this Agreement to the contrary, to the extent any provision of this Agreement is inconsistent with any non-waivable provision of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware, the provisions of Article 8 of the Uniform Commercial Code as in effect in the State of Delaware shall control. 6

8 Case KG Doc Filed 10/24/16 Page 8 of 11 (e) THE TRANSFER OF THE LIMITED LIABILITY COMPANY INTERESTS IN THE COMPANY DESCRIBED IN THIS AGREEMENT ARE RESTRICTED AS PROVIDED HEREIN. 22. No Nonvoting Equity Securities. Notwithstanding anything in this Agreement to the contrary, the Company shall not issue any non-voting equity securities as and to the extent prohibited by Section 1123(a)(6) of the Bankruptcy Code as in effect on the date of this Agreement; provided, however, that the foregoing restriction (i) will not have any further force or effect beyond that required under Section 1123(a)(6), (ii) will have such force and effect only for so long as such 1123(a)(6) is in effect and applicable to the Company, and (iii) in all events may be amended or eliminated in accordance with applicable law from time to time in effect. [Remainder of Page Intentionally Left Blank] 7

9 Case KG Doc Filed 10/24/16 Page 9 of 11 IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the date first written above. MIG HOLDINGS, LLC By: Name: Title: [Signature Page to Amended and Restated LLC Agreement for MIG, LLC]

10 Case KG Doc Filed 10/24/16 Page 10 of 11 EXHIBIT A CERTIFICATE FOR MIG, LLC Certificate Number % outstanding limited liability company interests MIG, LLC, a Delaware limited liability company (the Company ), hereby certifies that (the Holder ) is the registered owner of % of the limited liability company interest in the Company (the Interests ). THE RIGHTS, POWERS, PREFERENCES, RESTRICTIONS (INCLUDING TRANSFER RESTRICTIONS) AND LIMITATIONS OF THE INTERESTS ARE SET FORTH IN, AND THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY ARE ISSUED AND SHALL IN ALL RESPECTS BE SUBJECT TO THE TERMS AND PROVISIONS OF THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF [ ], 2016, AS THE SAME MAY BE AMENDED OR AMENDED AND RESTATED FROM TIME TO TIME (THE AGREEMENT ). THE TRANSFER OF THIS CERTIFICATE AND THE INTERESTS REPRESENTED HEREBY IS RESTRICTED AS DESCRIBED IN THE AGREEMENT. By acceptance of this Certificate, and as a condition to being entitled to any rights and/or benefits with respect to the Interests evidenced hereby, the Holder is deemed to have agreed to comply with and be bound by all of the terms and conditions of the Agreement. The Company will furnish a copy of the Agreement to the Holder without charge upon written request to the Company at its principal place of business. The Company maintains books for the propose or registering the transfer of Interests. Each limited liability company interest in the Company shall constitute a security within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8-102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioner on Uniform State Laws and approved by the American Bar Association on February 14, This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. IN WITNESS WHEREOF, the Company has caused this Certificate to be executed by its as of the date set forth below. Dated:, 20 Name: Title:

11 Case KG Doc Filed 10/24/16 Page 11 of 11 REVERSE SIDE OF CERTIFICATE REPRESENTING INTERESTS OF MIG, LLC FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto [print name of the transferee], [insert Social Security Number or other taxpayer identification number of transferee], the following specified percentage of Interests: [identify percentage of Interests being transferred], and irrevocably constitutes and appoints as attorney-in-fact to transfer the same on the books and records of the Company, with full power of substitution in the premises. Dated:, 20 Signature: (Transferor) Address: