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Limited Liability Company Agreement

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Title:

Limited Liability Company Agreement

Entities:

Quality Gift Distributors, Inc.

Date:

2007

Size:

133KB total

Price:

$41

ID:

#2809059

► Corporate ► Bus. Formation ► Limited Liability Company Agreements

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YCC HOLDINGS LLC

A Delaware Limited Liability Company

LIMITED LIABILITY COMPANY AGREEMENT

Dated as of February 6, 2007

THE UNITS AND OTHER INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.

TABLE OF CONTENTS


		Page
Article I DEFINITIONS		1
1.1	Certain Definitions	1
1.2	Other Defined Terms	6
1.3	Construction	6

Article II ORGANIZATION		6
2.1	Formation	6
2.2	Name	6
2.3	Registered Office; Registered Agent; Principal Office; Other Offices	7
2.4	Purposes	7
2.5	Term	7
2.6	No State-Law Partnership	7

Article III MEMBERS; holders; company UNITS		7
3.1	Initial Members	7
3.2	Liability of Members and Holders	7
3.3	No Authority to Bind Company	8
3.4	Company Units; Voting Rights	8
3.5	Issuance of Additional Units and Interests	9
3.6	Vesting of Class B Common Units	10

Article IV CAPITAL ACCOUNTS		10
4.1	Establishment and Determination of Capital Accounts	10
4.2	Computation of Amounts	10
4.3	Interest	11
4.4	Loans from Holders	11
4.5	Negative Capital Accounts	11
4.6	Transfer of Capital Accounts	11
4.7	Adjustments to Book Value	11

Article V DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES		12
5.1	Distributions	12
5.2	Tax Distributions	13
5.3	Allocation of Profits and Losses	14
5.4	Special Allocations	14
5.5	Amounts Withheld	15
5.6	Tax Allocations; Code Section 704(c)	15

Article VI MANAGEMENT OF THE COMPANY		16
6.1	Management of the Company	16
6.2	Composition and Election of the Board	16


6.3	Committees	16
6.4	Duties of the Managers	16
6.5	Removal of a Manager	17
6.6	Resignation	17
6.7	Vacancy	17
6.8	Meetings	17
6.9	Place of Meetings	17
6.10	Notice of Meetings	17
6.11	Spontaneous Meeting of Board	17
6.12	Quorum	17
6.13	Voting	17
6.14	Manner of Acting	17
6.15	Proxies	18
6.16	Written Actions	18
6.17	Telephonic Participation in Meetings	18

Article VII OFFICERS		18
7.1	Designation of Officers	18
7.2	The Chairman of the Board	18
7.3	Chief Executive Officer	18
7.4	President; Vice-President; Secretary	19
7.5	Resignation; Removal	19
7.6	Duties of Officers Generally	19

Article VIII MEMBERS		19
8.1	Number	19
8.2	Membership Status	19
8.3	No Participation in Management	19
8.4	Meetings	19
8.5	Place of Meetings	19
8.6	Notice of Meetings	19
8.7	Spontaneous Meeting of Members	20
8.8	Quorum	20
8.9	Voting Rights Generally	20
8.10	Manner of Acting	20
8.11	Proxies	20
8.12	Written Actions	20
8.13	Telephonic Participation in Meetings	20
8.14	Confidentiality	20
8.15	Withdrawal	21

Article IX EXCULPATION AND INDEMNIFICATION		21
9.1	Exculpation	21
9.2	Right to Indemnification	21
9.3	Advance Payment	22
9.4	Indemnification of Employees and Agents	22
9.5	Appearance as a Witness	23


9.6	Non-exclusivity of Rights	23
9.7	Insurance	23
9.8	Savings Clause	23
9.9	Investment Opportunities and Conflicts of Interest	23

Article X TAXES		24
10.1	Tax Returns	24
10.2	Tax Matters Partner	24
10.3	Certain Tax Matters	24
10.4	Code Section 83 Safe Harbor Election	24

Article XI COVENANTS OF THE COMPANY		25
11.1	Maintenance of Books	25
11.2	Reports	25
11.3	Company Funds	25

Article XII TRANSFERS		26
12.1	Restrictions on Transfer of Units	26
12.2	Void Transfers	26
12.3	Effect of Assignment	26
12.4	Deliveries for Transfer	27
12.5	Admission of Assignee as Member	28
12.6	Effect of Admission of Member on Assignor and Company	28
12.7	Distributions and Allocations Regarding Transferred Units	28
12.8	Legend	29
12.9	Transfer Fees and Expenses	29

Article XIII DISSOLUTION, LIQUIDATION AND TERMINATION		30
13.1	Dissolution	30
13.2	Liquidation and Termination	30
13.3	Cancellation of Certificate	31

Article XIV SECTION 351 TRANSACTION; IPO; REGISTRATION		31
14.1	Incorporation; IPO	31

Article XV GENERAL PROVISIONS		32
15.1	Offset	32
15.2	Power of Attorney	32
15.3	Notices	33
15.4	Entire Agreement	33
15.5	Effect of Waiver or Consent	34
15.6	Amendment, Modification or Waiver	34
15.7	Binding Effect	34
15.8	Governing Law; Severability	34
15.9	Further Assurances	35
15.10	Waiver of Certain Rights	35
15.11	Indemnification and Reimbursement for Certain Payments	35

iii


15.12	Opt-in to Article 8 of the Uniform Commercial Code	35
15.13	Notice to Members of Provisions	35
15.14	Counterparts	36
15.15	Consent to Jurisdiction and Service of Process	36
15.16	Waiver of Jury Trial	36
15.17	Creditors	36
15.18	Title to Company Assets	36
15.19	Parties in Interest	37
15.20	Adjustment of Numbers	37

INDEX OF DEFINED TERMS


		Page
5% Owner		3
Act		1
Additional Unit		9
Affiliate		1
Agreement		1
Assignee		26
Assignor		26
Assumed Tax Rate		13
Board		1
Book Value		1
Business Day		2
Capital Account		10
Capital Contribution		2
Catch Up Payment		2
Certificate		6
Certificated Units		29
Chief Executive Officer		2
Class A Common Unit		2
Class B Common Unit		2
Code		2
Common Unit		2
Company		2
Company Income Amount		13
Company Minimum Gain		3
Confidential Information		20
Corporation		31
Distribution		3
Economic Interest		3
Fiscal Year		3
Forfeiture Allocations		15
GAAP		3
Holder		3
Incorporation Plan		31
Indemnifying Person		35
Independent Third Party		3
Initial Capital Contribution		7
Initial Members		3
IPO		4
IRS Notice		24
Joinder		4


Losses		4
Management Purchaser		9
Management Services Agreement		4
Manager		4, 16
MDCP		4
MDCP Managers		4
Member		4
Member Nonrecourse Debt Minimum Gain		3
Member Nonrecourse Deductions		3
Members Agreement		6
New Common		31
Newly Vested Unit		4
Nonrecourse Deductions		4
Other Business		23
Person		4
Proceeding		21
Profits		4
Regulatory Allocations		15
Sale of the Company		5
Section 351 Transaction		5, 31
Securities Act		5
Subsidiary		5
Tax Distribution		13
Transfer		5
Treasury Regulations		5
Unit		5
Unreturned Capital		6
Yankee Candle		6
Yankee Holding		6

LIMITED LIABILITY COMPANY AGREEMENT

YCC HOLDINGS LLC

A Delaware Limited Liability Company

This Limited Liability Company Agreement (this Agreement) of YCC Holdings LLC, a Delaware limited liability company (the Company), dated and effective as of February 6, 2007, is adopted and entered into by and among the Initial Members identified on Schedule A attached hereto. Capitalized terms used but not otherwise defined herein shall have the meanings accorded to them in Section 1.1 hereof.

WHEREAS, on the date of this Agreement, the Initial Members purchased Class A Common Units and/or Class B Common Units of the Company pursuant to separate purchase agreements between each of them and the Company.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto intending to be legally bound as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions. As used in this Agreement, the following terms have the following meanings:

Act means the Delaware Limited Liability Company Act, 6 Del. L. 18-101, et seq., as it may be amended from time to time, and including any successor statute to the Act.

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