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(d) In the event of a distribution in liquidation of the Company’s property in kind,
the fair market value of such property shall be determined by a qualified and disinterested
MAI appraiser, selected by the Members (or the person or persons carrying out the
liquidation), and each Member shall receive an undivided interest in such property equal
to the portion of the proceeds to which he would be entitled under the immediately
preceding subsection if such property were sold at such fair market value.
8.05 Taxable Gain or Loss. Taxable income, gain and loss from the sale or
distribution of Company property incurred upon or during liquidation and termination of
the Company shall be allocated to the Members as provided in Section 6.08 above.
8.06 No Recourse Against Members. Except as provided by law, upon
dissolution, each Member shall look solely to the assets of the Company for the return of
his Capital Contribution. If the Company property remaining after the payment or
discharge of the debts and liabilities of the Company is insufficient to return the Capital
Contribution of each Member, such Member shall have no recourse against any other
Member.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 Arbitration. All disputes and controversies between the parties hereto
arising out of or in connection with this Agreement shall be submitted to arbitration
pursuant to the following procedure. Either party may, by written notice to the other within
twenty (20) days after the controversy has arisen hereunder, appoint an arbitrator who
shall be either an attorney or accountant. The other party shall, by written notice, within
ten (10) days after receipt of such notice by the first party, appoint a second arbitrator
who shall also be an attorney or accountant, and in default of such second appointment
the first party shall apply to the Circuit Court for the City of Newport News, to appoint the
second arbitrator pursuant to the provisions of Section 8.01-581.03 of the Code of Virginia
(1950). When two arbitrators have been appointed as hereinabove provided, they shall
agree on a third arbitrator and shall appoint him by written notice signed by both of them
and a copy mailed to each party hereto within fifteen (15) days after such appointment.
On appointment of three arbitrators as hereinabove provided, such arbitrators shall hold
an arbitration hearing within thirty (30) days after such appointment. At the hearing the
three arbitrators shall allow each party to present his case, evidence, and witnesses, if
any, in the presence of the other party, and shall render their award, including a provision
for payment of costs and expenses of arbitration to be paid by one or both of the parties
hereto, as the arbitrators deem just. The decision of the majority of the arbitrators shall
be binding on the parties hereto (although each party shall retain his right to appeal any
questions of law arising at the hearing), and judgment may be entered thereon in any
court having jurisdiction.
9.02 Attorneys’ Fees. In the event any Member brings an action to enforce any
provisions of this Operating Agreement against the Company or any other Member,
whether such action is at law, in equity or otherwise, the prevailing party shall be entitled,Jump to an indexed page (65 of 65)