EXHIBIT 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
REPUBLIC ENGINEERED PRODUCTS LLC
This Amended and Restated Limited Liability Company Agreement (the
"Agreement"), effective as of February 10, 2003, of Republic Engineered Products
LLC, a Delaware limited liability company (the "Company") is entered into by the
person or persons named as the members on Appendix I hereto as the same may be
amended from time to time (each a "Member").
BACKGROUND
WHEREAS, the Company was formed as a limited liability company
under the Delaware Limited Liability Company Act (6 Del. C. ss.18-101, et seq.),
as amended from time to time (the "Act"), by the filing of the Certificate of
Formation, which was filed with the Secretary of State of the State of Delaware
as a single member limited liability company under the name "RT Acquisition LLC"
pursuant to the Act on June 4, 2002 for the purpose of acquiring and operating
certain assets of Republic Technologies International, LLC, a Delaware limited
liability company ("RTI"), pursuant to the terms and conditions of that certain
Asset Purchase Agreement, dated as of June 7, 2002, as amended, by and among
RTI, the Company and certain affiliates and subsidiaries of RTI;
WHEREAS, prior to the date hereof, Blue Steel Corporation, as
the original sole member of the Company, caused the name of the Company to be
changed to "Republic Engineered Products LLC" and then contributed all of its
right, title and interest in its membership interest in the Company to Blue Bar,
L.P., a Delaware limited partnership ("Blue Bar"); and
WHEREAS, Blue Bar amended and restated this Agreement as of
August 16, 2002; and
WHEREAS, in connection with the restructuring of Blue Bar and
the Company and effective as of the date hereof, Blue Bar has merged with and
into Republic Engineered Products Holdings LLC, a Delaware limited liability
company ("REP Holdings"), with REP Holdings as the surviving entity; and
WHEREAS, REP Holdings, being the sole member of the Company,
desires to further amend and restate this Agreement in order to, among other
things, establish the terms and conditions pursuant to which the Company will be
managed and set forth the respective rights and obligations of the Members;
NOW, THEREFORE, the Members hereby agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
1.1 Definitions. For the purpose of this Agreement, the following terms
shall have the following meanings:
"Act" has the meaning set forth in the preamble.
"Affiliate" means, as to any Person (a) any Person which directly
or indirectly controls, is controlled by, or is under common control with such
Person, and (b) any Person who is a director, officer, partner or principal of
such Person or of any Person which directly or indirectly controls, is
controlled by, or is under common control with such Person. For purposes of this
definition, "control" of a Person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such Person whether by
ownership of capital stock, by contract or otherwise.
"Agreement" has the meaning set forth in the caption to this
Agreement.
"Blue Bar" has the meaning set forth in the preamble.
"Capital Contribution" means any capital contribution of a Member.
"Chief Executive Officer" has the meaning set forth in Section
3.2(b).
"Chief Financial Officer" has the meaning set forth in Section
3.2(c).
"Code" has the meaning set forth in Section 5.6(a).
"Company" has the meaning set forth in the caption to this
Agreement.
"Interest" means a Member's share of the profits and losses of the
Company and a Member's right to receive distributions of the assets of the
Company. Interests will be expressed as a number of Units.
"Liability" has the meaning set forth in Section 4.2(a).
"Member" has the meaning set forth in the caption to this
Agreement.
"Membership Register" means the register of Interests that shall be
kept and maintained by the Company.
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization, business,
trust, or any other entity or organization, including a government or any
subdivision or agency thereof.
"Protected Person" means: (i) each Member and its respective
Affiliates; (ii) any Person who serves at the request of the Company as an
officer, director, partner, member or employee of any other Person; (iii) any
officer, employee or expressly authorized agent of the
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Company; and (iv) ▇▇▇▇ Investment Group, L.P. and any of its Affiliates for so
long as REP Holdings is a Member, Blue Bar Holdings, L.P. is a member of REP
Holdings and ▇▇▇▇ Investment Group, L.P. or any of its Affiliates is a limited
partner of Blue Bar Holdings, L.P.
"REP Holdings" has the meaning set forth in the preamble to this
Agreement.
"Secretary" has the meaning set forth in Section 3.2(d).
"Unit" means all or a fractional share, as appropriate, of an
Interest in the Company. The number of Units outstanding and the holders thereof
are set forth on Appendix I, as such schedule may be amended from time to time.
1.2 Usage Generally. The definitions in this Article I shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. All references herein to Articles, Sections, and
Appendices shall be deemed to be references to Articles and Sections of, and
Appendices to, this Agreement unless the context shall otherwise require. All
Appendices attached hereto shall be deemed incorporated herein as if set forth
in full herein and, unless otherwise defined therein, each term used in any
Appendix has the meaning ascribed to such term in this Agreement. The words
"include," "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." Each accounting term not defined in this Agreement
has the meaning determined by generally accepted accounting principles in the
United States in effect from time to time (GAAP). The words "hereof," "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.
ARTICLE II.
GENERAL PROVISIONS
2.1 Name. The name of the Company is Republic Engineered Products LLC.
The business of the Company may be conducted under any other name deemed
necessary or desirable by the Members.
2.2 Purpose; Powers. 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
desirable in furtherance of the foregoing and doing every other act and thing
incidental thereto or connected therewith.
2.3 Registered Office; Registered Agent. The address of the registered
office of the Company in the State of Delaware is c/o Corporation Service
Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2.4 Principal Office. The principal office address of the Company shall
be located at, and the Company's business shall be conducted from, such place or
places as the Members may determine from time to time.
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2.5 Members. Appendix I hereto contains the name, address, and number
of Units owned by each Member as of the date of this Agreement. Appendix I shall
be revised from time to time to reflect (i) the admission or withdrawal of
Members, (ii) the transfer of Units in accordance with the terms of this
Agreement, (iii) Capital Contributions, (iv) changes in the number of Units held
by each Member, (v) changes in the total number of Units outstanding and (vi)
other modifications to or changes in the information set forth therein. Unless
otherwise provided herein, a Person shall be deemed a Member and shall have all
rights and obligations of a Member hereunder upon the recording of any such
transfer of Units in the records of the Company. A Person shall be deemed
admitted as a Member at the time that such Person is named on the Membership
Register as a holder of Interests.
2.6 Liability of the Member. No Member shall have any liability for the
obligations or liabilities of the Company except to the extent provided in the
Act.
2.7 Powers of Members. The Members shall have the power to do any and
all acts necessary or convenient to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise, possessed by
members under the laws of the State of Delaware.
2.8 Form of Units. Units will be held in "book-entry" form and will not
be certificated unless and until otherwise determined by the Members.
ARTICLE III.
MANAGEMENT AND OPERATION OF THE COMPANY
3.1 Management and Operation of the Company. Except as expressly
provided herein, the management, control and operation of the Company shall be
vested exclusively in the Members and the Members shall have all of the rights,
powers and authority generally conferred under the Act or other applicable law
on behalf and in the name of the Company and to perform, negotiate and execute
any instruments, contracts or agreements on behalf of the Company that the
Members, in their sole discretion, deem necessary or desirable. Any action of
the Members may be taken by the written consent of those Members holding not
less than a majority of the outstanding Interests.
3.2 Officers.
(a) The Members may employ and retain persons as may be necessary,
appropriate or convenient to manage the execution of the Company's business and
investment policies, including employees and agents who may be designated as
officers with titles, including, but not limited to "chief executive officer,"
"president", "vice president," "secretary" and "chief financial officer." The
individuals serving as officers of the Company on the date hereof shall continue
to serve in such capacities and shall continue to have such duties and
responsibilities that such individuals have on the date hereof, subject to the
provisions of this Section 3.2, until removed by the Members or the Chief
Executive Officer.
(b) The Members shall appoint an individual to serve as the "chief
executive officer" of the Company (the "Chief Executive Officer"), and such
officer shall have general and active management of the business of the Company
and shall see that all orders and resolutions of the
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Members are carried into effect. The Members may also delegate to the Chief
Executive Officer the power to appoint and remove such other officers, assistant
officers and agents as he or she shall from time to time deem necessary,
appropriate or convenient.
(c) The Members shall appoint an individual to serve as the "chief
financial officer" of the Company (the "Chief Financial Officer"), and, unless
the Members by resolution otherwise provides, the Chief Financial Officer shall
be the treasurer and chief accounting and financial officer of the Company. The
Chief Financial Officer shall have the custody of the Company's funds and
securities, shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Company and shall deposit all moneys and other
valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Members. The Chief Financial Officer
shall disburse the funds of the Company as may be ordered by the Members, taking
proper vouchers for such disbursements, and shall render to the Chief Executive
Officer and the Members when the Members so require, an account of all of his or
her transactions as Chief Financial Officer and of the financial condition of
the Company. The Chief Financial Officer shall perform such other duties and
have such other powers as the Members or the Chief Executive Officer may from
time to time prescribe.
(d) The Members shall appoint an individual to serve as the "secretary"
of the Company (the "Secretary"). The Secretary shall give, or cause to be
given, notice of all meetings of the Members and shall perform such other duties
as may be prescribed by the Chief Executive Officer. The Secretary shall have
custody of the seal of the Company and the Secretary, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it, and when
so affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Members may give general authority to any other officer
to affix the seal of the Company and to attest the affixing thereof by his
signature.
(e) Any officer of the Company, or other agent acting in such capacity,
may be removed, either with or without cause, by the Members.
ARTICLE IV.
EXCULPATION, INDEMNIFICATION AND INSURANCE
4.1 Exculpation. No Protected Person shall be liable to the Company or
any Member for any action taken or omitted to be taken by it or by any other
Member or other Person with respect to the Company, including, without
limitation, any negligent act or failure to act, except in the case of a
liability resulting from such Protected Person's own fraud, gross negligence or
willful malfeasance. Any Protected Person may consult with legal counsel and
accountants with respect to Company affairs (including interpretations of this
Agreement) and shall be fully protected and justified in any action or inaction
which is taken or omitted in good faith, in reliance upon and in accordance with
the opinion or advice of such counsel or accountants. In determining whether a
Protected Person acted with the requisite degree of care, such Protected Person
shall be entitled to rely on written or oral reports, opinions, certificates and
other statements of the directors, officers, employees, consultants, attorneys,
accountants and
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professional advisors of the Company, selected with reasonable care; provided,
that no such Protected Person may rely upon such statements if a reasonable
person in similar circumstances should have believed that such statements were
materially false.
4.2 Indemnification.
(a) To the fullest extent permitted by law, the Company shall
indemnify, hold harmless, protect and defend each Protected Person against any
losses, claims, damages or liabilities, including without limitation reasonable
legal fees or other expenses incurred in investigating or defending against any
such losses, claims, damages or liabilities, and any amounts expended in
settlement of any claims approved by the Company (collectively, "Liabilities"),
to which any Protected Person may become subject: (i) by reason of any act or
omission or alleged act or omission (even if negligent) performed or omitted to
be performed in connection with the activities of the Company; (ii) by reason of
the fact that it is or was acting in connection with the activities of the
Company in any capacity or that it is or was serving at the request of the
Company as a partner, stockholder, member, manager, director, officer, employee
or agent of any Person; or (iii) by reason of any other act or omission or
alleged act or omission arising out of or in connection with the activities of
the Company; unless such Liability results from such Protected Person's own
fraud, gross negligence or willful malfeasance.
(b) The Company shall promptly reimburse (or advance to the extent
reasonably required) each Protected Person for reasonable legal or other
expenses (as incurred) of each Protected Person in connection with
investigating, preparing to defend or defending any claim, lawsuit or other
proceeding relating to any Liabilities for which the Protected Person may be
indemnified pursuant to this Section 4.2; provided, that such Protected Person
executes a written undertaking to repay the Company for such reimbursed or
advanced expenses if it is finally judicially determined that such Protected
Person is not entitled to the indemnification provided by this Section 4.2.
(c) The provisions of this Section 4.2 shall continue to afford
protection to each Protected Person regardless of whether such Protected Person
remains in the position or capacity pursuant to which such Protected Person
became entitled to indemnification under this Section 4.2 and regardless of any
subsequent amendment to this Agreement; provided, that no such amendment shall
reduce or restrict the extent to which these indemnification provisions apply to
actions taken or omissions made prior to the date of such amendment.
(d) Any indemnification under this Section 4.2 or otherwise shall be
paid out of and to the extent of the Company's assets only.
4.3 Insurance. The Company may purchase and maintain insurance on
behalf of any Protected Person, or any other Person that is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person and incurred by such person in any such
capacity or arising out of such person's status as such, whether or not the
Company would have the power to indemnify such person against such liability
under applicable law or this Article IV.
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ARTICLE V.
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; PROFITS AND LOSSES;
DISTRIBUTIONS; TAX MATTERS; TRANSFERS
5.1 Capital Contributions. The Members have made a contribution to the
capital of the Company in the amount set forth in Appendix I hereto (the
"Initial Contribution"). The Members shall have no obligation to make any
additional capital contributions to the Company.
5.2 Additional Contributions.
(a) The Members may make such additional capital contributions to the
Company as the Members in their discretion may deem necessary or advisable in
connection with the business of the Company.
(b) The provisions of Section 5.1 and this Section 5.2 are intended
solely to benefit the Members of the Company and, to the fullest extent
permitted by law, shall not be construed as conferring any benefit upon any
creditor of the Company other than the Members in their capacity as such, and no
such creditor shall obtain any rights under any of such provisions (whether as a
third party beneficiary of this Agreement or otherwise). No Member of the
Company shall have any duty or obligation to any such creditor to make any
contribution to the Company or to issue any call for capital pursuant to this
Section 5.2.
5.3 Capital Accounts. The Company shall maintain for each Member a
capital account in accordance with this Section 5.3 and in accordance with the
rules of Treasury Regulation Section 1.704-1(b)(2)(iv) promulgated under the
Code (as defined herein). Each Member's capital account shall have an initial
balance equal to the amount of cash constituting such Member's Initial
Contribution to the capital of the Company. Each Member's capital account shall
be increased by the sum of (a) the amount of cash constituting additional
contributions by such Member to the capital of the Company, plus (b) any profits
allocated to the Member's Capital Account pursuant to Section 5.4 hereof. Each
Member's capital account shall be reduced by the sum of (a) the amount of cash
and the fair value of any property distributed by the Company to such Member,
plus (b) any losses allocated to such Member's capital account pursuant to
Section 5.4 hereof.
5.4 Allocation of Profits and Losses. The Company's profits and losses
shall be allocated 100% to the Members.
5.5 Distributions.
(a) The Members shall not (i) be entitled to interest on its capital
contributions to the Company, or (ii) have the right to distributions or the
return of any contribution to the capital of the Company except (A) for
distributions in accordance with this Section 5.5 or (B) upon dissolution of the
Company. The entitlement to any such return at such time shall be limited to the
value of the capital account of the Members. To the fullest extent permitted by
the Act, the Members shall not be liable for the return of any such amounts. The
Company shall not make a distribution to the Members if such distribution would
violate Section 18-607 of the Act.
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(b) Distributions shall be made to the Members at the times and in the
aggregate amounts as determined by the Members.
5.6 Fiscal Year; Tax Matters.
(a) The Fiscal Year of the Company for accounting and tax purposes
shall begin on January 1 and end on December 31 of each year, except for the
short taxable years in the years of the Company's formation and termination and
as otherwise required by the Internal Revenue Code of 1986, as amended (the
"Code").
(b) Proper and complete records and books of account of the business of
the Company shall be maintained at the Company's principal place of business.
The Member acknowledges and agrees that the Company is a domestic entity with a
single owner and is to be disregarded as a separate entity for federal income
tax purposes as provided in Treasury Regulation ss. 7701-3 promulgated under the
Code. The Company's books of account shall be maintained on a basis consistent
with such treatment and on the same basis utilized in preparing REP Holdings'
federal income tax return. Each Member and its duly authorized representatives
may, for any reason reasonably related to its interest as a Member of the
Company, examine the Company's books of account and make copies and extracts
therefrom at its own expense. The Members shall maintain the records of the
Company for three years following the termination of the Company.
5.7 Assignment and Transfers of Interests. Each Member may transfer all
or any portion of its interest in the Company to any Person at any time.
ARTICLE VI.
MISCELLANEOUS
6.1 Term; Dissolution. Subject to the occurrence of an event of
dissolution, the Company shall have perpetual existence. The Company shall
dissolve, and its affairs shall be wound up upon the first to occur of the
following: (i) the written consent of the Members or (ii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
6.2 Amendments. Any amendments to this Agreement may be made in the
sole and absolute discretion of the Members and shall be in writing signed by
the Members.
6.3 Successors and Assigns. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties hereto and their respective permitted
successors and assigns.
6.4 Severability. In case any provision of this Agreement shall be
deemed to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired hereby.
6.5 Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware, without regard to the conflict of laws
principles thereof. The Members intend the provisions of the Act to be
controlling as to any matters not set forth in this Agreement.
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IN WITNESS WHEREOF, the Members have caused this Agreement to be duly
executed and delivered on the day and year first above written.
SOLE MEMBER:
REPUBLIC ENGINEERED PRODUCTS
HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
APPENDIX I
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MEMBER
Name and Address Initial Number of
of Member Contribution Units
Republic Engineered Products Holdings LLC 1,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇