AMENDED AND RESTATED OPERATING AGREEMENT OF HICKORY BUSINESS FURNITURE, LLC
EXHIBIT
3.6
AMENDED
AND RESTATED
OF
HICKORY
BUSINESS FURNITURE, LLC
THIS AMENDED
AND RESTATED OPERATING AGREEMENT of Hickory Business Furniture, LLC (the
"Company"), a limited liability company organized pursuant to the North Carolina
Limited Liability Company Act, is executed effective as of December 1,
2008. Allsteel Inc., an Illinois corporation, is the sole member of
the Company (the "Member"). Solely for federal and state tax purposes and
pursuant to Treasury Regulations Section 301.7701, the Member and the Company
intend the Company to be disregarded as an entity that is separate from the
Member. For all other purposes (including, without limitation, limited liability
protection for the Member from Company liabilities), however, the Member and the
Company intend the Company to be respected as a separate legal entity that is
separate and apart from the Member.
ARTICLE
I
FORMATION
OF THE COMPANY
1.1. Formation. The
Company was formed as a limited liability company on March 28, 2008, upon the
filing with the Secretary of State of the Articles of Organization of the
Company, which converted Hickory Business Furniture, Inc., a North Carolina
corporation, to the Company (the "Conversion").
1.2. Name. The name of the
Company is Hickory Business Furniture, LLC. The Member may change the
name of the Company from time to time as it deems advisable, provided
appropriate amendments to this Agreement and the Articles of Organization and
necessary filings under the Act are first obtained.
1.3. Registered Office and
Registered Agent. The Company's registered office within the State of
North Carolina and its registered agent at such address shall be as the Member
may from time to time deem necessary or advisable.
1.4. Principal Place of
Business. The principal place of business of the Company within the State
of North Carolina shall be at such place or places as the Member may from time
to time deem necessary or advisable.
1.5. Purposes and
Powers.
(a) The
purpose of the Company shall be to engage in any lawful business for which
limited liability companies may be organized under the Act.
(b) The
Company shall have any and all powers which are necessary or desirable to carry
out the purposes and business of the Company, to the extent the same may be
legally exercised by limited liability companies under the Act.
1.6. Term. The duration of
the Company shall be unlimited, unless the Company is earlier dissolved and its
affairs wound up in accordance with the provisions of this Agreement or the
Act.
1.7. Nature of Member's
Interest. The interest of the Member in the Company shall be personal
property for all purposes. Legal title to all Company assets shall be held in
the name of the Company.
ARTICLE
II
DEFINITIONS
The following
terms used in this Agreement shall have the following meanings (unless otherwise
expressly provided herein):
"Act" means
the North Carolina Limited Liability Company Act, as the same may be amended
from time to time.
"Agreement"
means this Operating Agreement, as amended from time to time.
"Articles of
Organization" means the Articles of Organization of the Company filed with the
Secretary of State, as amended or restated from time to time.
"Code" means
the Internal Revenue Code of 1986, as amended from time to time (and any
corresponding provisions of succeeding law).
"Manager" has
the meaning set forth in Section 3.1.
"Member"
means Allsteel Inc.
"Person"
means an individual, a trust, an estate, a domestic corporation, a foreign
corporation, a professional corporation, a partnership, a limited partnership, a
limited liability company, a foreign limited liability company, an
unincorporated association, or another entity.
"Property"
means (i) any and all property acquired by the Company, real and/or personal
(including, without limitation, intangible property), and (ii) any and all of
the improvements constructed on any real property.
"Secretary of
State" means the Secretary of State of North Carolina.
"Tax Matters
Manager" means the
person who is the "tax matters partner," as that term is defined in the Code and
the Treasury Regulations.
"Treasury
Regulations" means the Income Tax Regulations and Temporary Regulations
promulgated under the Code, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
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ARTICLE
III
MANAGEMENT
OF THE COMPANY
3.1. Management. The Member, by virtue
of its status as the sole Member, shall also be the Manager of the Company for
all purposes. Except as otherwise expressly provided in this Agreement, the
Articles of Organization or the Act, all decisions with respect to the
management of the business and affairs of the Company shall be made by the
Member. Notwithstanding the foregoing, the Management Board and/or
Officers of the Company may make decisions related to the management of the
Company except to the extent the Member may otherwise limit such
authority.
3.2 Management
Board. The Company will have a Management Board, which
initially will consist of three members, which number may be changed by the vote
of the sole Member. The authority of members of the Management Board
will be subject to the provisions of Section 3.1. The sole Member may
remove a member of the Management Board from that position. The
initial members of the Management Board will be ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. The "Officers" of the Company may
consist of the members of the Management Board and the other Officers elected or
appointed pursuant to this Article III. All other Officers named in
this Agreement or elected or appointed pursuant to Article III will be
responsible to, and subject to the authority and direction of, the Management
Board in connection with matters over which the Management Board has
authority. Except as otherwise provided herein, whenever this
Agreement contemplates action by the Management Board, the Management Board may
take or cause to be taken such action in connection with the Company's business
by the vote of a majority of the members of the Management Board at a meeting or
by written action signed by members of the Management Board whose vote would be
sufficient to consent to and approve such matter at a meeting. In
such event notice shall be given promptly to all other members of the Management
Board of the action so taken, but the failure to give such notice shall not
affect the validity of the action.
3.3 Officers.
(a) The Officers of the Company, as such, will have limited authority, and will be subject to the provisions and limitations of this Article III and the Act. Officers must be natural persons and any number of Officer positions may be held by the same person. The Management Board shall fix the powers, duties, and compensation of all Officers if different from the powers and duties set forth in this Article III.
(b) The
Management Board may elect a Chairperson of the Board who, if elected, will
preside at all meetings of the Member and of the Management Board and will
perform such other duties as may be prescribed by the Management Board from time
to time.
(c) The
Company will have a President, who will have general active management of the
business of the Company, and in the absence of the Chairperson of the Board or
if the office of Chairperson of the Board is vacant, will preside at meetings of
the Member and Management Board, will see that all orders and resolutions of the
Management Board are carried into effect, will have authority to sign and
deliver in the name of the Company any deeds, mortgages, bonds, contracts, or
other instruments pertaining to
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the
business of the Company, except in cases in which the authority to sign and
deliver is required by law to be exercised by another person or is expressly
delegated by this Agreement, or the Management Board to some other Officer or
agent of the Company, may maintain records of and certify proceedings of the
Management Board and the Member, and will perform such other duties as may from
time to time be prescribed by the Management Board. The Company also
may have one or more Vice Presidents, who will have authority to exercise the
power of the President in his absence. Any Vice President shall
perform such other duties as from time to time may be prescribed by the
President or by the Management Board.
(d) The
Company will have a Treasurer, who, unless provided otherwise by the Management
Board, will keep accurate financial records for the Company, will deposit all
moneys, drafts, and checks in the name of and to the credit of the Company in
such banks and depositories as the Management Board will designate from time to
time, will endorse for deposit all notes, checks, and drafts received by the
Company as ordered by the Management Board, making proper vouchers therefor,
will disburse Company funds and issue checks and drafts in the name of the
Company as ordered by the Management Board, will render to the President and the
Management Board, whenever requested, an account of all such Officer's
transactions as Chief Financial Officer and of the financial condition of the
Company, and will perform such other duties as may be prescribed by the
Management Board or the President from time to time. In the absence
of the Treasurer or in the event of his or her death, inability or refusal to
act, the Assistant Treasurer(s) shall perform the duties of the Treasurer, and
when so acting shall have all powers of and be subject to all the restrictions
upon the Treasurer. The Assistant Treasurer(s) shall perform such
other duties as may be prescribed by the Treasurer, by the President or by the
Management Board.
(e) The
Company will have a Secretary, who will have primary responsibility to maintain
records of actions of, and whenever necessary, certify all proceedings of the
Member and the Management Board. The Secretary will keep the required records of
the Company, when so directed by the person or persons authorized to call such
meetings, will give or cause to be given notice of meetings of the Member and
the Management Board, and will also perform such other duties and have such
other powers as the Member, the Management Board or the President may prescribe
from time to time. In the absence of the Secretary or in the event of
his or her death, inability or refusal to act, the Assistant Secretary shall
perform the duties of the Secretary, and when so acting shall have all the
powers of and be subject to all the restrictions upon the
Secretary. The Assistant Secretary shall perform such other duties as
may be prescribed by the Secretary, by the President or by the Management
Board.
(f) An
Officer, as such, will not be obligated to devote his or her full time to the
conduct of the Company affairs, but may devote only as much time as he or she
deems necessary for the proper conduct thereof, and provided further, that
nothing in this Agreement will be deemed to restrict in any way the freedom of
an Officer to conduct any other
businesses or activities whatsoever without any accountability to the
Company.
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3.4. Officers. The Officers will
be:
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Name
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Office
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▇▇▇▇
▇. ▇▇▇▇▇▇
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Chairman
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▇▇▇▇▇▇▇
▇▇▇▇
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President
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
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Vice
President
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Vice
President and Secretary
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Vice
President and Treasurer
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Assistant
Treasurer
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▇▇▇▇
▇. ▇▇▇▇
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Assistant
Treasurer
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Assistant
Secretary
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3.5. Election and Removal of
Officers. Subject to the other provisions of this Article III,
the Management Board may elect or appoint other Officers or agents of the
Company, with such titles, duties, and authority as they
designate. Subject to the other provisions of this Article III, and
to any other limitations that the Management Board may impose, the President may
delegate authority and appoint other Officers and agents of the Company, with
such titles, duties, and authority as the President designates. The
President, at any time, may remove or terminate the authority of any Officer or
agent that was appointed by the President. The Management Board may
at any time remove or terminate the authority of any Officer or agent, whether
elected or appointed by the Management Board or the
President.
3.6. Indemnification. The
Company shall indemnify the Member (or its authorized delegatee(s)), Managers
and Officers of the Company to the fullest extent permitted or
required by the Act.
ARTICLE
IV
RIGHTS
AND OBLIGATIONS OF SOLE MEMBER
4.1. Name and Address of Sole
Member. The name, address, and Membership Interest of the sole Member is
Allsteel Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and it owns 100% of
the Membership Interest of the Company.
4.2. Limited Liability.
The Member shall not be required to make any contribution to the capital of the
Company except as set forth in Article V below, nor shall the Member in its
capacity as such be bound by, or personally liable for, any expense, liability,
or obligation of the Company except to the extent of its interest in the Company
and the obligation to return distributions made to them under certain
circumstances as required by the Act. The Member shall be under no obligation to
restore a deficit Capital Account upon the dissolution of the Company or the
liquidation of Membership Interest.
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ARTICLE
V
CAPITAL
CONTRIBUTIONS AND LOANS
The sole
Member acquired all the membership units from Thomasville Furniture Industries,
Inc. on March 29, 2008. No additional capital contributions are
presently contemplated.
ARTICLE
VI
ALLOCATIONS,
ELECTIONS, AND REPORTS
All
allocations of profit and loss of the Company and all assets and liabilities of
the Company shall, solely for state and federal tax purposes, be treated as that
of the Member pursuant to Treasury Regulations Section 301.7701, but for no
other purpose (including, without limitation, limited liability protection for
the Member from Company liabilities).
ARTICLE
VII
DISTRIBUTIONS
Distributions
of assets shall be made on such basis and at such time as determined by the
Member.
ARTICLE
VIII
DISSOLUTION
AND LIQUIDATION OF THE COMPANY
8.1. Dissolution Events.
The Company will be dissolved upon the happening of any of the following
events:
(a) All
or substantially all of the assets of the Company are sold, exchanged, or
otherwise transferred (unless the Member has elected to continue the business of
the Company);
(b) The
Member signs a document stating its election to dissolve the
Company;
(c) The
entry of a final judgment, order, or decree of a court of competent jurisdiction
adjudicating the Company to be bankrupt and the expiration without appeal of the
period, if any, allowed by applicable law in which to appeal; or
(d) The
entry of a decree of judicial dissolution or the issuance of a certificate for
administrative dissolution under the Act.
8.2. Liquidation. Upon the
happening of any of the events specified in Section 8.1 and, if applicable, the
failure of the Member to continue the business of the Company, the Member, or
any liquidating trustee designated by the Member, will commence as promptly as
practicable to wind up the Company's affairs unless the Member or the
liquidating trustee (either, the "Liquidator") determines that an immediate
liquidation of Company assets would cause undue loss to the Company, in which
event the liquidation may be deferred for a time determined by the Liquidator to
be appropriate. Assets of the Company may be liquidated or distributed in kind,
as the Liquidator
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determines
to be appropriate. The Member will continue to be entitled to Company cash flow
and Company profits during the period of liquidation. The proceeds from
liquidation of the Company and any Company assets that are not sold in
connection with the liquidation will be applied in the following order of
priority:
(a) To
payment of the debts and satisfaction of the other obligations of the Company,
including, without limitation, debts and obligations to the Member;
(b) To
the establishment of any reserves deemed appropriate by the Liquidator for any
liabilities or obligations of the Company, which reserves will be held for the
purpose of paying liabilities or obligations and, at the expiration of a period
the Liquidator deems appropriate, will be distributed in the manner provided in
Section 8.2(c); and, thereafter
(c) To
the Member.
8.3. Articles of
Dissolution. Upon the dissolution and commencement of the winding up of
the Company, the Member shall cause Articles of Dissolution to be executed on
behalf of the Company and filed with the Secretary of State, and the Member
shall cause to be executed, acknowledged, and filed any and all other
instruments necessary or appropriate to reflect the dissolution of the
Company.
ARTICLE
IX
MISCELLANEOUS
9.1. Records. The records
of the Company will be maintained at the Company's principal place of business
or at any other place the Member selects, provided the Company keeps at its
principal place of business the records required by the Act to be maintained
there.
9.2. Survival of Rights.
Except as provided herein to the contrary, this Agreement shall be binding upon
and inure to the benefit of the parties, their successors and
assigns.
9.3. Interpretation and Governing
Law. When the context in which words are used in this Agreement indicates
that such is the intent, words in the singular number shall include the plural
and vice versa. The masculine gender shall include the feminine and neuter. The
Article and Section headings or titles shall not define, limit, extend, or
interpret the scope of this Agreement or any particular Article or Section. This
Agreement shall be governed and construed in accordance with the laws of the
State of North Carolina without giving effect to the conflicts of laws
provisions thereof.
9.4. Severability. If any
provision, sentence, phrase or word of this Agreement or the application thereof
to any person or circumstance shall be held invalid, the remainder of this
Agreement, or the application of such provision, sentence, phrase, or word to
Persons or circumstances, other than those as to which it is held invalid, shall
not be affected thereby.
9.5. Agreement in
Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of which shall constitute one
and the same instrument.
9.6. Tax Matters Manager.
For purposes of this Agreement, the Member shall be the Tax Matters
Manager.
9.7. Creditors Not
Benefited. Nothing in this Agreement is intended to benefit any creditor
of the Company. No creditor of the Company will be entitled to require the
Member to solicit or accept any loan or additional capital contribution for the
Company or to enforce any right which the Company may have against a Member,
whether arising under this Agreement or otherwise.
IN WITNESS
WHEREOF, the undersigned, being the sole Member of the Company, has caused this
Agreement to be duly adopted by the Company as of date first written
above.
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SOLE MEMBER:
Allsteel Inc.
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Secretary | |||
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