EXHIBIT 3(l)
ETHAN ▇▇▇▇▇ REALTY, LLC
Limited
Liability Company Operating Agreement (the “Agreement”) dated as of June 24,
2005.
W I T
N E
S S E
T H:
WHEREAS, Ethan
▇▇▇▇▇ Inc., a Delaware corporation (“Inc.”) desires to form a Delaware limited
liability company pursuant to and in accordance with the Delaware Limited Liability
Company Act, 6 Del. C. §§ 18-101 et seq. (the “Act”) and hereby
declares the following to be the Limited Liability Company Operating Agreement (the
“Agreement”) of such limited liability company.
WHEREAS,
the Company’s Certificate of Formation (“Certificate”) has been filed with
the Secretary of State of the State of Delaware;
WHEREAS,
Inc. desires that the Company be governed by the terms and conditions of the Agreement;
NOW,
THEREFORE, in consideration of the agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Member (as defined below) and the Company, intending to be legally bound, hereby agree as
follows:
| 1. |
Name. The name of the company is “Ethan ▇▇▇▇▇ Realty, LLC” or
such other name as may from time to time be selected by the Member. |
| 2. |
Purposes and Powers. The purpose of the Company is to engage in any
activity for which limited liability companies may be organized in the State of
Delaware. The Company shall possess and may exercise all of the powers and
privileges granted by the Act or by any other law or by this Agreement together
with any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
purpose or activities of the Company. |
| 3. |
Registered Office and Registered Agent. The Company’s
registered office in the State of Delaware shall be Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the registered agent of the
Company for service of process at such address is The Corporation Trust Company. |
| 4. |
Admission of Initial Member. Simultaneously with the execution
and delivery of this Agreement and the filing of the Company’s Certificate
with the Office of the Secretary of State of the State of Delaware on even date
herewith, Inc. (the “Member”) is |
admitted
as the initial sole member of the Company and shall possess the entire legal and/or
beneficial ownership interest in the Company.
| 5. |
Office. The principal place of business of the Company shall be located
at Ethan ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location as the Member
may determine from time to time. |
| 6. |
Term. The term of the Company commenced upon the effective time of the
Certificate with the Office of the Secretary of State of the State of Delaware
and shall continue perpetually, unless dissolved and terminated at an earlier
date pursuant to Article 16. |
| 7. |
Ownership of Company Property. All property now held or hereafter
acquired by the Company, real or personal, tangible or intangible, shall be
owned by the Company as an entity, and the Member, individually, shall not have
any ownership interest therein. The Member hereby expressly waives the right to
require partition of any Company property or any part thereof. |
| 8. |
Capital Contributions. The Member may contribute cash or other property
to the Company as it shall decide, from time to time. |
| 9. |
Tax Characterization. It is the intention of the Company and the Member
that the Company shall be treated as a disregarded entity for U.S. federal
income tax purposes. |
|
(a)
The Company shall be managed, and the conduct of its day-to-day business affairs
shall be controlled exclusively, by a Board of Managers (the “Board of
Managers”) in accordance with the terms and conditions of this Agreement. A
Manager need not be a Member of the Company. |
|
(b)
Prior to conducting any business in any jurisdiction, the Board of Managers
shall cause the Company either to comply with all requirements for the
qualification of the Company to conduct business as a limited liability company
in such jurisdiction or to conduct business in such jurisdiction through other
entities, through a Manager as the Company’s agent, or by such other means
as the Board of Managers, upon the advice of counsel, deems appropriate to
preserve the Members’ limited liability. |
|
(c)
Each Manager and officer 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 of the other Managers, by the other
officers or employees of the Company, by a committee of the Board of Managers or
by any other Person as to matters the Manager or officer reasonably believes are
within such other Person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including
without limitation information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits or losses of the Company or any
other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid. |
|
(d)
The initial Board of Managers shall consist of the following three individuals
(each, a “Manager”): |
|
(e)
Each Manager shall hold such office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. Election of
Managers shall require the consent of the Member. Any vacancy occurring in the
office of a Manager shall be filled by the Member. |
|
(f)
The Board of Managers shall take all actions that may be necessary or
appropriate for the conduct of the Company’s business in accordance with
the provisions of this Agreement and applicable laws and regulations. The
Managers shall act at all times in good faith and in such manner as may be
required to protect and promote the interest of the Company and the Members. |
|
(g)
Authority to Act for the Company. Each officer shall have the authority to act
for and bind the Company, including with respect to the execution and delivery
of any document or instrument on behalf of the Company, to the extent but only
to the extent that the act has been taken in accordance with the terms and
provisions of this Agreement. |
| 11. |
Liability of the Board of Managers. No Manager and none of such
Manager’s agents, partners, employees, counsel or affiliates shall be
liable, responsible or accountable in damages or otherwise to the Company or
Member for any action taken or failure to act (even if such action or failure to
act constituted gross negligence on such Person’s part) on behalf of the
Company within the scope of the authority conferred on the Board of Managers by
this Agreement or by law. |
12.
Meetings.
|
(a)
The Board of Managers may hold its meetings in such place or places in the State
of Delaware or outside the State of Delaware as it shall determine from time to
time. |
|
(b)
Subject to the anything to the contrary in the Act, a majority of the Managers
shall constitute a quorum for the transaction of business. The act of a majority
of the Managers present at a duly called meeting of the Board of Managers, at
which a quorum is present, shall be the act of the Board of Managers. If at any
meeting of the Board of Managers there is less than a quorum present, a majority
of those present may adjourn the meeting from time to time. |
|
(c)
Managers may participate in a meeting of the Board of Managers by means of
conference telephone or similar communications equipment by means of which all |
Persons
participating in the meeting can hear each other, and such participation shall constitute
presence in person at such meeting.
|
(d)
Any action required or permitted to be taken at any meeting of the Board of
Managers thereof may be taken without a meeting if all Managers consent thereto
in writing. |
| 13. |
Indemnification. The Company shall indemnify and hold harmless, to the
fullest extent permitted by law, each Manager (an “Indemnified
Party”), as follows: |
|
(a)
The Company shall indemnify and hold harmless, to the fullest extent permitted
by law, any Indemnified Party from and against any and all losses, claims,
damages, liabilities, expenses (including reasonable legal fees and expenses),
judgments, fines, settlements and other amounts (“Indemnified Costs”)
arising from all claims, demands, actions, suits or proceedings
(“Actions”), whether civil, criminal, administrative or investigative,
in which the Indemnified Party may be involved, or threatened to be involved, as
a party or otherwise arising as a result of such Person’s status as a
Manager or officer or any affiliate of a Manager, regardless of whether such
Indemnified Party continues in such capacity at the time any such liability or
expense is paid or incurred, and regardless of whether any such Action is
brought by a third party, a Member or by or in the right of the Company. |
|
(b)
The Company shall pay or reimburse, to the fullest extent allowed by law, in
advance of the final disposition of such action, all Indemnified Costs as
incurred by the Indemnified Party in connection with each Action; provided, that
such Indemnified Party shall repay all amounts received from the Company
pursuant hereto if it shall ultimately be determined at the final disposition of
such action that such Indemnified Party is not entitled to be indemnified by the
Company. |
|
(c)
Notwithstanding any other provision of this Article 13, the Company shall pay or
reimburse Indemnified Costs incurred by an Indemnified Party in connection with
such Person’s appearance as a witness or other participation in a
proceeding involving or affecting the Company at a time when the Indemnified
Party is not a named defendant or respondent in the proceeding. |
|
(d)
The Board of Managers may cause the Company to purchase and maintain insurance
or other arrangements on behalf of the Indemnified Parties and/or the Company
against any liability asserted or incurred by reason of such Person’s
capacity or arising out of such Person’s status as a Manager or officer,
regardless of whether the Company would have the power to indemnify such Person
against that liability under Section 13. The indemnification provided by this
Section 13 shall be in addition to any other rights to which the Indemnified
Parties may be entitled under any agreement, vote of the Members, as a matter of
law, or otherwise, and shall inure to the benefit of the heirs, successors,
assigns and administrators of the Indemnified Parties. |
| 14. |
Limited Liability. The Member will not be personally liable for any
obligations of the Company and, except as otherwise provided herein or under the
Act or any other |
applicable
law, will have no obligation to make contributions to the Company in excess of their
respective Capital Contributions.
| 15. |
Transfers of Ownership Interests. The Member may assign all or any part
of its membership interest in the Company at any time (an assignee of such
interest is hereinafter referred to as a “Permitted Transferee”).
Concurrently with or after such assignment, a Permitted Transferee shall become
a substituted Member automatically upon the execution and delivery to the
Company by such Permitted Transferee of an amendment to this Agreement agreeing
to accept the terms of this Agreement. |
| 16. |
Dissolution. Subject to the Act, the Company shall be dissolved and its
affairs shall be wound up upon the earliest to occur of: |
|
(a) the
written consent of the Member to dissolve the Company; or |
|
(b) the
sale or distribution by the Company of all or substantially all of its assets. |
| |
The
withdrawal, removal, Bankruptcy, insolvency, death, incompetence, termination, dissolution
or distribution with respect to any Member will not effect a dissolution of the Company. |
| 17. |
Amendment. This Agreement may be amended with (but only with) the
written consent of the Member. |
| 18. |
Entire Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof and supersedes any prior
agreement or understanding among the parties with respect to the subject matter
hereof |
| 19. |
Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Delaware, without regard to
principles of conflicts of law. |
| 20. |
Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective legal representatives, heirs, successors and assigns. |
| 21. |
Counterparts. This Agreement may be executed in any number of
counterparts of the signature pages, each of which shall be considered an
original and all of which together shall constitute one instrument. |
| 22. |
Separability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. |
| 23. |
Headings. The section and other headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement. |
| |
IN
WITNESS WHEREOF, Inc. has executed this Agreement effective as of the day and year first
above written.
|
|
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ETHAN ▇▇▇▇▇ INC., as sole Member
/s/ ▇. ▇▇▇▇▇▇ Kathwari
By: ____________________________
Name: ▇. ▇▇▇▇▇▇ Kathwari
Title: President |