OPERATING AGREEMENT OF CHEMICAL SPECIALTIES LLC (A North Carolina Limited Liability Company) September 16, 2013
Exhibit 3.4
OF
CHEMICAL SPECIALTIES LLC
(A North Carolina Limited Liability Company)
September 16, 2013
This Operating Agreement (this “Agreement”) is between Chemical Specialties LLC, a North Carolina limited liability company (the “Company”), and Rockwood Specialties Inc., a corporation organized under the laws of Delaware (the “Member”).
Recitals
The Company was formed on December 12, 1960 as “Chemical Specialties, Inc.”, a North Carolina corporation.
On September 16, 2013, pursuant to the filing of the Articles of Organization including Articles of Conversion with the North Carolina Department of the Secretary State, the Company was converted into a North Carolina limited liability company (the “Conversion”) and in connection therewith, the name of the Company was changed to “Chemical Specialties LLC.”
Accordingly, the parties desire to provide herein for the management and the conduct of the business and affairs of the Company and their relative rights and obligations with respect thereto.
Agreement
The parties agree as follows:
Article I
Formation
Section 1.1 Formation. The Company was formed as a limited liability company under the North Carolina Limited Liability Company Act (the “Act”), upon the filing of the Articles of Organization including Articles of Conversion with the Department of the Secretary of State of the State of North Carolina.
Section 1.2 Admission of Members. The Member is the sole Member of the Company.
Section 1.3 Name of the Company. The name of the Company is “Chemical Specialties LLC.” The Company shall conduct its business under such name, or under any assumed, fictitious or other name as may be determined by the Member and permitted by law.
Section 1.4 Places of Business. The principal place of business of the Company shall be located at such place as the Member may determine. The Company shall qualify to do business in such places as the Member may determine.
Section 1.5 Purpose. The purpose of the Company is to engage in any lawful business as the Member may determine, and perform any activities incidental thereto.
Article II
Capitalization
Section 2.1 Capital Contributions.
(a) As of the date of this Agreement, the Member shall be deemed to have contributed to the Company the same property contributed by it to the Company prior to the Conversion.
(b) Except as expressly provided in Section 2.1 hereof, the Member shall not be required to, but may in its sole discretion, make any capital contribution or lend or advance funds or property to the Company for any purpose whatsoever.
Article III
Distributions and Allocations
Section 3.1 Distributions. The Company shall make distributions (including, without limitation, interim distributions) of cash or other property to the Member at such times and in such amounts as the Member may determine.
Section 3.2 Allocation of Profit and Loss. All profit or loss of the Company for each period shall be allocated to the Member.
Article IV
Fiscal Matters
Section 4.1 Tax Returns. The Company shall prepare and file, or shall cause to be prepared and filed, all tax returns required to be filed for the Company.
Section 4.2 Elections. Except as otherwise specifically provided herein, all tax and accounting decisions and elections required or permitted to be made by the Company under applicable law shall be made by the Member.
Section 4.3 Books and Records. The Company shall maintain or cause to be maintained at its principal place of business complete and accurate books and records of the assets, business and affairs of the Company, including, without limitation:
(a) true and full information regarding the status of the business and financial condition of the Company;
(b) a copy of the Company’s federal, state and local income tax returns for the last tax year;
(c) a current list of the name, last known business, residence of mailing address of the Member; and
(d) a copy of this Agreement and the Company’s articles of organization and all amendments thereto and restatements thereof, together with an executed copy of any written power of attorney pursuant to which this Agreement and any certificate or amendment thereto has been executed.
Section 4.4 Disregarded Entity. The Member intends that the Company be characterized as a disregarded entity for United States federal income tax purposes.
Article V
Administration
Section 5.1 Management of the Company.
(a) The Member shall have the exclusive right, power and authority to manage the business,. assets, operation and affairs of the Company, with all rights and powers and the full authority necessary, desirable or convenient to administer and operate the same for Company purposes, to incur, perform, satisfy and compromise all manner of obligations on behalf of the Company, and to make all decisions and do all things necessary or desirable in connection therewith.
(b) The Member may appoint such officers of the Company, with such powers and duties, as the Member may determine from time to time. Each officer shall serve at the pleasure of the Member. The following persons are hereby appointed by the Member to serve in the capacities set forth opposite their respective names until his or her successor has been duly elected and qualified or until his or her earlier resignation or removal:
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President |
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Vice President, Finance |
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Vice President, Operations |
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▇. ▇▇▇▇▇ Baccich |
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Vice President |
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SVP and Chief Financial Officer |
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SVP, Law & Administration Secretary |
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Vice President, Tax |
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Assistant Corporate Controller |
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General Counsel and Assistant Secretary |
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Assistant Secretary |
Section 5.2 Bank Accounts. The Company shall maintain one or more accounts, including, without limitation, checking, cash management, money market or investment accounts, in such banks or other financial institutions as an officer of the Company may select. All amounts deposited by or on behalf of the Company in those accounts shall be and remain the property of the Company. Withdrawals from such accounts shall be made by the signatories designated by the Member.
Article VI
Dissolution and Liquidation
Section 6.1 Dissolution. The Company shall be dissolved upon the first of the following events to occur:
(a) the determination of the Member;
(b) the sale or other disposition of all of the Company’s assets;
(c) the entry of a judicial decree of dissolution of the Company pursuant to the Act; or
(d) if there are no Members.
Section 6.2 Liquidation.
(a) Upon a dissolution of the Company, the Member shall take or cause to be taken a full account of the Company’s assets and liabilities as of the date of such dissolution and shall proceed with reasonable promptness to liquidate the Company’s assets and to terminate its business and affairs. The Company’s assets, or the proceeds from the liquidation thereof, shall be applied in cash or in kind in the following order:
(i) to creditors (including the Member if it is a creditor) (other than on account of their capital accounts) to the extent otherwise permitted by applicable law in satisfaction of all liabilities and obligations of the Company, including expenses of the liquidation;
(ii) to the establishment of such reserves for contingent liabilities of the Company as are deemed necessary or desirable by the Member; provided, however, that such reserves shall be held in escrow for the purpose of disbursing such reserves for the payment of such contingent liabilities and, at the expiration of such period as the Member may reasonably deem advisable, for the purpose of distributing the remaining balance in accordance with subparagraph (3) below; and
(iii) to the Member.
(b) Following the liquidation of the Company, the Member shall file Articles of Dissolution of the Company with the Department of the Secretary of State of the State of North Carolina.
Article VII
Miscellaneous
Section 7.1 Governing Law. This Agreement shall be governed by, construed, interpreted and enforced in accordance with the laws of the State of North Carolina, without regard to choice or conflict of laws principles that would defer to the substantive laws of any other jurisdiction. This Agreement shall be construed and interpreted without regard to any presumption against the party that caused this Agreement to be drafted.
Section 7.2 Severability. The provisions hereof are severable and in the event that any provision of this Agreement shall be determined to be illegal, invalid or unenforceable in any respect by a court of competent jurisdiction, the remaining provisions hereof shall not be affected, but shall, subject to the discretion of such court, remain in full force and effect, and any illegal, invalid or unenforceable provision shall be deemed, without further action on the part of the parties hereto, amended and limited to the extent necessary to render such provision, as so amended and limited, legal, valid and enforceable.
Section 7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and permitted assigns. This Agreement is not intended, and shall not be deemed, to create or confer any right or interest for the benefit of any Person not a party hereto.
Section 7.4 Titles and Captions. The titles and captions of the Articles and Sections of this Agreement are for convenience of reference only and do not in any way define or interpret the intent of the parties or modify or otherwise affect any of the provisions hereof and shall not have any affect on the construction or interpretation of this Agreement.
Section 7.5 Grammatical Conventions. Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense.
Section 7.6 Entire Agreement. This Agreement constitutes the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and/or contemporaneous understandings and agreements, relating thereto (written or oral) all of which are merged herein.
[The next page is the signature page]
The parties have executed and delivered this Operating Agreement as of the date first written above.
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CHEMICAL SPECIALTIES LLC | |||
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By: |
Rockwood Specialties Inc., | |
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its sole Member | |
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By: |
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Name: |
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Title: |
General Counsel and | |
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Assistant Secretary | |
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ROCKWOOD SPECIALTIES INC. | ||
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By: |
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Name: |
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Title: |
Assistant Secretary | |