Exhibit 2
Amended and Restated Limited Liability Company Agreement of PMM GCG Investment
LLC, dated as of March 27, 2001, entered into by Bayberry Trust, as sole member.
LIMITED LIABILITY COMPANY AGREEMENT
OF
PMM GCG INVESTMENT LLC
This Limited Liability Company Agreement, dated as of March 27, 2001
(this "Agreement"), of PMM GCG Investment LLC, is entered into by Bayberry
Trust, as the sole member (the "Member").
The Member hereby forms a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act (6 DEL. C. ss.
18-101, ET SEQ.), as amended from time to time (the "Act"), and hereby agrees
as follows:
1. NAME. The name of the limited liability company formed hereby is PMM
GCG Investment LLC (the "Company").
2. TERM. The term of the Company shall commence on the filing
of the certificate of formation of the Company attached hereto as Annex A (the
"Certificate of Formation") at the office of the Secretary of State of the State
of Delaware and shall continue in perpetuity, unless the Company is dissolved or
terminated pursuant to Section 9 of this Agreement.
3. PURPOSE. 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.
4. REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may also have
offices at such other places within or without the State of Delaware as the
Member may from time to time designate or the business of the Company may
require.
5. REGISTERED AGENT. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware are
The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
6. PRINCIPAL PLACE OF BUSINESS. The address of the principal place of
business of the Company is c/o Wilmington Trust Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, n/o PMM GCG Investment LLC.
7. MEMBER. The name and the mailing address of the Member are Bayberry
Trust, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
8. MANAGEMENT OF THE COMPANY. (a) The property, business and affairs of
the Company shall be managed and conducted by the Manager of the Company. The
Member 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 a "manager" (within the meaning of Section
102(p) of the Act) under the laws of the State of Delaware. The Manager may be
appointed or removed by the Member at any time and from time to time.
Initially, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall be the Manager of the Company.
(b) The Company may only act and bind itself through the actions of the
Manager, or through the actions of the agents and employees of the Company (as
described in paragraph (c) of this Section 8) if and to the extent authorized by
this Agreement or by the Manager in accordance with the provisions of this
Agreement.
(c) The Manager may (I) authorize by written action any person to enter
into and perform any agreement on behalf of the Company, (II) appoint a
President, one or more Vice Presidents, a Secretary, one or more Assistant
Secretaries and other officers of the Company, with the duties and powers
described in paragraphs (e) and (f) of this Section 8, and (III) appoint
individuals, with such titles as he may select, as employees of the Company to
act on behalf of the Company, with such power and authority as the Manager may
delegate from time to time to any such person. Any such persons, officers and
employees designated by the Manager to act on behalf of the Company may be
appointed or removed by the Manager at any time and from time to time, with or
without cause.
(d) Any person or entity dealing with the Company, the Manager or any
of the persons described in paragraph (c) above (collectively, the "Authorized
Persons") may rely upon a certificate signed by the Member (or the Secretary of
the Company), as to the identity of the Member, the Manager or an Authorized
Person and as to the authority of the Manager or such Authorized Person to
execute and deliver any instrument or document on behalf of the Company.
(e) The Secretary and each Assistant Secretary, if any, of the Company
shall (I) keep the records of all meetings and written actions of the Member,
(II) be the
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custodian of all contracts, deeds, documents and other indicia of title to
properties owned by the Company and of its other corporate records, (III)
perform all general duties and have all powers incident to the office of the
secretary of a corporation organized under the laws of Delaware, and (IV)
perform such other duties and exercise such other powers as may from time to
time be prescribed by the Manager. The duties of the Secretary may be performed
by one or more employees or agents of the Company, to be appointed by the
Manager.
(f) The President and each Vice President, if any, of the Company shall
perform such duties and exercise such powers as may be assigned to each of them
from time to time by the Manager and shall have the authority to act on behalf
of the Company, subject to the terms and conditions of this Agreement.
9. DISSOLUTION. The Company shall dissolve, and its affairs shall be
wound up upon the first to occur of the following: (A) the written consent of
the Member, (B) the resignation, expulsion, bankruptcy or dissolution of the
Member or (C) the entry of a decree of judicial dissolution under Section 18-802
of the Act.
10. INITIAL CAPITAL CONTRIBUTION. The Member agrees to contribute $100,
in cash, and no other property, to the Company.
11. ADDITIONAL CONTRIBUTIONS. The Member shall have the right, but not
the obligation, to make additional capital contributions to the Company at the
times and in the amounts determined by the Member.
12. DISTRIBUTIONS. Distributions may be made to the Member at the times
and in the aggregate amounts determined by the Manager. Notwithstanding anything
to the contrary contained herein, neither the Company, nor the Manager on behalf
of the Company, may make a distribution to the Member on account of the interest
of the Member in the Company if such distribution would violate Section 18-607
of the Act or any other applicable law.
13. TRANSFERS. The Member shall be permitted to transfer all or any
portion of its interest in the Company. One or more additional members may be
admitted to the Company with the consent of the Member, and this Agreement shall
thereupon be amended, in a writing signed by the Member, as necessary or
appropriate to reflect the fact that there is more than one Member.
14. TAX MATTERS. Neither the Member nor the Manager may permit the
Company to elect, and the Company shall not elect, to be treated as an
association taxable as a corporation for U.S. federal, state or local income tax
purposes under Treasury
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Regulations section 301.7701-3(a), or under any corresponding provision of state
or local law.
15. RESIGNATION. The Member may not resign from the Company.
16. LIABILITY OF THE MEMBER. Except as otherwise provided by the Act or
herein, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and neither the Member nor any Authorized Person may
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member of the Company.
17. EXCULPATION. (a) Neither the Member, nor any Authorized Person, nor
any of their respective affiliates, directors, advisory directors, members,
officers or employees (each, a "Covered Person"), shall be liable to the
Company or the Member for any loss, liability, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company. Whenever in this Agreement a Covered Person
is permitted or required to make decisions in good faith, the Covered Person
shall act under such standard and shall not be subject to any other or different
standard imposed by this Agreement or any relevant provisions of law or in
equity or otherwise.
(b) A Covered Person 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 person or entity as to matters the
Covered Person reasonably believes are within such person's or entity's
professional or expert competence.
18. FIDUCIARY DUTY. To the extent that, at law or in equity, a Covered
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Company or to the Member, a Covered Person acting under this Agreement
shall not be liable to the Company or to the Member for such Covered Person's
good faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the parties
hereto to replace such other duties and liabilities of such Covered Person.
19. INDEMNIFICATION. To the fullest extent permitted by applicable law,
a Covered Person shall be entitled to indemnification from the Company for any
costs and expenses (including attorneys' fees and disbursements), loss,
liability, damage or claim incurred by such Covered Person by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company. To the fullest extent
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permitted by applicable law, expenses (including attorneys' fees and
disbursements) incurred by a Covered Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or
proceeding, subject to recapture by the Company following a later determination
that such Covered Person was not entitled to be indemnified hereunder.
20. AMENDMENT, WAIVER, ETC. This Agreement may not be amended or
supplemented, and no waiver of or consent to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by all the
Members of the Company at the time thereof.
21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
UNDER, THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES), ALL RIGHTS AND REMEDIES BEING GOVERNED BY SAID LAWS.
22. AUTHORIZED PERSON. E. Raman Bet-▇▇▇▇▇▇▇ (or such other person as
may from time to time be designated by the Member for such purpose) is hereby
designated as an authorized person, within the meaning of the Act, to execute,
deliver and cause to be filed the certificate of formation of the Company (and
any amendments and/or restatements thereof) and any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in a jurisdiction in which the Company may wish to conduct business.
23. MISCELLANEOUS. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto. This
Agreement shall be binding upon and inure to the benefit of all parties hereto
and their successors and permitted assigns. Except as provided in Sections 17
and 19 herein with respect to the exculpation and indemnification of Covered
Persons, nothing in this Agreement shall confer any rights upon any person or
entity other than the parties hereto and their successors and permitted assigns.
The invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provision was
omitted.
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IN WITNESS WHEREOF, the undersigned, being the sole Member of the
Company, intending to be legally bound hereby, has duly executed this Agreement
as of the date first above written.
BAYBERRY TRUST
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
as Trustee
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ACKNOWLEDGMENT:
By executing this acknowledgment, the undersigned accepts appointment
as Manager of the Company and agrees to manage and conduct the business and
affairs of the Company in accordance with the terms and conditions of this
Agreement and all applicable laws.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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ANNEX A
CERTIFICATE OF FORMATION
OF
PMM GCG INVESTMENT LLC
This Certificate of Formation of PMM GCG Investment LLC (the
"Company"), dated March 27, 2001, is being duly executed and filed by E. Raman
Bet-▇▇▇▇▇▇▇, as an authorized person, to form a limited liability company under
the Delaware Limited Liability Company Act (6 DEL.C. ss. 18-101, ET SEQ.).
FIRST. The name of the limited liability company formed hereby is PMM
GCG Investment LLC.
SECOND. The address of the registered office of the Company in the
State of Delaware is The Corporation Trust Company, Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
THIRD. The name and address of the registered agent for service of
process on the Company in the State of Delaware are The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Formation as of the date first above written.
/S/ E. RAMAN BET-▇▇▇▇▇▇▇
------------------------
E. Raman Bet-▇▇▇▇▇▇▇
Authorized Person