Exhibit 3.46
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRANT PRIDECO EUROPEAN HOLDING, LLC
DATED AS OF DECEMBER 9, 2002
THE MEMBERSHIP INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY JURISDICTION. NO MEMBERSHIP
INTEREST MAY BE SOLD OR OFFERED FOR SALE (WITHIN THE MEANING OF ANY SECURITIES
LAW) UNLESS A REGISTRATION STATEMENT UNDER ALL APPLICABLE SECURITIES LAWS WITH
RESPECT TO THE INTEREST IS THEN IN EFFECT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS IS THEN APPLICABLE TO THE INTEREST. A MEMBERSHIP
INTEREST ALSO MAY NOT BE TRANSFERRED OR ENCUMBERED UNLESS THE APPLICABLE
PROVISIONS OF THIS AGREEMENT ARE SATISFIED.
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRANT PRIDECO EUROPEAN HOLDING, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT OF Grant Prideco European
Holding, LLC (the "LLC"), dated December 9, 2002 (this "Agreement"), is
adopted, executed and agreed to by Grant Prideco USA, LLC a Delaware limited
liability company and Grant Prideco Inc. a Delaware Corporation, (each a
"Member").
R E C I T A L S:
WHEREAS, The Members desire to form a Delaware limited liability
company;
WHEREAS, The Members desire for the transfer and pledge of the
membership interests in the LLC to be restricted;
WHEREAS, the Members desire for the LLC to maintain a capital account
for each Member and each Member shall be liable to the LLC and its creditors for
any unfounded/deficit portion of such capital account;
WHEREAS, the Members desire for allocations of profits and losses to be
made only in proportion to their ownership interests in the LLC, with year-end
distributions of profit being made at the request of one or more of the Members;
WHERAS, the Members desire to only be able to withdraw and surrender
their membership interests only if all liabilities of the LLC have been paid or
the LLC has sufficient assets to pay all such liabilities and adequate reserves
to pay any reasonably foreseeable contingent liabilities;
A G R E E M E N T:
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein set forth and intending to be legally bound, the parties
hereto hereby enter into this Agreement pursuant to the provisions and upon the
terms and conditions herein contained, and hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. As used in this Agreement, the following terms have
the following meanings:
"Act" means the Delaware Limited Liability Company Act (6 Del C.
Section 18-101, et seq.) and any successor statute, as amended from time
to time.
"Agreement" has the meaning given that term in the introductory
paragraph.
"Capital Contribution" means any contribution by a Member to the
capital of the Company.
"Certificate" has the meaning given that term in Section 2.01.
"Company" means Grant Prideco European Holding, LLC, a Delaware
limited liability company.
"Managers" has the meaning given that term in Section 5.01.
"Member" means either Grant Prideco USA, LLC, a Delaware limited
liability company or Grant Prideco Inc. a Delaware Corporation or any
successor to all or part of such Member's interest.
"Officers" has that meaning given in Section 6.01
"Person" has the meaning given that term in Section 18-101(12) of
the Act.
"Proceeding" has the meaning given that term in Section 7.01.
Other terms defined herein have the meanings so given them.
1.02 Construction. Whenever the context requires, the gender of all
words used in this Agreement includes the masculine, feminine and neuter. All
references to Articles and Sections refer to articles and sections of this
Agreement. Terms used with initial capital letters will have the meanings
specified, applicable to both singular and plural forms, for all purposes of
this Agreement. The word include (and any variation) is used in an illustrative
sense rather than a limited sense. The word day means a calendar day.
ARTICLE II
ORGANIZATION
2.01 Formation. The LLC has been organized as a Delaware limited
liability company by the filing of a Certificate of Formation (the
"Certificate") under and pursuant to the Act.
2.02 Name. The name of the Company is "Grant Prideco European Holding,
LLC" and all LLC business must be conducted in that name or such other names
that comply with applicable law as the Members may select from time to time.
2.03 Registered Office; Registered Agent; Principal Office in the United
States; Other Offices. The registered office of the LLC required by the Act to
be maintained in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the LLC) as the Members may designate from time to
time in the manner provided by law. The registered agent of the LLC in the State
of Delaware shall be the initial registered agent named in the Certificate or
such other Person or Persons as the Members may designate from time to time in
the manner provided by law. The principal office of the LLC in the United States
shall be at such place as the Members may designate from time to time, which
need not be in the State of Delaware. The LLC may have such other offices as the
Members may designate from time to time.
2.04 Purpose. The purpose of the LLC is to hold ownership interests in
entities affiliated with the Members and the LLC is authorized to conduct any
lawful business, purpose or activity directly or indirectly related thereto.
2.05 Powers. The LLC has all of the powers necessary or convenient to
achieve its purposes and to further its business.
2.06 Legal Title. Legal title to the assets of the LLC will be taken and
at all times held in the name of the LLC.
2.07 Qualifications. The Managers may take any and all actions deemed
reasonably necessary by the Managers to qualify the LLC in foreign
jurisdictions.
2.08 Mergers and Exchanges. With the consent of the Members, the LLC may
be a party to (a) a merger, or (b) an exchange or acquisition of the type
described in Section 18-209 of the Act.
2.09 Liability to Third Parties. The Members shall not be liable for the
debts, obligations or liabilities of the LLC, including under a judgment decree
or order of a court.
2.10 Resignation of the Members. The Member may resign from the LLC
prior to the dissolution and winding up of the LLC.
2.11 Transfer or Pledge by the Members. The Members may not transfer,
pledge, hypothecate or grant any security interest or other lien or encumbrance
on their interests in the LLC without the approval of the other Members. The
pledge or hypothecation of, or the granting of any security interest or other
lien or encumbrance against, all or part of the Member's membership interest in
the LLC by the Members will not cause the withdrawal of the Members from the
LLC.
2.12 Bankruptcy of the Member. The Member shall not cease to be a Member
of the Company by virtue of the occurrence of any of the events listed in
Section 18-304 of the Act.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.01 Initial Contributions. The Members are making a Capital
Contribution to the LLC by contributing the interest of voestalpine Tubulars
GmbH & Co. KG and cash.
3.02 Additional Contributions. The Members shall not be required to make
any additional contributions to the capital of the LLC.
3.03 No Withdrawal of Contributions. The Members shall not be entitled
to withdraw any part of the Member's capital account or to receive any
distribution from the LLC, except as specifically provided in this Agreement.
There shall be no obligation to return to the Members any part of the Member's
capital contributions to the LLC until such time as the LLC is dissolved and
terminated.
3.04 Advances by the Members. If the LLC does not have sufficient cash
to pay its obligations, the Members may advance all or part of the needed funds
to or on behalf of the LLC. An advance described in this Section constitutes a
loan from the Members to the LLC, bears interest at a rate determined by the
Member from the date of the advance until the date of payment, and is not a
Capital Contribution.
3.05 Certification of Membership Interests. Annex A to this Agreement
sets forth the initial capital accounts and ownership percentages for each
Member. Capital Accounts shall be adjusted on a quarterly basis to reflect
allocation of income and losses and additional capital contributions. Ownership
percentages shall e based upon an individual's capital account balance divided
by the total capital accounts for all Members. To the extent ownership
percentages change, a revised/supplemental Annex A shall be issued by the LLC to
the Members.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.01 Allocations. All items of income, gain, loss, deduction, and credit
of the LLC shall be allocated to the Members according to their ownership
percentages set forth on Annex A.
4.02 Distributions. Subject to the limitations of Section 18-607 of the
Act, from time to time the Managers may cause the LLC to make a distribution of
cash or other property to the Members. From time to time the Managers also may
cause property of the LLC other than cash to be distributed to the Members,
which distribution may be made subject to existing liabilities and obligations.
In addition, Members shall be entitled to request distributions of profits at
least annually.
ARTICLE V
MANAGEMENT
5.01 Management. Subject to the provisions of this Agreement, the LLC
shall appoint managers (the "Managers"), who shall have exclusive authority to
act on behalf of the LLC. Subject to the provisions of this Agreement, the
Managers shall have the authority to manage the
business and affairs of the LLC. The Members shall have no authority to act on
behalf of or bind the LLC; provided, they will have elected the Managers of the
LLC.
5.02 Selection, Removal and Resignation of Managers. The Members shall
select any and all Managers of the LLC. Each Member shall be entitled to elect
one Manager. The initial Managers of the LLC shall be ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, and ▇▇▇▇ ▇. ▇▇▇▇▇. The Members may remove any of the Managers at any
time, with or without cause, upon delivery to such Manager at the principal
office of the LLC of written notice of such removal. Further, any of the
Managers may resign upon delivery to the Members at the principal office of the
LLC of written notice of such resignation.
5.03 Compensation. The Managers shall receive such compensation for
their duties as Managers as the Members shall determine in its sole discretion.
ARTICLE VI
OFFICERS
6.01 Officers. The officers of the LLC shall be elected by the Managers,
and shall include a President, a Secretary, a Treasurer, and such other
officers, employees and agents as appointed, from time to time, in accordance
with this Agreement. Additionally, the President shall have the power to appoint
such Vice Presidents and other officers equivalent or junior thereto as the
President may deem appropriate.
6.02 Term. Each officer of the LLC shall serve at the pleasure of the
Managers, and the Managers may remove any officer at any time with or without
cause. Any officer, if appointed by the President of the LLC, may likewise be
removed by the President of the LLC.
6.03. Authority and Duties.All officers and agents of the LLC shall have
such authority and perform such duties in the management of the property and
affairs of the LLC as generally pertain to their respective offices, as well as
such authority and duties as may be determined by the Managers.
6.04. Execution of Instruments. Checks, notes, drafts, other commercial
instruments, assignments, guarantees of signatures, and contracts (except as
otherwise provided herein or by law) shall be executed by the President, any
Vice President, the Secretary, the Treasurer, or such officers or employees or
agents as the Managers or any of such designated officers may direct.
ARTICLE VII
INDEMNIFICATION
7.01 Right to Indemnification. Subject to the limitations and conditions
as provided in this Article VII, each Person who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (hereinafter a "Proceeding"), or any appeal in such
a
Proceeding or any inquiry or investigation that could lead to such a Proceeding,
by reason of the fact that he, or a Person of whom he is the legal
representative, is or was a Manager or Members of the LLC shall be indemnified
by the LLC to the fullest extent permitted by the Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the LLC to provide broader indemnification rights
than said law permitted the LLC to provide prior to such amendment) against
judgments, penalties (including exise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including, without limitation,
attorney's fees) actually incurred by such Person in connection with such
Proceeding, and indemnification under this Article VII shall continue as to a
Person who has ceased to serve in the capacity which initially entitled such
Person to indemnify hereunder. The rights granted pursuant to this Article VII
shall be deemed contract rights, and no amendments, modification or repeal of
this Article VII shall have the effect of limiting or denying any such rights
with respect to actions taken or Proceedings arising prior to such amendment,
modification or repeal. It is expressly acknowledged that the indemnification
provided in this Article VII could involve indemnification for negligence or
under theories of strict liability.
7.02 Advance Payment. The right to indemnification conferred in this
Article VII shall include the right to be paid or reimbursed by the LLC the
reasonable expenses incurred by a Person of the type entitled to be indemnified
under Section 7.01 who was, is or is threatened to be made a named defendant or
respondent in a Proceeding in advance of the final disposition of the Proceeding
and without any determination as to the Person's ultimate entitlement to
indemnification; provided, however, that the payment of such expenses incurred
by any such Person in advance of the final disposition of a Proceeding, shall be
made only upon delivery to the LLC of a written affirmation by the Person of his
good faith belief that he has met the standard of conduct necessary for
indemnification under this Article VII and a written undertaking, by or on
behalf of such Person, to repay all amounts so advanced if it shall ultimately
be determined that such indemnified Person is not entitled to be indemnified
under this Article VII or otherwise.
7.03 Indemnification of Officers, Employees and Agents. The LLC, by
adoption of a resolution of the Members, may indemnify and advance expenses to
an officer, employee or agent of the LLC to the same extent and subject to the
same conditions under which it may indemnify and advance expenses to a Manager
or Members under this Article VII; and, the LLC may indemnify and advance
expenses to Persons who are not or were not a Manager or Members, officers,
employees or agents of the LLC but who are or were serving at the request of the
LLC as a manager, director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another foreign or domestic limited
liability LLC, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in such a capacity or arising out of his status
as such a Person to the same extent that it may indemnify and advance expenses
to a Manager or Members under this Article VII.
7.04 Appearance as a Witness. Notwithstanding any other provision of
this Article VI, the Company may pay or reimburse expenses incurred by a Person
in connection with his appearance as a witness or other participation in a
Proceeding at a time when he is not a named defendant or respondent in the
Proceeding.
7.05 Nonexclusivity of Rights. The right to indemnification and the
advancement and payment of expenses conferred in this Article VII shall not be
exclusive of any other right which the Managers, the Members or other Person
indemnified pursuant to this Article VII may have or hereafter acquire under any
law (common or statutory), provision of the Certificate or this Agreement,
agreement, vote of the Members or otherwise.
7.06 Insurance. The LLC may purchase and maintain insurance, at its
expense, to protect itself and any Person who is or was serving as a Manager,
officer, employee or agent of the LLC or is or was serving at the request of the
LLC as members, manager, director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another foreign or domestic
limited liability LLC, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any
expense, liability or loss, whether or not the LLC would have the power to
indemnify such Person against such expense, liability or loss under this Article
VII.
7.07 Savings Clause. If this Article VII or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the LLC
shall nevertheless indemnify and hold harmless the Managers or the Members or
any other Person indemnified pursuant to this Article VII as to costs, charges
and expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative to the fullest extent permitted by any
applicable portion of this Article VI that shall not have been invalidated and
to the fullest extent permitted by applicable law.
ARTICLE VIII
TAXES AND BOOKS
8.01 Federal Income Tax Treatment. Managers are hereby authorized to
make such elections and to take any and all action to ensure that the LLC is
classified as agreed to by the Members for federal income tax purposes.
8.02 Other Tax Returns. Subject to Section 8.01, the Managers shall
cause to be prepared and filed all necessary tax returns for the LLC.
8.03 Maintenance of Books and Records. The Company shall keep accurate
books and records of accounts. The calendar year shall be the accounting year of
the LLC. The Members shall be permitted access to all books and records of the
LLC at the principal office of the LLC during business hours.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND TERMINATION
9.01 Dissolution. The LLC shall dissolve and its affairs shall be wound
up on the first to occur of the following:
(a) The written consent of the Members.
(b) At any time there are less than two Members; and
(c) Entry of a decree of judicial dissolution of the LLC under
Section 18-802 of the Act.
The death, retirement, resignation, expulsion, bankruptcy or dissolution
of any Members or the occurrence of any other event that terminates the
continued membership of any Members shall not cause the LLC to be dissolved or
its affairs to be wound up. In the event of a resignation, expulsion, bankruptcy
or dissolution of a Member, such Member shall be entitled to receive a
distribution from the LLC equal in amount to what such Member would be entitled
to receive in the event of liquidation of the LLC on such date.
9.02 Liquidation and Termination. On dissolution of the LLC, the
Managers shall act as liquidating trustees or the Members may appoint one or
more other Persons to act as liquidating trustee. The liquidating trustee shall
proceed diligently to wind up the affairs of the LLC in accordance with Section
18-804 of the Act and make final distributions to the Members. The costs of
liquidation shall be borne as a LLC expense. Until final distribution, the
liquidating trustee shall continue to operate the LLC assets with all of the
power and authority of the Managers.
9.03 Deficit Capital Accounts. Notwithstanding anything to the contrary
contained in this Agreement, and notwithstanding any custom or rule of law to
the contrary, the Members shall not be responsible to the LLC and to any of the
LLC's creditors for any deficit in any capital account attributed to the
Members, and upon dissolution of the LLC any such deficit shall be obligated to
contribute such amount to the LLC to bring the balance of the Member's capital
account to zero or to pay such amount to the LLC's creditors directly..
9.04 Certificate of Cancellation. On completion of the distribution of
LLC assets as provided herein, the LLC is terminated, and the Managers (or such
other Person or Persons as the Act may require or permit) shall file a
Certificate of Cancellation with the Secretary of State of Delaware and take
such other actions as may be necessary to terminate the LLC.
ARTICLE X
GENERAL PROVISIONS
10.01 Entire Agreement; Supersedure. This Agreement constitutes the
entire agreement of the Members relating to the LLC and supersedes all prior
contracts or agreements with respect to the internal governance of the LLC,
whether oral or written.
10.02 Effect of Waiver or Consent. A waiver or consent, express or
implied, to or of any breach or default by any Person in the performance by that
Person of its obligations with respect to the LLC is not a consent or waiver to
or of any other breach or default in the performance by that Person of the same
or any other obligations of that Person with respect to the LLC. Failure on the
part of a Person to complain of any act of any Person or to declare any Person
in default with respect to the LLC, irrespective of how long that failure
continues, does not constitute a waiver by that Person of its rights with
respect to that default until the applicable statute of limitations period has
run.
10.03 Amendment or Modification. This Agreement may be amended or
modified from time to time only by a written instrument adopted by the Members.
10.04 Binding Effect. This Agreement is binding on, and inures to the
benefit of, the Member and its heirs, legal representatives, successors, and
assigns.
10.05 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of that provision to other Persons or circumstances is not affected thereby and
that provision shall be enforced to the greatest extent permitted by law.
10.06 Headings. Article and Section titles have been inserted for
convenience of reference only, and they are not intended to affect the meaning
or interpretation of this Agreement.
10.07 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and (a) any
provision of the Certificate, or (b) any mandatory provision of the Act, the
applicable provision of this Agreement shall control except to the extent
required by the Act.
IN WITNESS WHEREOF, the Members have executed this Limited Liability
Company Agreement as of the date first set forth above.
Grant Prideco USA, LLC
By:
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: President
Grant Prideco Inc.
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President