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EXHIBIT 3.17
RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
▇▇▇▇▇▇ SIERRA MICROMILLS, LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Restated Limited Liability Company Agreement of ▇▇▇▇▇▇ Sierra
Micromills, LLC ("Agreement"), executed this 23 day of January, 1996, to be
effective as of December 21, 1995, amends, restates and replaces that certain
Limited Liability Company Agreement dated as of December 21, 1995, between the
Members (as defined below).
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms have
the following meanings:
"Act" means the Delaware Limited Liability Company Act and any
successor statute thereto, as amended from time to time.
"Agreement" has the meaning given that term in the introductory
paragraph.
"Bankrupt Member" means (except to the extent a Required Interest
consents otherwise) any Member (a) that (i) makes a general assignment
for the benefit of creditors; (ii) files a voluntary bankruptcy
petition; (iii) becomes the subject of an order for relief or is
declared insolvent in any federal or state bankruptcy or insolvency
proceedings; (iv) files a petition or answer seeking for the Member a
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any law; (v) files an answer or
other pleading admitting or failing to contest the material allegations
of a petition filed against the Member in a proceeding of the type
described in subclauses (i) through (iv) of this clause (a); or (vi)
seeks, consents to, or acquiesces in the appointment of a trustee,
receiver, or liquidator of the Member's or of all or any substantial
part of the Member's properties; or (b) against which, a proceeding
seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any law has been
commenced and 120 days have expired without dismissal thereof or with
respect to which, without the Member's consent or acquiescence, a
trustee, receiver, or liquidator of the Member or of all or any
substantial part of the Member's properties has been appointed and 90
days have expired without the appointment's having been vacated or
stayed, or 90 days have expired after the date of expiration of a stay,
if the appointment has not previously been vacated.
"Business Day" means any day other than a Saturday, a Sunday, or
a holiday on which national banking associations in the State of
California are closed.
"Capital Contribution" means any contribution by a Member to the
capital of the Company pursuant to the terms of this Agreement.
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"Certificate" has the meaning given that term in Section 2.1.
"Code" means the Internal Revenue Code of 1986 and any successor
statute thereto, as amended from time to time.
"Commitment" means, subject in each case to adjustments on
account of Dispositions of Membership Interests permitted by this
Agreement, (a) in the case of a Member executing this Agreement as of
the date of this Agreement or a Person acquiring that Membership
Interest, the amount specified for that Member as its Commitment on
Exhibit A, and (b) in the case of a Membership Interest issued pursuant
to Section 3.3, the Commitment established pursuant thereto.
"Company" means ▇▇▇▇▇▇ Sierra Micromills, LLC, a Delaware limited
liability company.
"Dispose, Disposing," or "Disposition" means a sale, assignment,
transfer, exchange, mortgage, pledge, grant of a security interest, or
other disposition or encumbrance (including, without limitation, by
operation of law), or the acts thereof.
"General Interest Rate" means a rate per annum equal to the
lesser of (a) a varying rate per annum that is equal to the interest
rate publicly quoted by Bank of America National Trust and Savings
Association from time to time as its prime commercial or similar
reference interest rate, with adjustments in that varying rate to be
made on the same date as any change in that rate, and (b) the maximum
rate permitted by applicable law.
"Manager" means any Person elected as an initial manager of the
Company by the Members of the Company and any Person thereafter elected
as a manager of the Company as provided in this Agreement, but does not
include any Person who has ceased to be a manager of the Company.
"Member" means any Person executing this Agreement as of the date
of this Agreement as a member or hereafter admitted to the Company as a
member as provided in this Agreement, but does not include any Person
who has ceased to be a member in the Company.
"Membership Interest" means the interest of a Member in the
Company, including, without limitation, rights to distributions
(liquidating or otherwise), allocations, information, and to consent or
approve.
"Person" has the meaning given that term in Section 18-101(12) of
the Act.
"Required Interest" means one or more Members having among them
more than 50% of the Sharing Ratio of all Members.
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"Sharing Ratio" with respect to any Member means a fraction
(expressed as a percentage), the numerator of which is that Member's
Commitment and the denominator of which is the sum of the Commitments of
all Members.
Other terms defined herein have the meanings so given them.
1.2 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, unless otherwise indicated, and all references to Exhibits are to
exhibits attached hereto, each of which is made a part hereof for all purposes.
ARTICLE II
ORGANIZATION
2.1 FORMATION. The Company has been organized as a Delaware limited
liability company by the filing of a Certificate of Formation (the
"Certifcate") under and pursuant to the Act.
2.2 NAME. The name of the Company is "Kaiser Sierra Micromils, LLC"
and all Company business must be conducted in that name or such other names
that comply with applicable law as the Managers may select from time to time.
2.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE IN THE
UNITED STATES; OTHER OFFICES. The registered office of the Company 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 Company) as the Managers may designate
from time to time in the manner provided by law. The registered agent of the
Company in the State of Delaware shall be the initial registered agent named in
the Certificate or such other Person or Persons as the Managers may designate
from time to time in the manner provided by law.
2.4 TERM. The Company commenced on the date of the filing of the
Certificate in the office of the Secretary of State of Delaware and its
existence shall be perpetual.
2.5 PURPOSE. The purpose for which the Company is organized is to
transact any and all lawful business for which limited liability companies may
be organized under the Act.
ARTICLE III
MEMBERSHIP; DISPOSITIONS OF INTERESTS
3.1 INITIAL MEMBER OR MEMBERS. The initial member or members of the
Company consist of the Person or Persons, as appropriate, executing this
Agreement as of the date of this Agreement as a member, which Person is
admitted to the Company as a member effective contemporaneously with the
execution by such Person of this Agreement.
3.2 RESTRICTIONS ON THE DISPOSITION OF AN INTEREST. (a) A
Disposition of an interest in the Company may not be effected without the
consent of all Members. Any attempted Disposition
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by a Person of an interest or right, or any part thereof, in or in respect of
the Company other than in accordance with this Section 3.2 shall be, and is
hereby declared, null and void ab initio.
(b) Subject to the provisions of Section 3.2(c), (d), and (e), a
Person to whom an interest in the Company is transferred has the right to be
admitted to the Company as a Member with the Sharing Ratio and the Commitment
so transferred to such Person, if (A) the Member making such transfer grants
the transferee the right to be so admitted, and (B) such transfer is consented
to in accordance with Section 3.2(a).
(c) The Company may not recognize for any purpose any purported
Disposition of all or part of a Membership Interest unless and until the other
applicable provisions of this Section 3.2 have been satisfied and the Managers
have received, on behalf of the Company, a document (i) executed by both the
Member effecting the Disposition (or if the transfer is on account of the
death, incapacity, or liquidation of the transferor, its representative) and
the Person to which the Membership Interest or part thereof is Disposed, (ii)
including the notice address of any Person to be admitted to the Company as a
Member and its agreement to be bound by this Agreement in respect of the
Membership Interest or part thereof being obtained, and (iii) setting forth the
Sharing Ratios and the Commitments after the Disposition of the Member
effecting the Disposition and the Person to which the Membership Interest or
part thereof is Disposed (which together must total the Sharing Ratio and the
Commitment of the Member effecting the Disposition before the Disposition).
Each Disposition and, if applicable, admission complying with the provisions of
this Section 3.2(c) is effective as of the first day of the calendar month
immediately succeeding the month in which the Managers receive the notification
of Disposition and the other requirements of this Section 3.2 have been met.
(d) For the right of a Member to Dispose of a Membership Interest or
any part thereof or of any Person to be admitted to the Company in connection
therewith to exist or be exercised, the Company must receive a favorable
opinion of the Company's legal counsel or of other legal counsel acceptable to
the Managers to the effect that the Disposition or admission, when added to the
total of all other sales, assignments, or other Dispositions within the
preceding 12 months, would not result in the Company's being considered to have
terminated within the meaning of Section 708 of the Code. The Managers,
however, may waive the requirements of this Section 3.2(d).
(e) The Member effecting a disposition and any Person admitted to the
Company in connection therewith shall pay, or reimburse the Company for, all
costs incurred by the Company in connection with the Disposition or admission
(including, without limitation, the legal fees incurred in connection with the
legal opinion referred to in Section 3.2(d)) promptly upon receipt by that
Person of the Company's invoice for the amount due.
3.3 ADDITIONAL MEMBERS. Additional Persons may be admitted to the
Company as Members and Membership Interests may be created and issued to those
Persons and to existing Members at the direction of a Required Interest, on
such terms and conditions as such Required Interest may determine at the time
of admission. The terms of admission or issuance must specify the Sharing
Ratios and the Commitments applicable thereto and may provide for the creation
of different classes or groups of Members and having different rights, powers,
and duties. The Managers shall reflect the creation of any new class or group
in an amendment to this Agreement indicating the different rights, powers, and
duties, and such an amendment need be executed only by the Managers.
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Any such admission also must comply with the provision of Section 3.2(c)(i) and
(ii) and is effective only after the new Member has executed and delivered to
the Managers a document including the new Member's notice address, and its
agreement to be bound by this Agreement. The provisions of this Section 3.3
shall not apply to Dispositions of Membership Interests.
3.4 INTERESTS IN A MEMBER. A Member that is not a natural person may
not cause or permit an interest, direct or indirect, in itself to be Disposed
of such that, after the Disposition, (a) the Company would be considered to
have terminated within the meaning of Section 708 of the Code (in the event the
Company is treated as a partnership for federal income tax purposes) or (b)
without the consent of the Managers and a Required Interest, that Member shall
cease to be controlled by substantially the same Persons who control it as of
the date of its admission to the Company.
3.5 LIABILITY TO THIRD PARTIES. No Member or Manager shall be liable
for the debts, obligations or liabilities of the Company, including under a
judgment decree or order of a court.
3.6 WITHDRAWAL. A Member does not have the right or power to
withdraw from the Company as a member.
3.7 LACK OF AUTHORITY. No Member (other than a Manager or an
officer) has the authority or power to act for or on behalf of the Company, to
do any act that would be binding on the Company, or to incur any expenditures
on behalf of the Company.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 INITIAL CONTRIBUTIONS. Contemporaneously with the execution by
each Member of this Agreement, each Member shall make the Capital Contributions
described for that Member in Exhibit A.
4.2 SUBSEQUENT CONTRIBUTIONS. In the absence of a written agreement
to the contrary signed by the Member against which it is being enforced, no
Member is obligated to make subsequent Capital Contributions, loans or advances
to the Company.
4.3 RETURN OF CONTRIBUTIONS. A Member is not entitled to the return
of any part of its Capital Contributions or to be paid interest in respect of
either its capital account or its Capital Contributions. An unrepaid Capital
Contribution is not a liability of the Company or any Member. A Member is not
required to contribute or to lend any cash or property to the Company to enable
the Company to return any Member's Capital Contributions.
4.4 ADVANCES BY MEMBERS. If the Company does not have sufficient
cash to pay its obligations, any Member(s) that may agree to do so with the
Managers' written consent may advance all or part of the needed funds to or on
behalf of the Company. Any advance described in this Section 4.4 constitutes a
loan from the Member to the Company, bears interest at the General Interest
Rate from the date of the advance until the date of payment, and is not a
Capital Contribution. No such advance may be made by a Manager without the
written consent of all Members.
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4.5 CAPITAL ACCOUNTS. In the event the Company is treated as a
partnership for federal income tax purposes, a capital account shall be
established and maintained for each Member. Each Member's capital account (a)
shall be increased by (i) the amount of money contributed by that Member to the
Company, (ii) the fair market value of property contributed by that Member to
the Company as determined by the Managers (net of liabilities secured by the
contributed property that the Company is considered to assume or take subject
to under Section 752 of the Code), and (iii) allocations to that Member of
Company income and gain (or items thereof), including income and gain exempt
from tax and income and gain described in Treas. Reg. Section
1.704-1(b)(2)(iv)(g), but excluding income and gain described in Treas. Reg.
Section 1.704-1(b)(4)(i), and (b) shall be decreased by (i) the amount of
money distributed to that Member by the Company, (ii) the fair market value of
property distributed to that Member by the Company as determined by the
Managers (net of liabilities secured by the distributed property that the
Member is considered to assume or take subject to under Section 752 of the
Code), (iii) allocations to that Member of expenditures of the Company
described in Section 705(a)(2)(B) of the Code, and (iv) allocations of Company
loss and deduction (or items thereof), including loss and deductions described
in Treas. Reg. Section 1.704-1(b)(2)(iv)(g), but excluding items described in
clause (b)(iii) above and loss or deduction described in Treas. Reg. Section
1.704-1(b)(4)(i) or Section 1.704-1(b)(4)(iii). The Members' capital accounts
also shall be maintained and adjusted as permitted by the provisions of Treas.
Reg. Section 1.704-1(b)(2)(iv)(f) and as required by the other provisions of
Treas. Reg. Sections .704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments
to reflect the allocations to the Members of depreciation, depletion,
amortization, and gain or loss as computed for book purposes rather than the
allocation of the corresponding items as computed for tax purposes, as required
by Treas. Reg. Section 1.704-1(b)(2)(iv)(g). A Member that has more than one
Membership Interest shall have a single capital account that reflects all its
Members Interests, regardless of the class of Membership Interests owned by
that Member and regardless of the time or manner in which those Membership
Interests were acquired. On the transfer of all or part of a Membership
Interest, the capital account of the transferor that is attributable to the
transferred Membership Interest or part thereof shall carry over to the
transferee Member in accordance with the provisions of Treas. Reg. Section
1.704-1(b)(2)(iv)(l).
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
5.1 ALLOCATIONS. (a) Except as may be required by Section 704(c)
of the Code and Treas. Reg. Section 1.704-1(b)(2)(iv)(f)(4), in the event the
Company is treated as a partnership for federal income tax purposes, all items
of income, gain, loss, deduction, and credit of the Company shall be allocated
among the Members in accordance with their Sharing Ratios.
(b) All items of income, gain, loss, deduction, and credit allocable
to any Membership Interest that may have been transferred shall be allocated
between the transferor and the transferee based on the portion of the calendar
year during which each was recognized as owning that Membership Interest,
without regard to the results of Company operations during any particular
portion of that calendar year and without regard to whether cash distributions
were made to the transferor or the transferee during that calendar year;
provided, however, that, if the Company is treated as a partnership for federal
income tax purposes, this allocation must be made in accordance with a method
permissible under Section 706 of the Code and the regulations thereunder.
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(c) If the Company is treated as a partnership for federal income
tax purposes; and
(i) the Treasury Regulations under Section 704(b) of the Code
are hereafter changed or newly adopted;
(ii) the Company incurs more than a de minimis amount of
nonrecourse debt to a Member, affiliate or unrelated third party; or
(iii) upon the occurrence of :
(A) the acquisition of an additional interest in the
Company by any new or existing Member in exchange for more than a
de minimis capital contribution;
(B) the distribution by the Company to a Member of more
than a de minimis amount of money or Company property (other than
a non-liquidating pro rata distribution of money), whether in
liquidation of the Company, a Member's Membership Interest or
otherwise; or
(C) the termination of the Company within the meaning
of Section 708(b)(1) of the Code;
and such change, new regulations, nonrecourse debt or other event, in the
opinion of tax counsel for the Company, makes it necessary to provide special
allocation rules or otherwise amend this Agreement in order to avoid a
significant risk that either a material portion of any allocation set forth in
this Article V would not be respected for federal income tax purposes, or that
the economic arrangement among the Members contemplated herein would be
compromised, this Agreement shall be amended (with the consent of all Members,
which consent shall not be unreasonably withheld) in such manner as, in the
opinion of such counsel, is necessary or desirable, taking into account the
interests of the Members as a whole and all other relevant factors, to avoid or
reduce significantly such risk to the extent possible without materially
changing the amounts distributable to any Member pursuant to this Agreement.
5.2 DISTRIBUTIONS. (a) From time to time the Managers shall
determine in their reasonable judgment to what extent (if any) the Company's
cash on hand exceeds its current and anticipated needs, including, without
limitation, for operating expenses, debt service, acquisitions, and a
reasonable contingency reserve. If such an excess exists, the Managers shall
cause the Company to distribute to the Members, in accordance with their
Sharing Ratios, an amount in cash equal to that excess.
(b) From time to time the Managers also may cause property of the
Company other than cash to be distributed to the Members, which distribution
must be made in accordance with their Sharing Ratios and may be made subject to
existing liabilities and obligations. Immediately prior to such a
distribution, the capital accounts, if any, of the Members shall be adjusted as
provided in Treas. Reg. Section 1.704-1(b)(2)(iv)(f).
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ARTICLE VI
MANAGERS
6.1 MANAGEMENT BY MANAGERS. (a) Except for situations in which the
approval of the Members is required by this Agreement or by nonwaivable
provisions of applicable law, and subject to the provisions of Section 6.2, (i)
the powers of the Company shall be exercised by or under the authority of, and
the business and affairs of the Company shall be managed under the direction
of, the Managers; and (ii) the Managers may make all decisions and take all
actions for the Company not otherwise provided for in this Agreement.
(b) Notwithstanding the provisions of Section 6.1(a), the Managers
may not cause the Company to do any of the following without the approval of
the Required Interest:
(i) sell, lease, exchange or otherwise dispose of (other than
by way of a pledge, mortgage, deed of trust or trust indenture) all or
substantially all the Company's property and assets (with or without
good will), other than in the usual and regular course of the Company's
business;
(ii) amend or restate the Certificate or this Agreement;
(iii) change the status of the Company from one in which
management is vested in one or more Managers to one in which management
is reserved to the Members;
(iv) issue any additional membership interests in the Company
subsequent to the issuance of membership interests to the initial
members of the Company;
(v) approve any merger, consolidation, share or interest
exchange, or other transaction authorized or subject to the provisions
of the Act;
(vi) voluntarily cause the dissolution of the Company;
(vii) authorize any transaction, agreement, or action on behalf
of the Company that is unrelated to its purpose as set forth in this
Agreement or the Certificate or that otherwise contravenes this
Agreement; or
(viii) authorize any act that would make it impossible to carry
on the ordinary business of the Company.
6.2 ACTIONS BY MANAGERS; COMMITTEES; DELEGATION OF AUTHORITY AND
DUTIES. (a) In managing the business and affairs of the Company and
exercising its powers, the Managers shall act (i) collectively through meetings
and written consents pursuant to Sections 6.5 and 6.7; (ii) through committees
pursuant to Section 6.2(b); or (iii) through Managers to whom authority and
duties have been delegated pursuant to Section 6.2(c).
(b) The Managers may, from time to time, designate one or more
committees, each of which shall be comprised of one or more Managers. Any such
committee, to the extent provided
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in such resolution or in the Certificate or this Agreement, shall have and may
exercise all of the authority of the Managers, subject to the limitations set
forth in the Act. At every meeting of any such committee, the presence of a
majority of all the members thereof shall constitute a quorum, and the
affirmative vote of a majority of the members present shall be necessary for
the adoption of any resolution. The Managers may dissolve any committee at any
time, unless otherwise provided in the Certificate or this Agreement.
(c) The Managers may, from time to time, delegate to one or more
Managers such authority and duties as the Managers may deem advisable.
(d) Any Person dealing with the Company, other than a Member, may
rely on the authority of any Manager or officer in taking any action in the
name of the Company without inquiry into the provisions of this Agreement or
compliance herewith, regardless of whether that action actually is taken in
accordance with the provisions of this Agreement.
6.3 NUMBER AND TERM OF OFFICE. The number of Managers of the Company
shall be determined from time to time by resolution of the Managers; provided,
however, that no decrease in the number of Managers that would have the effect
of shortening the term of an incumbent Manager may be made by the Managers. If
the Managers make no such determination, the number of Managers shall be four
(4). Each Manager shall hold office for a term for which he is elected and
thereafter until his successor shall have been elected and qualified, or until
his earlier death, resignation or removal. Managers need not be Members or
residents of the State of Delaware.
6.4 VACANCIES; REMOVAL; RESIGNATION. A Manager elected to fill a
vacancy occurring other than by reason of an increase in the number of Managers
shall be elected for the unexpired term of his predecessor in office. At any
meeting of Members at which a quorum of Members is present called expressly for
that purpose, or pursuant to a written consent adopted pursuant to this
Agreement, any Manager may be removed, with or without cause, by a Required
Interest.
6.5 MEETINGS. (a) Unless otherwise required by law or provided in
the Certificate or this Agreement, a majority of the total number of Managers
fixed by, or in the manner provided in, the Certificate or this Agreement shall
constitute a quorum for the transaction of business of the Managers, and the
act of a majority of the Managers present at a meeting at which a quorum is
present shall be the act of the Managers. A Manager who is present at a
meeting of the Managers at which action on any Company matter is taken shall be
presumed to have assented to the action unless his dissent shall be entered in
the minutes of the meeting or unless he shall file his written dissent to such
action with the Person acting as secretary of the meeting before the
adjournment thereof or shall deliver such dissent to the Company immediately
after the adjournment of the meeting. Such right to dissent shall not apply to
a Manager who voted in favor of such action.
(b) Meetings of the Managers may be held at such place or places as
shall be determined from time to time by resolution of the Managers. At all
meetings of the Managers, business shall be transacted in such order as shall
from time to time be determined by resolution of the Managers. Attendance of a
Manager at a meeting shall constitute a waiver of notice of such
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meeting, except where a Manager attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
(c) In connection with any annual meeting of Members at which
Managers were elected, the Managers may, if a quorum is present, hold its first
meeting for the transaction of business immediately after and at the same place
as such annual meeting of the Members. Notice of such meeting at such time and
place shall not be required.
(d) Regular meetings of the Managers shall be held at such times and
places as shall be designated from time to time by resolution of the Managers.
Notice of such regular meetings shall not be required.
(e) Special meetings of the Managers may be called by any Manager on
at least 24 hours notice to each other Manager. Such notice need not state the
purpose or purposes of, nor the business to be transacted at, such meeting,
except as may otherwise be required by law or provided for by the Certificate
or this Agreement.
6.6 APPROVAL OR RATIFICATION OF ACTS OR CONTRACTS BY MEMBERS. The
Managers in their discretion may submit any act or contract for approval or
ratification at any annual meeting of the Members, or at any special meeting of
the Members called for the purpose of considering any such act or contract, and
any act or contract that shall be approved or be ratified by a Required
Interest shall be as valid and as binding upon the Company and upon all Members
as if it shall have been approved or ratified by every Member of the Company.
6.7 ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. Any action
permitted or required by the Act, the Certificate or this Agreement to be taken
at a meeting of the Managers or any committee designated by the Managers may be
taken without a meeting if a consent in writing, setting forth the action to be
taken, is signed by all the Managers or members of such committee, as the case
may be. Subject to the requirements of the Act, the Certificate or this
Agreement for notice of meetings, unless otherwise restricted by the
Certificate, Managers, or members of any committee designated by the Managers,
may participate in and hold a meeting of the Managers or any committee of
Managers, as the case may be, by means of a conference telephone or similar
communications equipment by means of which all Persons participating in the
meeting can hear each other, and participation in such meeting shall constitute
attendance and presence in person at such meeting, except where a Person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
6.8 OFFICERS. (a) The Managers may, from time to time, designate
one or more Persons to be officers of the Company. No officer need be a
resident of the State of Delaware, a Member or a Manager. Any officers so
designated shall have such authority and perform such duties as the Managers
may, from time to time, delegate to them. The Managers may assign titles to
particular officers. Unless the Managers decide otherwise, if the title is one
commonly used for officers of a business corporation formed under the Delaware
General Corporation Law, the assignment of such title shall constitute the
delegation to such officer of the authority and duties that are normally
associated with that office, subject to any specific delegation of authority.
Each
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officer shall hold office until his successor shall be duly designated and
shall qualify or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided. Any number of offices may be held
by the same Person. The salaries or other compensation, if any, of the
officers and agents of the Company shall be fixed from time to time by the
Managers.
(b) Any officer may resign as such at any time. Such resignation
shall be made in writing and shall take effect at the time specified therein,
or if no time is specified, at the time of its receipt by the Managers. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation. Any officer may be removed as such,
either with or without cause, by the Managers whenever in their judgment the
best interests of the Company will be served thereby; provided, however, that
such removal shall be without prejudice to the contract rights, if any, of the
Person so removed. Designation of an officer shall not of itself create
contract rights. Any vacancy occurring in any office of the Company (other
than Manager) may be filled by the Managers.
ARTICLE VII
MEETINGS OF MEMBERS
7.1 MEETINGS. (a) A quorum shall be present at a meeting of
Members if the holders of a Required Interest are represented at the meeting in
person or by proxy. With respect to any matter, other than a matter for which
the affirmative vote of the holders of a specified portion of the Sharing
Ratios of all Members entitled to vote is required by the Act, the affirmative
vote of a Required Interest at a meeting of Members at which a quorum is
present shall be the act of the Members.
(b) All meetings of the Members shall be held at the principal place
of business of the Company or at such other place within or without the State
of Delaware as shall be specified or fixed in the notices or waivers of notice
thereof; provided that any or all Members may participate in any such meeting
by means of conference telephone or similar communications equipment pursuant
to Section 7.5.
(c) Notwithstanding the other provisions of the Certificate or this
Agreement, the chairman of the meeting or the holders of a Required Interest
shall have the power to adjourn such meeting from time to time, without any
notice other than announcement at the meeting of the time and place of the
holding of the adjourned meeting. If such meeting is adjourned by the Members,
such time and place shall be determined by vote of the holders of a Required
Interest. Upon the resumption of such adjourned meeting, any business may be
transacted that might have been transacted at the meeting as originally called.
(d) An annual meeting of the Members, for the election of the
Managers and for the transaction of such other business as may properly come
before the meeting, shall be held at such place, within or without the State of
Delaware, on such date and at such time as the Managers shall fix and set forth
in the notice of the meeting, which date shall be within 13 months subsequent
to the date of organization of the Company or the last annual meeting of
Members, whichever most recently occurred.
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(e) Special meetings of the Members for any proper purpose or
purposes may be called at any time by the Managers or the holders of at least
ten percent of the Sharing Ratios of all Members. If not otherwise stated in
or fixed in accordance with the remaining provisions hereof, the record date
for determining Members entitled to call a special meeting is the date any
Member first signs the notice of that meeting. Only business within the
purpose or purposes described in the notice (or waiver thereof) required by
this Agreement may be conducted at a special meeting of the Members.
(f) Written or printed notice stating the place, day and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten nor more than
60 days before the date of the meeting, either personally or by mail, by or at
the direction of the Managers or Person calling the meeting, to each Member
entitled to vote at such meeting. If mailed, any such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
Member at his address provided for in Section 12.1, with postage thereon
prepaid.
(g) The date on which notice of a meeting of Members is mailed or the
date on which the resolution of the Managers declaring a distribution is
adopted, as the case may be, shall be the record date for the determination of
the Members entitled to notice of or to vote at such meeting, including any
adjournment thereof, or the Members entitled to receive such distribution.
(h) The right of Members to cumulative voting in the election of
Managers is expressly permitted.
7.2 VOTING LIST. The Managers shall make, at least ten days before
each meeting of Members, a complete list of the Members entitled to vote at
such meeting or any adjournment thereof, arranged in alphabetical order, with
the address of and the Sharing Ratios held by each, which list, for a period of
ten days prior to such meeting, shall be kept on file at the registered office
or principal place of business of the Company and shall be subject to
inspection by any Member at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any Member during the whole time of the
meeting. The original membership records shall be prima facie evidence as to
who are the Members entitled to examine such list or transfer records or to
vote at any meeting of Members. Failure to comply with the requirements of
this Section shall not affect the validity of any action taken at the meeting.
7.3 PROXIES. A Member may vote either in person or by proxy executed
in writing by the Member. A telegram, telex, cablegram or similar transmission
by the Member, or a photographic, photostatic, facsimile or similar
reproduction of a writing executed by the Member shall be treated as an
execution in writing for purposes of this Section. Proxies for use at any
meeting of Members or in connection with the taking of any action by written
consent shall be filed with the Managers, before or at the time of the meeting
or execution of the written consent, as the case may be. All proxies shall be
received and taken charge of and all ballots shall be received and canvassed by
the Managers, who shall decide all questions touching upon the qualification of
voters, the validity of the proxies, and the acceptance or rejection of votes,
unless an inspector or inspectors shall have been appointed by the chairman of
the meeting, in which event such inspector or inspectors shall decide
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all such questions. No proxy shall be valid after 11 months from the date of
its execution unless otherwise provided in the proxy. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest. Should a proxy
designate two or more Persons to act as proxies, unless that instrument shall
provide to the contrary, a majority of such Persons present at any meeting at
which their powers thereunder are to be exercised shall have and may exercise
all the powers of voting or giving consents thereby conferred, or if only one
is present, then such powers may be exercised by that one; or, if an even
number attend and a majority do not agree on any particular issue, the Company
shall not be required to recognize such proxy with respect to such issue if
such proxy does not specify how the Sharing Ratios that are the subject of such
proxy are to be voted with respect to such issue.
7.4 CONDUCT OF MEETINGS. All meetings of the Members shall be
presided over by the chairman of the meeting, who shall be a Manager (or
representative thereof) designated by a majority of the Managers. The chairman
of any meeting of Members shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and
the conduct of discussion as seem to him in order.
7.5 ACTION BY WRITTEN CONSENT OR TELEPHONE CONFERENCE. (a) Any
action required or permitted to be taken at any annual or special meeting of
Members may be taken without a meeting, without prior notice, and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holder or holders of not less than the minimum Sharing
Ratios that would be necessary to take such action at a meeting at which the
holders of all Sharing Ratios entitled to vote on the action were present and
voted. Every written consent shall bear the date of signature of each Member
who signs the consent. No written consent shall be effective to take the
action that is the subject to the consent unless, within 60 days after the date
of the earliest dated consent delivered to the Company in the manner required
by this Section, a consent or consents signed by the holder or holders of not
less than the minimum Sharing Ratios that would be necessary to take the action
that is the subject of the consent are delivered to the Company by delivery to
its registered office, its principal place of business, or the Managers.
Delivery shall be by hand or certified or registered mail, return receipt
requested. Delivery to the Company's principal place of business shall be
addressed to the Managers. A telegram, telex, cablegram or similar
transmission by a Member, or a photographic, photostatic, facsimile or similar
reproduction of a writing signed by a Member, shall be regarded as signed by
the Member for purposes of this Section. Prompt notice of the taking of any
action by Members without a meeting by less than unanimous written consent
shall be given to those Members who did not consent in writing to the action.
(b) The record date for determining Members entitled to consent to
action in writing without a meeting shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Company by delivery to its registered office, its principal
place of business, or the Managers. Delivery shall be by hand or by certified
or registered mail, return receipt requested. Delivery to the Company's
principal place of business shall be addressed to the Managers.
(c) If any action by Members is taken by written consent, any
articles or documents filed with the Secretary of State of Delaware as a result
of the taking of the action shall state, in lieu of any statement required by
the Act concerning any vote of Members, that written consent has been given
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in accordance with the provisions of the Act and that any written notice
required by the Act has been given.
(d) Members may participate in and hold a meeting by means of
conference telephone or similar communications equipment by means of which all
Persons participating in the meeting can hear each other, and participation in
such meeting shall constitute attendance and presence in person at such
meeting, except where a Person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
ARTICLE VIII
INDEMNIFICATION
8.1 RIGHT TO INDEMNIFICATION. (a) The Company shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative (other than an action by
or in the right of the Company) by reason of the fact that he or she, was a
Manager, officer, employee or agent of the Company or is or was serving at the
request of the Company as a manager, director, officer, employee or agent of
another limited liability company, corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees),
judgments, fines an amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the bests interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
(b) The Company shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit by or in the right of the Company to procure a judgment in its
favor by reason of the fact that he or she, was a Manager, officer, employee or
agent of the Company or is or was serving at the request of the Company as a
manager, director, officer, employee or agent of another limited liability
company, corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him or her in connection with the defense or settlement of such action or
suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses with the Court of Chancery or other court shall deem proper.
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8.2 REIMBURSEMENT OF EXPENSES. To the extent that a Manager,
director, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
Section 8.1, or in the defense of any claim, issue or matter therein, he or she
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
8.3 STANDARD OF CONDUCT. Any indemnification under Section 8.1
(unless ordered by a court) shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of the Manager,
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in Section 8.1.
Such determination shall be made (i) by a majority vote of the Managers who are
not parties to such action, suit or proceeding, even though less than a quorum,
or (ii) if there are no such Managers, or if such Managers so direct, by
independent legal counsel in a written opinion, or (iii) by the Members.
8.4 ADVANCE PAYMENT. Expenses (including attorneys' fees) incurred
by an officer or Manager in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the Company in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such officer or Manager by such officer or
Manager of his or her good faith belief that he has met the standard of conduct
necessary for indemnification under this Article VIII 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 VIII or otherwise.
8.5 NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this Article VIII shall not be
exclusive of any other right which a Manager or other Person indemnified
thereunder may have or hereafter acquire under any law (common or statutory),
provision of the Certificate or this Agreement, agreement, vote of Members or
disinterested Managers or otherwise.
8.6 INSURANCE. The Company 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 Company or is or was serving at the
request of the Company as a Manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic limited liability company, corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise against
any expense, liability or loss, whether or not the Company would have the power
to indemnify such Person against such expense, liability or loss under this
Article VIII.
8.7 SAVINGS CLAUSE. If this Article VIII or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Manager or any
other Person indemnified pursuant to this Article VIII 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 full extent permitted by any
applicable portion of this Article VIII that shall not have been invalidated
and to the fullest extent permitted by applicable law.
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ARTICLE IX
TAXES
9.1 TAX RETURNS. The Managers shall cause to be prepared and filed
all necessary federal and state income tax returns for the Company, including
making the elections described in Section 9.2. Each Member shall furnish to
the Managers all pertinent information in its possession relating to Company
operations that is necessary to enable the Company's income tax returns to be
prepared and filed.
9.2 TAX ELECTIONS. The Company shall make any election the Managers
may deem appropriate and in the best interests of the Members. Neither the
Company nor any Manager or Member may make an election for the Company to be
excluded from the application of the provisions of subchapter K of chapter 1 of
subtitle A of the Code or any similar provisions of applicable state law, and
no provision of this Agreement shall be construed to sanction or approve such
an election.
9.3 "TAX MATTERS PARTNER". In the event the Company is treated as a
partnership for federal income tax purposes, ▇▇▇▇▇▇ Micromill Holdings, LLC
shall be the "tax matters partner" of the Company pursuant to Section
6231(a)(7) of the Code (the "Tax Matters Partner") with all the rights and
duties and powers provided in Section 6221 through 6232, inclusive, of the
Code. The Tax Matters Partner shall take such action as may be necessary to
cause each other Member to become a "notice partner" within the meaning of
Section 6223 of the Code. The Tax Matters Partner shall inform each other
Member of all significant matters that may come to its attention in its
capacity as "tax matters partner" by giving notice thereof within a reasonable
time after becoming aware thereof and, within that time, shall forward to each
other Member copies of all significant written communications it may receive in
that capacity.
ARTICLE X
BOOKS, RECORDS AND BANK ACCOUNTS
10.1 MAINTENANCE OF BOOKS. The Company shall keep books and records
of accounts and shall keep minutes of the proceedings of its Members, its
Managers and each committee of the Managers. The books of account for the
Company shall be maintained on a basis consistent with Section 9.2 of this
Agreement, except that the capital accounts of the Members shall be maintained
in accordance with Section 4.5.
10.2 ACCOUNTS. The Managers shall establish and maintain one or more
separate bank and investment accounts and arrangements for Company funds in the
Company name with financial institutions and firms that the Managers determine.
The Managers may not commingle the Company's funds with the funds of any
Member; however, Company funds may be invested in a manner the same as or
similar to the Managers' investment of their own funds or investments by their
affiliates.
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ARTICLE XI
DISSOLUTION, LIQUIDATION, AND TERMINATION
11.1 DISSOLUTION. The Company shall dissolve and its affairs shall be
wound up on the first to occur of the following:
(a) the written consent of a Required Interest;
(b) the expiration of the period fixed for the duration of the
Company set forth in this Agreement, if any;
(c) any Manager who is a Member (or, if there is no Manager
who is a Member, any Member) shall become a Bankrupt Member (with or
without the consent of a Required Interest); provided, however, that if
the event described in this Section 11.1(c) shall occur and there shall
be at least one other Member remaining, the Company shall not be
dissolved, and the business of the Company shall be continued, if all
Members so agree; and
(d) entry of a decree of judicial dissolution of the Company
under Section 18-802 of the Act.
Except as provided in Section 11.1(c), the death, retirement, resignation,
expulsion, bankruptcy or dissolution of a Member, or the occurrence of any
other event that terminates the continued membership of a Member in the
Company, shall not cause a dissolution of the Company.
11.2 LIQUIDATION AND TERMINATION. On dissolution of the Company, the
Managers shall act as liquidator or may appoint one or more Members as
liquidator. The liquidator shall proceed diligently to wind up the affairs of
the Company and make final distributions as provided herein and in the Act.
The costs of liquidation shall be borne as a Company expense. Until final
distribution, the liquidator shall continue to operate the Company properties
with all of the power and authority of the Managers. The steps to be
accomplished by the liquidator are as follows:
(a) as promptly as possible after dissolution and again after
final liquidation, the liquidator shall cause a proper accounting to be
made by a recognized firm of certified public accountants of the
Company's assets, liabilities, and operations through the last day of
the calendar month in which the dissolution occurs or the final
liquidation is completed, as applicable;
(b) the liquidator shall cause any notice required by
applicable law to be mailed to each known creditor of and claimant
against the Company;
(c) the liquidator shall pay, satisfy or discharge from
Company funds all of the debts, liabilities and obligations of the
Company (including, without limitation, all expenses incurred in
liquidation and any advances described in Section 4.4) or otherwise make
adequate provision for payment and discharge thereof (including, without
limitation, the establishment of a cash escrow fund for contingent
liabilities in such amount and for such term as the liquidator may
reasonably determine); and
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(d) all remaining assets of the Company shall be distributed
to the Members as follows:
(i) the liquidator may sell any or all Company
property, including to Members, and any resulting gain or loss from each
sale shall be computed and allocated to the capital accounts of the
Members;
(ii) with respect to all Company property that has not
been sold, the fair market value of that property shall be determined
and the capital accounts of the Members shall be adjusted to reflect the
manner in which the unrealized income, gain, loss, and deduction
inherent in property that has not been reflected in the capital accounts
previously would be allocated among the Members if there were a taxable
disposition of that property for the fair market value of that property
on the date of distribution; and
(iii) Company property shall be distributed among the
Members in accordance with the positive capital account balances of the
Members, as determined after taking into account all capital account
adjustments for the taxable year of the Company during which the
liquidation of the partnership occurs (other than those made by reason
of this clause (iii)); and those distributions shall be made by the end
of the taxable year of the Company during which the liquidation of the
Company occurs (or, if later, 90 days after the date of the
liquidation).
All distributions in kind to the Members shall be made subject to the liability
of each distributee for costs, expenses, and liabilities theretofore incurred
or for which the Company has committed prior to the date of termination and
those costs, expenses, and liabilities shall be allocated to the distributee
pursuant to this Section 11.2. The distribution of cash and/or property to a
Member in accordance with the provisions of this Section 11.2 constitutes a
complete return to the Member of its Capital Contributions and a complete
distribution to the Member of its Membership Interest. To the extent that a
Member returns funds to the Company, it has no claim against any other Member
for those funds.
11.3 DEFICIT CAPITAL ACCOUNTS. Notwithstanding anything to the
contrary contained in this Agreement, and notwithstanding any custom or rule of
law to the contrary, to the extent that the deficit, if any, in the capital
account of any Member results from or is attributable to deductions and losses
of the Company (including non-cash items such as depreciation), or
distributions of money pursuant to this Agreement to all Members in proportion
to their respective Sharing Ratios, upon dissolution of the Company such
deficit shall not be an asset of the Company and such Members shall not be
obligated to contribute such amount to the Company to bring the balance of such
Member's capital account to zero.
11.4 CERTIFICATE OF CANCELLATION. On completion of the distribution
of Company assets as provided herein, the Company 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, cancel any other filings and take such other actions as may be
necessary to terminate the Company.
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ARTICLE XII
GENERAL PROVISIONS
12.1 NOTICES. Except as expressly set forth to the contrary in this
Agreement, all notices, requests, or consents provided for or permitted to be
given under this Agreement must be in writing and must be given either by
depositing that writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested or by
delivering that writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request, or consent given under this Agreement is
effective on receipt by the Person to receive it. All notices, requests, and
consents to be sent to a Member must be sent to or made at the addresses given
for that Member on Exhibit A or in the instrument described in Section 3.2(c)
or 3.3, or such other address as that Member may specify by notice to the other
Members.
12.2 ENTIRE AGREEMENT. This Agreement constitute the entire agreement
of the Members and their affiliates relating to the Company and supersedes all
prior contracts or agreements with respect to the Company, whether oral or
written.
12.3 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 Company 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
Company. 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 Company, 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.
12.4 AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified from time to time only by a written instrument adopted by the Managers
and executed and agreed to by a Required Interest; provided, however, that an
amendment or modification reducing a Member's Sharing Ratio or increasing its
Commitment (other than to reflect changes otherwise provided by this Agreement)
is effective only with the Member's consent, an amendment or modification
reducing the required Sharing Ratio or other measure for any consent or vote in
this Agreement is effective only with the consent or vote of Members having the
Sharing Ratio or other measure theretofore required, and amendments of the
type described in Section 3.3 may be adopted as therein provided.
12.5 BINDING EFFECT. Subject to the restrictions on Dispositions set
forth in this Agreement, this Agreement is binding on and inures to the benefit
of the Members and their respective heirs, legal representatives, successors,
and assigns.
12.6 GOVERNING LAW; SEVERABILITY. 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
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provision of the Act, the applicable provision of the Certificate or the Act
shall control. 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.
12.7 FURTHER ASSURANCES. In connection with this Agreement and the
transactions contemplated hereby, each Member shall execute and deliver any
additional documents and instruments and perform any additional acts that may
be necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
12.8 WAIVER OF CERTAIN RIGHTS. Each Member irrevocably waives any
right it may have to maintain any action for dissolution of the Company or for
partition of the property of the Company.
12.9 INDEMNIFICATION. To the fullest extent permitted by law, each
Member shall indemnify the Company, each Manager and each other Member and hold
them harmless from and against all losses, costs, liabilities, damages, and
expenses (including, without limitation, costs of suit and attorneys' fees)
they may incur on account of any breach by that Member of this Agreement.
12.10 NOTICE TO MEMBERS OF PROVISIONS OF THIS AGREEMENT. By executing
this Agreement, each Member acknowledges that it has actual notice of (a) all
of the provisions of this Agreement, including, without limitation, the
restriction on the transfer of Membership Interests set forth in Article III,
and (b) all of the provisions of the Certificate. Each Member hereby agrees
that this Agreement constitute adequate notice of all such provisions,
including, without limitation, any notice requirement under Article 8 of the
Delaware Uniform Commercial Code, and each Member hereby waives any requirement
that any further notice thereunder be given.
IN WITNESS WHEREOF, the Members have executed this Agreement as of the
date first set forth above.
MEMBERS:
▇▇▇▇▇▇ MICROMILL HOLDINGS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇ ▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇ ▇▇▇, Manager
▇▇▇▇▇▇ TEXAS SIERRA MICROMILLS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇ ▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇ ▇▇▇, Manager
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EXHIBIT A
NAME, ADDRESS OF EACH MEMBER CONTRIBUTION SHARING RATIO
-----------------------------------------------------------------------------
▇▇▇▇▇▇ Texas Sierra Micromills, LLC $ 10 1%
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Micromill Holdings, LLC $990 99%
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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