EXHIBIT 3.4
FORM OF OPERATING AGREEMENT
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SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
TEEKAY GP L.L.C.
A ▇▇▇▇▇▇▇▇ ISLANDS LIMITED LIABILITY COMPANY
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Dated: as of March [-], 2005
TABLE OF CONTENTS
1 DEFINITIONS 1
1.1 Defined Terms 1
1.2 Number and Gender 4
2 ORGANIZATION 4
2.1 Formation 4
2.2 Name 4
2.3 Purposes 4
2.4 Registered Office; Registered Agent 4
2.5 Principal Office 5
2.6 Term 5
2.7 LLC Certificate; Transfer of Ownership
Interest; Pledge of Ownership Interest 5
3 CAPITAL CONTRIBUTIONS 6
3.1 Initial Capital Contributions 6
3.2 Additional Capital Contributions 6
3.3 Liability Limited to Capital Contributions 6
4 MANAGEMENT 6
4.1 Board of Directors 6
4.2 Board Membership 8
4.3 Meetings, Quorum, Voting, Etc 8
4.4 Delegation of Authority and Duties 10
4.5 Execution of Documents 11
4.6 Compensation of Directors and Officers 12
4.7 Indemnification 12
4.8 Liability of Indemnitees 15
5 DISTRIBUTIONS 15
5.1 Distributions/Available Cash 15
6 BOOKS AND RECORDS; FISCAL YEAR; BANK ACCOUNTS; TAX MATTERS 16
6.1 Books and Records 16
6.2 Fiscal Year 16
6.3 Bank Accounts 16
6.4 Tax Matters 16
7 MISCELLANEOUS 16
7.1 Complete Agreement 16
7.2 Governing Law 17
7.3 Headings 17
7.4 Severability 17
7.5 No Third Party Beneficiary 17
7.6 Amendment 17
Exhibits:
Exhibit 1: Certificate of Formation
Exhibit 2: LLC Certificate
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SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Second Amended and Restated Limited Liability Company Agreement (the
"Agreement") of Teekay GP L.L.C., a ▇▇▇▇▇▇▇▇ Islands limited liability company
(the "Company"), is made and entered into effective as of the [-] day of March,
2005, by Teekay Shipping Corporation, a ▇▇▇▇▇▇▇▇ Islands corporation ("TSC").
RECITALS
WHEREAS, the Company was formed on November 2, 2004 pursuant to the Act,
subject to a Limited Liability Company Agreement dated as of November 2, 2004,
as amended by a First Amended and Restated Limited Liability Company Agreement
dated as of November 22, 2004 (as so amended and restated, the "Limited
Liability Company Agreement") entered into by TSC as the sole Member of the
Company; and
WHEREAS, TSC now desires to further amend and restate the Limited
Liability Company Agreement in its entirety upon the terms and conditions stated
below.
NOW, THEREFORE, the Limited Liability Company Agreement is hereby amended
and restated in its entirety as follows:
1 DEFINITIONS
1.1 Defined Terms.
When used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "Act" means the ▇▇▇▇▇▇▇▇ Islands Limited Liability Company Act of the
Republic of The ▇▇▇▇▇▇▇▇ Islands Associations Law, as the same may be
amended from time to time.
(b) "Agreement" means this Second Amended and Restated Limited Liability
Company Agreement, as the same may be further amended, modified,
supplemented or restated from to time in accordance with its terms.
(c) "Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control
with, the Person in question. As used in the foregoing definition, the
term "control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
(d) "Board of Directors" shall have the meaning set forth in Section 4.1 of
this Agreement.
(e) "Business" means the acquisition of a general partnership interest in the
Limited Partnership, and acting as the general partner of the Limited
Partnership.
(f) "Canadian Tax Act" means the Income Tax Act (Canada), R.S.C. 1985, 5th
Supplement, c.1, as amended from time to time.
(g) "Capital Contributions" means the total amount of cash and/or assets which
a Member contributes to the Company as capital pursuant to this Agreement.
(h) "Certificate" means the Certificate of Formation in the form of Exhibit 1
hereto filed pursuant to the Act with the Republic of The ▇▇▇▇▇▇▇▇ Islands
Registrar of Corporations pursuant to which the Company was formed as a
▇▇▇▇▇▇▇▇ Islands limited liability company.
(i) "Closing Date" means the first date on which limited partnership interests
are sold by the Limited Partnership pursuant to the provisions of the
Underwriting Agreement.
(j) "Contribution Agreement" means that certain Contribution, Conveyance and
Assumption Agreement, dated as of the Closing Date, among the Company, the
Limited Partnership, TSC, the Operating Company and the other parties
named therein, together with the additional conveyance documents and
instruments contemplated or referenced thereunder.
(k) "Directors" means the members of the Board of Directors.
(l) "Indemnitee" means (i) any Person who is or was a Member, (ii) any Person
who is or was an Affiliate of any Member, (iii) any Person who is or was a
Director or Officer, or a fiduciary or trustee, of the Company, (iv) any
Person who is or was a member, shareholder, partner, director, officer,
fiduciary or trustee of any Member or an Affiliate of any Member, (v) any
Person who is or was serving at the request of the Company, any Member or
any Affiliate of any Member as an officer, director, member, partner,
fiduciary or trustee of another Person,
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provided that such Person shall not be an Indemnitee by reason of
providing, on a fee-for-services basis, trustee, fiduciary or custodial
services, and (vi) any Person the Company designates as an "Indemnitee"
for purposes of this Agreement.
(m) "Initial Directors" shall have the meaning set forth in Section 4.1 of
this Agreement.
(n) "Limited Partnership" means Teekay LNG Partners L.P., a ▇▇▇▇▇▇▇▇ Islands
limited partnership.
(o) "LLC Certificate" shall have the meaning set forth in Section 2.8(a) of
this Agreement.
(p) "Member" means TSC and any Person who, at the time of reference thereto,
has been admitted to the Company as a Member in accordance with this
Agreement, including any Transferee, and shall have the same meaning as
the term "Member" under the Act, but shall not include any Person who has
ceased to be a Member of the Company.
(q) "NYSE" means the New York Stock Exchange.
(r) "Officers" shall have the meaning set forth in Section 4.4(a) of this
Agreement.
(s) "Omnibus Agreement" means that certain Omnibus Agreement, dated as of the
Closing Date, among TSC, the Company, the Limited Partnership, and the
Operating Company.
(t) "Operating Company" means Teekay LNG Operating L.L.C., a ▇▇▇▇▇▇▇▇ Islands
limited liability company, and any successors thereto.
(u) "Person" means a natural person, corporation, partnership, joint venture,
trust, estate, unincorporated association, limited liability company, or
any other juridical entity.
(v) "Transferee" shall have the meaning set forth in Section 2.8(b) of this
Agreement.
(w) "Underwriters" means each Person named as an underwriter in Schedule I to
the Underwriting Agreement.
(x) "Underwriting Agreement" means the Underwriting Agreement to be executed
among the Underwriters, the Limited Partnership, the Company, the
Operating Company, and TSC,
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providing for the purchase of limited partnership interests in the Limited
Partnership by the Underwriters.
1.2 Number and Gender.
As the context requires, all words used herein in the singular number shall
extend to and include the plural, all words used in the plural number shall
extend to and include the singular, and all words used in any gender shall
extend to and include the other gender or be neutral.
2 ORGANIZATION
2.1 Formation.
The Company was formed as a ▇▇▇▇▇▇▇▇ Islands limited liability company on
November 2, 2004 upon the filing of the Certificate pursuant to the Act with the
Republic of the ▇▇▇▇▇▇▇▇ Islands Registrar of Corporations.
2.2 Name.
The name of the Company is "Teekay GP L.L.C." and all Company business shall be
conducted in that name or such other names that comply with applicable law as
the Board of Directors may from time to time designate.
2.3 Purposes.
The purposes for which the Company is established is to engage in any lawful
activity permitted by the Act, including, without limitation, the carrying on of
the Business.
2.4 Registered Office; Registered Agent.
The registered office of the Company required by the Act to be maintained in the
Republic of The ▇▇▇▇▇▇▇▇ Islands shall be the office of the initial registered
agent named in the Certificate or such other office as the Board of Directors
may designate from time to time in the manner provided by law. The registered
agent of the Company required by the Act to be maintained in the Republic of The
▇▇▇▇▇▇▇▇ Islands shall be the initial registered agent named in the Certificate
or such other person or persons as the Board of Directors may designate from
time to time in the manner provided by law.
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2.5 Principal Office.
The principal office of the Company shall be TK House, Bayside Executive Park,
West Bay Street & Blake Road, P.O. Box AP- 59212, Nassau, Bahamas.
2.6 Term.
The Company commenced on November 2, 2004 and shall have perpetual existence,
unless the Company is dissolved in accordance with the Act.
2.7 LLC Certificate; Transfer of Ownership Interest; Pledge of Ownership
Interest.
(a) A Member's ownership of its limited liability company interest in
the Company shall be evidenced by a certificate of limited liability
interest ("LLC Certificate") substantially in the form of Exhibit 2
hereto.
(b) Subject to the provisions of Section 2.8(c) herein, upon the
endorsement by a Member on such LLC Certificate (or on a separate
transfer power) in favor of a third party (a "Transferee") and the
delivery of such Certificate (and such separate power, if
applicable) to such Transferee, such Member shall be deemed to have
assigned and transferred all its right, title and interest in the
Company and in this Agreement to such Transferee and all references
in this Agreement to such Member shall be deemed to refer to such
Transferee, in each case effective as of the date of such
Certificate delivery. A Member's right, title and interest in the
Company shall not be transferred other than as provided in this
Section 2.8(b).
(c) The pledge of, or granting of a security interest, lien or other
encumbrance in or against, any or all of the limited liability
company interest of a Member in the Company shall not cause such
Member to cease to be a Member until the secured party shall have
lawfully exercised its remedies under the security agreement and
completed the endorsement in favor of a Transferee. Until the
exercise of such remedies, the secured party shall not have the
power to exercise any rights or powers of a Member.
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3 CAPITAL CONTRIBUTIONS
3.1 Initial Capital Contributions.
TSC has made an initial capital contribution of U.S.$1,000 to the Company and in
consideration thereof, an LLC Certificate has been issued in favor of TSC as
provided for in Section 2.8 above.
3.2 Additional Capital Contributions.
A Member may contribute such additional sums and/or assets, if any, as it shall
determine in its sole discretion.
3.3 Liability Limited to Capital Contributions.
No Member shall have any obligation to contribute money to the Company with
respect to any liability or obligation of the Company. No Member shall be liable
for the debts, obligations or liabilities of the Company, including, without
limitation, under a judgment, decree or order of a court.
4 MANAGEMENT
4.1 Board of Directors.
Except for decisions or actions requiring the approval of the Members, as
provided in this Agreement or by non-waivable provisions of the Act or
applicable law, 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, a board of directors (the "Board of Directors") comprised of
no less than three (3) and no more than nine (9) Directors. Subject to such
limitations, the exact number of Directors shall be fixed from time to time by
resolution of the Board of Directors and such number may be increased or
decreased from time to time by vote of a majority of the Directors then in
office; provided, however, that the Board of Directors initially shall be
comprised of two Directors (the "Initial Directors"), who shall be appointed by
the Members. No decrease in the number of Directors shall have the effect of
shortening the term of any incumbent Director. The Board of Directors may make
all decisions and take all actions for the Company as in its sole discretion it
shall deem necessary or appropriate to enable the Company to carry out the
purposes for which the Company was formed and to further the interests of the
Members, including, without limitation, the following:
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(a) adopting, by written consent or otherwise, resolutions in the name and on
behalf of the Company (either for the Company itself or for the Company in
its capacity as the general partner of the Limited Partnership)
authorizing any decisions or actions taken pursuant to this Section 4.1;
(b) entering into, making and performing such contracts, agreements,
undertakings and financial guarantees in the name and on behalf of the
Company;
(c) setting aside reserves, opening and maintaining bank and investment
accounts and arrangements, drawing checks and other orders for the payment
of money, and designating individuals with authority to sign or give
instructions with respect to those accounts and arrangements;
(d) collecting sums due to the Company;
(e) selecting, removing, and changing the authority and responsibility of
lawyers, auditors and other advisers and consultants;
(f) (i) creating such committees of the Board of Directors as the Board of
Directors may deem necessary, appropriate or advisable, in its sole
discretion, to carry on the affairs of the Company, including, without
limitation, a conflicts committee, an audit committee and a corporate
governance committee, (ii) selecting and removing (with or without cause,
upon the affirmative vote of a majority of all of the Directors then in
office) the members of such committees (provided, however, that such
committees shall be comprised only of Directors and shall have only as
many members as the Board of Directors deems appropriate, subject to any
rules of the NYSE applicable to the Company), and (iii) changing the
authority and responsibilities of such committees; and
(g) granting signatory authority to and issuing Powers of Attorney in favor of
such persons as it may deem necessary or appropriate to carry out and
implement any decisions or actions taken pursuant to this Section 4.1.
Notwithstanding anything in this Agreement to the contrary, the Board of
Directors shall conduct the affairs and governance of the Company so that (i)
the Company is not a resident of Canada for
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purposes of the Canadian Tax Act and (ii) neither the Company nor the Limited
Partnership is carrying on business in Canada for purposes of the Canadian Tax
Act.
4.2 Board Membership.
(a) The Members shall have full authority unilaterally to appoint, by majority
vote, such individuals to be Directors as they shall choose in their sole
discretion, and to remove and replace, by majority vote, any Director they
appoint to the Board of Directors, with or without cause, at any time and
for any reason, and to fill, by majority vote, any positions created on
the Board of Directors as a result of an increase in the size of the Board
of Directors; provided, however, that (i) each Director shall be a natural
person and (ii) at all times a majority of the Directors shall be persons
who are not residents of Canada for the purposes of the Canadian Tax Act
(except in the case of (A) the Initial Directors, where not more than one
director may be a resident of Canada for purposes of the Canadian Tax Act
and (B) the death, resignation or dismissal of one or more Directors who
are not residents of Canada for purposes of the Canadian Tax Act, provided
that within 21 days of any such death, resignation or dismissal either (1)
the Members shall appoint one or more new non-resident Directors to
replace each non-resident Director who died, resigned or was dismissed, or
(2) one or more Directors who are residents of Canada for purposes of the
Canadian Tax Act shall resign to achieve the required non-resident
majority).
(b) Each Director shall be appointed to serve until his or her successor shall
be appointed and shall qualify or until his or her earlier resignation or
removal.
(c) The Members shall designate one Director to hold the title of Chairman and
one to hold the title of Vice-Chairman. The Vice-Chairman shall report to,
and be subject to the direction of, the Chairman in respect of his duties
for the Company.
4.3 Meetings, Quorum, Voting, Etc.
(a) Meetings of the Board of Directors shall be called by the Secretary of the
Company, or in the absence of the Secretary, by the Chairman of the Board
of Directors, upon request of any Director. Notice of the date, time and
place of each meeting of the Board of Directors shall be given to each
Director at least forty-eight hours prior to such meeting, unless the
notice is given orally or delivered in person, in which case it shall be
given at least twenty-four hours
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prior to such meeting. For the purpose of this Section 4.3(a), notice
shall be deemed to be duly given to a Director if given to him or her
personally (including by telephone) or if such notice be delivered to such
Director by courier service, mail, email, telegraph, cable, telex, or
facsimile, to his or her last known address. Notice of a meeting need not
be given to any Director who submits a signed waiver of notice, whether
before or after the meeting, or who attends the meeting without
protesting, prior to the conduct of any voting thereat, the lack of notice
to him or her. All meetings of the Board of Directors shall take place
outside of Canada.
(b) At all meetings of the Board of Directors, a quorum for the transaction of
business shall be a majority of the Directors then in office provided,
however, that such quorum shall be properly constituted only if a majority
of the Directors included in such quorum are not residents of Canada for
purposes of the Canadian Tax Act.
(c) Directors may participate in a meeting of the Board of Directors by means
of conference call or any similar communications equipment by means of
which all Directors participating in the meeting can hear each other, and
participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. A meeting of the Board of Directors by
means of such a call or any similar communication shall take place only by
means of such a call or communication originated outside of Canada, shall
be properly constituted only if a majority of the Directors participating
in the meeting in person or by such call or communication are not
residents of Canada for purposes of the Canadian Tax Act and a majority of
the Directors participating in the meeting in person or by such call
participate from or at a location outside Canada, and shall be deemed held
at the place from where such call or communication originated.
(d) All decisions to be made and actions to be taken by the Board of Directors
shall be determined by the vote of a majority of the Directors in
attendance at a meeting at which a quorum is present.
(e) Any action which may be taken at a meeting of the Board of Directors may
be taken without a meeting if a consent in writing, setting forth the
action so taken, is signed by all of the Directors then in office. The
action taken by any unanimous consent in writing shall be deemed to have
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occurred when the last Director executing such consent shall have signed
the consent; provided, however, that the last Director to execute such
consent shall not have done so while in Canada.
(f) Unless the Board of Directors shall otherwise provide, any committee of
the Board of Directors may hold meetings at any place outside Canada and
make rules for the conduct of its business as such committee shall from
time to time deem necessary; provided, however, that a majority of the
members of such committee then in office shall be persons who are not
residents of Canada for purposes of the Canadian Tax Act. At all meetings
of a committee of the Board of Directors, a quorum for the transaction of
business shall be a majority of the members then in office provided,
however, that such quorum shall be properly constituted only if a majority
of the members included in such quorum are not residents of Canada for
purposes of the Canadian Tax Act. Each committee shall keep a record of
its proceedings and report the same to the Board of Directors when
required. No committee shall have the power to fill vacancies in the Board
of Directors, or to change the membership of or to fill vacancies in, any
other committee created by the Board of Directors, or to amend or repeal
this Agreement or adopt a new limited liability company agreement, or to
submit to the Member any action requiring its authorization, or to amend
or repeal any resolution of the Board of Directors which by its terms
shall not be amendable or repealable. All meetings of any committee of the
Board of Directors shall be held outside Canada.
4.4 Delegation of Authority and Duties.
(a) The Board of Directors may, from time to time as it deems advisable,
appoint and elect (as well as remove or replace at any time with or
without cause for any reason) (i) a Chief Executive Officer, (ii) a Chief
Financial Officer, (iii) a Secretary and (iv) such other officer positions
assigned to individuals as it may elect (collectively, the "Officers").
Each Officer shall be a natural person who is not a resident of Canada for
purposes of the Canadian Tax Act, and shall be authorized to, and shall,
act in such capacity only outside of Canada. Any two or more offices may
be held by the same person. If so appointed by the Board of Directors, the
Officers shall have the authority and duties as may from time to time be
assigned to them.
(b) In addition, the Board of Directors may, from time to time as it deems
advisable, delegate to one or more natural persons (inclusive of any
Director) such authority and duties as the
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Board of Directors is granted under this Agreement and not made subject to
the approval of the Member by this Agreement, and the Board of Directors
may assign in writing such titles to any such person as it deems
appropriate. Any such person to whom such authority and duties are
delegated by the Board of Directors shall not, during the time that such
authority or duties are delegated, be a resident of Canada for purposes of
the Canadian Tax Act and shall be authorized to, and shall, act in such
capacity only outside of Canada. Any delegation pursuant to this Section
4.4(b) may be revoked at any time by the Board of Directors with or
without cause for any reason.
(c) Unless the Board of Directors decides otherwise, if the title of any
person authorized to act on behalf of the Company under this Section 4.4
is one commonly used for officers of a business corporation formed under
the ▇▇▇▇▇▇▇▇ Islands Business Corporation Act, the assignment of such
title shall constitute the delegation to such person of the authority and
duties that are normally associated with that office, subject to any
specific delegation of, or restriction on, authority and duties made
pursuant to this Section 4.4. Any delegation or restriction pursuant to
this Section 4.4(c) may be revoked at any time by the Board of Directors,
with or without cause for any reason, provided that the Board of Directors
will not be entitled to revoke any restriction relating to the residence
of any person as set out in this Section 4.4.
(d) Unless authorized to do so by this Agreement or by the Board of Directors,
no Director, Officer, agent or employee of the Company shall have any
power or authority to bind the Company in any way, to pledge its credit,
or to render it liable pecuniarily for any purpose. However, the Company
may act by an attorney-in-fact authorized by the Board of Directors,
provided that no such attorney-in-fact shall, while having such authority,
be a resident of Canada for purposes of the Canadian Tax Act and shall not
be authorized to, and shall not, exercise such authority in Canada.
4.5 Execution of Documents.
(a) Any agreements, contracts or other documents or correspondence executed on
behalf of the Company, including an LLC Certificate, shall show the place
of execution and be signed by the individual executing same as follows:
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TEEKAY GP L.L.C.
By: ____________________________
Name
Title
(Place of execution: ________________)
(b) Any agreements, contracts or other documents or correspondence executed by
TSC, in its capacity as sole Member of the Company, including an LLC
Certificate, shall be signed by TSC as follows:
TEEKAY GP L.L.C.
By: Teekay Shipping Corporation, its Sole Member
By: ______________________________________
(Authorized Signatory)
(c) Any agreements, contracts or other documents or correspondence executed by
the Company, either on its own behalf or in its capacity as the general
partner of the Limited Partnership, shall be executed only outside of
Canada.
4.6 Compensation of Directors and Officers.
(a) Members of the Board of Directors shall receive such compensation for
their services to the Company as the Board of Directors or any
compensation committee appointed by the Board of Directors shall
determine. In addition, the Board of Directors or any compensation
committee appointed by the Board of Directors may, from time to time,
authorize the reimbursement by the Company of such expenses (including
travel expenses) as may be incurred by Directors in the performance of
their duties hereunder (including attendance at meetings of the Board of
Directors).
(b) The Officers shall serve with or without such compensation for their
services to the Company as the Board of Directors or any compensation
committee appointed by the Board of Directors thereof shall determine.
4.7 Indemnification.
(a) To the fullest extent permitted by law but subject to the limitations
expressly provided in this Agreement, all Indemnitees shall be indemnified
and held harmless by the Company from
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and against any and all losses, claims, damages, liabilities, joint or
several, expenses (including legal fees and expenses), judgments, fines,
penalties, interest, settlements or other amounts arising from any and all
claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnitee may be involved,
or is threatened to be involved, as a party or otherwise, by reason of its
status as an Indemnitee; provided, that the Indemnitee shall not be
indemnified and held harmless if there has been a final and non-appealable
judgment entered by a court of competent jurisdiction determining that, in
respect of the matter for which the Indemnitee is seeking indemnification
pursuant to this Section 4.7, the Indemnitee acted in bad faith or engaged
in fraud, willful misconduct or gross negligence or, in the case of a
criminal matter, acted with knowledge that the Indemnitee's conduct was
unlawful; provided, further, that no indemnification pursuant to this
Section 4.7 shall be available to TSC or its Affiliates with respect to
its or their obligations incurred pursuant to the Underwriting Agreement,
the Omnibus Agreement or the Contribution Agreement (other than
obligations incurred by TSC on behalf of the Company). Any indemnification
pursuant to this Section 4.7 shall be made only out of the assets of the
Company, it being agreed that the Members shall not be personally liable
for such indemnification and shall have no obligation to contribute or
loan any monies or property to the Company to enable it to effectuate such
indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and
expenses) incurred by an Indemnitee who is indemnified pursuant to this
Section 4.7 in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Company prior to a
determination that the Indemnitee is not entitled to be indemnified upon
receipt by the Company of any undertaking by or on behalf of the
Indemnitee to repay such amount if it shall be determined that the
Indemnitee is not entitled to be indemnified as authorized in this Section
4.7.
(c) The indemnification provided by this section 4.7 shall be in addition to
any other rights to which an Indemnitee may be entitled under any
agreement, as a matter of law or otherwise, both as to actions in the
Indemnitee's capacity as an Indemnitee and as to actions in any other
capacity (including any capacity under the Underwriting Agreement), and
shall continue as to an Indemnitee who has ceased to serve in such
capacity and shall inure to the benefit of the heirs, successors, assigns
and administrators of the Indemnitee.
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(d) The Company may purchase and maintain (or reimburse any Member or its
Affiliates for the cost of) insurance, on behalf of any Member, its
Affiliates and such other Persons as the Board of Directors shall
determine, against any liability that may be asserted against, or expense
that may be incurred by, such Person in connection with the Company's
activities or such Person's activities on behalf of the Company,
regardless of whether the Company would have the power to indemnify such
Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 4.7, the Company shall be deemed to have
requested an Indemnitee to serve as fiduciary of an employee benefit plan
whenever the performance by it of its duties to the Company also imposes
duties on, or otherwise involves services by, it to the plan or
participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable
law shall constitute "fines" within the meaning of Section 4.7(a); and
action taken or omitted by it with respect to any employee benefit plan in
the performance of its duties for a purpose reasonably believed by it to
be in the best interest of the participants and beneficiaries of the plan
shall be deemed to be for a purpose that is in the best interests of the
Company.
(f) In no event may an Indemnitee subject any of the Members to personal
liability by reason of the indemnification provisions set forth in this
Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part
under this Section 4.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 4.7 are for the benefit of the Indemnitees,
their heirs, successors, assigns and administrators and shall not be
deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 4.7 or any provision
hereof shall in any manner terminate, reduce or impair the right of any
past, present or future Indemnitee to be indemnified by the Company, nor
the obligations of the Company to indemnify any such Indemnitee under and
in accordance with the provisions of this Section 4.7 as in effect
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immediately prior to such amendment, modification or repeal with respect
to claims arising from or relating to matters occurring, in whole or in
part, prior to such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
4.8 Liability of Indemnitees.
(a) No Indemnitee shall be personally liable for the debts and obligations of
the Company.
(b) Notwithstanding anything to the contrary set forth in this Agreement, no
Indemnitee shall be liable for monetary damages to the Company for losses
sustained or liabilities incurred as a result of any act or omission of an
Indemnitee unless there has been a final and non-appealable judgment
entered by a court of competent jurisdiction determining that, in respect
of the matter in question, the Indemnitee acted in bad faith or engaged in
fraud, willful misconduct or gross negligence or, in the case of a
criminal matter, acted with knowledge that the Indemnitee's conduct was
criminal.
(c) To the full extent that the Act permits the limitation or elimination of
liability of Directors, a Director shall not be liable to the Company or
its Members for monetary damages for breach of fiduciary duty as a
Director.
(d) Any amendment, modification or repeal of this Section 4.8 or any provision
hereof shall be prospective only and shall not in any way affect the
limitations on the liability of the Indemnitees under this Section 4.8 as
in effect immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in whole
or in part, prior to such amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
5 DISTRIBUTIONS
5.1 Distributions/Available Cash.
The Board of Directors shall in its sole discretion determine from time to time
to what extent (if any) the Company's cash on hand exceeds the current and
anticipated needs of the Company. To the extent any such excess exists, the
Board of Directors may make distributions to the Members, subject to the Act.
15
6 BOOKS AND RECORDS; FISCAL YEAR; BANK ACCOUNTS; TAX MATTERS
6.1 Books and Records.
The books and records of the Company shall, at the cost and expense of the
Company, be kept by the Company at the principal office of the Company or at
such other location outside Canada as the Board of Directors may from time to
time determine.
6.2 Fiscal Year.
Unless otherwise determined by the Board of Directors, the Company's books and
records shall be kept on a December 31 calendar year basis and shall reflect all
Company transactions and be appropriate and adequate for conducting the
Company's affairs.
6.3 Bank Accounts.
All funds of the Company will be deposited in its name in an account or accounts
maintained outside Canada with such bank or banks selected by the Board of
Directors. Checks shall be drawn upon the Company account or accounts only for
the purposes of the Company and may be signed by such persons (none of whom are
residents of Canada) as may be designated by the Board of Directors.
6.4 Tax Matters.
TSC intends and acknowledges that, for so long as it remains the sole Member of
the Company, the Company shall be disregarded as a separate entity from TSC for
U.S. federal income tax purposes and TSC shall file such elections with the U.S.
federal tax authorities as may be required to assure such tax status.
7 MISCELLANEOUS
7.1 Complete Agreement.
This Agreement and the exhibits hereto constitute the complete and exclusive
statement of the agreement regarding the operation of the Company and replace
and supersede all prior agreements regarding the operation of the Company.
16
7.2 Governing Law.
This Agreement and the rights of the parties hereunder will be governed by,
interpreted, and enforced in accordance with the laws of the ▇▇▇▇▇▇▇▇ Islands
without giving regard to principles of conflicts of law.
7.3 Headings.
All headings herein are inserted only for convenience and ease of reference and
are not to be considered in the construction or interpretation of any provision
of this Agreement.
7.4 Severability.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under the present or future laws effective during the term of this
Agreement, such provision will be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
7.5 No Third Party Beneficiary.
This Agreement is made solely and specifically for the benefit of the Members
and their successors and assigns and no other Persons shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
7.6 Amendment.
All amendments to this Agreement must be in writing and signed by all of the
Members.
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WHEREFORE, this Second Amended and Restated Limited Liability Company
Agreement has been executed by a duly authorized representative of TSC, as sole
Member, as of the date first set forth above.
TEEKAY SHIPPING CORPORATION
By: ______________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-in-Fact
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Exhibit 1
CERTIFICATE OF FORMATION
OF
TEEKAY GP L.L.C.
UNDER SECTION 9 OF THE ▇▇▇▇▇▇▇▇ ISLANDS LIMITED LIABILITY COMPANY ACT
1. The name of the Limited Liability Company is: Teekay GP L.L.C.
2. The address of its registered agent in the ▇▇▇▇▇▇▇▇ Islands is Trust
Company Complex, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇. The name of its registered agent at such address is The Trust
Company of the ▇▇▇▇▇▇▇▇ Islands, Inc.
3. The formation date of the Limited Liability Company is the date of the
filing of this Certificate of Formation with the Registrar of
Corporations.
WHEREFORE, the undersigned has executed this Certificate of Formation on
the 2nd day of November, 2004.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Authorized Person
Exhibit 2
CERTIFICATE OF LIMITED LIABILITY INTEREST
OF
TEEKAY GP L.L.C.
FORMED UNDER THE LAWS OF THE REPUBLIC OF THE ▇▇▇▇▇▇▇▇ ISLANDS
This Certificate evidences the ownership of [-] of [-]% of the limited liability
company interests in Teekay GP L.L.C. (the "Company") subject to the Certificate
of Formation and the Second Amended and Restated Limited Liability Company
Agreement of the Company.
Witness, the signature of the Company.
Dated: TEEKAY GP L.L.C.
By: _________________________
Name:
Title:
For value Received, the undersigned hereby sells, assigns and transfers unto
_____________ all of its limited liability company ownership interest in
TEEKAY GP L.L.C. as is represented by the within Certificate.
Dated:
By: ________________________
In Presence of ________________