EXHIBIT 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
PASUG LLC
DATED AS OF OCTOBER 23, 2002
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION......................................................1
Section 1.1 Definitions.......................................................................1
Section 1.2 Rules of Construction.............................................................3
ARTICLE 2 GENERAL PROVISIONS REGARDING LLC FORMATION.................................................4
Section 2.1 Conversion........................................................................4
Section 2.2 Name..............................................................................4
Section 2.3 Certificates......................................................................4
Section 2.4 Purpose...........................................................................4
Section 2.5 Place of Business; Books and Records..............................................5
Section 2.6 Registered Office and Registered Agent............................................5
Section 2.7 Annual Financial Statements.......................................................5
Section 2.8 Tax Returns.......................................................................5
Section 2.9 U.S. Withholding Tax..............................................................5
Section 2.10 Certain Tax Elections.............................................................6
ARTICLE 3 OWNERSHIP AND CAPITAL CONTRIBUTIONS........................................................6
Section 3.1 Ownership.........................................................................6
Section 3.2 Additional Contributions..........................................................6
Section 3.3 No Right to Return of Capital Contribution........................................6
Section 3.4 Certification.....................................................................6
Section 3.5 Stated Capital....................................................................7
Section 3.6 Return of Stated Capital..........................................................7
Section 3.7 Return on Shares..................................................................7
ARTICLE 4 COMMON SHARES..............................................................................7
Section 4.1 Voting Rights.....................................................................7
Section 4.2 Dividends.........................................................................8
Section 4.3 Entitlement on Dissolution........................................................8
ARTICLE 5 LIMITATIONS ON PAYMENTS TO SHAREHOLDERS....................................................8
Section 5.1 Limitations on Payment of Dividends...............................................8
Section 5.2 Limitations on Return of Stated Capital...........................................8
TABLE OF CONTENTS
(CONTINUED)
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Section 5.3 General Limitation................................................................9
ARTICLE 6 MEETINGS OF THE SHAREHOLDERS...............................................................9
Section 6.1 Shareholder Meetings..............................................................9
Section 6.2 Place of Meetings.................................................................9
Section 6.3 Notice of Meetings................................................................9
Section 6.4 Waiver............................................................................9
Section 6.5 Record Date.......................................................................9
Section 6.6 Quorum...........................................................................10
Section 6.7 Attendance.......................................................................10
Section 6.8 Voting...........................................................................10
ARTICLE 7 MANAGEMENT BY BOARD OF DIRECTORS..........................................................10
Section 7.1 Management Generally.............................................................10
Section 7.2 Qualification, Removal and Resignation...........................................11
Section 7.3 Power and Authority of Directors.................................................11
Section 7.4 Board Meetings...................................................................12
Section 7.5 Compensation of the Directors....................................................14
Section 7.6 Administrative Services..........................................................14
Section 7.7 Officers.........................................................................14
Section 7.8 Reliance by Board, Officers and Agents...........................................16
ARTICLE 8 INDEMNIFICATION AND LIMITED LIABILITY.....................................................16
Section 8.1 Indemnification..................................................................16
Section 8.2 Insurance........................................................................17
Section 8.3 Limited Liability................................................................17
ARTICLE 9 TRANSFERABILITY OF SHARES AND ADMISSION OF SHAREHOLDERS...................................18
Section 9.1 Transfer of Shares...............................................................18
Section 9.2 Admission of Additional Shareholders.............................................18
ARTICLE 10 TERMINATION AND DISSOLUTION...............................................................18
Section 10.1 Events of Dissolution............................................................18
Section 10.2 Distribution upon Liquidation....................................................19
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TABLE OF CONTENTS
(CONTINUED)
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Section 10.3 Liquidating Distributions........................................................19
Section 10.4 Distributions in Kind............................................................19
Section 10.5 Certificate of Cancellation......................................................19
ARTICLE 11 Miscellaneous.............................................................................20
Section 11.1 Limited Liability................................................................20
Section 11.2 Governing Law; Severability......................................................20
Section 11.3 Notices..........................................................................20
Section 11.4 Waiver...........................................................................21
Section 11.5 Further Action...................................................................21
Section 11.6 Changes in Writing...............................................................21
Section 11.7 Term and Termination.............................................................21
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PASUG LLC
LIMITED LIABILITY COMPANY AGREEMENT
THIS LIMITED LIABILITY COMPANY AGREEMENT is dated as of October 23,
2002 (the "Effective Date"), by 3038482 Nova Scotia Company, a corporation
incorporated under the Canada Business Corporations Act (the "Initial
Shareholder").
WHEREAS, on December 22, 1999, PASUG Inc., a Delaware corporation (the
"Corporation"), was incorporated pursuant to the General Corporation Law of the
State of Delaware (8 Del. C. Section 101, et seq.) (the "General Corporation
Law");
WHEREAS, 3038482 Nova Scotia Company intended the Corporation to be
formed as a limited liability company under the Delaware Act;
WHEREAS, 3038482 Nova Scotia Company discovered this error and desires
to take such steps as are necessary under the Delaware Act and the General
Corporation Law to cause the Corporation to become a limited liability company
under the Delaware Act;
WHEREAS, the board of directors and 3038482 Nova Scotia Company, the
sole stockholder of the Corporation, have approved (i) the conversion of the
Corporation to the Company (the "Conversion") pursuant to Sections 228 and 266
of the General Corporation Law and Section 18-214 of the Delaware Act, and (ii)
the adoption of this Agreement, which shall govern the Company upon the
effectiveness of the Conversion;
WHEREAS, the purpose of the Company will be to invest funds in debt
securities of corporations or other business entities and to conduct any and all
activities incidental or ancillary thereto; and
WHEREAS, it is intended that the Company will be disregarded for United
States federal, state and local income tax purposes pursuant to Treas. Reg.
Section 301.7701-3(b).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, rights and obligations set forth in this Agreement, the benefits to
be derived therefrom and other good and valuable consideration, the receipt and
the sufficiency of which are hereby acknowledged and recognized by the
Shareholders (as defined herein), the Shareholders intending to be legally bound
hereby agree as follows:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS.
For purposes of this Agreement, the terms defined in this Article 1
shall have the following meanings and the capitalized terms defined in the
recitals and subsequent Sections shall by inclusion in quotation marks and
parentheses have the meanings thereby ascribed to them.
"Additional Shareholder" has the meaning set forth in Section 9.2.
"Agreement" means this Limited Liability Company Agreement, as amended
from time to time.
"Authorized Signatory" means any Person designated as such by the
Board.
"Board" has the meaning set forth in Section 7.2.
"Capital Amount" in respect of a Share held by the Initial Shareholder
shall be deemed to be the cost basis of the Initial Shareholder's shares of
capital stock of the Corporation, which amount shall be the capital contribution
of the Initial Shareholder to the Company, and in respect of a Share of a class
held by any other Shareholder shall be the amount of a Shareholder's capital
contribution in respect of such Share, which amount shall be recorded and
maintained by the Company in Canadian dollars.
"Common Share" shall mean a Share in the Company to which is attached
the rights and privileges set out in Article 4.
"Delaware Act" means the Delaware Limited Liability Company Act,
Delaware Code Title 6, Sections 18-101, et seq., or any successor statute
thereto, as in effect from time to time.
"Director" has the meaning set forth in Section 7.2.
"Dividend" means any pro rata distribution to Shareholders of a class
of Shares other than a return of some or all of the Stated Capital in respect of
a Share.
"Effective Date" has the meaning set forth in the first paragraph of
this Agreement.
"Fiscal Year" means the Company's accounting period for federal income
tax and financial reporting purposes, which shall be, until modified by the
Board, the twelve-month period (or such shorter period from formation) ending
each December 31, commencing with January 1, 2002.
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time, applied on a consistent basis
both as to classification of items and amounts.
"Indemnitee" shall have the meaning set forth in Section 8.1.
"Initial Shareholder" has the meaning set forth in the first paragraph
of this Agreement.
"Liquidation" means (i) when used with reference to the Company, the
date upon which the Company ceases to be a going concern, and (ii) when used
with reference to the Shareholders, the earlier of (a) the date upon which there
is a Liquidation of the Company and (b) the date upon which the Shareholders'
entire interest in the Company is terminated other than by transfer, assignment
or other disposition to a Person other than the Company.
"Liquidator" has the meaning given to it in Section 10.2.
"Officer" has the meaning set forth in Section 7.7.
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"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization, firm,
business, trust or other entity or unincorporated organization, domestic or
foreign, including a municipality, county, state, body politic or other
government or any subdivision or agency thereof.
"Proceeding" shall have the meaning set forth in Section 8.1.
"Share" means a limited liability company interest in the Company held
by a Shareholder for the purposes of the Delaware Act. Subject to these articles
and the Delaware Act, Shares may be issued in separate classes, each such class
having its own distinctive rights and privileges.
"Shareholder" means a member of the Company for purposes of the
Delaware Act, including, without limitation, the Initial Shareholder and any
Additional Shareholders admitted under the provisions of Article 9, if any.
"State" means a State in the United States of America.
"Stated Capital" in respect of the Share of a class shall be the amount
recorded in the Stated Capital account of such Shares from time to time as
defined in Section 3.6, which amount shall be recorded in Canadian dollars.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
Delaware and any other applicable jurisdiction.
SECTION 1.2 RULES OF CONSTRUCTION.
For purposes of this Agreement (including all exhibits, schedules and
amendments), unless the context otherwise requires, (i) all terms defined herein
include the plural as well as the singular, (ii) the masculine, feminine or
neuter gender include the others whenever the context so requires, (iii) all
accounting terms used herein but not otherwise defined herein have the meaning
given to them under GAAP, and (iv) references to any Person include successors
of such Person by consolidation and merger and transferees of all or
substantially all its assets (provided that such successor has duly assumed in
writing all such Person's obligations, if any, hereunder). Reference to Articles
and Sections are, unless otherwise specified, to Articles and Sections of this
Agreement. Words such as "herein," "hereinafter," "hereof," "hereto," "hereby"
and "hereunder," and words of like import refer to this Agreement unless the
context requires otherwise. References herein to any agreement or other
instrument shall, unless the context otherwise requires (or the definition
thereof otherwise specifies), be deemed references to the same as it may from
time to time be changed, amended or extended in accordance with its terms.
Neither the captions to Articles, Sections or subdivisions thereof nor the Table
of Contents shall be deemed to be a part of this Agreement.
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ARTICLE 2
GENERAL PROVISIONS REGARDING LLC FORMATION
SECTION 2.1 CONVERSION.
Pursuant to and in accordance with the General Corporation Law and the
Delaware Act, the board of directors of the Corporation, with the consent of
3038482 Nova Scotia Company, as the sole stockholder of the Corporation, hereby
(a) convert the Corporation to a Delaware limited liability company having the
same assets and liabilities as the Corporation and (b) continue the Corporation
as a Delaware limited liability company, by filing, or causing to be filed, the
Certificate of Conversion of PASUG Inc. to PASUG LLC (the "Certificate of
Conversion") and the Certificate of Formation of PASUG LLC (the "Certificate of
Formation") with the Secretary of State of the State of Delaware and entering
into this Agreement. Simultaneously with the Conversion, (i) this Agreement
shall become effective and supersede and replace the Certificate of
Incorporation of the Corporation and the By-Laws of the Corporation, (ii) all
shares of common stock, par value $.01 per share, of the Corporation issued and
outstanding immediately prior to the Conversion shall, pursuant to the
Conversion, become Common Shares of the Company and 3038482 Nova Scotia Company,
the sole stockholder of the Corporation, shall automatically become the Initial
Shareholder owning 100% of the limited liability company interests of the
Company, and (iii) the Initial Shareholder, as the sole member of the Company,
shall continue the business of the Corporation without dissolution in the form
of a Delaware limited liability company governed by this Agreement. In
accordance with Section 18-214(g) of the Delaware Act, the Company shall
constitute a continuation of the existence of the Corporation in the form of a
Delaware limited liability company and, for all purposes of the laws of the
State of Delaware, shall be deemed to be the same entity as the Corporation.
SECTION 2.2 NAME.
The name of the Company formed hereby shall be PASUG LLC.
SECTION 2.3 CERTIFICATES.
▇▇▇ ▇. ▇▇▇▇▇, as an authorized person within the meaning of the
Delaware Act, shall execute, deliver and file the Certificate of Formation and
the Certificate of Conversion with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate of Formation and the Certificate of
Conversion with the Secretary of State of the State of Delaware, his powers as
an authorized person shall cease and the Initial Shareholder and each Authorized
Signatory, if any, acting individually or collectively, thereupon are the
designated "authorized persons" within the meaning of the Delaware Act, and are
hereby authorized to execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in a jurisdiction in which the Company may wish to conduct business.
SECTION 2.4 PURPOSE.
The Company is formed for the purpose of investing funds in debt
securities of corporations or other business entities and disposing of such
securities, together with any and all activities incidental or ancillary
thereto.
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SECTION 2.5 PLACE OF BUSINESS; BOOKS AND RECORDS.
The Company shall maintain its principal place of business at ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ or such other place or places as may be
designated from time to time by the Board. The Company's books and records shall
be kept on the accrual basis. The Company shall maintain its books and records
in US dollars.
SECTION 2.6 REGISTERED OFFICE AND REGISTERED AGENT.
The name and address of the Company's registered agent in the State of
Delaware is The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The address of the Company's registered
office in Delaware is The Corporation Trust Company, Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The registered agent and
registered office of the Company may be changed from time to time as the Board
may determine.
SECTION 2.7 ANNUAL FINANCIAL STATEMENTS.
Within one hundred twenty days after the close of each Fiscal Year,
annual financial statements for the Company, including statements of assets and
liabilities, income statements, and such other statements as are commonly
included in financial statements, shall be prepared and delivered to each of the
Shareholders. As provided for in Section 2.5, the annual financial statements
for the Company shall be presented in US dollars.
SECTION 2.8 TAX RETURNS.
As soon as possible following the close of each year of the Company,
the income tax return for the Company shall be prepared by such Persons as may
be selected by the Directors. In addition, within ninety (90) days after the end
of each Fiscal Year, the Company will cause to be delivered to each Person who
was a Shareholder at any time during such Fiscal Year any information with
respect to the Company as may be necessary for the preparation of such
Shareholder's U.S. federal or state, and Canadian federal or provincial income
tax returns.
SECTION 2.9 U.S. WITHHOLDING TAX.
Any amounts of United States non-resident withholding tax in respect of
payments made to the Company for which any Shareholder becomes liable under
United States federal income tax law shall be paid or remitted by the Company on
behalf of such Shareholder to the United States federal taxation authority in
the prescribed manner and within the prescribed period.
Where the obligation to remit any amount of United States non-resident
withholding tax on behalf of a Shareholder arises on the payment of a Dividend
or return of Stated Capital to that Shareholder, the Company shall withhold the
amount from such Dividend payment or return of Stated Capital and remit the
amount to the United States federal taxation authority. Any amount otherwise
paid or remitted by the Company to the United States federal taxation authority
in respect of any amount of United States withholding tax of a Shareholder shall
give rise to a non-interest bearing obligation of that Shareholder, payable to
the Company on demand, of an equal principal amount.
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SECTION 2.10 CERTAIN TAX ELECTIONS.
The Shareholders shall treat the Company as a disregarded entity for
United States federal, state and local income tax purposes pursuant to Treas.
Reg. Section 301.7701-3(b) and shall not make an election pursuant to Treas.
Reg. Section 301.7701-3(c) to treat the Company as an association for United
States federal, state and local income tax purposes.
ARTICLE 3
OWNERSHIP AND CAPITAL CONTRIBUTIONS
SECTION 3.1 OWNERSHIP.
(a) The limited liability company interests in the Company will be designated as
Shares. Each Person who makes a capital contribution to the Company shall become
entitled to that number and class of Shares as determined by the Board. Each
Share shall entitle its holder to the rights and privileges attaching to such
Share as provided for in this Agreement. Upon the effectiveness of the
Conversion, the Company shall have no outstanding Shares other than the
1829.93875 Common Share(s) held by the Initial Shareholder and shall have no
other classes of Shares other than the Common Share(s). The Board, in its sole
discretion, may issue additional Shares and create additional classes of Shares.
The rights, powers and preferences of any additional class of Shares shall be
set forth in a supplement to this Agreement executed by the Board. Any such
supplement may be adopted by the Board without the consent of any Shareholder
and shall be incorporated into, and made a part of, this Agreement.
(b) The Company shall, as an entity, be the owner of the property and rights
held by it. A Shareholder has no interest in specific Company property,
including property conveyed by a Shareholder to the Company.
(c) To the fullest extent permitted by law, no Shareholder shall have a right to
a partition of any Company property or properties.
SECTION 3.2 ADDITIONAL CONTRIBUTIONS.
No Shareholder can be required to contribute cash or property to the
Company without such Shareholder's agreement or consent.
SECTION 3.3 NO RIGHT TO RETURN OF CAPITAL CONTRIBUTION.
No Shareholder shall have the right to withdraw or to demand the return
of all or any part of such Shareholder's capital contribution to the Company,
except as expressly provided in this Agreement. The Company shall not be liable
to any Shareholder for repayment of its capital contribution.
SECTION 3.4 CERTIFICATION.
(a) Shares shall be securities governed by Article 8 of the U.C.C. and shall be
evidenced by share certificates issued by the Company ("Share Certificates"), a
form of which is attached hereto as Exhibit A, each of which shall bear the
following legend: "This share certificate evidences a limited liability company
interest in PASUG LLC, which is governed by Article 8 of the Uniform Commercial
Code as in effect in the State of Delaware and any other applicable
6
jurisdiction." Share Certificates shall be signed by an Authorized Signatory and
shall be in such form as the Board determines. Such determination shall be
conclusively evidenced by the signature of the Authorized Signatory on each
Share Certificate. The certificated interests shall be in registered form within
the meaning of Article 8 of the U.C.C. Each certificate shall contain on its
face:
(i) the name of the Company;
(ii) a statement that the Company is formed under the laws of the
State of Delaware;
(iii) the name of the Shareholder to whom it is issued;
(iv) the number and class of Shares that the certificate
represents; and
(v) a conspicuous statement that the transfer of the Shares
evidenced by the certificate are subject to certain
restrictions provided for in this Agreement.
(b) Subject to the rights of the existing Shareholders as set forth in this
Agreement, additional Share Certificates may be issued to an Additional
Shareholder only upon the admission of such Additional Shareholder pursuant to
Article 9 of this Agreement.
SECTION 3.5 STATED CAPITAL.
The Company shall maintain a separate account (the "Stated Capital"
account) for each class of Shares that it issues. On the issue of Shares of a
particular class, there shall be added to the Stated Capital account of that
class the Capital Amounts related to such shares. There shall be deducted from
the Stated Capital account of a class of Share such amount of the Stated Capital
of that class as was reduced and paid to the Shareholders pursuant to this
Agreement.
SECTION 3.6 RETURN OF STATED CAPITAL.
Subject to Section 2.8 and Article 5, the Board may reduce the Stated
Capital in respect of a class of Shares for purposes of distributing such Stated
Capital to the Shareholders in an amount not exceeding the Stated Capital of
such Shares.
SECTION 3.7 RETURN ON SHARES
No Shareholder shall be entitled to a return on any Shares not
specified in this Agreement.
ARTICLE 4
COMMON SHARES
SECTION 4.1 VOTING RIGHTS
Each holder of Common Shares shall be entitled to receive notice of and
to attend all Shareholder meetings and to vote thereat, except meetings at which
only holders of Shares other than Common Shares are entitled to vote. At
meetings at which holders of Common Shares
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are entitled to vote, each holder of Common Shares shall be entitled to one vote
in respect of each Common Share held.
The holders of the Common Shares shall be entitled to vote as one class
to approve a merger or consolidation of the Company with or into one or more
limited liability companies or other business entities, and on such other
matters that require a vote of the Common Shares as either this Agreement, the
Delaware Act or the Board may determine.
SECTION 4.2 DIVIDENDS
The holders of the Common Shares shall be entitled, subject to the
rights, privileges, restrictions and conditions attaching to any other Shares,
and subject to Article 5 and Section 2.9 to receive any Dividend declared by the
Company.
SECTION 4.3 ENTITLEMENT ON DISSOLUTION
The holders of the Common Shares shall be entitled, subject to the
rights, privileges, restrictions and conditions attaching to any other Shares,
and subject to Article 10, to receive the remaining property of the Company on a
liquidation, dissolution or winding-up of the Company, whether voluntary or
involuntary.
ARTICLE 5
LIMITATIONS ON PAYMENTS TO SHAREHOLDERS
SECTION 5.1 LIMITATIONS ON PAYMENT OF DIVIDENDS
The Board shall not declare or pay a Dividend on Shares if there are
reasonable grounds for believing that:
(a) the Company is or, after the Dividend, would be unable to pay its
liabilities as they become due; or
(b) after the Dividend, the realizable value of the Company's assets would be
less than the aggregate of
(i) its liabilities; and
(ii) the Stated Capital of each outstanding class of Shares.
SECTION 5.2 LIMITATIONS ON RETURN OF STATED CAPITAL
The Board shall not reduce the Stated Capital in respect of a class of
Shares for purposes of distributing such Stated Capital to the Shareholders if
there are reasonable grounds for believing that:
(a) the Company is or, after the taking of such action, would be unable to pay
its liabilities as they become due; or
(b) after taking such action, the realizable value of the Company's assets would
be less than the aggregate of its liabilities.
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SECTION 5.3 GENERAL LIMITATION
Notwithstanding any provision in this Agreement, the Directors shall
not declare and pay a Dividend or make a return of Stated Capital to any
Shareholder if such Dividend or return of Stated Capital would violate the
Delaware Act or other applicable law.
ARTICLE 6
MEETINGS OF THE SHAREHOLDERS
SECTION 6.1 SHAREHOLDER MEETINGS.
Meetings of the Shareholders may be called for any purpose at any time
by the Board, or by Shareholders holding at least 10% of the total Shares of the
Company that carry the right to vote at the meeting sought.
SECTION 6.2 PLACE OF MEETINGS.
Meetings of the Shareholders (if more than one), shall be held at the
principal office of the Company or at any other such place, within or without
the State of Delaware, as the Shareholders may designate. Any Shareholder may
participate in any such meeting by means of conference telephone or other
communications equipment.
SECTION 6.3 NOTICE OF MEETINGS.
Written notice of each meeting of the Shareholders, stating the time
when and place where it is to be held, shall be served either personally or by
mail. Such notice shall be served not less than three (3) nor more than sixty
(60) days before the meeting, on each Shareholder of record entitled to vote at
such meeting. Notice of a meeting shall state the purpose or purposes for which
the meeting is called and shall indicate that it is being issued by the Person
calling the meeting. If by mail, such notice shall be directed to each such
Shareholder at its address, as it appears on the records of the Company, unless
it shall have previously filed with the Company a written request that notices
intended for such Shareholder be mailed to some other address, in which event,
it shall be mailed to the address designated in such request.
SECTION 6.4 WAIVER.
Notice of any meeting need not be given to any Shareholder who submits
a signed waiver of notice either before or after a meeting. The attendance of
any Shareholder at a meeting, in person or by proxy, shall constitute a waiver
of notice by such Shareholder.
SECTION 6.5 RECORD DATE.
For the purpose of determining the Shareholders entitled to notice of
or to vote at any meeting of Shareholders or any adjournment thereof, or to
express consent to or dissent of any proposal without a meeting, or for the
purpose of determining the Shareholders entitled to receive payment of any
distribution or the allotment of any rights or for the purpose of any other
action, the Board shall fix in advance, a date as a record date for any
determination of such Shareholders. Such date shall not be more than sixty (60)
nor less than three (3) days before the date of such meeting, nor more than
sixty (60) days prior to any other action.
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SECTION 6.6 QUORUM.
At all meetings of the Shareholders, the presence at the commencement
of such meeting, in person or by proxy, of Shareholders owning a majority of the
Shares as of the close of business on the last day of the immediately preceding
Fiscal Year and entitled to vote at such meeting shall be necessary to
constitute a quorum for the transaction of any business. The withdrawal of any
Shareholder after the commencement of a meeting shall have no effect on the
existence of a quorum, after a quorum has been established at such meeting.
SECTION 6.7 ATTENDANCE.
The only Persons entitled to be present at a meeting of Shareholders
shall be those entitled to vote thereat, the Directors and others who, although
not entitled to vote, are entitled or required under any provision of the
Delaware Act or this Agreement to be present at the meeting. Any other Person
may be admitted only on the invitation of an Officer or with the consent of the
meeting.
SECTION 6.8 VOTING.
(a) Except as otherwise provided by this Agreement, by statute or by the
Certificate forming this Company, all Company action required to be taken by
vote of a particular class of the Shareholders, shall be authorized by a
majority of votes cast at a meeting of the Shareholders of that class.
(b) Except as otherwise provided by this Agreement or by statute, at each
meeting of Shareholders, each Shareholder holding Shares of a class entitled to
vote shall be entitled to one vote in respect of each such Share held.
(c) Each Shareholder entitled to vote or to express consent or dissent without a
meeting, may do so by proxy; provided, however, the instrument authorizing such
proxy to act shall have been executed in writing by the Shareholder itself, or
by its attorney-in-fact duly authorized in writing. No proxy shall be voted or
acted upon after eleven months. The proxy shall be delivered to the Board at the
meeting and shall be filed with the records of the Company. Every proxy shall be
revocable at the pleasure of the Shareholder executing it, unless the proxy
states that it is irrevocable, except as otherwise provided by law.
(d) Any action that may be taken by vote may be taken without a meeting on
written consent. Such action shall constitute action by such Shareholders with
the same force and effect as if the same had been approved at a duly called
meeting of the Shareholders and evidence of such approval signed by all of the
Shareholders shall be inserted in the records of the Company.
ARTICLE 7
MANAGEMENT BY BOARD OF DIRECTORS
SECTION 7.1 MANAGEMENT GENERALLY
The management of the Company shall be vested exclusively in the Board.
The Shareholders, in such capacity, shall have no part in the management of the
Company and shall
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have no authority or right to act on behalf of or bind the Company in connection
with any matter, except certain tax matters as deemed necessary or appropriate
by the Board.
SECTION 7.2 QUALIFICATION, REMOVAL AND RESIGNATION.
(a) Except as otherwise provided in this Agreement, the business and affairs of
the Company shall be managed by or under the direction of a Board of Directors
(the "Board") comprised of at least one (1) director (each, a "Director" and
collectively, the "Directors"), which number may be changed as determined from
time to time by the Shareholders. Directors shall have the status of managers
within the meaning of Section 18-101(10) of the Delaware Act. Initially, the
Board shall have one (1) Director. The persons listed in Annex A hereto as
Director is hereby designated as the initial Board of the Company.
(b) No person shall be elected or appointed a Director if that person is less
than 18 years of age, of unsound mind and has been found so by a Court of the
United States or elsewhere, is not an individual, or has the status of a
bankrupt. A Director need not hold Shares or be a Shareholder.
(c) A Director may be removed with or without cause by the agreement of the
majority of the Shareholders entitled to vote. If, as a result of the removal,
resignation or death of any Director, a vacancy occurs in the Board, such
vacancy shall be filled by a candidate nominated by a Shareholder and approved
by a majority vote of the Shareholders entitled to vote. Such an approved
candidate shall serve as a Director until the next meeting of the Shareholders
or until removed pursuant to the terms of this Agreement.
SECTION 7.3 POWER AND AUTHORITY OF DIRECTORS.
(a) The Board shall direct or supervise the general management of the Company in
accordance with the objects and purposes of the Company contemplated by Section
2.4. Subject to and in accordance with this Agreement, the Board shall have
authority to:
(i) adopt forms of security certificates and company records;
(ii) authorize the issue of Shares;
(iii) appoint Officers;
(iv) appoint one or more auditors of the Company;
(v) make banking arrangements for the Company;
(vi) declare and pay Dividends on the Shares;
(vii) authorize and pay a return of Stated Capital on the Shares;
and
(viii) transact any other business.
All determinations, decisions and actions made or taken by the Board
shall be conclusive and absolutely binding upon the Company, the Shareholders
and their respective successors, assigns and personal representatives.
11
(b) The Shareholders agree that all determinations, decisions and actions made
or taken by the Board (or its designee(s)) shall be conclusive and absolutely
binding upon the Company, the Shareholders (but only in their capacity as such)
and their respective successors, assigns and personal representatives.
(c) The Company, and the Initial Shareholder, or any Director of Officer on
behalf of the Company may enter into and perform the (i) Agreement to Waive
Interest, by and among Gerdau GTL Spain, S.L., Gerdau Steel Inc., Gerdau
Courtice Steel Inc., Gerdau MRM Steel Inc., Gerdau MRM Holdings Inc., 3038482
Nova Scotia Company, GUSAP Partners, the Company, Gerdau USA Inc., and GTL
Financial Corp. B.V., (ii) the Amended and Restated Security Co-ordination
Agreement by and among Gerdau Courtice Steel Inc., Gerdau MRM Steel Inc., GUSAP
Partners, Gerdau Steel Inc., Gerdau MRM Holdings Inc., ▇▇▇▇▇▇ Bros. Corporation,
Gerdau USA Inc., ▇▇▇▇▇▇ ▇.▇., 3038482 Nova Scotia Company, the Company and The
Toronto-Dominion Bank, (iii) the Confirmation of Security Agreement among Gerdau
Steel Inc., Gerdau USA Inc., the Company, 3038482 Nova Scotia Company and The
Toronto-Dominion Bank, (iv) the Confirmation of the Security Agreement among the
Company, 3038482 Nova Scotia Company and Toronto-Dominion Bank, (v) the
Confirmation of Security Agreement among Gerdau Steel Inc., Gerdau Courtice
Steel Inc., Gerdau Holdings Inc., Gerdau MRM Steel Inc., ▇▇▇▇▇▇ Bros.
Corporation, GUSAP Partners, 3038482 Nova Scotia Company, the Company, Gerdau
USA Inc., 4104315 Canada Limited, Gerdau Nova Scotia Holding Company and ▇▇▇▇▇▇
▇.▇., (vi) the Debt Reorganization Agreement among the Gerdau Group Members (as
defined therein) and The Toronto-Dominion Bank, (vii) the Daylight Loan
Agreement among Toronto-Dominion Bank, Gerdau MRM Steel Inc., Gerdau USA Inc.,
GUSAP Partners, ▇▇▇▇▇▇▇ Nova Scotia Company and the Company, (viii) the
Acknowledgement of Deposit, by and between the Company and Toronto-Dominion Bank
and all documents, agreements, certificates, or financing statements
contemplated thereby or related thereto, all without further act, vote or
approval of any Shareholder, Director, Officer or other Person notwithstanding
any other provision of this Agreement, the Delaware Act or applicable, law rule
or regulation. The foregoing authorization shall not be deemed a restriction on
the powers of any Director or Officer to enter into other agreements on behalf
of the Company.
SECTION 7.4 BOARD MEETINGS.
(a) Regular Meetings The Board shall hold regular meetings at least semi
annually at which time the Board shall conduct such business as may properly
come before it. Regular meetings of the Board shall be held in such State and on
such dates as a majority in number of the Directors shall determine.
(b) Special meetings Special meetings of the Board may be called by: (a) the
president, or (b) one member of the Board. A person or persons entitled to call
a special meeting of the Board may make a written request to the secretary to
call the meeting. The secretary shall give written notice of the meeting in the
manner provided below, and the meeting shall be held between three and sixty
days after receipt of the request. If the secretary fails to give notice of the
meeting within three days from the day on which the request was made, the person
or persons who requested the meeting may fix the time and place of meeting, and
give notice thereof. Special meetings of the Board shall be held at any time or
place within the United States whenever called pursuant to this Section 7.4(b).
12
(c) Notice Written notice of each regular and special meeting of the Board shall
state the time, place and purpose of the meeting. Such notice shall be delivered
personally or mailed, first class, postage prepaid, not less than three (3) nor
more than thirty (30) days before the meeting, excluding the day of the meeting,
to each Director at his or her address according to the last available corporate
record. Any Director may waive notice in writing before, at, or after a meeting.
The waiver shall be filed with the person who has been designated to act as
secretary of the meeting, who shall enter it upon the records of the meeting.
Appearance at a meeting is deemed a waiver of notice unless the appearance is
solely for the purpose of asserting the illegality of the meeting.
(d) Voting At any meeting of the Board, each Director present at the meeting
shall be entitled to cast one vote on any question coming before the meeting.
The presence of a majority of the members of the Board shall constitute a quorum
at any such meeting, but the Directors present at any meeting, although less
than a quorum, may adjourn the meeting from time to time. Except as otherwise
provided in this Agreement, a majority vote of the Directors present at any
meeting, if there be a quorum, shall be sufficient to transact any business.
(e) The Directors shall exercise their authority hereunder by written resolution
passed at a meeting of the Board. A resolution of the Board certified by a
Director to have been adopted in accordance with this Agreement and contained in
the books and records of the Company shall be conclusive evidence of the act of
the Board set forth therein.
(f) The Board may act through one or more committees comprised of Directors as
may be specified in resolutions adopted by the Board. Each such committee shall
have the duties and responsibilities imposed on it from time to time by the
Board, and shall at all times be subject to the Board. The terms and provisions
of this Section 7.4 shall be applicable mutatis mutandis to the management and
procedures of committee meetings unless otherwise determined by the Board.
(g) The Board may not delegate to any committees any of the following powers of
the Board to:
(i) submit to the Shareholders any question or matter (by way of
written resolution or otherwise) requiring approval of the
Shareholders;
(ii) fill a vacancy or appoint or remove any of the president,
however designated;
(iii) approve the admission of Additional Shareholders or issuance
of additional Shares;
(iv) declare Dividends;
(v) authorize and pay a return of Stated Capital on the Shares; or
(vi) approve any annual financial statements of the Company.
13
(h) The president, or a representative appointed by the president, shall be an
ex officio member of each committee of the Board except that if the president or
his or her representative is not a Director appointed to such committee then he
or she will have no voting rights.
(i) A majority of the Directors must be present in person at a regular or
special meeting. Once the majority of the Directors are present in person, other
Directors may join by means of telephone, electronic or other communication
facilities provided such persons are then situated in the U.S.
SECTION 7.5 COMPENSATION OF THE DIRECTORS.
The Directors shall not be paid for their services as Directors.
However, the Directors shall be entitled to be paid in respect of travelling and
other expenses properly incurred by them in attending meetings of the Board or
any committee thereof or in otherwise serving the Company. This Section 7.5
shall not preclude any Director from serving the Company in any other capacity
and receiving remuneration therefor.
SECTION 7.6 ADMINISTRATIVE SERVICES.
The Board shall cause to be performed all general and administrative
services on behalf of the Company, in order to assure that complete and accurate
books and records are maintained at the Company's principal place of business,
showing the name and address of each of the Shareholders, all receipts and
expenditures, assets and liabilities, profits and losses, and all other records
necessary for recording the Company's business and affairs. The books and
records shall at all times be maintained at the principal executive office of
the Company and shall be open to the reasonable inspection and examination of
the Shareholders or their duly authorized representatives during business hours.
SECTION 7.7 OFFICERS.
(a) The officers of the Company shall be appointed by the Board and shall
consist of a president, secretary, or such other officers and assistant officers
as may be deemed necessary or desirable by the Board (each an "Officer"). Any
number of offices may be held by the same person. In their discretion the Board
may choose not to fill any office for any period as they may deem advisable,
except that the offices of president and secretary shall be filled as
expeditiously as possible. The initial Officers of the Company are set forth in
Annex B.
(b) Except as provided by this Agreement, the Board shall delegate to the
Officers powers to manage the business and affairs of the Company, and shall fix
the duties and compensation of all Officers. No officer shall be prevented from
receiving such compensation by virtue of his or her also being a Director of the
Company. Officers may, but need not be, Directors of the Company.
(c) Officers shall be persons resident in the United States and no other
country. Any number of offices may be held by the same person.
(d) The Officers of the Company shall be appointed annually by the Board at
their annual meeting or as soon thereafter as may be convenient. Vacancies may
be filled or new offices created and filled at any meeting of the Board. Each
Officer shall hold office until a successor is
14
duly elected and qualified or until his or her earlier death, resignation or
removal as hereinafter provided.
(e) Any Officer or agent appointed by the Board may be removed by the Board with
or without cause by a vote of a majority of Directors, whenever in their
judgment the best interests of the Company would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
(f) Any vacancy occurring in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board for the unexpired
portion of the term of the office.
(g) The Board may not delegate to any Officer any of the following powers of the
Board to:
(i) submit to the Shareholders any question or matter (by way of
written resolution or otherwise) requiring approval of the
Shareholders;
(ii) fill a vacancy or appoint any auditor or Officer;
(iii) approve the admission of Additional Shareholders or the
issuance of Shares;
(iv) declare Dividends;
(v) authorize and pay a return of Stated Capital on the Shares; or
(vi) approve any annual financial statements of the Company.
(h) President
Unless provided otherwise by a resolution adopted by the Board, the
president shall have general active management of the business of the Company,
shall preside at meetings of the Board, shall see that all orders and
resolutions of the Board are carried into effect, shall sign and deliver in the
name of the Company any deeds, mortgages, bonds, contracts, or other instruments
pertaining to the business of the Company, except in cases in which the
authority to sign and deliver is required by law to be exercised by another
person or is expressly delegated by this Agreement or the Board to some other
officer or agent of the Company, may maintain records of and certify proceedings
of the Board and Shareholders, and shall perform such other duties as may from
time to time be prescribed by the Board.
(i) Chief Financial Officer
Unless provided otherwise by a resolution adopted by the Board, the
chief financial officer shall keep accurate financial records for the Company,
shall deposit all monies, drafts, and checks in the name of and to the credit of
the Company in such banks and depositories as the Board shall designate from
time to time, shall endorse for deposit all notes, checks, and drafts received
by the Company as ordered by the Board, making proper vouchers therefore, shall
disburse corporate funds and issue checks and drafts in the name of the Company
as ordered by the Board, shall render to the president and the Board, whenever
requested, an account of all such officer's transactions as chief financial
officer and of the financial condition of the
15
Company, and shall perform such other duties as may be prescribed by the Board
or the president from time to time.
(j) Vice President(s)
The vice president, if any, or vice presidents in case there be more
than one, shall have such powers and perform such duties as the president or the
Board may prescribe from time to time.
(k) Secretary
The secretary shall attend in person, or by means of telephone,
electronic, or other communication facility, all meetings of the Board and of
the Shareholders (if more than one Shareholder) and shall maintain records of,
and whenever necessary, certify all proceedings and resolutions of the Board and
of the Shareholders. The secretary shall keep the Share books of the Company,
when so directed by the Board or other person or persons authorized to call such
meetings, shall give or cause to be given notice of meetings of the Shareholders
and of meetings of the Board, and shall also perform such other duties and have
such other powers as the president or the Board may prescribe from time to time.
(l) Treasurer
Unless otherwise determined by the Board, the treasurer shall be the
chief financial officer of the Company. If an Officer other than the treasurer
is designated chief financial officer, the treasurer, if any, shall have such
powers and perform such duties as the president or the Board may prescribe from
time to time.
(m) Delegation
Unless prohibited by a resolution approved by the affirmative vote of a
majority of the Directors present, an Officer elected or appointed by the Board
may delegate in writing some or all of the duties and powers of such person's
office to other persons.
SECTION 7.8 RELIANCE BY BOARD, OFFICERS AND AGENTS.
The Board and any officers or other agents of the Company shall, in the
performance of their duties, be fully protected in relying in good faith upon
the records of the Company and upon information, opinions, reports or statements
presented to such persons by any other Person as to matters that such person
reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company.
ARTICLE 8
INDEMNIFICATION AND LIMITED LIABILITY
SECTION 8.1 INDEMNIFICATION.
To the fullest extent permitted under applicable law, the Company shall
indemnify the Shareholders, Directors and the Officers (and the officers,
directors, employees, agents, members of any committee (including any
alternates) and shareholders of the foregoing) (each of the
16
foregoing, an "Indemnitee") in connection with any act or omission performed or
omitted by such Indemnitee on behalf of the Company when the same shall be
acting within the scope of their authority conferred by the provisions of this
Agreement or pursuant to a duly authorized delegation of authority from the
Board or an Officer of the Company; provided that no such indemnification shall
be available in respect of (i) any loss or damage resulting solely from
intentional misconduct, gross negligence or a knowing violation of law by the
party seeking indemnification or its affiliate or (ii) any transaction for which
the Person seeking indemnity hereunder or its affiliate received a personal
benefit in violation or breach of the provisions of this Agreement. To the
extent that an Indemnitee is successful on the merits or otherwise in any
Proceeding (as hereafter defined), such Indemnitee shall be indemnified by the
Company against all expenses actually and reasonably incurred by such Indemnitee
or on such Indemnitee's behalf in connection therewith. If an Indemnitee is not
wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the Company shall indemnify such Indemnitee against all expenses
actually and reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Agreement and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal or withdrawal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter. For purposes
of this Agreement, "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing
and any other proceeding (including any appeals from any of the foregoing)
whether civil, criminal, administrative or investigative that arise out of or
otherwise relate to this Agreement and the terms hereof. The Company shall
advance all reasonable expenses incurred by or on behalf of an Indemnitee in
connection with any Proceeding within 20 days after the receipt by the Company
of a statement or statements from the Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence the expenses
incurred by the Indemnitee and shall include or be preceded or accompanied by an
undertaking by or on behalf of any Indemnitee to repay any expenses advanced if
it shall ultimately be determined that such Indemnitee is not entitled to be
indemnified against such expenses.
SECTION 8.2 INSURANCE.
By action of its Directors, the Company shall have the power to
purchase and maintain insurance, in such amounts as the Directors deem
appropriate on behalf of any Person who is or was a Shareholder, Director,
Officer, employee or other agent of the Company against any liability asserted
against such Person and incurred by such Person in any such capacity, or arising
out of such Person's status as Shareholder, Director, Officer, employee or other
agent of the Company, as the case may be, whether or not the Company would have
the power to indemnify such Person against such liability hereunder or under
applicable law.
SECTION 8.3 LIMITED LIABILITY.
(a) Without limiting the generality of the foregoing Sections 8.1 and 8.2, the
Indemnitees shall not, to the fullest extent permitted by law, be personally
liable to the Company for monetary damages for breach of their fiduciary duties,
if any, in any capacity, provided, however, that nothing herein shall eliminate
or limit such liability (i) for a breach of the Indemnitees's duty of loyalty to
the Company, (ii) for acts or omissions not in good faith or that
17
involve intentional misconduct or a knowing violation of the law, or (iii) for
any transaction from which the Shareholder derived an improper benefit.
(b) The debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Shareholder, Director or Officer shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Shareholder, Director or Officer. This provision
notwithstanding, the Indemnitees may, by any other agreement or instrument,
agree to be obligated personally for any or all of the debts, obligations and
liabilities of the Company.
ARTICLE 9
TRANSFERABILITY OF SHARES AND
ADMISSION OF SHAREHOLDERS
SECTION 9.1 TRANSFER OF SHARES.
Shareholders may not sell, exchange, transfer, assign, pledge,
hypothecate or otherwise dispose of all or any part of their Shares or any
interest therein unless such transfer is approved by the majority of the Board.
SECTION 9.2 ADMISSION OF ADDITIONAL SHAREHOLDERS.
Additional Shareholders may be admitted as Shareholders from time to
time by approval of the majority of the Board ("Additional Shareholders"). Any
Additional Shareholder that is (i) admitted as a Shareholder as a result of a
permitted transfer described in Section 9.1 where the transferee was not a
Shareholder immediately before the transfer, or (ii) makes a capital
contribution in exchange for one or more Shares and was not, immediately before
such capital contribution, a Shareholder, must execute one or (if requested by
the Company) more counterparts of this Agreement.
The admission of an Additional Shareholder pursuant to this Section 9.2
shall be effective as of the date such Additional Shareholder executes a
counterpart signature page to this Agreement. In the event that a Shareholder
transfers all of Shares pursuant to Section 9., the admission of the transferee
as a Shareholder shall be deemed to occur immediately prior such transfer, and
immediately following such admission, the transferor Shareholder shall cease to
be a member of the Company.
ARTICLE 10
TERMINATION AND DISSOLUTION
SECTION 10.1 EVENTS OF DISSOLUTION.
The Company shall be dissolved and its affairs wound-up upon the
occurrence of any of the following events:
(a) the agreement by affirmative vote of a majority of each class of Shares;
(b) the entry of a decree of judicial dissolution pursuant to the Delaware Act;
18
(c) the decree of a court of competent jurisdiction that dissolution and
liquidation of the Company is required; or
(d) any other event or occurrence requiring the dissolution and winding-up under
the Delaware Act.
Except as otherwise expressly provided in this Agreement, or as
otherwise required under the Delaware Act, only the events listed above shall
cause the dissolution of the Company and the Company and its business shall
continue without further action of the Shareholders upon the occurrence of any
other event.
SECTION 10.2 DISTRIBUTION UPON LIQUIDATION.
Upon dissolution of the Company, the Director (as liquidating trustee)
selected by the Board or, if there is no Director, the Person who may be elected
by affirmative vote of a majority of Common Shares (the "Liquidator"), shall act
as Liquidator of the Company. The Liquidator shall wind up the affairs of the
Company, shall sell such of the assets of the Company as it deems necessary or
appropriate, and shall distribute the assets of the Company as follows:
(a) First, to creditors, including Shareholders who are creditors, to the extent
permitted by law, in satisfaction of liabilities of the Company (whether by
payment or the making of reasonable provision for payment thereof);
(b) next, to the Shareholders who are creditors for any debts and liabilities
not permitted to be paid under (a) above; and
(c) next, to the Shareholders as provided in Section 10.3.
SECTION 10.3 LIQUIDATING DISTRIBUTIONS.
For purposes of Section 10.2(c), the Shareholders shall be entitled to
receive the remaining property of the Company in the manner determined by the
respective priority and entitlements of each Share held.
SECTION 10.4 DISTRIBUTIONS IN KIND
No Shareholder shall be required to receive any distribution pursuant
to Article 10 in the form of property in kind unless all the Shareholders of the
applicable class receive an undivided or substantially equivalent interest in
such property on the basis of the relative number of Shares of that class held
by each such Shareholder.
SECTION 10.5 CERTIFICATE OF CANCELLATION.
When all debts, liabilities and obligations of the Company have been
paid and discharged or adequate provisions have been made therefor and all of
the remaining property and assets of the Company have been distributed to the
Shareholders, if any, the Liquidator shall cancel the Certificate in accordance
with the Delaware Act.
19
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 LIMITED LIABILITY.
Except as otherwise provided by the Delaware Act, the debts and
obligations of the Company, whether arising in contract, tort or otherwise,
shall be solely the debts, obligations and liabilities of the Company, and the
Shareholders shall not be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a member of the Company.
SECTION 11.2 GOVERNING LAW; SEVERABILITY.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Delaware without regard to the conflicts of
laws principles thereof and, to the maximum extent possible, in such manner as
to comply with all the provisions of the Delaware Act. If it is determined by a
court of competent jurisdiction that any provision of this Agreement is invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
SECTION 11.3 NOTICES.
Any notice or communication required or contemplated hereunder shall be
in writing and transmitted by either electronic facsimile transmission, delivery
in person or first-class mail addressed as follows:
If to the Company or the Board:
PASUG LLC
▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Initial Shareholder:
▇▇▇ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
1100 ▇▇▇▇▇'▇ Wharf Tower One
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
PO Box 2380 Stn. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Additional Shareholder, to the address provided when such
Additional Shareholder becomes party to this Agreement.
The Company or the Shareholders may, by notice to the other in
accordance with the requirements of this Section 11.3, designate additional or
different addresses for subsequent notices or communications. If a notice or
communication is mailed in the manner provided above, it is duly given at the
time mailed, whether or not the addressee receives it.
20
SECTION 11.4 WAIVER.
No failure by any Shareholder to insist upon the strict performance of
any covenant, duty, agreement or condition of this Agreement, or to exercise any
right or remedy consequent upon a breach thereof, shall constitute a waiver of
any such breach, of any other breach of such covenant, duty, agreement or
condition, or of any breach of any other covenant, duty, agreement or condition
hereof.
SECTION 11.5 FURTHER ACTION.
The Shareholders shall execute and deliver all documents, provide all
information and take or refrain from taking all other action as may be
necessary, proper or desirable in furtherance of the business and purposes of
the Company.
SECTION 11.6 CHANGES IN WRITING.
No modification, variation or amendment of this Agreement, no
determination, evaluation, approval, waiver or other action permitted or taken
hereunder and no further agreement contemplated hereby shall be of any force
without the affirmative vote of each class of Shares, each voting as a class.
SECTION 11.7 TERM AND TERMINATION.
The term of this Agreement begins on the Effective Date and shall end
upon the earlier of (i) the date on which the Company ceases to exist under this
Agreement or under applicable law and (ii) the date on which the majority of the
Shareholders determine to terminate the Agreement.
21
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first set forth above by the Shareholder(s) indicated below.
3038482 NOVA SCOTIA COMPANY
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
By: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
22
EXHIBIT A
FORM OF SHARE CERTIFICATE
OF
PASUG LLC
This Share Certificate certifies that ___________ is the owner of
_______ Share(s) of PASUG LLC, a limited liability company formed under the laws
of the State of Delaware (the "Company"). TRANSFER OF ANY OR ALL OF THESE SHARES
IS SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN THE LIMITED LIABILITY COMPANY
AGREEMENT OF PASUG LLC, AS AMENDED FROM TIME TO TIME, AND CAN ONLY BE EFFECTED
UPON COMPLIANCE WITH ALL OF THOSE RESTRICTIONS.
This share certificate evidences a limited liability company interest
in PASUG LLC, which is governed by Article 8 of the Uniform Commercial Code as
in effect in the State of Delaware and any other applicable jurisdiction.
PASUG LLC
------------------------------------
By:
Title:
Dated:
---------------------------
A-1
ANNEX A
INITIAL DIRECTORS
▇▇▇ ▇▇▇▇▇
Annex A-1
ANNEX B
INITIAL OFFICERS
President ▇▇▇ ▇▇▇▇▇
Secretary ▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇
Annex B-1