SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BIO HI TECH AMERICA, LLC
Exhibit 3.4
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
BIO HI TECH AMERICA, LLC
This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of BIO HI TECH AMERICA, LLC, a Delaware limited liability company (the “Company”), effective as of August ___, 2015 (the “Effective Date”), is entered into by BIOHITECH GLOBAL, INC., as the sole member of the Company (the “Member”).
Background.
A. As of the Effective Date the Company was merged with and into Biohitech Global, Inc. (“Acquisition”), with the Company as the surviving entity (the “Merger”) pursuant to a certain Agreement of Merger and Plan of Reorganization by and among the Company, Acquisition and the Member, dated as of the date hereof, whereby, among other things, the Member became the holder of all of the issued and outstanding membership units of the Company; and
B. The Member agrees that the membership in and management of the Company shall be governed by the terms set forth herein.
Agreement
In consideration of the foregoing background and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
FORMATION OF COMPANY
1.1 Name. The name of the Company is Bio Hi Tech America, LLC.
1.2 Purpose. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be formed under the Delaware Limited Liability Company Act (the “Act”) and to engage in any and all activities necessary or incidental thereto.
1.3 Principal Office; Registered Agent. The location of the principal office of the Company shall be ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other location as the Member may from time to time designate. The registered agent of the Company for service of process in the State of Delaware and the registered office of the Company in the State of Delaware shall be that person and location reflected in the Certificate of Formation. In the event the registered agent ceases to act as such for any reason or the registered office shall change, the Member shall promptly designate a replacement registered agent or file a notice of change of address, as the case may be, in the manner provided by law.
1.4 Term. The term of the Company shall be perpetual unless the Company is dissolved and terminated in accordance with Section 6.1.
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ARTICLE II
MEMBER
2.1 Initial Member. The Member owns 100% of the membership units in the Company. The name and the mailing address of the Member is as follows:
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2.2 Additional Members. One or more additional members may be admitted to the Company with the consent of the Member. Prior to the admission of any such additional members to the Company, the Member shall amend this Agreement to make such changes as the Member shall determine to reflect the fact that the Company shall have such additional members. Each additional member shall execute and deliver a supplement or counterpart to this Agreement, as necessary.
2.3 Membership Units; Certificates. The Company will not issue any certificates to evidence ownership of the membership units.
ARTICLE III
MANAGEMENT
3.1 Authority; Powers and Duties of the Member. The Member shall have exclusive and complete authority and discretion to manage the operations and affairs of the Company and to make all decisions regarding the business of the Company. Any action taken by the Member shall constitute the act of and serve to bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of the Member as set forth in this Agreement. The Member shall have all rights and powers of a manager under the Act, and shall have such authority, rights and powers in the management of the Company to do any and all other acts and things necessary, proper, convenient or advisable to effectuate the purposes of this Agreement.
3.2 Election of Officers; Delegation of Authority. The Member may, from time to time, designate one or more officers with such titles as may be designated by the Member to act in the name of the Company with such authority as may be delegated to such officers by the Member (each such designated person, an “Officer”). Any such Officer shall act pursuant to such delegated authority until such Officer is removed by the Member. Any action taken by an Officer designated by the Member pursuant to authority delegated to such Officer shall constitute the act of and serve to bind the Company. Persons dealing with the Company are entitled to rely conclusively on the power and authority of any officer set forth in this Agreement and any instrument designating such officer and the authority delegated to him or her.
3.3 Liability of Member. Except as otherwise required in the Act, 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 the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being the Member or participating in the management of the Company.
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3.4 Indemnification. To the fullest extent permitted under the Act, the Member (irrespective of the capacity in which it acts) shall be entitled to indemnification and advancement of expenses from the Company for and against any loss, damage, claim or expense (including attorneys' fees) whatsoever incurred by the Member relating to or arising out of any act or omission or alleged acts or omissions (whether or not constituting negligence or gross negligence) performed or omitted by the Member on behalf of the Company; provided, however, that any indemnity under this Section 6.2 shall be provided out of and to the extent of Company assets only, and neither the Member nor any other person shall have any personal liability on account thereof.
ARTICLE IV
CAPITAL CONTRIBUTIONS; LOANS; DISTRIBUTIONS
4.1 Initial Capital Contributions. The Member hereby agrees to contribute to the Company such cash, property or services as determined by the Member.
4.2 Loans. Any and all loans made to the Company by the Member shall not be considered Capital Contributions.
4.3 Distributions. Distributions shall be made to the Member at the times and in the amounts determined by the Member.
ARTICLE V
TAX STATUS; INCOME AND DEDUCTIONS
5.1 Tax Status. As long as the Company has only one member, it is the intention of the Company and the Member that the Company be treated as a disregarded entity for federal and all relevant state tax purposes and neither the Company nor the Member shall take any action or make any election which is inconsistent with such tax treatment. All provisions of this Agreement are to be construed so as to preserve the Company's tax status as a disregarded entity.
5.2 Income and Deductions. All items of income, gain, loss, deduction and credit of the Company (including, without limitation, items not subject to federal or state income tax) shall be treated for federal and all relevant state income tax purposes as items of income, gain, loss, deduction and credit of the Member.
ARTICLE VI
DISSOLUTION AND LIQUIDATION
6.1 Dissolution.
(a) The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the written consent of the Member or (ii) any other event or circumstance giving rise to the dissolution of the Company under Section 18-801 of the Act, unless the Company's existence is continued pursuant to the Act.
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(b) Upon dissolution of the Company, the Company shall immediately commence to wind up its affairs and the Member shall promptly liquidate the business of the Company. During the period of the winding up of the affairs of the Company, the rights and obligations of the Member under this Agreement shall continue.
(c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied as follows: (i) first, to creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof); and (ii) thereafter, to the Member.
6.2 Winding Up. Upon the completion of the winding up of the Company, the Member shall file a Certificate of Cancellation in accordance with the Act.
ARTICLE VII
MISCELLANEOUS
7.1 Amendments. Amendments to this Agreement may be made only with the consent of the Member.
7.2 Governing Law. This Agreement shall be governed by the laws of the State of Delaware.
7.3 Severability. In the event that any provision of this Agreement shall be declared to be invalid, illegal or unenforceable, such provision shall survive to the extent it is not so declared, and the validity, legality and enforceability of the other provisions hereof shall not in any way be affected or impaired thereby, unless such action would substantially impair the benefits to any party of the remaining provisions of this Agreement.
(Signature appears on following page.)
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IN WITNESS WHEREOF, the undersigned has executed this Agreement to be effective as of the date first above written.
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MEMBER:
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By:________________________________ ▇▇▇▇▇ ▇. ▇▇▇▇▇, President |
Signature Page to Second Amended and Restated Operating Agreement of
Bio Hi Tech America, LLC