FORM OF THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF VICTORIA BAY ASSET MANAGEMENT, LLC Dated as of December 12, 2006
EXHIBIT
3.4
FORM
OF THIRD AMENDED AND RESTATED
OF
VICTORIA
BAY ASSET MANAGEMENT, LLC
Dated
as of December 12, 2006
WO
704755.1
CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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1
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ARTICLE
II ORGANIZATIONAL MATTERS
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3
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Section
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2.1
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Formation
and Continuation
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3
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Section
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2.2
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Name
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3
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Section
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2.3
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Purposes
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3
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Section
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2.4
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Powers
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3
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Section
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2.5
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Offices:
Statutory Agent
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3
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ARTICLE
III MEMBER
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4
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Section
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3.1
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Membership
Interest
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4
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Section
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3.2
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Capital
Contribution
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4
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Section
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3.3
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Uncertificated
Membership Interest
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4
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Section
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3.4
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Rights
of the Member
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4
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ARTICLE
IV DIRECTORS
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4
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Section
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4.1
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Number
and Qualification
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4
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Section
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4.2
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Election
and Term of Office
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4
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Section
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4.3
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Resignation
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4
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Section
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4.4
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Removal
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4
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Section
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4.5
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Vacancies
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4
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Section
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4.6
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General
Powers
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5
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Section
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4.7
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Compensation
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5
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Section
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4.8
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Initial
Directors
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5
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ARTICLE
V MEETINGS OF DIRECTORS
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5
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Section
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5.1
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Place
of Meeting
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5
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Section
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5.2
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Annual
Meeting
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6
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Section
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5.3
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Regular
Meetings
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6
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Section
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5.4
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Special
Meetings
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6
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Section
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5.5
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Quorum
and Action
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6
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Section
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5.6
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Presumption
of Assent to Action
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6
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Section
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5.7
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Telephonic
Meetings
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6
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Section
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5.8
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Action
Without Meeting
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6
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Section
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5.9
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Waiver
of Notice
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7
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ARTICLE
VI COMMITTEES OF THE DIRECTORS
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7
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Section
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6.1
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Company
and Authorities
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7
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Section
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6.2
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Audit
Committee
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7
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Section
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6.3
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Minutes
and Rules of Procedure
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7
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Section
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6.4
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Vacancies
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7
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Section
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6.5
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Telephonic
Meetings
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7
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Section
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6.6
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Action
Without Meeting
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8
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Page
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ARTICLE
VII OFFICERS
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8
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Section
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7.1
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Positions
and Powers
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8
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Section
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7.2
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Election.
Term of Office and Qualification
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8
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Section
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7.3
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Resignation
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8
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Section
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7.4
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Removal
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8
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Section
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7.5
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Vacancies
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8
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Section
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7.6
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The
President
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8
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Section
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7.7
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The
Vice Presidents
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9
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Section
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7.8
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The
Secretary
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9
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Section
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7.9
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Assistant
Secretaries
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9
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Section
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7.10
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The
Treasurer
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9
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Section
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7.11
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Assistant
Treasurers
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9
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Section
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7.12
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Treasurer’s
Bond
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9
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Section
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7.13
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Other
Officers
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10
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Section
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7.14
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Salaries
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10
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ARTICLE
VIII CAPITAL ACCOUNT
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10
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Section
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8.1
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Capital
Account
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10
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ARTICLE
IX DISTRIBUTIONS
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10
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Section
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9.1
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Distributions
During Term of Company
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10
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Section
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9.2
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Distributions
Upon Liquidation
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10
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Section
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9.3
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Limitation
on Distributions
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10
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ARTICLE
X INDEMNIFICATION
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10
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Section
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10.1
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Definitions
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10
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Section
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10.2
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Indemnification
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11
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Section
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10.3
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Successful
Defense
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11
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Section
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10.4
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Determinations
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12
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Section
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10.5
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Advancement
of Expenses
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12
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Section
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10.6
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Other
Indemnification and Insurance
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12
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Section
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10.7
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Construction
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12
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Section
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10.8
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Continuing
Offer, Reliance, etc
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12
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Section
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10.9
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Effect
of Amendment
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13
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ARTICLE
XI DISSOLUTION AND FINAL LIQUIDATION
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13
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Section
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11.1
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Dissolution
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13
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Section
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11.2
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Winding
Up
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13
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Section
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11.3
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Distribution
of Assets
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13
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Section
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11.4
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Revocation
of Voluntary Dissolution Proceedings
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13
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ii
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Page
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ARTICLE
XII AMENDMENT
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13
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Section
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12.1
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Amendment
of Agreement
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13
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ARTICLE
XIII GENERAL PROVISIONS
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13
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Section
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13.1
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Liability
to Third Parties
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13
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Section
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13.2
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Waiver
of Notice
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14
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Section
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13.3
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Seal
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14
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Section
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13.4
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Fiscal
Year
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14
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Section
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13.5
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Checks.
Notes. Etc
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14
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Section
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13.6
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Voting
Upon Securities by the Company
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14
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Section
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13.7
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Titles
and Captions
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14
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Section
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13.8
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Pronouns
and Plurals
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14
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Section
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13.9
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Subject
to All Laws
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14
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Section
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13.10
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Allocation
of Profits and Losses; Tax Status
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14
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iii
THIRD
AMENDED AND RESTATED
OF
VICTORIA
BAY ASSET MANAGEMENT, LLC
THIS
THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of VICTORIA
BAY ASSET MANAGEMENT, LLC,
is
entered into as of the 12th
day of
December, 2006, by ▇▇▇▇▇▇▇▇▇▇ Holdings, Inc., as the sole member of the limited
liability company.
Recitals:
A. The
Company was formed as a Delaware limited liability company under the name
“Standard Asset Management, LLC” by filing a certificate of formation pursuant
to the Delaware Limited Liability Company Act (as amended from time to time,
and
together with any successor statute, the “Act”) that was accepted for filing by
the Secretary of State on May 10, 2005; and
B. The
Member entered into a limited liability company agreement dated as of May 10,
2005 as amended and restated by the First Amended and Restated Limited Liability
Company Agreement dated as of September 30, 2005, regarding the operation of
the
Company and its rights and obligations therein, and as further amended and
restated by the Second Amended and Restated Limited Liability Company Agreement
dated as of September 8, 2006 (the “LLC Agreement”), regarding the Company
acting as general partner of funds that it establishes and indemnification
of
the Company’s directors;
C. The
Company filed an amendment to the certificate of formation on June 10, 2005
to
rename the Company “Victoria Bay Asset Management, LLC”; and
D. The
Member desires to amend and restate the LLC Agreement regarding the ability
to
compensate the Non-Management Directors;
NOW,
THEREFORE,
the
Member, intending to be legally bound hereby, agrees as follows:
ARTICLE
I
DEFINITIONS
When
used
in this Third Amended and Restated Limited Liability Company Agreement, the
following terms shall have the respective meanings assigned to them in this
Article I or in the Sections referenced below:
“Act”
shall
have the meaning specified in the recitals to this Agreement.
“Agreement”
means
this Third Amended and Restated Limited Liability Company Agreement, as amended
from time to time.
“Board
of Directors”
means
the board of directors of the Company provided for in Article IV of this
Agreement.
“Certificate”
means
the Certificate of Formation of the Company filed in the office of the Secretary
of State on May 10, 2005, as amended from time to time.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Company”
the
Delaware limited liability company known as “Victoria Bay Asset Management,
LLC”, as such limited liability company may be constituted from time to time.
“Indemnitee”
shall
have the meaning specified in Section 10.1(a).
“Management
Director”
shall
mean a Person selected in accordance with Article IV of this Agreement who
shall
have the powers and duties to manage the business and affairs of the Company
and
exercise its powers to the extent set forth in this Agreement, the Certificate
and the Act. Each Management Director shall be a “manager” of the Company within
the meaning of the Act.
“Member”
means
▇▇▇▇▇▇▇▇▇▇ Holding, Inc., a Delaware corporation, and its successors.
“Non-Management
Director”
shall
mean any Person selected in accordance with Article IV of this Agreement who
is
not a Management Director.
“Official
Capacity”
shall
have the meaning specified in Section 10.1(b).
“Person”
means
any individual, corporation, limited liability company, partnership, trust,
estate or other entity.
“Proceeding”
shall
have the meaning specified in Section 10.1(c).
“Property”
means
any Company property, real or personal, tangible or intangible, including but
not limited to any legal or equitable interest in such property, ownership
interests in entities owning real or personal property, and money.
“Regulations”
means,
except where the context indicates otherwise, the final, temporary, or proposed
regulations of the Department of the Treasury under the Code as such regulations
may be lawfully changed from time to time.
“Secretary
of State”
means
the Secretary of State of the State of Delaware.
“U.S.”
means
the United States of America.
2
ARTICLE
II
ORGANIZATIONAL
MATTERS
Section
2.1 Formation
and Continuation.
(a) The
Company was formed upon the issuance by the Secretary of State of the
Certificate for the Company. This Agreement shall be effective at the time
of
such filing. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is hereby designated as an authorized person,
within the meaning of the Act, to execute, deliver and file such certificate
of
formation, and any action taken prior to the execution of this Agreement in
connection therewith by any such person is hereby ratified and confirmed. The
Management Directors may designate any person to be an authorized person, within
the meaning of the Act.
(b) The
Company shall continue in existence from the date of its formation in
perpetuity, unless earlier dissolved pursuant to Article XI of this
Agreement.
(c) The
parties hereto intend that this Agreement shall constitute a “limited liability
company agreement” within the meaning of Section 18-101(7) of the
Act.
Section
2.2 Name. The
name
of the Company is “Victoria Bay Asset Management, LLC”. The name of the Company
may be changed from time to time by amendment of the Certificate. The Company
may transact business under an assumed name by filing an assumed name
certificate in the manner prescribed by applicable law.
Section
2.3 Purposes.The
Company may engage in any lawful business unless a more limited purpose is
stated in the Certificate.
Section
2.4 Powers.The
Company shall have the powers provided for a limited liability company under
the
Act and any powers otherwise allowed under any applicable law.
Section
2.5 Offices:
Statutory Agent.
(a) The
Company’s principal office and the address thereof may be established and
changed from time to time by the Management Directors.
(b) The
registered office of the Company in Delaware shall be the office of the
statutory agent of the Company in Delaware. The statutory agent of the Company
in Delaware is the Corporation Service Company and its address in the State
of
Delaware is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County
of New Castle. The Company’s registered office, registered agent and the
addresses thereof may be changed from time to time by the Management Directors
in accordance with the Act.
(c) The
Company may also have offices at such other places, both within and without
the
State of Delaware, as the Management Directors may
from
time to time determine or the business of the Company may require.
3
ARTICLE
III
MEMBER
Section
3.1 Membership
Interest.The
Member is admitted as a member of the Company upon the execution and delivery
of
this Agreement, and is the only member of the Company. The Member has a one
hundred percent (100%) interest in the Company and in the profits and losses
thereof.
Section
3.2 Capital
Contribution.The
Member has contributed to the capital of the Company, in cash, the amount of
$1,000.00. The Member is not obligated to make any additional capital
contributions to the Company.
Section
3.3 Uncertificated
Membership Interest. No
certificates shall be issued evidencing the membership interest in the
Company.
Section
3.4 Rights
of the Member. The
Member, in its capacity as such, shall take no part in the management or control
of the Company’s business and shall have no right to act for or bind the Company
or to vote on matters other than the matters specified in this Agreement or
required by any non-waivable provision of the Act.
ARTICLE
IV
DIRECTORS
Section
4.1 Number
and Qualification.There
shall be seven Directors, four of which shall be Management Directors and three
of which shall be Non-Management Directors. The Management Directors may change
the number of Management Directors and Non-Management Directors from time to
time by written consent of the Management Directors. Directors need not be
residents of the State of Delaware. The Member shall elect the Management
Directors and
the
Non-Management Directors.
Section
4.2 Election
and Term of Office.The
Directors shall be elected by written consent of the Member (except as provided
in Section 4.8). Each Director elected shall hold office until his successor
shall be chosen by written consent of the Member and shall qualify, or until
his
death or his resignation or removal in the manner hereinafter provided.
Section
4.3 Resignation. Any
Director may resign at any time by giving written notice to the President or
Secretary of the Company. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section
4.4 ▇▇▇▇▇▇▇.▇▇
written consent of the Member, any Director or Directors, including all of
the
Directors, may be removed, either with or without cause.
Section
4.5 Vacancies.Any
vacancy occurring in the Directors (including a vacancy resulting from an
increase in the authorized number of Directors) may be filled by the written
consent of the Member. A Director elected to fill a vacancy shall be elected
for
the unexpired term of his predecessor in office.
4
Section
4.6 General
Powers.The
powers of the Company shall be exercised by or under the authority of, and
the
business and affairs of the Company shall be managed under the direction of,
the
Management Directors, subject to the terms of this Agreement. The Non-Management
Directors shall only have such authority as the Management Directors expressly
confer upon them. Notwithstanding
the foregoing provisions of this Section 4.6, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, so long as
he
shall remain a Manager and in his capacity as such, shall have the right to
act
for and bind the Company, but no other individual Manager, in his capacity
as
such, shall have the right to act for or bind the Company.
Section
4.7 ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇
Directors as such shall not receive any stated salary for their service, but
expenses of attendance, if any, may be allowed for attendance at any regular
or
special meeting of the Directors or a committee thereof, provided that nothing
herein contained shall be construed to preclude any Management Director from
serving the Company in any other capacity and receiving compensation
therefore.
Non-Management
Directors may receive compensation for their services together with expenses
of
attendance, if any, for attendance at any regular or special meeting of the
Directors or a committee thereof, as such compensation and expenses may be
determined from time to time by the Management Directors.
Section
4.8 Initial
Directors.
Notwithstanding
anything to the contrary in this Agreement, the following individuals shall
be:
(a) The
initial Management Directors of the Company:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
(b) The
initial Non-Management Directors of the Company as of September 30,
2005:
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ III
▇▇▇▇▇▇
▇.
▇▇▇▇▇
ARTICLE
V
MEETINGS
OF DIRECTORS
Section
5.1 Place
of Meeting.The
Directors of the Company may hold their meetings, both regular and special,
either within or without the State of Delaware.
5
Section
5.2 Annual
Meeting.An
annual
meeting of the Directors shall be held at such time and place as shall be fixed
by the consent in writing of a majority of the Directors, and no notice to
the
newly elected Directors of such meeting shall be necessary in order legally
to
constitute the meeting, provided a quorum shall be present.
Section
5.3 Regular
Meetings.Regular
meetings of the Directors, in addition to the annual meetings referred to in
Section 5.2, may be held without notice at such time and place as shall from
time to time be determined by the Directors.
Section
5.4 Special
Meetings.
Special
meetings of the Directors may be called by the Chairman, if one shall be
elected, the Vice Chairman, if one shall be elected, or by the President, on
one
(1) day’s notice (oral or written) to each Director. Special meetings shall be
called by the President or the Secretary on like notice on the written request
of any Director. Neither the purpose of, nor the business to be transacted
at,
any special meeting of the Directors need be specified in the notice or waiver
of notice of such meeting.
Section
5.5 Quorum
and Action. At
all
meetings of the Directors, the presence of a majority of the number of
Management Directors fixed by or in accordance with this Agreement shall be
necessary and sufficient to constitute a quorum for the transaction of business.
Subject to the preceding sentence, the act of a majority of the Management
Directors at any meeting at which a quorum is present shall be the act of the
Directors unless the act of a greater number is required by law, the Certificate
or this Agreement. If a quorum shall not be present at any meeting of the
Directors, the Directors present may adjourn the meeting from time to time
without notice other than announcement at the meeting until a quorum shall
be
present.
Section
5.6 Presumption
of Assent to Action. A
Director who is present at a meeting of the Directors at which action on any
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to
the
Secretary of the Company immediately after the adjournment of the meeting.
Such
right to dissent shall not apply to a Director who votes in favor of such
action.
Section
5.7 Telephonic
Meetings.Directors
may participate in and hold a meeting of the Directors by means of conference
telephone or similar communications equipment by means of which all Directors
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting,
except where a Director participates in the meeting for the express purpose
of
objecting to the transaction of any business on the ground that the meeting
is
not lawfully called or convened.
Section
5.8 Action
Without Meeting.Any
action required or permitted to be taken at a meeting of the Directors may
be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the Management Directors, or members of the committee,
as the case may be, and such consent shall have the same force and effect as
a
unanimous vote at a meeting.
6
Section
5.9 Waiver
of Notice.Attendance
of a Director at a meeting shall constitute a waiver of notice of such meeting
except where a Director attends a meeting for the express purpose of objecting
to the transaction of any business on the grounds that the meeting is not
lawfully called or convened.
ARTICLE
VI
COMMITTEES
OF THE DIRECTORS
Section
6.1 Company
and Authorities.Subject
to Section 6.2, the Management Directors, by written consent, may designate
from
among the Directors one or more committees, each of which shall be comprised
of
one or more Directors, and may designate one or more Directors as alternate
members of any committee, who may, subject to any limitations imposed by the
Management Directors, replace absent or disqualified Directors at any meeting
of
that committee. Any such committee, to the extent provided in such resolution,
shall have and may exercise all of the authority of the Directors in the
business and affairs of the Company, subject to the limitations set forth in
the
Act or this Agreement and Section 6.2. The members of each such committee shall
serve at the pleasure of the Management Directors, subject to the limitations
set forth in Section 6.2.
Section
6.2 Audit
Committee.
(a) The
audit
committee shall consist of all of the Non-Management Directors.
(b) Notwithstanding
anything in this Agreement to the contrary, the Management Directors shall
establish and maintain an audit committee in compliance with, and granted the
requisite authority and funding pursuant to, any applicable (1) federal
securities laws and regulations, including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002,
and
(2) rules, policies and procedures of any national securities exchange on which
the securities issued by United States Oil Fund, LP, United States Natural
Gas
Fund, LP or any other fund for which the Company acts as general partner, are
listed and traded.
Section
6.3 Minutes
and Rules of Procedure.Each
committee designated by the Management Directors shall keep regular minutes
of
its proceedings and report the same to the Management Directors when required.
Subject to the provisions of this Agreement, the members of any committee may
fix such committee’s own rules of procedure.
Section
6.4 Vacancies.The
Management Directors shall have the power at any time to fill vacancies in,
to
change the membership of, or to dissolve, any committee, provided that with
respect to the audit committee, the Management Directors shall only have the
power to fill vacancies and change the membership of such committee to the
extent permitted by Section 6.2.
Section
6.5 Telephonic
Meetings.Members
of any committee designated by the Management Directors may participate in
or
hold a meeting by use of conference telephone or similar communications
equipment by means of which all committee members participating in the meeting
can hear each other. Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting, except where a committee member
participates in the meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
7
Section
6.6 Action
Without Meeting.Any
action required or permitted to be taken at a meeting of any committee
designated by the Management Directors may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all the
members of the committee, and such consent shall have the same force and effect
as a unanimous vote at a meeting.
ARTICLE
VII
OFFICERS
Section
7.1 Positions
and Powers.
(a) The
Management Directors may, by written consent, appoint a President, one or more
Vice Presidents, a Secretary, a Treasurer, one or more Assistant Secretaries,
one or more Assistant Treasurers and other officers. One individual may hold
any
two or more of these offices.
(b) Every
officer is an agent of the Company for the purpose of its business. The act
of
an officer, including the execution in the name of the Company of any instrument
for apparently carrying on in the usual way the business of the Company, binds
the Company unless the officer so acting otherwise lacks authority to act for
the Company and the Person with whom the officer is dealing has knowledge of
the
fact that the officer has no such authority.
Section
7.2 Election,
Term of Office and Qualification.Any
officer duly appointed by the Management Directors shall hold office until
his
successor shall have been duly appointed and qualified or until his death or
his
resignation or removal in the manner hereinafter provided.
Section
7.3 Resignation.Any
officer may resign at any time by giving written notice thereof to the
Management Directors or to the President or Secretary of the Company. Any such
resignation shall take effect at the time specified therein and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section
7.4 Removal.Any
officer may be removed at any time with or without cause by written consent
of
the Management Directors. The removal of any officer shall be without prejudice
to the contract rights, if any, of the individual so removed. Appointment of
an
officer or agent shall not of itself create any contract rights.
Section
7.5 Vacancies.A
vacancy
in any office may be filled for the unexpired portion of the term by the
Management Directors by written consent.
Section
7.6 The
President.The
President shall be the chief executive officer of the Company. He shall have
general and active management of the business of the Company, shall have the
general supervision and direction of all other officers of the Company with
full
power to see that their duties are properly performed and shall see that all
orders and resolutions of the Management Directors are carried into effect.
Without limiting the authority of the Management Directors to sign deeds, bonds,
mortgages, contracts and other documents on behalf of the Company, the President
may sign, with any other proper officer, any deeds, bonds, mortgages, contracts
and other documents which the Management Directors have authorized to be
executed, except where required by law to be otherwise signed and executed
and
except where the signing and execution thereof shall be expressly delegated
by
the Management Directors or this Agreement to some other officer or agent of
the
Company. In addition, the President shall perform whatever duties and shall
exercise all the powers that are given to him by the Management
Directors.
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Section
7.7 The
Vice Presidents.The
Vice
Presidents shall perform the duties as are given to them by this Agreement
and
as may from time to time be assigned to them by the Management Directors or
by
the President. At the request of the President, or in his absence or disability,
the Vice President designated by the President (or in the absence of such
designation, the senior Vice President), shall perform the duties and exercise
the powers of the President.
Section
7.8 The
Secretary.The
Secretary shall be custodian of the limited liability company records and shall
perform such other duties as may be prescribed by the Management Directors
or by
the President, under whose supervision he shall be. He shall keep in safe
custody the seal of the Company and, when authorized by the Management
Directors, affix the same to any instrument requiring it, and when so affixed,
it may be attested by his signature or by the signature of the Treasurer or
an
Assistant Secretary.
Section
7.9 Assistant
Secretaries.The
Assistant Secretaries shall perform the duties as are given to them by this
Agreement or as may from time to time be assigned to them by the Management
Directors or by the Secretary. At the request of the Secretary, or in his
absence or disability, the Assistant Secretary designated by the Secretary
(or
in the absence of such designation the senior Assistant Secretary), shall
perform the duties and exercise the powers of the Secretary.
Section
7.10 The
Treasurer.The
Treasurer shall have custody of and be responsible for all funds and securities
of the Company, shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company and shall deposit all monies
and
other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Management Directors. He shall disburse
the funds of the Company as may be ordered by the Management Directors, taking
proper vouchers for such disbursements, and shall render to the President and
the Management Directors, whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the
Company.
Section
7.11 Assistant
Treasurers.The
Assistant Treasurers shall perform the duties as are given to them by this
Agreement or as may from time to time be assigned to them by the Management
Directors or by the Treasurer. At the request of the Treasurer, or in his
absence or disability, the Assistant Treasurer, designated by the Treasurer
(or
in the absence of such designation, the senior Assistant Treasurer), shall
perform the duties and exercise the powers of the Treasurer.
Section
7.12 Treasurer’s
Bond.If
required by the Management Directors, the Treasurer and any Assistant Treasurer
shall give the Company a bond in such sum and with such surety or sureties
as
shall be satisfactory to the Management Directors for the faithful performance
of the duties of his office and for the restoration to the Company, in case
of
his death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Company.
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Section
7.13 Other
Officers.The
Management Directors may appoint by written consent such other officers and
agents as the Management Directors shall deem necessary who shall hold their
offices for such terms, have such authority and perform such duties as the
Management Directors may from time to time determine.
Section
7.14 Salaries.The
salary or other compensation of officers may be fixed from time to time by
the
Management Directors.
ARTICLE
VIII
CAPITAL
ACCOUNT
Section
8.1 Capital
Account.A
capital
account shall be maintained for the Member in accordance with § 704 (b) of the
Code and the Regulations thereunder.
ARTICLE
IX
DISTRIBUTIONS
Section
9.1 Distributions
During Term of Company.The
Management Directors in their sole discretion prior to dissolution of the
Company may, but shall not be obligated to, distribute such Property of the
Company, whether in cash or in kind, as the Management Directors may from time
to time deem advisable, after the Management Directors have established such
reserves as the Management Directors consider appropriate.
Section
9.2 Distributions
Upon Liquidation.On
the
winding up of the Company pursuant to Section 11.2 hereof, all assets of the
Company shall be distributed in accordance with Section 11.3.
Section
9.3 Limitation
on Distributions.Notwithstanding
anything in this Agreement to the contrary, no distribution shall be made if
it
would not be permitted by the Act.
ARTICLE
X
INDEMNIFICATION
Section
10.1 Definitions. In
this
Article:
(a) “Indemnitee”
means (i) any present or former director or officer of the Company, and (ii)
any
person who while serving in any of the capacities referred to in clause (i)
of
this sentence served at the Company’s request as a director or officer of any
other entity.
(b) “Official
Capacity” means the elective or appointive office of the Company held by such
Person or the employment or agency relationship undertaken by such Person on
behalf of the Company, but in each case does not include service for any other
foreign or domestic limited liability company, corporation or any partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise.
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(c) “Proceeding”
means any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, arbitrative or investigative, any appeal in
such an action, suit or proceeding, and any inquiry or investigation that could
lead to such an action, suit or proceeding.
Section
10.2 Indemnification.The
Company shall indemnify every Indemnitee against all judgments, penalties
(including excise and similar taxes), fines, amounts paid in settlement and
reasonable expenses actually incurred by the Indemnitee in connection with
any
Proceeding in which he was, or is threatened to be, named as a defendant or
respondent, or in which he was or is a witness without being named as a
defendant or respondent, by reason, in whole or in part, of his serving or
having served, or having been nominated or designated to serve, in any of the
capacities referred to in Section 10.1, if it is determined in accordance with
Section 10.4 that the Indemnitee (a) conducted himself in good faith, (b)
reasonably believed, in the case of conduct in his Official Capacity, that
his
conduct was in the Company’s best interests and, in all other cases, that his
conduct was at least not opposed to the Company’s best interests, and (c) in the
case of any criminal proceeding, had no reasonable cause to believe that his
conduct was unlawful; provided, however, that in the event that an Indemnitee
is
found liable to the Company or is found liable on the basis that personal
benefit was improperly received by the Indemnitee, the indemnification (i)
is
limited to reasonable expenses actually incurred by the Indemnitee in connection
with the Proceeding and (ii) shall not be made in respect of any Proceeding
in
which the Indemnitee shall have been found liable for willful or intentional
misconduct in the performance of his duty to the Company. Except as provided
in
the proviso to the first sentence of this Section 10.2, no indemnification
shall
be made under this Section 10.2 in respect of any Proceeding in which such
Indemnitee shall have been (x) found liable on the basis that personal benefit
was improperly received by him, whether or not the benefit resulted from an
action taken in the Indemnitee’s Official Capacity, or (y) found liable to the
Company. The termination of any Proceeding by judgment, order, settlement or
conviction, or on a plea of nolo
contendere
or its
equivalent, is not of itself determinative that the Indemnitee did not meet
the
requirements set forth in clauses (a), (b) or (c) in the first sentence of
this
Section 10.2. An Indemnitee shall be deemed to have been found liable in respect
of any claim, issue or matter only after the Indemnitee shall have been so
adjudged by a court of competent jurisdiction after exhaustion of all appeals
therefrom. Reasonable expenses shall include, but not be limited to, all court
costs and all fees and disbursements of attorneys for the Indemnitee. The
indemnification provided herein shall be applicable whether or not negligence
or
gross negligence of the Indemnitee is alleged or proven.
Section
10.3 Successful
Defense.Without
limiting the generality of Section 10.2 and in addition to the indemnification
provided for in Section 10.2, the Company shall indemnify every Indemnitee
against reasonable expenses incurred by such Indemnitee in connection with
any
Proceeding in which he is a witness or a named defendant or respondent because
he served in any of the capacities referred to in Section 10.1, if such
Indemnitee has been wholly successful, on the merits or otherwise, in defense
of
the Proceeding.
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Section
10.4 Determinations.Any
indemnification under Section 10.2 (unless ordered by a court of competent
jurisdiction) shall be made by the Company only upon a determination that
indemnification of the Indemnitee is proper in the circumstances because he
has
met the applicable standard of conduct. Such determination shall be made by
written consent of the Management Directors. Determination as to reasonableness
of expenses shall be made in the same manner as the determination that
indemnification is permissible. In the event a determination is made under
this
Section that the Indemnitee has met the applicable standard of conduct as to
some matters but not as to others, amounts to be indemnified may be reasonably
prorated.
Section
10.5 Advancement
of Expenses.Reasonable
expenses (including court costs and attorneys’ fees) incurred by an Indemnitee
who was or is threatened to be made a named defendant or respondent in a
Proceeding shall be paid by the Company at reasonable intervals in advance
of
the final disposition of such Proceeding, and without making any of the
determinations specified in Section 10.4, after receipt by the Company of (a)
a
written affirmation by such Indemnitee of his good faith belief that he has
met
the standard of conduct necessary for indemnification by the Company under
this
Article and (b) a written undertaking by or on behalf of such Indemnitee to
repay the amount paid or reimbursed by the Company if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorized in this Article. Such written undertaking shall be an unlimited
obligation of the Indemnitee but need not be secured, and it may be accepted
without reference to financial ability to make repayment. Notwithstanding any
other provision of this Article, the Company may pay or reimburse expenses
incurred by an Indemnitee in connection with his appearance as a witness or
other participation in a Proceeding at a time when he has not been named as
a
defendant or respondent in the Proceeding.
Section
10.6 Other
Indemnification and Insurance.The
indemnification provided by this Article shall (a) not be deemed exclusive
of,
or to preclude, any other right to which those seeking indemnification may
at
any time be entitled under the Certificate, any law, agreement or written
consent of the Management Directors, or otherwise, or under any policy or
policies of insurance purchased and maintained by the Company on behalf of
any
Indemnitee, both as to action in an Official Capacity and as to action in any
other capacity, (b) continue as to a Person who has ceased to be in the capacity
by reason of which he was an Indemnitee with respect to matters arising during
the period he was in such capacity, (c) inure to the benefit of the heirs,
executors and administrators of such a Person, and (d) not be required if and
to
the extent that the Person otherwise entitled to payment of such amounts
hereunder has actually received payment herefore under any insurance policy,
contract or otherwise.
Section
10.7 Construction.The
indemnification provided by this Article shall be subject to all valid and
applicable laws, and in the event this Article or any of the provisions hereof
or the indemnification contemplated hereby are found to be inconsistent with
or
contrary to any such valid laws, the latter shall be deemed to control and
this
Article shall be regarded as modified accordingly and, as so modified, to
continue in full force and effect.
Section
10.8 Continuing
Offer, Reliance, etc.The
provisions of this Article (a) are for the benefit of, and may be enforced
by,
each Indemnitee of the Company, as if set forth in their entirety in a written
instrument duly executed and delivered by the Company and such Indemnitee and
(b) constitute a continuing offer to all present and future
Indemnitees.
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Section
10.9 Effect
of ▇▇▇▇▇▇▇▇▇.▇▇
amendment, modification or repeal of this Article or any provision hereof shall
in any manner terminate, reduce or impair the right of any past, present or
future Indemnitees to be indemnified by the Company, nor the obligation of
the
Company to indemnify any such Indemnitees, under and in accordance with the
provisions of the Article 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.
ARTICLE
XI
DISSOLUTION
AND FINAL LIQUIDATION
Section
11.1 Dissolution.Notwithstanding
the retirement, resignation, expulsion, bankruptcy or dissolution of the Member,
or the occurrence of any other event that terminates the continued membership
of
the Member in the Company, the term of the Company shall continue from the
date
of its formation in perpetuity, unless earlier dissolved on the earliest to
occur of:
(a) An
election to dissolve the Company made by written consent of the Member;
or
(b) The
entry
of a decree of judicial dissolution under the Act.
Section
11.2 Winding
Up.On
the
dissolution of the Company, the Company’s affairs shall be wound up as soon as
reasonably practicable. The winding up shall be accomplished by the Management
Directors.
Section
11.3 Distribution
of Assets.On
the
winding up of the Company, its assets shall be applied in the manner, and in
the
order of priority, provided for in the Act.
Section
11.4 Revocation
of Voluntary Dissolution ▇▇▇▇▇▇▇▇▇▇▇.▇▇
any
time before the filing of a certificate of cancellation with the Secretary
of
State, the Company may revoke voluntary dissolution proceedings by the written
consent of the Member.
ARTICLE
XII
AMENDMENT
Section
12.1 Amendment
of Agreement.This
Agreement may not be amended, supplemented or repealed except by the Member
in
writing.
ARTICLE
XIII
GENERAL
PROVISIONS
Section
13.1 Liability
to Third Parties.Except
as
otherwise expressly provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be the
debts, obligations and liabilities solely of the Company, and neither the Member
or any Director shall be obligated personally for any such debt, obligation
or
liability of the Company by reason of being the Member or a Director of the
Company.
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Section
13.2 Waiver
of Notice.
(a) Whenever,
under applicable law, the Certificate or this Agreement, any notice is required
to be given to the Member or any Director, a waiver thereof in writing signed
by
the Person or Persons entitled to such notice, whether before or after the
time
stated therein, shall be equivalent to the giving of such notice.
Section
13.3 Seal.If
one be
adopted, the Company seal shall have inscribed thereon the name of the Company
and shall be in such form as may be approved by the Management Directors. Such
seal may be used by causing it or a facsimile of it to be impressed or affixed
or in any manner reproduced.
Section
13.4 Fiscal
Year.The
fiscal year of the Company shall be the calendar year, or as the Member may
designate by resolution, subject to the provisions of Code § 706.
Section
13.5 Checks,
Notes, Etc.All
checks or demands for money and notes of the Company shall be signed by such
officer or officers or such other Person or Persons as the Management Directors
may from time to time designate by written consent. The Management Directors
may
authorize by written consent any officer or officers or such other Person or
Persons to enter into any contract or execute and deliver any instrument in
the
name of and on behalf of the Company, and such authority may be general or
confined to specific instances.
Section
13.6 Voting
Upon Securities by the Company. Unless
otherwise ordered by the Management Directors, the President, acting on behalf
of the Company, shall have full power and authority to attend and to act and
to
vote at any meeting of security holders of any corporation, partnership, limited
liability company or other entity in which the Company may hold interests and,
at any such meeting, shall posses and may exercise any and all of the rights
and
powers incident to the ownership of such interests which, as the owner thereof,
the Company might have possessed and exercised, if present. The Management
Directors by written consent from time to time may confer like powers upon
any
other individual or individuals.
Section
13.7 Titles
and Captions.All
article or section titles or captions in this Agreement are for convenience
only. They shall not be deemed part of this Agreement and in no way define,
limit, extend or describe the scope or intent of any provisions
hereof.
Section
13.8 Pronouns
and Plurals.Whenever
the context may require, any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa.
Section
13.9 Subject
to All Laws.The
provisions of this Agreement shall be subject to all valid and applicable laws,
including but not limited to the Act as now or hereafter amended, and in the
event that any of the provisions of this Agreement are found to be inconsistent
with or contrary to any such valid laws, the latter shall be deemed to control
and this Agreement shall be deemed modified accordingly and, as so modified,
to
continue in full force and effect.
Section
13.10 Allocation
of Profits and Losses; Tax Status.The
Company’s profits and losses shall be allocated to the Member. At all times that
the Company has only one member (who owns 100% of the membership interests
in
the Company), it is the intention of the Member that the Company be disregarded
for federal income tax purposes. No Person shall take any action that would
be
inconsistent with such treatment.
14
IN
WITNESS WHEREOF,
the
Member has executed this Agreement as of the day and year first above
written.
| ▇▇▇▇▇▇▇▇▇▇ Holdings, Inc. | ||
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| By: | ||
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| President | ||
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