Exhibit 2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
PMM GK INVESTMENT LLC
This Limited Liability Company Agreement, dated as of December
20, 1999 (this "Agreement"), of PMM GK Investment LLC, is entered into by ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, as the sole member (the "Member").
The Member hereby forms a limited liability company pursuant
to and in accordance with the Delaware Limited Liability Company Act (6 Del. C.
ss. 18-101, et seq.), as amended from time to time (the "Act"), and hereby
agrees as follows:
1. Name. The name of the limited liability company formed
hereby is PMM GK Investment LLC (the "Company").
2. Term. The term of the Company shall commence on the filing
of the certificate of formation of the Company attached hereto as Annex A (the
"Certificate of Formation") at the office of the Secretary of State of the State
of Delaware and shall continue in perpetuity, unless the Company is dissolved or
terminated pursuant to Section 9 of this Agreement.
3. Purpose. The Company is formed for the object and purpose
of, and the nature of the business to be conducted and promoted by the Company
is, engaging in any lawful act or activity for which limited liability companies
may be formed under the Act.
4. Registered Office. The address of the registered office of
the Company in the State of Delaware is c/o Corporation Trust Center, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Company may
also have offices at such other places within or without the State of Delaware
as the Member may from time to time designate or the business of the Company may
require.
5. Registered Agent. The name and address of the registered
agent of the Company for service of process on the Company in the State of
Delaware are The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
6. Principal Place of Business. The address of the principal
place of business of the Company is c/o Wilmington Trust Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
7. Member. The name and the mailing address of the Member are
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ c/o Wilmington Trust Company, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, n/o PMM GK Investment LLC, attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇.
8. Management of the Company. (a) The property, business and
affairs of the Company shall be managed and conducted by the Manager of the
Company, which Manager shall have the power to do any and all acts necessary or
convenient to or for the furtherance of the purposes described herein, including
all powers, statutory or otherwise, possessed by a "manager" (within the meaning
of Section 102(p) of the Act) under the laws of the State of Delaware. The
Manager of the Company may be appointed or removed by the Member at any time and
from time to time, with or without cause. Initially, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall be
Manager of the Company.
(b) The Company may only act and bind itself through the
actions of the Manager, or through the actions of the agents and employees of
the Company (as described in paragraph (c) of this Section 8) if and to the
extent authorized by this Agreement or by the Manager in accordance with the
provisions of this Agreement.
(c) The Manager may (i) authorize by written action any person
to enter into and perform any agreement on behalf of the Company, (ii) appoint a
President, one or more Vice Presidents, a Secretary, one or more Assistant
Secretaries and other officers of the Company, with the duties and powers
described in paragraphs (e) and (f) of this Section 8, and (iii) appoint
individuals, with such titles as he may select, as employees of the Company to
act on behalf of the Company, with such power and authority as the Manager may
delegate from time to time to any such person. Any such persons, officers and
employees designated by the Manager to act on behalf of the Company may be
appointed or removed by the Manager at any time and from time to time, with or
without cause.
(d) Any person or entity dealing with the Company, the Manager
or any of the persons described in paragraph (c) above (collectively, the
"Authorized Persons") may rely upon a certificate signed by the Manager (or the
Secretary of the Company), as to the identity of the Member, the Manager, or an
Authorized Person and as to the authority of the Manager or such Authorized
Person to execute and deliver any instrument or document on behalf of the
Company.
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(e) The Secretary and each Assistant Secretary, if any, of the
Company shall (i) keep the records of all meetings and written actions of the
Manager and the Member, (ii) be the custodian of all contracts, deeds, documents
and other indicia of title to properties owned by the Company and of its other
corporate records, (iii) perform all general duties and have all powers incident
to the office of the secretary of a corporation organized under the laws of
Delaware, and (iv) perform such other duties and exercise such other powers as
may from time to time be prescribed by the Manager. The duties of the Secretary
may be performed by one or more employees or agents of the Company, to be
appointed by the Manager.
(f) The President and each Vice President, if any, of the
Company shall perform such duties and exercise such powers as may be assigned to
each of them from time to time by the Manager and shall have the authority to
act on behalf of the Company, subject to the terms and conditions of this
Agreement.
9. Dissolution. The Company shall dissolve, and its affairs
shall be wound up upon the first to occur of the following: (a) the written
consent of the Member, (b) the resignation, expulsion, bankruptcy or dissolution
of the Member or (c) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
10. Initial Capital Contribution. The Member agrees to
contribute $100, in cash, and no other property, to the Company.
11. Additional Contributions. The Member shall have the right,
but not the obligation, to make additional capital contributions to the Company
at the times and in the amounts determined by the Member.
12. Distributions. Distributions may be made to the Member at
the times and in the aggregate amounts determined by the Manager.
Notwithstanding anything to the contrary contained herein, the Company, and the
Manager on behalf of the Company, shall not make a distribution to the Member on
account of the interest of the Member in the Company if such distribution would
violate Section 18-607 of the Act or any other applicable law.
13. Transfers. The Member shall be permitted to transfer all
or any portion of its interest in the Company. One or more additional members
may be admitted to the Company with the consent of the Member, and this
Agreement shall thereupon be amended, in a writing signed by the Member, as
necessary or appropriate to reflect the fact that there is more than one Member.
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14. Tax Matters. The Member shall not permit the Company to
elect, and the Company shall not elect, to be treated as an association taxable
as a corporation for U.S. federal, state or local income tax purposes under
Treasury Regulations section 301.7701-3(a), or under any corresponding provision
of state or local law.
15. Resignation. The Member may not resign from the Company.
16. Liability of the Member. Except as otherwise provided by
the Act or herein, 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 a member of the Company.
17. Exculpation. (a) Neither the Manager, any Authorized
Person, nor any of their respective affiliates, directors, advisory directors,
members, officers or em ployees (each, a "Covered Person"), shall be liable to
the Company or the Member for any loss, liability, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Company. Whenever in this Agreement a Covered Person
is permitted or required to make decisions in good faith, the Covered Person
shall act under such standard and shall not be subject to any other or different
standard imposed by this Agreement or any relevant provisions of law or in equi
ty or otherwise.
(b) A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any person or entity as to
matters the Covered Person reasonably believes are within such person's or
entity's professional or expert competence.
18. Fiduciary Duty. To the extent that, at law or in equity, a
Covered Person has duties (including fiduciary duties) and liabilities relating
thereto to the Com pany or to the Member, a Covered Person acting under this
Agreement shall not be liable to the Company or to the Member for such Covered
Person's good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Covered
Person.
19. Indemnification. To the fullest extent permitted by
applicable law, a Covered Person shall be entitled to indemnification from the
Company for any costs and expenses (including attorneys' fees and
disbursements), loss, liability, damage or claim incurred by such Covered Person
by reason of any act or omission performed or omitted
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by such Covered Person in good faith on behalf of the Company. To the fullest
extent permitted by applicable law, expenses (including attorneys' fees and
disbursements) incurred by a Covered Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or
proceeding, subject to recapture by the Company following a later determination
that such Covered Person was not entitled to be indemnified hereunder.
20. Amendment, Waiver, Etc. This Agreement may not be amended
or supplemented, and no waiver of or consent to departures from the provisions
hereof shall be effective, unless set forth in a writing signed by all the
Members of the Company at the time thereof.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED UNDER, THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES), ALL RIGHTS AND REMEDIES BEING GOVERNED BY SAID LAWS.
22. Authorized Person. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (or such other person
as may from time to time be designated by the Manager for such purpose) is
hereby designated as an authorized person, within the meaning of the Act, to
execute, deliver and cause to be filed the certificate of formation of the
Company (and any amendments and/or restatements thereof) and 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.
23. Miscellaneous. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto. This
Agreement shall be binding upon and inure to the benefit of all parties hereto
and their successors and permitted assigns. Except as provided in Sections 17
and 19 herein with respect to the exculpation and indemnification of Covered
Persons, nothing in this Agreement shall confer any rights upon any person or
entity other than the parties hereto and their successors and permitted assigns.
The invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provision was
omitted.
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IN WITNESS WHEREOF, the undersigned, being the sole Member of
the Company, intending to be legally bound hereby, has duly executed this
Agreement as of the date first above written.
PMM GK INVESTMENT LLC
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Member