LIMITED LIABILITY COMPANY AGREEMENT OF CASCADES ENVIROPAC HPM LLC
Exhibit 3.18
This Agreement is made effective as of the 5th day of June, 2007, by the Person
whose signature appears at the end hereof.
ARTICLE 1
DEFINITIONS
DEFINITIONS
Section 1. Definitions. In this Agreement, the following terms shall have the meanings
set forth below:
| (a) | “Agreement” shall mean the Limited Liability Company Agreement. | ||
| (b) | “Board of Managers” shall mean the Managers of the Company, collectively. | ||
| (c) | “Capital Contribution” shall mean any contribution by the Member to the capital of the Company in cash or property. | ||
| (d) | “Certificate of Formation” shall mean the Certificate of Formation of the Company filed with the Delaware Secretary of State on June 5, 2007, as it may from time to time be amended. | ||
| (e) | “Company” shall refer to Cascades Enviropac HPM LLC, a Delaware limited liability company. | ||
| (f) | “LLC Act” shall mean the Delaware Limited Liability Company Act. | ||
| (g) | “LLC Interest” shall mean the limited liability company interest of a Member in the Company. | ||
| (h) | “Manager” shall mean any Person appointed or elected, from time to time, as a Manager of the Company to manage the business and affairs of the Company pursuant to this Agreement. | ||
| (i) | “Member” shall mean Cascades Auburn Fiber Inc. | ||
| (j) | “Officer” shall mean an agent of the Company elected by the Board of Managers, as provided in Article 5 of this Agreement. | ||
| (k) | “Person” shall mean any individual, corporation, limited liability company, partnership, trust, unincorporated association or other entity. |
ARTICLE 2
FORMATION
FORMATION
Section 2.1 Formation. The Company was organized as a Delaware limited liability
company under and pursuant to the LLC Act by the filing of the Certificate of Formation with the
Delaware Secretary of State on June 5, 2007.
Section 2.2 Name. The name of the Company is Cascades Enviropac HPM LLC, and all
Company business shall be conducted in that name or such other names as the Board of Managers may
select from time to time in compliance with applicable law.
Section 2.3 Principal Office. The principal office of the Company shall be located at
000 Xxxxxxx Xxxxxx X.X., Xxxxx Xxxxxx, Xxxxxxxx.
Section 2.4 Registered Office. The registered office of the Company in the State of
Delaware is located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
New Castle County.
Section 2.5 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 is The Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
Section 2.6 Purpose and Powers. The purpose of the Company is to engage in any
activity for which limited liability companies may be organized in the State of Delaware. The
Company shall possess and may exercise all of the powers and privileges granted by the Act or by
any other law or by this Agreement, together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion or attainment of the
business purposes or activities of the Company.
Section 2.7 Term. The Company began on the date the Certificate of Formation was
filed with the Delaware Secretary of State and shall continue until terminated in accordance with
the terms of this Agreement.
Section 2.8 Tax Classification of the Company. The Member intends and agrees that the
Company initially will be classified as a disregarded entity for federal and state income tax
purposes.
Section 2.9 Adoption of this Agreement. The Member hereby adopts this Agreement as
the Limited Liability Company Agreement of the Company pursuant to the LLC Act.
ARTICLE 3
MEMBERSHIP
MEMBERSHIP
Section 3.1 Member. The name and address of the sole Member is Cascades Auburn Fiber
Inc., 000 Xxxxxxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000. The Member shall be the owner of all of the
LLC Interests of the Company.
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Section 3.2 Capital Contribution. The Member shall make an initial Capital
Contribution to the Company of $2,850,000. Any additional Capital Contributions by the Member
shall be made at such time and in such amount and manner as determined by the Member.
Section 3.3 Rights and Powers of Member. The Member shall not have any right or power
to take part in the management or control of the Company or its business and affairs or to act for
or bind the Company in any way. Notwithstanding the foregoing, the Member has all the rights and
powers specifically set forth in this Agreement and, to the extent not inconsistent with this
Agreement, in the Act. The Member has no voting rights except with respect to those matters
specifically set forth in this Agreement and, to the extent not inconsistent herewith, as required
in the Act. Notwithstanding any other provision of this Agreement, no action may be taken by the
Company (whether by the Board of Managers, or otherwise) in connection with any of the following
matters without the vote or written consent of the Member:
| (a) | The dissolution or liquidation, in whole or in part, of the Company, or the institution of proceedings to have the Company adjudicated bankrupt or insolvent; | ||
| (b) | The filing of a petition seeking or consenting to reorganization or relief under any applicable federal or state bankruptcy law; | ||
| (c) | The consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property; | ||
| (d) | The merger of the Company with any other entity; | ||
| (e) | The sale of all or substantially all of the Company’s assets; or | ||
| (f) | The amendment of the Certificate of Formation of this Agreement. |
Section 3.4 Action Without Meeting. Any action required to be taken by vote of the
Member may be taken without a vote if a consent in writing, setting forth the action so taken,
shall be signed by the Member.
Section 3.5 Liability to Third Parties. The Member, by virtue of its status as a
Member or its ownership of the LLC Interests, shall not be liable for the debts, obligations or
liabilities of the Company, including, but not limited to, a judgment, decree or court order.
Section 3.6 Distributions.
| (a) | From time to time, the Company shall distribute to the Member any cash or property which is deemed available for distribution, whether that cash or property results from operations, sales of assets, borrowings or otherwise. The amount which shall be deemed to be “available for distribution” shall be determined by the Board of Managers. |
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| (b) | As required by the LLC Act, no Distribution shall be made if, after giving effect to such Distribution, the total liabilities of the Company, other than liabilities to the Member on account of its LLC Interests and liabilities of the Company for which the recourse of creditors is limited to specific property, exceeds the fair market value of the assets of the Company; the fair market value of property that is subject to a liability for which the recourse of creditors is limited shall be included in the assets of the Company only to such extent that the fair market value of the property exceeds such liability. |
ARTICLE 4
MANAGEMENT
MANAGEMENT
Section 4.1 Board of Managers. Except as otherwise specifically provided by this
Agreement (including, without limitation, Section 3.3), the Board of Managers shall have the
exclusive right to manage the Company’s business. The Board of Managers shall consist of the
Managers of the Company. Initially, there shall be 2 Managers, Xxxxx Xxxxxxx and Xxxxx Xxxxxxxx
shall serve as the initial Managers. The number of Managers may be increased or decreased (but not
below one) by the vote or written consent of the Member. No decrease in the number of Managers
constituting the Board of Managers shall shorten the term of any incumbent Manager.
Section 4.2 Election of Managers. The Managers shall be elected by the Member. Upon
the death, incapacity, resignation or removal of any Manager, a replacement Manager shall be
elected by the Member.
Section 4.3 Term of Manager; Removal. A Manager shall not have a contractual right to
such position. A Manager shall serve until the earliest of: (a) the death, incapacity or
resignation of such Manager; or (b) the removal of such Manager by the vote or written consent of
Member.
Section 4.4 Resignation of Manager. A Manager may resign as a Manager at any time.
Section 4.5 Removal of Manager. A Manager may be removed, at any time, with or
without cause, by the Member.
Section 4.6 Meeting of the Managers. The Board of Managers shall meet regularly, and
at no time less than quarterly, to discuss the business of the Company and to make any decisions
regarding the business of the Company. A meeting of the Board of Managers may be called by any
Manager. Such meetings shall be held at the principal office of the Company or such other place as
a majority of the Managers decide. Notice of the time, place, and purpose of any meeting of the
Managers shall be sent by the Manager calling such meeting to the other Managers of the Company
personally, by facsimile, or by mail, at least five business days before such meeting.
Section 4.7 Actions of the Managers. Subject to the provisions of Section 3.3 of this
Agreement, each Manager has the power to bind the Company as provided in this Article 4; provided,
however, that all decisions of the Company within the authority of the Board of
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Managers shall be decided by a majority of the Managers. No act of a Manager in contravention
of such determination shall bind the Company to persons having knowledge of such determination.
The act of a Manager for the purpose of apparently carrying on the usual business or affairs of the
Company, including the exercise of the authority indicated in this Article 4, shall bind the
Company to persons not having knowledge of a determination to the contrary, and no person dealing
with the Company shall have any obligation to inquire into the power or authority of Manager to
act on behalf of the Company. Each Manager agrees to indemnify the Company for any act of such
Manager in contravention of the decision of the Board of Managers.
Section 4.8 Compensation. Except as decided by the Member, a Manager shall not
receive any fees or salaries for serving as a Manager of the Company. The Manager shall, however,
be entitled to be reimbursed for the reasonable expenses incurred by him in performing his duties
as the Manager of the Company.
Section 4.9 Powers of Manager. Except as specially reserved to the Member in this
Agreement, the Board of Managers shall have complete discretion, power and authority in the
management and control of the business of the Company, shall make all decisions affecting the
business of the Company and shall manage and control the affairs of the Company to carry out the
business and purposes of the Company. Without limiting the generality of the foregoing, the Board
of Managers is hereby authorized to:
| (a) | Expend Company funds in furtherance of the purposes of the Company; | ||
| (b) | Invest and reinvest in securities or other property of any character, real or personal, including, but not limited to, common and preferred stocks, bonds, notes, debentures, mortgages, leases and partnership interests (general or limited); | ||
| (c) | Sell, exchange or otherwise dispose of any such securities or other property at public or private sale and to grant options for the purchase, exchange or other disposition thereof, and to exercise or sell any options and any conversion, subscription, voting and other rights, discretionary or otherwise, in respect thereof. | ||
| (d) | Manage and keep in force such insurance as may be required to reasonably protect the Company and its assets; | ||
| (e) | Borrow money for and on behalf of the Company and to incur and/or guarantee obligations for and on behalf of the Company, on such terms and at such rates of interest as the Board of Managers may deem advisable and proper; | ||
| (f) | Pledge the credit of the Company and grant security interests in Company assets for Company purposes; | ||
| (g) | Employ such agents, employees, independent contractors, attorneys and accountants as the Board of Managers deems reasonably necessary; |
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| (h) | Commence, defend, compromise or settle any claims, proceedings, actions or litigation for and on behalf of the Company; | ||
| (i) | Execute, deliver, file and/or record any and all instruments, documents or agreements of any kind which the Board of Managers may deem appropriate or as may be necessary or desirable to carry out the purposes of the Company; and | ||
| (j) | Take such other actions as the Board of Managers may reasonably believe to be necessary or desirable to carry out the purposes of the Company. |
Section 4.10 Books and Records. The Board of Managers shall keep or cause to be kept
complete and accurate books and records of the Company as required under Section 18-305 of the LLC
Act, as well as supporting documentation of transactions with respect to the conduct of the
Company’s business.
Section 4.11 Bank Accounts. All funds of the Company shall be deposited in a bank
account or accounts opened in the Company’s name. The Board of Managers shall determine the
institution or institutions at which the accounts will be opened and maintained, the types of
accounts, and the Persons who will have authority with respect to the accounts and the funds
therein.
Section 4.12. Fiduciary Duties of Manager. The Manager shall perform his duties in
good faith and with that degree of care that an ordinarily prudent person in a like position would
use under similar circumstances. In performing his duties, the Manager shall be entitled to rely
on information, opinions, reports or statements, including financial statements and other financial
data, in each case prepared or presented by (i) one or more agents or employees of the Company, or
(ii) counsel, public accountants or other persons as to matters that the Manager believes to be
within such Person’s professional or expert competence. A Manager who so performs the duties of a
manager in accordance with this Section 4.12 shall have no liability by reason of being or having
been a Manager of the Company.
Section 4.13 Liability of Manager. The Manager of the Company shall not be liable for
any debts, obligations or liabilities of the Company, whether arising in tort, contract or
otherwise, solely by reason of being the Manager or acting (or omitting to act) in such capacity or
participating in the conduct of the business of the Company.
ARTICLE 5
OFFICERS OF THE COMPANY
OFFICERS OF THE COMPANY
Section 5.1 Election of Officers. The Board of Managers may elect a President, a
Treasurer, one or more Vice Presidents and such other Officers as they may determine. Any
vacancies in such offices shall be filled in the same manner. Each such Officer shall serve at the
pleasure of the Board of Managers and until his successor shall have been duly elected and
qualified, unless he shall die, resign or be removed. Any two or more offices may be held by the
same person.
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Section 5.2 Removal of Officers. Any Officer of the Company may be removed with or
without cause by the Board of Managers whenever in it judgment the best interests of the Company
will be served thereby.
Section 5.3 Compensation. The Board of Managers shall fix the compensation, if any,
of all Officers of the Company who are appointed by the Board of Managers.
Section 5.4 President. The President shall preside at all meetings of the Members and
the Board of Managers and shall have general charge of the business of the Company, subject to the
control and direction of the Board of Managers. In general, the President shall have all the
powers and perform all the duties normally incident to the office of president of a business
corporation under the Delaware General Corporation Law, together with such other powers and duties
as may from time to time be properly prescribed by the Board of Managers.
Section 5.5 Vice President. Any one of the Vice Presidents may be designated by the
Board of Managers as an Executive Vice President. At the request of the President or in his
absence or during his disability, the Executive Vice President shall perform the duties and
exercise the functions of the President. If there be no Executive Vice President, the Vice
President designated by the Board of Managers shall perform such duties and exercise such functions
in such case. Each Vice President shall have such other powers and duties as may from time to time
be prescribed by the Board of Managers or the President.
Section 5.6 Secretary. The Secretary shall attend all meetings of the Board of
Managers and of the Members, and shall record all votes in the minutes of all such proceedings in a
book to be maintained for such purpose. He shall give or cause to be given notice of all meetings
of Members and of the Board of Managers. He shall be the custodian of the seal of the Company and
shall affix the seal to any instrument when authorized by the Board of Managers. He shall keep all
the documents and records of the Company, as required by law or otherwise, in a proper and safe
manner. The Secretary shall have such other powers and duties as may from time to time be properly
prescribed by the Board of Managers or the President.
Section 5.7 Treasurer. The Treasurer shall be the chief financial officer of the
Company and shall keep correct and complete books and records of account for the Company. Subject
to the control and supervision of the Board of Managers and the President, or such other officer as
the President may designate, the Treasurer shall establish and execute programs for the provision
of the capital required by the Company, including negotiating the procurement of capital and
maintaining adequate sources for the Company’s current borrowings from lending institutions. He
shall maintain banking arrangements to receive, have custody of and disburse the funds and
securities of the Company. He shall invest the funds of the Company as required, establish and
coordinate policies for investment in pension and other similar accounts due the Company. The
Treasurer shall have such other powers and duties as may from time to time be properly prescribed
by the Board of Managers or the President.
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ARTICLE 6
INDEMNIFICATION
INDEMNIFICATION
Section 6.1 Indemnification of the Members and Managers. The Company shall indemnify,
defend and hold harmless the Member and each Manager, and the heirs, beneficiaries
and legal representatives of each Member and Manager (each, an “Indemnified Party”) from and
against any and all actual or alleged losses, claims, damages, liabilities, costs and/or expenses
(collectively, “Damages”) of any nature whatsoever, including without limitation, attorneys’ fees,
arising out of or in connection with any action taken or omitted by a Member or Manager pursuant to
authority granted by or otherwise in connection with this Agreement; provided, however, that no
indemnification may be made to or on behalf of any Indemnified Party if a judgment or other final
adjudication adverse to the Member or Manager establishes (i) that the Member’s or Manager’s acts
were committed in bad faith or were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated or (ii) that the Member or Manager personally gained
in fact a financial profit or other advantage to which such the Member or Manager was not legally
entitled. Any indemnity under this Section 6.1 shall be paid out of, and to the extent of, Company
assets only, including insurance proceeds if available.
Section 6.2 Advancement of Expenses. All expenses reasonably incurred by an
Indemnified Party in connection with a threatened or actual action or proceeding with respect to
which such Person is or may be entitled to indemnification under this Article 6 shall be advanced
or promptly reimbursed by the Company to such Indemnified Person in advance of the final
disposition of such action or proceeding upon receipt of an undertaking by such Indemnified Person
or on such Indemnified Person’s behalf to repay the amount of such advances, if any, as to which
such Indemnified Person is ultimately found not to be entitled to indemnification or where
indemnification is granted, to the extent such advances exceed the indemnification to which such
Indemnified Person is entitled.
Section 6.3 Contractual Article. No repeal or amendment of this Article 6, insofar as
it reduces the extent of the indemnification of any Person who could be an Indemnified Party
shall, without the written consent of such Person, be effective as to such Person with respect to
any event, act or omission occurring or allegedly occurring prior to the (a) date of such repeal of
amendment if on that date such Person is not serving in any capacity for which such Person could be
an Indemnified Party or (b) the thirtieth (30th) day following delivery to such Person
of written notice of such amendment as to any capacity in which such Person is serving on the date
of such repeal or amendment for which such Person could be an Indemnified Party. No amendment of
the LLC Act shall, insofar as it reduces the permissible extent of the right of indemnification of
an Indemnified Party under this Article 6, be effective as to such Indemnified Party with respect
to any event, act or omission occurring or allegedly occurring prior to the effective date of such
amendment. This Article 6 shall be binding on any successor to the Company, including any limited
liability company, corporation or other entity which acquires all or substantially all of the
Company’s assets.
Section 6.4 Insurance. The Company may, but need not, maintain insurance insuring the
Company or Persons entitled to indemnification under this Article 6 for liabilities against which
they are entitled to indemnification under this Article 6 or insuring such Persons for liabilities
against which they are not entitled to indemnification under this Article 6.
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Notwithstanding the
foregoing, the Company shall not conduct any clinical trials without previously obtaining ordinary
and customary insurance.
Section 6.5 Non-Exclusivity. The indemnification provided by this Article 6 shall not
be deemed exclusive of any other rights to which any Person covered hereby may be entitled
other than pursuant to this Article 6. The Company is authorized to enter into agreements
with any such Person or Persons providing them rights to indemnification or advancement of expenses
in addition to the provisions therefor in this Article 6 to the full extent permitted by law.
Section 6.6 Indemnification of Employees or Agents. The Company, by the written
resolution of the Board of Managers, may indemnify and advance expenses to an Officer, employee or
agent of the Company to the same extent and subject to the same conditions under which
the Company may indemnify and advance expenses to a Member or Manager under this Article 6;
and the Company may indemnify and advance expenses to Persons who are not or were not Officers,
employees or agents of the Company, but who are or were serving at the request of the Company as a
manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic limited liability company, corporation, partnership,
joint venture, sole proprietorship, trust employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in such a capacity or arising out of such
Person’s status as such a Person to the same extent that the Company may indemnify and advance
expenses to a Member under this Article 6.
ARTICLE 7
DISSOLUTION
DISSOLUTION
Section 7.1 Dissolution. The Company shall be dissolved and its affairs wound up,
only upon the vote or written consent of the Member.
Section 7.2 Winding Up. Upon the dissolution of the Company, the Board of Managers
shall wind up the Company’s affairs and satisfy the Company’s liabilities. The Board of Managers
shall liquidate all of the Company’s assets as quickly as possible consistent with obtaining the
full fair market value of said assets. During this period, the Board of Managers shall continue to
operate the Company and all of the provisions of this Agreement shall remain in effect. The Board
of Managers shall notify all known creditors and claimants of the dissolution of the Company in
accordance with the LLC Act.
Section 7.3 Final Distribution. The proceeds from the liquidation of the Company’s
assets shall be distributed in the following order of priority: (a) to the payment of all
liquidating expenses, including accounting and legal fees, and all costs of sale; (b) to creditors
of the Company in satisfaction of the liabilities of the Company, whether by payment or by
establishment of adequate reserves; and (c) to the Member.
Section 7.4 Certificate of Cancellation. On completion of the distribution of the
Company’s assets as provided herein, the Company shall be terminated, and the Board of Managers (or
such other Person or Persons as the LLC Act may required or permit) shall file a certificate of
cancellation with the Delaware Secretary of State, and take such other actions as may be necessary
to terminate the Company.
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ARTICLE 8
MISCELLANEOUS
MISCELLANEOUS
Section 8.1 Amendment of Certificate of Formation or this Agreement. The Certificate
of Formation or this Agreement may be amended only by the vote or written consent of the Member.
Section 8.2 Governing Law. This Agreement and the obligations of the Member and the
Managers hereunder shall be interpreted, construed and enforced in accordance with the laws of the
State of Delaware.
Section 8.3 Severability. If any provisions of this Agreement or the application of
the provisions of this Agreement to any person or circumstance shall be invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such provisions to other persons
or circumstances shall not be affected thereby and shall be enforced to the extent permitted by law.
Section 8.4 Captions. The captions used
in this Agreement are inserted for convenience only and are not part of this Agreement.
Section 8.5 Gender. The masculine, feminine or neuter pronouns used in this Agreement
shall be deemed to includes the masculine, feminine or neuter genders, as appropriate.
Section 8.6 No Rights Created in Third Persons. This Agreement is intended solely for
the benefit of the party hereto and does not create any rights in persons not a party to this
Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the Member has signed this Agreement as of the date first written above.
| Cascades Auburn Fiber Inc. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||
| Xxxxxxxx Xxxxxxxx | ||||
| Assistant Secretary | ||||
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