Exhibit 3.11
LIMITED LIABILITY COMPANY AGREEMENT
OF
PCA NATIONAL LLC
a Delaware limited liability company
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") is intended to
constitute an operating agreement in accordance with the provisions of the
Delaware Limited Liability Company Act as in effect in Delaware (the "Act") and
is made and entered into as of the 2nd day of July, 2000 by PCA INTERNATIONAL,
INC., a North Carolina corporation as the sole member (the "Sole Member") of PCA
NATIONAL LLC, a Delaware limited liability company (the "LLC").
1. Single Member Limited Liability Company. The LLC shall have one member. In
the event that the Sole Member transfers any portion of its interest in the LLC,
the LLC admits a new member, or if for any other reason there is ever more than
one member of the LLC (including assignees of any member), it is the intent of
the Sole Member to amend and restate this Agreement to govern the business and
activities of the LLC and the relationships among its members. No transfer,
assignment, admission, or any other event resulting in the LLC having, or being
deemed to have, more than one member for any purpose shall be effective unless
and until (a) this Agreement is amended by a written amendment approved in
writing by the Sole Member, or its Personal Representative (as defined in
paragraph 13) and executed by all members of the LLC; or (b) the Sole Member or
her Personal Representative elects in writing to waive such requirement.
2. Formation. Effective 11:55 p.m. July 2, 2000 PCA National, Inc., a North
Carolina corporation, merged with and into PCA Delaware Merger Corporation, a
Delaware corporation, which corporation effective 11:57 p.m. July 2, 2000
converted by filing into PCA National East LLC, a Delaware limited liability
company, which limited liability company effective July 19, 2000 changed its
name to PCA National LLC. The LLC originally was formed on July 2, 2000 (the
"Formation Date") upon the filing of the Certificate of Formation of the LLC
(the "Certificate") in the Office of the Secretary of State of Delaware.
3. Purpose. The purpose of the LLC is to (i) serve as general partner of PCA
National of Texas, L.P. and to engage in such other business and activities as
the Sole Member shall deem appropriate, (ii) to own, hold, maintain, encumber,
lease, sell, transfer or otherwise dispose of all property or assets or
interests in property or assets as may be necessary, appropriate or convenient
to accomplish the activities described in clause (i) above, (iii) to incur
indebtedness or obligations in furtherance of the activities described in
clauses (i) and (ii) above, (iv) to conduct such other activities as may be
necessary or incidental to the foregoing, all on the terms and conditions and
subject to the limitations set forth in this Agreement, and (v) to carry on any
other lawful business.
4. Registered Agent; Registered Office. The LLC shall have and maintain a
registered office and registered agent in the State of Delaware. The LLC's
registered agent and registered office in Delaware are set forth in the
Certificate, either of which may be changed from time to time by the Sole
Member.
5. Commencement and Term. The LLC commenced at the time and on the date of the
filing of the initial Certificate and shall continue until it is dissolved, its
affairs are wound up, and final liquidating distributions are made pursuant to
this Agreement.
6. Capital Contributions. The Sole Member shall have no obligation to make, or
have any liability for, any additional capital contributions to or for the
benefit of the LLC; provided, however, that the Sole Member may, in such Sole
Member's sole and absolute discretion, elect to make additional capital
contributions to the LLC at such times and in such amounts as the Sole Member
may determine. Except as otherwise explicitly required by the Act, the Sole
Member shall not be liable for any debts, obligations, liabilities, losses of
capital or profits of the LLC whether arising in contract, tort, or otherwise,
or be required to contribute or lend funds to the LLC.
7. Distributions. Prior to the dissolution and winding up of the LLC,
distributions may be made from time to time at such times and in such amounts as
the Sole Member, in its absolute discretion, may determine subject to
requirements of the Act.
8. Allocations; Tax Consequences. Profits and losses of the LLC shall be
allocated to the Sole Member as of the end of each calendar year. The Sole
Member is aware that from and after Formation Date, for so long as the LLC has
only one member, under current federal and North Carolina laws and regulations,
for federal and North Carolina tax purposes the existence of the LLC is ignored
and all profits and losses of the LLC are treated as received directly by the
Sole Member in its capacity as a corporate taxpayer. The Sole Member
acknowledges that if the LLC ever has more than one member (including
assignees), the tax treatment of the LLC and of the Sole Member (with respect to
its interest as member of the LLC) will change. Furthermore, changes in
applicable laws and regulations could result in a change in the tax treatment of
the LLC and the Sole Member in her capacity as a member of the LLC.
9. Management; Authorized Member. In accordance with the Certificate, and as
governed by the Bylaws of the Company, the management of the LLC shall be vested
in the Board of Managers. Accordingly, the LLC shall be manager-managed and
shall not be member-managed.
10. Limitation of Liability; Indemnification; Insurance. Notwithstanding any
other provision to the contrary in this Agreement or in the Bylaws of the
Company, no Member or Manager shall be liable, responsible, or accountable in
damages or otherwise to the LLC or to any member or assignee of a member for any
loss, damage, cost, liability, or expense incurred by reason of or caused by any
act or omission performed or omitted by such Member or Manager. To the fullest
extent permitted by applicable law, the LLC shall indemnify and save harmless
each Member and Manager from and against any and all claims, liabilities,
damages, losses, costs, and expenses of any nature whatsoever that are incurred
by the Member or a Manager and arise out of or in connection with the business
and activities of the LLC or the performance by the Member or a Manager of any
of its responsibilities under this Agreement. The LLC shall have authority to
apply for and obtain property and casualty insurance and any and all other types
of insurance as
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the Board of Managers determines to be helpful or necessary to the business or
activities of the LLC.
11. Transfer of Interests. The Sole Member may transfer all or any portion of
its interest the LLC subject to the satisfaction of the requirements specified
in paragraph 1 of this Agreement.
12. Dissolution. The LLC shall dissolve only upon the first to occur of (a) the
written consent of the Sole Member that the LLC should be dissolved; or (b) the
entry of a decree of judicial dissolution under Section 18-802 of the Act. The
death, retirement, resignation, expulsion, bankruptcy or dissolution of any
member or the occurrence of any event that terminates the continued membership
of any member shall not cause the LLC to be dissolved or its affairs to be wound
up.
13. Death, Incompetency Bankruptcy of Sole Member. If (a) the Sole Member is a
natural person and dies or if a court of competent jurisdiction adjudges her to
be incompetent to manage her person or her property, or (b) the Sole Member is a
person other than a natural person and there occurs an "Event of Bankruptcy" as
defined in Act Section 18-304 with respect to such Sole Member, then the Sole
Member's Personal Representative (as defined below) may exercise all of the Sole
Member's rights for the purposes of settling his or her estate or administering
his or her property. For purposes of this Agreement the term "Personal
Representative" means, as to a natural person, the executor, administrator,
guardian, conservator, attorney-in-fact, or other legal representative or
successor thereof and, as to a person other than a natural person, the legal
representative or successor thereof.
14. Entire Agreement; Amendments. This Agreement, the Certificate, and the
Bylaws together constitute the entire agreement with respect to the affairs of
the LLC and the conduct of its business and activities and supersedes all prior
agreements and understandings, whether oral or written. Notwithstanding the
foregoing, in the event of any conflict among the foregoing instruments, the
provisions of the Certificate take precedence over all other instruments, and
this Agreement takes precedence over the Bylaws. The LLC shall have no oral
limited liability company agreements. This Agreement may be amended only by a
written amendment approved in writing by the Sole Member or its Personal
Representative or duly authorized representative.
15. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision hereof is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the legality or validity of the
remainder of this Agreement.
16. Governing Law. The laws of the State of Delaware shall govern the validity
of this Agreement, the construction and interpretation of its terms, and
organization and internal affairs of the LLC and the limited liability of the
Members and assignees.
17. Title to Assets; Transactions. The LLC shall keep title to all of its assets
in its own name and not in the name of its Sole Member or any other entity. The
LLC shall
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enter into and engage in all transactions in its own name and not in the name of
its Sole Member or any other entity. In furtherance thereof, the LLC shall
evidence its execution of instruments as follows:
PCA NATIONAL LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx Xxxx
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Title: President
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IN WITNESS WHEREOF, the Sole Member has executed this Agreement as of July 2,
2000.
Sole Member:
PCA INTERNATIONAL, INC.,
a North Carolina corporation
By: /s/ Xxxxx Xxxxxx Xxxx, Xx.
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Name: Xxxxx Xxxxxx Xxxx, Xx.
Title: Secretary
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