LIMITED LIABILITY COMPANY AGREEMENT OF IBC TRUCKING, LLC
Table of Contents
Page | ||||||
ARTICLE I — DEFINITIONS | 1 | |||||
1.1 |
Terms Defined Herein | 1 | ||||
ARTICLE II — BUSINESS; POWERS AND OFFICES | 2 | |||||
2.1 |
Name; Business | 2 | ||||
2.2 |
Powers | 2 | ||||
2.3 |
Principal Office | 3 | ||||
2.4 |
Liability of Member | 3 | ||||
ARTICLE III — OWNERSHIP INTEREST; DISTRIBUTIONS | 3 | |||||
3.1 |
Interest | 3 | ||||
3.2 |
Voting | 4 | ||||
3.3 |
Distributions | 4 | ||||
ARTICLE IV — MANAGEMENT | 4 | |||||
4.1 |
Management | 4 | ||||
4.2 |
Action by the Member | 6 | ||||
ARTICLE V — ACCOUNTING MATTERS | 7 | |||||
5.1 |
Fiscal Year | 7 | ||||
5.2 |
Books and Records | 7 | ||||
ARTICLE VI — DISSOLUTION AND TERMINATION | 7 | |||||
6.1 |
Events Causing Dissolution | 7 | ||||
6.2 |
Effect of Dissolution | 7 | ||||
6.3 |
Application of Proceeds | 7 | ||||
ARTICLE VII — MISCELLANEOUS | 8 | |||||
7.1 |
Title to the Property | 8 | ||||
7.2 |
Notices | 8 | ||||
7.3 |
Notices and Determinations | 8 | ||||
7.4 |
No Third Party Rights | 8 | ||||
7.5 |
Amendments to this Agreement | 8 | ||||
7.6 |
Severability | 8 | ||||
7.7 |
Binding Agreement | 8 | ||||
7.8 |
Headings | 8 | ||||
7.9 |
Governing Law | 9 |
i
THIS LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), is made as of the 30th day of
May, 2004, by IBC Trucking, LLC, a Delaware limited liability company (the “Company”), and IBC
Sales Corporation, a Delaware corporation (the “Member”).
The Member has caused the Company to be formed as a limited liability company under the
Delaware Limited Liability Company Act and the Member desires to adopt this Agreement as the
limited liability company agreement of the Company.
In consideration of the premises and the agreements contained herein, the undersigned declare
and agree as follows:
1.1 Terms Defined Herein. As used herein, the following terms shall have the following meanings,
unless the context otherwise specifies:
“Act” means the Delaware Limited Liability Company Act, as amended from time to time.
“Agreement” means the Limited Liability Company Agreement of the Company, as amended from time
to time.
“Board of Directors” or “Board” means the board of directors of the Company established under
Section 4.1 hereof.
“Certificate” means the Certificate of Formation of the Company filed with the Delaware
Secretary of State, as amended from time to time.
“Company” means IBC Trucking, LLC, a Delaware limited liability company.
“Director” means a member of the Board of Directors.
“Interest” refers to all of the Member’s rights and interests in the Company in the Member’s
capacity as a Member, all as provided in the Certificate, this Agreement and the Act, including,
without limitation, the Member’s interest in the capital, income, gain, deductions, losses, and
credits of the Company.
“Member” means IBC Sales Corporation, a Delaware corporation, or any successor-ininterest to
IBC Sales Corporation who becomes a Member as provided in this Agreement.
“Person” means any individual, partnership, limited liability company, corporation,
cooperative, trust or other entity.
“Property” means all properties and assets that the Company may own or otherwise have an
interest in from time to time.
2.1 Name; Business. The name of the Company shall be as stated in the Certificate. The name of the
Company may be changed from time to time by the determination of the Member. The Company shall
engage in such business as the Board of Directors shall determine.
2.2 Powers. In addition to the powers and privileges conferred upon the Company by law and those
incidental thereto, the Company shall have the same powers as a natural person to do all things
necessary or convenient to carry out its business and affairs, including, without limitation, the
power to do the following:
(a) Xxx and be sued, complain and defend, and participate in administrative or other
proceedings, in its name;
(b) Issue, by sale or otherwise, or acquire, by purchase, redemption or otherwise, any
Interest;
(c) Purchase, take, receive, lease as lessee, take by gift, legacy, or otherwise
acquire, own, hold, improve, use, and otherwise deal in and with any real or personal
property, or any interest therein, wherever situated;
(d) Sell, convey, mortgage, pledge, lease as lessor, exchange, transfer, and otherwise
dispose of all, any part of, or any interest in, its property and assets;
(e) Lend money to and otherwise assist its Member and employees, except as otherwise
provided in this Agreement or the Certificate;
(f) Purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use,
employ, sell, mortgage, loan, pledge, or otherwise dispose of, and otherwise use and deal in
and with, shares or other interests in, or obligations of, other domestic or foreign limited
liability companies, corporations, associations, general or limited partnerships, or
individuals, or direct or indirect obligations of the United States or of any other
government, state, territory, governmental district or municipality or of any
instrumentality thereof;
(g) Incur liabilities, borrow money for its proper purposes at any rate of interest
that the Company may determine without regard to the restrictions of any usury law of the
State of Delaware, issue notes, bonds, and other obligations, secure any of its obligations
by mortgage or pledge or deed of trust of all or any part of its property, franchises, and
income, and make contracts, including contracts of guaranty and suretyship;
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(h) Invest its surplus funds from time to time, lend money for its proper purposes, and
take and hold real and personal property as security for payment of funds so loaned or
invested;
(i) Conduct its business, carry on its operations, have offices within and without the
State of Delaware, and exercise in any other state, territory, district, or possession of
the United States or in any foreign country the powers granted by the Act, the Certificate
or this Agreement;
(j) Appoint agents and hire employees of the Company, define their duties, and fix
their compensation and to indemnify them to the extent and in the manner permitted by law;
(k) Make and alter this Agreement, in any manner not inconsistent with the Certificate
or with the laws of the State of Delaware, for the administration and regulation of the
afairs of the Company;
(l) Make donations for the public welfare or for charitable, scientific, religious, or
educational purposes, lend money to the government, and transact any lawful business in aid
of the United States;
(m) Establish deferred compensation plans, pension plans, profit-sharing plans, bonus
plans, option plans, and other incentive plans for its employees and make the payments
provided for therein;
(n) Become a promoter, partner, member, associate, or manager of any general
partnership, limited partnership, joint venture or similar association, any other limited
liability company, or other enterprise; and
(o) Cease the activities of the Company and surrender the franchise of the Company.
2.3 Principal Office. The principal office of the Company shall be located at such place(s) as the
Board of Directors may determine from time to time.
2.4 Liability of Member. No Member, solely by reason of being a Member, shall be liable, under a
judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability
of the Company, whether arising in contract, tort or otherwise, or for the acts or omissions of any
other Member of the Company. The failure of the Company to observe any formalities or requirements
relating to the exercise of its powers or management of its business or affairs under this
Agreement or the Act shall not be grounds for imposing liability on the Member for liabilities of
the Company.
3.1 Interest. The Member shall own the entire equity interest of the Company and as such the Interest
held by the Member is the only outstanding Interest of the Company. The Interest shall be personal
property for all purposes.
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3.2 Voting. The Member shall possess the entire voting interest in all matters relating to the Company
unless otherwise granted to the Board of Directors in the Certificate or this Agreement.
3.3 Distributions. Distributions by the Company of cash or other property shall be made to the Member
at such times as the Board of Directors deems appropriate.
(i) General Powers. The business and affairs of the Company shall be managed by its Board of
Directors.
(ii) Number, Tenure and Qualifications. The number of Directors of the Company shall be not less
than one (1) and not more than five (5). The Board of Directors may adjust the number of
directors within the prescribed range by resolution adopted in accordance with this
Agreement. The Board of Directors shall initially have three (3) directors. The persons to
serve as the Directors initially shall be Xxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx and Xxxx X.
Xxxxxx. Each Director shall hold office until a successor shall have been elected and
qualified or until such Director’s death, resignation or until removed by the Member, in the
Member’s sole discretion.
(iii) Regular Meetings. The Board of Directors may provide, by resolution, the time and place for
the holding of regular meetings without other notice than such resolution.
(iv) Special Meetings. Special meetings of the Board of Directors may be called by or at the
request of the President or any two Directors. The person or persons authorized to call
special meetings of the Board of Directors may fix any place as the place for holding any
special meeting of the Board of Directors called by them.
(v) Notice. Notice of any special meeting of the Board of Directors shall be given not less
than three (3) days nor more than sixty (60) days prior thereto. Such notice shall be given
in the manner provided in Section 7.2. Any Director may waive notice of any meeting. The
attendance of a Director at any 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 presented because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any annual, regular
or special meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
(vi) Quorum and Manner of Acting. In order to have a quorum for transaction of business at any
meeting of the Board of Directors, a majority of the number of Directors fixed by this
Agreement shall be present. The act of the majority of the
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Directors present at a meeting at which a quorum is present shall be the act of the Board of
Directors.
(vii) Attendance by Communications Equipment. Members of the Board of Directors, or of any
committee of the Board of Directors may participate in and act at any meeting of such Board
or committee through the use of a conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other. Participation
in such a meeting shall constitute attendance and presence in person at the meeting of the
person or persons so participating.
(viii) Vacancies. Any vacancy occurring in the Board of Directors, and any directorship to be
filled by reason of an increase in the number of Directors, may be filled by election by the
Member.
(ix) Presumption of Assent. A Director of the Company who is present at a meeting of the Board
of Directors at which action on any Company matter is taken shall be conclusively presumed
to have assented to the action taken unless such Director’s dissent shall be entered in the
minutes of the meeting or unless such Director shall file a written dissent to such action
with the person acting as 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 voted in favor of such action.
(x) Committees. The Board of Directors may, by resolution or resolutions adopted by a majority
of the number of Directors fixed by this Agreement, designate two or more Directors of the
Company to constitute one or more committees. Each such committee shall have and may
exercise such authority of the Board in the management of the Company as is provided in the
resolution(s) establishing such committee. Each such committee shall keep regular minutes of
its proceedings, which minutes shall be recorded in the minute book of the Company. The
secretary or an assistant secretary of the Company may act as secretary for each such
committee if the committee so requests.
(xi) Informal Action. Any action to be taken by the Board of Directors of the Company may be
taken without a meeting if a consent in writing, setting forth the actions so taken, shall
be signed by a majority of the number of Directors fixed by this Agreement.
(i) Designations. The officers of the Company shall be a President and Secretary and such other
officers, agents and employees, with such duties and designations as the Board of Directors
may deem proper. Any two or more offices may be held by the same person.
(ii) Election and Term of Office. The officers of the Company shall be elected by the Board of
Directors. Vacancies may be filled or new offices filled at any meeting of the Board of
Directors. Each officer shall hold office until a successor shall
5
have been elected and qualified or until such Officer’s death, resignation or removal in the
manner hereinafter provided. Election or appointment of an officer or agent shall not of
itself create contract rights.
(iii) Removal. Any officer or agent elected or appointed by the Board of Directors may be removed
at any time by the Board of Directors.
(iv) President. The Board of Directors shall elect an individual to serve as President. The
President shall be the chief executive officer of the Company and shall in general supervise
the day-to-day operations of the Company. The President may sign any deeds, mortgages,
bonds, contracts or other instruments which the Board of Directors has authorized to be
executed except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by this Agreement to some other officer or agent of the Company or
shall be required by law to be otherwise executed.
(v) Vice Presidents. The Board, in its discretion, may elect one or more vice presidents. In
the absence of the President or in the event of the President’s inability or refusal to act,
the vice president (or in the event there be more than one vice president, the vice
presidents in the order designated, or in the absence. of any designation, then in the order
of their election) shall perform the duties of the President, and the vice president, when
so acting, shall have all of the powers and be subject to all the restrictions upon the
President. Each vice president shall perform such other duties as from time to time may be
assigned by the President or the Board of Directors.
(vi) Secretary. The secretary shall: (a) keep records of Company action, including the records
of action taken by the Member and minutes of meetings of the Board of Directors in one or
more books provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of this Agreement or as required by law; and (c) in general, perform all
duties incident to the office of secretary and such other duties as from time to time may be
assigned by the President or the Board of Directors.
(vii) Assistant Secretaries. The Board, in its discretion, may elect one or more assistant
secretaries. The assistant secretaries in general shall perform such duties as shall be
assigned to them by the President or the Board of Directors.
(viii) Compensation. The compensation of the officers other than the President of the Company
shall be fixed from time to time by the President and no officer shall be prevented from
receiving such compensation by reason of the fact that such officer is also a Director of
the Company. The compensation of the President shall be fixed by the Board of Directors.
(c) Authorization of Persons to Act. At any time and from time to time, the Board of Directors may
designate any Person to carry out the decisions of the Board of Directors, including, but not
limited to, the execution of any instruments on behalf of the Company.
4.2 Action by the Member. The Member may take such action as may be appropriate for the Member of a
limited liability company under the Act by a written consent
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signed by the Member. The Member will annually elect the Directors of the Company at such time as
the Member may specify.
5.1 Fiscal Year. The fiscal year and taxable year of the Company shall end on the same day as the end
of the fiscal year of the Member.
5.2 Books and Records. At all times during the existence of the Company, the Company shall cause to be
maintained full and accurate books of account, which shall reflect all Company transactions and be
appropriate and adequate for the Company’s business.
6.1 Events Causing Dissolution. The Company shall be dissolved only upon the first to occur of the
following events:
(a) The written determination of the Member to dissolve; and
(b) Upon the entry of a decree of judicial dissolution under Section 18-802 of the Act.
6.2 Effect of Dissolution. Except as otherwise provided in this Agreement, upon the dissolution of the
Company, the Board of Directors shall take such actions as may be required pursuant to the Act and
shall proceed to wind up, liquidate and terminate the business and affairs of the Company. In
connection with such winding up, the Board of Directors shall have the authority to liquidate and
reduce to cash (to the extent necessary or appropriate) the assets of the Company as promptly as is
consistent with obtaining fair value therefor, to apply and distribute the proceeds of such
liquidation and any remaining assets in accordance with the provisions of Section 6.3, and to do
any and all acts and things authorized by, and in accordance with, the Act and other applicable
laws for the purpose of winding up and liquidation.
6.3 Application of Proceeds. Upon dissolution and liquidation of the Company, the assets of the
Company shall be applied and distributed in the following order of priority:
(a) To the payment of debts and liabilities of the Company (including to the Member to
the extent otherwise permitted by law) and the expenses of liquidation;
(b) Next, to the setting up of such reserves as the Person required or authorized by
law to wind up the Company’s affairs may reasonably deem necessary or appropriate for any
disputed, contingent or unforeseen liabilities or obligations of the Company, provided that
any such reserves shall be paid over by such Person to an escrow agent appointed by the
Board of Directors, to be held by such agent or its successor for such period as such Person
shall deem advisable for the purpose of applying such reserves to the payment of such
liabilities or obligations and, at the expiration of such period, the balance of such
reserves, if any, shall be distributed as hereinafter provided; and
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(c) The remainder to the Member.
7.1 Title to the Property. Title to the Property shall be held as the Board of Directors may direct
from time to time. The Member shall not individually have any ownership interest or rights in the
Property, except indirectly by virtue of the Member’s ownership of an Interest.
7.2 Notices. Any notice, demand, request or other communication (a ‘Notice”) required or permitted to
be given by this Agreement or the Act to the Company, the Member, a Director, or any other Person
shall be sufficient if in writing and if hand delivered or mailed by registered or certified mail
to the Company at its principal office or to the Member or any other Person at the address of the
Member or such other Person as it appears on the records of the Company or sent by facsimile
transmission to the telephone number, if any, of the recipient’s facsimile machine as such
telephone number appears on the records of the Company. All Notices that are mailed shall be deemed
to be given when deposited in the United States mail, postage prepaid. All Notices that are hand
delivered shall be deemed to be given upon delivery. All Notices that are given by facsimile
transmission shall be deemed to be given upon receipt, it being agreed that the burden of proving
receipt shall be on the sender of such Notice and such burden shall not be satisfied by a
transmission report generated by the sender’s facsimile machine.
7.3 Notices and Determinations. Any notice or determination required or permitted to be given or made
by this Agreement or the Act shall be sufficient if given or made in writing.
7.4 No Third Party Rights. None of the provisions contained in this Agreement shall be for the benefit
of or enforceable by any third parties, including, but not limited to, creditors of the Company;
provided, however, the Company may enforce any rights granted to the Company under the Act, the
Certificate, or this Agreement.
7.5 Amendments to this Agreement. This Agreement shall not be modified or amended in any manner other
than by the Member.
7.6 Severability. In the event any provision of this Agreement is held to be illegal, invalid or
unenforceable to any extent, the legality, validity and enforceability of the remainder of this
Agreement shall not be affected thereby and shall remain in full force and effect and shall be
enforced to the greatest extent permitted by law.
7.7 Binding Agreement. The provisions of this Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective heirs, personal representatives, successors and
permitted assigns.
7.8 Headings. The headings of the Certificate and the sections of this Agreement are for convenience
only and shall not be considered in construing or interpreting any of the terms or provisions
thereof and hereof.
8
7.9 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware.
IN WITNESS WHEREOF, the Company and the Member have executed this Agreement as of the date
first written above.
IBC SALES CORPORATION | ||||||
By: | /s/ XXXXXXX X. XXXXXXX | |||||
Printed Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: President | ||||||
(the “Member”) | ||||||
IBC TRUCKING, LLC | ||||||
By: | /s/ XXXX X. XXXXXX | |||||
Printed Name: Xxxx X. Xxxxxx | ||||||
Title: President | ||||||
(the “Company”) |
9