EXHIBIT 3.8
AMENDED AND RESTATED
OPERATING AGREEMENT
OF
XXXXXX-STANDARD AUTOMOTIVE OH, LLC
Dated as of
December 31, 2001
EXHIBIT 3.8
AMENDED AND RESTATED
OPERATING AGREEMENT OF
XXXXXX-STANDARD AUTOMOTIVE OH, LLC
TABLE OF CONTENTS
Page
----
Article 1. Organization.....................................................1
1.1 Formation of the Company; Term...................................1
1.2 Name.............................................................1
1.3 Purpose of the Company; Business.................................1
1.4 Principal Place of Business, Office and Agent....................1
1.5 Fictitious Business Name Statement; Other Certificates...........1
Article 2. Definitions......................................................2
Article 3. Capitalization; Economics........................................2
3.1 Capital..........................................................2
3.2 Capital Accounts; Allocations....................................2
3.3 Interest.........................................................3
3.4 Distributions....................................................3
3.5 Other Distributions..............................................3
Article 4. Management.......................................................3
4.1 Management by the Members and Officers...........................3
4.2 Officers of the Company..........................................3
4.3 Duties of the Officers...........................................3
Article 5. General..........................................................3
5.1 Transfers of Interest............................................3
5.2 Dissolution and Liquidation......................................3
5.3 Whole Agreement..................................................4
5.4 Governing Law....................................................4
5.5 Construction.....................................................4
EXHIBIT 3.8
AMENDED AND RESTATED
OPERATING AGREEMENT
OF XXXXXX-STANDARD AUTOMOTIVE OH, LLC
This declaration is the Amended and Restated Operating Agreement (the
"Agreement") dated as of December 31, 2001, made by Xxxxxx-Standard Automotive
Inc., the sole member of the limited liability company governed by this
Agreement and successor to Xxxxxx Tire & Rubber Company. This Agreement amends
and restates the Operating Agreement of the Company dated as of November 30,
2001. Unless the context otherwise requires, terms that are capitalized and not
otherwise defined in context have the meanings set forth or cross referenced in
Article 2 of this Agreement.
ARTICLE 1. ORGANIZATION
1.1 FORMATION OF THE COMPANY; TERM. The Company is a limited liability
company under the Act, governed by this Agreement. The Company is an entity
separate from its Member, created by the Operating Agreement dated as of
November 30, 2001, governed by this Agreement and the execution and filing with
the Secretary of State of Ohio of the Articles of Organization of the Company.
Unless sooner dissolved and liquidated by action of the Member, the Company is
to continue in perpetuity.
1.2 NAME. The name of the Company is:
"Xxxxxx-Standard Automotive OH, LLC"
1.3 PURPOSE OF THE COMPANY; BUSINESS. The purpose of the Company is to
carry on any lawful business, purpose or activity permitted by the Ohio Limited
Liability Company Law; and to exercise all powers necessary or convenient to the
conduct, promotion or attainment of the business or purposes otherwise set forth
herein.
1.4 PRINCIPAL PLACE OF BUSINESS, OFFICE AND AGENT. The principal place of
business and mailing address of the Company, and the office where the records
required by the Act are kept is 000 Xxxx Xxxxxx, Xxxxxxx, Xxxx 00000, or at such
other location selected, from time to time, by the Member. The registered office
of the Company in Ohio is at the office of the statutory agent of the Company in
Ohio. The statutory agent of the Company in Ohio is CT Corporation System, 0000
Xxxx 0xx Xxxxxx, Xxxxxxxxx, Xxxx 00000. The Member may, from time to time,
change the statutory agent or the principal place of business of the Company,
without reflecting the change in this Agreement.
1.5 FICTITIOUS BUSINESS NAME STATEMENT; OTHER CERTIFICATES. The Member
will, from time to time, register the Company as a foreign limited liability
company and file fictitious or trade name statements or certificates in those
jurisdictions and offices that the Member considers necessary or appropriate.
The Company may do business under any fictitious business names approved by the
Member. The Member will, from time to time, file or cause to be filed
certificates of amendment, certificates of cancellation, or other certificates
as the Member reasonably considers necessary or appropriate under the Act or
under the law of any jurisdiction in which the Company is doing business to
establish and continue the Company as a limited liability company or to protect
the limited liability of the Member.
2
ARTICLE 2. DEFINITIONS
ACT means the limited liability company law set forth in Chapter 1705 of
the Ohio Revised Code, as amended from time to time. Any reference to the Act
automatically includes a reference to any subsequent or successor limited
liability company law in Ohio.
AFFILIATE means, with respect to any person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the specified person. A Person controls another Person if that
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the "controlled" Person, whether
through ownership of voting securities, by contract, or otherwise.
AGREEMENT means this Agreement as amended from time to time.
BANKRUPTCY means, with respect to any Person, that Person's filing a
petition or otherwise voluntarily commencing a case, or proceeding, or filing an
answer not denying the material allegations of a complaint in any proceeding
seeking relief under any federal or state bankruptcy, insolvency, or debtors'
reorganization law; being the voluntary or involuntary subject of an order for
relief by any court under any such law; or being adjudicated a "bankrupt,"
"debtor," or "insolvent" under any such law; or there being appointed under any
such law a "trustee," "receiver," or "custodian" to manager his, her, or its
business or properties; or there being commenced under any such law a case or
proceeding proposing such an order for relief, adjudication, or appointment with
respect to that Person or his, her, or its business, which proceeding is
consented to by that Person or that is not dismissed within ninety days after
being commenced.
COMPANY means Xxxxxx-Standard Automotive OH, LLC.
FISCAL YEAR means the fiscal year of the Company as determined from time to
time, and, initially, means a fiscal year ending on December 31.
INTEREST means a membership interest in the Company, including any and all
benefits to which the Member is entitled under this Agreement and the
obligations of the Member under this Agreement.
PERSON or PERSON means any natural person and any corporation, firm,
partnership, trust, estate, limited liability company, or other entity resulting
from any form of association.
ARTICLE 3. CAPITALIZATION; ECONOMICS
3.1 CAPITAL. Upon the formation of the Company, the Member contributed to
the Company certain operating capital. The Member may, but is not required to,
make additional contributions to the capital of the Company. The Company is to
finance its operations independently of the Member and without its financial
support.
3.2 CAPITAL ACCOUNTS; ALLOCATIONS. All items of income, gain, loss and
deduction will be allocated to the Member. The Company will keep a record of the
Member's contributions
3
to the Company, the Company's income, gains, losses and deductions, and its
distributions to the Member.
3.3 INTEREST. Members are not to be paid interest on their capital
contribution(s) to the Company.
3.4 DISTRIBUTIONS. The Company will not make any distribution of cash,
except to the extent that the Company then has cash available in excess of the
sum of (1) amounts required to pay or make provision for all Company expenses,
plus (2) all reserves that the Member considers necessary or appropriate. To the
extent that the Member reasonably foresees that the Company will receive cash or
other consideration to satisfy liabilities that are not yet due and payable, the
Company is not required to establish reserves or make other provision to satisfy
those liabilities before making distributions to the Member.
3.5 OTHER DISTRIBUTIONS. In addition to distributions under Section 3.5,
but subject to the limitations of Section 3.4, prior to the winding-up and
liquidation of the Company, the Member may, in its discretion, direct the
Company to make distributions of cash or other property to the Member.
ARTICLE 4. MANAGEMENT
4.1 MANAGEMENT BY THE MEMBERS AND OFFICERS. The Company shall be managed by
the Member and by the Officers appointed by the Member with respect to the
election, appointment and tenure of the Company's Officers.
4.2 OFFICERS OF THE COMPANY. (a) The Officers of the Company are:
President: Xxxxxx X. Xxxxxx
Secretary: Xxxxxxx X. Xxxxxxxx
Treasurer: Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer: Xxxxxxx X. Xxxx
(b) Each Officer serves until the earlier of his death, resignation or
removal. An Officer may be removed at any time by the Member. Any Officer may
resign at any time by delivering his written resignation to the Member.
4.3 DUTIES OF THE OFFICERS. In addition to obligations imposed by other
provisions of this Agreement, each Officer will devote to the Company such time
as is reasonably necessary and his best efforts to carry out the business of the
Company and to accomplish its purposes.
ARTICLE 5. GENERAL
5.1 TRANSFERS OF INTEREST. The Member will make no sale, exchange,
disposition or other transfer of their Interest (or any interest therein) until
this Agreement is amended to contemplate ADDITIONAL MEMBERS.
5.2 DISSOLUTION AND LIQUIDATION. No event that would cause a dissolution of
an limited liability company under the Act will cause a dissolution of the
Company. If the Company
4
is dissolved, all of its property will automatically (without the need for any
further action) become the property of the Member and be distributed to the
Member.
5.3 WHOLE AGREEMENT. This Agreement is the entire declaration of the Member
and will only be amended by a writing that refers to this Agreement.
5.4 GOVERNING LAW. This agreement is governed by and is to be construed
under the laws of Ohio, without giving effect to its rules of conflicts of laws.
5.5 CONSTRUCTION. The headings contained in this Agreement are for
reference purposes only and do not affect the meaning or interpretation of this
Agreement. All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, include all other genders. Unless
otherwise specifically states, references to Sections or articles refer to the
Sections and Articles of this Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of
the date first above written.
XXXXXX-STANDARD AUTOMOTIVE INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
