LIMITED LIABILITY COMPANY AGREEMENT OF QIMONDA FINANCE LLC
Exhibit 3(ii)
OF
This Limited Liability Company Agreement (this “Agreement”) of Qimonda Finance LLC (the
“Company”) is entered into by Qimonda AG, a German corporation, as the sole member (the “Member”).
The Member, by execution of this Agreement, hereby forms a limited liability company pursuant
to and in accordance with the Delaware Limited Liability Company Act (6 Del.C. §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 Qimonda Finance
LLC (the “Company”).
2. Certificates. Xxxxx X. Xxxxxx, Xx., as an authorized person within the meaning of
the Act, shall execute, deliver and file the Certificate of Formation with the Secretary of State
of the State of Delaware. Upon the filing of the Certificate of Formation with the Secretary of
State of the State of Delaware, his powers as an authorized person shall cease and the Member shall
thereafter be designated as an authorized person within the meaning of the Act. The Member or an
Officer (as defined herein) shall execute, deliver and file 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.
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. Powers. In furtherance of its purposes, but subject to all of the provisions of
this Agreement, the Company shall have the power and is hereby authorized to:
a. acquire by purchase, lease, contribution of property or otherwise, own, hold, sell, convey,
transfer or dispose of any real or personal property which may be necessary, convenient or
incidental to the accomplishment of the purpose of the Company;
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b. act as a trustee, executor, nominee, bailee, director, officer, agent or in some other
fiduciary capacity for any person or entity and to exercise all of the powers, duties, rights and
responsibilities associated therewith;
c. take any and all actions necessary, convenient or appropriate as trustee, executor,
nominee, bailee, director, officer, agent or other fiduciary, including the granting or approval of
waivers, consents or amendments of rights or powers relating thereto and the execution of
appropriate documents to evidence such waivers, consents or amendments;
d. operate, purchase, maintain, finance, improve, own, sell, convey, assign, mortgage, lease
or demolish or otherwise dispose of any real or personal property which may be necessary,
convenient or incidental to the accomplishment of the purposes of the Company;
e. borrow money and issue evidences of indebtedness in furtherance of any or all of the
purposes of the Company, and secure the same by mortgage, pledge or other lien on the assets of the
Company;
f. invest any funds of the Company pending distribution or payment of the same pursuant to the
provisions of this Agreement;
g. prepay in whole or in part, refinance, recast, increase, modify or extend any indebtedness
of the Company and, in connection therewith, execute any extensions, renewals or modifications of
any mortgage or security agreement securing such indebtedness;
h. enter into, perform and carry out contracts of any kind, including, without limitation,
contracts with any person or entity affiliated with the Member, necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purposes of the Company;
i. employ or otherwise engage employees, managers, contractors, advisors, attorneys and
consultants and pay reasonable compensation for such services;
j. enter into partnerships, limited liability companies, trusts, associations, corporations or
other ventures with other persons or entities in furtherance of the purposes of the Company; and
k. do such other things and engage in such other activities related to the foregoing as may be
necessary, convenient or incidental to the conduct of the business of the Company, and have and
exercise all of the powers and rights conferred upon limited liability companies formed pursuant to
the Act.
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5. Principal Business Office. The principal business office of the Company shall be
located at 0000 XxxxxxXxxxx Xxx, Xxxxx Xxxxxxxx, 00000.
6. Registered Office. The address of the registered office of the Company in the
State of Delaware is c/o RL&F Service Corp., One Xxxxxx Square, 10th Floor, Tenth and Xxxx Xxxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
7. 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 RL&F Service Corp., One Xxxxxx
Square, 10th Floor, Tenth and Xxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
8. Members. The name and the mailing address of the Member is Qimonda XX,
Xxxxxx-Xxxxxxxxx-Xxxx 000, 00000 Xxxxxx, Xxxxxxx.
9. Limited Liability. Except as otherwise provided by the Act, 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.
10. Capital Contributions. The Member is deemed admitted as the Member of the Company
upon its execution and delivery of this Agreement. The Member will contribute $100 to the Company.
11. Additional Contributions. The Member is not required to make any additional
capital contribution to the Company. However, a Member may make additional capital contributions
to the Company with the written consent of the Member.
12. Allocation of Profits and Losses. The Company’s profits and losses shall be
allocated to the Member.
13. Distributions. Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Member. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution to any Member on account of
its interest in the Company if such distribution would violate Section 18-607 of the Act or other
applicable law.
14. Management. In accordance with Section 18-402 of the Act, management of the
Company shall be vested in the Member. The Member shall have the power to do any and
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all acts necessary, convenient or incidental to or for the furtherance of the purposes
described herein, including all powers, statutory or otherwise, possessed by members of a limited
liability company under the laws of the State of Delaware. The Member has the authority to bind
the Company. The Member may establish a Management Board and delegate to the Management Board the
Member’s rights and powers to manage and control the business and affairs of the Company.
15. Officers. The Member, acting through the Management Board, may, from time to time
as it deems advisable, appoint officers of the Company (the “Officers”) and assign in writing
titles (including, without limitation, President, Vice President, and Secretary) to any such
person. Unless the Member decides otherwise, if the title is one commonly used for officers of a
business corporation formed under the Delaware General Corporation Law, the assignment of such
title shall constitute the delegation to such person of the authorities and duties that are
normally associated with that office. Any delegation pursuant to this Section 15 may be revoked at
any time by the Member.
16. Records. The books and records of the Company shall be maintained at the
principal office and place of business of the Company. The books and records shall include the
designation arid identification of any property in which the Company owns a beneficial interest.
Such records shall also include, without limitation, the ownership of property (real, personal, and
mixed). The Company shall keep full and complete books of account, which shall be maintained in a
manner that provides sufficient assurance that the transactions of the Company are recorded in a
manner to comply with this Agreement and all applicable laws.
17. Other Business. The Member may engage in or possess an interest in other business
ventures (unconnected with the Company) of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures or the income or
profits therefrom by virtue of this Agreement.
18. Exculpation and Indemnification. No Member or Officer shall be liable to the
Company, or any other person or entity who has an interest in the Company, for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such Member or Officer in
good faith on behalf of the Company and in a manner reasonably believed to be within the scope of
the authority conferred on such Member or Officer by this Agreement, except that a Member or
Officer shall be liable for any such loss, damage or claim incurred by reason of such Member’s or
Officer’s willful misconduct. To the fullest extent permitted by applicable law, a Member or
Officer shall be entitled to indemnification from the Company for any loss, damage or claim
incurred by such Member or Officer by reason of any act or omission performed or omitted by such
Member or Officer in good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Member or Officer by this Agreement, except
that no Member or Officer shall be entitled to be
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indemnified in respect of any loss, damage or claim incurred by such Member or Officer by
reason of willful misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 17 shall be provided out of and to the
extent of Company assets only, and no Member shall have personal liability on account thereof.
19. Assignments. A Member may assign in whole or in part its limited liability
company interest with the written consent of the Member. If a Member transfers all of its interest
in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its
execution of an instrument signifying its agreement to be bound by the terms and conditions of this
Agreement. Such admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor Member shall cease to be a member of the
Company.
20. Resignation. A Member may resign from the Company with the written consent of the
Member. If a Member is permitted to resign pursuant to this Section, an additional member shall be
admitted to the Company, subject to Section 20, upon its execution of an instrument signifying its
agreement to be bound by the terms and conditions of this Agreement. Such admission shall be
deemed effective immediately prior to the resignation, and, immediately following such admission,
the resigning Member shall cease to be a member of the Company.
21. Admission of Additional Members. One (1) or more additional members of the
Company may be admitted to the Company with the written consent of the Member.
22. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of
the following: (i) the written consent of the Member, (ii) the retirement, resignation or
dissolution of the Member or the occurrence of any other event which terminates the continued
membership of the Member in the Company unless the business of the Company is continued in a manner
permitted by the Act, or (iii) the entry of a decree of judicial dissolution under Section 18-802
of the Act.
b. The bankruptcy of the Member will not cause the Member to cease to be a member of the
Company and upon the occurrence of such an event, the business of the Company shall continue
without dissolution.
c. In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company
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in an orderly manner), and the assets of the Company shall be applied in the manner, and in
the order of priority, set forth in Section 18-804 of the Act.
23. Separability of Provisions. Each provision of this Agreement shall be considered
separable and if for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity, unenforceability or
illegality shall not impair the operation of or affect those portions of this Agreement which are
valid, enforceable and legal.
24. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original of this Agreement.
25. Entire Agreement. This Agreement constitutes the entire agreement of the Member
with respect to the subject matter hereof.
26. 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.
27. Amendments. This Agreement may not be modified, altered, supplemented or amended
except pursuant to a written agreement executed and delivered by the Member.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed
this Agreement as of the 3 day of August, 2007.
| Qimonda AG |
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| By: | /s/ ppa. Xxx | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Senior Director Corporate Legal Counsel | |||
| By: | /s/ ppa. Dreischhoff | |||
| Name: | Xxxxx Dreischhoff | |||
| Title: | Senior Vice President | |||
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