LIMITED LIABILITY COMPANY AGREEMENT of EAGLE-
PICHER TECHNOLOGIES, LLC (the "Agreement"), dated
as of February 24, 1998, by Eagle-Picher Industries, Inc.,
an Ohio corporation
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Eagle-Picher Industries, Inc. has determined to organize and
operate a limited liability company in accordance with the terms and subject to
the conditions set forth in this Agreement.
It is agreed as follows:
1. Organization. Eagle-Picher Industries, Inc. hereby organizes a
limited liability company pursuant to the Delaware Limited Liability Company Act
(the "Act") and the provisions of this Agreement and, for that purpose, has
caused a Certificate of Formation (the "Certificate") to be prepared, executed
and filed with the Secretary of State of the State of Delaware ("Secretary of
State") on February 19, 1998. The Company and the Member each hereby approves,
authorizes and ratifies the actions of Xxxxx X. Xxxxxxxxxx, Esq. of Xxxxxx,
Xxxxx & Xxxxx, in filing the Certificate with the Secretary of State.
2. Name. The name of the limited liability company shall be
Eagle-Picher Technologies, LLC (the "Company").
3. Purpose. The purpose of the Company is to engage in any lawful
act or activity for which limited liability companies may be formed under the
Act and to engage in any and all activities necessary or incidental thereto.
4. Principal Office. The Company's principal place of business
shall be located at "C" and Xxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxx 00000. The Company
may have such other business offices within or without the State of Delaware as
determined from time to time.
5. Term. The term of the Company shall begin upon the filing of
the Certificate with the Secretary of State and shall continue until dissolved
in accordance with this Agreement.
6. Member. The sole member of the Company is Eagle-Picher
Industries, Inc., an Ohio corporation (the "Member").
7. Capital Contributions; Capital Accounts. (a) Initial Capital
Contributions. Upon the execution of this Agreement, the Member shall contribute
to the Company all property and assets of its Technologies Division pursuant to
a Xxxx of Sale in substantially the form attached hereto as Exhibit A and an
Assignment and Assumption Agreement in substantially the form attached hereto as
Exhibit B.
(b) Additional Capital Contributions. The Member may from time to
time make additional capital contributions in amounts determined in the sole
discretion of the Member, including capital contributions in accordance with the
Member's cash management system.
(c) All capital, whenever contributed, shall be subject in all
respects to the risks of the business and subordinate in right of payment to the
claims of present or future creditors of the Company and of any successor firm
in accordance with this Agreement.
(d) No interest shall be allowed to the Member by reason of the
amount of its capital contribution or Capital Account except as provided in
Section 21.
8. Allocations. Except as provided in Section 20, each item of
income, gain, loss or expense of the Company for any period shall be allocated
to the Member.
9. Distributions. The Company shall distribute to the Member,
each business day, all cash received by the Company since the last such
distribution.
10. Management; Director-Manager Voting and Meetings. (a) The
property, business and affairs of the Company shall be managed by its Board of
Director-Managers (the "Managing Board"), composed of: (i) at least two
individuals who have no prior relationship with the Company or its Affiliates
(the "Outside Director-Managers"), except as otherwise allowed by the United
States Department of Defense (the "DoD"), (ii) at least one individual who shall
be designated by, and represent, the Member (the "Inside Director-Manager"), and
(iii) one or more officer(s) of the Company having DoD personnel security
clearance at the level of security clearance of the Company's facility at which
such officer is employed (the "Officer/Director-Manager"). The number of Inside
Director-Managers shall not exceed the combined total of Outside
Director-Managers and Officer/Director-Managers.
The initial Managing Board shall consist of the following persons each of which
shall be the type of Director-Manager set forth beside such Director-Manager's
name:
Director-Manager Type of Director-Manager
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Xx. Xxxx X. Xxxxxxxx Outside
Xxxx Xxxxxxxxx Outside
Xxxxxxx Xxxxxxxxxxxx Inside
Xxxx X. Xxxxx Inside
Xxxxxxx X. Xxxx Officer
The term "Affiliates" shall mean, with respect to any person, all entities which
such person controls, or by which such person is controlled.
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(b) Except where (i) the Member's approval is expressly required
by this Agreement or by the Act or (ii) authority has been expressly vested in
the GS Committee (as defined below) by this Agreement or the Department of
Defense Special Security Agreement (DD Form 4411), as may be amended (the
"Special Security Agreement"), the Director-Managers shall have full authority,
power and discretion to make all decisions with respect to the Company's
business and to perform such other services and activities as set forth in this
Agreement. Each Director-Manager shall be an agent of the Company for the
purpose of its business and the act of each Director-Manager, including the
execution in the name of the Company of an instrument, for apparently carrying
on in the usual way the business of the Company shall bind the Company, unless
(x) a Director-Manager acting has in fact no authority to act for the Company in
the particular matter and (y) the person with whom such Director-Manager is
dealing has knowledge that the action has not been so approved. Unless otherwise
expressly authorized by this Agreement or the Member, the act of a
Director-Manager that is not apparent for carrying on the Company's business in
the ordinary course shall not bind the Company.
(c) Except as otherwise expressly provided in this Agreement or
the Act, each Member, solely by reason of being a member of the Company, shall
not have the right to control or manage, or take any part in the control or
management of, the property, business or affairs of the Company.
(d) The Managing Board may, by unanimous decision, from time to
time create or designate additional classes of Director-Managers or officers
having such relative powers, duties and limitations as the Director-Managers
shall unanimously determine, subject to the limitations set forth in this
Agreement; provided, however, that no such additional classes shall be created
or designated if such action would violate the terms of Special Security
Agreement.
(e) The Managing Board may hold meetings either within or without
the State of Delaware. Meetings of the Managing Board may be held without notice
at such time and at such place as may from time to time be determined by the
Managing Board. A quorum must be present at each meeting of the Managing Board.
A majority in number of the Managing Board shall be necessary to constitute a
quorum; provided, however, that at least one Outside Director-Manager and one
Inside Director-Manager must be in attendance in order for there to be a quorum
present at any meeting of the Managing Board. The Director-Managers shall
approve actions to be taken by the Board by a vote of a majority in number of
Director-Managers at a meeting at which a quorum is present.
(f) Notwithstanding anything set forth in this Agreement, in
addition to the affirmative vote of the Managing Board, the prior written
consent of the Member shall be required to approve each of the following:
(i) the sale, exchange, lease, mortgage, pledge or other
transfer or disposition of any property or assets of the Company, other
than in the ordinary course of business;
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(ii) the entry into any agreement to borrow money or to
grant a mortgage on, a security interest in, a pledge or otherwise
encumbers, any asset of the Company, other than in the ordinary course
of business;
(iii) the merger or consolidation of the Company with or
into another limited liability company, foreign limited liability
company or other entity;
(iv) the authorization for a confession of judgment
against the Company;
(v) the assignment for the benefit of creditors of the
Company, filing of a voluntary bankruptcy petition, or consent to an
involuntary petition, under Title 11 of the United States Code or the
reorganization, dissolution or liquidation of the Company;
(vi) the amendment of the Certificate; or
(vii) the initiation of action to terminate the Company or
the Special Security Agreement (except as provided in Section 13.02 of
the Special Security Agreement).
(g) Notwithstanding anything set forth in this Agreement, the
Member is hereby authorized, without the consent of the Managing Board, to adopt
the resolutions set forth in Exhibit C hereto.
(h) In lieu of holding a meeting, the Director-Managers may vote
or otherwise take action by a written instrument indicating the consent of the
requisite number of the Director-Managers as would be required for the
Director-Managers to take action under this Agreement. If such consent is not
unanimous, prompt notice shall be given to those Director-Managers who have not
consented in writing but who would have been entitled to vote thereon had such
action been taken at a meeting.
(i) Director-Managers may participate in a meeting by conference
telephone or similar communications equipment, by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
(j) The removal of any Director-Manager and the appointment of
new or replacement Director-Managers (other than Insider Director-Managers)
shall be in compliance with Section 1.01 of the Special Security Agreement.
11. Committees. (a) Government Security Committee. (i) There is
hereby established a permanent committee of the Managing Board to be known as
the Government Security Committee (the "GS Committee"). The Committee shall
consist of all Outside Director-Managers and Officer Director-Managers. The
purpose of the GS Committee is to assure that (x) the Company maintains policies
and practices to safeguard classified information and controlled unclassified
information in the possession of the Company consistent with the terms of the
Special Security Agreement and (y) the protective measures contained in the
Special Security Agreement are implemented effectively and maintained throughout
the duration of such agreement. Each Director-
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Manager that is a member of the GS Committee shall be cleared to the level of
the facility security clearance of the Company and shall be specifically
approved for this function by the United States Defense Security Service
("DSS"). One Outside Director-Manager shall be designated as Chairman of the GS
Committee.
(ii) The GS Committee may hold meetings either within or
without the State of Delaware. Meetings of the GS Committee may be held
without notice at such time and at such place as may from time to time
be determined by the GS Committee. A quorum must be present at each
meeting of the GS Committee. A majority in number of the members of GS
Committee shall be necessary to constitute a quorum. In lieu of holding
a meeting, the members of the GS Committee may vote or otherwise take
action by a written instrument indicating the consent of the requisite
number of the Director-Managers as would be required for the GS
Committee to take action under this Agreement or the Special Security
Agreement, as applicable. If such consent is not unanimous, prompt
notice shall be given to those Director-Managers on the GS Committee who
have not consented in writing but who would have been entitled to vote
thereon had such action been taken at a meeting. The members of the GS
Committee may participate in a meeting by conference telephone or
similar communications equipment, by means of which all persons
participating in the meeting can hear each other, and such participation
shall constitute presence in person at such meeting.
(iii) One Officer Director-Manager that is a member of the
GS Committee shall be designated by the GS Committee to assure that all
records, journals and minutes of the GS Committee are maintained and
readily available for inspection by the DSS.
(b) Compensation Committee. The Managing Board shall establish a
permanent committee of the Managing Board, consisting of at least one Outside
Director-Manager and one Inside Director-Manager, to be known as the
Compensation Committee. The Compensation Committee shall be responsible for
reviewing and approving recommendations for the annual compensation of the
Company's principal officers, pursuant to the Special Security Agreement.
(c) Other Committees. The Managing Board may designate other
standing committees of the Managing Board; provided, that all such additional
committees shall be created and shall operate in compliance with the terms of
the Special Security Agreement.
12. Compliance with Special Security Agreement. THE COMPANY, THE
MEMBER AND THE MANAGING BOARD SHALL COMPLY IN ALL RESPECTS WITH THE TERMS,
RESTRICTIONS, LIMITATIONS AND PROVISIONS OF, AND IN NO WAY VIOLATE, THE SPECIAL
SECURITY AGREEMENT, A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT D. In the case
of any conflict, as to the management of the Company, between the terms of this
Agreement and the terms of the Special Security Agreement, the terms of the
Special Security Agreement shall govern. All notices to be provided and consents
to be obtained by the Company, the Member or any Director-Manager pursuant to
the Special Security Agreement shall be provided or obtained, as the case may
be, in accordance with the Special Security Agreement.
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13. Assignments. The Member may not sell, assign or otherwise
transfer in whole or in part its membership interest in the Company without the
affirmative vote or written consent of the GS Committee, which vote or consent
may be withheld in its sole discretion. Any sale, assignment or other transfer
that is not in compliance with this Section shall be null and void.
14. Withdrawal. The Member may not withdraw from the Company
without the affirmative vote or written consent of the GS Committee, which vote
or consent may be withheld in their sole discretion. Until such withdrawal
becomes effective, the Member shall in all respects continue to be a member
hereunder.
15. Admission of an Additional Member. One or more additional
members of the Company may be admitted to the Company at any time or from time
to time with the affirmative vote of (x) the Member and (y) all members of the
GS Committee. Upon the admission of an additional member, this Agreement shall
be amended and restated as agreed by the Member, such additional member and the
Managing Board. Each new member will be required to execute an agreement
pursuant to which such member becomes bound by the terms of this Agreement and
the Special Security Agreement.
16. Events of Dissolution. (a) The Company shall be dissolved
upon the happening of any of the following events:
(i) the written consent of the Member;
(ii) at any time there are no members; or
(iii) the entry of a decree of judicial dissolution under
Section 802 of the Delaware Act.
(b) The resignation or bankruptcy of any member or the occurrence
of any other event that terminates the continued membership of any member shall
not cause the Company to be dissolved or its affairs to be wound up, and upon
the occurrence of any such event, the Company shall be continued without
dissolution, unless such event results in the Company having no members.
17. Liability of Member. The Member shall not have any liability
(personal or otherwise) for the obligations or liabilities of the Company except
to the extent provided in the Act.
18. Exculpation of the Director-Managers. None of the
Director-Managers shall have liability (personal or otherwise) to the Company or
the Member for damages for any breach of duty in such capacity; provided that
nothing in this Section shall eliminate or limit the liability of the
Director-Managers if a judgment or other final adjudication adverse to any such
Director-Manager establishes that his acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that he
personally gained in fact a financial profit or other advantage to which such
Director-Manager was not legally entitled or that with respect to a distribution
to the Member the acts of such Director-Manager were not performed in accordance
with the Act.
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19. Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless the Director-Managers and the Member
and their respective directors, trustees, shareholders, officers, employees and
agents (collectively, the "Indemnitees"), from and against any and all costs,
liabilities, claims, expenses, including reasonable attorneys' fees, and damages
(collectively, "Losses") paid or incurred by any such Indemnitee in connection
with the conduct of the Company's business in accordance with this Agreement and
the Act, except that no Indemnitee shall be entitled to indemnification in
respect of any Loss incurred by such Indemnitee by reason of such Indemnitee's
gross negligence or willful misconduct. Any indemnity under this Section shall
be provided out of and to the extent of Company assets only and the Member shall
not have any personal liability on account thereof. All rights of an Indemnitee
under this Section shall survive the dissolution of the Company and the
withdrawal of the Indemnitee from membership in the Company and shall inure to
the benefit of such Indemnitee's heirs, personal representatives, successors and
assigns.
20. Liquidation. (a) Upon dissolution of the Company, a person
selected by the Member shall be the liquidator of the Company (the
"Liquidator"). The Liquidator shall liquidate the assets of the Company and
apply and distribute the proceeds of such liquidation in the following order of
priority, unless otherwise required by mandatory provisions of applicable law:
(i) to creditors of the Company (other than the Member);
and
(ii) the balance to the Member;
provided, however, that the Liquidator may place in escrow a reserve of cash or
other assets of the Company for contingent liabilities in an amount determined
by the Liquidator to be appropriate for such purposes.
21. Tax Matters. The Member and the Company intend that the
Company be treated as an entity with a single owner electing to be disregarded
as a separate entity for United States federal income tax purposes, and all
applicable state and local income tax purposes, and will file such necessary and
appropriate forms in furtherance thereof. The Company's fiscal and taxable year
will end on November 30 of each year; provided, however, if either the fiscal or
taxable year of the Member is changed such that it shall end on a date other
than November 30, the fiscal or taxable year, as the case may be, of the Company
shall be changed so as to be consistent with the fiscal or taxable year of the
Member. The Member, or its authorized agent, shall be the only person authorized
to prepare, execute and file tax returns and tax reports on behalf of the
Company and to represent the Company before the Internal Revenue Service and any
state or local taxing authority.
22. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (other than the
conflicts of law rules), all rights and remedies being governed by said laws.
23. Amendments. Except as otherwise provided by this Agreement or
the Act, this Agreement may be amended by the Member; provided, however, that no
provision of Sections 10, 11 or 12 shall be amended without the consent of all
members of the GS Committee.
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24. Power of Attorney. The Member hereby constitutes and appoints
each of the Director-Managers, jointly and severally or, if a Liquidator shall
have been selected pursuant to Section 20, the Liquidator, as the Member's true
and lawful agent and attorney in fact ("Agent"), with full power of
substitution, with full power and authority in the Member's name, place and
stead to execute, acknowledge, deliver and file all such documents which the
Agent deems necessary or appropriate (i) to continue the existence or
qualification of the Company as a limited liability company under the laws of
any state or jurisdiction, (ii) to reflect amendments to this Agreement or the
Certificate made pursuant hereto, (iii) to reflect the dissolution or
liquidation of the Company pursuant to the terms hereof, or (iv) to reflect the
admission, withdrawal or expulsion of any member pursuant to the terms hereof.
The foregoing power of attorney is hereby declared irrevocable and a power
coupled with an interest and shall extend to each Member's successors and
assigns, heirs or representatives.
25. Headings. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not constitute a part hereof.
IN WITNESS WHEREOF, the Member has executed this Agreement.
EAGLE-PICHER INDUSTRIES, INC.
By: XXXXXXX XXXXXXXXXXXX
______________________________________
Xxxxxxx Xxxxxxxxxxxx, President
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