LIMITED LIABILITY COMPANY AGREEMENT
OF
CINTEC I LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement"), dated as of
December 1, 2000, of CinTec I LLC, a Delaware limited liability company (the
"Company"), by CinTec LLC, a Delaware limited liability company, as the sole
member of the Company (the "Member");
RECITALS
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WHEREAS, the Company was formed on November 16, 2000 by the Sole Organizer
under the Delaware Limited Liability Company Act (as amended from time to time,
the "Act");
WHEREAS, the Member holds 100% of the membership interest in the Company;
and
WHEREAS, the Member desires to set forth its understandings regarding its
rights, obligations and interests with respect to the affairs of the Company and
the conduct of its business;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Member hereby agrees as
follows:
ARTICLE I - Definitions
Section 1.1 Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to them in the Act.
ARTICLE II - General Provisions
Section 2.1 Company Name. The name of the Company is CinTec I LLC. The
business of the Company may be conducted upon compliance with all applicable
laws under any other name designated by the Manager.
Section 2.2 Registered Office; Registered Agent.
(a) The Company shall maintain a registered office in the State of
Delaware at, and the name and address of the Company's registered agent in
the State of Delaware is, Corporation Trust Company, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx.
(b) The business address of the Company is 000 Xxxx Xxxxxx Xxxxxx,
X.X. Xxx 000, Xxxxxxxxxx, XX 00000-0000, or such other place as the Member
shall designate.
Section 2.3 Nature of Business Permitted; Powers. The Company may carry on
any lawful business, purpose or activity. The Company shall possess and may
exercise all the powers and privileges granted by the Act or by any other law or
by this Agreement, together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion or
attainment of the business purposes or activities of the Company.
Section 2.4 Business Transactions of a Member with the Company. In
accordance with Section 18-107 of the Act, a member may transact business with
the Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a person who is not a member.
Section 2.5 Fiscal Year. The fiscal year of the Company (the "Fiscal Year")
for financial statement purposes shall end on December 31 of each year.
ARTICLE III - Members
Section 3.1 Admission of Members. New members shall be admitted only with
the approval of the Member.
Section 3.2 Classes.
(a) The membership interests of the Company shall consist of common
membership interests ("Common Interests").
(b) All Common Interests shall be identical with each other in every
respect, except that, should additional members be admitted, Common
Interests of each member shall reflect its capital account relative to the
other members.
Section 3.3 Liability of Member(s).
(a) All 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 no member shall be
obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member.
(b) Except as otherwise expressly required by law, a member shall not
have any liability in excess of (i) the amount of its capital contribution
to the Company, (ii) its share of any assets and undistributed profits of
the Company, (iii) its obligation to make other payments, if any, expressly
provided for in this Agreement or any amendment hereto and (iv) the amount
of any distributions wrongfully distributed to it.
Section 3.4 Access to and Confidentiality of Information; Records.
(a) Any member shall have the right to obtain from the Company from
time to time upon reasonable demand for any purpose reasonably related to
the member's interest as a member of the Company, the documents and other
information described in Section 18-305(a) of the Act.
(b) Any demand by a member pursuant to this Section 3.4 shall be in
writing and shall state the purpose of such demand.
Section 3.5 Meetings of Member(s).
(a) Meetings of the member(s) may be called at any time by any member.
(b) Except as otherwise provided by law, if additional members are
admitted, a majority of the members, determined in proportion to their
respective interests in the Company, entitled to vote at the meeting shall
constitute a quorum at all meetings of the members.
(c) Any action required to or which may be taken at a meeting of
member(s) may be taken without a meeting, without prior notice and without
a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by all member(s).
(d) Regular meetings of the member(s) shall be held at least annually.
Member(s) may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
Section 3.6 Vote. Except as specifically set forth herein, the business and
affairs of the Company shall be managed by or under the direction of the
member(s) by majority vote.
Section 3.7 Notice. Meetings of the member(s) may be held at such places
and at such times as the member(s) may from time to time determine. Any member
may at any time call a meeting of the member(s). Written notice of the time,
place, and purpose of such meeting shall be served by registered or certified
prepaid, first class mail, via overnight courier using a nationally reputable
courier, or by fax or cable, upon each member and shall be given at least two
(2) business days prior to the time of the meeting. No notice of a meeting need
be given to any member if a written waiver of notice, executed before or after
the meeting by such member thereunto duly authorized, is filed with the records
of the meeting, or to any member who attends the meeting without protesting
prior thereto or at its commencement the lack of notice to him or her. A waiver
of notice need not specify the purposes of the meeting.
Section 3.8 Withdrawals and Removals of Member(s). No member may resign,
withdraw or be removed as a member of the Company without the written consent of
all of the members.
ARTICLE IV- Management
Section 4.1 (a) General. Except as specifically set forth herein, the
business and affairs of the Company shall be managed by and under the direction
of a manager (the "Manager") selected by the Member who shall have full,
exclusive and complete discretion to manage and control the business and affairs
of the Company as would (if the Company were a corporation) be subject to
control by a board of directors, to make all decisions affecting the business
and affairs of the Company and to take all such actions as it deems necessary or
appropriate to accomplish the purposes of the Company as set forth herein. The
Manager shall serve without compensation from the Company, and the Manager shall
bear the cost of its participation in meetings and other activities of the
Company.
(b) Conduct of Business. Subject to the provisions of this Agreement,
the day-to-day operations of the Company shall be managed by the Manager
and the Manager shall have full power and authority to make all business
decisions, enter into all commitments and take such other actions in
connection with the business and operations of the Company as it deems
appropriate.
(c) Officers. The Manager from time to time may appoint any officers
or agents as it may deem advisable, each of whom shall have such title,
hold office for such period, have such authority and perform such duties as
the Manager may determine in its sole discretion. The Manager from time to
time may delegate to one or more officers or agents the power to appoint
any such subordinate officers or agents and prescribe their respective
rights, terms of office, authorities and duties.
(d) Officers as Agents; Authority. The officers, if appointed by the
Manager, to the extent of their powers delegated to them by the Manager,
are agents and managers of the Company for the purpose of the Company's
business, and the actions of the officers taken in accordance with such
powers shall bind the Company.
Section 4.2 Reliance by Third Parties. Persons dealing with the Company are
entitled to rely conclusively upon the power and authority of the Manager and
the Member herein set forth.
Section 4.3 Expenses. Except as otherwise provided in this Agreement, the
Company shall be responsible for and shall pay all expenses out of funds of the
Company determined by the Manager to be available for such purpose, provided
that such expenses are those of the Company or are otherwise incurred by the
Member or the Manager in connection with this Agreement, including, without
limitation:
(a) all expenses related to the business of the Company and all
routine administrative expenses of the Company, including the maintenance
of books and records of the Company, the preparation and dispatch to any
members of checks, financial reports, tax returns and notices required
pursuant to this Agreement or in connection with the holding of any
meetings of the members;
(b) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any investigation
and preparation) and the amount of any judgment or settlement paid in
connection therewith;
(c) all expenses for indemnity or contribution payable by the Company
to any person;
(d) all expenses incurred in connection with the collection of amounts
due to the Company from any person;
(e) all expenses incurred in connection with the preparation of
amendments to this Agreement; and
(f) expenses incurred in connection with the liquidation, dissolution
and winding up of the Company.
ARTICLE V - Finance
Section 5.1 Form of Contribution. The contribution of a member to the
Company must be in cash or property, provided that if there is more than one
member, all members must consent in writing to contributions of property. To the
extent there is more than one member, additional contributions in the same
proportion shall be made by each member, except as may be approved by all
members. A capital account shall be maintained for each member, to which
contributions and profits shall be credited and against which distributions and
losses shall be charged. At any time that there is more than one member, capital
accounts shall be maintained in accordance with the tax accounting principles
prescribed by the Treasury Regulations promulgated under Code Section 704 (the
"Allocation Regulations"), so that the tax allocations provided in this
Agreement shall, to the extent possible, have "substantial economic effect"
within the meaning of the Allocation Regulations, or, if such allocations cannot
have substantial economic effect, so that they may be deemed to be "in
accordance with the members' interests in the Company" within the meaning of the
Allocation Regulations.
Section 5.2 Allocation of Profits and Losses. The profits and losses of the
Company shall be allocated entirely to the Member or, if additional members are
admitted, the members in proportion to their respective capital accounts.
Section 5.3 Allocation of Distributions. The distributions of the Company
shall be allocated entirely to the Member or, if additional members are
admitted, the members in proportion to their respective capital accounts.
ARTICLE VI - Distribution
Section 6.1 Distribution in Kind. Notwithstanding the provisions of Section
18-605 of the Act, a member may receive distributions from the Company in any
form other than cash, and may be compelled to accept a distribution of any asset
in kind from the Company.
ARTICLE VII - Assignment of Membership and Common Interests
Section 7.1 Assignment of Membership and Common Interests. Membership and
Common Interests in the Company shall not be assignable or transferable.
Section 7.2 Certificates. Common Interests in the Company may, but need not
be, evidenced by a certificate of limited liability company interest issued by
the Company.
ARTICLE VIII - Dissolution
Section 8.1 Duration and Dissolution. The duration of the Company shall be
perpetual.
Section 8.2 Winding Up. Subject to the provisions of the Act, the Member
or, if additional members are admitted, the members (acting by written consent
of all members) shall have the right to wind up the Company's affairs in
accordance with Section 18-803 of the Act (and shall promptly do so upon
dissolution of the Company in accordance with Section 8.1) and shall also have
the right to act as or appoint a liquidating trustee in connection therewith.
Section 8.3 Distribution of Assets. Upon the winding up of the Company, the
assets shall be distributed in the manner provided in Section 18-804 of the Act.
ARTICLE IX - Tax Characterization; Reports
Section 9.1 Tax Treatment. The Company shall timely make all necessary
elections and filings for federal, state, and local tax purposes such that it
will not be treated as a separate entity, but, instead, will be disregarded, for
federal, state, and local tax purposes.
Section 9.2 Form K-1. After the end of each Fiscal Year for which the
Company shall have more than one member, the Manager shall cause to be prepared
and transmitted, as promptly as possible, and in any event within 90 days of the
close of such Fiscal Year, a federal income tax Form K-1 and any required
similar state income tax form for each member.
Section 9.3 Company Tax Returns. The Manager shall cause to be prepared and
timely filed all tax returns required to be filed for the Company. The Manager
may, in its sole discretion, make or refrain from making any federal, state or
local income or other tax elections for the Company that it deems necessary or
advisable.
ARTICLE X - Exculpation and Indemnification
Section 10.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or obligation or duty at law or in
equity, neither any member, nor any manager, officers, directors, stockholders,
partners, employees, representatives or agents of any member, nor any officer,
employee, representative, Manager or agent of the Company or any of its
affiliates (individually, a "Covered Person" and collectively, the "Covered
Persons") shall be liable to the Company or any other person for any act or
omission (in relation to the Company, this Agreement, any related document or
any transaction or investment contemplated hereby or thereby) taken or omitted
in good faith by a Covered Person and in the reasonable belief that such act or
omission is in or is not contrary to the best interests of the Company and is
within the scope of authority granted to such Covered Person by the Agreement,
provided that such act or omission does not constitute fraud, willful
misconduct, bad faith, or gross negligence.
Section 10.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative, in which
the Covered Person may be involved, or threatened to be involved, as a party or
otherwise, by reason of its management of the affairs of the Company or which
relates to or arises out of the Company or its property, business or affairs. A
Covered Person shall not be entitled to indemnification under this Section 10.2
with respect to any claim, issue or matter in which it has engaged in fraud,
willful misconduct, bad faith or gross negligence.
ARTICLE XI - Miscellaneous
Section 11.1 Amendment to this Agreement. Except as otherwise provided in
this Agreement, this Agreement may be amended by, and only by, a written
instrument executed by the Member or, if additional members are admitted,
unanimous consent of the members.
Section 11.2 Successors; Counterparts. Subject to Article VIII, this
Agreement (a) shall be binding as to the executors, administrators, estates,
heirs and legal successors, or nominees or representatives, of the Member or, if
additional members are admitted, the members and (b) may be executed in several
counterparts with the same effect as if the parties executing the several
counterparts had all executed one counterpart.
Section 11.3 Governing Law; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflict of laws thereof. In particular, this
Agreement shall be construed to the maximum extent possible to comply with all
the terms and conditions of the Act. If, nevertheless, it shall be determined by
a court of competent jurisdiction that any provisions or wording of this
Agreement shall be invalid or unenforceable under the Act or other applicable
law, such invalidity or unenforceability shall not validate the entire Agreement
and this Agreement shall be construed so as to limit any term or provision so as
to make it enforceable or valid within the requirements of applicable law, and,
in the event such term or provisions cannot be so limited, this Agreement shall
be construed to omit such invalid or unenforceable terms or provisions. If it
shall be determined by a court of competent jurisdiction that any provisions
relating to the distributions and allocations of the Company or to any expenses
payable by the Company is invalid or unenforceable, this Agreement shall be
construed or interpreted so as (a) to make it enforceable or valid and (b) to
make the distributions and allocations as closely equivalent to those set forth
in this Agreement as is permissible under applicable law.
Section 11.4 Filings. Following the execution and delivery of this
Agreement, the Member or the Manager shall promptly prepare any documents
required to be filed and recorded under the Act, and the Member or the Manager
shall promptly cause each such document to be filed and recorded in accordance
with the Act and, to the extent required by local law, to be filed and recorded
or notice thereof to be published in the appropriate place in each jurisdiction
in which the Company may hereafter establish a place of business. The Member or
the Manager shall also promptly cause to be filed, recorded and published such
statements of fictitious business name and any other notices, certificates,
statements or other instruments required by any provision of any applicable law
of the United States or any state or other jurisdiction which governs the
conduct of its business from time to time.
Section 11.5 Headings. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope or intent of this Agreement or any
provision hereof.
Section 11.6 Additional Documents. Each member agrees to perform all
further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
Section 11.7 Notices. All notices, requests and other communications to any
member shall be in writing (including telecopier or similar writing) and shall
be given to such member (and any other person designated by such member) at its
address or telecopier number set forth in a schedule filed with the records of
the Company or such other address or telecopier number as such member may
hereafter specify for the purpose by notice. Each such notice, request or other
communication shall be effective (a) if given by telecopier, when transmitted to
the number specified pursuant to this Section and the appropriate written
confirmation is received, (b) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (c) if given by any other means, when delivered at
the address specified pursuant to this Section.
Section 11.8 Books and Records; Accounting. The Member or, if additional
members are admitted, the members shall keep or cause to be kept at the address
of the Company (or at such other place as the members shall determine in their
discretion) true and full books and records regarding the status of the business
and financial condition of the Company.
* * * * *
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of
the date first above written.
CinTec LLC
By: __________________________
Name: Xxxxx X. Xxxxxx
Title: Manager
