AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF SPELTZ & WEIS LLC
EXHIBIT
10.30
AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
XXXXXX
&
XXXX
LLC
This
AMENDED
AND
RESTATED
LIMITED
LIABILITY COMPANY AGREEMENT
(this “Agreement”) is made and entered into as of this 17th day of May, 2005, by
and
between Huron Consulting Group Inc., a Delaware corporation (the “Member”) and
Xxxxxx &
Xxxx LLC (formerly known as SC Holdings, LLC), a Delaware limited liability
company (the “Company”).
WITNESSETH:
WHEREAS,
pursuant to an Agreement of Merger (the “Merger
Agreement”),
dated
May 17,
2005,
between the Company and Xxxxxx & Xxxx LLC, a New Hampshire limited liability
company
(“Xxxxxx
& Xxxx LLC -
NH”),
Xxxxxx
and Xxxx LLC -
NH
was
merged with and into the
Company (the “Merger”); and
WHEREAS,
in connection with the Merger Agreement, the Company's name has been
changed
from “SC Holding, LLC”, to “Xxxxxx & Xxxx LLC”;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements
set forth herein, the Member and the Company hereby enter into and adopt
this
Agreement
as the amended and restated limited liability company agreement of the
Company.
1. Name. The
name
of the limited liability company is Xxxxxx & Xxxx LLC.
2.
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, to engage in any
lawful
act or activity
for which limited liability companies may be formed under the Delaware Limited
Liability
Company Act (6 Del.
C.§
18-101
et seq.),
as
amended from time to time (the “Delaware
Act”), and engaging in any and all activities necessary or incidental to the
foregoing.
3. Powers
of the Company.
(i)
The
Company shall have the power and authority to take any and all actions
necessary, appropriate, advisable, convenient or incidental to or for the
furtherance of the purpose
set forth in Section 2, including, but not limited to, the power:
(a) to
conduct its business, carry on its operations and have and exercise
the powers granted to a limited liability company by the Delaware Act in
any
state, territory,
district or possession of the United States, or in any foreign country that
may
be necessary,
convenient or incidental to the accomplishment of the purpose of the
Company;
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(b) to
acquire, by purchase, lease, contribution of property or otherwise,
and to own, hold, operate, maintain, finance, improve, lease, sell, convey,
mortgage, transfer, demolish or dispose of any real or personal property
that
may be necessary, convenient or
incidental to the accomplishment of the purpose of the Company;
(c) to
enter
into, perform and carry out contracts of any kind, including,
without limitation, contracts with the Member or any person or other entity
that
directly
or indirectly controls, is controlled by, or is under common control with
the
Member (any
such
person or entity, an “Affiliate”), or any agent of the Company necessary to, in
connection
with, convenient to, or incidental to, the accomplishment of the purpose
of the
Company.
For
purposes of the definition of Affiliate, the term “control” means possession,
directly
or indirectly, of the power to direct or cause the direction of the management
and policies
of an entity, whether through ownership of voting securities or
otherwise;
(d) to
purchase, take, receive, subscribe for or otherwise acquire, own, hold,
vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of,
and
otherwise use and
deal
in and with, shares or other interests in or obligations of domestic or foreign
corporations,
associations, general or limited partnerships (including, without limitation,
the power
to
be admitted as a partner thereof and to exercise the rights and perform the
duties created
thereby), trusts, limited liability companies (including, without limitation,
the power to be
admitted as a member or appointed as a manager thereof and to exercise the
rights and perform
the duties created thereby), and other entities or individuals, or direct
or
indirect obligations
of the United States or any foreign country or of any government, state,
territory, governmental
district or municipality or of any instrumentality of any of them;
(e) to
lend
money for any proper purpose, to invest and reinvest its funds,
and to take and hold real and personal property for the payment of funds
so
loaned or invested;
(f) to
xxx
and be sued, complain and defend and participate in administrative
or other proceedings, in its name;
(g) to
appoint employees and agents of the Company, and define their duties
and fix their compensation;
(h) to
indemnify any person or entity and to obtain any and all types of insurance;
(i) to
cease
its activities and cancel its insurance;
(j) to
negotiate, enter into, renegotiate, extend, renew, terminate, modify,
amend, waive, execute, acknowledge or take any other action with respect
to any
lease, contract
or security agreement in respect of any assets of the Company;
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(k) to
borrow
money and issue evidences of indebtedness, and to secure
the same by a mortgage, pledge or other lien on any or all of the assets
of the
Company;
(l) to
pay,
collect, compromise, litigate, arbitrate or otherwise adjust or
settle
any and all other claims or demands of or against the Company or to hold
such
proceeds against
the payment of contingent liabilities; and
(m) to
make,
execute, acknowledge and file any and all documents or instruments
necessary, convenient or incidental to the accomplishment of the purpose
of the
Company.
(ii) The
Company may merge with, or consolidate into, another limited liability
company or other business entity, subject to restrictions and or limitations
imposed on the
Company and the other limited liability company or other business entity
by the
Delaware Act
and
any applicable laws of the state of formation of such other limited liability
company or other
business entity, upon the approval of the Member, in its sole
discretion.
4. Member. The
name
and the business, residence or mailing address of the Member
of
the Company are as follows:
Name: Address:
Huron
Consulting Group 000
Xxxx
Xxx Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
5. Powers
of Member. The
Member shall have the power to exercise any and all rights
and powers granted to the Member pursuant to the express terms of this
Agreement. Except
as
otherwise specifically provided by this Agreement or required by the Delaware
Act, the
Managing Member (as hereinafter defined) shall have the power to act for
and on
behalf of, and
to
bind, the Company. The Managing Member is hereby designated as an authorized
person, within
the meaning of the Delaware Act, to execute, deliver and file any amendments
and/or restatements
to the certificate of formation of the Company and 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.
| 6. |
Management.
|
| 6.1 |
Management
of the Company.
|
(i) The
Member shall be the managing member of the Company (the “Managing
Member”) and, in such capacity, shall manage the Company in accordance with this
Agreement.
The Managing Member is an agent of the Company's business, and the actions
of
the
Managing Member taken in such capacity and in accordance with this Agreement
shall bind the
Company.
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(ii) The
Managing Member shall have full, exclusive and complete discretion
to manage and control the business and affairs of the Company, 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 purpose of the Company as set forth herein.
The
Managing
Member shall be the sole person or entity with the power to bind the Company,
except and
to
the extent that such power is expressly delegated to any other person or
entity
by the Managing
Member, and such delegation shall not cause the Managing Member to cease
to be
the Member
or
the Managing Member. There shall not be a “manager” (within the meaning of the
Delaware
Act) of the Company.
(iii) The
Managing Member may appoint individuals with or without such
titles as it may elect, including the titles of President, Vice President,
Treasurer, Secretary, and
Assistant Secretary, to act on behalf of the Company with such power and
authority as the Managing
Member may delegate in writing to any such persons.
6.2 Powers
of the Managing Member. The
Managing Member shall have the right,
power and authority, in the management of the business and affairs of the
Company, to do or
cause
to be done any and all acts deemed by the Managing Member to be necessary
or
appropriate
to effectuate the business, purposes and objectives of the Company, at the
expense of the
Company. Without limiting the generality of the foregoing, the Managing Member
shall have
the
power and authority to:
(i) establish
a record date with respect to all actions to be taken hereunder
that require a record date be established, including with respect to allocations
and distributions;
(ii) bring
and
defend on behalf of the Company actions and proceedings
at law or in equity before any court or governmental, administrative or other
regulatory
agency, body or commission or otherwise; and
(iii) execute
all documents or instruments, perform all duties and powers
and do all things for and on behalf of the Company in all matters necessary,
desirable, convenient
or incidental to the purpose of the Company, including, without limitation,
all
documents,
agreements and instruments related to the making of investments of Company
funds.
The
expression of any power or authority of the Managing Member in this Agreement
shall not in any way limit or exclude any other power or authority of the
Managing Member
that is not specifically or expressly set forth in this Agreement.
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6.3
No
Management by Other Persons or Entities. Except
and only to the extent
expressly delegated by the Managing Member, no person or entity other than
the
Managing
Member and the Member shall be an agent of the Company or have any right,
power
or authority to transact any business in the name of the Company or to act
for
or on behalf of or to
bind
the Company.
6.4 Reliance
by Third Parties. Any
person or entity dealing with the Company
or the Managing Member may rely upon a certificate signed by the Managing
Member
as
to:
(i) the
identity of the Managing Member;
(ii) the
existence or non-existence of any fact or facts that constitute a condition
precedent to acts by the Managing Member or are in any other manner germane
to
the affairs
of the Company;
(iii) the
persons who or entities that are authorized to execute and deliver
any instrument or document of or on behalf of the Company; or
(iv)
any
act
or failure to act by the Company or as to any other matter whatsoever
involving the Company or the Member.
6.5
Records
and Information. Unless
otherwise required by a mandatory provision
of law, neither the Company, the Member nor the Managing Member shall have
any
obligation
to maintain any books or records of the Company; provided that the Managing
Member
may keep books and records of the Company and may, from time to time, designate
recordkeeping
requirements for the Company.
7. Term;
Dissolution. The
term
of the Company shall be perpetual unless the Company
is dissolved and terminated in accordance with this Section 7. The Company
shall
dissolve,
and its affairs shall be wound up, upon the first to occur of the following:
(a)
the written consent
of the Member, (b) the occurrence of any event other than the death or
incompetency of the
Member that terminates the continued membership of the Member without the
admission of a successor
member to the Company or (c) the entry of a decree of judicial dissolution
under
Section
18-802 of the Delaware Act. In the event of the death or incompetency of
the
Member, the
Company shall not dissolve but the personal representative (as defined in
the
Delaware Act) of
the
Member shall agree in writing to continue the Company and to the admission
of
the personal
representative of the Member or its nominee or designee to the Company as
a
member, effective as of the death or incompetency of the Member. Upon the
dissolution of the Company, the
Managing Member shall wind up in the Company's affairs and distribute its
assets
as provided
in the Delaware Act. Upon the completion of the winding up of the Company,
the
Managing
Member shall file a certificate of cancellation with the Secretary of State
of
the State of Delaware canceling the Company's certificate of formation at
which
time the Company shall terminate.
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8. Capital
Contribution. The
Member shall make such initial capital contribution to the
Company in such amount as it shall deem appropriate in its sole
discretion.
9. Additional
Contributions. The
Member may but is not required to make any additional
capital contribution to the Company.
10. Allocation
of Profits and Losses: Tax Status. The
Company's profits and losses shall
be
allocated to the Member. At all times that the Company has only one member
(who
owns
100%
of the limited liability company interests in the Company), it is the intention
of the Member
that the Company be disregarded for federal, state, local and foreign income
tax
purposes.
11. Distributions. Distributions
shall be made to the Member at the times and in the amounts
determined by the Managing Member, provided that no distribution shall be
made
in violation of the Delaware Act and no distribution shall be made to the
Member
in connection with
the
resignation of the Member in the event the Member is adjudged incompetent
to
manage its
person or property by a court of competent jurisdiction and, unless otherwise
determined by the Member, no distribution will be paid to the Member upon
its
withdrawal in connection with the
voluntary assignment of its entire interest pursuant to Section 12
thereof.
12. Assignments. The
Member may transfer or assign (including as a collateral assignment
or pledge) in whole or in part its limited liability company interest. In
connection with
a
voluntary transfer or assignment by the Member of its entire limited liability
company interest in the Company (not including a collateral assignment or
pledge), the Member will automatically
withdraw and the assignee will automatically and simultaneously be admitted
as
the
successor Member without any further action at the time such voluntary transfer
or assignment
becomes effective under applicable law and the Company shall be continued
without dissolution.
13. Resignation. The
Member may resign from the Company at such time as it shall determine;
provided that the Member shall be deemed to have resigned from the Company
at
such
time
as it shall be adjudged by a court of competent jurisdiction to be incompetent
to manage
its person or property. Neither the filing of a voluntary petition in bankruptcy
nor any other
event specified in Section 18-304 of the Delaware Act will cause the Member
to
cease to be
a
member of the Company.
14. Admission
of Additional Members. One
or
more additional members of the Company may be admitted to the Company with
the
consent of the Member. Prior
to
the admission
of any such additional member of the Company (including an admission in
connection with
a
partial assignment or transfer pursuant to Section 12), this Agreement shall
be
amended by
the
Member and the person or persons to be admitted as additional members to
make
such changes as they shall determine to reflect the fact that the Company
shall
have more than one member.
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15. Liability
of Member. The
Member shall not have any liability for the obligations or
liabilities of the Company except to the extent provided in the Delaware
Act.
16. Exculpation
and Indemnification.
16.1
Exculpation.
(i) The
Member, whether acting as Member, in its capacity as Managing
Member, or in any other capacity, shall, to the fullest extent permitted
by law,
have no liability
to the Company or to any other person for any loss, damage or claim incurred
by
reason of any act or omission (whether or not constituting negligence or
gross
negligence) performed or omitted by the Member.
(ii) The
Member shall be fully protected in relying in good faith upon the
records of the Company and upon such information, opinions, reports or
statements presented to
the
Company by any person or entity as to matters the Member reasonably believes
are
within the
professional or expert competence of such person or entity and who or which
has
been selected
with reasonable care by or on behalf of the Company, including information,
opinions, reports
or statements as to the value and amount of the assets, liabilities, profits,
losses, or any other
facts pertinent to the existence and amount of assets from which distributions
to the Member
might properly be paid. The foregoing provision shall in no way be deemed
to
reduce the
limitation on liability of the Member provided in Clause (i) of this Section
16.1.
(iii) All
provisions of this Section 16.1 shall apply to any former member
of
the Company for all actions or omissions taken while such person was the
Member
of the Company to the same extent as if such person were still the Member
of the
Company.
16.2 Duties
and Liabilities of the Member.
(i) To
the
extent that, at law or in equity, the Member has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to any
other person, the
Member acting under this Agreement shall not be liable to the Company or
to any
other person
for its reliance on the provisions of this Agreement. The provisions of this
Agreement, to the
extent that they restrict the duties and liabilities of the Member otherwise
existing at law or in equity, are agreed to replace such other duties and
liabilities of such Member.
(ii) Whenever
in this Agreement the Member is permitted or required to
make a
decision (a) in its “discretion” or under a grant of similar authority or
latitude, the Member
shall be entitled to consider only such interests and factors as it desires,
including its own
interests, and shall have no duty or obligation to give any consideration
to any
interest of or factors
affecting the Company or any other Person, or (b) in its “good faith” or under
another express
7
standard,
the Member shall act under such express standard and shall not be subject
to
any
other
or different standard imposed by this Agreement or other applicable
law.
16.3 Indemnification. To
the
fullest extent permitted by applicable law, the Member
(irrespective of the capacity in which it acts) shall be entitled to
indemnification from the
Company for any loss, damage or claim incurred by the Member by reason of
any
act or omission
(whether or not constituting negligence or gross negligence) performed or
omitted by him
on
behalf of the Company; provided, however, that
any
indemnity under this Section 16.3 shall
be
provided out of and to the extent of Company assets only, and neither the
Member
nor any
other
person shall have any personal liability on account thereof.
16.4 Expenses. To
the
fullest extent permitted by applicable law, expenses (including
legal fees) incurred by the Member in defending any claim, demand, action,
suit
or proceeding
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding.
16.5 Insurance. The
Company may purchase and maintain insurance, to the extent
and in such amounts as the Managing Member shall, in its sole discretion,
deem
reasonable,
on behalf of Covered Persons and such other persons or entities as the Managing
Member
shall determine, against any liability that may be asserted against or expenses
that may be
incurred by any such person or entity in connection with the activities of
the
Company or such indemnities,
regardless of whether the Company would have the power to indemnify such
person
or
entity
against such liability under the provisions of this Agreement.
16.6 Other. The
Managing Member and the Company may enter into indemnity
contracts with any other persons granting such persons rights of indemnification
and may
adopt
written procedures pursuant to which arrangements are made for the advancement
of expenses
and the funding of obligations under this Section 16 and containing such
other
procedures
regarding indemnification all as the Managing Member determines in its sole
discretion.
17. Outside
Business. The
Member or any Affiliate thereof may engage in or possess an
interest in any business venture of any nature or description, independently
or
with others, similar or dissimilar to the business of the Company, and the
Company and the Member shall have
no
rights by virtue of this Agreement in and to such independent ventures or
the
income or profits
derived therefrom, and the pursuit of any such venture, even if competitive
with
the business of the Company, shall not be deemed wrongful or improper.
The
Member or any Affiliate
thereof shall not be obligated to present any particular investment opportunity
to the Company even if such opportunity is of a character that, if presented
to
the Company, could be taken
by
the Company, and the Member or Affiliate thereof shall have the right to
take
for its own
account (individually or as a partner, shareholder, fiduciary or otherwise)
or
to recommend to
others
any such particular investment opportunity.
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18. Amendment. This
Agreement may be amended or modified only by a written instrument
signed by the Member.
19. Governing
Law. This
Agreement shall be governed by, and construed under, the laws
of
the State of Delaware, without regard to the rules of conflict of laws thereof
or of any other
jurisdiction that would call for the application of the substantive laws
of a
jurisdiction other than the State of Delaware.
20. Miscellaneous. Throughout
this Agreement, nouns, pronouns and verbs shall be construed as masculine,
feminine, neuter, singular or plural, whichever shall be applicable. All
references
to “Sections” and “Clauses” shall refer to corresponding provisions of this
Agreement.
The
use
of the word “including” or any similar term shall be deemed to mean “including,
without limitation.” Any reference in this Agreement to any law, rule or
regulation shall
be
construed as reference to such law, rule or regulation as the same may have
been, or may from
time
to time be, amended, revised or reenacted and any successor thereto. The
headings of sections
in this Agreement are intended for reference purposes only and shall be given
no
substantive
meaning or any interpretive force.
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IN
WITNESS WHEREOF, the undersigned has duly executed this Limited Liability
Company
Agreement as of the 17th day
of
May, 2005.
HURON
CONSULTING GROUP INC., Member
By:
/s/
Xxxxx X. Xxxxx
Name:
Xxxxx
X. Xxxxx
Title:
VP
Corporate Development
The
Company hereby executes this Agreement for the purposes of becoming a party
hereto
and agreeing to perform its obligations and duties hereunder and being
entitled
to enjoy its rights and benefits hereunder.
XXXXXX
& XXXX LLC
as
Managing Member
By:
/s/
Xxxxx X. Xxxxx
Name:
Xxxxx
X. Xxxxx
Title:
VP
Corporate Development
