EXHIBIT 3.34
NOVELIS SOUTH AMERICA HOLDINGS LLC
LIMITED LIABILITY COMPANY AGREEMENT
NOVELIS SOUTH AMERICA HOLDINGS LLC
LIMITED LIABILITY COMPANY AGREEMENT
ARTICLE I
FORMATION
SECTION 1.1 -- FORMATION OF THE COMPANY. Novelis South America Holdings LLC
(the "COMPANY") was formed on June 9, 2006 upon the filing of a Certificate of
Formation with the Delaware Secretary of State pursuant to the Delaware Limited
Liability Company Act (as amended from time to time, the "ACT"). The rights and
obligations of the parties and the organization, operation, dissolution, and
winding up of the Company, shall be governed by the Act, the Company's
Certificate of Formation as amended from time to time (the "CERTIFICATE") and
this Limited Liability Company Agreement as amended from time to time (the
"AGREEMENT"). The formation of the Company as a Delaware limited liability
company under the Act by Xxxxxx X. Xxxxxxxx, Xx. ("XXXXXXXX") and all actions
taken by Xxxxxxxx are hereby adopted and ratified, Xxxxxxxx being an "authorized
person" within the meaning of the Act to execute, deliver and file the
Certificate.
SECTION 1.2 -- NAMES. The name of the Company may change from time to time
by amendment of the Certificate. The Company may transact business under one or
more assumed names as determined from time to time by the Board, subject to
compliance with any applicable laws relating to use of assumed names.
SECTION 1.3 -- REGISTERED AGENT. The Company's registered agent shall be
the Person designated in the Certificate or such other Person as may be
designated from time to time by the Board in accordance with the Act.
ARTICLE II
DEFINITIONS
SECTION 2.1 -- DEFINITIONS. Whenever used in this Agreement, the following
terms shall have the meaning assigned to them in this Section 2.1 except to the
extent expressly otherwise provided in this Agreement:
AFFILIATE. "Affiliate" shall mean, when used with reference to a specified
Person: (i) any Person that, directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with the
specified Person; (ii) any Person that is an officer of, a director of, general
partner in, manager of, or trustee of, or serves in a similar capacity with
respect to, the specified Person, or of which the specified Person is an
officer, director, general partner, manager, or
1
trustee, or with respect to which the specified Person serves in a similar
capacity; and (iii) any Person that, directly or indirectly, is the beneficial
owner of 10% or more of any class of equity securities of, or otherwise has a
substantial beneficial interest (10% or more) in, the specified Person, or of
which the specified Person is directly or indirectly the owner of 10% or more of
any class of equity securities.
BOARD. "Board" shall mean the Directors acting as a group as provided in
Article VI.
CODE. "Code" shall mean the Internal Revenue Code of 1986 as amended (or
corresponding provisions of subsequent laws).
COMPANY ASSETS. "Company Assets" shall mean all assets, interests,
properties and rights of any type owned by the Company.
COMPETITIVE. "Competitive" shall mean within the range of prices and other
terms customarily charged or given for the money loaned, property leased, or
goods or services provided in question, by Persons that are engaged in the
business of loaning such money, leasing similar property, or providing similar
goods or services in the relevant market area.
DEBT SERVICE. "Debt Service" shall mean all payments, including without
limitation principal, interest, and fees, that are made in connection with any
loan, whether or not such payments are then due, past due, or are being prepaid.
DIRECTORS. "Directors" shall mean those persons appointed as Directors by
the Shareholders pursuant to the Management Addendum and "Director" shall mean
any one of such persons. Each Director shall be considered a "Manager" within
the meaning of the Act.
EVENT OF WITHDRAWAL. "Event of Withdrawal" shall mean an event causing
cessation of membership under Act Section 18-304.
FISCAL YEAR. "Fiscal Year" shall mean the Company's taxable year for U.S.
federal income tax purposes or, if the context requires, any portion of such
year for which the Company is required to allocate profits, losses, and other
items of Company income, gain, loss or deduction pursuant to Article VIII.
MAJORITY IN INTEREST. "Majority in Interest" shall mean Shareholder(s)
owning Shares representing a majority of all of the votes entitled to be cast by
all of the Shares.
MANAGEMENT ADDENDUM. "Management Addendum" shall mean the Management
Addendum attached hereto.
2
OPERATING EXPENSES. "Operating Expenses" shall mean the expenses of the
Company other than (i) Debt Service, (ii) capital expenditures, and (iii)
depreciation and other noncash charges.
PERSON. "Person" shall mean and include any individual, trust, partnership,
association, limited liability company, corporation or other entity.
RESERVE. "Reserve" shall mean the amount of the Company's cash receipts
which the Board, in its discretion, retains in the Company (i) to pay future
Debt Service or Operating Expenses, (ii) to make future capital expenditures, or
(iii) to provide for contingent or unforeseen obligations of the Company.
SHAREHOLDERS. "Shareholders" shall mean those Persons holding Shares and
"Shareholder" shall mean any one of such Persons. Each Shareholder shall be
considered a "Member" within the meaning of the Act.
SHARES. "Shares" shall mean shares of the Company representing all of a
Person's rights and obligations with respect to the Company as a Shareholder,
including without limitation, any share of the profits and losses of the
Company, any right to receive distributions of the Company's assets, and any
right to participate in the management of the Company as a Shareholder as
provided in this Agreement or the Act.
SECTION 2.2 -- ADDITIONAL DEFINITIONS. Additional definitions appear
elsewhere in this Agreement.
ARTICLE III
PURPOSE AND POWERS
SECTION 3.1 -- PURPOSE. The Company may engage in any and all lawful
business or activities as may be determined by the Board.
SECTION 3.2 -- POWERS. The Company shall have all powers permissible under
the Act.
ARTICLE IV
PRINCIPAL OFFICE
SECTION 4.1 -- PRINCIPAL OFFICE. The principal office of the Company shall
be in the United States.
SECTION 4.2 -- TERM. Subject to Section 9.1, there shall be no limitation
on the Company's duration.
3
ARTICLE V
INCOME TAX STATUS
SECTION 5.1 -- INCOME TAX STATUS. So long as there only a single Person
owning the Shares, the Company shall be disregarded as an entity separate from
such Person as provided in U.S. Treasury Regulations Section 301.7701-3.
Whenever there is more than one such Person, the Company shall be classified as
a partnership subject to Subchapter K of Chapter 1 of the Code for U.S. Federal
and state income tax purposes. Such classification as a disregarded entity or as
a partnership shall be solely for U.S. Federal and state income tax purposes,
and shall not affect the limited liability of the Directors and Shareholders or
otherwise affect the status of the Company, its Directors and Shareholders under
the Act.
ARTICLE VI
MANAGEMENT
Section 6.1 -- BOARD OF DIRECTORS.
(a) In addition to and not in limitation of any rights and powers
conferred by law or other provisions of this Agreement and except only as
limited, restricted or prohibited by the express provisions of this Agreement,
the Board shall have full, exclusive and complete discretion in the management
and control of the affairs of the Company and shall make all decisions affecting
Company affairs. At any time there is more than one Director then serving, the
exercise of such authority shall be in accordance with and subject to Section
6.2.
(b) The number of Directors, and the Person(s) serving as Director(s),
shall be as determined from time to time by a Majority in Interest of all the
Shareholders; provided, that at all times a majority of the Directors shall be
U.S. residents. The initial number of Directors shall be three, and the initial
Directors shall be Xxxxxx Xxxx Xxxxxx, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx,
Xx.
SECTION 6.2 -- BOARD.
(a) At any time there is more than one Director serving, (i) neither
any Director nor the Directors shall take any actions, or exercise any
authority, as a Director or Directors, whether under this Agreement or
otherwise, except (A) as authorized by the Board in accordance with Section
6.2(b) or (B) as may be expressly otherwise provided in this Agreement, and (ii)
references in this Agreement to decisions or other actions to be taken by, or
under the authority of, the Directors shall mean action by the Board in
accordance with Section 6.2(b).
(b) In order for the Board to act on any matter, the action must
receive the consent of a majority of all the Directors. For this purpose, a
Director may give the Director's consent either (i) at a meeting of at least a
majority of the Directors at which all persons participating in the meeting
4
can contemporaneously interact with one another, or (ii) in a writing signed by
the Director. The Board shall cause to be maintained a written record of its
actions taken with or without a meeting.
SECTION 6.3 -- CERTAIN SPECIFIC AUTHORITY OF THE BOARD. Subject to any
express limitations contained in this Agreement and without limiting their other
authority contained in this Agreement or the Act, the Board is hereby authorized
for, in the name, and on behalf of the Company to take all actions it may deem
necessary or appropriate in furtherance of the Company's interests, including
without limitation:
(i) to borrow money and issue evidences of indebtedness, and to
secure the same by mortgage, deed of trust, pledge or other lien
on Company Assets;
(ii) to lease real and personal property;
(iii) to employ agents, officers, employees, accountants, attorneys,
consultants and other Persons necessary or appropriate to carry
out the business of the Company, and to pay fees, expenses,
salaries, wages and other compensation to such Persons;
(iv) to pay, extend, renew, modify, adjust, submit to arbitration,
prosecute, defend or compromise, upon such terms as the Board may
determine and upon such evidence as the Board may deem
sufficient, any obligation, suit, liability, cause of action or
claim, including taxes, either in favor of or against the
Company;
(v) to establish, maintain, increase, reduce, and/or eliminate
Reserves;
(vi) to deal with any Person who has loaned money or provided goods or
services to any Director, any Shareholder, or any Affiliate of a
Director or Shareholder;
(vii) to withhold taxes as permitted or required by, and to otherwise
comply with and take actions necessary as a result of, provisions
of the Code or the laws of any foreign country, state or other
jurisdiction to which the Company or any Shareholder is subject;
(viii) to place record title to, or the right to use, Company Assets
in the name(s) of nominee(s) or trustee(s), for any purpose
convenient or beneficial to the Company;
(ix) to deposit, withdraw, invest, pay, retain and distribute the
Company's funds in a manner consistent with this Agreement;
(x) to make such elections under the Code and other relevant tax laws
as to the treatment of items of Company income, gain, loss,
deduction and credit, and
5
as to all other relevant matters, as the Board deems necessary or
appropriate, including, without limitation, selection of the
manner and method of determining depreciation of capital assets,
and determination of whether expenditures are to be capitalized
or treated as current expenses; and
(xi) to compromise the obligation of a Shareholder to make a
contribution to the Company, or to return to the Company money or
other property paid or distributed to such Shareholder in
violation of the Act.
SECTION 6.4 -- AUTHORITY TO DEAL WITH DIRECTORS, SHAREHOLDERS AND THEIR
AFFILIATES. Without limiting its other authority provided in this Agreement or
the Act, the Board is authorized for, in the name, and on behalf of the Company:
(i) to borrow funds from any Director, Shareholder, or Affiliate of
one or more Directors or Shareholders, on terms that are
determined by the Board to be overall not materially less
favorable to the Company than Competitive terms;
(ii) to lease or sublease as lessee or sublessee real or personal
property from any Director, Shareholder, or Affiliate of one or
more Directors and/or Shareholders, on terms that are determined
by the Board to be overall not materially less favorable to the
Company than Competitive terms; and
(iii) to contract with any Director, Shareholder, or Affiliate of one
or more Directors and/or Shareholders, for other goods or
services or otherwise, on terms that are determined by the Board
to be overall not materially less favorable to the Company than
Competitive terms.
SECTION 6.5 -- COMPANY EXPENDITURES. All of the Company's capital
expenditures and expenses shall be billed directly to and paid by the Company to
the extent practicable. Company capital expenditures or expenses shall include,
but not be limited to:
(i) fees and expenses of architects, general contractors, lenders,
appraisers, investment advisors, attorneys, accountants,
investment bankers, brokers, independent contractors, leasing
agents, consultants, insurance representatives, and other agents;
(ii) expenses of the Board's communications, oral or written, with the
Shareholders including expenses of preparing and mailing reports
to Shareholders;
(iii) payment of any and all liabilities, losses, judgments, expenses,
and amounts paid in settlement of claims arising out of the
business or affairs of the Company, and fees and expenses of
professionals employed by the Company in connection with any of
the above;
6
(iv) fees and expenses of accountants for the preparation and
documentation of Company accounting, audits, and financial
projections;
(v) legal services, which shall include without limitation the following:
expenses of preparing, and from time to time amending, the Certificate
and this Agreement; costs incurred in connection with any litigation
in which the Company is involved as well as any examination,
investigation, or other proceeding conducted therewith; and costs of
qualifying or licensing the Company;
(vi) tax services, which shall include without limitation the following:
tax planning for the Company, and preparation and documentation of
Company U.S. Federal, state and local and any other applicable
jurisdiction tax returns;
(vii) premiums, loss adjustments and any other expenses of insurance
required in connection with the business or affairs of the Company;
(viii) organizational expenses;
(ix) ad valorem taxes on Company Assets;
(x) Operating Expenses not described above;
(xi) Debt Service; and
(xii) any other costs or expenses necessary or appropriate for the
organization, operation or winding up of the Company.
SECTION 6.6 -- CERTAIN DUTIES, OTHER ACTIVITIES AND COMPENSATION OF THE
DIRECTORS.
(a) The Directors shall be required to devote to the affairs of the
Company only such time as may be necessary for the proper performance of their
responsibilities under this Agreement, subject to Section 6.8. The Directors and
their Affiliates shall be free to conduct other activities to no less extent
than as provided in Section 7.5 with respect to Shareholders; provided, however,
that nothing in this Section 6.6(a) shall relieve any Person from any obligation
or restriction otherwise heretofore or hereafter undertaken by such Person.
(b) The Board shall prepare or cause to be prepared and shall file all
U.S. Federal, state or local or other jurisdiction tax returns required to be
filed by the Company. The Board and/or the Company may withhold taxes from
amounts otherwise distributable to Persons owning Shares and remit such taxes to
the applicable governmental authorities, as applicable laws may permit or
require.
(c) Until required in the conduct of the affairs of the Company, all
Company funds, including, but not limited to, capital contributions, Company
income, and proceeds of
7
borrowing by the Company, may be deposited or invested in any type of account or
investment that the Board determines. Any interest or other income generated by
such deposits or investment shall be for the Company's account. All Company
funds may be commingled with other Company funds, and may be withdrawn, expended
and distributed as authorized by this Agreement.
(d) The Board shall keep or cause to be kept adequate books and
records reflecting the activities of the Company, in such form and content
sufficient to meet the requirements of Act Section 18-305.
(e) The Board may procure and maintain, on behalf of and at the
expense of the Company, such types and amounts of insurance coverage as the
Board may determine to be desirable for the protection of the Company,
Directors, Shareholders, employees, and other agents.
(f) A Director may be paid for his, her, or its services as Director
such compensation, if any, as may be approved from time to time in writing by a
Majority in Interest of all the Shareholders.
SECTION 6.7 -- STANDARD OF CARE, LIMITED LIABILITY & INDEMNIFICATION.
(a) To the full extent provided in the Act, the Directors shall not be
liable for the obligations of the Company.
(b) A Director shall discharge the Director's duties and exercise the
Director's authorities in a manner the Director believes in good faith to be in
the best interests of the Company. No Director shall be liable, responsible or
accountable in damages or otherwise to the Company or to any Shareholder for (a)
any act performed within the scope of the authority conferred on such Director
by this Agreement except for the gross negligence or willful misconduct of such
Director in carrying out the obligations of such Director hereunder, (b) such
Director's failure or refusal to perform any act, except those expressly
required by or pursuant to the terms of this Agreement, (c) such Director's
performance of, or failure to perform, any act on the reasonable reliance on
advice of legal counsel to the Company or (d) the negligence, dishonesty or bad
faith of any agent, consultant or broker of the Company selected, engaged or
retained in good faith.
(c) In any threatened, pending or completed action, suit or
proceeding, each Director shall, to the fullest extent permitted by the Act and
all other applicable laws, be fully protected and indemnified and held harmless
by the Company against all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, proceedings, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, reasonable attorneys'
fees and disbursements, costs of investigation, fines, judgments and amounts
paid in settlement, actually incurred by any such Director in connection with
such action, suit or proceeding) by virtue of its status as a Director,
regardless of whether the indemnitee continues to be a Director, or with respect
to any action or omission taken or suffered by such Director in good faith,
other than liabilities and losses resulting from the gross negligence or willful
misconduct of such Director; provided, however, that any such Director shall not
be so indemnified for any acts determined to be in contravention of this
Agreement or in breach of its fiduciary duties. The indemnification provided
8
by this paragraph shall be recoverable only out of the assets of the Company,
and no Director or Shareholder shall have any personal liability on account
thereof or be required to fund or cause to be funded any obligation by reason of
these indemnification provisions.
(d) No amendment or repeal of this Section 6.7, nor the adoption
hereafter of any provision in the Certificate or in this Agreement inconsistent
with this Section 6.7, shall eliminate or reduce the protection granted in this
Section 6.7 with respect to any matter that occurred prior to such amendment,
repeal, or adoption. Each Person who at any time ever is admitted as a
Shareholder or otherwise owns any interest in the Company hereby agrees to the
provisions of this Section 6.7 as a condition of such admission or ownership.
SECTION 6.8 -- DELEGATION; OFFICERS. The Board may delegate authority to
act on behalf of the Company to one or more Persons from time to time to the
full extent permitted by Act Section 18-407. Without limiting the generality of
the foregoing, the Management Addendum attached hereto is hereby adopted and
incorporated into this Agreement, subject to such future changes in Article V
thereof, whether or not material, as the Directors may determine from time to
time. Until changed by the Directors, the following Persons shall serve the
offices set forth opposite his or her name below:
Xxxxxx X. Xxxxxxxx, Xx. President
Xxxxxxx Xxxxxxx Vice President and Treasurer
Xxxxxxx Xxxxxxxx Secretary
Xxxxxx X. XxXxxxx Assistant Secretary
Xxxxxxxxx Xxxxxx Assistant Secretary
ARTICLE VII
SHAREHOLDERS
SECTION 7.1 - ISSUANCE OF SHARES; ADMISSION OF SHAREHOLDERS.
(a) Novelis Inc., a Canadian corporation, is hereby admitted and
confirmed as a Shareholder of the Company. As of the date hereof, Novelis Inc.
is the sole Shareholder, owning 1 Share. Novelis Inc. has or will contribute
$1,000 in consideration for the issuance to it of such Share.
(b) Subject to Section 7.1 (c), the Board may cause the Company to
issue to then-current Shareholders and/or other Persons who will become
Shareholders additional Shares from time to time for cash, other property,
services, or other consideration provided or to be provided the Company. Upon
the issuance of Shares to Persons who are not the Shareholders, such Persons
shall be admitted as Shareholders. Except as the Board may otherwise determine,
no holder of a Share shall have a preemptive or other right to acquire all or
any portion of any Shares to be issued.
(c) Each Share shall be entitled to one vote on all matters to be
voted on by Shareholders under the Act and/or this Agreement.
9
(d) The Company shall issue certificates to the Shareholders
evidencing the Shares owned by the Shareholders.
SECTION 7.2 -- CESSATION.
(a) A Shareholder shall cease to be a Shareholder upon the occurrence
of an Event of Withdrawal, provided that if at the time of such Event of
Withdrawal there is only one Shareholder then such Shareholder shall remain a
Shareholder notwithstanding such Event of Withdrawal unless such Shareholder
elects to dissolve the Company.
(b) Upon a Person ceasing to be a Shareholder in accordance with
Section 7.2(a) upon the occurrence of an Event of Withdrawal, the affected
Shareholder thereafter shall have only the rights to share in profits, losses
and distributions in accordance with Article VIII of this Agreement with respect
to the withdrawn Shareholder's Shares and shall not be released from any
obligation or other liability to the Company, except as the Board on the
Company's behalf and the affected Shareholder may otherwise agree. The affected
Shareholder shall not be entitled to receive the fair value of the affected
Shareholder's Shares or otherwise receive any distribution upon or with respect
to such cessation, except as the affected Shareholder and the Board on the
Company's behalf may otherwise agree.
SECTION 7.3 -- MANAGEMENT PARTICIPATION. Shareholders shall not have any
special voting, approval, or other consent rights with respect to the business
or other affairs of the Company in their capacities as Shareholders except such
rights as are expressly provided in this Agreement. All matters subject to a
vote of the Shareholders per the terms of this Agreement or as required by the
Act shall be determined by a Majority in Interest, unless another vote is
required by law or expressly provided for in this Agreement.
SECTION 7.4 -- LIMITED LIABILITY & INDEMNIFICATION. To the full extent
provided in the Act, Shareholders shall not be liable for the obligations of the
Company. In any threatened, pending or completed action, suit or proceeding,
each Shareholder shall, to the fullest extent permitted by the Act and all other
applicable laws, be fully protected and indemnified and held harmless by the
Company against all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, proceedings, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, reasonable attorneys'
fees and disbursements, costs of investigation, fines, judgments and amounts
paid in settlement, actually incurred by any such Shareholder in connection with
such action, suit or proceeding) by virtue of its status as a Shareholder,
regardless of whether the indemnitee continues to be a Shareholder, or with
respect to any action or omission taken or suffered by such Shareholder in good
faith, other than liabilities and losses resulting from the gross negligence or
willful misconduct of such Shareholder; provided, however, that any such
Shareholder shall not be so indemnified for any acts determined to be in
contravention of this Agreement or in breach of its fiduciary duties. The
indemnification provided by this paragraph shall be recoverable only out of the
assets of the Company, and no Director or Shareholder shall have any personal
liability on account thereof or be required to fund or cause to be funded any
obligation by reason of these indemnification provisions. No amendment or repeal
of this Section 7.4, nor the adoption
10
hereafter of any provision in the Certificate or in this Agreement inconsistent
with this Section 7.4, shall eliminate or reduce the protection granted in this
Section 7.4 with respect to any matter that occurred prior to such amendment,
repeal, or adoption. Each Person who at any time ever becomes a Shareholder or
otherwise owns Shares hereby agrees to the provisions of this Section 7.4 as a
condition of such admission or ownership.
SECTION 7.5 -- OTHER ACTIVITIES. Each Shareholder and the Shareholder's
Affiliates may, without accountability to the Company or to its other
Shareholders and without any consent whatsoever, engage, directly or indirectly,
in any other business ventures of any nature and description, independently or
with others, whether or not such business ventures are in competition with the
Company's business. Neither the Company nor any other Shareholder shall have any
right in and to any such business ventures or the income or profits derived
therefrom, by virtue of this Agreement or the relationships created pursuant to
this Agreement. Provided, however, that nothing in this Section 7.5 shall
relieve any Person from any obligation or restriction heretofore or hereafter
otherwise undertaken by such Person.
SECTION 7.6 -- CAPITAL CONTRIBUTIONS.
(a) A Shareholder may, but shall not be required to, make capital
contributions or loans to the Company, except as shall otherwise be agreed to by
such Shareholder. To the extent that a Shareholder makes a capital contribution
to the Company, the Company shall issue Shares to such Person, the number of
which shall be determined by the Board in its discretion and which shall be
evidenced by one or more certificates. If a contribution is in a form other than
cash, the Board shall determine the agreed value of such contribution.
(b) The Company shall maintain a Stated Capital account for the Shares
issued to the Shareholders. "Stated Capital" means the amount recorded in such
account in respect of such Shares issued in accordance with this Article VII,
and shall be denominated in U.S. dollars. Upon issuance of Shares, the capital
contributions in respect of such Shares shall be added to the Stated Capital
account. Upon any distribution that constitutes a return of all or any portion
of the Stated Capital to a Shareholder, the Stated Capital shall be
automatically reduced to an amount equal to the undistributed portion of such
Stated Capital or, if all of such Stated Capital has been distributed, to zero
(but in no event shall the Stated Capital be less than zero).
ARTICLE VIII
PROFITS, LOSSES AND DISTRIBUTIONS
SECTION 8.1 -- ALLOCATIONS. At the end of each Fiscal Year, the profit or
loss of the Company for such Fiscal Year shall be determined and allocated to
the Shareholders' capital accounts for accounting purposes in proportion to
their ownership of Shares.
SECTION 8.2 -- DISTRIBUTIONS. Prior to dissolution of the Company, the
Board shall have sole discretion to cause the Company to make distributions from
time to time to the Shareholders when, in the manner and in the amounts
determined by the Board. Any and all such distributions shall be
11
payable to the Shareholders in proportion to the Shares owned by such
Shareholders. The Board shall designate, in its sole discretion, whether any
distribution is (i) a distribution that constitutes a return of all or any
portion of the Stated Capital with respect to Shares or (ii) a Dividend on a
Share. A "Dividend" shall mean any distribution to a Shareholder other than a
distribution that constitutes a return of any Stated Capital in respect of a
Share or a distribution in accordance with Article IX. Notwithstanding, any
provision in this Agreement to the contrary, the Company shall not be required
to make a distribution to a Shareholder on account of its Shares if such
distribution would violate the Act or any other applicable law.
ARTICLE IX
DISSOLUTION
SECTION 9.1 -- DISSOLUTION.
(a) Dissolution. The Company shall be dissolved upon, and only upon,
the earlier to occur of the following: (i) a decision to dissolve by a Majority
in Interest of all the Shareholders; or (ii) entry of a decree of judicial
dissolution under the Act.
(b) Winding Up. Following dissolution, the Board shall wind up the
Company's affairs. The Board shall collect the Company's assets, dispose of the
assets that will not be distributed in kind to Persons owning Shares or applied
in kind to the satisfaction of Company liabilities, and discharge or make
provision for the Company's liabilities (including but not limited to the
expenses of winding up). The Company shall distribute any remaining assets among
Persons owning Shares in proportion to the number of Shares owned. Following
dissolution, the Company shall carry on only that business appropriate to wind
up and liquidate its business and affairs.
(c) Recourse. Subject to the other provisions of this Agreement, each
Person shall look solely to the assets of the Company for the return of the
Person's capital contributions, the Person's share of any profits, and any other
Dividends or payments, and shall have no recourse therefor (upon dissolution or
otherwise) against the Directors or any other Shareholder. Except as otherwise
required by law, no Person shall have any obligation to contribute any deficit
balance in such Person's capital account existing at any time.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 -- NOTICES. Except as otherwise provided in Section 6.2(b),
all notices, consents, or other communications required or permitted to be given
pursuant to this Agreement must be in a writing signed by the giving party to be
effective. Without limiting other means of delivering and receiving such
communications, all such communications shall be deemed delivered and received
on the date the communication is delivered to the last known street address
shown in the Company's records. Every Shareholder and every Director shall
provide the Company with a street address for the delivery of communications
under this Agreement.
12
SECTION 10.2 -- ADDITIONAL DOCUMENTS. Each Shareholder hereby agrees to
execute all certificates, instruments or other documents that may be required by
the laws of the various states or other jurisdictions in which the Company
conducts activities, to conform with the laws of such states or other
jurisdictions governing limited liability companies.
SECTION 10.3 -- AMENDMENTS. Any amendment to this Agreement must be in
writing and agreed to by each Shareholder.
SECTION 10.4 -- GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Act and the other applicable laws of the State
of Delaware. If any provision of this Agreement violates any such applicable
laws, then such provision shall be deemed severed and deleted from this
Agreement and this Agreement shall be applied as though it did not contain such
provision.
SECTION 10.5 -- SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARY. This
Agreement shall be binding upon and shall inure to the benefit of the Company,
the Directors, the Shareholders, all other Persons owning an interest in the
Company, and their respective successors and assigns. No other Person shall be
deemed a third-party beneficiary of, or otherwise have any rights under or with
respect to, this Agreement.
SECTION 10.6 -- SCHEDULE OF OWNERSHIP. The Company shall maintain a
"Schedule of Ownership" reflecting the ownership of Shares in accordance with
this Agreement.
SECTION 10.7 -- CAPTIONS, ARTICLES, SECTIONS, PARAGRAPHS, NUMBERS, GENDER,
EXHIBITS, AND SCHEDULES. Captions contained in this Agreement are intended only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof. All references in this
Agreement to Articles, Sections, or Paragraphs shall be deemed to refer to
Articles, Sections, or Paragraphs of this Agreement except to the extent
otherwise required by the context. When required by the context, (i) whenever
the singular number is used in this Agreement it shall include the plural, and
vice versa, and (ii) reference to a gender shall include the other genders. Any
Exhibits or Schedules referred to in this Agreement are incorporated into this
Agreement by such reference.
SECTION 10.8 -- ENTIRE AGREEMENT. This Agreement, as it may be amended from
time to time pursuant to Section 10.3, constitutes the entire limited liability
company agreement of the Company, and together with the Certificate and, except
to the extent otherwise provided in this Agreement, the Act, is a complete and
exclusive statement of all of the rights, interests, and expectations of the
Shareholders. No portion of the Company's limited liability company agreement
shall include any oral agreement.
13
IN WITNESS WHEREOF, this Agreement has been executed with intent to be
effective as of June 9, 2006.
NOVELIS INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: General Counsel
14
MANAGEMENT ADDENDUM TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
NOVELIS SOUTH AMERICA HOLDINGS LLC
This Management Addendum shall constitute a part of the limited liability
company agreement referred to above for all purposes. Capitalized terms used
herein and not defined shall have the respective meanings given to such terms in
the limited liability company agreement.
ARTICLE I
MANAGEMENT AUTHORITY
SECTION 1.1 MANAGEMENT. The Company's affairs shall be managed by its
Officers under the direction of its Board.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 NUMBER, DESIGNATIONS, AND QUALIFICATIONS. The number of
Directors constituting the Board of Directors shall range from one (1) to seven
(7). Only natural persons may serve as Directors.
SECTION 2.2 APPOINTMENT. Directors shall be appointed by a Majority in
Interest of all of the Shareholders.
SECTION 2.3 INITIAL DIRECTORS. The initial Directors shall be Xxxxxx Xxxx
Xxxxxx, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx, Xx.
SECTION 2.4 TERM OF DIRECTORS. Each Director shall serve until his or her
death, resignation, retirement, removal or his or her successor is duly
appointed.
SECTION 2.5 REMOVAL. Any Director may be removed at any time with or
without cause by a Majority in Interest of all of the Shareholders.
SECTION 2.6 VACANCIES. Any vacancy occurring in the Board may be filled by
the other Directors.
SECTION 2.7 CHAIRMAN. The Board may elect from their number at any meeting
of the Board a Chairman of the Board. The Chairman shall preside at all meetings
of the Board and shall perform such other duties as may be directed by the
Board. Xxx Xxxxxxxx is hereby elected initial Chairman.
ARTICLE III
MEETINGS OF DIRECTORS
SECTION 3.1 MEETINGS. The Board shall meet, in person, at least twice per
year at one or more locations in the United States to conduct business. Meetings
of the Board may be called by or at the request of the Chairman of the Board, or
any two Directors. Meetings shall be held in the U.S. only, within or without
the State of Delaware, at a location fixed by the Person(s) calling the meeting.
SECTION 3.2 NOTICE OF MEETINGS. The Person(s) calling a meeting of the
Board shall, at least two days before the meeting, give or cause to be given
notice thereof by any usual means of communication. Such notice need not specify
the purpose for which the meeting is called. Any duly convened regular or
special meeting may be adjourned by the Directors to a later time without
further notice.
SECTION 3.3 WAIVER OF NOTICE. Any Director may waive notice of any meeting
before or after the meeting. The waiver must be in writing, signed by the
Director entitled to the notice and delivered to the Company for inclusion in
the minutes or filing with the Company records. A Director's attendance at or
participation in a meeting waives any required notice of such meeting unless the
Director at the beginning of the meeting, or promptly upon arrival, objects to
holding the meeting or to transacting business at the meeting and does not
thereafter vote for or assent to action taken at the meeting.
SECTION 3.4 ATTENDANCE BY REMOTE COMMUNICATION. Any or all Directors may
participate in a meeting by, or conduct the meeting through the use of, any
means of communication by which all Directors participating in the meeting may
simultaneously hear each other during the meeting. A Director participating in a
meeting by this means is deemed present in person at the meeting.
SECTION 3.5 QUORUM. Unless the Certificate or this Agreement provide
otherwise, a majority of the Directors shall constitute a quorum for the
transaction of business at any meeting of the Board.
SECTION 3.6 PRESUMPTION OF ASSENT. A Director who is present at a meeting
of the Board or of a committee of the Board when action is taken is deemed to
have assented to the action taken unless (a) the Director objects at the
beginning of the meeting, or promptly upon the Director's arrival, to holding
the meeting or to transacting business at the meeting, or (b) the Director's
dissent or abstention from the action taken is entered in the minutes of the
meeting, or (c) the Director files written notice of the Director's dissent or
abstention with the presiding officer of the meeting before its adjournment or
with the Company immediately after the adjournment of the meeting. Such right of
dissent or abstention is not available to a Director who votes in favor of the
action taken.
SECTION 3.7 ACTION WITHOUT MEETING. Action required or permitted to be
taken at a meeting of the Board may be taken without a meeting if the action is
taken by a majority of all the Directors. The action must be evidenced by one or
more written consents signed by such Directors
before or after such action, describing the action taken, and included in the
minutes or filed with the Company records. The consent of a Director may be in
electronic form bearing the Director's electronic signature and delivered to the
Company by e-mail or other electronic means to such address as is determined by
or under the authority of the Board.
SECTION 3.8 DIRECTOR MEETING PARTICIPATION BY AUDIO MEDIUM. Upon approval
by the Board, any one or more Directors may participate in any meeting of the
Board or its committees by means of a conference telephone or similar
communications medium allowing all Directors participating in the meeting to
hear one another simultaneously throughout the meeting. Participation by such
means shall constitute presence in person at a meeting.
ARTICLE IV
COMMITTEES OF DIRECTORS
SECTION 4.1 GENERALLY. The Board may designate one or more committees, each
committee to consist of two or more of the Directors. The Board may designate
one or more Directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not the member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Company, and may authorize the
seal of the Company to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board.
SECTION 4.2 MINUTES. Each committee shall keep regular minutes of its
meetings and report the same to the Board when required.
ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS. The Company's Officers shall consist of the following
officers: a President, a Secretary, a Treasurer, and such Vice Presidents,
Assistant Secretaries, and Assistant Treasurers as may from time to time be
appointed by or under the authority of the Board. Only natural persons may serve
as officers. Any two or more offices may be held by the same person, but no
officer may act in more than one capacity where action of two or more officers
is required.
SECTION 5.2 APPOINTMENT AND TERM. The officers shall be appointed by the
Board or by another officer authorized by the Board to appoint one or more
officers or assistant officers. Each officer shall hold office until the
officer's death, resignation, retirement, removal, disqualification or the
officer's successor shall have been appointed. The appointment of an officer
does not itself create contract rights.
SECTION 5.3 COMPENSATION OF OFFICERS. The compensation of all officers of
the Company shall be fixed by or under the authority of the Board, and no
officer shall serve the Company in any other capacity and receive compensation
therefor unless such additional compensation shall be duly authorized.
SECTION 5.4 REMOVAL. Any officer may be removed by the Board at any time
with or without cause. Removal shall not itself affect the officer's contract
rights, if any, with the Company.
SECTION 5.5 RESIGNATION. An officer may resign at any time by communicating
the officer's resignation to the Company, orally or in writing. A resignation is
effective when communicated unless it specifies in writing a later effective
date. If a resignation is made effective at a later date that is accepted by the
Company, the Board may fill the vacancy before the effective date if the Board
provides that the successor does not take office until the effective date. An
officer's resignation does not affect the Company's contract rights, if any,
with the officer.
SECTION 5.6 BONDS. The Board may require any officer, agent, or employee of
the Company to give bond to the Company, with sufficient sureties, conditioned
on the faithful performance of the duties of his or her respective office or
position, and to comply with such other conditions as may from time to time be
required by the Board.
SECTION 5.7 PRESIDENT. The President shall be the president of the Company
and under the direction of the Board shall manage the Company's affairs. The
President shall sign, with the Secretary, an Assistant Secretary, or any other
proper officer of the Company, any certificates for Shares, and any deeds,
mortgages, bonds, contracts, or other instruments, which have been authorized,
except in cases where the signing and execution thereof shall be delegated to
some other officer or agent of the Company, or shall be required by law to be
otherwise signed or executed.
SECTION 5.8 VICE-PRESIDENTS. In the absence of or in the event of the
death, inability or refusal to act of the President, the Vice Presidents in the
order of their length of service as such unless otherwise determined by the
Board, shall perform the duties of the President, and when so acting shall have
all the powers of and be subject to all the restrictions upon the President. Any
Vice President may sign, with the Secretary or an Assistant Secretary, any
certificates for Shares, the issuance of which has been authorized. A Vice
President shall perform such other duties as from time to time may be prescribed
by the Board or the President.
SECTION 5.9 SECRETARY. The Secretary shall: (a) keep the minutes of the
meetings of Shareholders, minutes of meetings of the Directors, and records of
actions taken by either group in
written consent without a meeting, in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of this Agreement or as required by law; (c) maintain and
authenticate the records of the Company and be custodian of the Company's seal,
if any, and see that such seal is affixed to all documents the execution of
which on behalf of the Company under its seal is duly authorized; (d) sign with
the President, or any Vice President, any certificates for Shares, the issuance
of which has been authorized; (e) maintain and have general charge of the Share
transfer books of the Company; (f) prepare or cause to be prepared Shareholder
lists prior to each meeting of Shareholders; (g) attest the signature or certify
the incumbency or signature of any officer of the Company; and (h) and perform
such other duties as from time to time may be prescribed by the Board or the
President.
SECTION 5.10 ASSISTANT SECRETARIES. In the absence of the Secretary or in
the event of the Secretary's death, inability or refusal to act, the Assistant
Secretaries in the order of their length of service as Assistant Secretary
unless otherwise determined by the Board, shall perform the duties of the
Secretary, and when so acting shall have all the powers of and be subject to all
the restrictions upon the Secretary. Any Assistant Secretary may sign, with the
President, or any Vice President, any certificates for Shares, the issuance of
which has been authorized. They shall perform such other duties as from time to
time may be prescribed by the Board or the President.
SECTION 5.11 TREASURER. The Treasurer shall (a) have charge and custody of
and be responsible for all funds and securities of the Company; receive and give
receipts for moneys due and payable to the Company from any source whatsoever,
and deposit all such moneys in the name of the Company in such depositories as
shall be selected by or under the authority of the Board; (b) oversee the
Company's finances and shall cause the Company to maintain appropriate financial
and accounting records; and (c) perform such other duties as from time to time
may be prescribed by the Board or the President.
SECTION 5.12 ASSISTANT TREASURERS. In the absence of a Treasurer or in the
event of the Treasurer's death, inability or refusal to act, the Assistant
Treasurers in the order of their length of service as such, unless otherwise
determined by the Board, shall perform the duties of the Treasurer, and when so
acting shall have all the powers of and be subject to all the restrictions upon
the Treasurer. They shall perform such other duties as may be prescribed by the
Board or the President.
CERTIFICATE FOR SHARES IN LIMITED LIABILITY COMPANY
NUMBER SHARES
1 1
NOVELIS SOUTH AMERICA
HOLDINGS LLC
This is to Certify that NOVELIS INC. is the NSAH Share Certificate
One (1) fully paid Share of the above Delaware Limited Liability Company
transfer only on the books of the Limited Liability Company by the holder hereof
upon surrender of this Certificate accompanied by a proper instrument of
transfer.
Witness, the signatures of duly authorized officers of the Limited Liability
Company.
Dated: June 30, 2006.
/s/ Xxxxxx X. XxXxxxx /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------- ----------------------------------------
Xxxxxx X. XxXxxxx Xxxxxx X. Xxxxxxxx, Xx.
Assistant Secretary President
