EXHIBIT 3.8
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
TEEKAY OFFSHORE OPERATING GP L.L.C.
A XXXXXXXX ISLANDS LIMITED LIABILITY COMPANY
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Dated: as of __________, 2006
TABLE OF CONTENTS
1 DEFINITIONS.............................................................. 1
1.1 Defined Terms....................................................... 1
1.2 Number and Gender................................................... 3
2 ORGANIZATION............................................................. 3
2.1 Formation........................................................... 3
2.2 Name................................................................ 4
2.3 Purposes............................................................ 4
2.4 Registered Office; Registered Agent................................. 4
2.5 Principal Office.................................................... 4
2.6 Term................................................................ 4
2.7 LLC Certificate; Transfer of Ownership Interest; Pledge of
Ownership Interest.................................................. 4
3 CAPITAL CONTRIBUTIONS.................................................... 5
3.1 Initial Capital Contributions....................................... 5
3.2 Additional Capital Contributions.................................... 5
3.3 Liability Limited to Capital Contributions.......................... 5
4 MANAGEMENT............................................................... 6
4.1 Board of Directors.................................................. 6
4.2 Board Membership.................................................... 7
4.3 Meetings, Quorum, Voting, Etc....................................... 8
4.4 Delegation of Authority and Duties.................................. 10
4.5 Execution of Documents.............................................. 11
4.6 Compensation of Directors and Officers.............................. 12
4.7 Indemnification..................................................... 12
4.8 Liability of Indemnitees............................................ 14
4.9 Actions Required by Member and Conflicts Committee of the
Member's General Partner............................................ 15
5 DISTRIBUTIONS............................................................ 15
5.1 Distributions/Available Cash........................................ 15
6 BOOKS AND RECORDS; FISCAL YEAR; BANK ACCOUNTS; TAX MATTERS............... 16
6.1 Books and Records................................................... 16
6.2 Fiscal Year......................................................... 16
6.3 Bank Accounts....................................................... 16
6.4 Tax Matters......................................................... 16
7 MISCELLANEOUS............................................................ 16
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7.1 Complete Agreement.................................................. 16
7.2 Governing Law....................................................... 17
7.3 Headings............................................................ 17
7.4 Severability........................................................ 17
7.5 No Third Party Beneficiary.......................................... 17
7.6 Amendment........................................................... 17
Exhibits:
Exhibit 1: Certificate of Formation
Exhibit 2: LLC Certificate
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
TEEKAY OFFSHORE OPERATING GP L.L.C.
This Amended and Restated Limited Liability Company Agreement (this "AGREEMENT")
is made and entered into effective as of the ___ day of ______, 2006, by TEEKAY
OFFSHORE PARTNERS L.P., a Xxxxxxxx Islands limited partnership (the "TKO").
RECITALS
WHEREAS, the Company was formed on September 25, 2006 pursuant to the Act,
subject to a Limited Liability Company Agreement dated as of September 22, 2006
entered into by Teekay Shipping Corporation ("TSC") as its sole member.
WHEREAS, TSC has transferred its entire membership interest to TKO and TKO, as
the sole Member, now desires to amend and restate the Limited Liability Company
Agreement in its entirety upon the terms and conditions stated below.
NOW, THEREFORE, the Limited Liability Company Agreement is hereby amended and
restated in its entirety as follows:
1 DEFINITIONS
1.1 Defined Terms.
When used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "ACT" means the Xxxxxxxx Islands Limited Liability Company Act (of the
Republic of The Xxxxxxxx Islands Associations Law), as the same may be
amended from time to time.
(b) "AGREEMENT" means this Limited Liability Company Agreement, as
amended, modified, supplemented or restated from to time in accordance
with its terms.
(c) "AFFILIATE" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under
common control with, the Person in question. As used in the foregoing
definition, the term "CONTROL" means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting securities, by contract or otherwise.
(d) "BOARD OF DIRECTORS" shall have the meaning set forth in Section 4.1
of this Agreement.
(e) "CANADIAN TAX ACT" means the Income Tax Act (Canada), R.S.C. 1985, 5th
Supplement, c.1, as amended from time to time.
(f) "CAPITAL CONTRIBUTIONS" means the total amount of cash and/or assets a
Member contributes to the Company as capital pursuant to this
Agreement.
(g) "CERTIFICATE" means the Certificate of Formation in the form of
Exhibit 1 hereto to be filed pursuant to the Act with the Republic of
The Xxxxxxxx Islands Registrar of Corporations pursuant to which the
Company was formed as a Xxxxxxxx Islands limited liability company.
(h) "COMPANY" means Teekay Offshore Operating GP L.L.C., a Xxxxxxxx
Islands limited liability company.
(i) "DIRECTORS" means the members of the Board of Directors.
(j) "INDEMNITEE" means (i) any Person who is or was a Member, (ii) any
Person who is or was an Affiliate of any Member, (iii) any Person who
is or was a Director or Officer, or a fiduciary or trustee, of the
Company, (iv) any Person who is or was a member, shareholder, partner,
director, officer, fiduciary or trustee of any Member or an Affiliate
of any Member, (v) any Person who is or was serving at the request of
the Company, any Member or any Affiliate of any Member as an officer,
director, member, partner, fiduciary or trustee of another Person,
provided that such Person shall not be an Indemnitee by reason of
providing, on a fee-for-services basis, trustee, fiduciary or
custodial services, and (vi) any Person the Company designates as an
"Indemnitee" for purposes of this Agreement.
(k) "INITIAL DIRECTORS" shall have the meaning set forth in Section 4.1 of
this Agreement.
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(l) "LLC CERTIFICATE" shall have the meaning set forth in Section 2.7(a)
of this Agreement.
(m) "MEMBER" means TKO and any Person who, at the time of reference
thereto, has been admitted to the Company as a Member in accordance
with this Agreement, including any Transferee, and shall have the same
meaning as the term "Member" under the Act, but shall not include any
Person who has ceased to be a Member of the Company.
(n) "OFFICERS" shall have the meaning set forth in Section 4.4(a) of this
Agreement.
(o) "TOO PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Teekay Offshore Operating L.P., as it may be
amended, supplemented or restated from time to time.
(p) "PERSON" means a natural person, corporation, partnership, joint
venture, trust, estate, unincorporated association, limited liability
company, or any other juridical entity.
(q) "TOO" means Teekay Offshore Operating L.P.
(r) "TRANSFEREE" shall have the meaning set forth in Section 2.7(b) of
this Agreement.
1.2 Number and Gender.
As the context requires, all words used herein in the singular number shall
extend to and include the plural, all words used in the plural number shall
extend to and include the singular, and all words used in any gender shall
extend to and include the other gender or be neutral.
2 ORGANIZATION
2.1 Formation.
The Company was formed on September 25, 2006 as a Xxxxxxxx Islands limited
liability company by the filing of the Certificate pursuant to the Act with The
Republic of The Xxxxxxxx Islands Registrar of Corporations.
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2.2 Name.
The name of the Company is "Teekay Offshore Operating GP L.L.C." and all Company
business shall be conducted in that name or such other names that comply with
applicable law as the Board of Directors may from time to time designate.
2.3 Purposes.
The purposes for which the Company is established is to engage in any lawful
activity permitted by the Act.
2.4 Registered Office; Registered Agent.
The registered office of the Company required by the Act to be maintained in the
Republic of the Xxxxxxxx Islands shall be the office of the initial registered
agent named in the Certificate or such other office as the Board of Directors
may designate from time to time in the manner provided by law. The registered
agent of the Company required by the Act to be maintained in The Republic of
Xxxxxxxx Islands shall be the initial registered agent named in the Certificate
or such other person or persons as the Board of Directors may designate from
time to time in the manner provided by law.
2.5 Principal Office.
The principal office of the Company shall be Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxxx
Xxxx, Xxxx Xxx Xxxxxx & Blake Road, P.O. Box AP-59213, Nassau, Bahamas.
2.6 Term.
The Company commenced on the date the Certificate was accepted for filing by the
Republic of the Xxxxxxxx Islands Registrar of Corporations and shall have
perpetual existence, unless the Company is dissolved in accordance with the Act.
2.7 LLC Certificate; Transfer of Ownership Interest; Pledge of Ownership
Interest.
(a) A Member's ownership of its limited liability company interest in the
Company shall be evidenced by a certificate of limited liability
interest ("LLC CERTIFICATE") substantially in the form of Exhibit 2
hereto.
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(b) Subject to the provisions of Section 2.7(c) herein, upon the
endorsement by a Member on such LLC Certificate (or on a separate
transfer power) in favor of a third party (a "TRANSFEREE") and the
delivery of such LLC Certificate (and such separate power, if
applicable) to such Transferee, such Member shall be deemed to have
assigned and transferred all its right, title and interest in the
Company and in this Agreement to such Transferee and all references in
this Agreement to such Member shall be deemed to refer to such
Transferee, in each case effective as of the date of such LLC
Certificate delivery. A Member's right, title and interest in the
Company shall not be transferred other than as provided in this
Section 2.7(b).
(c) The pledge of, or granting of a security interest, lien or other
encumbrance in or against, any or all of the limited liability company
interest of a Member in the Company shall not cause such Member to
cease to be a Member until the secured party shall have lawfully
exercised its remedies under the security agreement and completed the
endorsement in favor of a Transferee. Until the exercise of such
remedies, the secured party shall not have the power to exercise any
rights or powers of a Member.
3 CAPITAL CONTRIBUTIONS
3.1 Initial Capital Contributions.
On or near the date of the Company's formation, an initial capital contribution
of U.S.$1,000 to the Company was made by TSC as the initial member.
3.2 Additional Capital Contributions.
A Member may contribute such additional sums and/or assets, if any, as it shall
determine in its sole discretion.
3.3 Liability Limited to Capital Contributions.
No Member shall have any obligation to contribute money to the Company with
respect to any liability or obligation of the Company. No Member shall be liable
for the debts, obligations or liabilities of the Company, including, without
limitation, under a judgment, decree or order of a court.
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4 MANAGEMENT
4.1 Board of Directors.
Except for decisions or actions requiring the approval of the Members, as
provided in this Agreement (including Section 4.9) or by non-waivable provisions
of the Act or applicable law, the powers of the Company shall be exercised by or
under the authority of, and the business and affairs of the Company shall be
managed under the direction of, a board of directors (the "BOARD OF DIRECTORS")
comprised of no less than three (3) and no more than nine (9) Directors. Subject
to such limitations, the exact number of Directors shall be fixed from time to
time by resolution of the Board of Directors and such number may be increased or
decreased from time to time by vote of a majority of the Directors then in
office; provided, however, that the Board of Directors initially shall be
comprised of three Directors (the "INITIAL DIRECTORS"). No decrease in the
number of Directors shall have the effect of shortening the term of any
incumbent Director. The Board of Directors may make all decisions and take all
actions for the Company as in its sole discretion it shall deem necessary or
appropriate to enable the Company to carry out the purposes for which the
Company was formed and to further the interests of the Members, including,
without limitation, the following:
(a) Adopting, by written consent or otherwise, resolutions in the name and
on behalf of the Company (either for the Company itself or for the
Company in its capacity as the general partner of any limited
partnership) authorizing any decisions or actions taken pursuant to
this Section 4.1;
(b) entering into, making and performing such contracts, agreements,
undertakings and financial guarantees in the name and on behalf of the
Company;
(c) setting aside reserves, opening and maintaining bank and investment
accounts and arrangements, drawing checks and other orders for the
payment of money, and designating individuals with authority to sign
or give instructions with respect to those accounts and arrangements;
(d) collecting sums due to the Company;
(e) selecting, removing, and changing the authority and responsibility of
lawyers, auditors and other advisers and consultants;
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(f) (i) creating such committees of the Board of Directors as the Board of
Directors may deem necessary, appropriate or advisable, in its sole
discretion, to carry on the affairs of the Company, (ii) selecting and
removing (with or without cause, upon the affirmative vote of a
majority of all of the Directors then in office) the members of such
committees (provided, however, that such committees shall be comprised
only of Directors and shall have only as many members as the Board of
Directors deems appropriate), and (iii) changing the authority and
responsibilities of such committees; and
(g) granting signatory authority to and issuing Powers of Attorney in
favor of such persons as they may deem necessary or appropriate to
carry out and implement any decisions or actions taken pursuant to
this Section 4.1.
Notwithstanding anything in this Agreement to the contrary, the Board of
Directors shall conduct the affairs and governance of the Company so that (i)
the Company is not a resident of Canada for purposes of the Canadian Tax Act and
(ii) neither the Company nor the Partnership is carrying on business in Canada
for purposes of the Canadian Tax Act.
4.2 Board Membership.
(a) The Members shall have full authority unilaterally to appoint, by
majority vote, such individuals to be Directors as they shall choose
in their sole discretion, and to remove and replace, by majority vote,
any Director they appoint to the Board of Directors, with or without
cause, at any time and for any reason, and to fill, by majority vote,
any positions created on the Board of Directors as a result of an
increase in the size of the Board of Directors; provided, however,
that (i) each Director shall be a natural person and (ii) at all times
a majority of the Directors shall be persons who are not residents of
Canada for the purposes of the Canadian Tax Act (except in the case of
(A) the Initial Directors, where not more than one director may be a
resident of Canada for purposes of the Canadian Tax Act and (B) the
death, resignation or dismissal of one or more Directors who are not
residents of Canada for purposes of the Canadian Tax Act, provided
that within 21 days of any such death, resignation or dismissal either
(1) the Members shall appoint one or more new non-resident Directors
to replace each non-resident Director who died, resigned or was
dismissed, or (2) one or more Directors who
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are residents of Canada for purposes of the Canadian Tax Act shall
resign to achieve the required non-resident majority).
(b) Each Director shall be appointed to serve until his or her successor
shall be appointed and shall qualify or until his or her earlier
resignation or removal.
(c) The Members shall designate one Director to hold the title of
Chairman.
4.3 Meetings, Quorum, Voting, Etc.
(a) Meetings of the Board of Directors shall be called by the Secretary of
the Company, or in the absence of the Secretary, by the Chairman of
the Board of Directors, upon request of any Director. Notice of the
date, time and place of each meeting of the Board of Directors shall
be given to each Director at least forty-eight hours prior to such
meeting, unless the notice is given orally or delivered in person, in
which case it shall be given at least twenty-four hours prior to such
meeting. For the purpose of this Section 4.3(a), notice shall be
deemed to be duly given to a Director if given to him or her
personally (including by telephone) or if such notice be delivered to
such Director by courier service, mail, email, telegraph, cable,
telex, or facsimile, to his or her last known address. Notice of a
meeting need not be given to any Director who submits a signed waiver
of notice, whether before or after the meeting, or who attends the
meeting without protesting, prior to the conduct of any voting
thereat, the lack of notice to him or her. All meetings of the Board
of Directors shall take place outside of Canada.
(b) At all meetings of the Board of Directors, a quorum for the
transaction of business shall be a majority of the Directors then in
office; provided, however, that such quorum shall be properly
constituted only if a majority of the Directors included in such
quorum are not residents of Canada for purposes of the Canadian Tax
Act.
(c) Directors may participate in a meeting of the Board of Directors or a
meeting of any committee of the Board of Directors by means of
conference call or any similar communications equipment by means of
which all Directors participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting. A meeting of the Board
of Directors or a meeting of any committee of the Board of Directors
by means of such a call or any
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similar communication shall take place only by means of such a call or
communication originated outside of Canada, shall be properly
constituted only if a majority of the Directors participating in the
meeting in person or by such call or communication are not residents
of Canada for purposes of the Canadian Tax Act and a majority of the
Directors participating in the meeting in person or by such call
participate from or at a location outside Canada, and shall be deemed
held at the place from where such call or communication originated.
(d) All decisions to be made and actions to be taken by the Board of
Directors or a committee of the Board of Directors shall be determined
by the vote of a majority of the Directors in attendance at a meeting
at which a quorum is present.
(e) Any action which may be taken at a meeting of the Board of Directors
or a meeting of any committee of the Board of Directors may be taken
without a meeting if a consent in writing, setting forth the action so
taken, is signed by all of the Directors then in office. The action
taken by any unanimous consent in writing shall be deemed to have
occurred when the last Director executing such consent shall have
signed the consent; provided, however, that the last Director to
execute such consent shall not have done so while in Canada and each
such consent shall include the location and the date of such
execution.
(f) Unless the Board of Directors shall otherwise provide, any committee
of the Board of Directors may hold meetings at any place outside
Canada and make rules for the conduct of its business as such
committee shall from time to time deem necessary. Each committee shall
keep a record of its proceedings and report the same to the Board of
Directors when required. No committee shall have the power to fill
vacancies in the Board of Directors, or to change the membership of or
to fill vacancies in, any other committee created by the Board of
Directors, or to amend or repeal this Agreement or adopt a new limited
liability company agreement, or to submit to the Member any action
requiring its authorization, or to amend or repeal any resolution of
the Board of Directors which by its terms shall not be amendable or
repealable. All meetings of any committee of the Board of Directors
shall be held outside Canada. Directors may participate in a meeting
of a committee of the Board of Directors by means of conference call
or any similar communications equipment by means of which all
Directors participating in the meeting can hear each other, and
participation in a meeting
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pursuant to this provision shall constitute presence in person at such
meeting. A meeting of a committee of the Board of Directors by means
of such a call or any similar communication shall take place only by
means of such a call or communication originated outside of Canada and
shall be deemed held at the place from where such call or
communication originated.
4.4 Delegation of Authority and Duties.
(a) The Board of Directors may, from time to time as it deems advisable,
appoint and elect (as well as remove or replace at any time with or
without cause for any reason) (i) a Chief Executive Officer, (ii) a
Chief Financial Officer, (iii) a Secretary and (iv) such other officer
positions assigned to individuals (collectively, the "OFFICERS"). Each
Officer shall be a natural person who is not a resident of Canada for
purposes of the Canadian Tax Act, and shall be authorized to, and
shall, act in such capacity only outside of Canada. Any two or more
offices may be held by the same person. If so appointed by the Board
of Directors, the Officers shall have the authority and duties as may
from time to time be assigned to them.
(b) In addition, the Board of Directors may, from time to time as it deems
advisable, delegate to one or more natural persons (inclusive of any
Director) such authority and duties as the Board of Directors is
granted under this Agreement and not made subject to the approval of
the Members by this Agreement, and the Board of Directors may assign
in writing such titles to any such person as it deems appropriate. Any
such person to whom such authority and duties are delegated by the
Board of Directors shall not, during the time that such authority or
duties are delegated, be a resident of Canada for purposes of the
Canadian Tax Act and shall be authorized to, and shall, act in such
capacity only outside of Canada. Any delegation pursuant to this
Section 4.4(b) may be revoked at any time by the Board of Directors
with or without cause for any reason.
(c) Unless the Board of Directors decides otherwise, if the title of any
person authorized to act on behalf of the Company under this Section
4.4 is one commonly used for officers of a business corporation formed
under the Xxxxxxxx Islands Business Corporation Act, the assignment of
such title shall constitute the delegation to such person of the
authority and duties that are normally associated with that office,
subject to any specific
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delegation of, or restriction on, authority and duties made pursuant
to this Section 4.4. Any delegation or restriction pursuant to this
Section 4.4(c) may be revoked at any time by the Board of Directors,
with or without cause for any reason; provided that the Board of
Directors will not be entitled to revoke any restriction relating to
the residence of any person as set out in this Section 4.4.
(d) Unless authorized to do so by this Agreement or by the Board of
Directors, no Director, Officer, agent or employee of the Company
shall have any power or authority to bind the Company in any way, to
pledge its credit, or to render it liable pecuniarily for any purpose.
However, the Company may act by an attorney-in-fact authorized by the
Board of Directors, provided that no such attorney-in-fact shall,
while having such authority, be a resident of Canada for purposes of
the Canadian Tax Act and shall not be authorized to, and shall not,
exercise such authority in Canada.
4.5 Execution of Documents.
(a) Any agreements, contracts or other documents or correspondence
executed by the Company, including an LLC Certificate, shall show the
place of execution (which shall be outside of Canada) and be signed by
the individual executing same as follows:
TEEKAY OFFSHORE OPERATING GP L.L.C.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
(b) Any agreements, contracts or other documents or correspondence
executed on behalf of the Company by the sole Member of the Company,
including an LLC Certificate, shall be signed by such sole Member as
follows:
TEEKAY OFFSHORE OPERATING GP L.L.C.
By: TEEKAY OFFSHORE PARTNERS L.P., its Sole Member
By: TEEKAY OFFSHORE GP L.L.C., its General Partner
By:
-------------------------------
(Authorized Signatory)
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(c) Any agreements, contracts or other documents or correspondence
executed by the Company, either on its own behalf or in its capacity
as the general partner of the Limited Partnership, shall be executed
only outside of Canada.
4.6 Compensation of Directors and Officers.
(a) Members of the Board of Directors shall not receive compensation for
their services to the Company as the Board of Directors or any
compensation committee appointed by the Board of Directors. The Board
of Directors or any compensation committee appointed by the Board of
Directors may, from time to time, authorize the reimbursement by the
Company of such expenses (including travel expenses) as may be
incurred by Directors in the performance of their duties hereunder
(including attendance at meetings of the Board of Directors).
(b) The Officers shall serve with or without such compensation for their
services to the Company as the Board of Directors or any compensation
committee appointed by the Board of Directors thereof shall determine.
4.7 Indemnification.
(a) To the fullest extent permitted by law but subject to the limitations
expressly provided in this Agreement, all Indemnitees shall be
indemnified and held harmless by the Company from and against any and
all losses, claims, damages, liabilities, joint or several, expenses
(including legal fees and expenses), judgments, fines, penalties,
interest, settlements or other amounts arising from any and all
claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, in which any Indemnitee may
be involved, or is threatened to be involved, as a party or otherwise,
by reason of its status as an Indemnitee; provided, that the
Indemnitee shall not be indemnified and held harmless if there has
been a final and non-appealable judgment entered by a court of
competent jurisdiction determining that, in respect of the matter for
which the Indemnitee is seeking indemnification pursuant to this
Section 4.7, the Indemnitee acted in bad faith or engaged in fraud,
willful misconduct or gross negligence or, in the case of a criminal
matter, acted with knowledge that the Indemnitee's conduct was
unlawful. Any indemnification pursuant to this Section 4.7 shall be
made only out of the assets of the Company, it being agreed that the
Members
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shall not be personally liable for such indemnification and shall have
no obligation to contribute or loan any monies or property to the
Company to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees
and expenses) incurred by an Indemnitee who is indemnified pursuant to
this Section 4.7 in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior
to a determination that the Indemnitee is not entitled to be
indemnified upon receipt by the Company of any undertaking by or on
behalf of the Indemnitee to repay such amount if it shall be
determined that the Indemnitee is not entitled to be indemnified as
authorized in this Section 4.7.
(c) The indemnification provided by this section 4.7 shall be in addition
to any other rights to which an Indemnitee may be entitled under any
agreement, as a matter of law or otherwise, both as to actions in the
Indemnitee's capacity as an Indemnitee and as to actions in any other
capacity, and shall continue as to an Indemnitee who has ceased to
serve in such capacity and shall inure to the benefit of the heirs,
successors, assigns and administrators of the Indemnitee.
(d) The Company may purchase and maintain (or reimburse any Member or its
Affiliates for the cost of) insurance, on behalf of any Member, its
Affiliates and such other Persons as the Board of Directors shall
determine, against any liability that may be asserted against, or
expense that may be incurred by, such Person in connection with the
Company's activities or such Person's activities on behalf of the
Company, regardless of whether the Company would have the power to
indemnify such Person against such liability under the provisions of
this Agreement.
(e) For purposes of this Section 4.7, the Company shall be deemed to have
requested an Indemnitee to serve as fiduciary of an employee benefit
plan whenever the performance by it of its duties to the Company also
imposes duties on, or otherwise involves services by, it to the plan
or participants or beneficiaries of the plan; excise taxes assessed on
an Indemnitee with respect to an employee benefit plan pursuant to
applicable law shall constitute "fines" within the meaning of Section
4.7(a); and action taken or omitted by it with respect to any employee
benefit plan in the performance of its duties for a purpose
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reasonably believed by it to be in the best interest of the
participants and beneficiaries of the plan shall be deemed to be for a
purpose that is in the best interests of the Company.
(f) In no event may an Indemnitee subject any of the Members to personal
liability by reason of the indemnification provisions set forth in
this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part
under this Section 4.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 4.7 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and
shall not be deemed to create any rights for the benefit of any other
Persons.
(i) No amendment, modification or repeal of this Section 4.7 or any
provision hereof shall in any manner terminate, reduce or impair the
right of any past, present or future Indemnitee to be indemnified by
the Company, nor the obligations of the Company to indemnify any such
Indemnitee under and in accordance with the provisions of this Section
4.7 as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters
occurring, in whole or in part, prior to such amendment, modification
or repeal, regardless of when such claims may arise or be asserted.
4.8 Liability of Indemnitees.
(a) No Indemnitee shall be personally liable for the debts and obligations
of the Company.
(b) Notwithstanding anything to the contrary set forth in this Agreement,
no Indemnitee shall be liable for monetary damages to the Company for
losses sustained or liabilities incurred as a result of any act or
omission of an Indemnitee unless there has been a final and
non-appealable judgment entered by a court of competent jurisdiction
determining that, in respect of the matter in question, the Indemnitee
acted in bad faith or engaged in fraud, willful misconduct or gross
negligence or, in the case of a criminal matter, acted with knowledge
that the Indemnitee's conduct was criminal.
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(c) To the full extent that the Act permits the limitation or elimination
of liability of Directors, a Director shall not be liable to the
Company or its Members for monetary damages for breach of fiduciary
duty as a Director.
(d) Any amendment, modification or repeal of this Section 4.8 or any
provision hereof shall be prospective only and shall not in any way
affect the limitations on the liability of the Indemnitees under this
Section 4.8 as in effect immediately prior to such amendment,
modification or repeal with respect to claims arising from or relating
to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be
asserted.
4.9 Actions Required by Member and Conflicts Committee of the Member's General
Partner.
(a) The following actions may only be taken or determined by the Member:
- The determination of the amount of TOO's distributions and
reserves in accordance with Section 5.3 of the TOO Partnership
Agreement; and
- The Company's taking any action with respect to TOO and referred
to in Section 6.2 of the TOO Partnership Agreement.
(b) The Company shall not without the approval or consent of the conflicts
committee of the board of directors of the general partner of the
Member:
- Amend the TOO Partnership Agreement; or
- Amend this Agreement.
5 DISTRIBUTIONS
5.1 Distributions/Available Cash.
The Board of Directors shall in its sole discretion determine from time to time
to what extent (if any) the Company's cash on hand exceeds the current and
anticipated needs of the Company. To the extent any such excess exists, the
Board of Directors may make distributions to the Member(s), subject to the Act.
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6 BOOKS AND RECORDS; FISCAL YEAR; BANK ACCOUNTS; TAX MATTERS
6.1 Books and Records.
The books and records of the Company shall, at the cost and expense of the
Company, be kept by the Company at the principal office of the Company or at
such other location outside Canada as the Board of Directors may from time to
time determine.
6.2 Fiscal Year.
Unless otherwise determined by the Board of Directors, the Company's books and
records shall be kept on a December 31 calendar year basis and shall reflect all
Company transactions and be appropriate and adequate for conducting the
Company's affairs.
6.3 Bank Accounts.
All funds of the Company will be deposited in its name in an account or accounts
maintained outside Canada with such bank or banks selected by the Board of
Directors. Checks shall be drawn upon the Company account or accounts only for
the purposes of the Company and may be signed by such persons (none of whom are
residents of Canada) as may be designated by the Board of Directors.
6.4 Tax Matters.
TKO intends and acknowledges that, for so long as it remains the sole Member of
the Company, the Company shall be disregarded as a separate entity from TKO for
U.S. federal income tax purposes and TKO shall file such elections with the U.S.
federal tax authorities as may be required to assure such tax status.
7 MISCELLANEOUS
7.1 Complete Agreement.
This Agreement and the exhibits hereto constitute the complete and exclusive
statement of the agreement regarding the operation of the Company and replace
and supersede all prior agreements regarding the operation of the Company.
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7.2 Governing Law.
This Agreement and the rights of the parties hereunder will be governed by,
interpreted, and enforced in accordance with the laws of the Xxxxxxxx Islands
without giving regard to principles of conflicts of law.
7.3 Headings.
All headings herein are inserted only for convenience and ease of reference and
are not to be considered in the construction or interpretation of any provision
of this Agreement.
7.4 Severability.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under the present or future laws effective during the term of this
Agreement, such provision will be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
7.5 No Third Party Beneficiary.
This Agreement is made solely and specifically for the benefit of the Member and
its successors and assigns and no other Persons shall have any rights, interest
or claims hereunder or be entitled to any benefits under or on account of this
Agreement as a third party beneficiary or otherwise.
7.6 Amendment.
All amendments to this Agreement must be in writing and signed by all of the
Member(s).
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WHEREFORE, this Amended and Restated Limited Liability Company Agreement
has been executed by a duly authorized representative of TKO as of the date
first set forth above.
TEEKAY OFFSHORE PARTNERS L.P.
By: Teekay Offshore GP L.L.C., its
General Partner
By:
------------------------------------
Xxxxx Xxxxxxx
Chief Executive Officer and Chief
Financial Officer
Place of execution:
--------------------
18
Exhibit 1
CERTIFICATE OF FORMATION
OF
TEEKAY OFFSHORE OPERATING GP L.L.C.
UNDER SECTION 9 OF THE XXXXXXXX ISLANDS LIMITED LIABILITY COMPANY ACT
1. The name of the Limited Liability Company is: Teekay Offshore Operating GP
L.L.C.
2. The address of its registered agent in the Xxxxxxxx Islands is Trust
Company Complex, Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx Xxxxxxx
XX 00000. The name of its registered agent at such address is The Trust
Company of the Xxxxxxxx Islands, Inc.
3. The formation date of the Limited Liability Company is the date of the
filing of this Certificate of Formation with the Registrar of Corporations.
WHEREFORE, the undersigned has executed this Certificate of Formation on the
22nd day of September, 2006.
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Authorized Person
Exhibit 2
CERTIFICATE OF LIMITED LIABILITY INTEREST
OF
TEEKAY OFFSHORE OPERATING GP L.L.C.
ORGANIZED UNDER THE LAWS OF THE REPUBLIC OF THE XXXXXXXX ISLANDS
This Certificate evidences the ownership of [_____] of [_____]% of the limited
liability interests in Teekay Offshore Operating GP L.L.C. (the "COMPANY")
subject to the Certificate of Formation and Limited Liability Company Agreement
of the Company.
Witness the signature of the Company.
Dated:
------------------
TEEKAY OFFSHORE OPERATING GP L.L.C.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
For value Received, the undersigned hereby sells, assigns and transfers unto
____________________ all of its limited liability company ownership interest in
Teekay Offshore Operating GP L.L.C. represented by the within Certificate.
Dated:
------------------
By:
------------------------------------
In Presence of
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