OPERATING AGREEMENT OF CSI Canada LLC (A DELAWARE LIMITED LIABILITY COMPANY) DATED AS OF JANUARY 28, 2010
OF
THIS OPERATING AGREEMENT (this “Agreement”) of CSI Canada LLC (the “Company”), dated as
of January 28, 2010, by and among Claire’s Canada Corp., as the initial member of the Company, and
any person subsequently admitted to the Company pursuant to this Agreement as set forth on Schedule
I to this Agreement (each, a “Member” and collectively, “Members”).
WHEREAS, the Company was formed on January 28, 2010 pursuant to the Delaware Limited Liability
Company Act, 6 Del. C. §§ 18-101, et seq., as amended from time to time (the “Delaware Act”); and
WHEREAS, the Company and the initial Member desire to enter into this Agreement in order to
set forth the operating procedures of the Company.
NOW, THEREFORE, the agreement governing the Company is as follows:
1. Name. The name of the Company is “CSI Canada LLC”.
2. Purpose. The Company is organized for the purpose of engaging in any and all
activities permitted under applicable law, including without limitation engaging in the
manufacture, sale, and distribution of paper products and engaging in any related business,
including entering into any partnership, limited liability company, joint venture or other similar
arrangement or owning interests in any entity engaged in any of the foregoing activities. The
Company will have the power to engage in all actions, proceedings, activities, and transactions
that the Management Board may deem necessary or advisable in connection with the foregoing
purposes.
3. Registered Office and Registered Agent. The registered office of the Company
in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware, U.S. The name and address of the registered agent of the Company for service of process
on the Company in the State of Delaware is The Corporation Trust Company.
4. Members. The name and the address of each Member is set forth on Schedule I hereto.
Schedule I may be amended from time to time to reflect the withdrawal of Members, the admission of
additional Members, the transfers of interests or the change in a security issued to a Member (a
“Unit”) representing the percentage that is set forth opposite such Member’s name on Schedule I (a
“Unit Percentage”), as such schedule shall be amended from time to time. Any person or entity shall
be deemed admitted to the Company as a Member upon its execution of a counterpart signature page to
this Agreement.
5. Management Board.
5.1 Formation. The Company hereby establishes a management board for the Company
(the “Management Board”), which will manage the business and affairs of the Company and have all of
the powers of a board of directors of a Delaware corporation. The
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Management Board is, to the extent of its rights and powers set forth in this Agreement, an
agent of the Company and the actions of the Company by and through the Management Board taken in
accordance with those rights and powers will bind the Company. Except as authorized by the
Management Board or as set forth in this Agreement, no Member may participate in the management and
control of the Company nor may any Member act on behalf of the Company in connection with any
matter in connection with the Company. The Management Board will initially consist of Xxxxx Ovis
and J. Per Xxxxxx. By signing this Agreement, the initial Member will be deemed to have voted for
the election of the foregoing persons to serve as the initial Management Board members. The names
and mailing addresses of the members of the Management Board will be set forth in the books and
records of the Company. The number of members of the Management Board will be fixed as established
by the Management Board from time to time and may be no fewer than one member and no more than ten
members.
5.2 Meetings. Meetings of the Management Board may be called by the Chairman of the
Management Board or by any member of the Management Board on at least two business days’ prior
written notice to each member of the Management Board, which notice will contain the time and place
of the meeting. A majority of the members of the Management Board will constitute a quorum for the
transaction of business by the Management Board. All actions of the Management Board will require
the affirmative vote of a majority of the members of the Management Board. Decisions made by the
Management Board at any meeting, however convened, will be as valid as though held after due notice
if, either before or after the meeting, each member of the Management Board signs a written waiver
of notice or a consent to the holding of the meeting or written approval of the minutes of the
meeting.
5.3 Telephone Meetings and Unanimous Written Consent. Meetings of the Management
Board may be held by telephone conference or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participate in the conversation. Any
action required or permitted to be taken by the Management Board may be taken without a meeting and
without prior notice if all of the voting members of the Management Board consent in writing to
that action. The consents will be filed with the minutes of the proceedings of the Management Board
and will have the same force and effect as a unanimous vote of the Management Board.
5.4 Committees of the Board. The Management Board may designate an executive
committee and other committees, each consisting of one or more members of the Management Board.
Each committee (including its members) will serve at the pleasure of the Management Board and will
keep minutes of its meetings and report the same to the Management Board. A majority of all the
voting members of a committee will constitute a quorum for the transaction of business, and the
vote of majority of all the voting members of a committee will be the act of the committee. In
other respects each committee will conduct its business in the same manner as the Management Board
conducts its business pursuant to this Section 5. Each committee will adopt whatever other rules
of procedure it determines for the conduct of its activities.
5.5 Chairman. The Management Board may, if it so determines, elect from among its
members a Chairman of the Board. The Chairman of the Board, if any, will preside at all meetings of
the Management Board and of the Members at which the Chairman is present and will have and may
exercise such powers as may, from time to time, be assigned to him or her by the Management Board
or as may be provided by applicable law.
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5.6 Limitation on Liability. Members of the Management Board will not, solely by
reason of being a member of the Management Board, be personally liable for the expenses,
liabilities, or obligations of the Company, whether arising in contract, tort, or otherwise.
5.7 Compensation and Reimbursement. Members of the Management Board will not receive
compensation for their services performed on behalf of the Company or other benefits they provide
to the Company, unless otherwise established by Management Board in its sole discretion. Members
of the Management Board will be entitled to reimbursement for reasonable, documented
out-of-pocket expenses incurred by them in connection with attendance at meetings of the
Management Board or any committee conducting the business and affairs of the Company.
5.8 Authority, Duties, and Obligations. The members of the Management Board will
devote as much of their time to the affairs of the Company as in the judgment of the members of the
Management Board the business reasonably requires, and the members of the Management Board will not
be obligated to do or perform any act or thing in connection with the Company not expressly set
forth in this Agreement. Nothing in this Agreement will be deemed to preclude the members of the
Management Board from engaging directly or indirectly in any other business or from directly or
indirectly purchasing, selling, holding, or otherwise dealing with any securities for the account
of any such other business, for its own accounts or for other clients.
5.9 Certifications. Any person dealing with the Company may rely (without duty of
further inquiry) upon a certificate issued by the Company that is signed by any member of the
Management Board or any of the officers as to any of the following:
| (a) | the identity of the members of the Management Board or an officer or other agent of the Company; | ||
| (b) | the existence or nonexistence of any fact or facts that constitutes a condition precedent to acts by the Management Board or the Members; | ||
| (c) | the person or persons authorized to execute and deliver any instrument or document of the Company; or | ||
| (d) | any act or failure to act by the Company or any other matter whatsoever involving the Company. |
6. Officers.
6.1 Appointment. The Company may have one or more of the following officers as
determined by the Management Board from time to time: President, Secretary, Treasurer, and such
other officers as the Management Board may appoint, from time to time. Any officers may be
appointed and removed at the will of the Management Board. If any officers are appointed by the
Management Board, they shall perform such functions as are specified by the Management Board
provided that if a President, Secretary and/or Treasurer is appointed, each shall perform such
functions as are herein provided unless otherwise specified by the Management Board. Except as
otherwise provided in this Agreement, one person may hold the offices and perform the duties of any
two or more offices. Each officer will hold office for the term for which he or she is elected or
appointed and until his or her successor is duly elected and qualified, or until his or her earlier
death, resignation or removal.
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6.2 Delegation of Duties. The Management Board may delegate the duties and powers of
any officer of the Company to any other officer or to any Management Board member for a specified
period of time for any reason that the Management Board may deem sufficient.
6.3 Removal of Officers. An officer of the Company elected or appointed by the
Management Board may be removed with or without cause by resolution adopted by a majority of the
members then in office at any regular or special meeting of the Management Board or by a written
consent signed by all of the members then in office.
6.4 Resignations. Any officer may resign at any time by giving written notice of
resignation to the Management Board, to the President, or to the Secretary. Any resignation will
take effect upon receipt of the notice or at any later time specified in the notice. Unless
otherwise specified in the notice, acceptance of a resignation will not be necessary to make the
resignation effective.
6.5 President. The President shall be the chief executive officer of the Company
and shall, subject to the supervision, direction and control of the Management Board, have the
general powers and duties of supervision, direction, management and control of the day-to-day
business and affairs of the Company and of the other officers of the Company, including, without
limitation, all powers necessary to direct and control the organizational and reporting
relationships within the Company, and shall have such other powers and perform such other duties as
may be prescribed by the Management Board.
6.6 Secretary. The Secretary shall keep or cause to be kept at the principal place of
business of the Company, a register or a duplicate register showing the name and address of the
Member, the number and date of certificates issued in respect of the Member’s interest in the
Company, if any, and the number and date of cancellation of every certificate surrendered for
cancellation. The Secretary shall have such other powers and perform such other duties as may be
prescribed by the Management Board or the President.
6.7
Treasurer. The Treasurer shall keep and maintain or cause to be kept and
maintained adequate and correct books and records of accounts of the properties and business
transactions of the Company. The books of account shall at all times be open to inspection by the
Member. The Treasurer shall deposit all monies and other valuables in the name and to the credit of
the Company with such depositaries as may be designated by the Management Board. The Treasurer
shall disburse the funds of the Company as may be ordered by the Management Board, shall render to
the President and the Management Board, whenever the Management Board requests it, an account of
all of his or her transactions as chief financial officer and of the financial condition of the
Company and shall have other powers and perform such other duties as may be prescribed by the
Management Board or the President.
7. Indemnification of Managers, Officers, Employees, and Agents.
7.1 Each person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative (a “proceeding”), by reason of the fact that he or she is or was a member of the
Management Board or an officer of the Company, or is or was serving at the request of the Company
as a manager, director, officer, employee, or agent of another limited liability company or of a
corporation, partnership, joint venture, trust, or other enterprise, including service with respect
to an employee benefit plan (an “Indemnitee”), whether the basis
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of such a proceeding is alleged action in an official capacity as a member of the Management Board,
an officer, an employee, or an agent or in any other capacity while serving as a member of the
Management Board, an officer, an employee, or an agent, will be indemnified and held harmless by
the Company to the fullest extent authorized by the Delaware Act (including indemnification for
negligence or gross negligence but excluding indemnification (I) for acts or omissions involving
actual fraud or willful misconduct or (ii) with respect to any transaction from which the
indemnitee derived an improper personal benefit), against all expense, liability, and loss
(including attorneys’ fees, judgments, fines, excise taxes or penalties, and amounts paid in
settlement) reasonably incurred or suffered by that indemnitee in connection with the foregoing.
7.2 The right to indemnification conferred in Section 7.1 will include the right to be paid by
the Company the expenses (including attorneys’ fees) incurred in defending any proceeding in
advance of its final disposition (hereinafter an “advancement of expenses”). The rights to
indemnification and to the advancement of expenses conferred in Section 7.1 and this Section 7.2
will be contract rights and those rights will continue as to an indemnitee who has ceased to be a
member of the Management Board, an officer, an employee, or an agent and will inure to the benefit
of the indemnitee’s heirs, executors, and administrators.
7.3 The rights to indemnification and to the advancement of expenses conferred in this Section
7 will not be exclusive of any other right that any person may have or hereafter acquire under any
statute, agreement, vote of the Management Board, or otherwise.
7.4 The Company may maintain insurance, at its expense, to protect itself and any member of
the Management Board, officer, employee, or agent of the Company or another limited liability
company, consultant, corporation, partnership, joint venture, trust, or other enterprise against
any expense, liability, or loss, whether or not the Company would have the power to indemnify that
person against such expense, liability, or loss under the Delaware Act.
7.5 The Company may, to the extent authorized from time to time by the Management Board, grant
rights to indemnification and to advancement of expenses to any employee or agent of the Company to
the fullest extent of the provisions of this Section 7 with respect to the indemnification and
advancement of expenses of the members of the Management Board and officers of the Company.
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8. Dissolution. The Company will be dissolved and its affairs shall be wound up upon
the earlier to occur of: (a) determination by the Management Board; and (b) determination by the
Members.
9. Capital Contributions; Issuance of Membership Interests; Membership Interest
Percentages. Each Member (or the person who transferred to such Member the Membership
Interests held by such Member at the date hereof) has made a capital contribution to the Company in
the amount set forth in the books and records of the Company. Capital contributions shall be
credited to each Member’s respective capital account. The Company will issue the Membership
Interests. Except for the applicable number of Membership Interests and Membership Interest
Percentage and as otherwise provided herein, all issued and outstanding Membership Interests shall
be identical and shall entitle the holder thereof to the same rights, privilege and restrictions.
Membership Interest Percentages shall be adjusted to reflect non pro rata additions to, or
withdrawals from, the Company.
10. Additional Contributions. No Member will have any obligation to make additional
capital contributions to the Company.
11. Certification of Membership Membership Interests. The Company hereby irrevocably
elects that all Membership Interests in the Company shall be securities governed by Article 8 of
the Uniform Commercial Code as in effect in the State of New York and each other applicable
jurisdiction. Each Membership Interest Certificate evidencing Membership Interests in the Company
shall bear the following legend: “This certificate evidences a Membership Interest in CSI Canada
LLC and shall be a security governed by Article 8 of the Uniform Commercial Code as in effect in
the State of New York and, to the extent permitted by applicable law, Article 8 of the Uniform
Commercial Code of each other applicable jurisdiction.” This provision shall not be amended, and
any purported amendment to this provision, shall be null and void.
12. Transfer Restrictions. Notwithstanding any other provision in this Agreement, no
consent of the Members shall be required to permit (a) a Member to pledge its Membership Interests
as security for a loan to such Member or any affiliate of such Member, or (b) a pledgee of a
Member’s Membership Interests in the Company to transfer such Membership Interests in connection
with such pledgee’s exercise of its rights and remedies with respect thereto, or to permit such
pledgee to be substituted for such Member under the Agreement in connection with such pledgee’s
exercise of such rights and remedies.
13. Tax Status. 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 and that the
Company be treated as a division of the Member.
14. Admission of Additional or Substitute Members. The Company may admit additional
or substitute members at the Members’ discretion, the names of which will be inscribed on Schedule
I to this Agreement from time to time.
15. Liability of the Members. The Members will not have any liability for the
obligations or liabilities of the Company except to the extent expressly provided in the Delaware
Act.
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16. Benefits of Agreement. None of the provisions of this Agreement will be for the
benefit of or enforceable by any creditor of the Company or of any Member.
17. Headings. The titles of Sections of this Agreement are for convenience of
reference only and will not define or limit any of the provisions of this Agreement.
18. Governing Law. This Agreement will be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to conflicts of law principles of
such State.
19. Amendments. This Agreement may be amended only by written instrument executed by
the Members.
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IN WITNESS WHEREOF, the undersigned has duly executed this Operating Agreement as of the
date and year first written above.
| CLAIRE’S CANADA CORP. |
||||
| By: | /s/ Xxxxx Ovis | |||
| Name: | Xxxxx Ovis | |||
| Title: | Vice President | |||
SCHEDULE I
MEMBERS
| Membership Interest | ||||
| Member Name | Membership Interests | Percentage | ||
| Claire’s Canada Corp. | 1 | 100% |
