AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF BURLINGTON NORTHERN SANTA FE, LLC
Exhibit
3.2
AMENDED
AND RESTATED
OF
This
Amended and
Restated Limited Liability Company Operating Agreement (this “Agreement”) of Burlington Northern Santa Fe, LLC
(formerly known as R Acquisition Company, LLC), a Delaware limited liability
company (the “Company”), is adopted by National Indemnity
Company (the “Sole
Member”), the sole member of the Company,
effective as of February 12, 2010, and it completely amends and restates that
certain Limited Liability Company Operating Agreement of R Acquisition Company,
LLC, dated November 2, 2009.
1. Formation of the
Company. The Sole Member formed the Company on November 2,
2009 as a limited liability company in accordance with the Delaware Limited
Liability Company Act, 6 Del. C. § 18-101 et seq. (the “Act”).
2. Name. The
name of the Company is “Burlington Northern Santa Fe, LLC”. The
Company may conduct business under this name or any other name approved by the
Sole Member.
3. Business
Purpose. The Company may engage in any lawful activity for
which a limited liability company may be organized under the Act.
4. Registered Agent and
Office. The Company’s registered office and registered agent
for service of process in the State of Delaware pursuant to Section 18-104
of the Act shall be Corporation Service
Company – 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
in the County of New Castle. The identity of the Company’s registered
agent and the location of the Company’s registered office may be changed at will
by the Sole Member.
5. Principal
Office. The principal office of the Company shall be located
at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, XX 00000. The location of
the Company’s principal office may be changed at will by the Sole
Member. In addition, the Company may maintain offices and places of
business at such other place or places within or outside the State of Delaware
as the Sole Member or the Board (as defined below) deems advisable in its sole
discretion.
6. Term. The
term of the Company will be perpetual, unless sooner terminated and wound up in
accordance with the Act.
7. Operating
Provisions. Until such time as the Sole Member shall agree to
admit any additional members to the Company, the provisions of this Agreement
shall be identical to the provisions set forth in the Act to govern Delaware
limited liability companies which do not adopt a written operating agreement,
except to the extent otherwise provided herein.
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8. Management of the
Company.
(a) Board of
Managers. The Company shall be managed by a Board of Managers
(the “Board”). The number of managers on
the Board (each, a “Manager”) shall be no less than one and no more
than ten. The Managers shall be designated from time to time by the
Sole Member, which may remove and replace any Manager (or dissolve the entire
Board) at any time, in its sole discretion. As of the date hereof,
there shall be seven Managers, as follows: Xxxxxx X. Xxxxxxx, Xxxx X.
Hamburg, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxx X. Ice, Xxxx X. Xxxxxxx, Xx. and
Xxxxx Xxxxx. A majority of the Managers on the Board shall constitute
a quorum. Each Manager shall have one vote, and an action of the
Board shall require the affirmative votes of a majority of the
quorum. The Board may also act by unanimous written consent of the
Managers. The Board may delegate authority to one or more Managers,
officers, employees, agents or representatives of the Company as it may from
time to time deem appropriate. The Board shall hold regular meetings
at the times, dates and places (including, if it so desires, by telephone or
video conference) that are established by the Board. Special meetings
of the Board may be called by any Manager. Notice of any regular or
special meeting must be delivered to each Manager by telephone, facsimile,
e-mail or a nationally recognized overnight courier service no later than three
business days before the meeting. The attendance of a Manager at a
meeting shall constitute waiver of notice of such meeting. No person
shall receive any compensation for his or her service as a Manager, although the
Company will reimburse Managers for their out-of-pocket expenses incurred in
attending Board meetings.
(b) Officers. As of
the date hereof, the officers of the Company shall be the same as those who were
serving as the officers of Burlington Northern Santa Fe Corporation (“Old
BNSF”) immediately prior to the “Effective
Time,” as defined in that certain Agreement and Plan of Merger, dated as of
November 2, 2009, by and among the Company, Old BNSF and Berkshire Hathaway
Inc. The Board may appoint other officers, who shall have such titles
and duties as are determined by the Board, and it may remove and replace any
officer at any time, in the Board’s sole discretion. Officers shall
serve until their successors shall have been duly elected or appointed or
qualified or until their earlier death, resignation or
removal. Except as may be limited by the Board or by a superior
officer, the officers of the Company shall have the power to execute and
deliver, for and on behalf of the Company, any and all documents and instruments
which may be necessary to carry on the business of the Company.
(c) Duties. The duties
of each Manager and officer to the Company shall be the same as the duties owed
to a Delaware corporation by a director or officer of that corporation, as
applicable, under Delaware law; provided that the personal
liability of the Managers and officers to the Company for a breach of their
duties is hereby eliminated to the same maximum extent that it may be eliminated
for the directors of a Delaware corporation under Delaware law.
9. Limited
Liability. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the
Company, and neither the Sole Member nor any Manager or officer shall be
obligated for any such debt, obligation or liability of the Company by reason of
being or having been a member, Manager or officer of the Company.
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10. Indemnification. The
Company shall indemnify the Sole Member and its affiliates, employees, owners
and agents to the maximum extent permitted by the Act. In addition,
the Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed claim, demand, action,
suit or proceeding because he or she is or was a Manager or officer of the
Company or is or was serving in another position at the request of the Company,
to the maximum extent any such person could be indemnified by a Delaware
corporation under Delaware law. To the fullest extent permitted by
applicable law, expenses (including attorneys’ fees) incurred by a person
indemnified under this Section 10 defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding; provided, however, that such payment of
expenses in advance of the final disposition of the claim, demand, action, suit
or proceeding shall be made only upon receipt of an undertaking by such person
to repay all amounts advanced if it should be ultimately determined that such
person is not entitled to be indemnified under this Section 10 or
otherwise. The Company may, by action of the Sole Member or the Board
from time to time, grant rights to indemnification and advancement of expenses
to employees and agents of the Company with the same scope and effects as the
provisions of this Section 10 with respect to the indemnification of and
advancement of expenses to Managers and officers of the Company. Any
indemnification under this Section 10 shall be satisfied from the Company’s
assets only.
11. Admission of Additional
Members. One or more additional members may be admitted to the
Company upon the approval of the Sole Member in its sole
discretion.
12. Tax
Classification. Until such time as the Sole Member admits one
or more additional members in accordance with Section 11 above (or elects to
change its classification to that of a corporation for federal income tax
purposes), the Company shall have a single member pursuant to U.S. Treasury
Regulation Section 301.7701-3 and it shall be disregarded as an entity separate
from the Sole Member for federal income tax purposes.
13. Amendment. This
Agreement may be modified or amended at any time by a writing signed by the Sole
Member.
14. No Third Party
Rights. Except as provided in Section 10, no person other than
the Sole Member and the Managers shall (i) have any legal or equitable rights,
remedies or claims under or in respect to this Agreement or (ii) be a
beneficiary of any provision of this Agreement.
15. Governing
Law. This Agreement, including, without limitation, its
existence, validity, construction, and operating effect, shall be governed by
and construed in accordance with the laws of the State of Delaware without
regard to otherwise governing principles of conflicts of law.
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16. Severability. In
the event that any provision of this Agreement shall be adjudged by a court to
be void, unenforceable or inoperative as a matter of law, the same shall in no
way affect any other provision in this Agreement, the application of such
provision in any other circumstance or the validity or enforceability of this
Agreement as a whole.
[the remainder of this page is
intentionally left blank.]
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In Witness Whereof, the
Sole Member has executed this Agreement as of the date first above
written.
| NATIONAL INDEMNITY COMPANY | |||
|
|
By:
|
/s/ Xxxx X. Hamburg | |
| Name: Xxxx X. Hamburg | |||
| Title: Chairman | |||
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