Exhibit 3.1
THE SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
GROVE WORLDWIDE LLC
(a Delaware limited liability company)
_______________________________________
Dated as of July 31, 1998
_______________________________________
TABLE OF CONTENTS
ARTICLE I FORMATION; NAME; TERM . . . . . . . . . . . . . . . . . . . . 1
1.1 Formation . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Effective Date; Term. . . . . . . . . . . . . . . . . . . . . 1
1.4 Principal Place of Business . . . . . . . . . . . . . . . . . 1
1.5 Registered Office . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Registered Agent. . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 Authorized Person . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II INTERESTS; COMMITMENTS; CLOSING; CONTRIBUTIONS. . . . . . . . 4
2.1 Capital Contributions . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV MANAGEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Management of the Company . . . . . . . . . . . . . . . . . . 5
4.2 Powers of the Management Committee. . . . . . . . . . . . . . 6
4.3 Governance. . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 No Management by Other Persons or Entities. . . . . . . . . . 8
4.5 By-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.6 Reliance by Third Parties . . . . . . . . . . . . . . . . . . 8
ARTICLE V ACCOUNTING; FINANCIAL AND TAX MATTERS . . . . . . . . . . . . 9
5.1 Accounting Method . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Accounting Records. . . . . . . . . . . . . . . . . . . . . . 9
5.3 Fiscal Year and Taxable Year. . . . . . . . . . . . . . . . . 9
5.4 Financial Statements. . . . . . . . . . . . . . . . . . . . . 9
5.5 Bank and Investment Accounts. . . . . . . . . . . . . . . . . 10
5.6 Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . 10
5.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.8 Classification as a Disregarded Entity. . . . . . . . . . . . 11
5.9 Accounting Decisions. . . . . . . . . . . . . . . . . . . . . 11
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ARTICLE VI LIABILITY; EXCULPATION; INDEMNIFICATION . . . . . . . . . . . 11
6.1 Liability of Members. . . . . . . . . . . . . . . . . . . . . 11
6.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.3 Duties and Liabilities of Covered Persons . . . . . . . . . . 12
6.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 13
6.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VII TERMINATION; DISSOLUTION; LIQUIDATION AND
WINDING-UP . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.1 Events of Dissolution . . . . . . . . . . . . . . . . . . . . 14
7.2 Liquidation and Winding-Up. . . . . . . . . . . . . . . . . . 15
7.3 Survival of Rights, Duties and Obligations. . . . . . . . . . 15
7.4 Claims of the Member. . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 16
8.1 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.2 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.3 Admission of Additional Members . . . . . . . . . . . . . . . 16
8.4 Liability of Members. . . . . . . . . . . . . . . . . . . . . 16
8.5 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 16
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THE SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
GROVE WORLDWIDE LLC
This Second Amended and Restated Limited Liability Company Agreement
(this "Agreement") of Grove Worldwide LLC, a Delaware limited liability company
(the "Company"), is made as of the 31st day of July 1998, by Grove Holdings LLC,
as member (the "Member" or "Managing Member").
WHEREAS, the Company was formed under the laws of the State of
Delaware by filing a certificate of formation with the Secretary of the State of
Delaware pursuant to an Operating Agreement dated as of January 15, 1998 (the
"Original Agreement"); and
WHEREAS, the Company was operating in accordance with the Amended and
Restated Limited Liability Company Agreement dated as of April 29, 1998 (the
"Amended Agreement"), and the Company wishes to amend and restate the Original
Agreement and the Amended Agreement as set forth below:
ARTICLE I
FORMATION; NAME; TERM
---------------------
1.1 FORMATION. The Company was formed on January 15, 1998,
pursuant to the provisions of the Delaware Limited Liability Company Act, as
amended from time to time (the "ACT") upon the filing of the Certificate of
Formation with the Secretary of State of Delaware. The Company shall be
governed by, and the rights, duties and liabilities of the Member shall be as
provided in, the Act and this Agreement.
1.2 NAME. The name of the Company shall be "Grove Worldwide LLC".
The business of the Company may be conducted upon compliance with all applicable
laws under any other name designated by the Management Committee (as defined in
Section 4.1).
1.3 EFFECTIVE DATE; TERM. This Agreement shall become effective
upon the execution of this Agreement by the Member. The Company shall continue
in existence until it is dissolved and its affairs wound up in accordance with
the Act and this Agreement or until it is terminated as provided in the Act or
this Agreement.
1.4 PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the Company shall be at 1565 Xxxxxxxx Trail East, X.X. Xxx 00, Xxxxx Xxxxx,
XX 00000 or at
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such other or additional place or places as the Managing Member or Management
Committee shall determine from time to time. The Company may have other
offices, either within or outside of the State of Delaware, at such place or
places as the Managing Member or Management Committee may from time to time
designate or the business of the Company may require.
1.5 REGISTERED OFFICE. The address of the Company's registered
office in Delaware shall be c/o National Corporate Research, Ltd., 0 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxx xx Xxxx, Xxxxxxxx 00000.
1.6 REGISTERED AGENT. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware
initially is National Corporate Research, Ltd., 0 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx,
Xxxxxx xx Xxxx, Xxxxxxxx 00000. The Management Committee may at any time and
from time to time designate another registered agent.
1.7 FILINGS. The Managing Member promptly shall cause the
execution and delivery of such documents and performance of such acts consistent
with the terms of this Agreement as may be necessary to comply with the
requirements of law for the formation, qualification and operation of a limited
liability company under the laws of each jurisdiction in which the Company shall
conduct business. All expenses of such filings shall be borne by the Company.
1.8 AUTHORIZED PERSON. Xxxxxxxxx X. Xxxxxxx is hereby designated
as an authorized person, within the meaning of the Act, to execute, deliver and
file the certificate of formation of the Company, and any amendments and/or
restatements thereof.
1.9 PURPOSE. The Company is formed for the purpose of, directly or
indirectly, engaging in the business of designing, manufacturing, selling and
providing customer support for mobile hydraulic cranes, aerial work platforms,
truck mounted cranes and similar devices and in any and all activities and
transactions which are necessary, convenient, desirable or incidental to the
foregoing and in any lawful business, act or activity related thereto as the
Management Committee may determine from time to time and for which a limited
liability company may be organized under the Act, and in any and all activities
necessary, convenient, desirable or incidental to the foregoing.
1.10 POWERS. Except as otherwise limited in this Agreement,
(a) the Company shall have the power and authority to do
any and all acts necessary, appropriate, proper, advisable, convenient or
incidental to or for the furtherance of the purpose set forth in Section 1.9,
including:
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(i) to conduct its business, carry on its
operations and have and exercise the powers granted to a limited liability
company by the Act in any state, territory, district or possession of the United
States, or in any foreign country that may be necessary, convenient or
incidental to the accomplishment of the purpose of the Company;
(ii) to acquire by purchase, lease, contribution of
property or otherwise, own, hold, operate, maintain, finance, improve, lease,
sell, convey, mortgage, transfer, demolish or dispose of any real or personal
property that may be necessary, convenient or incidental to the accomplishment
of the purpose of the Company;
(iii) to enter into, perform and carry out contracts
of any kind, including, without limitation, contracts with any Member or any
Affiliate thereof, or any agent of the Company necessary to, in connection with,
convenient to, or incidental to the accomplishment of the purposes of the
Company;
(iv) to purchase, take, receive, subscribe for or
otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge,
or otherwise dispose of, and otherwise use and deal in and with, shares or other
interests in or obligations of domestic or foreign corporations, associations,
general or limited partnerships (including the power to be admitted as a partner
thereof and to exercise the rights and perform the duties created thereby),
trusts, limited liability companies (including the power to be admitted as a
member or appointed as a manager thereof and to exercise the rights and perform
the duties created thereby), or individuals or direct or indirect obligations of
the United States or of any government, state, territory, governmental district
or municipality or of any instrumentality of any of them;
(v) to lend money for any proper purpose, to invest
and reinvest funds and to take and hold real and personal property for the
payment of funds so loaned or invested;
(vi) to xxx and be sued, complain and defend and
participate in administrative or other proceedings, in its name;
(vii) to appoint employees and agents of the Company,
define their duties and fix their compensation;
(viii) to indemnify any Person to the fullest extent
permitted by the Act and to obtain any and all types of insurance;
(ix) to cease its activities and cancel its
Certificate;
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(x) to negotiate, enter into, renegotiate, extend,
renew, terminate, modify, amend, waive, execute, acknowledge or take any other
action with respect to any lease, contract or security agreement in respect of
any assets of the Company;
(xi) to borrow money and issue evidences of
indebtedness, and to secure the same by a mortgage, pledge or other lien on the
assets of the Company;
(xii) to pay, collect, compromise, litigate,
arbitrate or otherwise adjust or settle any and all other claims or demands of
or against the Company or to hold such proceeds against the payment of
contingent liabilities; and
(xiii) to make, execute, acknowledge and file any and
all documents or instruments necessary, convenient or incidental to the
accomplishment of the purpose of the Company.
(b) The Company, and the Managing Member, on behalf of the
Company, may enter into and perform any and all documents, agreements and
instruments contemplated thereby, all without any further act, vote or approval
of any Member notwithstanding any other provision of this Agreement, the Act or
other applicable law. The Managing Member or Management Committee may authorize
any Person (including, without limitation, any other Member) to enter into and
perform any document on behalf of the Company.
(c) The Company may merge with, or consolidate into,
another Delaware limited liability company or other business entity (as defined
in Section 18-209(a) of the Act) upon the approval of the Managing Member or the
Management Committee.
ARTICLE II
INTERESTS; COMMITMENTS; CLOSING; CONTRIBUTIONS
----------------------------------------------
2.1 CAPITAL CONTRIBUTIONS. The Member shall contribute, transfer,
assign and convey (collectively, "CONTRIBUTE"), or cause to be contributed, to
the capital of the Company, an amount in cash equal to $168,206,759 in exchange
for 100% of the interests (an "Interest") in the Company. The Member will have
no interest in specific Company property.
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ARTICLE III
DISTRIBUTIONS
-------------
3.1 DISTRIBUTIONS.
(a) The Company shall, to the extent the Managing Member or
Managment Committee determines that Company has cash available to do so, make
quarterly distributions of cash to the Member in an amount equal to (i) the
product of (A) the taxable income of the Company and (B) the maximum combined
Federal, state and local income tax rates applicable to an individual resident
of New York City or Los Angeles, California, whichever is higher, PROVIDED,
HOWEVER, that in determining such amount, the effect thereon of any net
operating loss carryforwards or other carryforwards or tax attributes
attributable to the Company, such as alternative minimum tax carryforwards shall
be taken into account, and adjusted to take into account any applicable credits,
deductions or other adjustments allowed under both New York and California law
to a direct or indirect owner of an Interest in the Company for state and local
income tax purposes.
(b) Additional distributions shall be made to the Member at
the times and in the aggregate amounts determined by the Managing Member or
Management Committee.
ARTICLE IV
MANAGEMENT
----------
4.1 MANAGEMENT OF THE COMPANY.
(a) The Company shall be managed by a Management Committee.
The Management Committee shall manage the Company in accordance with this
Agreement and the actions of the Management Committee taken in such capacity and
in accordance with this Agreement shall bind the Company.
(b) The Management Committee shall have full and complete
discretion to manage and control the business and affairs of the Company, to
make all decisions affecting the business and affairs of the Company and to take
all such actions as it deems necessary or appropriate to accomplish the purpose
of the Company as set forth herein. The Management Committee shall be the sole
person or entity with the power to bind the Company, except and to the extent
that such power is expressly delegated to any other person, committee or entity
by this Agreement or by the Management Committee, and such delegation shall not
cause the Management Committee to cease being the Management Committee. There
shall not be a "manager" (within the meaning of the Act) of the Company.
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(c) The Management Committee may appoint individuals with
or without such titles as it may elect, including the titles of Chairman, Chief
Executive Officer, Chief Financial Officer, General Counsel, Vice President,
Treasurer, Assistant Treasurer, Secretary, and Assistant Secretary, to act on
behalf of the Company with such power and authority as the Management Committee
may delegate in writing to any such persons, and otherwise such officers shall
have all the powers and authority customarily exercised by such officers.
(d) The Management Committee may adopt the By-laws of the
Company consistent with this Agreement and the Act.
4.2 POWERS OF THE MANAGEMENT COMMITTEE. The Management Committee
shall have the right, power and authority, in the management of the business and
affairs of the Company, to do or cause to be done, at the expense of the
Company, any and all acts deemed by the Management Committee to be necessary or
appropriate to effectuate the business, purposes and objectives of the Company.
Without limiting the generality of the foregoing, the
Management Committee shall have the power and authority to:
(a) issue from time to time in one or more series of any
number of Interests, and with such powers, preferences, rights and
qualifications, limitations or restrictions thereof, and such distinctive serial
designations, all as shall hereafter be stated and expressed in the resolution
or resolutions adopted by the Management Committee. Each series of Interests
(a) may have such voting rights or powers, full or limited, or may be without
voting rights or powers; (b) may be subject to redemption at such time or times
and at such prices; (c) may be entitled to receive allocations and distributions
(which may be cumulative or non-cumulative) at such rate or rates, on such
conditions and at such times, and allocable and payable in preference to, or in
such relation to, the allocations and distributions allocable and payable to any
other class or classes or series of Interests; (d) may have such rights upon the
voluntary or involuntary liquidation, winding up or dissolution of, or upon any
distribution of the assets of, the Company; (e) may be made convertible into or
exchangeable for, Interests of any other class or classes or of any other series
of the same or any other class or classes of interests of the Company at such
price or prices or at such rates of exchange and with such adjustments; (f) may
be entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of Interests of such series in such amount or amounts; (g) may be
entitled to the benefit of conditions and restrictions upon the creation of
indebtedness of the Company or any subsidiary, upon the issue of any additional
Interests (including additional Interests of such series or of any other series)
and upon the making of allocations or distributions on, and the purchase,
redemption or other acquisition by the Company or any subsidiary of, any
outstanding Interests of the Company and (h) may have such other relative,
participating, optional or other special rights, qualifications, limitations or
restrictions thereof; all as shall be stated in said resolution or resolutions
providing for the issue of such Interests;
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(b) cause the Interests of the Company to be represented by
certificates in such form and on the basis of such procedure as shall be
approved by the Management Committee, including with respect to the issuance of
new certificates to replace lost, destroyed, stolen or mutilated certificates.
(c) establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including with
respect to allocations and distributions;
(d) bring and defend on behalf of the Company actions and
proceedings at law or in equity before any court or governmental, administrative
or other regulatory agency, body or commission or otherwise; and
(e) execute all documents or instruments, perform all
duties and powers and do all things for and on behalf of the Company in all
matters necessary, desirable, convenient or incidental to the purpose of the
Company, including, without limitation, all documents, agreements and
instruments related to the making of investments of Company funds.
In connection with the issuance of any Interests as
contemplated under Subsection (a) above, the Management Committee is hereby
authorized to enter into such amendments or supplements to this Agreement as the
Management Committee determines to be necessary or advisable to give effect to
such issuance, including to make appropriate adjustments to the total number of
Interests outstanding; provided, however, that such adjustments shall not treat
Members differently and adversely from the manner in which other Members holding
similar Interests are treated.
The expression of any power or authority of the Management
Committee in this Agreement shall not in any way limit or exclude any other
power or authority of the Management Committee which is not specifically or
expressly set forth in this Agreement.
Notwithstanding anything in this Agreement to the contrary, all
transactions between the Company or any Subsidiary and any Member, its
Affiliates or any officer, director, shareholder, partner, member, employee or
agent of a Member or an Affiliate of a Member or family members of the foregoing
shall be on an arms length basis.
4.3 GOVERNANCE.
(a) NUMBER. The Management Committee shall consist of one
or more members. Each Management Committee member shall hold office until a
successor is elected and qualified or until such member's death, resignation or
removal.
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(b) ELECTION. Management Committee members shall be
elected by the Managing Member from time to time.
(c) RESIGNATION. Any Management Committee member may
resign at any time upon written notice to the Company.
(d) REMOVAL. Any or all of the Management Committee
members may be removed with or without cause by the Managing Member.
(e) TIMES AND PLACES OF MEETINGS. The times and places for
fixing meetings may be fixed from time to time by the Management Committee.
(f) QUORUM. A majority of the Management Committee members
shall be necessary and sufficient to constitute a quorum for the transaction of
business at any meeting of the Management Committee.
(g) ACTION BY MAJORITY VOTE. The act of a majority of the
Management Committee members present at a meeting at which a quorum is present
shall be the act of the Management Committee.
(h) ACTION WITHOUT A MEETING. Any action or permitted
action required to be taken at any meeting of the Management Committee may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by a majority of
the Management Committee members and such consent is filed with the minutes of
the proceedings of the Company.
4.4 NO MANAGEMENT BY OTHER PERSONS OR ENTITIES. Except and only to
the extent expressly delegated by the Management Committee, no person or entity
other than the Management Committee shall be an agent of the Company or have any
right, power or authority to transact any business in the name of the Company or
to act for or on behalf of or to bind the Company.
4.5 BY-LAWS. The Member or the Management Committee may adopt
by-laws consistent with this Agreement and the Act.
4.6 RELIANCE BY THIRD PARTIES. Any person or entity dealing with
the Company or the Management Committee or a Member, in his capacity as a
Member, may rely upon a certificate signed by the Management Committee as to:
(a) the identity of the Management Committee or the Member;
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(b) the existence or non-existence of any fact or facts
which constitute a condition precedent to acts by the Management Committee or
the Member or are in any other manner germane to the affairs of the Company;
(c) the persons who or entities which are authorized to
execute and deliver any instrument or document of or on behalf of the Company;
or
(d) any act or failure to act by the Company as to any
other matter whatsoever involving the Company or the Member.
ARTICLE V
ACCOUNTING; FINANCIAL AND TAX MATTERS
-------------------------------------
5.1 ACCOUNTING METHOD. The Company shall keep its accounting
records and shall report its profits or losses on the accrual method of
accounting in accordance with the principles used by the Company for Federal
income tax purposes and otherwise in accordance with Generally Accepted
Accounting Principles ("GAAP") and, to the extent inconsistent therewith, in
accordance with this Agreement.
5.2 ACCOUNTING RECORDS. The Company shall keep complete and
accurate business and accounting records reflecting all transactions of the
Company. Such accounting records shall be kept in accordance with the
principles used by the Company for Federal income tax purposes and otherwise in
accordance with GAAP consistently applied and, to the extent inconsistent
therewith, in accordance with this Agreement. The Company shall also keep all
records required to be kept pursuant to the Act. The Company's records,
together with a copy of this Agreement and of the Certificate, shall be
maintained at the principal place of business of the Company and shall be
subject to inspection or examination by the Member or Management Committee at
all reasonable times for any purpose reasonably related to such Member's or
Management Committee's interest in of the Company.
5.3 FISCAL YEAR AND TAXABLE YEAR. The accounting fiscal year (the
"Fiscal Year") of the Company shall end on the Saturday closest to the last day
of September of each year. The taxable year (the "Taxable Year") of the Company
shall end on December 31 of each year. The Fiscal Year and Taxable Year may be
changed by the Managing Member or Management Committee.
5.4 FINANCIAL STATEMENTS.
(a) As soon as practicable but in any event within 60 days
after the end of each of the first three quarters of each Fiscal Year of the
Company, the Management Committee or the financial officers of the Company shall
prepare quarterly financial statements
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of the Company (which need not be examined or reported on by an independent
certified public accountant), which shall include a balance sheet of the Company
as of the end of such fiscal quarter, a statement of net income and net loss for
such fiscal quarter and a statement of cash flows of the Company for such fiscal
quarter, all in reasonable detail, setting forth in each case in comparative
form the information for the corresponding period (or periods) of the previous
Fiscal Year.
(b) As soon as practicable but in any event within 90 days
after the close of each Fiscal Year of the Company, the Company shall cause to
be prepared the following financial statements, accompanied by the audited
report thereon of the independent accountants for the Company: (i) a balance
sheet of the Company as at the end of such Fiscal Year; (ii) a statement of net
income and net loss for such Fiscal Year; (iii) a statement of cash flows of the
Company for such Fiscal Year; and (iv) a statement of the Members' Capital
Accounts and changes therein for such Fiscal Year, all in reasonable detail,
setting forth in each case in comparative form all the information for the
corresponding period (or periods) of the previous Fiscal Year.
5.5 BANK AND INVESTMENT ACCOUNTS. All funds of the Company shall
be deposited in its name, or in such name as may be designated by the Managing
Member or Management Committee, in such checking, savings or other accounts, or
held in its name in the form of such other investments as shall be designated by
the Managing Member or Management Committee. The funds of the Company shall not
be commingled with the funds of any Person. All withdrawals of such deposits or
liquidations of such investments by the Company shall be made exclusively upon
the signature or signatures of such officer or officers of the Company as the
Management Committee may designate.
5.6 TAX MATTERS PARTNER. The "TAX MATTERS PARTNER" (as such term
is defined in Section 6231(a)(7) of the Code) of the Company shall be the
Managing Member or any successor "tax matters partner" designated by the
Managing Member or Management Committee in accordance with this Agreement.
5.7 TAXES.
(a) The Company shall prepare, or cause to be prepared, and
shall file all tax returns, be they information returns or otherwise, which are
required to be filed with the Internal Revenue Service, state and local tax
authorities and foreign tax jurisdictions, if any. A copy of such returns shall
be furnished to the Member and the Management Committee.
(b) The Company shall furnish the Member with all Company
information required to be reported in the tax returns of the Member for tax
jurisdictions in which the Company is considered to be doing business, including
a report indicating the
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Company's income, gain, credits, losses and deductions within 90 days after the
end of the Company's Taxable Year.
(c) All determinations as to tax elections shall be made by
the Tax Matters Partner.
5.8 CLASSIFICATION AS A DISREGARDED ENTITY. The Member intends
that the Company be disregarded as an entity separate from its owner for Federal
tax purposes effective as of the date of this Agreement. The Tax Matters
Partner shall not file an election for the Company to be taxable as an
association and shall, for and on behalf of the Company, take all steps as may
be required to maintain the Company's classification as disregarded as an entity
separate from its owner for Federal tax purposes.
5.9 ACCOUNTING DECISIONS. All determinations as to accounting
principles shall be made by the Managing Member or Management Committee.
ARTICLE VI
LIABILITY; EXCULPATION; INDEMNIFICATION
---------------------------------------
6.1 LIABILITY OF MEMBERS. A Member shall not be personally liable
for any debt, obligation or other liability of the Company, whether arising in
contract, tort or otherwise, except that a Member shall remain personally liable
for the payment of any capital contributions required by Article III, and as
otherwise provided in this Agreement, the Act and any other applicable law.
6.2 EXCULPATION.
(a) For purposes of this Agreement, "COVERED PERSON" shall
mean any Member, any Affiliate of a Member, any Management Committee member, and
any officer, director, shareholder, partner, member, employee or agent of a
Member or any Affiliate thereof, and any officer, employee or expressly
authorized agent of the Company or its Affiliates.
(b) No Covered Person shall be liable to the Company or any
other Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
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(c) A Covered Person shall be fully protected in relying in
good faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to matters the
Covered Person reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports or statements as
to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid.
6.3 DUTIES AND LIABILITIES OF COVERED PERSONS.
(a) To the extent that, at law or in equity, any Covered
Person has duties (including fiduciary duties) and liabilities related thereto
to the Company or to any other Covered Person, a Covered Person acting under
this Agreement shall not be liable to the Company or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
Members to replace such other duties and liabilities of such Covered Person.
(b) Unless otherwise expressly provided herein,
(i) whenever a conflict of interest exists or arises between Covered Persons, or
(ii) whenever this Agreement or any other agreement contemplated herein provides
that a Covered Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Company or any Member, the Covered Person shall
resolve such conflict of interest, taking such action or providing such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Covered Person, the resolution,
action or term so made, taken or provided by the Covered Person shall not
constitute a breach of this Agreement or any other agreement contemplated herein
or of any duty or obligation of the Covered Person at law or in equity or
otherwise.
(c) Whenever in this Agreement a Covered Person is
permitted or required to make a decision (a) in its "discretion" or under a
grant of similar authority or latitude, the Covered Person shall be entitled to
consider only such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Company or any other Person, or (b) in its
"good faith" or under another express standard, the Covered Person shall act
under such express standard and shall not be subject to any other or different
standard imposed by this Agreement or other applicable law.
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6.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the
Company shall indemnify any Covered Person who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding brought by or against the Company or otherwise, whether
civil, criminal, administrative or investigative, including, without limitation,
an action by or in the right of the Company to procure a judgment in its favor,
by reason of the fact that such Covered Person is or was a Member, Affiliate,
officer, employee or agent of the Company, or that such Covered Person is or was
serving at the request of the Company as an Affiliate partner, member, director,
officer, trustee, employee or agent of another Person, against all expenses,
including attorneys' fees and disbursements, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such Covered Person in
connection with such action, suit or proceeding. Notwithstanding the foregoing,
no indemnification shall be provided to or on behalf of any Covered Person if a
judgment or other final adjudication adverse to such Covered Person establishes
that his or her acts constituted intentional misconduct or gross negligence.
(b) Any indemnification under subsection (a) of this
Section (unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that the indemnification of
the Covered Person is proper under the circumstances because he or she has met
the applicable standard of conduct set forth in subsection (a) of this
Section 6.4. Such determination shall be made by the Member or, if the Member
so directs, by independent legal counsel in a written opinion. Any
indemnification payment shall be payable only out of and to the extent of the
Company's assets, and no Covered Person shall have any liability therefor.
(c) The Company shall, in the discretion of the Member, pay
expenses incurred in defending any action, suit or proceeding described in
subsection (a) above (including reasonable legal fees and expenses of counsel
and other experts) in advance of the final disposition of such action, suit or
proceeding upon receipt by the Company of an undertaking, in form satisfactory
to the Managing Member or the Company's legal counsel, to repay such amount if
it shall be determined that the Covered Person is not entitled to be indemnified
as authorized by paragraph (a) above.
(d) The indemnification provided by this Section 6.4 shall
not be deemed exclusive of any other rights to indemnification to which those
seeking indemnification may be entitled under any agreement, or otherwise. The
rights to indemnification and reimbursement or advancement of expenses provided
by, or granted pursuant to, this Section 6.4 shall continue as to a Covered
Person who has ceased to be a Member, officer, employee or agent (or other
person indemnified hereunder) and shall inure to the benefit of the executors,
administrators, legatees and distributees of such person.
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(e) The provisions of this Section 6.4 shall be a contract
between the Company, on the one hand, and each Covered Person who served in such
capacity at any time while this Section 6.4 is in effect, on the other hand,
pursuant to which the Company and each such Covered Person intend to be legally
bound. No repeal or modification of this Section 6.4 shall affect any rights or
obligations with respect to any state of facts then or theretofore existing or
thereafter arising or any proceeding theretofore or thereafter brought or
threatened based in whole or in part upon such state of facts.
6.5 INSURANCE. The Company may purchase and maintain insurance, to
the extent and in such amounts as the Managing Member shall, in its sole
discretion, deem reasonable, on behalf of Covered Persons and such other persons
or entities as the Managing Member shall determine, against any liability that
may be asserted against or expenses that may be incurred by any such person or
entity in connection with the activities of the Company or such indemnities,
regardless of whether the Company would have the power to indemnify such person
or entity against such liability under the provisions of this Agreement. The
Managing Member, on behalf of the Company, and/or the Company may enter into
indemnity contracts with Covered Person and adopt written procedures pursuant to
which arrangements are made for the advancement of expenses and the funding of
obligations under Section 6.4 hereof and containing such other procedures
regarding indemnification as are appropriate.
ARTICLE VII
TERMINATION; DISSOLUTION; LIQUIDATION AND WINDING-UP
----------------------------------------------------
7.1 EVENTS OF DISSOLUTION. The Company shall be dissolved upon any
of the following (each a "DISSOLUTION EVENT"):
(a) the entry of a decree of judicial dissolution under
Section 18-802 of the Act;
(b) the written consent to a dissolution of the Member;
(c) the expiration of 60 days after the assignment, sale,
transfer or other disposition of all or substantially all of the assets,
properties and business of the Company;
(d) the death, retirement, resignation, expulsion,
bankruptcy or dissolution of the Member or any other event that terminates the
continued membership of the Member.
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7.2 LIQUIDATION AND WINDING-UP. If the Company is dissolved
pursuant to Section 7.1, the Company shall be liquidated and wound up in
accordance with the Act and the following provisions:
(a) The financial officers of the Company shall be directed
to prepare a balance sheet, income statement and statement of cash flows of the
Company in accordance with GAAP as of the date of dissolution and for the period
ended on such date, which balance sheet shall be reported upon by the Company's
independent public accountants.
(b) The assets, properties and business of the Company
shall be liquidated by the Managing Member as promptly as possible, but in an
orderly and businesslike manner so as not to involve undue sacrifice.
Notwithstanding the foregoing, if it is determined by the Managing Member not to
sell all or any portion of the properties and assets of the Company, such
properties and assets shall be distributed in kind in the order of priority set
forth in subsection (c); PROVIDED, HOWEVER, that the Fair Market Value of such
properties and assets, as determined in good faith by the Managing Member, shall
be used in determining the extent and amount of a distribution in kind of such
properties and assets in lieu of actual cash proceeds of any sale or other
disposition thereof.
(c) The proceeds of sale of all or substantially all of the
properties and assets of the Company and all other properties and assets of the
Company not sold, as provided in subsection (b) above, and valued at the Fair
Market Value thereof as provided in such subsection (b), shall be applied and
distributed as follows, and in the following order or priority:
(i) FIRST, to the payment of all debts and
liabilities of the Company and the expenses of liquidation not otherwise
adequately provided for;
(ii) SECOND, to the setting up of any reserves that
are reasonably necessary for any contingent unforeseen liabilities or
obligations of the Company or of the Member arising out of, or in connection
with, the Company.
(iii) THEREAFTER, to the Member.
(d) A Certificate of Cancellation shall be filed with the
Secretary of State of the State of Delaware by the Member.
7.3 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS. Termination,
dissolution, liquidation or winding up of the Company for any reason shall not
release any party from any liability which at the time of such termination,
dissolution, liquidation or winding up already had accrued to any other party or
which thereafter may accrue in respect to any act or omission prior to such
termination, dissolution, liquidation or winding up.
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7.4 CLAIMS OF THE MEMBER. The Member shall look solely to the
Company's assets for the return of its contribution to the Company, and if the
assets of the Company remaining after payment of or due provision for all debts,
liabilities and obligations of the Company are insufficient to return such
contribution, the Member shall have no recourse against the Company.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 ASSIGNMENTS. The Member may assign in whole or in part its
limited liability company Interest.
8.2 RESIGNATION. The Managing Member may resign from the Company.
8.3 ADMISSION OF ADDITIONAL MEMBERS. One (1) or more additional
members of the Company may be admitted to the Company with the consent of the
Member.
8.4 LIABILITY OF MEMBERS. The Member shall not have any liability
for the obligations or liabilities of the Company except to the extent provided
in the Act.
8.5 AMENDMENT. This Agreement may be amended at any time by the
Member or the Management Committee.
8.6 GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the
date and year first aforesaid.
GROVE HOLDINGS LLC
By: /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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