LIMITED LIABILITY COMPANY AGREEMENT
OF
SECURITY MERGER SUB, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of Security
Merger Sub LLC (the "Company") dated as of this 19th day of December, 2003, by
SpectaGuard Acquisition LLC, as the sole member of the Company (the "Member").
RECITAL
The Member has formed the Company as a limited liability company under the
laws of the State of Delaware and desires to enter into a written agreement, in
accordance with the provisions of the Delaware Limited Liability Company Act and
any successor statute, as amended from time to time (the "Act"), governing the
affairs of the Company and the conduct of its business.
ARTICLE 1
The Limited Liability Company
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1.1 Formation. The Member has previously formed the Company as a limited
liability company pursuant to the provisions of the Act. A certificate of
formation for the Company as described in Section 18-201 of the Act (the
"Certificate of Formation") has been filed in the Office of the Secretary of
State of the State of Delaware in conformity with the Act.
1.2 Name. The name of the Company shall be "Security Merger Sub LLC" and
its business shall be carried on in such name with such variations and changes
as the Member shall determine or deem necessary to comply with requirements of
the jurisdictions in which the Company's operations are conducted.
1.3 Business Purpose; Powers. The Company is formed for the purpose of
engaging in any lawful business, purpose or activity for which limited liability
companies may be formed under the Act. The Company shall possess and may
exercise all the powers and privileges granted by the Act or by any other law or
by this Agreement, together with any powers incidental thereto, so far as such
powers and privileges are necessary or convenient to the conduct, promotion or
attainment of the business purposes or activities of the Company.
1.4 Registered Office and Agent. The location of the registered office of
the Company shall be 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, in the City of
Wilmington, County of New Castle. The Company's Registered Agent at such address
shall be The Xxxxxxxx-Xxxx Corporation System, Inc.
1.5 Term. Subject to the provisions of Article 6 below, the Company shall
have perpetual existence.
ARTICLE 2
The Member
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2.1 The Member. The name and address of the Member is as follows:
Name Address
---- -------
SpectaGuard Acquisition LLC 0000 Xxxxxxx Xxxxx
Xxxx xx Xxxxxxx, XX 00000
2.2 Actions by the Member; Meetings. The Member may approve a matter or
take any action at a meeting or without a meeting by the written consent of the
Member. Meetings of the Member may be called at any time by the Member.
2.3 Liability of the Member. All 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 the Member shall not be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as such)
shall have the authority to bind the Company to any third party with respect to
any matter.
2.5 Admission of Members. New members shall be admitted only upon the
approval of the Member.
ARTICLE 3
Management by the Member
------------------------
3.1 The management of the Company is fully reserved to the Member, and the
Company shall not have "managers," as that term is used in the Act. 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, the Member,
who shall make all decisions and take all actions for the Company. In managing
the business and affairs of the Company and exercising its powers, the Member
shall act through resolutions adopted in written consents. Decisions or actions
taken by the Member in accordance with this Agreement shall constitute decisions
or action by the Company and shall be binding on the Company.
3.2 Officers and Related Persons. The Member shall have the authority to
appoint and terminate officers of the Company and retain and terminate
employees, agents and consultants of the Company and to delegate such duties to
any such officers,
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employees, agents and consultants as the Member deems appropriate, including the
power, acting individually or jointly, to represent and bind the Company in all
matters, in accordance with the scope of their respective duties.
ARTICLE 4
Capital Structure and Contributions
-----------------------------------
4.1 Capital Structure. The capital structure of the Company shall consist
of one class of common interests (the "Common Interests"). All Common Interests
shall be identical with each other in every respect. The Member shall own all of
the Common Interests issued and outstanding.
4.2 Capital Contributions. From time to time, the Member may determine that
the Company requires capital and may make capital contribution(s) in an amount
determined by the Member. A capital account shall be maintained for the Member,
to which contributions and profits shall be credited and against which
distributions and losses shall be charged.
ARTICLE 5
Profits, Losses and Distributions
---------------------------------
5.1 Profits and Losses. For financial accounting and tax purposes, the
Company's net profits or net losses shall be determined on an annual basis in
accordance with the manner determined by the Member. In each year, profits and
losses shall be allocated entirely to the Member.
5.2 Distributions. The Member shall determine profits available for
distribution and the amount, if any, to be distributed to the Member, and shall
authorize and distribute on the Common Interests, the determined amount when, as
and if declared by the Member. The distributions of the Company shall be
allocated entirely to the Member.
ARTICLE 6
Events of Dissolution
---------------------
The Company shall be dissolved and its affairs wound up upon the occurrence
of any of the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802 of the
Act.
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ARTICLE 7
Transfer of Interests in the Company
------------------------------------
The Member may sell, assign, transfer, convey, gift, exchange or otherwise
dispose of any or all of its Common Interests and, upon receipt by the Company
of a written agreement executed by the person or entity to whom such Common
Interests are to be transferred agreeing to be bound by the terms of this
Agreement, such person shall be admitted as a member.
ARTICLE 8
Exculpation and Indemnification
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8.1 Exculpation. Notwithstanding any other provisions of this Agreement,
whether express or implied, or any obligation or duty at law or in equity, none
of the Member, or any officers, directors, stockholders, partners, employees,
affiliates, representatives or agents of any of the Member, nor any officer,
employee, representative or agent of the Company (individually, a "Covered
Person" and, collectively, the "Covered Persons") shall be liable to the Company
or any other person for any act or omission (in relation to the Company, its
property or the conduct of its business or affairs, this Agreement, any related
document or any transaction or investment contemplated hereby or thereby) taken
or omitted by a Covered Person in the reasonable belief that such act or
omission is in or is not contrary to the best interests of the Company and is
within the scope of authority granted to such Covered Person by the Agreement,
provided such act or omission does not constitute fraud, willful misconduct, bad
faith, or gross negligence.
8.2 Indemnification. To the fullest extent permitted by law, the Company
shall indemnify and hold harmless each Covered Person from and against any and
all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative
("Claims"), in which the Covered Person may be involved, or threatened to be
involved, as a party or otherwise, by reason of its management of the affairs of
the Company or which relates to or arises out of the Company or its property,
business or affairs. A Covered Person shall not be entitled to indemnification
under this Section 8.2 with respect to (i) any Claim with respect to which such
Covered Person has engaged in fraud, willful misconduct, bad faith or gross
negligence or (ii) any Claim initiated by such Covered Person unless such Claim
(or part thereof) (A) was brought to enforce such Covered Person's rights to
indemnification hereunder or (B) was authorized or consented to by the Member.
Expenses incurred by a Covered Person in defending any Claim shall be paid by
the Company in advance of the final disposition of such Claim upon receipt by
the Company of an undertaking by or on behalf of such Covered Person to repay
such amount if it shall be ultimately determined that such Covered Person is not
entitled to be indemnified by the Company as authorized by this Section 8.2.
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8.3 Amendments. Any repeal or modification of this Article VIII by the
Member shall not adversely affect any rights of such Covered Person pursuant to
this Article VIII, including the right to indemnification and to the advancement
of expenses of a Covered Person existing at the time of such repeal or
modification with respect to any acts or omissions occurring prior to such
repeal or modification.
ARTICLE 9
Miscellaneous
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9.1 Tax Treatment. Unless otherwise determined by the Member, the Company
shall be a disregarded entity for U.S. federal income tax purposes (as well as
for any analogous state or local tax purposes), and the Member and the Company
shall timely make any and all necessary elections and filings for the Company
treated as a disregarded entity for U.S. federal income tax purposes (as well as
for any analogous state or local tax purposes).
9.2 Amendments. Amendments to this Agreement and to the Certificate of
Formation shall be approved in writing by the Member. An amendment shall become
effective as of the date specified in the approval of the Member or if none is
specified as of the date of such approval or as otherwise provided in the Act.
9.3 Severability. If any provision of this Agreement is held to be invalid
or unenforceable for any reason, such provision shall be ineffective to the
extent of such invalidity or unenforceability; provided, however, that the
remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the expectations of the Member
regarding this Agreement. Otherwise, any invalid or unenforceable provision
shall be replaced by the Member with a valid provision which most closely
approximates the intent and economic effect of the invalid or unenforceable
provision.
9.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof.
9.5 Limited Liability Company. The Member intends to form a limited
liability company and does not intend to form a partnership under the laws of
the State of Delaware or any other laws.
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IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of
the day first above written.
SPECTAGUARD ACQUISITION LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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