Exhibit 3.4
OPERATING AGREEMENT
OF
AOA HOLDING LLC
MEMBERS
Section 1.01 Place of Meetings. Each meeting of the members shall be held
at the principal executive office of the Company or at such other place as may
be designated by the Board of Governors or the Chief Manager; provided, however,
that any meeting called by or at the demand of a member or members shall be held
in the county where the principal executive office of the Company is located.
Section 1.02 Regular Meetings. Regular meetings of the members may be held
on an annual or other less frequent basis as determined by the Board of
Governors; provided, however, that if a regular meeting has not been held during
the immediately preceding 15 months, any member may demand a regular meeting of
members by written demand given to the Chief Manager or Treasurer of the
Company. At each regular meeting, the members entitled to vote shall elect
qualified successors for governors who serve for an indefinite term or whose
terms have expired or are due to expire within six months after the date of the
meeting and may transact any other business, provided, however, that no business
with respect to which special notice is required by law shall be transacted
unless such notice shall have been given.
Section 1.03 Special Meetings. A special meeting of the members may be
called for any purpose or purposes at any time by the Chief Manager; by the
Treasurer; by the Board of Governors or any two or more governors; or by one or
more members owning not less than ten percent of the voting power of all
membership interests of the Company entitled to vote, who shall demand such
special meeting by written notice given to the Chief Manager or the Treasurer of
the Company specifying the purposes of such meeting.
Section 1.04 Meetings Held Upon Member Demand. Within 30 days after receipt
of a demand by the Chief Manager or the Treasurer from any member or members
entitled to call a meeting of the members, it shall be the duty of the Board of
Governors of the Company to cause a special or regular meeting of members, as
the case may be, to be duly called and held on notice no later than 90 days
after receipt of such demand. If the Board fails to cause such a meeting to be
called and held as required by this Section, the member or members making the
demand may call the meeting by giving notice as provided in Section 1.06 hereof
at the expense of the Company.
Section 1.05 Adjournments. Any meeting of the members may be adjourned from
time to time to another date, time and place. If any meeting of the members is
so adjourned, no notice as to such adjourned meeting need be given if the date,
time and place at which the meeting will be reconvened are announced at the time
of adjournment.
Section 1.06 Notice of Meetings. Unless otherwise required by law, written
notice of each meeting of the members, stating the date, time and place and, in
the case of a special meeting, the purpose or purposes, shall be given at least
ten days and not more than 60 days prior to the meeting to every owner of
membership interests entitled to vote at such meeting except as specified in
Section 1.05 or as otherwise permitted by law. The business transacted at a
special meeting of members is limited to the purposes stated in the notice of
the meeting.
Section 1.07 Waiver of Notice. A member may waive notice of the date, time,
place and purpose or purposes of a meeting of members. A waiver of notice by a
member entitled to notice is effective whether given before, at or after the
meeting, and whether given in writing, orally or by attendance. Attendance by a
member at a meeting is a waiver of notice of that meeting, unless the member
objects at the beginning of the meeting to the transaction of business because
the meeting is not lawfully called or convened, or objects before a vote on an
item of business because the item may not lawfully be considered at that meeting
and does not participate in the consideration of the item at that meeting.
Section 1.08 Voting Rights. A member shall have voting power in proportion
to the member's voting interest as provided in a member control agreement.
Except as otherwise required by law, an owner of a membership interest entitled
to vote may vote any portion of the membership interest in any way the member
chooses. If a member votes without designating the proportion of the membership
interest voted in a particular way, the member is deemed to have voted all of
the membership interest in that way.
Section 1.09 Proxies. A member may cast or authorize the casting of a vote
by filing a written appointment of a proxy with a manager of the Company at or
before the meeting at which the appointment is to be effective. The member may
sign or authorize the written appointment by telegram, cablegram or other means
of electronic transmission setting forth or submitted with information
sufficient to determine that the member authorized such transmission. Any copy,
facsimile, telecommunication or other reproduction of the original of either the
writing or transmission may be used in lieu of the original, provided that it is
a complete and legible reproduction of the entire original.
Section 1.10 Quorum. The owners of a majority of the voting power of the
membership interests entitled to vote at a meeting of the members are a quorum
for the transaction of business, unless a larger or smaller proportion is
provided in the Articles of Organization of the Company or a member control
agreement. If a quorum is present when a duly called or held meeting is
convened, the members present may continue to transact business until
adjournment, even though the withdrawal of members originally present leaves
less than the proportion otherwise required for a quorum.
Section 1.11 Acts of Members. Except as otherwise required by law or
specified in the Articles of Organization of the Company or a member control
agreement, the members shall take action by the affirmative vote of the owners
of the greater of (a) a majority of the voting power of the membership interests
present and entitled to vote on that item of business or (b) a majority of the
voting power that would constitute a quorum for the transaction of business at a
duly held meeting of members.
2
Section 1.12 Action Without a Meeting. Any action required or permitted to
be taken at a meeting of the members of the Company may be taken without a
meeting by written action signed by all of the members entitled to vote on that
action. Any action, if the Articles of Organization or a member control
agreement so provide, may be taken by written action signed by the members who
own voting power equal to the voting power that would be required to take the
same action at a meeting of the members at which all members were present. The
written action is effective when signed by the required members, unless a
different effective time is provided in the written action. When written action
is permitted to be taken by less than all members, all members shall be notified
immediately of its text and effective date.
GOVERNORS
Section 2.01 Number; Qualifications. Except as authorized by the members
pursuant to a member control agreement or unanimous affirmative vote, the
business and affairs of the Company shall be managed by or under the direction
of a Board of one or more governors. Governors shall be natural persons. The
members at each regular meeting shall determine the number of governors to
constitute the Board, provided that thereafter the authorized number of
governors may be increased by the members or the Board and decreased by the
members. Governors need not be members.
Section 2.02 Term. Each governor shall serve for an indefinite term that
expires at the next regular meeting of the members. A governor shall hold office
until a successor is elected and has qualified or until the earlier death,
resignation, removal or disqualification of the governor.
Section 2.03 Vacancies. Vacancies on the Board of Governors resulting from
the death, resignation, removal or disqualification of a governor may be filled
by the affirmative vote of a majority of the remaining governors, even though
less than a quorum. Vacancies on the Board resulting from newly created
governorships may be filled by the affirmative vote of a majority of the
governors serving at the time such governorships are created. Each person
elected to fill a vacancy shall hold office until a qualified successor is
elected by the members at the next regular meeting or at any special meeting
duly called for that purpose.
Section 2.04 Place of Meetings. Each meeting of the Board of Governors
shall be held at the principal executive office of the Company or at such other
place as may be designated from time to time by a majority of the governors or
by the Chief Manager. A meeting may be held by conference among the governors
using any means of communication through which the governors may simultaneously
hear each other during the conference.
Section 2.05 Regular Meetings. Regular meetings of the Board of Governors
for the election of managers and the transaction of any other business shall be
held without notice at the place of and immediately after each regular meeting
of the members.
Section 2.06 Special Meetings. A special meeting of the Board of Governors
may be called for any purpose or purposes at any time by any governor by giving
not less than two days' notice to all governors of the date, time and place of
the meeting, provided that when notice is mailed, at least four days' notice
shall be given. The notice need not state the purpose of the meeting.
3
Section 2.07 Waiver of Notice; Previously Scheduled Meetings.
Subdivision 1. A governor of the Company may waive notice of the date, time
and place of a meeting of the Board. A waiver of notice by a governor entitled
to notice is effective whether given before, at or after the meeting, and
whether given in writing, orally or by attendance. Attendance by a governor at a
meeting is a waiver of notice of that meeting, unless the governor objects at
the beginning of the meeting to the transaction of business because the meeting
is not lawfully called or convened and thereafter does not participate in the
meeting.
Subdivision 2. If the day or date, time and place of a Board meeting have
been provided herein or announced at a previous meeting of the Board, no notice
is required. Notice of an adjourned meeting need not be given other than by
announcement at the meeting at which adjournment is taken of the date, time and
place at which the meeting will be reconvened.
Section 2.08 Quorum. A majority of the governors currently holding office
shall be necessary to constitute a quorum for the transaction of business. In
the absence of a quorum, a majority of the governors present may adjourn a
meeting from time to time without further notice until a quorum is present. If a
quorum is present when a duly called or held meeting is convened, the governors
present may continue to transact business until adjournment, even though the
withdrawal of a number of the governors originally present leaves less than the
proportion or number otherwise required for a quorum.
Section 2.09 Acts of Board. Except as otherwise required by law or
specified in the Articles of Organization of the Company or a member control
agreement, the Board shall take action by the affirmative vote of a majority of
the governors present at a duly held meeting.
Section 2.10 Participation by Electronic Communications. A governor may
participate in a Board meeting by any means of communication through which the
governor, other governors so participating and all governors physically present
at the meeting may simultaneously hear each other during the meeting. A governor
so participating shall be deemed present in person at the meeting.
Section 2.11 Absent Governors. A governor of the Company may give advance
written consent or opposition to a proposal to be acted on at a Board meeting.
If the governor is not present at the meeting, consent or opposition to a
proposal does not constitute presence for purposes of determining the existence
of a quorum, but consent or opposition shall be counted as a vote in favor of or
against the proposal and shall be entered in the minutes or other record of
action at the meeting, if the proposal acted on at the meeting is substantially
the same or has substantially the same effect as the proposal to which the
governor has consented or objected.
Section 2.12 Action Without a Meeting. An action required or permitted to
be taken at a Board meeting may be taken without a meeting by written action
signed by all of the governors. Any action, other than an action requiring
member approval, if the Articles of Organization or a member control agreement
so provide, may be taken by written action signed by the number of governors
that would be required to take the same action at a meeting of the Board at
which all governors were present. The written action is effective when signed by
the required number of governors, unless a different effective time is provided
in the written action. When written action is
4
permitted to be taken by less than all governors, all governors shall be
notified immediately of its text and effective date.
Section 2.13 Committees.
Subdivision 1. A resolution approved by the affirmative vote of a majority
of the Board may establish committees having the authority of the Board in the
management of the business of the Company only to the extent provided in the
resolution. Committees shall be subject at all times to the direction and
control of the Board, except as provided in Section 2.14.
Subdivision 2. A committee shall consist of one or more natural persons,
who need not be governors, appointed by affirmative vote of a majority of the
governors present at a duly held Board meeting.
Subdivision 3. Section 2.04 and Sections 2.06 to 2.12 hereof shall apply to
committees and members of committees to the same extent as those sections apply
to the Board and governors.
Subdivision 4. Minutes, if any, of committee meetings shall be made
available upon request to members of the committee and to any governor.
Section 2.14. Special Litigation Committee. Pursuant to the procedure set
forth in Section 2.13, the Board may establish a committee composed of one or
more independent governors or other independent persons to determine whether it
is in the best interests of the Company to pursue a particular legal right or
remedy of the Company and whether to cause, to the extent permitted by law, the
dismissal or discontinuance of a particular proceeding that seeks to assert a
right or remedy on behalf of the Company. The committee, once established, is
not subject to the direction or control of, or termination by, the Board. A
vacancy on the committee may be filled by a majority vote of the remaining
committee members. The good faith determinations of the committee are binding
upon the Company and its governors, managers and members to the extent permitted
by law. The committee terminates when it issues a written report of its
determinations to the Board.
Section 2.15 Compensation. The Board may fix the compensation, if any, of
governors.
MANAGERS
Section 3.01 Number and Designation. The Company shall have one or more
natural persons exercising the functions of the position of Chief Manager and
Treasurer. The Board of Governors may elect or appoint such other managers or
agents as it deems necessary for the operation and management of the Company,
with such powers, rights, duties and responsibilities as may be determined by
the Board, each of whom shall have the powers, rights, duties and
responsibilities set forth in this Operating Agreement unless otherwise
determined by the Board. Any of the positions or functions of those positions
may be held by the same person.
Section 3.02 Chief Manager. Unless provided otherwise by a resolution
adopted by the Board of Governors, the Chief Manager (a) shall have general
active management of the business of the Company; (b) shall, when present,
preside at all meetings of the members and Board; (c) shall see that all orders
and resolutions of the Board are carried into effect; (d) may maintain
5
records of and certify proceedings of the Board and members; and (e) shall
perform such other duties as may from time to time be prescribed by the Board.
Section 3.03 Treasurer. Unless provided otherwise by a resolution adopted
by the Board of Governors, the Treasurer (a) shall keep accurate financial
records for the Company; (b) shall deposit all moneys, drafts and checks in the
name of and to the credit of the Company in such banks and depositories as the
Board shall designated from time to time; (c) shall endorse for deposit all
notes, checks and drafts received by the Company as ordered by the Board, making
proper vouchers therefor; (d) shall disburse Company funds and issue checks and
drafts in the name of the Company, as ordered by the Board; (e) shall render to
the Chief Manager and the Board, whenever requested, an account of all of such
manager's transactions as Treasurer and of the financial condition of the
Company; and (f) shall perform such other duties as may be prescribed by the
Board or the Chief Manager from time to time.
Section 3.04 President. Unless otherwise determined by the Board of
Governors, the President shall be the Chief Manager of the Company. If a manager
other than the President is designated Chief Manager, the President shall
perform such duties as may from time to time be assigned by the Board.
Section 3.05 Vice Presidents. Any one or more Vice Presidents, if any, may
be designated by the Board of Governors as Executive Vice presidents or Senior
Vice Presidents. During the absence or disability of the President, it shall be
the duty of the highest ranking Executive Vice President and, in the absence of
any such Vice President, it shall be the duty of the highest ranking Senior Vice
President or other Vice President, who shall be present at the time and able to
act, to perform the duties of the President. The determination of who is the
highest ranking of two or more persons holding the same position shall, in the
absence of specific designation of order of rank by the Board, be made on the
basis of the earliest date of appointment or election, or, in the event of a
simultaneous appointment or election, on the basis of the longest continuous
employment by the Company.
Section 3.06 Secretary. The Secretary, unless otherwise determined by the
Board of Governors, shall attend all meetings of the members and all meetings of
the Board, shall record or cause to be recorded all proceedings thereof in a
book to be kept for that purpose, and may certify such proceedings. Except as
otherwise required or permitted by law or by this Operating Agreement, the
Secretary shall give or cause to be given notice of all meetings of the members
and all meetings of the Board.
Section 3.07 Authority and Duties. In addition to the foregoing authority
and duties, all managers of the Company shall respectively have such authority
and perform such duties in the management of the business of the Company as may
be designated from time to time by the Board of Governors. Unless prohibited by
a resolution approved by the affirmative vote of a majority of the governors
present, a manager elected or appointed by the Board may, without the approval
of the Board, delegate some or all of the duties and powers of a position to
other persons.
Section 3.08 Term.
Subdivision 1. All managers of the Company shall hold office until their
respective successors are chosen and have qualified or until their earlier
death, resignation or removal.
6
Subdivision 2. A manager may resign at any time by giving written notice to
the Company. The resignation is effective without acceptance when the notice is
given to the Company, unless a later effective date is specified in the notice.
Subdivision 3. A manager may be removed at any time, with or without cause,
by a resolution approved by the affirmative vote of a majority of the governors
present at a duly held Board meeting, subject to the provisions of any member
control agreement.
Subdivision 4. A vacancy in a position because of death, resignation,
removal, disqualification or other cause may, or in the case of a vacancy in the
position of Chief Manager or Treasurer shall, be filled for the unexpired
portion of the term by the Board.
Section 3.09 Salaries. The salaries of all managers of the Company shall be
fixed by the Board of Governors or by the Chief Manager if authorized by the
Board.
INDEMNIFICATION
Section 4.01 Indemnification. The Company shall indemnify its managers and
governors for such expenses and liabilities, in such manner, under such
circumstances, and to such extent, as required or permitted by Minnesota
Statutes, Section 322B.699, as amended from time to time, or as required or
permitted by other provisions of law.
Section 4.02 Insurance. The Company may purchase and maintain insurance on
behalf of any person in such person's official capacity against any liability
asserted against and incurred by such person in or arising from that capacity,
whether or to the Company would otherwise be required to indemnify the person
against the liability.
MEMBERSHIP INTERESTS
Section 5.01 Statement of Membership Interest. At the request of any
member, the Company shall state in writing the particular membership interest
owned by that member as of the moment the Company makes the statement. The
statement must describe the member's rights to vote, to share in profits and
losses, and to share in distributions, as well as any assignment of the member's
rights then in effect.
Section 5.02 Declaration of Distributions. The Board of Governors shall
have the authority to declare distributions upon the membership interests of the
Company to the extent permitted by law.
Section 5.03 Transfer of Membership Interests. Membership interests in the
Company may be transferred only to the extent permitted by law and subject to
any member control agreement.
7
MISCELLANEOUS
Section 6.01 Execution of Instruments. Consent to avoid Dissolution.
Subdivision 1. All deeds, mortgages, bonds, checks, contracts and other
instruments pertaining to the business and affairs of the Company shall be
signed on behalf of the Company by the Chief Manager, or the President, or any
Vice President, or by such other person or persons as may be designated from
time to time by the Board of Governors.
Subdivision 2. If a document must be executed by persons holding different
positions or functions and one person holds such positions or exercises such
functions, that person may execute the document in more than one capacity if the
document indicates each such capacity.
Section 6.02 Advances. The Company may, without a vote of the governors,
advance money to its governors, managers or employees to cover expenses that can
reasonably be anticipated to be incurred by them in the performance of their
duties and for which they would be entitled to reimbursement in the absence of
an advance.
Section 6.03 Company Seal. The seal of the Company, if any, shall be a
circular embossed seal having inscribed thereon the name of the Company and the
following words:
"Limited Liability Company Seal Minnesota."
Section 6.04 Fiscal Year. The fiscal year of the Company shall be
determined by the Board of Governors.
Section 6.05 Construction. This Operating Agreement is subject to the terms
of any member control agreement from time to time in effect and to the extent
inconsistent the member control agreement shall be controlling.
Section 6.06 Amendments. The Board of Governors shall have the power to
adopt, amend or repeal the Operating Agreement of the Company, subject to the
power of the members to change or repeal the same, provided, however, that the
Board shall not adopt, amend or repeal any Section fixing a quorum for meetings
of members, prescribing procedures for removing governors or filling vacancies
in the Board, or fixing the number of governors or their classifications,
qualifications or terms of office, but may adopt or amend a Section that
increases the number of governors.
8
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
5th day of May, 1999.
GOVERNORS:
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxx-Xxxxx
Xxxxx Xxxxx-Xxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
9
