Exhibit 3.23
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
PERFORMANCE MATERIALS II LLC
DATED AS OF FEBRUARY 22, 2001
LIMITED LIABILITY COMPANY OPERATING AGREEMENT, dated as of February
22, 2001 of Performance Materials II LLC.
ARTICLE 1
DEFINITIONS
Capitalized terms used herein are defined in Appendix I hereto.
ARTICLE 2
FORMATION; TERM
2.1. FORMATION. The sole Member hereby acknowledges the formation of
Performance Materials II LLC (the "Company") as a limited liability company
pursuant to the LLC Act by virtue of the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware.
2.2. TERM. The Company commenced on the date of the filing of the
Certificate of Formation with the Secretary of State of the State of Delaware.
The Company shall continue until terminated pursuant to the provisions hereof.
ARTICLE 3
NAME AND PLACE OF BUSINESS
3.1. NAME. The business of the Company shall be conducted under the
name "Performance Materials II LLC"; PROVIDED, that such name shall be subject
to change, from time to time, by the Member.
3.2. PRINCIPAL PLACE OF BUSINESS. The principal place of business of
the Company shall be at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxx or such other
place as the Member shall determine. The Company may maintain such other office
or offices for the transaction of business at such other locations as the Member
may deem advisable.
ARTICLE 4
PURPOSES AND POWERS
4.1. PURPOSES. The purpose for which the Company is formed is to
engage in any lawful business that may be engaged in by a limited liability
company organized under the LLC Act may engage in (the "Business").
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4.2. POWERS. The Company shall have all lawful powers and
authorities necessary, suitable or convenient for the furtherance of the
aforesaid purposes, and, without limiting the foregoing, the Company may in
furtherance of the Business carry out its objectives and accomplish its purposes
as principal or agent, directly or indirectly, alone or with associates, or as a
member or as a participant in any firm, association, trust, partnership or other
entity. Although the Company may engage in any or all of the above activities,
the Company need not engage in any one or more of them.
ARTICLE 5
CAPITAL CONTRIBUTIONS
5.1. CAPITAL CONTRIBUTIONS; ISSUANCE OF CERTIFICATE OF LLC INTEREST.
The Member hereby contributes to the capital of the Company (a "Capital
Contribution") the amount of $100 in cash. In exchange therefor, the Company
shall, pursuant to Section 18-702(c) of the LLC Act, issue to the Member a
certificate of Limited Liability Company interest, substantially in the form
attached hereto as EXHIBIT 1, evidencing the Sole Member's Limited Liability
Company interest ("LLC Interest") in the Company. For purposes of the Uniform
Commercial Code as in effect in any appellate jurisdiction, a LLC Interest in
the Company represented by a certificate substantially in the form of Exhibit 1
shall constitute a "security" as defined in and governed by Article 8 of the
Uniform Commercial Code.
5.2. LIMITATION ON OTHER CAPITAL CONTRIBUTIONS. Except as set forth
in this Agreement, or as required by law, the Member shall not at any time be
required to make any contribution to the capital of the Company or any loans to
the Company.
ARTICLE 6
DISTRIBUTIONS
6.1. GENERAL. Distributions may be made to the Member, as determined
by the Member from time to time.
6.2. DISTRIBUTION IN KIND. At any time or from time to time the
Member may determine to make all or a part of a distribution permitted under
this Article 6 in property other than cash. Such property shall be deemed to be
sold for its Fair Market Value, and any gain or loss associated with such deemed
sale shall be included in determining Net Profit or Net Loss for the applicable
period.
ARTICLE 7
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MANAGEMENT
The Company will be managed by its sole Member. The Member shall
have all of the powers and rights necessary, appropriate or advisable to
effectuate and carry out the purposes and business of the Company. The Member
may appoint, employ or otherwise contract with any Person for the transaction of
business of the Company or the performance of services for or on behalf of the
Company, and the Member may delegate to any such Person such authority to act on
behalf of the Company as the Member shall possess.
ARTICLE 8
TRANSFER OF INTERESTS
8.1. TRANSFERS. The Member may Transfer all or any portion of its
interests in the Company (or in the profits or assets thereof) to any Person.
Upon any Transfer permitted hereunder, the transferee shall be entitled to
receive, and the Company shall issue, a certificate of LLC Interest,
substantially in the form attached hereto as Exhibit 1, evidencing such
transferee's LLC Interest in the Company.
ARTICLE 9
WITHDRAWAL
9. WITHDRAWAL OF MEMBER. The Member may voluntarily withdraw or
resign as a Member at any time. The Member shall be deemed to have withdrawn
from the Company upon an Event of Bankruptcy with respect to the Member.
ARTICLE 10
DISSOLUTION AND LIQUIDATION
10.1. EVENTS OF DISSOLUTION. The Company shall be dissolved upon the
earliest to occur of the following:
(a) the approval of the Member; or
(b) the withdrawal of the Member.
10.2. LIQUIDATION. If the Company is dissolved, the Member (or any
liquidator appointed by the Member) shall promptly file any notice, publish any
advertisement or take any other action required under applicable law to effect
such
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dissolution, commence to wind up the affairs of the Company, liquidate the
assets of the Company by converting the same to cash and shall apply and
distribute the proceeds of such liquidation and any undistributed cash solely in
accordance with the terms hereof and in the following order of priority:
(a) first, to the payment of all debts and obligations of the
Company (including any debts of the Company to the Member) and the expenses of
liquidation; PROVIDED that, in lieu of prior payment of certain debts and
obligations, the Member (or any liquidator appointed by the Member) may
establish a reasonable reserve for payment of such debts and obligations (which
may reflect the unrealized portion of any installment obligations owed to the
Company) and such reserve if remaining after payment of such debts and
obligations shall be distributed to the Member as soon as practicable.
(b) second, all remaining cash shall be distributed to the Member.
ARTICLE 11
TAX MATTERS
11.1. STATUS OF COMPANY. It is intended that the Company be
disregarded as an entity separate from the Member for federal income tax
purposes. No election shall be made pursuant to Treasury Regulation ss. 1.7701-3
to treat the Company as an association taxable as a corporation. To the extent
the Company is not disregarded for any state, local or foreign income or
franchise tax purpose, or other tax purpose, the Company shall prepare and file
tax returns as necessary, and the Member (and its Affiliates) shall prepare tax
returns consistently with such tax returns.
11.2. ADDITIONAL MEMBERS. In the event an additional Member is
admitted to the Company, it is intended that the Company be treated as a
partnership for federal income tax purposes. In this case, the Company shall
prepare and file any required federal income tax or other returns, the Member
shall be the "Tax Matter Partner" under Section 6231(a)(7) of the Code and the
Company shall establish and maintain capital accounts for each Member in
accordance with Treasury Regulation ss. 1.704-1(b)(2)(iv).
11.3. TAXABLE YEAR. The taxable year of the Company shall be the
calendar year.
11.4. TAX ELECTIONS. All tax elections required or permitted to be
made under the Code and any applicable state, local or foreign tax law shall be
made in the discretion of the Member, and any decision with respect to the
treatment of Company transactions on the Company's state, local or foreign tax
returns shall be made in such
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manner as may be approved by the Member.
ARTICLE 12
LIMITATION ON MEMBER'S LIABILITY
Except as otherwise required in the LLC 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 the
Member shall not be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being the Member or participating
in the management of the Company. The failure of the Company to observe any
formalities or requirements relating to the exercise of its powers or management
of its business or affairs under the LLC Act or this Agreement shall not be
grounds for imposing personal liability on the Member for liabilities of the
Company.
ARTICLE 13
MISCELLANEOUS
13.1. AMENDMENTS TO LLC AGREEMENT. The terms and provisions of this
Agreement may be modified or amended at any time and from time to time by a
written instrument signed by the parties hereto.
13.2. BINDING EFFECTS; BENEFITS. This Agreement shall be binding upon
and inure to the benefit of the Member and its legal representatives, as
applicable. No Person other than the Member shall be entitled to any benefits
under the Agreement, except as otherwise expressly provided. Reference to any
Person (except for the Member) in this Agreement includes such Person's
successors and permitted assigns.
13.3. HEADINGS. The article, section and other headings of this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
13.4. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same agreement.
13.5. GOVERNING LAW. This Agreement shall be governed by and
construed both as to validity and enforceability in accordance with the laws of
the State of Delaware, without regard to the conflict of laws provisions
thereof.
13.6. SEPARABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to
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the extent of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms or provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction.
13.7. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreements,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Member has executed this Agreement as of the
date first above written.
PMD GROUP INC.
/s/ Xxxxx Xxxxxxxxx
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By: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
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APPENDIX I
DEFINITIONS
As used in the foregoing Agreement, the following terms shall have
the meanings set forth below:
"AFFILIATE" means, with respect to any Person, any other Person,
directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with such Person. The term "control," as
used in the immediately preceding sentence and elsewhere in the Agreement,
means, with respect to any Person, the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of the
controlled Person.
"CERTIFICATE OF FORMATION" means the limited liability certificate
of the Company and any amendments thereto.
"CODE" means the Internal Revenue Code of 1986, as amended, and
corresponding provisions of any subsequent United States federal revenue act.
"EVENT OF BANKRUPTCY" means (i) the filing by a Person of a
voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of its debts under Title 11 of the United States Code
or any other federal or state insolvency law, or a Person's filing an answer
consenting to or acquiescing in any such petition, (ii) the making by a Person
of any assignment for the benefit of its creditors, or the admission by such
Person in writing of its inability to pay debts as they become due, or (iii) the
expiration of 30 days after the filing of an involuntary petition under Title 11
of the United States Code, an application for the appointment of a receiver for
the assets of a Person, or an involuntary petition seeking liquidation,
reorganization, arrangement or readjustment of its debts under any other
federal, state or foreign insolvency law, provided that the same shall not have
been vacated, set aside or stayed within such 30-day period.
"FAIR MARKET VALUE" of an asset means, as of a given time, the fair
market value of such asset in an arms length sale transaction between a willing
seller and a willing buyer, as reasonably determined by the Member or its
designee, as of such time.
"IRS" means the United States Internal Revenue Service.
"LLC ACT" means the Delaware Limited Liability Company Act, as in
effect on the date of the Agreement and as amended thereafter from time to time.
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"MEMBER" means PMD Group Inc.
"NET PROFIT" and "NET LOSS" mean the taxable income or loss,
respectively, for a period as determined for federal income tax purposes,
computed with the following adjustments:
(i) tax-exempt income received by the Company and any gain
associated with the deemed sale of property on a distribution in kind shall be
treated, for purposes of this definition only, to be gross income; and
(ii) Section 705(a)(2)(B) Expenditures and any loss associated with the deemed
sale of property on a distribution in kind shall be treated, for purposes of
this definition only, as deductible expenses.
(iii) items of gain, loss and deduction relating to assets shall be computed
based upon the book values of the Company's assets rather than upon the assets'
adjusted basis for federal income tax purposes; and
(iv) if the book value of any asset of the Company is
adjusted pursuant to Treas. Reg.ss.1.704-1(b)(2)(iv)(f), the amount of such
adjustment shall be taken into account as gain or loss from the disposition
of such asset for purposes of computing Net Profit or Net Loss.
"PERSON" means any natural person, corporation, partnership, trust,
limited liability company, association or other entity.
"TRANSFER" means any direct or indirect sale, assignment, transfer,
pledge, encumbrance or hypothecation of an interest in the Company or, the grant
of a security interest in any interest in the Company.
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EXHIBIT A
CERTIFICATE OF LLC INTEREST
OF
PERFORMANCE MATERIALS II LLC
No. 001 100% INTEREST
Performance Materials II LLC, a limited liability company formed
under the laws of the State of Delaware (the "Company"), hereby certifies that
PMD Group Inc., is a member of the Company whose Limited Liability Company
interest ("LLC Interest") therein, as set forth in the Limited Liability Company
Agreement, dated as of ______________, 2001 (the "LLC Agreement") under which
the Company was organized and is operating (copies of which are available at the
principal office of the Company), represents a 100% LLC Interest in the Company.
The LLC Interest represented by this certificate (this "Certificate") shall be
governed by, and all of the terms and conditions of such LLC Interest are set
forth in, the LLC Agreement.
This Certificate when coupled with an assignment in the form set
forth on the Assignment attached hereto (or otherwise sufficient to convey an
interest in a limited liability company pursuant to the Delaware Limited
Liability Company Act), duly executed in blank or assigned to a named assignee,
may be used to transfer all or any portion of the LLC Interest evidenced by this
Certificate subject to the terms, conditions and restrictions of the LLC
Agreement.
This Certificate has not been registered under the Securities Act of
1933, as amended (the "Securities Act"), or any state securities laws. Neither
this Certificate nor the LLC Interest evidenced hereby, nor any participation
herein may be reoffered, sold, assigned, transferred, pledged, encumbered or
otherwise disposed of in the absence of such registration or unless such
transaction is exempt from, or not subject to, registration. The holder of this
Certificate by its acceptance hereof acknowledges that said LLC Interest is held
for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, or any
state securities laws. The holder of this Certificate by its acceptance hereof
further acknowledges the right of the Company prior to any such offer, sale or
transfer (I) to require the delivery of an opinion of counsel, certification
and/or other information satisfactory to the Company, and (II) in each of the
foregoing cases, to require that an assignment in the form appearing
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with this Certificate is completed and delivered by the offeror, seller or
transferor, as the case may be, to the Company in the form of the Assignment
appended hereto.
Dated: _______________
PMD GROUP, INC.
By:
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Name:
Title:
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF
ASSIGNEE)
the undersigned's LLC Interest* in Performance Materials II LLC, a Delaware
limited liability company (the "Company"), and irrevocably appoint(s)
___________________ as agent to transfer said LLC Interest in the Company. The
agent may substitute another to act for him.
I (We) further direct the Company to issue a new LLC Interest of a
like percentage amount to the above named assignee and deliver such LLC Interest
to the above address.
Employee Identification Number or other identifying number of Assignee:
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Dated: _______________
PMD GROUP, INC.
By:
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Name:
Title:
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* If less than all, specify portion of interest.
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