Exhibit 3.28
LIMITED LIABILITY COMPANY AGREEMENT
OF
ALLIANT AEROSPACE PROPULSION COMPANY LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT made and entered into as of
this 6th day of January, 2000 by Alliant Aerospace Company ("AAC");
WITNESSETH THAT:
WHEREAS, the Delaware Limited Liability Company Act, as amended (the
"Act"), permits the formation of a limited liability company with a single
member; and
WHEREAS, the undersigned has caused the formation of Alliant
Aerospace Propulsion Company LLC, a Delaware limited liability company (the
"Company"), of which the undersigned constitutes the sole member.
NOW, THEREFORE, the undersigned hereby adopts the following
Articles, which shall constitute the "limited liability company agreement" of
the Company within the meaning of Section 18-101(7) of the Act.
Article I.
General
Section 1.1. Ratification of Certificate of Formation, Etc. The
Member hereby adopts, approves and ratifies the execution and filing in the
office of the Secretary of State of the State of Delaware of the certificate of
formation of the Company by Xxxxx X. Xxxxxx (the "Certificate of Formation") and
acknowledges, approves and ratifies his designation as an "authorized person" of
the Company in the Certificate of Formation as contemplated by Section 18-201(a)
of the Act. This Agreement shall be effective as of the date of filing of the
Certificate of Formation in the office of the Secretary of State, and the Act
shall govern the rights, duties and obligations of the Member, except as
otherwise expressly stated herein.
Section 1.2. Name. The name of the Company shall be, and the
business of the Company shall be conducted under the name of, "Alliant Aerospace
Propulsion Company LLC."
Section 1.3. Principal Place of Business. The location of the
principal place of business of the Company shall be 0000 Xxxx 0000 Xxxxx, Xxxxx,
Xxxx 00000-0000 or such other place as the Board of Managers may from time to
time determine (the "Principal Office").
Section 1.4. Name and Address of Member. The name and address of the
Member are as set forth in Schedule A. The Secretary of the Company shall
maintain a Unit Transfer Record at the Principal Office of the Company. If the
Units held by the Member are
transferred as permitted in Section 4.2, the Secretary shall enter the name and
address of the new Member in the Unit Transfer Record.
Section 1.5. Term of Existence. The Company shall be formed as of
the time of the filing of the Certificate of Formation in the Office of the
Secretary of State of Delaware and its existence shall be perpetual, unless
earlier terminated, dissolved or liquidated in accordance with the provisions of
this Agreement.
Section 1.6. Agent for Service of Process. The name and address of
the agent for service of process is, until changed by the Board of Managers, The
Corporation Trust Company, located at Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
Section 1.7. Duties of Managers. Each Manager shall owe duties of
care and loyalty to the Company and the Member. A Manager shall not be
personally liable to the Company or the Member for monetary damages for breach
of fiduciary duty as a Manager, except (a) for any breach of the Manager's duty
of loyalty to the Company or the Member; (b) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law; or
(c) for any transaction from which such Manager derived an improper personal
benefit. No amendment to or repeal of the preceding sentence shall apply to or
have any effect on the liability or alleged liability of any Manager for or with
respect to acts or omissions of such Manager occurring prior to such amendment
or repeal.
Article II.
Definitions
Unless the context otherwise specifies or requires, the terms
defined in this Article II shall, for the purposes of this Agreement, have the
meanings herein specified. Certain other capitalized terms used herein are
defined elsewhere in the Agreement.
"Act" is defined in the introduction to Article I.
"Agreement" means this Limited Liability Company Agreement, as it
may be amended or supplemented from time to time.
"AAC" is defined in the introduction to Article I.
"Board of Managers" means the Board of Managers of the Company
established pursuant to Article VI.
"Capital Contribution" means the amount of money or the fair market
value of any property contributed to the Company by the Member pursuant to
Section 14.1.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder. All references in this Agreement to
a section of the Code
2
or the Treasury Regulations shall be considered to include any subsequent
amendment or replacement of that section.
"Company" means Alliant Aerospace Propulsion Company LLC, the
Delaware limited liability company formed pursuant to the filing of the
Certificate of Formation in Delaware and the terms of this Agreement.
"Company Assets" means all assets and property, whether tangible or
intangible and whether real, personal or mixed, at any time owned by the
Company.
"Indemnitee" is defined in Section 8.1.
"Manager" or "Managers" means the Person or Persons appointed to the
Board of Managers pursuant to Section 6.2.
"Member" means AAC or any other Person who becomes the Member as
permitted by Article IV.
"Named Officers" is defined in Section 7.1.
"Person" means any natural person, corporation, limited liability
company, association, partnership (whether general or limited), joint venture,
proprietorship, governmental agency, trust, estate, association, custodian,
nominee or any other individual or entity, whether acting in an individual,
fiduciary, representative or other capacity.
"Principal Office" is defined in Section 1.3.
"Treasury Regulations" or "Treas. Reg." refers to the regulations
promulgated by the United States Treasury Department under the Code.
"Units" means the interest of the Member in the Company, which Units
represent the ownership interest of the Member in the Company.
Article III.
Purpose and Character of the Business
The purpose and character of the business of the Company shall be to
undertake and carry on any lawful business, purpose or activity permitted under
the Act.
Article IV.
Members; Units; Distributions
Section 4.1. Initial Sole Member. AAC shall be the initial Member of
the Company and shall have all of the rights, powers and privileges of a member
under the Act. AAC initially shall hold the number of Units set forth in
Schedule A to this Agreement as
3
originally executed, which are issued in exchange for the capital contribution
set forth in said Schedule A, the receipt and sufficiency of which are hereby
acknowledged.
Section 4.2. Successor Sole Members. AAC or any successor Member may
transfer all, but not less than all, of the Units then held by it to another
Person by means of a written instrument in form and substance reasonably
satisfactory to the Board of Managers. Upon such transfer, the transferee shall
become the Member of the Company for all purposes of this Agreement and the Act.
Upon such transfer, the name and address of the new Member, the number of Units
held by such Member, and the capital contribution attributed to such Member
(which shall be the capital contribution attributed to the predecessor Member
immediately prior to such transfer) shall be entered by the Secretary on the
Unit Transfer Record.
Section 4.3. Issuance of Additional Units. The Board of Managers is
authorized to cause to be issued to the Member additional Units as may be
determined from time to time by the Board of Managers. Units may be issued for
any consideration, including, without limitation, cash or other property,
tangible or intangible, received or to be received by the Company or services
rendered or to be rendered to the Company, or for no consideration. At the time
of authorization of the issuance of additional Units, the Board of Managers
shall state, by resolution, its determination of the fair value to the Company
in monetary terms of any consideration other than cash for which Units are to be
issued. Upon such issuance, the Secretary shall make the Unit Transfer Record
reflect the issuance of such additional Units and the receipt of the capital
contribution, if any, therefor.
Section 4.4. Distributions to Member. Subject to any restrictions
imposed by the Act (including but not limited to Section 18-607), the Board of
Managers may authorize and cause the Company to make distributions to the Member
whenever, and in such amounts or forms as, in its opinion, are deemed advisable.
Article V.
Additional Members
The Company shall not have more than one Member at any one time
unless this Agreement is amended to make provision therefor.
Article VI.
Management and Operation of Company Business
Section 6.1. Board of Managers. The business and affairs of the
Company shall be managed by or under the authority of the Board of Managers,
except as otherwise required by the Act or this Agreement. The Managers, for and
on behalf of the Company, shall have full power and authority, in addition to
such powers and authorities as may be provided by law or elsewhere in this
Agreement, at the expense of the Company (by direct payment or reimbursement):
4
(a) to make, renew, amend, and cancel leases and other occupancy,
use, easement, and license agreements as to all or any part of the Company
property for such price or consideration, and on such terms, covenants, and
conditions as they deem advisable;
(b) to sell, exchange, assign, transfer, or convey and otherwise
dispose of or deal with all or any part of the Company property for such price
or consideration as they deem advisable;
(c) to borrow money, and as security therefor to mortgage or
otherwise hypothecate all or any part of the Company property, both real and
personal; to prepay in whole or in part, or refinance, recast, increase, modify,
renew or extend any such mortgage or secured loan, to agree to repay any loan
over a term extending longer than the stated term or extended term of the
Company; to execute mortgage notes, mortgages, collateral assignments of rents
and leases, tax and insurance escrow agreements, and do all such other things in
such form and manner as may be required by any lender; to assign and convey
Company property to a nominee for the purpose of mortgage financing and to
reacquire the Company property from such nominee;
(d) to build upon, remodel, add on, demolish, rebuild and otherwise
alter or improve any Company property and any structures and improvements
thereon;
(e) to purchase, lease, or otherwise acquire the ownership or
possession of real property, whether improved or unimproved;
(f) to employ from time to time persons, firms, or corporations for
the operation and management of the Company business or property; and
(g) to do all other things and acts, though not expressly
authorized, as may be reasonably necessary, advisable, or incidental to
effectuate any of the foregoing, and to make, execute, and deliver such
instruments and documents as may be necessary, advisable, or incidental to carry
out the foregoing.
Section 6.2. Number, Qualification; Term of Office; Vote. The number
of members of the initial Board of Managers shall be that number of persons
named as members of the initial Board of Managers in Section 6.3. Each Manager
shall be appointed from time to time by the sole Member. A Manager shall hold
office until such Manager's successor shall have been elected, or until the
earlier death, resignation, removal or disqualification of such Manager. The
Member may increase or decrease the number of Managers at any time or from time
to time. At any time at which there is more than one Manager, each Manager shall
have one vote on all matters to come before the Board of Managers. The
provisions of Sections 6.4 through 6.10 apply (i) when more than one Manager is
serving and (ii) with respect to any committee established by the Board of
Managers except with respect to the committee quorum requirement specified in
Section 6.14(b).
5
Section 6.3. Initial Board. The initial Board of Managers shall be
comprised of the following individuals:
Xxxxx X. Xxxxxx
Xxxx Xxxxx Xxxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxxx
Section 6.4. Place of Meetings. Meetings of the Board of Managers
shall be held at the principal executive office of the Company or at such other
place as may be agreed by the Managers from time to time.
Section 6.5. Calling of Meetings. A meeting of the Board of Managers
may be called for any purpose or purposes at any time by the Chairman or any
other Manager or by the Member.
Section 6.6. Adjournments. Any meeting of the Board of Managers may
be adjourned from time to time to another date, time and place. If any meeting
of the Board of Managers 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 6.7. Notice of Meetings. Unless otherwise required by law,
written or oral notice of each meeting of the Board of Managers, stating the
date, time and place, shall be given at least 24 hours prior to the meeting to
every member of the Board of Managers; provided, that a meeting may be called on
such shorter notice as the person calling such meeting may deem necessary or
appropriate in the circumstances. A member of the Board of Managers may waive
notice of the date, time, and place of a meeting of the Board of Managers. A
waiver of notice is effective whether given before, at or after the meeting, and
whether given in writing, orally or by attendance. Attendance by a member of the
Board of Managers 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 6.8. Quorum. Members of the Board of Managers representing
one-third of all votes held by the members of the Board of Managers shall
constitute a quorum for the transaction of business at each meeting of the Board
of Managers.
Section 6.9. Absent Members. A member of the Board of Managers may
give advance written consent or opposition to a proposal to be acted on at a
meeting of the Board of Managers. If such member is not present at the meeting,
such consent or opposition to a proposal does not constitute presence for
purposes of determining the existence of a quorum, but such consent or
opposition shall be counted as a vote in favor of or against the proposal and
shall
6
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 member has consented or objected.
Section 6.10. Conference Communications. Any or all of the members
of the Board of Managers may participate in any meeting of the Board of
Managers, or of any duly constituted committee thereof, by any means of
communication through which such members may simultaneously hear each other
during such meeting. For the purposes of establishing a quorum and taking any
action at the meeting, members of the Board of Managers participating pursuant
to this Section 6.10 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
Section 6.11. Removal. Any Manager may be removed from office at any
time, with or without cause, by the action of the Member.
Section 6.12. Acts of Managers. Except as otherwise provided herein
or in applicable law, the Board of Managers shall take action by the affirmative
vote of (i) the sole Manager or (ii) a majority of the Managers present at a
meeting at which a quorum is present, as the case may be, and any such act shall
be deemed to be the action of the Board of Managers for all purposes of this
Agreement and the Act.
Section 6.13. Written Action. Any action which might be taken by the
sole Manager or at a meeting of the Board of Managers, or any duly constituted
committee thereof, may be taken without a meeting if done in writing and signed
by, as the case may be, the sole Manager or a majority of the members of the
Board of Managers or of such committee members.
Section 6.14. Committees.
(a) A resolution approved by the Board of Managers may establish
committees having the authority of the Board of Managers in the management of
the business of the Company to the extent provided in the resolution. A
committee shall consist of one or more Persons, who need not be members of the
Board of Managers. Committees are subject to the direction and control of, and
vacancies in the membership thereof shall be filled by, the Board of Managers.
(b) A majority of the members of a committee present at a meeting is
a quorum for the transaction of business, unless a larger or smaller proportion
or number is provided in the resolution of the Board of Managers creating the
committee.
Article VII.
Officers
Section 7.1. Number. The officers of the Company, all of whom shall
be natural persons, shall consist of a Chairman, a President, one or more Vice
Presidents, if elected,
7
a Secretary and a Treasurer ("Named Officers"), and any other officers and
agents as the Board of Managers may designate from time to time. Any person may
hold two or more offices.
Section 7.2. Election, Term of Office and Qualifications. Officers
may be elected from time to time by the Board of Managers. Each of the Chairman
and the President shall have the power to appoint officers, other than the
Chairman, President, Secretary and Treasurer. The term of each officer elected
by the Board of Managers shall be until their successor is elected and qualified
unless sooner terminated as provided in this Agreement or by law, or until their
office is eliminated by amendment of this Agreement, in the case of the Named
Officers, or by action of the Board of Managers, in the case of officers other
than the Named Officers. The term of each officer appointed by the Chairman or
the President shall be until terminated as provided in this Agreement or by law,
or until their office is eliminated by amendment of this Agreement, in the case
of the Named Officers, or by action of the Board of Managers, in the case of
officers other than the Named Officers. The term of an officer who is a Manager
shall not be affected by the termination of the officer's Managership.
Section 7.3. Removal and Vacancies. Any officer may be removed from
his or her office with or without cause by action of the Board of Managers; and
any officer appointed by either the Chairman or the President may also be
removed from his or her office with or without cause by action of either the
Chairman or the President. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed. A vacancy among the officers
by death, resignation, removal or otherwise shall be filled for the unexpired
term by the Board of Managers, unless such office is eliminated.
Section 7.4. Chairman. The Chairman shall preside at all meetings of
the Member and Managers and shall have such other duties as may be prescribed,
from time to time, by the Board of Managers. The Chairman shall be a Manager and
shall be elected by the Board of Managers. The initial Chairman shall be Xxxx X.
Xxxx.
Section 7.5. President.
(a) Day-to-Day Operations. The Company shall be managed by a
President. The Board of Managers delegates to the President the authority to
oversee and supervise the Company's business. Except as otherwise provided in
this Agreement, the President shall be authorized to determine all questions
relating to the day-to-day conduct, operation and management of the business of
the Company. The President shall be responsible to the Board of Managers.
(b) General. The President shall be entitled to delegate such part
of his or her duties as he or she may deem reasonable or necessary in the
conduct of the business of the Company to one or more employees of the Company,
who shall each have such duties and authority as shall be determined from time
to time by the President or as may be set forth in any agreement between such
employee and the Company.
8
(c) Election. The President shall be elected by the Board of
Managers and shall receive such compensation as may be determined from time to
time by the Board of Managers or as shall be set forth in a written agreement
approved by the Board of Managers. The initial President shall be Xxxxxxx X.
Xxxxx.
Section 7.6. Secretary. The Secretary shall be secretary of and
shall attend all meetings of the Member and Board of Managers and shall record
all proceedings of such meetings in the minute book of the Company. He or she
shall give proper notice of meetings of Member and the Board of Managers. He or
she shall perform such other duties as may from time to time be prescribed by
the Board of Managers. The initial Secretary shall be Xxxxx X. Xxxxxx.
Section 7.7. Treasurer. The Treasurer shall keep or cause to be kept
accurate accounts of all moneys of the Company received or disbursed. He or she
shall deposit or cause to be deposited all moneys, drafts and checks in the name
of and to the credit of the Company in such banks and depositories as the Board
of Managers shall from time to time designate. He or she shall have power to
endorse or cause to be endorsed for deposit or collection all notes, checks and
drafts received by the Company. He or she shall disburse or cause to be
disbursed the funds of the Company as ordered by the President, making proper
vouchers therefor. He or she shall render to the Board of Managers whenever
required an account of all his or her transactions as Treasurer and of the
financial condition of the Company and shall perform such other duties as may
from time to time be prescribed by the Board of Managers. The initial Treasurer
shall be Xxxxxx X. Xxxx III.
Section 7.8. Duties of Other Officers. The duties of such other
officers and agents as the Board of Managers may designate, or as the Chairman
or the President may appoint, shall be as set forth in a resolution approved by
the Board of Managers or as determined from time to time by the Chairman or the
President. Initially, the Company shall have four (4) Vice Presidents who shall
be Xxxxxx X. Xxxx III, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxx, and Xxxxx X.
Xxxxxxxxxxxx. Such Vice Presidents shall have such duties as are determined from
time to time by the President.
Section 7.9. Compensation. The officers, agents and employees of the
Company other than the President shall receive such compensation for their
services as may be determined from time to time by the Board of Managers or the
President or as shall be set forth in a written agreement approved by the Board
of Managers or the President.
Article VIII.
Indemnification
Section 8.1. Indemnification.
(a) To the fullest extent permitted by law, each Manager and Named
Officer (individually, an "Indemnitee") shall be indemnified, held harmless and
defended by the Company from and against any and all losses, claims, damages,
liabilities, whether joint or several, expenses (including legal fees and
expenses), judgments, fines and other amounts paid in
9
settlement, incurred or suffered by such Indemnitee, as a party or otherwise, in
connection with any threatened, pending or completed claim, demand, action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal, arising out of or in connection with the business or
the operation of the Company and by reason of the Indemnitee's status as a
Manager or Named Officer regardless of whether the Indemnitee continues to be a
Manager or Named Officer of the Company at the time any such loss, claim,
damage, liability or other expense is paid or incurred if (i) the Indemnitee
acted in good faith and in a manner he or she reasonably believed to be in the
best interests of the Company and, with respect to any criminal proceeding, had
no reasonable cause to believe that his or her conduct was unlawful, (ii) the
Indemnitee's conduct did not constitute intentional misconduct or a material
breach of the terms of this Agreement and (iii) the Indemnitee's conduct did not
involve a transaction from which the Manager or Named Officer derived an
improper personal benefit. The termination of any action, suit or proceeding by
judgment, order, settlement or upon a plea of nolo contendere, or its
equivalent, shall not, of itself, create a presumption that the Indemnitee acted
in a manner contrary to the standards specified in clauses (i), (ii) or (iii) of
this Section 8.1(a).
(b) To the fullest extent permitted by law, expenses incurred by an
Indemnitee in defending any claim, demand, action, suit or proceeding subject to
this Section 8.1 shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Company of an undertaking by or on behalf of the Indemnitee to
repay such amount unless it is determined that such Indemnitee is entitled to be
indemnified therefor pursuant to this Section 8.1.
(c) The indemnification provided by this Section 8.1 shall be in
addition to any other rights to which any Indemnitee may be entitled under any
other agreement, pursuant to any vote of the Managers, as a matter of law or
otherwise, and shall inure to the benefit of the heirs, legal representatives,
successors, assigns and administrators of the Indemnities.
(d) Any indemnification under this Section 8.1 shall be satisfied
solely out of the assets of the Company and no Indemnitee shall have any
recourse against the Member with respect to such indemnification.
(e) An Indemnitee shall not be denied indemnification in whole or in
part under this Section 8.1 merely because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies, if the
transaction was not otherwise prohibited by the terms of this Agreement and the
conduct of the Indemnitee satisfied the conditions set forth in Section 8.1(a).
(f) The Company may, but shall have no obligation to, purchase and
maintain insurance covering any potential liability of the Indemnitees for any
actions or omissions for which indemnification is permitted hereunder, including
such types of insurance (including extended coverage liability and casualty and
workers' compensation) as would be customary for any person engaged in a similar
business, and may name the Indemnitees as additional insured parties thereunder.
10
Section 8.2. Indemnification Procedures; Survival.
(a) An Indemnitee shall notify the Company in writing within 30 days
after receipt by the Indemnitee of notice of the commencement of any action that
may result in a claim for indemnification pursuant to Section 8.1; provided,
however, that any omission so to notify the Company will not relieve it of any
liability for indemnification hereunder as to the particular item for which
indemnification may then be sought (except to the extent that the failure to
give notice shall have been materially prejudicial to the Company) nor from any
other liability that it may have to any Indemnitee.
(b) An Indemnitee shall have the right to employ separate counsel in
any action as to which indemnification may be sought under any provision of this
Agreement and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnitee unless (i) the
Company has agreed in writing to pay such fees and expenses, (ii) the Company
has failed to assume the defense thereof and employ counsel within a reasonable
period of time after being given the notice required above or (iii) the
Indemnitee shall have been advised by its counsel that representation of such
Indemnitee and other parties by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them. It is understood, however, that the Company shall, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys at any time for all such Indemnitees having
actual or potential differing interests with the Company, unless but only to the
extent, the Indemnitees have actual or potential differing interests with each
other.
(c) The Company shall not be liable for any settlement of any such
action effected without its written consent, but if settled with such written
consent, or if there is a final judgment against the Indemnitee in any such
action, the Company agrees to indemnify and hold harmless the Indemnitee to the
extent provided above from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(d) The indemnification obligations set forth in Section 8.1 and
this Section 8.2 shall survive the termination of this Agreement.
Article IX.
Certificates
Each interest in the Company (or Unit) shall be represented by a
certificate, shall be a "security" within the meaning of Article 8 of the New
York Uniform Commercial Code (the "NYUCC") and shall be governed by Article 8 of
the NYUCC. A sample certificate is attached hereto as Exhibit A.
Article X.
Books of Account; Reports and Fiscal Matters
11
The Company shall maintain such books of account and such financial
information as may be required by the Member and the Act. The Member or a
designee shall retain a copy of this Agreement and all written actions of the
Member and the Board of Managers at the Principal Office or at such other place
as the Member may designate. The fiscal year of the Company shall end on March
31.
Article XI.
Amendment
The Certificate of Formation and this Agreement may be amended by
the Member. Any amendment of this Agreement shall be in writing and a copy
thereof shall be kept with a copy of this Agreement at the Principal Office of
the Company.
Article XII.
Liability; Tax Status
Section 12.1. Liability of the Member. Except as otherwise provided
in the Act, the Member, as such, shall have no personal liability whatsoever to
the Company or any of the creditors of the Company for the debts, liabilities,
contracts or other obligations of the Company or any of the Company's losses
beyond the Member's Capital Contribution and, solely to the extent and for the
period required by applicable law, the amount of the Member's Capital
Contribution, if any, which is returned to it.
Section 12.2. Tax Status. The Member intends that the Company will
be classified solely for federal income tax purposes as an "eligible entity"
that is disregarded as an entity separate from its owner as provided in Treasury
Regulations Section 301.7701-3(a).
Article XIII.
Dissolution and Liquidation
Section 13.1. Events of Dissolution. The Company shall be dissolved
upon the occurrence of any of the following events:
(a) The written consent of the Member; or
(b) The entry of a decree of judicial dissolution under
Section 18-802 of the Act.
Section 13.2. Continuation of Business. Upon the occurrence of any
event described in Section 18-801(4) of the Act, or any successor provision, the
Company shall continue unless dissolved by the Member pursuant to Section
13.1(a).
Section 13.3. Liquidation and Winding Up. If dissolution of the
Company should be caused by reason of any of the events set forth in paragraphs
(a) or (b) of Section 13.1 hereof, the Company shall be liquidated and the
Person designated at such time by the Board of
12
Managers (or other Person or Persons designated by a decree of court) shall wind
up the affairs of the Company. The Person or Persons winding up the affairs of
the Company shall promptly proceed to the liquidation of the Company Assets and,
in settling the accounts of the Company, the Company Assets shall be distributed
in the following order of priority:
(a) To creditors to the extent otherwise permitted by law, in
satisfaction of liabilities of the Company (whether by payment or the making of
reasonable provision for payment thereof), other than liabilities for which
reasonable provision for payment has been made and liabilities for distributions
to the Member;
(b) To the repayment of outstanding loans from the Member to the
Company; and
(c) The balance, if any, to the Member.
Article XIV.
Capital
Section 14.1. Capital Contributions. The Member shall make such
Capital Contributions as it may determine from time to time. Such Capital
Contributions may be made in exchange for the issuance of additional Units or
otherwise. The Unit Transfer Record shall reflect the making of such Capital
Contributions.
Section 14.2. Loans to the Company. The Member may make loans to the
Company from time to time. Any such loans shall not be treated as Capital
Contributions to the Company for any purpose hereunder, but the Company shall be
obligated to the Member for the amount of any such loans pursuant to the terms
thereof.
Section 14.3. Creditor's Interest in the Company. No creditor who
makes a loan to the Company shall have or acquire at any time as a result of
making the loan any direct or indirect interest in the profits, capital or
property of the Company, other than such interest as may be accorded to a
secured creditor. Notwithstanding the foregoing, this provision shall not
prohibit in any manner whatsoever a secured creditor from participating in the
profits of operation or gross or net sales of the Company or in the gain on sale
or refinancing of the Company, all as may be provided in its loan or security
agreements.
Article XV.
Allocation of Income, Gains and Losses;
Distributions
The income, profits, gains, losses tax credits of the Company and
distributions of cash or property of the Company to the Member shall be treated
for federal income tax purposes as if the Company were a division of the Member
in accordance with Treasury Regulation Section 301.7701-2(a).
13
Article XVI.
Miscellaneous Provisions
Section 16.1. Pronouns. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural,
as the identity of the person or entity may require.
Section 16.2. Headings. Article and Section headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
Section 16.3. Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
Delaware (but not including the choice of law rules thereof).
IN WITNESS WHEREOF, the undersigned has executed this Agreement as
of the date first above written.
ALLIANT AEROSPACE COMPANY
By /s/ Xxxxx X. Xxxxxx
-------------------
Its Vice President and Secretary
14
SCHEDULE A
Name and Address of Capital Agreed Fair
Member Contribution Market Value Units
------ ------------ ------------ -----
Alliant Aerospace Company $1,000 100
0000 Xxxx 0000 Xxxxx
Xxxxx, XX 00000-0000
