EXHIBIT 3.6
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VIASYSTEMS TECHNOLOGIES CORP., L.L.C.
(A Delaware Limited Liability Company)
LIMITED LIABILITY COMPANY AGREEMENT
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Dated as of December 21, 1998
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COMPANY INTERESTS ARE SUBJECT TO TRANSFER RESTRICTIONS.
TABLE OF CONTENTS
PAGE
ARTICLE 1 ORGANIZATION...............................................................................1
1.1 Formation of Company...........................................................................1
1.2 Name...........................................................................................1
1.3 Character of Business..........................................................................1
1.4 Registered Office and Agent....................................................................1
1.5 Fiscal Year....................................................................................1
ARTICLE 2 CAPITAL CONTRIBUTIONS......................................................................1
2.1 Capital Contributions to the Company...........................................................1
2.2 No Return of Capital Contributions.............................................................2
2.3 No Interest....................................................................................2
ARTICLE 3 RIGHTS AND OBLIGATIONS OF MEMBERS..........................................................2
3.1 Management of Company..........................................................................2
3.2 Liability of Members...........................................................................2
3.3 Other Activities of Members....................................................................2
ARTICLE 4 EXCULPATION AND INDEMNITY..................................................................2
4.1 Exculpation....................................................................................2
4.2 Indemnity......................................................................................2
4.3 Amendment......................................................................................3
ARTICLE 5 DISTRIBUTIONS AND ALLOCATIONS..............................................................3
5.1 Distributions..................................................................................3
5.2 Tax Allocations................................................................................3
ARTICLE 6 ADMISSIONS, TRANSFERS, AND WITHDRAWALS.....................................................4
6.1 Admission of New Members.......................................................................4
6.2 Transfer of Company Interests..................................................................4
6.3 No Substituted Members.........................................................................4
6.4 Withdrawal of Members..........................................................................4
6.5 Consent........................................................................................5
ARTICLE 7 ACCOUNTING PROVISIONS AND REPORTS..........................................................5
7.1 Books of Account; Tax Returns..................................................................5
TABLE OF CONTENTS
(CONTINUED)
PAGE
7.2 Place Kept; Inspection.........................................................................5
7.3 Tax Matters Member.............................................................................5
ARTICLE 8 BOARD OF DIRECTORS.........................................................................5
8.1 Management.....................................................................................5
8.2 Number; Qualification; Election; Term..........................................................5
8.3 Change in Number...............................................................................6
8.4 Removal........................................................................................6
8.5 Vacancies......................................................................................6
8.6 Meetings of Directors..........................................................................6
8.7 First Meeting..................................................................................6
8.8 Election of Officers...........................................................................6
8.9 Regular Meetings...............................................................................6
8.10 Special Meetings...............................................................................6
8.11 Notice.........................................................................................6
8.12 Quorum; Majority Vote..........................................................................7
8.13 Procedure......................................................................................7
8.14 Presumption of Assent..........................................................................7
8.15 Compensation...................................................................................7
8.16 Action by Written Consent......................................................................7
8.17 Telephone and Similar Meetings.................................................................7
8.18 Committees.....................................................................................8
8.18.1 Designation...........................................................................8
8.18.2 Number; Qualification; Term...........................................................8
8.18.3 Authority.............................................................................8
8.18.4 Committee Changes.....................................................................8
8.18.5 Alternate Members of Committees.......................................................8
8.18.6 Regular Meetings......................................................................8
8.18.7 Special Meetings......................................................................8
8.18.8 Quorum; Majority Vote.................................................................8
TABLE OF CONTENTS
(CONTINUED)
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8.18.9 Minutes...............................................................................9
8.18.10 Compensation..........................................................................9
8.18.11 Responsibility........................................................................9
ARTICLE 9 OFFICERS AND OTHER AGENTS..................................................................9
9.1 Number; Titles; Term of Office.................................................................9
9.2 Removal........................................................................................9
9.3 Vacancies......................................................................................9
9.4 Authority......................................................................................9
9.5 Compensation...................................................................................9
9.6 Chairman of the Board..........................................................................9
9.7 President......................................................................................9
9.8 Vice Presidents...............................................................................10
9.9 Treasurer.....................................................................................10
9.10 Assistant Treasurers..........................................................................10
9.11 Secretary.....................................................................................10
9.12 Assistant Secretaries.........................................................................10
ARTICLE 10 MEETINGS OF MEMBERS.......................................................................11
10.1 Place of Meetings.............................................................................11
10.2 Annual Meeting................................................................................11
10.3 Special Meetings..............................................................................11
10.4 Notice and Waiver Thereof.....................................................................11
10.5 Quorum........................................................................................11
10.6 Voting........................................................................................11
10.6.1 Voting and Voting Power..............................................................11
10.6.2 Voting on Matters Other than the Election of Directors...............................11
10.6.3 Change in Voting Percentages.........................................................12
10.7 Record Date...................................................................................12
10.8 Voting Lists..................................................................................12
10.9 Adjournment...................................................................................12
TABLE OF CONTENTS
(CONTINUED)
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10.10 Proxies.......................................................................................12
10.11 Conduct of Meeting............................................................................13
10.12 Action by Written Consent.....................................................................13
10.13 Telephone and Similar Meetings................................................................13
ARTICLE 11 AMENDMENTS AND WAIVERS....................................................................13
11.1 With Member Consent...........................................................................13
11.2 Without Member Consent........................................................................13
11.3 Certain Other Amendments......................................................................14
ARTICLE 12 DISSOLUTION AND TERMINATION...............................................................14
12.1 Dissolution...................................................................................14
12.2 Accounting on Dissolution.....................................................................15
12.3 Termination...................................................................................15
12.4 No Negative Capital Account Obligation........................................................15
12.5 No Other Cause of Dissolution.................................................................15
12.6 Merger........................................................................................15
ARTICLE 13 MISCELLANEOUS.............................................................................15
13.1 Waiver of Partition...........................................................................15
13.2 Entire Agreement..............................................................................15
13.3 Severability..................................................................................16
13.4 Notices.......................................................................................16
13.5 Governing Laws................................................................................16
13.6 Successors and Assigns........................................................................16
13.7 Counterparts..................................................................................16
13.8 Headings......................................................................................16
13.9 Other Terms...................................................................................16
13.10 Power of Attorney.............................................................................16
13.11 INDEMNIFICATION...............................................................................17
VIASYSTEMS TECHNOLOGIES, L.L.C.
LIMITED LIABILITY COMPANY AGREEMENT
This
Limited Liability Company Agreement ("Agreement") of Viasystems
Technologies Corp., L.L.C., a
Delaware limited liability company ("Company"), is
made effective as of December 21, 1998 ("Effective Date") by Viasystems, Inc., a
Delaware corporation, as the sole member of the Company (the "Member", and,
together with any new Members admitted pursuant to Section 6.1, the "Members").
ARTICLE 1
ORGANIZATION
1.1 FORMATION OF COMPANY. The Member has formed a limited liability
company pursuant to and in accordance with the provisions of the
Delaware
Limited Liability Company Act (6 Del.C. Section 18-101, et seq., as amended as
from time to time ("Act")), by the filing of a certificate of formation of the
limited liability company with the office of the Secretary of State of
Delaware
(the "Certificate").
1.2 NAME. The name of the Company is Viasystems Technologies Corp.,
L.L.C. The Board of Directors (as defined in Section 8.1 may change the name of
the Company from time to time. In any such event, the Company shall promptly
file in the office of the Secretary of State of
Delaware an amendment to the
Company's Certificate reflecting such change of name.
1.3 CHARACTER OF BUSINESS. The purpose of the Company shall be to
engage in such business as may be conducted by a limited liability company
organized under the laws of the State of
Delaware.
1.4 REGISTERED OFFICE AND AGENT. The name and address of the Company's
initial registered agent are The Corporation Trust Center 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx. The Company's initial principal place
of business shall be 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx
00000. The Board of Directors may change such registered agent, registered
office, or principal place of business from time to time. The Company may from
time to time have such other place or places of business within or without the
State of Missouri as may be determined by the Board of Directors.
1.5 FISCAL YEAR. The fiscal year of the Company shall end on December
31 of each calendar year unless, for United States federal income tax purposes,
another fiscal year is required. The Company shall have the same fiscal year for
United States federal income tax purposes and for accounting purposes.
ARTICLE 2
CAPITAL CONTRIBUTIONS
2.1 CAPITAL CONTRIBUTIONS TO THE COMPANY. The Members shall contribute
capital to the Company in the amounts respectively set forth opposite their
names on Schedule I to this Agreement. No Member shall be obligated to make any
additional capital contributions to the Company.
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2.2 NO RETURN OF CAPITAL CONTRIBUTIONS. No Member is entitled to a
withdrawal or return of its capital contributions. Instead, each Member shall
look solely to distributions from the Company for such purpose.
2.3 NO INTEREST. No Member shall be entitled to interest on its capital
contributions, and any interest actually received by reason of investment of any
part of the Company's funds shall be included in the Company's property.
ARTICLE 3
RIGHTS AND OBLIGATIONS OF MEMBERS
3.1 MANAGEMENT OF COMPANY. The management, control, and direction of
the Company and its operations, business, and affairs shall in accordance with
the provisions of Articles 8 and 9 hereof.
3.2 LIABILITY OF MEMBERS. The Members shall not be personally liable
for the debts and obligations of the Company.
3.3 OTHER ACTIVITIES OF MEMBERS. Neither this Agreement nor any
principle of law or equity shall preclude or limit, in any respect, the right of
any Member or any affiliate thereof to engage in or derive profit or
compensation from any activities or investments, nor give any other Member any
right to participate or share in such activities or investments or any profit or
compensation derived therefrom.
ARTICLE 4
EXCULPATION AND INDEMNITY
4.1 EXCULPATION. No Member, nor any officer, director, employee, agent,
stockholder, member, or partner of any Member or any of their affiliates, shall
be liable, responsible, or accountable in damages or otherwise to the Company or
any other Member by reason of, or arising from, the operations, business, or
affairs of, or any action taken or failure to act on behalf of, the Company,
except to the extent that any of the foregoing is determined, by a final,
nonappealable order of a court of competent jurisdiction, to have been primarily
caused by the gross negligence, willful misconduct, or bad faith of the person
claiming exculpation.
4.2 INDEMNITY. THE COMPANY SHALL INDEMNIFY EACH MEMBER, EACH AFFILIATE
OF THE MEMBERS, EACH OFFICER, DIRECTOR, EMPLOYEE AND AGENT OF THE COMPANY AND
EACH OFFICER, DIRECTOR, STOCKHOLDER, MEMBER, PARTNER, EMPLOYEE, OR AGENT OF SUCH
MEMBERS OR ANY OF THEIR AFFILIATES, AGAINST ANY CLAIM, LOSS, DAMAGE, LIABILITY,
OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES, COURT COSTS, AND COSTS OF
INVESTIGATION AND APPEAL) SUFFERED OR INCURRED BY ANY SUCH INDEMNITEE BY REASON
OF, OR ARISING FROM, THE OPERATIONS, BUSINESS, OR AFFAIRS OF, OR ANY ACTION
TAKEN OR FAILURE TO ACT ON BEHALF OF, THE COMPANY, EXCEPT TO THE EXTENT ANY OF
THE FOREGOING (I) IS DETERMINED BY FINAL, NONAPPEALABLE ORDER OF A COURT OF
COMPETENT JURISDICTION TO HAVE BEEN PRIMARILY CAUSED BY THE GROSS NEGLIGENCE,
WILLFUL MISCONDUCT, OR BAD FAITH OF THE PERSON CLAIMING INDEMNIFICATION OR (II)
IS SUFFERED OR INCURRED AS A RESULT OF ANY CLAIM (OTHER THAN A CLAIM FOR
INDEMNIFICATION UNDER THIS AGREEMENT) ASSERTED BY THE
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INDEMNITEE AS PLAINTIFF AGAINST THE COMPANY. Unless a determination has been
made (by final, nonappealable order of a court of competent jurisdiction) that
indemnification is not required, the Company shall, upon the request of any
indemnitee, advance or promptly reimburse such indemnitee's reasonable costs of
investigation, litigation, or appeal, including reasonable attorneys' fees;
provided, however, that the affected indemnitee shall, as a condition of such
indemnitee's right to receive such advances and reimbursements, undertake in
writing to repay promptly the Company for all such advancements or
reimbursements if a court of competent jurisdiction determines that such
indemnitee is not then entitled to indemnification under this Section 4.2. The
rights conferred above shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, by-law, resolution of
Members or directors, agreement or otherwise.
4.3 AMENDMENT. Any repeal or amendment of Section 4.1 or 4.2 by the
members shall be prospective only, and shall not adversely affect any
limitations on personal liability or right to indemnification arising from an
act or omission occurring prior to the time of such repeal or amendment.
ARTICLE 5
DISTRIBUTIONS AND ALLOCATIONS
5.1 DISTRIBUTIONS. All cash of the Company (other than cash resulting
from capital contributions) shall be distributed to the Members promptly
following receipt, and any or all other Company property shall be distributed at
such time or times (if any) as the Board of Directors determine; provided,
however, that distributions of cash or other property of the Company shall be
made only in amounts which exceed any reserves (allocated among the Members in
accordance with their respective distributive interests in the cash or property
to which such reserves relate) that the Board of Directors from time to time
determine are required or are reasonably appropriate to be retained to meet any
accrued or foreseeable expenses, expenditures, liabilities, or other obligations
of the Company. All distributions of cash or other property of the Company shall
be made in accordance with the Members' respective sharing ratios (each, a
"Sharing Ratio" and, collectively, the "Sharing Ratios") and membership
interests (each, a "Membership Interest" and, collectively, the "Membership
Interests"), as from time to time set forth on Schedule I to this Agreement.
5.2 TAX ALLOCATIONS. For United States federal income tax purposes,
allocations of items of income, gain, loss, deduction, expense, and credit for
each fiscal year of the Company shall be in accordance with each Member's
economic interest in the respective item, as determined by the Members pursuant
to Section 704(b) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the regulations promulgated thereunder and subject to the requirements of
Section 704(c) of the Code and the regulations promulgated thereunder. Unless
the Members determine otherwise, allocations shall be made to each Member in the
same manner as such Member (i) would be required to contribute to the Company or
(ii) would receive as distributions if the Company were to liquidate the assets
of the Company at their book value and distribute the proceeds in accordance
with Section 5.1; provided, however, that if any such allocation is not
permitted by applicable law, the Company's subsequent income, gain, loss,
deduction, expense, and credit shall be allocated among the Members so as to
reflect as nearly as possible the allocation used in computing capital accounts.
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ARTICLE 6
ADMISSIONS, TRANSFERS, AND WITHDRAWALS
6.1 ADMISSION OF NEW MEMBERS. After the Effective Date, new Members may
be admitted to the Company only with the written consent of, and upon such terms
and conditions as are approved by, the Members then representing a majority in
interest of the Sharing Ratios and Membership Interests of all the Members.
6.2 TRANSFER OF COMPANY INTERESTS.
(a) No Transfers Without Consent. No Member may transfer or
encumber all or any portion of such Member's interest in the Company without the
prior written consent of the Members then representing a majority in interest of
the Sharing Ratios and Membership Interests of all the Members (excluding the
transferring or encumbering Member and his or its affiliates).
(b) Death, Bankruptcy, etc. of Member. In the event of the
death, incompetence, insolvency, bankruptcy, termination, liquidation, or
dissolution of any Member:
(i) the Company shall not be terminated or dissolved,
and the remaining Members shall continue the Company and its operations,
business, and affairs until the dissolution thereof as provided in Section 12.1
of this Agreement;
(ii) such affected Member shall thereupon cease to be
a Member for all purposes of this Agreement and no officer, partner,
beneficiary, creditor, trustee, receiver, fiduciary, or other legal
representative and no estate or other successor in interest of such Member
(whether by operation of law or otherwise) shall become or be deemed to become a
Member for any purpose under this Agreement;
(iii) the Company interest of such affected Member
shall not be subject to withdrawal or redemption in whole or in part prior to
the dissolution, liquidation, and termination of the Company;
(iv) the estate or other successor in interest of
such affected Member shall be deemed a transferee of, and shall be subject to
all of the obligations with respect to, the Company interest of such affected
Member as of the date of death, incompetence, insolvency, bankruptcy,
termination, liquidation, or dissolution, except to the extent the Members
release such estate or successor from such obligations; and
(v) any legal representative or successor in interest
having lawful ownership of the assigned Company interest of such affected Member
shall have the right to receive notices, reports, and distributions, if any, to
the same extent as would have been available to such affected Member.
6.3 NO SUBSTITUTED MEMBERS. Except with the consent of all the Members,
no transferee of any Membership Interest in the Company may become a substituted
Member.
6.4 WITHDRAWAL OF MEMBERS. Except as permitted by Section 6.2 hereof,
no Member shall have any right to withdraw or resign from the Company.
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6.5 CONSENT. Any Member whose consent is required or permitted pursuant
to this Article 6 may give or withhold (whether reasonably or unreasonably) such
consent in the sole discretion of such Member.
ARTICLE 7
ACCOUNTING PROVISIONS AND REPORTS
7.1 BOOKS OF ACCOUNT; TAX RETURNS. The Members shall cause to be
prepared and filed, all United States federal, state, and local income and other
tax returns required to be filed by the Company and shall keep or cause to be
kept complete and appropriate records and books of account in which shall be
entered all such transactions and other matters relative to the Company's
operations, business, and affairs as are usually entered into records and books
of account that are maintained by persons engaged in business of like character
or are required by the Act. Except as otherwise expressly provided herein, such
books and records shall be maintained in accordance with the basis utilized in
preparing the Company's United States federal income tax returns, which returns,
if allowed by applicable law, may in the discretion of the Members be prepared
on either a cash basis or accrual basis.
7.2 PLACE KEPT; INSPECTION. The books and records shall be maintained
at the principal place of business of the Company, and all such books and
records shall be available for inspection and copying at the reasonable request,
and at the expense, of any Member during the ordinary business hours of the
Company.
7.3 TAX MATTERS MEMBER. Viasystems, Inc., a
Delaware corporation, shall
be the tax matters Member of the Company and, in such capacity, shall exercise
all rights conferred, and perform all duties imposed, upon a tax matters partner
under Sections 6221 through 6233 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
ARTICLE 8
BOARD OF DIRECTORS
8.1 MANAGEMENT. The business and property of the Company shall be
managed by the board of directors (the "Board of Directors"), who shall act as
"Managers" pursuant to the Act. Subject to any restrictions imposed by law or
this Agreement, the Board of Directors may exercise all the powers of a
"Manager" under the Act. Any action by the Board of Directors shall be deemed to
be an action by the Managers of the Company for the purposes of the Act or
otherwise.
8.2 NUMBER; QUALIFICATION; ELECTION; TERM. The number of directors
which shall constitute the entire Board of Directors shall be not less than one.
The first Board of Directors shall consist of one director. The initial director
of the Company shall be Xxxxx X. Xxxxx. Thereafter, within the limits above
specified, the number of directors which shall constitute the entire Board of
Directors shall be determined by resolution of the Board of Directors or by
resolution of the Members. Except as otherwise required by law or this
Agreement, the directors shall be elected at an annual meeting of Members at
which a quorum is present. Directors shall be elected by a plurality of the
votes of the Members present in person or represented by proxy and entitled to
vote on the election of directors. Each director so chosen shall hold office
until the first annual meeting of Members held after his or her election and
until his or her successor is elected and qualified or, if earlier, until his or
her death, resignation, or removal from office. None of the directors need be a
Member of the Company or a resident of the State of
Delaware. Each director must
have attained the age of majority.
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8.3 CHANGE IN NUMBER. No decrease in the number of directors
constituting the entire Board of Directors shall have the effect of shortening
the term of any incumbent director.
8.4 REMOVAL. Except as otherwise provided in the certificate of
formation of the Company or this Agreement, at any meeting of Members called
expressly for that purpose, any director or the entire Board of Directors may be
removed, with or without cause, by a vote of a majority in interest of the
Sharing Ratios and Membership Interests of all the Members then entitled to vote
on the election of directors.
8.5 VACANCIES. Vacancies and newly-created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by the sole
remaining director, and each director so chosen shall hold office until the
first annual meeting of Members held after his election and until his successor
is elected and qualified or, if earlier, until his death, resignation, or
removal from office. If there are no directors in office, the Members may elect
directors by a vote of a majority in interest of the Sharing Ratios and
Membership Interests of all the Members then entitled to vote on the election of
directors. Except as otherwise provided in this Agreement, when one or more
directors shall resign from the Board of Directors, effective at a future date,
a majority of the directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
Agreement with respect to the filling of other vacancies.
8.6 MEETINGS OF DIRECTORS. The directors may hold their meetings and
may have an office and keep the books of the Company, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
8.7 FIRST MEETING. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of Members, and no notice of such meeting shall be necessary.
8.8 ELECTION OF OFFICERS. At the first meeting of the Board of
Directors after each annual meeting of Members at which a quorum shall be
present, the Board of Directors shall elect the officers of the Company. The
initial officers of the Company are as set forth on Schedule II attached hereto
and incorporated herein.
8.9 REGULAR MEETINGS. Regular meetings of the Board of Directors shall
be held at such times and places as shall be designated from time to time by
resolution of the Board of Directors. Notice of such regular meetings shall not
be required.
8.10 SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held whenever called by the Chairman of the Board, the President, or any
director.
8.11 NOTICE. The Secretary shall give notice of each special meeting to
each director at least twenty-four (24) hours before the meeting. Notice of any
such meeting need not be given to any director who shall, either before or after
the meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him
or her. Neither the business to be transacted at, nor the purpose of, any
regular or
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special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting.
8.12 QUORUM; MAJORITY VOTE. At all meetings of the Board of Directors,
a majority of the directors fixed in the manner provided in this Agreement shall
constitute a quorum for the transaction of business. If at any meeting of the
Board of Directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of formation of the Company, or this Agreement, the act of a
majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the Board of Directors. At any time that the
certificate of formation of the Company provides that directors elected by the
holders of a class or series of Membership Interests shall have more or less
than one vote per director on any matter, every reference in this Agreement to a
majority or other proportion of directors shall refer to a majority or other
proportion of the votes of such directors.
8.13 PROCEDURE. At meetings of the Board of Directors, business shall
be transacted in such order as from time to time the Board of Directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
President shall preside at all meetings of the Board of Directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the Board of Directors from among the directors present. The Secretary of the
Company shall act as the secretary of each meeting of the Board of Directors
unless the Board of Directors appoints another person to act as secretary of the
meeting. The Board of Directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Company.
8.14 PRESUMPTION OF ASSENT. A director of the Company who is present at
the meeting of the Board of Directors at which action on any company matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as secretary of the meeting before
the adjournment thereof or shall forward any dissent by certified or registered
mail to the Secretary of the Company immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
8.15 COMPENSATION. The Board of Directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the Board of
Directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Company in any
other capacity or receiving compensation therefor.
8.16 ACTION BY WRITTEN CONSENT. Any action required or permitted to be
taken at any regular or special meeting of the Board of Directors may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing setting forth the action so taken shall be signed by a
majority of the Directors. Every written consent shall bear the date of
signature of each director. A telegram, telex, cablegram or similar transmission
by a director, or a photographic, photostatic, facsimile, or similar
reproduction of a writing signed by a director, shall be regarded as signed by
the Member for purposes of this Section 8.16.
8.17 TELEPHONE AND SIMILAR MEETINGS. The Board of Directors may
participate in and hold a meeting by means of conference telephone or similar
communications equipment by means of which all Persons participating in the
meeting can hear each other. Participation in such meeting shall constitute
attendance and presence in person at such meeting, except where a
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Person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.18 COMMITTEES
8.18.1 DESIGNATION. The Board of Directors may, by resolution
adopted by a majority of the entire Board of Directors, designate one or more
committees.
8.18.2 NUMBER; QUALIFICATION; TERM. Each committee shall
consist of one or more directors appointed by resolution adopted by a majority
of the entire Board of Directors. The number of committee members may be
increased or decreased from time to time by resolution adopted by a majority of
the entire Board of Directors. Each committee member shall serve as such until
the earliest of (i) the expiration of his term as director, (ii) his resignation
as a committee member or as a director, or (iii) his removal as a committee
member or as a director.
8.18.3 AUTHORITY. Each committee, to the extent expressly
provided in the resolution establishing such committee, shall have and may
exercise all of the authority of the board of directors in the management of the
business and property of the Company except to the extent expressly restricted
by law or this Agreement.
8.18.4 COMMITTEE CHANGES. The Board of Directors shall have
the power at any time to fill vacancies in, to change the membership of, and to
discharge any committee.
8.18.5 ALTERNATE MEMBERS OF COMMITTEES. The Board of Directors
may designate one or more directors as alternate members of any committee. Any
such alternate member may replace any absent or disqualified member at any
meeting of the committee. If no alternate committee members have been so
appointed to a committee or each such alternate committee member is absent or
disqualified, the member or members of such committee present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
8.18.6 REGULAR MEETINGS. Regular meetings of any committee may
be held without notice at such time and place as may be designated from time to
time by the committee and communicated to all members thereof.
8.18.7 SPECIAL MEETINGS. Special meetings of any committee may
be held whenever called by any committee member. The committee member calling
any special meeting shall cause notice of such special meeting, including
therein the time and place of such special meeting, to be given to each
committee member at least two days before such special meeting. Neither the
business to be transacted at, nor the purpose of, any special meeting of any
committee need be specified in the notice or waiver of notice of any special
meeting.
8.18.8 QUORUM; MAJORITY VOTE. At meetings of any committee, a
majority of the number of members designated by the Board of Directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting of any committee, a majority of the members present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the members present
at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the act of a greater number is required by law or this
Agreement.
8
8.18.9 MINUTES. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the Board of Directors
upon the request of the board of directors. The minutes of the proceedings of
each committee shall be delivered to the Secretary of the Corporation for
placement in the minute books of the Company.
8.18.10 COMPENSATION. Committee members may, by resolution of
the Board of Directors, be allowed a fixed sum and expenses of attendance, if
any, for attending any committee meetings or a stated salary.
8.18.11 RESPONSIBILITY. The designation of any committee and
the delegation of authority to it shall not operate to relieve the Board of
Directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE 9
OFFICERS AND OTHER AGENTS
9.1 NUMBER; TITLES; TERM OF OFFICE. The officers of the Company shall
be a President, a Secretary, a Treasurer, and such other officers as the Board
of Directors may from time to time elect or appoint, including a Chairman of the
Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the Board of Directors shall determine), an
Assistant Secretary, and an Assistant Treasurer. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified, until
his death, or until he shall resign or shall have been removed in the manner
hereinafter provided. Any two (2) or more offices may be held by the same
person. None of the officers need be a Member or a director of the Company or a
resident of the State of Delaware.
9.2 REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Company will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
9.3 VACANCIES. Any vacancy occurring in any office of the Company (by
death, resignation, removal, or otherwise) may be filled by the Board of
Directors.
9.4 AUTHORITY. Officers shall have such authority and perform such
duties in the management of the Company as are provided in this Agreement or as
may be determined by resolution of the Board of Directors not inconsistent with
this Agreement.
9.5 COMPENSATION. The compensation, if any, of officers and agents
shall be fixed from time to time by the Board of Directors; provided, however,
that the Board of Directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board or the President.
9.6 CHAIRMAN OF THE BOARD. The Chairman of the Board, if elected by the
Board of Directors, shall have such powers and duties as may be prescribed by
the Board of Directors. Such officer shall preside at all meetings of the
Members and of the Board of Directors.
9.7 PRESIDENT. The President shall be the chief executive officer of
the Company and, subject to the Board of Directors, he shall have general
executive charge, management, and control of the properties and operations of
the Company in the ordinary course of its business,
9
with all such powers with respect to such properties and operations as may be
reasonably incident to such responsibilities. If the Board of Directors has not
elected a Chairman of the Board or in the absence or inability to act of the
Chairman of the Board, the President shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the Company
and third parties, any action taken by the President in the performance of the
duties of the Chairman of the Board shall be conclusive evidence that there is
no Chairman of the Board or that the Chairman of the Board is absent or unable
to act.
9.8 VICE PRESIDENTS. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors, the Chairman of the
Board, or the President, and (in order of their seniority as determined by the
Board of Directors or, in the absence of such determination, as determined by
the length of time they have held the office of Vice President) shall exercise
the powers of the President during that officer's absence or inability to act.
As between the Company and third parties, any action taken by a Vice President
in the performance of the duties of the President shall be conclusive evidence
of the absence or inability to act of the President at the time such action was
taken.
9.9 TREASURER. The Treasurer shall have custody of the Company's funds
and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Company in such depository or depositories as may be
designated by the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board, or the
President.
9.10 ASSISTANT TREASURERS. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
9.11 SECRETARY. Except as otherwise provided in this Agreement, the
Secretary shall keep the minutes of all meetings of the Board of Directors and
of the Members in books provided for that purpose, and he shall attend to the
giving and service of all notices. He may sign with the Chairman of the Board or
the President, in the name of the Company, all contracts of the Company. He may
sign with the Chairman of the Board or the President all certificates
representing Membership Interests of the Company, and he shall have charge of
the certificate books, transfer books, and other papers as the Board of
Directors may direct, all of which shall at all reasonable times be open to
inspection by any director upon application at the office of the Company during
business hours; it being agreed, however, that no certificate evidencing
Membership Interests need be issued. He shall in general perform all duties
incident to the office of the Secretary, subject to the control of the Board of
Directors, the Chairman of the Board, and the President.
9.12 ASSISTANT SECRETARIES. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the Board of Directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
10
ARTICLE 10
MEETINGS OF MEMBERS
10.1 PLACE OF MEETINGS. All meetings of the Members shall be held at
the principal place of business of the Company as provided in Section 1.4 or at
such other place within or without the State of Delaware as shall be specified
or fixed in the notices or waivers of notice calling the meeting; provided that
any or all Members may participate in any such meeting by means of conference
telephone or similar communications equipment pursuant to Section 10.13.
10.2 ANNUAL MEETING. An annual meeting of the Members, for the
transaction of all business as may properly come before the meeting, shall be
held at such place, within or without the State of Delaware, on such date and at
such time as the Members shall fix and set forth in the notice of the meeting.
10.3 SPECIAL MEETINGS. Special meetings of the Members for any proper
purpose or purposes may be called at any time by the Chairman of the Board, the
President or the Board or Directors or by Members holding at least 25% in
interest of the Sharing Ratios and Membership Interests of all the Members.
Members may call a meeting by delivering to the Board of Directors one or more
written requests signed by the requisite number of Members stating that the
Members wish to call a meeting and indicating the specific purpose for which the
meeting is to be held. If not otherwise stated in the written request or fixed
in accordance with the remaining provisions hereof, the record date for
determining Members entitled to call a special meeting is the date any Member
first signs the written request for a meeting. Only business within the purpose
or purposes described in the notice (or waiver thereof) required by this
Agreement may be conducted at a special meeting of the Members.
10.4 NOTICE AND WAIVER THEREOF. Written or printed notice stating the
place, day and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than 10 days nor more than 60 days before the date of the meeting, by or at the
direction of the Board of Directors, to each Member entitled to vote at such
meeting in accordance with Section 13.4. Attendance of a Member at a meeting
shall constitute a waiver of notice of the meeting except where such Member
attends for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened. Notice of a
meeting may also be waived in writing. Attendance at a special meeting is not a
waiver of any right to object to the consideration of matters required to be
included in the notice of the special meeting but not so included, if the
objection is expressly made at the meeting.
10.5 QUORUM. A quorum shall be present at a meeting of Members if the
holders of fifty percent (50%) in interest of the Sharing Ratios and Membership
Interests of all the Members are represented at the meeting in person or by
proxy.
10.6 VOTING.
10.6.1 VOTING AND VOTING POWER. All Members shall, except as
hereinafter provided, be entitled to vote at meetings. Members may vote either
in person or by proxy at any meeting. Each Member shall be entitled to one vote.
10.6.2 VOTING ON MATTERS OTHER THAN THE ELECTION OF DIRECTORS.
With respect to any matter other than the election of directors (which shall be
governed by Section 8.2) or a matter for which the affirmative vote of Members
owning a specified percentage of the interests
11
is required by the Act, the Certificate or this Agreement, the affirmative vote
of Members holding a majority in interest of the Sharing Ratios and Membership
Interests of all Members at a meeting at which a quorum is present shall be the
act of the Members.
10.6.3 CHANGE IN VOTING PERCENTAGES. No provisions of this
Agreement requiring that any action be taken only upon approval, vote or action
of the Members holding a specified percentage of the Sharing Ratios and
Membership Interests of the Members may be modified, amended or repealed unless
such modification, amendment or repeal is approved by Members holding at least
such specified percentage of interest of the Sharing Ratios and Membership
Interests.
10.7 RECORD DATE. For the purpose of determining Members entitled to
notice of, or to vote at, any meeting of Members or any adjournment thereof, or
entitled to receive a distribution, or in order to make a determinations of
Members for any other proper purpose (other than determining Members entitled to
consent to action by Members proposed to be taken without a meeting of the
Members), the Board of Directors may fix in advance a date as the record date
for any such determination of Members, such date in any case to be not more than
thirty (30) days and, in case of a meeting of Members, not less than ten (10)
days prior to the date on which the particular action requiring such
determination of Members is to be taken. When a determination of the Members
entitled to vote at any meeting of Members has been made as provided in this
Section 10.7, such determination shall apply to any adjournment thereof except
where the determination has been made through the closing of the records and the
stated period of closing has expired. The record date for determining Members
entitled to consent to action in writing without a meeting shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Company by delivery to its registered
office, its principal place of business, or the Board of Directors in accordance
with the provisions of Section 12.4.
10.8 VOTING LISTS. The Board of Directors shall make, at least 10 days
before each meeting of Members, a complete list of the Members entitled to vote
at such meeting, showing the interests owned by each Member. Failure to comply
with these requirements shall not affect the validity of any action taken at
such meeting.
10.9 ADJOURNMENT. Notwithstanding the other provisions of the
Certificate or this Agreement, the Chairman or the Members holding fifty percent
(50%) in interest of the Sharing Ratios and Membership Interests of all the
Members present shall have the power to adjourn such meeting from time to time,
without any notice other than announcement of the time and place of the holding
of the adjourned meeting. If such meeting is adjourned by the Members, such time
and place shall be determined by a vote of the holders of fifty percent (50%) in
interest of the Sharing Ratios and Membership Interests of all the Members
present. Upon the resumption of such adjourned meeting, any business may be
transacted that might have been transacted at the meeting as originally called.
10.10 PROXIES. A Member entitled to vote may vote either in person or
by proxy executed in writing by the Member. A telegram, telex, cablegram or
similar transmission by the Member, or a photographic, photostatic, facsimile,
or similar reproduction of a writing executed by such Member shall be treated as
an execution in writing for purposes of this Section 10.10. A proxy shall be
revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest.
12
10.11 CONDUCT OF MEETING. The Board of Directors shall have full power
and authority concerning the manner of conducting any meeting of the Members,
including, without limitation, the determination of Persons entitled to vote,
the existence of a quorum, the satisfaction of the requirements of this Article
10, the conduct of voting, the validity and effectiveness of any proxies, and
the determination of any controversies, votes or challenges arising in
connection with or during the meeting or voting. The Chairman shall preside at,
and the Secretary shall prepare minutes of, each meeting of Members, and in the
absence of either such officer, his duties shall be performed by the Vice
Chairman or, in his absence, some person or persons selected by the Directors.
10.12 ACTION BY WRITTEN CONSENT. Any action required or permitted to be
taken at any annual or special meeting of Members may be taken without a
meeting, without prior notice, and without a vote, if a consent or consents in
writing setting forth the action so taken shall be signed by the Members holding
not less than the minimum interests that would be necessary to take such action
at a meeting at which the Members holding the required Sharing Ratios and
Membership Interests of the Members were present and voted. Every written
consent shall bear the date of signature of each Member who signs the consent. A
telegram, telex, cablegram or similar transmission by a Member, or a
photographic, photostatic, facsimile, or similar reproduction of a writing
signed by a Member, shall be regarded as signed by the Member for purposes of
this Section 10.12. Prompt notice of the taking of any action by Members without
a meeting by less than unanimous written consent shall be given to those Members
who did not consent in writing to the action. If any action by the Members is
taken by written consent, any certificate or documents filed with the Secretary
of State of Delaware, if any, as a result of the taking of the action shall
state, in lieu of any statement required by the Act concerning any vote of
Members, that written consent has been given in accordance with the provisions
of this Agreement.
10.13 TELEPHONE AND SIMILAR MEETINGS. Members may participate in and
hold a meeting by means of conference telephone or similar communications
equipment by means of which all Persons participating in the meeting can hear
each other. Participation in such meeting shall constitute attendance and
presence in person at such meeting, except where a Person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
ARTICLE 11
AMENDMENTS AND WAIVERS
11.1 WITH MEMBER CONSENT. Except as expressly provided in Section 11.2
or 11.3 of this Agreement, this Agreement may be modified or amended, or any
provision hereof waived, only with the written consent of the Members then
representing a majority in interest of the Sharing Ratios and Membership
Interests of all the Members.
11.2 WITHOUT MEMBER CONSENT. The Board of Directors may, whether with
or without the consent or vote of any Member, amend or waive any provision of
this Agreement which merely (i) reflects the admission or withdrawal of one or
more Members in accordance with this Agreement, (ii) corrects an error or
clarifies an ambiguity in this Agreement, (iii) does not adversely affect any
Member in any material respect, or (iv) changes Schedule I to this Agreement to
reflect the Sharing Ratios or Membership Interests of the Members as from time
to time amended in accordance with this Agreement. The Board of Directors may,
but shall not be required to, amend Schedule I to this Agreement to reflect any
additional capital contributions,
13
provided that such amendment shall be required if the Sharing Ratio or
Membership Interests of any Member is changed as a result of any additional
capital contribution.
11.3 CERTAIN OTHER AMENDMENTS. No amendment to or waiver of any
provision of this Agreement shall be effective against a given Member without
the consent or vote of such Member if such amendment or waiver would (i) cause
the Company to fail to be treated as a limited liability company under the Act
or cause a Member to become liable to third parties as a Member of the Company,
(ii) change Section 2.1 of this Agreement to increase a Member's obligations to
contribute to the capital of the Company, (iii) change Section 4.1 or 4.2 of
this Agreement to affect adversely any Member's rights to exculpation or
indemnification, or (iv) change the percentage of Members necessary for any
consent or vote required hereunder to the taking of any action.
ARTICLE 12
DISSOLUTION AND TERMINATION
12.1 DISSOLUTION. The Company shall be dissolved upon the first to
occur of the following events:
(a) the election of the Members to dissolve the Company with
the consent of Members then representing eighty percent (80%) in interest of the
Sharing Ratios and Membership Interests of all the Members;
(b) the election of the Members to dissolve the Company if all
or substantially all Company assets shall have been sold or disposed of or shall
consist of cash;
(c) any dissolution event specified in the Act shall have
occurred;
(d) a Member shall have (A) made a general assignment for the
benefit of creditors, (B) filed a voluntary petition in bankruptcy, (C) filed a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
bankruptcy or debtor relief law, (D) filed an answer or other pleading admitting
or failing to contest the material allegations of a petition filed against it in
any bankruptcy or insolvency proceeding brought against it, or (E) sought,
consented to, or acquiesced in the appointment of a trustee, receiver, or
liquidator of such Member or of all or any substantial part of its property;
(e) if within sixty (60) days after the commencement of any
proceeding against a Member seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any bankruptcy
or debtor relief law, the proceeding shall not have been dismissed;
(f) if within sixty (60) days after the appointment (without
such Member's consent or acquiescence) of a trustee, receiver, or liquidator of
a Member or of all or any substantial part of its property, the appointment
shall not have been vacated or stayed; or
(g) if within sixty (60) days after the expiration of any such
stay, the appointment shall not have been vacated.
Notwithstanding the foregoing, the Company shall not be dissolved upon the
occurrence of an event specified in (iii) through (vii) of this Section 12.1 if
within ninety (90) days after such
14
occurrence a majority in interest (under applicable federal income tax
principles) of the remaining Members agree in writing to continue the business
of the Company.
12.2 ACCOUNTING ON DISSOLUTION. Following the dissolution of the
Company pursuant to Section 12.1 of this Agreement, the books of the Company
shall be closed, and a proper accounting of the Company's assets, liabilities,
and operations shall be made by the Members, all as of the most recent
practicable date. The Members representing a majority in interest of the Sharing
Ratios and Membership Interests of all the Members shall appoint a Member to
serve as the liquidator of the Company. The expenses incurred by the liquidator
in connection with the dissolution, liquidation, and termination of the Company
shall be borne by the Company.
12.3 TERMINATION. As expeditiously as practicable, but in no event
later than one (1) year (except as may be necessary to realize upon any material
amount of property that may be illiquid), after the dissolution of the Company
pursuant to Section 12.1 of this Agreement, the liquidator shall cause the
Company to pay the current liabilities of the Company and (i) establish a
reserve fund (which may be in the form of cash or other property, as the
liquidator shall determine) for any and all other liabilities, including
contingent liabilities, of the Company in a reasonable amount determined by the
liquidator to be appropriate for such purposes or (ii) otherwise make adequate
provision for such other liabilities. To the extent that cash required for the
foregoing purposes is not otherwise available, the liquidator may sell property,
if any, of the Company for cash. Thereafter, all remaining cash or other
property, if any, of the Company shall be distributed to the Members in
accordance with the provisions of Section 5.1 of this Agreement. At the time
final distributions are made in accordance with Section 5.1 of this Agreement, a
certificate of cancellation shall be filed in accordance with the Act, and the
legal existence of the Company shall terminate, but if at any time thereafter
any reserved cash or property is released because in the judgment of the
liquidator the need for such reserve has ended, then such cash or property shall
be distributed in accordance with Section 5.1 of this Agreement.
12.4 NO NEGATIVE CAPITAL ACCOUNT OBLIGATION. Notwithstanding any other
provision of this Agreement, in no event shall any Member who has a negative
capital account upon final distribution of all cash and other property of the
Company be required to restore such negative account to zero.
12.5 NO OTHER CAUSE OF DISSOLUTION. The Company shall not be dissolved,
or its legal existence terminated, for any reason whatsoever except as expressly
provided in this Article 12.
12.6 MERGER. The Company may, with the written consent or vote of all
Members, adopt a plan of merger and engage in any merger permitted by applicable
law.
ARTICLE 13
MISCELLANEOUS
13.1 WAIVER OF PARTITION. Each Member hereby irrevocably waives any and
all rights that he or it may have to maintain an action for partition of any of
the Company's property.
13.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the Members with respect to the subject matter hereof and supersedes any
prior agreement or understanding among them with respect to such subject matter.
15
13.3 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid under the applicable law of any jurisdiction, the remainder of this
Agreement or the application of such provision to other persons or circumstances
or in other jurisdictions shall not be affected thereby. Also, if any provision
of this Agreement is invalid or unenforceable under any applicable law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such law. Any provision
hereof that may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
13.4 NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
sent by overnight courier, hand delivered, mailed (first class registered mail
or certified mail, postage prepaid), or sent by telex or telecopy if to the
Members, at the addresses or telex or facsimile numbers set forth on Schedule I
hereto, and if to the Company, at the address of its principal place of business
at 000 Xxxxxx Xxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000 (fax 314/000-0000), or
to such other address as the Company or any Member shall have last designated by
notice to the Company and all other parties hereto in accordance with this
Section 13.4. Notices sent by hand delivery shall be deemed to have been given
when received; notices mailed in accordance with the foregoing shall be deemed
to have been given three days following the date so mailed; notices sent by
telex or telecopy shall be deemed to have been given when electronically
confirmed; and notices sent by overnight courier shall be deemed to have been
given on the next business day following the date so sent.
13.5 GOVERNING LAWS. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware (without
regard to principles of conflicts of laws).
13.6 SUCCESSORS AND ASSIGNS. Except as otherwise specifically provided,
this Agreement shall be binding upon and inure to the benefit of the Members and
their respective successors and permitted assigns.
13.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
13.8 HEADINGS. The section and article headings in this Agreement are
for convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision hereof.
13.9 OTHER TERMS. All references to "Articles" and "Sections" contained
in this Agreement are, unless specifically indicated otherwise, references to
articles, sections, subsections, and paragraphs of this Agreement. Whenever in
this Agreement the singular number is used, the same shall include the plural
where appropriate (and vice versa), and words of any gender shall include each
other gender where appropriate. As used in this Agreement, the following words
or phrases shall have the meanings indicated: (i) "or" shall mean "and/or"; (ii)
"day" shall mean a calendar day; (iii) "including" or "include" shall mean
"including without limitation"; and (iv) "law" or "laws" shall mean statutes,
regulations, rules, judicial orders, and other legal pronouncements having the
effect of law.
13.10 POWER OF ATTORNEY. By execution of this Agreement, each Member
hereby makes, constitutes, and appoints the Board of Directors, with full power
of substitution and re-substitution in the Board of Directors (in its sole
discretion), such Member's true and lawful
16
attorney-in-fact ("Attorney") for and in such Member's name, place, and stead
and for his use and benefit, to prepare, execute, certify, acknowledge, swear
to, file, deliver, or record any or all of the following:
(a) the Company's certificate of formation or any other
agreement, certificate, report, consent, instrument, filing, or writing made by
or relating to the Company that the Attorney deems necessary, desirable, or
appropriate for any lawful purpose, including (A) organizing the Company under
the Act, (B) admitting Members with respect to the Company, (C) pursuing or
effecting any rights or remedies available under this Agreement or otherwise
with respect to a defaulting Member, (D) qualifying the Company to do business
in any jurisdiction, and (E) complying with any law, agreement, or obligation
applicable to the Company;
(b) any agreement, certificate, report, consent, instrument,
filing, or writing made by or relating to the Company that the Attorney deems
necessary, desirable, or appropriate to effectuate the business purposes of, or
the dissolution, termination, or liquidation of, the Company pursuant to
applicable law or the respective terms of this Agreement; and
(c) any amendment to or modification or restatement of this
Agreement, the Company's certificate of formation, or any other agreement,
certificate, report, consent, instrument, filing, or writing of any type
described in subsection (i) or (ii) of this Section 13.10, provided that any
amendment of or modification to this Agreement shall first have been adopted in
accordance with Article 13 of this Agreement.
13.11 INDEMNIFICATION. THIS AGREEMENT CONTAINS INDEMNIFICATION
PROVISIONS IN SECTION 4.2.
17
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective as of the Effective Date.
VIASYSTEMS, INC.
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Senior Vice President
-----------------------------
SCHEDULE I
INITIAL CAPITAL SHARING MEMBERSHIP
MEMBER AND ADDRESS CONTRIBUTIONS RATIOS INTEREST
------------------ --------------- ------- ----------
Viasystems, Inc. $ 1,000.00 100.0000% 100.0000%
000 Xxxxxx Xxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
FAX: 314/000-0000
TOTAL $ 1,000.00 100.0000% 100.0000%
========== ======== ========
SCHEDULE II
OFFICER OFFICE
------- ------
Xxxxx X. Xxxxx Co-Chairman
Xxxxxx X. Xxxxx Co-Chairman
Xxxxxxx X. Xxxxxx President; Chief Operating Officer
Xxxxx X. Xxxxxxxx Senior Vice President; Chief Financial Officer
Xxxxx X. Xxxxx Senior Vice President - Human Resources
Xxxxx X. Xxxxxxx Senior Vice President
Xxxxxxx X. Xxxxxxx Executive Vice President - Strategic Planning
Xxxxx X. Xxxxxxx President - Telecom Division
Xxxxxx X. Xxxxx Vice President - Operations Services
Xxxxx X. Xxxxxx Vice President - Assistant Secretary
Xxxxx X. Xxxxxxx Vice President - Assistant Secretary
W. Xxxxxx XxXxx Secretary; General Counsel
Xxxx X. Xxxxxxxxx Assistant Secretary; Assistant General Counsel
