Exhibit B-96
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
STRATEGIC ENERGY, L.L.C.
A
DELAWARE LIMITED LIABILITY COMPANY
DATED DECEMBER 31, 1999
TABLE OF CONTENTS
Page
ARTICLE 1
THE LIMITED LIABILITY COMPANY 1
1.1 Formation of Limited Liability Company. 1
1.2 Registered Office and Agent. 1
1.3 Purpose. 2
1.4 Principal Place of Business. 2
1.5 Property. 2
1.6 No State Law Partnership. 2
1.7 Limited Authority of Members. 2
ARTICLE 2
DEFINITIONS 2
2.1 Definitions. 2
(a) "Affiliate" 2
(b) "Capital Account" 3
(c) "Capital Contribution" or "Capital
Contributions" 3
(d) "Code" 4
(e) "Economic Interest" 4
(f) "Economic Interest Owner" 4
(g) "Gross Asset Value" 4
(h) "Management Committee" 5
(i) "Member" 5
(j) "Net Profits" and "Net Losses" 5
(k) "Operating Costs" 6
(l) [omitted] 6
(m) "Person" 6
(n) "Proceeds" 6
(o) "Regulations" 6
(p) "Subsidiary" 6
(q) "Unit" 6
(r) "Voting Interest" 7
2.2 Other Definitional Provisions. 7
ARTICLE 3
MANAGEMENT 7
3.1 Management Committee. 7
3.2 Transactions with Members and Affiliates. 8
3.3 Chairman and Other Officers. 8
3.4 Meetings. 8
3.5 Quorum. 9
3.6 Voting. 9
3.7 Action Without A Meeting. 9
3.8 Telephone Meetings. 9
3.9 Waiver of Notice. 9
3.10 Salary and Expenses. 9
3.11 Operating Budgets. 9
3.12 Matters Requiring Unanimous Approval of the
Management Committee. 10
3.13 Powers of the Management Committee. 10
3.14 Duties of Chief Executive Officer. 11
3.15 Removal or Resignation of Chief
Executive Officer. 12
3.16 Compensation of Chief Executive Officer. 13
3.17 Restrictions on the Members. 13
ARTICLE 4
RIGHTS AND OBLIGATIONS OF MEMBERS 13
4.1 Limitation of Liability. 13
4.2 Company Liabilities. 13
4.3 Priority and Return of Capital. 13
4.4 Liability of a Member or Economic Interest
Owner to the Company. 13
4.5 Independent Activities. 13
ARTICLE 5
MEETINGS OF MEMBERS 14
5.1 Annual Meeting. 14
ARTICLE 6
CAPITAL CONTRIBUTIONS 14
6.1 Initial Capital Contributions. 14
6.2 Additional Capital Contributions. 14
6.3 Capital Accounts of Members. 14
6.4 Interest and Other Amounts. 14
6.5 Amendment of Documents. 14
6.6 Withdrawal of Capital Contribution. 15
6.7 Loans of Members. 15
ARTICLE 7
ALLOCATIONS 15
7.1 Net Profits and Net Losses. 15
ARTICLE 8
ACCOUNTING. DISTRIBUTIONS AND TAXES 15
8.1 Distribution of Cash. 15
8.2 Accounting. 15
ARTICLE 9
TERM. TERMINATION. AND DISTRIBUTION UPON LIQUIDATION 16
9.1 Term. 16
9.2 Events of Dissolution. 16
9.3 Cessation of Business. 17
9.4 Winding Up, Liquidation and Distribution
of Assets. 17
9.5 Certificate of Cancellation. 17
9.6 Return of Contribution Nonrecourse to Other
Members. 18
ARTICLE 10
MISCELLANEOUS PROVISIONS 18
10.1 Waiver of Right of Partition. 18
10.2 Notices. 18
10.3 Governing Law. 18
10.4 Entire Agreement. 18
10.5 Binding Agreement. 18
10.6 Interpretation. 19
10.7 Severability. 19
10.8 Waiver. 19
10.9 Equitable Remedies. 19
10.10 Attorney's Fees. 19
10.11 Counterparts. 20
10.12 Saving Clause. 20
10.13 Further Documentation. 20
10.14 Incorporation of Recitals. 20
10.15 Indemnification. 20
EXHIBIT A 23
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
STRATEGIC ENERGY, L.L.C.
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT ("LLC Agreement"), is made and entered into this 31st
day of December, 1999, by and between Custom Energy Holdings, a
Delaware limited liability company ("CE" or the "Member") and
Strategic Energy, L.L.C., a Delaware limited liability company
("Company")
WHEREAS, KLT Energy Services, Inc., a Missouri corporation
("KLT"), Environmental Lighting Concepts, Inc. a Minnesota
corporation ("ELC"), MTB Energy, Inc., a Missouri corporation
("MTB") and SE Holdings, L.L.C., a Delaware limited liability
company ("Holdings") own all of the outstanding interests of CE;
WHEREAS, CE now holds all of the issued and outstanding
interests of the Company, and
WHEREAS, the Company and CE wish to adopt this LLC
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
benefits set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
THE LIMITED LIABILITY COMPANY
1.1 Formation of Limited Liability Company. The Certificate
of Formation of Strategic Energy, L.L.C. (the "Company") was
filed in the office of the Secretary of State of Delaware
pursuant to the Delaware Act on the 24th day of September, 1998
and is hereby ratified by the Members.
1.2 Registered Office and Agent. The address of the
Company's registered office in the State of Delaware is located
at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or any other or
additional place or places as the Members may determine from time
to time, and the registered agent at such office is The
Corporation Service Company.
In the event the registered agent ceases to act as such for
any reason or the registered office shall change, the Management
Committee shall promptly designate a replacement registered agent
or registered office as the case may be, and make the appropriate
filings with the secretary of state. If the Management Committee
shall fail to designate a replacement registered agent or
registered office, as the case may be, then any one Member may
designate a replacement registered agent or registered office and
make the appropriate filings in the Office of the Secretary of
State of Delaware.
1.3 Purpose. The purpose and business of the Company shall
be to provide power supply coordination services, direct power
and gas, and competitive power purchasing strategies to
commercial and industrial customers, and to invest in business
ventures which undertake such activities, and to do all other
things which are reasonably incidental to the foregoing. The
Company may transact any or all other lawful business for which a
limited liability company may be organized under the Delaware Act
upon the affirmative vote or consent of the Management Committee
of the Company specifically authorizing any such other lawful
business.
1.4 Principal Place of Business. The principal place of
business of the Company shall be Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx, XX 00000, or at such other place or places within or
without the State of Delaware as the Management Committee may
designate from time to time.
1.5 Property. All assets, including real and personal
property owned and held by the Company shall be owned by the
Company in the name of the Company and no Member or Economic
Interest Owner shall have any ownership interest in such property
in its individual name or right. Each Member's or Economic
Interest Owner's interest in the Company shall be personal
property for all purposes. Any deed, xxxx of sale, mortgage,
lease, contract of sale or other instrument purporting to convey
or encumber any interest in the property of the Company shall be
signed only as authorized by the affirmative vote or consent of
the Management Committee as provided herein.
1.6 No State Law Partnership. The Members have formed the
Company under the Delaware Act, and intend that the Company shall
not be a partnership (including, without limitation, a limited
partnership) or joint venture, that no Member shall be a partner
of, or a joint venturer with, any other Member for any purpose,
other than for United States federal and state tax purposes, and
that this Agreement shall not be construed to suggest otherwise.
1.7 Limited Authority of Members. No Member shall have any
authority to bind the Company as to any matter except as
expressly provided herein.
ARTICLE 2
DEFINITIONS
2.1 Definitions. As used in this LLC Agreement:
(a) "Affiliate" means, when used with reference to a
specified Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such
specified Person, (ii) any Person owning or controlling 10
percent or more of the outstanding voting securities of such
specified Person, and (iii) any officer, director or partner of
such specified Person or of any Person specified in (i) or (ii)
above. The term "Affiliate" shall not include any Person
providing legal, accounting or other professional services to the
Company solely on account of providing such services.
(b) "Capital Account" means, with respect to any
Member or Economic Interest Owner, the Capital Account maintained
for such Person in accordance with the following provisions:
(i) To each Person's Capital Account there shall
be credited such Member's or Economic Interest Owner's Capital
Contributions, such Member's or Economic Interest Owner's
distributive share of Net Profits and any items in the nature of
income or gain which are specially allocated pursuant to Article
7 hereof, and the amount of any Company liabilities assumed by
such Member or Economic Interest Owner or which are secured by
any Property distributed to such Member or Economic Interest
Owner.
(ii) To each Member's or Economic Interest Owner's
Capital Account there shall be debited the amount of cash and the
Gross Asset Value of any Property distributed to such Member or
Economic Interest Owner pursuant to any provision of this LLC
Agreement, such Member's or Economic Interest Owner's
distributive share of Net Losses and any items in the nature of
expenses or losses which are specially allocated pursuant to
Article 7 hereof, and the amount of any liabilities of such
Member or Economic Interest Owner assumed by the Company or which
are secured by any property contributed by such Member or
Economic Interest Owner to the Company.
(iii) In the event any interest in the Company
is transferred in accordance with the terms of this LLC
Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the transferred
interest.
(iv) In determining the amount of any
liability for purposes of Sections 2.l(b)(i) and 2.l(b)(ii)
hereof, there shall be taken into account Code Section 752(c) and
any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this
LLC Agreement relating to the maintenance of Capital Accounts are
intended to comply with Regulations Section 1.704-1(b), and shall
be interpreted and applied in a manner consistent with such
Regulations, assuming that such regulations applied to the
Company.
(c) "Capital Contribution" or "Capital Contributions"
means, with respect to any Member or Economic Interest Owner, the
amount of money and the Gross Asset Value of any property (other
than money) contributed to the Company with respect to the
Percentage Interest held by such Member or Economic Interest
Owner pursuant to the terms of this LLC Agreement. The initial
Capital Contributions of the Members are set forth on Exhibit A
hereto, which is incorporated herein by this reference.
(d) "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time (or any corresponding
provisions of succeeding law).
(e) "Economic Interest" shall mean the ownership
interest of a Person in the Company's Net Profits, Net Losses and
the distribution of Net Profits and/or the Company's assets
pursuant to this LLC Agreement and the Delaware Act, but shall
not include any right to vote on, consent to or otherwise
participate in any decision of the Members in the management of
the Company, nor any right to appoint a representative of the
Management Committee.
(f) "Economic Interest Owner" shall mean any Person
who owns an Economic Interest, but is not a Member.
(g) "Gross Asset Value" means, with respect to any
asset, the asset's adjusted basis for federal income tax purposes
(reduced by the amount of any liabilities that are liens on such
asset), except as follows:
(i) The initial Gross Asset Value of any asset
contributed by a Member or Economic Interest Owner to the Company
shall be the gross fair market value of such asset, as determined
by the contributing Member or Economic Interest Owner and all of
the remaining Members;
(ii) The Gross Asset Values of all Company assets
shall be adjusted to equal their respective gross fair market
values, as determined by the Management Committee, as of the
following times: (A) the acquisition of an additional interest in
the Company by any new or existing Member or Economic Interest
Owner in exchange for more than a de minimis Capital
Contribution; and (B) the distribution by the Company to a Member
or Economic Interest Owner of more than a de minimis amount of
property as consideration for an interest in the Company.
(iii) The Gross Asset Value of any Company asset
distributed to any Member or Economic Interest Owner shall be
adjusted to equal the gross fair market value of such asset on
the date of distribution as determined by the distributee and the
Management Committee;
(iv) The Gross Asset Values of Company assets
shall be increased (or decreased) to reflect any adjustments to
the adjusted basis of such assets pursuant to Code Section 734(b)
or Code Section 743(b), but only to the extent that such
adjustments are taken into account in determining Capital
Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m);
provided, however, that Gross Asset Values shall not be adjusted
pursuant to this Section 2.1(g)(iv) to the extent the Management
Committee determine that an adjustment pursuant to Section
2.1(g)(ii) hereof is necessary or appropriate in connection with
a transaction that would otherwise result in an adjustment
pursuant to this Section 2.1(g)(iv).
If the Gross Asset Value of an asset has been determined or
adjusted pursuant to Section 2.l(g)(i), Section 2.1(g)(ii), or
Section 2.l(g)(iv) hereof, such Gross Asset Value shall
thereafter be adjusted by the depreciation or amortization taken
into account with respect to such asset for purposes of computing
Net Profits and Net Losses.
(h) "Management Committee" shall mean the committee of
the Company, appointed by the Member and established pursuant to
Article 3 of this LLC Agreement.
(i) "Member" shall mean any person executing this LLC
Agreement from time to time and as otherwise admitted as a member
of the Company.
(j) "Net Profits" and "Net Losses" means, for each
fiscal year, an amount equal to the Company's taxable income or
loss for such fiscal year, determined in accordance with Code
Section 703(a) (for these purposes, all items of income, gain,
loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or
loss), with the following adjustments:
(i) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in
computing Net Profits or Net Losses pursuant to this Section
2.1(j) shall be added to such taxable income or loss;
(ii) Any expenditures of the Company
described in Code Section 705(a)(2)(B) or treated as Code Section
705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-
1(b)(2)(iv)(i), and not otherwise taken into account in computing
Net Profits or Net Losses pursuant to this Section 2.1(j) shall
be subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of
any Company asset is adjusted pursuant to Section 2.1(g)(ii) or
Section 2.1(g)(iii) hereof, the amount of such adjustment shall
be taken into account as gain or loss from the disposition of
such asset for purposes of computing Net Profits or Net Losses;
(iv) Gain or loss resulting from any
disposition of property with respect to which gain or loss is
recognized for federal income tax purposes shall be computed by
reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property
differs from its Gross Asset Value;
(v) Depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable
income or loss shall be determined based upon the property's
Gross Asset Value.
(vi) To the extent an adjustment to the
adjusted tax basis of any Company asset pursuant to Code Section
734(b) or Code Section 743(b) is required pursuant to Regulations
Section 1.704-1 (b)(2)(iv)(m)(4) to be taken into account in
determining Capital Accounts as a result of a distribution other
than in liquidation of a Member's or Economic Interest Owner's
interest in the Company, the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis
of the asset) or loss (if the adjustment decreases the basis of
the asset) from the disposition of the asset and shall be taken
into account for purposes of computing Net Profits or Net Losses;
and
(vii) Notwithstanding any other provision of
this Section 2.1(j), any items which are specially allocated
pursuant to Section 7 hereof shall not be taken into account in
computing Net Profits or Net Losses.
The amounts of the items of Company income, gain, loss or
deduction available to be specially allocated pursuant to Section
7 hereof shall be determined by applying rules analogous to those
set forth in Sections 2.l(j)(i) through 2.1(j)(iv) above.
(k) "Operating Costs" shall mean, with respect to any
period, all cash expenditures incurred incident to the normal
operation of the Company's business and any amounts determined by
the Management Committee, from time to time, to be reasonably
necessary to provide a reserve for the operations, expenses, debt
payments, capital improvements, and contingencies of the Company.
(l) [omitted]
(m) "Person" shall include any individual, trust,
estate, corporation, partnership, limited liability company,
association or other entity.
(n) "Proceeds" shall mean, with respect to any period,
gross receipts received by the Company from all sources during
such period, including, without limitation, all sales, other
dispositions, and refinancing of the Company's property, but does
not include Capital Contributions as provided for in Article 6 of
this LLC Agreement.
(o) "Regulations" means the Income Tax Regulations,
including Temporary Regulations, promulgated under the Code, as
such regulations may be amended from time to time (including
corresponding provisions of succeeding Regulations).
(p) "Subsidiary" means, with respect to the Company,
any Person of which securities or other ownership interests
having ordinary voting power to elect at least a majority of the
board of directors or other persons performing similar functions
are at the same time directly owned or indirectly owned by the
Company.
(q) "Unit" shall mean a fraction of an Economic
Interest or a Voting Interest, as the case may be, the numerator
of which shall be one (1), and the denominator of which shall be
the total number of issued and outstanding Units of the Company.
(r) "Voting Interest" shall mean, with respect to any
Member, such Person's ownership of voting rights in the Company
(including without limitation the right to appoint
representatives to the Management Committee as herein provided),
as set forth in this Agreement.
2.2 Other Definitional Provisions.
(a) As used in this Agreement, accounting terms not
defined in this Agreement shall have the respective meanings
given to them under generally accepted accounting principles.
(b) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Article, section, subsection, schedule and
exhibit references are to this Agreement unless otherwise
specified.
(c) Words of the masculine gender shall be deemed to
include the feminine or neuter genders, and vice versa, where
applicable.
(d) Words of the singular number shall be deemed to
include the plural number, and vice versa, where applicable.
(e) Words not defined herein, but defined in the
Limited Liability Agreement of CE shall have the meanings
accorded such terms in such agreement.
ARTICLE 3
MANAGEMENT
3.1 Management Committee. The business and affairs of the
Company shall be controlled and managed exclusively by a
Management Committee which, subject to the provisions and
limitations contained in this LLC Agreement and any applicable
law, shall have the power and authority to take, or cause to be
taken, any and all actions necessary and proper to conduct the
business affairs of the Company and carry out its duties as
described in this LLC Agreement.
The Management Committee shall consist of four (4)
representatives, one (1) of whom shall be appointed by KLT, one
(1) of whom shall be appointed by MTB, one (1) of whom shall be
appointed by ELC, and one (1) of whom shall be appointed by
Holdings. In the event of the resignation or death of a
representative, the vacancy shall be promptly filled by a nominee
of the Person who appointed the departing representative. The
appointment of each representative on the Management Committee
subsequent to the initial representatives named this Section 3.1
shall be evidenced by an appointment, and acceptance of
appointment, in a writing delivered to the Company by the Person
entitled to appoint such representative. Each representative will
serve on the Management Committee at the pleasure of the Person
appointing him or her. The Management Committee shall, as of the
date of this LLC Agreement, consist of Xxxxxx X. Xxxxxx
(appointed by KLT), Xxxxxxx X. Xxxxx (appointed by ELC), L. Xxx
Xxxxxxx (appointed by MTB), and Xxxxxxx X. Xxxxxx (appointed by
Holdings).
If a member of CE transfers all of its Economic
Interests and the transferee thereof is admitted as a member of
CE as provided in the LLC Agreement of CE, then the transferee of
such Economic Interest shall succeed to such Person=s rights to
appoint representatives to the Management Committee as provided
in this Section 3.1. In addition, if CE admits any additional
member who receives a Series SEL Voting Interest in CE, the
number of representatives to the Management Committee shall be
increase by one (1) representative and such additional member of
CE shall be allowed to appoint such representative.
3.2 Transactions with Members and Affiliates. The Company
may enter into agreements with one or more Members or Affiliates
of a Member to provide financing, leasing, management, legal,
accounting, architectural, brokerage, development, or other
services or to buy, sell, or lease assets to or from the Company
("Affiliate Transactions") with a value of less than five
thousand dollars ($5,000), provided that any such agreements and
transactions shall be disclosed to the Management Committee and
be at rates at least as favorable to the Company as those
available from unaffiliated parties. Affiliate Transactions with
a value of five thousand dollars ($5,000) or more shall require
the express written consent of the Chief Executive Officer, or,
if the Chief Executive Officer is an Affiliate in the Affiliate
Transaction, the consent required shall be that of the next
highest unaffiliated officer. The validity of any transaction,
agreement, or payment involving the Company and any Member or
Affiliate of a Member otherwise permitted hereunder shall not be
affected by reason of the relationship between such Person and
the Company or any of its Members.
3.3 Chairman and Other Officers. A representative on the
Management Committee shall serve as the Chairman of the
Management Committee and as Chief Executive Officer of the
Company. The initial Chairman of the Management Committee and
Chief Executive Officer of the Company shall be Xxxxxxx X.
Xxxxxx. The Chief Executive Officer shall have those duties and
responsibilities as are outlined in Section 3.14 hereof. The
Company shall have such other officers as may be appointed by the
Management Committee, or in the absence of such appointment, as
designated by the Chairman of the Management Committee. The
Chairman of the Management Committee shall preside at all
meetings of the Management Committee, and shall have such other
duties and responsibilities as may be assigned by the Management
Committee from time to time.
3.4 Meetings. The Management Committee shall have quarterly
meetings within eight weeks after the end of each fiscal quarter.
Meetings of the Management Committee may be called by either the
Chairman of the Management Committee, or by another
representative on the Management Committee, by written notice
designating the time and place of the meeting sent to each
representative not fewer than five (5) nor more than ten (10)
days before the date of the meeting to the address of the Member
appointing such representative. If no place is designated, then
the meeting shall be held at the Company's principal place of
business. If all of the representatives to the Management
Committee meet at any time and place, the meeting shall be valid
without call or notice and any lawful action may be taken at such
meeting.
3.5 Quorum. The presence of three representatives of the
Management Committee at such meeting shall constitute a quorum at
any duly called meeting of the Management Committee.
3.6 Voting. Each representative on the Management
Committee shall be entitled to an equal vote upon each matter
submitted or required to be submitted to a vote at a meeting of
the Management Committee. An affirmative vote of three
representatives shall be required to approve the action to be
taken by the Management Committee, except for matters requiring a
unanimous vote set forth in Section 3.12.
3.7 Action Without A Meeting. Any action which is required
or permitted to be taken at a meeting of the Management Committee
may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the actions so
taken, is signed by each of the representatives to the Management
Committee entitled to vote on such matter and filed with the
Company.
3.8 Telephone Meetings. Representatives of the Management
Committee may participate in a meeting of the Management
Committee by means of conference telephone or other similar
communication equipment whereby all persons participating in the
meeting can hear each other. Participation in the meeting in this
manner constitutes presence in person at the meeting.
3.9 Waiver of Notice. Whenever any notice is required to be
given to any representative to the Management Committee, a waiver
of the notice in writing signed by the person entitled to the
notice, whether before, at or after the time stated therein, and
delivered to the Company for inclusion in the minutes or filing
with the Company's records, shall be deemed equivalent to the
giving of such notice.
3.10 Salary and Expenses. Representatives serving on the
Management Committee, as such, shall not receive any stated
salary for their services on the Management Committee, but by
resolution of the Management Committee may receive reimbursement
of expenses of attendance at each meeting of the Management
Committee.
3.11 Operating Budgets. No later than sixty (60) days prior
to the end of the then current fiscal year, the Management
Committee shall review and adopt annual operating budgets for the
Company. No action or failure to act which would constitute a
material change from any general and administrative expense or
capital item in the budget shall be made or caused by the Company
without the prior affirmative vote or consent of the Management
Committee. Each budget shall include the following:
(a) A narrative description of any activities proposed
to be undertaken during the period subject of such budget;
(b) A projected annual income statement (accrual
basis) for such period;
(c) A projected balance sheet as of the end of the
period;
(d) A schedule of projected cash flow (including
itemized operating revenues, costs, and expenses) for such
period; and
(e) A description of any proposed investments and
capital expenditures, including projected dates for commencement
and completion of the foregoing, as well as the description of
any contemplated or existing financing activities for such
period.
3.12 Matters Requiring Unanimous Approval of the Management
Committee. All of the representatives of the Management Committee
shall have to approve any of the following:
(a) Amend this LLC Agreement or admit any new Member
or issue any additional Economic Interests;
(b) Take any action or fail to take any action in
contravention of this LLC Agreement;
(c) Make or cause the Company to become a party to any
contract or commitment, or renew, extend, amend or modify any
contract or commitment, with a Member or an Affiliate of a
Member, except as expressly permitted by this LLC Agreement;
(d) Dissolve and wind up the business of the Company
or the taking of any corporate or other action by or on behalf of
the Company in furtherance of the foregoing (except as
contemplated in Section 3.13);
(g) Assume, incur, or guarantee or become liable for
any indebtedness or borrowed money on behalf of the Company if
such indebtedness or borrowed money is recourse to any of the
Members; or
3.13 Powers of the Management Committee. In addition
to that contemplated above, the Management Committee shall have
the power to do the following upon the affirmative vote of three
representatives of the Management Committee, without the consent
of the Members:
(a) Merge or consolidate or agree to merge or
consolidate the Company with or into any other entity;
(b) Approve any non-budgeted expenditure;
(c) Make an acquisition of, or investment in, any
business enterprise or venture;
(d) Assume, incur or guarantee or become liable for
any indebtedness or borrowed money on behalf of the Company;
(e) Review and adopt all operating and other budgets
of the Company;
(f) Sell, exchange, lease, mortgage, pledge or
otherwise dispose of all or a substantial portion of the property
and assets of the Company in a single transaction or series of
related transactions;
(g) File any registration statement or any amendments
thereto with the Securities and Exchange Commission ("SEC")
registering any of the Voting Interests, Economic Interests or
other securities of the Company or file or prepare a prospectus
in accordance with Rule 424(b) as promulgated by the SEC:
(h) Transact any business other than that which is
consistent with the purpose and business of the Company as
described in Section 1.3 above;
(i) Make any distributions to the Members or Economic
Interest Owners, except as otherwise provided in this LLC
Agreement;
(j) The partition of any assets of the Company or any
distribution of any assets of the Company;
(k) Increase the salary of an Affiliate of any member
of CE; and
(l) Take such other actions specified in this LLC
Agreement as requiring the consent or approval of the Management
Committee.
3.14 Duties of Chief Executive Officer. The Chief Executive
Officer shall be responsible for the management of the day to day
business and affairs of the Company in accordance with the annual
budgets adopted by the Management Committee and as otherwise
directed by the Management Committee from time to time. Any
decision or act of the Chief Executive Officer within the scope
of the Chief Executive Officer's authority granted hereunder
shall control and bind the Company. The Chief Executive Officer
may, at his sole discretion, delegate his duties and
responsibilities hereunder to other officers of the Company.
Except as set forth in Sections 3.12 and 3.13 above, the Chief
Executive Officer shall have the power to do the following,
without the consent of the Members or the Management Committee:
(a) Control of the day-to-day operations of the
Company;
(b) Carrying out and affecting all directions of the
Management Committee;
(c) Providing for the accounting function for the
Company;
(d) Applying for and obtaining all appropriate
insurance coverage;
(e) Temporary investment of the Company's funds and
short-term investments providing for appropriate safety of
principal;
(f) Engaging in any kind of activity and performing
and carrying out all contracts of any kind necessary to, in
connection with or incidental to the accomplishment of the
purposes and business of the Company, so long as said activities
and contracts are in the ordinary course of business;
(g) Negotiate, execute and perform all agreements, and
exercise all rights and remedies of the Company in connection
with the foregoing; and
(h) Providing quarterly and annual budgets, and
operating and financial reports to the Management Committee.
3.15 Removal or Resignation of Chief Executive Officer. The
Management Committee, by a majority vote thereof, may remove the
Chief Executive Officer, in its sole and absolute discretion if,
at any time or from time to time, it becomes dissatisfied with
the Chief Executive Officer's performance under this Agreement
(regardless of whether such dissatisfaction shall constitute
legal "cause" for termination). A Person who has been removed as
Chief Executive Officer shall continue to be a Member or Economic
Interest Owner for all other purposes of this Agreement, if the
Chief Executive Officer is also a Member or Economic Interest
Owner in the Company.
The Chief Executive Officer of the Company may resign
at any time by giving sixty (60) days advance written notice to
each of the representatives to the Management Committee. The
resignation of a Chief Executive Officer shall take effect sixty
(60) days from the date of the notice or at such later time as
shall be specified in the notice and, unless otherwise specified
in the notice, the acceptance of the resignation shall not be
necessary to make it effective. The resignation of a Chief
Executive Officer who is also a Member or Economic Interest Owner
shall not affect the Chief Executive Officer's rights as a Member
or Economic Interest Owner and shall not constitute a withdrawal
of the Member or Economic Interest Owner from the Company.
3.16 Compensation of Chief Executive Officer. The
compensation of the Chief Executive Officer shall be fixed from
time to time by the Management Committee, and no Chief Executive
Officer shall be prevented from receiving any such compensation
because the Chief Executive Officer is also a Member or Economic
Interest Owner of the Company.
3.17 Restrictions on the Members. No Member or Economic
Interest Owner individually shall have the authority to do any
binding act on behalf of the Company without the approval of the
Management Committee as provided in this LLC Agreement.
ARTICLE 4
RIGHTS AND OBLIGATIONS OF MEMBERS
4.1 Limitation of Liability. Each Member's and Economic
Interest Owner's liability shall be limited as set forth in this
LLC Agreement, the Delaware Act and other applicable law.
4.2 Company Liabilities. A Member or Economic Interest
Owner will not be personally liable for any debts or losses of
the Company beyond the Member's or Economic Interest Owner's
respective capital contributions and any obligation of the
Members and Economic Interest Owners to make additional Capital
Contributions as provided in this LLC Agreement, except as
required by law.
4.3 Priority and Return of Capital. Except as otherwise
expressly provided in this LLC Agreement, no Member or Economic
Interest Owner shall have priority over any other Member or
Economic Interest Owner, either for the return of Capital
Contributions or for Net Profits, Net Losses or distributions;
provided that this Section shall not apply to loans (as
distinguished from Capital Contributions) which a Member has made
to the Company.
4.4 Liability of a Member or Economic Interest Owner to the
Company. A Member or Economic Interest Owner who rightfully
receives a return in whole or in part of its Capital Contribution
is liable to the Company only to the extent now or hereafter
provided by the Delaware Act.
4.5 Independent Activities. Except as may otherwise be
agreed upon in writing between the Company and a Member or
Economic Interest Owner, each Member, Economic Interest Owner and
Management Committee representative shall be required to devote
only such time to the affairs of the Company as such Member,
Economic Interest Owner and Management Committee representative
determines in its sole discretion, and each such Member, Economic
Interest Owner and Management Committee representative shall be
free to serve any other Person in any capacity that it may deem
appropriate in its discretion; provided, however, that no Member,
Economic Interest Owner or Management Committee representative
shall either directly or indirectly engage in any activities
which in any way concern or are related to the license, sale,
provision, use or marketing of products, services or activities
which are licensed, sold, provided, used or marketed by the
Company, or which activities otherwise are competitive with the
Company or otherwise, without first acquiring the written
approval of each of the representatives of the Management
Committee not appointed by the Member or Economic Interest Owner
requesting or requiring such approval.
ARTICLE 5
MEETINGS OF MEMBERS
5.1 Annual Meeting. The Member shall not hold any meetings,
since the Company shall act solely through the Management
Committee.
ARTICLE 6
CAPITAL CONTRIBUTIONS
6.1 Initial Capital Contributions. A Capital Account shall
be maintained for each Member as provided in Section 2.1(b)
above, which shall include the initial Capital Contribution of
each Member as set forth on Exhibit A, attached hereto. The
number of Units of Percentage Interest of each Member shall be as
also set forth in Exhibit A. No Member shall have any interest
or rights in the capital contributed by any other Member.
6.2 Additional Capital Contributions. The Member and the
Management Committee recognize that the Company may require
additional capital from time to time in order to accomplish the
purposes and the business for which the Company is formed. If the
Member determines to make an Additional Capital Contribution to
the Company pursuant to Section 6.2.2 of the CE Limited Liability
Company Agreement, the Member shall make a contribution to the
Capital of the Company in the amount of such Additional Capital
Contribution made to CE pursuant to such Section.
6.3 Capital Accounts of Members. The amount of any
additional Capital Contribution made by any Member or Economic
Interest Owner shall be added to the Capital Account of such
contributing Member or Economic Interest Owner.
6.4 Interest and Other Amounts. No Member or Economic
Interest Owner shall receive any interest, salary, or drawing
with respect to its Capital Contributions or its Capital Account
or for services rendered to or on behalf of the Company or
otherwise in its capacity as a Member or Economic Interest Owner,
except as otherwise provided in this LLC Agreement or other
agreement approved and ratified by all of the Members between the
Company and such Member or Economic Interest Owner.
6.5 Amendment of Documents. Except as provided above or
pursuant to a Member's or Economic Interest Owner's acquisition
of an additional Economic Interest as permitted under this LLC
Agreement, any adjustments in Percentage Interests shall be
effectuated by amending this LLC Agreement and the execution and
filing of any other documents required by the Delaware Act.
6.6 Withdrawal of Capital Contribution. Except as otherwise
provided in this LLC Agreement, the affirmative vote or consent
of all of the Members shall be required to modify, compromise or
release the amount and/or character of a Member's or Economic
Interest Owner's Capital Contribution, or any promise made by a
Member as consideration for the acquisition of an interest in the
Company. Under circumstances requiring the return of any Capital
Contribution, no Member or Economic Interest Owner shall have the
right to receive any property of the Company, other than cash,
except as may be specifically provided herein.
6.7 Loans of Members. A Member or Economic Interest Owner
may loan cash or other property to the Company, should additional
funds be required, upon such terms as all of the Members shall
agree by affirmative vote or consent. Loans by any Member or
Economic Interest Owner to the Company shall not be considered as
contributions to the capital of the Company. Except as otherwise
provided in this LLC Agreement, none of the Members or Economic
Interest Owners shall be obligated to make any loan or advance to
the Company.
ARTICLE 7
ALLOCATIONS
7.1 Net Profits and Net Losses. Net Profits and Net Losses
for any fiscal year shall be allocated to the Member.
ARTICLE 8
ACCOUNTING. DISTRIBUTIONS AND TAXES
8.1 Distribution of Cash. If the Management Committee
determines that the Company has adequate available cash (taking
into account its current and anticipated future cash needs), the
Company shall make cash distributions to CE in the amount
determined by the Management Committee, which amounts shall be
distributed by CE pursuant to Section 8.1 of the CE Limited
Liability Company Agreement. Notwithstanding the foregoing, the
Management Committee shall make, within forty five (45) days
after the close of each quarter of each fiscal year, cash
distributions to the Members and Economic Interest Owners in an
amount equal to forty five percent (45%) of the Net Profits of
the Company (or such greater amount as may be determined upon the
affirmative vote of the Management Committee or required to pay
any "accrued Flow-Through Tax Liability" attributed to the
Members or Economic Interest Owners of the Company or the Members
of CE holding Series SEL Economic Interests).
Further, notwithstanding the foregoing, no distributions
shall be made unless, after distribution is made, the assets of
the Company are in excess of its liabilities, except amounts
payable to Members or Economic Interest Owners on account of
Capital Contributions.
8.2 Accounting. The fiscal and tax year of the Company
shall be the calendar year. For tax purposes, the records of the
Company shall be maintained on an accrual method of accounting.
The books of account of the Company shall be kept and maintained
at all times at the principal place of business of the Company or
such other location as determined by the Management Committee.
Each Member shall have the right at all reasonable times during
usual business hours to audit, examine and make copies of or
extracts from the books of account of the Company, and a list of
the names and addresses of all of the Members and Economic
Interest Owners. Such right may be exercised through any agent of
such Member. Each Member shall bear all expenses incurred in any
examination made for its account.
As soon as reasonably practicable after the end of each
calendar month, the Chief Executive Officer shall furnish each
Member and Economic Interest Owner with an interim unaudited
balance sheet of the Company as of the last day of such calendar
month, an unaudited statement of profit or loss of the Company
for such calendar month, and an unaudited statement of cash
receipts and disbursements for such calendar month, each prepared
in accordance with generally accepted accounting principles. As
soon as reasonably practicable after the end of each fiscal and
tax year, the Chief Executive Officer shall furnish each Member
and Economic Interest Owner with: (i) a balance sheet of the
Company as of the last day of such fiscal or tax year, a
statement of profit or loss of the Company for such year, and a
statement of cash receipts and disbursements, each prepared in
accordance with generally accepted accounting principles and
audited by the Company's independent certified public
accountants; and (ii) a copy of the federal income tax return (if
applicable) of the Company.
ARTICLE 9
TERM. TERMINATION. AND DISTRIBUTION UPON LIQUIDATION
9.1 Term. The term of the Company was commenced on the date
the Certificate of Formation for the Company was filed in the
Office of the Delaware Secretary of State in accordance with the
Delaware Act and shall continue until January 31, 2049 unless
earlier dissolved by the unanimous written consent of all of the
Members, or the provisions of the Certificate of Formation this
LLC Agreement or the Delaware Act.
9.2 Events of Dissolution. Unless the continuation of the
Company's business is approved by the affirmative vote or consent
of all of the remaining Members within ninety (90) days of an
event of withdrawal, the Company shall immediately dissolve upon
an event of withdrawal. An event of withdrawal shall include:
(a) January 31, 2049;
(b) The affirmative vote or consent by all of the
Members to dissolve, wind up and liquidate the Company; or
(c) The happening of any other event that makes it
unlawful or impossible to carry on the business of the Company.
9.3 Cessation of Business. In the event of the occurrence
of any event effecting the dissolution of the Company, the
Company shall cease to carry on its business, except insofar as
may be necessary for the winding up of its business, but its
separate existence shall continue until the Chairman has filed a
certificate of cancellation in the office of Delaware Secretary
of State or until a decree terminating the Company has been
entered by a court of competent jurisdiction.
9.4 Winding Up, Liquidation and Distribution of Assets.
Upon dissolution, an accounting shall be made of the accounts of
the Company and of the Company's assets, liabilities and
operations, from the date of the last previous accounting until
the date of dissolution and the Chairman shall immediately
proceed to wind up the affairs of the Company. If the Company is
dissolved and its affairs are to be wound up, the Chairman shall:
(a) Collect and sell or otherwise liquidate all of the
Company's assets as promptly as practicable (except to the extent
a Majority in Interest may determine to distribute any assets to
the Members and Economic Interest Owners in kind);
(b) Allocate any Net Profits or Net Losses resulting
from such sale or other disposition of the Company's assets to
the Members' and Economic Interest Owners' Capital Accounts in
accordance with Section 2.1(b) above;
(c) Discharge all debts, liabilities and obligations
of the Company, including those to Members and Economic Interest
Owners who are creditors, to the extent otherwise permitted by
law, other than debts, liabilities and obligations to Members and
Economic Interest Owners for distributions, and establish such
reserves as the Management Committee may deem reasonably
necessary to provide for contingencies or liabilities of the
Company (for purposes of determining the Capital Accounts of the
Members and Economic Interest Owners, the amounts of such
reserves shall be deemed to be an expense of the Company);
(d) Distribute the remaining assets to the Member
either in cash or in kind, with any assets distributed in kind
being valued for this purpose at their fair market value.
(e) Upon completion of the winding up, liquidation and
distribution of the assets, the Company shall be deemed
terminated; and
(f) The remaining Members shall comply with any
applicable requirements of the Delaware Act pertaining to the
winding up of the affairs of the Company and the final
distribution of its assets.
9.5 Certificate of Cancellation. When all debts,
liabilities, and obligations have been paid and discharged or
adequate provisions have been made therefor and all of the
remaining assets have been distributed to the Members and
Economic Interest Owners, the Chairman shall execute a
certificate of cancellation setting forth the information
required by the Delaware Act and shall be delivered to the
Delaware Secretary of State.
9.6 Return of Contribution Nonrecourse to Other Members.
Except as provided by law or as expressly provided in this LLC
Agreement, upon dissolution, each Member and Economic Interest
Owner shall look solely to the assets of the Company for the
return of its Capital Contributions. If the Company assets
remaining after the payment or discharge of the debts and
liabilities of the Company is insufficient to return the Capital
Contributions of the Members and Economic Interest Owners, the
Members and Economic Interest Owners shall have no recourse
against any other Member or Economic Interest Owner.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Waiver of Right of Partition. It is specifically agreed
that no Member or Economic Interest Owner shall have the right to
ask for partition of the assets owned or hereafter acquired by
the Company, nor shall any such Member or Economic Interest Owner
have the right to any specific assets of the Company on the
liquidation or winding up of the Company, except upon the
affirmative vote or consent of all Members.
10.2 Notices. Except as otherwise provided in this LLC
Agreement, any notice required or permitted herein shall be in
writing and shall be deemed to have been delivered, whether
actually received or not, two (2) calendar days after being
deposited in the United States mail, by registered mail, return
receipt requested, postage prepaid, addressed to the party
entitled thereto at the last address of such party provided by
such party to the Company. Any notice to the Company shall be
sent to the Company's principal place of business.
10.3 Governing Law. This LLC Agreement has been made and
executed in accordance with the Delaware Act and is to be
construed, enforced, and governed in accordance therewith and
with the laws of the State of Delaware. The parties agree that
all actions or proceedings arising directly or indirectly from
this LLC Agreement shall be commenced and litigated only in the
District Court of Xxxxxxx County, Kansas, or the United States
District Court for the District of Kansas, located in Kansas
City, Kansas. The parties hereby consent to the jurisdiction over
them of the District Court of Xxxxxxx County, Kansas, or the
United States District Court for the District of Kansas, in all
actions or proceedings arising directly or indirectly from this
LLC Agreement.
10.4 Entire Agreement. Except as otherwise provided herein,
this LLC Agreement together with the recitals and Exhibits
hereto, each of which are incorporated herein by this reference,
constitutes the entire agreement among the Members on the subject
matter hereof and may not be changed, modified, amended, or
supplemented except in writing, signed by all of the Members and
consented to by all of the holders of the Series SEL Voting
Interests in CE. All other oral or written agreements, promises,
and arrangements in relation to the subject matter of this LLC
Agreement are hereby rescinded.
10.5 Binding Agreement. Subject to the restrictions and
encumbrances set forth herein, the terms and provisions of this
LLC Agreement shall be binding upon, be enforceable by and inure;
to the benefit of the Members, Economic Interest Owners and their
respective heirs, executors, administrators, personal
representatives, successors, and assigns.
10.6 Interpretation. The descriptive headings contained in
this LLC Agreement are for convenience only and are not intended
to define the subject matter of the provisions of this LLC
Agreement and shall not be resorted to for interpretation
thereof.
10.7 Severability. If any provision of this LLC Agreement or
the application thereof to any individual or entity or
circumstance shall be invalid or unenforceable to any extent, the
remainder of this LLC Agreement and the application of such
provisions to other individuals or entities or circumstances
shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
10.8 Waiver. No consent or waiver, express or implied, by
any Member or Economic Interest Owner to or of any breach or
default by any other Member or Economic Interest Owner in the
performance by such other Member or Economic Interest Owner of
its obligations under this LLC Agreement shall be deemed or
construed to be a consent or waiver to or of any other breach or
default in the performance by such other Member or Economic
Interest Owner of the same or any other obligations hereunder.
The failure on the part of any Member or Economic Interest Owner
to complain of any act or failure to act of any of the other
Members or Economic Interest Owners or to declare any of the
other Members or Economic Interest Owners in default,
irrespective of how long such failure continues, shall not
constitute a waiver by such Member or Economic Interest Owner of
its rights under this LLC Agreement.
10.9 Equitable Remedies. The rights and remedies of any of
the Members or Economic Interest Owners hereunder shall not be
mutually exclusive. Each of the Members and Economic Interest
Owners confirms that damages at law may be an inadequate remedy
for a breach or threatened breach of this LLC Agreement and
agrees that in the event of a breach or threatened breach of any
provision hereof, the respective rights and obligations hereunder
shall be enforceable by specific performance, injunction or other
equitable remedy, but nothing herein contained is intended to,
nor shall it, limit or affect any right or rights at law or by
statute or otherwise of a Member or Economic Interest Owners
aggrieved as against a party for a breach or threatened breach of
any provision hereof; it being the intention hereof to make clear
the agreement of the Members and Economic Interest Owners that
the respective rights and obligations of the Members and Economic
Interest Owners hereunder shall be enforceable in equity as well
as at law or otherwise.
10.10 Attorney's Fees. In the event of a default by a
Member or Economic Interest Owner under this LLC Agreement, the
non-defaulting Members and Economic Interest Owners shall be
entitled to recover all costs and expenses, including attorney's
fees, incurred as a result of said default or in connection with
the enforcement of this LLC Agreement.
10.11 Counterparts. This LLC Agreement may be executed
in two (2) or more counterparts, all of which taken together
shall constitute one (1) instrument.
10.12 Saving Clause. In the event any provision of this LLC
Agreement shall be, or shall be found to be, contrary to the
Delaware Act, such provision shall be deemed amended so as to
conform with such Act.
10.13 Further Documentation. Each of the parties hereto
agrees in good faith to execute such further or additional
documents as may be necessary or appropriate to fully carry out
the intent and purpose of this LLC Agreement.
10.14 Incorporation of Recitals. The preamble and
recitals to this LLC Agreement are hereby incorporated by
reference and made an integral part hereof.
10.15 Indemnification. The Company shall indemnify any
Member, representative on the Management Committee, Chairman or
officer of the Company (each referred to as an "Indemnified
Party") who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, arbitration, suit
or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the
Company, by reason of the fact that such Indemnified Party is or
was a Member, representative on the Management Committee,
Chairman or officer of the Company or is or was serving at the
request of the Company as a director or officer of another
corporation, partnership, joint venture, trust, or other
enterprise, against liability incurred in connection with such
action, arbitration, suit or proceeding, including attorneys'
fees, judgments, fines and amounts paid in settlement actually
and reasonably incurred by such Indemnified Party in connection
with such action, arbitration, suit or proceeding, including any
appeal thereof, if such Indemnified Party acted in good faith and
in a manner such Indemnified Party reasonably believed to be in
or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe such Indemnified Party's conduct was unlawful,
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such Indemnified Party shall
have been adjudged to be liable for gross negligence or gross
misconduct in the performance of such Indemnified Party's duty to
the Company unless and only to the extent that the court or
arbitration in which the action, arbitration or suit was brought
determines upon application that, despite the adjudication of
liability and in view of all the circumstances of the case, such
Indemnified Party is fairly and reasonably entitled to indemnity
for such expenses which the court or arbitration shall deem
proper. The termination of any action, arbitration, suit, or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nob contendere or its equivalent, shall not, of itself,
create a presumption that the Indemnified Party did not act in
good faith and in a manner which such Indemnified Party
reasonably believed to be in or not opposed to the best interests
of the Company and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such Indemnified
Party's conduct was unlawful.
IN WITNESS WHEREOF, the parties hereto have signed this LLC
Agreement on the date first above written.
Custom Energy Holdings, L.L.C.
a Delaware limited liability company
By: /s/Xxxxxxx X. Xxxxx
Name:
Title:
Strategic Energy, L.L.C.
a Delaware limited liability
company
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CEO & Pres.
Consented to by the holders of
Series SEL Voting Interests:
SE Holdings, L.L.C.,
a Delaware limited liability company
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CEO & Pres.
KLT Energy Services Inc.,
a Missouri corporation
By: /s/Xxxx X. English
Name: Xxxx X. English
Title: Secretary
MTB Energy, Inc.,
a Missouri corporation
By: /s/Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: President
Environmental Lighting Concepts, Inc.,
a Minnesota corporation
By: /s/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
EXHIBIT A
LIMITED LIABILITY COMPANY AGREEMENT OF STRATEGIC ENERGY, L.L.C.
Description and Number of Units
Fair Market Value of of
Initial Capital Economic and Voting
Name Contribution Interests
---------------- ---------------------- -------------------
Custom Energy $ 10,000,000
Holdings, L.L.C.
TOTAL $ 10,000,000
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
STRATEGIC ENERGY, L.L.C.
This Amendment No. 1 (the "Amendment") to the Amended and
Restated Limited Liability Company Agreement of Strategic Energy,
L.L.C. dated as of December 31, 1999 (the "LLC Agreement") is
made and entered into this 27th day of April, 2001, by and
between Custom Energy Holdings, L.L.C., a Delaware limited
liability company ("CE" or the "Member") and Strategic Energy,
L.L.C., a Delaware limited liability company (the "Company").
Whereas, MTB Energy, Inc., a Missouri corporation, has
agreed to transfer and exchange all of its Series SEL Economic
Interest and Series SEL Voting Interest (as those terms are
defined in the Amended and Restated Limited Liability Company
Agreement of Custom Energy Holdings, L.L.C., dated as of December
31, 1999) in CE to KLT Energy Services Inc., and
Whereas, the Member and the Company wish to make certain
amendments to the LLC Agreement to reflect the effects of this
transfer and exchange, as set forth in this Amendment, to be
effective as of the closing date of said transfer and exchange of
Interests.
Now, therefore, in consideration of the mutual covenants and
benefits set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. The second paragraph of Section 3.1 of the LLC Agreement is
deleted and the following paragraph inserted in lieu thereof:
The Management Committee shall consist of four (4)
representatives, two (2) of whom shall be appointed by
KLT, one (1) of whom shall be appointed by ELC, and one
(1) of whom shall be appointed by Holdings. In the
event of the resignation or death of a representative,
the vacancy shall be promptly filled by a nominee of
the Person who appointed the departing representative.
The appointment of each representative on the
Management Committee subsequent to the initial
representatives named in this Section 3.1 shall be
evidenced by an appointment, and acceptance of
appointment, in a writing delivered to the Company by
the Person entitled to appoint such representative.
Each representative will serve on the Management
Committee at the pleasure of the Person appointing him
or her. The Management Committee shall, as of the
effective date of this Amendment No. 1, consist of P.
Xxx Xxxxxxxxxx and Xxxxxxx X. Xxxxx (appointed by KLT),
Xxxx X. Xxxxxxxxx (appointed by ELC) and Xxxxxxx X.
Xxxxxx (appointed by Holdings).
2. Section 3.5 of the LLC Agreement is deleted and the following
section inserted in lieu thereof:
3.5. Quorum. The presence of representatives appointed
by Persons holding, in aggregate, a majority of the
Units of Series SEL Voting Interest shall constitute a
quorum at any duly called meeting of the Management
Committee.
3. Section 3.6 of the LLC Agreement is deleted and the following
section inserted in lieu thereof:
3.6. Voting. Each representative on the Management
Committee shall be entitled to a vote upon each matter
submitted or required to be submitted to a vote at a
meeting of the Management Committee in proportion to
the percentage of Units of Series SEL Voting Interest
held by the Person appointing such representative. An
affirmative vote of the representatives appointed by
Persons holding, in aggregate, a majority of the Units
of Series SEL Voting Interest shall be required to
approve the action to be taken by the Management
Committee, except for matters requiring a unanimous
vote set forth in Section 3.12.
4. The first paragraph of Section 3.13 of the LLC Agreement is
deleted and the following paragraph inserted in lieu thereof:
3.13 Powers of the Management Committee. In addition
to that contemplated above, the Management Committee
shall have the power to do the following upon the
affirmative vote of the representatives appointed by
Persons holding, in aggregate, a majority of the Units
of Series SEL Voting Interest, without the consent of
the Members:
5. The first sentence of Section 3.15 of the LLC Agreement is
deleted and the following sentence inserted in lieu thereof:
The Management Committee, by an affirmative vote of the
representatives appointed by Persons holding, in
aggregate, a majority of the Units of Series SEL Voting
Interest, may remove the Chief Executive Officer, in
its sole and absolute discretion if, at any time or
from time to time, it becomes dissatisfied with the
Chief Executive Officer's performance under this
Agreement (regardless of whether such dissatisfaction
shall constitute legal "cause" for termination).
6. This Amendment No. 1 will automatically become effective as
of the closing date of the transfer and exchange of Interests
pursuant to that certain Exchange Agreement between KLT Energy
Services Inc. and MTB Energy, Inc., dated effective as of January
1, 2001.
[signature page follows]
In witness whereof, the parties hereto have signed this
Amendment on the date first above written.
Custom Energy Holdings,
L.L.C.,
a Delaware limited liability
company
By:/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
and Chief Executive Officer
Strategic Energy, L.L.C.,
a Delaware limited liability
company
By: /s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
and Chief Executive Officer
Consented to by the holders of
Series SEL Voting Interests:
SE Holdings, L.L.C.,
a Delaware limited liability company
By: /s/Xxxxxxx X. Xxxxxx
Name: _______________________
Title: ______________________
KLT Energy Services Inc.,
a Missouri corporation
By: /s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Treasurer
Environmental Lighting Concepts, Inc.,
a Minnesota corporation
By: /s/Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, President
MTB Energy, Inc.
By: /s/L. Xxx Xxxxxxx
L. Xxx Xxxxxxx, CEO
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
STRATEGIC ENERGY, L.L.C.
This Amendment No. 1 (the "Amendment") to the
Amended and Restated Limited Liability Company
Agreement of Strategic Energy, L.L.C. dated as of
December 31, 1999 (the "LLC Agreement") is made and
entered into this 27th day of April, 2001, by and
between Custom Energy Holdings, L.L.C., a Delaware
limited liability company ("CE" or the "Member") and
Strategic Energy, L.L.C., a Delaware limited liability
company (the "Company").
Whereas, MTB Energy, Inc., a Missouri corporation,
has agreed to transfer and exchange all of its Series
SEL Economic Interest and Series SEL Voting Interest
(as those terms are defined in the Amended and Restated
Limited Liability Company Agreement of Custom Energy
Holdings, L.L.C., dated as of December 31, 1999) in CE
to KLT Energy Services Inc., and
Whereas, the Member and the Company wish to make
certain amendments to the LLC Agreement to reflect the
effects of this transfer and exchange, as set forth in
this Amendment, to be effective as of the closing date
of said transfer and exchange of Interests.
Now, therefore, in consideration of the mutual
covenants and benefits set forth below, and other good
and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as
follows:
1. The second paragraph of Section 3.1 of the LLC
Agreement is deleted and the following paragraph
inserted in lieu thereof:
The Management Committee shall consist of four (4)
representatives, two (2) of whom shall be
appointed by KLT, one (1) of whom shall be
appointed by ELC, and one (1) of whom shall be
appointed by Holdings. In the event of the
resignation or death of a representative, the
vacancy shall be promptly filled by a nominee of
the Person who appointed the departing
representative. The appointment of each
representative on the Management Committee
subsequent to the initial representatives named in
this Section 3.1 shall be evidenced by an
appointment, and acceptance of appointment, in a
writing delivered to the Company by the Person
entitled to appoint such representative. Each
representative will serve on the Management
Committee at the pleasure of the Person appointing
him or her. The Management Committee shall, as of
the effective date of this Amendment No. 1,
consist of P. Xxx Xxxxxxxxxx and Xxxxxxx X. Xxxxx
(appointed by KLT), Xxxx X. Xxxxxxxx (appointed by
ELC) and Xxxxxxx X. Xxxxxx (appointed by
Holdings).
2. Section 3.5 of the LLC Agreement is deleted and
the following section inserted in lieu thereof:
3.5 Quorum. The presence of representatives
appointed by Persons holding, in aggregate, a
majority of the Units of Series SEL Voting
Interest shall constitute a quorum at any duly
called meeting of the Management Committee.
3. Section 3.6 of the LLC Agreement is deleted and
the following section inserted in lieu thereof:
3.6 Voting. Each representative on the
Management Committee shall be entitled to a vote
upon each matter submitted or required to be
submitted to a vote at a meeting of the Management
Committee in proportion to the percentage of Units
of Series SEL Voting Interest held by the Person
appointing such representative. An affirmative
vote of the representatives appointed by Persons
holding, in aggregate, a majority of the Units of
Series SEL Voting Interest shall be required to
approve the action to be taken by the Management
Committee, except for matters requiring a
unanimous vote set forth in Section 3.12.
4. The first paragraph of Section 3.13 of the LLC
Agreement is deleted and the following paragraph
inserted in lieu thereof:
3.13 Powers of the Management Committee. In
addition to that contemplated above, the
Management Committee shall have the power to do
the following upon the affirmative vote of the
representatives appointed by Persons holding, in
aggregate, a majority of the Units of Series SEL
Voting Interest, without the consent of the
Members:
5. The first sentence of Section 3.15 of the LLC
Agreement is deleted and the following sentence
inserted in lieu thereof:
The Management Committee, by an affirmative vote
of the representatives appointed by Persons
holding, in aggregate, a majority of the Units of
Series SEL Voting Interest, may remove the Chief
Executive Officer, in its sole and absolute
discretion if, at any time or from time to time,
it becomes dissatisfied with the Chief Executive
Officer's performance under this Agreement
(regardless of whether such dissatisfaction shall
constitute legal "cause" for termination).
6. This Amendment No. 1 will automatically become
effective as of the closing date of the transfer and
exchange of Interests pursuant to that certain Exchange
Agreement between KLT Energy Services Inc. and MTB
Energy, Inc., dated effective as of January 1, 2001.
[signature page follows]
In witness whereof, the parties hereto have signed
this Amendment on the date first above written.
Custom Energy Holdings, L.L.C.,
a Delaware limited liability company
By:/s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President and Chief
Executive Officer
Strategic Energy, L.L.C.,
a Delaware limited liability company
By:/s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President and Chief
Executive Officer
Consented to by the holders of
Series SEL Voting Interests:
SE Holdings, L.L.C.,
a Delaware limited liability company
By:/s/Xxxxxxx X. Xxxxxx
KLT Energy Services Inc.,
a Missouri corporation
By:/s/Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, Treasurer
Environmental Lighting Concepts, Inc.,
a Minnesota corporation
By:/s/Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, President
