Exhibit 3.18
LIMITED LIABILITY COMPANY AGREEMENT
OF
BUCKEYE MT. XXXXX LLC
DATED AS OF SEPTEMBER 10, 1999
BY AND BETWEEN
BUCKEYE LUMBERTON INC.
AND
BUCKEYE MT. XXXXX LLC
LIMITED LIABILITY COMPANY AGREEMENT
OF
BUCKEYE MT. XXXXX LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT of BUCKEYE MT. XXXXX LLC is made
as of the 10th day of September, 1999, by Buckeye Lumberton Inc., a North
Carolina corporation (the "Member"), and Buckeye Mt. Xxxxx LLC, a Delaware
limited liability company (the "Company").
RECITALS:
WHEREAS, the Member wishes to form a limited liability company pursuant
to the Delaware Limited Liability Company Act, Title 6, Section 18-101 et seq.
of Delaware Code, as amended from time to time (the "Act") by filing the
Certificate of Formation of the Company with the office of the Secretary of
State of the State of Delaware and by entering into this Agreement, for the
purposes described in Article 2 hereof.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein, the Member and the Company agree as follows:
ARTICLE 1.
DEFINITIONS
As used in this Agreement, the following underlined terms shall have the
following meanings:
1.1 Agreement. This Limited Liability Company Agreement, including any
instruments incorporated by reference, as amended from time to time.
1.2 Available Cash. As of any date, the cash of the Company as of such
date less such portion thereof as the Board of Managers determine to reserve for
Company expenses, debt payments, capital improvements, replacements and
contingencies.
1.3 Capital Contribution. With respect to the Member, the amount of money
and the initial gross asset value of any property (other than money) contributed
to the Company with respect to the Member Interest held by the Member.
1.4 Company. Buckeye Mt. Xxxxx LLC, a Delaware limited liability company.
1.5 Board of Managers. The Managers of the Company that will have the
authority and powers set forth in Article 6.
1.6 Member. The sole member is Buckeye Lumberton Inc.
1.7 Member Interest. As to the Member, its capital account, percentage
interest, right to distributions, right to profits and losses, right to manage
the Company, and any other rights which such Member has in the Company pursuant
to this Agreement or otherwise.
1.8 Person. A natural person or an entity, such as, but not limited to, a
corporation, general partnership, joint venture, limited partnership, trust or
business trust.
ARTICLE 2.
GENERAL
2.1 Registered Office and Agent. The registered office of the Company in
the State of Delaware and the Company's registered agent for service of process
in the State of Delaware shall be Corporation Service Company, 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000.
2.2 Character of Business of Company. The purpose of the Company is to
conduct or engage in any lawful act or activity permitted under applicable law.
2.3 Term. The Company shall continue until the Company is dissolved under
Article 8.
ARTICLE 3.
CAPITAL
3.1 Capital Contributions. Upon the execution and delivery of this
Agreement, the Member made a Capital Contribution of cash in the amount of
$10.00. The Member may make, but shall not be required to make, any additional
capital contribution to the Company.
ARTICLE 4.
DISTRIBUTIONS
4.1 Distributions. Except as otherwise provided in this Agreement, the
Company's Available Cash shall be distributed to the Member at such times and in
such amounts as the Board of Managers may determine.
ARTICLE 5.
TAX STATUS
5.1 Tax Status. The Member intends that the Company be disregarded for
federal, state and local income tax purposes and that any income or loss of the
Company will be treated as the income or loss of the Member for all such tax
purposes.
ARTICLE 6.
MEMBERS: MANAGEMENT OF COMPANY
6.1 Board of Managers. The Company shall be managed by a Board of Managers
comprised not fewer than two (2) or more than ten (10) persons (the "Board of
Managers"). Except as otherwise provided herein, the Board of Managers of the
Company shall have full and complete authority, power and discretion to manage
and control the business, affairs and properties of the Company, to make all
decisions regarding those matters and to perform any and all other acts or
activities which the Board of Managers deems necessary, useful or appropriate
for the management and conduct of the Company's business and affairs, including
the execution and delivery of any and all instruments, certificates, documents
and agreements in connection with the Company's business. Each Member of the
Board of Managers shall be appointed by the Member and shall serve until
removal, resignation or death.
6.2 Removal; Resignation; Vacancies. The Member may, at any time by
written notice to any Manager, remove such Manager. Any Manager may resign at
any time by giving written notice to the Member. Any such resignation shall take
effect on the date of or specified in such notice or, if such notice is not
dated and the date of resignation is not specified in such notice, on the date
of the receipt of such notice by the Member. No acceptance of such resignation
shall be necessary to make it effective. Upon the resignation of any Manager or
other termination of a Manager's position with the Company, the Member may
appoint a new Manager. Upon the resignation or other termination of the last
remaining Manager, the Member shall appoint a new Manager. All appointments
shall be by written notice from the Member to all Managers including any
resigning and newly appointed Managers.
6.3 Role of Member.
(a) The Member shall not have any right or power to take part in the
management or control of the Company or its business and affairs or to act for
or bind the Company in any way. Notwithstanding the foregoing, the Member shall
have all of the rights and powers specifically set forth in this Agreement and,
to the extent not inconsistent with this Agreement, the Act.
(b) The Member shall have voting rights solely with respect to matters for
which the approval of the Member is affirmatively required by the Act.
6.4 Quorum. A majority of the Board of Managers as constituted for the
time being shall constitute a quorum for the transaction of business, but a
lesser number may adjourn any meeting and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting, a majority of
the Board of Managers present shall decide any matter or question brought before
such meeting, except as otherwise provided by law or by this Agreement. The fact
that a member of the Board of Managers has an interest in a matter to be voted
on at the meeting shall not prevent his being counted for purposes of a quorum.
In the event that a deadlock occurs on a matter or question before the Board of
Managers, then the position of the Board of Managers with respect to such matter
or question, and any duties and responsibilities connected therewith, prior to
such deadlocked vote shall remain status quo.
6.5 Delegation of Management to Officers. The Board of Managers may
delegate management authority of the Company to Officers of the Company
appointed by the Board. Each Officer shall hold office until his successor shall
have been duly elected and shall have been qualified in accordance with the
terms of this Agreement or until his death or until he shall resign or shall
have been removed in the manner hereinafter provided. An Officer serves at the
pleasure of the Board of Managers, who may remove an Officer at any time with or
without cause and who may eliminate any Officer position at any time. The
removal of an Officer is without prejudice to the contractual rights of the
Officer, if any. Any Officer may resign at any time and for any reason. In the
event of a vacancy in any office because of death, resignation or removal, the
Board of Managers shall elect a successor to such office.
6.6 Informal Action by Managers. Any action required to be taken at a
meeting of the Board of Managers, or any other action which may be taken at a
meeting of the Board of Managers, may be taken without a meeting if all Managers
consent to taking such action without a meeting. If all Managers consent to
taking such action without a meeting, the affirmative vote
of the majority of the Managers is the act of the Board. The action must be
evidenced by one or more written consents describing the action taken, signed by
each Manager, indicating each signing Manager's vote or abstention on the
action, and shall be filed with the Company records reflecting the action taken.
ARTICLE 7.
EXCULPATION AND INDEMNIFICATION
7.1 Exculpation.
(a) Neither the Member nor any agent of the Member, including any Manager
or Officer (collectively, including the Member, the "Indemnified Parties"),
shall be liable to the Company for mistakes of judgment or for any action or
inaction, unless such mistakes, action or inaction arise out of, or are
attributable to, the gross negligence, willful misconduct or bad faith of the
Indemnified Party; nor shall any Indemnified Party be liable to the Company for
any action or inaction of any employee or agent of the Company or a Manager. Any
Indemnified Party may consult with counsel, accountants, investment bankers,
financial advisers, appraisers and other specialized, reputable, professional
consultants or advisers in respect of Company affairs and be fully protected and
justified in any action or inaction that is taken in accordance with the advice
or opinion of such persons, provided that they shall have been selected with
reasonable care.
(b) Notwithstanding any of the foregoing to the contrary, the provisions
of this Section 7.1 shall not be construed so as to relieve (or attempt to
relieve) the Indemnified Parties of any liability, to the extent (but only to
the extent) that such liability may not be waived, modified or limited under
applicable law (including the Act), but shall be construed so as to effectuate
the provisions of this Section 7.1 to the fullest extent permitted by applicable
law (including the Act).
7.2 Right to Indemnification.
(a) The Company shall indemnify and hold harmless, to the fullest extent
permitted by applicable law as it presently exists or may hereafter be amended,
any Indemnified Party who was or is made or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter, a "Proceeding") by
reason of such person's service to or on behalf of, or management of the affairs
of, the Company, or rendering of advise or consultation with respect thereto, or
that relate to the Company, its properties, business or affairs against all
liability and loss suffered and expenses (including attorneys' fees and
expenses) reasonably incurred by such person if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal proceeding, had
no reasonable cause to believe his or her action was unlawful; provided that the
Company shall not indemnify any person for any liability resulting or arising
from the gross negligence or willful misconduct of any such person. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner in which
he or she reasonably believed to be
in or not opposed to the best interests of the Company or, that he or she was
grossly negligent or that he or she engaged in wilful misconduct, and, with
respect to any criminal proceeding, had reasonable cause to believe that his or
her conduct was unlawful. The Company shall be required to indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by a Manager. The Company may, by action of any Manager, provide
indemnification to employees or agents of the Company with the same scope and
effect as the foregoing indemnification of the Member and the Manager provided
for in this Section 7.2.
(b) The right to indemnification conferred by this Section 7.2 shall be a
contract right based upon an offer from the Company which shall be deemed to be
accepted and acknowledged by each person who becomes a Manager of the Company.
(c) Any indemnification made under this Section 7.2 (unless ordered by a
court) shall be made by the Company only as authorized in the specific case upon
a determination that such indemnification is proper in the circumstances because
the person seeking indemnification has met the applicable standard of conduct
set forth in Section 7.2(a). Such determination shall be made by (A) any Manager
who is not a party to such proceeding or (B) by the Member.
7.3 Prepayment of Expenses. The Company may, in its discretion, pay the
expenses (including attorneys' fees) incurred by such Indemnified Party in
defending any such proceeding in advance of its final disposition, provided that
such advance payment shall be made only upon receipt of an undertaking, by or on
behalf of such Indemnified Party, to repay all amounts so advanced if it shall
ultimately be determined that such Indemnified Party is not entitled to be
indemnified under this Article 7 or otherwise.
7.4 Claims. If a claim for indemnification or payment of expenses under
this Article 7 is not paid in full by the Company within thirty (30) days after
a written claim has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expenses (including attorney's' fees) of prosecuting such
claim.
7.5 Nonexclusivity of Rights. The rights conferred on any person by this
Article 7 shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, this Agreement or any other agreement,
vote of the Member or otherwise.
7.6 Insurance. The Company may maintain insurance, at its expense, to
protect itself and the Managers or any employee, or agent of the Company against
any such expense, liability or loss, whether or not the Company would have the
power to indemnify such person against expense, liability or loss under
applicable law.
7.7 Amendment or Repeal. Any repeal or modification of this Article 7 by
the Member shall not adversely affect any right or protection of an Indemnified
Party existing at the time of such repeal or modification.
ARTICLE 8.
DISSOLUTION OF THE COMPANY
8.1 Events of Dissolution. The Company shall be dissolved and terminated
upon the earliest to occur of the following events of dissolution:
(a) The dissolution or bankruptcy of the Member;
(b) The entry of a decree of judicial dissolution under Section 18-802 of
the Act; and
(c) The consent of the Member.
8.2 Winding Up. If any of the events set forth in Section 8.1 hereof
occur, then the Company shall be dissolved and any assets shall be applied in
the following order of priority:
(a) To payment of the debts and liabilities of the Company (other than to
the Member) in the order of priority provided by law;
(b) To the establishment of reserves which are reasonably necessary for
any contingent or unforeseen liabilities or obligations of the Company;
(c) To the payment of debts and liabilities of the Company to the Member;
and
(d) The remaining assets shall be distributed to the Member.
ARTICLE 9.
NOTICES AND ADDRESSES
9.1 Manner of Notices. All notices or other communications given or made
under this Agreement shall be in writing and, whether addressed to the Company
or the Member, to:
Xxxxxx Xxxxxx Xxxxxxxxxx, Secretary and General Counsel
Buckeye Technologies Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
ARTICLE 10.
MISCELLANEOUS
10.1 Amendments. This Agreement shall be amended only with the written
consent of the parties hereto.
10.2 Severability. If any portion of this Agreement is declared by a court
of competent jurisdiction to be void or unenforceable, such portion shall be
deemed severed from this Agreement and the balance of this Agreement shall
remain in effect.
10.3 Construction. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of Delaware.
10.4 Entire Agreement. This Agreement, together with any instruments
incorporated into this Agreement by reference, constitutes the entire agreement
with respect to this Company.
IN WITNESS WHEREOF, this instrument has been executed by or on behalf of
the parties hereto as of the date first written above.
MEMBER:
Buckeye Lumberton Inc.
By:
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Its:
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COMPANY:
Buckeye Mt. Xxxxx LLC
Xxxxx X. Xxxxxxxx, Vice President
