EXHIBIT 4.10
LIMITED LIABILITY COMPANY AGREEMENT
OF
NOBLE DRILLING HOLDING LLC
A DELAWARE LIMITED LIABILITY COMPANY
This LIMITED LIABILITY COMPANY AGREEMENT OF Noble Drilling Holding LLC
(this "AGREEMENT"), effective as of August 6, 2002 (the "EFFECTIVE DATE"), is
executed by Noble Drilling Holding Limited, a Cayman Islands company limited by
shares, as the sole member (the "INITIAL MEMBER").
The Initial Member hereby forms a limited liability company pursuant to
and in accordance with the Delaware Limited Liability Company Act (6 Del. C.
Section 18-101, et seq.), as amended from time to time (the "ACT"), and hereby
agrees as follows:
SECTION 1. NAME. The name of the limited liability company is
Noble Drilling Holding LLC (the "COMPANY").
SECTION 2. PURPOSE. The Company is formed for the object and
purpose of, and the nature of the business to be conducted and promoted by the
Company is, engaging in any lawful act or activity for which limited liability
companies may be formed under the Act and engaging in any and all activities
necessary or incidental to the foregoing.
SECTION 3. REGISTERED OFFICE. The address of the registered
office of the Company in the State of Delaware is 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
SECTION 4. REGISTERED AGENT. The name of the registered agent of
the Company for service of process on the Company in the State of Delaware is
The Corporation Trust Company.
SECTION 5. PRINCIPAL OFFICE. The address of the principal office
of the Company is 13135 South Dairy Ashford, Xxxxx 000, Xxxxx Xxxx, Xxxxx 00000.
SECTION 6. MEMBERS; SHARING RATIOS. The name and the business
mailing address of the Initial Member, as of the date hereof, is as follows:
NAME ADDRESS
---- -------
Noble Drilling Holding Limited P.O. Box 309
Xxxxxx House
South Church Street
Georgetown, Grand Cayman
As used herein, the term "MEMBER" means the Initial Member and each other Person
(as defined in the Act) that is hereafter admitted to the Company as a Member in
accordance with this Agreement. The term "MEMBERSHIP INTEREST" shall mean a
Member's limited liability company
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interest, and each Membership Interest shall have associated with it a "SHARING
RATIO" (herein so called) that establishes the ratio, expressed as a percentage,
of each Member's Membership Interest to the Membership Interests of all of the
Members. The initial Sharing Ratio of Noble Drilling Holding Limited is 100%.
SECTION 7. POWERS; MANAGEMENT.
(a) Management by Managers.
(i) The powers of the Company shall be exercised
by or under the authority of, and the business and affairs of
the Company shall be managed under the direction of, its
Managers. Except as provided in this Agreement or in the Act,
no Member, in its capacity as a Member, has the right, power
or authority to act for or on behalf of the Company, to do any
act that would be binding on the Company, or to incur any
expenditures on behalf of the Company.
(ii) In managing the business and affairs of the
Company and exercising its powers, the Managers shall act (A)
collectively through resolutions adopted at meetings and in
written consents pursuant to Sections 7(c) and 7(f); and (B)
through Officers (as defined in Section 7(g)) to which
authorities and duties have been delegated pursuant to Section
7(h). Decisions or actions taken by the Managers in accordance
with this Agreement shall constitute decisions or actions by
the Company and shall be binding on the Managers and each
Member, Officer and employee of the Company.
(b) Designation of Managers. The initial Managers shall
be Xxxxx X. Xxxxxx and Xxxx X. Xxx. The Members may add Managers or
change existing Managers from time to time.
(c) Meetings of Managers. Regular meetings of the
Managers may be held on such dates and at such times as shall be
determined by the Managers, with notice of the establishment of such
regular meeting schedule being given to each Manager that was not
present at the meeting at which it was adopted. Special meetings of the
Managers may be called by any Manager by notice thereof (specifying the
place and time of such meeting) that is delivered to each other Manager
at least 24 hours prior to such meeting. Neither the business to be
transacted at, nor the purpose of, such special meeting need be
specified in the notice (or waiver of notice) thereof. Unless otherwise
expressly provided in this Agreement, at any meeting of the Managers, a
majority of the Managers shall constitute a quorum for the transaction
of business, and an act of a majority of the Managers who are present
at such a meeting at which a quorum is present shall be the act of the
Managers.
(d) Compensation. The Managers shall not receive any
compensation for their services. The Managers shall be entitled to be
reimbursed for out-of-pocket costs and expenses incurred in the course
of their service hereunder.
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(e) Meetings of Members. An annual meeting of the Members
for the transaction of such business as may properly come before the
meeting shall be held on such date and at such time as the Managers
shall specify in the notice of the meeting, which shall be delivered to
each Member at least 20 days prior to such meeting. Special meetings of
the Members may be called by the Managers or by one or more Members
owning, in the aggregate, at least ten percent of the Sharing Ratios of
all Members. Any such meeting shall be held on such date and at such
time as the Person calling such meeting shall specify in the notice of
the meeting, which shall be delivered to each Member at least ten days
prior to such meeting. Only business within the purpose or purposes
described in the notice (or waiver thereof) for such meeting may be
conducted at such meeting. Unless otherwise expressly provided in this
Agreement, at any meeting of the Members, Members holding among them at
least a majority of all Sharing Ratios (a "MAJORITY INTEREST"),
represented either in person or by proxy, shall constitute a quorum for
the transaction of business, and an act of a Majority Interest shall be
the act of the Members.
(f) Provisions Applicable to All Meetings. In connection
with any meeting of the Managers, Members or any committee of the
Managers, the following provisions shall apply:
(i) Place of Meeting. Any such meeting shall be
held at the principal place of business of the Company, unless
the notice of such meeting (or resolution of the Managers or
committee thereof, as applicable) specifies a different place,
which need not be in the State of Delaware.
(ii) Waiver of Notice Through Attendance.
Attendance of a Person at such meeting (including pursuant to
Section 7(f)(v)) shall constitute a waiver of notice of such
meeting, except where such Person attends 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.
(iii) Proxies. A Person may vote at such meeting
by a written proxy executed by that Person and delivered to
another Manager, Member or member of the committee, as
applicable. A proxy shall be revocable unless it is stated to
be irrevocable.
(iv) Action by Written Consent. Any action
required or permitted to be taken at such a meeting 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, is signed by the Managers, Members, or member
of the committee, as applicable, having not fewer than the
minimum number of Sharing Ratios or votes that would be
necessary to take the action at a meeting at which all
Managers, Members, or members of the committee, as applicable,
entitled to vote on the action were present and voted.
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(v) Meetings by Telephone. Managers, Members or
members of the committee, as applicable, may participate in
and hold such meeting by means of conference telephone, video
conference or similar communications equipment by means of
which all Persons participating in the meeting can hear each
other.
(g) Officers.
(i) The Managers may, from time to time,
designate one or more Persons to be officers of the Company
("OFFICERS"). No officer need be a Member or Manager. Any
Officer so designated shall have such authority and perform
such duties as the Managers may, from time to time, delegate
to them. The Managers may assign titles to particular
Officers. Each Officer shall hold office until his successor
shall be duly designated and shall qualify or until his death
or until he shall resign or shall have been removed in the
manner hereinafter provided. Any number of offices may be held
by the same Person. The salaries or other compensation, if
any, of the Officers and agents of the Company shall be fixed
from time to time by the Managers. The duties of the
respective Officers are set forth in Section 7(h).
(ii) Any Officer may resign as such at any time.
Such resignation shall be made in writing and shall take
effect at the time specified therein, or if later, at the time
of its receipt by the Managers. The acceptance of a
resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation. Any Officer
may be removed as such, either with or without cause, by the
Managers whenever in their judgment the best interests of the
Company will be served thereby; provided, however, that such
removal shall be without prejudice to the contract rights, if
any, of the Person so removed and that designation of an
officer shall not of itself create contract rights. Any
vacancy occurring in any office of the Company shall be filled
by the Managers.
(h) Authority and Duties of Officers.
(i) Chairman. The Chairman, if elected by the
Managers, shall have such powers and duties as may be
prescribed by the Managers. Such Officer shall preside at all
meetings of the Members and of the Managers. The office of
Chairman may only be held by a Manager.
(ii) President. The President, if any, shall be
the chief executive officer of the Company and shall have
general executive charge, management, and control of the
properties and operations of the Company in the ordinary
course of its business, with all such powers with respect to
such properties and operations as may be reasonably incident
to such responsibilities. If the Managers have not elected a
Chairman or in the absence or inability to act of the
Chairman, the President shall exercise all of the powers and
discharge all of the duties of the Chairman. As between the
Company and third parties, any action taken by the
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President in the performance of the duties of the Chairman
shall be conclusive evidence that there is no Chairman or that
the Chairman is absent or unable to act.
(iii) Vice Presidents. Each Vice President, if
any, shall have such powers and duties as may be assigned to
him by the Managers, the Chairman or the President, and (in
order of their seniority as determined by the Managers 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.
(iv) Treasurer. The Treasurer, if any, 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 Managers, and shall perform such
other duties as may be prescribed by the Managers, the
Chairman or the President.
(v) Controller. The Controller, if any, shall
perform all of the duties incident to the office of Controller
and such other duties as from time to time may be assigned to
such person by the Managers, the Chairman, the President or
any Vice President.
(vi) Secretary. Except as otherwise provided in
this Agreement, the Secretary shall keep the minutes of all
meetings of the Managers 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, the
President or any Vice President, in the name of the Company,
all contracts of the Company. He shall in general perform all
duties incident to the office of the Secretary, subject to the
control of the Managers, the Chairman, the President and the
Vice Presidents.
(vii) Assistant Treasurers, Assistant Secretaries
and Assistant Controllers. Each Assistant Treasurer, Assistant
Secretary and Assistant Controller, if any, shall perform such
duties as shall be assigned to them by the Treasurer,
Secretary or Controller respectively, or by the Managers, the
Chairman, the President or the any Vice President. The
Assistant Treasurers, Assistant Secretaries and Assistant
Controllers (in the order of their seniority as determined by
the Managers or, in the absence of such a determination, as
determined by the length of time they have held such office)
shall exercise the powers of the Treasurer, Secretary or
Controller respectively, during that officer's absence or
inability to act.
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(i) Designation of Officers. The following persons shall
be the initial officers of the Company, and each is elected to the
office(s) of the Company set forth opposite his name below:
NAME OFFICE
---- ------
Xxxxx X. Xxxxxx Senior Vice President
Xxxx X. Xxx Secretary and Controller
(j) Limitations on Liability of Managers and Officers.
Except as provided otherwise in this Agreement, the Managers and
Officers shall conduct the affairs of the Company in good faith toward
the best interests of the Company. The Managers and Officers shall be
liable for errors or omissions in performing their duties with respect
to the Company only in the case of gross negligence, willful
misconduct, bad faith or breach of the provisions of this Agreement,
but not otherwise. The Managers and Officers shall devote such time and
effort to the Company's business and operations as is necessary to
promote fully the interests of the Company; however, no Manager or
Officer must devote full time to Company business.
(k) Conflicts of Interest. Subject to the other express
provisions of this Agreement, each Member, Manager, Officer or
affiliate thereof may engage in and possess interests in other business
ventures of any and every type and description, independently or with
others, including ones in competition with the Company, with no
obligation to offer to the Company or any other Member, Manager or
Officer the right to participate therein. The Company may transact
business with any Member, Manager, Officer or Affiliate thereof,
provided the terms of those transactions are no less favorable than
those the Company could obtain from unrelated third parties.
(l) Indemnification; Reimbursement of Expenses;
Insurance.
(i) THE COMPANY SHALL, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, INDEMNIFY EACH MEMBER, EACH
OFFICER, DIRECTOR, MANAGER, MEMBER, SHAREHOLDER, PARTNER,
EMPLOYEE, REPRESENTATIVE OR AGENT OF A MEMBER OR THEIR
RESPECTIVE AFFILIATES, AND EACH MANAGER, OFFICER, EMPLOYEE OR
AGENT OF THE COMPANY OR ITS AFFILIATES ("COVERED PERSONS") WHO
IS MADE A PARTY OR IS THREATENED TO BE MADE A PARTY TO ANY
THREATENED, PENDING OR COMPLETED ACTION, SUIT OR PROCEEDING,
WHETHER CIVIL, CRIMINAL, ADMINISTRATIVE OR INVESTIGATIVE
(OTHER THAN AN ACTION BY OR IN THE RIGHT OF THE CORPORATION),
BY REASON OF THE FACT THAT SUCH COVERED PERSON IS OR WAS A
MANAGER, OFFICER, EMPLOYEE OR AGENT OF THE COMPANY, OR IS OR
WAS SERVING AT THE REQUEST OF THE COMPANY AS A DIRECTOR,
OFFICER, EMPLOYEE OR AGENT OF A CORPORATION, PARTNERSHIP,
JOINT VENTURE, TRUST OR OTHER ENTERPRISE, AGAINST ANY AND
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ALL EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES
AND OTHER LEGAL FEES AND EXPENSES), JUDGMENTS, FINES,
SETTLEMENTS, AND OTHER LIABILITIES (WHETHER JOINT AND/OR
SEVERAL) ACTUALLY AND REASONABLY INCURRED BY OR IMPOSED UPON
SUCH COVERED PERSON IN CONNECTION WITH SUCH ACTION, SUIT OR
PROCEEDING IF SUCH COVERED PERSON ACTED IN GOOD FAITH AND IN A
MANNER SUCH COVERED PERSON 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 COVERED PERSON'S CONDUCT WAS
UNLAWFUL; PROVIDED, HOWEVER, THAT THE COMPANY SHALL NOT
INDEMNIFY A COVERED PERSON (A) FOR FRAUD, INTENTIONAL
MISCONDUCT, KNOWING VIOLATION OF THE LAW OR GROSS NEGLIGENCE,
OR (B) FOR ANY TRANSACTION FOR WHICH SUCH COVERED PERSON
RECEIVED A PERSONAL BENEFIT IN VIOLATION OR BREACH OF ANY
PROVISION OF THIS AGREEMENT. The termination of any proceeding
by judgment, order or settlement does not create a presumption
that the Covered Person did not meet the requisite standard of
conduct set forth in this Section 7(l)(i). Any indemnification
hereunder shall be satisfied solely out of the assets of the
Company. In no event may a Covered Person subject the Members
to personal liability by reason of these indemnification
provisions. The indemnification provided by this Section
7(l)(i) shall be in addition to any other rights to which a
Covered Person or any other Person may be entitled under any
agreement, pursuant to any vote of the Members, as a matter of
law or otherwise, and shall continue as to a Covered Person
who has ceased to serve in such capacity unless otherwise
provided in a written agreement with such Covered Person or in
the writing pursuant to which such Covered Person is
indemnified.
(ii) To the fullest extent permitted by
applicable law, expenses (including legal fees) incurred by a
Covered Person in investigating, preparing and/or defending
any civil, criminal, administrative or investigative action,
suit or proceeding shall, from time to time, be advanced by
the Company prior to the final disposition of such action,
suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Covered Person to repay
such amount if it shall be determined that the Covered Person
is not entitled to be indemnified as authorized in Section
7(l)(i).
(iii) The Company may purchase and maintain
insurance, at its expense, to the extent and in such amounts
as the Managers shall, in their discretion, deem reasonable,
on behalf of Covered Persons against any liability that may be
asserted against such Covered Person and incurred by such
Covered Person in such capacity, or arising out of such
Covered Person's status with the Company, regardless of
whether the Company would have the power to indemnify such
Covered Person against such liability under the provisions of
Section 7(l)(i) or applicable law. The Managers and the
Company may enter into
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indemnity contracts with Covered Persons and adopt written
procedures pursuant to which arrangements are made for the
advancement of expenses and the funding of obligations under
Section 7(l)(ii) and containing such other procedures
regarding indemnification as are appropriate.
(m) Certificates.
(i) If the Managers of the Company determine
that the Membership Interests of the Company shall be
represented by certificates, every record holder of a
Membership Interest shall be entitled to have a certificate or
certificates evidencing the Membership Interest owned by such
record holder. Certificates evidencing Membership Interests
shall be in such form as shall be approved by the Managers,
and may bear the seal of the Company or a facsimile thereof.
Certificates shall be consecutively numbered and shall state
the following upon the face thereof: (A) that the Company is a
limited liability company formed under the Act, (B) that the
certificates evidence Membership Interests and (C) the name of
the record holder in whose name the Membership Interests are
registered.
(ii) Certificates evidencing Membership Interests
shall be signed on behalf of the Company by one or more
Managers or Officers of the Company. The signatures of the
aforementioned Managers or Officers upon a certificate may be
facsimiles. In case any Manager or Officer who has signed a
certificate shall cease to be such Manager or Officer before
such certificate is issued, such certificate may nonetheless
be issued by the Company with the same effect as if such
Manager or Officer continued to serve in such capacity at the
date of issuance.
(iii) All certificates evidencing Membership
Interests shall have affixed thereto a legend substantially in
the following form:
THE INTEREST EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY SUCH
INTEREST MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
UNLESS REGISTERED UNDER SUCH ACT AND SUCH LAWS OR UNLESS
PURSUANT TO AN EXEMPTION THEREFROM. TRANSFERS, SALES, PLEDGES,
HYPOTHECATIONS AND OTHER DISPOSITIONS OF THE INTEREST
EVIDENCED BY THIS CERTIFICATE ARE FURTHER RESTRICTED BY THE
TERMS OF THE LIMITED LIABILITY COMPANY AGREEMENT REFERRED TO
BELOW.
(iv) The Company may issue a new certificate in
place of any certificate evidencing Membership Interests
alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the Person claiming the
certificate to be lost, stolen or destroyed. When authorizing
the issuance of a new certificate or certificates, the Company
may, in its discretion and as a condition
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precedent to the issuance thereof, require that the owner of
such lost, stolen or destroyed certificate or certificates, or
its legal representative, give the Company a bond sufficient
to indemnify the Company against any claim that may be made
against the Company on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such
new certificate.
(v) The Membership Interests shall be securities
under Chapter 8 of the Uniform Commercial Code.
SECTION 8. DISSOLUTION. The Company shall dissolve and its
affairs shall be wound up upon the first to occur of the following: (a) the
written consent of the Members holding at least 66-2/3% of the Sharing Ratios of
Members, (b) at any time there is no Member unless, within 90 days after the
first date that there is no Member, a new Member is admitted to the Company in
the manner provided in Section 18-801(a)(4)(ii) of the Act, or (c) the entry of
a decree of judicial dissolution under Section 18-802 of the Act.
Unless otherwise provided by this Agreement, the death, retirement,
resignation, expulsion, bankruptcy or dissolution of any Member or the
occurrence of any other event that terminates the continued membership of any
Member shall not cause the Company to be dissolved or its affairs to be wound
up, unless within 90 days following the occurrence of such event, the Member
agrees in writing to dissolve the Company as provided in Section 18-801(b) of
the Act.
SECTION 9. CAPITAL CONTRIBUTIONS. The Members may, from time to
time, make contributions to the capital of the Company in such amounts and such
form that, in the judgment of the Managers, are desirable to enable the Company
to cause the assets of the Company to be properly operated and maintained and to
discharge its costs, expenses, obligations and liabilities.
SECTION 10. ADDITIONAL CONTRIBUTIONS. No Member is required to
make any additional capital contribution to the Company.
SECTION 11. TAX CHARACTERIZATION. So long as the Company is owned
solely by the Initial Member, the Company will, in accordance with Treasury
Regulation Section 301.7701-3 (and any corresponding provisions of applicable
state tax law), elect to be disregarded as an entity that is separate from the
Member and instead be treated as a division of the Member.
SECTION 12. DISTRIBUTIONS AND ALLOCATION OF PROFITS AND LOSSES.
Distributions shall be made to the Members at the times and in the aggregate
amounts determined by the Managers. All of the Company's profits and losses
shall be allocated to the Members in accordance with their Sharing Ratios.
SECTION 13. ASSIGNMENTS. The Initial Member may freely assign, in
whole or in part, its Membership Interest.
SECTION 14. RESIGNATION. Except to the extent set forth in
Section 8 hereto, the Initial Member may not resign from the Company.
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SECTION 15. ADMISSION OF ADDITIONAL MEMBERS. One or more
additional members of the Company may be admitted to the Company with the
consent of the Initial Member. Prior to the admission of any additional Member,
this Agreement shall be amended to the extent necessary or desirable to reflect
the admission to the Company of such additional Member and to reflect the fact
that the Company will then have more than one Member.
SECTION 16. LIABILITY OF MEMBER. The Initial Member shall not
have any liability for the obligations or liabilities of the Company except to
the extent provided in the Act.
SECTION 17. FOREIGN QUALIFICATION. The Company shall comply with
all requirements necessary to qualify as a foreign limited liability company in
any foreign jurisdiction in which such qualification is necessary under
applicable law.
SECTION 18. NO PARTNERSHIP. The Initial Member intends that the
Company not be treated as or construed to be a partnership (including a limited
partnership) or joint venture for purposes of the laws of any jurisdiction, and
that, in the event that the Company is or becomes owned by more than one Member,
no Member thereafter will be treated as a partner or joint venturer of any other
Member, for any purposes from and after such date, other than for purposes of
applicable United States tax laws, and this Agreement may not be construed to
suggest otherwise.
SECTION 19. BOOKS, RECORDS AND BANK ACCOUNTS.
(a) Maintenance of Books. Complete and accurate books and
records of the Company shall be kept at the principal office of the
Company supporting documentation of the transactions with respect to
the conduct of the Company's business and minutes of the proceedings of
its Members and Managers. The books and records shall be maintained
with respect to accounting matters in accordance with sound accounting
practices. All books and records shall be available at the Company's
principal office for examination by any Member at any and all
reasonable times during normal business hours.
(b) Accounts. The Company shall establish one or more
separate bank an investment accounts and arrangements for the Company.
SECTION 20. GOVERNING LAW. This Agreement shall be governed by,
and construed under, the laws of the State of Delaware, all rights and remedies
being governed by said laws.
[Signature page follows.]
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IN WITNESS WHEREOF, the Initial Member has adopted, duly executed and
delivered this Agreement, to be effective as of August 6, 2002.
THE INITIAL MEMBER:
NOBLE DRILLING HOLDING LIMITED
a Cayman Islands company limited by
shares
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: XXXXX X. XXXXXX
Title: Senior Vice President
SIGNATURE PAGE LLC AGREEMENT OF NOBLE DRILLING HOLDING LLC
