EXHIBIT 3.6
AMENDED AND RESTATED OPERATING AGREEMENT
OF
DIGITALNET GOVERNMENT SOLUTIONS, LLC
Effective November 26, 2002
This Amended and Restated Operating Agreement (this "AGREEMENT") is made
effective as of November 26, 2002 by DigitalNet, Inc., a Delaware corporation
("PARENT" and, together with any party hereafter admitted as a member of the
Company in accordance with the terms hereof, the "MEMBERS").
The parties hereto, intending to be legally bound, hereby agree as follows:
1. FORMATION OF THE COMPANY. Getronics Government Solutions, L.L.C.
(the "COMPANY") was formed on October 1, 2000, upon the filing of a certificate
of formation (the "CERTIFICATE") with the Secretary of State of the State of
Delaware in accordance with the provisions of the Delaware Limited Liability
Company Act, as amended (the "ACT").
2. TERM. The Company will have perpetual existence unless terminated in
accordance with this Agreement.
3. NAME. The name of the Company will be "DigitalNet Government
Solutions, LLC" or such other name as may be determined from time to time by the
Board of Managers (the "BOARD").
4. PURPOSE; POWERS. The Company is organized for the object and purpose
of engaging in all such lawful transactions and business activities as may be
determined from time to time by the Board. The Company will have any and all
powers necessary or desirable to carry out the purposes and business of the
Company, to the extent the same may be lawfully exercised by limited liability
companies under the Act.
5. REGISTERED OFFICE AND AGENT. The address of the registered office of
the Company in the State of Delaware shall be the office of the initial
registered agent named in the Certificate or such other office (which need not
be a place of business of the Company) as the Board may designate from time to
time in the manner provided by law. The registered agent for service of process
on the Company in the State of Delaware at such registered office shall be the
registered agent named in the Certificate or such person or entity as the Board
may designate from time to time in the manner provided by law.
6. MEMBERS. Parent is the sole member of the Company. No Member (in its
capacity as such) shall have the right, power or authority to act for or on
behalf of the Company except as set forth in Section 7.
7. MANAGEMENT. The Board shall, except as otherwise expressly provided
by applicable law or this Agreement, be responsible and have sole right, power
and authority for all aspects of the management and direction of the Company and
shall have all of the powers and authorities permitted to be exercised by
managers under the Act in furtherance thereof. Only in the event that and for so
long as no Managers are appointed in accordance with Section 8, the
Members holding a majority of the Company's limited liability company interests
(the "MAJORITY IN INTEREST"), shall have the right, power and authority for the
management and direction of the Company and any action or determination
specified in this Agreement to be taken or made by the Board shall instead be
taken or made by the Members holding a Majority in Interest.
8. SELECTION OF MANAGERS.
(i) The Board may consist of one or more "MANAGERS" appointed from time
to time by the Members holding a Majority in Interest and in accordance with
that certain Amended and Restated Stockholders Agreement, dated as of
November 26, 2002, by and among Parent, DigitalNet Holdings, Inc., a Delaware
corporation and certain of its stockholders (the "STOCKHOLDERS AGREEMENT"). The
number of Managers may be established from time to time by Members holding a
Majority in Interest and in accordance with the Stockholders Agreement. Each
Manager appointed shall serve until his successor is appointed or until his
earlier resignation or death or removal in accordance with this Agreement and
the Stockholders Agreement. No Manager need be a resident of the State of
Delaware or a Member.
(ii) A Manager may be removed, with or without cause, by the Members
holding a Majority in Interest in accordance with the Stockholders Agreement. A
Manager may resign at any time upon written notice to the Company.
(iii) After the removal, resignation or death of any Manager, the Members
holding a Majority in Interest, in accordance with the Stockholders Agreement,
may appoint one person to fill any vacancy created thereby.
(iv) Unless another percentage is set forth herein or is required by
applicable law, any determination or action required to be taken by the Board
shall be taken by a majority of the Managers then in office. Regular meetings of
the Board may be held on such date and at such time and at such place as shall
from time to time be determined by the Board. Special meetings of the Board may
be called from time to time by the Chairman of the Board, if any, or the Chief
Executive Officer, and shall be called by the Chairman of the Board, if any, or
the Chief Executive Officer upon request by any two Managers. Notice of each
special meeting of the Board stating the date, place and time of such meeting
shall be given to each Manager by mail not less than forty-eight hours, or
personally or by telephone not less than twenty-four hours, before the date and
time of the meeting. Any action required or permitted to be taken by the Board
may be taken at a meeting of the Board or by a written consent executed by the
Managers having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting. Managers may
participate in a meeting of the Board by means of telephone conference or
similar communications equipment by which all persons participating in the
meeting can communicate with each other, and such participation in a meeting
shall constitute presence in person at the meeting.
9. DESIGNATION OF OFFICERS.
(i) The Board shall elect officers of the Company, including a Chairman
of the Board, a Chief Executive Officer, a Secretary, a Chief Financial Officer,
and such other officers and assistant officers (including, without limitation,
one or more Vice Presidents) as the
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Board may determine ("OFFICERS"). No Officer need be a resident of the State of
Delaware or a Member. The Board may use descriptive words or phrases to
designate the standing, seniority or area of special competence of the Officers
appointed. Any number of offices may be held by the same person. All Officers as
between themselves and the Company shall have such authority and perform such
duties in the management of the Company as may be provided in Section 10 or as
the Board may from time to time determine, and may act on behalf of the Company
in the manner and regarding such matters as is provided for in Section 10 or as
may be authorized by the Board. From time to time the Board may establish,
increase, reduce or otherwise modify responsibilities of the Officers of the
Company or may create or eliminate offices as the Board may consider
appropriate.
(ii) The salaries or other compensation, if any, of the Officers of the
Company shall be fixed from time to time by the Board. Each Officer elected by
the Board shall serve until his or her successor is duly appointed or, if
earlier, until his or her death, resignation or removal in the manner provided
herein. A vacancy in any office because of death, resignation, removal, or any
other cause shall be filled by the Board.
(iii) Any Officer may resign at any time by so notifying the Board and the
Secretary in writing. Such resignation shall take effect upon receipt of such
notice or at such later time as is therein specified, and unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective. Any Officer elected by the Board may be removed with or without cause
by the Board whenever in its judgment the best interest of the Company would be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the Officer so removed. The election of a person as an
Officer shall not of itself create a right to continued employment with the
Company.
10. OFFICERS OF THE COMPANY.
(i) The Chairman of the Board shall preside at all meetings of the
Board. During the absence or disability of the Chief Executive Officer, the
Chairman of the Board shall exercise all the powers and discharge all the duties
of the Chief Executive Officer.
(ii) The Chief Executive Officer shall, subject to the powers of the
Board, have the general powers and duties of management and supervision usually
vested in and imposed upon a chief executive officer (including general charge
of the business, affairs and property of the Company, and control over its
Officers, agents and employees); and shall see that all orders and resolutions
of the Board are carried into effect. The Chief Executive Officer shall have
such other powers and perform such other duties as may be assigned by the Board.
During the absence or disability of the Chairman of the Board or if there be no
Chairman of the Board, the Chief Executive Officer shall preside at all meetings
of the Board.
(iii) The Vice President, or if there shall be more than one, the Vice
Presidents in the order determined by the Board, shall, in the absence or
disability of the Chairman of the Board and the Chief Executive Officer, act
with all of the powers and be subject to all the restrictions of the Chief
Executive Officer. The Vice Presidents shall also perform such other duties and
have such other powers as the Board may from tune to time assign.
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(iv) The Secretary shall keep the minutes of the meetings of the Board.
The Secretary shall give, or cause to be given, all notices required to be given
by the Company or the Board, and shall have such powers and perform such duties
as the Board may from time to time assign.
(v) The Chief Financial Officer shall have the custody of the funds and
securities of the Company; shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Company; shall deposit all monies and
other valuable effects in the name and to the credit of the Company as may be
ordered by the Board; shall cause the funds of the Company to be disbursed when
such disbursements have been duly authorized, taking proper vouchers for such
disbursements; shall render to the Chief Executive Officer and the Board, when
the Chief Executive Officer or the Board so requires, an account of the Company,
and shall have such powers and perform such duties as the Board may from time to
time assign.
11. INDEMNIFICATION. Except as otherwise required by law or the
provisions of this Agreement, the Company shall indemnify (solely from assets of
the Company) its present and former Members, Officers and Managers and their
Affiliates, and their respective equityholders, officers, directors, principals,
employees and agents, as applicable, (each, an "INDEMNIFIED PERSON") against any
losses, liabilities, damages or expenses (including amounts paid for attorneys'
fees, judgments and settlements in connection with any threatened, pending or
completed action, suit or proceeding) to which any of such Persons may directly
or indirectly become subject for action taken or omitted to be taken on behalf
of the Company or in connection with any involvement with the Company or its
subsidiaries or in connection with any involvement with any other Person at any
of their request (including serving as a manager, officer, director, consultant
or employee of the Company or its subsidiaries or any such other Persons), but
only to the extent that such Person (or such Person's Affiliate) (a) acted with
the good faith belief that such action was not detrimental to the Company, (b)
did not knowingly or willfully breach the terms of this Agreement and (c) did
not commit a knowing violation of law. Expenses, including attorney fees and
expenses, incurred by any such Indemnified Person in defending a proceeding
shall be paid by the Company in advance of the final disposition of such
proceeding, including any appeal therefrom, upon receipt of an undertaking by or
on behalf of such Indemnified Person to repay such amount if it shall ultimately
be determined that such Indemnified Person is not entitled to be indemnified by
the Company. The right to indemnification and the advancement of expenses
conferred in this Section 11 shall not be exclusive of any other right which any
Person may have or hereafter acquire under any statute, agreement, by-law or
otherwise. For purposes of this Section 11, the term "AFFILIATE" of any
particular Person means (i) any other Person controlling, controlled by or under
common control with such particular Person, where "control" means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person whether through the ownership of voting securities, by
contract or otherwise, and (ii) if such Person is a partnership, any partner
thereof. For purposes of this Section 11, the term "PERSON" means an individual,
a partnership, a corporation, a limited liability company, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization or
a governmental entity or any department, agency or political subdivision
thereof.
12. CONTRIBUTIONS. In accordance with the provisions of the Act, Parent
made the contribution set forth on Schedule I in exchange for the 100% of the
Company's limited
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liability company interests. Parent may, but shall not be required to, make
additional contributions to the capital of the Company. In furtherance of the
foregoing, Parent shall not have any responsibility to contribute to or in
respect of liabilities or obligations of the Company, whether arising in tort,
contract or otherwise, or return distributions made by the Company except as
required by the Act. Persons or entities hereafter admitted as Members of the
Company shall make such contributions of cash (or promissory obligations),
property or services to the Company as shall be determined by the Members
holding a Majority in Interest at the time of each such admission. Schedule I
shall be maintained and amended as necessary to reflect any capital contribution
made by the Members. The failure of the Company to observe any formalities or
requirements relating to the exercise of its powers or management of its
business or affairs under this Agreement or the Act shall not be grounds for
imposing direct or indirect liability on the Members for liabilities of the
Company.
13. ALLOCATIONS OF PROFITS AND LOSSES. The Company's profits and losses
will be allocated among the Members PRO RATA in accordance with their respective
interests in the Company.
14. DISTRIBUTIONS. Distributions of cash or other assets of the Company
shall be made at such times and in such amounts as Board may determine, but
subject to any limitations imposed by any credit facility by which the Company
is bound.
15. ASSIGNMENTS. The Members may not sell, assign, pledge or otherwise
transfer or encumber (collectively, a "TRANSFER") all or any part of its
interest in the Company without the consent by Members holdings a Majority in
Interest. Any Transfer pursuant to this SECTION 15 shall be recognized by and
recorded in the books and records of the Company.
16. DISSOLUTION. The Company will be dissolved and its affairs will be
wound up and terminated only upon (i) the affirmative vote of the Members
holding a Majority in Interest and the Board or (ii) an administrative
dissolution or the entry of a decree of judicial dissolution under Section
18-802 of the Act. Upon dissolution, the Company will be liquidated in an
orderly manner by the Board.
17. AMENDMENTS TO AGREEMENT. The terms and provisions of this Agreement
may be modified or amended, or amended and restated, and new Members may be
admitted to the Company, at any time and from time to time with the written
consent of the Members holding a Majority in Interest.
18. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the internal laws (and not the laws of conflicts) of the state
of Delaware.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
MEMBER:
DIGITALNET, INC.
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxx
Its: Chief Financial Officer
