EXHIBIT 3.28
Limited Liability Company Agreement
Of
WinCup LP, L.L.C.
This Limited Liability Company Agreement of WinCup LP, L.L.C. (as it
may be amended from time to time, this "Agreement"), a Delaware limited
liability company, is made and effective as of January 5, 1999, by WinCup
Holdings, Inc., the initial Member hereunder.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Member executing this Agreement
hereby agrees as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
1.1. Act - The Delaware Limited Liability Company Act, 6 Del. C.(S)(S)
18-101 et seq., and all amendments to the Act.
1.2. Additional Member - A Member, other than the initial member
hereunder, who has acquired a Membership Interest directly from the Company.
1.3. Admission Agreement - The Agreement between an Additional Member
and the Company described in Article XII.
1.4. Assignee - A transferee of a Membership Interest who has not been
admitted as a Substituted Member.
1.5. Business Day - Any day other than Saturday, Sunday or any legal
holiday observed in the State of Delaware.
1.6. Capital Account - The account maintained for a Member determined
in accordance with Article VII.
1.7. Capital Contribution - Any contribution of property, services or
the obligation to contribute property or services made by or on behalf of a
Member.
1.8. Certificate - The Certificate of Formation of the Company as
executed by an authorized person and filed with the Secretary of State, as
amended from time to time.
1.9. Code - The Internal Revenue Code of 1986, as amended from time to
time.
1.10. Company - WinCup LP, L.L.C., a limited liability company formed
under the laws of the State of Delaware, and any successor limited liability
company.
1.11. Disposition (Dispose) - Any sale, assignment, transfer,
exchange, mortgage, pledge, grant, hypothecation, or other transfer, absolute or
as security or encumbrance.
1.12. Distribution - A transfer of Property to a Member on account of
a Membership Interest as described in Article VIII.
1.13. Majority - The affirmative vote or consent of Members described
as a "Majority" in Article V hereof.
1.14. Member - The initial Member party to this Agreement or an
Additional Member.
1.15. Membership Interest - A Member's share of the profits, losses,
gains deductions and credits of the Company and such Member's right to receive
Distributions (liquidating or otherwise) of the Company's assets.
1.16. Net Losses - The losses and deductions of the Company determined
in accordance with accounting principles consistently applied from year to year
employed under the method of accounting adopted by the Company and as reported
separately or in the aggregate, as appropriate, on the tax return of the Company
filed for federal income tax purposes.
1.17. Net Profits - The income and gains of the Company determined in
accordance with accounting principles consistently applied from year to year
employed under the method of accounting adopted by the Company and as reported
separately or in the aggregate, as appropriate, on the tax return of the Company
filed for federal income tax purposes.
1.18. Person - An individual, trust, estate, partnership, corporation,
joint venture or any incorporated or unincorporated organization.
1.19. Regulations - Except where the context indicates otherwise, the
permanent, temporary, proposed, or proposed and temporary regulations of
Department of the Treasury under the Code as such regulations may be lawfully
changed from time to time.
1.20. Related Person - A person having a relationship to a Member that
is described in (S) 1.752-4(b) of the Regulations.
1.21. Secretary of State - The Secretary of State of Delaware.
1.22. Sharing Ratio - With respect to any Member, a fraction
(expressed as a percentage), the numerator of which is the total of the Member's
Capital Account and the denominator is the total of all Capital Accounts of all
Members.
2
1.23. Substitute Member - An Assignee who has been admitted to all of
the rights of membership pursuant to this Agreement and the Act.
1.24. Taxable Year - The taxable year of the Company as determined
pursuant to (S) 706 of the Code.
ARTICLE II
FORMATION
2.1. Organization. The initial Member hereby organizes the Company as
a Delaware limited liability company pursuant to the provisions of the Act. The
initial Member is hereby authorized and directed to execute and cause the filing
of the Certificate with the Secretary of State.
2.2. Agreement. It is the express intention of the initial Member that
this Agreement shall be the sole agreement governing the operation of the
Company and, except to the extent a provision of this Agreement expressly
incorporates federal income tax rules by reference to sections of the Code or
Regulations or is expressly prohibited or ineffective under the Act, this
Agreement shall govern, even when inconsistent with, or different from, the
provisions of the Act or any other law or rule. To the extent any provision of
this Agreement is prohibited or ineffective under the Act, this Agreement shall
be considered amended to the smallest degree possible in order to make the
Agreement effective under the Act. In the event the Act is subsequently amended
or interpreted in such a way to make any provision of this Agreement that was
formerly invalid valid, such provision shall be considered to be valid from the
effective date of such interpretation or amendment.
2.3. Name. The name of the Company is WinCup LP, L.L.C., and all
business of the Company shall be conducted under that name or under any other
name, but in any case, only to the extent permitted by applicable law.
2.4. Effective Date. This Agreement shall become effective as of the
date set forth at the outset of this Agreement.
2.5. Term. The Company shall have a perpetual existence, unless the
Company shall be sooner dissolved and its affairs wound up in accordance with
the Act or this Agreement.
2.6. Registered Agent and Office. The Company's registered agent for
the service of process and the registered office shall be as reflected in the
Certificate as filed in the office of the Secretary of State, and as amended
from time to time. In the event the registered agent ceases to act as such for
any reason or the registered office shall change, the Members shall promptly
designate a replacement registered agent.
2.7. Principal Office. The Principal Office of the Company shall be
located at Three Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000,
or such other location as may be selected by the Members in writing.
3
ARTICLE III
NATURE OF BUSINESS
The Company may engage in any lawful business or activity permitted by
the Act and the laws of any jurisdiction in which the Company may do business.
The Company shall have the power and authority to do all things necessary or
convenient to the conduct, promotion or attainment of the business, purposes or
activities of the Company as described in this Article III.
ARTICLE IV
ACCOUNTING AND RECORDS
4.1. Records to be Maintained. The Company shall maintain at the
Principal Office such records as are required under the Act and are reasonable
and customary in connection with the business of the Company.
4.2. Reports to Members. The Company shall provide reports at least
annually to the Members at such time and in such manner as the Members may
determine reasonable and shall provide all Members with such information returns
as may be required by the Act, the Code or the laws of any state.
4.3. Accounts. The Company shall maintain a record of Capital Account
for each Member in accordance with Article VIII.
ARTICLE V
MEMBERS
5.1 Initial Members. The name and address of the initial Member is as
follows:
WinCup Holdings, Inc.
Three Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
5.2. Voting. Any action upon which Members are required or entitled to
vote may be approved at a meeting of Members or by written consent filed with
the Company's records. In any such situation in which a Membership vote is to be
held, the Company shall establish the record date. The following actions require
the consent of a Majority of the Members:
(a) any amendment to this Agreement or approval of an amendment
to the Certificate; and
4
(b) the merger or consolidation of the Company.
5.3. Majority. Whenever any matter is required or allowed to be
approved by a Majority of the Members under the Act or this Agreement, such
matter shall be considered approved or consented to upon the receipt of the
affirmative approval or consent, either in writing or at a meeting of the
Members, of Members having Sharing Ratios in excess of one half of the aggregate
Sharing Ratios of all the Members entitled to vote on a particular matter.
5.4. Liability of Members. No Member shall be liable as such for the
debts, obligations or liabilities of the Company, whether arising in contract,
tort or otherwise. 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 personal liability on the Members for liabilities of the Company.
5.5. Indemnification. The Company shall indemnify, defend and hold
harmless the Members, and all agents of the Company for all costs, claims,
losses, liabilities, demands and damages asserted against such Member or agent
as a result of such person's status as a Member or agent of the Company, to the
fullest extent provided or allowed by the laws of the State of Delaware.
5.6. Representation and Warranties. Each Member hereby represents and
warrants to the Company and each other Member that: (a) if not an individual,
that it is duly organized, validly existing, and in good standing under the law
of its state of organization and that it has full organizational power to
execute and agree to this Agreement and to perform its obligations hereunder;
(b) that the Member is acquiring its interest in the Company for the Member's
own account as an investment and without an intent to distribute the interest;
and (c) that the interests have not been registered under the Securities Act of
1933 or any state securities laws, and may not be resold or transferred by the
Member without appropriate registration or the availability of an exemption from
such requirements.
5.7. Conflicts of Interest.
(a) A Member shall be entitled to enter into transactions that
may be considered to be competitive with, or a business opportunity that may be
beneficial to, the Company, it being expressly understood that some of the
Members may enter into transactions that are similar to the transactions into
which the Company may enter. Notwithstanding the foregoing, Members shall
account to the Company and hold as trustee for it any property, profit, or
benefit derived by the Member, without the consent of the other Members, in the
conduct and winding up of the Company business or from a use or appropriation by
the Member of Company property including information developed exclusively for
the Company and opportunities expressly offered to the Company.
(b) A Member does not violate a duty or obligation to the Company
merely because the Member's conduct furthers the Member's own interest. A Member
may lend money to and transact other business with the Company. The rights and
obligations of a Member who lends money to or transacts business with the
Company are the same as those of a
5
person who is not a Member, subject to other applicable law. No transaction with
the Company shall be voidable solely because a Member has a direct or indirect
interest in the transaction if either (i) the transaction is fair to the Company
or (ii) the disinterested Members, with full disclosure of the material facts of
the transaction and the Member's interest, authorize, approve, or ratify the
transaction.
ARTICLE VI
MANAGEMENT
6.1 Management By Members. The management of the Company is vested in
all of the Members in accordance with the Act. Members shall receive no salary
for their management services to the Company. However, no Member or manager may
without the consent of all Members:
(a) Borrow money in the Company name or utilize collateral owned
by the Company as security for any loan;
(b) Assign, transfer, pledge, compromise or release any claim or
debt due the Company except upon payment in full, or arbitrate or consent to the
arbitration of any dispute;
(c) Make, execute or deliver any assignment for the benefit of
creditors or any bond, confession of judgment, chattel mortgage, deed,
guarantee, indemnity bond, surety bond or contract of sale of all or
substantially all of the property of the Company;
(d) Lease or mortgage any Company real estate or any interest
therein or enter into any contract for any such purpose;
(e) Authorize any capital expenditure in excess of Five Thousand
Dollars ($5,000); or
(f) Pledge or hypothecate or in any manner transfer his interest
in the Company.
ARTICLE VII
CONTRIBUTIONS AND CAPITAL ACCOUNTS
7.1. Capital Contributions. The initial Member shall make an initial
Capital Contribution in accordance with the terms of the Capital Contribution
Agreement, dated as of the date hereof, between the initial Member and the
Company. No interest shall accrue on any Capital Contribution and no Member
shall have the right to withdraw or be repaid any Capital Contribution except as
provided in this Agreement. Any Additional Member admitted to the Company shall
make the initial Capital Contribution described in the Admission Agreement
executed by such Additional Member pursuant to Section 12.1, which Agreement
shall specify
6
the value of the Additional Member's initial Capital Contribution and the
Sharing Ratio of the Additional Member for making such contribution, as well as
the Sharing Ratios of the existing Members. The initial Member shall not be
required to make an initial Capital Contribution to the Company and initially
shall own one hundred percent (100%) of the Company.
7.2. Failure to Make Capital Contribution. In the event any Member (a
"Delinquent Member") fails to make a required Capital Contribution when due, the
Company shall give the Delinquent Member a notice of the default. If the
Delinquent Member fails to make the required Capital Contribution (including any
costs associated with the failure to make the required Capital Contribution and
interest on such obligation at the interest rate specified) within ten Business
Days of the giving of such notice, the Company may take such action as it deems
required, including but not limited to instituting legal action. The Company may
elect to allow the other Members ("Contributing Members") to contribute the
amount owed by the Delinquent Member in proportion to such Members' Sharing
Ratios. The Contributing Members shall be entitled to treat the amounts
contributed pursuant to this section as a loan from the Contributing Members
bearing interest at a rate equal to 2% over the Wilmington Trust Company
National Commercial Rate in effect when the loan is made, secured by the
Delinquent Member's interest in the Company. Until they are fully repaid, the
Contributing Members shall be entitled to all Distributions to which the
Delinquent Member would have been entitled.
7.3. Additional Funds. The Company may determine from time to time
that additional funds are needed to enable the Company to conduct its business.
Upon making such a determination, the Company shall give notice to all Members
in writing at least five Business Days prior to the date on which such
contribution is due. Such notice shall set forth the total amount of additional
contribution needed, the purpose for which the contribution is needed, and the
date by which the Members must contribute. Each Member's proportionate share of
such additional Contribution shall be proportionate to such Member's Sharing
Ratio. No Member shall be obligated to make any such additional contributions.
In the event one or more Members do not make their additional contributions, the
other members shall be given the opportunity to make the contributions.
Additional contributions under this Section 7.3 shall constitute loans to the
Company by the contributing Member at an interest rate equal to 2% over the
Wilmington Trust Company National Commercial Rate at the end of each month, and
shall be repaid by the Company within sixty (60) days from the date of its
advance. Such additional contributions shall not be considered an increase in
Capital Accounts and shall not change Sharing Ratios.
7.4. Maintenance of Capital Accounts. The Company shall establish and
maintain Capital Accounts for each Member. Each Member's Capital Account shall
be increased by:
(1) the amount of any cash contributed by the Member to the
capital of the Company,
(2) the fair market value of any property contributed, as
determined by the Company and the contributing Members at arm's length at the
time of contribution (net of liabilities assumed by the Company or subject to
which the Company takes such property, within the meaning of (S) 752 of the
Code), and
7
(3) the Member's share of Net Profits and of any separately
allocated items of income or gain except adjustments required under the Code
(including any gain and income from unrealized income with respect to accounts
receivable allocated to the Member to reflect the difference between the book
value and tax basis of assets contributed by the Member).
Each Member's Capital Account shall be decreased by:
(1) the amount of any cash actually distributed to the Member by
the Company,
(2) the fair market value of any property distributed to the
Member, as determined by the Company and the contributing Member at arm's length
at the time of distribution (net of liabilities of the Company assumed by the
Member or subject to which the Member takes such property, within the meaning of
(S) 752 of the Code), and
(3) the Member's share of Net Losses and of any separately
allocated items of deduction or loss (including any loss or deduction allocated
to the Member to reflect the difference between the book value and tax basis of
assets contributed by Member).
7.5. Distribution of Assets. If the Company at any time distributes
any of its assets in-kind to any Member, the Capital Account of each Member
shall be adjusted to account for that Member's allocable share (as determined
under Article VIII below) of the Net Profits or Net Losses that would have been
realized by the Company had it sold the assets that were distributed at their
respective fair market values immediately prior to their distribution.
7.6. Compliance with Section 704(b) of the Code. The provisions of
this Article VII as they relate to the maintenance of Capital Accounts are
intended, and shall be construed, and, if necessary, modified to cause the
allocations of profits, losses, income, gain and credit pursuant to Article VIII
to have substantial economic effect under the Regulations promulgated under
(S) 704(b) of the Code.
ARTICLE VIII
ALLOCATIONS AND DISTRIBUTIONS
8.1. Allocations of Net Profit and Net Losses from Operations. Except
as may be required by (S) 704(c) of the Code, Net Profits, Net Losses, and
other items of income, gain, loss, deduction and credit shall be apportioned
among the Members in proportion to their Sharing Ratios.
8.2. Interim Distributions. From time to time, the Company shall
determine in its reasonable judgment to what extent, if any, the Company's cash
on hand exceeds the current and anticipated needs, including, without
limitation, needs for operating expenses, debt service, acquisitions, reserves,
and mandatory distributions, if any. To the extent such excess exists, the
Company may make Distributions to the Members in accordance with their Sharing
Ratios.
8
Such Distributions shall be in cash or property (which need not be distributed
proportionately) or partly in both, as determined by the Company.
8.3. Limitations on Distributions.
(a) The Company shall not make a Distribution to a Member to the
extent that at the time of the Distribution, after giving effect to the
Distribution, all liabilities of the Company, other than liabilities to Members
on account of their Membership Interests and liabilities for which the recourse
of creditors is limited to specified property of the Company, exceed the fair
value of the assets of the Company, except that the fair value of property that
is subject to a liability for which the recourse of creditors is limited shall
be included in the assets of the Company only to the extent that the fair value
of that property exceeds that liability.
(b) A Member who receives a Distribution in violation of
subsection (a) of this section, and who knew at the time of the Distribution
that the Distribution violated subsection (a) of this section, shall be liable
to the Company for the amount of the Distribution. A Member who receives a
Distribution in violation of subsection (a) of this section, and who did not
know at the time of the Distribution that the Distribution violated subsection
(a) of this section, shall not be liable for the amount of the Distribution.
(c) A Member who receives a Distribution from the Company shall
have no liability under the Act or other applicable law for the amount of the
Distribution after the expiration of 3 years from the date of the Distribution
unless an action to recover the Distribution from such Member is commenced prior
to the expiration of the 3-year period and an adjudication of liability against
such Member is made in such action.
ARTICLE IX
TAXES
9.1. Partnership Status. It is the intention of the Members that the
Company shall be treated as a partnership for federal income tax purposes,
rather than as an association taxable as a corporation, and each Member agrees
not to take any action that would be inconsistent with that intention. The
Company will file, or cause to be filed, annual or other necessary returns,
reports and other forms consistent with the characterization of the Company as a
partnership for federal income tax purposes.
9.2. Elections. The Members may make any tax elections for the Company
allowed under the Code or the tax laws of any state or other jurisdiction having
taxing jurisdiction over the Company.
9.3. Taxes of Taxing Jurisdictions. To the extent that the laws of any
jurisdiction having jurisdiction or authority to tax the income or gain of any
Member require, each Member requested to do so by the Company will submit an
agreement indicating that the Member will make timely income tax payments to
such jurisdiction and that the Member accepts personal jurisdiction of such
jurisdiction with regard to the collection of income taxes
9
attributable to the Member's income, and interest and penalties assessed on such
income. If the Member fails to provide such agreement, the Company may withhold
and pay over to such taxing jurisdiction with respect to such income. Any such
payments with respect to the income of a Member shall be treated as a
Distribution for purposes of Article VIII. The Company may, where permitted by
the rules of any taxing jurisdiction, file a composite, combined or aggregate
tax return reflecting the income of the Company and pay to such jurisdiction the
tax, interest and penalties attributable to some or all of the Members with
respect to such income, in which case the Company shall inform the Members of
the amount of such tax, interest and penalties so paid.
9.4. Tax Matters Partner. The Members shall appoint a Member to act as
tax matters partner of the Company pursuant to (S) 6231(a)(7) of the Code
(the Tax Matters Partner). The initial Tax Matters Partner shall be Radnor
Chemical Corporation. The Tax Matters Partner shall take such action as may be
necessary to cause each other Member to become a notice partner within the
meaning of (S) 6223 of the Code.
9.5. Cash Method of Accounting. The records of the Company shall be
maintained on a cash receipts and disbursements method of accounting.
ARTICLE X
DISSOCIATION OF A MEMBER
10.1. Dissociation. A Person shall cease to be a Member
("Dissociation") upon the happening of any of the following events:
(a) the resignation of a Member with the consent of a Majority of
the remaining Members;
(b) the happening to a Member of an event of bankruptcy as
defined by the Act;
(c) in the case of a Member who is an individual, the death of
the Member or the entry of an order by a court of competent jurisdiction
adjudicating the Member incompetent to manage the Member's personal estate; or
(d) in the case of a Member that is not an individual, such
Member's dissolution and commencement of winding up.
10.2. Rights of Dissociating Member. In the event any Member
Dissociates prior to the expiration of the Term:
(a) If the Dissociation causes the dissolution of the Company
under Article XIII, the Member shall be entitled to participate in the winding
up of the Company to the same extent as any other Member, except that any
Distributions to which the Member would have been entitled shall be reduced by
the damages sustained by the Company as a result of the dissolution; or
10
(b) If the Dissociation does not cause a dissolution of the
Company because all of the other Members agree in writing to the continuation of
the business of the Company, the dissociated Member shall be entitled to have
his Membership Interest purchased by the Company for the price and under the
payment terms set forth in Section 11.4. In lieu of such purchase, the personal
representative of a deceased Member or guardian of an incompetent Member may
elect to continue to hold the Interest pursuant to Section 11.3(b).
ARTICLE XI
DISPOSITION OF MEMBERSHIP INTERESTS
11.1. No Encumbrances or Transfers. Except as may be otherwise
provided in this Agreement, no Member shall pledge, mortgage, hypothecate,
assign or in any manner sell, transfer or otherwise dispose of, voluntarily or
involuntarily, all or any part of his Membership Interest. Any action in
violation of this Section shall be void.
11.2. Family Transfers. Nothing in this Article shall prohibit a
Member from transferring his Membership Interest, with or without consideration,
during such Member's lifetime or at his death, to:
(a) his spouse or issue, provided that each transferee agrees to
be bound by this Agreement; or
(b) the trustees of any trust primarily for the benefit of his
spouse and/or issue, provided that the trustees agree to be bound by this
Agreement.
11.3. Other Transfers.
(a) A Member wishing to transfer all or any portion of his
Membership Interest (the "Offeror") shall give written notice thereof to the
other Members. They shall have a period of ninety days after such notice is
given within which to cause the Company, or for themselves, to purchase the
Offeror's Interest at the price and upon the other terms provided in Section
11.4. If the Company and the other Members decline to purchase the Interest so
offered, the Offeror shall have the right to transfer the Interest for a period
of 120 days next following the expiration of the offering period. No purchaser
shall have the right to become a Substituted Member except in accordance with
Article XII hereof.
(b) If a Member dies or is adjudged incompetent to manage his
person or his property by a court of competent jurisdiction, upon election by
the Member's personal representative, guardian or conservator, as the case may
be, the Member's estate and heirs may be an Interest holder with the same rights
as a transferee subject to Section 12.2.
11.4. Price and Payment Terms.
11
(a) Whenever a Membership Interest is to be purchased under this
Agreement, the purchase price and terms of payment shall be as set forth in this
Section 11.4.;
(b) The purchase price shall be determined by mutual agreement of
the Offeror and the Company or other Members who are purchasing. If they cannot
agree on the fair market value of the Interest, the value of the Interest shall
be determined by an appraiser they select by mutual agreement whose
determination of the fair market value of the Interest being purchased will be
binding on them. If they cannot agree on an appraiser, the Offeror and the
purchaser shall each independently designate an appraiser, professionally
qualified and engaged in the business of appraising business interests such as
the Membership Interest. The two designated appraisers shall jointly appoint a
third appraiser with like qualifications. If a majority of the appraisers agree
to the value of the Membership Interest, that value shall be binding and
conclusive. If a majority of the appraisers do not concur within fifteen (15)
days after appointing the third appraiser, the determination of the appraiser
who is neither the highest nor the lowest shall be binding and conclusive.
One-half of the expenses of the appraisal or appraisals shall be the obligation
of the Offeror and the balance the obligation of the purchaser;
(c) At the election of the purchaser, payment may be made either
wholly in cash or by a cash down payment of not less than 10 percent of the
purchase price, with the balance of the purchase price to be represented by the
purchaser's note payable over a term not to exceed ten years requiring equal
installments of principal not less frequently than annually together with
interest on the unpaid principal balance at the lowest permitted rate which will
avoid the imputation of interest under the Code; and
(d) Closing on the purchase of a Membership Interest hereunder
shall be held on a date specified by the purchaser not more than 45 days
following the date on which the purchaser elects to acquire the interest being
purchased. Time is of the essence in the performance of this provision.
11.5. Distributions and Allocations in Respect to Transferred
Interests. If all or part of any Membership Interest is sold, assigned or
transferred during any accounting period, profits, losses and all other items
attributable to such Membership Interest for such period shall be divided and
allocated between the transferor and the transferee by taking into account their
varying interests during the period in accordance with Code (S) 706(d),
using any conventions permitted by law and selected by the Company. All
distributions on or before the date of such transfer shall be made to the
transferor, and all distributions thereafter shall be made to the transferee.
ARTICLE XII
ADMISSION OF ADDITIONAL AND SUBSTITUTE MEMBERS
12.1. Admission of Additional Members and of Substitute Members. The
Members may permit the admission of Additional Members and of Substitute Members
and determine the Capital Contributions of such Members. As a condition of
admission, each Additional Member shall be required to execute an Admission
Agreement setting forth the initial
12
Capital Contribution of such Additional Member. Each Additional Member and
Substitute Member shall make the representations and warranties set forth in
Section 5.6 hereof and agrees to be bound by the terms of this Agreement. No
Additional Member or Substitute Member may be admitted to the Company without
the unanimous written consent of all Members.
12.2. Rights of Transferee Not Admitted as a Substitute Member. If a
transferee is not admitted as a Substitute Member, he shall be entitled to
receive distributions and allocations with respect to the acquired Interest as
set forth in this Agreement, but shall have no voting or consent rights, no
right to any information or accounting of the affairs of the Company, shall not
be entitled to inspect the books or records of the Company, and shall not be
entitled to any of the rights of a Member under the Act or this Agreement.
ARTICLE XIII
DISSOLUTION AND WINDING UP
13.1. Dissolution. The Company shall be dissolved and its affairs
wound up, upon the first to occur of the following events (which shall
constitute Dissolution Events):
(a) the unanimous written consent of all of the Members; and
(b) the Dissociation of any Member, unless all of the other
Members agree in writing to the continuation of the business of the Company.
13.2. Effect of Dissolution. Upon dissolution, the Company shall wind
up its business. The Company is not terminated, but continues until the winding
up of the affairs of the Company is completed and a certificate of cancellation
has been filed with the Secretary of State.
13.3. Distribution of Assets on Dissolution. Upon demand by the
Company, each Member with a negative Capital Account after taking into account
all adjustments and distributions for the taxable year shall restore his Capital
Account to a zero balance so that the allocations under this Agreement will have
"substantial economic effect" for purposes of the Regulations under (S) 704(b)
of the Code. Upon the winding up of the Company, the Company's assets shall be
distributed:
(a) to creditors, including Members who are creditors (to the
extent permitted by law), in satisfaction of the debts and liabilities of the
Company either by payment in cash or by the making of reasonable provision for
payment, not including unpaid Distributions to Members;
(b) to Members and former Members in satisfaction of liabilities
for previously declared but unpaid Distributions, if any; and
(c) to the Members, in accordance with positive Capital Account
balances taking into account all Capital Account adjustments for the Company's
taxable year in which the liquidation occurs.
13
Such distributions shall be in cash or property (which need not
be distributed proportionately) or partly in both, as determined by the Managing
Members.
13.4. Winding Up and Certificate of Cancellation. The winding up of
the Company shall be completed when all debts, liabilities, and obligations of
the Company have been paid and discharged or reasonably adequate provision
therefor has been made, and all of the remaining property and assets of the
Company have been distributed to the Members. Upon the completion of winding up
of the Company, a certificate of cancellation shall be delivered to the
Secretary of State for filing. The certificate of cancellation shall set forth
the information required by the Act.
ARTICLE XIV
AMENDMENT
14.1. Agreement May Be Modified. This Agreement may be modified as
provided in this Article XIV (as the same may, from time to time be amended). No
Member shall have any vested rights in this Agreement which may not be modified
through an amendment to this Agreement.
14.2. Amendment or Modification of Agreement. This Agreement may be
amended or modified from time to time only by a written instrument adopted by
and executed by all of the Members pursuant to Section 5.2 hereof.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1. Entire Agreement. This Agreement represents the entire agreement
among all the Members and between the Members and the Company.
15.2. Notice. Notice shall be in writing. Notice to the Company will
be considered given when mailed by first class mail postage prepaid addressed to
a Member in care of the Company at the address of the Principal Office. Notice
to a Member shall be considered given when mailed by first class mail postage
prepaid addressed to the Member at the address reflected in this Agreement
unless the Member has given the Company written Notice of a different address.
15.3. No Partnership Intended for Nontax Purposes. The Members have
formed the Company under the Act, and expressly do not intend thereby to form a
partnership under either the Delaware Uniform Partnership Act or the Delaware
Revised Uniform Limited Partnership Act. The Members do not intend to be
partners one to another, or partners as to any third party. To the extent any
Member, by word or action, represents to another person that any other Member is
a partner or that the Company is a partnership, the Member making such wrongful
representation shall be liable to any other Member who incurs personal liability
by reason of such wrongful representation.
14
15.4. Rights of Creditors and Third Parties under Agreement. This
Agreement is entered into among the Company and the Members for the exclusive
benefit of the Company, its Members, and their successors and assignees. This
Agreement is expressly not intended for the benefit of any creditor of the
Company or any other Person. Except and only to the extent provided by the Act
or by any applicable statute, no such creditor or third party shall have any
rights under this Agreement or any agreement between the Company and any Member
with respect to any Capital Contribution or otherwise.
IN WITNESS WHEREOF, the undersigned has hereunto set its hands and
seals as of the date set forth above.
Attest: WINCUP HOLDINGS, INC.
/s/ X. X. Xxxxxxxxxx By:/s/ Xxxxxxx X. Xxxxxxx
----------------------- ----------------------
Name: X. X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Secretary Title: President
15
