Exhibit 3.4
LIMITED LIABILITY COMPANY AGREEMENT
OF
ANVILSTAR, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement"), is entered
into as of January 13, 2004, between AnvilStar, LLC, a Delaware limited
liability company (the "Company") and its sole shareholder, Anvil
International, Inc., a Delaware corporation ("Sole Shareholder").
Terms
In consideration of the mutual covenants contained herein and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
The following capitalized terms shall have the meanings specified in this
Article I. Other terms are defined in the text of this Agreement and,
throughout this Agreement, those terms shall have the meanings respectively
ascribed to them.
"Act" means the Delaware Limited Liability Company Act, as amended from
time to time.
"Capital Contribution" means the total amount of cash and the fair market
value of any other assets contributed to the Company by the Sole Shareholder,
net of liabilities assumed or to which the assets are subject.
"Cash Flow" means all cash provided by operations of the Company as
reflected in the financial statements of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, or any
corresponding provision of any succeeding law.
"Delaware Secretary of State" means the Secretary of State of the State of
Delaware.
"Person" means an individual, a corporation, a partnership, an
association, a federal, state, local or foreign governmental or regulatory
entity (or any department, agency, authority or political subdivision thereof),
a trust or other entity or organization.
"Profit" and "Loss" means, for each taxable year of the Company (or other
period for which Profit or Loss must be computed), the Company's net income or
net loss determined in accordance with generally accepted accounting
principles, as consistently applied by the Company.
"Shareholder" means such Person who or which holds Shares. For purposes of
clarification, a Shareholder is equivalent to a "Member" as that term is used
in the Act.
ARTICLE II
FORMATION AND NAME; OFFICE; PURPOSE; TERM; SERIES
2.1. Organization. The Company was organized by the Sole Shareholder on
January 8, 2004 pursuant to, and in accordance with, the Act.
2.2. Name of the Company. The name of the Company shall be "AnvilStar,
LLC." The Company may do business under that name and under any other name or
names as selected by the Sole Shareholder.
2.3. Purpose. The Company is organized to do all things permitted to be
done by limited liability companies under the Act, and to do all things
necessary, convenient or incidental to that purpose.
2.4. Term. The term of the Company began upon the acceptance of the
Certificate of Formation by the office of the Delaware Secretary of State on
January 8, 2004 and shall continue in existence perpetually unless terminated
pursuant to the terms of this Agreement.
2.5. Principal Office. The principal office of the Company shall be
located at 110 Corporate Drive, Suite 10, Portsmouth, NH 03802-3180, or at any
other place selected by the Sole Shareholder.
2.6. Registered Agent. The name and address of the Company's registered
agent in the State of Delaware shall be the Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington, Delaware 19807.
ARTICLE III
MEMBERSHIP UNITS
3.1. Shares. The ownership rights in the Company are reflected in
membership shares which shall be issued in a single class of voting shares
("Shares"). Each Share shall have equal rights with every other Share in all
matters, including allocations of profits and losses and distributions. In
matters subject to a vote, each Share shall have one vote. The Company hereby
authorizes for issuance 500 Shares. The Shares shall be uncertificated (i.e.,
not represented by a certificate).
3.2. Issuance and Transfer of Sole Shareholder' Shares. As of the date
hereof, the Company hereby issues to the Sole Shareholder 500 Shares which
constitute all of the authorized Shares of the Company. The Sole Shareholder
may
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transfer Shares to a Person other than the Sole Shareholder only pursuant to
the terms and conditions set forth in Article VII. Schedule I attached hereto
and incorporated herein shall function as the Share register of the Company.
All issues and outstanding Shares and any transfers, redemption and
cancellations thereof, shall be as set forth on Schedule 1.
ARTICLE IV
CAPITAL
4.1. Capital Contributions. As its capital contribution, the Sole
Shareholder has paid to the Company $100 and the payment of all expenses in
connection with the formation of the Company.
4.2. Additional Capital Contributions Required. The Sole Shareholder may
make additional capital contributions in such amounts and in such form and
manner as the Sole Shareholder may agree. The Sole Shareholder shall have no
personal liability for any obligations of the Company. Unless made as a loan
pursuant to Section 4.3 below, an additional Capital Contributions may be made
in the amount of the Cash Amount (as defined in the Purchase and Sale
Agreement, dated December 19, 2004, between the Company and Star Pipe, Inc.
(the "Purchase Agreement")), less such adjustments to the Cash Amount pursuant
to the Purchase Agreement upon closing of the transactions contemplated by the
Purchase Agreement. The estimated amount of the Cash Amount is $17 million.
4.3. Loans. The Sole Shareholder may make loans to the Company in such
amounts and upon such terms and conditions as the Sole Shareholder may approve.
Any loan made pursuant to this Section shall be evidenced by a promissory note
made by the Company in favor of the Sole Shareholder, and the loan shall accrue
interest at a rate as agreed upon by the Company and the Sole Shareholder.
ARTICLE V
PROFIT, LOSS AND DISTRIBUTIONS
All Cash Flow, Profit and Loss shall be distributed or allocated to the
Sole Shareholder.
ARTICLE VI
MANAGEMENT: RIGHTS, POWERS, AND DUTIES
6.1. Management. The Company shall be managed by, and the conduct of its
business will be controlled by, the Sole Shareholder.
6.2. Officers. The Sole Shareholder may appoint one or more individuals to
serve as President, Chief Financial Officer, Treasurer, Secretary,
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one or more Vice Presidents, or any other office that the Sole Shareholder may
establish, all with such duties as may be established by the Sole Shareholder.
6.3. Signing Authority. Any document or instrument purporting to bind the
Company shall be effective to bind the Company when executed by (a) the Sole
Shareholder or (b) an officer, if any, of the Company expressly authorized to
execute such document or instrument by the terms of this Agreement or the
written resolutions of the Sole Shareholder.
6.4. Liability and Indemnification. The Company shall indemnify and hold
harmless, to the fullest extent permitted by law, (i) the Sole Shareholder,
(ii) each officer and (iii) each agent, director, shareholder, employee,
counsel and Affiliate of the Sole Shareholder (individually, an "Indemnified
Party"), as follows:
A. The Company shall indemnify and hold harmless, to the fullest
extent permitted by law, any Indemnified Party from and against any and all
losses, claims, damages, liabilities, expenses (including legal fees and
expenses), judgments, fines, settlements and other amounts ("Indemnified
Costs") arising from all claims, demands, actions, suits or proceedings
("Actions"), whether civil, criminal, administrative or investigative, in which
the Indemnified Party may be involved, or threatened to be involved, as a party
or otherwise arising as a result of its status as (i) a Sole Shareholder, (ii)
an officer or (iii) an agent, director, shareholder, employee, counsel or
Affiliate of a Sole Shareholder, regardless of whether the Indemnified Party
continues in the capacity at the time the liability or expense is paid or
incurred, and regardless of whether the Action is brought by a third party, or
by or in the right of the Company; provided, however, no such Person shall be
indemnified for any Indemnified Costs which proximately result from the
Person's fraud, bad faith or willful misconduct or the Person's material breach
of this Agreement.
B. The Company shall pay or reimburse, to the fullest extent allowed
by law and consistent with Section 6.4(a) above, in advance of the final
disposition of the proceeding, Indemnified Costs incurred by the Indemnified
Party in connection with any Action that is the subject of Section 6.4(a)
above.
ARTICLE VII
TRANSFER OR PLEDGE OF SHARES; ADMISSION OF
NEW SHAREHOLDERS
7.1. Transfer. The Sole Shareholder shall have the right to transfer all
or any portion of its Shares to any Person at any time. Any transferee shall be
admitted as a Shareholder as of the effective date of the transfer.
7.2. Pledge. The Sole Shareholder shall have the right to pledge, or grant
a security interest in, up to all of its Shares to any Person at any time.
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7.3. Admission of New Shareholders. No new Shareholder shall be admitted
(other than pursuant to Section 7.1), either by transfer of a portion of the
Sole Shareholder's Shares or interest therein, or in any other manner, which
causes the Company to have two or more Shareholders, until this Agreement has
been amended to provide for such admission, including amendments relating to
the governance of the Company, and providing for the allocation of Profits and
Losses of the Company among the Sole Shareholders, and such amendment has been
accepted by the existing Sole Shareholder and the New Sole Shareholder.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND
TERMINATION OF THE COMPANY
8.1. Events of Dissolution. The Company shall he dissolved upon the
election of the Sole Shareholder.
8.2. Procedure for Winding Up and Dissolution. If the Company is dissolved
for any reason, the Sole Shareholder shall wind up its affairs.
8.3. Filing of Certificate of Cancellation. If the Company is dissolved,
the Sole Shareholder shall promptly file a certificate of cancellation with the
Delaware Secretary of State.
ARTICLE IX
BOOKS, RECORDS, ACCOUNTING, AND TAX ELECTIONS
9.1. Bank Accounts. All funds of the Company shall be deposited in a bank
account or accounts opened in the Company's name as determined by the Sole
Shareholder.
9.2. Books and Records. The Company shall keep or cause to be kept
complete and accurate books and records of the Company. The books and records
shall be maintained in accordance with generally accepted accounting principles
and practices.
9.3. Tax Elections. Any election under any provision of any tax law shall
be made only by the Sole Shareholder or by a person authorized to do so by the
Sole Shareholder.
ARTICLE X
GENERAL PROVISIONS
10.1. Complete Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement of the Sole Shareholder and the Company.
It supersedes all prior written and oral statements, including any prior
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representation, statement, condition or warranty. Except as expressly provided
otherwise herein, this Agreement may not be amended without the written consent
of the Sole Shareholder.
10.2. Applicable Law. All questions concerning the construction, validity
and interpretation of this Agreement and the performance of the obligations
imposed by this Agreement shall be governed by the internal law, not the law of
conflicts, of the State of Delaware.
10.3. Section Titles. The headings herein are inserted as a matter of
convenience only, and do not define, limit or describe the scope of this
Agreement or the intent of the provisions hereof.
10.4. Binding Provisions. This Agreement is binding upon, and inures to
the benefit of, the parties hereto and their respective heirs, executors,
administrators, personal and legal representatives, successors and permitted
assigns.
10.5. Severability of Provisions. Each provision of this Agreement shall
be considered severable; and if, for any reason, any provision or provisions
herein are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Agreement which are valid.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed, or caused this Agreement to
be executed, under seal, as of the date set forth hereinabove.
ANVIL INTERNATIONAL, INC.
By: /s/ George P. Bukuras
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Name: George P. Bukuras
Title: V.P. & General Counsel
ANVILSTAR, LLC
By: /s/ George P. Bukuras
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Name: George P. Bukuras
Title: V.P. & G.C. of Anvil
International, Inc.
as Sole Member of AnvilStar, LLC
Schedule I
Share Register
Anvil International, Inc. 500 Shares