EXHIBIT 3.4
AMENDED AND RESTATED OPERATING AGREEMENT
OF
DRESSER-RAND LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT (the "Agreement") of
Dresser-Rand LLC (the "Company") dated and effective as of this 29th day of
October, 2004, is adopted, executed and entered into by Dresser-Rand Group
Inc., as the sole member of the Company (the "Member"). This Amended and
Restated Operating Agreement amends and restates that certain Operating
Agreement of Dresser-Rand LLC dated as of October, 29 2004.
RECITAL
The Company has been formed pursuant to the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101 et seq. (as from time to time
amended and including any successor statute of similar import, the "Act") and
the Certificate of Formation (as defined herein) has been filed in the Office of
the Secretary of State of the State of Delaware in conformity with the Act.
ARTICLE 1
The Limited Liability Company
1.1 Formation. The Company has been organized as a limited liability
company pursuant to the provisions of the Act. A certificate of formation for
the Company as described in Section 18-201 of the Act (the "Certificate of
Formation") has been filed in the Office of the Secretary of State of the State
of Delaware in conformity with the Act.
1.2 Name. The name of the Company shall be "Dresser-Rand LLC" and
its business shall be carried on in such name with such variations and changes
as the Member shall determine or deem necessary to comply with requirements of
the jurisdictions in which the Company's operations are conducted.
1.3 Business Purpose; Powers. The Company is formed for the purpose
of engaging in any lawful business, purpose or activity for which limited
liability companies may be formed under the Act. The Company shall possess and
may exercise all the powers and privileges granted by the Act or by any other
law or by this Agreement, together with any powers incidental thereto, so far as
such powers and privileges are necessary or convenient to the conduct, promotion
or attainment of the business purposes or activities of the Company.
1.4 Registered Office and Agent. The location of the registered
office of the Company shall be 1209 Orange Street, Wilmington, Delaware 19801.
The Company's Registered Agent at such address shall be Corporation Trust
Company.
1.5 Term. Subject to the provisions of Article 6 below, the Company
shall have perpetual existence.
ARTICLE 2
The Member
2.1 The Member. The name and address of the Member is as follows:
Name Address
---- -------
Dresser-Rand Group Inc. Paul Clark Drive
P.O. Box 560
Olean, NY 14760
2.2 Actions by the Member; Meetings. The Member may approve a
matter or take any action at a meeting or without a meeting by the written
consent of the Member. Meetings of the Member may be called at any time by the
Member.
2.3 Liability of the Member. All debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company, and the Member shall not
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity
as such) shall have the authority to bind the Company to any third party with
respect to any matter.
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2.5 Admission of Members. New members shall be admitted only upon
the approval of the Member.
ARTICLE 3
Management by the Member
3.1 Management. The management of the Company is fully reserved to
the Member, and the Company shall not have "managers," as that term is used in
the Act. 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, the Member, who shall make all decisions and take all actions for
the Company. In managing the business and affairs of the Company and exercising
its powers, the Member shall act through resolutions adopted in written
consents. Decisions or actions taken by the Member in accordance with this
Agreement shall constitute decisions or action by the Company and shall be
binding on the Company.
3.2 Officers and Related Persons. The Member shall have the au-
thority to appoint and terminate officers of the Company and retain and
terminate employees, agents and consultants of the Company and to delegate such
duties to any such officers, employees, agents and consultants as the Member
deems appropriate, including the power, acting individually or jointly, to
represent and bind the Company in all matters, in accordance with the scope of
their respective duties.
ARTICLE 4
Capital Structure and Contributions
4.1 Capital Structure. The capital structure of the Company shall
consist of one class of common interests (the "Common Interests"), which shall
initially consist of one hundred common interests. All Common Interests shall be
identical with each other in every respect. The Member shall own all of the
Common Interests issued and outstanding. The Company hereby irrevocably elects
that all membership interests in the Company shall be securities governed by
Article 8 of the Uniform Commercial Code. Each certificate evidencing membership
interests in the Company shall bear the following legend: "This certificate
evidences an interest in Dresser-Rand LLC and shall be a security for purposes
of Article 8 of the Uniform Commercial Code." This provision shall not be
amended, and any purported amend-
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ment to this provision shall, without the consent of the assignee, not take
effect until all outstanding certificates have been surrendered for
cancellation.
4.2 Capital Contributions. From time to time, the Member may
determine that the Company requires capital and may make capital contribution(s)
in an amount determined by the Member. A capital account shall be maintained for
the Member, to which contributions and profits shall be credited and against
which distributions and losses shall be charged.
ARTICLE 5
Profits, Losses and Distributions
5.1 Profits and Losses. For financial accounting and tax purposes,
the Company's net profits or net losses shall be determined on an annual basis
in accordance with the manner determined by the Member. In each year, profits
and losses shall be allocated entirely to the Member.
5.2 Distributions. The Member shall determine profits available for
distribution and the amount, if any, to be distributed to the Member, and shall
authorize and distribute on the Common Interests, the determined amount when, as
and if declared by the Member. The distributions of the Company shall be
allocated entirely to the Member.
ARTICLE 6
Events of Dissolution
The Company shall be dissolved and its affairs wound up upon the
occurrence of any of the following events (each, an "Event of Dissolution"):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802
of the Act.
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ARTICLE 7
Transfer of Interests in the Company
The Member may sell, assign, transfer, convey, gift, exchange or
otherwise dispose of any or all of its Common Interests and, upon receipt by the
Company of a written agreement executed by the person or entity to whom such
Common Interests are to be transferred agreeing to be bound by the terms of this
Agreement, such person shall be admitted as a member.
ARTICLE 8
Exculpation and Indemnification
8.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or any obligation or duty at law or in
equity, none of the Member, or any officers, directors, stockholders, partners,
employees, affiliates, representatives or agents of any of the Member, nor any
officer, employee, representative or agent of the Company (individually, a
"Covered Person" and, collectively, the "Covered Persons") shall be liable to
the Company or any other person for any act or omission (in relation to the
Company, its property or the conduct of its business or affairs, this Agreement,
any related document or any transaction or investment contemplated hereby or
thereby) taken or omitted by a Covered Person in the reasonable belief that such
act or omission is in or is not contrary to the best interests of the Company
and is within the scope of authority granted to such Covered Person by the
Agreement, provided such act or omission does not constitute fraud, willful
misconduct, bad faith, or gross negligence.
8.2 Indemnification. To the fullest extent permitted by law, the
Company shall indemnify and hold harmless each Covered Person from and against
any and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, civil, criminal, administrative or investigative
("Claims"), in which the Covered Person may be involved, or threatened to be
involved, as a party or otherwise, by reason of its management of the affairs of
the Company or which relates to or arises out of the Company or its property,
business or affairs. A Covered Person shall not be entitled to indemnification
under this Section 8.2 with respect to (i) any Claim with respect to which such
Covered Person has engaged in fraud, willful misconduct, bad faith or gross
negligence or (ii) any Claim initiated by such Covered Person unless such Claim
(or part thereof) (A) was brought to enforce such Covered Person's rights to
indemnification hereunder or (B) was authorized or consented to by
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the Member. Expenses incurred by a Covered Person in defending any Claim shall
be paid by the Company in advance of the final disposition of such Claim upon
receipt by the Company of an undertaking by or on behalf of such Covered Person
to repay such amount if it shall be ultimately determined that such Covered
Person is not entitled to be indemnified by the Company as authorized by this
Section 8.2.
8.3 Amendments. Any repeal or modification of this Article VIII by
the Member shall not adversely affect any rights of such Covered Person pursuant
to this Article VIII, including the right to indemnification and to the
advancement of expenses of a Covered Person existing at the time of such repeal
or modification with respect to any acts or omissions occurring prior to such
repeal or modification.
ARTICLE 9
Miscellaneous
9.1 Tax Treatment. To the extent the Member is the sole member of
the Company, unless otherwise determined by the Member, the Company shall be
treated as an entity that is disregarded as an entity separate from its owner
for all tax purposes, and the Member and the Company shall timely make any and
all necessary elections and filings for the Company to be so treated.
9.2 Amendments. Amendments to this Agreement and to the Certificate
of Formation shall be approved in writing by the Member. An amendment shall
become effective as of the date specified in the approval of the Member or if
none is specified as of the date of such approval or as otherwise provided in
the Act.
9.3 Severability. If any provision of this Agreement is held to be
invalid or unenforceable for any reason, such provision shall be ineffective to
the extent of such invalidity or unenforceability; provided, however, that the
remaining provisions will continue in full force without being impaired or
invalidated in any way unless such invalid or unenforceable provision or clause
shall be so significant as to materially affect the expectations of the Member
regarding this Agreement. Otherwise, any invalid or unenforceable provision
shall be replaced by the Member with a valid provision which most closely
approximates the intent and economic effect of the invalid or unenforceable
provision.
9.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof.
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9.5 Limited Liability Company. The Member intends to form a limited
liability company and does not intend to form a partnership under the laws of
the State of Delaware or any other laws.
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IN WITNESS WHEREOF, the undersigned has duly executed this Agree-
ment as of the day first above written.
Dresser-Rand Group Inc.
By: /s/ Thomas R. Denison
-----------------------------------
Name: Thomas R. Denison
Title: Authorized Person