EXHIBIT 3.2
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN COMMERCIAL LINES LLC
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
(the "Agreement") is made effective as of the 9th day of February, 2005, by and
between Commercial Barge Line Company, a Delaware corporation, as the sole
member (the "Member"), and American Commercial Lines LLC, a Delaware limited
liability company (the "Company").
1. Formation of the Company. The Member hereby ratifies the
formation of the Company as a Delaware limited liability company pursuant to the
provisions of the Delaware Limited Liability Company Act (the "Act"), effective
as of the filing of the certificate of formation (the "Certificate") with the
Delaware Secretary of State.
2. Name of the Company. The name of the Company stated in the
Certificate and the limited liability company governed by this Agreement is
American Commercial Lines LLC.
3. Purpose. This 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.
4. Registered Office; Registered Agent. The registered office of the
Company in the State of Delaware is located at The Corporation Trust Center,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the
registered agent of the Company at such address is The Corporation Trust
Company.
5. Membership Interests. The Company shall be authorized to issue
one hundred (100) membership interests ("Membership Interests"), all of which
shall be issued to the Member.
6. No Certificates of Membership Interest. The Company shall
maintain a written record setting forth the Member's full name, mailing address,
and Membership Interests. No Certificates shall be issued to evidence Membership
Interests in the Company. In no event may the Member assign, sell or otherwise
convey a Membership Interest to a third party without the prior written consent
of the Company.
7. Capital Contributions by the Member. The Member shall not be
obligated to make capital contributions to the Company, and the Membership
Interests shall be nonassessable.
8. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated entirely to the Member, and the Member's distributive
share of income, gain, loss,
deduction, or credit (or item thereof) shall be determined and allocated in
accordance with this Section 8 to the fullest extent permitted by Sections
704(b) and (c) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the treasury regulations promulgated thereunder.
9. Distributions. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Board of Managers of the
Company (the "Board of Managers").
10. Board of Managers. The Member has the authority under this
Agreement and the Act to manage the business and affairs of the Company and to
delegate such authority. Since inception, the Member has delegated its authority
to manage the business and affairs of the Company to the Board of Managers. The
Board of Managers consists of three managers ("Managers"). The business and
affairs of the Company shall continue to be managed by the Board of Managers and
the Member hereby ratifies and approves all actions of the Board of Managers and
individual Managers since inception of the Company. Each Manager shall have one
(1) vote on all matters brought before the Board of Managers. The Board of
Managers shall direct, manage and control the business of the Company and,
except as authorized in writing by the Board of Managers or permitted by this
Agreement, no Member shall directly or indirectly act as agent of the Company
for any purpose, engage in any transaction, make any commitment, enter into any
contract or incur any obligation in the name of the Company or in any other way
hold itself out as acting for or on behalf of the Company. Except for situations
in which the approval of the Member is expressly required by the Act, and the
authority of the Member to appoint and remove the Managers in its sole
discretion, the Board of Managers shall have full and complete authority, power
and discretion to manage and control the business, affairs and properties of the
Company, to make all decisions regarding those matters and to perform any and
all other acts or activities customary or incident to the management of the
Company's business. Each Manager shall perform his or her duties as a Manager in
a manner reasonably believed to be in the best interests of the Company and with
such care as an ordinarily prudent person in a like position would use under
similar circumstances. Except as otherwise provided in the Act or this
Agreement, the Member intends that the foregoing standard of care shall be
interpreted consistently with the standard of care imposed on directors of a
corporation organized under the General Corporation Law of the State of
Delaware. A Manager shall not have any liability to the Company or any other
person or entity by reason of being or having been a Manager, unless the
liability shall have been the result of bad faith, gross negligence, fraud or
intentional misconduct by the Manager.
11. Officers. The officers of the Company, if any, shall be
appointed by the Board of Managers in its sole discretion. Unless such
appointment provides otherwise, each officer so appointed shall have such powers
and duties as are provided in the following:
(a) President. The President shall be the Chief Executive Officer of
the Company. Subject to the direction of the Board of Managers, the President
shall have, and exercise, direct charge of, and general supervision over, the
business and affairs of the Company, and shall perform all duties incident to
the office of a President in a corporation organized under the Delaware General
Corporation Law. No person may hold the office of President, or act in place of
the President in the case of absence or disability, unless such person is a
citizen of the United States.
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(b) Vice Presidents. The powers, duties, and responsibilities of the
Vice Presidents shall be fixed by the President, with the approval of the Board
of Managers. A Vice President may be designated as an Executive Vice President,
a Senior Vice President or a Vice President with a functional title.
(c) Secretary. The Secretary shall attend all meetings of the Board
of Managers and of the members of the Company and record their proceedings,
unless a temporary secretary be appointed. The Secretary shall give due notice,
as required, of all meetings of the Board of Managers and of the members of the
Company, shall keep, or cause to be kept, at a place or places required by law,
a record of the members and managers of the Company, giving the names and
addresses of all such members and managers. The Secretary shall be the custodian
of all records, contracts, leases, and other papers and documents of the
Company, unless otherwise directed by the Board of Managers, and shall perform
such other duties as the Board of Managers, or the President, may designate. In
the case of the Secretary's absence or incapacity, the President may designate
an appropriate officer to perform the duties of Secretary.
(d) Treasurer. The Treasurer shall receive, keep and disburse all
moneys belonging to or coming to the Company, shall keep regular, true and full
accounts of all receipts and disbursements, and make detailed reports thereof,
shall keep a true record of expenses, losses, gains, assets, and liabilities of
the Company, and shall perform such other duties in connection with the
administration of the financial affairs of the Company as the Board of Managers,
or the President, may designate. In the case of the Treasurer's absence or
incapacity, the President may designate an appropriate officer to perform the
duties of Treasurer.
(e) Subordinate Officers. Each subordinate officer shall hold office
for such period, have such authority, and perform such duties as the Board of
Managers may prescribe. The Board of Managers may, from time to time, authorize
any officer to appoint and remove subordinate officers and to prescribe the
powers and duties thereof.
Each such officer shall also have such additional powers and duties
as from time to time may be conferred by the Board of Managers. Any number of
offices may be held by the same person. Each officer shall hold office until his
or her successor shall be duly appointed and shall qualify or until his or her
death, until he or she shall resign, or until he or she shall have been removed,
either with or without cause, by the Board of Managers in its sole discretion.
The salaries or other compensation, if any, of the officers and agents of the
Company shall be fixed by the Board of Managers. Any appointment pursuant to
this Section 11 may be revoked at any time by the Board of Managers.
12. Execution of Contracts, Assignments, etc. All contracts,
agreements, endorsements, assignments, transfers, stock powers, or other
instruments shall be signed by the President, or any Vice President, and
attested by the Secretary, or an Assistant Secretary, except where required or
permitted by law to be otherwise signed, and except when the signing and
execution thereof shall be expressly delegated by the Board of Managers to some
other officer or agent of the Company.
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13. Limitations on Authority. The authority of the Board of Managers
over the conduct of the business and affairs of the Company shall be subject
only to such limitations as are expressly stated in this Agreement or in the
Act.
14. Indemnification. To the fullest extent permitted by the laws of
the State of Delaware, the Company shall indemnify and hold harmless any person
who is or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, claim, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action, claim, suit or proceeding
by or in the right of the Company) by reason of the fact that such person is or
was a Manager, Member, officer or employee of the Company or is or was serving
at the request of the Company as a director, manager, officer, employee or agent
of a corporation, limited liability company, partnership, joint venture, trust
or other enterprise (each, an "Eligible Person"), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such Eligible Person in connection with such action,
claim, suit or proceeding, including appeals (collectively, "Indemnifiable
Losses"), except to the extent that it is finally judicially determined that
such Indemnifiable Losses arose out of or were related to actions or omissions
of the Eligible Person constituting bad faith, gross negligence, fraud or
intentional misconduct.
To the fullest extent permitted by the laws of the State of
Delaware, the Company shall indemnify and hold harmless any Eligible Person who
was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action, claim, suit or proceeding by or in the right of the
Company to procure a judgment in its favor by reason of the Eligible Person's
status as such, against expenses (including attorneys' fees) actually and
reasonably incurred by the Eligible Person in connection with the defense or
settlement of such action, claim, suit or proceeding, including appeals, except
to the extent that it is finally judicially determined that such expenses arose
out of or were related to actions or omissions of the Eligible Person
constituting bad faith, gross negligence, fraud or intentional misconduct.
To the fullest extent permitted by the laws of the State of
Delaware, the Company shall pay expenses incurred in defending a civil or
criminal action, claim, suit or proceeding described in this Section 14 in
advance of the final disposition of such action, claim, suit or proceeding upon
receipt of an undertaking by or on behalf of the Eligible Person to repay such
amount if it shall ultimately be determined that such Eligible Person is not
entitled to be indemnified by the Company.
The provisions of this Section 14 shall be applicable to all
actions, claims, suits or proceedings made or commenced after the date of this
Agreement, whether arising from acts or omissions to act occurring before or
after such date. The provisions of this Section 14 shall be deemed to be a
contract between the Company and each Eligible Person who serves in such
capacity at any time while this Section 14 and the relevant provisions of the
laws of the State of Delaware and other applicable law, if any, are in effect,
and any repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts or any action,
claim, suit or proceeding then or theretofore existing, or any action, claim,
suit or proceeding thereafter brought or threatened based in whole or in part on
any such state of facts. If any provision of this Section 14 shall be found to
be invalid or limited in application by reason of any law or regulation, it
shall not affect the validity of the remaining provisions hereof. The
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rights of indemnification provided in this Section 14 shall neither be exclusive
of, nor be deemed in limitation of, any rights to which any such Eligible Person
may otherwise be entitled or permitted by contract, the Certificate, vote of the
Member or Managers or otherwise, or as a matter of law, both as to actions in
such Eligible Person's official capacity and actions in any other capacity while
holding such office, it being the policy of the Company that indemnification of
the specified Eligible Persons shall be made to the fullest extent permitted by
law.
For purposes of this Section 14, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on an Eligible Person with respect to an employee benefit
plan; and references to "serving at the request of the Company" shall include,
but not be limited to, any service as a Manager, officer, employee or agent of
the Company which imposes duties on, or involves services by, such Manager,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries.
15. Tax Matters. The Company hereby designates the Member to act as
the "Tax Matters Partner" (as defined in Section 6231(a)(7) of the Code) in
accordance with Sections 6221 through 6233 of the Code. The Tax Matters Partner
is authorized and required to represent the Company (at the Company's expense)
in connection with all examinations of the Company's affairs by tax authorities,
including resulting administrative and judicial proceedings, and to expend
Company funds for professional services and costs associated therewith. The Tax
Matters Partner will have reasonable discretion to determine whether the Company
(either on its own behalf or on behalf of the Member) will contest or continue
to contest any tax deficiencies assessed or proposed to be assessed by any
taxing authority. Any deficiency for taxes imposed on the Member (including
penalties, additions to tax or interest imposed with respect to such taxes) will
be paid by the Member, and if paid by the Company, will be recoverable from the
Member (including by offset against distributions otherwise payable to the
Member). Notwithstanding anything to the contrary in this Agreement, the Tax
Matters Partner has the power and authority in its sole discretion to make an
election, or cause the Company to make an election, to have the Company treated
as a corporation for U.S. Federal income tax purposes.
16. Dissolution. The Company shall dissolve, and its affairs shall
be wound up, upon the first to occur of the following: (a) upon action by the
Board of Managers with the written consent of the Member to such effect; and (b)
the entry of a decree of judicial dissolution under Section 802 of the Act.
17. Consents. Any action that may be taken by the Member at a
meeting may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by the Member. Any action that may be taken by
the Board of Managers at a meeting may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by all of the Managers.
18. Amendments. Except as otherwise provided in this Agreement or in
the Act, this Agreement may be amended only by the written consent of the Member
to such effect.
19. Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have made this Agreement
effective as of the date and year first written above.
COMMERCIAL BARGE LINE COMPANY,
AS SOLE MEMBER
ATTEST:
By: /s/ Lisa L. Fleming By: /s/ Mark R. Holden
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As: Secretary Name: Mark R. Holden
Title: President and Chief Executive Officer
AMERICAN COMMERCIAL LINES LLC
ATTEST:
By: /s/ Lisa L. Fleming By: /s/ Mark R. Holden
-------------------------- -----------------------------------------
As: Secretary Name: Mark R. Holden
Title: President and Chief Executive Officer