EXHIBIT 3.8
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
CNH AMERICA LLC
NOVEMBER 30, 2004
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of CNH America LLC (the "Company") is entered
into by Case New Holland Inc., as the sole member (the "Member"). Capitalized
terms used and not otherwise defined herein have the meanings set forth on
Schedule A hereto.
As of September 30, 2002, Case Corporation, a Delaware corporation,
converted into a Delaware limited liability company named Case, LLC with
Fiatallis North America, Inc. ("Fiatallis") as its sole member, and as of
September 30, 2002, Fiatallis entered into the Limited Liability Agreement of
Case, LLC (the "Original Agreement"). Effective December 31, 2003, Case, LLC
changed its name to CNH America LLC and amended the Original Agreement on May
14, 2004 to reflect the new name (the "Amendment"). Effective November 30, 2004,
Fiatallis transferred all of its membership rights in CNH America LLC to Case
New Holland Inc. pursuant to a Plan of Reorganization by and between CNH America
LLC, Fiatallis and Case New Holland Inc. Case New Holland Inc. is now amending
and restating the Original Agreement and the Amendment to reflect the change in
the sole member of CNH America LLC and to provide for other matters not
previously contained in the Original Agreement and the Amendment.
The Member hereby agrees as follows:
SECTION 1. Name. The name of the limited liability company formed hereby
is CNH America LLC.
SECTION 2. Principal Business Office. The principal business office of the
Company shall be located at 700 State Street, Racine, Wisconsin, 53404, or such
other location as may hereafter be determined by the Member.
SECTION 3. Registered Office. The address of the registered office of the
Company in the State of Delaware is 1209 Orange Street, Wilmington, Delaware,
19801.
SECTION 4. Registered Agent. The name and address of the registered agent
of the Company for service of process on the Company in the State of Delaware is
The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware, 19801.
SECTION 5. Members.
(a) The mailing address of the Member is set forth on Schedule B attached
hereto.
(b) The Member may act by written consent.
SECTION 6. Certificates. The Member or an Officer shall execute, deliver
and file any other certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in any jurisdiction in which
the Company may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
SECTION 7. Purposes. The purpose to be conducted or promoted by the
Company is to engage in the following activities.
(a) to issue membership interests as provided for herein; and
(b) to engage in any lawful act or activity and to exercise any powers
permitted to limited liability companies organized under the laws of the State
of Delaware.
SECTION 8. Powers. The Company and the Officers of the Company on behalf
of the Company, (a) shall have and exercise all powers necessary, convenient or
incidental to accomplish its purposes as set forth in Section 7 and (b) shall
have and exercise all of the powers and rights conferred upon limited liability
companies formed pursuant to the Act.
SECTION 9. Management. The business and affairs of the Company shall be
managed by or under the direction of the Member.
SECTION 10. Officers.
(a) Officers. The Officers of the Company shall be designated by the
Member and shall consist of at least a President, a Secretary and a Treasurer.
The Member may also choose one or more Vice Presidents, Assistant Secretaries
and Assistant Treasurers. Any number of offices may be held by the same person.
The Member may appoint such other Officers and agents as it shall deem necessary
or advisable who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Member. The salaries of all Officers and agents of the Company shall be fixed by
or in the manner prescribed by the Member. The Officers of the Company shall
hold office until their successors are chosen and qualified. Any Officer may be
removed at any time, with or without cause, by the Member. Any vacancy occurring
in any office of the Company shall be filled by the Member. Each Officer is
hereby designated as a "manager" of the Company within the meaning of Section
18-101(10) of the Act. The initial Officers of the Company designated by the
Member are listed on Schedule C hereto.
(b) President. The President shall be the chief executive officer of the
Company and shall have general supervision and direction of the business and
affairs of the Company. The President shall preside at all meetings of the
Member. The President or any other Officer authorized by the President or the
Member shall execute all bonds, mortgages and other contracts,
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except: (i) where required or permitted by law or this Agreement to be otherwise
signed and executed; (ii) where signing and execution thereof shall be expressly
delegated by the Member to some other Officer or agent of the Company; and (iii)
as otherwise permitted in Section 10(c).
(c) Vice President. In the absence of the President or in the event of the
President's inability to act, any Vice President shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. The Vice Presidents shall perform such
other duties and have such other powers as the Member may from time to time
prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be responsible
for filing legal documents and maintaining records for the Company. The
Secretary shall attend all meetings of the Member and record all the proceedings
of the meetings of the Company in a book to be kept for that purpose. The
Secretary shall give, or shall cause to be given, notice of all meetings of the
Member, if any, and shall perform such other duties as may be prescribed by the
President, under whose supervision the Secretary shall serve. The Assistant
Secretary, or if there be more than one, any one of the Assistant Secretaries
shall, in the absence of the Secretary or in the event of the Secretary's
inability to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Member may
from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Member.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Member, taking proper vouchers for such disbursements, and shall render to the
President an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, any one of the Assistant Treasurers shall, in the absence of the
Treasurer or in the event of the Treasurer's inability to act, perform the
duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Member may from time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Member not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business, and the actions of the Officers taken in accordance with
such powers shall bind the Company.
(g) Duties of Officers. Except to the extent otherwise provided herein,
each Officer shall have a fiduciary duty of loyalty and care similar to that of
officers of business corporations organized under the General Corporation Law of
the State of Delaware.
SECTION 11. Limited Liability. Except as otherwise expressly provided by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be the debts, obligations and liabilities
solely of the Company, and neither the Member nor any Officer shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member, or an Officer of the Company.
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SECTION 12. Additional Contributions. The Member is not required to make
any additional capital contribution to the Company. However, the Member may make
additional capital contributions to the Company at any time upon the written
consent of such Member. The provisions of this Agreement, including this Section
12, are intended to benefit the Member and, to the fullest extent permitted by
law, shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor of the Company shall be a third-party beneficiary
of this Agreement), and the Member shall not have any duty or obligation to any
creditor of the Company to make any contribution to the Company or to issue any
call for capital pursuant to this Agreement.
SECTION 13. Distributions. Distributions shall be made to the Member at
the times and in the aggregate amounts determined by the Member. Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall not
be required to make a distribution to the Member on account of its interest in
the Company if such distribution would violate Section 18-607 of the Act or any
other applicable law.
SECTION 14. Books and Records. The Officers shall keep or cause to be kept
complete and accurate books of account and records with respect to the Company's
business. The books of the Company shall at all times be maintained by the
Officers. The Member and its duly authorized representatives shall have the
right to examine the Company books, records and documents during normal business
hours. The Company, and the Officers on behalf of the Company, shall not have
the right to keep confidential from the Member any information that the Officers
would otherwise be permitted to keep confidential from the Member pursuant to
Section 18-305(c) of the Act. The Company's books of account shall be kept using
the method of accounting determined by the Member. The Company's independent
auditor, if any, shall be an independent public accounting firm selected by the
Member.
SECTION 15. Exculpation and Indemnification. Neither the Member nor any
Officer, employee or agent of the Company nor any employee, representative,
agent or Affiliate of the Member (collectively, the "Covered Persons") shall be
liable to the Company or any other Person who has an interest in or claim
against the Company for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf
of the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's gross negligence or willful misconduct.
To the fullest extent permitted by applicable law, a Covered Person shall
be entitled to indemnification from the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed or
omitted by such Covered Person in good faith on behalf of the Company and in a
manner reasonably believed to be within the scope of the authority conferred on
such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, that any
indemnity under this Section 15 by the Company shall be provided out of and to
the extent of Company assets only, and the Member shall not have personal
liability on account thereof.
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To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by a Covered Person defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt by the Company of an undertaking by or on behalf of the Covered Person
to repay such amount if it shall be determined that the Covered Person is not
entitled to be indemnified as authorized in this Section 15.
A Covered Person shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
To the extent that, at law or in equity, a Covered Person has duties
(including fiduciary duties) and liabilities relating thereto to the Company or
to any other Covered Person, a Covered Person acting under this Agreement shall
not be liable to the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
to replace such other duties and liabilities of such Covered Person.
The foregoing provisions of this Section 15 shall survive any termination
of this Agreement.
SECTION 16. Assignments; Issuance of Interests. The Member may assign in
whole or in part its limited liability company interest in the Company to
another Person or persons. If the Member transfers all of its limited liability
company interest in the Company pursuant to this Section 16. subject to Section
17, the transferee shall be admitted to the Company as a member of the Company
upon its execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such admission, the
transferor Member shall cease to be a member of the Company. Notwithstanding
anything in this Agreement to the contrary, any successor to the Member by
merger or consolidation shall, without further act, be the Member hereunder, and
such merger or consolidation shall not constitute an assignment for purposes of
this Agreement and the Company shall continue without dissolution.
The Company may not issue any limited liability company interest, and no
interest in the Company may be transferred, assigned, pledged, hypothecated or
otherwise disposed of, except in conformity with the requirements of this
Section 16 and any purported issuance or transfer of an interest in the Company
in violation of this Section 16 shall be void to the fullest extent permitted by
law and of no effect.
SECTION 17. Admission of Additional Members. One or more additional
members of the Company may be admitted to the Company with the written consent
of the Member
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SECTION 18. Dissolution. The Company shall be dissolved, and its affairs
shall be wound up upon the first to occur of the following: (a) the termination
of the legal existence of the last remaining member of the Company or the
occurrence of any other event which terminates the continued membership of the
last remaining member of the Company in the Company unless the Company is
continued in a manner permitted by this Agreement or the Act or (b) the entry of
a decree of judicial dissolution under Section 18-802 of the Act. Upon the
occurrence of any event that causes the last remaining member of the Company to
cease to be a member of the Company, to the fullest extent permitted by law, the
personal representative of such member is hereby authorized to, and shall,
within 90 days after the occurrence of the event that terminated the continued
membership of such member in the Company, agree in writing (x) to continue the
Company and (y) to the admission of the personal representative or its nominee
or designee, as the case may be, as a substitute member of the Company,
effective as of the occurrence of the event that terminated the continued
membership of the last remaining member of the Company in the Company.
Notwithstanding any other provision of this Agreement, the Bankruptcy of
the Member shall not cause the Member to cease to be a member of the Company,
and upon the occurrence of such an event, the Company shall continue without
dissolution.
In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
The Company shall terminate when (i) all of the assets of the Company,
after payment of or due provision for all debts, liabilities and obligations of
the Company shall have been distributed to the Member in the manner provided for
in this Agreement and (ii) the Certificate of Formation shall have been canceled
in the manner required by the Act.
SECTION 19. Benefits of Agreement; No Third-Party Rights. None of the
provisions of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company or by any creditor of the Member. Nothing in this
Agreement shall be deemed to create any right in any Person (other than Covered
Persons) not a party hereto, and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third
Person.
SECTION 20. 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, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
SECTION 21. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof.
SECTION 22. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware (without regard to conflict of
laws principles), all rights and remedies being governed by said laws.
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SECTION 23. Amendments. This Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member.
SECTION 24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement and
all of which together shall constitute one and the same instrument.
SECTION 25. Notices. Any notices required to be delivered hereunder shall
be in writing and personally delivered, mailed or sent by telecopy, electronic
mail or other similar form of rapid transmission, and shall be deemed to have
been duly given upon receipt (a) in the case of the Company, to the Company at
its address in Section 2, (b) in the case of the Member, to the Member at its
address as listed on Schedule B attached hereto and (c) in the case of either of
the foregoing, at such other address as may be designated by written notice to
the other party.
SECTION 26. Effectiveness. Pursuant to Section 18-201(d) of the Act, this
Agreement shall be effective as of the date first above written.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
has duly executed this Limited Liability Company Agreement as of the day and
year first above written.
MEMBER:
Case New Holland Inc.
By: /s/ Richard R. Dykhouse
-------------------------------
Name: Richard R. Dykhouse
Title: Vice President and Secretary
SCHEDULE A
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"Agreement" means this Limited Liability Company Agreement of the Company,
together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes
an assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 90 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 60 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall supersede
and replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and
18-304 of the Act.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware to be
effective on September 30, 2002, as amended or amended and restated from time to
time.
"Company" means CNH America LLC, a Delaware limited liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
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"Covered Persons" has the meaning set forth in Section 15.
"Directors" means the Persons elected to the Member of Directors from time
to time by the Member.
"Member" means Case New Holland Inc., as the successor member of the
Company, and includes any Person admitted as an additional member of the Company
or a substitute member of the Company pursuant to the provisions of this
Agreement, each in its capacity as a member of the Company.
"Officer" means an officer of the Company described in Section 10.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
SECTION 2. Rules of Construction. Definitions in this Agreement apply
equally to both the singular and plural forms of the defined terms. The words
"include" and "including" shall be deemed to be followed by the phrase "without
limitation." The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section, paragraph or subdivision. The Section titles appear as a matter of
convenience only and shall not affect the interpretation of this Agreement. All
Section, paragraph, clause, Exhibit or Schedule references not attributed to a
particular document shall be references to such parts of this Agreement.
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SCHEDULE B
MEMBER
Name: Case New Holland Inc.
Mailing Address: 100 South Saunders Road, Lake Forest, IL, 60045
Membership Interest: 100%
B-1
SCHEDULE C
INITIAL OFFICERS
NAME TITLE
---- -----
Paolo Monferino President and Chief Executive Officer
Michel Lecomte Chief Financial Officer
Harold D. Boyanovsky President, Construction Equipment Business
Roland Sunden President, Agricultural Equipment Business
Richard M. Christman President, Agricultural No. America & ANZ Region
James E. McCullough President, Construction Equipment NA
Giovanni B. Ravina Senior Vice President, Human Resources
Gerard Roullot Senior Vice President and Chief Information Officer
Howard Levy Senior Vice President, Purchasing
Roberto Miotto Senior Vice President, General Counsel and Secretary
Giovanni Maggiora Vice President and Treasurer
Carlo De Bernardi Vice President and Auditor
Terry Warco Vice President and Associate General Counsel
Richard R. Dykhouse Vice President and Assistant Secretary
Michael D. Jack Vice President
Robert Crain Vice President
James L. Irwin Vice President
Robert F. Killian Vice President
John Henderson Vice President
Richard Hoffman Corporate Controller and Chief Accounting Officer
Brian J. O'Keane Assistant Treasurer
Kathleen Nuzzi Assistant Secretary
Linda M. Smith Assistant Secretary
Dudley H. Feltham Assistant Secretary
J. William Stader Assistant Secretary
Allan R. Crider Assistant Secretary
Donald R. Costa Tax Officer
Joanne K. Leskowicz Tax Officer
Steven Haynes Tax Officer
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