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EXHIBIT 3.6
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OPERATING AGREEMENT
OF
CHAAS ACQUISITIONS, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
DATED AS OF MAY 20, 2003
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TABLE OF CONTENTS
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ARTICLE I. DEFINED TERMS...................................................... 1
SECTION 1.1. Definitions.................................................. 1
SECTION 1.2. Usage........................................................ 2
ARTICLE II. ORGANIZATION...................................................... 3
SECTION 2.1. Name......................................................... 3
SECTION 2.2. Place of Registered Office; Registered Agent................. 3
SECTION 2.3. Purpose and Limitations on Activities........................ 3
SECTION 2.4. Term......................................................... 3
SECTION 2.5. Fiscal Year.................................................. 3
SECTION 2.6. Filings...................................................... 3
SECTION 2.7. Limitations on Company Powers................................ 4
SECTION 2.8. No State-Law Partnership..................................... 4
SECTION 2.9. Admission of Members......................................... 4
ARTICLE III. CAPITAL CONTRIBUTIONS; DISTRIBUTIONS............................. 4
SECTION 3.1. Initial Capital Contributions; Percentage Interests.......... 4
SECTION 3.2. Additional Contributions..................................... 4
SECTION 3.3. Tax Matters.................................................. 4
SECTION 3.4. Distributions................................................ 4
ARTICLE IV. OPERATIONS AND MANAGEMENT......................................... 5
SECTION 4.1. Board of Managers; Powers.................................... 5
SECTION 4.2. Officers; Duties and Powers.................................. 7
SECTION 4.3. Exculpation and Indemnification.............................. 9
ARTICLE V. DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY............10
SECTION 5.1. Dissolution..................................................10
SECTION 5.2. Continuation of the Company..................................10
ARTICLE VI. MISCELLANEOUS.....................................................10
SECTION 6.1. Notices......................................................10
SECTION 6.2. Entire Agreement; Amendment and Waivers......................11
SECTION 6.3. Section Headings.............................................11
SECTION 6.4. Counterparts.................................................11
SECTION 6.5. Severability.................................................11
SECTION 6.6. Governing Law................................................11
SECTION 6.7. Incorporation by Reference...................................11
SECTION 6.8. Limitation on Liability......................................11
SECTION 6.9. Successors and Assigns.......................................12
SECTION 6.10. Variation of Pronouns........................................12
SECTION 6.11. Further Action...............................................12
SECTION 6.12. Benefits Only to Parties.....................................12
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EXHIBITS
Exhibit A List of Members, Capital Contributions, and Percentage Interests
Exhibit B Form of Instrument of Accession
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OPERATING AGREEMENT
OF
CHAAS ACQUISITIONS, LLC
OPERATING AGREEMENT (this "AGREEMENT") of CHAAS ACQUISITIONS, LLC (the
"COMPANY"), dated as of the 20th day of May, 2003, by and among the Company and
CHAAS HOLDINGS, LLC, a Delaware corporation ("HOLDINGS"), and any other Members
listed on EXHIBIT A hereto from time to time. All capitalized terms used herein
shall have the meaning ascribed to such terms in Article I hereto.
W I T N E S S E T H:
WHEREAS, the Company was formed on May 20, 2003 under the name "CHAAS
Acquisitions, LLC" pursuant to the Act;
WHEREAS, the Company and each of the Members desire to enter into this
Agreement in order to set forth the operating procedures for the Company; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto do hereby mutually covenant and
agree as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
"ACT" shall mean the Delaware Limited Liability Company Act (6 Del. C.
Section 18-101, et seq., as amended from time to time).
"AFFILIATE" shall mean with respect to any specified Person, a Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person (it being
understood that a Person shall be deemed to "control" another Person, for
purposes of this definition, if such Person directly or indirectly has the power
to direct or cause the direction of the management and policies of such other
Person whether through holding beneficial ownership interests in such other
Person, through contracts or otherwise). For purposes of an individual, an
affiliate shall also mean any family member of such individual or a Person owned
10% or more by such individual.
"APPLICABLE LAW" shall mean, with respect to any Person, all
provisions of laws, statutes, ordinances, rules, regulations, permits or
certificates of any Governmental Authority applicable to such Person or any of
its assets or property, and all judgments, injunctions, orders and decrees of
all courts, arbitrators or Governmental Authorities in proceedings or actions in
which such Person is a party or by which any of its assets or properties are
bound.
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"BUSINESS DAY" shall mean any day except a Saturday, a Sunday or any
other day on which commercial banks are required or authorized to close in New
York, New York.
"CERTIFICATE OF FORMATION" shall mean the Certificate of Formation of
the Company, as amended from time to time.
"CODE" shall mean the U.S. Internal Revenue Code of 1986, as amended
from time to time, including the corresponding provisions of any successor law.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
foreign, federal, state, province, city, town, municipality, county, local or
other political subdivision thereof or thereto and any department, commission,
court or arbitrator of competent jurisdiction, stock exchange board, bureau,
instrumentality, agency, organization, self-regulatory authority or other entity
exercising executive, legislative, judicial, taxing, regulatory,
quasi-governmental or administrative powers or functions of or pertaining to
government.
"MEMBER" shall mean Holdings, and each other Person executing this
Agreement as a Member (or any successor or permitted assignee of such Member).
"OFFICERS" means the persons appointed as officers of the Company as
provided under Section 2.2.
"PERSON" shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a Governmental Authority.
"SUBSIDIARY" shall means, with respect to any Person, any corporation,
partnership, business trust, joint stock company, association, limited liability
company or other business entity of which (a) if a corporation, a majority of
the total voting power of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (b) if a partnership, limited liability company, business trust,
joint stock company, association or other business entity other than a
corporation, a majority of the partnership, membership or other similar
ownership interests thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a partnership, limited liability company,
business trust, joint stock company, association or other business entity other
than a corporation if such Person or Persons shall be allocated a majority of
the partnership, association or other business entity gains or losses or shall
be or control the managing director, manager, a general partner or the trustee
of such partnership, limited liability company, business trust, joint stock
company, association or other business entity.
"UNIT" shall mean any limited liability company interest in the
Company, with the respective rights, powers and preferences as provided in this
Agreement.
SECTION 1.2. USAGE. Unless the context of this Agreement otherwise
requires (a) words of any gender are deemed to include each other gender; (b)
words using
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singular or plural number also include the plural or singular number,
respectively; (c) the terms "HEREOF," "HEREIN," "HEREBY," "HERETO," and
derivative or similar words refer to this entire Agreement; (d) the terms
"ARTICLE" or "SECTION" refer to the specified Article or Section of this
Agreement; (e) all references to "DOLLARS" or "$" refer to currency of the
United States of America; (f) the term "or" is not exclusive; and (g) "INCLUDE,"
"INCLUDING" and their derivatives mean "INCLUDING WITHOUT LIMITATION."
ARTICLE II.
ORGANIZATION
SECTION 2.1. NAME. The name of the Company shall be CHAAS
Acquisitions, LLC. All business of the Company shall be conducted under such
name, unless otherwise consented to by the Board of Managers.
SECTION 2.2. PLACE OF REGISTERED OFFICE; REGISTERED AGENT. The
address of the registered office of the Company in the State of Delaware is 615
South DuPont Highway, Dover, Delaware 19901. The name and address of the
registered agent for service of process on the Company in the State of Delaware
is National Corporate Research, Ltd., 615 South DuPont Highway, Dover, Delaware
19901. The Board of Managers may at any time on ten (10) days' prior notice to
all Members change the location of the Company's registered office or change the
registered agent, if the Board of Managers deems it advisable.
SECTION 2.3. PURPOSE AND LIMITATIONS ON ACTIVITIES. The purpose of
the Company is to engage in any lawful business that may be engaged in by a
limited liability company organized under the Act, as such business activities
may be determined by the Board of Managers from time to time.
SECTION 2.4. TERM. The Company shall continue in existence until this
Agreement is terminated pursuant to Article V.
SECTION 2.5. FISCAL YEAR. The fiscal year of the Company (the "FISCAL
YEAR") shall be the calendar year.
SECTION 2.6. FILINGS. (a) The Certificate of Formation was filed with
the Secretary of State of Delaware on May 20, 2003, by an "authorized person"
within the meaning of the Act, and the Members hereby ratify and approve such
filing. The Board of Managers shall use its reasonable efforts to cause
amendments to the Certificate of Formation to be executed and filed whenever
required by the Act.
(b) The Board of Managers (as defined in Section 2.1) shall use
its reasonable efforts to take such other actions as may be reasonably necessary
to perfect and maintain the status of the Company as a limited liability company
under the laws of the State of Delaware.
(c) Subject to Section 2.7, the Board of Managers shall cause
the Company to be qualified, formed or registered under assumed or fictitious
name statutes or similar laws in any jurisdiction in which the Company transacts
business in which such
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qualification, formation or registration is required or desirable. Subject to
Section 2.7, the Board of Managers shall cause an authorized person within the
meaning of the Act to execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in a jurisdiction in which the Company may wish to conduct business.
SECTION 2.7. LIMITATIONS ON COMPANY POWERS. Notwithstanding anything
contained herein to the contrary, the Company shall not do business in any
jurisdiction that would jeopardize the limitation on liability afforded to the
Members under the Act or this Agreement.
SECTION 2.8. NO STATE-LAW PARTNERSHIP. The Members intend that the
Company not be a partnership (including, without limitation, a limited
partnership) or joint venture, and that no Member be an agent, partner or joint
venturer of any other Member for any purposes other than U.S. federal and state
tax purposes, and this Agreement shall not be construed to suggest otherwise.
SECTION 2.9. ADMISSION OF MEMBERS. Each Person listed on EXHIBIT A
shall be admitted to the Company as a Member, either upon execution of this
Agreement, upon execution and delivery of an Instrument of Accession in the form
attached hereto as EXHIBIT B or at subsequent times determined by the Board of
Managers.
ARTICLE III.
CAPITAL CONTRIBUTIONS; DISTRIBUTIONS
SECTION 3.1. INITIAL CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS. The
capital account (the "CAPITAL ACCOUNT") of each Member shall be in an amount
equal to such Member's initial capital contribution, adjusted from time to time
for additional contributions, withdrawals, allocations of appreciation and
depreciation and other appropriate items. The "PERCENTAGE INTERESTS" of the
Members in the Company are determined for each Member of the Company by dividing
the amount of each Member's Capital Account by the aggregate Capital Accounts of
all Members. The sum of the Percentage Interests shall equal 100 percent.
SECTION 3.2. ADDITIONAL CONTRIBUTIONS. No Member shall have any
obligation to make additional capital contributions to the Company.
SECTION 3.3. TAX MATTERS. The Members intend that the Company not be
treated as an association for Federal income tax purposes. The Company shall
maintain a Capital Account for each Member in accordance with Treasury
Regulation Section 1.704-1(b). The Company's taxable income and tax losses shall
be allocated PRO RATA based on Percentage Interests. The Board of Managers shall
select a manager to serve as the "tax matters partner" within the meaning of
Section 6231(a)(7) of the Code and shall have all the powers and obligations of
a tax matters partner pursuant to the Code.
SECTION 3.4. DISTRIBUTIONS. Distributions shall be made to the
Members at the times and in the aggregate amounts determined by the Board of
Managers. Notwithstanding the foregoing, distributions made in connection with a
sale of all or substantially all the
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Company's assets or a liquidation of the Company shall be made in accordance
with the Capital Account balances of the Members within the time period set
forth in Treasury Regulation Section 1.704-1(b)(2)(ii)(b)(3).
ARTICLE IV.
OPERATIONS AND MANAGEMENT
SECTION 4.1. BOARD OF MANAGERS; POWERS. (a) The business and affairs
of the Company shall be managed by the board of managers (the "BOARD OF
MANAGERS") who will have the rights, powers, duties and liabilities described in
this Agreement, subject to the delegation of rights and powers provided herein
and the limitations provided herein and under the Act. Subject to the
limitations of this Agreement and the Act and the delegation of rights and
powers provided herein, the overall business and affairs of the Company shall be
managed by the Board of Managers, which business and affairs shall be operated
consistent with the terms and conditions of this Agreement and the Act. The
Board of Managers shall have the power to do any and all acts necessary or
convenient to or for the furtherance of the purposes described herein, including
all powers, statutory or otherwise, possessed by a Manager of a limited
liability company under the laws of the State of Delaware.
(b) The Board of Managers shall consist of at least three (3)
and not more than twelve (12) managers, as determined from time to time by the
Board of Managers. The initial Managers shall be those individuals set forth in
SCHEDULE I hereto.
(c) Additional members of the Board of Managers may be appointed
from time to time by a majority of the members of the Board of Managers or by
the Members holding a majority of the outstanding voting Units of the Company.
(d) The Board of Managers shall be elected, at such times as
determined by the Board of Managers, by Members holding a majority of the voting
units or entitled to vote a majority of the voting units. All Managers shall
hold office until their respective successors have been elected and qualified,
subject to the provisions of this Agreement with respect to vacancies on the
Board of Managers. Managers may be removed from time to time, with or without
cause, by a majority of the members of the Board of Managers or the Members
holding a majority of the then outstanding voting Units of the Company.
(e) VACANCIES. A vacancy on the Board of Managers shall be
deemed to exist in the event of the death, incapacitation, resignation or
removal of any Manager. A vacancy or vacancies in the Board of Managers may be
filled by Members holding a majority of the voting units or entitled to vote a
majority of the voting Units.
(f) MEETINGS. Meetings of the Board of Managers may be called by
any CHP Board Designee or any two (2) other Managers on at least two (2)
Business Days' prior written notice to each Manager, which notice shall contain
the time and place of such meeting. A majority of the total number of Managers
shall constitute a quorum for the transaction of business by the Board of
Managers. All actions of the Board of Managers shall require the
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affirmative vote of a majority of the total number of Managers. Decisions made
by the Board of Managers at any meeting, however convened, shall be as valid as
though held after due notice if, either before or after the meeting, each and
every Manager signs a written waiver of notice or a consent to the holding of
such meeting or written approval of the minutes thereof.
(g) TELEPHONE CONFERENCE; UNANIMOUS WRITTEN CONSENT. Meetings of
the Board of Managers may be held by telephone conference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and participate in the conversation. Any action
required or permitted to be taken by the Board of Managers may be taken without
a meeting and without prior notice if all of the Managers shall consent in
writing to such action. Such consent or consents shall be filed with the minutes
of the proceedings of the Board of Managers and shall have the same force and
effect as a unanimous vote of the Board of Managers.
(h) (i) COMMITTEES OF THE BOARD. The Board of Managers may
designate an executive committee and other committees, each consisting of one or
more Managers. Each committee (including the members thereof) shall serve at the
pleasure of the Board of Managers and shall keep minutes of its meetings and
report the same to the Board. The Board of Managers may designate one or more
Managers as alternate members of any committee, who may replace any absent or
disqualified member or members at any meeting of the committee. In addition, in
the absence or disqualification of a member of a committee, if no alternate
member has been designated by the Board of Managers, the member or members
present at any meeting and not disqualified from voting, whether or not they
constitute a quorum, may unanimously appoint another member of the Board of
Managers to act at the meeting in the place of the absent or disqualified
member. Except as limited by Applicable Law, each committee, to the extent
provided in the resolution of the Board of Managers establishing it, shall have
and may exercise all the powers and authority of the Board in the management of
the business and affairs of the Company.
(ii) OPERATION OF COMMITTEES. A majority of all the members
of a committee shall constitute a quorum for the transaction of business, and
the vote of a majority of all the members of a committee present at a meeting at
which a quorum is present shall be the act of the committee. In other respects
each committee shall conduct its business in the same manner as the Board of
Managers conducts its business pursuant to this Section 4.1. Each committee
shall adopt whatever other rules of procedure it determines for the conduct of
its activities.
(i) CHAIRMAN. The Board of Managers may, if it so determines,
elect from among its members a Chairman of the Board and/or a Vice Chairman of
the Board. The Chairman of the Board, if any, shall preside at all meetings of
the Board of Managers and of the Members at which he or she shall be present and
shall have and may exercise such powers as may, from time to time, be assigned
to him or her by the Board of Managers or as may be provided by Applicable Law.
In the absence of the Chairman of the Board, the Vice Chairman of the Board, if
any, shall preside at all meetings of the Board of Managers and of the Managers
at which he or she shall be present and shall have and may exercise such powers
as may, from time to time, be assigned to him or her by the Board of Managers or
as may be provided by Applicable Law.
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(j) LIMITATION ON LIABILITY OF MANAGERS. The Managers shall not,
by reason of being a Manager, be bound by, or be personally liable to any
third-party for a judgment, decree or order of a court or in any other manner,
for the expenses, liabilities or obligations of the Company whether arising in
contract, tort or otherwise, solely by reason of being a Manager of the Company.
(k) COMPENSATION AND REIMBURSEMENT. The Managers who are
employees of the Company shall not receive compensation for their services
performed on behalf of the Company or other benefits they provide to the
Company, except pursuant to any employment agreement or other employee benefit
plan approved by the Board of Managers. The Managers shall be entitled to
reimbursement for reasonable, documented expenses incurred by them in managing
and conducting the business and affairs of the Company.
SECTION 4.2. OFFICERS; DUTIES AND POWERS.
(a) PRINCIPAL OFFICERS. The Officers of the Company shall be a
Chief Executive Officer, Secretary and Treasurer and may be a President, Chief
Operating Officer, Chief Financial Officer, one or more Vice Presidents, and one
or more Assistant Treasurers or Assistant Secretaries. The initial Officers of
the Company are set forth in SCHEDULE II hereto.
(b) OTHER OFFICERS. The Board of Managers may also appoint such
other Officers and agents as it shall deem necessary 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 Board of Managers.
(c) COMPENSATION. The compensation of all Officers and all
officers of the Company's Subsidiaries shall be fixed by the Board of Managers;
PROVIDED, HOWEVER, that their salaries shall conform to any employment agreement
entered into between the Company or a Company Subsidiary and any Officer.
(d) AUTHORITY OF OFFICERS.
(i) The Chief Executive Officer of the Company (the
"CEO") shall have general and active management of the business of the Company,
and shall see that all orders and resolutions of the Board of Managers, the
Chairman or the Vice Chairman are carried out. The CEO shall execute bonds,
mortgages and other contracts except where the signing and execution shall be
expressly delegated by the Board of Managers to one or more other Officers or
agents of the Company.
(ii) If appointed, the President, Chief Operating Officer,
Chief Financial Officer, Vice Presidents, Treasurer, Secretary, Assistant
Treasurers and Assistant Secretaries shall have the powers and duties described
in this Section 4.2, as may be modified from time to time by the Board of
Managers:
(A) PRESIDENT. The President, if appointed, shall
have responsibility for the day-to-day management and operation of the business
of the Company and other such duties and responsibilities as determined by the
CEO or Board of Managers.
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(B) CHIEF OPERATING OFFICER. The Chief Operating
Officer shall have responsibility for the day-to-day management and operation of
the business of the Company, general oversight of the operation of the Company's
operations and employees, and other such duties and responsibilities as
determined by the CEO, the President, if any, or Board of Managers.
(C) CHIEF FINANCIAL OFFICER. The Chief Financial
Officer shall have responsibility for the day-to-day management and general
oversight of the accounting and finance function of the Company and supervision
of any Treasurer and Assistant Treasurers, and other such duties and
responsibilities as determined by the CEO, the President, if any, the Chief
Operating Officer or Board of Managers.
(D) THE VICE PRESIDENTS. The Vice Presidents shall
perform such duties and have such powers as the Board of Managers or the CEO,
the President, if any, or the Chief Operating Officer may from time to time
prescribe.
(E) THE SECRETARY; ASSISTANT SECRETARY. The
Secretary shall attend all meetings of the Board of Managers and all meetings of
the Members and record all the proceedings of the meetings of the Company and of
the Board of Managers in a book to be kept for that purpose and shall perform
like duties for any standing committees when required. He or she shall give, or
cause to be given, notice of all meetings of the Members and special meetings of
the Board of Managers, and shall perform such other duties as may be prescribed
by the Board of Managers, the CEO or, the President, if any, under whose
supervision he or she shall be. In the absence of the Secretary or in the event
of his or her incapacity or refusal to act, or at the direction of the
Secretary, any Assistant Secretary may perform the duties of the Secretary.
(F) THE TREASURER; ASSISTANT TREASURER. The
Treasurer shall have the custody of the Company's 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 Board of Managers. The Treasurer shall disburse the funds of the Company
as may be ordered by the Board of Managers, CEO, President, if any, Chief
Financial Officer or Chief Operating Officer taking proper vouchers for such
disbursements, and shall render to the Chairman, Vice Chairman, CEO, the
President, if any, Chief Operating Officer, Chief Financial Officer and the
Board of Managers, at its regular meetings, or when any Officer so requires, an
account of all transactions as treasurer and of the financial condition of the
Company. Notwithstanding the foregoing, any checks of the Company in excess of
$50,000 shall require the signatures of the Treasurer, Assistant Treasurer, or
controller of the Company, and the CEO (or other Officer designated by him), or
as otherwise determined by the Board of Managers.
(e) LIMITATIONS ON OFFICER'S POWERS. Notwithstanding any other
provision contained in this Agreement to the contrary, should a delegation of
authority be established by the Board of Managers, no act shall be taken, sum
expended, decision made, obligation incurred or power exercised by any Officer
on behalf of the Company other than in accordance with such delegation of
authority.
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(f) TERM OF OFFICERS.
(i) An Officer may resign at any time by giving written
notice to the Board of Managers. The resignation of an Officer shall take effect
upon the Board of Manager's receipt of written notice of the Officer's
resignation or at such later time as shall be specified in the written notice.
Unless otherwise specified in the Officer's written notice of resignation, the
acceptance of the Officer's resignation shall not be necessary to make it
effective. If the Officer also is a Member, the Officer's resignation as an
Officer shall not affect the Officer's rights as a Member and shall not
constitute a withdrawal of the Officer as a Member.
(ii) The Board of Managers may terminate the employment
of and remove any Officer with or without cause.
(iii) The Board of Managers may elect at any time a new
or replacement Officer to fill the vacancy.
SECTION 4.3. EXCULPATION AND INDEMNIFICATION.
(a) No Manager or Officer shall be liable to the Company or the
Members (i) for mistakes of judgment or for any act or omission suffered or
taken by it, or for losses due to any such mistakes, action or inaction, except
to the extent that the mistake, action, or inaction was caused by the willful
misconduct, bad faith or gross negligence of such Manager or Officer or (ii) for
the willful misfeasance, negligence, bad faith or other conduct of any
independent contractor of the Company selected by the Board of Managers or
Officer, provided that such independent contractor (including any who may be a
Member) was selected, engaged or retained and continued in good faith.
(b) To the maximum extent permitted by applicable law, and
except as provided in Section 4.3(a) hereof, no Manager or Officer shall be
liable for and the Company shall indemnify each Manager and Officer against, and
agrees to hold the Manager and Officer harmless from, all liabilities and claims
(including reasonable attorneys' fees and expenses in defending against such
liabilities and claims) against a Manager and Officer, arising from such
Manager's or Officer's performance of its duties in conformance with the terms
of this Agreement.
(c) A Manager or Officer may consult with legal counsel or
accountants, and any action or omission suffered or taken in good faith in
reliance and accordance with the written opinion or advice of any such counsel
or accountants (provided such have been selected with reasonable care) shall be
full protection and justification with respect to the action or omission so
suffered or taken.
(d) In the event that any Member or Officer shall,
notwithstanding the provisions of Section 18-303 of the Act to the contrary (and
solely as a result of the inapplicability, or deemed inapplicability of such
provision of the Act), become liable under a judgment, decree or order of a
court, or in any other manner, for a debt, obligation or liability of the
Company, then the Company shall indemnify such Member or Officer and hold such
Member or Officer harmless from and against any such liability of such Member or
Officer (together with reasonable attorneys' fees and expenses in defending
against any claimant seeking
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to impose any such liability) to the extent that it related to or arose out of
any action taken or any transaction effected by a Manager or Officer under this
Agreement or any action which a Manager or Officer failed to take or any
transaction which a Manager or Officer failed to effect and which such Manager
or Officer was obligated to take or effect under this Agreement.
(e) Neither any other Member nor any Manager or Officer shall be
personally liable for the return of all or any part of a Member's Capital
Contribution or payment of any amounts allocated to it or credited to its
Capital Account, which return or payment shall be made solely from, and to the
extent of, the Company's assets pursuant to the terms of this Agreement.
(f) The Company shall indemnify and hold harmless all employees
and agents of the Company and all officers, directors, employees and agents of
any Subsidiary of the Company (to the extent not provided by any such
Subsidiary) to the fullest extent permitted under applicable law and in
accordance with this Section 4.3(a).
ARTICLE V.
DISSOLUTION, LIQUIDATION AND TERMINATION
OF THE COMPANY
SECTION 5.1. DISSOLUTION. The Company shall be dissolved, and
liquidated upon the earliest to occur of (it being understood that the following
events are the only events that can cause the dissolution and liquidation of the
Company):
(a) The election by the Members holding a majority of the
voting Units then outstanding so to dissolve, liquidate and terminate the
Company; or
(b) The entry of a decree of judicial dissolution pursuant to
Section 18-802 of the Act.
SECTION 5.2. CONTINUATION OF THE COMPANY. Notwithstanding anything to
the contrary contained herein, the death, retirement, resignation, expulsion,
bankruptcy, dissolution or removal of a Member shall not cause the dissolution
of the Company, and the Members are expressly authorized to continue the
business of the Company in such event, without any further action on the part of
the Members.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. NOTICES. Any and all notices, demands, consents,
approvals, requests or other communications which the Company or any Member may
desire or be required to give hereunder (collectively, "NOTICES") shall be by
personal delivery, facsimile, by overnight courier or by prepaid certified mail
to the Company at c/o Castle Harlan, Inc., 150 East 58th Street, New York, NY
10155 Attention: Marcel Fournier and Howard Weiss; facsimile (212) 207-8042,
with a copy to Schulte Roth & Zabel LLP, 919 Third Avenue, New York, NY 10022
Attention: Andre Weiss, Esq., and to the Members at their addresses referred to
in EXHIBIT A or
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<Page>
such other address as a Member may from time to time designate to the others.
Any Member may designate another address or change its address for Notices
hereunder by a Notice given pursuant to this Section. A Notice sent in
compliance with the provisions of this Section shall be deemed delivered when
actually received by the party to whom sent. Rejection or other refusal to
accept or the inability to deliver because of a changed address or addressee of
which no Notice was given as provided in this Section shall be deemed to be
receipt of the Notice sent.
SECTION 6.2. ENTIRE AGREEMENT; AMENDMENT AND WAIVERS. This Agreement
constitutes the entire agreement between the parties hereto pertaining to the
subject matter hereof, and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. This Agreement may be amended or waived, each party hereto may take any
action herein prohibited or omit to take action herein required to be performed
by it and any breach of or compliance with any covenant, agreement, warranty or
representation may be waived, only by the written consent or written waiver of
holders of at least 51% of the Units of the Company.
SECTION 6.3. SECTION HEADINGS. The section headings used in this
Agreement are intended solely for convenience of reference and shall not in any
manner amplify, limit, modify or otherwise be used in the interpretation of any
of the provisions hereof.
SECTION 6.4. COUNTERPARTS. This Agreement may be executed in several
counterparts and all such executed counterparts shall constitute a single
agreement, binding on all of the parties hereto, their successors and their
assigns, notwithstanding that all of the parties hereto are not signatories to
the original or to the same counterpart. Each counterpart signature page so
executed may be attached to a master counterpart of this Agreement to be kept by
the Board of Managers at the principal office of the Company and such master
counterpart as well as any and all other counterparts executed by any of the
parties hereto shall constitute a single agreement.
SECTION 6.5. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall be invalid or unenforceable in any
jurisdiction, the validity and enforceability of all remaining provisions
contained herein shall not in any way be affected or impaired thereby, and the
invalid or unenforceable provisions shall be interpreted and applied so as to
produce as near as may be the economic result intended by the parties hereto.
SECTION 6.6. GOVERNING LAW. This Agreement, including its existence,
validity, construction and operating effect, and the rights of each of the
parties hereto, shall be governed by and construed in accordance with the laws
of the State of Delaware without regard to principles of conflict of laws.
SECTION 6.7. INCORPORATION BY REFERENCE. Every exhibit attached to
this Agreement and referred to herein is incorporated in this Agreement by
reference unless this Agreement otherwise expressly provides.
SECTION 6.8. LIMITATION ON LIABILITY. The Members shall not be bound
by, or be personally liable for, by reason of being a Member or Manager, a
judgment, decree or order
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of a court or in any other manner, for the expenses, liabilities or obligations
of the Company, and the liability of each Member shall be limited solely to the
amount of its Capital Contributions.
SECTION 6.9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Company, the Members and their respective
successors, and assigns.
SECTION 6.10. VARIATION OF PRONOUNS. All pronouns and any variations
thereof shall be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the person or persons may require.
SECTION 6.11. FURTHER ACTION. Each Member agrees to perform all
further acts and execute, acknowledge, and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out the provisions of
this Agreement.
SECTION 6.12. BENEFITS ONLY TO PARTIES. Nothing expressed by or
mentioned in this Agreement is intended or shall be construed to give any Person
other parties hereto and their respective successors or assigns, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors and assigns, and for the benefit
of no other Person.
* * * * * * * *
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IN WITNESS WHEREOF, the Members have entered into this Agreement as of
the day and year first above written.
CHAAS HOLDINGS, LLC
By /s/ Barry Steele
-------------------------
Name: Barry Steele
Title:
<Page>
EXHIBIT A
LIST OF MEMBERS, CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
<Table>
<Caption>
Member Name
and Address for Capital
Notices Contribution Number of Units Percentage
- ------------------- ------------ --------------- ----------
CHAAS Holdings, LLC $ 10.00 100 100%
c/o Castle Harlan, Inc.
150 East 58th Street
New York, NY 10155
Attention: Marcel Fournier
Fax: (212) 207-8042
</Table>
<Page>
EXHIBIT B
INSTRUMENT OF ACCESSION
The undersigned, ___________________________, as a condition
precedent to becoming the owner or holder of record of __________ (________)
Units of CHAAS Acquisitions, LLC, a Delaware limited liability company (the
"COMPANY") hereby agrees to become a Member under, party to and bound by that
certain Operating Agreement dated as of May 20, 2003 (the "OPERATING AGREEMENT")
by and among the Company and the Members of the Company. This Instrument of
Accession shall take effect and shall become an integral part of the said
Operating Agreement immediately upon execution and delivery to the Company of
this Instrument.
IN WITNESS WHEREOF, the undersigned has caused this INSTRUMENT OF
ACCESSION to be signed as of the date below written.
Signature:
----------------------------
Address:
------------------------------
----------------------------
----------------------------
Date:
----------------------------
Accepted:
By:
----------------------------
Date:
--------------------------
<Page>
SCHEDULE I
John K. Castle
Marcel Fournier
William Pruellage
(the above collectively referred to as the "CHP BOARD DESIGNEES")
<Page>
SCHEDULE II
INITIAL OFFICERS
<Table>
<Caption>
Name Title(s)
- ---- --------
Terence C. Seikel President and CEO
Barry Steele Controller
Marcel Fournier Senior Vice President
William Pruellage Vice President
Howard Weiss Vice President, Secretary
And Treasurer
Sylvia Rosen Assistant Secretary
</Table>