EXHIBIT 3.6
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
NACG FINANCE LLC
This First Amended and Restated Limited Liability Company Agreement (the
"Agreement") of NACG Finance LLC (the "Company"), dated November 23, 2003, is
adopted and executed by North American Energy Partners Inc., a Canadian federal
corporation, as the sole member of the Company (the "Member").
RECITALS
WHEREAS, the Member executed a Limited Liability Company Agreement of the
Company on October 22, 2003 (the "Original LLC Agreement"); and
WHEREAS, the Member now desires to amend and restate the Original LLC
Agreement in its entirety;
NOW, THEREFORE, effective as of the date first set forth above, the Member
hereby amends and restates the Original LLC Agreement in its entirety as
provided herein.
Article 1.
Organization
1.1 Formation. The Company has been organized as a Delaware limited
liability company under the Delaware Limited Liability Company Act, Del. Code
Ann. Title. 6, Sections 18-101 - 18-1109, as amended from time to time (the
"Act"), by the filing of a Certificate of Formation of the Company (the
"Certificate") with the Secretary of State of the State of Delaware under
section 18-201 of the Act.
1.2 Name. The name of the Company is "NACG Finance LLC" and all Company
business must be conducted in that name or such other names that may be selected
by the Board of Managers (as defined below) and that comply with applicable law.
1.3 Registered Office; Registered Agent; Principal Office. The registered
office and registered agent of the Company in the State of Delaware shall be as
specified in the Certificate or as designated by the Board of Managers (as
defined below) in the manner provided by applicable law. The principal business
office of the Company shall be at such place in the Province of Ontario as the
Board of Managers may designate.
1.4 Purposes. The Company is formed for the object and purpose of, and the
nature of the business to be conducted and promoted by the Company is, to hold,
purchase and sell investment property, including, without limitation, equity
securities, debt instruments and partnership interests as approved by the Board
of Managers, and engaging in any and all activities necessary or incidental to
the foregoing. With the exception of the foregoing, the Company shall not carry
on or become involved in any manner in any form of trade or business
1
other than to the Company's limited involvement as a lender, limited partner,
shareholder or other passive interest holder.
1.5 Term. The Company commenced on the date of filing of the Certificate
under and pursuant to the Act and shall continue in existence perpetually or
until the earlier dissolution of the Company as provided in this Agreement or
pursuant to the Act.
Article 2.
Limited Liability Company Interest
The Member is the sole member of the Company. No assignee (whether
voluntary or involuntary) of the Member's membership interest shall become a
member of the Company without the prior written consent of the Board of
Managers.
Article 3.
Capital Contributions
The Member shall have the option, but not the obligation, subject to
approval of the Board of Managers, from time to time to make capital
contributions to the Company at such times and in such amounts as the Member
determines to be necessary or desirable in furtherance of the Company's
purposes.
Article 4.
Management
4.1 Management by the Board of Managers.
(a) Management by Board of Managers. The management of the Company
shall be vested in a board of managers (the "Board of Managers").
(b) Number of Managers. The initial number of members of the Board of
Managers ("Managers") shall be one and the initial Managers of the Company shall
be as set forth on Exhibit A hereto. The number of Managers of the Company shall
be determined from time to time by the Board of Managers or the Member, provided
that (a) no decrease in the number of Managers may be made if it would have the
effect of shortening the term of an incumbent Manager and (b) the number of
Managers shall not be more than two.
(c) Election; Term. Each Manager shall hold office for the term for
which he is elected and thereafter until his successor shall have been elected
and qualified, or until his earlier resignation or removal. Each Manager shall
be elected by the affirmative vote of the Member.
(d) Removal; Resignation. A Manager may be removed at any time, with
or without cause, by the affirmative vote of the Member. A Manager may resign at
any time by giving written notice to the Board of Managers and such notice shall
be deemed effective upon receipt by the Board of Managers.
2
(e) Filling of Vacancies. In the event that any vacancy occurs in the
Board of Managers as the result of the death, resignation or removal of a
Manager or as the result of any increase in the number of Managers in accordance
with Section 4.1(b) above, such vacancy may be filled by the vote of the
remaining Manager though less than a quorum or by the election at an annual or
special meeting of the Member called for that purpose. A Manager elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office.
(f) Voting. Each Manager shall have one vote. Except as otherwise
provided in this Agreement, the Board of Managers shall act by the affirmative
vote of a majority of the total number of members of the Board.
(g) Duties. Each Manager shall perform his duties as a Manager in
good faith, in a manner he reasonably believes 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. A person who so performs his
duties shall not have any liability by reason of being or having been a Manager
of the Company.
(h) Delegation of Authority. The Board of Managers shall have the
power to delegate authority to such committees of Managers, officers, employees,
agents and representatives of the Company as it may from time to time deem
appropriate. Any delegation of authority to take any action must be approved in
the same manner as would be required for the Board of Managers to approve such
action directly.
(i) No Liability. A Manager shall not be liable under a judgment,
decree or order of court, or in any other manner, for a debt, obligation or
liability of the Company.
4.2 Meetings of the Board of Managers.
(a) Frequency; Location; Secretary of Meeting. The Board of Managers
shall hold regular meetings no less frequently than once a year at such times as
may be determined by the Board of Managers. All meetings of the Board of
Managers shall take place at such locations within the Province of Ontario as
the Board of Managers shall determine. The Board of Managers may designate a
person to serve as secretary of the meeting, which person need not be an officer
of the Company.
(b) Notice of Special Meetings. Special meetings of the Board of
Managers may be called by any Manager upon at least seventy-two (72) hours'
notice to the other Managers.
(c) Meetings by Teleconference. Any action required to be taken at a
meeting of the Board of Managers, or any action that may be taken at a meeting
of the Board of Managers, may be taken at a meeting held by means of conference
telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, provided all Managers
participating in such meeting are located in the Province of Ontario.
Participation in such a meeting shall constitute presence in person at such
meeting.
(d) Unanimous Written Consent in Lieu of Meeting. Notwithstanding
anything to the contrary in this Section 4.2, the Board of Managers may take,
without a meeting,
3
any action that may be taken by the Board of Managers under this Agreement, if
such action is approved by the unanimous written consent of the Managers,
provided all Managers execute such unanimous written consent while in the
Province of Ontario.
4.3 Officers.
(a) Appointment; Authority. The Board of Managers may, from time to
time as it deems advisable, appoint officers of the Company (the "Officers") and
assign in writing titles (including, without limitation, President, Vice
President, Secretary and Treasurer) to any such person. Unless the Board of
Managers decides otherwise, if the title is one commonly used for officers of a
business corporation formed under the General Corporation Law of the State of
Delaware, the assignment of such title shall constitute the delegation to such
person of the authorities and duties that are normally associated with that
office. Any delegation pursuant to this section may be revoked at any time by
the Board of Managers. The initial Officers are listed on Exhibit B attached
hereto.
(b) Term; Removal. The officers shall hold office for the term for
which they were appointed and until their successors are elected and qualified;
provided, however, that any officer may be removed at any time with or without
cause by the Board of Managers.
4.4 Execution of Documents. Any document or instrument of any and every
nature, including without limitation any agreement, contract, deed, promissory
note, mortgage or deed of trust, security agreement, financing statement,
pledge, assignment, bill of sale and certificate, which is intended to bind the
Company or convey or encumber title to its real or personal property shall be
valid and binding for all purposes only if executed by an officer or Manager of
the Company so authorized by the Board of Managers.
Article 5.
Role of Member
5.1 Rights or Powers. The Member shall not have any right or power to take
part in the management or control of the Company or its business and affairs or
to act for or bind the Company in any way. Notwithstanding the foregoing, the
Member has all the rights and powers specifically set forth in this Agreement
and, to the extent not inconsistent with this Agreement, in the Act.
5.2 Voting Rights. The Member has no voting right, except with respect to
those matters specifically reserved for a Member vote as provided in this
Agreement or as required in the Act.
Article 6.
Indemnification
The Company shall indemnify the Managers to the full extent allowed by the
Act. Furthermore, the Company, in the sole discretion of the Board of Managers,
may indemnify any officer, employee, agent, or other person to the full extent
allowed by the Act.
4
Article 7.
Taxation
For purposes of federal taxation (and, to the extent applicable, state
taxation), the Company shall be disregarded as an entity separate from its owner
under Treasury Regulation section 301.7701-2(c)(2), or any successor provisions.
No election shall be made that would prevent the Company from being disregarded
as an entity separate from its owner.
Article 8.
Books, Records, Bank Accounts and Assets
8.1 Maintenance of Books. The Company shall keep, or cause to be kept, at
its principal office complete and accurate books and records of the Company,
supporting documentation with respect to the conduct of the Company's business,
and minutes of the proceedings of the Board of Managers and the Member. The
books and records shall be maintained with respect to accounting matters in
accordance with sound accounting practices.
8.2 Bank Accounts and Assets. The Company shall establish one or more
separate bank and investment accounts and arrangements for the Company, which
shall be maintained in the Company's name with financial institutions and firms
as the Board of Managers may designate. The Company's funds and assets shall not
be commingled with the funds and assets of the Member or any Manager or officer.
Without limiting the foregoing, the Board of Managers shall take all steps
necessary to identify the inventory, property, and assets of the Company as
belonging to the Company and shall keep all such property, assets, and inventory
separate and apart, so that no third person not claiming by, through or under
the Company shall at any time assert any interest or right in or to such
property, assets and inventory.
Article 9.
Dissolution, Liquidation, and Termination
9.1 Dissolution. Subject to Section 8.2 below, the Company shall dissolve
and its affairs shall be wound up on the first to occur of the following events:
(a) the consent of the holders of a majority of the limited liability
company interests of the Company; or
(b) entry of a decree of judicial dissolution of the Company under
the Act.
Except as specifically provided in this Section 8.1, no other event or
action specified in the Act shall cause the Company to dissolve.
9.2 Winding Up and Termination. On the occurrence of an event described in
Section 8.1 above, the Board of Managers or a person appointed by the Board of
Managers shall act as liquidator. The liquidator shall proceed diligently to
wind up the affairs of the Company as provided in the Act. Until final
distribution, the liquidator shall continue to operate the Company properties.
The costs of winding up shall be borne as a Company expense. After payment of
creditors and the establishment of such reserves as the Board of Managers shall
determine, the assets shall be distributed to the Member. Upon final
distribution of the Company
5
assets, the Company shall file a certificate of cancellation with the Secretary
of State of the State of Delaware, cancel any foreign qualifications made by the
Company, and take such other actions as may be necessary to terminate the
existence of the Company.
Article 10.
Miscellaneous
10.1 Governing Law. This Agreement, and the substantive application and
interpretation hereof, shall be governed exclusively by the law of the state of
Delaware.
10.2 Headings. The headings in this Agreement are inserted for convenience
only and are in no way intended to describe, interpret, define, or limit the
scope, extent or intent of this Agreement or any provision hereof.
10.3 Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be invalid, illegal or unenforceable
to any extent, the remainder of this Agreement and the application thereof shall
not be affected and shall be enforceable to the fullest extent permitted by law.
*****
6
EXECUTED as of the date first set above.
NORTH AMERICAN ENERGY PARTNERS INC.,
a Canadian federal corporation
By: /s/ John D.Hawkins
------------------------------------
John D. Hawkins
Vice President
7
EXHIBIT A
---------
Initial Member of the Board of Managers
Ron Crawford
8
EXHIBIT B
---------
Initial Officers of the Company
Name Title
- ----------------- --------------
William C. Oehmig President
John D. Hawkins Vice President
R. Kent Wallace Secretary
9